Haynes v St George Bank a Division of Westpac Banking Corporation - [2015] SASC 136

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HAYNES v ST GEORGE BANK A DIVISION OF WESTPAC BANKING CORPORATION
[2015] SASC 136
Decision of The Honourable Justice Nicholson
4 September 2015
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT
When nearing the end of the plaintiff's case at trial, the plaintiff applied for permission to amend his claim in a substantial manner. The various considerations identified in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 considered and the consequential balancing exercise undertaken.
Held: Permission to amend allowed;directions for the further conduct of the trial made.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Cement Australia Pty Ltd & Ors v Australian Competition and Consumer Commission [2010] FCAFC 101; Minh Nguyen & Ors v Tu Phan & Ors [2015] VSC 32; Channel Seven Adelaide Pty Ltd v Manock [2010] SASCFC 59, considered.

HAYNES v ST GEORGE BANK A DIVISION OF WESTPAC BANKING CORPORATION
[2015] SASC 136
NICHOLSON J.
Introduction

These reasons concern an application by the plaintiff, late in the trial, for permission to amend his statement of claim.[1]
[1] Interlocutory application, FDN 30, filed 1 September 2015.
In 2009, the plaintiff in these proceedings, Mr Haynes, wished to reorganise his financing facilities with the defendant bank (“the Bank”), in order to assist him to purchase a new residential property that also had flower farming potential. Mr Haynes already had a portfolio loan account with the Bank, secured by mortgage over various properties including his then residence in St Peters. The facility was extended to approximately $1.79M in order to assist with the purchase of the new property with the expectation being that the St Peters property would be sold at some relatively early stage and the facility reduced. An expectation at the time was that St Peters would sell for as much as $1.6M which, if this came about, would leave Mr Haynes with a relatively low mortgage secured by the new property.
As it happened, things did not go well and Mr Haynes defaulted on the extended facility. All the security for the facility has now been realised and both St Peters and the new property were sold for prices significantly less than had been anticipated. As a consequence and with the passage of time, the amount due under the facility together with interest has grown substantially. At present, Mr Haynes’ personal indebtedness is said to be in the order of more than $700,000.
The Bank has sought to recover the amount, said to be due and payable, in proceedings filed in this Court No. 1211 of 2014. Mr Haynes, in effect, by way of defence to those proceedings and by way of a counter-claim, has brought these proceedings against the Bank, No. 1436 of 2014, in which he makes various claims which, if successful, could result in an award of damages equivalent to the amount said to be due and payable under the facility or, indeed, exceeding the amount said to be due and payable under the facility. A trial of both proceedings, heard concurrently, is underway.
In Mr Haynes’ action, a central contention is that, at the time of extending the facility, the Bank assumed a contractual obligation to Mr Haynes in the terms of clause 25.1 of a document described as “The Code of Banking Practice”. Clause 25.1 is in these terms:
Before we offer or give you a credit facility (or increase an existing credit facility), we will exercise the care and skill of a diligent and prudent banker in selecting and applying our credit assessment methods and in forming our opinion about your ability to repay it.
The trial commenced on Monday 17 August 2015 and went for the allotted one week. It resumed on Monday 31 August 2015 having been listed for an additional two days with the (rather optimistic) expectation that, at least, the evidence in both Mr Haynes’ case and the Bank’s case by way of defence would be completed in that time. However, Mr Haynes’ case was not completed. Given availability difficulties with both counsel and also court listing difficulties, the matter had to be adjourned, part heard. It will resume in the week of 30 November 2015.
It is in this context that Mr Haynes has brought a late application to amend his statement of claim to permit him, in effect, to rely on a new particular of breach of contract. Early on the first day of the resumption, counsel for Mr Haynes foreshadowed making an application to amend. However, he was unable formally to do so because he was without instructions, given that Mr Haynes was still being cross-examined. He had been in that “state” during the break between the trial hearing periods.
As soon as Mr Haynes’ cross-examination had been completed, counsel obtained instructions to press the application. With the agreement of the parties, I proceeded to hear evidence from the balance of the plaintiff’s witnesses but for one, a real estate valuer whose evidence might turn out to be central to the then foreshadowed amendments. At the end of the second day after the resumption, and having completed Mr Haynes’ case but for the real estate valuer, I heard argument on Mr Haynes’ application to amend.
The amendment, if allowed, would, likely, have significant costs consequences for the parties with respect to further, hitherto unanticipated, preparation including further interlocutory processes. It, likely, would add appreciably to the length of the trial.
The essential nature of the application to amend
Mr Haynes’ pleading and the asserted factual basis underlying his claim and underlying the Bank’s defence to the claim is complex. However, the position can be simplified in a way sufficient to understand the nature of the application to amend. The Bank, when deciding in 2009 whether or not to offer an extension of the portfolio facility as requested, undertook an assessment of the application and its “bankability”. At least two components of this assessment were involved. First, Mr Haynes’ capacity to service the increased facility, that is, to meet the required periodic payments of interest and, second, the acceptability or otherwise of the security offered for the facility.
To this point, Mr Haynes’ case has been that the Bank failed to act prudently in its own interests but also in his interests in accordance with the obligations said to be imposed pursuant to clause 25.1 of the Bankers’ Code of Conduct when assessing Mr Haynes’ capacity to service the loan. Also, to this point, Mr Haynes has been of the view and has wished to establish that the St Peters property that formed part of the security for the facility, before and after it was extended, had a value in the order of $1.6M. When Mr Haynes was obliged to sell St Peters in order to comply with his facility obligations, the property sold for significantly less than $1.6M. On Mr Haynes’ case, this exacerbated his losses.
The genesis of St Peters having been regarded, in 2009, as having a value in the order of $1.6M was a valuation obtained by the Bank in the second half of 2007 and at a time when Mr Haynes’ private banking facilities were being brought across from the National Australia Bank. Mr Haynes now wishes to assert that the Bank failed to act prudently in October 2009 when extending the portfolio facility at Mr Haynes’ request, not just with respect to its assessment of Mr Haynes’ capacity to service the increased facility but by failing to obtain an updated valuation of the St Peters property. It is further to be asserted that, had an updated valuation been obtained, it would have shown a value only in the order of $1.1M.
Mr Haynes will rely, in this respect, on the fact that, between the 2007 valuation and the extension of the portfolio facility in October 2009, the global financial crisis and the collapse of Lehman Brothers had intervened with a consequential negative impact on residential property prices. It also will be further contended by Mr Haynes that, had the St Peters property been valued at $1.1M in October 2009 as should have been the case had the Bank acted prudently, the security on offer would not have been sufficient to support the extension of the portfolio facility as sought. As such, the Bank, acting prudently, would not have offered to extend the facility and, as I apprehend the argument, had Mr Haynes known the true value of St Peters he would not have proceeded with the transaction. The new argument is broadly similar to that presently pleaded, in terms of causation and loss, but depends upon a different and, hitherto, unexplored, assertion as to the Bank’s failure to act as a prudent banker in the circumstances.
Exhibit JWH6 to the third affidavit of Jonathan Wilfred Haynes affirmed 31 August 2015, is a proposed fourth statement of claim the subject of the application for permission to amend. The proposed fourth statement of claim contains a number of relatively minor amendments, none of which are objected to by the Bank. The critical amendments and those objected to by the Bank include the chapeau to clause 16, where the new allegation is put that:
Notwithstanding the 9 April 2009 decision history document, no updated valuation was obtained with respect to the St Peters property. Properly assessed, a reasonable and prudent banker would not have granted the increase in facilities.
Also objected to are clauses 16.11.5-16.11.8 which are in the following terms.
16.11.5The BLAST applications, and the assessment of the loan were based on an assumption that the St Peters Property was worth at least $1.6M based on a valuation report obtained by the Defendant in October 2007.
16.11.6The Defendant did not obtain a fresh valuation in 2009.
16.11.7A reasonable and prudent banker in 2009 would not have relied on a 2007 valuation, both in any event and further because a reasonable and prudent banker in 2009 would have been cautious about the effects of the Lehman’s crisis on the housing market in South Australia for properties worth over $1.1M, namely that there had been a softening in the market.
16.11.8Had a fresh valuation been obtained it would have been likely to show a valuation substantially less then [sic] $1.6M (as low as $1.1M) in which event neither the Plaintiff nor the Defendant would have proceeded with the application:
(a)In the case of the Plaintiff because his plan was to move to Longwood with minimal debt so that he could semi retire.
(b)In the case of the Defendant:
(i)Because its credit section had assessed the loan on the basis of an LVR ratio of 65% to 70%.
(ii)If the valuation was substantially lower than $1.6M then the LVR ratio would have exceeded those figures, and if the valuation was around $1.1M the LVR would increase to over 90%.
(iii)Without an LVR of 65% to 70% the fact that the Haynes could not afford to service monthly repayments would be even more important.
Mr Haynes’ explanation for the lateness of the application for permission to amend
The trial was originally listed to commence on Monday 27 July 2015. However, on 10 July 2015, I heard an application on behalf of Mr Haynes for the trial date to be adjourned. The basis of the application was that counsel then instructed had fallen ill, had been unable to devote recent attention to the matter and was unlikely to be well enough to conduct the trial. The application to adjourn the trial was opposed by the Bank. Thereafter, I conducted a number of directions hearings with a view to either maintaining the trial date or having the trial commence as soon as practicable after 27 July 2015.
For the directions hearing on 20 July 2015 and thereafter, Mr Haynes had engaged new counsel. On that day I heard and allowed an application to vacate the trial date. With the advent of new counsel, permission was sought for various amendments to the statement of claim which were also opposed by the Bank. Mr Haynes also sought permission to obtain and rely upon a further expert report or reports. In short, directions were made with a view to enabling Mr Haynes to reformulate his claim to the extent then advocated but with short time frames with a view to the trial commencing on Monday 17 August 2015.
By and large those time frames were observed and the trial commenced on that day. I am satisfied that substantial work has been performed by Mr Haynes’ solicitors and new counsel in a relatively short time, by way of reformulating Mr Haynes’ case, by way of preparation for trial and at the trial itself. As such, I am prepared to infer, for the purposes of this application, that the matter may not have received the attention it deserved during the months leading up to the initial trial date and before new counsel was engaged. Of course, counsel earlier briefed had fallen quite ill. In addition, whenever new counsel is engaged there is always the risk that a different case theory or trial plan might emerge. This does not, necessarily, mean that the first case theory or trial plan was inappropriate or inferior.
I have outlined these matters in very general terms and simply by way of background to the present application. It is apparent to me that for various reasons, new counsel found himself required to work up, in a relatively short, time what has turned out to be a more complex and difficult case than might have, at first, been understood. He has, to a degree, spent the time available to him for preparation and during the trial, to use the vernacular, in playing catch up.
With this background in mind, Mr Haynes has told the Court that the genesis of the now proposed amendments to the statement of claim lie in the ascertainment of facts only recently established. The Bank provided a report from a banking expert, Mr Bruce Debenham, dated 15 August 2015, in which Mr Debenham has raised, albeit only tangentially, the question of whether a reasonably prudent lender would, in the circumstances, have relied on the 2007 valuation when assessing the application to increase the portfolio loan facility in October 2009 without undertaking further inquiry. Also, on 15 August 2015, Mr Haynes obtained a report from a real estate valuer, Mr Sam Christodoulou, to the effect that in his opinion the St Peters property would have been valued as at October 2009, at $1.1M.
Counsel for Mr Haynes has argued that the first of these matters (the Debenham report) of itself was not enough to justify pursuing the amendment because Mr Haynes still believed St Peters to be worth $1.6M. However, the second matter, that is, the opinion of Mr Christodoulou that the likely value of St Peters in 2009 was only $1.1M, contrary to Mr Haynes expectations, completed the picture.
As I have said, the trial started on 17 August, that is, shortly after or at or about the time that Mr Haynes received the Debenham and the Christodoulou reports. Mr Haynes commenced being cross-examined during the afternoon of Wednesday 19 August 2015. Mr Haynes had an opportunity to propose the amendment now sought during that relatively short period between receipt of the two reports and the commencement of cross-examination on 19 August, but did not. Given the demands on Mr Haynes and his legal team during this period immediately before and at the commencement of the trial, to require him to have identified this new line of argument and to have sought, virtually immediately, to amend his pleadings during this short window of opportunity, might be seen as a counsel of perfection.
It cannot be ignored that the Debenham report and the Christodoulou report were obtained at such a late stage relative to the commencement of the trial as a consequence of the earlier late reformulation of Mr Haynes’ claim allowed during the interlocutory process in the weeks leading up to the trial. The fact that this new line of defence to the Bank’s claim has only come to the attention of Mr Haynes and his legal advisers within the last few weeks is very much a function of the previous lack of preparation coupled with the need to change counsel shortly before the initial trial date.
In addition, the Bank asserts that Mr Haynes was aware of the argument that the Bank should have obtained an updated valuation of St Peters in October 2009 much earlier because the issue had been raised by Mr Haynes during certain proceedings taken by Mr Haynes before the Financial Ombudsman in 2013/2014. In an undated submission put to the Financial Ombudsman, sometime in late 2013 or early 2014, Mr Haynes said this.
With reference to the recommendation I am at odds to understand how a banking specialist’s view can be that the loan was in fact a “reasonable bridging transaction” when there was never any suggestion that a bridging facility was sought.
If this were the case then surely the facility would have had a condition attached that the property at 37 Player Ct, St Peters must be sold within a time frame; this was not the case. Furthermore, the facility provided was for a 25 year, interest only term.
If a prudent lender were exercising their obligation of a duty of care to their customer and the facility was a true bridging facility then surely a current valuation of the subject properties should have been commissioned prior to the approval as the assumption that the property in St Peters would sell for $1,600,000 within 12 months should be based upon a recent assessment of the property market.
(Emphasis supplied)
Mr Haynes’ reference here to a current (as at October 2009) valuation must be considered in context. It has always been a point of contention between the parties that, as the Bank would have it, the portfolio loan extension was, in effect, bridging finance whereas, as Mr Haynes would have it, it was not the case of a bridging loan at all but a facility available for 25 years on terms pertinent to and with the risks associated with a long term facility. It was in this context that Mr Haynes, in his submission to the Financial Ombudsman, expressed the view that a current valuation would have to have been commissioned if it had been (but which it was not) a bridging loan. In these circumstances, I am not satisfied that the potential argument now being pursued had earlier come to Mr Haynes’ attention either at all or sufficiently as to preclude him from relying on it now, on the basis of undue delay.
Consideration of the application for permission to amend the statement of claim
Counsel for Mr Haynes submitted that the argument now sought to be made represents the strongest argument available to Mr Haynes. Counsel conceded that it is unsatisfactory that a case should be amended in such a material way during the course of a trial. Nevertheless, counsel submitted, the argument now sought to be put had a sufficient evidentiary basis, albeit one that would need to be supplemented by further expert evidence as to whether or not the Bank acted prudently in this respect, and was an argument that the plaintiff should be permitted to pursue in the interests of justice.
Counsel submitted that any prejudice to the Bank could be accommodated by an appropriate costs order and that any prejudice on the basis of delay should be given little weight because the resumption of the trial is to be delayed in any event and for other reasons. Counsel submitted that, given the inevitable adjournment of the trial part heard, the parties will have sufficient time and opportunity to properly prepare with respect to the new component of the case now propounded by Mr Haynes.

Mr Haynes’ counsel identified the following by way of evidence adduced to this point or to be adduced, as justifying the proposed amendment:
(i)evidence to the effect that the parties assumed that St Peters was worth not less than $1.6M in October 2009;
(ii)evidence that the Bank was hoping to achieve a 65 per cent loan to valuation ratio (LVR) and not more than a 70 per cent LVR;
(iii)evidence to the effect that the Bank had turned its mind to the St Peters valuation in 2009 but appears to have made a conscious decision not to update it;
(iv)evidence to be led from the expert, Mr Christodoulou, and (hopefully) from the Bank’s expert, Mr Debenham, as to the effect, in 2009, of the post-Lehman Brothers crisis on the higher end of the Adelaide property market;
(v)evidence to the effect that, if St Peters had only been worth $1.1M in October 2009, the Bank’s LVRs of 65 per cent to 70 per cent would not have been achieved, rather, an LVR of closer to 90 per cent would have resulted;
(vi)evidence to the effect that the Bank would have acted differently had it been aware that St Peters was worth materially less than $1.6M; and
(vii)evidence (to be obtained) to the effect that the Bank, acting prudently, should not have offered the loan and that Mr Haynes would not have proceeded with the loan had St Peters been valued at materially less than $1.6M.
A starting point must be the contention to be proved that, in the circumstances of this transaction in October 2009, a bank, acting prudently in accordance with clause 25.1 of the Bankers’ Code of Conduct, would have obtained a further valuation as at October 2009. If the Bank, by failing to do so, did not breach its obligations under clause 25.1 as a prudent banker, the rest of the argument will likely fall away. Such an allegation can be found in the proposed amendment to the chapeau of paragraph 16 of the statement of claim and in the proposed new paragraph 16.11.7.
The Bank opposes the application to amend on a number of grounds. It asserts that there has been an insufficient explanation as to why the proposed amendment is being pursued so late in the day. It asserts that case flow management procedures, the interests of the Bank, the interests of other litigants and the Court itself, particularly in the context of the High Court judgment and reasoning in Aon Risk Services Australia Ltd v Australian National University,[2] militates against permission being granted in this case.
[2] (2009) 239 CLR 175.
The Bank further asserts that it will suffer significant prejudice should the amendments be allowed which prejudice cannot readily be measured or adequately compensated by costs. The Bank contends, with some justification, that the Court cannot be satisfied that Mr Haynes has the wherewithal to meet any order for costs and that the longer this matter proceeds and the more complex it becomes, the greater will be the Bank’s losses by way of accruing interest and costs and the greater its exposure to a risk of non-recovery.
During argument, my attention was drawn to a number of recent decisions bearing on the question before the Court including: Aon Risk Services Australia Ltd v Australian National University,[3] Cement Australia Pty Ltd & Ors v Australian Competition and Consumer Commission,[4] Minh Nguyen & Ors v Tu Phan & Ors[5] and Channel Seven Adelaide Pty Ltd v Manock.[6]I will not stay to discuss the authorities. For present purposes, I accept, as discussed in Aon, that the following matters may, in appropriate circumstances, be relevant to the exercise of the discretion.
(i)The particular court rules under consideration;
(ii)The extent of delay in seeking leave and its associated costs;
(iii)The point the litigation has reached;
(iv)The prejudice to the respondent (to the application) if leave is granted;
(v)The prejudice to other litigants and the efficient use of court resources;
(vi)The explanation for the delay;
(vii)The importance of the amendments; and
(viii)The need to maintain confidence in the justice system.
[3] (2009) 239 CLR 175.
[4] [2010] FCAFC 101 (Keane CJ, Gilmour and Logan JJ).
[5] [2015] VSC 32 (Elliott J)
[6] [2010] SASCFC 59.
In the circumstances of this case, I am not satisfied that (i), (v) or (viii) are of any particular concern. I have already sufficiently dealt with (vi). As far as (ii) and (iii) are concerned, I have already described the position. In my view, these issues carry little weight in the circumstances of this case. There is no doubt that the application has been brought very late in the overall scheme of things. However, I am satisfied as to the explanation for the delay in that it has largely been contributed to by the exigencies of this litigation. Further, the application has been brought at a time before Mr Haynes’ case has closed. On the information presently available, a further report from and the re-opening of the evidence-in-chief (and cross-examination) of the plaintiff’s expert banker, Mr Robert Birt and the re-opening of the evidence-in-chief (and of course the cross-examination) of Mr Haynes may be required. Any such applications will need to be determined if and when they are made. However, at this stage, and subject to any further argument on the point, I cannot see that this would cause the Bank any particular prejudice given that it has not entered upon its own case by way of defence to any of Mr Haynes’ allegations.
As far as (vii) is concerned, I am satisfied that the potential importance to Mr Haynes’ case of the proposed amendments is significant. I am not in a position to and have formed no view as to the strength of this new claim. However, if the legal and factual foundation were to be established, Mr Haynes may succeed, at least, in reducing his liability to the Bank. In these circumstances, unless the Bank is likely to suffer significant irremediable prejudice as a result of this late change in Mr Haynes’ case, the interests of justice would suggest permission to amend should be allowed.
As far as (iv) is concerned, the Bank has outlined a number of steps that it would need to consider taking and perhaps take in order to properly defend the new claim. The size of this task may depend upon the further expert evidence, from Mr Birt or other persons, that Mr Haynes obtains bearing on the new issue. It may be that further discovery from Mr Haynes or from entities related to Mr Haynes will need to be made. It may be that non-party discovery will need to be pursued by the Bank. And it may well be that the bank will need to procure its own answering expert report or reports.
In general, these are matters that the Bank would have been required to attend to in the event that the proposed amendments had been part of the initial pleading. In this sense, the Bank will not suffer material prejudice. However, the Bank points out that it has already undertaken significant work by way of preparation and through the interlocutory procedures prior to trial which was aimed solely at defending a case that it had failed to act prudently with respect only to its assessment of the serviceability issue. Some of that work will need to be repeated with a view to considering now the question of whether the Bank acted prudently in not obtaining an updated valuation of the St Peters property.
It is submitted that, had Mr Haynes’ whole case been available from the outset, this preparatory work and interlocutory work still would only need to have been done once but with a dual purpose in mind. There is now to be a significant amount of double handling which will increase the Bank’s costs unnecessarily and unfairly. I accept that there will be, to an extent, a measure of double handling imposed on the Bank.
It is not possible to assess the extent. Nevertheless, it is an important consideration that I must take into account. It is a consideration that, ordinarily, can be accommodated by an appropriate costs order. In this respect, I do recognise that the utility of a costs order will be tempered by the fact that the Bank will be exposed to an increase in costs that may not be recoverable, whereas, had there been no double handling, this additional exposure would not have arisen. As against this, Mr Haynes’ parlous financial circumstances will have partly been caused by the Bank if Mr Haynes’ claim for damages for breach of contract were to be successful.
The Bank also contends that the delays and increased workload brought about by the late changes to Mr Haynes’ case will impose stress and strain not just on the Bank’s financial resources but on its employees who are involved in the preparation of the case and, in particular, on two of its primary witnesses who no longer work for the Bank. Again, there is force to this submission. However, it is largely met by the fact that this trial is to be adjourned, part heard, in any event.
The Bank raised other matters of potential prejudice during submissions. However, the matter of most concern to me in the context of this matter, is the double handling issue. I have little doubt that the Bank will be put to additional expense that would not have been incurred had the amendments been made in a more timely fashion. In addition, I am satisfied that the Bank thereby will increase its exposure to potentially unrecoverable costs.
Ultimately, it is, in part, a question for me as to where, on the information presently available and looking forward, the justice of the case lies in the sense of both parties being afforded a fair trial. Having reviewed the various considerations raised by the parties, I am satisfied that the significance of the proposed new case to the plaintiff is such as to outweigh any potential prejudice to the Bank and that the other matters to be attended to, in particular, those in (i), (ii), (iii), (v), (vi) and (viii) above are not such as to weigh sufficiently against permission to amend being granted. I allow the application to amend in the terms as sought by Mr Haynes.
It will be necessary for directions to be made as to further interlocutory steps to be undertaken in order for the parties to be ready to resume the trial. However, in order for the Bank to have a better understanding of what it might be required to undertake in this respect it would be helpful, in my view, if it first had before it any additional reports by way of expert evidence that Mr Haynes would seek to rely upon.
As far as the costs attendant on the plaintiff’s application are concerned, I do not see how the Bank would not be entitled, at the least, to an order for costs thrown away. However, given the complexity of this matter and the lack of clarity as to the additional work that might need to be done in the future, I would prefer to reserve for further consideration at a later date, all questions of costs deriving from this application.
I am not available after today until the week commencing Monday 21 September 2015. I propose to make initial directions and then have the matter called back on before me, during that week, with a view to the parties providing, if possible by agreement, a further set of directions dealing with additional interlocutory matters that will need to be attended to prior to the resumption of the trial. I make the following orders.
(i)The trial is adjourned, part heard, to recommence Monday 30 November 2015 with five days set aside.
(ii)In proceedings No. 1436 of 2014, the plaintiff has permission to file a fourth statement of claim in the form of that exhibited as JWH6 to the affidavit of Jonathan Wilfred Haynes affirmed 31 August 2015.
(iii)The plaintiff is to file and serve its fourth amended statement of claim within two working days of the date of this order.
(iv)The plaintiff is to obtain and serve on the defendant such further expert reports on which it intends to rely within 21 days from the date of these orders.
(v)The costs of and incidental to the plaintiff’s application to amend, being FDN 30, are reserved.
(vi)Each party has liberty to apply with respect to order (iv) above.
(vii)The matter is to be listed for a directions hearing in the week commencing 21 September 2015.
(viii)The Bank’s legal advisors are to consult with Mr Haynes’ legal advisors with a view to providing a set of draft minutes (agreed or otherwise) of directions for proposed further interlocutory steps to be undertaken, for consideration at the directions hearing referred to in order (vii) above.