Caws & Ors v Boyce & Ors [2007] EWHC 691 (Ch)

[2007] EWHC 691 (Ch)Case No HC03C03401
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 March 2007
Before
THE HONOURABLE MR JUSTICE HENDERSON
Between
(1) JACQUELINE CAWSClaimants(2) SHIRLEY CAWSClaimant(3) DAVID DUFFClaimant(1) BARRY BOYCEDefendants(2) NICOLA HOAREDefendant(3) B M SAMUEL GROUP LTDDefendant(4) GARY MACNEILLDefendant
The Claimants (represented by the third Claimant, Mr David Duff) in person for in personMr William Moffett (instructed by Chambers Rutland & Crauford) for 1st DefendantMr Keith Myers (instructed by Davies Simmons) for 2nd DefendantThe 4 th Defendant in person for in personHearing Hearing dates: 9,13,14,15,19,20 February and 1,2 and 6 March 2007
Judgment

Introduction and Background

[1]This is a strange and disquieting case, in which lurid accusations of fraud and criminal misconduct are common currency, two of the protagonists (the third claimant David Duff and the fourth defendant Gary MacNeill) have at various times been convicted and imprisoned for serious criminal offences, and a third (the first claimant, Jacqueline Caws) is a self-confessed mortgage fraudster. To try to work out where the truth lies has been a challenging, and at times an impossible, task.[2]The action centres on a small plot of land in north London, which at the time when the story begins in 1995 was a vacant and derelict bomb-site at the junction of Hadley Green Road and East View at Monken Hadley in the Borough of Barnet. The registered proprietors of the land were a Mr and Mrs Alan Dunn who lived in the adjoining property known as The Grange. The plot was described in the Property Register of Title No: NGL 411523 as “land at the side of The Grange, Hadley Green Road, Monken Hadley”. It was large enough for a small dwelling house to be constructed on it, but without room for a garden of any appreciable size. However, the planning history of the site was then unknown, and it was in any event subject to a restrictive covenant requiring it to be used “for garden purposes only”. I shall refer to this parcel of land as “the Plot”. As will appear, it has subsequently been developed and is now the site of a three-bedroomed detached property known as the Old School House.[3]In July 1995 the Dunns agreed to sell the Plot to the first claimant (whom I shall call “Miss Caws”) for £10,000, with an additional £5,000 payable if planning permission were obtained for the erection of a residential dwelling thereon. Miss Caws paid the deposit of £1,000, and the sale was completed on 1 August 1995. It is now common ground that the balance of the purchase price was paid by Miss Caws’ uncle by marriage, who coincidentally shared her surname, Mr H J (“Jim”) Caws. The solicitor who acted for Miss Caws on the purchase was Mr Michael Gordon of Gordon Shine & Co, a small firm with an office in Kensal Rise.[4]At the time of the purchase of the Plot, Miss Caws was in a relationship with the fourth defendant, Gary MacNeill (“Mr MacNeill”). The relationship had begun in 1993, and in November of that year they had purchased a house at 8 West End Lane, Barnet, as a home for them and the child they were expecting. They moved into 8 West End Lane in early 1994, and their daughter Georgina was born on 11 June 1994. 8 West End Lane was purchased in the sole name of Miss Caws, but she said in evidence that she regarded it as joint property.[5]Mr MacNeill had a garage business, but in June 1995 his garage burnt down overnight in mysterious circumstances. From then onwards he had no legitimate business but continued to be engaged in various criminal activities, including drug dealing. He was also a drug addict himself, with a serious addiction to cocaine. In the course of those activities he associated with dangerous and violent criminals, including (according to Miss Caws) the notorious Adams family and (according to Mr MacNeill himself) a different, but equally dangerous, gang of three brothers. There is no doubt, to my mind, that one way or another Mr MacNeill was closely involved with highly dangerous and organised criminals who would stop at nothing to achieve their ends.[6]In July 1995, while the sale of the Plot to Miss Caws was in progress, her father died suddenly at his home in the Isle of Wight. His widow, and Miss Caws’ mother, is the second claimant Shirley Caws. To avoid confusion, I shall refer to her as Mrs Shirley Caws. In November 1995 Mr MacNeill, Miss Caws and Georgina moved to the Isle of Wight to live with Mrs Shirley Caws, who had no children apart from Miss Caws.[7]The next important development was in 1998 when Mr MacNeill was convicted at St Albans Crown Court of possession of a large quantity of cannabis contained in a van which he had crashed into a wall. He was sentenced to four years’ imprisonment, and initially served his sentence at HMP Woodhill. He was later moved to less high security prisons, including Ford open prison, and from about February 1999 he served time on a day-release programme.[8]While Mr MacNeill was in prison, his affairs were at least to some extent looked after by his step-father, Mr Barry Boyce (“Mr Boyce”), who is the first defendant. Mr Boyce also lived in the Isle of Wight, with his wife Kathleen, at a property known as Barge Lane, Wootton Bridge, where they had built a house. He also owned another property at 22 Green Street in Ryde.[9]Having briefly set the scene, I can now describe the main allegation in the present action. It is, in short, that Mr Boyce and Mr MacNeill together wrongfully forced Miss Caws to transfer the Plot to Mr Boyce for no consideration, so that he could then in turn transfer it to the second defendant, a Miss Nicola Hoare (“Miss Hoare”). It is alleged that Mr Boyce and Mr MacNeill forced Miss Caws to do this by transmitting to her various threats emanating ultimately from the Adams family, to the effect that if the Plot and certain other properties on a list held by Mr Boyce were not handed over or sold, then Miss Caws and members of her family, including in particular her mother and her young daughter, would be at risk of serious injury or even death. It is alleged that the properties on the list included 8 West End Lane and Mr Boyce’s own home at Barge Lane, as well as the Plot. It is said that the threats were first relayed to Miss Caws in about May 1998, when she and her mother visited Mr Boyce at Barge Lane. They were then repeated on various occasions between May and September 1998, by Mr Boyce when Miss Caws visited him at 22 Green Street (after Barge Lane had been sold) and by both Mr MacNeill and Mr Boyce during Miss Caws’ weekly visits to Mr MacNeill at Woodhill prison, on which she was often accompanied by Mr Boyce and his wife.[10]According to paragraph 2(c) of the Re-re-Amended Particulars of Claim (which are not dated, but seem to have been served sometime in 2005):
“On each and every occasion that [Mr Boyce and Miss Caws] visited [Mr MacNeill] in prison the subject matter of transferring [the Plot] was discussed and on each and every occasion [Mr Boyce and Mr MacNeill] together would tell [Miss Caws] that she should comply exactly with the directions of [Mr Boyce] or she would be putting herself and her family at immediate risk. [Miss Caws] was told that “the boys” could hire an assassin for as little as £800 who would come from central Europe, commit a murder and be gone without a trace. On two occasions [Miss Caws] was told “the boys” in particular had a habit of kidnapping children and on another occasion was told that [Mr Boyce’s] wife had received a wreath delivered to her home as a warning.”
[11]Although the case is pleaded on the basis that the transfer of the Plot was procured by “bad faith, duress and undue influence”, the particulars given in paragraph 2 of the Re-re-Amended Particulars of Claim show that the nub of the claim is duress, i.e. that Miss Caws was forced against her will to hand over the Plot for no consideration by grave threats of physical harm or even death to herself and her family. However, it is important to note that it is not alleged that either Mr Boyce or Mr MacNeill were themselves the authors of these threats. What is said is merely that they were passing on threats being made to them by criminal associates of Mr MacNeill.[12]There is also an alternative claim, set out in paragraph 3 of the Re-re-Amended Particulars of Claim, that Mr Boyce and Mr MacNeill made fraudulent misrepresentations to Miss Caws to obtain a transfer of the Plot. As I understand it, this alternative allegation was made after an application by the claimants for summary judgment against Mr Boyce and Miss Hoare (who were at that stage the only defendants) had been rejected by Mr Justice Lewison on 1 November 2004. I am told that the learned Judge pointed out, obviously correctly, that if neither Mr Boyce nor Miss Hoare was alleged to be the author of the threats, no direct claim in duress could lie against them. The purpose of the alternative allegation, as I understand it, was to found a direct claim against Mr Boyce and Mr MacNeill if the Court were to take the view that the alleged threats were in fact non-existent and had been fabricated by them as a means of inducing Miss Caws to part with the Plot. I observe that this alternative allegation is on the face of it a most implausible one, given that in 1998 the relationship between Miss Caws and Mr MacNeill was still continuing, they had a young child, and the relationship was indeed to last until early in 2003. On the face of it there is absolutely no reason why Mr MacNeill and his step-father should have conspired together to deceive Miss Caws into parting with the Plot by concocting a story of non-existent threats from third parties. In her oral evidence Miss Caws, unsurprisingly, confirmed that this is not what she is alleging, so this alternative way of putting the case can for practical purposes be disregarded.[13]I should add that the claimants have at all times been litigants in person. However, this bald statement needs considerable amplification and an explanation of the role of the third claimant, Mr David Duff. Mr Duff is a former solicitor who was convicted of mortgage fraud in August 1993 and sentenced to two years’ imprisonment. He was subsequently struck off the roll of solicitors on 9 August 1994, following a hearing before the Solicitors’ Disciplinary Tribunal. The facts found by the Tribunal in the report of its findings dated 3 October 1994 included the following. Mr Duff had been admitted a solicitor in 1981, and had practised initially as a partner and then as a sole practitioner in the firm of Phelps & Lawrence in Swindon. He had been involved in a series of mortgage frauds between 1988 and 1991. The matters had been complex and large sums of money had been involved. A very large sum of money had been paid out of the Law Society’s Compensation Fund, the figure at the date of the hearing being in the region of £1,800,080. The frauds had been perpetrated with the assistance of two clerks employed by the firm. On 8 July 1993 Mr Duff had been convicted at Winchester Crown Court of four offences of obtaining property by deception and three offences of theft, and on 6 August 1993 he was sentenced to a total of two years’ imprisonment in respect of those offences. He appealed to the Court of Appeal against his conviction, but his appeal was dismissed on 14 June 1994.[14]Mr Duff first appeared on the scene in the context of the present case at around the start of 2002, after Mr MacNeill had been arrested in November 2001 for further drug offences and for illegal possession of a fire-arm and ammunition. In due course Mr MacNeill was convicted of those offences and sentenced to a further term of three years’ imprisonment at Swindon Crown Court on 20 March 2002. The introduction to Mr Duff came through a dangerous criminal, a Mr Andy Baker, who had offered to protect Miss Caws and her family after Mr MacNeill’s arrest in return for a payment of £30,000. Mr Baker had the same solicitor as Mr MacNeill, a Miss Rifat Chowdhury of Bark & Co, and it was he who suggested to Miss Caws that she should talk to Mr Duff. Mr Duff was pleased to assist. He took the view that the interests of Miss Caws were not being properly represented, and in disagreement with Miss Chowdhury thought that she should be represented separately from Mr MacNeill in the context of the pending prosecution of Mr MacNeill and threatened confiscation proceedings against him. Mr Duff began to busy himself on Miss Caws’ behalf, and by early 2003 he had become her partner in place of Mr MacNeill, who was of course in prison at the time. Their relationship continues to this day.[15]I have no doubt that the present proceedings have been masterminded from the beginning by Mr Duff, who has seen in them an opportunity to regain the Plot or its net proceeds of sale for the benefit of Miss Caws and himself. He has drafted all of the statements of case and witness statements relied upon by the claimants, and he has himself acquired a one third stake in the action under a deed of assignment dated 18 August 2004 and said to be made pursuant to an earlier agreement of 29 September 2003, that being the date on which the present action was commenced by a claim form under CPR Part 8 issued in the Chancery Division of the High Court. The earlier agreement is on its face dated 29 September 2003 and made between Miss Caws and Mrs Shirley Caws (1) and Mr Duff (2). It recites that Miss Caws and her mother are the owners of certain legal rights, choses in action and claims arising out of and concerned with the disposal of the Plot, and also in respect of a banker’s draft for £45,000. It goes on to recite that Miss Caws and her mother are desirous of assigning those rights to themselves and Mr Duff upon the terms then set out. Clause 1 then contains an agreement to assign the rights to themselves and Mr Duff in equal shares, in consideration of £50,000 to be paid by Mr Duff. Clause 2 refers to the issue of the present proceedings, and states that Miss Caws and her mother had taken this step “on behalf of themselves and Mr Duff”. By Clause 3 Mr Duff agreed to assist them in respect of the litigation “as he sees fit and at his absolute discretion including undertaking research and obtaining advice where applicable”. By Clause 4 Miss Caws and her mother agreed to enter into a deed of assignment giving effect to the terms of the agreement.[16]I have the gravest doubts whether the agreement of 29 September 2003 was in fact made on the date which it purports to bear. I say this partly because of Mr Duff’s predilection for back-dating legal documents, to which I will need to return in the context of certain so-called Deeds of Trust, but also because I would expect him to have been named as a co-claimant when the action was started on 29 September 2003 if an agreement had indeed been made between the three of them on or before that day. It seems to me much more likely that the agreement was in fact made at or about the same time as the deed of assignment itself in August 2004. However, what matters for present purposes is that Mr Duff evidently persuaded Miss Caws and her mother at an early stage to let him take over the conduct of the action on their behalf, and this is what he has done, appearing for them (with the permission of the Court) at the numerous interim hearings which have taken place, and also at the hearing before me (when it was the clearly expressed wish of Miss Caws and her mother that Mr Duff should represent them, and I took the view that the most convenient and expeditious course would be to permit him to do so).[17]I add two further points in relation to the agreement and the assignment. First, I have not been asked to consider the validity of either document, although there is obviously a question whether they might be champertous and therefore unenforceable. By an Order dated 2 September 2004 Master Bragge gave the claimants permission to add Mr Duff as a claimant and to amend their statement of case accordingly. There was no appeal against that Order, which was presumably made on the footing that it was at least arguable that the assignment was valid and effective. Secondly, Mr Duff stated in his oral evidence that he has not so far paid any part of the agreed consideration of £50,000. He seemed unperturbed by this, and suggested, half facetiously, that Miss Caws and her mother could always sue him for the money if they wanted to.

The Transfers of the Plot: The Basic Facts

[18]Reverting now to the Plot, I shall begin by setting out the basic facts relating to its transfer out of the legal ownership of Miss Caws and into the name first of Mr Boyce and then of Miss Hoare. My account is based on the contemporary documents in the conveyancing files of the relevant firms of solicitors. There is no suggestion that any of these files have been tampered with, and I find that they provide a generally reliable record of what actually happened. In particular, Mr Gordon of Gordon Shine kept regular attendance notes of his telephone conversations which he was able to verify (and, where necessary, help decipher) in the course of his oral evidence given on behalf of Mr Boyce. I must, however, record that, although I found Mr Gordon’s contemporary record of the relevant transactions to be reliable, and although I found him in general to be an honest witness who did his best to assist the Court, he is regrettably another solicitor who has been struck off the roll. In his case, he was struck off in 2004 for what he termed irregularities on client accounts. He should in my view have mentioned this in his witness statement, but failed to do so. In his oral evidence he did not elaborate on what the “irregularities” consisted of, but stressed that he has not been charged with any offence of dishonesty in relation to his striking off.

(a) The Transfer of the Plot to Mr Boyce

[19]In January 1998 (before Mr MacNeill was imprisoned for the first time, and before the date of the alleged threats) Mr Dunn, who it will be recalled had together with his wife sold the Plot to Miss Caws in 1995, enquired through Gordon Shine whether Miss Caws might be interested in selling the Plot back to him. Mr Gordon passed on the enquiry to Miss Caws, who instructed him that she was not interested in selling. Mr Gordon replied to Mr Dunn accordingly on 27 January.[20]On 15 September 1998 (after date of the alleged threats) a firm of solicitors in Chester called Bartlett & Son wrote to Gordon Shine saying they had been instructed by a Mr Trevor Ray McAllister in respect of the purchase of a building plot from Miss Caws. The letter asked Gordon Shine to forward a contract and supporting documents at their earliest convenience.[21]On the next day, 16 September, Miss Caws telephoned Gordon Shine at 11.30 am and left a message with Mr Gordon’s secretary asking him to ring her back. Later on the same day Mr Gordon returned her call. His attendance note indicates that a possible price of £100,000 was mentioned for the Plot, to which he appended three exclamation marks. He explained in his oral evidence that he could not believe it was worth anything like that much. He raised queries with Miss Caws about the planning position, about the restrictive covenants, and about an adjoining garage. The conversation ended with Miss Caws saying that she would get Mr Boyce, who had been dealing with the negotiations, to ring him.[22]On 28 September 1998 Bartlett & Son wrote again, asking for a draft contract and supporting documents by return.[23]On 5 October 1998 Mr Gordon spoke to Miss Caws on the telephone. She told him that the sale of the Plot was not proceeding at present, but the purchaser was buying 8 West End Lane. She said she would get Mr Boyce to ring Mr Gordon with the details, and would herself ring him with particulars of the mortgage in her name on 8 West End Lane. This she duly did later the same day.[24]On 7 October 1998 Gordon Shine wrote to Bartlett & Son, saying “We understand from our client that the proposed sale of the building plot in Hadley Wood is not proceeding at the present time but that your client is purchasing from ours a property at 8 West End Lane, Barnet. We are presently awaiting more precise details from our client and her mortgage account number to enable us to obtain the title deeds but, in the meantime, should be obliged if you would please confirm that your instructions accord with the foregoing.”[25]Further correspondence then ensued relating to the proposed sale of 8 West End Lane, with the agreed purchase price apparently fluctuating in a most mysterious fashion from a starting point of £95,000, then going down to £80,000, then up to £100,000, and then down again to £75,000, all within the space of a few weeks. Mr Gordon was understandably perplexed, and on 11 December 1998 he wrote to Miss Caws seeking confirmation that the sale of 8 West End Lane was indeed now going to proceed at £75,000, and saying:
“You will appreciate that I am concerned as to precisely what is supposed to be happening and, perhaps, either you and/or Mr Boyce would telephone me to let me know what is going on.”
He went on to say that he was about to leave on holiday, and would be returning on 4[26]Nothing then appears to have happened until 26 January 1999, when Mr Gordon spoke to Miss Caws on the telephone. She informed him that 8 West End Lane was now back on the market with agents, and was now vacant (an existing tenant under an assured short-hold tenancy having moved out on 15 December). With regard to the Plot, she instructed him that it was now to be transferred into the name of Mr Boyce, and gave details of Mr Boyce’s address at Green Street in Ryde.[27]On 29 January Mr Gordon wrote to Miss Caws setting out his understanding of their telephone conversation on 26 January. With regard to the Plot, he said this:
“… I have noted that you now wish this land to be transferred into the name of Mr Boyce. I have prepared the necessary Transfer document, which I enclose herewith, and should be obliged if you would please sign this where indicated. … Would you please then arrange for Mr Boyce similarly to sign with his signature being similarly witnessed. I have assumed that the property is to be transferred to him by way of a gift rather than for a money consideration. If this is not, in fact, the case then please return the document to me, let me know the price at which the property is to be transferred and I will prepare a fresh Transfer document. Otherwise, please return the Transfer to me undated, for completion. … There will be a land registry fee payable and, perhaps, when replying, you would please let me know whether you wish me to forward my firm’s account in this connection (including the land registry fee payable) to you or to Mr Boyce.”
[28]On 3 February 1999 Miss Caws telephoned Mr Gordon. According to his attendance note, she told him that she had the Transfer and was getting it signed; that the transfer was by way of gift; that no money was passing; and that the bill should go to Mr Boyce.[29]On the same day the Transfer was executed in the Isle of Wight by Mr Boyce, whose signature was witnessed by his step-daughter Tracey MacNeill, and by Miss Caws, whose signature was witnessed by a Mr David Reid who was the post-master at Wootton Bridge. She then posted it to Mr Gordon, who received it on the following day.[30]On 4 February Mr Gordon wrote to Mr Boyce, confirming receipt of the signed Transfer and informing him that he would now get it registered at the Land Registry. He enclosed a note of his firm’s charges in the sum of £134. Mr Boyce paid promptly, and on 9 February Gordon Shine received his payment.

(b) The Transfer of the Plot by Mr Boyce to Miss Hoare

[31]On 5 May 1999 Mr Stuart Radmore of Balmer Radmore, a small firm of solicitors in the same road as Gordon Shine, wrote to Mr Gordon. The letter was headed “Subject to Contract”. Mr Radmore’s client reference was “sr/thorne”. The letter read as follows:
“Dear Michael, Re: 8 West End Lane, Barnet 1 Hadley Farm Road, Barnet We act for Sadlers International Limited who have agreed to purchase the above two properties from your client, Mr Caws(?). The prices are £50,000 and £150,000 respectively. We await draft papers. ”
Re: 8 West End Lane, Barnet We await draft papers. ”

Re: 8 West End Lane, Barnet

[32]On 10 May Mr Gordon replied to say that he was taking instructions from his client. He also wrote to Miss Caws, enclosing a copy of Balmer Radmore’s letter of 5 May, and said:
“So far as 8 West End Lane is concerned I should be obliged if you would telephone me on receipt of this letter to confirm your instructions and to enable me to obtain certain further details from you. With regard to 1 Hadley Farm Road I do not have any knowledge of this property and am wondering whether this is what has, in the past, been referred to as land at the side of The Grange. If so, I presume that Mr Boyce will be dealing with that aspect and, perhaps, you would please ask him to contact me to confirm his instructions in that respect.”
[33]On 11 May, Mr Gordon received a telephone call from Mr Boyce who said that he would check with Miss Caws and revert to Mr Gordon. On 17 May Mr Gordon was telephoned by Miss Caws, who confirmed that 8 West End Lane was to be sold for £150,000 and the Plot for £50,000. She said that Mr Boyce would confirm the position on the Plot. On the same day Mr Boyce rang to confirm that the Plot was indeed to be sold for £50,000. He also told Mr Gordon that 8 West End Lane was to be sold with vacant possession.[34]On 19 May Mr Gordon wrote two letters to Balmer Radmore, dealing with 8 West End Lane and the Plot respectively. In the former letter, he explained that he would be dealing with the two matters separately, and requested Mr Radmore to do likewise; he enclosed a draft contract, and asked for confirmation of various points. In the second letter, he confirmed his instructions that the Plot was to be sold for £50,000 and again enclosed a draft contract. The draft contract described the vendor as Mr Boyce and the purchaser as Sadlers International Limited. It incorporated the Standard Conditions of Sale (Third Edition), and specified a contract rate of 4% per annum above Barclay Bank Plc’s base rate. Special condition 6 provided that the buyer should covenant in the transfer to observe the restrictive covenants referred to in the registered title (which included the covenant to use the land for garden purposes only). Mr Gordon said he presumed that the proposed purchase was not dependent on the sale of any existing property, and confirmed that the proposed sale did not depend on any related purchase.[35]On 20 May Mr Gordon wrote again to Mr Radmore, enclosing office copy entries and the filed plan for the Plot. Mr Radmore replied on 3 June, enclosing preliminary enquiries. On 4 June Mr Gordon wrote to Mr Boyce, saying he had received the usual pre-contract enquiries and asking him to telephone upon receipt of the letter “to enable me to obtain your replies to those enquiries”.[36]On or before 15 June (the date is not clear on the copy attendance note) Miss Caws telephoned Mr Gordon saying that Mr Boyce had asked her to reply to the preliminary enquiries as she knew more about it; Mr Gordon then took down her replies. On 15 June he sent the replies to Mr Radmore. The replies stated the vendor’s belief that the benefit of the restrictive covenants was vested in a Mr Webber of the Old Cottage, Hadley Green Road, Barnet, and confirmed that there was no planning permission for development of the Plot. In reply to the question when the seller would be able to complete the sale, the answer was “as soon as the purchaser wishes subject to contract”.[37]On 29 June Mr Gordon sent a chasing letter to Balmer Radmore, and on 12 July Mr Radmore replied saying “our client is coming to see us in the next day or two, whereupon we expect progress to be made with these matters”. On the same day Mr Radmore wrote to Mr Thorne, his client, enclosing the paperwork received from Gordon Shine and asking him to ring to fix an appointment to come in and go though the papers. A manuscript note on Mr Radmore’s file copy of this letter records that Mr Thorne evidently rang to say that he would come in within the next few days.[38]Meanwhile, the proposed sale of 8 West End Lane was progressing at an equally leisurely pace. On 11 June Miss Caws telephoned Mr Gordon with replies to the preliminary enquiries relating to that property, and on 15 June the replies were sent to Balmer Radmore. On 29 June Mr Gordon sent a similar chasing letter, and on 8 July, in response to a telephone enquiry from Miss Caws, he told her that he had heard nothing. On or shortly before 12 July (the date is again unclear on the copy attendance note) Mr Radmore telephoned Mr Gordon to say that his client was awaiting a mortgage offer on 8 West End Lane before being able to exchange contracts for the purchase of either property.[39]On 19 July Mr Gordon received a telephone call from Mr Dunn, the original vendor of the Plot to Miss Caws, who asked about the additional money that would be due to him on the grant of planning permission.[40]On 26 July Mr Radmore telephoned Mr Gordon, saying that the purchaser was encountering difficulties in obtaining a mortgage on 8 West End Lane and suggesting that the parties should exchange contracts at once on the Plot and on the house later. On 27 July Mr Gordon wrote to Mr Boyce, informing him of the purchaser’s difficulties and of their suggestion for separate exchanges of contracts. He continued:
“I do not myself know to what extent the two transactions are linked and I should be obliged, therefore, if you would please telephone me on receipt of this letter to let me know whether you are happy to proceed with the sale of the land at The Grange independently from the sale of 8 West End Lane. I am writing in similar terms separately to Jackie Caws who is, of course, the legal owner of 8 West End Lane.”
[41]On 29 July Miss Caws spoke on the telephone to Mr Gordon. She told him that “Barry’s son” (which must be a reference to Mr MacNeill, who was Mr Boyce’s step-son) was seeing the purchaser over the weekend, and that someone would revert to him at the beginning of the following week. She also mentioned to Mr Gordon “off the record” that she had put 8 West End Lane back on the market with agents, had received an offer of £160,000, and was trying to get £162,000.[42]Also on 29 July, Mr Dunn wrote to Mr Gordon saying he understood that Miss Caws was possibly about to obtain planning consent for the Plot, and referring to the original agreement between them for payment of a further sum in that eventuality. He said that his position had not been protected by entry of a caution at the Land Registry, and gave notice of his intention to take that step unless a satisfactory undertaking was given. He also asked to be informed of Miss Caws’ intentions with regard to the release of the restrictive covenants.[43]On 4 August Mr Gordon wrote to Miss Caws, enclosing a copy of Mr Dunn’s letter of 29 July. He also sent a copy of the letter and enclosure to Mr Boyce, and asked one or other of them to ring “to discuss and to let me know how you wish me to respond”. On 5 August Mr Gordon forwarded to Miss Caws and Mr Boyce a further short letter that he had received from Mr Dunn, and again asked one or other of them to ring to discuss it.[44]Meanwhile, on 5 August Miss Caws telephoned Mr Gordon to say she was happy to pay £5,000 to Mr Dunn out of the proceeds of sale of the Plot. She also told him that “her boyfriend” (i.e. Mr MacNeill) was waiting to speak to the purchaser before agreeing to proceed to exchange contracts on the Plot.[45]On 16 August Mr Boyce telephoned Mr Gordon and told him that he was prepared to exchange contracts independently on the sale of the Plot. On the same day Mr Dunn also rang, and said he would ring back in a week if he had heard nothing from Mr Gordon in the meantime.[46]On 17 August Mr Gordon wrote to Mr Radmore confirming his client’s readiness to exchange contracts on the sale of the Plot independently of the sale of 8 West End Lane. He asked for the draft contract to be approved so that matters could now proceed to exchange.[47]On 19 August Mr Radmore replied, enclosing an approved copy of the contract and saying “our client’s full address will follow shortly”.[48]It appears to have been around this time that the decision was taken on the purchaser’s side to replace Sadlers International Ltd as the purchaser with Miss Hoare, who was Mr Thorne’s girlfriend. A manuscript note on Mr Radmore’s file copy of his letter of 19 August to Mr Gordon gives details of Miss Hoare’s full name (Nicola Lisa Hoare) and her home address, and also of her married name (Nicola Dutton) and the address in Old Bond Street where she worked for a company formation agent.[49]Balmer Radmore’s client ledger for Mr Thorne in connection with the sale of the Plot records the receipt of £20,000 from Sadlers International Ltd on 17 August. The description of the client on this ledger is simply “Thorne”. There is only one entry on it before the receipt of the £20,000, namely a receipt from the client of £130 on 23 July. So the credit balance on 17 August was £20,130.[50]On 24 August Mr Gordon reported to Mr Boyce that the draft contract had been approved, and sent him his part of the contract for signature in readiness for exchange. On the same day, Mr Radmore wrote to Miss Hoare, enclosing her part of the contract for signature. He also telephoned Mr Gordon saying he was ready to exchange as soon as Mr Gordon had the signed contract. He does not seem to have told Mr Gordon at this stage about the change in the identity of the purchaser.[51]On 26 August Mr Gordon wrote to Mr Dunn, confirming a recent telephone conversation between them to the effect that Miss Caws had indicated she would shortly put him in funds to the extent of £5,000. Mr Gordon said he would contact Mr Dunn again as soon as the money had been received.[52]On the same day, Miss Hoare returned her part of the contract duly signed to Mr Radmore.[53]On 31 August contracts for the sale of the Plot were finally exchanged by telephone between the two solicitors. Mr Radmore informed Mr Gordon that the purchaser was now to be Miss Hoare, and it was also agreed that completion should take place three weeks later on 21 September. Prior to exchange, Mr Gordon had confirmed with Mr Boyce that this completion date was acceptable. He also obtained Mr Boyce’s agreement to payment of £5,000 to Mr Dunn out of the proceeds of sale.[54]On 1 September Mr Gordon wrote to Mr Radmore enclosing Mr Boyce’s signed part of the contract. He said he awaited hearing from Mr Radmore with the signed counterpart of the contract, the deposit cheque for £5,000, any requisitions on title he might wish to raise, and the draft transfer for approval. He asked Mr Radmore to ensure that the draft transfer would incorporate the indemnity covenant referred to in special condition 6 of the contract. On the same day, Mr Gordon wrote to Mr Boyce confirming that exchange of contracts had duly taken place. He also noted in this letter that it would be in order for him to pay Mr Dunn £5,000 out of the sale proceeds. Finally, he also wrote to Mr Dunn informing him that contracts had been exchanged and that completion was due to take place on 21 September. He said he would arrange to let Mr Dunn have a cheque immediately after completion.[55]Mr Radmore also wrote to Mr Gordon on 1 September, enclosing his client’s signed counterpart of the contract. The deposit cheque for £5,000 was accidentally omitted and on the following day Mr Radmore delivered it to Mr Gordon by hand. Balmer Radmore’s client ledger shows that the £5,000 for the deposit was debited on 1 September, thereby reducing the balance to £15,130.[56]Meanwhile, there was considerable activity relating to the parallel sale of 8 West End Lane. On 17 August the estate agents, Statons, notified Mr Gordon that they had agreed a sale of the property on behalf of Miss Caws to a Mrs Moore for £162,000, subject to contract. On 18 August Mr Gordon wrote to Miss Caws asking for confirmation that this was correct, and also asking for instructions whether he should withdraw the papers from Balmer Radmore or whether she wished to have contract race in which case he would be obliged to inform both parties. On the same day Mr Gordon spoke to Miss Caws on the telephone. She confirmed her instructions to proceed with the sale to Mrs Moore for £162,000, and instructed Mr Gordon to withdraw the papers from Balmer Radmore. She also informed him that she had agreed to purchase her mother’s house at 1D Rectory Drive, Wootton, Isle of Wight, (“Rectory Drive”) for £63,000, and that no agents were involved. She said that £63,000 was the full market value of the property and that she could proceed with the sale of 8 West End Lane independently of the purchase of Rectory Drive, but she could not proceed with the purchase of Rectory Drive without first selling 8 West End Lane. She promised to give details of her mother’s solicitors to Mr Gordon.[57]On 19 August Mr Gordon wrote to Miss Caws, confirming the contents of their telephone conversation and advising her to obtain her own private structural survey of Rectory Drive. He also referred to her mortgage application to Cheltenham & Gloucester Plc, and confirmed that she had authorised him to inform them of the purchase price, of the fact that she was purchasing the property from her mother, and that the purchase price was the full market price and not in any way discounted or subsidised.[58]On the same day Mr Gordon also wrote to Mrs Moore’s solicitors, and to Mr Radmore informing him that Miss Caws was no longer proceeding with her sale of 8 West End Lane to Sadlers International Ltd and asking for the papers to be returned. This was eventually done by Mr Radmore on 30 August.[59]Towards the end of August, Statons found other interested purchasers for 8 West End Lane who were prepared to offer £169,950 and a draft contract was sent to their solicitors. However, they withdrew on 6 September. Two days later, a further sale was agreed, through different agents (Barnard Marcus), to a Ms Rodriguez for £170,000, and a draft contract was again submitted to her solicitors. The sale price was then reduced, first to £165,000 and then to £160,000, and in early October Miss Caws withdrew from the transaction. She also decided at this stage to instruct fresh solicitors (Messrs Crumplins) in relation to the sale of 8 West End Lane, and she informed Mr Gordon accordingly on 7 October. However, she asked him to continue acting for her on the purchase of Rectory Drive. Contracts were finally exchanged for the sale of 8 West End Lane by Crumplins later in October, and the sale was completed on 29 October.[60]I shall now revert to the sale of the Plot.[61]On 11 September Mr Gordon prepared the transfer and sent it to Mr Boyce for signature. He sent a copy of the engrossment to Mr Radmore, and in his covering letter he noted that arrangements had been made for Miss Hoare to execute it after completion. He said that on completion he would require only the balance of the purchase price, namely £45,000.[62]On 17 September Mr Radmore replied, enclosing requisitions on title. On the same day, Mr Radmore spoke to Mr Thorne and wrote to tell him that the sum needed to complete the purchase was £30,747.98, after taking account of the £20,000 already paid on account. He asked Mr Thorne to have that sum sent by telegraphic transfer to Balmer Radmore’s client account by 20 September, so that the purchase could be duly completed on 21 September.[63]On 21 September, the day fixed for completion, Mr Gordon belatedly sent the replies to the requisitions on title to Balmer Radmore. On the same day, Mr Boyce rang Mr Gordon and left a message asking him to ring back. Mr Gordon then spoke to Mr Radmore, who told him that he was awaiting the money to complete the purchase. Mr Gordon then returned Mr Boyce’s call. Mr Boyce asked him if he could complete and release the deeds if he (i.e. Mr Boyce) said he had received the £45,000. According to his attendance note, Mr Gordon replied that this could not be done, and the money had to go through the solicitors’ accounts. He then telephoned Mr Radmore, who agreed that this was the case. In his oral evidence, Mr Gordon said that he was concerned by Mr Boyce’s request, and told him that he could not complete on that basis. He said that he then heard no more about it. He pointed out that it would have been contrary to the Law Society’s rules to by-pass the solicitors’ accounts in the manner proposed, but he also said that the clients would not necessarily have been aware of this. He agreed that the proposal suggested a degree of trust, or some connection, between the parties. This was in due course confirmed by Mr Thorne, who said in his oral evidence that he knew Mr Boyce, although not particularly well, and they had had various cash dealings in the past. He said that they had first met at the auction at which Mr Boyce had purchased 22 Green Street. For his part, Mr Boyce accepted that he had met Mr Thorne “a couple of times” before the present Court proceedings. I prefer the evidence of Mr Thorne on this point, and find that he and Mr Boyce knew each other quite well and had done business together in the past.[64]On 22 September Mr Gordon spoke to Mr Radmore. Each said that he had heard nothing further.[65]On 27 September Mr Boyce telephoned Mr Gordon, and told him that Balmer Radmore were being put in funds that day. He said he would now send back the signed transfer to Mr Gordon. However, Mr Boyce’s information (which he must presumably have obtained from Mr Thorne) turned out to be incorrect. On 28 September Mr Gordon telephoned Mr Radmore, who told him that he was not yet in funds.[66]On 4 October Mr Gordon telephoned Balmore Radmore, and spoke to a secretary who informed him that Mr Radmore was away. She said she would fish out the file and give it to Mr Radmore’s partner, Mr Bruce Balmer, who would ring Mr Gordon back. On the same day, Mr Gordon spoke to Mr Boyce, who said he would speak to the buyers to find out what was happening.[67]There is no record of Mr Balmer having rung Mr Gordon back. The reason for this is that, sadly, he was severely injured in the railway accident at Ladbroke Grove, near Paddington, which occurred on 5 October. The disruption that this must have caused to a small two-partner firm of solicitors can easily be imagined.[68]On 18 October Mr Boyce again telephoned Mr Gordon and said “something should happen within the next two weeks”. He said that if he had not heard by then he would ring again.[69]On 22 October Mr Gordon was telephoned by solicitors acting for Mr Dunn. Mr Gordon explained the position, and confirmed it in a letter which he sent on 26 October. He said that contracts had been exchanged for sale of the Plot, and the contractual completion date had passed, but completion had not yet taken place. He went on:
“As I mentioned to you on the telephone, the buyer’s solicitor (who is local to me) was, unfortunately, involved in the Paddington rail accident and is presently hospitalised and likely to be so for some weeks. The purchaser of the property is known to my client and, in the circumstances, it has been agreed to leave matters in abeyance for a short while.”
[70]On 28 October Sadlers International Ltd wrote to Balmer Radmore, authorising release of £5,000 from the client account to Mr Thorne. This was duly done by telegraphic transfer on 31 October, reducing the balance held on the account to £10,130.00. It follows that the amount now needed by Balmer Radmore to complete the purchase was £35,747 odd, ignoring any interest that might be payable for the delay in completion.[71]On 4 November Mr Boyce telephoned Mr Gordon and told him that the matter should now be going through in a couple of days. Mr Boyce may have derived this information in the first instance from Mr Thorne, but its ultimate source was no doubt Miss Caws or Mr MacNeill, with both of whom he was of course in regular contact. As before, Mr Boyce’s information was not entirely correct, but this time it was not far wrong. On 8 November £45,000 was paid into Balmer Radmore’s client account. I will return below to the source of this money, and the form in which it was paid. On 12 November Mr Gordon spoke to Mr Radmore, who said that he had received the money and was getting it cleared, and that he should be able to complete on the following Monday. Completion did indeed finally take place on 15 November when the outstanding balance of the contractual purchase price (£45,000) was sent by telegraphic transfer from Balmer Radmore to Gordon Shine. No attempt was made on Mr Boyce’s behalf to charge interest for the delay of some seven weeks in completion, although the contract clearly provided for this and specified the appropriate rate of interest. Mr Gordon accepted in cross- examination that there was a contractual right to interest, which would have amounted to more than £600; but he said that he did not advise Mr Boyce of this, who was only too happy to see the matter completed. He agreed, in retrospect, that he might have been at fault in failing to advise Mr Boyce of his rights in this regard, or of the other options open to him such as service of a notice to complete followed by termination of the contract and forfeiture of the deposit if the notice was not complied with.[72]Out of the proceeds of sale, Gordon Shine paid Mr & Mrs Dunn their £5,000, and then sent Mr Boyce a cheque for the net proceeds which after deduction of the firm’s charges and disbursements amounted to £44,404.50. On 17 November Mr Boyce telephoned Mr Gordon to acknowledge receipt of the cheque which he paid into his bank account with National Westminster Bank Plc. A few days later, he withdrew a total of £44,500 in cash from the same account, withdrawing £25,000 on 23 November and £19,500 on 26 November. What he then did with the £44,500 in cash is one of the key issues of fact that I need to determine. He says that he drove to London from the Isle of Wight and delivered the cash to Miss Caws at what was by then her home in North Road, Ealing. This is consistent with his pleaded case that Miss Caws had transferred the Plot to him at her request so that he might sell it on for her as her nominee. However, this version of events is vehemently denied by Miss Caws, who says that the Plot was extorted from her by duress, and that she never received a penny of the proceeds of sale.

The £45,000 and the Mortgage Frauds

[73]It will be remembered that Miss Caws told her solicitor, Mr Gordon, in August 1999 that she had agreed to buy Rectory Drive from her mother, Mrs Shirley Caws, for £63,000, and that she had made a mortgage application to Cheltenham & Gloucester Plc for that purpose. In her oral evidence in chief she emphasised that Rectory Drive was on the list of properties that Mr Boyce told her had to be sold or handed over, together with 8 West End Lane, the Plot and Mr Boyce’s own home at Barge Lane. So it is one of the properties that she claims had to be given up to keep the gangsters who were threatening her and her family at bay. She said that there was a small existing mortgage on the property, which would have to be paid off, and that the purchase price of £63,000 (which she described as “a strange amount”) was dictated to her by Mr MacNeill, although in her view it was probably worth between £70,000 and £80,000.[74]In cross-examination Miss Caws was constrained to admit that her mortgage application to Cheltenham & Gloucester was fraudulent, and when she was confronted with the relevant documents she described them as being “all lies”. Her lies were indeed brazen. Although she had no current employment, she pretended to be a eurobond dealer with a gross annual income of £36,000. She named her employer as Eurobond Developments Ltd, and gave details of its address and her supposed pay roll reference. She said her employment with the company had commenced on 2 February 1999, after a five year career break. She said Rectory Drive would be a weekend home due to family commitments, and that her mother had bought a retirement home and wished to sell the property. She described her main residence as 8 West End Lane, which at this date was untrue. The total loan required was said to be £59,850, i.e. 95% of the purchase price.[75]All the above details were contained in the mortgage application form which she signed on 11 August 1999. It was supported by a forged employer’s reference, which purported to be signed by the personnel manager of Eurobond Developments Ltd and gave fictitious particulars of her post and her salary. As I have already explained, she also named Mr Gordon as the solicitor acting for her on the purchase and prevailed upon him to send a letter to Cheltenham & Gloucester confirming certain details. I should add that there is no reason to suppose that Mr Gordon was himself implicated in the fraud, and in his letter to Cheltenham & Gloucester he was careful to say that he could not personally confirm what he had been told by Miss Caws. For their part, Cheltenham & Gloucester obtained an internal report and valuation, which valued Rectory Drive for mortgage purposes at £63,000 and recommended it as a suitable mortgage security.[76]To cut a long story short, the fraud succeeded, Cheltenham & Gloucester agreed to lend Miss Caws 95% of the purchase price, and the purchase was eventually completed on 1 November 1999.[77]One might have expected, if the story of the alleged threats were true, that the net proceeds of sale after discharge of the existing mortgage would at once have been transmitted to the gangsters. However, that is not what happened. What did happen was, on any view, strange enough. The sum of £45,000, which represented most, but not all, of the net proceeds – the exact figures are not in evidence – was provided by the vendor, Mrs Shirley Caws, to Mr MacNeill in the form of a bearer banker’s draft drawn on her bank, Lloyds TSB. Mr MacNeill then handed the draft to Mr Thorne, according to both of them in part repayment of a debt that Mr MacNeill owed to Mr Thorne, and Mr Thorne then transmitted the draft to Balmer Radmore where it was credited to the client account in his name on 8 November and, as we have already seen, was used to complete the purchase of the Plot on 15 November. Thus within the space of a few days the £45,000 passed from Miss Caws to her mother, from her mother to Mr MacNeill, from Mr MacNeill to Mr Thorne, from Mr Thorne to his solicitors (Balmer Radmore), and (to the extent of at least £35,000) from Balmer Radmore to Mr Boyce’s solicitors (Gordon Shine). Whether the circle was then completed by Mr Boyce returning the net proceeds of sale of the Plot to Miss Caws is, as I have already said, in issue.[78]It is hard to avoid the impression, and I find on the balance of probabilities, that this routing of the money was not the product of accident or coincidence, but must have been deliberately intended by at least Miss Caws, Mr MacNeill and Mr Thorne, and was probably also known to Mrs Shirley Caws and Mr Boyce. For whatever reason, the sale of the Plot by Mr Boyce to Miss Hoare (the purchaser nominated by her boyfriend, Mr Thorne) was not going to be completed until £45,000 had been released from the equity in Rectory Drive and used to finance it. It is equally hard to avoid the impression, and again I find as a fact, that all concerned were anxious that the movements of the money should be as difficult to trace as possible. No other sensible reason for use of a bearer draft was suggested by any of the witnesses, and I have been unable to think of one myself.[79]Unfortunately, the mortgage fraud that Miss Caws perpetrated on Cheltenham & Gloucester was not an isolated occurrence. In or about 1997 she obtained a housing association tenancy of a property in East Cowes, which she was soon afterwards able to exchange for a tenancy of a property in London at 70 North Road, Ealing, which was owned by the local Council. In 1999 she purchased the freehold of 70 North Road from the Council with a discount under the “right to buy” legislation. The matter was not explored in detail in evidence, but it seems most unlikely that Miss Caws could honestly have satisfied all the requirements which would have entitled her to purchase the property at a discount, including in particular the requirement for a minimum period of residence at the property. However, what is not in doubt, and was again frankly admitted by her in cross-examination, is that she made another fraudulent mortgage application in order to fund the purchase. The discounted purchase price was £74,800, and in August 1999 (the very same month as she was making the fraudulent application for Rectory Drive) she applied to Northern Rock Plc for a mortgage loan of the whole of the purchase price. She again pretended to be a bond dealer employed by Eurobond Developments Ltd, and her application was supported with another forged letter purporting to come from the company’s head of personnel and with forged payslips purportedly evidencing her salary of £36,000 per annum. In addition, she filled in a Miras 70 form claiming tax relief on the mortgage interest payments. In this form she again gave false particulars of her non-existent employment with Eurobond Developments Ltd, and signed a declaration that the information she had given on the form was correct and complete to the best of her knowledge and belief.[80]As in the case of Rectory Drive, the fraud was successful. So at the very time when Miss Caws claims she was being compelled by threats of personal violence to dispose of 8 West End Lane and the Plot, she was making concurrent fraudulent mortgage applications to purchase two other properties, Rectory Drive from her mother and 70 North Road from the Council. In cross-examination she gave various inconsistent explanations for why she had obtained the mortgages: she was told she had to do so by Mr MacNeill, or she was just doing what “a mortgage person” found by her required. I have no hesitation in rejecting these explanations. I find that she was acting as a free agent, no doubt in conjunction with Mr MacNeill, and the two of them were hoping in one way or another to make money out of property deals. It is notable that at one stage Miss Caws expressly said she was not coerced to make the fraudulent mortgage applications, but Mr MacNeill merely said he wanted her to do so. In my view that is the nearest approach to the truth in her evidence on this subject.[81]It is also notable that there is not a word about either of the mortgage frauds in Miss Caws’ witness statements despite their obvious relevance to the issue of her credibility and to the picture of acting under compulsion which she seeks to portray.

Other Evidence of Property Dealing

[82]I have by no means exhausted the story of Miss Caws’ property dealings and I will now briefly refer to certain other instances which featured in the evidence.[83]First, she owned a flat in the West End of London at Clipstone Street, W1, which she purchased in her own name in or around the late 1980s and subsequently let out to tenants. This property is not alleged to have been on Mr Boyce’s list, and Miss Caws continued to own it throughout the transactions which I have already described.[84]Secondly, in 2001 Miss Caws sold the Clipstone Street flat to Mr MacNeill for £127,000. I observe that, like the sale of Rectory Drive, this is another example of a property sale within the family. Miss Caws’ explanation for it was that she wanted to keep the property in the family, for Georgina to occupy in due course. Be that as it may, the proceeds were used directly or indirectly to fund two further acquisitions: the purchase of another ex-Council property, 15 South Road, Ealing, and the purchase of a leasehold interest in a property in Bicester Road through a nominee, one Sebastian Bernard. Again, it may be noted that the use by Miss Caws of a nominee on this occasion may lend some colour to the suggestion that she willingly transferred the Plot to Mr Boyce as her nominee in 1999.[85]Thirdly, extensive works of repair and renovation were carried out at 70 North Road. There was some dispute about both the date and the extent of these works. Miss Caws said in cross-examination that she thought the work was done in August and September 1999, and said she could be confident about this because she remembered that three Japanese students who were lodging there had to be moved so that the work could be done, and one of them had given birth to a child in July, her labour having been brought on by the disruption of the move. I am prepared to accept that the Japanese students may have moved out some time during the summer of 1999, but it seems to me most unlikely that any major works would have been carried out before the purchase of 70 North Road was completed in November of that year. I think that Miss Caws was anxious to put the date of the works back to the late summer or early autumn in order to help rebut the suggestion that she paid for the work with the proceeds of sale of the Plot, which of course she denies having received but which were in any event not available until late November. In my judgment the bulk of the work was carried out after the completion of the purchase in November, and I so find. As to the extent of the works, Miss Caws denied that the house was gutted and effectively rebuilt, but on any view the works were extensive, and included at least the installation of a new kitchen and bathroom and major refurbishment. The builders were, unsurprisingly, paid in cash. It was put to Miss Caws that the total cost was about £25,000. She denied this, and said Mr MacNeill had told her the cost was about £13,000. I do not accept this evidence, and find that the cost of the works was indeed in the region of £25,000 and that Miss Caws paid the builders in cash.[86]In December 2000, after the works had been completed, 70 North Road was re-mortgaged by Miss Caws and £100,000 was raised. The papers relating to this re-mortgage are not in evidence, so I do not know whether another mortgage fraud was perpetrated on this occasion. What the money was then used for is also obscure, but on balance I accept the general thrust of Miss Caws’ evidence that it was used in one way or another to pay off “debts” owed by Mr MacNeill to criminal associates. Apparently, most of the money was withdrawn from the bank within 24 hours in the form of banker’s drafts, one of which (for £40,000) went to a Mr Clarke and the other of which went to a Michael Gillingham, who however cashed it and returned the money to Mr MacNeill.[87]The general picture which to my mind emerges, before the appearance on the scene of Mr Duff, is of a couple (Miss Caws and Mr MacNeill) who had no legitimate source of income apart from letting properties to tenants or lodgers, who lived to a large extent on the proceeds of Mr MacNeill’s criminal activities, and who took any opportunity that presented itself to deal in property, being perfectly prepared to use dishonest means for that purpose. Miss Caws demurred at the suggestion that she was engaged in a business of property dealing or speculation; but I find that her actions speak louder than her words, and that she was always on the look out for any opportunity to make a profit from property. It is significant in my view that her best friend, Miss Nicola Corney, said in evidence that although she knew nothing of the mortgage frauds, she did know of her friend’s property interests, which she described as “wheeling and dealing”, or turning properties round and selling them on. Again, Miss Caws’ solicitor, Mr Gordon, while saying that he never regarded her as “a sophisticated property dealer”, also accepted that she knew what buying and selling a property was all about, and said that she was always “calm and collected” in her dealings with him. He said she was “sufficiently clued up” to understand what was going on – and I note that he said this without knowledge of the mortgage frauds, which themselves betoken a scheming, calculating and dishonest approach to property transactions. Finally, it is worth noting that in the bundle (volume 2, page 478) there is a letter from a probation officer, Jo Prevost, dated 11 November 2002 in which she says that she met Miss Caws, and records her as having said that even after she and Mr MacNeill had given the profits of their Ealing home to pay his drug debts, “they still own two properties from the time they were in the property development business”. In cross-examination Miss Caws said those were the words of the probation officer, not her own; but I find that they were a reasonably accurate reflection of what Miss Caws told the probation officer, and that this was a fair description of her activities.

The “Trust Deeds”

[88]As I have already said, Mr Duff first appeared on the scene, introduced by Mr Baker, around the end of 2001, after Mr MacNeill had been arrested and charged with serious offences relating to drugs and possession of a fire-arm. Mr MacNeill was in due course convicted and sentenced to three years’ imprisonment in March 2002. Confiscation proceedings were also initiated, and the various properties in the names of Mr MacNeill and Miss Caws were obviously at risk in them.[89]Against this background, a thoroughly dishonest plan was hatched which I have little doubt was the brainchild of Mr Duff. The idea was to protect part of the family assets from the risk of confiscation by pretending that Mrs Shirley Caws had a substantial beneficial interest in both 70 North Road and 15 South Road, and to prepare back-dated deeds of trust to evidence her supposed interests. Mr MacNeill said in cross-examination, and I accept, that he was told by Miss Caws during a visit to him in prison in September 2002 that “David had had an idea”, David being Mr Duff. At this stage Mr MacNeill still regarded himself and Miss Caws as, in his words, “an item”, and if Mr Duff had already begun his affair with Miss Caws, Mr MacNeill was unaware of it. He only discovered about the affair in January 2003. For his part, Mr Duff sought to say that the idea was not his, and discreditably tried to blame Mr MacNeill’s solicitor, Rifat Chowdhury, saying that she had dictated to him what had to be done, and also the terms of the letter of 13 January 2003 referred to below. I reject this evidence. Mr Duff is a convicted fraudster, and in my judgment this plan had all the hallmarks of his earlier dishonesty.[90]What happened was that on 13 January 2003 Mr Duff wrote to Rifat Chowdhury, purportedly confirming that he had been approached by Mr MacNeill and Miss Caws in relation to 70 North Road and 15 South Road, “and I met with the parties on several occasions to discuss securing the interest of Mrs Shirley Caws in respect of monies advanced by her to [Mr MacNeill and Miss Caws].” With regard to 70 North Road, Mr Duff said he was “originally approached” by Mr MacNeill and Miss Caws in respect of a loan that “was to be paid to them” by Mrs Shirley Caws. The loan was to be secured on 70 North Road, which Miss Caws was about to purchase from the local authority. After discussion, the parties decided that rather than lend the money Mrs Shirley Caws “would obtain an interest in 70 North Road and … the money would effectively be invested in this property”. However, she did not want to be a legal owner of the property, and the parties did not want to delay the purchase from the local authority, so it was agreed that the interests of Mrs Shirley Caws would be best served by her “taking a private equitable interest by virtue of a Trust Deed”. A copy of a Trust Deed dated 1 November 1999 was enclosed with the letter.[91]The letter went on to say that Mr Duff advised the parties again prior to the re-mortgage of 70 North Road in 2000, and after further discussion it was agreed that Mrs Shirley Caws’ beneficial interest should be increased to 50% and a further Trust Deed was entered into on 19 December 2000, which superseded the earlier Trust Deed. Again, a copy of the Trust Deed was enclosed.[92]With regard to 15 South Road, Mr Duff said that he was again approached by the parties in November 2002 (which must be a mistake for November 2001). Again, he says, the details of payments in cash etc were not explained to him, but he was instructed that Mr MacNeill and Miss Caws were purchasing 15 South Road and that Mrs Shirley Caws was effectively putting up the deposit and was to acquire an equitable interest in the property by virtue of her investment. He said the parties had already agreed that her share should be 26%, which according to Mr Duff “presumably reflected the value of her investment”. He said that he then prepared a further Trust Deed, a copy of which was enclosed, dated 16 November 2001 to reflect that arrangement.[93]The three Deeds of Trust enclosed with the letter purport to be dated 1 November 1999, 19 December 2000 and 16 November 2001 respectively. The first one was signed by Miss Caws, and the second and third ones by Miss Caws and Mr MacNeill. Each of the signatures purports to have been witnessed by Mr Duff. In fact, however, it is clear that the Deeds must have been prepared in or shortly before January 2003.[94]In the claimants’ Reply to the Defence of the fourth defendant, which is dated 22 June 2005 and was prepared (like all of the claimants’ statements of case) by Mr Duff, it is denied that the Deeds of Trust were created or dated unlawfully, and said that they were created “to clarify and witness an existing trust”. However, in his oral evidence Mr Duff made no real effort to justify them, and at one stage described them, accurately in my view, as “all rubbish”. I need hardly add that the deception lay not only in the deliberate back-dating of the Deeds of Trust, but also in the pretence by Mr Duff in his letter of 13 January 2003 that he had personally been approached and had been involved in the discussions which led up to the preparation of the Deeds, long before he had ever met any of the parties to them. It is also striking that the explanation given in his letter for the increase in Mrs Shirley Caws’ beneficial interest in 70 North Road from 25% to 50% is, in any event, nonsensical. The mere fact that the property was going to be transferred into the joint names of Miss Caws and Mr MacNeill when it was re-mortgaged is in itself no reason whatever for doubling the size of Mrs Shirley Caws’ beneficial interest.[95]As matters turned out, it never proved necessary to make use of the bogus Deeds of Trust, or of an accompanying witness statement which was signed by Mrs Shirley Caws on 17 January 2003, because the confiscation proceedings against Mr MacNeill were abandoned. Why they were abandoned I do not know. However, this cannot detract in any way from the seriousness of what I find to have been a blatant attempt to pervert the course of justice by the creation of false evidence.

The Alleged Threats

[96]I now return to the focus of the claimants’ pleaded case, that is to say the allegation that the transfer of the Plot was procured by threats of violence passed on to Miss Caws by Mr MacNeill and Mr Boyce.[97]Particulars of the alleged threats are set out in paragraph 2(a) to (e) of the Re-re-Amended Particulars of Claim. I have already quoted an extract from paragraph 2(c) in the introductory section of this judgment: see paragraph 10 above. For ease of reference, the allegations may be broken down and summarised as follows:(1) In or about May 1998 Miss Caws and her mother were asked to visit Mr Boyce at Barge Lane, where he held up a list of properties and said “everything on this has to be sold or handed over to the gangsters”: paragraph 2(a).(2) Miss Caws and her mother believed that the gangsters included a Mr Terence Adams, a Mr Robert Beale, a Mr David Bean, someone known as Colin and someone known as Gilbert “the stick”, who Mr Boyce specifically said was a very dangerous man: paragraph 2(a).(3) Mr Boyce said that if all the property on the list was not handed over or sold then the family of Miss Caws and her mother, Mr MacNeill and Mr Boyce and his family would all be at risk of serious injury or mortal harm from those people. According to Mr Boyce, they had in the past killed people for as little as £20,000: paragraph 2(a).(4) The properties belonging to Miss Caws on Mr Boyce’s list were the Plot and 8 West End Land; Mr Boyce’s own property at Barge Lane was also on the list, and he and his wife subsequently transferred it unencumbered as a gift to a Mr Schofield who is believed by Miss Caws and her mother to be one of the gangsters: paragraph 2(a).(5) On a subsequent visit to Mr Boyce’s new property at Green Street, he told Miss Caws that “the boys” had killed somebody whom he knew and showed her a newspaper article reporting a murder, thereby indicating to her the importance of passing over the property: paragraph 2(b).(6) Between May and September 1998 Miss Caws visited Mr MacNeill at HM Prison Woodhill where he was serving a prison sentence. These visits were made on a weekly basis, and for about half of them Mr Boyce and his wife would join Miss Caws. On each occasion the subject of transferring the Plot was discussed, and Miss Caws was told that she should comply exactly with Mr Boyce’s directions or she would be putting herself and her family at immediate risk: paragraph 2(d), and see further paragraph 10 above.(7) On a further visit in early September to Green Street, Miss Caws was told by Mr Boyce that his step-daughter (and Mr MacNeill’s sister) Tracey was “in bits” because she was so worried about her child being under threat of kidnap. Mr Boyce implied that Miss Caws’ daughter was similarly under threat: paragraph 2(d).(8) Miss Caws was told by Mr Boyce in September 1998 to sell 8 West End Lane and the Plot to a Mr McAllister. Mr Boyce had a telephone which he only used to speak to “the boys”, and he directed the sale to Mr McAllister either by giving instructions direct to Miss Caws’ solicitors or by telling her what to tell the solicitor: paragraph 2(e).(9) Because Mr Boyce was unable to arrange “a structure applicable to these sales” they proved abortive, and he then “proceeded to take a transfer for no value from [Miss Caws] who believed she was still under immediate threat”: paragraph 2(e).[98]It will be noted that paragraphs (8) and (9) in the above summary are the only ones which deal directly with the transfer of the Plot to Mr Boyce. It should also be noted that none of the above particulars appear in any earlier version of the Particulars of Claim. In the earlier versions, all that is alleged in relation to the initial transfer of the property by Miss Caws to Mr Boyce is the following:
“2. On or about the 19th day of July 1999 [Mr Boyce] procured the signature of [Miss Caws] upon a Land Registry Transfer document by bad faith duress and undue influence by stating that unless [she] transferred the property to him for the sole purpose of transferring the property to [Miss Hoare] then [Miss Hoare] through her associates would kill [Miss Caws] and/or members of her family. 3. The said Transfer was prepared by a solicitor who acted for both [Miss Caws] and [Mr Boyce] and was not transferred for money or money’s worth.”
[99]In the Re-re-Amended Particulars of Claim there are some significant changes to the original paragraphs 2 and 3 which I have just quoted, including the removal of the bizarre allegation that Miss Hoare would herself through her associates kill Miss Caws and/or members of her family. However, several features of the original allegation still remain, including the date on which Miss Caws’ signature of the transfer is said to have been procured (on or about 19 July 1999, which must be wrong since the conveyancing file shows that the transfer was executed in February 1999), and the allegation that Miss Caws was told that she had to transfer the Plot to Mr Boyce “for the sole purpose of transferring the property to [Miss Hoare]” (which must again be wrong, because no ultimate purchaser for the Plot had been identified at the date of the transfer to Mr Boyce in February 1999, and in any event the purchaser was at first going to be Sadlers International Ltd and Miss Hoare only replaced that company shortly before contracts were exchanged on 31 August 1999). It must be said that the continuance of these gross errors in the fourth and final version of the Particulars of Claim does nothing to inspire confidence in the claimants’ case, even making every allowance for the fact that they are litigants in person.[100]The transfer of the Plot by Mr Boyce is dealt with more fully in paragraphs 6 to 12 of the Re-re-Amended Particulars of Claim. Again, I find it helpful to break down the allegations and would summarise them as follows:(1) Miss Hoare was at all material times the associate of one or more other persons, and acted under their direction: paragraph 6.(2) When Mr Boyce executed the second transfer on 15 November 1999 in favour of Miss Hoare, no true consideration passed and Mr Boyce, Miss Hoare and Mr MacNeill together “created a structure to provide an illusion of an arm’s length transaction”: paragraph 7.(3) The consideration of £50,000 recited in the transfer was substantially obtained by a £45,000 bearer draft, which Mr MacNeill obtained from Mrs Shirley Caws by bad faith duress and undue influence, passing on death threats against Miss Caws, Mrs Shirley Caws and their family: paragraph 8.(4) Mr MacNeill asked Miss Caws to arrange for her mother to obtain a mortgage on Rectory Drive, and Mrs Shirley Caws transferred that property to Miss Caws producing a release of equity of £45,000. Mr MacNeill advised Miss Caws that she and her family were still under threat of death, but if he were to pay a further £45,000 to the gangsters they would leave them alone and he would be able to be completely straight on his release from prison: paragraph 8(f).(5) Mr MacNeill specifically asked for a bearer draft, and subsequently told Miss Caws that he had given it to the gangsters by meeting someone in an underground station in north London. He said that there would now be no further threats. He advised Miss Caws that the payment by the draft should be shown as a loan: paragraph 8(f).(6) Alternatively, the draft was obtained by fraudulent misrepresentations made by Mr MacNeill in the above terms.(7) Mr Boyce and/or Mr MacNeill passed the £45,000 to associates of Miss Hoare who paid the monies to the solicitor acting for Miss Hoare [i.e. Balmer Radmore] to transfer the monies back to Mr Boyce. Mr MacNeill made further fraudulent misrepresentations by advising Miss Caws and her mother “to create a loan equity structure to support the banker’s draft payment to him of the £45,000”, saying that he had to give the draft to dangerous people in respect of an old drug debt and unless Miss Caws and her mother did exactly as he required then he and/or other members of the family would be killed. Miss Caws and her mother complied with his demands through fear: paragraph 10.(8) The transfer between Mr Boyce and Miss Hoare is voidable: paragraph 11.(9) Following completion of the transfer, Mr Boyce and/ or Mr MacNeill “retained the £45,000 obtained from [Mrs Shirley Caws] for their own use”: paragraph 12.

The Evidence of Miss Caws

[101]The only witness who was able to give first-hand evidence about the alleged threats was Miss Caws herself. Although the Particulars of Claim refer in a number of places to Mrs Shirley Caws having been involved, Mrs Shirley Caws made it clear when she gave her own evidence that she never heard any of the alleged threats being made herself, although she did say that she heard plenty of discussions about the payment of money to gangsters. So the evidence of Miss Caws is of critical importance to the claimants’ case.[102]In view of the extreme seriousness of the allegations, and the fact that her witness statement was drafted for her by Mr Duff, I thought it would be helpful to hear Miss Caws describe the threats in her own words. It was therefore agreed that she should give oral evidence in chief about the threats. To a considerable extent, her evidence in chief covered the same ground as the pleaded particulars. In some respects there were changes of emphasis, and some new material was introduced. However, the general impression which I gained was of a well-rehearsed but disjointed and impressionistic account. What was singularly lacking was any direct correlation between the threats and the transfer of the Plot, or any coherent explanation of exactly what it was that she was required to do with 8 West End Lane and the Plot, or to procure her mother to do with Rectory Drive. She constantly took refuge instead in emotive generalities. For example, the properties on Mr Boyce’s list “had to be sold or handed over”, but she gave no explanation of the time scale or machinery for taking these steps, or of how the choice was to be made between sale or transfer. With regard to Rectory Drive, she said that her mother was distraught to find that it was on Mr Boyce’s list (a point which Mrs Shirley Caws herself failed to corroborate), but she gave no solid or credible evidence about the precise way in which the gangsters required it to be dealt with. Instead she veered off into an emotional account of the seriousness of the threats, and the readiness of Albanian motorbike assassins to perform contract killings when the amount owed was less than £20,000. She did say that Mr MacNeill spoke to her mother, and asked her to consider a sale or re-mortgage of the property to Miss Caws. However, she did not explain why the gangsters were happy for Rectory Drive to be dealt with in this way within the family, instead of by a direct transfer to them or a sale on the open market. Instead, she sought to portray her mother as being very unhappy about it but reluctantly willing to go along with the request because of the danger to Mr MacNeill and the threat that her grandchildren might be hurt.[103]With regard to the disposal of 8 West End Lane and the Plot, her evidence in chief was brief, confused and unfocused. It amounted to little more than saying that she telephoned Mr Gordon in September 1998, and Mr Boyce then instructed him what to do. Eventually, she said, she had to change her solicitor and instruct Crumplins in order to sort out the delay and conclude the sale of 8 West End Lane.[104]In her witness statement dated 23 February 2006, Miss Caws gave a fuller account of the circumstances in which she transferred the Plot to Mr Boyce, as follows:
“31. [Before the sale of Rectory Drive] I was told that [the Plot] had to go as well. This was said to me by [Mr Boyce]. At the time the property did not have planning permission. I pleaded with [him] not to take [the Plot] but he would not listen. I even suggested that the A Team let me build the property. Bradford & Bingley were lending 65% on developments. I knew that I could build the property for £67,000 as my quantity surveyor had estimated this. I wanted to do the project so badly and I thought that if I kept control I might be able to pay off the debt of [Mr MacNeill] and still retain a profit in order for me to get [him] into an honest business. Until he was transferred to Latchmere House [Mr MacNeill] was off drugs and was asking me to assist him in establishing a normal life so that he could be a worthwhile father and partner. 32. In a final attempt to keep my property I went to see [Mr Boyce] at his home in Green Street on the Isle of Wight. I literally begged him not to take this property but in a callous cruel way he just screamed at me and stormed out of the house. [Mrs Boyce] comforted me and told me that [Mr Boyce] became annoyed everytime I mentioned the Plot. 33. When I told [Mr MacNeill] what had happened he told me “just sign it over so that the debt would be paid and we would be free from all the threats when he was finally released”
. By this point I was so traumatised and worried for my daughter that I told [Mr MacNeill] I would just sign it over to [Mr Boyce] as I was not prepared to sign a property in my name over to this “A Team”. Up to this point I had sold properties and handed over cash. 34. [Mr MacNeill] was pleased with this idea and said that the A Team would knock £140,000 off the debt. He was, at this time, aware that the local estate agents had viewed the Plot and estimated its value at £150,000. 35. I duly, and in retrospect naively, signed over the property in the offices of Gordon Shine solicitors who acted for both parties. Believing my family to be in danger I gave no thought to the possibility that the others, who I also thought were in danger, would manipulate this act to their own advantage.”[105]In evaluating this account, I shall begin by pointing out some features of it which are demonstrably incorrect. Miss Caws accepted in cross-examination that her statement at the end of paragraph 33, that up to this point she had sold properties and handed over cash, was untrue: no properties had been sold by her before this date, and no cash had been handed over by her. Miss Caws also accepted in cross-examination that there was another mistake in paragraph 35. She did not sign the transfer to Mr Boyce in the offices of Gordon Shine, but in the Isle of Wight where her signature was witnessed at the local post office. This is in my judgment a significant error. If the Plot was really extracted from her by duress, I would expect the circumstances in which she signed the fateful transfer to have been etched on her memory; and if Mr Duff had made a wrong assumption about where the transfer was executed when he drafted this paragraph of her witness statement, I would expect her to have noticed and to have corrected it. Instead, I am left with the distinct impression that the prosaic reality of what actually happened, which is attested to by the contemporary conveyancing file, has been overlaid with a story that is to a large extent the product of fantasy and exaggeration.[106]I would make the same comment about the allegation in paragraph 34 that the local estate agents had viewed the Plot and estimated its value at £150,000. This is in my judgment pure fantasy, and unsupported by any valuation evidence. At the time of the transfer of the Plot to Mr Boyce in February 1999, planning permission had not yet been obtained nor had steps been taken to procure release of the restrictive covenants. The Plot was still a vacant site, which in 1995 had been sold to Miss Caws for £10,000 after failing to reach its reserve price at auction. It is true that some steps towards future development of the Plot had by now been taken. Research had been done in the local library by Miss Caws into the planning history, which showed that there had previously been a dwelling house on the Plot. This greatly improved the prospects of success in obtaining planning permission, which had been applied for in August 1998. Miss Caws had also instructed an architect, Mr Duncan Medhurst, and she may well (as she says in her witness statement) have made preliminary enquiries about building costs. However, planning permission was not obtained until April 1999, and negotiations for the release of the restrictive covenants did not begin until the summer of that year. Furthermore, on 17 May 1999, after the transfer of the Plot to Mr Boyce, and after the grant of planning permission, Miss Caws herself instructed Mr Gordon that the Plot was to be sold for £50,000, and on the same day Mr Boyce confirmed this to Mr Gordon. I have not heard or seen any credible evidence which suggests that this was an under-value.[107]In cross-examination Miss Caws sought to maintain that the Plot had been verbally valued by Statons at £150,000. I am unable to accept this evidence, which was in my view a desperate attempt by Miss Caws to substantiate what she said in her witness statement. The sheer improbability of such a valuation, quite apart from the total absence of any corroboration for it, is shown by two matters in addition to those I have already mentioned. First, £150,000 was also the asking price for 8 West End Lane, which was a three-bedroomed residential property, not a small undeveloped site. Secondly, the correspondence relating to the release of the restrictive covenants from July 1999 onwards, to which I have not yet referred, reveals that Mr Geoffrey Webber, who had the benefit of the covenants, was himself being advised by Statons. Mr Webber was evidently a meticulous correspondent, and in his letter of 2 August 1999 to his solicitors (at volume 3, page 856) he said that he had been advised by Mr Nick Staton that a useful rough guide in assessing the value of a covenant was to calculate one third of the amount paid for the site. The letter went on to say that the details of Miss Caws’ purchase of the Plot from Mr Dunn were known both to Mr Staton and to the immediate neighbours, and since she had now obtained planning permission it would be reasonable to value the site at £20,000 and to seek around £6,500 for the release of the covenants. The figure of £20,000 was in fact based on the misapprehension that Miss Caws had agreed to pay Mr & Mrs Dunn a further £10,000, instead of £5,000, when planning permission was obtained. However, the important point for present purposes is that Statons could not possibly have advised Mr Webber to proceed on this basis if they had also advised Miss Caws that the Plot was now worth no less than £150,000.[108]In fact, it is to my mind fairly obvious how the absurd suggestion of the £150,000 first arose. In an earlier witness statement signed by Miss Caws on 30 October 2004, for the purpose of the summary judgment application, there are manuscript alterations to paragraph 11 (at volume 1, page 297) which strongly suggest that Mr Duff originally confused the asking price for 8 West End Lane (which was £150,000 in May 1999) with the asking price for the Plot (which was £50,000), and then jumped to the conclusion that the Plot was being transferred by Mr Boyce for about one third of its true value. When the error was noticed, he must have decided to keep the allegation of transfer at an under-value (because it supported the case that it was not an arm’s length transaction) and to invent a further valuation of the Plot by the estate agents at £150,000. Miss Caws accepted in cross-examination that the manuscript alterations on this page were in Mr Duff’s handwriting, but denied the falsity of the alleged valuation. I am afraid that in my view this is yet another instance where her evidence cannot be relied upon.[109]The lack of detail and precision in Miss Caws’ evidence is highlighted when one compares her account with the contemporary evidence of the conveyancing files. The story that the files disclose has some undeniably puzzling features, such as the fluctuations in the agreed price of 8 West End Lane in late 1998 when Mr McAllister was the prospective purchaser, the large increase in the asking price for that property when it was marketed through agents in early 1999, and Mr Boyce’s later suggestion that the sale of the Plot might be completed without the money going through the solicitors’ accounts. The evidence leaves me wholly uncertain what the true explanation for these puzzles is. However, they do not in themselves suggest that Miss Caws was acting unwillingly or under duress, and I can find nothing else in the files which would lend any support to such a suggestion. On the contrary, the picture which emerges is one where both she and Mr Boyce were actively involved in the sale of the Plot and in giving instructions to Mr Gordon, not only before the Plot was transferred into Mr Boyce’s name but also thereafter. For example, on 11 May 1999 it was Miss Caws who confirmed the purchase prices of 8 West End Lane and the Plot to Mr Gordon; on 11 June it was she who provided Mr Gordon with replies to the preliminary enquiries; on 29 June she telephoned Mr Gordon and told him that Mr MacNeill was seeing the purchaser over the weekend; and on 5 August she telephoned Mr Gordon to confirm that she was happy to pay £5,000 to Mr Dunn out of the proceeds of the sale. These all appear to be the actions of someone who was anxious for the Plot to be sold at its asking price of £50,000. They do not suggest in any way that Miss Caws was unhappy about the transaction, and still less that she was acting under compulsion, or being forced to participate in a sale of the Plot for less than its true value.[110]It is in any event highly unlikely that Miss Caws would have employed Mr Gordon, who had acted both for her and for Mr Boyce in the past in conveyancing matters, if she was really being compelled by gangsters to transfer the Plot and 8 West End Lane against her will. One would expect the gangsters to have nominated their own agents, and to have dictated the procedure that was to be followed; or at least to have insisted that Miss Caws should instruct a solicitor other than Mr Gordon, who was already known to her, and who might well have suspected she was acting under compulsion. Furthermore, the very leisurely timescale of the transactions (which started in September 1998, and were not completed until November 1999, some 14 months later) is also difficult to reconcile with a scenario in which ruthless men in the background were pressing to be paid their “debts”. Finally, Mr Gordon himself confirmed in both his written and his oral evidence that he saw nothing untoward in any of the transactions, and he had no reason to suspect that the transfer of the Plot by Miss Caws to Mr Boyce, or its onward sale by Mr Boyce, were in any way involuntary or improper. He regarded the transfer of the Plot by Miss Caws to Mr Boyce as a normal transaction within “the family”, Miss Caws being the partner of Mr Boyce’s step-son (who was of course in prison at the time), and he satisfied himself that he could properly act for both of them because the transaction fell within an exception to the general rule that parties should be separately represented by reason of the family connection, the absence of consideration, and the fact that both parties were at the time established clients of the firm. As I have already said, I found Mr Gordon to be a reliable and truthful witness, and I accept this evidence.[111]Further light is thrown on the reality of the transactions relating to the Plot by the contemporary correspondence with Mr Webber, to which I have already referred. In his letter of 2 August 1999 to his solicitors, he said that Miss Caws had telephoned him on 23 July, and after a further conversation with the architect (Mr Medhurst) various points had emerged, which he then listed. The first point was that Mr Boyce was her father-in-law, and “she said it was a family decision that accounted for [Mr Boyce] becoming the proprietor of the proposed development site”. The next point was that Miss Caws had offered him £3,000 for release of the restrictive covenants. Mr Webber then set out the advice he had obtained from Statons, which led him to conclude that £6,500 would be a reasonable price for him to ask for the release. The remaining points recorded further proposals and arguments advanced by Miss Caws, relating to a proposal that Mr Webber should sell her a small area of land adjoining the Plot on which to build a garage, on terms that she would also pay for the construction of a new garage on his retained land. It is obvious from this letter that Miss Caws was the person dealing with the negotiations, even though it was by now some months after the transfer of the Plot to Mr Boyce.[112]On 21 September 1999 Mr Webber wrote again to his solicitor, to up-date him on progress and instruct him on the response to be made to Miss Caws’ offer. In this letter he referred again to his telephone conversation with Miss Caws, and said “She explained Barry Boyce was her father-in-law and, for reasons she did not fully explain, transferred the ownership to him earlier this year”. On 22 September Mr Webber wrote a friendly note to Miss Caws, apologising for the delay in responding to her offer and saying that he had now instructed his solicitor to write with his proposals.[113]There was then some delay caused by a misunderstanding as to who Miss Caws’ solicitors were, and on 19 October 1999 Mr Webber’s solicitor wrote to Mr Boyce direct at his Green Street address. In this letter he set out the terms offered by Mr Webber for release of the covenants, the conveyance of the adjoining land, and the construction of his new garage. By this stage, Mr Boyce had of course exchanged contracts for sale of the Plot to Miss Hoare, but completion had not yet taken place. What appears to have happened next is that Mr Boyce passed the letter on to Mr Thorne, and Mr Thorne left it with his solicitors, Balmer Radmore. Correspondence then ensued between Balmer Radmore and Mr Webber’s solicitors, in which a price for release of the covenants of £7,000 was eventually agreed. A confusing feature of this correspondence is that Balmer Radmore said in their first letter to Mr Webber’s solicitors that they acted for Mr Boyce, and the client reference shown on this and subsequent letters was “sr/boyce”. I am satisfied, however, that this must have been a mistake, as Balmer Radmore subsequently confirmed in a letter dated 26 July 2004 to the claimants. Their client at this date was Mr Thorne, not Mr Boyce, for whom they have never acted. The mistake was no doubt made because the letter of 19 October was addressed to Mr Boyce, who was the registered proprietor of the Plot and so far as Mr Webber was aware still owned it. Once the initial mistake had been made Mr Radmore must either have failed to notice the continuing error in his reference or thought that it would only confuse matters further if he changed it.[114]Once the transfer of the Plot to Miss Hoare had take place, Mr Thorne and Miss Hoare involved themselves in the negotiations with Mr Webber and his solicitors. They obviously found progress frustratingly slow, and although Balmer Radmore were still acting for them on 14 July 2000 Miss Hoare wrote to Mr Webber direct in rather peremptory terms to try to hurry things along. Mr Webber understandably took umbrage at this letter and replied on 19 July, saying he was surprised at its tone. It is enough to cite the following extract from his letter, which shows once more that so far as Mr Webber was concerned it was always Miss Caws who had been “the prime mover in this matter”:
“All negotiations, in which I have been involved, on the development of this site have been with Jacqueline Caws, and her architect Duncan Medhurst. At that time Jacqueline explained why the title of the site was registered in the name of [Mr Boyce]. In good faith, I have been assuming that Jacqueline continued to be the prime move in this matter. I do not understand why you did not explain that the title of the site is registered in your name since 8 December 1999, which information has only come to light this month as a result of my solicitor obtaining a copy of the title. ”

The Evidence of the Other Witnesses

[115]For the reasons I have already given, I find Miss Caws’ account of the threats and their supposed influence on the transfers of the Plot to be unreliable and unconvincing. I have cited several instances where I have been unable to accept her evidence, and where the story which she now tells is at variance with the contemporary documents. On the basis of this material alone it is barely conceivable that the Court could find her case to be established on the balance of probabilities, bearing in mind the cogency of the evidence that is required where serious allegations are made: see In re H (Minors) [1996] AC 563 at 586 C-H per Lord Nicholls, with whose speech Lord Goff and Lord Mustill agreed. As Lord Nicholls said at 586 G:
“The more improbable the event the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.”
However, before reaching a final conclusion I will examine the evidence of the other witnesses and then look at the whole picture in the round. (1). The Claimants’ other Witnesses[116]Apart from Miss Caws and Mr Duff, the witnesses who gave evidence for the claimants were Mrs Shirley Caws, Miss Nicola Corney and Mr Brian Willis.

Mrs Shirley Caws

[117]I have already said that Mrs Shirley Caws was unable to give any first-hand evidence about the alleged threats, or to corroborate Miss Caws’ evidence that Rectory Drive was on Mr Boyce’s list of properties to be sold or handed over. Indeed, there is only one brief reference to Mr Boyce in her witness statement.[118]The main points in her witness statement may be summarised as follows. She is a retired seamstress, and now 73 years old. As a young woman she emigrated to Canada, where she met and married her late husband Guybon. They had only one child, Jacqueline, who was born in Canada. They returned to England in 1971, and after a short attempt at settling in New Zealand made their home on the Isle of Wight, where Guybon had originally come from.[119]Mrs Shirley Caws said she was aware of the threats that were being communicated by Mr Boyce and Mr MacNeill to her family, and that Mr MacNeill owed money to gangsters when he went to prison for the first time after deliberately crashing a van full of drugs. She said that these things were told to her by her daughter and Mr MacNeill, who would go into terrible moods when he had to meet the gangsters or after he received a phone call which he would say was about the money he had to pay. She got to know Mrs Boyce well, and she too would discuss the terrible situation they were all in.[120]She said she was very distressed that Miss Caws was having to sell her properties, but her daughter would not always tell her of the extent of what she had to do for fear that she would go to the police and bring more danger on the family.[121]When she was asked to sell Rectory Drive to her daughter to raise money for Mr MacNeill, she put her foot down but was told she would get it back with a share of the profits when 70 North Road was sold. She continued in paragraph 11 of her witness statement:
“This was not an investment on my part but something I agreed to do to prevent Gary getting himself killed or any of us coming to harm. I believed that the money I handed over was going to pay off his debts with the “A Team”
. There is no possibility that I would have sold this property or lent this money except under the threatening conditions I was in.” She added that it was Mr MacNeill who asked for this money, and who insisted that she got it for him in the form of a bearer draft.[122]With regard to the confiscation proceedings brought against Mr MacNeill, she said that the came from a generation who were brought up to respect and trust professional people, and that she dealt with any documents that were put before her as instructed by his solicitor, Rifat Chowdhury. She had no understanding of these matters, and was happy to trust a professional who she believed was looking after their best interests.[123]In cross-examination, Mrs Shirley Caws’ answers were often vague and she struck me as a person who was essentially passive and easily led. Her answer to questions was often that she didn’t know or couldn’t remember. She confirmed, however, that her daughter and Mr MacNeill came to live with her after her husband’s death, and that she then moved with them to 70 North Road. After the sale of Rectory Drive to Miss Caws, she said that it was used partly as a weekend home and partly for letting to tenants. She disclaimed any knowledge of Miss Caws’ mortgage frauds, and denied having been asked to pose as her employer on the telephone.[124]She agreed that £45,000 of the proceeds of sale of Rectory Drive was paid to Mr MacNeill, and said it was intended that she would thereby acquire a stake in the North Road and South Road properties. She accepted there might have been an opportunity to make money from the “right to buy” discounts, and also appeared to accept that the Deeds of Trust were genuine and reflected the true intentions of the parties. However, I am not satisfied that she really understood anything about these or any other financial arrangements, and I find that I cannot attach any weight to this evidence. Her confusion about financial matters was made clear when she said later in cross-examination that the £45,000 was a loan, and was supposed to be paid back to her. This is incompatible with her earlier evidence that it was supposed to be an investment which gave her a percentage stake in North Road and South Road. The same confusion can be seen in paragraph 11 of her witness statement. The confusion was further compounded when on another occasion she said glibly that she thought the £45,000 went to the gangsters to pay off Mr MacNeill’s debts, as though suddenly remembering that this was the script she was supposed to be following.[125]When asked by counsel for Miss Hoare how she supposed Miss Caws could lawfully have obtained a mortgage on Rectory Drive, she said “Gary was going to pay it, wasn’t he”. This unguarded comment was perhaps revealing as showing that the true source of much of the family’s income lay in Mr MacNeill’s criminal activities.[126]In general, I found that there was little in Mrs Shirley Caws’ evidence about the disputed transactions on which I could safely place reliance.

Miss Corney

[127]Miss Corney lives in the Isle of Wight and is a project worker in a Residential Youth Unit. She has known Miss Caws and Mrs Shirley Caws since she was six years old. She went to school with Miss Caws, and has been her best friend ever since. She described herself as the person Miss Caws would be most likely to confide in.[128]When Miss Caws moved back to live on the Isle of Wight in November 1995, Miss Corney resumed daily contact with her. She was aware of what she termed Miss Caws’ “building project” on the Plot, and in her witness statement said this about it:
“7. The project was extremely important to her and she worked extremely hard on it from the outset. I specifically remember that she had looked into the history of the Plot, spoken to the previous owner, and had obtained a book with a photograph of the Old School House before it had been destroyed in the war. She showed me this photograph and her plans to support her application for planning [permission] and explained that she would have a better chance of being granted planning permission if she rebuilt what had been there previously. ”
[129]In the remainder of her statement Miss Corney went on to give a brief description of her understanding of the threats that were made after Mr MacNeill’s arrest in 1998 and subsequent imprisonment, of the terror and upset caused to Miss Caws when she was told “to sell all assets to pay these gangsters”, and of how Miss Caws was eventually “forced to hand over” the Plot. She concluded in Paragraph 12:
“We discussed her options and she considered going to the Police but was persuaded not to for fear of the consequence. Eventually she decided to transfer the property to [Mr Boyce] to free herself from the gangsters and because she did not want to be associated with them.”
[130]In cross-examination, however, Miss Corney readily admitted that her knowledge and understanding of the threats was all second-hand and was derived from what she had been told by Miss Caws. Moreover, her evidence lacks any particularity as to the precise nature of the threats or the dates on which they were made. She also confirmed that her witness statement had been prepared for her by Mr Duff. In the circumstances I find that I can attach very little weight to her evidence on the matters in dispute, although I have no doubt that in other respects she was a truthful witness who did her best to assist the Court.

Mr Brian Willis

[131]Mr Willis also lives on the Isle of Wight and is a retired prison officer, having been employed in the service for 25 years. Before that he served for six years in the Royal Navy. He has known Miss Caws and her mother for more than ten years, having previously been an acquaintance of Mrs Shirley Caws’ late husband.[132]Mr Willis’ witness statement, which he confirmed was typed out for him by Mr Duff, is very short. He says he was aware that the family came under threat from gangsters in North London, and that Miss Caws was forced to “sell property to pay drug debts incurred by [Mr MacNeill]”. However, he confirmed in cross-examination that he had no first-hand experience of the alleged threats, and he derived his knowledge of them from Mrs Shirley Caws. He denied that he and Mrs Shirley Caws were “a couple”, but accepted that they are very close friends who spend a lot of time together. He said he advised Mrs Shirley Caws to go to the police, but made no enquiries himself about who the threats came from and kept no record of the details. He said that “he didn’t want to know”, and in answer to the question why he did not go to the police himself said that he “didn’t want to create problems for the family”. He amplified this by saying that he was worried for the family, and if he felt that Mrs Shirley Caws had been directly threatened herself he would have gone to the police; but his understanding was that the threats were to the family generally, and in the circumstances he didn’t want to stir up trouble.[133]I found Mr Willis’ evidence about his reaction to the alleged threats unconvincing, and do not accept it. It seems to me that, as a retired prison officer, he would have understood the importance of going to the police if threats of this nature were really being made, and would probably also have kept a record of them. I think he has allowed himself to be persuaded to support his friend’s case, and to my mind the lack of particularity in his evidence betrays its unreliability.[134]There is one further matter in Mr Willis’ brief statement which I have not yet mentioned. In paragraph 6 he says that Mrs Boyce spoke to him in September 1998, on the day when she had “signed over her property at Barge Lane, Wootton and had recently returned from the solicitor’s office”. He continued in paragraph 7:
“Kath was very upset as she explained that she had been forced to take the action because of threats. In these exact words, which I will always remember, she told me “It had to go. When your grandchildren are under threat, I’ve had to hand it over, it had to go.” ”
[135]I regret that I am also unable to accept this evidence. I am not prepared to accept, on the evidence I have heard, that the sale of Barge Lane was in any way a forced sale, and still less that it was brought about by criminal threats of violence. Mrs Boyce herself made a witness statement, verified by a statement of truth and signed by her on 22 February 2006, in which she denied having any knowledge whatsoever of any such threats, or of their having been passed on to Miss Caws. She continued:
“Certainly nothing along these lines was ever said to her in my presence at any time. I consider these allegations to be an invention on her part. I understand that it is also said that discussions took place regarding disposal of the various properties at the times of visits to see Gary in prison. I visited him many times. I went with my husband. I went with my husband and Jackie. I went with Jackie only. At no time during any of these visits, was this subject discussed and there was no suggestion made that there were threats of personal harm to Jackie and Georgina. I consider this is another complete fabrication.”
[136]Unfortunately, Mrs Boyce was unable to give oral evidence and to be cross-examined on her witness statement, because the trial over-ran its original two-week time estimate by a substantial margin due to the illness at various stages of Mrs Shirley Caws, Mr MacNeill, counsel for Miss Hoare and myself. As a result, Mrs Boyce had to go into hospital for a long-planned hip operation before the time came for her to give evidence. In the circumstances, the weight that I can place upon her witness statement is obviously reduced. However, I can and do take note of what she has said and verified as the truth, and it fortifies me in my rejection of what I consider to be the unreliable evidence of Mr Willis on this point. (2). Mr Boyce[137]I turn now to the evidence of the first defendant, Mr Boyce. His written evidence is contained in two witness statements dated 27 October 2004 and 22 February 2006 respectively. I shall begin by setting out the main features of his account of the relevant transactions in these two statements.[138]Mr Boyce first met Miss Caws in about 1993, when she and Mr MacNeill started going out together. They moved into 8 West End Lane, which was put in Miss Caws’ name but Mr Boyce believed the money to have been provided by Mr MacNeill. Mr Boyce was also aware of the purchase of the Plot in 1995, and was informed (presumably by Mr MacNeill) that the cash for the purchase was provided by Mr MacNeill. Following the birth of Georgina in 1994, Mr Boyce made an effort to get along with Miss Caws, although they have never been close. While Mr MacNeill was in prison in 1998-1999 Mr Boyce lent a helping hand to Miss Caws when he could.[139]Mr Boyce’s account of the transfer of the Plot to him is set out in paragraphs 11 and following of his first witness statement, as follows:
“11. The first I came to know of the proposed transfer of [the Plot] to me was when [Miss Caws] approached me. I cannot be precise about the date but it was while Gary was serving his prison term. It must have been late 1998 or early 1999. [Miss Caws] was spending time in the Isle of Wight and was not far away from where I lived. We saw each other frequently. She told me that she was planning a series of property transactions. She told me that she was going to sell 8 West End Lane and buy two properties back to back namely [70 North Road and 1 Rectory Drive]. 12. [Miss Caws] told me that she wanted to sell [the Plot] and did not want too much money to be passing through her bank accounts at one time. She said if it were put in my name, then I could sell it for her. I would then pay the proceeds of the sale to her in cash. I agreed to help her in this way. After all I considered I should help [her] if she asked for help like you would a daughter-in-law, especially while Gary was in prison. 13. I certainly did not threaten [her] in any way at all. The suggestion is ludicrous. Nor did I tell her that others …. posed any danger to her or repeat any threat or threats made against her by others or anything similar. Again the suggestion is pure fabrication. 14. [Miss Caws] gave no indication that she was under any pressure, or thought she was under any pressure, to sell [the Plot]. On the contrary she was calmly sure of what she wanted to do and took charge of the transaction. She instigated the instruction of solicitors, Gordon Shine & Co … to have conduct of the transfer [the Plot] into my name. 15. I really had very little involvement with the instructions given to Gordon Shine. I spoke to them on the telephone from time to time but I was just doing what [Miss Caws] required of me. When any substantial instructions or difficult questions came up I left this to [Miss Caws]. 16. At every important juncture, from the first instruction of Gordon Shine to the execution of the transfer itself, it was [Miss Caws] who took the initiative. I merely complied with her wishes.”
[140]Mr Boyce goes on to say that he had no contact with Miss Hoare, and did not know her. He says he first became aware of her name when the Plot was transferred to her. All he knew was that Miss Caws and Mr MacNeill had lined up a purchaser for the Plot, “and that the purchaser was a friend of Gary”.[141]With regard to the net proceeds of sale of the Plot, Mr Boyce’s account in paragraph 28 of his first witness statement is as follows:
“When I received the remaining proceeds of sale from [the Plot] …. I deposited this cheque in my Nat West bank account on 17 November 1999. I then drew out this sum from my bank account in two cash sums, namely £25,000 on 23 November 1999 and £19,500 on 26 November 1999. I must take this opportunity to correct an error in my pleaded Defence which states that these were the two payments made to [Miss Caws]. These are in fact the amounts that I drew from the bank in order to pay her. I paid her in one lump cash sum. I drove the cash to her at her home in North Road, Ealing and handed it over to her there. She wanted it in cash as this was the original purpose of my involvement as she had explained it to me: that these sums should not be seen to be moving through her bank accounts. I was not in the habit of demanding receipts from [her]. I have never asked for one for this sum. It would seem to defeat the lack of formality which was the very nature of [her] plans.”
[142]Mr Boyce goes on to say that he believes Miss Caws to have used the cash, or a large part of it, to carry out building and renovation works to 70 North Road.[143]In his second, much shorter, witness statement Mr Boyce provides some further background information about his family and the properties where he has lived. He and Mrs Boyce used to live in Borehamwood in Hertfordshire. While they were living there, he bought the Green Street property in the Isle of Wight as a holiday home. Later he was made redundant, and they were able to buy a plot of land at Barge Lane where they had a house built. They lived there for a while before selling up and moving into Green Street. Subsequently they moved into Rectory Drive, the property formerly owned by Mrs Shirley Caws, after selling Green Street. He denies having ever had a list of properties which had to be sold in order to meet Mr MacNeill’s debts, and he denies that the meetings and conversations alleged by Miss Caws ever took place. With regard to the sale of Barge Lane, he says that the property was indeed sold by his wife, who was the owner, but his recollection is that the sale was to a Mr Donaghue who wanted to buy it as a holiday home. It was an arm’s length transaction.[144]With regard to 8 West End Lane, Mr Boyce again denies that he ever told Miss Caws to sell that property. He disclaims any knowledge of Mr McAllister, and also denies that he ever had a special telephone to speak to “the boys”.[145]Mr Boyce was cross-examined at some length by Mr Duff for the claimants, and then more briefly by counsel for Miss Hoare and by Mr MacNeill (who, like the claimants, appeared before me in person). Mr Boyce did not make a favourable impression on me as a witness. His answers often had a mocking, even flippant, tone, which may merely have reflected the obvious antagonism between him and Mr Duff, but which I confess struck me as sinister. He said things like “I’m a silly boy, I take instructions”, or when confronted with an apparent inconsistency “woe is me” in a tone of mock-horror. He distinguished at one point between fibs and lies, implying that he may have been guilty of the former. Furthermore, as I have already said, there is more than one point on which I found his evidence to be unreliable. I believe that he knew Mr Thorne considerably better than he was prepared to admit (see paragraph 63 above); I believe that he was well aware of the reasons for the delay in completing the sale of the Plot; and I am left very suspicious by his suggestion for completion of the transaction without the purchase money going through the solicitors. Furthermore, it seems likely to me that Mr Boyce knew considerably more about the mysterious negotiations with Mr McAllister in late 1998 than he was prepared to admit. In short, he is a witness whose evidence I treat with very considerable reservation.[146]It does not, however, follow from these reservations, serious though they are, that I must necessarily reject Mr Boyce’s evidence about more important matters, including in particular his account of the circumstances in which the Plot was transferred to him by Miss Caws, and his evidence that he accounted to her for the net proceeds of sale of the Plot. Having given these matters my anxious consideration, I have concluded that Mr Boyce’s account of them is to be preferred to that of Miss Caws. I am faced with a choice between two unreliable witnesses, but my assessment is that Miss Caws’ unreliability is more sustained and pervasive than that of Mr Boyce. I also bear in mind that, by the standards of this case, Mr Boyce has a relatively unblemished record. His evidence, which was not controverted, was that apart from a conviction for receiving stolen goods about thirty years ago he has never been charged with or convicted of any crime. By contrast, Miss Caws was engaged in serious mortgage frauds at the very time of the disputed transactions.[147]As to the transfer of the Plot to Mr Boyce, it seems to me entirely plausible that Miss Caws should have wished the Plot to be placed in the hands of a friendly nominee at a time when Mr MacNeill was in prison, when criminal associates of Mr MacNeill were chasing him for money, and when property transactions relating to 8 West End Lane, Rectory Drive and 70 North Road were in prospect. Miss Caws may also have thought (wrongly) that sale of the Plot through a nominee would improve her position for capital gains tax purposes, or (perhaps more plausibly) that it would assist her to conceal the transaction from the Revenue. Miss Caws denied in cross-examination that she put the Plot in Mr Boyce’s name for tax reasons, and said that she had been to see an accountant who told her that she owed little in tax. However, I found that evidence unconvincing, as I did her later denial that she wanted to hide ownership of the Plot from the Revenue. She admitted later in her cross-examination that she never paid any tax, and had not submitted any tax returns. In my view she clearly wanted that state of affairs to continue, and I infer that she thought her chances of doing so would be greatly improved if the Plot was placed in the name of Mr Boyce, who could be relied upon to deal with it in accordance with the wishes of herself and Mr MacNeill.[148]The contemporary evidence of the conveyancing file seems to me to be entirely consistent with a position where the Plot was vested in Mr Boyce as a nominee, and he was doing his best to assist Miss Caws and Mr MacNeill to sell it for £50,000 and thereby realise a handsome profit. The fact that the sale was to be partly financed with the bearer draft, which itself derived from the sale of 1 Rectory Drive by Mrs Shirley Caws to her daughter, does not in my view detract from this analysis. I do not pretend to understand, on the basis of the evidence which I have heard, precisely why the sale was to be financed in this manner; but the fact of the matter is that, if Mr Boyce duly accounted to Miss Caws for the net proceeds of sale, she ended up receiving full value for the Plot.[149]The question whether Mr Boyce did account to Miss Caws for the net proceeds is, therefore, a very important one. Resolution of this question is not made any easier by the fact that Mr Boyce had to correct an error in his pleaded Defence in paragraph 28 of his first witness statement, and by a further degree of confusion which he displayed when cross-examined on this subject. Although he said in his witness statement that he delivered the cash to Miss Caws at her home in North Road, in his oral evidence he first said that he drove to Kew and gave it to her there, and then said a few moments later that he took the money to Syon Park, before going on to say that possibly he had taken it to North Road, and then maintaining that he did not remember what address he took the money to. The claimants understandably make much of these contradictions, and submit that Mr Boyce never accounted for the money passed to Miss Caws, but either kept it for himself or transmitted it to the gangsters. However, as I have said, and despite some hesitation, I have come to the conclusion that Mr Boyce’s account is in essence to be preferred. His confusion about Miss Caws’ address is not as surprising as it might at first blush appear, because she did live at several West London addresses after moving from North Road, and the events in question took place more than six years ago. There is also one small, but not insignificant, detail which in my judgment lends plausibility to Mr Boyce’s version of events. It will be noted that the cash sum which he withdrew from the bank was £44,500, which exceeded by nearly £100 the net proceeds of sale of the Plot which Gordon Shine had sent to him on 16 November 1999. If the net proceeds were indeed the product of duress, and had to be accounted for to the gangsters, it seems to me highly unlikely that Mr Boyce would have rounded up the sum in this way. It is perhaps equally unlikely that the gangsters would have agreed to £5,000 being paid to Mr & Mrs Dunn, given that their claim against Miss Caws was a purely contractual one and had not been protected by the entry of a suitable restriction on the registered title. If, however, the sale was undertaken on behalf of Miss Caws, it would have been entirely natural for Mr Boyce to round the figure up, and especially so in view of his uncontroverted evidence that while Mr MacNeill was in prison he was in the habit of giving Miss Caws £150 a week to help with living expenses.[150]To conclude, although I have serious reservations about Mr Boyce as a witness, and although I am unable to accept his evidence on a number of points, I do nevertheless accept him as a basically truthful witness on the two main matters where his evidence conflicts with that of Miss Caws.[151]The other witnesses who were due to give evidence on behalf of Mr Boyce were his wife, Mrs Boyce, his step-daughter Tracey MacNeill, and Mr Gordon. I have already explained why Mrs Boyce was unable to give oral evidence and dealt with the only significant matter in her witness statement: see paragraphs 135-6 above. Tracey MacNeill was also not called to give oral evidence. The reason for this, I was told, is that she had to look after Mrs Boyce after her operation. The only point dealt with in her witness statement was Miss Caws’ allegation that Mr Boyce told her that she (Tracey MacNeill) was “in bits” because of a threat to kidnap her daughter. Tracey MacNeill’s evidence was that she had never heard about this until it was raised in the present proceedings, and as far as she was concerned there is absolutely no truth in it “because at no time, as far as I am aware, has there ever been any threat directed towards me or my child of this nature”. As with Mrs Boyce’s evidence, the weight that I can attach to this is inevitably limited in the absence of cross-examination. Nevertheless, in the light of the generally unfavourable view which I have formed about Miss Caws’ evidence I can say that I see absolutely no reason to doubt what Tracey MacNeill says, and in the absence of corroboration I am not prepared to accept Miss Caws’ evidence on this point.[152]So far as Mr Gordon is concerned, I have nothing to add to what I have already said about his evidence in the context of the conveyancing transactions. (3). Miss Hoare and Mr Thorne[153]I begin with the evidence of Miss Hoare. I refer to her by that name (her maiden name), because that is the name in which she is sued as the second defendant and is also the name in which she has made and signed her witness statement dated 22 February 2006. However, I should record that she now prefers to be known as Nicola Dutton, having married a Mr Paul Dutton in 1997.[154]In her witness statement Miss Hoare explains that on 31 August 1999 she exchanged contracts for purchase of the Plot, and that completion was intended to take place on 21 September although it was subsequently delayed. The purchase price was £50,000, and the solicitors acting for her were Gordon Shine. (I interpose that this is an obvious error; as she accepted in cross-examination, her solicitors were Balmer Radmore.) She says that her then boyfriend, Mr Thorne, and she decided that they needed to plan for the future and to have an investment. That was the reason why they decided to buy the Plot. After the purchase, she decided to improve the property and in about March 2002 applied for finance to build a house on the Plot. She obtained finance from B M Samuel Group Ltd, and the house was completed and eventually sold for £485,000. She says that she spent “a considerable amount of [her] time, vast amounts of energy, hard work and ideas investing in having the house built on the Plot”, and that she spent “hundreds of hours” of her time developing it.[155]In her oral evidence Miss Hoare impressed me as a palpably honest witness, who did her best to answer the questions put to her truthfully. Nevertheless, it emerged from her cross-examination that the account given in her witness statement is in one important respect misleading. It is not true to say that she personally invested a large amount of time and work in developing the Plot. On the contrary, she accepted that she was in effect a bare nominee for Mr Thorne, that it was he who undertook all the negotiations and arrangements for its development, and that all her dealings with the Plot and the house built on it had been done through him and on his behalf. She said that she had never bought any property before, and the Plot was the only property that she had ever owned. She knew next to nothing herself about the details of the development, or about the efforts subsequently made to market the house after it had been built. When asked in re-examination why Mr Thorne had wished to purchase the Plot in her name, she said merely that he did not want it in his own name “for various reasons”, without elaborating what those reasons were. She was clear, however, that Mr Thorne wanted to buy the Plot as an investment.[156]With regard to her work for the company formation agent in Old Bond Street, she said that she worked there for about ten years and was an administrator, doing typing and other general office duties. She said there were five or six other employees, and a very large number of companies were registered there including overseas companies. She did not recall having any relationship with Sadlers International Ltd and did not know who they were.[157]I turn now to the evidence of Mr Thorne. His only witness statement is one which he made in October 2004 in connection with the summary judgment application. At that date he was still Miss Hoare’s partner, although they have subsequently separated.[158]Mr Thorne (known since childhood by the nickname “Todd”) is an old friend of Mr MacNeill. He says in his witness statement that Mr MacNeill owed him a considerable amount of money which he had lent to him over the years, the total being in excess of £45,000. Mr MacNeill agreed to pay this money in the form of a bankers draft in about November 1999, and before then had also given him first refusal to purchase the Plot from Mr Boyce. Mr Thorne says that he then spoke to Miss Hoare, and they agreed to purchase the Plot in her name as an investment. The land came with planning permission, and it seemed to be a good investment. He then went about organising the building works, Miss Hoare obtained a loan to secure the necessary funding, and in autumn 2003 they obtained a certificate of completion and tried to sell the property.[159]Even though the £45,000 came from Mr MacNeill, Mr Thorne claims that neither he nor Miss Hoare knew that the draft originated from Mrs Shirley Caws. He emphasised that the draft was in any event provided to him by Mr MacNeill in repayment of a debt that he owed him.[160]With regard to Sadlers International Ltd, and the £20,000 funding provided by that company, Mr Thorne claimed that there was no relationship or connection between him and that company apart from a loan of £20,000. He accepted that Miss Hoare’s employer might have set up the company, and also accepted that Sadlers International Ltd was originally named as the purchaser in the contract with Mr Boyce. He maintained, however, that the reason why they were named as a party in the contract was that they had originally made this a condition for lending the £20,000 to him, but later (so he said) they provided an unsecured loan to him personally, “hence their removal from the contract”.[161]I was not impressed by Mr Thorne’s evidence in cross-examination, and formed the view that he was not a reliable witness. It seems obvious to me that Sadlers International Ltd was a company which he controlled, either directly or indirectly. That was plainly the understanding of Balmer Radmore, when Mr Thorne (their client) instructed them in relation to the proposed purchase of the Plot in the name of Sadlers International Ltd. Furthermore, the suggestion that there was no connection between the company and Mr Thorne, even though the company was admittedly formed by the agents for whom Miss Hoare was working, is in my judgment impossible to credit. Nevertheless, in his oral evidence Mr Thorne stoutly denied that there was any connection. He also sought to explain his dealings with Sadlers International Ltd on the basis that he was engaged to find properties for them on a commission basis, and gave this as the reason why the company was originally the proposed purchaser of 8 West End Lane and the Plot. He maintained that it was only when the company pulled out of buying the two properties that he decided to buy them himself, albeit in the name of Miss Hoare. It is enough to say that I found this evidence wholly unconvincing, as I did the unintelligible (and conflicting) “explanation” given by Mr Thorne in his witness statement.[162]This is not to say, however, that I found all of Mr Thorne’s evidence to be incredible. As I have already said, I preferred his evidence to that of Mr Boyce on the extent to which they knew each other and had dealings together in the past. I also have no difficulty in accepting his oral evidence that the reason why he had the Plot transferred into the name of Miss Hoare was that he owned other properties “and did not want to pay CGT”. More difficult to resolve is the question whether he was indeed a creditor of Mr MacNeill in an amount exceeding £45,000, and whether the bearer draft was really paid to him by Mr MacNeill in discharge of such indebtedness. On the one hand, Mr Thorne and Mr MacNeill were old friends, and I can readily believe that they lent each other money from time to time, and that they did so in cash without keeping any written records or providing any receipts. On the other hand, there is inevitably a strong suspicion that the alleged loan of more than £45,000 and its repayment are a story invented by Mr Thorne and Mr MacNeill to account for the undoubted fact that the draft passed from Mr MacNeill to Mr Thorne in November 1999. Resolution of this issue, and also of the related question whether Mr MacNeill did indeed orally give Mr Thorne first refusal to buy the Plot, depends not only on the evidence of Mr Thorne but also on the evidence of Mr MacNeill himself, to which I will now turn. (4). Mr MacNeill[163]I come finally to the evidence of Mr MacNeill. I start from the position that his evidence must obviously be treated with great caution, in view of his two convictions for serious criminal offences and the admittedly criminal lifestyle which he has led in the past. Nevertheless, when cross-examined by Mr Duff and by counsel for the first and second defendants he gave his oral evidence in a clear and flowing manner, without obvious internal inconsistencies, and in terms of general demeanour he made a more favourable impression on me as a witness than Miss Caws, Mr Duff, Mr Boyce or Mr Thorne. That is not to say, of course, that his evidence is necessarily reliable. It has often been said that demeanour is one of the least reliable indicators of a truthful witness. However, it does encourage me to take his story seriously, and to compare his evidence carefully with that of the other witnesses and the documentation.[164]I would summarise the main points which emerged from Mr MacNeill’s evidence, both written and oral, as follows.(1) With regard to the initial purchase of the Plot in 1995, he agreed that the initial deposit of £1,000 came from Miss Caws’ bank account, and that the balance of the purchase price came from an account in the name of her uncle Mr Jim Caws. He accepted this (realistically, because there is documentary evidence to support it), even though he had obtained a brief witness statement from Mr Jim Caws which disclaimed any recollection of the transaction. At the beginning of the trial Mr MacNeill made an application, to which I acceded, to call Mr Caws as a witness in due course. In the event, Mr Caws was unwilling (because of illness and a recent bereavement) to attend court voluntarily, and Mr MacNeill sensibly took no steps to compel his attendance. However, Mr MacNeill maintained in both his written and his oral evidence that he gave Miss Caws a sum in cash (which he variously stated as being £10,000 or £11,000) in order to enable her to buy the Plot. He described the purchase as a joint venture between them, and said Miss Caws had picked it out because she thought it might be a good investment. It was also conveniently situated, being near their home at the time at 8 West End Lane.(2) With regard to the events which led to his first imprisonment in 1998, Mr MacNeill said that he did not own the cannabis in the van which he crashed, and the owners of the cannabis (who were dangerous criminals) demanded compensation from him for its loss. The sum required was £100,000, which he was able to pay within six months of his imprisonment. The payment was made by an unspecified friend of his. Of the £100,000, £45,000 was lent to him in cash by Mr Thorne, £25,000 was provided by a friend called Nick Clarke, and the balance of £35,000 came from his own resources, both legitimate (the proceeds of sale of cars, trucks etc from his former garage business) and illegitimate.(3) With regard to his subsequent arrest in 2001, and the sentencing hearing which took place before His Honour Judge McNaught on 20 March 2002, he said that the instructions which he gave to his solicitor, and the mitigation which his barrister advanced on his behalf, represented a mixture of truths and untruths, his prime object being to divert attention from the mortgage frauds which had been perpetrated by Miss Caws. To this end, he said that members of his family had been forced to dispose of properties in order to enable his debts to be paid, and referred to threats allegedly made for that purpose. The true position, however, was that some of the threats (such as the delivery of a wreath to his mother, Mrs Boyce) had in fact been made many years earlier, when he was a teenager, and other threats (although real) were nothing to do with the drug dealers whose cannabis had been lost, and nothing to do with the property transactions. The most serious threats originated not from the Adams family, but from three unnamed brothers.(4) The mortgage frauds were nothing to do with him, and were Miss Caws’ idea not his. Although he did not participate in the frauds, he knew that the mortgages on Rectory Drive and 70 North Road must have been obtained fraudulently because Miss Caws was not working at the time and had no legitimate source of income sufficient to service the mortgages. He accepted, however, that it was he who got the benefit of the £45,000 raised on the sale of Rectory Drive, and handed to him by Mrs Shirley Caws in the form of the bearer draft, because he used it to repay his indebtedness to Mr Thorne.(5) He also gave Mr Thorne first refusal on the Plot, and initially on 8 West End Lane too. He considered that he was entitled to do this because he and Miss Caws were “working together as an item”, and it was he who had originally financed the purchase of the Plot with his gift of £11,000 in cash to Miss Caws. He said that Mr Thorne had helped him out in the past, and was involved in building work. He would therefore be in a position to develop the land and make a profit on it. He agreed a price of £50,000 with Mr Thorne, because this was what Miss Caws’ research had led her to decide was the market value of the Plot.(6) Although Miss Caws did not know Mr Thorne personally, he (Mr MacNeill) told her that the purchaser of the Plot was a good friend of his, and she was content with that explanation. She also wanted the Plot to be sold. Their purpose in buying it, as with all their other property transactions, had been “to earn a few quid”. Mr MacNeill had not been involved in the property business himself before he met Miss Caws, apart from the purchase of his garage business. She was the one who obtained mortgages, and she was the driving force behind the property transactions. He agreed that she could be described as “highly manipulative”.(7) With regard to the bearer draft for £45,000, Mrs Shirley Caws was told by Mr MacNeill and Miss Caws that the money was needed for the building works on 70 North Road, which had already been started. He said to her that a bearer draft would be “an easy way” to provide the money, and she was happy to go along with that. She gave the draft to him of her own volition, and not as the result of any improper pressure. However, Miss Caws was in fact using other sources of money to pay for the building works at 70 North Road, so Mr MacNeill decided to use the draft to repay his debt to Mr Thorne instead.[165]I have found the evaluation of much of this evidence a difficult exercise. There are a number of points on which I have been unable to reach a firm, or indeed any, conclusion. However, there are some conclusions which I do feel able to reach, and which I will now set out, using the same numbering as in the previous paragraph.(1) I am not satisfied that Mr MacNeill provided any part of the purchase price of the Plot, either directly or indirectly. I am also not satisfied that there was any agreement or understanding between him and Miss Caws that he was to have a beneficial interest in the Plot. It follows that for the purposes of this action I proceed on the footing that the Plot was her property, both legally and beneficially, no claim to a share in it having been advanced by or on behalf of her uncle.(2) With some hesitation, I accept that Mr MacNeill was able to pay off the “debt” which he owed to the criminal owners of the lost cannabis with the help of substantial cash loans from Mr Thorne. Even if that is wrong, I am satisfied that this particular debt was repaid without the forced sale or transfer of any properties belonging to him or Miss Caws or Mrs Shirley Caws. I am unable to form a concluded view whether the amount demanded by the criminals was indeed as much as £100,000, or whether Mr Thorne did in fact lend him as much as £45,000, although I do not rule out the possibility that Mr MacNeill’s evidence on these points is substantially correct. Mr Thorne’s evidence about his loans to Mr MacNeill was in my view both vague and unsatisfactory. He said he had lent Mr MacNeill in excess of £45,000 “over the years”, and in response to a request for further information in March 2005 provided copies of entries in a Halifax Building Society pass book which show cash withdrawals totalling about £16,000 between January 1998 and April 1999, against which Mr Thorne has written “Gary”. It was put to Mr Thorne in cross-examination that the loans by him to Mr MacNeill were a fiction, but he denied this. As I have said, I accept that substantial loans were made, although I remain sceptical whether they amounted to as much as £45,000.(3) I do not believe that in 2002 Mr MacNeill consciously wished to divert attention away from the mortgage frauds which had enabled Miss Caws to purchase Rectory Drive and 70 North Road. I accept that he sought to build up a picture of vague and menacing threats from dangerous criminals which had led to property realisations to pay his underworld debts, but in my view his principal motive in doing this was simply to bolster the mitigation advanced on his behalf. It is ironic that the mixture of truth and falsehood which he concocted on that occasion in his own self-interest may later have suggested to Miss Caws and Mr Duff the equally unreliable mixture of truth and falsehood which in my view lies behind the claims in the present action.(4) I am also unable to believe that Miss Caws undertook the mortgage frauds without the knowledge and encouragement of Mr MacNeill, although I accept that the idea was probably hers originally, and I believe that she then took the lead in arranging them. At this date, long before Mr Duff appeared on the scene and the relationship between Miss Caws and Mr MacNeill broke down, it seems to me highly unlikely that either of them would have undertaken independent property dealings without having first planned and discussed it with the other. As Mr MacNeill said more than once, he and Miss Caws were “an item”.(5) &(6) I accept that the opportunity to buy the Plot (and initially 8 West End Lane too) was offered by Mr MacNeill to Mr Thorne. Mr Thorne was an old friend of his, and Mr MacNeill owed him a favour. Miss Caws was in my view content for Mr MacNeill to act on her behalf in finding a purchaser, provided that the Plot was sold for £50,000 which she considered to be its market value and was the price she wanted to obtain. The purpose of the sale was to realise a quick profit, in a situation where they were unable to develop it themselves.(7) As I have already said, I find the bearer draft and the uses to which it was put on its journey one of the most puzzling features of this case. I do not pretend to have got to the bottom of the mystery, although I strongly suspect that the draft was intended to serve some dishonest purpose by at least some of those involved. Further speculation would in my view be fruitless. What matters, for present purposes, is that the draft was used to complete the purchase of the Plot by Mr Thorne, and that the net proceeds of sale of the Plot were then (as I have found) paid by Mr Boyce to Miss Caws, who used the money in part to pay for the works of renovation at 70 North Road.

Conclusions

[166]After this lengthy review of the evidence, I can now state my conclusions shortly.[167]The unfavourable view which I formed of Miss Caws’ evidence is in my judgment reinforced when it is considered in the light of the evidence of the other witnesses. In particular, I am satisfied that she transferred the Plot to Mr Boyce of her own free will, that he sold the Plot on her behalf at a price which she had stipulated, and that he then accounted to her for the net proceeds of sale in cash. These conclusions destroy the whole foundation of the claimants’ case, which I consider to be a wholly unreliable patchwork of truths, half-truths and fantasy. Viewed as a whole, the evidence comes nowhere near establishing that Miss Caws was forced to part with the Plot against her will, or that Mrs Shirley Caws was forced to part with the £45,000. Although the standard of proof required is the usual civil standard of proof on the balance of probabilities, allegations as serious as those made in the present case must be supported by truly cogent evidence if the Court is to find them to be established. After hearing several days of evidence, and studying the contemporary documents, including in particular the conveyancing files, I have no hesitation in saying that this action fails and must be dismissed.[168]The conclusion which I have reached makes it unnecessary for me to go on and consider the further questions which would arise if I had accepted the claimants’ case on the facts. It is enough to say that I find it very hard to see how any case could plausibly be made out against either Mr Boyce or Mr MacNeill on the footing that they were merely transmitting threats made by third parties, and given that there is no support in the evidence for the alternative plea of fraudulent misrepresentation. Furthermore, even if circumstances had existed which made it possible in principle to set aside the sale of the Plot to Miss Hoare, difficult questions would have arisen as to whether the claimants have come to equity with clean hands, and as to the credit that should be allowed to Miss Hoare for her expenditure on the development of the Plot.[169]In the event, however, for all the reasons which I have given I will dismiss this action against the first, second and fourth defendants. I should add for completeness that the third defendant obtained summary judgment against the claimants as long ago as March 2004, and has played no part in the action since that date.