|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Pulvers (a firm) v Chan & Ors  EWHC 2406 (Ch) (29 October 2007)
Cite as:  EWHC 2406 (Ch)
[New search] [View without highlighting] [Printable RTF version] [Help]
Strand, London, WC2A 2LL
B e f o r e :
| PULVERS (A Firm)
|- and -
|1) NEVIL CHAN
2) DAVID ENDEAN
3) JOHN FARMER
4) SUSAN HOOKER
5) PAUL HOWELL
6) JOHN ROSE
7) JOHN SINCLAIR a.k.a JOHN WHALE
8) RONALD ST LEGER
9) MARY WEST a.k.a MARY FRANCIS a.k.a MARY LAUX a.k.a MARY LANGTON
10) CAVENDISH FINANCE LIMITED
11) COSEC FACILITIES LIMITED
12) PREMIUM FINANCE LIMITED
13) UK DIRECT LIMITED
14) JACK THOMAS DOUGHTY
15) JAMES DOUGHTY
16) JAMES KNIGHT
17) DEBORAH ANN PEARMAN
The 2nd Defendant appeared in person on behalf of himself and the 4th Defendant
The 5th Defendant appeared in person
The 9th Defendant appeared in person
The other Defendants did not appear and were not represented
Hearing dates: 11th, 12th, 13th, 16th, 17th, 18th, 19th, 20th, 23rd &24th July 2007
Crown Copyright ©
Mr Justice Morgan :
"I really cannot understand how you can work in such a muddle".
In a second memorandum of the same day he referred to:
"A total lack of attention to detail and to your work generally".
He also referred to the position fast becoming intolerable.
The standard of proof
23 Nelmes Road
58 Herbert Road
51 Medlar Drive
11 San Remo Parade
31 Billet Lane
10 Beaumont Close
113 Grifon Road
17 Cornwall Close
A review of the case against Mary West
The resulting position of Pulvers
The liability of Mr Sinclair
1) There is property subject to a trust;
2) The property is transferred;
3) The transfer is in breach of trust;
4) The property is received by the defendants;
5) The receipt is for the defendant's own benefit; and
6) The defendant receives the property with knowledge that the property is trust property and has been transferred in breach of trust.
The requirement of knowledge was reviewed by the Court of Appeal in Bank of Credit and Commercial International (Overseas) Limited v Akindele  Ch 437 where it was said at page 455 E-G per Nourse LJ:
"The recipient's state of knowledge must be such as to make it unconscionable for him to retain the benefit of the receipt."
1) There is a trust;
2) There is a breach of trust by the trustee;
3) The defendant induces or assists that breach of trust;
4) The defendant does so dishonestly.
The question of dishonesty has been considered in detail by the Privy Council in Royal Brunei Airline v Tan  2 AC 378, by the House of Lords in Twinsectra Limited v Yardley  2 AC 164 and by the Privy Council in Barlow Clowes International Limited v Eurotrust International Limited  1 All ER 333. I was also helpfully referred to the discussion of these three cases by Sir Anthony Clarke MR in his article "Claims against Professionals: Negligence, Dishonesty and Fraud"  22 Professional Negligence 70. There is no difficulty in answering the question: was Mr Sinclair dishonest in these cases? Mr Sinclair knew that he was causing the various lenders to be deceived. Mr Sinclair practised the deception for his own financial gain. I also hold that Pulvers as trustees are entitled to claim equitable compensation from Mr Sinclair for his knowing assistance in the breaches of trust.
The liability of Mary West
The position of the other Defendants: generally
The liability of Mr Chan
The liability of Mr Endean
The liability of Ms Hooker
The liability of Mr Howell
The liability of Jack Doughty
The liability of James Doughty
The liability of Mr Knight
Permission to amend
Civil Liability (Contribution) Act 1978
"Subject to the following provisions of this section, any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect to the same damage (whether jointly with him or otherwise)."
"References in this section to a person's liability in respect of any damage are references to any such liability which has been or could be established in an action brought against him in England and Wales by or on behalf of the person who suffered the damage;…. "
1) "Subject to subsection (3) below, in any proceedings for contribution under Section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage in question.
2) Subject to subsection (3) below, the Court shall have power in any such proceedings to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity."
The Order of the Court