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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> LBI HF (In Winding Up Proceedings) v Stanford & Anor [2016] EWCA Civ 147 (21 January 2016) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2016/147.html Cite as: [2016] EWCA Civ 147

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT - CHANCERY DIVISION
(MR JUSTICE ASPLIN)

		Royal Courts of Justice Strand London, WC2A 2LL
		21 January 2016

LORD JUSTICE RICHARDS:

1. This is a renewed oral application for permission to appeal against an order of Asplin J dated 22 January 2015, whereby after a 12-day trial she dismissed the counterclaim made by Mr Stanford, the defendant, against LBI HF, which I will call "LBI", and a Part 20 claim against Landsbanki Luxembourg SA, which I will call "LLux".
2. Judgment was entered against Mr Stanford in favour of LBI for a sum of a little over £5.7 million in respect of a loan agreement made in April 2007, and a further sum of a little over £17.4 million in respect of a loan agreement made in November 2007. Orders were also made to enforce or with a view to enforcing charges over properties securing the sums found to be due. Both the judge and Floyd LJ have refused permission to appeal.
3. Asplin J explained the nature of Mr Stanford's defence, counterclaims and cross-claims in paragraphs 7 to 9 of her judgment which it is convenient to set out:

"7. In summary, Mr Stanford contends that the Loans are not due and payable because he reached oral agreements with LLux prior to the entry into the Loan Agreements that: i) they would be repayable only from his share of the profits arising from a joint venture to develop properties in India ('the Joint Venture'); and ii) that interest would be 'rolled up' and would also be repayable only from his share of the profits arising from the Joint Venture. In fact, the Joint Venture failed and there were no profits nor will there be.

8. Alternatively, insofar as the Loans are found to be due and payable, there is a counterclaim against LLux that is said to operate by way of set-off to extinguish the sums owed in respect of the Loans (the 'Counterclaim'). Mr Stanford seeks the payment of damages in respect of the excess. The Counterclaim has two elements. The first is a claim for damages based on an alleged breach by LLux of an agreement, partly written and partly oral, into which LLux allegedly entered to finance the Joint Venture (under the TFI Agreement, as defined in paragraph 56 below). Mr Stanford says that this claim for damages would have provided him with a defence when LLux was the Claimant and that he cannot be in any worse position as a result of the subsequent assignment of the Loans and the Mortgage to LBI.

9. The second part of the Counterclaim is a claim against LLux for damages for an alleged misrepresentation in connection with a bond ('the Bond'). The alleged misrepresentation concerns the ability of LBI to discharge the Bond pledged by Terra Firma India SàRL ('TFI'), the special purpose vehicle through which Mr Stanford and others participated in the Joint Venture, to UBS as security for a credit facility advanced to TFI. Once again Mr Stanford says that this claim for damages would have provided him with a defence when LLux was the Claimant and that he cannot be in any worse position as a result of the subsequent assignment of the Loans and the Mortgage to LBI. As I have already mentioned, by his Part 20 Claim Mr Stanford seeks an order that LLux pay him the damages assessed in respect of the Counterclaim, which exceed the amounts required to discharge LBI's claim for the sums outstanding in respect of the Loans. It is pleaded that Mr Stanford's damages could exceed £50 million."

4. In paragraphs 10 and 11 of her judgment, Asplin J briefly summarised the position of LBI and LLux. They denied Mr Stanford's allegations of fact. They denied that there was the oral agreement contended for and summarised in paragraph 7, or that the TFI agreement was made as alleged or that any representation was made to Mr Stanford. Further, they relied on a number of legal defences based on EU legislation dealing with winding-up of credit institutions and on provisions of the law of Luxembourg and English law.
5. The defence based on the alleged oral agreement summarised in paragraph 7 of the judge's judgment was maintained until the closing speech of Mr McDonnell QC who appeared at the trial, as he does today, on behalf of Mr Stanford. The judge records in paragraph 126 of her judgment what happened in this respect:

"126. [...] In fact, this aspect of the matter did not appear at all in the written closing on behalf of Mr Stanford and in his oral closing in the light of Mr Stanford's response in cross examination, Mr McDonnell made clear that he was not pursuing the Defence that the interest was not repayable because there had been no profits from the Joint Venture, nor was it being said that the capital sums themselves had not fallen due."

Accordingly, the judge did not have to deal with the defence summarised in paragraph 7.

6. As regards the claim against LBI and against LLux, the judge rejected them, both as a matter of fact and also by reference to the various legal defences raised by LBI and LLux. The legal defences would arise for consideration on an appeal only if Mr Stanford were successful in setting aside the judge's findings of fact. Only if Mr Stanford has a real prospect of success on an appeal against those findings of fact, will it therefore be appropriate to consider whether to grant permission to appeal. It would then be necessary to consider whether he has a real prospect of success on all or any of the legal defences.
7. In her judgment, the judge considers at some length the allegations made in respect of the TFI agreement and the claim made against LLux that it was in breach of the TFI agreement. Certainly, as far as any claim against LLux was concerned, the position was reached in the course of Mr McDonnell's closing speech that no claim for breach of the TFI agreement lay against LLux. He is recorded in the transcript of day 12, 24 October 2014, as saying this:

"The Luxembourg Bank was not in breach of any obligations in not lending in the way it had originally been intended to lend to phase 2 and 3 of the joint ventures, because in lieu of that, there was the new agreement that they would lend the money to TFI to buy the bond from their parent, which, as I've suggested several times, was a circular transaction which wouldn't actually cost them anything in terms of real money."

8. Accordingly, as far as Mr Stanford's claim for damages for breach of contract is concerned, certainly as regards LLux, that was abandoned in the course of Mr McDonnell's closing speech. However, that is not the end of consideration of ground 1 of the grounds of appeal. Whether or not the TFI agreement, as alleged, was made and, in particular, whether it was made with the joint venture company, TFI, or with other persons has an importance in relation to the misrepresentation claim.
9. Ground 1 is expressed in these terms:

"Central to Mr Stanford's case was the joint venture agreement between the members of the K Group (including LBI) and LLux (referred to in the pleadings as "the TFI Agreement" - TFI being the special purpose vehicle for the joint venture). The learned judge wrongly found that no such agreement had been concluded (paragraphs 141 - 154 of the judgment) and therefore wrongly rejected Mr Stanford's claim for breach of contract."

10. It was common ground that the existence, terms and other characteristics of the TFI agreement were governed by Luxembourg law. The judge heard expert evidence on Luxembourg law and there is no challenge to her findings which she summarised at paragraphs 127 to 128 of her judgment. I will read paragraph 127:

"127. First, there was no dispute that under Luxembourg law a binding contract arises when the parties reach an agreement on their obligations and consider their agreement to be legally binding. There must be an actual agreement between the parties and the main obligations must be determined or determinable. There will be no contract if the main terms are too vague. Furthermore, it must be the common will of the parties that the agreement is legally binding. Not surprisingly, the parties to the contract must also be identified."

11. The TFI agreement alleged by Mr Stanford to have been made is summarised by the judge at paragraph 56 of her judgment where she refers to:

"[...] the agreement partly oral and partly in writing that LLux would fund 50% of the K Group's participation in each of Phases 1, 2 and 3 of the Joint Venture in consideration for being granted an option to acquire 20% of TFI and/or the promise by the K Group to provide the remaining 50% of the required funding [...] ('the TFI Agreement')."

12. I should make clear, as indeed does the judge at a later stage, that Mr Stanford's case was that the option to acquire 20 per cent of TFI was granted not to LLux but to LBI.
13. In paragraph 68 of her judgment there is discussion as to the date on which it is alleged that the TFI agreement was made. She records that:

"[...] in his oral closing Mr McDonnell on Mr Stanford's behalf reiterated that Mr Stanford's case was as pleaded, namely that the agreement with Embassy and the alleged TFI Agreement were reached on 29 March 2007."

14. I should mention at this point that in his oral submissions today, Mr McDonnell submitted that it made little difference to his client's case whether the agreement was said to have been made on 29 March 2007 or on 5 April 2007. Indeed, he submitted to me that the TFI agreement became legally binding at the same time as TFI entered into a written loan agreement with LLux for financing the first phase of the joint venture, that agreement having been made on 5 April 2007. I should make clear that it is not open to Mr McDonnell on behalf of Mr Stanford to seek at this stage to change the date on which it is alleged that the TFI agreement was made. The case was presented to the judge below very clearly on the basis that if the TFI agreement were made, it was made as a binding contract on 29 March 2007.
15. The pleaded case of the TFI agreement made clear that the alleged obligation of LLux to finance 50 per cent of the funding would be by means of loans to TFI and this was clearly the basis on which the case was put to the judge and the basis on which Mr McDonnell has been clear in his skeleton argument on this application for permission to appeal. On a number of grounds, the judge found that there was no TFI agreement as alleged by Mr Stanford. The first ground of appeal, as I have mentioned, is that the judge wrongly found that no such agreement had been concluded. Mr Stanford's case is not that the TFI agreement provided for the terms on which LLux would provide the finance for the three proposed phases of the joint venture, but that it was a binding agreement in principle to finance all three phases. Mr McDonnell submits that all of the oral evidence from Mr Stanford, Mr Dhir and Mr Stanford's solicitor, Mr Dawson, was consistent and only consistent with an agreement between LX and the K Group, they being the joint venturer, for LLux to provide loan finance for the joint venture. He further submits that the documentary evidence is also consistent with the existence of such an agreement. He complains that the judge almost entirely ignored what is described as the cogent and detailed evidence of Mr Stanford, Mr Dhir and Mr Dawson about the events of crucial meetings held in March 2007.
16. It is at this point convenient to read paragraph 18 of the judgment in which the judge gave her general assessment of the evidence of Mr Stanford. She says there:

"18. Unfortunately, I found Mr Stanford to be an unsatisfactory witness. He did not always answer the question, posed others in response and on occasion was difficult, obstructive and argumentative. On a number of occasions he also made a set speech in preference to answering the question put. Furthermore, it appeared that he did not have a good recollection of all of the events in question and was often vague. He also refused to accept the content and veracity of documents including his bank statements without any real grounds for doing so and despite the fact that in closing Mr McDonnell on his behalf, made clear that the content of the bank statements until 23 September 2009 is not challenged. On numerous occasions he also gave evidence in cross examination which was contrary to the content of the documents including emails of which he himself was the author or which were addressed to him and had not been queried at the time. He also made mention of matters not in his witness statement, including for example, being present at a meeting by telephone but then immediately retracted his evidence saying that he did not even remember being on the telephone. As a result, in my judgment, Mr Stanford's evidence should be treated with a large degree of caution especially where it is not supported by contemporaneous documentary evidence."

17. As far as Mr Dhir is concerned, the judge said in paragraph 19 that:

"(19) [...] Although Mr Dhir sought to assist the court, it seemed to me that he was eager to further what he saw as Mr Stanford's cause. Furthermore, at times, his evidence in cross examination was confused, in particular, in relation to a number of meetings the facts of which are central to Mr Stanford's counterclaim. He also accepted that numerous matters in his witness statement which related to a trip to Bangalore were wrong. In view of these matters I also view Mr Dhir's evidence with some caution."

18. As regards Mr Dawson, the judge said in paragraph 20,

"20. [...] Mr Dawson acknowledged that he could not remember things due to the passage of time. It also became apparent that there were no contemporaneous notes available which might have assisted his recollection. Overall, I found Mr Dawson to be a defensive witness who was concerned to support Mr Dhir and whose recollection was not always clear."

19. I will later come to a criticism that is made by Mr McDonnell in relation to the evidence given by Mr Stanford. I should also record that he takes issue with the judge's assessment of the evidence of Mr Dhir and Mr Dawson.
20. The judge approached the issues of fact in relation to the TFI agreement in stages. First, she considered on the assumption that an agreement had been made whether it was made with the members of the K Group or with TFI. This was a critical issue because if any such agreement had been made only with TFI, it followed that Mr Stanford would not be able to claim damages for breach of the agreement, not being a party to it. At paragraph 142 she said:

"142. [...] In my judgment, on the balance of probabilities, and applying the requirements of Luxembourg law in relation to the formation of a contract, to which I have already referred, it is more likely than not that even if the substance of the TFI Agreement was agreed, any agreement for the provision of finance by LLux in respect of the Joint Ventures was with TFI itself and not with the members who were said to constitute the K Group."

21. In reaching this conclusion, she stated in paragraph 142 that she took account of facts and matters set out in seven sub-paragraphs. In paragraph 143 she added that:

"143. The documentary evidence is all consistent with a willingness to assist in funding a company to participate in the Joint Venture, the shareholders of which and their relative interests were not finalised until the Shareholders' Agreement was signed."

22. Mr McDonnell criticises this reasoning on the grounds that none of the matters identified in paragraph 142 were consistent with or even referable to the existence or otherwise of an agreement between LLux and the K Group. It is said that none of them refers to or even takes account of events about which Mr Dawson and Mr Dhir gave evidence. In considering this challenge to the judge's finding and to her other findings in respect of the TFI agreement, it is important to remember that the critical part of the TFI agreement was not in writing. It must therefore depend on a consideration of the evidence of witnesses and the surrounding circumstances and relevant documents. The judge's finding that if there was an agreement, as alleged, it was with TFI is the result of a substantial trial in which all relevant matters were examined in detail. The judge does not say that the matters identified in paragraph 142 are the sole grounds on which she relies for reaching her conclusion. They however do not seem to me, despite Mr McDonnell's submissions, to be matters which the judge could only have regarded as irrelevant. Of particular significant, in my judgment, is the judge's assessment in paragraph 143 that the documentary evidence is all consistent with the willingness to assist in funding a company to participate in the joint venture.
23. It is, in this context, important to note that the critical meeting, at which it is said that the TFI agreement was made, took place over a number of days at the Dorchester Hotel in London. It is said, as I have earlier mentioned, that in the course of those meetings on 29 March 2007, the alleged TFI agreement was made. It is also part of Mr Stanford's case, as Mr McDonnell explained in his oral submissions today, that Mr Dawson, the solicitor, was left to produce the legal documents required to give effect to everything agreed and that as a result, what Mr McDonnell described as a "fat bible" of some 20 documents was produced by Mr Dawson on or about the 5 April 2007 and, where necessary, those documents were executed by the relevant parties.
24. What is particularly striking about this, is that the alleged TFI agreement, which it is said contained a contractual commitment on the part of LLux to provide financing not only for phase 1 of the joint venture, but also for phases 2 and 3, was not reduced to any written form at all. In circumstances where the provision of finance by LLux for the purposes of phase 1 was the subject of a detailed loan agreement, it comes as no surprise to me that the judge should have regarded the absence of any documentary evidence of the alleged TFI agreement, and still less any formal written agreement, as in these circumstances of great relevance.
25. Having regard to all these matters and the submissions made to me by Mr McDonnell, I am not persuaded that Mr Stanford would have any real prospect of success on an appeal in persuading the Court of Appeal to set aside the judge's finding that if there were an agreement, it was made with TFI.
26. The next issue that the judge went on to consider, on the assumption that the TFI agreement was made with the members of the K Group rather than with TFI, was whether their identities were sufficiently certain. She reiterated the common ground between the experts on Luxembourg law, that a contract can only come into existence if there are clearly identified parties. She set out in paragraph 144 the matters which led her to the conclusion that there was uncertainty as to who precisely would proceed and whether they would do so individually or through a corporate vehicle and if so, which one. She concluded at paragraph 145 that, as a result the requirement of clearly identified parties for the purposes of reaching a binding contract under Luxembourg law was not satisfied prior to the 29 March 2007, nor on that date.
27. In his skeleton argument at paragraph 29, Mr McDonnell challenges this finding by reference to a number of matters. In my judgment, none of them, however, really begins to grapple with the judge's finding that at the date when the agreement is said to have been made, 29 March 2007, there was uncertainty as to the identity of the members of the K Group.
28. The next stage taken by the judge was to consider the extent of any financing obligation undertaken by LLux, whether with the members of the K Group or with TFI in relation to phases 2 and 3 of the joint venture. Her conclusion at paragraph 146 was that on the balance of probabilities, it was more likely than not that there was no concluded agreement in relation to those phases in accordance with Luxembourg Law and that accordingly, the TFI agreement (as pleaded) was not concluded. LLux did provide finance by way of loan to phase 1 and it was essential to Mr Stanford's pleaded claims for breach of contract to establish that LLux was contractually bound to provide loan finance for phases 2 and 3. At paragraphs 147 to 153 of the judgment, the judge sets out the reasons for her conclusion. All the grounds relied upon by the judge appear to me to provide substantial support for her conclusion. Finally, the judge stated at paragraph 153 that:

"153. Further, there is no evidence of any kind to suggest that prior to 29 March 2007 or at the 29 March meeting, there was any discussion or agreement as to the duration of any loan, the applicable interest rates and the repayment terms."

29. Although this forms part of her reasoning for her conclusion that there was no concluded agreement as regards the funding of phases 2 and 3, it stands also as a separate ground that the essential terms of the TFI agreement were not agreed so as to be legally binding in order to satisfy the requirements of Luxembourg law, as the judge states in paragraph 154. As a matter of English law, it is clear that an agreement to lend without stipulating any of the terms of lending would be too vague to constitute an enforceable contract. In truth, it would be no more than an agreement to agree. In the judge's statement of the common ground as to the relevant provisions of Luxembourg law at paragraph 127, she said that there will be no contract if the main terms are too vague.
30. In my judgment, Mr Stanford has no real prospect of persuading the Court of Appeal that notwithstanding the absence of any agreed terms that would apply to the loan finance, there was, nonetheless, a binding contract.
31. For all these reasons, Mr Stanford does not, in my judgment, have any real prospect of success in challenging the findings of Asplin J that there was no TFI agreement as alleged.
32. Turning to the second part of the claim by Mr Stanford against LLux, this is based on an alleged misrepresentation in connection with a bond issued by LBI to enable phase 2 of the joint venture to be financed.
33. The bond was used for security for borrowings by TFI for phase 2 but following the Icelandic banking crisis, LBI defaulted on the bond. Mr Stanford alleges that LLux, acting by one of its officers, represented that LBI would be good for the money (to put it colloquially). This gives rise to a number of legal issues as to whether such a representation, if made, was actionable. Before getting to those issues, Mr Stanford must establish that the representation, if such it was, was made to him and was intended to be relied upon by him. The judge dealt with the misrepresentation claim in paragraphs 173 to 193 of her judgment. She set out the basic case in relation to the representation in paragraphs 173 to 175. She referred in paragraphs 176 to 177 to section 2.1 of the Misrepresentation Act, 1967, under which a claim was made. She summarises the submissions of Mr McDonnell in paragraphs 178 to 180 and refers in paragraph 181 to the submissions on the facts of counsel for LBI. At paragraphs 182 to 184, she considers the legal defence raised in opposition to Mr Stanford's claim that as a matter of English law, the representation, being an oral representation as to the credit of another person, was not actionable under section 2.1 of the Misrepresentation Act, having regard to section 6 of the Statute of Frauds Amendment Act 1828.
34. Having decided that issue against Mr Stanford, the judge continued at paragraph 185:

"185. Furthermore, I would also have found, were it necessary, that the representation made to Mr Dhir was one of fact, in the sense that it was intended to relate to the creditworthiness of LBI, and in fact, was made to TFI and not to Mr Stanford at all. I would also have found that there is no evidence that it was intended that Mr Stanford personally should rely upon it. Mr Dhir was the CEO of TFI and confirmed in cross examination that the reference to 'we' in his email of 30 April 2008, in which he related the representation to Mr Stanford and explained it, had been to TFI."

35. Ground 3 of the grounds of appeal is as follows:

"The learned judge held wrongly that Mr Stanford had not been entitled to rely on the bond representation because it was not made to him (judgment paragraph 185). She should have regarded it as obvious that it was made to Mr Dhir on behalf of all the investors in the K Group (other than LBI itself)."

36. The context of the representation was that LLux was in difficulties in lending the funds required at phase 2 to TFI and, in place of a loan, suggested that it could lend funds to TFI to enable it to subscribe for a bond to be issued by LBI which TFI could then use to secure borrowing from a third party bank. It is important to remember that the judge had already found as a fact that any agreement for funding the joint venture was made by LLux with TFI alone and not with the members of the K Group. I have earlier said that I do not consider that Mr Stanford has any real prospect of successfully appealing that finding. The context is therefore an agreement or arrangement between LLux and TFI whereby LLux will provide finance to TFI for the purpose of the joint venture and, specifically, a proposal that a bond will be issued to TFI in place of any loan to TFI, to enable TFI to raise the necessary funds from a third party bank.
37. It appears to me to follow, almost as night follows day, that any representation as to the credit worthiness of LBI in these circumstances was being given to TFI. It would be highly implausible to suppose that any such representation was being given to or was intended to be relied on by Mr Stanford personally as a member of the K Group.
38. Mr McDonnell referred me to paragraph 7-031 of Chitty on Contracts 32^nd Ed, which is headed, "The representee or person intended to act on the representation":

"In order to be entitled to relief in respect of misrepresentation, the person seeking relief must be able to demonstrate that he is a representee; for, subject to the transmission by operation of law of claims on death, bankruptcy and assignment, the person or persons who in law come within the category of representees are alone entitled to a remedy. To put the matter another way, the claimant must show that it was intended that he should act on the representation, rather than it being aimed solely at someone else. There may be said to be three types of representees: first, persons to whom the representation is directly made and their principals; secondly, persons to whom the representor intended or expected the representation to be passed on; and thirdly, members of a class at which the representation was directed."

39. Mr McDonnell accepted that as far as the first category is concerned, the representation was made to Mr Dhir and that, in that context, his principal was TFI of which he was the CEO. Mr McDonnell submitted that Mr Stanford came within the second or possibly the third class of representee. He submits that on the evidence, and in the circumstances, it is at least sufficiently arguable for the grant of permission to appeal that the persons to whom the representor, that is to say LLux acting by one of its officers, intended or expected the representation to be passed on included Mr Stanford. It may well be that there would be an expectation that the representation would be passed on to Mr Stanford, since he was a shareholder in TFI. The issue is not whether the representation would be passed on, but whether it was passed on so as to be relied on by the representee.
40. For the reasons which I have indicated, it seems to me that the learned judge was fully entitled to come to the conclusion which she does, that the representation for legal purposes was made only to TFI. I can see no prospect that Mr Stanford would be able to persuade the Court of Appeal that the judge's finding of fact on this matter was wrong.
41. In the light of my conclusions on grounds 1 and 3 of the grounds of appeal addressed to the findings of fact made by the judge, it is unnecessary to consider grounds 2, 4, 5, 6, 7, 8 and 9. Those grounds all raise issues of either law or fact which are dependent on setting aside the findings of fact which are the subject of grounds 1 and 3.
42. I should, however, mention ground 10 which reads as follows:

"When counsel for Mr Stanford began his closing submissions as to the honesty and credibility of Mr Stanford's evidence about oral agreements with the managing director of LLux and his own account manager (which counsel for LBI had submitted was a complete fabrication) he was stopped by the learned judge with the conventional indication, 'I don't think you need trouble yourself with that, Mr McDonnell'. Accordingly, her adverse findings as to his credibility (paragraph 18 of the judgment) were unfair and unfairly affected her judgment on all the issues which turned in whole or in part on Mr Stanford's evidence."

43. What occurred in this respect appears from the transcript of the closing speeches. When Mr McDonnell delivered his written closing to counsel for the other parties, it contained no reference at all to the agreement summarised in paragraph 7 of the judgment which had, of course, formed a significant part of Mr Stanford's defence. Mr McDonnell made clear at the start of his closing speech that Mr Stanford no longer relied on that agreement.
44. That, in turn, led Mr Alexander, leading counsel for LBI, in his closing speech to say that:

"[...] on the facts we submit this case is a complete fabrication and, indeed, we submit that it's actually completely dishonest for Mr Stanford to have been putting forward that case for the last three years, and it's dishonest for Mr Stanford to have signed statements of truth in relation to that case. It is a false case and he must know and always have known that it is and was an untrue case."

Just a little further on, Mr Alexander said:

"The second thing which follows is that the running of this dishonest case by Mr Stanford has ramifications for the rest of what he says. If someone is prepared to put forward a case which is demonstrably untrue about one thing, it means that, at a minimum, one is going to approach everything else that Mr Stanford says with considerable scepticism."

45. Those submissions made by Mr Alexander, prompted by the abandonment of the defence based on the agreement summarised in paragraph 7 of the judgment were, in addition to the submissions made by Mr Alexander in his closing written submissions, that for a number of reasons, Mr Stanford's evidence needed to be approached with care. The passage to which reference is made in ground 10 of the grounds of appeal occurs at pages 45 to 46 of the transcript of day 11 where Mr McDonnell refers to what he describes as "the objectionable passage of my learned friend's evidence [by which I think he means 'submissions'] yesterday". That is a reference back to what I have read. Asplin J says, "Yes. I think you have touched on that and you have suggested that Mr Alexander got over-excited". Mr McDonnell agrees. Mr McDonnell then proceeds as follows:

"Mr Stanford's evidence about the rolled-up interest agreement is not something which justifies -- first of all, it was true in our submission, and secondly even if it wasn't -- if it wasn't, then it would justify his comments, but there was really no reason to suppose it wasn't true, particularly when they hadn't called their former employees and objected to us doing so. My learned friend didn't carry on in this vein, but he didn't stop at page 25. We got at page 26, line 6, 'the running of this dishonest case' and this sort of thing."

At which point Asplin J said:

"I don't think you need to trouble yourself with that, Mr McDonnell. Perhaps we could get on to the set-off points."

46. As Mr McDonnell very fairly has said in his submissions, the judge does not anywhere in her judgment say or suggest that Mr Stanford was giving dishonest evidence or running a dishonest case. She does not accept or even deal with the oral submission made by Mr Alexander which I have quoted. What she does do in the paragraph I have read out is make a number of criticisms about the evidence given by Mr Stanford. Those criticisms had, to a large extent, featured in the written closing submissions of Mr Alexander.
47. The fact that Mr McDonnell was stopped from making further submissions to rebut a suggestion that his client had been running a deliberately dishonest case does not, in my judgment, result, and could not reasonably be supposed to result, in a complete clean bill of health as far as the evidence of Mr Stanford is concerned. The judge was, in my judgment, fully entitled to do what judges always do in cases involving conflicts of evidence, that is to say, state her assessment of the relevant witnesses. I do not consider that there is any criticism to be made of what the judge said in her judgment about the evidence of Mr Stanford by reference to the exchange to which reference is made in ground 10.
48. It therefore follows that in common with the judge below and with Floyd J, I refuse permission to appeal.

Order: Application refused.