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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Guy v Mace & Jones & Ors [2012] EWHC 1022 (Ch) (24 April 2012) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2012/1022.html Cite as: [2012] EWHC 1022 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
TREVOR GUY |
Claimant |
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- and - |
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(1) MACE & JONES (2) GEORGE DAVIES SOLICITORS (3) WEIGHTMAN VIZARDS |
Defendants |
____________________
Mark Simpson QC and Spike Charlwood (instructed by DAC Beachcroft LLP) for the first defendant
Ian Gatt QC and Mark Cooper (instructed by Herbert Smith LLP) for the second defendant
Ben Patten QC and Sian Mirchandani (instructed by Weightmans LLP) for the third defendant
Hearing dates: 1-3, 6-10 and 13-17 February 2012
____________________
Crown Copyright ©
Sir William Blackburne :
Introduction
Representation at the trial
Conflict
The witnesses
The facts: a preliminary observation
The facts: George Davies' role
"It is part of normal conveyancing practice for documents, including TR1s, which have been signed by one party, to be released to the other party for signature either by sending them to the other party's solicitor or by providing them to the other party's solicitor in person where, for example, there is a signing meeting and one or more of the signatories for the other side are absent. In both cases, the documents concerned are released subject to an implied undertaking that they are to be used solely for that purpose and otherwise held to the order of the releasing party's solicitor."
Mr Bibby went on to state that at no subsequent time did he release the signed TR1 from his order or consent to its use for any purpose other than obtaining its execution by TAL.
"I cannot recall why I did not ask Mr Luqman for the draft TR1 back"
It is this admission that is the basis for Weightmans' concession of a breach of duty but, as will appear, a breach which Weightmans has contended did not cause Mr Guy to suffer any recoverable loss.
"Dear Paul
Re: Sale of Land at Ten Acres Lane to Ten Acre Limited
This is to confirm that I have received consideration of the sum of £5 million directly from the purchaser, Ten Acre Limited, in relation to the sale of the above.
As you are aware the sale price is £15 million and the outstanding amount £10 million will be forwarded to Pearl Holdings (Europe) Limited on completion of the sale to discharge my outstanding indebtedness to that Company."
The letter was described as being "by hand". It was signed by Mr Guy.
"1. Valuation re: Newton Heath.
2 Letter from Weightmans explaining structure of consideration.
3. Title for Welsh property.
4. Valuation for Welsh Property.
5. Redemption statements for both properties.
6. DS1s for both properties
7. Evidence £5m cheque from Pearl cleared in Trevor Guy bank account."
The reference at point 2 to a letter from Weightmans explaining the structure of the consideration reflected Mr Bibby's uncertainty as to what charges were to be released on completion and how much cash was to be paid. By then there was talk of redeeming on completion a charge in Pearl's favour over a property in Wales called Plas Brereton. This explains the references to the "Welsh Property" and to redemption statements and DS1s (in the plural) in points 3 to 6. I have already commented on point 7. Such, however, was Mr Bibby's uncertainty over these matters that he began to wonder whether a suitable structure for the consideration could be found.
The facts: Mace & Jones's role
The facts: Weightmans' role
"My understanding was that the purchase price for the … Land was to be mix of payment and consideration by means of redemption of other charges held by Pearl/Shaid Luqman over the …[L]and and other properties belonging to Trevor Guy. The total sum due was not clear. I recall at one point the price was set at £15 million. I recall Shaid Luqman informing me of this price. I also recall mention of the price being at £10 million, this was in the course of discussions between me and Shaid Luqman."
The reference in that statement to £10 million was, as he explained in cross-examination, to the figure which had featured in what he described as "the initial discussions in relation to the transaction" whereas he was in no doubt that in the various drafts that passed between him and Mr Bibby between 16 and 19 April £15 million, and no less a figure, was the price. He went on later to explain that the instruction that the price had increased to £15 million came from Mr Luqman and reflected, he was told, increased interest in the site. Mr Hewitt went on in his next paragraph to say:
"This [sic] was not to my mind an issue over the actual sum to be paid for the Land, it concerned the mix of the proportion of actual payment and redemption of other charges. This proved to be something that Shaid Luqman and Trevor Guy could not agree."
In short, as he made abundantly clear in the course of his oral evidence, the doubt lay not in the agreed price – which was £15 million – but in how that price was to be satisfied on completion.
The claims: is Mace & Jones liable?
The claims: is George Davies liable?
The claim: is Weightmans liable?
Causation
"The defendant's [i.e. Mr Guy's] evidence is that in fact he held off registering such a notice once he discovered that things might not be as they should be. He had received some money in relation to the charge, and he was apparently content to continue to deal with Mr Luqman. Subsequently, he said, he did give instructions to a firm of solicitors to issue a unilateral notice, but they failed to do it. It is noteworthy that when he addressed me this morning he did say that he was prepared to continue to deal with Mr Luqman for a while to see what was happening with the property…"
Attempts by Mr Guy to obtain permission to appeal against the decision failed both before the judge and the single Lord Justice and again, on 9 April 2008, on a renewed application before Carnwath and Lloyd LJJ (see [2008] EWCA Civ 452) and yet again before the Court of Appeal on 8 December 2010 (see [2010] EWCA Civ 1396; [2011] 1WLR 681).
"TG [i.e. Mr Guy] found out about the transfer and charge of the [L]and in October/November. TG thinks it was in November."
In context, the year in question is 2004. In a lengthy letter dated October 2006 (the date is no more specific than that) from Mr Guy to Patten J (as he then was) written in connection with other proceedings in which he was embroiled Mr Guy wrote this:
"It was not until late December 2004 that a title search revealed that the site was no longer in Mr Guy's name but that of Ten Acre Ltd. When Mr Guy questioned Mr Luqman about this he was told it was too late and that [sic] had gone now."
The letter later stated, in a passage referring to the consultation with Mr Guthrie QC:
"The initial question asked by the barrister was why Mr Guy had waited so long before seeking legal advice. In fact Mr Guy only found out for certain on January 2005 for the first time that the rumours were true and the land had been transferred without his knowledge. He then immediately sought legal advice…"
The letter before the court was a copy which lacked Mr Guy's signature but he confirmed in the course of his oral evidence that he had sent the letter.
"Towards the end of November 2004 Dave Brislen's solicitor, John Carpenter, did tell me that the …Land was not mine. I was doing deals with Dave Brislen and speaking to John Carpenter from time to time. I did not believe him at that time because I still could not understand how it could be transferred out of my name without my knowledge or involvement…"
Rather than take the elementary step of searching the titles (and it is to be recalled that Mr Guy was no ingénue in matters of land dealings) he went on to refer vaguely to conversations and meetings with Mr Luqman and others and to an absence of belief on his part that the Land could have passed out of his name, culminating (at paragraph 29) with an assertion that he:
"…finally understood that the registered owner of the … Land was not me but Ten Acre Ltd when I received a copy of a letter from Howard & Howard, who were acting for Ten Acre Ltd, dated 28 February 2005 and addressed to Carpenters. The letter said that their client had good title to the … Land for over a year. That was the first time that I saw anything in writing that made such a suggestion and I wrote to Alex Mr Megaw on the same day asking him to put a caution over the Land."
In cross-examination before me Mr Guy settled on 28 February 2005 as the date when he first realised that the Land had gone. This, it might be thought, was a convenient date since it post-dated his knowledge to the all-important 14 February 2005. It was clear however, and I so find, that Mr Guy was aware of the transfer long before that date and, at the latest, by October or November 2004. This assumes that I am wrong about his conversations with Mr Hewitt on 22 June 2004 and am reading too much into his statement of assets and liabilities dated 24 June 2004 prepared on his behalf by Ms Bartle, his PA. Moreover, it is just not credible that during the months that followed 22 June 2004 during which he was in frequent contact with Mr Luqman that Mr Guy should not have been fully aware of the transfer of the Land to TAL. Not the least is this so when his frequent contact with Mr Luqman was, partly at least, in connection with the Land. For example, on page 9 of his second statement, Mr Guy stated that in the period July/August 2004 he "was still in Pearl's offices on sometime[s] daily sometime[s] one to two times a [sic] weekly… During all this time and in the following months we insured and fenced the Ten Acres land, decontaminated the first 5.6 acres and complied with the conditions of the planning permission including putting in a road on the front parcel. This was all done between myself and Dave and Peter Torrible of the Land and Development Practice, keeping SL informed." (Emphasis added.)
"(a) That [Mr Guy] was content with the fact that completion had taken place on the material deal for Ten Acres Lane when he first mentioned the matter to me in early 2005 and that he was only concerned to be paid what he thought he was owed; he did not become agitated until he realised that he was not going to be paid;
(b) [Mr Guy] was inconsistent and very difficult to pin down on his evidence, notably (but not exclusively) in respect of the price said to have been agreed for Ten Acres Lane."
Loss
"Will provide confidence that the future development of the Land immediately around the encapsulated area will not be affected by gas from deep waste within the slurry wall area. It is certain to assure Regulators and future house purchasers. Any scheme which does not provide an effective cut-off around the deep, former licensed landfill waste, would not provide such confidence, and would be unlikely to achieve planning condition sign-off."
I have therefore concluded that on this issue, as on the other, the costs to be assumed should be based on the measures that Mr Crowcroft proposed.
Beneficial ownership
The true nature of the deal
"Because it [the transaction] had undergone a number of changes since my original instructions and I was no longer clear as to which charges were to be released and how much cash was to be transferred on completion. The structure was gradually becoming more complicated as Trevor and Shaid tried to take account of other loans between them, transforming what had begun as a relatively straightforward transaction into one where I was beginning to have doubts as to whether a suitable structure would be found."
By the time Mr Bibby decided that he could no longer act for Mr Guy it was not clear to him "that there would be anything left to pay after the various borrowings had been discharged" (see paragraph 54 of his witness statement).
"I did not know for certain what redemptions were going to be included as the consideration. This was something upon which Trevor Guy and Shaid Luqman could not agree. I do recall Plas Brereton being indicated as one of the properties that was to have its charge redeemed. I also recall that 20 Waterside was discussed as another possible redemption to be included in the consideration …"
He then went on in that paragraph to speculate about other amounts that might have been included. And when, no longer acting for TAL, Mr Hewitt was rung up by Mr Maharaj at the All Bar One on 22 June, his evidence was that he told Mr Maharaj (although Mr Maharaj had no recollection of this) that "the breakdown of the completion monies" on the transaction was still in issue.
"He offered to purchase the deal from me for £10,000,000 with a completion date on 1 May 2004. I wanted to complete before completion on Waterside so I had the money for that completion. Shaid Luqman agreed that on completion my arrangements with Pearl would be a clean slate. In order for that to happen the money owed to me from Pearl would be taken into account, the loans would be discharged from the proceeds and he agreed that the interest chargeable on those loans would be written off…"
They pointed also to paragraph 44 of a witness statement which he signed on 23 October 2007 in opposition to a summary judgment application in the proceedings brought against him by Barclays Bank in which Mr Guy said this:
"At the [19 April] meeting…I signed a blank Transfer (TR1 form) and a blank contract (no dates or figures inserted) witnessed by my solicitor, Mr Bibby. The solicitors arrived with the documents in this format and explained the details would be inserted later when Mr Luqman had the full information on TAL and when the solicitors had received redemption figures …"
If, they submitted, the agreed price was a fixed sum, whether £10 million or £15 million, it was difficult to understand why there should be any difficulty over what the "details" were that were to be inserted in the contract and TR1 and why, in particular, it was necessary to await any redemption figures. They pointed also to Mr Guy's "Confidential Personal Asset and Liability Statement" to which I have referred earlier. As already mentioned, this document omits the Land, much less any sum secured against it and mentions only Plas Brereton and Waterside as properties owned by him and, so far as material, to £400,000 as the only large outstanding liability (secured against Plas Brereton).
Ex turpi causa
Result