Trip Down Judgment Lane

Trip Down Judgment Lane

A few notable quotes from judgments:

Top Brands Ltd & Ors v Sharma & Ors [2014] EWHC 2753 (Ch) – legal advice reliance when you might be close to being underwater:

Both of the above statements by GS were untrue. At this point, GS was at the helm of a vessel holed below the waterline; she had several times radioed the coastguard for directions to the nearest harbour but had not checked and had repeatedly misstated her position and her bearing, in consequence the course given was a course further out to sea; and, she was unaware of the state of the vessel because she had not looked below deck or noticed that it had ever decreasing freeboard, rather she continued to rely on the assurance of an owner, who had lately taken to a lifeboat, that the vessel was seaworthy.

I do not think a phone call to a friend who is qualified as a lawyer in Glasgow is sufficient for the purpose of independent legal advice. This is because first, Mr McKenzie only gave (on Mr Ross’s evidence) general advice, secondly, Mr McKenzie did not have sight of any papers such as Company information, accounts, or draft minutes of board meetings, and lastly the advice, according to Mr Ross, was not intended to be relied upon.

Toone & Anor v Robbins & Anor [2018] EWHC 569 (Ch) – Directors who might not keep proper records and accept money from their company:

Once the Chief Registrar had decided (as he did) that in the absence of clear evidence one way or the other he had to determine the issue by reference to the burden of proof then (there being no dispute that the company had made the payments to the Directors) the benefit of any doubt had to be given to the Joint Liquidators (not to the recipients of the company’s money). This is entirely in accordance with principle. Directors who receive money from the company cannot be heard to say: –
We have received company money: but our record keeping is so bad that the basis upon which we received it is unclear. So by reason of our defaults we ask you to assume in our favour that we took the money lawfully“.

Nicholson v Morris (H M Inspector of Taxes) 51 TC 95 the following notable comment was made as to the responsibility that the taxpayer has to HMRC:

… the Taxes Management Act throws upon the taxpayer the onus of showing that the assessments are wrong. It is the taxpayer who knows and the taxpayer who is in a position (or, if not in a position, who certainly should be in a position) to provide the right answer, and chapter and verse for the right answer, and it is idle for any taxpayer to say to the Revenue, “Hidden somewhere in your vaults are the right answers: go thou and dig them out of the vaults.” That is not a duty on the Revenue. If it were, it would be a very onerous, very costly and very expensive operation, the costs of which would of course fall entirely on the taxpayers as a body. It is the duty of every individual taxpayer to make his own return and, if challenged, to support the return he has made, or, if that return cannot be supported, to come completely clean, and if he gives no evidence whatsoever he cannot be surprised if he is finally lumbered with more than he has in fact received. It is his own fault that he is so lumbered.

Sisu Capital Fund Ltd & Ors v Tucker & Ors [2005] EWHC 2170 (Ch) – obligation of Liquidator when up for removal:

On the one hand, the court expects any liquidator to be efficient, vigorous and unbiased in his conduct of the liquidation and should have no hesitation in removing him if satisfied that he has failed to live up to those standards unless it can reasonably confidently be said that he will live up to those requirements in the future.

Ng v Ng (1998) 2 2 FLR 386, (1997) BCC 507 – office-holder duty to creditors limitation:

“A trustee in bankruptcy is not vested with the powers and privileges of his office so as to able him to accept engagement as a hired gun.”

Yeo v Times Newspapers Ltd [2015] EWHC 3375 (QB) – approach to cross examination that might not work:

When a fish wriggles on a hook, it goes deeper into the mouth and guarantees that the fish will not escape. So with Mr Yeo’s evidence on this issue. His twists and turns in the attempts to escape the obvious served only to emphasise the problem that the 22 May email presented for him. The problem is, of course, that his own contemporaneous account of his state of mind during the meeting tends to support TNL’s case and undermine his own. His evidence on this issue was in my judgment unreliable and untruthful.

Evans v SMG Television Ltd & Ors [2003] EWHC 1423 (Ch) – overriding objective of the CPR deployment not in evidence:

I feel impelled to conclude this judgment with a comment on the ever-increasing cost and complication of legal proceedings vividly exemplified in this case. The only real issues in this case are short and simple, namely whether the conduct of Mr Evans was such that the defendants could no longer reasonably continue his engagement as star presenter of the Show and whether his conduct was damaging to Virgin Radio and SMG Jersey. To a layman these issues would appear to be of limited compass and capable of speedy and economic resolution. But they have for their resolution occasioned mammoth litigation and a 20-day trial at a horrendous cost to the parties. In an effort to save at least part of this cost, when this case first came before me on a case management conference a few days before the date fixed for the trial (far too late for an effective and cost saving exercise of case management powers) I ordered the parties to seek a solution through mediation, but this proved unsuccessful. The lateness of the attempt and the costs already incurred by both sides on the litigation may well have been a factor in the failure of the attempt. At the trial I was faced (as is the lot of trial judges today) with some 30 (frequently very lengthy) witness statements from the witnesses of fact, expert reports on both sides in four distinct disciplines, and over 50 (largely unread) heavy and tightly packed volumes of documents. Such “overkill” is the bane of modern day litigation. The overriding objective of the Civil Procedure Rules of conducting litigation in a way which saves expense (ie economically) has yet to find its full reflection in litigation practice. In the vain hope of cutting the case down to manageable proportions I suggested that little (if any) more was required to determine this case than to hear the cross-examination and re-examination of Mr Evans. Such an abbreviation of the trial (no doubt for good reasons) was not adopted. At the close of the case it is clear that Mr Evans’s evidence under cross-examination effectively decided the outcome of the litigation and Mr Vos in his final submissions acknowledged that this was so. This trial underlines the urgent need for a more economic and affordable trial process. Large trials are becoming increasingly unmanageable and unaffordable. This is very much a case in point.

This has been a trial in which an elephant has been lurking in, or at least peering through the glass panelled doors into, the courtroom. The issues as presented and decided have not called for consideration of or a decision upon whether the arrangements that SH insists upon in few or nil asset estate cases offend the indemnity principle, the essence of which is that if a solicitor expressly or impliedly agrees that the firm will not in any circumstances charge the client no costs are recoverable from the other party (Cook on Costs 2015 [12.3]). There is a public interest in there being a practical means by which insolvency practitioners are able to obtain the assistance of lawyers to advise and represent them in the pursuit of misfeasant and dishonest officers and former office holders in nil asset estate cases where no creditor is willing to provide an indemnity, and it is the case that litigation funding is evolving, but at present the indemnity principle remains the law.