KING'S BENCH DIVISION
COMMERCIAL COURT
Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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BNP Paribas Trust Corporation UK Limited (in its capacity AS Bond Trustee, and Borrower Security Trustee) |
Claimant |
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Uro Property Holdings, S.A |
Defendant |
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Kevin MacLean KC, James MacDonald KC and Adam Rushworth (instructed by Humphries Kerstetter LLP) for the Defendant
Hearing dates: 24th September 2024
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Crown Copyright ©
The Hon. Mrs Justice Cockerill DBE Tuesday, 24 September 2024
(15:13 pm)
THE HON. MRS JUSTICE COCKERILL DBE
"The courts have distinguished between late and very late amendments, a very late amendment being one which would cause the trial date to be lost ... the court is and should be less ready to allow a very late amendment than it used to be in former times and ... a heavy onus lies on a party seeking to make a very late amendment to justify it as regards his own position and that of the parties to the litigation and that of other litigants in other cases before the court".
"If an amendment is on the cusp of being "late" and "very late", then it may be necessary to carry out a review of the nature of the proposed amendment, the quality of the explanation for its timing, and a fair appreciation of the consequences in terms of work wasted and consequential work to be done. Even if it is necessary to adopt that approach when the amendment is on the cusp of being "late" and "very late", it will never be appropriate to conduct a mini-trial ."
"Uro's pleaded case (as set out in paragraphs 33 to 37 of the Amended Defence and Counterclaim …) can be summarised as follows:
(1) As a matter of Spanish law (and under the terms of the SHA), Uro had no entitlement to block or prevent the Santander Acquisition…"
The claimant makes three arguments in its skeleton. It says that the court would have to determine the claim in order to determine whether the security held by the claimant could be redeemed. That argument is on a basis which is not advanced in the amendments, that the damages claim is what is called a "borrower secured obligation". Here we have two points. First of all, I can only decide this application to amend on the basis of the pleaded case, and there is authority to that effect. The "borrower secured obligation" analysis cannot therefore save the proposed amendment.
"any and all present and future monies, obligations, liabilities and all other amounts due, owing, payable or owed by the Borrower to the Issuer under the Loan Agreement and/or the Borrower Finance Documents, as applicable, and references to Borrower Secured Obligations include references to any of them, as applicable."
52. I have therefore looked more closely at the merits of the case than I was initially minded to and I am not impressed. The new prospectus case is needed by the claimants because it is the only way that they get an unqualified representation on the documents. The prospectus could, on one analysis, be said to give an unqualified representation, where the other transaction documents do not – clause 16.14 of the Loan Agreement (the current focus of the representation case), stating that, "[t]o the best of its knowledge and belief (after due and careful inquiry) ….".
a. The contractual estoppel case is effectively one which cannot work because there is no representation in the contract.
b. An estoppel case by convention pursued on the limited basis adverted to (ie without disclosure or evidence) would be bound to be hopeless based on an absence of documentation as to shared understanding.
It is fair to say that the argument as to the merits of contractual and estoppel by convention was not much argued by the claimant with the central point being estoppel by representation.