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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> FCFM Group Ltd v Hargreaves Lansdown Asset Management Ltd [2018] EWHC 3075 (QB) (18 October 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/3075.html Cite as: [2018] EWHC 3075 (QB) |
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QUEEN'S BENCH DIVISION
218 Strand London WC2A 2LL |
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B e f o r e :
sitting as a Deputy Judge of the High Court
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FCFM GROUP LTD | Claimant | |
- and - | ||
HARGREAVES LANSDOWN ASSET MANAGEMENT LTD | ||
INTERACTIVE INVESTOR SERVICES LIMITED | ||
EE LIMITED | Defendants |
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8th Floor, 165 Fleet Street, London, EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7404 1424
Web: www.epiqglobal.com/en-gb/ Email: civil@epiqglobal.co.uk
(Official Shorthand Writers to the Court)
No appearance by the Defendants
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Crown Copyright ©
"…the contract should be set aside on the grounds that it was induced by false misrepresentations that were made fraudulently or negligently under section 2(1) of the Misrepresentation Act 1967"
The representations relied upon are allegedly implied representations by Mr and Mrs Y (quoting paragraph 39 of the Defence and Counterclaim) that:
"(1) They had no inside information likely to have a significant effect on the price of the [RRE] Shares;
(2) They had no inside information that [FCFM] and/or any other regular participant in the market would consider relevant to whether to sell the shares at that time or whether to sell the Shares at that time, or whether to sell the Shares at the price of £1.25 per share;
(3) They honestly believed and/or had reasonable grounds to believe that the price of £1.25 per share was a proper or market price for the Shares based on information legally available to market participants; [and]
(4) They were seeking to purchase Shares in good faith."
"…acted pursuant to a conspiracy to purchase the Shares using unlawful means intentionally to inflict harm upon [FCFM] which has caused [FCFM] to suffer loss and damage. The unlawful means constituted the use of inside information relating to the takeover of [another company] which involved a breach of confidence owed to [RRE] and/or the offence [of] insider trading under section 52 of the Criminal Justice Act 1993."
"Alternatively, if it was lawful to use such inside information, then the Claimants' common design amounted to a conspiracy to injure with the predominant purpose of damaging the Defendant which has caused loss and damage."
"There are substantial procedural hurdles to overcome in order to bring a private prosecution. In order to do so FCFM should seek to satisfy the Full Code Test for prosecutors and to establish that FCFM has made all reasonable enquiries before commencing the prosecution.
However, the powers available to a private prosecutor in order to do so are very limited. The only power currently available to FCFM in order to obtain the relevant information is to apply for a Norwich Pharmacal Order."
"Prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge. They must consider what the defence case may be, and how it is likely to affect the prospects of conviction. A case which does not pass the evidential stage must not proceed, no matter how serious or sensitive it may be." (paragraph 4.4 of the Code).
At the public interest stage:
"In every case where there is sufficient evidence to justify a prosecution, prosecutors must go on to consider whether a prosecution is required in the public interest" (paragraph 4.7 of the Code).
"Any correspondence (including but not limited to emails, letters, file notes of calls and attendances, text messages if any and recordings of calls or meetings) between Hargreaves Lansdown and [Mr Y] and/or [Mrs Y] (or their representatives) between 29 September 2017 and 30 October 2017."
"i) a wrong must have been carried out, or arguably carried out, by an ultimate wrongdoer;
ii) there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and
iii) the person against whom the order is sought must: (a) be mixed up in so as to have facilitated the wrongdoing; and (b) be able or likely to be able to provide the information necessary to enable the ultimate wrongdoer to be sued."
"The principle of the Norwich Pharmacal case applies whether or not the victim intends to pursue action in the courts against a wrongdoer provided that the existence of a cause of action is established and the victim cannot otherwise obtain justice."
"The Norwich Pharmacal jurisdiction is an exceptional one and one which is only exercised by the courts when they are satisfied that it is necessary that it should be exercised."
The necessity is "to enable action to be brought against the ultimate wrongdoer" (Lightman J in Mitsui at para 21, quoted above), and the requirement is that "the victim cannot otherwise obtain justice" (Ashworth para 46, citing the remarks of Templeman LJ in British Steel v Granada to which I have already referred).
"Everyone has the right to respect for his private and family life, his home and his correspondence."
Article 8(2) says:
"There shall be no interference by a public authority in the exercise of this right except such as is in accordance with the law and is necessary in a democratic society and the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others."
Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400
Email: civil@epiqglobal.co.uk