Cassell and another v R
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hughes |
| Judgment Date | 04 July 2016 |
| Neutral Citation | [2016] UKPC 19 |
| Date | 04 July 2016 |
| Docket Number | Appeal No 0056 of 2013 |
| Court | Privy Council |
[2016] UKPC 19
Lord Mance
Lord Kerr
Lord Reed
Lord Hughes
Lord Toulson
Appeal No 0056 of 2013
Privy Council
From the Court of Appeal of the Eastern Caribbean Supreme Court (Montserrat)
Appellants
Thomas Roe QC David Dorsett PhD
(Instructed by Collyer Bristow LLP)
Respondent
Peter Knox QC Oris Sullivan Director of Public Prosecutions
(Instructed by Charles Russell Speechlys LLP)
Heard on 8 June 2016
The first appellant, Warren Cassell ("Cassell"), was at all material times practising as a lawyer in Montserrat. He was convicted, together with the second appellant, a company owned and controlled by him, of counts of conspiracy to defraud, procuring the execution of valuable securities by deception, and money laundering. In the Court of Appeal, the appeals were dismissed except for that relating to money laundering, where the charge had been laid under the wrong statute. Both appellants appeal further against the other convictions. The grounds argued on their behalf by Mr Thomas Roe QC differ radically from those advanced before the Court of Appeal. The Court of Appeal had no opportunity to consider the case as now put to the Board.
In about 2007 Cassell became interested in development land in Montserrat which belonged to a company called Providence Estate Ltd ("PEL"). PEL was a close company wholly owned by two American developers, Messrs Wood (60%) and Rooney (40%), neither of whom lived in Montserrat. Those two gentlemen were the sole directors and shareholders. The land had been acquired by PEL some years previously, before the volcano disaster of 1995, after which it had lain undeveloped and the company had become dormant. Cassell set about acquiring control and selling off the plots of land. He formed the close company which was the second appellant ("C&L Inc") as a vehicle to do so. The indictment alleged that he and, through him, C&L Inc, had gone about this plan dishonestly in two principal ways:
(i) Cassell had dealt only with Wood, and, with the dishonest object of cutting out Rooney, or at least of depriving him of any participation and of presenting him with a fait accompli, had proceeded to act as if he had the legal right to deal with PEL's land; this allegation gave rise to two counts of conspiracy to defraud Rooney;
(ii) he had purported to sell plots of land, in the name of PEL, to innocent purchasers when he had no lawful authority to act for PEL and could not, in consequence, give them the title which they thought they were getting; the proceeds of sale were at his request paid to C&L Inc; this allegation gave rise to a series of counts of procuring the execution of valuable securities (chiefly deposits and balances of the purchase price) by deception.
The Crown evidence was uncontradicted and indeed very largely unchallenged at the trial. Cassell did not give evidence and neither defendant called any. Cassell made a relatively brief unsworn statement from the dock. The following essential facts were therefore not disputed.
Cassell's interest in the development land was afoot by at least January 2007. On 28 January 2007 he made an attempt to contact Rooney, and spoke to the latter's brother, who lived in Fairfax, Virginia. He told the brother that he wanted to discuss buying land from Rooney. The brother promised to put Rooney in touch with Cassell. Either when he heard of the enquiry or a little later in the year when he learned that the PEL land was being offered for sale, Rooney, then living in California, made contact with Cassell via his own Montserrat lawyer, Mr Sergeant.
In or before July 2007 Cassell arranged to offer the PEL land for sale through a local estate agent. On 24 July he arranged for C&L Inc to be formed. On 30 July, in a transaction with Wood alone, C&L Inc received the transfer of Wood's shares in PEL, for the sum of EC $810,000. By then the first sale of a parcel of the land must have been well advanced, because a formal agreement for it was made two days later on 1 August 2007. That sale, like others to follow, purported to be made by PEL and Cassell signed the agreement purporting to be its director.
The transfer of Wood's shares to C&L Inc was contrary to article 14(b) of the Articles of Association of PEL, which provided that other shareholder(s), here Rooney, had a right of pre-emption. The same article proscribed the holding of shares in PEL by any person engaged in business in competition with it. There had been a change of company legislation in 2000, and the new Act contained transitional provisions for companies to lodge a certificate continuing in effect the existing articles of association. In the absence of such a certificate, and there had been none in the case of PEL since it was dormant, the Act provided for continuance on the basis of specimen articles. Those specimen articles did not contain the right of pre-emption which PEL had had in article 14(b). But a separate provision of the new statute preserved rights attached to issued shares, which plainly included the right of pre-emption. Thus Rooney's right of pre-emption survived and was ignored by Wood and Cassell in effecting the transfer of Wood's shares to C&L Inc. The judge correctly so ruled.
Rooney's Montserrat lawyer, Mr Sergeant, contacted Cassell at the latest in July 2007. He explained that Rooney owned a 40% interest, and was a director, and that he wanted to know why PEL's land was being offered for sale. He was told that Wood had transferred his shares. After this meeting, Cassell contacted Mr Sergeant with a series of offers to buy Rooney's interest. Some of those offers were made in writing in a letter of 7 September 2007. In that letter, Cassell asserted that when "I" (sic) had bought Wood's shares the latter had said that Rooney was either dead or avoiding him, although that assertion was scarcely consistent with Cassell's having opened contact with Rooney via his brother some eight months earlier in January. A further letter of open offer was written by Cassell on 14 September 2007. Rooney did not accept any of these offers. On 19 September 2007, acting through a different firm of Montserrat lawyers, Cassell made a claim on Rooney in the name of PEL for money which he alleged was owing from dealings between Wood and Rooney in or about 1990. That also did not induce Rooney to sell his interest.
As a matter of law PEL, which had been dormant for years, no longer existed. It had been struck off the companies register as long ago as 4 September 2001. Plainly, at some stage this became apparent to Cassell and in some haste he made an application to the registrar on 9 August 2007 for administrative restoration to the register. In that application he stated that he was the sole director of PEL, although in fact the directors remained Wood and Rooney, and Cassell had not, even if it had been possible, taken any steps to become one. That initial application to the registrar was followed by a further one, made to the court on 4 September 2007, also as a matter of urgency and during the vacation. It was accompanied by his affidavit, in which he swore that he was "the de facto applicant" and an intended director of PEL. The affidavit disclosed the existence of Wood as "a former director, founder and CEO" of PEL, and it recited the transfer of his shares to C&L Inc. But it made no reference at all to the existence of Rooney nor did it disclose that there was any other shareholder. It went on to assert that PEL had urgent business to attend to and that it was in the process of dealing with real properties which it owned. In due course, on 21 September Cassell filed a further affidavit in support from Wood. That described Wood as a director, founder and former shareholder in PEL and recited the transfer of his shares to C&L Inc. That also made no reference at all to Rooney or to the existence of any other shareholder. The statutory basis for that application was section 483(6) of the Companies Act 1998, which permitted it to be made by the company, or any member or creditor.
The application to restore PEL to the register was successful on 21 September. On that same date, three further transfers from PEL to buyers of plots of the development land were executed, all signed by Cassell purporting to do so as a director of PEL. Two more similar transfers to buyers followed in October, and three further ones in the first five months of 2008, all of them similarly signed. The various transfers were registered with the Land Registry from time to time, beginning on 30 October 2007. Rooney was not told of any of these sales, still less did he take part in them, although later he learned of all or some of them. In every case, Cassell arranged for the purchase monies to be paid to C&L Inc.
Until 21 September, the day of restoration of PEL to the companies register, there was no question of Cassell having an even colourable claim to be a director of that company. Three days after restoration, on 24 September, he filed at the Registry a notice of change of directors. This form of notice was a bare pro forma indicating that Wood and Rooney had both ceased to be directors and that Cassell had been appointed such. The date given for these changes was 21 September.
Later, in November, the Registrar notified Cassell that he ought to have filed a copy of the resolution of the company by which these changes had been effected. In response, Cassell sent to the Registry in the first week of December a document purporting to be a PEL company resolution dated 21 September. This document was central to the case against the appellants. It had a number of important features:
(i) it was signed by Meredith Lynch, who was a young lady known to Cassell and acting at his direction; she described...
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