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Abela & Ors v. Baadarani

Abela & Ors v. Baadarani

Case [2013] UKSC 44 26 June 2013

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Summary

Trinty Term
[2013] UKSC 44
On appeal from: [2011] EWCA Civ 1571

JUDGMENT

Abela and others (Appellants) v Baadarani (Respondent)

before

Lord Neuberger, President
Lord Clarke
Lord Sumption
Lord Reed
Lord Carnwath

JUDGMENT GIVEN ON

26 June 2013

Heard on 10 and 11 April 2013

Appellant
Clive Freedman QC
Tim Penny
(Instructed by PCB Litigation LLP)

Respondent
Andrew Onslow QC
Paul Greatorex
(Instructed by M&S Solicitors Ltd)

LORD CLARKE (with whom Lord Neuberger, Lord Reed and Lord Carnwath agree)

Introduction

The question for decision in this appeal is whether there has been good service of the claim form in this action on the respondent.

This is an appeal against an order of the Court of Appeal (Arden, Longmore and McFarlane LJJ) made on 15 December 2011 in which they set aside the orders of a number of judges and, in particular, an order of Sir Edward Evans-Lombe ("the judge") made on 28 January 2011 in which he declared, pursuant to CPR 6.37(5)(b) and/or 6.15(2), that the steps taken on 22 October 2009 to bring the claim form to the attention of the respondent amounted to good service of the claim form. The Court of Appeal held that the judge should not have made that declaration, that various extensions of the validity of the claim form for service should not have been granted, that the respondent had not been properly served with the claim form and that it followed that the claim must be dismissed. The principal issue in this appeal is whether the Court of Appeal was correct to hold that the judge should not have declared that the events of 22 October 2009 amounted to good service of the claim form.

The claims

As stated in the agreed statement of facts and issues, the underlying claim is for damages for fraud in connection with a contract for the purchase of shares in an Italian company called Gama SpA ("Gama"), made in March 2002, between the third appellant, as purchaser, and the respondent and Cicines Holdings Ltd ("Cicines"), as vendors, for a total consideration of US$14m. The contract expressly provided that it was governed by English law and contained a non-exclusive English jurisdiction clause. The appellants claim that the shares were worthless or worth far less than the amount paid for them. The claim alleges that the fraud involved corruption on the part of a Mr Haan, a lawyer for the appellants, who acted for them in connection with the sale and is said also to have acted secretly for the respondent without the appellants' knowledge.

The claim form in this action was issued on 30 April 2009, following the settlement of an action ("the Haan action") by the appellants against Mr Haan and a firm of solicitors ("Hammonds") who were said to be vicariously liable for the torts of Mr Haan, in order to recover such part of the moneys paid under the contract as were not recovered in that action. The background facts are set out in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abela & Ors v. Baadarani

Details

Case: [2013] UKSC 44
Decision Date