Goldsmith Williams (A Firm) v Travellers Insurance Company Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE WYN WILLIAMS,Mr Justice Wyn Williams |
| Judgment Date | 26 January 2010 |
| Neutral Citation | [2010] EWHC 26 (QB) |
| Docket Number | Case No: HQ08X03396 |
| Court | Queen's Bench Division |
| Date | 26 January 2010 |
[2010] EWHC 26 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: Mr Justice Wyn Williams
Case No: HQ08X03396
Mr Nigel Tozzi QC (instructed by Hill Dickinson LLP) for the claimant
Mr Justin Fenwick QC and Mr Hugh Evans (instructed by Barlow Lyde & Gilbert) for the defendant
Hearing dates: 1–3 December 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Wyn Williams:
Introduction
In these proceedings the Claimant claims from the Defendant the sum of £671,623.89 together with interest. The claim is brought against the Defendant under the Third Parties (Rights Against Insurers) Act 1930. It arises in consequence of the following sequence of events.
At all times material to this action Joshua & Usman Legal Services Limited (hereinafter referred to as “JULS”) traded as Joshua & Usman Solicitors. JULS was a “recognised body” within the terms of section 9 of the Administration of Justice Act 1985. The directors of JULS were Ogheneovo Joshua Atikpakpa (referred to hereinafter as “Mr Atikpakpa”) and Iraida Usman (referred to hereinafter as “Ms Usman”). Ms Usman was admitted as a solicitor in 1993. She engaged in private practice for some time in the 1990s using her surname as the name of a firm; in the 1990s she also worked at a Law Centre. Mr. Atikpakpa was admitted in 1998. The firm of solicitors called Joshua & Usman came into being some time prior to 1999; it seems to have taken its name after Ms Usman's private practice was acquired and she returned to work at a Law Centre. For some of the time after which the firm came into existence Mr Atikpakpa was its sole principal. In November 1999 Ms Usman joined the firm. She was then employed as an associate solicitor. In September 2000 Ms Usman became a salaried partner along with two other persons, Caroline Arogundade and Vivienne Phillips.
On 25 January 2001 JULS was incorporated. There is some suggestion in parts of the evidence that at its date of incorporation JULS had three directors, namely, Mr Atikpakpa, Ms Usman and Caroline Arogundade. However this claim has proceeded on the basis that at the material time the directors of JULS were Mr Atikpakpa and Ms Usman. As well as being a director Ms Usman was also an employee of JULS.
Mr Atikpakpa and Ms Usman were linked by family as well as profession. In the period with which I am concerned Mr Atikpakpa was married to Ms Usman's sister, Enyote.
There is one further relevant family relationship which it is convenient to mention at this stage. Ms Usman has a nephew – a man by the name of Victor Okporuah (hereinafter referred to as “Mr Okporuah”). As will become apparent, both Mr. Okporuah and Ms Usman have asserted that Mr Okporuah was an employee of JULS.
For the year commencing 1 October 2002 the Defendant provided professional indemnity insurance for JULS. Under the terms of the policy of insurance issued by the Defendant it agreed to indemnify JULS against “civil liability to the extent that it arises from Private Legal Practice in connection with the Firm's Practice, provided that a claim in respect of such liability is first made against [JULS] during the Period of Insurance or during or after the Period of Insurance and arising from a Circumstance first notified to the [Defendant] during the Period of Insurance” (clause 1 of the policy under the heading “Scope of Cover”) see TB 2 page 89.008. The policy defined the word circumstance to mean “an incident, occurrence, fact, matter, act or omission which may give rise to a Claim in respect of civil liability”; the word claim was defined to mean “a demand for, or an assertion of a right to, civil compensation or civil damages or an intimation of an intention to seek such compensation or damages.”
On 2 November 2001 Mr Atikpakpa applied to Mortgages Plc for a loan of £541,579.70. He applied for the loan ostensibly so that he could purchase the property known as 5 Montague Pace Poplar E14 with a view, thereafter, to letting it. The loan was to be secured by a mortgage over the property. In the application form submitted to Mortgages Plc Mr. Atikpakpa represented that he owned 80% of the shares in JULS; he also stated that the balance of the proposed purchase price (then approximately £155,000) was to be provided from his savings. It is common ground (or, if not, incontrovertible) that both those statements were false. On 29 November 2001 a subsidiary of Mortgages plc, Mortgages 5, offered to lend Mr. Atikpaka the sum of £532, 973 in order to facilitate his purchase of the property at a price of £650,000. Mr. Atikpakpa accepted the offer. Mortgages 5 instructed the Claimant to act in relation to the proposed transaction; Mr Atikpakpa instructed JULS to act on his behalf.
As I understand it, a solicitor by the name of Anne Coombs handled the transaction within JULS.
On 19 December 2001 Ms Coombs faxed to the Claimant a copy of the draft agreement for the purchase of 5 Montague Place. She asked for confirmation from the Claimant that the loan would be released on 20 December. That request was refused. The Claimant informed Ms Coombs that it needed sight of all the contractual documentation so that it could investigate title and report to Mortgages 5. The next day substantial documentation was provided to the Claimant. Under cover of a letter dated 27 December 2001 Ms Coombs sent to the Claimant a document headed “BOND TO LET ACCOUNT ASSIGNMENT.” The content of the document is not important. Its importance is that it was signed by Mr. Atikpakpa and his signature was witnessed by Ms Usman. On 28 December 2001 the Claimant sought a certified copy of Mr. Atikpakpa's passport or driving licence. On 2 January 2002 Ms Coombs sent the Claimant a certified copy of his passport. The copy document was certified by Ms Usman.
On 7 January 2002 the Claimant transferred to JULS the sum of £507,941.32 in anticipation of the completion of the purchase by Mr Atikpakpa of 5 Montague Place. However, Mr Atikpakpa did not purchase 5 Montague Place. Rather, he stole the sum of £507,941.32.
In late 2001 Mrs Enyote Atikpakpa (hereinafter referred to as “Mrs Atikpakpa”) had also applied for a loan from the same lender. It is common ground that the loan was to facilitate the purchase by Mrs. Atikpakpa of the premises known as 42 Tulse Hill, London SW2. In late 2001 those premises were owned by Mr. Atikpakpa. The application form which was submitted to Mortgages 5 in support of the application for the loan is not before me. I understand that Mortgages 5 cannot produce the document. There is, therefore, no means of knowing whether the application form contained information which was false.
On 14 January 2002 Mortgages 5 made an offer to Mrs. Atikpakpa to loan her the sum of £152,880 to facilitate her purchase of 42 Tulse Hill. Mrs. Atikpaka appointed a firm of solicitors known as Anthony & Roberts to act for her. Mortgages 5 appointed the Claimant; Mr. Atikpakpa in his capacity as vendor appointed JULS. This proposed transaction was handled at JULS by a solicitor named Sonia Clark. In the ensuing few weeks the solicitors exchanged correspondence and provided necessary documentation. On 5 February 2002 Anthony & Roberts sent the Claimant a document entitled “Confirmation Form” in which appeared the following
“The seller is my husband and I confirm that the transaction is at arms length.”
On 14 February 2002 Mortgages 5 released the sum of £143, 313.30 to the Claimant to be used for the purchase of 42 Tulse Hill by Mrs Atikpakpa. On the same day the Claimant transferred the sum of £143,019.30 to Anthony & Roberts. On 15 February 2002 Anthony & Roberts transferred the sum of £143,019.30 to JULS. However the transaction between Mr & Mrs Atikpakpa was never completed. Mr Atikpakpa stole the money which had been transferred to JULS.
In the Skeleton Argument on behalf of the Defendant the assertion is made that Ms Usman facilitated this transaction by witnessing Mrs Atikpakpa's signature on a “BOND TO LET ACCOUNT ASSIGNMENT” and by certifying a copy of Mr. Atikpakpa's passport (see paragraph 49). In fact the references provided to support this submission relate not to the purchase of 42 Tulse Hill but to 5 Montague Place. It is correct that Mrs Atikpakpa signed a bond to let account assignment on or about 1 February 2002. However, her signature on that document was witnessed by a solicitor whose name appears to be Otu Iban (see TB 2 page 186). Further, I have been unable to trace any evidence which shows that Ms Usman certified a copy of Mr. Atikpakpa's passport in connection with this transaction.
It seems to me, therefore, that Ms Usman did nothing to facilitate the proposed purchase of 42 Tulse Hill by Mrs. Atikpakpa.
On or about 7 November 2002 the Claimant referred the conduct of JULS to the Office of the Supervision of Solicitors. This followed increasingly urgent requests for information from the Claimant to JULS concerning what had happened in relation to the two transactions. On or about 5 February 2003 the Law Society intervened in the affairs of JULS. The Society appointed a firm of solicitors known as Russell Cooke to act as its agent. At some stage thereafter, Mr. Atikpakpa left the United Kingdom for Nigeria. In September 2003 Ms Usman moved to Egypt. On or about 29 October 2003 disciplinary proceedings were instituted by the Law Society against Mr. Atikpakpa, Ms Usman and JULS.
On 4 November 2003 JULS was struck off the Register of Companies. On 3 August 2004...
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