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Cite as: [2010] IEHC 275
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Judgment Title: Moorview Developments & Ors -v- First Active PLC & Ors Composition of Court: Judgment by: Clarke J. Status of Judgment: Approved | ||||||||||||||||||||||||||||||||||||||||||
Neutral Citation Number: [2010] IEHC 275 THE HIGH COURT 2003 9018 P BETWEEN MOORVIEW DEVELOPMENTS LIMITED, SALTHILL PROPERTIES LIMITED, VALEBROOK DEVELOPMENTS LIMITED, SPRINGSIDE PROPERTIES LIMITED, DRAKE S.C. LIMITED, MALLDRO S.C. LIMITED, THE POPPINTREE MALL LIMITED AND BLONDON PROPERTIES LIMITED PLAINTIFFS AND
FIRST ACTIVE PLC AND RAY JACKSON AND BY ORDER BERNARD DUFFY DEFENDANTS AND RELATED CASES JUDGMENT of Mr. Justice Clarke delivered on the 9th July, 2010 1. Introduction 1.2 The main proceedings involved a claim brought by companies in the Cunningham Group against the defendants First Active Plc (“First Active”), Ray Jackson (“Mr. Jackson”) and Bernard Duffy (“Mr. Duffy”). In response to those proceedings First Active maintained a counterclaim against the first named plaintiff (“Moorview”), the second named plaintiff (“Salthill”) the third named plaintiff (“Valebrook”) and the fourth named plaintiff (“Springside”). The counterclaim related to monies alleged to be due by those companies arising out of loans advanced by First Active to the companies concerned and cross guarantees entered into by those companies in respect of the indebtedness to First Active of Moorview and Salthill. 1.3 In addition, this judgment is concerned with separate proceedings [2005 No. 272 S] in which First Active sues on foot of a guarantee entered into by Mr. Brian Cunningham (“Mr. Cunningham”). There is a complication in respect of these latter proceedings which it will be necessary to deal with in due course. 1.4 Subsequent to delivery of the main judgment, these two connected matters, that is to say First Active’s counterclaim in the Moorview proceedings and the claim by First Active against Mr. Cunningham personally on the guarantee, were case managed with a view to those issues being tried together. In that context issues arose between the parties as to the entitlement, in the light of the main judgment, of the Cunningham Group and Mr. Cunningham to raise certain matters of defence. What, in fact, occurred was that witness statements were filed, on behalf of the Cunningham Group and Mr. Cunningham, from which it could only be inferred that it was intended to raise matters which First Active asserted had already been determined in the main judgment. An issue as to the entitlement of the Cunningham Group and Mr. Cunningham to raise those matters was determined in a judgment in Moorview Developments Ltd & Ors v. First Active Plc & Ors [2010] IEHC 34. For the reasons set out in that judgment I came to the view that it was not open to Mr. Cunningham or the Cunningham Group to raise the relevant matters on the grounds of res judicata. 1.5 The proceedings were then listed for hearing and this judgment is directed to the issues which were raised at that hearing. 1.6 In that context, I turn to the issues. 2. The Issues 2.2 The first submission made on behalf of the Cunningham Group (or more accurately those four companies within the Cunningham Group which are specifically the defendants to the counterclaim) concern the adequacy of the evidence presented on behalf of First Active as to the indebtedness of those companies. I will in due course turn to that question. 2.3 Second, some specific issues concerning particular amounts of money included in the counterclaim were raised. I propose dealing separately with each of those issues. 2.4 Finally, it is necessary to touch on the question of First Active’s claim against Mr. Cunningham on the guarantee. Only one issue was raised under that heading. The issue concerned the fact that the relevant guarantee made reference to liabilities of a company called Moorview Properties Limited. However, the name of the first named plaintiff is Moorview Developments Limited. On that basis it is said that the guarantee is not effective, at least insofar as debts of Moorview are concerned. Before leaving that issue I should also note that in a separate set of proceedings in which the Cunningham Group and Mr. Cunningham have brought a claim against the Royal Bank of Scotland & Ors (“the RBS proceedings”), I also had to consider an application on behalf of the Cunningham Group and Mr. Cunningham for an amendment to the pleadings in that case. I will deal with the issues which arose on that application in a separate ruling. However, for present purposes, it is necessary to note that the amendment sought, if made, would claim additional relief which would, if granted, have the effect of setting aside the guarantee which is the subject matter of the proceedings with which I am currently concerned. When I noted that there was only one issue in the guarantee proceedings, it is important to emphasise that it is perhaps more accurate to say that there is currently only one issue in those proceedings but that it may, depending on the result of the amendment application to which I have referred, be necessary to give further consideration as to what is to happen to those proceedings. For the purposes of this judgment I am concerned solely with the only issue which was, on the basis of the current pleadings, before the Court in relation to the continuing validity of the guarantee and Mr. Cunningham’s liability on it. I propose dealing with that issue first. 3. The Guarantee Issue 3.2 The defendant to the counterclaim is, of course, Moorview Developments Limited. The company which has potential liabilities to First Active is, therefore, Moorview Developments Limited. 3.3 One preliminary point was made by counsel on behalf of First Active. Mr. Cunningham’s guarantee has, in events which have happened, been capped at the sum of the euro equivalent of IR£1.5 million. The extent to which any of the companies whose liabilities are guaranteed may owe sums in excess of that amount is, therefore, irrelevant. Provided one or more of the relevant companies owes a cumulative sum equal to or in excess of the guarantee cap, then Mr. Cunningham is clearly liable to pay that capped sum on the guarantee. It will be necessary in due course to deal with the liabilities of each of the companies who are defendants to the counterclaim. However, it does need to be emphasised that, even if there was a difficulty concerning the description of Moorview as Moorview Properties, that would not avail Mr. Cunningham unless the cumulative liability of the other companies in respect of which no point can be raised fell below the cap. The amounts claimed in respect of each of the other companies exceeded the cap by a very substantial margin indeed so that in the event that First Active is even modestly successful in its counterclaim, the point made on the guarantee becomes wholly irrelevant. 3.4 Indeed, as will become apparent from the various points raised as a defence to the counterclaim, it is very difficult indeed to envisage any circumstances in which the amounts claimed could have been reduced to a sum that would make this point of any relevance. The Cunningham Group did put forward an argument concerning the adequacy of First Active’s evidence which, if accepted, might theoretically lead to no award being made on the counterclaim. In those circumstances, of course, there would be no evidential basis for the liability of any of the relevant companies and the guarantee claim would also necessarily fail on that ground alone. On the other hand if there is a liability on the part of any or all of the companies who are defendants to the counterclaim, then there does not seem to be any basis for suggesting that that liability could be less that the cap. What relevance the point has, in practice, somewhat eludes me. However, the point being raised I propose dealing with it. 3.5 This aspect of the case concerns what has, in some of the case law, (see for example East v. Pantiles (Plant Hire) Ltd (1981) 263 E.G. 61) been described as “correction of mistakes by construction”. As is clear from East and from the speech of Lord Hoffman in Investors Compensation Scheme Ltd v. Bromwich Building Society [1998] 1 WLR 896, two conditions must be satisfied in order for such a correction to occur. First, there must be a clear mistake. Second, it must be clear what the correction ought to be. 3.6 It is also clear from the speech of Lord Hoffman in Investors Compensation that a correction of the type with which I am concerned is not a separate branch of the law, but rather an application of the general principle that contractual documents should be construed according to their text but in their context. That context may make it clear that the words used in the text are a mistake. Thus, a reasonable and informed person may conclude that the words used are an obvious mistake and may also be able to conclude what words ought to have been used. In those circumstances, as a matter of construction, the court will, as it were, construe the contract as if it had been corrected for the obvious mistake. The reason for so construing the contract in that way is that the proper principles for the construction of contracts lead to that construction in any event. I am satisfied that those cases, most recently restated by the House of Lords in Chartbrook v. Persimmon Homes Ltd [2009] 1 AC 1101, represent the law in this jurisdiction. 3.7 The evidence in relation to this case was given on behalf of First Active by Mr. John Collison. Mr. Collison drew attention to the fact that all of the letters and contractual documents passing between the parties at or around the time of the guarantee being entered into, made reference to loans being advanced or to be advanced by First Active to Moorview Developments Limited. Mr. Collison gave evidence that, to the best of his knowledge, no one in First Active had ever heard of a company called Moorview Properties Limited. The guarantee was entered into as part of a package of financial arrangements between the Cunningham Group and Mr. Cunningham on the one side and First Active on the other side. The relevant loans were all entered into between First Active and Moorview Developments Limited. Likewise, evidence was produced from the company’s register which showed that there never was a company called Moorview Properties Limited. 3.8 In those circumstances there is only one conclusion. The reference to Moorview Properties Limited in the guarantee was a clear mistake. Not only was it a clear mistake but also what the correct reference should have been is equally clear. The guarantee should have made reference to Moorview Developments Limited. Moorview Properties did not exist. It never existed. Moorview Developments was, at exactly the same time as the guarantee was entered into, involved in entering into loan arrangements with First Active. It is inconceivable that there could have been any other intention of the parties but that the company whose liabilities were to be guaranteed was Moorview Developments Limited and not Moorview Properties Limited. 3.9 It is illustrative of the way in which the Cunningham Group has met these proceedings, that this point was persisted in, notwithstanding the fact that no evidence was tendered on behalf of the Cunningham Group or Mr. Cunningham and the only evidence likely to be before the Court would be wholly supportive of the fact that the legal test, which I have identified above, was comfortably met. It is, quite frankly, difficult to understand how the point could have been made in those circumstances. When regard is further had to the fact that, for the reasons which I have already sought to analyse, the point, even if it were good, would not be of any practical benefit to Mr. Cunningham, then it is doubly difficult to understand why the point was persisted with at all. 3.10 This is a matter to which I will have to return. However, for present purposes it is sufficient to say that I am more than satisfied that the proper construction of the guarantee is that it includes a guarantee by Mr. Cunningham over any liabilities of Moorview Developments Limited, the first named plaintiff. Subject to establishing the liabilities of both Moorview and the other defendants to the counterclaim, and subject to the question concerning the RBS proceedings to which I have already referred, it follows that Mr. Cunningham is liable to the cap amount on the guarantee. 3.11 In those circumstances, it is necessary to turn to the issues which arise in respect of the counterclaim and to deal first with the complaint made on behalf of the Cunningham Group that the evidence presented on behalf of First Active was insufficient to establish its claim. The evidence tendered on behalf of First Active in relation to the counterclaim was also that of Mr. John Collison. I, therefore, turn to this evidence. 4. Mr. Collison’s Evidence 4.2 The outstanding balances are set out as follows:-
4.3 Mr. Collison gave evidence as to the calculations. The nil opening loan balance recorded in respect of Valebrook and Springside reflect the fact that no loans were outstanding and owing by these companies to First Active when they were placed in receivership on foot of the cross-guarantees entered into by them in respect of the indebtedness to First Active of Moorview and Salthill. Each of the reconciliations submitted by First Active set out a summary of the payments made in respect of the companies in receivership up to and including 30th April, 2010. The receiver’s fees did not include any of the legal fees incurred by Mr. Jackson in respect of these companies; such legal fees have in the main been incurred in respect of these proceedings and are a matter for costs in these proceedings. Also, First Active is not seeking at this stage to recover legal fees incurred by Mr. Jackson in respect of matters unconnected to these proceedings. Mr. Collison stated that the interest is calculated and charged on a monthly basis at the prevailing rate for each company on the loan balance then outstanding. 4.4 Mr. Collison further stated that, based on the extent of the Cunningham Group’s liabilities, any sales would not generate sufficient proceeds to repay all of the debt to First Active. Mr. Collison did not envisage any possibility of overpayment or over-realisation of the debt. 4.5 Mr. Collison was clear in his evidence that he had carried out the calculations himself subject to the fact that he was assisted by one colleague in his task, which colleague worked together with him in circumstances where he was personally familiar with the work done by that colleague. Mr. Collison also produced a series of lever arch files which contained vouching documentation in respect of virtually each item which formed part of his calculation. Mr. Collison gave clear evidence that each item in the calculation was derived from the books and records of First Active and was accurately reflected in the schedules which he produced to the Court. It was suggested on behalf of the Cunningham Group and Mr. Cunningham that I should not accept Mr. Collison’s evidence to the effect that he had personally compiled the schedules produced to the Court having verified each item from the company’s books and records. I totally reject that submission. The only colourable (if it even be that) factual basis for the suggestion that Mr. Collison had lied on oath was that one error was discovered in the calculations. As pointed out earlier Mr. Collison indicated that First Active had not included in its claim (and he had not included in the relevant schedules) legal fees charged by First Active’s solicitors, Arthur Cox, notwithstanding the fact that such fees could, in certain circumstances, be properly regarded as forming part of the liabilities to First Active of companies within the Cunningham Group. The terms of the various mortgage debentures provided that such costs incurred, both by First Active in its capacity as a mortgagee in possession and by Mr. Jackson subsequent to his appointment as receiver, were to be regarded as part of the secured debt. However, First Active, as pointed out, stated that any claim that might be made in that regard was being waived. In the three lever arch files amounting to some hundreds of separate dividers relating to individual transactions, it proved possible to find one error, which involved there being a claim in respect of legal fees which was undoubtedly properly maintainable, but which was included in the schedules notwithstanding the fact that it had been indicated that such claims in respect of legal fees were being waived. On that basis, it was suggested that I should infer that Mr. Collison had misled the court by indicating that he had personally compiled and checked the relevant schedules. I find that suggestion to be untenable. I am more than satisfied that Mr. Collison was a credible and truthful witness. It does not seem to me to be open (as suggested on behalf of the Cunningham Group) to infer that Mr. Collison, simply because one error was made in a most laborious task, had not in fact done the task himself. I totally reject the suggestion that Mr. Collison’s evidence should not be accepted. 4.6 On that basis, I accept Mr. Collison’s clear evidence that First Active’s books and records contain entries, each one of which is set out in the relevant schedule, which involve either the initial liability of each respective company as of the date of the receivership, further sums advanced to the relevant companies in the course of the receivership, sums expended by First Active as mortgagee in possession which, in accordance with the terms of the mortgage debenture, become liabilities of the company concerned, and interest properly calculated in accordance with the terms of the relevant facility letters. 4.7 Subject to the individual points to which I will shortly turn, no challenge was made to any particular entry or any of the calculations carried out. No evidence was presented on behalf of the Cunningham Group or Mr. Cunningham in relation to same. 4.8 A point was made on behalf of the Cunningham Group and Mr. Cunningham that some of the documents produced by Mr. Collison were not documents which could be proved under the provisions of the Bankers Books Evidence Acts 1879 and 1959. However, that submission seems to me to misunderstand the object of that legislation. As pointed out in Volume 1 of the 1st Edition of Hallsbury’s Laws of England at para. 1301, the main object of the Bankers Books Evidence Acts is to relieve bankers from the necessity for attending at court and producing their books under a subpoena duces tecum. The purpose of the Acts is not, therefore, to facilitate banks in proving matters. The purpose is to enable evidence to be given of the contents of other parties’ bank accounts without the necessity for the attendance of a representative of the bank concerned and the production of the relevant books. However, in this case a representative of the bank did attend and gave evidence that the records which he produced to the court were taken from First Active’s electronic books and faithfully recorded what was present in them. In those circumstances there is no need for the relevant records to conform with the Bankers Books Evidence Acts. That legislation is irrelevant to a case where the contents of the banks books are proved in the ordinary way by a witness who can give direct evidence of having analysed the books. 4.9 In my view, therefore, the general submission made on behalf of the Cunningham Group and Mr. Cunningham as to the inadequacy of the evidence produced on behalf of First Active is wholly misconceived. Subject to a number of individual points, made in respect of specific and limited sums, that alone would be sufficient to establish that the sums claimed are due in each case. I should, in passing, briefly note that the reason why the sums due from the respective companies differ in some respect is that a complete set of cross-guarantees was not in place so that not all of the liabilities attached to each of the companies. 4.10 However, before going on to those specific points, it is necessary to deal with one additional matter urged on behalf of First Active. Each of the relevant mortgage debentures contained a clause (clause 27) which provided as follows:-
4.12 On that basis I now turn to the specific issues raised on behalf of the Cunningham Group and Mr. Cunningham. 5. The Specific Points 5.2 Quite frankly, I find the point made by the Cunningham Group and Mr. Cunningham difficult to understand. If a party owes its bank €1,000,000, the fact that the bank may have security over a property worth €400,000 does not alter the fact that the relevant party still owes the bank €1,000,000. Of course, if the bank chooses to and succeeds in realising the relevant security, then the bank has to give credit to its customer for whatever net sum is realised in reduction of the debt. In the example I have given, if the bank is able to sell the relevant property for €400,000, then it must credit its customer with that sum and thus reduce the debt to €600,000. However, until monies are actually realised by the sale of the secured property, then the debt remains €1,000,000. I can find no reason whatsoever, either in principle or in precedent, for the suggestion that a court calculating the amount owing by a customer to its bank must give credit for a hypothetical value of any security that might be realised. 5.3 Courts are frequently faced with joint and several claims. For example, a company may have procured that its principals give a guarantee to support loans from its bankers to that company. The fact that the bank may be able to obtain partial or, indeed, full payment on the guarantee does not prevent the company from owing the money in the first place. True it is that if the bank has actually received monies from the guarantor, then the company’s debt must be reduced accordingly (and, if necessary, extinguished). However, until the bank has actually received money from the guarantor concerned, the company continues to owe the full sum and any judgment entered by the court should be for that full sum. The fact that the bank cannot obtain double recovery on foot of obtaining a judgment for the full sum against both the company and guarantor, does not prevent the bank being entitled to a judgment in the full sum against both. There is nothing unusual, therefore, in a plaintiff (such as a bank) obtaining judgment against two or more parties where it cannot recover the full sum against them all, but must credit any sums recovered from one against the liabilities of the others. 5.4 Frankly, such a situation seems to me to represent such an obvious position that I find it difficult to understand how the contrary could have been argued. I, therefore, reject this argument entirely. 5.5 The next point made on behalf of the Cunningham Group and Mr. Cunningham concerns a suggestion (which had already been canvassed in the main proceedings) that the residential portion of the Salthill development had been sold at an undervalue. It is unnecessary to repeat what I said in the main judgment concerning that issue. For the reasons set out therein it was clear that that case had not been pleaded and that it had been improperly maintained on behalf of the Cunningham Group at that time. It follows, therefore, that I made no formal determination in respect of the issue, although I did express some comments generally on it. It follows in turn that it is not an issue which is caught by the res judicata ruling to which I have already referred. 5.6 In substance, the point made stems from the division of the price for the overall Salthill site, which was being sold to Mr. Duffy, as and between the residential and commercial portions thereof. At the level of business substance Mr. Duffy was buying the lot for a single price. However, because of difficulties in completing the sale of the commercial portion (caused by the existence of Cunningham Group litigation), it became necessary to divide the sale into the respective commercial and residential portions. It followed that the overall purchase price needed likewise to be apportioned. The allegation is that, for stamp duty reasons, the portion to be allocated to the residential portion was artificially reduced and the portion to be allocated to the commercial portion was correspondingly overstated. It being the case that only the residential portion has now completed, it follows that it is suggested that the current liabilities of Salthill (and the other companies who have given guarantees in respect of those liabilities), is currently overstated by the relevant amount. It is true, as was pointed out by counsel for First Active, that, even if the accusation were true, no loss ought ultimately be suffered by Salthill or those who have guaranteed its liabilities, in the eventuality that the contract in respect of the commercial portion ultimately completes. The reason for this is, of course, that even if it were the case that there were an understatement of the residential portion, any loss attributable to that would be compensated for when the commercial portion closed at a correspondingly increased price. However, it remains technically true that if it were to be established as a fact that the residential portion was sold at an undervalue, the current liabilities of the relevant companies would be overstated by the amount of any disparity. 5.7 It should first be noted that no evidence was called by the Cunningham Group to suggest that the apportionment of the price ultimately operated on was inappropriate. It needs to be recalled that the question of the contract between the receiver (and ultimately taken over by First Active as mortgagee in possession) for the sale of Salthill was a significant issue in the main proceedings. In the main judgment I dismissed the Cunningham Group’s claim that the property as a whole had been sold at an undervalue. At that hearing evidence was led from Mr. Phelan, the auctioneer, concerning values. No evidence was put forward, either from Mr. Phelan or from anyone else, to suggest that a proper expert view of the apportionment between the residential and commercial portions of the Salthill development would suggest that the price of the residential element was ultimately fixed at an inappropriate level. 5.8 In the absence of leading evidence, the Cunningham Group sought to place reliance on various documents (being, in the main, memoranda from within First Active) which were admitted in evidence on the Bula/Fyffes basis (Bula v. Tara and Fyffes v. DCC [2005 IEHC 477). There is little doubt but that those documents show that certain officials within First Active were, at certain times, concerned that the apportionment might not be correct. However, it is important to recollect that the arrangements between First Active, Mr. Jackson, and Mr. Duffy went through a significant number of developments between the time when a commercial deal was first done and when the sale of the residential portion actually closed. Much of the reason for that delay and much of the reason for the need to renegotiate the terms of that sale stemmed from actions taken by Mr. Cunningham or those who were acting on his behalf. There can be little doubt that First Active was required to reduce the overall price to Mr. Duffy to reflect the difficulties which had been created by Mr. Cunningham and his agents. 5.9 An absolutely precise view on the proper allocation of the total purchase price between the two elements of the property would not, in any event, be possible. Such an apportionment is not an exact science. In ordinary circumstances it might, however, be possible to reach a relatively clear view as to a proper apportionment. However, in circumstances where there were very many difficulties about the property as a whole (most of them, as I have said, orchestrated by Mr. Cunningham), the precise impact of those difficulties on the two parts of the property would be most difficult to estimate in any event. 5.10 The global price changed on a number of occasions over a significant period of time. The allocation or apportionment between the commercial and residential units changed itself, both by reference to that global price and also, independently. 5.11 Against that factual background it is also important to note the evidence of Mr. Collison. Although heavily pressed on the matter in cross examination, Mr. Collison did not accept that the price ultimately fixed on as appropriate to the residential development was anything other than a reasonable view of a proper apportionment of the monies then available from Mr. Duffy. Mr. Collison accepted that, at various stages, certain of his colleagues had concerns (which they expressed and in writing) that the allocation proposed at the relevant time might not be correct. However, the fact that parties expressed such concerns and raised same with their colleagues, does not, in my view, give rise to an adverse inference against First Active. Rather, it demonstrates that First Active were concerned to ensure that the apportionment of the purchase price was one which could be stood over. 5.12 I am not satisfied on the evidence that the Cunningham Group has established that the ultimate apportionment of the price between the residential and commercial portions was anything other than appropriate. In those circumstances, I am not satisfied that Salthill, or any of the companies guaranteeing Salthill’s liabilities, are entitled to a reduction in the amount due on that basis. 5.13 Finally, it is said that certain proceeds of sale (admittedly very minor in the overall scheme of these proceedings) were not properly credited to the accounts of companies in the Cunningham Group when the lands in question were sold, either by the receiver or by the First Active as mortgagee in possession. The problem in dealing effectively with this issue is that there was nothing in the papers filed prior to the hearing which suggested that this point was going to be raised. Not unreasonably Mr. Collison was not, therefore, in cross examination able to put his finger on the documentation which he assumed would demonstrate that proper credit had been given. It was subsequently (after the close of evidence) suggested by counsel for First Active, speaking from his instructions, that the relevant amounts were set off in respect of monies due to Mr. Jackson. In all the circumstances it seems to me that the best course of action to adopt is to allow First Active to place before the Court affidavit evidence dealing with this question so as to satisfy me, if the evidence be appropriate, that what counsel said, speaking from his instructions, is correct. Given the huge volume of documentation in this case it would be wholly contrary to the proper practice in the Commercial Court to allow a party to be caught by ambush in the way in which Mr. Collison was, and to penalise that party because the relevant witness was not able, without prior notice, to identify from the vast amount of documentation discovered in this case, which documents might provide the relevant explanation. However, in case there might be a difficulty, it does seem to me that I should require the matter to be properly proved. If, and when such an affidavit is filed, and the Cunningham Group wish to cross examine on it, and provided that there is some realistic basis put forward for such cross examination, I will permit cross examination to take place. Subject only to that, it does not seem to me that there is any merit in any of the points raised in defence. 6. Some Final Points 6.2 A somewhat greater substance might be said to attach to the point in relation to monies spent by First Active (through Mr. Jackson as its agent) when First Active was mortgagee in possession. It is clear that any monies so expended form part of the monies due under the terms of the mortgage debenture by the relevant companies to First Active. Mr. Collison’s evidence was that the records of First Active show the relevant monies as having been paid on specified invoices or requests by Mr. Jackson. It seems to me that that evidence, of itself, is sufficient to establish a prima facie case to the effect that the monies were spent by Mr. Jackson on behalf of First Active, as First Active’s agent, on matters connected with the properties in relation to which First Active was mortgagee in possession. There was, in my view, therefore, no evidential deficit under this heading either. In any event even if there were, then it seems to me that the certification point, to which I have already referred, would have provided an absolute answer. 6.3 To the extent that it was complained that Mr. Collison could not give evidence about aspects of the First Active’s dealings with the Cunningham Group where he was not directly and personally involved, it seems to me that the point made was misconceived. What Mr. Collison gave evidence of was an analysis carried out by him of documents kept by the bank in the ordinary way as part of the bank’s records. Business records of that type are prima facie evidence of a course of dealing between parties, although, of course, any party is free to challenge the accuracy of any such records. However, the idea that a bank wishing to prove its case in debt against a customer has to produce a separate bank official who was personally involved in each individual transaction which gives rise to the customer’s current debt is, in my view, fanciful. A witness from a bank is entitled to give evidence of the bank’s records showing the amount due by a customer of that bank. That evidence and those records provide prima facie evidence of the liability. If a specific element or elements of those records are challenged, then the bank might well have a problem if it could not produce a witness who could give personal evidence of the contested matter. The reason for that problem is not that the bank did not have evidence of the matter concerned. Rather it is the weight to be attached to that evidence. If credible evidence is given that the bank’s records are wrong, then the weight to be attached to a witness who could do no more than speak to the bank’s records might well be insufficient to displace the credible evidence suggesting the inaccuracy of the same records. In those circumstances the court might well conclude, on the balance of probabilities, that the records were inaccurate. In order to counter the credible evidence of the inaccuracy, the bank might well have to produce a witness who could do more than speak to the bank’s records but could give evidence of direct involvement. Even in those circumstances, however, the court would have to consider the weight to be attached to the bank’s records and form a judgment on all the evidence as to whether it could properly be concluded that those records were wrong. 6.4 However, in this case there was no challenge (other than the few points which I have dealt with in the course of this judgment) to First Active’s records. In those circumstances, it seems to me that Mr. Collison’s evidence was more than sufficient to discharge the onus of proof on First Active. It should also be noted, in that context, that the counterclaim with which I am now concerned is part of the same proceedings that were determined in the main judgment. Part of the Cunningham Group’s case in the main proceedings was to assert that it now owed the very large sums of money being claimed by First Active in circumstances where it was said that First Active and/or Mr. Jackson and/or Mr. Duffy was guilty of wrongdoing leading to an increase in those liabilities. The Court was invited to assess damages based, in many cases, on the assertion that those monies were due, should not be due, and that the difference amounted to the appropriate measure of damages. Having asserted that the monies were due as part of its claim, it is difficult to understand how the Cunningham Group and Mr. Cunningham can now credibly assert that the monies are not due (save for some technical issues which I have already dealt with) when it comes to the counterclaim which is, after all, part of the same proceedings. 7. Conclusions 7.2 Finally, I should end where I started by noting that this is the thirteenth judgment in these proceedings. While recognising that the issues raised in these proceedings are necessarily complex, it does have to be said that there must be some limit to the time and resources of the courts which can reasonably be allocated to one set of even complex proceedings. It is true to say that some of the points raised from time to time by the Cunningham Group have proved well-founded. In particular, I have held with the Cunningham Group in respect of a number of amendments which they sought to bring to proceedings (although it is now clear that the issues sought to be raised by amendment have failed). But it should also be noted that some of those amendments (for example the original hotly contested amendment in respect of the fraud claim as originally formulated) were ultimately not proceeded with or at least not proceeded with in anything remotely resembling the form in which it was originally sought to plead them. While the Cunningham Group, therefore, succeeded in its application to amend, it ultimately abandoned the case which was included in the pleadings by reason of that amendment. It also seems to me that many of the points now being relied upon by the Cunningham Group are wholly devoid of any merit. At least some of the points which I have had to deal with in this judgment seem to me to be bordering on the unstateable. 7.3 Parties have, of course, an entitlement to argue any points which they wish before the courts and if so argued, the courts have to deal with them. But parties do have an obligation to refrain from wasting court time by raising arguments which either cannot affect the ultimate result or have no real basis. I am afraid I have to say that in some respects the Cunningham Group has trespassed over the line in that regard. 7.4 In that context I should end by commenting on one matter raised by counsel for the Cunningham Group in the course of submissions in this case. At the beginning of his submissions counsel put it, as he said, “on the record” that rulings which I had made had precluded his clients from raising issues that they would have wished to raise on the counterclaim. Counsel also mentioned that he had been precluded from cross-examining Mr. Collison on certain matters. Counsel noted that the Cunningham Group was being sued for very large sums of money but because of the course the case took it was said that the Cunningham Group was not allowed to raise certain matters and had been deprived of “any opportunity to cross-examine the bank’s witnesses as to defences they wish to raise to the bank’s claim”. That account is factually correct to a point. However, counsel went on to suggest that it was his client’s position that that outcome was unjust. 7.5 I should finish by commenting that the course which these proceedings took was largely of the Cunningham Group’s making. The Cunningham Group agreed that the counterclaim and the guarantee claim against Mr. Cunningham personally, would not be tried at the main hearing. That course was not in any way imposed on either the Cunningham Group or Mr. Cunningham. The Cunningham Group was given ample opportunity to seek to discharge the onus of proof on it in relation to the very many serious allegations which it raised against both, First Active, Mr. Jackson and Mr. Duffy. It was facilitated in that regard by each of the defendants (in Mr. Duffy’s case more by inaction), agreeing to all of their documents being admissible as prima facie proof of their contents on the Bula/Fyffes basis. Despite that facility and despite the facility of calling any evidence which it wished, the Cunningham Group failed to discharge the onus of proof necessary to get beyond the non suit or direction stage. It is for those who assert to establish. A party does not get the right to cross-examine it’s opponent as an exploratory measure in the hope that something might come up to make its case. Rather, a party needs to establish a sufficient evidential basis to provide a prima facie case such that its opponent has then to go into evidence and be subjected to cross-examination. It is true that the Cunningham Group did not get to cross-examine First Active’s witnesses save that it had the right to cross-examine Mr. Collison on the relatively narrow matters arising in connection with the calculation of liabilities. But the reason for that is clear. The Cunningham Group agreed to a structure to the proceedings which separated the counterclaim out from the claim. It failed, in making its claim, to discharge the onus of proof on it. It is for that reason that it did not get to cross-examine First Active’s witnesses. While, as counsel for the Cunningham Group said, it is a really matter that may have to be addressed on appeal, I frankly fail to see how any injustice has been caused. On the contrary, to have allowed the case to proceed otherwise and have allowed the Cunningham Group another opportunity to re-run issues and points which had been endlessly explored, would have been a serious injustice and an abuse of process.
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