Euro Securities & Finance Ltd v Mr Stephen Barrett
| Jurisdiction | England & Wales |
| Judge | Tindal |
| Judgment Date | 11 January 2023 |
| Neutral Citation | [2023] EWHC 51 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2020-BHM-000067 |
[2023] EWHC 51 (Ch)
HIS HONOUR JUDGE Tindal
(sitting as a Judge of the High Court)
Case No: BL-2020-BHM-000067
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BIRMINGHAM
BUSINESS LIST (ChD)
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Mr J Aldis (instructed by Bell Lax Solicitors) for the Claimant
Mr S J Bradshaw (instructed by Clarkes Solicitors) for the Defendants
Hearing dates: 3 rd – 5 th and 11 th January 2023
Introduction, Issues and Evidence
This case raises interesting legal questions on the attestation (i.e. witnessing) of deeds. It is a preliminary issue in a claim by the Claimant lender whether the guarantee and indemnity of the Defendants they admit signing in September 2008 (‘the Guarantee’) was validly attested for s.1 Law of Property (Miscellaneous Provisions) Act 1989 (‘LPMPA’). If the Guarantee was validly attested as a deed, the Claimant's claim in August 2020 would be a ‘claim on a specialty’ under s.8 Limitation Act 1980 (‘LA’) with a limitation period of 12 years, so in time. If not validly attested, the limitation period would be 6 years and the claim out of time unless extended under ss.29–30 LA.
The Claimant's Particulars of Claim dated 23 rd November 2020 claimed a total of £384,477 plus costs stemming from two different loans and a guarantee each arranged by Mr Weatherer, who was both the Defendants' accountant and the Claimant's sole director (although the Defendants' knowledge of that is disputed).
2.1 The first loan was the Claimant's loan to the Defendants themselves in September 2003 of €190,000 as partners to purchase a property in Bulgaria (‘the Partners’ Loan’), of which the equivalent of £140,967 was outstanding in June 2020. At ps.14–17, 20–23 and ps.27(a) of the Particulars, the Claimant contended the limitation period originally expired in 2010 but was extended by part-payments from 2007 and acknowledgements from 2011–7.
2.2 The second loan was to the Defendants' Limited Liability Partnership, Rhombus Properties LLP (‘Rhombus’) in September 2008 of £100,000 (the ‘Rhombus Loan’). With interest, £240,986 was outstanding in June 2020.
2.3 The Particulars further contended that by the Guarantee, the Defendants guaranteed and indemnified the Claimant against the Rhombus Loan. The Claimant contended at ps.7–11, 26 and 27(c) of the Particulars that the Guarantee was valid as a deed or in the alternative the Defendants were estopped from denying its validity and so accordingly there was a limitation period of 12 years. In the alternative, the Particulars at p.27(b) contended that if the Guarantee was not a deed and had an original imitation period of 6 years, that was also extended by the acknowledgments from 2011.
The Particulars contended that liability under both loans was only denied in 2020.
The Defendants' Defence dated 4 th June 2021 denied the claims. It partly just put the Claimant to proof: over its entitlement to sue over its identity as a Company registered in Delaware USA and over the amounts owing, but it also raised limitation defences:
3.1 As to the Partners' Loan, the Defence at ps.14–15 and 19–21 stated it was limitation-barred from April 2014 on the basis the alleged ‘acknowledgments’ of debt from 2011 onwards from the Defendants to Mr Weatherer were in ignorance of his status as the Claimant's director and were sent to him in capacity as the Defendants' and Rhombus' accountant.
3.2 As to the Rhombus Loan, the Defence at ps.19(b)-(c) and 21–22 stated it was limitation-barred from September 2015 on the same basis.
3.3 As to the Guarantee, the Defence at ps.6–8, admitted that each of the Defendants signed the Guarantee but stated they otherwise could not recall whether they signed in each other's presence or in the presence of the witness, Ms Money and denied it was properly attested as a deed. At p.18 of the Defence, the Defendants denied estoppel assisted the Claimant and at p.23, the contended the limitation period on it expired in September 2015.
At the CCMC on 9 th December 2021, DJ Rouine listed these two preliminary issues:
(i) Whether the Guarantee dated 18 th September 2008 was properly executed as a deed and whether it takes effect as a guarantee of the Rhombus Agreement as alleged by the Claimant at ps 7–11 Particulars of Claim.
(ii) Whether the Defendants are estopped from denying validity of the Guarantee as a deed as alleged by the Claimant at p.26 Particulars of Claim.
Accordingly, DJ Rouine's order focussed purely on the validity of the Guarantee as a deed i.e. (i) whether the formalities of s.1 LPMPA were complied with; and (ii) whether the Defendants were estopped from denying it. That order left for trial the wider factual questions of the Claimant's standing, acknowledgements on the Partners' Loan and Rhombus Loan, including the Defendants' awareness of Mr Weatherer's link to the Claimant. The trial of those two preliminary issues was listed before me on 3 rd January 2023 and at the PTR before me on 2 nd November 2022, whilst I permitted a further statement from Mr Weatherer on another point, there was no suggestion the preliminary issue trial should be widened to encompass the Defendants' awareness of Mr Weatherer's link to the Claimant, which is strongly factually contested.
Therefore, I accept it would have come as some surprise to the Claimant's Counsel Mr Aldis to see the Skeleton Argument from the Defendants' Counsel Mr Bradshaw allege Mr Weatherer owed the Defendants fiduciary duties for the loans (which had not been pleaded) but had concealed his connection and sole directorship of the Claimant. This was not suggested to be a free-standing allegation of breach of duty, but rather that Mr Weatherer does not ‘Come to Equity with Clean Hands’ and so the Claimant could not rely on estoppel; or to put it another way, the Defendants were not estopped from denying the validity as a deed of the Guarantee, as their denial would not be ‘unconscionable’ for that reason. When Mr Aldis objected at the start of trial that adjudicating this unpleaded allegation of breach of fiduciary duty by Mr Weatherer strayed outside the scope of the preliminary issue, Mr Bradshaw replied the allegation was an intrinsic aspect of the Claimant's estoppel argument and could not be separated from it. Sympathetic to the points made by both Counsel, I suggested unless they could agree a way of adjudicating the point, I would have to defer the whole estoppel issue until trial. But I suggested a compromise could be to limit the question to a factual one of whether Mr Weatherer deliberately concealed his connection to the Claimant from the Defendants. Counsel helpfully agreed I could adjudicate whether Mr Weatherer deliberately concealed from the Defendants his role as director and/or agent of the Claimant. In examining this, some findings relevant to the Defendants' knowledge of his role are inevitable, but it at least avoided the fiduciary duty allegation. Yet whether Mr Weatherer was legally an ‘agent’ of the Claimant is key to the acknowledgment issue that was reserved to trial. So, I will substitute the more neutral and factual term ‘representative’, which does not detract from the Defendants' unconscionability point.
Accordingly at this stage the following issues arise, flowing from s.1(3)(a)(i) LPMPA:
“An instrument is validly executed as a deed by an individual if, and only if— (a) it is signed (i) by him in the presence of a witness who attests the signature..”
I will sub-divide two separate issues which were rolled together into DJ Rouine's first ‘formality’ issue; and include that Mr Weatherer question as part of the estoppel issue:
6.1 Did all the Defendants sign the Guarantee ‘in the presence of a witness’?
6.2 Did that witness ‘attest the signature’ on the Guarantee of all of the Defendants?
6.3 If either answer is ‘no’, are the Defendants estopped from denying the Guarantee was executed validly as a deed (whether or not Mr Weatherer deliberately concealed from them his role as the Claimant's director and/or representative)?
Central to this case are the witnesses' recollections of events many years ago. This subject has been the topic of considerable judicial attention in recent years:
7.1 As is now commonly done, both Counsel referred me to the observations of Leggatt J (as he then was) in Gestmin v Credit Suisse [2013] EWHC 3560 at p.22:
“…. [T]he best approach for a judge to adopt in the trial of a commercial case is…to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely… in the opportunity cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all it is important to avoid the fallacy of supposing because a witness has confidence in his or her recollection and is honest, evidence based on recollection provides any reliable guide to the truth.”
(I note Lord Leggatt (as he now is) recently returned to the topic of witness reliability and demeanour in his recent lecture ‘Would You Believe It?’ https://www.supremecourt.uk/docs/at-a-glance-keynote-address-lord-leggatt.pdf)
7.2 Simetra v Ikon [2019] 4 WLR 112 (CA) did not refer to Gestmin, but it was another commercial case and Males LJ made related observations at ps.48–49:
“48….I would say something about the...
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