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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Nayyar & Ors v Sapte & Anor  EWHC 3218 (QB) (16 December 2009)
Cite as:  EWHC 3218 (QB),  PNLR 15,  Lloyd's Rep PN 13
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Claim No: HQ08X01902
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ROMY NAYYAR
PARAMJIT SINGH KANG
HOLIDAY MOOD LIMITED
(t/a Crystal Travel)
|- and -
| (1) DENTON WILDE SAPTE
(2) GAURI ADVANI
Mr Justin Fenwick QC (instructed by Barlow Lyde & Gilbert LLP) for the 1st Defendant
Mr Bob Moxon Browne QC and Mr Charles Phipps (instructed by Kennedys) for the 2nd Defendant
Hearing dates: 17-20, 23-24, 30 November, 1 December 2009
Crown Copyright ©
Mr Justice Hamblen :
The outline facts
"(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.
(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.
(4) If the reason for the witness's absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified."
"We recognise through our sources that Air India is presently in the process of appointing Sole General Sales Agency for the UK and Ireland. We would indeed be obliged if the above company would be considered for the appointment of such position, that of Sole General Sales Agency for the UK and Ireland for passenger and cargo transportation.
Our reputation in the industry remains impeccable, with firmly established credentials within the travel industry with over 20 years of knowledge and experience. We, without doubt understand the travel distribution within the Indian sub-continent and for the rest of the world. For the past years we have been specialising in the worldwide holiday tours and giving studied and well thought out importance to this area of the travel business though not at all neglecting our business clientele on the other side of the spectrum. This has been operated under our flag ship company Holiday Mood. We in addition pride ourselves in training our staff to highest standards in both product knowledge and customer service.
We are indeed confident that given the chance we will be able to provide the nations official carrier Air India with outstanding service and selfless sense of duty. Our pride in India remains spontaneous, absolute, and unfailing. We therefore would only work towards better revenue prospects, better promotion and marketing techniques and prospects for India's national carrier Air India keeping in mind both the Western and Eastern markets.
Sir, we would be greatly honoured to be given the opportunity to present our credentials to you in order to establish our unfailing sense of duty towards this endeavour. In addition, we look forward to be able to present Air India to both its current and new client base most satisfactorily and moreover to undertake to show absolute commitment to achieving maximum sales for Air India and offer all assistance and co operation to the organisation."
"It is with great regret and disappointment that I inform you that the party hereby terminates by way of this communication all arrangements/engagements with yourself regarding the present matter. I bring to your attention that you personally had got in touch with myself last year (2002) informing me of your close and personal friendship with the then Union Minister for Civil Aviation Shri. Syed Shahnawaz Hussain. You had further advised that you had the minister's complete backing, cooperation and support with you and that the Union Civil Aviation Minister Shri. Syed Shahnawaz Hussain had given you the 'Mandate' for selection of the GSA for Air India for United Kingdom. To this end you requested and accepted on behalf of the Union Minister Shri. Syed Shahnawaz Hussain a payment of RS. Three Crores /- (as first instalment) which were paid by the party to you immediately, all together and in One Lump Sum into your Bank Account details of which are with us.
Unfortunately, the party concerned have waited in vain, unsuccessfully and wastefully and without any progress on this matter for over nine (9) months now. It was unanimously felt by everyone concerned that your attitude was amateurish, unprofessional and unpleasant to say the least. In the early days you called the party and myself several times a day- then once in ten days- but of late you stopped and moreover ceased all communication and even refused to answer any telephone calls. I myself have left innumerable messages on your mobile number (0091 9810618521) and at your residence numbers..
It goes without saying and must be stated categorically that the delay, laxity and non performance from your side has caused us severe loss of precious time, resources and money. The party therefore requires immediately and with no further delay whatsoever that the monies paid to you for the sum of Rs. Three (3) Crores /- should be paid back in One Lump Sum into MORESAND LTD, Bank Account….
Please advise of the same immediately and promptly."
"….This is a clear matter of Fraud, Cheating and Embezzlement on your part. ….. Please….return the money. The party otherwise proposes to contact the necessary authorities (with complete circumstantial evidence) including the CVC – CENTRAL VIGILANCE COMMISSION to report this significant and very serious matter."
"PLEASE RETURN THE MONEY BACK ASHOK YADAV AND NEXT TIME FOOL SOMEONE ELSE - WE WILL NOT LEAVE YOU IN PEACE TILL WE HAVE THE MONEY BACK. G Advani"
"In the light of your consistent refusal to accept our several previous communications to you in respect of the above subject I am constrained to put you on notice in regard to the penal offences/breaches committed by you and Mr. Shahnawaz Hussain.
You had approached us representing yourself to have the requisite wherewithal and expertise in assisting any party desirous of obtaining the above agency. As a reference and in support of your claim you had also made available copies of the GSA agreements awarded in Finland and Khazakhstan which you claimed and held out to have been facilitated by you to the respective parties.
You, in consideration for your above services, sought and were paid by us an amount of in the following manner. Copies of relevant bank transactions are enclosed.
Inspite of nearly a year having elapsed after the above payment and numerous meetings and telephonic conversations with you the status of our application remains unknown to us. On making enquiries we now have concrete information that you and Sh. Shahnawaz Hussain are in fact very close to each other (a fact that you had earlier also represented). It has also transpired that you, in conspiracy with Sh. Hussain, had demanded and obtained the above amount as an illegal gratification for mutual appropriation between you and Sh. Hussain which comprises an economic/penal offence in India punishable under sections 7, 8, 9 and 10 of the prevention of Corruption Act read with sections 109 and 120B Indian Penal Code. As nothing seems to have been done by you for presenting and processing our application it is further apparent that you, again in conspiracy with Sh. Hussain, have dishonestly and fraudulently misrepresented yourself to us thus inducing us to part with valuable consideration you and Sh. Hussain are hence also liable to be prosecuted for the offence of conspiracy to cheat and cheating as mandated by section 420 read with section 120B of the Indian Penal Code.
In view of the above we demand an immediate refund of the amounts paid to you as indicated above. You are further advised that in the absence of your acknowledging the present communication and further delaying the refund of the above amounts we shall be constrained to institute appropriate criminal proceedings against you and Sh. Hussain, in India, for commission of the above offences."
(2) The duty of Ms Advani and DWS;
(3) Personal breach of duty by Ms Advani;
(4) The recoverability of the Claimants' losses.
Ex turpi causa - the law
"The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causâ, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis."
"The House [in Tinsley v Milligan] did not hold that illegality will never bar a claim if the claim can be advanced without reliance on it. On the contrary, the House made it plain that where the claim is to enforce a contract the claim will be defeated if the defendant shows that the contract was for an illegal purpose, even though the claimant does not assert the illegal purpose in making the claim: see Alexander v Rayson  1 KB 169, approved by Lord Browne-Wilkinson at p 370. "
"(i) The court will not enforce a contract which is expressly or impliedly forbidden by statute or that is entered into with the intention of committing an illegal act. (ii) The court will not assist a claimant to recover a benefit from his own wrongdoing. This extends to claims for compensation or an indemnity in respect of the adverse consequences of the wrongdoing: see Beresford v Royal Insurance Co Ltd  AC 586".
"Where issues of illegality are raised, the courts have (as it seems to me) to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an object or agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct."
"I do not believe that there is any general principle that the claimant must either plead, give evidence of or rely on his own illegality for the principle to apply. Such a technical approach is entirely absent from Lord Mansfield's exposition of the principle. I would, however, accept that for the principle to operate the claim made by the claimant must arise out of criminal or illegal conduct on his part. In this context "arise out of" clearly denotes a causal connection with the conduct…In my view the principle applies when the claimant's claim is so closely connected or inextricably bound up with his own criminal or illegal conduct that the court could not permit him to recover without appearing to condone that conduct."
"This distinction, between causing something and merely providing the occasion for someone else to cause something, is one with which we are very familiar in the law of torts. It is the same principle by which the law normally holds that even though damage would not have occurred but for a tortious act, the defendant is not liable if the immediate cause was the deliberate act of another individual… It was Judge LJ … who formulated the test of "inextricably linked" which was afterwards adopted by Sir Murray Stuart-Smith … Other expressions which he approved… were "an integral part or a necessarily direct consequence" of the unlawful act … and "arises directly ex turpi causa" ... It might be better to avoid metaphors like "inextricably linked" or "integral part" and to treat the question as simply one of causation. Can one say that, although the damage would not have happened but for the tortious conduct of the defendant, it was caused by the criminal act of the claimant? ... Or is the position that although the damage would not have happened without the criminal act of the claimant, it was caused by the tortious act of the defendant?"
Bribery – the law
"Bribery eats away at the heart of both business and public life and has no place in British commerce. It blights free and fair competition and adds to the cost of doing business. It is particularly harmful to trade and development in the fragile economies of the developing world."
"The damage and inefficiency caused by corruption, in either financial or social terms, should not be underestimated. The effective combating of corrupt practices requires an effective law of bribery".
In this connection the Report refers to the World Bank's estimate that more US$ 1 trillion is paid in bribes annually – see World Bank, "The Costs of Corruption" (8 April 2004).
"Bribery is an evil practice which threatens the foundations of any civilised society."
"…(i) that the person making the payment makes it to the agent of the other person with whom he is dealing; (ii) that he makes it to that person knowing that that person is acting as agent of the other person with whom he is dealing; and (iii) that he fails to disclose to the other person with whom he is dealing that he has made that payment to the payment whom he knows to be the other person's agent".
(1) It is an offence at common law for any person to offer any undue reward to any person in a public office, in order to influence his behaviour in office, and incline him to act contrary to the known rules of honesty and integrity - Nicholls's Corruption and Misuse of Public Office (2006), at paragraph 2.08 (citing David Lanham, Essays in Honour of J.C.Smith); see also the Law Commission Report Part 2 paragraphs 2.4 to 2.8.
(2) Under section 1(2) of the Public Bodies Corrupt Practices Act 1889 ("the 1889 Act"):"Every person who shall by himself or by or in conjunction with any other person corruptly give, promise, or offer any gift, loan, fee, reward, or advantage whatsoever to any person, whether for the benefit of that person or of another person, as an inducement to or reward for or otherwise on account of any member, officer, or servant of any public body as in this Act defined, doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body as aforesaid is concerned, shall be guilty of an offence".
(3) Extending the law into the private sector, section 1(1) of the Prevention of Corruption Act 1906 ("the 1906 Act") provides:"…If any person corruptly gives or agrees to give or offers any gift or consideration to any agent as an inducement or reward for doing or forbearing to do, or for having after the passing of this Act done or forborne to do, any act in relation to his principal's affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal's affairs or business … he shall be guilty of a misdemeanour, and shall be liable … on conviction on indictment, to imprisonment for a term not exceeding 7 years or to a fine, or to both."
(1) By section 108 of the 2001 Act:"(1) For the purposes of any common law offence of bribery it is immaterial if the functions of the person who receives or is offered a reward have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom.(2) In section 1 of the Prevention of Corruption Act 1906 (c 34) (corrupt transactions with agents) insert this subsection after subsection (3)—"(4) For the purposes of this Act it is immaterial if—(a) the principal's affairs or business have no connection with the United Kingdom and are conducted in a country or territory outside the United Kingdom;(b) the agent's functions have no connection with the United Kingdom and are carried out in a country or territory outside the United Kingdom."
(2) By section 109 of the 2001 Act:"(1) This section applies if—(a) a national of the United Kingdom or a body incorporated under the law of any part of the United Kingdom does anything in a country or territory outside the United Kingdom, and(b) the act would, if done in the United Kingdom, constitute a corruption offence (as defined below).(2) In such a case—(a) the act constitutes the offence concerned, and(b) proceedings for the offence may be taken in the United Kingdom.(3) These are corruption offences—(a) any common law offence of bribery;(b) the offences under section 1 of the Public Bodies Corrupt Practices Act 1889 (c 69) (corruption in office);(c) the first two offences under section 1 of the Prevention of Corruption Act 1906 (c 34) (bribes obtained by or given to agents)."
(1) Under sections 1 and 1A of the Criminal Law Act 1977 (as amended) there is a statutory offence of conspiracy, which may relate to offences committed either within or without the United Kingdom:"The essence of the offences of both statutory and common law conspiracy is the fact of combination by agreement. The agreement may be express or implied, or in part express and in part implied. The conspiracy arises and the offence is committed as soon as the agreement is made; and the offence continues to be committed so long as the combination persists, that is until the conspiratorial agreement is terminated by completion of its performance or by abandonment or frustration or however it may be. The actus reus in a conspiracy is therefore the agreement for the execution of the unlawful conduct, not the execution of it. It is not enough that two or more persons pursued the same unlawful object at the same time or in the same place; it is necessary to show a meeting of minds, a consensus to effect an unlawful purpose. It is not, however, necessary that each conspirator should have been in communication with every other." – see Halsbury's Laws, Volume 11(1) (2006 re-issue), at paragraph 66.
(2) Section 1 of the Criminal Attempts Act 1981 provides that:"(1) If, with intent to commit an offence … a person does an act which is more than merely preparatory to the commission of the offence, he is guilty of attempting to commit the offence…(2) A person may be guilty of attempting to commit an offence to which this section applies even though the facts are such that the commission of the offence is impossible.(3) In any case where-(a) apart from this subsection a person's intention would not be regarded as having had an intent to commit that offence; but(b) if the facts of the case had been as he believed them to be, his intention would be so regarded,Then, for the purposes of subsection (1) above, he shall be regarded as having had an intent to commit that offence.(4) This section applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than-(a) conspiracy…(b) aiding, abetting, counselling, procuring or suborning the commission of an offence…"
"…the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability".
Illegality - the facts
"Q. So she said, did she, "If you can get the £400,000 deposit,
the deal would be yours"?
Q. By which you understood her to mean that if you paid that
money you would get the GSA?
Q. There was no doubt about that in your mind?
Q. So when you paid the money you expected the letter of
appointment to follow immediately; correct?
A. That is right.
Q. You did not expect there to be any period during which Mr.
Yadav would be carrying out all the work necessary for you to
get the letter of appointment except in so far as that could
be squeezed into 72 hours?
Q. That was something for which you were prepared to pay
Q. You got the impression here that it would, basically, be the person who came up with the money first?
A. I would say.
Q. So if you came up with the £400,000 deposit, you would get it,
and if you did not she would give it to Mr. Kumar?
A. Again, it was coming from her; yes.
Q. But that is what you understood her to be saying?
Q. Mr Nayyar, you are an experienced businessman who is capable of exercising an independent judgement, are you not?
Q. And you knew that what you were being told that if you came up with £400,000 you would get the GSA and if you did not, you would not?
A. That is what she told me, yes. She told me and Mr. Kang as well.
Q. But you see the point. It did not really matter who the applicant was; as long as the paid the money they could have the GSA. That was your understanding.
A. Obviously, that is what Gauri said, yes.
Q. That was your understanding.
"Q. Did it come to this? Provided you paid the deposit of £400,000 to the consultant, you would get the letter of appointment.
Q. And if you did not pay the £400,000 somebody else would get it?
A. "You definitely will not get it if you do not pay", yes, my Lord."
(1) The Claimants were required to make a payment of £400,000 before they secured the GSA.
(2) The Claimants' payment of £400,000 was meant to secure the GSA for them. Conversely if the payment was not made, the Claimants would not obtain the GSA.
(3) The Claimants did not believe that their payment of £400,000 would reach Air India or the Indian government.
(4) With the possible exception of legal fees of £250,000, the Claimants neither knew nor cared about the destination of the remaining part of the £2 million cost of the GSA.
(5) An irrevocable letter of appointment to the GSA was meant to be issued to the Claimants within 72 hours of their initial payment of £400,000.
(6) In so far as the Claimants believed that their payment of £400,000 was for "services" which Mr Yadav would perform, they were mainly to be performed within the period of 72 hours between the Claimant's payment of £400,000 and the issue of a letter of appointment in the Claimants' favour.
(7) The Claimants did not know what specific "services" Mr Yadav would provide, in return for their £400,000, save that he would take care of their application, would save it from getting "lost" and would get it to "the front of the queue".
(8) The Claimants believed that Mr Yadav in performing his "services" would exercise his influence as a politician, as a former Minister and as a friend of the Civil Aviation Minister.
(9) Mr Nayyar had no obvious qualifications for selection for the purposes of the GSA.
(10) The letter of appointment would be issued in the Claimants' favour at a time when neither Air India nor the government of India had conducted any due diligence into the capacity or the suitability of the Claimants for the GSA and in the complete absence of documentation other than the backdated application letter.
(11) The letter of appointment could and would be issued to whichever of two rival travel agents first made a payment of £400,000 at Mr Yadav's direction.
(12) The Claimants paid the first £13,000 of their payment of £400,000 in cash, for which they neither sought nor obtained a receipt.
(13) The Claimants paid the remaining part of the initial payment of £400,000 by way of transfer to the bank account of a BVI company in Hong Kong, again without obtaining any receipt.
(14) The Claimants did not expect any reference to their anticipated payment of (in total) £2 million to appear in either the GSA or the letter of appointment.
"Q. So is your evidence that as long as Gauri Advani told you to do it, even if it is something that you would otherwise have regarded as dishonest, you would still do it?
A. My Lord, yes, that was the case. Gauri Advani is a solicitor. We did that, as she asked. We did exactly what she asked."
(2) The duty of Ms Advani and DWS
Vicarious liability – the law
"The correct approach is to concentrate on the relative closeness of the connection between the nature of the employment and the particular tort, and to ask whether looking at the matter in the round it is just and reasonable to hold the employers vicariously liable."
"… Perhaps the best general answer is that the wrongful conduct must be so closely connected with acts the partner or employee was authorised to do that, for the purpose of the liability of the firm or the employer to third parties, the wrongful conduct may fairly and properly be regarded as done by the partner while acting in the ordinary course of the firm's business or the employee's employment."
"Throughout the judgments there is an emphasis on the proposition that an employer ought to be liable for a tort which can fairly be regarded as a reasonably incidental risk to the type of business he carried on."
"…the essential question is…whether the tort is so closely connected with the employment, that is with what was authorised or expected of the employee, that it would be fair and just to hold the employer vicariously responsible. In answering that question the Court must take account of all the circumstances of the case, as Lord Steyn put it, looking at the matter in the round. The authority showed that it would ordinarily be fair and just to hold the employer liable where the wrongful conduct may fairly and properly be regarded as done while acting in the ordinary course of the employee's employment [Per Lord Nicholls]. This is because an employer ought to be liable for a tort which can fairly be regarded as a reasonable incidental risk to the type of business carried on [per Lord Steyn]" .
Actual and ostensible authority – the law
(1) the general principle is usefully summarised in Bowstead & Reynolds at paragraph 8-013:"Where a person, by words or conduct, represents or permits it to be represented that another person has authority to act on his behalf, he is bound by the acts of that person with respect to anyone dealing with him as an agent on the faith of any such representation, to the same extent as if such other person had the authority that he was represented to have, even though he had no such actual authority"
(2) there must be a representation by the principal to the third party (which can be express, or implied from a course of dealing, or made by permitting the agent to act in some way in the conduct of the principal's business with other persons) - see Freeman & Lockyer v. Buckhurst Park Properties (Mangal) Ltd  2 QB 480, Armagas v. Mundogas SA  1 AC 717 (HL) and Bowstead & Reynolds at paragraph 8-017;
(3) a person without actual authority cannot generally clothe himself with ostensible authority by representing that he has that authority - See Freeman & Lockyer at 505;
(4) since ostensible authority involves a representation by the principal as to the extent of the agent's authority, no representation by the agent as to the extent of his authority can amount to a 'holding out' by the principal – see Attorney-General for Ceylon v. Silva  AC 461 at 479.
The role of Ms Advani
(1) a "Fee Earner's personal review" in respect of Ms Advani which said that what she enjoyed about her existing role was "… advising on legal financial and technical aspects of investing in India. Also exchange control regulations, industrial licensing and government policies relating to overseas investment and privatisation";
(2) a "Skills Review" which describes Ms Advani as doing "… all my own writing work which includes letters advising clients on regulatory issues … and (negotiating) my negotiating skills are excellent. This may be related to tendering for work and then negotiating with State and Central Government on behalf of clients".
(3|) Ms Advani's letter of advice to Mr Yadav on the 4 March 2002 regarding the Bell Helicopter matter in which she stated that "… This is a substantial amount of work that will have to be done by our litigation and aviation partners to be able to commence this action. It will be my privilege to assist you on this important action … I look forward to hearing from you whether you are happy for me to proceed on your behalf to consider the issues that I have outlined above".
(1) She telephoned from DWS's office and introduced a potential business opportunity to Mr Nayyar, as she was authorised to do as accepted by Mr Rosenheim in his second witness statement;
(2) She secured agreement that legal fees of £250,000 would be paid if the GSA was awarded;
(3) She negotiated on the Claimants' behalf to reduce the overall price from £2.4 million to £2 million;
(4) She told the Claimants to set about incorporating a JV company to take up the appointment if granted;
(5) She wrote the application letter for them, amended it, and told them to print it on Maharaja Travel notepaper;
(6) She introduced them to Mr Yadav;
(7) She sent a fax from her hotel in India in March 2003 with a list of matters that needed to be addressed;
(8) She provided a GSA for proposed amendments to be marked up.
(1) No letter of retainer was prepared or provided to the Claimants and no file opening or other client procedures were carried out;
(2) No fees were charged or discussed for the work she was carrying out as opposed to the £250,000;
(3) The £250,000 had more of the characteristics of a success fee and the Claimants were not clear as to whether it was to be paid to her or to the firm;
(4) Ms Advani's apparent encouragement of the deal and detailed involvement with Mr Yadav was inconsistent with a solicitor giving advice to the Claimants as her clients;
(5) There were no features of legal advice in her discussions, as opposed to stipulation of what had to be done as a commercial requirement to obtain the GSA;
(6) The Claimants' constant refrain that they did everything because "Gauri Advani told us" is not consistent with any ordinary role of a solicitor. It appears that they regarded her as the promoter, superintendent and guarantor of the transaction, rather than as their legal adviser.
(1) actively promoted the deal with Mr Yadav to them;
(2) guaranteed to them that if they paid the money to Mr Yadav they would get the GSA;
(3) encouraged them to make that payment;
(4) dictated all their actions.
"A. In this case, it was not a normal solicitor buying a house or
anything. She was the head of the business opportunity and there was a price for that she was charging. It was not as a normal transaction, I would say, where you are buying a house or you are sending a letter to another party. That was not my understanding. This was for the GSA in India. At DWS, she is working as head of that department, leading the way to do this. That is my understanding. It was not an everyday solicitor which I would usually will use, my Lord.
Q. What did you think you were going to get for £250,000, Mr Kang?
A. My Lord, this was the appointment of the GSA to Maharaja Travel.
MR. JUSTICE HAMBLEN: I am sorry. The what?
A. The appointment letter, appointing Maharaja Travel as a GSA in the UK and Ireland for Air India.
MR. FENWICK: I want to be absolutely clear about this. You thought that you were going to be paying to Ms. Advani or to DWS – we will come back to that in a moment -- £250,000 in exchange for them getting you a letter of appointment as GSA for Air India? Have I correctly understood your evidence?
A. I understood that the total price that Ms. Gauri had given us was £2 million. Out of that £250,000 would be her fee. That was said to Mr. Nayyar and that is what I believed. That is my understanding.
Q. My understanding was that the work they were going to do for that fee was to get you the GSA?
A. My Lord, from day 1, everything to do with the application, everything to do in India, that needs to be done, that was the fee we were paying. She was asking for the fee for that much."
(3) Personal breach of duty by Ms Advani
The recoverability of the Claimants' losses