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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dansingani & Anor v Canara Bank [2021] EWCA Civ 714 (20 May 2021) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2021/714.html Cite as: [2021] EWCA Civ 714 |
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ON APPEAL FROM THE BUSINESS AND PROPERTY COURTS, BUSINESS LIST (CHANCERY DIVISION)
His Honour Judge Dight CBE sitting as a High Court Judge
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE ARNOLD
and
LORD JUSTICE LEWIS
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| (1) KANAYA DANSINGANI (2) SIGLO 21 LIMITED |
Appellants |
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| - and - |
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| CANARA BANK |
Respondent |
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John Brisby QC and Alastair Tomson (instructed by Penningtons Manches Cooper LLP) for the Respondent
Hearing dates : 5-6 May 2021
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Crown Copyright ©
Lord Justice Arnold:
Introduction
Essential background
The judgment
"The essence of their joint case is that … a meeting took place at the Branch, on 3 December 2008, ('the Meeting') at which Mr Dansingani and Mr Buxani were given assurances by very senior officers of the Bank (including the chairman of the Bank, a Mr Joseph) that the Bank would 'support the Company to the hilt for the long term' if a (second ranking) legal charge were to be executed by Mr & Mrs Dansingani over the House, which assurances then [sic] UK manager of the Bank is alleged to have said could be relied upon 'as binding the Bank'. They were said to be, in effect, representations of open-ended support. It is also alleged that at the Meeting the Bank's officers assured Mr Dansingani and Mr Buxani that they could ignore the terms of any documents produced by the Bank which were inconsistent with the representations which had been given at the Meeting relating to support. It is said that Mr Dansingani and Mr Buxani believed those assurances and passed those assurances on to Mrs Dansingani. Mr & Mrs Dansingani allege that they then executed the Mortgage on or about 16 December 2008 in reliance on those assurances, which proved to be untrue because the Bank failed to support Siglo in the way that had been promised, and that therefore the Mortgage should be rescinded. It is also said that the Bank acted unconscionably and unlawfully and that neither the Guarantees nor the Mortgage may be relied on."
"29. The disputes which I have to resolve are, as I mention above, essentially factual and require me to analyse a considerable quantity of documentary and oral evidence. The principal witnesses were in direct conflict on a number of the main factual issues. There was very extensive cross-examination of the witnesses and they were variously challenged as to their honesty, their reliability and their recollection of the relevant events. I had a number of helpful tools to assist me in finding where the truth lay. In preparing this judgment I have re-read the statements of case, the skeleton arguments, the witness statements and each of the very large number of documents to which my attention was drawn during the course of the trial. I also had the very considerable benefit of a daily transcript (in total running to more than 1800 pages) of the testimony of the witnesses and the submissions of counsel which supplemented my detailed manuscript notes of the evidence and arguments.
30. I was reminded of, and respectfully adopt to the necessary degree, the approach to the analysis of oral evidence based on the witnesses' alleged recollection of events by Leggatt J, as he then was, in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) drawn to my attention by [counsel for the Bank] …
31. I think that it is fair to say that [counsel for the Defendants] was less keen than [counsel for the Bank] that I should place much reliance on this reasoning, which reflected his view that the factual case of the Bank was in shreds by the conclusion of the oral testimony of the Bank's witnesses.
…
33. Siglo and Mr Dansingani submit that the evidence taken as a whole does not support the Bank's case. They say that at the conclusion of the evidence 'the Bank's case is in ruins'. In particular, it is submitted that the Bank's witnesses did not support the Bank's pleaded case in a number of respects, particularly in relation to the Meeting of 3 December 2008, that the reliance placed on the (date of) creation and status of a draft facility letter dated 28 October 2008 was entirely misplaced and undermines the credibility of the Bank's witnesses and that the final versions of what purport to be contemporaneous documents were not created at the dates which they bear and are not of assistance to the Bank. I will deal with each of those submissions in due course as I examine the material which was put before me.
…
35. During the course of the trial reference was made to a large number of bundles containing contemporaneous correspondence and other documents, running (on my best estimate) to something like 8,000 pages. That material contains, from both the Bank and the Defendants, an almost continuous running commentary on the events which occurred in relation to Siglo's banking arrangements and its finances. They are written, in the relevant period, by the witnesses who have given evidence in this case. They provide, in my view, not only a useful record of the events as they unfolded but they also reveal the thought processes of the authors of the documents (even if the thought processes are disguised in some cases by the document(s) having been drafted in a deliberately misleading way), and of the negotiations between them and of the agreements which they reached. Like Leggatt J I find that they are a sound source of material against which the oral recollections of the parties can be measured and judged and have proved invaluable to me in making the findings of fact which I set out below, and has led, I am afraid, to extensive (perhaps overly extensive) citation from them. While there are instances in which there is some doubt about the date or provenance or reliance on a particular document nevertheless the overall picture from the documentation is, in my judgment, very clear. I have taken account of all the oral and documentary evidence and the allegations made in the (verified) statements of case. There are very many inconsistencies. However, in the light of all that material, I have been able to make findings of fact on all the key issues as I set out below."
i) Srinivasan Balakrishnan, who was the Deputy General Manager and Chief Executive Officer of the Branch from September 2007 until July 2011 and had retired from the Bank in 2014. The judge's assessment was:
"37. … The Defendants submit that he was an unreliable witness and have cited in their arguments a number of instances in which they say that Mr Balakrishnan changed his evidence during the course of those three days. I have considered each of those examples and have come to the conclusion that Mr Balakrishnan was an honest witness whose recollection of events (particularly when pressed on detail) was not perfect but that did not cause me not to believe him on the central issues in respect of which I have to make findings. …
38. Notwithstanding the challenges made to his credibility I accept him as a witness of truth whose evidence on key issues was reliable. Where there were direct conflicts between his evidence and that of Mr Dansingani I had no hesitation in preferring the recollection of Mr Balakrishnan."
ii) George Joseph, who was the Chairman and managing director of the Bank from August 2008 to April 2009, when he retired from the Bank. The judge's assessment was:
"39. … The Defendants assert that he was not a truthful witness. I reject that submission. Initially, in his witness statement Mr Joseph had described his recollection of his visit to London in late 2008, where he met with several customers of the Branch, as 'fairly vague', but in oral evidence he asserted that he had a fairly good, as opposed to what was put to him as a 'very vague', recollection of the Meeting itself with Mr Dansingani and Mr Buxani on 3 December 2008. His oral evidence was more precise and of better quality than his written statements. This has been described by the Defendants as absurd, but I do not find it so. He explained the reason for that in cross-examination. He said that he had a better recollection at trial for two principal reasons: first because he had, since making his statement, been given access to the documents from which to refresh his memory, which had not been available to him at the time that he made his first statement and, secondly, prior to going into the box himself he had been sitting in court listening to the submissions and evidence of others in respect of which he said, convincingly to my mind, 'On account of listening to the proceedings here I could go back, I could replay my memory and I know. I am fairly clear in my mind right now.' …
40. In my judgment Mr Joseph gave convincing oral evidence about the meeting of December 2008 and his role in it. As he said in his witness statement … 'I did not have any involvement or familiarity with individual customers or accounts'. He also made the point that the purpose of meeting with [Mr Dansingani] was not the reason for his trip to London and that he had not discussed Siglo's affairs with the International Head Office in Mumbai (he having been based in Bangalore in any event) or with the officers of the Branch before coming to London. He was briefed about the general background of Siglo's affairs by the Branch prior to the meeting but was not provided with all the details of Siglo's banking arrangements. He emphasised that he viewed it as a goodwill meeting, that Siglo's banking arrangements were not in any event within his remit but fell within Mumbai's and it was they, not he, who were authorised to make decisions in respect of it. In answer to questions from [counsel for Mrs Dansingani] he frankly accepted that when he had been briefed 'there was no mention of Mrs Dansingani … [the Branch] only mentioned that there was a matrimonial home on which the bank has stipulated security.' He did not seek to embroider his evidence or cover apparent holes in the Bank's case or build a case against Mrs Dansingani.
41. His evidence taken as a whole was measured, careful and credible. His credibility was not shaken in cross-examination. Where there was a conflict between the Bank's pleading, Mr Joseph's witness statement and his oral recollection I prefer the statement and oral evidence to the pleading and the oral evidence to the statement. His evidence was logical, it fitted well with the other evidence given by the witnesses for the Bank and, most compellingly, was consistent with the contemporaneous documentation."
iii) Gopinath Iyer, who was the Assistant General Manager and Chief Manager of the Branch from September 2007 to July 2011. His line manager was Mr Balakrishnan. He left the Bank on the same day as Mr Balakrishnan. Prior to that, they had worked closely together and between them managed the Siglo accounts. The judge recorded at [42] that there was no serious challenge by the Defendants to Mr Iyer's credibility and that the judge found him to be a reliable witness whose evidence he had no hesitation in accepting.
iv) Bhaskar Hande, who was the General Manager and Chief Executive Officer of the Branch from July 2011 to April 2016. The judge's assessment at [43] was that Mr Hande was a witness of truth whose evidence the judge accepted.
i) Mr Dansingani. The judge's assessment at [45] was:
"Mr Dansingani was an unsatisfactory witness. His evidence was not reliable in very many respects. On certain highly material issues he did not tell the truth. Insofar as he may have been truthful his evidence was largely not reliable. He was plainly prepared in his correspondence with the Branch to say almost anything that he thought might assist him, whether it was accurate or not. He took the same stance in giving evidence to the court. That is not to say that I reject all his evidence. There are issues on which I accept what he told me. In the course of my review of the evidence below I identify where I reject his assertions and where I accept them. However, his credibility (in the sense both of honesty and reliability) was damaged by his frequent attempts to avoid answering the question, particularly where he could not foresee where the questions were leading or what the consequences for his case might be."
The judge gave an example of this. He then gave "[a]nother example of Mr Dansingani failing to be candid under oath" at [46] and "another lie in which Mr Dansingani had been caught out" at [47], stating that "[t]here were many of them to follow, some of which I also set out below".
ii) Mr Buxani. The judge's assessment at [48] was:
"I formed the conclusion that Mr Buxani was also an unsatisfactory witness. For example, [counsel for the Bank] demonstrated in cross-examination (Day 10) that in January 2010 Mr Buxani was prepared, in concert with Mr Dansingani, to mislead the Branch by telling them untruthfully that Mr Dansingani was unable to communicate with them or him because he was in a remote part of India. He told this lie, whether on his own behalf or on behalf of Mr Dansingani, so as to avoid having to deal immediately with requests from the Bank to bring Siglo's accounts back within their limits. The correspondence between the Branch, Mr Dansingani and Mr Buxani at that point paints a very clear picture and demonstrates that Mr Buxani was prepared to tell lies to the Branch. Moreover, in cross-examination Mr Buxani refused to accept the obvious inferences to be drawn from that correspondence: itself a failure to give frank evidence. It was apparent to me that Mr Buxani tailored his evidence to support his family."
The judge then gave another example "which demonstrates that [Mr Buxani] was prepared to lie to support Mr Dansingani".
iii) Mrs Dansingani. The judge's assessment at [49] was that she was "a much more reliable witness than her husband or brother … it was plain to me that the evidence which she gave which related to herself, her circumstances and the acts which she undertook, as opposed to her evidence which related to the business affairs of her husband and Siglo, was honest and for the most part reliable".
iv) Mrinal Dansingani, who is the younger of the two sons of Mr and Mrs Dansingani. For the reasons explained by the judge at [55], his evidence was "of very limited value".
"The Bank operated a series of tiers of authorisation for lending to its customers. The Chief Executive Officer of the Branch had a limit on the amount of the facilities which he could authorise above which he had to seek authority from the Local Loans Committee (of which he was a member), and above that authorisation would have to be sought from the International Division of the Bank in Mumbai. There was a system by which the Branch reported to Head Office, which gave instructions, which were then implemented by the Branch. The evidence shows that such was the system which operated in relation to Siglo's accounts."
"The Branch had a limit on the extent of the facilities which it could extend to Siglo and needed to seek approval, on a regular basis, from the Bank's head office in Mumbai. The Branch therefore provided regular reports to Mumbai, which in turn raised queries from time to time and gave instructions as to the approach which the Branch should take in its dealings with Siglo. Because the parent company of the Bank was subject to the regulatory regime of the State Bank of India it was also required to declare as a non-performing asset any account where the customer exceeded its agreed credit limits for a period of 90 consecutive days. If on any particular day the account came back within its limit the Bank treated the period of default as no longer running but would begin to calculate the 90 days afresh from the next occasion on which the account exceeded its limit. It will be seen from the correspondence which I set out below that there is frequent reference to this looming 90 day deadline both by the Bank and Mr Dansingani. The significance of it was that any customer whose account was deemed to be a non-performing asset ran the risk that the Bank would seek to recover the liabilities of that customer and realise any security which it held in respect of that liability. At a relatively early stage in his oral evidence, when being cross-examined by [counsel for the Bank], Mr Dansingani said that he had not become aware of the 90 day rule until after the Mortgage had been granted (ie December 2008): 'they told me only after they took my mortgage'. That was a lie: there are many examples in the correspondence which flatly contradict that evidence. While it did not become an important factor until about May 2008 it is plain that Mr Dansingani and Mr Buxani understood the importance of this deadline from a much earlier stage of the banking relationship between the Branch and Siglo."
"From about 2003 Siglo ceased to purchase goods in Japanese Yen, at a time when it had a considerable liability on its overdrawn Yen account with the Bank. At the same time Siglo was holding a considerable credit on its US dollar account. The interest rates paid on the dollar account were higher than the interest rates charged on the Yen account and should, it is said, have therefore operated in Siglo's favour. A deliberate strategic decision had obviously been taken by Siglo, and I find by Mr Dansingani and Mr Buxani, to profit (not improperly) from the difference in the interest rates applicable to the two currencies. That decision carried with it the inherent exchange rate risk which subsequently caused such a problem between Siglo and its bankers. In my judgment there was at this point no other reason to continue to hold a liability in Japanese Yen. Had a decision been made at that point to pay off the Yen liability using the dollar deposits Siglo would ultimately have been in a much better financial position than it subsequently found itself in. The failure to reduce the Yen liability at this stage (or thereafter) caused Siglo very significant financial difficulties which can only properly be attributed to Mr Dansingani and Mr Buxani. Many of the subsequent events flow from this failure."
The judge went on to find at [132] that Mr Dansingani's and Mr Buxani's evidence that they were not aware of the inherent risks in this strategy due to the fluctuation of foreign exchange rates was "simply not credible".
"137. … The Branch had been required by its internal procedures to report the excess up the line to [Mumbai] … On 17 July 2008 Mumbai sanctioned the breach of the facility limits because they viewed it as a 'very special case' but they required the Branch to keep a closer eye on the accounts and not allow it to exceed its facilities for more than 30 days at a time.
138. The net position on Siglo's account had, however, soon again been in excess of the authorised facilities and the Branch had again to seek sanction for the excess from ... Mumbai … "
"We shall therefore greatly appreciate if you can please increase our temporary limits to £875,000. We shall endeavour to achieve this limit before the 90 days are up.
Being peak business period for us, any additional facilities you can grant us for the next two months will be of great help. We shall be back on original limits by mid-January. …"
"In cross-examination Mr Dansingani untruthfully said that this letter had been suggested to him by Mr Balakrishnan, to send on to Head Office, who told him what points to make. The letter demonstrates clearly, among other things, that Mr Dansingani and Mr Buxani knew full well about the 90 day rule and that it would expire, on that occasion, in the first week of November and that the facilities which they were looking for were short-term only ('mid-January'). The letter recognises the twin problems of currency fluctuations and customers delaying in payment ('delays in receipt of funds'), presumably because of the global recession which was setting in. Mr Dansingani and Mr Buxani were looking for additional support only into the beginning of the following year. It is also important to note that Mr Dansingani added, at the foot of the letter (which I have not quoted), that the directors' net worth was over £1,000,000 …"
As the judge went on to explain at [145], the House was informally valued at this time at about £1 million.
"Meanwhile , The [sic] company has requested for sanctioning of additional limit of £375,00 immediately in order to meet their orders due to incoming Christmas season as well as to take care of wide fluctuation in the exchange rates. The company has agreed to the second mortgage of their existing property (now under negative lien to us) as collateral to secure the additional temporary limit."
"148. Mr Iyer's evidence, which I accept, was that the note would not have referred to an agreement for the grant of a second charge 'unless such an offer had been made by the Defendants'. The Branch suggested that because of the urgency they might agree to an additional limit of £450,000 against a second charge, although they would tell Siglo that they were only prepared to extend the facility to £375,000, leaving themselves a cushion of £75,000. Mr Balakrishnan told me that he thought it prudent to get sanction for an excess of £450,000 even though Mr Dansingani had only asked for £375,00 because it would provide 'a bit of headroom'.
149. That the Branch believed that there had been agreement that a second charge would be granted over the House is reinforced by a separate report to the General Manager of the International Division in Mumbai of the same day, bearing reference 159/ID/LDN/SVS, in which it was said that a second charge had been agreed, adding 'The process of mortgage documentation have been already initiated and is under way through our solicitor Penningtons…'"
"I do not accept that evidence. It is contrary to all the contemporaneous documentation and conflicts with what was the obvious direction of travel. Crunch time had arrived. … I find that Mr Dansingani and Mr Buxani, knowing full well that they had little choice if they wished to continue to enjoy the support of the Bank, accepted the terms of Mr Balakrishnan's proposal and agreed to offer a second charge over the House so that the Branch could seek authorisation from Head Office for the increase in the limit of the facilities. That is the context in which the meeting with the Chairman of the Bank, considered in detail below, took place."
"153. For the reasons given below I reject the suggestion that the facility letter of 28 October 2008 was not created until later, even though the Defendants did not ultimately seek a finding as to the date of creation. Although the letter retained the date of 28 October 2008, and its final form was different to the original version, I find that it was not 'backdated' in any nefarious way. I draw no adverse inferences against the Bank on account of the letter retaining its original date despite subsequent revisions and this issue has not, as the Defendants would have me find, caused me to form the view that the Bank's case essentially lacked credibility.
154. In the course of interim submissions in the course of the trial the position taken by the Defendants on the facility letter was more nuanced than their initial arguments in that it was then suggested that while the letter may have been created around 28 October it was not in circulation at that point and was not the facility letter which the Bank had in mind when dealing with the Dansinganis during the period immediately afterwards, which was really the earlier facility letter of 20 October. However, it seems to me that the Defendants had already spent some considerable time and effort trying to show that the document had been backdated, whereas I find that it had not."
"It is also my clear recollection that a copy of the initial [28] October 2008 [facility letter] was sent to Siglo at the end of October. This was important, because Siglo's account had been in excess of the permitted facility under the existing arrangements since early August. By early November there would have been 90 days of exceeding, and the bank would have been required to record Siglo's accounts as a non-performing asset as I explained in my previous statement. By getting sanction for the formal ad hoc limit and recording that in the facility letter which was sent to Siglo we were able to prevent that because Siglo's accounts were at the time within the offered overall facility limits (including the ad hoc facility) of £875,000. It is for this reason that there was urgency to get sanction for the extended facility and send out a facility letter before early November, and this is why I can be certain that a copy of the Initial October Facility Letter was sent to Siglo. The London branch confirmed to International Division that the Initial October 2008 Facility Letter had been sent out in its memo of [28 October 2008]."
"After he was asked a considerable number of questions about the dates when the facility letter was prepared he said 'Which particular letter was sent to whom at that time, I cannot recollect.' That is, in my judgment, a fair comment at that distance bearing in mind the quantity of correspondence passing between the parties. It seems to me that he cannot know when the letter was sent out but the reasoning contained in the above quoted paragraph is compelling."
"On 28 October Mr Santhanam had also emailed Mr Dansingani pointing out that the accounts were by then in debit by £1,311,658 (ie £811,658 over the facility of £500,000) and he asked the company to bring the total facility back within £875,000 by 5 November 2008, which would be the expiry of 90 days from the date of the start of the recent breach of the facility limits on 5 August 2008. That email also suggests that there had been discussions between the Branch and the company in which Mr Dansingani had made a commitment to an arrangement by which the total facility would, for the time being at least, not exceed £875,000. The correspondence shows that Mr Dansingani knew full well that the new temporary limit was £875,000. As at 3 November the excess stood at £499,391 and Mr Dansingani wrote to the Branch on 4 November, one day before the expiry of the deadline, to say that the company was expecting to receive about £167,000 by the following day. By 6 November Siglo's overdraft stood at £880,415 and Mr Dansingani, who accepted in cross-examination that he knew that the account was reaching the point at which it would have exceeded the permitted limit by 90 days and would have to reduce the amount by the 90 day point, commented that they were therefore only £5,000 short of the new temporary facility limit of £875,000. In reality, as I mention above, the Branch had authority from head office to tolerate an overdraft which exceeded its limit by £450,000. On 10 November the company continued to exceed its limit, with the account standing at £889,755 in debit."
"… while setting right the documentation, we propose [to] take third party mortgage instead of negative lien on the property which shall be completed through M/s Penningtons solicitors."
"165. The Branch again reported up the line on [14 November 2008], saying: 'Keeping in mind the long standing relationship and the fact that these are extraordinary times with exchange rates being highly volatile, we had recommended limit of GBP 950,000 up to 31.03.09. We confirm having already requested M/s Penningtons Solicitors to draft the necessary documents of second charge on their property and this will be carried out shortly. We request that the recommended limits may kindly be sanctioned', signed by Mr Balakrishnan.
166. The arrangements for the second charge were being taken forward by Penningtons who, on 17 November 2008, [wrote] to Nationwide Building Society, the Defendants' first mortgagee, for consent to charge the House in respect of the liabilities of Siglo to the Bank.
167. On 20 November 2008 Mr Balakrishnan again asked for permission from Mumbai to agree a higher facility on the grounds that Siglo was a 'special case' because the additional ad hoc limit was only for a short period and 'the company has agreed to offer mortgage of property'. …."
I would add that this document also recorded that £112,000 was owed to Nationwide and secured by its first charge over the House and that Siglo had represented that the value of House might be around £1 million (i.e. the equity was around £888,000).
"169. … In cross-examination about this meeting it was put to Mr Balakrishnan that Mr Dansingani had not yet agreed to the grant of a second charge. In reply he said that there had been continuous discussions throughout November, adding 'As per this document, there is no commitment, but it does not negate the fact that there were discussions on this. It was an ongoing discussion. It was not firmed up.' He accepted that it was a fair summary to say that the commitment to grant a second mortgage was firmed up at the meeting with the chairman.
170. Mr Iyer, whose evidence I also accept, said, at paragraph 23 of his witness statement …:
'…The First Defendant was unwilling to undertake to convert its Yen liability to GBP as required by the Initial October 2008 Facility Letter [ie the letter dated 28 October]. He reiterated the fact that he and the Second Defendant were willing to give a second charge over the Property as security until the ad hoc facility was repaid.'
Standing back, it seems to me that the contemporaneous correspondence and records are a better guide to what happened than Mr Balakrishnan's recollection of the detail of the discussions in the witness box. I refer to a chain of emails below which support the contention that Mr Dansingani had in fact agreed in principle to the grant of a second charge."
"… when the company came up with ad hoc limit request of another £375,000 over and above the existing limit quoting current market fluctuation, we took the opportunity and started pressuring the Company simultaneously to offer the second mortgage [redacted]. The Company have agreed to execute the second mortgage documentation against the existing property. Our lawyer M/s Pennningtons have already initiated the process … and the mortgage will be created at the earliest."
"Mr Dansingani in turn forwarded this, without comment, on the same day to Mr Buxani and Mrs Dansingani and their son Mrinal. In doing so Mr Dansingani provided no explanation to his wife as to what Mr Balakrishnan's request related. The only explanation contained within the email chain is to be found in the first sentence of Penningtons' email to Mr Balakrishnan but it gives no further details …. It seems to me that the Branch would not have instructed Penningtons to seek consent from the first mortgagee unless there had been at least an agreement in principle that a second charge would be granted. Equally, given his forthright nature, if Mr Dansingani had not agreed in principle to the grant of a charge one would have expected him to have said so in fairly plain language both in an email to the Branch and in the email which he sent to his family. The Bank submits that it was clear by this stage that the Mortgage was being discussed within the Dansingani family. I am prepared to find that Mr Dansingani and Mr Buxani knew full well what this related to but there is insufficient material from which I can draw the inference that Mrs Dansingani had a proper understanding of what was going on or what the arrangements between the Bank and Siglo were. On 27 November Penningtons received a letter from Nationwide confirming their consent to a second charge in favour of the Bank. It is more likely than not that the Nationwide had been in contact with their customers before giving such consent."
"[Counsel for the Bank], in commencing his cross-examination of Mr Dansingani in relation to the Meeting put six propositions. First, that Mr Dansingani was at that point looking for short-term financial assistance. However, Mr Dansingani's refusal to accept that proposition is inconsistent with his correspondence to the Branch in October and November (set out above) in which he appeared to be asking for support for a short period. Secondly, as Mr Dansingani agreed, he believed that the imbalance between the main currencies of account would correct itself quickly. Thirdly, that he had already agreed in principle to grant a second charge over the House to secure the proposed facility of £875,000, a proposition which Mr Dansingani rejected. Fourthly, he also rejected the proposition that the Bank would not grant further facilities to Siglo without further security. His case was that Siglo would be granted further facilities without any additional security to support the continuing liability of the company to the Bank. At first he first said that the Branch had agreed to the new facilities without further security but when pressed he accepted that they had 'never' told him that he could have the further facilities he was asking for without any additional security. When pressed yet again he gave a third answer, namely that 'they did to some extent'. His fourth answer was 'they never asked me either way'. His evidence shows a constant change of position to meet what he saw as the potential harm in directly answering questions which had been asked by the Bank's counsel. The fifth proposition, which Mr Dansingani appeared to accept, was that ultimately the Bank's decision about facilities would be determined by Head Office, rather than the Branch. The sixth proposition, which he initially appeared to accept, was that the account had to be back within its agreed limit every ninety days in order to avoid it being treated as a non-performing asset, which would lead the Bank to take steps to recover the liability. Mr Dansingani asserted in cross-examination that he was only told that there was such a requirement after the Mortgage had been granted. That is plainly untrue and conflicts with the warnings earlier in the year in which the Bank had notified Mr Dansingani that the account needed to be back within its limit every 90 days to avoid it being treated as a non-performing asset some examples of which I have set out above. When I asked him whether he had been aware before the grant of the Mortgage that he needed to comply with the 90 day rule his (incredible and unhelpful) answer was 'Yes, my Lord, but not seriously aware.'"
"Mr Dansingani's case was that he asked for the assurances to be put in writing but Mr Balakrishnan said that Mr Joseph had given his word in the course of the discussion and that the Defendants 'had Mr Joseph's word as chairman of the entire bank [and] could and should rely on his word as binding the Bank…'. Mr Balakrishnan's evidence was that indeed Mr Dansingani had asked for confirmation in writing. One asks rhetorically why he would have done so but for the reasons which I give below it does not persuade me that Mr Dansingani told the truth about the Meeting."
"I find that before the Meeting with Mr Dansingani and Mr Buxani, Mr Joseph had been briefed by Mr Balakrishnan about Siglo's history and the problems caused by the currency risks to which both the Bank and Siglo were exposed because of the substantial Yen debit balance. He had not previously been provided with details of the account or Siglo's specific banking arrangements by Head Office in Mumbai or others. Mr Joseph denied that he gave the oral assurances relied on by the Defendants in these proceedings."
"In its Reply … the Bank had admitted that Mr Joseph understood that Siglo's problem had been caused by the exchange rate and would be corrected by the exchange rate but it is alleged that he explained that 'as far as the Bank was concerned the problem was of [Siglo's] own making because it had maintained an over-leveraged position in Yen at its own risk...' and that due to the volatility of the international financial markets it would be some time before the Yen weakened again. In his oral evidence Mr Joseph denied saying this, explaining that currency movements would not be predicted, particularly in the turbulent period in which the meeting took place, and that he would not have said what is alleged. I accept his evidence on that point: it was rational, honest and reliable and insofar as there is a conflict with the Bank's pleaded case I prefer his oral evidence."
"188. Mr Balakrishnan accepted in cross-examination by [counsel for the Appellants] that the purpose of the Meeting was 'to firm up [Mr Dansingani's] agreement to provide the mortgage' and that one of the reasons for having the chairman of the Bank present at the meeting was to 'maximise the chances of persuading Mr Dansingani to give a mortgage' but that does not lead me to find that Mr Balakrishnan's evidence on this important issue was either dishonest or inaccurate and I accept the contents of the paragraphs of his witness statement which I have set out above.
189. Mr Balakrishnan later denied 'absolutely' that he needed the chairman to 'persuade' Mr Dansingani to give the mortgage. I find that expression 'firm up' more accurately reflects the true position. Mr Balakrishnan's evidence, taken as a whole, was that there was an agreement or understanding in principle that Mr & Mrs Dansingani would grant a second mortgage (the understanding having been reached in the course of discussions over the preceding months as I have already found) but Mr Dansingani was playing for time and it needed to be brought home to him that if he wanted the facilities to continue, particularly the additional ad hoc facility, he had to provide the additional security.
190. As to the alleged assurances Mr Balakrishnan emphasised that 'there was no open-ended discussion' and 'no open-ended agreement;, in other words the facilities which were then on offer to Siglo were limited and conditional, although he had no recollection at the time when he came to give his oral evidence of any specific dates which may have been discussed for the end of the facilities which were then on offer. He did, however, recall that the Bank was being told that Siglo's problems were short-term and that there was no discussion and no commitment about long-term support. It was put to him that 'the Chairman said he would support Mr Dansingani to the hilt for the long-term if they gave a mortgage over their home' to which Mr Balakrishnan answered 'To the best of my knowledge, the Chairman made no such commitment, sir'. He was pressed on what he meant by 'to the best of my knowledge' and added 'I cannot remember. I cannot recollect'. He later précised the Meeting as follows:
'…this was a discussion to securitise the debt, and not only securitise but also to give him support for some time to sort out his accounts…till January 2009'.
Mr Balakrishnan was a cautious and careful witness and I find that while he had a good recollection of the Meeting in general and of the outcome he struggled when asked to recall every step in the discussion and every word which was used. In context it is plain that Mr Balakrishnan did not remember Mr Joseph making the promises which Mr Dansingani relies on but he did have a recollection, which I accept, that the outcome of the discussion was that the Bank would support Siglo, for a limited period of time, subject to conditions, including in particular that future lending would only be against the security of a second charge over the House. His evidence did not leave room for doubt about whether Mr Joseph had made promises of the sort which the Defendants allege. Mr Balakrishnan was clear about that. He was also challenged on the basis that he accepted that Mr Dansingani had asked that the outcome of the conversation with the chairman be put in writing and therefore the chairman must have made promises of the sort which Mr Dansingani alleged. Mr Balakrishnan rejected the suggestion and said that he would have said something like 'Mr Dansingani, you met the chairman of the bank, a facility letter will follow…' adding 'That is that is all…' I accept that."
"M/s Siglo 21 Ltd have a sanctioned limit of GBP 500,000/- They have been dealing with us since 1993.
Mr K W Dansingani explained the working of Siglo 21 Ltd in brief and described the transaction flow in his company. He explained his requirement of multicurrency account and how the latest exchange volatility has affected his business operations reducing his overall limit in terms of availability in GBP.
His sales were brisk and he had certain deadlines to meet for the ensuing Christmas Sales. He had a limit for GBP 500,000. However he required an equal amount as his available limit had shrunk in size due to the exchange volatility and also in order to meet the growing orders.
Our CEO [Mr Balakrishnan] explained the satisfactory operation of the account. Our CMD [Mr Joseph] noted the longstanding relationship, but stressed on the need for additional collaterals to be provided by the borrower to cover the additional requirement.
Mr Dansingani agreed to examine the request for providing second charge on his property. Mr Dansingani thanked CMD for his valuable time and support for examining his request."
"That minute supports the evidence of the Bank's witnesses and is consistent with the correspondence before and after the Meeting. I find that it is an accurate record so far as it goes. The heart of the proposed arrangement referred to in the minute was the short term nature of the need for additional facilities, there being no suggestion of an open-ended facility."
"It is surprising, if the note is accurate, that there is no mention in it of the assurance allegedly given at the end of the Meeting that Siglo could ignore the strict wording of future facility letters and other documents insofar as they were inconsistent with what it is said had been promised by the chairman at the meeting. The assertion that the Bank had said that subsequent inconsistent documents could be ignored is an obvious lie which Mr Dansingani needed to tell to counter the apparent inconsistency with the assurances which he alleges were given during the meeting and the terms of the subsequent facility letters which plainly showed that the Mortgage was to be given in return for strictly limited facilities which were subject to a number of conditions. Mr Joseph's position in respect of the allegation that he had said that the formal provisions of future facility letters could be ignored was 'I did not say any such words and [nor] would I ever have done so.' Mr Iyer did not accept that either of his superiors told Mr Dansingani in the course of the meeting that Siglo could ignore the provisions of any facility letters which were sent to him on the basis that they were produced as some type of formality only."
"195. At trial Mr Dansingani insisted that such an assurance had been given but his oral evidence on the issue, in response to questions asked by [counsel for the Bank], was wholly unreliable and I reject it: [quoting a passage from the cross-examination].
196. It is also to be noted that in the course of his cross-examination about the Meeting Mr Dansingani could not say what period of time was meant by 'long term'; his plain assumption was that it would be open-ended. Similarly the extent or nature of the support said to have been offered by the chairman at the Meeting could not properly be explained by Mr Dansingani."
"As with the statement of his brother-in-law there is no express mention in this note of the Bank officers having assured Siglo that future documentation would be prepared for the sake of form only and without any intention that it should govern the relationship between banker and customer. The notes appear to have been prepared together, albeit using slightly different wording, but I find that neither is accurate."
"198. I find that the alleged representations were not made. In my judgment Mr Dansingani knew by December 2008 that the point had been reached at which the Bank would not continue to grant facilities to Siglo without a second charge, he had agreed in principle to the grant of a charge but was prevaricating about executing it, and at the Meeting with the chairman the position of the Bank was effectively underlined: he had to grant the charge or the facilities which Siglo needed would not be forthcoming. I also find that at the Meeting it had been agreed that the Bank would support Siglo, on conditions. However, none of those findings persuade me that the officers of the Bank, and the chairman in particular, gave the open-ended assurances that Mr Dansingani alleges.
199. In summary, I reject the Defendant's case about the Meeting with the Chairman and the open-ended assurances which were allegedly given to Siglo for the following reasons:
i) the context of the Meeting, apparent from the correspondence and meetings which had preceded it, was that Siglo wanted further facilities, which it needed if it was to survive, but Mr Dansingani believed that its fortune would change with a strengthening of the Yen which he (wrongly) believed would happen, and which he (wrongly) believed would happen within a couple of months. Mr Dansingani was aware that the Bank would require a second charge in return for extending the facilities for the period which he required, he knew that he had little choice and he had agreed in principle to provide a second charge;
ii) Mr Dansingani was not an honest witness and was prepared to lie to protect and promote the interests of Siglo and his family and his evidence on this, as on many other issues, was not credible;
iii) Mr Dansingani is not a reliable witness and even when telling the truth I am not prepared to accept what he told me without very careful scrutiny in the context of the other material relating to the same issue;
iv) Mr Buxani was prepared to say what was necessary to support his brother-in-law and his family. He was not a reliable witness and his evidence as to the meeting is not to be relied on. Nor does his evidence fit with the other evidence which I do accept;
v) On the other hand Mr Joseph, Mr Balakrishnan and Mr Iyer are honest and reliable and I accept the evidence which they gave in their witness statements and from the witness box about this meeting, even if their evidence on the detail of the meeting was less strong than their recollection of the outcome;
vi) I reject any assertion that the officers of the Bank acted dishonestly or that any expressions of general support were not genuinely made;
vii) The evidence of Mr Joseph, Mr Balakrishnan and Mr Iyer is not only internally consistent but the evidence of each of them is consistent with the recollection and evidence of the others;
viii) It is highly improbable that any banker, let alone the chairman of a bank, would have given open-ended promises of the sort alleged by Mr Dansingani, with an indefinite period of what appears to be unlimited lending. Such an arrangement makes no commercial sense, particularly at a time when the world financial markets were in a state of turmoil and Siglo was struggling to keep within the facilities which it had been granted by the Bank previously;
ix) The internal correspondence within the Bank, between the Branch and the International Division and on the Branch's own files are consistent with the Bank's case that no such assurances were given;
x) The correspondence from the Bank to Siglo also referred to a limited period of support and a structured reduction of liabilities against the security of a second charge. The alleged assurances are inconsistent with such an arrangement;
xi) The process that the Bank plainly had intended to adopt was that the terms of the future arrangements between it and Siglo were to be hammered out in the formal documentation and the discussions at the meeting were just a prelude to that, with no intention that a binding agreement should be made at that stage;
xii) The acts of the parties after the Meeting, in doing just that, namely negotiating and agreeing the terms of a facility letter and the Mortgage, are inconsistent with the assurances having been given;
xiii) It is highly improbable (and in my judgment simply not credible) that the senior officers of the Bank who were present at the meeting would have suggested or agreed that any future correspondence (including facility letters) which appeared to be inconsistent with the assurances was for the sake of form only or that the strict terms of such documents could be ignored by Siglo and the Dansinganis. Not only is it not the rational act of a commercially minded banker but it would necessarily involve a conspiracy between the Bank officials dishonestly to mislead the Head Office of the Bank and other of their colleagues. It is also to be noted that this allegation was not made, despite considerable correspondence between the parties, until it appeared in a pleading filed by the Defendants (it was not, as I have said, in the undated statements made by Mr Dansingani and Mr Buxani probably in around 2010). I reject the assertion. The telling of that lie is necessary because otherwise the Defendants cannot explain why the documents which were negotiated and signed after the meeting are inconsistent with what was said at the meeting itself. The telling of this lie alone is a compelling reason for concluding that the evidence of Mr Dansingani and Mr Buxani about the meeting is untrue."
We were informed by counsel for the Bank that the pleading referred to by the judge in sub-paragraph (xiii) first appeared in draft on 20 August 2012.
"[The third version] removed the provision which Mr Dansingani objected to [in the earlier versions] because, as Mr Balakrishnan commented in his witness statement, the Bank accepted that it was unrealistic to expect Siglo to have converted all its Yen into sterling within 4 months. …. [The evidence] does not demonstrate that the October facility letter was created in December 2008. The reduction of the Yen liability was a continuing concern of the Bank, as Mr Dansingani was well aware, and featured in future facility letters which I refer to below."
"206. Once the Yen reduction provision had been removed Mr & Mrs Dansingani signed the revised 2008 Facility Letter in December 2008, despite it still being dated 28 October 2008, and returned it to the Branch together with a board minute signed by Mr Buxani which purported to record the fact that there had been a meeting of the directors of Siglo on 30 October 2008 (two days after the date of the original draft of the facility letter), at the House at which Mr & Mrs Dansingani and Mr Buxani had been present. Mr Buxani had drafted the board resolution and emailed it to Mr Dansingani to be printed on 16 December. The minute recorded the following:
'The letter was read out and it was resolved that it be accepted. Facility letter to be signed as accepted and returned to Syndicate Bank.'
207. The date of the board meeting is unlikely to be correct and I find that no such meeting took place in any event. I also note that Mr Dansingani's actions in respect of this facility letter are inherently inconsistent with his case that the Bank assured him that all future documents (including facility letters) could safely be ignored because they had only been created as a formality to satisfy Mumbai. If that were the case, why did Mr Dansingani take the trouble to comment on the draft facility letter and ask the Branch to amend it? That action demonstrates the obvious lie in his assertion that the letter had been drafted by the Branch for the sake of form alone. He knew that it was intended to govern the relationship between the Defendants and the Bank."
"The Head Office of the Bank then ratified the grant of the facilities (see the internal memoranda from Mumbai dated 18 December 2008) but laid down quite strict conditions, including that the ad hoc facility of £450,000 on top of the base facility of £500,000 was to be repaid by 31 March 2009. There was further reference in the Branch's records to Penningtons being asked to sort out the documentation issues with the security which the Bank held for the liabilities of Siglo, but unfortunately the memorandum does not identify what those issues were. It also contains a note of caution, under the heading 'Justification for the Ratification':
'The adhoc limit is permitted to facilitate the party to have a cooling time to come with a definite plan to reduce the exposure. However, it appears unlikely that cash flows from business alone will help the party to extinguish the adhoc limit. It is clear that the party is relying on possible weakening of the JPY vis a vis GBP and further strengthening of USD and EURO against GBP to reduce the ad hoc liability. Hence, Branch to have discussions with the party and if necessary restructure the present liabilities granting them sufficient time to reduce the liabilities in stages in tune with their future cash flows.'"
"On 30 December Mr Dansingani had transferred £100,000 from Siglo's account with HSBC to the company's account with the Bank. Mr Dansingani said in cross-examination that this was done to regularise the account. It is an implicit recognition of the fact that the Bank had not offered or agreed to provide open-ended and unlimited support"
"The additional temporary limit of GBP 375,000 was permitted to facilitate the Company to have a cooling time to come with a definite plan to reduce the exposure. Therefore, it is highly essential that the Company indicate the cashflows over the next 3-6 months and also a definite plan to cap the exposure and scale down the Yen liability in stages."
"223. … Siglo was very substantially over its new limit. In his written evidence Mr Dansingani said that he was very surprised to receive this email. In his oral evidence he said that he did not remember seeing it. The letter is inconvenient to Mr Dansingani because it implicitly contradicts the assertion that the chairman of the Bank gave the assurances which the Defendants now rely on. In my judgment this letter is entirely consistent with and supports the Bank's case as to the Meeting of 3 December 2008.
224. Mr Dansingani told me that the conditions set out in numbered paragraph 3 of the letter had not been discussed with the chairman of the Bank at the meeting in December 2008. The Defendants suggest that this requirement was a breach of contract and shows that the assurances given at the December Meeting were false. Mr Buxani likewise asserted that the Bank started acting very differently after the December meeting and contrary to what the chairman had assured them would be the Bank's position. I reject the evidence of both Mr Dansingani and Mr Buxani on the stance of the Bank at this point and the lines of defence which relied on such evid[e]nce. The Bank's position was consistent. The correspondence was, in my judgment, consistent with the Bank's case as to what took place at the meeting. The only factual basis on which the assertion that the Bank changed its stance could be correct is if the chairman had given various open-ended assurances and Siglo had been told that subsequent correspondence was for form only, neither of which allegations are true. I find that the converse is the case and that the Bank, from the date of the meeting, acted as it had said that it would, on the basis that Mr Dansingani had agreed to give a second charge over the House."
"It was not until his letter to Mr Balakrishnan dated Monday 16 February 2009, after the disagreement about the payment to a company called Technocell AG referred to below, that Mr Dansingani alleged that the chairman had given assurances in the form that they have now been relied on in defence of these Claims and some time after the facility letter and Mortgage had been signed. It would appear that the first appearance of the allegations in writing is to be found in an email which Mr Dansinganisent to Mr Buxani on the afternoon of Sunday 15 February in an email which was plainly intended as a draft for Mr Buxani to approve or comment on. The letter which was sent to the Branch dated 16 February 2009 was in a fuller form and reads as follows: [quotation].
It is to be noted that there is no reference to the alleged additional assurance that the Defendants could ignore the terms of documents which were in conflict with the assurances given by the chairman. Mr Balakrishnan said that he did not respond to this letter because, so far as he was concerned, the directors of Siglo knew the true position (ie the basis on which the Bank would continue to afford facilities) and the letter was just an angry response to the Bank's refusal to make the Technocell payment which I will now turn to and he did not see it as some sort of challenge to the basis on which the Bank had agreed to support Siglo."
"237. A meeting took place on Monday 2 March 2009, principally to discuss the Yen liability, as a result of which on 4 March Siglo made proposals for reducing the sums due on that account in the short term but only eliminating it over a longer period and only when the Yen weakened in the foreign exchange market. Nor was Siglo able to offer a detailed proposal to reduce their overall debt to the Bank. In an email of that date Mr Dansingani wrote to Mr Balakrishnan:
'These are extraordinary times of turmoil. It is precisely at this time that we need your co-operation, being our sole bankers. We have worked together for nearly 17 years. During the visit of your Chairman, he agreed to support us all out…'.
To that email was attached a schedule which was headed 'Anticipated Reduction in Yen Debits' and proposed a series of escalating monthly payments to reduce the liability by $1,650,000 over two years. On the following day (5 March 2009) Mr Dansingani sent a revised plan to pay off $1,600,000 over two years with a view to clearing all the Yen borrowing within that period, adding the words, 'God willing'.
238. There was no discussion at that meeting and no mention in that email of the pleaded assurances which Mr Joseph was said to have given to Mr Dansingani and Mr Buxani, nor of the suggestion that subsequent documents from the Bank were for the sake of form only. However, in his witness statement at paragraph 74 Mr Dansingani alleged that at the meeting on 2 March Mr Balakrishnan asked for such a schedule 'with reassurance that it was for "showing to India" only'. That is quite plainly untrue. It is a lie which Mr Dansingani has to make to explain his apparent agreement to the terms by which the Yen liability was to be reduced in the short or medium as opposed to long term. Nor was the suggestion put to the Bank's witnesses in cross-examination.
239. The proposed conversion and reduction of dollars to Yen due to take place on 1 April 2009 did not happen. Mr Dansingani asserted in evidence that he never had any intention of converting dollars to Yen to reduce Siglo's liability to the Bank (because he alleged that Mr Joseph had agreed that the market would correct the currency imbalance in due course) and that the schedules which he had sent to the Branch setting out a proposal to do just that (referred to above) had been dictated to him by Mr Balakrishnan so that the Branch could reassure Head Office. There is no mention of this allegation in Mr Dansingani's witness statement and it was not put to Mr Balakrishnan in cross-examination. The allegation, if true, would amount to dishonest collusion between Mr Balakrishnan and Mr Dansingani deliberately to mislead Head Office. It was put to Mr Dansingani by [counsel for the Bank] at the end of his cross-examination on this issue that the former would say anything to save his business, to which he answered 'Of course. Why should I not save my business? It is my business.' I accept that Mr Dansingani had no intention at the time of sending the proposed repayment schedules to the Branch of reducing Siglo's liability by selling off dollars but I reject as utterly untrue the suggestion that Mr Balakrishnan colluded with Mr Dansingani in the way suggested. The exploration of this issue in cross-examination reaffirms my very clear view that Mr Dansingani was not an honest or truthful witness and was prepared to make things up, 'on the hoof', to cover a gap in his case when it suited him. This material demonstrates that he was prepared to lie to the Bank in 2009 and to the court at trial."
"If the Bank had really given the assurances asserted by the Defendants no such negotiations would have taken place, and there would have been no need for them."
"Mr Dansinganis [sic] was wrong to blame the Bank. The problems which Siglo faced as a result of the adverse currency exchange rates was, as I have said above, one entirely of its own making and part of a deliberate strategy which backfired. It is also to be noted that there was no mention in that letter of any agreement said to have been made by the Bank to provide open-ended support whether as a result of the meeting with the chairman of the Bank or otherwise. The tone of and request made by the letter are inconsistent with there being any such arrangement."
"… the negotiations between the Bank and its customers were genuine (as opposed to being for the sake of form only), that at the meeting of the previous December the parties had not reached the agreement or understanding alleged by the Defendants and that the Bank was prepared to continue to support its customer on terms which it negotiated with it from time to time."
"276. From 30 June 2010 Siglo continuously exceeded its limit, reaching an excess of more than £400,000 by the middle of August 2010. The Branch asked for this to be cleared. By a letter dated 20 September 2010 Mr Dansingani again suggested that the Yen would soon weaken. He failed to make any concrete proposals but ended the letter by saying "Your bank has been very understanding so far as we trust you will continue supporting us during the difficult few weeks ahead". There was no reference to the assurances allegedly given by the chairman of the Bank.
277. Around 29 September 2010 Mr Dansingani appears to have drawn (and paid into Siglo's account with the Bank) approximately £120,000 from accounts with Nationwide Building Society and Barclays Bank Plc – I was taken to various bankers' drafts inclosing but heard no evidence about them– $400,000 from Banks in New York and £90,000 from HSBC Plc in London. These payments were necessary to avoid breaching the 90 day limit which would have occurred on that or the following day. It demonstrates, again, that Mr Dansingani had access to assets which had not been disclosed, that he was well aware of the 90 day deadline and that he knew that there had been no unconditional assurance of support 'up to the hilt'."
"Siglo and Mr Dansingani ask me to find that the Bank acted unlawfully and unconscionably in its dealings with them. Having reviewed all the evidence and reached my findings of fact I do not accept either of those propositions. Notwithstanding the regular breaches of the facilities and the regular excesses on the account the Bank continued, until a form of impasse had been reached and its patience exhausted, to support its customer when it may be thought that the point had been reached when other commercial lenders would have long since ceased to do so"
Delay
"A judge's tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the loser's confidence in the correctness of the decision when it is eventually delivered. Litigation causes quite enough stress, as it is, for people to have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety, and may well increase it. Conduct like this weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive of the rule of law. Delays on this scale cannot and will not be tolerated. A situation like this must never occur again."
"His Honour Judge (HHJ) Dight has been subject to an investigation into his conduct following complaints of a serious delay in producing a judgment. The Lord Chancellor and Lord Chief Justice found that the delay was unacceptable and concluded that HHJ Dight's behaviour amounted to misconduct having fallen below the standards expected of a member of the Judiciary. They have issued HHJ Dight with formal advice."
Did the judge fail properly to evaluate the evidence?
"Our system of civil justice has developed a tradition of delivering judgments that describe the evidence and explain the findings in much greater detail than is to be found in the judgments of most civil law jurisdictions. This requires that a judgment demonstrates that the essential issues that have been raised by the parties have been addressed by the court and how they have been resolved. In a case (such as this) which largely turns on oral evidence and where the credibility of the evidence of a main witness is challenged on a number of grounds, it is necessary for the court to address at least the principal grounds. A failure to do so is likely to undermine the fairness of the trial. The party who has raised the grounds of challenge can have no confidence that the court has considered them at all; and he will have no idea why, despite his grounds of challenge, the evidence has been accepted. That is unfair and is not an acceptable way of deciding cases."
The "disputed suite" of documents dated 28 October 2008
The Bank's motivations
i) the documentary evidence shows close communication between London and Mumbai throughout the relevant period, and little difference in their attitude to Siglo;
ii) it is part of the Appellants' own case that Mr Joseph came to the Meeting from Mumbai (see paragraph 120 below);
iii) Mumbai expressly ratified the action of the Branch in sanctioning on 28 October 2018 (as evidenced by the report numbered 123-A/08) an ad hoc additional limit of £450,000 until 30 March 2019 in the memoranda dated 18 December 2018 referred to by the judge at [213]; and
iv) the judge rejected the Defendants' argument that paragraph 3 was inconsistent with what the Bank had previously said.
The judge's treatment of the witnesses
"Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the independent facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth."
Mrs Dansingani's case
Conclusion
Lewis LJ:
Lewison LJ:
