Banco de Sabadell S.A. vs Cerberus Global NPL Associates, L.L.C & ors.

This case concerned a contract dispute between Banco de Sabadell S.A. and Cerberus Global NPL Associates, L.L.C & ors., focusing on the claimant's application to re-amend its case and the implications for trial management.

TLDR:

• Banco de Sabadell sought to re-amend its case against Cerberus.
• The re-amendment proposed introducing new factual content and aspects of Spanish law.
• The court found the re-amendment would imperil the trial date and dismissed the application.

The claimant, Banco de Sabadell S.A., initiated proceedings against Cerberus Global NPL Associates, L.L.C & ors. The dispute arose from differing interpretations of a contract between the parties. Banco de Sabadell sought to introduce new factual content and specific aspects of Spanish law into the case through a re-amendment application.

Mr Justice Andrew Baker presided over the hearing on 17 May 2024. The court examined the proposed re-amendments, which suggested that both parties privately had the same understanding of the contract's workings, despite this not being communicated or evident to the counterparty before litigation. The claimant argued that this common intention, referred to in the Spanish Civil Code as 'la intención evidente,' should be considered in the case.

The court noted that the claimant's assertion of a common intention would necessitate a larger disclosure exercise and potentially a wider range of factual investigations. This would require revisiting the scope of disclosure, the identity of appropriate factual witnesses, and the scope of factual evidence already given. Such changes would threaten the trial date.

The court agreed with the defendants' submissions that there was insufficient evidence to conclude that the new proposition under Spanish law was seriously arguable. The court viewed the re-amendment application as an attempt to reintroduce a case that had not been initially pleaded and would require significant case management changes.

Mr Justice Baker found it surprising that the claimant's solicitor believed the re-amendments merely clarified existing pleadings. The court concluded that the re-amendments were an attempt to advance a new case, which had not been pleaded previously and would disrupt the trial schedule.

The court dismissed the re-amendment application, noting that it would imperil the trial date unless reformulated in a manner that would render them unnecessary. The claimant was effectively advancing the same case already pleaded, focusing on the evident intentions of the parties from the material already presented.

The court also addressed a related application from the defendants concerning factual witness evidence. The court found that the application was not well-founded and dismissed it. The court allowed adjustments to the pre-trial timetable but emphasized that the witness evidence application was unnecessary.

In conclusion, the court dismissed both the re-amendment application and the witness evidence application, allowing only the timetabling adjustments. The court also suggested improving the language of the expert instructions to better reflect the relevant Spanish Civil Code term.

Legal representatives: James Collins KC and Akash Sonecha (instructed by Pcb Byrne Llp LLP) for the Claimant, Andrew Scott KC and Andrew Trotter (instructed by Kirkland & Ellis International LLP) for the Defendants.

Judicial Panel: Mr Justice Andrew Baker

Case Citation Reference: [2024] EWHC 1204 (Comm)