Thomas Elias (instructed by Andrew Head, Bryan Shacklady and David Young of Forsters LLP and led by John Wardell KC of Wilberforce Chambers) acted on behalf of the successful Defendants in this 3 week, multi-million pound Commercial Court fraud claim brought by the insolvency administrator of Wirecard.

The Claimants had sought c. £12m in damages for deceit, alleging that a deliberate oral misrepresentation at a meeting in 2016 led to Wirecard Bank extending credit to Monarch Airlines (which subsequently became insolvent).  Mrs Justice Cockerill DBE dismissed the case in its entirety.  In a careful and detailed judgment she considered the conflicting accounts of two “equally patently honest and truthful witnesses”, the inherent probabilities and the surrounding circumstances, and, notwithstanding a near-contemporaneous note of the meeting taken by one of the Claimants’ witnesses, concluded that the alleged misrepresentations had not been made. The Judge agreed with the Defendants that German law applied to the claim and considered and applied the German law of causation, concluding that even if the misrepresentations had been made they had not been relied upon.

Although the case turned primarily on the facts, the Judge’s approach to and analysis of the oral and documentary evidence has relevance well beyond the facts of this case for the way in which it moves beyond the “classic Gestmin” approach and considers matters raised by Popplewell LJ in his 2023 COMBAR lecture, “Judging Truth from Memory”.

To read the full judgment, please see below.