13 I note that Mr Edgar does not, in para 43, indicate which documents he has read as opposed to which documents are merely referred to in affidavits or in pleadings in the Permanent Trustee proceeding. The statement, like the others I have quoted, is conclusory. None of the statements referred to enables the Court to assess why it is said that these documents "appear to suggest" or "suggest" what is alleged.
14 A draft statement of claim and two schedules thereto are exhibited to the affidavits of Mr Edgar. Revised Schedule 1 particularises the alleged unauthorised and fraudulent conduct involved in the foreign exchange transactions. Revised Schedule 2 particularises how the knowledge of the Banks is "derived". The latter schedule refers to a number of matters said to be or show "transactions inconsistent with commodity trading" but there is no expert or any evidence to verify this characterisation. Numerous allegedly relevant documents sent or received by employees of the Banks are identified as relevant but there is no evidence as to their contents or significance.
15 A number of submissions were advanced by counsel for the applicants, for the Banks and for the Bustan Companies, respectively, in support of or in opposition to the grant of the leave sought by the applicants.[2] However in my view it is only necessary to refer to two of the matters that s.237 of the Act requires to be made out by an applicant for leave. Those matters are, first, that there is a serious question to be tried[3] and, second, that the applicant is acting in good faith.[4]
16 I am not satisfied on the evidence that there is a serious question to be tried. The applicants have put forward a case to a great extent based on unsubstantiated allegations. The evidence provided, such as it is, is hearsay, double-hearsay or worse. The issues crucial to the existence of a cause of action against the Banks, based upon the second limb of Barnes v Addy,[5] are not elucidated by specific evidence but are simply the subject of allegation, assertion and conclusion. The Court has not been provided with satisfactory evidence that might enable it to analyse whether there is a serious question to be tried. There is hearsay evidence as to investigations including interviews and inspections of books some years ago. The results of those investigations are apparently to be relied upon in the Permanent Trustee proceeding but the Court is not provided with anything sufficiently specific or coherent to enable it to assess whether the criterion of "serious question to be tried" has been satisfied in the present application.
17 Nor am I satisfied that the applicants are acting in good faith. The applicants have not sworn any affidavits themselves as to their involvement in the Bustan Companies at the relevant times and their state of knowledge or ignorance of the relevant facts. They have not stated their belief in the existence of a cause of action and neither has Mr Edgar, their solicitor. No deponent has been produced with direct knowledge of, or belief in, the existence of a relevant cause of action. There is no explanation for the substantial delay between the investigations and this application. There is ground for suspicion that if leave were granted the proposed proceeding might be sought to be utilised as a springboard for seeking an adjournment of the Permanent Trustee proceeding which is already fixed for trial.
18 For the foregoing reasons this application is dismissed and the applicants are ordered to pay the costs of the Bustan Companies and of the proposed defendants.