Martey Akita v The Governor and Company of the Bank of Ireland
| Jurisdiction | England & Wales |
| Judge | Mr Jason Coppel |
| Judgment Date | 18 October 2019 |
| Neutral Citation | [2019] EWHC 3783 (QB) |
| Docket Number | Case No: QB-2019-002171 |
| Date | 18 October 2019 |
| Court | Queen's Bench Division |
[2019] EWHC 3783 (QB)
IN THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jason Coppel QC
(Sitting as a Deputy Judge of the High Court)
Case No: QB-2019-002171
Mr Matthew Lee (instructed by ARKwrights Solicitors) appeared on behalf of the Claimants
Mr Daniel Shapiro QC (instructed by Foot Anstey LLP) appeared on behalf of the Defendant
THE DEPUTY JUDGE:
The claim
The Claimants in this claim, Josephine Asiedu and Marty Akita claim a declaration that the Defendant, the Bank of Ireland, (“the Bank”) has agreed that they may proceed to sell a portfolio of ten properties and to compromise in the sum of £183,000 judgment debts owed by the Claimants to the Bank, of in excess of £1m.
The claim has been brought pursuant to Part 8 CPR, originally in the Truro District Registry, which, as matters have turned out, is an unsuitable procedure because the claim raises significant issues of fact. In particular, the claim turns first and foremost on whether an agreement was reached between the Bank (acting by its solicitor, Mr William Russell of Messrs Foot Anstey) and the Claimants (acting by their advisor Simon Davidson, then of Messrs Currells) that a portfolio of ten properties owned by the Claimants but mortgaged to the Bank (“the portfolio”), could be sold for £2.35m (which is not in dispute) and (where the dispute lies) that of that £2.35m, £183,000 would be applied in full and final settlement of the Claimants' debt to the Bank.
In the course of the trial, I heard evidence from the Claimants themselves, Mr Akita via a sub-optimal video link to Ghana where he is receiving medical treatment, and from Mr Davidson and Mr David Jason, a conveyancing solicitor who acted for the Claimants on the sale of the portfolio. I also heard evidence on behalf of the Defendants from Mr Russell and Mr Benjamin May, his predecessor on this matter at Foot Anstey. An employee of the Bank, Ms Alexandra Larwin was prevented by illness from giving evidence and the Bank decided not to rely upon her witness statement; nor that of Mr Nicholas Loewendahl, also of Foot Anstey.
I have also considered documentary evidence in the form of a trial bundle which was problematic in a number of respects. Despite a limited order for disclosure having been made, the disclosure provided by the Claimants was presented in a highly unconventional format. Emails were cut out of email chains and presented as individual text documents or as composite parts of documents containing other communications which were not part of the same chain. This had the result that, deliberately or otherwise, there were emails missing which would have helped to interpret the emails which made it into the bundle. Also, attendance notes of Mr Jason were presented in text form when the originals were hand-written and were not presented. Mr Jason had not checked the text representation of his notes against the originals and there could be no certainty that the text was accurate. These are matters which could and should have been done differently and better by the Claimants and, to the extent that they had failed to do so, challenged by the Bank in advance of trial. The difficulties of piecing together the facts from the documents have been exacerbated by the fact that almost all of the relevant communications held by the Bank were subject to privilege, being communications with its solicitors at Foot Anstey, which was waived only in limited respects, a waiver which was not challenged by the Claimants in advance of the trial. Therefore, on the Bank's side also, there is no continuous chain of documents from which to work.
The facts
The facts of this case are a paradigm for the application of the now well-known guidance of Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) and Blue v Ashley [2017] EWHC 1928 (Comm). The events in question occurred in late 2015, almost four years ago. The witness statements before me were originally prepared as far back as October 2016 in some cases, some for the purposes of different proceedings. The key events were contained in one or a small number of telephone conversations just before Christmas 2015, which were not contemporaneously recorded and were not immediately minuted. The contents and ramifications of those telephone conversations are hotly disputed. In these circumstances, I follow the guidance given in §67 of Blue v Ashley that “ the best approach for a judge to adopt in the trial of a commercial case is to place little if any reliance 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”. In fact, as I explain below, the most important witness for the Claimants discredited his own recollection of the relevant events without it being necessary for the Defendant to rely for this on any of the propositions of psychology noted by Leggatt J.
The Claimants owned a significant number of buy-to-let properties in North London. The purchase of 17 of these properties was financed by the Bank, with loans totalling approximately £3m. Their investments did not fare well following the economic crisis which commenced in 2008 and they came to owe the Bank a substantial amount of money. On 21 November 2012, the Bank obtained three judgments against the Claimants totalling £1,046,582 with accruing interest.
On 7 May 2015, Ruthbridge, a firm of debt collectors engaged by the Bank made a series of offers to the Claimants to accept part payment in full satisfaction of amounts owed to the Bank under various mortgages. The total sought by Ruthbridge was £183,879. Each offer was said to be “valid” only if payment was made no later than 28 May 2015. I take this to mean that each offer was only open to acceptance by the payment of the required sum or on before 28 May 2015. Payment was not made by that date and the offers accordingly lapsed.
On 15 July 2015, there was a hearing in Truro, following which the Bank obtained an order for sale of six properties owned by the Claimants. There was a conversation between the Claimants and Ben May, who was acting for the Bank at that hearing, in which Mr May made clear that the offer of £183,000 in full and final settlement of the Claimants' debt to the Bank would not be repeated and that if the Claimants wished to propose a settlement that should be on the basis of the debt which remained after the six properties had been sold and the net proceeds paid to the Bank. Mr May said in evidence, and I have no reason to doubt, that he had been told by colleagues at Foot Anstey that Ruthbridge's offer, made at a time when Mr May was away on secondment, had been made without the authority of the Bank.
Although the Claimants sought subsequently to resurrect the prospect of settlement of the Claimants' debt at £183,000 (a rounding down of the total figure which had been demanded by Ruthbridge), Mr May did not agree. His consistent message to the Claimants that “that door has now closed” is recorded in an attendance note dated 18 November 2015 of a conversation between himself and Joy Okoye a direct access barrister who had been instructed by the Claimants. Mr May's view was that there was likely to be significantly more equity than that in the 10 properties and, in addition, the Bank had charges over at least nine other properties owned by the Claimants (although there were other parties with charges which may have taken priority over those of the Bank).
By this stage, the Claimants had commenced the process of selling the six properties which were the subject of the order for sale of 15 July 2015 and four other properties. Mr Davidson was instructed to market the properties and to persuade the Bank to agree to the sale price that he was able to negotiate. Ms Okoye's remit was to negotiate with the Bank both in order to seek its consent to sale and also to secure its agreement to accept £183,000 in settlement of the Claimants' debt.
There was a further telephone call between Mr May and Ms Okoye on 26 November, which Mr Russell also attended, at which the Claimants put their proposals that the portfolio be sold for £2.35m and that the Bank settle their debts for £183,000. I accept the evidence of Mr May and Mr Russell, reinforced by an email of Mr...
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