The Serious Fraud Office today won permission to withdraw its earlier admission of trespass in respect of the dawn raids carried out on the premises of Vincent and Robert Tchenguiz in 2011.
Eder J ruled that the SFO is entitled to withdraw the admission made in writing on 27 November 2012 in the ongoing case, in which the Tchenguiz brothers and related interests are seeking more than £300m in damages.
He said that the earlier decision of the Divisional Court in the case did not preclude the SFO from disputing liability for trespass and added: “The defendant is permitted to withdraw the admission of liability.”
He said that the SFO now contends that it is not liable for any private law damages for trespass to land, on the basis that the warrants obtained afforded lawful justification for the alleged trespass and on the basis that the trespass claims are barred by the Constables Protection Act 1750.
Ruling that the issue of trespass was not “res judicata” – a matter already judged upon – he said that the central issue was whether the Divisional Court’s decision had in effect determined the SFO’s liability for private law damages for trespass.
He said: “In my judgment, the answer is ‘No.’”
And he said that he had no doubt that “overall justice demands that the SFO be permitted to withdraw the admission”.
In reaching that conclusion he said that he had borne in mind that the amounts at stake are “potentially significant” and that he must proceed on the basis that the defences put forward are arguable.
Dominic Dowley QC, representing the SFO, had told the judge earlier this month that, in its response to the heads of claim in the case, the SFO had made “quite an unequivocable admission” of liability for trespass to land in consequence of the order of the Administrative Court last year quashing search warrants issued in respect of the premises, as well as a consequential liability for damages for any loss of use of the land sustained as a result.
He said that the SFO had, at the same time, denied liability for all other claimed consequential losses.
He told Eder J that he now applied under Rule 14 of the Civil Procedure Rules to withdraw that admission in respect of the actions brought by Tchenguiz companies Rawlinson and Hunter, Vincos Limited and Euro Investments Overseas, which had each advanced claims for trespass in proceedings at the time the admission was made.
However, he said that he did not need permission to withdraw the admission in respect of the personal claim brought by Vincent Tchenguiz, Robert Tchenguiz’s claim and a further claim by R20 Ltd, because there were no proceedings for trespass or any other private law cause of action on foot when the admission was made.
Joe Smouha QC, representing the Robert Tchenguiz interests, had argued that liability for trespass was established by the declaration made by the Divisional Court’s order of 20 September 2012, and that the matter was now res judicata.
In addition to the trespass claims, in the ongoing action the SFO faces allegations including breaches of the Human Rights Act 1998, false imprisonment, misfeasance in public office and malicious prosecution.
The full trial is scheduled to begin on 28 April 2014 and last 12 weeks.
