Loan - application sought for full repayment of monies due together with interest accrued and costs.
Before : |
Sir Michael Birt, Commissioner, and Jurats Marett-Crosby and Milner |
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Between |
Investec Bank (Channel Islands) Limited |
Plaintiff |
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And |
Alan Paul Booth |
Defendant |
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Advocate D. P. Le Maistre for the Plaintiff.
Mr Booth appeared on his own behalf.
judgment
the commissioner:
1. This is a case where the plaintiff bank claims an amount due under a loan which is said to be just over £2.9 million in total. The defendant, Mr Booth, wishes to place the matter on the pending list. The principles about placing a matter on the pending list are clear. Rule 6/6(1) of the Royal Court Rules provides that a defendant can require the Court to place it on the pending list but it is clear from the practice of the court and stated authoritatively by the Court of Appeal in Kells-v-Cashback Limited [2012] (2) JLR N 16 ([2012] JCA 140) that the Court does not have to do this if it is clear that the defendant has no grounds of defence and is abusing the process of the court. As the Court of Appeal said at paragraph 20 of Kells the Court may:-
"decline to enter an action on the pending list when there is no discernible defence...."
2. This matter came before the Court originally on 2nd January, 2015. At that stage Mr Booth sought to place the matter on the pending list and he said he had three possible defences. The first was that service of the summons had not been validly affected and the second was that Collas Crill, who act for the plaintiff bank, were conflicted because they had previously acted for him. The Deputy Bailiff, who was then presiding, did not accept that either of these two grounds disclosed a discernible defence. However, the third matter which Mr Booth relied on was that there was a question over the validity of the demand under the loan. The Deputy Bailiff said that that matter, because it raised a question of fact, could go on the pending list; alternatively the plaintiff could withdraw the summons and start again, having issued a new demand. That is the course the plaintiff followed and the Deputy Bailiff did say at the time to Mr Booth that they would permit the bank to withdraw the claim and the bank could then make demand again; if that was what they chose to do, as the Deputy Bailiff put it, "you" (meaning Mr Booth) "are going to have some further difficulties and the deferral will not have achieved very much." Well that is what has happened. The bank has now served a new demand and issued a new summons and so the matter has been tabled today and the bank seeks judgment.
3. Today, Mr Booth says that he has five possible defences and therefore the matter should be placed on the pending list. We should add that he admitted on 2nd January that he owed the sum claimed by the bank and he has repeated that admission to us today. But his reasons for wishing to defend it are as follows:-
(i) He reiterated the question of conflict on the part of Collas Crill. Today, unlike before the Deputy Bailiff, he referred to the case of Abacus (CI) and Anor v Bisson and Ors [2007] JRC 150. In that case the Court was asked to order that the firm of Appleby should cease representing one of the parties in certain contested proceedings before the Royal Court because of conflict and the Royal Court, having heard the matter, did order Appleby to stop acting. Mr Booth therefore argues that the Deputy Bailiff was in error last time in saying that it was just a matter for the Law Society.
The difference between the situation in Abacus and the situation today however, is that in Abacus there was some contested litigation and therefore the defendants were putting up a defence. The conflict cannot, of itself, amount to a defence and there can be no prejudice if there is no defence and Collas Crill simply acts in obtaining judgment. So the conflict point cannot amount to a reason itself to put the matter on the pending list; there must be some other arguable defence which enables the defendant to do that.
(ii) He also relies upon that fact that he wishes to bring a third party claim against Collas Crill for negligence. He did not elaborate on the grounds and, to be fair, we did not enquire of them. But even assuming that he has some claim against Collas Crill arising out of this matter or other matters, that cannot amount to a defence to the claim. It is an entirely separate matter. He admits owing the money. The fact that he may have a claim against Collas Crill is separate and can be pursued by a separate action, but it does not entitle him to defend this action for a sum which he otherwise admits owing.
(iii) The third possible defence he raises is that he wishes to bring a claim against the bank because they have caused his real property here in the Island to be depreciated in value by reason of these proceedings. Again, even assuming that he makes out the factual basis for that, it cannot amount to a defence. The sum is owed. The fact that is there is a judgment or these proceedings take place, which may lead to depreciation in the value of his property is simply a consequence of the fact that he has not paid. It is not a defence which means that the bank cannot claim the sum which is due.
(iv) The fourth matter he relies upon is that this is a vexatious claim on the part of the bank. What he says is that there is plenty of equity in the property and that therefore, even if it takes a long time, the bank will get its money and interest; there is no prejudice to it in allowing Mr Booth the time which he wishes to try and bring together various financial transactions that he hopes to undertake and make a profit. He therefore submits that the bank is being vexatious in going ahead. Again, the short answer is that that is not a defence. It is a matter for the bank. If the bank thinks its interests are best served by going ahead now rather than waiting, that is a matter for the bank and the Court cannot stop them doing so even if the decision on the part of the bank is erroneous and they would be better off by waiting. The fact is that they are owed the money; the defendant admits that it is due. Therefore they are entitled to seek judgment if that is what they consider to be in their best interests.
(v) The final possible defence relied upon by the defendant is that he wishes to seek legal advice; he has a particular advocate in mind but because of some restrictive covenants that advocate cannot act for him until 1st March. Again, that in itself cannot be a defence. A lawyer cannot dream up or invent a defence. The defendant admits that he owes the money and therefore the fact that he is at present not legally represented is not a valid defence.
4. So putting all those matters together the Court has had no hesitation in concluding that we are in the territory envisaged in the case of Kells-v-Cashback, namely that there is no discernible defence even if the facts relied upon by Mr Booth are correct. Accordingly it would be an abuse of process to put this on the pending list. In the circumstances we have no alternative but to grant judgment to the bank.
5. We therefore grant judgment in the sum of £2,799,910, with interest on that sum under the facility letter until 12th February of £110,448.32. You can have interest on the sums at paragraph 1 and 2 as per clause 4.
6. In accordance with the facility letter, costs are granted on an indemnity basis, to be taxed if not agreed.
Authorities
Kells-v-Cashback Limited [2012] (2) JLR N 16.