England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 February 2009

(1) Permission to appeal

(2) Springwell's application for further disclosure, dated 19 November 2008

Mrs Justice Gloster:

(1) Application for permission to appeal

Introduction

1. At a hearing on 1 October 2008 of Springwell's application for permission to appeal against my two judgments in this matter dated 27 May 2008 ("the First Judgment") and 25 July 2008 ("the Second Judgment"), I indicated that, in order to give proper consideration to Springwell's application, I needed to see draft grounds of appeal in relation to the general advisory claim, which indicated what aspects of my judgment on that topic Springwell intended to appeal, and on what grounds. I accepted Chase's complaint that the manner in which Springwell's application for leave had originally been made left entirely uncertain the real ambit of its proposed appeal, and whether the real nature of Springwell's challenge was to my findings of fact or to my conclusions of law. At the hearing on 1 October 2008, I indicated that, if I were minded to grant permission to appeal, it would only be on a limited, focused basis that did not involve a wholesale challenge to my evidential findings.
2. Between the hearing on 1 October 2008 and 21 November 2008, Springwell served:

i) draft Grounds of Appeal in respect of the general advisory claim running to some 26 pages, in which some 105 challenges are made to my findings in respect of that claim;

ii) a draft appeal skeleton in support of the draft Grounds of Appeal running to some 210 pages;

iii) a schedule identifying those paragraphs in Sections I-VI of the First Judgment which are challenged, and those which are not challenged ("the First Schedule");

iv) a schedule responding to an earlier schedule of Chase's, which identified those findings which Chase regarded as key; Springwell's response identifies which of those findings are challenged and, if so, which are challenges to primary findings of fact ("the Second Schedule").

3. I have carefully read and considered the draft grounds of appeal in respect of the General Advisory Claim, the draft appeal skeleton and the two schedules, as well as the submissions made by both parties at the earlier hearing on 1 October 2008, and at the later hearing on 21 November 2008.
4. The relevant test as to whether leave to appeal should be granted is contained in CPR Part 52.3(6) which provides:

"6) Permission to appeal may be given only where –

(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

It is to be noted that the test is restrictive. The court retains a discretion even in cases where a party might have a real prospect of success.

5. Part 52.3(7) provides that:

"(7) An order giving permission may –

(a) limit the issues to be heard; and

(b) be made subject to conditions."

6. As I indicated at the time of the delivery of the First Judgment on 27 May 2008, I was initially minded to grant permission to appeal if Springwell had been able to identify a point (or a number of points) of legal principle in the two judgments which might provide a justifiable basis for an appeal, or if it had confined its appeal to a particular factual aspect. My preliminary inclination was based on general considerations as to the amount of money involved in the case, the importance of the claim to Springwell, the length of the trial and the numerous complex issues of fact and law in issue which I had decided. Those considerations I have kept in mind in determining Springwell's revised application for permission. However, despite that preliminary view, on further consideration I have come to the conclusion that it is not an appropriate exercise of my discretion to grant permission to appeal, either in relation to the First Judgment or in relation to the Second Judgment. In my view, it is for the Court of Appeal to decide whether it ought to assume the very weighty burden of wide-scale evidential review which Springwell seeks to impose upon it by its proposed appeal.
7. My reasons for this conclusion can be shortly stated as follows. (The abbreviations are those used in the First and Second Judgments.)

General Advisory Claim

Paragraphs A1 - A4 in Springwell's draft grounds of appeal: the existence of a duty of care and the ambit of any such duty

8. Springwell's draft grounds of appeal in relation to these issues, as supported by its skeleton argument, make it clear that Springwell intends fundamentally to challenge my evaluation of the facts. The factual challenges include (but are not limited to) wide-ranging challenges in relation to the following areas:

i) the introduction of JA to AP, and the role of JA;

ii) the role of the Private Bank;

iii) Springwell's sophistication;

iv) the circumstances in which the Relevant Documents were signed;

v) the balanced assessment as to the duty of care;

vi) Springwell's investment objectives;

vii) the compatibility of the investments with the investment objectives;

viii) advice allegedly given or not given;

ix) the scope of the duty of care.

9. Despite the submissions of Mr. Brindle QC, for Springwell, that many of the factual challenges are challenges to my findings of secondary fact, the reality, as Mr. Hapgood QC, for Chase, correctly submitted, is that, by its proposed appeal, Springwell attempts to mount a wholesale challenge to numerous evidential findings that were heavily dependent on the credibility and reliability of the numerous witnesses who gave oral evidence. I do not accept, in this regard, that the schedules attached to Springwell's grounds of appeal show that it intends to challenge only a few findings of primary fact.
10. This was a trial in which a multiplicity of issues were fully ventilated over 68 days. Many, but not all, of the critical issues turned on my evaluation of the evidence of the principal protagonists, AP and JA. AP was cross-examined for twelve days; JA for ten days. I also heard, and had transcripts of, numerous of their recorded telephone conversations with each other. I was therefore in an excellent position to assess their interaction, intentions, understanding and respective roles throughout the course of their relationship. I had similar advantages in relation to other important witnesses of fact, including EM, FS, MF and SG. Numerous experts gave evidence before me, and I was able to evaluate that evidence under cross-examination.
11. Moreover, my findings in relation to the areas which I have described above, were necessarily based on an evaluation of all the evidence across a very broad spectrum of facts. Thus, for example, my findings in relation to AP's sophistication, and the circumstances in relation to which the Relevant Documents were signed, were not simply based on one or two events surrounding the signing of particular documents, or the making of particular investments. Rather, they were based on my evaluation of the evidence of AP, and others as a whole, upon the detailed history of the relationship between Chase and Springwell over many years, and upon a detailed analysis of contemporaneous documents in their evidential context.
12. Nor am I persuaded that the challenges which Springwell seeks to mount to my conclusions as to the existence of a duty of care, whether in contract or in tort, raise questions of legal principle. The law was not to any material extent in dispute, and the proposed grounds of appeal do not appear to challenge the principles which I applied. The existence or otherwise of a duty of care and its scope, are mixed questions of law and fact. Ultimately, whether a duty of care exists or not, and what its scope might be, depends on a balanced assessment of the relevant factors. Springwell's challenge, essentially, is to my evaluation of the evidence. Whether Springwell's particular complaint is that I failed to conduct a balanced assessment, or failed to take proper account of certain matters, or placed too much weight on others, the reality is that Springwell's proposed appeal on the duty of care issue requires the Court of Appeal to conduct a wholesale review of all the evidence.
13. At paragraph 7 of Springwell's draft skeleton argument, the principal criticisms of my approach to the issue of a duty of care are as follows:

"In her approach to the issue of whether Chase owed contractual obligations and/or tortious duties to advise Springwell with reasonable care, the Judge erred in 2 related aspects:

(1) The judge adopted an 'all-or-nothing' approach: see section A1.1. below.

(2) The judge adopted a 'status-based' approach: see section A1.2 below."

14. However, as to the first criticism, the fact was that Springwell did not put forward an alternative case, whether in its pleadings or otherwise. In any event, I did expressly consider the alternative basis of a more limited duty of care than that which Springwell advanced: see for example paragraphs 119 and 130 of the First Judgment. As to the second criticism, I did not, in fact, adopt a "status-based approach". What I did do was to take into account the capacity in which JA was acting, which in my view was one of the relevant factors in assessing whether a duty of care was owed. In circumstances where AP himself said (as part of Springwell's late attempt to shift the primary duty of care onto the Private Bank) that he knew that JA was a salesman, and was not therefore looking to him for advice, the capacity in which JA was acting was clearly one of a number of relevant factors that had to be taken into account.
15. Even where, in its proposed grounds of appeal, Springwell has sought to identify a legal principle (for example the Lowe v Lombank point, the application of Interfoto v Stiletto, estoppel, breach of fiduciary duty, the Unfair Contract Terms Act and the Misrepresentation Act), or an issue of construction (for example of the Relevant Provisions), the reality is that my conclusions on the particular issue in question are firmly dependent upon, or related to, my findings of primary fact. Thus, for example, Springwell's attempt to apply the Lowe v Lombank principle to the circumstances in which the Relevant Documents were signed will not succeed unless it can also successfully challenge a whole catalogue of my findings of specific primary fact, which were based on my evaluation of the oral evidence (as well as the documentary evidence) relating to the circumstances in which the documents came to be signed.
16. Examples from this catalogue (and I refer only to two) are:

i) my rejection of AP's evidence that, even if the Relevant Provisions of the MFA had been explained to him, he would have refused to sign the MFA, because it was inconsistent with the pre-existing relationship under which Springwell alleged advisory obligations had been assumed;

ii) my conclusions that AP would not have signed the 1993 DDCS Letter without some general awareness or appreciation of its subject matter, and that it must have been clear to him that it was an important document that must have been intended to have legal consequences.

17. As to the points of construction, even if Springwell could persuade the Court of Appeal that I had wrongly placed too wide a construction on certain terms of the Relevant Provisions, unless Springwell can also successfully challenge my conclusions at paragraphs 475 – 479 of the First Judgment (that there is actually no need - at least for the purpose of the general advisory claim - to undertake a detailed textual analysis of the precise ambit, extent and legal effect of each individual clause, because the contractual documentation, taken as a whole, has the broader evidential significance of negating the assumption of any general advisory duty or obligation on the part of Chase) any challenge to any particular conclusions on the construction of individual terms will be unlikely to lead anywhere.
18. Moreover, even if Springwell were to succeed on one of these so-called issues of law or construction on appeal, and to persuade the Court of Appeal that a duty of care did exist, nonetheless Springwell would come up against the hurdle contained in paragraphs 609 – 617 of the First Judgment. In those paragraphs I decided, hypothetically, that even if I were wrong in my finding as to the non-existence of any duty of care, and that such a duty existed, then the scope of Chase's duty of care was limited to those duties as set out in paragraph 616. In so doing, I stressed (at paragraph 615) that one needed to look at the key factors, irrespective of the Relevant Provisions which (on this hypothesis) had dropped out of the picture. I set out my conclusion on this alternative, hypothetical basis as to the ambit of any duty at paragraph 616 of my judgment.
19. My conclusion as to the ambit of any duty (on the assumption that one existed) was based on my evaluation of a massive amount of evidence both factual and expert. I do not consider that Springwell has any real prospect of persuading the Court of Appeal to impose any wider duty of care. This makes Springwell's proposed appeal on the issues as to the existence of a duty of care at A1 to A3 of the proposed grounds of appeal, or the ambit of any duty at A4, academic.

Paragraph B1 – B2.4.11 in Springwell's draft grounds of appeal: breach

20. Once again, Springwell's proposed challenge to my conclusion that Chase was not in breach of the hypothetical, limited duty of care, which I would have found existed, had I reached a different view on the existence of any such duty, is based on a wholesale challenge to my evaluation of the oral and expert evidence on this issue. That challenge opens up an almost unlimited factual inquiry.
21. It is clear (from paragraph 270(1) of the draft appeal skeleton) that Springwell is not challenging my rejection of Springwell's case as to its investment objectives as set out in paragraph 620 of the First Judgment. But the precise nature of Springwell's criticism as made in paragraph 58 of the draft grounds of appeal of my treatment of JA's evidence in relation to Springwell's investment objectives is obscure.
22. What is obvious, however, is that Springwell's challenge to my conclusions on the issue of breach involves a wide-ranging attack on my findings based on the factual and expert evidence relating to Springwell's investment objectives; the compatibility of the investments actually made with Springwell's alleged investment objectives; and the advice allegedly given or not given to Springwell. Thus, for example, in this context, Schedule II identifies the following specific findings in the First Judgment that Springwell seeks to challenge on appeal:

"that JJ's description of Springwell as greedy and aggressive was accurate. [paragraph 246 of the First Judgment]

that the expansion in leverage was a deliberate decision on AP's part, in line with Springwell's investment objectives. [paragraph 248 of the First Judgment]

that Springwell's response to the Tequila crisis was an example of its appetite for speculation in risky and uncertain markets. [paragraph 277 of the First Judgment]

that Springwell's dealings with ML show its enthusiasm for investing in emerging market securities. [paragraph 281 of the First Judgment]

that the principal reasons the relationship with ML did not flourish as much as the relationship with Chase were that (a) ML required a fixed measure of geographical concentration for leveraged purchase which irritated AP; and (b) they also made the mistake of trying to sell him assets over par rather than the 'cheap' and 'distressed' assets he consistently sought from JA. [paragraph 287(ii) of the First Judgment]

that it was AP's desire for profit which drove the percentage of Russian investments in Springwell's portfolio to about 50% by August 1998. [paragraph 446 of the First Judgment]"

23. Similarly, Springwell's challenge in paragraphs 60 - 70 of its draft grounds of appeal (where it effectively contends that I was wrong to reject Mr. McCall's evidence on the question as to whether the investments made were compatible with Springwell's investment objectives and wrong to accept Ms. McLeod-Wilson's evidence as to the suitability of the individual instruments in the portfolio) in effect requires the Court of Appeal to reconsider all the expert evidence relating to this issue, as well as many aspects of the oral evidence given by AP, JA and others.
24. Likewise, insofar as Springwell seeks, in paragraphs 78 – 96 of the draft grounds of appeal, to challenge my conclusions on the advice which JA, and then the Private Bank, gave as to suitability and risk, the challenge is, once again, a wide-ranging attack on conclusions derived from my evaluation of the factual evidence (JA, AP and others) and of the expert evidence (Mr. McCall, Ms. McLeod-Wilson, Mr. Kraus and Mr. Lopez-Claros). Any such review by the Court of Appeal would require that court to analyse all the relevant evidence relating to those issues.
25. The fact that, as I stated in paragraph 628 of the First Judgment, I reached, with a slight degree of hesitation, the conclusion that, so far as the Private Bank was concerned, it was not in breach of the limited, hypothetical duty of care, is not, in my judgment, any reason to grant Springwell permission to appeal on this issue. Because of my initial concerns on this point, I gave particular consideration as to whether the Private Bank should have done more. I concluded, after a full review of the facts, that what it had done was sufficient, on the assumption that it owed the alternative, hypothetical duty of care. Even if (contrary to my view) the mere fact of my hesitation might suggest a reasonable prospect of success on appeal, I do not consider it right to grant permission on this aspect, given: (a) the fact that my conclusions were heavily dependent on my factual findings; and (b) my conclusions on causation.

Paragraphs B3 – B3.2 in Springwell's draft grounds of appeal: causation

26. My conclusions on causation were a key part of the First Judgment. On actual causation "the essence of the first way in which Springwell put its case was, in effect, that AP simply 'rubber stamped' everything that JA recommended." (see paragraph 638 of the First Judgment). I held that Springwell had failed to show that the particular investments comprised in its portfolio at the date of the default were held as a result of breaches of duty on the part of the Investment Bank, or of the Private Bank, acting by JA, in advising Springwell to buy or to continue to hold a particular investment, or in failing to advise it to sell a particular investment, rather than on the basis of AP's own decision (see paragraph 641 of the First Judgment). In other words, my finding of primary fact was that Springwell had not proved reliance. That finding was strongly influenced by my assessment of AP as a domineering, strong-willed individual who took his own investment decisions. On hypothetical causation, I held that Springwell's Portfolio A would not have accorded with its investment objectives, and that, in any event, there was no evidence to suggest that AP would have been prepared to acquire and maintain a fundamentally different sort of portfolio of the alleged conservative type (see paragraph 643 of the First Judgment). As to hypothetical causation, I rejected Springwell's case for the detailed reasons set out at paragraph 644 of the First Judgment.
27. Once again, Springwell's challenge to my conclusions on actual causation, as set out at paragraphs 97 – 99 of the draft grounds of appeal, will necessarily involve overturning or undermining my factual conclusions, based on a full evaluation of the evidence that:

"the make-up of the portfolio was influenced by JA. But it was AP's desire for profit which drove the percentage of Russian investments to 50%. [paragraph 446 of the First Judgment]

AP was not a man who would blindly or docilely follow the views of someone else. I rejected the suggestion that he merely rubber stamped JA's suggestions. AP made his own decisions. He had a dominating and manipulative personality. [paragraph 448 of the First Judgment]

The evidence showed that far from simply rubber stamping JA's recommendations, it was AP who made the actual decisions. AP knew and determined for himself the direction of the portfolio. [paragraph 639 of the First Judgment]

AP was fully capable of, and did, make his own independent decisions. [paragraph 640 of the First Judgment]

accordingly, on actual causation, Springwell had failed to show that the particular investments in the portfolio were held as a result of breaches of duty on the part of Chase, rather than on the basis of AP's own decisions. [paragraph 641 of the First Judgment]"

These were factual findings derived from a broad assessment of the evidence, including the expert evidence, the oral evidence of JA and AP and the transcripts of their taped telephone conversations.

28. Likewise, Springwell's challenges to my conclusions on hypothetical causation (as set out at paragraphs 100 – 104 of the draft grounds of appeal) involve a wide-ranging challenge to my factual findings on that issue. I rejected Springwell's contention that, if Chase had not acted in breach of its investment advisory duties, and had (on this assumption) properly advised Springwell to diversify out of Russia, Springwell would have acquired any other emerging markets portfolio apart from the one that it did in fact acquire.
29. As I indicated, this conclusion was derived from a detailed and extensive assessment of the factual and expert evidence, and was heavily dependent on my evaluation of AP's evidence and character. In a nutshell, I did not believe that, even if the advantages of prudent diversification of investments had been more strongly pointed out to AP than they were, he would have changed his investment strategy for a moment.
30. I do not consider that there is a realistic prospect of the Court of Appeal overturning these factual findings and my evaluations of the evidence on appeal.

Conclusion on the General Advisory Claim

31. As I have already indicated, I do not consider that I should grant permission to appeal in respect of the General Advisory Claim. The proposed appeal is currently put forward on such a broad basis, with so many factual challenges, that it is effectively unmanageable by an appellate court.
32. Moreover, in my judgment, the proposed appeal does not satisfy the test laid down in CPR 52.3(6)(a) of having a real prospect of success. Even on the assumption that my decisions on those issues raised in the proposed appeal that can be properly characterised as matters of law and construction, were wrong, there is no real prospect that the Court of Appeal will overturn the numerous and detailed findings of fact which Springwell needs to displace before any of those matters of law fall to be considered.
33. Finally, the successive hurdles which Springwell faces at every stage of the argument (i.e. existence of duty, ambit, breach, causation) mean, in practice, that, unless Springwell can upset my conclusions of fact at every stage of the argument, an appeal in the ultimate analysis will be fruitless. Nor are there any "other" compelling reasons (see Part 52.3(6)(b)) to grant Springwell permission.

The Misrepresentation Claims

34. Springwell also seeks permission to appeal my dismissal of its claims for damages for negligent misrepresentation in relation to:

i) the implied representation that the investments recommended by JA were suitable for Springwell;

ii) the GKO-Linked Notes (see paragraphs 704 - 711 of the First Judgment);

iii) the Ukraine Note (see paragraphs 715 – 721 of the First Judgment).

35. I am not minded to grant permission to appeal in relation to these misrepresentation claims. My reasons may shortly be stated as follows.

The alleged misrepresentation as to the suitability of the investments for Springwell

36. I do not consider that Springwell has a realistic prospect of success in relation to this head of claim. I find it difficult to see how a claim in misrepresentation could succeed in circumstances where I have held the claim based on alleged tortious duty of care has failed. If contrary to my view, Springwell were to persuade the Court of Appeal that the general advisory claim were to succeed, then the misrepresentation claim under this head would be academic. Any challenge to my determination of this claim is, again, heavily dependent on Springwell successfully overturning not only my conclusions on the effect of the Relevant Provisions, but also my factual findings as to Springwell's investment objectives.

The GKO-Linked Notes

37. Again, I do not consider that Springwell has a reasonable prospect of success under this head, even though, factually, I may have wrongly overlooked the fact that JA indeed told AP on occasions that GKO-Linked Notes were conservative in the transcripts of telephone calls. As summarised at paragraph 318 – 322 of the First Judgment, the GKO-Linked Notes on their face contained an express acknowledgement that the Holder had not relied upon any representation or warranty, and that neither CMSCI nor CMIL had made any representation or warranty in respect of the purchase of the Note. In such circumstances, Springwell does not, in my view, have any prospect of success in relation to the misrepresentation claim. The circumstances in which I found that the GKO-Linked Notes came to be signed (see paragraphs 323 – 326) are not realistically susceptible to challenge. Even if JA had presented a more bullish view as to the risk level of GKO-Linked Notes than others might have done, any realistic prospect of appeal under this head appears remote (see paragraphs 704 – 714 of the First Judgment).

The Ukraine Note

38. In relation to the Ukraine Note, I held that:

i) the statement: "Ukraine has virtually no foreign debt" was incorrect and could be characterised as a misrepresentation (see paragraph 719 of the First Judgment);

ii) JA did not represent that the Ukraine Note which Springwell was purchasing was a Eurobond (see paragraph 720 of the First Judgment); and

iii) even if JA made misrepresentations both as to the state of Ukraine's external debt and as to the Note being a Eurobond, or as to it being a bond rather than a loan note, AP was not induced to make the purchase as a result of any such misrepresentations as to what were, in reality, very minor matters in the context of his decision-making process (see paragraph 721 of the First Judgment). I further held that, given that the Ukraine Note that AP purchased in January 1998 was much less risky than the first Ukraine investment, and given AP's admittedly relaxed approach to investments of USD 5 million or less (AP regarded this sort of sum as loose change, or "book-keeping"), it was almost inconceivable that AP would not have purchased the Note but for JA's mentioning it being a "bond", rather than a note, or but for the statement about internal debt. Given my factual findings, I do not consider that Springwell's appeal under this head has a reasonable prospect of success.

The Post-Default Claims

The Payment Claim

39. My decision on the Payment Claim is set out at paragraphs 125 – 179 of the Second Judgment. Springwell's detailed points of construction (which its own leading counsel described as "counter-intuitive") in essence sought to achieve the wholly uncommercial result whereby the economic risk relating to the Designated GKO-Linked Assets and the transactions underlying the Notes was not passed through to the Holder. If I had thought that any of Springwell's construction points had a realistic prospect of success, I would have granted leave, as the issues are not based upon my evaluation of the evidence. But I found Springwell's arguments were artificial, and, at times, had an air of unreality. Moreover, my finding in relation to Chase's estoppel argument (at paragraph 178 of the Second Judgment) is an additional reason why, in my judgment, any appeal would not have a sufficiently realistic prospect of success on appeal. Accordingly, I refuse leave.

The Damages Claim in relation to the CMBI-risk forwards

40. In its skeleton argument in support of its application for permission to appeal, Springwell set out its detailed arguments as to how it would present its case on appeal in relation to my conclusions in respect of the Damages Claim. It is clear from those submissions that Springwell needs, in order to succeed on appeal, to overturn my findings on the facts, based on an evaluation of many witnesses, that Chase, as an institution, was not acting in bad faith, or engaging in wilful misconduct or being grossly negligent (see, in particular, paragraphs 218, 222 – 223, 227 – 243 of the Second Judgment). I do not consider that there is a realistic prospect that the Court of Appeal would reach a different conclusion, on any review by it of the evidence, as to Chase's integrity and good faith, in the absence of hearing the oral evidence of the witnesses, and in particular WL and AJH.
41. Factually, I held that:

i) Chase's conduct during the Moratorium could not be criticised (paragraphs 217 – 219 of the Second Judgment);

ii) the fact that Chase had not set up separate CMIL and CMBI negotiating teams did not lead to any loss (paragraphs 219 – 224 of the Second Judgment);

iii) the declaration of force majeure and the letter terminating the Forwards did not cause loss to Springwell (paragraph 240 of the Second Judgment); and

iv) there was nothing in Springwell's allegation that Chase should have placed its own roubles in an S-Account during the Moratorium, on the off-chance that Chase would be able to give a windfall benefit to its non-risk bearing customers, and that its failure to do so amounted to bad faith, wilful misconduct and gross negligence (see paragraphs 241 – 245 of the Second Judgment).

Springwell would, in reality, have to persuade the Court of Appeal to over-ride all, or at least most, of my conclusions on these issues.

Account Claim in relation to the Sberbank Settlement

42. I dismissed this part of the Account Claim in paragraphs 181 – 186 of the Second Judgment. On this issue, Springwell contended (at paragraph 18 of the skeleton argument in support of its application for permission to appeal) that:

"the Court's finding that tax was paid, as asserted by Chase … is a finding for which there was no evidence, made contrary to such evidence as there was, which proceeds from a misunderstanding of the contemporaneous tax advice from Price Waterhouse Coopers or its consequences. It was not for Springwell to plead and prove any matter of Russian tax law. It was for Chase to demonstrate by evidence that because of a tax payment actually made, it received the benefit of only 57% of the Sberbank settlement sum paid in early 2001."

43. There can be no doubt on the state of the evidence before me:

i) Price Waterhouse had advised Chase by letter dated 19 February 2001 that the settlement amounts received from Sberbank would be subject to a profits tax at 43%;

ii) Springwell had not proved that the tax could have been avoided under Russian law because Springwell failed to adduce any evidence of Russian tax law; and

iii) in any event, section 2(h) of the Notes made it quite clear that whether tax was to be paid was entirely a matter of CMSCI's discretion.

44. The only area in which the evidence was "light", so far as Chase was concerned, was that it did not produce a document or witness specifically to prove that the tax had indeed been paid, as CMBI's tax return did not condescend to detail. To reach my conclusion that the tax had been paid (or, at least, the liability taken into account), I relied upon a statement made in a letter from Clifford Chance dated 1 July 2004 that it had been paid, the advice of Price Waterhouse, and the tax return.
45. Accordingly, I do not consider that Springwell has any reasonable prospect of succeeding on appeal on this point. In the circumstances, there was no reason not to have accepted Clifford Chance's assertion at its face value, and I refuse permission to appeal.

Conclusion

46. Accordingly, Springwell's applications for permission to appeal in relation to all the various heads of claim are dismissed. I have taken the somewhat unusual step of setting out my reasons at some length because:

i) it may be of some assistance to the Court of Appeal when it comes to consider any further application by Springwell for permission; and

ii) having initially indicated that I might grant Springwell permission to appeal on a limited basis, I considered that it was appropriate to set out my reasons for changing my preliminary view.

(2) Springwell's application for further disclosure dated 19 November 2008

47. At the hearing on 21 November 2008, Springwell applied for post-trial disclosure of what it defined as "the Pollux DDCS Documentation". This documentation was said to consist of all documents:

"… recording evidencing or relating to:

a. The fact that Ursa [a previous investment vehicle of the Hellenic Group customer] did not sign any or all of the DDCS Letters provided to it.

b. The fact that Pollux did not sign any or all of the DDCS Letters provided to it.

c. Any refusal by Pollux to sign any or all of the DDCS Letters provided to it.

d. Any decision by Chase to continue dealing with Ursa notwithstanding the fact that Ursa had not signed any or all of the DDCS Letters provided to it.

e. Any decision by Chase to continue dealing with Pollux notwithstanding the fact that Pollux had not signed any or all of the DDCS Letters provided to it."

which had been disclosed in another Commercial Court action, namely 2001 Folio No. 405. This action had been brought by Chase against another Hellenic Group customer, whose investment vehicle was Pollux Holding Limited ("Pollux"), ("the Pollux Action"), in which Pollux, by counterclaim, was making broadly similar claims against Chase to those made by Springwell in the present action. The application was supported by the 25^th witness statement of Thomas Hibbert, a partner in Reed Smith Richards Butler ("RSRB"), Springwell's solicitors.

48. There was insufficient time to deal with Springwell's application at the hearing on 21 November 2008, and, at the request of the parties, I directed that it should be dealt with on paper, and laid down a timetable for written submissions.
49. Although the trial of the Pollux Action was due to start in January 2009, on 16 December 2008, I was informed by Chase's solicitors, Clifford Chance, that the Pollux Action had settled on confidential terms, and that a consent order dismissing the action (including, I presume, Pollux's counterclaim) had been lodged with the court on 15 December 2008.
50. The factual position in relation to the Pollux documentation, as revealed in the evidence in support of the application, and in the skeleton arguments may be summarised as follows:

i) Ursa, and subsequently Pollux, were investment vehicles of another of Chase's Hellenic Group customers, the Diamantides family.

ii) It appears from the statements of case in the Pollux Action, as well as from correspondence in November 2008 between RSRB and Clifford Chance, that Ursa and Pollux had received from Chase certain DDCS Letters respectively dated 23 November 1992, 23 April 1993 and 23 February 1994 (sent to Ursa) and, so far as Pollux was concerned, a DDCS Letter dated November 1997 or March 1998 (which date the letter was actually provided is not clear from the pleadings).

iii) The DDCS Letters were not, in fact, signed by Ursa or Pollux.

iv) In its Reply to Amended Defence and Defence to Counterclaim submitted in November 2006, Chase pleaded that the DDCS Notices were sent by CMB in accordance with rule 5.5 of the SFA Rules, as a warning of the protections which Pollux/Ursa would lose by reason of classification as a non-private customer. It was also pleaded that, pursuant to rule 5.5(2), the customers' written consent was not required, and that Ursa, and subsequently Pollux, "accepted the terms of the [DDCS Letters] which terms governed each subsequent purchase and sale by them of investments …". In Clifford Chance's letter to RSRB dated 17 November 2008, it was further stated that:

"The situation with Pollux was therefore in all material respects the same as with Springwell. Chase continued to trade with both customers on the basis that they consented to and were bound by the terms of the DDCS Letters. Absent such letters, the customers would not have been able to trade. The fact that Pollux, in its particular circumstances, was not required to provide a signed consent, does not detract in any way from Chase's case. Nor can it be said that the Court was in any respect misled. Indeed, the entitlement of Chase to proceed without written consent, under rule 5.5(2) of the SFA Rules, was expressly referred to in Chase's opening submission (para 36) at the trial."

v) In November 2008, (at some date prior to Clifford Chance's letter of 17 November 2008) Pollux amended paragraph 14 of Appendix 1 to its Rejoinder to plead, for the first time, that "to Chase's knowledge" Pollux "had refused" to sign the March 1998 DDCS Letter. In its letter dated 17 November 2008, Clifford Chance stated: "This allegation, made recently by way of amendment, is denied by Chase".

vi) In its letter dated 18 November 2008, RSRB put forward reasons why, in its view, rule 5.5(2) could not have applied to exclude contractual or common law duties of care, or liability for any advice Chase might have given.

51. It is common ground that I have jurisdiction to make a post-trial disclosure order. Chase also accepts that it has internal and other documents falling within the scope of the application. Mr. Brindle, on behalf of Springwell, submitted that, at trial, although not as part of its pleaded case, Chase advanced the argument that signing the DDCS Letter was an essential pre-condition of any customer being allowed to trade or continue trading with Chase. He referred, by way of example, to the following quotations from Chase's opening and closing submissions:

"It was only on this basis that Chase was willing to conduct business with Springwell in the way it did. [paragraph 39, Chase's opening submissions]

These documents were necessary to enable Springwell to trade with Chase. [paragraph 52(c), Chase's opening submissions]

… Springwell would not have been able to trade with Chase at all. [paragraph 53, Chase's opening submissions]

The reality, as Springwell knew, was that, unless Springwell agreed to the contractual terms, by signing the DDCS letters and other various documents, Chase would not have agreed to trade with it. [paragraph 54, Chase's opening submissions]

Thus absent, for example, the DDCS letters, there would have been no trading at all. [paragraph 422, Chase's closing submissions]

[Chase] would not have traded with Springwell had Springwell not signed the documents. [paragraph 494(3), Chase's closing submissions]

The contractual documents were, of course, an essential condition for the ability of Chase to trade with Springwell. These documents were not negotiable nor could they be overlooked. Thus the only choice facing AP, when he received the documents was to accept them or to terminate his trading relationship. [paragraph 521(7), Chase's closing submissions]"

52. Mr. Brindle also referred to the fact that I had accepted the case Chase advanced. He referred to paragraph 205 of the First Judgment, where I stated: "If a customer failed to sign a DDCS Letter, GG would not let that person trade LDC paper". He also referred to paragraph 236 of the First Judgment, where I referred to the contents of the DDCS Letters which Springwell "purportedly agreed" by signing them, and went on:

"I accept that it was only on this basis that Chase was willing to conduct business with Springwell in the way which it did"

and to paragraph 492, where I accepted that it was instructive to consider the DDCS Letters against the backdrop that:

"… the contractual documents … confirmed the basis upon which Chase was prepared to trade with Springwell. Thus absent, for example, the DDCS Letters, there would have been no trading at all."

53. Mr. Brindle further submitted that the matters raised in the Pollux Action, in relation to the DDCS Letters, were highly relevant to the argument that signing a DDCS Letter was an essential pre-condition for any customer being allowed to trade; that it was likely (particularly in the light of the Clifford Chance letter of 17 November 2008) that documents will have come into existence dealing with:

i) the fact that Ursa and Pollux did not sign the DDCS Letters provided to them;

ii) a decision or decisions by Chase to continue dealing with Ursa and Pollux without signed DDCS Letters; and

iii) Pollux's express refusal to sign (if any such express refusal was made by Pollux).

He submitted that, given the case that Chase sought to advance at trial, such documents met the test for standard disclosure in the Springwell action (because they would have adversely affected that case), and should have been, but were not, disclosed. He pointed to the fact that Clifford Chance, in a letter dated 23 January 2006, stated:

"If further documents are identified, whether by reason of work done or searches undertaken in the context of the Pollux action or otherwise, which meet the standard disclosure test in the Springwell action, they will, of course, be disclosed."

54. Accordingly, he submitted that in the light of the proposed appeal, and indeed, any further application for permission to appeal, Chase should now disclose the Pollux Documentation.
55. The first point made by Mr. Hapgood, in resisting Springwell's disclosure application, was that it was made far too late, and without explanation for the delay. He referred to the correspondence between Springwell and Pollux in relation to the United States proceedings brought by both of them against Chase, and the liaison between their representatives in relation to the UK proceedings. He submitted that Springwell's advisors must have appreciated the state of Pollux's contractual documentation (and the absence of any signed DDCS Letters) much earlier. In response, Mr. Brindle confirmed that, as stated in Mr. Hibbert's witness statement, Springwell had only recently established, after the First Judgment was handed down, that Ursa and Pollux had not signed the DDCS Letters, and that the further point that Pollux alleged that it had expressly, to Chase's knowledge, refused to sign the March 1998 letter did not "emerge" until Pollux amended its pleadings to allege that fact in early November 2008. In the light of Springwell's response on the delay point, I propose to disregard Chase's submissions on delay in my consideration as to whether I should grant Springwell's disclosure application.
56. The second reason that Mr. Hapgood advanced as to why the court should not accede to Springwell's disclosure application was the lack of relevance of Chase's dealings with Pollux to the relevant issue in the Springwell trial, namely what, hypothetically, might have happened had AP objected to the DDCS Letters, which were hand-delivered to Springwell. This, he submitted, was a most peripheral question, given:

i) the fact that Springwell did indeed sign the DDCS Letters; and

ii) that I found as a fact that AP would not have objected to the letters in any event.

Furthermore, Mr. Hapgood submitted, the issue in the Springwell trial was one of hypothetical causation which, if it ever were subject to review, would be dependent on facts relevant to Springwell, including the nature of the hypothetical objection and the status of Springwell as a customer. He further submitted:

"In this light, it can be seen that an enquiry into what happened in respect of Chase's dealings with Pollux has no relevance to the issues in the case. Pollux was a different customer to Springwell. Unlike Springwell (where, as the Judge held [paragraph 24], the business was run principally from London), Pollux was based exclusively in Greece. Chase's case, as pleaded, is that Pollux fell within the exemption provided for at SFA Rules 5.5(2) and that, by continuing to trade with Chase, Pollux accepted the terms of the DDCS Letters. None of this has any prospect of illuminating the different and purely hypothetical question of what would have happened had AP made an objection to DDCS Letters delivered to Springwell (which AP did not in fact do, and which the Judge found he would not have done).

In such circumstances, given the peripheral nature of the question, the fact that it does not arise on the Judge's findings, and the absence of any connecting factor, the disclosure sought is irrelevant. At the minimum, such material would not pass the test for the admission of fresh evidence under CPR 52.11(2)."

57. Mr. Brindle, in response to Chase's written submissions, submitted as follows:

i) that the Pollux Documentation plainly met the test for disclosure under CPR 31.6, because, on any basis, the fact that Ursa and Pollux were allowed to continue to trade (particularly if it were the case that to Chase's knowledge Pollux had expressly refused to sign) adversely affected Chase's case;

ii) Chase's case effectively was that it was a pre-condition of the Chase trading system, from which there could be no deviation, that the DDCS Letters had to be signed; the effect of this deviation was material;

iii) that the findings at paragraphs 233 and 352 of the First Judgment (namely that AP would not have objected to signing the DDCS Letters had he known their contents) are findings which Springwell wishes to challenge on appeal, and it is in that context that Springwell seeks the Pollux documentation. Mr. Brindle submitted:

"If, on appeal, the Court of Appeal is persuaded that AP would have objected to the terms of the DDCS Letters had they been explained or pointed out to him, the Court will have to grapple with the issue of what Chase would have done had he refused to sign."

58. The third reason put forward by Mr. Hapgood in objecting to the disclosure was that the collateral inquiry into Chase's dealings with other customers was expressly excluded by my previous order dated 2 March 2005. In that order, I struck out those paragraphs of Springwell's defence and counterclaim referring to Chase's relationship with other Hellenic Group customers, and ordered that no evidence relating to them should be called in the Springwell trial save with the permission of the court. That order was upheld by the Court of Appeal in its judgment dated 20 December 2005 on slightly different grounds. It accepted (contrary to my original view) that theoretically, some of the evidence relating to other Hellenic Group families could be potentially relevant as similar fact evidence. However, the Court upheld the alternative ground for my decision, namely case management reasons: see paragraph 77 of the Court of Appeal judgment. As the Court said, the similar facts were themselves likely to be controversial and thus the necessary time in argument would risk overburdening the trial. Further, it held that, although Springwell had sought to limit the ambit of its similar fact enquiry, this could not in practice work, because the scope of Springwell's proposed factual enquiry could not deprive Chase of the right to respond to the evidence sought by Springwell by opening up a much larger factual enquiry into Chase's dealings with the Hellenic Group generally. Thus, submitted Mr. Hapgood, the disclosure of the Pollux Documentation went to precisely the sort of similar fact enquiry that was excluded by my order and the Court of Appeal. The rationale of the Court of Appeal, to avoid the escalation of the scope of enquiry into other dealings and the resolution of parallel controversies, applied just as much to the question of Pollux's DDCS Letters as to any other aspect of Chase's relationship with other customers. Further, if this issue were to be opened up, there was every prospect that the enquiry would not stop at Pollux's DDCS letters, as it would then be open to Chase to adduce evidence, if it so wished, about the factual position in relation to Chase's dealings with other members of the Hellenic Group.
59. Mr. Hapgood further submitted that the evidence which Springwell is seeking in its present application was even more remote from the actual issues between Chase and Springwell. He contended that evidence as to Chase's dealings with a customer of a different nature in different circumstances did not bear on the question of its dealing with Springwell on hypothetical facts. As dissimilar fact evidence, he submitted that it would not even pass the threshold of possible relevance theoretically postulated by the Court of Appeal. Finally, he submitted that, in any event, it fell to be excluded for precisely the same case management reasons.
60. In conjunction with this submission, Mr. Hapgood submitted that there was no purpose in the application in any event, since, in the light of the compromise of the Pollux Action, the evidential issues as to whether Chase was right to allege that Pollux had agreed to trade in the terms of the DDCS Letters or as to Chase's reasons for allowing Pollux to trade without a signed DDCS Letter will remain unresolved. The Pollux Documentation was only part of the evidence in relation to these issues; the background to Chase's decision-making in relation to permitting Pollux to continue to trade would have been supplemented by oral evidence at trial.
61. In response to Chase's third and fourth arguments, Mr. Brindle submitted there was nothing in the order of 21 March 2005 which expressly addressed disclosure. Nor was that order intended to enable Chase to keep from Springwell documents of which Chase was aware which adversely affected a case which Chase was advancing against Springwell. In the light of the judgments, Chase was not required to go and search for such documents. But, having located them and provided them to its solicitors, it cannot have been the intention of the order that Chase could advance a case contrary to them without disclosing them.
62. There was no risk, submitted Mr. Brindle, contrary to Chase's submission, that the inquiry would go further than the Pollux/Ursa DDCS Letters. It was Chase's case that signing these letters was a pre-condition for continuing trading. It was only exceptions to that rule which tend to invalidate it. But Springwell was content to proceed on the basis that the only exceptions were Pollux and Ursa. No further inquiry into other Hellenic Group customers was therefore justified by Chase, nor could it possibly be in Chase's interests to do so.
63. As to Chase's argument as to the alleged lack of purpose, Mr. Brindle submitted that Chase's objection was effectively that the documentary evidence was, on its case, "incomplete evidence", because it had additional witness evidence relating to the question of the terms upon which Pollux/Ursa was trading. Mr. Brindle submitted that the fact that the evidence was allegedly "incomplete" was no reason for not ordering the disclosure of relevant documents now. Still less was it a reason for excusing Chase's failure to make disclosure at the proper time. He further submitted that the proper time for the objection to the evidence being incomplete was on any application by Springwell to the Court of Appeal to adduce evidence which was not before the court below. At that stage, the Court of Appeal would be able to consider the objection in the light of: (a) what the documents disclosed actually show; and (b) the actual evidence which Chase says should be considered in response. He further submitted that, if the Court of Appeal were to regard it as just that Chase should be entitled to advance such evidence as a condition of granting Springwell's application, then that court will not hesitate to take that course. That is more than enough safeguard for Chase at this stage, where the objection is premature and cannot be weighed properly.
64. In any event, submitted Mr. Brindle, if there was a problem for Chase, it was a problem of its own making. Had it disclosed the documentation to Springwell when it should have done, there would have been no difficulty with its leading whatever evidence it chose to do. And the fact that Chase was even making the argument suggested very clearly that the documentary evidence does indeed adversely affect the case Chase advanced at trial against Springwell, being the case the court accepted.
65. Chase's fifth point was that as a minimum, disclosure should not be ordered at this late stage unless there was a good prospect that any new material would be permitted by the Court of Appeal to be adduced under CPR 52.11(2). Mr. Hapgood submitted that, for this purpose, although not directly applicable, the Ladd v Marshall principles remained relevant, namely that:

i) the evidence could not have been obtained with reasonable diligence for use at the trial;

ii) the evidence must be such that, if given, it would probably have had an important influence on the result of the case; and

iii) the evidence must be apparently credible.

66. In response to Chase's Ladd v Marshall point, Mr. Brindle submitted that the importance of the documents could only be assessed properly once the disclosure had been given, and the documents considered. Only at that stage, could Springwell decide whether to apply to adduce the documents in evidence before the Court of Appeal. In any event, he submitted, it was for the Court of Appeal to consider whether or not permission should be granted to adduce evidence which was not before the court below (as to which the Ladd v Marshall criteria would be relevant, but not determinative – see CPR 52.11.2). Accordingly, he submitted that the current application should not be turned by Chase into a vehicle for pre-empting that application.
67. With some hesitation, I am going to order disclosure of the Pollux Documentation, although I stress that that decision does not in any way affect my decision to refuse to grant permission to appeal. My reasons are as follows:
68. First of all, I agree with Mr. Brindle that it is not for me at this stage to consider hypothetically whether or not permission would be granted by the Court of Appeal to adduce evidence which was not before this court at trial. I do not consider that I should only make an order for disclosure, if I were of the view that the Court of Appeal would permit such evidence to be adduced on an appeal. I agree with him that the importance (if any), or degree of relevance, of any further evidence can only be properly considered once the documents have been disclosed. At this stage, the issue is not whether there are special reasons which might justify the late admission of such evidence on an appeal. The issue at this stage is whether the Pollux Documentation should be subject to a disclosure order.
69. Second, although my order dated 2 March 2005, as upheld by the Court of Appeal, precluded any evidence relating to Chase's other Hellenic Group customers being called at trial save with the permission of the court, that order would not have relieved Chase of its standard disclosure obligations under CPR Part 31.6, as I made clear in paragraph 38 of my judgment dated 14 March 2005.
70. Third, it was Chase's case at trial, which I accepted, that internal procedures at Chase required customers such as Springwell to sign up to the terms of the DDCS, or otherwise Chase would not have continued to trade with such a customer. Theoretically, therefore, in my judgment, the Pollux Documentation might adversely affect Chase's case to that effect or support Springwell's case that such was not the case. Mr. Brindle might, if he had had the material available at trial, have wished to cross-examine GG, JA, FS and other Chase witnesses in relation to what is alleged to have been Pollux's refusal to sign a DDCS Letter, to establish that Chase would in fact have continued to do business with Springwell despite the absence of a signed DDCS Letter.
71. Fourth, Springwell's undertaking, at paragraph 21 of its written submissions in reply, that it is content to proceed on the agreed basis that Ursa and Pollux were the only exceptions to Chase's policy that signing DDCS Letters was a pre-condition for continuing trading, and that Springwell, by necessary implication, accepts that the other Hellenic Group customers were subject to such a regime, has the consequence that, even if the Court of Appeal were to grant Springwell leave to appeal, and to adduce further evidence, there would not be any collateral inquiry into Chase's dealings with or policy towards other members of the Hellenic Group.
72. Fifth, and, perhaps, most importantly, I agree with Mr. Hapgood's submission that the only issue in the Springwell trial to which the Pollux Documentation was arguably remotely relevant was the issue as to what might have happened if AP had rejected the DDCS Letters and had not signed them. I agree with Mr. Hapgood that this is an extremely peripheral question, given the fact that Springwell did sign the DDCS Letters and my finding that AP would not have objected to the letters in any event. I also agree that it is extremely unlikely that any inquiry into what happened in respect of Chase's dealings with Pollux (a different customer, who was based exclusively in Greece, and which Chase apparently thought fell within paragraph 5(5)(2) of the SFA rules) will have any prospect of shedding light on the hypothetical question of what would have happened if AP had objected to the DDCS Letters. I further agree with Mr. Hapgood that, since the evidential issues in the Pollux Action will now remain unresolved (namely whether Pollux actually refused to sign the DDCS Letters to Chase's knowledge, and whether Chase assumed that, by continuing to trade with Chase, Pollux was accepting the terms of the Letters), and given the tangential relevance of those issues as I have already described, the disclosure of the Pollux Documentation per se is not realistically going to provide Springwell with any grounds for challenging my factual findings before the Court of Appeal.
73. However, despite my view that the Pollux Documentation will not assist Springwell in any further application for permission to appeal, or provide any ground for challenging my factual findings, I think that it is right that I should nonetheless order disclosure. If such an application had been made by Springwell during the course of trial, I have little doubt that I would have acceded to it, on the grounds that the Pollux Documentation might have shed light on Chase's policy in relation to the signing of the DDCS Letters, and might, additionally, have been relevant to whether Chase would have been concerned (because of Pollux's alleged refusal to sign) to downplay the effect of the Letters to AP, or otherwise "slip" them past him for signature. In my judgment, if, as Chase submits (and as I think is highly probable), the disclosure of the Pollux Documentation will add nothing to Springwell's chances of persuading the Court of Appeal to grant permission to appeal or, on appeal, to overturn my evidential findings, it is far better that such can clearly be seen to be the position at any future hearing before the Court of Appeal. A transparent approach on this issue seems to me to be much more sensible than allowing doubts to linger in the minds of the members of the Court of Appeal as to whether the Pollux Documentation (if disclosed) might have provided a basis for grounds of appeal. It also seems to me to be preferable that I, with necessarily more knowledge about the factual background to the case, should decide the point.
74. Sixth, Chase had not indicated that it would in any way be onerous for it to provide the disclosure sought.
75. Accordingly, I propose to order disclosure of the documentation sought, although I emphasise that that ruling does not affect my decision to refuse Springwell permission to appeal.