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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 >> Crinion & Anor v IG Markets Ltd  EWCA Civ 587 (23 May 2013)
Cite as:  EWCA Civ 587
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Case No: A3/2012/0947
ON APPEAL FROM the Birmingham Mercantile Court
HHJ Simon Brown QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE UNDERHILL
SIR STEPHEN SEDLEY
| (1) Tommy Crinion
(2) Declan Crinion
|- and -
|IG Markets Ltd
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Second Appellant appeared in person
Bob Moxon Browne QC and Stewart Chirnside (instructed by Wragge & Co) for the Respondent
Hearing date : 18 April 2013
Crown Copyright ©
Lord Justice Underhill :
(1) It was Tommy Crinion's case that Declan had no authority to set up and operate the account on his behalf. It was (eventually) common ground that his signature on a power of attorney purporting to grant such authority which had been submitted to the Respondent had been forged by Declan. The Respondent contended that Tommy had nevertheless either given express authority to Declan to submit such a document or in any event given him express or implied authority to open and operate the account; alternatively that he had subsequently ratified his doing so.
(2) Declan Crinion's case was that one of his account was operated on behalf of a company and that he had no personal liability in respect of either account.
(3) Both the Appellants contended that the Respondent was in breach of various obligations under its own terms of business and/or the applicable industry rules as a result of which any debts were unenforceable. This element also gave rise to a counterclaim in both cases.
The issues raised questions of both fact and law. The questions of fact depended to a large extent on the credibility of the Appellants.
(1) The Judge inserts, at the start of the "Background Facts" section, a paragraph which more or less acknowledges that he proposes to derive the narrative from Mr Chirnside's submissions, saying that the account is largely uncontroversial – though it is not perhaps made clear that he intended to do so virtually word-for-word.
(2) He inserts, at paragraphs 51-53, short summaries of the separate defences of the two Appellants.
(3) He observes at paragraph 54 that those defences require "a judicial evaluation of the witness evidence against the background facts", and he proceeds to insert an entirely new section, comprising paragraphs 55-58, headed "Evidence Evaluation Method". This sets out at some length the guidance about judicial fact-finding to be found in an article written by Lord Bingham, in the speech of Lord Goff in Grace Shipping v Sharp & Co.  1 Ll. Rep. 207 and in the judgment of Arden LJ in Wetton v Ahmed  EWCA Civ 610. This section represents what the Judge himself called "a standard template" kept by him on his computer for use, presumably, in all cases where he has to evaluate disputed oral evidence: he explained this to counsel at the hand-down hearing because in the version of the judgment as pre-circulated he had forgotten "to press the paste" to include these paragraphs. Although on the face of it they represent a substantial addition to the judgment of the Judge's own drafting they consist almost entirely of quotations from the article and judgments referred to and are not specific to the present case.
(4) In the section relating to the witness evidence the Judge makes virtually no changes to Mr Chirnside's drafting as regards the credibility and reliability of the Respondent's witnesses. In relation to Declan Crinion, he adds a tribute to his charm and general demeanour as a litigant in person and witness but otherwise simply reproduces Mr Chirnside's submissions as to why his evidence cannot be accepted (subject to small changes of the kinds identified at paragraphs 7 and 9 above). There is a short conclusory paragraph of his own drafting rejecting Mr Crinion's evidence by reference to the criteria previously identified in his "evidence evaluation" section. In relation to Tommy Crinion, the Judge makes no changes to Mr Chirnside's text setting out the reasons why his evidence should be rejected. However, towards the end he inserts a paragraph recording Mr Stuart's submission that "Tommy is a simple ageing pawn of his son" and that Mr Chirnside's criticisms of his evidence were unfair. He rejects that submission in a short passage of his own drafting before reverting to Mr Chirnside's words. The Judge also adds a short conclusory paragraph stating simply that he found Tommy to be an untruthful witness and that he disbelieved his evidence.
(5) In the section dealing seriatim with the issues the Judge adopts Mr Chirnside's submissions wholesale as regards most of the issues; but in relation to some he does insert a summary of the submissions made by Mr Stuart and some short passages of his own drafting by way of rebuttal. I will have to deal with these more fully below.
30. Issue 10 was formulated as follows:
"Did the Claimant correctly classify the Defendants as intermediate customers or take reasonable steps to do so under COB rule 4.1.4 and/or COBS ?"
The reference is to the Conduct of Business ("COB") Rules issued by the Financial Services Authority ("the FSA") and to the Conduct of Business Sourcebook ("COBS") which succeeded it. COB rule 4.1.4 required the Respondent before conducting designated investment business to "take reasonable steps to establish" whether the client was a "private customer", an "intermediate customer" or a "market counterparty": broadly speaking, those descriptions connote different levels of sophistication as an investor, and there was published guidance as to the matters to be taken into account, including the client's "knowledge and understanding" of the markets and the risks involved and how long they had been transacting business of the kind in question. In fact, accounts of the kind opened in the present case could only be operated by an intermediate customer, and both Appellants were so classified. Before the Judge the argument proceeded wholly by reference to COB rule 4.1.4, rather than COBS, as I understand it because the transitional provisions in COBS meant that it was the position under the COB Rules that determined classification.
Sir Stephen Sedley :
Lord Justice Longmore :