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||Neutral Citation Number:  EWCA Civ 824
||Case No: A2/2012/3281
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Bristol District Registry
HIS HONOUR JUDGE VOSPER QC
||Royal Courts of Justice
Strand, London, WC2A 2LL
||16th July 2013
B e f o r e :
THE MASTER OF THE ROLLS
LADY JUSTICE ARDEN
LORD JUSTICE McCOMBE
|| HEATHER MARY PADDEN
||- and -
||BEVAN ASHFORD (A Firm)
(Transcript of the Handed Down Judgment of
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Ms Karen Shuman (instructed by Ashfords Llp) for the Defendants
Mr Richard Owen-Thomas (instructed by Samuels Solicitors) for the Claimant
HTML VERSION OF JUDGMENT
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Lord Justice McCombe:
- This is an appeal from the order of His Honour Judge Vosper QC, sitting as a Deputy Judge of the High Court (Queen's Bench Division) made on 22 November 2012 whereby the defendant firm, Bevan Ashford, were ordered to pay to the claimant, Mrs. Heather Padden, £67,037 damages and interest of £6,368.52. The appeal is brought by the defendants with permission granted by Lloyd LJ by order of 1 February 2013. As will appear below, this is not the first occasion on which this case has come before this court on appeal.
- The Judge's damages award was made in respect of a claim by Mrs. Padden against Bevan Ashford, a firm of solicitors, in respect of professional negligence. The events with which the action was concerned took place over the course of a few weeks in March and April 2003. The relevant background facts, summarised principally from the judge's careful judgment, were as follows.
- Mrs. Padden and her husband, Mr. Nicholas Padden, were married in 1977. Three children were born in 1985, 1988 and 1991 respectively. For most of their married life they lived in the village of Broadclyst, near Exeter in Devon. She is a history graduate and had worked as a teacher until the birth of her children. She returned to part-time work as they grew up. Mr. Padden was a financial advisor with his own business in Exeter which, in about 1998, was acquired by a company called Secure Trust Banking Group PLC, the parent company of Arbuthnot Pensions and Investments Limited ("Arbuthnot"). Mr. Padden became regional manager in southwest England for Arbuthnot and remained in their employment until 2002 when he went back into business on his own account.
- In 1989 Mr. and Mrs. Padden had purchased a long leasehold interest in a property at Broadclyst known as Willow Cottage in School Lane.
- It turned out that in the period between 1999 and 2003, spanning his period of employment with Arbuthnot and his return to self-employment, Mr. Padden had misappropriated substantial amounts of his clients' money. The largest loser was a Mrs. Sophie Partridge, who had entrusted some £1.5 million to Mr. Padden for investment. He stole £800,000 of that money. In total, he stole about £2 million from his/Arbuthnot's clients.
- In 2003, Mrs Partridge contacted Arbuthnot expressing concern about her money which she understood had been invested by Mr Padden in certain bonds on her behalf. She was advised by Arbuthnot to seek her own legal advice and Arbuthnot began proceedings against Mr. Padden, obtaining a freezing order in respect of his assets, from Mitting J, on Friday, 21 March 2003. The assets frozen included a bank account at the Co-operative Bank, a joint account held with Mrs. Padden, which had previously been hers alone from her student days.
- On the morning of the following day, Saturday, 22 March 2003 Mrs. Padden intended to go shopping in Exeter, but was told by her husband that she would be unable to use her credit card on the Co-Operative Bank account because that account had been frozen. This was the first that Mrs. Padden had heard of any problems. Mr. Padden told her untruthfully that the difficulty had arisen because of a dispute that he had with Arbuthnot over a company car.
- Mr. Padden consulted a solicitor called Mr. Tony Lawson of a firm called "DKLL", based at Ewell in Surrey. Mr Lawson made contact with solicitors acting for Mrs Partridge, Everys in Exeter. It appears that Mr Lawson was able to secure agreement with that firm that, provided Mr. Padden arranged for payment to Mrs. Partridge of £860,000 and legal costs, she would not herself seek to procure the instigation of criminal proceedings against Mr. Padden.
- On 25 March 2003, Mr. Lawson travelled to Broadclyst to meet Mrs. Padden. His visit was not expected by Mrs. Padden. Mr. Padden was also present for most of the time. Mr. Lawson told Mrs. Padden about the making of a freezing order. She said that she did not read it. He told her that the dispute had turned criminal in nature and that her husband was in deep trouble, as he had been using client money for his own purposes, and that he had to repay the client concerned, a lady called Mrs Partridge. Mrs Padden was told that the only way in which a criminal prosecution could be avoided was for Willow Cottage to be sold and the proceeds paid to Mrs. Partridge. If this did not happen, it was said, Mr. Padden would go to prison. Mr. Lawson told Mrs. Padden that agreement had been reached with Mrs. Partridge to be repaid hundreds of thousands of pounds. It was also proposed that shares in Mrs. Padden's name (of which she had been previously unaware) should be sold and an endowment policy or policies could be surrendered. The possibility of the commutation of part of Mr Padden's pension fund was also discussed.
- At that meeting Mrs. Padden agreed to do all that was necessary to prevent Mr. Padden going to prison, for the sake of the children. She was told that she would have to see a solicitor but that she should ignore any advice that she might be given by the solicitor not to sign the documents giving effect to the proposed transactions.
- The judge found that Mrs. Padden believed at this stage that, if Mrs. Partridge was paid, her husband would escape criminal proceedings. It was not put to her that there was only a possibility that payment would prevent criminal action. She said that she did not realise either that it was Arbuthnot that had sought and obtained the freezing order; she had thought the matter was solely between Mrs Partridge and her husband. The judge found, as is perhaps obvious, that the agreement with Mrs Partridge could provide no more than a chance at best, but only a chance, of avoiding a prosecution.
- On 27 March 2003 Mr. Lawson wrote to Mrs. Padden, stating that he enclosed three documents – a copy letter from him to Everys, a draft deed which had also been sent to them and a draft letter for Mrs. Padden to send to Everys. The judge found that Mrs. Padden probably received this letter on Friday, 28 March. The letter to Mrs. Padden, in its essential terms, said this:
"You confirmed that to assist Mr Padden and the further problems that may occur, you are willing to effectively give up your interest in the house, the endowments and your rights in respect of the commutation value of Mr Padden's pensions. Further, insofar as there are shares, of which I accept you were unaware, in your name, you were also happy to dispose of those. It is imperative, because of the extent of the assets that you are willing to give up in the circumstances that you have independent advice, and it is right that you should do so. I would be grateful, if you have not altered your attitude, that you arrange for the solicitors that you nominate to provide a letter in the attached format, which I anticipate will be acceptable to Everys. ……"
- The only one of the three enclosures that emerged in the course of these proceedings was the draft letter, obviously designed to be sent by a solicitor, which said this:
"I hereby confirm that I have met with Mrs Heather Mary Padden, wife of Nicholas Charles Padden of Willow Cottage, School Lane, Broadclyst, Exeter, Devon, EX5 3EQ. She has shown me a copy of the Mareva Order and contents of the Affidavit of Mr Foord (without the exhibits) and a copy of the letter sent to you by Mr Padden's Solicitors together with the draft Deed of today's date.
Mrs Padden is aware and consents to forego her interest in Willow Cottage, the endowments and her interest in Mr Padden's pension policies and is content that she should do so.
She confirms that she wishes the matter to be dealt with as quickly as possible."
In due course, Mrs. Padden, rather than a solicitor, wrote to a Mr Cuthbert at Everys a letter dated 27 March 2003 saying this,
"I hereby confirm that I am Mrs Heather Mary Padden, wife of Nicholas Charles Padden of Willow Cottage, School Lane, Broadclyst, Exeter, Devon, EX5 3EQ. I have read and understand and have discussed the Mareva Order and contents of the Affidavit of Mr Foord (but without the exhibits) and a copy of the letter sent to you by my husband's Solicitors together with the draft Deed of today's date.
I am aware and consent to forego my interest in Willow Cottage, the endowments and my interest in Mr Padden's pension policies and am content to do so.
I also confirm that I wish the matter to be dealt with and resolved as quickly as possible."
The Judge records that Mrs. Padden said in evidence that she did not type this letter; but that it might well have been typed by Mr. Padden. (The letter appears to have been received by Everys on 31 March 2003.)
- On 28 March, Mrs. Padden arrived home, after teaching until the late morning. She received a telephone call from Mr. Lawson, telling her to go to a solicitor (any solicitor) that day and show him/her his letter of 27 March and the enclosed documents. She was to tell the solicitor that she had to sign a document which Mr. Lawson would send by fax. After trying two firms in Collumpton, she went to the offices of the defendants in Tiverton. By then it was late in the afternoon and she was anxious to get home to await the return of her children from school.
- At the defendants' offices she met a young, recently qualified solicitor, called Ms. Rebecca Shinner. The judge sets out very fully in his judgment the evidence that Mrs Padden gave about this meeting. He records the suggestion, put to her in cross-examination, that no advice from Ms. Shinner would have persuaded her not to carry out the transactions that she had agreed with her husband and Mr Lawson and which she expected would keep Mr. Padden out of prison. Mrs. Padden had not accepted that suggestion and said that she did not realise at the time that the chance of saving her husband from prison was slim. She said that if she had been told that, matters would have been very different.
- The judge made the following findings about the meeting with Ms. Shinner, in paragraph 19 of his judgment, which it is important to set out in full in view of the reliance placed upon them by Ms. Shuman, for the defendants, on this appeal. The judge said this:
"19. Against that summary of the evidence, let me set out my findings with respect to this meeting. The claimant arrived at the defendant's Tiverton office without an appointment, evidently distressed and in a rush to be back home as soon as possible. The staff there took pity on her, and Ms Shinner, a recently qualified solicitor, agreed to see her. The claimant told Ms Shinner that Mr Padden had been misappropriating money belonging to a client. He wanted to sell the house and other assets to raise funds to pay that client off. She must have told Ms Shinner that she, the claimant, was a half owner in the house. The claimant told Ms Shinner that that was the only way to avoid Mr Padden's going to prison. Ms Shinner advised the claimant that she was not doing the right thing, and advised her not to sign any documents. Ms Shinner must have based that advice on her appreciation that paying off Mrs Partridge might not stop a criminal prosecution. However, the claimant repeatedly told Ms Shinner that Mr Lawson had insisted that the claimant had to do it, that is, that she had to sign the document. I find that the claimant did ask Ms Shinner to write a letter on her behalf, confirming that she consented to the transfer of her interests in the house, shares, policies and pension. Ms Shinner's understanding was plainly that that letter was to be sent to Mr Lawson. The claimant may well have thought that that was what was required. I find that Ms Shinner told the claimant that she was taking a huge or a big risk, and the risk to which Ms Shinner was referring was the risk that Mr Padden would face criminal charges despite the claimant's giving away her interest in the assets. I find that the claimant must have understood that to be the risk; there was no other risk. She knew that in order to pay off Mrs Partridge the house would have to be sold. That is her evidence of the conclusion to which she came at the meeting with Mr Lawson on 25th March. Any suggestion that the other assets in this case might have been sufficient to realise £860,000 is unrealistic. I accept that as a concluding comment, Ms Shinner did say that she hoped Mr Padden was worth it, and that the claimant did say that he was not, but that her children were. It may well be that some document was sent by fax from Mr Lawson to Ms Shinner and that that document was signed by the claimant in the presence of Ms Shinner, who witnessed it. It is not now possible to determine what that document was. In any event, that document, whatever it was, did not lead to any loss suffered by the claimant."
- I should record that on 1 April 2003, the defendants, through Ms. Shinner, wrote to Mr. Lawson in these terms:
"We have been asked to write to you by Mrs Padden, wife of Nicholas Charles Padden of Willow Cottage, School Lane, Broadclyst, Exeter, Devon, EX5 3EQ.
We have been asked to confirm to you Mrs Padden's consent to transfer her interest in Willow Cottage the endowments and her interest in Mr Padden's pension policies having taken independent legal advice from this firm as to the consequences of dong so.
We have also been asked to confirm that Mrs Padden wishes the matter to be dealt with as quickly as possible."
- Whatever document or documents Mrs. Padden did sign at Tiverton on 28 March 2003 (which has never re-emerged), they were not the ones which ultimately gave effect to the proposals being made by Mr. Padden, with the assistance of Mr. Lawson. Those final documents were signed by Mrs. Padden on 10 April 2003 at the defendants' offices in Exeter, in the presence of Mr. Garry Mackay of the defendants' firm. (In this judgement, where I refer to Mr "Mackay", I have adopted this spelling, since it is the form used in his witness statements in the proceedings. The Judge uses the form "McKay" in his judgment and I have not altered that in the quotations from the judgment.) Those documents (in summary) were a charge over Willow Cottage in favour of Mrs. Partridge, a mortgage of shares, a mortgage of life policies and a deed by which Mr. Padden agreed to pay £800,000 to Mrs. Partridge, to effect surrender of the policies and the commutation of Mr. Padden's pension to the maximum amount and to proceed to sell Willow Cottage to effect the payments required.
- The charge over the house contained the following certificate at its end:
"I, Garry Mackay of Bevan Ashford (name of solicitor or Fellow of the Institute of Legal Executives and name and address of Firm) certify that before execution, the signatory whose signature I have witnessed has had the consequences of this Deed and the obligations which it imposes explained to her by a Solicitor/Legal Executive and that I am satisfied that this signatory understands the nature of this Deed and its meaning and effect and to the best of my knowledge has feely consented to it without undue influence or duress or in reliance upon misrepresentation. This signatory has stated to me that she fully understands the consequences and the obligations imposed. I also certify that I have checked the identity of this signatory."
- Mrs. Padden gave evidence of what happened at the Exeter meeting. She told the judge that she received no advice from Mr. Mackay. Mr. Mackay told the judge that he had no independent recollection of the events in question. The judge summarised his evidence in these terms:
"I cannot remember the meeting during which the claimant signed those documents or what was discussed at it. Although I have no memory of the signing, I assume that it must have taken place at our office in Exeter. However, I am confident that, as was my normal practice when witnessing such documents, and in view of the confirmation in that regard contained at the bottom of the charge, I would have explained to Mrs Padden the consequences of signing the charge and other documents, and, in particular, the risk that she could lose her house and the assets being charged. I have considered whether if she had said that she had already been advised not to sign the documents I would simply have said something along the lines of "So you will already have been advised of the risks of signing the documents?" but I think I would have advised her, as was my normal practice, as to the risks. I consider that I would have done this, given the confirmation that I signed at the bottom of the charge."
- The Judge made these findings about the meeting on 10 April 2003:
"Although, as Ms Shuman submits, the certificate is evidence of what occurred at the meeting, it is difficult for me to reject the claimant's account, as Ms Shuman invites me to do. The claimant gives an account which is prima facie credible, and Mr McKay is not able to contradict it by any recollection of his own. It is true that the claimant might have raised these complaints during the course of the Partridge litigation, but the disclosed attendance note of the solicitors then representing her shows that they took the view that she had no real defence to Mrs Partridge's claim and that the best that they could do for her was to try to bring about a compromise under which Arbuthnot, who plainly had the financial resources, took over a large part of the loss. It is perhaps easy to see why the thought of tagging a solicitor's negligence claim on to those proceedings as an additional claim was not an attractive tactical manoeuvre for the solicitors then advising the claimant. I, therefore, find that the claimant was not taken to a separate room and given advice. I find that Mr McKay accepted, as she was told, that independent advice had already been given."
- The reference in that passage to the Partridge litigation is, of course, to an action brought by Mrs. Partridge when, as might have been inevitable from the outset, the whole matter unravelled and she sued Mr. and Mrs. Padden. The reference to advice having already been given refers back to Mrs. Padden's evidence that Mr. Mackay said that "she could talk to someone if [she] wanted to" but that her husband had answered for her, saying she had already spoken to a solicitor, whereupon Mr. Mackay had not asked what had been discussed with that solicitor or anything else about the circumstances or the advice that she had received.
- Although the Judge does not mention this in the judgment, Mrs. Padden says in her witness statement that, at a trial in June 2005, Mr. Padden was found guilty of a number of offences and was sentenced to 6 years imprisonment.
(C) The Judge's Conclusions
- To understand the basis of the judge's conclusions on these facts, it is necessary to set out the course of the proceedings which led to the earlier appeal in this case and the conclusions of this court on that earlier appeal.
- The trial came on initially on 14 April 2011 before Judge Denyer QC, also as a Deputy Judge of the High Court, sitting at Bristol. The case was listed for three days. However, having heard only the evidence of Mrs. Padden, the Judge effectively stopped the proceedings by saying in terms that he considered that she had not established her claim and that the defendants had no case to answer. He considered that the sole task of the defendants on 10 April 2003 had simply been to witness documents and that, in the circumstances of the Tiverton meeting of 28 March 2003, to "foist" a duty to give full advice to a solicitor who simply agreed to see someone who had come off the street was an "absurdity".
- Subject to causation arguments, this court on the first appeal had three main concerns about the Judge Denyer's conclusions: first, in the light of the certificate on the legal charge, as completed by Mr. Mackay (please see above), the Judge wrongly "wrote off" the defendants' involvement on 10 April; secondly, the judge was over impressed with the argument that the meeting on 28 March was short and free of charge; and thirdly, he was "too impressed" with Mrs. Padden's determination to proceed "come what may": see  EWCA 1616 at  per Lord Neuberger MR (as he then was), with whom Hughes and Sullivan LJJ agreed.
- This court ordered a retrial. The conclusions expressed were only in respect of breach of duty; no conclusion was reached on questions of causation or loss, and it was held that other findings of fact might be open when a new judge had heard Mrs. Padden's evidence tested again and had heard other witnesses: see Loc. Cit. at .
- On the previous appeal, Lord Neuberger considered extensively the obligations of the defendants, when confronted with the situation presented by Mrs Padden's case. Perhaps the crux of that review can be taken from paragraph  of the judgment as follows:
"46. In those circumstances, it seems to me particularly important that a solicitor should have emphasised to the claimant the desirability of exploring why she was prepared to put her home and assets at severe risk simply to protect a husband who had turned out to be a fraudster. The claimant's answer, as I understand it, would have been that it was to protect the children from their father being sent to prison, but that answer would have cried out for further examination. It appears that her view, based on what her husband's solicitor had told her in forceful terms, was that, by signing the four documents, she would have a good, or at least reasonable chance, of preventing her husband being prosecuted and going to prison. As the Judge rightly said, this assessment was "almost certainly wrong": whatever she did, a prosecution was almost inevitable."
- In the light of this court's conclusions on the first appeal and the fuller evidence before him, Judge Vosper found that it inevitably followed that there was a breach of duty, both by Ms. Shinner on 28 March and by Mr. Mackay on 10 April, in failing to evaluate the risk of the prosecution of her husband that Mrs Padden, above all else, sought to avoid. It is not necessary to say more about the breach of duty found by the Judge, as the defendants do not seek to contest that finding on this appeal. The judge found that, if investigations, of the type which this court considered ought to have been carried out, had been undertaken, the advice to Mrs. Padden would have been that there was little chance of avoiding criminal proceedings against Mr. Padden. The Judge found that if Mrs. Padden had been given such advice, she would not have signed the four documents.
- On this appeal the defendants contest that final conclusion. It is common ground that "the key issue was whether or not the Claimant, if properly advised in accordance with the findings made as to the scope of the retainer, would have acted differently: see paragraph 5 of the defendants' skeleton argument and paragraph 1 of the skeleton argument for Mrs. Padden.
- At the hearing before us there was much concentration by Ms. Shuman for the defendants upon paragraphs  and  of the judgment where the judge expresses his final conclusions about causation and loss. I shall return to these. However, paragraph 36 of the judgment also contains some very important conclusions, as follows:
"36….The claimant, however, was adamant that what was motivating her was her concern for her children. I accept that. The claimant gave up her career to look after her children when they were young, and plainly her children were a major concern to her. Her principal concern was, as she said, that her children would see their father sent to prison. If told that that could not be avoided, what would her next concern have been? She said that she was concerned to secure her and her children's future. I find that had she been told that by surrendering her interest in the house and other assets she would not have prevented Mr Padden's imprisonment, her next concern would have been to secure the future of her children when Mr Padden was in prison. It was likely that the house would have to be sold in any event, because, of course, it was an asset of Mr Padden against which those to whom he owed money, or his trustee in bankruptcy, would proceed. However, it was not likely that the claimant's share in the equity would be lost in that way. This house had been acquired long before fraud began and it is unlikely that any remedies available to a creditor or a trustee in bankruptcy, or any confiscation proceedings in the Crown Court would have led to the consequence that the claimant lost her share in the equity…..
….[i]t was known that Arbuthnot were in the process of taking civil proceedings against Mr Padden and in my judgment it is likely that if investigation of the sort which the Court of Appeal said should have been undertaking (sic:undertaken) had been carried out, the advice to the claimant would have been that there was little chance of avoiding criminal proceedings against Mr Padden. Indeed, both Judge Denyer and the Court of Appeal thought that that was plainly the position on the limited information available."
- After making these findings the judge concluded at paragraph  thus:
"37. I therefore conclude that, if the claimant had been given that advice, her motivation thereafter in her dealings with her property would have been to secure a home for her children, who were wholly innocent, and that that would have outweighed any wish she might have to see Mr Padden's victims compensated. There were, in any event, insufficient funds upon realisation of all the joint assets of the claimant and Mr Padden to compensate all the victims when the loss was as high as £2 million. Accordingly, I am persuaded to find that if the claimant had been advised that paying off Mrs Partridge would not, or was very unlikely to have avoided criminal proceedings against Mr Padden, she would not have signed the four documents which she did sign on 10th April."
(D) The Arguments on the Appeal
- On the present appeal, Ms. Shuman for the defendants argues that the Judge's conclusions on causation, expressed by him in paragraphs 37 and 38 of the judgment, were wrong in law as they were conclusions which "no reasonable judge could have come", on the basis of facts found by him.
- This submission is based on five features of the Judge's findings of fact. First, reliance is placed on the finding that Mrs. Padden was told on 25 March 2003 by Mr. Lawson to ignore any advice given to her not to sign the documents. Secondly, Mrs. Padden was told by Ms. Shinner that she was taking a "huge risk" or a "big risk" in agreeing to the transactions, and she appreciated the risk that Mr. Padden might be prosecuted anyway. Thirdly, the likelihood of criminal proceedings was hard to assess and the agreement with Mrs. Partridge provided only a chance that criminal proceedings might be avoided. Fourthly, Mrs. Padden agreed to do everything possible to prevent her husband going to prison and agreed to sell the house and give up her property to achieve the desired result. Fifthly, Ms. Shinner advised Mrs Padden not to sign the documents, based on an appreciation by her that it might not stop a prosecution.
- Ms Shuman submits that the Judge gave inadequate explanation of how he reached his conclusion that Mrs. Padden would not have signed the documents if properly advised and failed to take proper account of the certificate on the Legal Charge completed by Mr. Mackay, speaking to the advice said to have been given to Mrs. Padden.
- In Ground 2, it is argued (perhaps not much differently from Ground 1) that the Judge's findings led inexorably to the conclusion that Mrs. Padden would have executed the documents whatever advice she had received.
- In Ground 3, it is contended that the Judge misdirected himself, or alternatively, "failed to exercise his proper judicial function in holding that the Claimant's evidence in respect of the 10 April 2003 meeting was prima facie credible and that it could not be contradicted because GM [Mr. Mackay] had no independent recollection of this meeting".
- Finally, in an argument perhaps not fully articulated until the oral hearing before us, Ms. Shuman submitted that the Judge's conclusion in paragraph  of the judgment, that Ms. Shinner told Mrs. Padden on 28 March that she was taking a huge/big risk and that the risk being referred to was prosecution, which Mrs. Padden appreciated was the risk, was internally inconsistent with the Judge's own finding in paragraphs  and  that she would not have signed if she had been properly advised.
- In support of these arguments Ms Shuman refers to a number of different ways in which Mrs Padden's case was presented either in pleadings, witness statements and correspondence to suggest that she should not have been believed in her evidence that she would not have signed the documents if she had been properly advised.
(E) My Conclusions
- For my part, I do not accept the arguments now raised on behalf of the defendants. My reasons are essentially those advanced by Mr. Owen-Thomas, who appeared for Mrs. Padden, in his helpful and succinct skeleton argument, as supplemented orally at the court's invitation on one point only before us.
- Mrs. Padden gave the clearest possible evidence that she would not have signed the documents if she had been advised, as she clearly should have been by any competent lawyer, that the completion of the proposed transactions would have been very unlikely to prevent a prosecution. Mr. Owen-Thomas points to the following question and answer in the course of the evidence:
It would not have mattered what anyone told you though, Mrs Padden, would it? You were quite clear you had made up your mind. This was a chance, a lifeline for your family to possibly keep your husband out of prison and you decided to take that chance.
It would have mattered very much to me, very much to me, if it had been properly explained to me that this was not going to save him going to prison or that the chance of him being saved was very, very small.
It would have mattered hugely because my life since this time, in the last 10 years, has been extremely difficult and it has been extremely difficult for my children."
The Judge heard that evidence, in the face of robust cross-examination of Mrs. Padden as to apparent inconsistencies in the way that her case had been put in other circumstances.
- It was precisely the Judge's function (and indeed the expertise of any good trial judge) to assess the credibility of witnesses that appear before him. That is what the judge did in this case and came to his conclusions on the evidence in this case.
- I accept Mr. Owen-Thomas's submission that it was the trial judge's function to assess what Mrs. Padden would have done, in the face of clear and obvious undue influence from her husband and his solicitor, if she had been given the advice to which she was entitled. The Judge's conclusion was indeed unsurprising as the purpose of independent advice, in circumstances such as these, is precisely to incline the victim of undue influence towards backing away from the transaction being advanced under improper influence.
- It is not necessary to say more about grounds 1 and 2 which I, therefore, reject.
- In my judgment, ground 3 is entirely misconceived. There is nothing wrong with the Judge having preferred Mrs. Padden's evidence to Mr Mackay's evidence based upon his absence of specific recollection and his supposed "usual practice". Of course, the true situation in this case would hardly have been covered by Mr. Mackay's usual practice (as described in paragraph 10 of his first witness statement, as to which the Judge made no specific findings) in any event; this was far from a usual case.
- This court found on the previous appeal that the defendants' case, based as it then was upon the contention that their function on 10 April was merely to witness documents, was hard to accept in the light of the certificate completed by Mr Mackay on that day. Clearly, Mr Mackay's proper function was that found by the Judge and that is no longer contested by the defendants. However, when confronted with Stephenson Harwood's letter of 9 April 2003 (stamped as received by the defendants on 11 April), concerning the terms of the freezing order obtained by Arbuthnot, Mr. Mackay wrote to Mrs. Padden on 17 April saying, "Obviously, I know nothing about this at all". Clearly, if that statement was true, he could have had no basis for saying that he had taken proper instructions and that he had given the necessary advice to Mrs. Padden, which the certificate completed on 10 April 2003, suggested that she had received.
- Further, it was suggested to Mrs. Padden in cross-examination that on 10 April she was taken to a separate room at the defendants' offices, away from Mr Padden, and was advised what the effect of the documents and their consequences would be. She denied those suggestions and the Judge accepted her evidence. Interestingly, it will have been noted that the terms of the certificate did not suggest that the consequences of that document (the only one, out of the four being put forward, to which any such certificate was appended) had been explained to Mrs. Padden by Mr Mackay himself, only that "the consequences of the Deed and the obligations that it imposes [had been] explained to her by a Solicitor/Legal Executive". It did, however, go on to say that Mr Mackay was satisfied, "this signatory understands the nature of this Deed and its meaning and effect and to the best of my knowledge has freely consented to it without undue influence or duress or in reliance upon any misrepresentation". In the light of Mr. Mackay's own statement in his letter to Mrs. Padden of 17 April that latter part of the certificate could not have been correct either. Moreover, at no stage was it put to Mrs. Padden in cross-examination what the specific advice given to her on 10 April was. It was not suggested that it was explained to her on this occasion that the chance of saving her husband from prosecution and/or custody was slim.
- In my view, the Judge had ample material upon which to prefer Mrs. Padden's evidence to that of Mr Mackay in respect of the events of 10 April.
- Finally, I turn to the argument articulated in oral argument before us that the Judge's findings on causation in paragraphs 37 and 38 of the judgment were internally inconsistent with his conclusion as to the nature of the "risk" of which he found Ms Shinner had advised Mrs Padden on 28 March.
- I do not find any such inconsistency. In dealing with the events of 28 March, the Judge was not dealing with the same situation at all as that with which Mrs. Padden was confronted on 10 April. It seems that only the outlines of the intended transactions were to hand on that first occasion. The full documents that later emerged were not available at that stage. The Judge found that Mrs. Padden must have appreciated at least then that there remained a risk that Mr. Padden would still be prosecuted. However, she was not advised that the chance of avoiding a prosecution was slim.
- That was not the situation which was facing Mrs. Padden a fortnight later, on the assumption that proper advice had by then been tendered. At that stage, the full formalities were to be completed. By then, on proper advice, fuller knowledge of the circumstances would have been obtained by the advising solicitor, not least by that solicitor having spoken to Mr Lawson (as Lord Neuberger thought would have been the obvious course in paragraph  of his judgment on the first appeal). So equipped, the solicitor would have set out those circumstances and would have advised her, as would have been as plain as a pikestaff, that a prosecution (and custody) for Mr. Padden was highly unlikely to be avoided. As Mrs. Padden told the Judge such information "would have mattered hugely" to her.
- The obvious conclusion was, as the Judge found, she would not have signed the documents.
- For these reasons, I would dismiss this appeal.
Lady Justice Arden:
- I agree
Lord Dyson, The Master of the Rolls:
- I also agree.
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