Shaw v Finnimore & Anor [2009] EWHC 367 (Ch)

[2009] EWHC 367 (Ch)

Case No HC08C00296

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 2 nd March 2009

Before

SIR JOHN LINDSAY

(SITTING AS A JUDGE OF THE HIGH COURT)

Between

ROYSTON HENRY SHAWClaimant

(1) LINDA SHEILA FINNIMOREDefendants

(2) MO FREDERICK WATTSDefendant

Mr Jeremy Callman (instructed by Wiseman Lee LLP) for Claimant

Mr Simon Lillington (instructed by Garner & Hancock LLP) for Defendants

Hearing Hearing dates: 10 th, 11 th, 12 th 15 th, 16 th, 17 th, 18 th& 19 th December 2008 and 15 th& 21 st January and 9 th, 10 th& 11 th February 2009

Judgment

[1]In this action Mr Royston Henry Shaw, known to many as Roy “Pretty Boy” Shaw, claims that, by way of the provisions, sometimes of law, sometimes of equity, the defendants are liable to pay or repay large sums to him. The defendants are, firstly, Miss Linda Sheila Finnimore, an erstwhile close friend and associate of Mr Shaw, and, secondly, her son, Mo Frederick Watts. Mr Watts has taken no active part in the action and is content to abide by my judgment. Miss Finnimore, by contrast, has very actively resisted Mr Shaw’s claims for recovery, which are put several ways, including recovery for misappropriation, deceit, misrepresentation, for mistake of fact, for money had and received and in respect of undue influence and unconscionable bargain.

[2]Outstandingly the largest single sum claimed by Mr Shaw is one of £643,000 paid on 30th October 2007 by a bank transfer, signed by him, from his bank account at HSBC’s Brentwood branch to Miss Finnimore’s account 00011711 at HBOS. £100,000 of the £643,000 were promptly transferred on by Miss Finnimore to her son and it is accepted that the 2nd Defendant’s case stands or falls with Miss Finnimore’s case as to the £643,000. Mr Lillington, counsel for Miss Finnimore, rightly describes as the single most important issue that of why it was that the £643,000 found its way from Mr Shaw’s account to Miss Finnimore’s at the end of October 2007. I shall later deal with that issue ahead of all others but I should first say a little as to the procedural history and rather more as to the parties. B. Procedural history

[3]On 29th January 2008 Mr Shaw moved ex parte and obtained from Evans-Lombe J a freezing order over, inter alia, Miss Finnimore’s Halifax account 00011711. Also “frozen” was a house in Miss Finnimore’s name (but subject to a substantial mortgage) at Newton Abbot in Devon. The order made provision by way of exception from the freezing order for £500 per week for Miss Finnimore’s living expenses and for reasonable sums for her legal expenses. After evidence or further evidence was filed by both sides, on 4th March 2008 David Richards J continued the Order of 29th January until final judgment or earlier further order. On 27th June 2008 the exceptions to the freezing order were enlarged by order of Patten J so as to permit the payment from the frozen account of £13,478.62 of Miss Finnimore’s then mortgage arrears on her Newton Abbot home and of monthly mortgage payments thereafter of £1,514.94 until the conclusion of the trial. Before the freezing order took effect Miss Finnimore had already substantially reduced the £643,000 that had passed into her Halifax account and the exceptions to the freezer which I have described, with other agreed exceptions, have led, I am told, to over £200,000 having been allowed out of the frozen account in favour of Miss Finnimore’s living, mortgage or legal expenses. At the conclusion of the hearing of the action on 11th February I put an immediate end to the exceptions to the freezing order. However, given that Miss Finnimore’s evidence was that her only present resources are the Newton Abbot house and (on the assumption that it is hers) the balance for the time being remaining in the frozen account, one can see why Mr Lillington described the single most important issue in the action as he did. Before I turn to it, though, I must, as I have said, say something of the main parties, Roy Shaw and Linda Finnimore, and the relationship or connection between them.

The principal parties: Mr Shaw

[4]Mr Shaw was born on 11th March 1936 and accordingly is very nearly 73 years of age (although Miss Finnimore repeatedly referred to him as being 77). He has a history of criminal violence and dishonesty and by 1974 had spent some 18 years in prison, some of that period having been spent in Broadmoor. I do not understand him to have been in prison or to have received custodial convictions since 1974 although that is not to say that it can be assumed that his life has been free from violence and other crime since then. Once out of prison he became a champion unlicensed bare-knuckle prize fighter under the soubriquet Roy “Pretty Boy” Shaw. He became and (although no longer fighting) is still well-known in the raffish worlds of “villains” and of bare-knuckle fighting, so much so that his life has been the subject of a published biography by Kate Kray, widow of the widely known gangland figure. Mr Shaw was a well-known figure in the criminal milieu which grew around the Kray brothers. He was a pall-bearer at the funeral of one of them. His circle still contains figures from that milieu; he numbers infamous names amongst his friends and acquaintances and is celebrated in such circles as a man who, as it would be put, has not let “the system grind him down” but rather has so risen above it as to have become both well-known and wealthy enough to be able to sustain a lifestyle which is occasionally flamboyant or extravagant.

[5]Even leaving aside, for want of any detail either pleaded or proven, the question of whether Mr Shaw is still responsible for violence or for credible threats of violence to those who have crossed him or who may cross him (as to which there is no evidence save Miss Finnimore’s repeated but entirely unspecific evidence) there are other attributes of Mr Shaw which require particular mention.

[6]Mr Callman, counsel for Mr Shaw, called Professor Robert Howard, MB., BS., MD., MRCPsych, the distinguished Professor of Old Age Psychiatry and Psychopathology at the Institute of Psychiatry at The Maudsley. Professor Howard had examined Mr Shaw in March and September 2008 and had also examined his medical records. His written report refers to Mr Shaw accepting that, as a boxer, he had taken a large number of blows to the head during his fighting career; the Professor refers to episodes of disorientation, of acute confusion, of Mr Shaw’s particular difficulties with tests (by another doctor, a Specialist Registrar in Old Age Psychiatry) of his remote and recent memory and of likely diagnoses (by other medical specialists) of Mr Shaw having a mixture of Alzheimer’s disease and vascular or cerebrovascular disease or impairment. Professor Howard’s own view was that Mr Shaw clearly has impairment in his memory and attentional functions and significant impairments in some of the higher order frontal lobe functions, those that are often referred to as executive functioning. The Professor records also a significant possibility that the sedatives habitually taken by Mr Shaw contributed to his confusion.

[7]Although, inevitably, the Professor’s examinations of Mr Shaw were after the most material time down to late October 2007, there is nothing in his report which suggests that the disadvantages from which Mr Shaw suffered were of only more recent cause or origin or of their being, for example, steeply progressive, in such a way that they would have been significantly less marked in October 2007. The medical records of others of which the Professor writes and with which he does not quarrel include records relating to times in 2007 before October. I have no reason to suppose that the deficits in short-term memory and attentional function of which the Professor writes were any materially less in late October 2007 than when the Professor examined him. Professor Howard reports that between April 2006 and October 2007 it would have been apparent to anyone who had an opportunity to observe Mr Shaw at close quarters that he was suffering from memory problems and had episodes when he would become disorientated.

[8]As for whether Mr Shaw had a suggestible disposition or a dependant personality, the word “personality”, explained the Professor in oral evidence, had, in technical psychiatric terms, perhaps a more restricted or different ambit than in laymen’s ordinary speech but that in his view Mr Shaw was not unusually vulnerable to undue influence by reason of an usually dependant personality or, indeed, was otherwise unusually so vulnerable. He was, though, unusually vulnerable to abuse (if their intentions were less than honest) by anyone whose abilities he respected and whom he believed he could trust to look after his best interests. Mr Shaw, said the Professor in oral evidence, was always (meaning always at least) a little bit disorientated and his memory defect was more particularly as to his recent memory and it made him vulnerable to “something different”, meaning, as I understood it, to something outside his routine. He would be less likely to suffer from poor memory with respect to a particular action only a few days before if he had seen it to be of importance to him or if he had had his memory recently jogged in relation to it. In such circumstances he might remember it but if there were several transactions going on at or about the same time then each would have been likely to have been less memorable as a separate event and he could credibly not have regarded as important, and hence have been likely to remember, a movement from one bank account of his to another also of his.

[9]Miss Finnimore said in oral evidence that she did not accept the Professor’s conclusions but no expert evidence was called by her to counter this and her own remarks at various stages as to his mental health and memory, many of which I shall collect below, seem more to support Professor Howard than to rebut him.

[10]In these circumstances Mr Shaw, far more credibly than most witnesses, could and did say “I can’t remember”. Even so, I sometimes had the suspicion that on occasions he was using the phrase rather as a defence against further questions than as a reliance on a genuinely poor memory. As will appear, I do not accept his evidence on all points, nor could I describe him, given the genuine and also the possibly-affected impairments to his memory, as a good witness but he was not demonstrably caught out as a liar.

[11]Miss Finnimore spoke of Mr Shaw as having a serious cocaine habit at the times material to this action (as to which the medical evidence says nothing) and of his being an habitual user and abuser of tranquillisers or sleeping tablets, for which there is medical evidence. He denies that he takes cocaine. He is not an educated man and is slow in speech and, in any areas with which he is not long familiar, also in thought. He is not at all at home with documents – for example conveyancing or planning dealings. A solicitor whom Mr Shaw consulted for a while in and after June 2004, Mr M.C.J. Murphy, who, in his oral evidence, impressed me as a good, clear and impartial witness, spoke of Mr Shaw not understanding documents other than in general terms. As for banking, in that connection Mr Shaw said (of dealings at the most material time) “it was all technical and I don’t know nothing technical” and, whilst that might be laying--on his ignorance a little too thick, I would accept that internet banking, inter-bank transfers and forms for them or for CHAPS transfers and, indeed, any banking beyond simple payments into and cheque (and perhaps cash-point) drawings out of his own familiar account would all represent areas which he would regard as “technical”, would be outside his ordinary experience and, without more, outside his immediate comprehension. He is not without native instinct for self-protection as against those whose intentions he doubts; he is not gullible in relation to matters he has had time to comprehend or which are within his routine but outside that he is more than usually likely to be confused or, especially at the suit of someone he trusts, confusable. As for computer-literacy, as to which there was a dispute, I hold Mr Shaw at material times to have been capable of only the simplest dealings and those mostly for his own gratification rather than for anything else.

Miss Finnimore

[12]As for Miss Finnimore, she is a good deal younger than Mr Shaw. She, for whom the word “feisty” could have been minted, is more educated than he and far more intelligent. Indeed, she is a clever and very quick-witted woman with very diverse skills including wide-ranging and much used computer skills. Unfortunately her considerable skills have (leaving aside present complaints) not always been applied to acceptable purposes. Between her first criminal conviction in October 2003 and her last one in September 2005 she acquired 13 criminal convictions for fraud and kindred offences, one for theft or a kindred offence, one drug offence and five miscellaneous convictions. Many of the convictions, although related to the same one event or series of events, relate to the obtaining of property by deception.

[13]Like Mr Shaw, she, too, is part of and familiar with an East End and Essex criminal milieu, one described by her as a violent one of “villains” and “gangsters”, an underworld, she said, of murderers and gangsters. She, too, was acquainted with one or other of the Kray brothers and even, amongst the many other aliases which she has used from time to time, has called herself “Linda Kray”, having claimed to be a daughter of Reggie Kray.

[14]In terms of her conduct as a witness, as opposed to the content of her evidence, it was poor. She was verbose, argumentative, very frequently interrupted Counsel with an irrelevant answer before the more pertinent question, answered questions with questions or rambled off (sometimes, as I believe, to give herself time to think of a better answer or to qualify one already given) or sought to wriggle out of that which seemed plainly enough to emerge even from her own documents or her own earlier evidence. Of course, even such a witness can, overall, be a witness of the truth but, unfortunately, I cannot so describe Miss Finnimore. She was so often found to be inconstant, inconsistent or untruthful on particular matters as to have totally undone my ability safely to rely on her uncorroborated evidence, though that is not to say that nothing that she said was true or that I should invariably prefer Mr Shaw’s evidence to hers. I shall give examples of the shortcomings in Miss Finnimore’s evidence as this judgment proceeds in its dealing with the main issues but I shall also list below some particular shortcomings falling outside the real issues and where the evidence in the event went only or chiefly to credit.

[15]She has been married twice, and she has enjoyed an unmarried relationship with a man who died young; as I shall return to below, she may still be married to, albeit long separated from, her second husband. She has three grown up children who include a son, as I have mentioned, the Second Defendant, who did not give oral evidence, and a daughter, Teresa Brown, who did.

The relationship between Mr Shaw and Miss Finnimore

[16]The initial position of both sides was that their relationship was asexual and accordingly Mr Shaw was not cross-examined on his written assertion that they had never had a sexual relationship. Ungallantly he also wrote “you would not call her beautiful and I did not fancy her sexually”. Her written evidence was that she was not agreeable to having a sexual relationship with him. However, in her oral evidence she volunteered, not in answer to a question, that she had frequently shared his bed, had cuddled him and that, although stopping short of full sexual intercourse, there had been sexual practices (which she rightly felt it was irrelevant for her to explain) between them. I hold that to have been more likely than a wholly asexual relationship; I mention this not out of prurience but to lead to my holding also (as may be relevant to the later discussion as to undue influence) that sex played so relatively small a rôle in their relationship that a threat on her part to withhold it or abstain from it (had there been one) would not have enhanced any power or dominance she otherwise had over him.

[17]Leaving aside for the moment whether they had any relationship at all before April 2006, between then and late 2007 there was undoubtedly a relationship of a kind between them. I accept that she was financially totally dependant upon him during this period. He says she was a terrific personality to spend time with and she often decorated his arm on his frequent social excursions to parties, clubs and pubs and was often to be found at his house at Fourways, Wood Green Road, Waltham Abbey, Essex. It is difficult to form a view as to just how often she visited Fourways or stayed the night there but I hold both to have been common enough and she was certainly thoroughly familiar with the arrangements at Fourways and operated one or more computers there.

[18]In uncontested evidence Mr Shaw asserts that he let her deal with his affairs, that he relied on her for advice and guidance in business matters and believed she was looking after his interests as a good friend. He came to regard her as the “brainiest” or one of the brainiest persons he had met; she seemed to him “to know everything about everything”. When he met solicitors and accountants he let her do all the talking on his behalf. He relied on and trusted her for help. He put his trust in her. He pleaded that he reposed trust and confidence in her, someone he considered to be intelligent and as a person, “as she told him, well-versed in financial and business matters”. She became (with my emphasis) “the person he relied upon for help and guidance”. She admitted all that in her defence. In oral evidence she accepted that she handled his tax affairs. She accepted she managed his financial affairs. “I dealt with everything” she said and orally re-iterated her acceptance that he placed trust and confidence in her. She had nursed him, she said; she shopped for him.

[19]As for love between them, although at a late stage in her oral evidence she said that she had loved him and that they had had feelings for one another, it had never been put to Mr Shaw that they had been that close and, on the different topic of whether they had ever planned to marry (which he denied), she said, in effect, that it would have been a marriage of convenience. Had there ever been love for the other of them on his part or hers, which I would not hold to be the case, it has evaporated long since. But, in sum, before late 2007 they had (with occasional ructions) been close friends at least from April 2006, with him being pleased to have her company, to provide her upkeep, to show her off as a girlfriend and with his trusting her and being reliant, as I have mentioned, on her in the business and financial areas I have described.

A profit-sharing agreement?

[20]Mr Shaw owned land at Chadwell Heath. It turned out to be very valuable. On 9th June 2006 he contracted to sell it for £2 million net of CGT. The purchaser was to pay the CGT to him, with he, of course, then having to pay the CGT to HMR&C. Thus the purchase price in the contracts then exchanged was specified at £2,688,318 though with a provision for repayment by Mr Shaw or further payment by the purchaser should the ultimate liability for CGT transpire to be less or more than the then-estimated figure of £688,318. The contract was completed upon the payment to Mr Shaw of £2,671,370 in March or April 2007; it went into a Premier Savings Account in his name which was opened at HSBC. It is Miss Finnimore’s case that the £643,000 to which I have referred, which was paid into her account by Mr Shaw on 31st October 2007, was money paid to her under a contractual obligation made between them as to a sharing between them of part of the proceeds of sale of the Chadwell Heath land.

[21]It is important to state that Miss Finnimore asserts no right to all or any of the £643,000 other than by way of such a contract; it is not said that the sum or any part of it was by way of gift or was payable or paid in any other way than under the sharing agreement which she asserts (but which he refutes). Plainly, whether such an agreement was made is thus a central issue and its importance is only bolstered by concessions expressly (and, in my view, rightly) made by Mr Lillington: firstly that, in all the circumstances, the onus of proof as to the sharing agreement is on Miss Finnimore and, secondly (as she herself also accepted in her oral evidence) that if no relevant sharing agreement is held to have been made then Miss Finnimore had and has no right to have received, nor has any right to retain, any of the £643,000, which would then, without more, become repayable, no doubt with interest, to Mr Shaw.

[22]Both in her written statements made in the proceedings for the freezing order and its continuation and in her Defence of 6th May 2008 the sharing agreement was alleged in terms surprisingly vague, given its importance to her case, and in her evidence its date was given as 2005. Before the hearing began and, whilst I was reading into the case, on 8th December 2008 I invited attention to be given in detail to that imprecision. After the first day of the hearing, 10th December 2008, and after further opportunity given to Miss Finnimore’s solicitors and Counsel to take instructions from her, she gave written further and better particulars of the alleged agreement, verified by her own statement of truth, on 11th December. In that way it was either stated or clarified that the only parties to the alleged agreement were Mr Shaw and Miss Finnimore, that the agreement was only oral, that it was made at Fourways, that no one else was present when it was made and that it was made in early 2002 (albeit frequently discussed, repeated or reaffirmed thereafter). My understanding, which I mentioned during the hearing and which I did not take to be contested, was that, despite whatever discussion or re-affirmation had later occurred, there was, for all that, only the one contract alleged, namely that, it was now said, of early 2002.

[23]After the reference to early 2002 in the typescript Particulars there was added, presumably on late instructions from Miss Finnimore, the words, in handwriting, “(after the 1st Defendant had hugely assisted the Claimant in relation to his application for planning in August 2000, which was rejected in early 2001)”. That earlier “huge assistance” could, of course, be, at best, past consideration, and hence no consideration, for an agreement made in early 2002. The consideration for the alleged sharing agreement was defined in Miss Finnimore’s Particulars of 11th December 2008. I do not say that the pleaded consideration could not have amounted to full and valuable consideration and I shall not set out all the headings of support and advice that it was agreed, says Miss Finnimore, that she would provide to Mr Shaw “in his efforts to sell his land … and generally”. However, that alleged support included advising him not to sell for £1 million “when an offer in that sum was made prior to 2004, via Gerry Cooper”. There was no evidence from the offeror nor from Gerry Cooper and, as I shall revert to below, on the evidence put before me, I do not accept her evidence that there ever was a relevant offer at £1 million.

[24]The terms of the alleged agreement were stated in Miss Finnimore’s Particulars as follows: “… that on completion of the sale of … the land at Chadwell Heath the proceeds would be divided as to the 1st £1m to the Claimant and any balance over £1m would be divided equally between the Claimant and 1st Defendant”.

[25]As I have mentioned, the Claimant asserts there never was such a contract and, relying both on Mr Shaw’s own evidence and deficiencies or omissions in that of Miss Finnimore, Mr Callman advanced a comprehensive attack upon its existence.

[26]Firstly he says that as at “early 2002” Mr Shaw and Miss Finnimore had met, if at all, only in the way in which a well-known figure or celebrity (such as Mr Shaw was and is in the circle in which both moved) may be identified, approached and briefly spoken to by members of the public. It is his case that they only “met” to any degree greater than that in April 2006. Mr Shaw’s witness statement said:

“I met Linda Finnimore in Sinatra’s bar in Puerto Banus, Spain, in April 2006 when I was there on my own on holiday staying at my two bedroom apartment in nearby Estapona. She said: “Hello Roy. Don’t you remember me?” as if she already knew me. I said I did not. Later that evening we went together to Lineker’s in the same resort. Although she appeared to know me and called me by my name, I could not and cannot remember having met her before”

. He was not cross-examined as to how she then greeted him or his reaction to it. Miss Finnimore resisted that they had not met before April 2006 by giving her version as to when and how they had met. Unfortunately for her, there were marked inconsistencies or worse in her version.

[27]Her witness statement of February 2008 (echoed in less detail in her Defence of 6th May 2008) said that they had met initially in 1993 when she was visiting Reggie Kray and Mr Shaw was visiting Freddie Foreman, both of those criminals being then in Maidstone Prison. Mr Shaw countered that he had never visited Freddie Foreman in prison and had been banned from visiting Maidstone Prison. He was not cross-examined as to that so I have no reason to disbelieve him and hence no sufficient reason to accept that they had met at Maidstone in 1993.

[28]In her supplemental witness statement of 14th November 2008 Miss Finnimore stated:

“… I have known [Mr Shaw] since 1992 when we met at Epping Forest Country Club, being introduced by a mutual friend”

. Thus the first meeting was now a year earlier, at a different place and was now upon an introduction. The mutual friend was not identified. When cross-examined on the difference Miss Finnimore said that she was not departing from her earlier witness statement but just adding to it. I do not accept that.

[29]The language I have cited and which Mr Shaw said was used when he met Miss Finnimore in Spain in April 2006 is consistent with their having nothing beyond an occasional acquaintance prior to that, but so also is the language she has used in relation to that meeting. Her written statement or affidavit of February 2008 speaks of her having “bumped into” Mr Shaw in a bar in 2006. That hardly fits a description of a meeting between persons who, on her evidence, had by then had a long-standing relationship. Moreover, on 13th December 2007, at a recorded interview at Loughton Police Station (a transcript of which was commissioned by Miss Finnimore and served by her solicitors), she used the expression “bumped into” four times in relation to her meeting Mr Shaw in Spain in April 2006, adding, most tellingly, “… this is when we got together”. In cross-examination she said that on meeting Mr Shaw in Spain in April 2006 she had said “What are you doing here?” and that it was from then that she helped him.

[30]I shall need later to refer to the evidence of other witnesses called by Miss Finnimore which suggested that she and Mr Shaw were thoroughly well met long before April 2006 but, limiting myself, at this stage, to the parties’ evidence, I could not hold that they had been any more than bare acquaintants before that date.

[31]That, too, would be consistent with the total absence of any evidence from any truly independent parties as to their having been seen together or as to Miss Finnimore having helped Mr Shaw with, say, financial, tax or planning matters, before April 2006.

[32]Consistent, too, with the absence of any photographs of them together before then. There are very many photographs of them together, with or without others, after April 2006 but none before. Miss Finnimore sought to explain that by saying, firstly, that material, including photographs put on the computer at Fourways, had been deleted on Mr Shaw’s behalf or by him and, secondly, that she could not get access to those left loose or in albums at Fourways. Even so, one might expect that at the Newton Abbot house there would have been some such photographs or that her parents or children might have kept holiday or other snaps. However, beyond her bald assertion, there was no evidence to support those explanations, which, in any event, would not explain the absence of photographs which had included third parties and copies of which had been kept by such third parties.

[33]Miss Finnimore said that others in the criminal milieu were too frightened to help her (presumably even to the limited extent of supplying her with copy photographs to be then produced by her) but, as I have already touched on, threats were neither pleaded nor evidenced in any credible detail, nor was it put to Mr Shaw that he had so threatened or could procure such threatening of others as could deny her such evidence, the absence of which I find striking. At lowest one might have expected her Solicitor to depose that Mr A, Mr B and Mrs C had all been approached to give evidence but, without any real explanation, had declined to do so. I cannot assume that the individuals, including relatives of Miss Finnimore, who gave witness statements but did not attend for cross-examination chose that course because of threats. There was no evidence of threats and their failure to attend was at least equally explicable by reference to a disinclination to have the written evidence tested in Court.

[34]It may be that Miss Finnimore’s late-added reference in her Particulars to planning in relation to the Chadwell Heath land in 2000 and 2001 was intended to show her familiarity with matters before “early 2002” in order to strengthen her averment that they had met in the 1990s and that she had worked in relation to the sale of the land before 2006. If that was the intent it failed.

[35]Firstly, the assertion led to the Claimant adducing late evidence the next day from Mr L.H. Munday, an Architectural and Building Surveyor who had acted for Mr Shaw from July 2000 in obtaining a renewal of the then-extant outline planning consent for flats on the Chadwell Heath land. He exhibited his complete file, which ran down to March 2003. He said, in evidence that was not challenged:

“Throughout the time I acted for Mr Shaw, I only ever dealt with him and was not aware of anyone else, male or female, helping him through the process.”

[36]Secondly, the planning application to which she had referred was not rejected, either in early 2001 or at all; as it says in capital letters in heavy type, it was granted, albeit subject to conditions. In cross-examination Miss Finnimore had no explanation for why she had caused a rejection to be referred to in the words which she had required to be added to the typescript of her Particulars.

[37]As for “early 2002” as the date of the alleged sharing agreement, almost as soon as it was put to her in cross-examination she said instead that it had been in 2000 that Mr Shaw had said as she had claimed that he had as to a sharing agreement. Given, on her belief that the land could fetch as much as £5,000,000, the alleged agreement would have been of huge importance to her, it would be reasonable to expect that she should have firmly committed to memory just when it was made, if it was, yet before the Further and Better Particulars 2002 had never been mentioned and, when she gave oral evidence, even that whole year was then almost immediately abandoned and replaced.

[38]Even more telling evidence against “early 2002” emerges from the transcribed tape of the Police interview of December 2007, several passages from which tape were played between Counsel and Solicitors for both sides with some select ones played also, in Court, to Miss Finnimore. Det-Constable Foley asked her, in relation to the sharing agreement and to the £643,000 or more:

“D-CF: So when was this deal made that he’d give you this money?”

LF: Blimey. Back last year. June, last year. D-CF:

“June last year? LF: Mmm. D-CF: And he agreed, what was the sum of money that was agreed? LF: We had agreed on 50/50.”

That evidence, of course, suggested a sharing agreement of June 2006. D-CF:

“June last year? D-CF: And he agreed, what was the sum of money that was agreed? LF: We had agreed on 50/50.”

D-CF: And he agreed, what was the sum of money that was agreed?

[39]That reference to 50/50 leads me to what was the form of the split of the proceeds which Miss Finnimore alleges. I have already cited her Particulars on the point. Mr Callman rightly emphasises a number of intrinsic unlikelihoods hidden there. The divided balance is not said to be of any balance over £1 million left after tax but a balance of the sale proceeds, namely, in the event, of the £2.688m, of which Mr Shaw would then need to pay £688,000 (adjusted up or down) in CGT. Miss Finnimore, on her allegation, would take £844,159 (half the excess of the total proceeds over £1 million). The remaining £1.84m taken by Mr Shaw would be depleted by the CGT and he would, on this version, be left with only £1.844m minus £688,000 = £1.156m. There was, said Mr Callman, as I accept, an inherent improbability in an agreement, if it were between fair-minded people, that left Mr Shaw bearing all the tax in that way.

[40]If the alleged equal split of any excess over £1m was, as I would hold, inherently improbable then a fortiori would be improbable an equal split of the whole sale proceeds yet, at one point, that was the agreement of which, on oath, Miss Finnimore gave evidence. Mr Callman, seeking to find just what had been said as the alleged agreement was made, obtained from her the answer (verified by Mr Lillington and, Mr Callman having been on his feet, by his Instructing Solicitors) that Mr Shaw had said to her:

“You do the work, you’ll get half the money”

. In the event that happened she would then have been contractually entitled to £1.344m. I think it likely (as was one other notetaker’s recollection) that shortly before that she had claimed that he had spoken only of half the excess over £1m and Miss Finnimore had also spoken of there being a halving of anything over a million in the Police Interview. She is far too intelligent not to recognise the difference between the two versions or to confuse the two and the late emergence in her oral evidence to me of this more extreme version could only weaken further the reliability of her evidence. In the same vein, her oral evidence that he had always said that half of what he had was hers, shared once they got married, does not assist the credibility of the alleged agreement in the circumstance that they did not get married.

[41]Mr Callman also pressed Miss Finnimore about the total absence, admitted by her, of anything in writing known to her as evidencing the alleged agreement. Nothing contemporary shewn to me even hints at its existence. That absence needs to be set in context. Even her pleaded version could yield her a very substantial sum. She could, out of its fruits, discharge the Newton Abbot mortgage, help her parents, advance her children and improve her own life. There were good reasons for her to regard its existence and implementation as crucial. So long as there was nothing in writing then, during the long interval between its alleged creation in early 2002 or even earlier and the honouring of the alleged agreement after the sale being completed in March or April 2007, Mr Shaw would be free to deny it and the matter would become oath against oath. Even if Mr Shaw remained constant to her in a way he had not with other women (with whom he had been, on occasion, volatile in his relations and peremptory in dismissal) then, on her own view of him, he might during that period lose capacity to deal with his own affairs or lose all memory of the agreement or be turned to prefer his children as beneficiaries and hence to choose to deny its existence. She had also already had one partner who had died suddenly and at a far younger age than Mr Shaw was in and after 2002 and she could have had no reason to think his personal representatives would, on her unsupported say-so, accept that he had agreed as she would then allege.

[42]Her own view of him appears all over the papers. I am not here concerned with whether her view was justified but merely with what it was. He was, in relation to one financial matter, “very confused”; as to another, she said, he was getting “fed up and confused”; he was “erratic”, which she attributed to his using cocaine, he having in her view always been a heavy cocaine user, which, she thought “was having a hugely adverse effect on his health and ability to have a proper recollection”. He took lots of sulphates, she said. She told the Solicitor, Mr Murphy, that Mr Shaw could become somewhat confused and forgetful. By November 2006 she is recorded in a note (which I have no reason to doubt) as having been quite worried recently about his mental health. In oral evidence she spoke of his still using cocaine and his being “all over the place”. She was concerned; he could get up in the morning and think that she was his mother. She had spoken to a hospital nurse who was sufficiently concerned that tests for Alzheimer’s (which she knew his mother had suffered from) were either proposed or run. She agreed that at 17th May 2007 there was serious concern about his mental health. By October 2007 she intended to ask a medical team to confirm in writing that Mr Shaw had lost the power to represent himself. He was very paranoid; he would get aggressive. She told Mr Shaw’s Solicitor that Mr Shaw had been diagnosed as having Alzheimer’s disease and when that was put to her she agreed and said she had been given a copy of a report from the Princess Alex Hospital. She knew, of course, of him as an erstwhile prize fighter and spoke of him as “punchy” and as a man who had had powerful electronic treatment when he was in Broadmoor. In the transcribed interview with the Police she referred to him as a “poor old man” and as “not mentally stable”, “not that mentally stable” and as a person who made a decision and might change it two minutes later. She said his mind was in “total turmoil because he doesn’t know whether he’s coming or he’s going”.

[43]Given that view which she had of him and the other circumstances I have described, coupled also with her very keen fear that his children would seek to turn him against her, it would, at lowest, be remarkable that, despite her intelligence and the crucial importance of the alleged agreement in her life, its existence was never even hinted at in any writing. She is not able credibly to say that their relationship was not such that anything was or needed to be put into writing as far less significant IOUs and even less important documents were put in written form between them. The absence of anything in writing adds to other reasons for holding that the alleged agreement never existed.

[44]She gave evidence that an attempt had been made, with a Solicitor’s help, to get something down on paper mainly on another issue but from which the existence of some sharing agreement could be inferred. The Solicitor was identified but gave no evidence; no draft or other writing substantiated this allegation but she accepted that Mr Shaw changed his mind and (with my emphasis) “did not want me to sign such a document after all”. That does not explain why she did not persist with a signing of some document which could have touched, inter alia, upon the alleged obligation on him to share the proceeds. In any event, it adds no credibility to an oral agreement that a document which would or might have touched upon it was declined to be agreed.

[45]Another oddity is this. Mr Shaw received the sale proceeds not later than April 2007. Given Miss Finnimore’s rôle in his affairs I would expect her to have known of that within days. There is no evidence that she did not. Once she had received the £643,000 in late October 2007 she immediately made large dispositions out of it to her family. That, on a cynical view, was to make recovery from her by Mr Shaw more difficult, once he realised how much he had passed to her. On a more generous view, the speed with which the family dispositions were made by her was because she was zealous to assist her family as soon as possible. But if that more generous explanation were to be adopted, why had she not pressed for Mr Shaw to transfer her alleged share of the proceeds to her much earlier than late October? The delay from April to late October was not explored but does nothing to ease acceptance of her alleged agreement.

[46]Another reason suggestive of the alleged agreement never having existed is the probability that there had been an oral agreement that anything received over £2 million net of tax for the land would be divided 50/50 between them. As early as June 2004 Mr Shaw had had an offer for the land at £2 million net of tax and an Option Agreement (limited to expire on 30th June 2005) was signed on 19th July 2004. The option did expire but negotiations began again and a conditional sale agreement at £2.688m was signed on 3rd November 2005, the completion having to be by 30th November 2006. As I have mentioned, contracts at £2.688m were exchanged in June 2006. Mr Shaw’s evidence, which I accept, was that he had not had an offer at £1 million, that he had told his Solicitors he wanted £2 million net, that he gave his word to the prospective purchaser at £2 million net, that it was not he who wanted to get out of that deal but that he said to Miss Finnimore (as he began, in his oral evidence to me, to say) “I said if you get more ….” The sentence was not then finished but his evidence then suggested that there may have been some agreement with Miss Finnimore which would take effect if more than £2 million could be obtained. In context that reference to £2 million was to £2 million net; whilst Mr Shaw’s oral evidence was rather hesitant I took it that he did say to me, as Mr Lillington asserts, that he had made an agreement with Miss Finnimore, meaning a sharing-of-net-proceeds agreement, to take effect if more than £2 million [net] was obtained. Indeed, however hesitant Mr Shaw’s evidence on the point, that Mr Shaw said that he would divide equally with Miss Finnimore anything above £2 million net was averred in the Claimant’s response to Miss Finnimore’s Particulars.

[47]That was not explored in any depth because more than £2 million net never was obtained but that there was an agreement to reward Miss Finnimore if any such higher price was fetched has the further support that it would explain her considerable, even desperate, efforts to get Mr Shaw out of the £2 million net agreement by which he was bound. She told Mr Shaw’s Solicitor in August 2006 that he did not believe he had signed the contract of June 2006. The fact that Mr Shaw went along with that may speak more as to Mr Shaw’s memory or as to her influence over him than as to the signature as the Solicitor, Mr Murphy, pointed out, as Mr Shaw then accepted, that he had been present when Mr Shaw had signed.

[48]Next Miss Finnimore suggested that Mr Shaw had not had mental capacity at the time but Mr Murphy advised that he could not see how Mr Shaw could break the terms of the contract. Later, in September 2006, Miss Finnimore suggested to Mr Murphy that the purchaser, a company, did not exist; he established that it did and was registered in Gibraltar. Next Miss Finnimore indicated a wish that Counsel’s opinion should be taken and, although I have not seen the Opinion, it is plain that it did not suggest that the contract could be escaped. Mr Murphy also established that there was no planning ground on which the contract could be avoided. Mr Shaw himself had over time associated himself with some or all of these attempts to escape the 2006 contract but the prime mover to that end, as I hold, was Miss Finnimore. I do not say that she would not otherwise have had such a motive but that she had a contract, if she had, with Mr Shaw to share any excess over £2 million net of tax would have provided her with a motive to take the many steps she took or joined in taking. Miss Finnimore had thought an extra £1 million could be fetched if only the £2 million net contract could be escaped and Mr Shaw’s evidence was that if she could get that extra million he would have been happy to let her have half of it because it would have been her idea and her work which would have obtained it.

[49]Mr Shaw’s evidence that he “would have been” happy so to agree and his evidence, albeit hesitant, that he had so agreed leads to its not being not at all improbable that he furnished Miss Finnimore with a belief that she would get half of anything over £2 million net. On balance I conclude that that was not merely something said by Mr Shaw but that there was an oral sharing agreement, a contract intended to be enforceable, as to any sale proceeds over £2 million net. If there had, indeed, been the 2000, 2002 or 2005 agreement to share which Miss Finnimore pleads or which she avers in her evidence, this later agreement would have either been redundant or even (depending on precisely what form of first agreement would have been upheld, especially as to tax) would have been in conflict with the earlier one having continuing effect. There never were any proceeds over £2 million net but the fact that there was such a later agreement would be a modest further ground for disbelieving that a sharing agreement as to the excess over £1 million was ever made or, if made, had been intended to have continued in effect even after what would have been the later agreement.

[50]An agreement as to the excess over £2 million net would have been more likely than a split of anything over £1 million net as Mr Shaw’s evidence was that he had never had an offer lower than £2 million gross and that Miss Finnimore had played no part in the obtaining of the contract at £2 million net. Miss Finnimore, though, was adamant that there had been an oral telephone offer or offers at £1 million gross in late 2005 or 2006 and that it was her endeavours that had managed to increase the price to £2 million net. I prefer Mr Shaw’s evidence to the contrary; there was no evidence from the alleged offeror of £1 million and, despite her saying there had been correspondence on the point, nothing in writing was shewn to me to confirm that such a £1 million offer had ever been made. In turn, as I have already mentioned, I do not accept that there had been the head of consideration in which Miss Finnimore alleges that she had advised against acceptance of an offer of £1 million. Nor was there anything to support Miss Finnimore’s view of the effectiveness of her efforts in procuring the contract of 9th June 2006, the contract which was eventually completed. All her efforts were dedicated to undoing it, not procuring it.

[51]Mr Shaw’s oral evidence was that Miss Finnimore helped him in relation to the Chadwell Heath land only after he had sold it, that she had had nothing to do with the sale that actually took place, that he did not meet her in any real sense until April 2006, that he never made the sharing agreement (i.e. sharing any excess over £1 million) which she alleged or any such agreement (which would include sharing anything over £1 million net after tax) and his written evidence included that “I would never have agreed to give Linda such a huge sum of money; it was money that I was going to rely on for my retirement”. He had looked forward to living off the interest on the net proceeds of sale for the rest of his life.

Third party evidence as to when the parties first met

[52]Of course, whether there had been a sharing agreement in 2005, early 2002 or 2000, the various allegations made by Miss Finnimore, depend, in part, on whether the two had met in any relevant way before the April 2006 date urged by Mr Shaw. I have mentioned the evidence of the two protagonists on that point but I must turn to other evidence called upon it by Miss Finnimore.

[53]Miss Finnimore’s daughter, Teresa Brown, born in November 1984, said in her written evidence that she had known Mr Shaw “since as far back as I can remember”. As she accepted she could remember back to age 3, 4 or 5 that suggested knowing him from 1987, 1988 or 1989. She had to abandon that in her oral evidence, moving to her only meeting him, let alone knowing him and being “treated” by him, in 1992. But even that was unconvincing. Thus, although she spoke of “outings” with him, she could not say from and to which house the outings had begun and finished. Although she claimed to remember Mr Shaw playing football in the garden with her and her younger sister, she could not remember in which house’s back garden they had played. Although she had stated that she, with her mother, met up “regularly” with Mr Shaw in Spain she agreed that was not correct, saying rather that in that regard the Solicitor had got “completely the wrong end of the stick”. She had not met Mr Shaw in Spain but her mother had told her she had. She had no explanation as to how, if, as she claimed, she had read her statement through before signing it, she had failed to correct something now said by her to be so obvious an error. It is not, either, as if she had lived and had grown up with her mother but, she added, she visited her mother and “I remember what she said”. In 1999 she had moved to Devon but her mother had told her that she was “at Roy’s”. It was her mother who referred to Mr Shaw as “Uncle Roy” not that she called him that. She had no explanation of the apparent gap in her evidence over the years 1999 and 2006 save to say that, as a teenager “doing her own thing”, she did not then speak to her mother regularly or a lot of the time but only now and then.

[54]Given the departures from her witness statement, her reliance on what her mother had told her rather than on her own personal knowledge, given the inaccuracy of and the gap in her alleged childhood memories and the absence of evidence from 1999 to 2006, I cannot rely on Teresa Brown as establishing that her mother and Mr Shaw were anything more than, at most, occasional acquaintances before April 2006, nor can I rely on her to establish that in “early 2002” or earlier Miss Finnimore had had any such familiarity with Mr Shaw’s affairs or any such relationship with him that the averred sharing agreement was at all likely to have been made.

[55]Next the Defendant called Mr Ross Braithwaite, who, it transpired, is Miss Brown’s boyfriend. He said nothing as to any time before September or October 2007. Indeed, such of his evidence as might have been relevant on other issues (whether Mr Shaw had said he was to marry Miss Finnimore or that he loved her) was in part confusing (was the marriage to be in Las Vegas or, as Miss Finnimore suggests, in Spain) and was in any event based on what Miss Finnimore had told him rather than what Mr Shaw had said. Mr Braithwaite accepted in cross-examination that whilst Mr Shaw had chatted to him about his fighting career and the biography about him he had not spoken to him of his personal relationship with Miss Finnimore.

[56]Finally on this point evidence was given by Miss Linda Guillaume, a niece of Miss Finnimore. She claimed really carefully to have read her witness statement before signing it and she verified it without any oral correction despite its even spelling her own name wrong. For that error she gave an explanation but it transpired in oral evidence as to another spelling error that the witness statement had been read to her over the telephone and that her aunt, Miss Finnimore, had told her that she needed to hurry up and that spelling did not matter. Thus, she said, she had left the statement as it was.

[57]She is now aged 24. She said in written evidence that she had known Mr Shaw for a period which could be of some 20 years, namely since about 1988, but she then had to qualify that in oral evidence to since 1992. Her statement that she had known him “throughout my whole life” had to be qualified as she accepted that for a third of her life she had not known him at all. She claimed that when 8 or 9, namely in 1992 or 1993, she had gone with her Aunt to places a couple of times – a pub for lunch or a fish restaurant – and that Mr Shaw would be there. “It was arranged between them”, she said, though I do not accept that that was something to which she was likely to be able to speak from her own personal knowledge. She had also (but for only 5 minutes or so, before she and her Aunt had then left) been a couple of times to Mr Shaw’s house. She had, she said, kept 8 or 9 birthday or Christmas cards which, she said, Mr Shaw had sent her but, unconvincingly, claimed to have been too busy to produce them. She undid the otherwise material evidence of her paragraph 6 (as to payments to her by Mr Shaw) by saying it was the way Miss Finnimore’s Solicitor had written it, not, in other words, that it accurately reflected her own intended evidence. Her paragraph 7 is incomplete as it stands as it omits an intended reference to the sum as to which, as a cocaine addict, she was seriously indebted to a drug dealer. Nonetheless it was such, she said, that she thought it was correct (as no one who read it could think) but that her Solicitor wrote it “and I took his word for it”. That, needless to say, is not the way convincing written evidence is to be completed and in any event she was there speaking of a time after April 2006.

[58]I do not find Miss Guillaume’s evidence to include any reliable evidence of Mr Shaw and Miss Finnimore having a relationship of any meaningful description or of their meeting or being together in any sustained way before April 2006. There is nothing in her evidence or that of these third parties altogether, to outweigh the combined effect of Mr Shaw’s evidence and that of Miss Finnimore in her Police evidence, especially her own description of the bumping together and of April 2006 as having been “when we got together”.

A comparative approach

[59]Mr Lillington invites me to take a comparative approach to the issue of why the £643,000 came to pass from Mr Shaw’s account to Miss Finnimore’s at the end of October 2007; which version was the more credible, Miss Finnimore’s, which I have by now examined in some detail, or Mr Shaw’s? Given the concessions made, as I have described, I am far from sure that such a comparative approach has to be used. My analysis so far has not materially depended on a weighing-up of Mr Shaw’s alternative explanation and I think it would stand as it is even if he had alleged some grossly improbable reason such, for example, that he had believed he was investing in machinery to extract moonbeams from cucumbers. However, I should say something as to the Shaw alternative.

[60]It was that he knew that CGT would have to be paid. He was expecting to have to pay £700,000 or so; his Accountants had told him to be sure to keep £688,318 to be ready to pay it after January 2008. He expected to have to have paid it in or by April 2008. On 25th October £700,000 was intended to be transferred from his HSBC account to an account of his at the Halifax. Quite who filled in whatever forms were necessary was not gone into but there was some defect in the transfer either as to the name or number of the transferee account and the HSBC acknowledged the sum “rebounding” or “bouncing back”, as it was variously put, to the HSBC on 26th October 2007. The £700,000 was not only unexplained but even unmentioned in his or Miss Finnimore’s written evidence and Mr Shaw’s first reaction in cross-examination was that it was not the £700,000 but the later £643,000 that had been intended “for tax” but he did eventually agree that the £700,000 had been for tax, meaning, in context, that it was a setting-aside for tax rather than a payment direct to HMR&C. It then became very material to know whether, on or before the authorisation of the payment of the £643,000 on 30th October, he had known that the £700,000 had “rebounded” to his HSBC account. If he had not so known of the rebound it would have been more difficult for him credibly to say that the £643,000 also was for tax. He said he could not remember whether or not he had known of the rebound. Given the evidence as to his memory, that the £700,000 was from one account of his to another and that there were, in late October 2007, a number of un-routine dealings going on, I accept that he genuinely could not say whether or not he knew of the rebound. He could not now remember either authorising the £700,000 or stopping it though, in fact, no one suggests the rebound was a matter authorised by any bank customer; it was a step, it seems taken of its own or their volition by the bank or banks involved. I would expect, though, that if Miss Finnimore knew, at the time, of the rebound, then so would he have done.

[61]It would be consistent with his evidence that Mr Shaw understood that one could have a payment which could be regarded as “for tax” without its being one direct to HMR&C.

[62]It behoved Miss Finnimore’s case to say that she (and Mr Shaw also) did not know of the rebound and that was, indeed, her oral evidence. It was she, she said, who had suggested the transfer to the Halifax. “I wasn’t aware of it coming back” she said, and said also that she did not know that the £700,000 had not got through to the Halifax. She thought the £700,000 was provision for tax payable in January 2008. She said that she had told her Solicitor that that was the case but that he had not put it in her witness statement.

[63]Her answer, it could have been thought, was laying the ground for a Defendant’s final speech which would include that Mr Shaw could hardly have thought the £643,000 was a provision for tax (as was his case) when only a few days before he had provided £700,000 for that very purpose, a provision which neither he nor she had known had not taken effect. But there was no evidence from her solicitor that she had told him, as she claimed she had, and her own version of events as given in the Police interview was that she had known of the £700,000 “bouncing back”. The earlier transfer had, she then said, come “straight rolling back to the HSBC”. She spoke of the money going to the Halifax as having “rebounded”; the transfer went “wonky”. It was called back to the HSBC; it came back and “… we done it a different way”. It was not inconsistent with that that the “it” which was then done a different way was the making by Mr Shaw of a fresh provision for tax.

[64]At first (before the transcription was checked and some passages played) Miss Finnimore denied saying as she was recorded as having said. Later she had to accept she had said as she was recorded to have done, so far as concerned these important passages. She had sought to say that she had not known of the rebound at the time of the transfer to her of the £643,000 and in re-examination she sought to add that, whilst she could not remember when it was that she first learned of the rebound, it “must have been ages later”. But a fair reading and hearing of the interview transcript suggests that she was speaking of her state of knowledge as it was as the events unfolded. Importantly, she spoke as to the problem with the transfer to the Halifax emerging “when we went into the bank …”, namely on 30th October 2007. I thus do not accept her answer that she knew of the rebound only much later. Indeed, I hold her to have quite deliberately lied on this issue.

[65]Given that she accepted that she managed Mr Shaw’s financial and tax affairs, that they went together to the HSBC at the time of the transfer of the £643,000 to her and that there was no evidence that they remained otherwise than together at the bank at that time, I have concluded, as I have mentioned, that if she knew of the rebound, so would he. Thus the possible argument that the £643,000 cannot have been a provision for tax, if only because the £700,000 had been, is denied to the Defendant.

[66]It was Mr Shaw’s case that on the day of the authorisation of the £643,000, 30th October, but not before, Miss Finnimore told him that if, ahead of paying the tax, he bought “tax certificates” he would get a tax rebate and interest or just interest (it is uncertain which) in the meantime. That could explain why less than £688,000 was, he thought, to be used. He believed what she had said and Miss Finnimore told the bank clerk what had to be done; the clerk came back with the forms, which had been prepared at the bank, and then, believing that Miss Finnimore had been acting in his best interest, he signed the 3 transfer forms then put before him without reading them. She had said “Sign here Roy”, he said, adding “So I signed”. In two of the three forms he was the beneficiary. He thought he had authorised a payment of £643,000 to the Capital Taxes Office. He said he had not realised that in the case of the £643,000 transfer she was the beneficiary. She had, he said, confused him. Even if he had noticed that Miss Finnimore was the transferee that would not of itself displace a belief, given that she was in contact with the Revenue as to his affairs, that she would herself see to the acquisition of the supposed “tax certificates” for him. When in cross-examination, it was put to him that he had intended to transfer £643,000 to her beneficially he replied “Don’t talk so silly – she took me for a right mug” adding “What should I give 643 grand to her for?” When, in a roundabout way, he later found that the transfer had been to Miss Finnimore he said he went to the Police (as he did), a thing which, given his criminal record, he did not do easily. The outcome of that was that they told him it was just his word against hers.

[67]I recognise, as Mr Lillington asserts, that there are what, certainly amongst other parties, could be thought to be real improbabilities in Mr Shaw’s version of the events for the payment of the £643,000. I must be cautious in my reception of his evidence but, given Miss Finnimore’s own evidence as to her managing his tax and financial affairs and his accepted evidence as to his reposing trust and confidence in her, those improbabilities are, so to speak, substantially diluted. Given the medical evidence as to Mr Shaw’s memory, I can accept his not remembering things which I would expect otherwise would have been remembered and, moreover, given the medical evidence let alone Miss Finnimore’s own views as to his mental state, I would expect him to have been more easily confusable, especially as to banking, finance and tax, than ordinarily would be the case.

[68]Thus, if Mr Lillington’s suggested comparative approach is one that has to be adopted, it does not materially assist Miss Finnimore. I take into account the weaknesses in the Shaw version but I hold it to be more probable than Miss Finnimore’s.

The conclusion as to the alleged sharing agreement

[69]In preferring Mr Shaw’s evidence, as I do, I have in mind, amongst other features, not merely the weaknesses in Miss Finnimore’s evidence and the surrounding circumstances to which I have referred but also the further defects in her evidence on other points to which I shall refer below. On the evidence adduced before me, by early 2002, the ultimately pleaded date for the alleged agreement, Miss Finnimore and Mr Shaw had, I hold, not met as often and in such a way that any such agreement would have been the least bit probable. I hold that neither an agreement to share any excess over £1 million in the sale proceeds nor one to share any excess of £1 million net after tax was ever made, either in “early 2002” or at any other time. If I were to be wrong about that I would, in any event, hold, its having been accepted where the onus lies, that the onus being on Miss Finnimore to prove the existence of some such agreement, she has failed to discharge that burden.

[70]Accordingly the £643,000 (and interest), given the concession made and accepted, has to be repaid and there is, strictly, no need for inquiry into, for example, deceit, mistake, undue influence or the unconscionability of any bargain.

Undue Influence: the law

[71]However, lest I am wrong so far in my view that the £643,000 and more has to be repaid for want of there being a contract under which it was required to be paid (that being the only ground alleged under which it ought to have been paid), then I turn to undue influence in relation to the £643,000.

[72]Mr Callman referred me to Royal Bank of Scotland plc v Etridge (No. 2)

[2001] 3 WLR 1021

, a case which I had occasion to examine in my own judgment in the conjoined cases of R.G.G. Hogg & Ors. v Hogg & Anor. and R.G.G. Hogg & Ors. v Otford Tool & Gauge Co Ltd, unrep.

[2007] EWHC 2240 (Ch)

. At paras 41-43 of Hogg supra I attempted a summary of the law in Etridge which, omitting passages referable only to Hogg, I here repeat; the references to paragraph numbers are references to the paragraphs of Lord Nicholls’ judgment. I said: “In the leading case of Royal Bank of Scotland plc v Etridge (No. 2)

[2001] 3 WLR 1021

Lord Bingham at page 1028 remarked that it was plain that the opinion given in that case by Lord Nicholls commanded the unqualified support of all members of the House. It is thus with confidence that one can look to that opinion for guidance at the most authoritative level on the subject of undue influence. From the speech of Lord Nicholls one can clearly identify many features of undue influence. I leave aside observations as to “overt acts of improper pressure or coercion such as unlawful threats” and “duress” as there are neither pleaded allegations nor evidence of such things in this case. Thus, leaving such aspects aside, it is clear from Lord Nicholls’ speech as follows:-(i) The objective of “undue influence”, as a form of equitable relief, is to ensure that the influence of one person over another is not abused – page 1029, para 6;

(ii) The Court looks into how the intention to enter into the impugned transaction was produced – para 7;

(iii) If the intention was produced by unacceptable means the transaction will not be permitted to stand – para 7;

(iv) Whenever the consent of the “victim” ought not to be treated as the expression of his free will then the means that procured that consent will be regarded as unacceptable – para 7;

(v) Two forms of unacceptable means of procuring consent are identified by equity. One, as I have said, I have already left aside. The other arises when there is a relationship between two persons such that one has acquired a measure of influence or ascendancy over the other and the allegedly ascendant person (whom I shall, for convenience, here call the defendant), then takes unfair advantage of that relationship and influence – para 8;

(vi) In such cases based on a relationship the key is not to classify the relationship (as, for example, solicitor and client, father and child, doctor and patient and so on) but rather to examine into questions such as whether the victim reposed trust and confidence in the defendant, whether he relied on or was dependent on the defendant, whether the victim was vulnerable and how far the defendant had an ascendancy or was dominant over or had control of the victim. As Lord Nicholls said “None of these descriptions is perfect. None is all embracing. Each has its proper place” – at page 1030, para 11;

(vii) It is not a necessary ingredient of the cause of action that the victim should have suffered a disadvantage from the impugned transaction (although that will very often be a feature) – para 12 ;

(viii) The burden of proving undue influence rests upon he who claims it – para 13. Here it therefore falls upon Mr Shaw;

(ix) The evidence required to discharge that burden depends on a number of factors important amongst which will be the relationship between victim and defendant, the nature of the undue influence which is alleged, the personalities of the persons involved and “the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case” – para 13;

(x) If it is proved both that the victim placed trust and confidence in the defendant and that the impugned transaction was one which, within the terms of (ix) above, calls for an explanation, then that, “failing satisfactory evidence to the contrary”, will normally suffice to discharge the burden of proof upon he who asserts that there has been undue influence – para 14. Proof of those two matters will be prima facie evidence that the defendant had abused such influence as he had acquired by way of the relationship between victim and defendant;

(xi) If that prima facie position is arrived at, the evidential burden then shifts to the defendant; it will then be for him to produce evidence to counter the inference to which the presence of the conjoined features of trust and confidence and the nature of the transaction will have led – para 14;

(xii) It is sometimes said that those conjoined features, if present, amount to a presumption of undue influence but it has to be borne in mind both that it is only an evidential presumption and is a rebuttable one – para 16;

(xiii) And that rebuttable presumption is not the same as, and has to be clearly distinguished from, a different presumption where the law recognises, in cases of gift, that the particular combination of one or more identifiable relationships plus the large substance and abnormality (in all the circumstances) of the gift lead to an irrebuttable presumption of the influence and dominance of the donee over the donor. In this class of case the person asserting undue influence need not go further to prove that the victim reposed trust and confidence in the defendant – para 18. Even there, though, the defendant may escape a finding of undue influence by showing, for example, that notwithstanding the relationship being one of trust and confidence the influence thus arising had not been abused;

(xiv) Proof that the complainant received advice from a third party before entering into the impugned transaction is one of the matters which a Court takes into account when weighing all the evidence but it is not the case that proof of outside advice of itself shows that the transaction was free from the exercise of undue influence. Whether that is the case is a question of fact to be decided having regard to all the evidence in the case – para 20;

(xv) Lord Nicholls at his paragraphs 21 to 31 dealt with the notion of “manifest disadvantage”, making the point that the greater the disadvantage to the vulnerable person the more cogent would need to be the explanation given to the Court before the presumption of the existence of trust and confidence reposed by the victim in the defendant was rebutted.

[73]I adopt that summary for the purposes of this case.

Undue Influence: the facts

[74]Here I shall assume that Mr Shaw knew, as he made it, that the transfer of the £643,000 to Miss Finnimore was to her and was in no way, directly or indirectly, a provision against CGT but also that it was not a gift (as that has never been said).

[75]In such a case I would hold that there was between them at the time a relationship such that in financial and tax matters Miss Finnimore had a real influence upon or ascendancy over Mr Shaw. He thought she was “better than an accountant” and it is accepted that he reposed trust and confidence in her in such areas – see para 18 above. She described herself as “his sole carer”. I would find their relationship to satisfy the requirements summarised, as to the law, in subparas (v) and (vi) of the preceding heading. Mr Shaw would have suffered a disadvantage from the impugned transaction in that he released £643,000 principal monies from his account and lost also the future receipt of its interest. That was a disadvantage unless he was bound to pay that sum, as I shall come on to. But in any event a disadvantage does not have to be proved – see in subpara (vii) above.

[76]Can the payment be readily accounted for within subpara (ix) of the summary? The only ground given for it is that Mr Shaw was contractually bound to pay it but, for reasons I have given, I hold there to have been no contract of the kind alleged. Accordingly, in the light of subparas (ix) and (xi) of the summary Mr Shaw would have discharged the burden, otherwise upon him, of proving undue influence and there would also be prima facie evidence of Miss Finnimore’s having abused the influence she had acquired over him. Upon the onus shifting, as to evidence, to Miss Finnimore (summary subpara (xi)), did she then do enough to undo the rebuttable evidential presumption? There was no third party advice given to Mr Shaw (subpara (xiv)) and, if I am right as to there being no contractual obligation to pay it, then the loss of the £643,000 would have been a manifest disadvantage; Mr Shaw was looking to spend his retirement relying on the whole £2 million net not that sum less £643,000 or more.

[77]What undue influence thus comes to is this: even if Miss Finnimore were able to shew that Mr Shaw clearly understood that the transfer was to her and was not for tax (as to neither of which I have been satisfied) she would nonetheless be liable to repay it (and, consequently, interest).

Further as to the £643,000

[78]I shall not weary the reader with an examination of misappropriation, deceit, misrepresentation, mistake of fact or unconscionable bargain. No material difference between recovery at law or in equity has been raised in argument and I have already given two largely separate grounds for Mr Shaw to succeed as to the £643,000. If I were to be wrong as to both those grounds there would be no good reason to believe I would be so right as to the further alternatives which Mr Callman sought to raise as to make my examination of them worthwhile.

Some other dealings between the parties

[79]Miss Finnimore’s pleaded claim to the £643,000 was the residue of a claim for £844,159 (half the excess of £2.688m over £1 million). What reduced the payment to her to £643,000, so says her Defence, was a number of amounts which she then already owed or had since come to owe to Mr Shaw. In aggregate those came to £208,450. Even then it was not £643,000 that was arrived at. However, Miss Finnimore said that the figures, which she accepted had to be deducted from the £844,159, had been carefully gone though and the only possible reading of her Defence (which was not sought to be amended although the discrepancies were referred to) is that by its date, May 2008, £208,450 was owed by her to Mr Shaw. Of course, Miss Finnimore expected and hoped that these sums were to be deducted from her expected receipt, deductions apart, of up to £844,159 rather than that she would have to lay out her own other money to pay them, but that expectation does not undo the natural effect of the words used in the unamended Defence which describes the sums as “sums already advanced by the Claimant to the 1st Defendant”. I doubt that I would have found £208,450 to have been the sum so owing had I had to go into the matter in detail and Mr Callman at points went into his doubts as to what, in effect, were her admissions in Mr Shaw’s favour. However, given the pleading, the proper course is for me to hold, without going into further detail, that Miss Finnimore, in respect of the several matters to which she refers in para 25.3 of her Defence, owes and has to pay to Mr Shaw £208,450 in respect of money advances made by him to her.

Some cash point withdrawals between 31st July and 14th August 2006 (inclusive)

[80]Miss Finnimore had access to Mr Shaw’s pin number and, I would expect, to his debit or credit cards. She could have withdrawn these sums, which were of £500 per day on each of 9 separate days. Mr Shaw says he does not use cash points. But that does not prove that sums withdrawn were not for his own benefit or that, to the extent they were not, that he had not authorised the withdrawals and the deployment of the cash for the benefit of others. The evidence does not rule out, but rather hinted at, his pulling up his car near a cash point, his asking Miss Finnimore to nip out to use the ATM and with her then, with his consent, either keeping some or all of the cash for herself or handing some or all to him. Even without my investigating whether these withdrawals were, as she said, to pay for his drug habit, or, perhaps, wholly or partly for hers (as to which I have no adequate material to resolve the conflict in the evidence) I do not feel able to hold Miss Finnimore liable for them on the simple basis (and it is little more than that) that Mr Shaw did not himself use ATMs.

The Guillaume payments

[81]On each of the 14th and 22nd September 2006 £10,000 (the Guillaume payments) were transferred by internet transaction from Mr Shaw’s bank account at Lloyds TSB’s branch at Debden in Essex. On 27th October 2006 Mr J.H. Capper, Manager of the branch, following up an inquiry raised by another branch, telephoned Mr Shaw, who was at home. Both Mr Shaw and Miss Finnimore responded to his call and there was a 3-way conversation. Mr Capper (who gave written and oral evidence and whom I hold to have been a reliable witness) asked if the Guillaume payments were genuine. His written evidence, which was not challenged in cross-examination, was that Miss Finnimore jumped in at that stage and said to Mr Shaw that she had told him about them. He seemed to Mr Capper to be confused but appeared to accept what she said as she mentioned people doing work for them and said the payments were a loan. Mr Capper was not entirely satisfied because Mr Shaw had not seemed sure what the payments were about. Miss Finnimore had stated the payments were a loan.

[82]Miss Finnimore’s Defence alleges that these payments were gifts to her niece, Miss Guillaume. In her evidence, Miss Guillaume said the purpose of the payments was to get her, a cocaine addict, out of the trouble she had fallen into with her drug dealer. She said that she was uneasy about accepting the money from Mr Shaw:- “….. but my Aunt Linda said she would pay him back out of some money she was waiting for from a property deal she was helping Roy with at the time ..”. It is not clear whether “Aunt Linda”, Miss Finnimore, said that to Mr Shaw and Miss Guillaume or only to the latter but, either way, the allegation of there having been a gift is weakened.

[83]In her written evidence Miss Finnimore gave a quite different reason for the payments,. They were gifts to Miss Guillaume, she said, adding (with my emphasis): “The circumstance of this was that [Miss Guillaume] had a child who was born with ¾ of a heart and was in Great Ormond Street Hospital for 8 months. [Mr Shaw] out of the goodness of his heart in fact made a donation of these payments to help [Miss Guillaume] and her two children”.

[84]Doubtless in order to enhance the credibility of that reason for the payments Miss Finnimore exhibited “a photograph of myself, Roy and the baby being held by Roy”. But the exhibit had no such effect; it was not, Miss Finnimore accepted in cross-examination, the Guillaume baby in the photograph. When she was taxed with the difference between the two versions of the reasons for the payment she sought to say that she had not meant to say that the sickness of the baby was the reason for the payment but no more than that Miss Guillaume had had, as was not contested, a sick baby.

[85]That was disingenuous or worse; her reference to “the circumstance of this” was plainly intended to suggest the baby’s sickness as the reason for the largesse. Pressed further with Miss Guillaume’s reference to her, Miss Finnimore, paying back Mr Shaw she accepted in cross-examination that she had said that he would be repaid “if it was necessary, if anything changes”. In context I took that to have been said to Mr Shaw or to Mr Shaw and Miss Guillaume and not merely to Miss Guillaume.

[86]Mr Shaw’s evidence had been that he knew nothing about Miss Guillaume or the Guillaume payments adding, as generosity on his part was alleged, “Does she think I’m Father Christmas?”, a phrase he used more than once as he gave oral evidence in December 2008. However, given his poor memory, I cannot assuredly rule out that he was told of the payments at the time. He would not have made them wholly by himself, given his unfamiliarity with internet banking, but he could have authorised Miss Finnimore to make the payments and yet to have forgotten that.

[87]In my judgment there was no gift of the Guillaume payments. If Mr Shaw knew anything about them at the time, which may be doubted, I would hold that he was told at the time by Miss Finnimore that Miss Finnimore would repay them if he so required. Accordingly, she is now liable to repay them.

[88]Beyond that the topic adds further wounds to the credibility of Miss Finnimore’s evidence. That the payments were gifts she had to abandon. She was at least disingenuous in her description of the reason for the gift, as to which there was unseemly wriggling on her part. She was careless in her evidence as to the baby’s photograph and it took time to get to that acceptance of an obligation to repay which should have been promptly accepted.

Further repayable advances

[89]There are advances from Mr Shaw to her accepted as such by Miss Finnimore but which are admitted other than in the paragraph 25.3 of Defence to which I referred in my paragraph 79 above. In such cases the advances are pleaded by Mr Shaw as having been procured by misrepresentation but, given that they were accepted to be repayable, the existence, truth or falsity of the alleged representations was sensibly not explored. In some cases it could have been argued, but was not, that the lender was not Mr Shaw but one or other company which was using his name and money and that not he but the company was the only proper claimant. Had that been pressed, Mr Callman was set to argue that the facts justified a lifting of the corporate veil. Given the express admission in the Defence I believe I am entitled to do no more than state that there are to be repaid by Miss Finnimore to Mr Shaw the following sums which had been advanced on the following respective dates: 19th June 2007

£5,000

19th June 2007

£21,000

11th July 2007

£2,500 11/13th July 2007

£2,600

13th July 2007

£2,500

14th September 2007

£12,000

21st September 2007

£12,000 In total these advances were of £57,600 or so, which (subject to a careful verification that none has already been taken into account within para 79 above, with consequent adjustment as necessary) has now to be repaid to Mr Shaw by Miss Finnimore.

Further alleged misappropriations

[90]There are a number of payments – those listed in the Claimant’s “Table of Misappropriations” as items 16 to 26 – which Miss Finnimore accepted she would have to pay to Mr Shaw if she was held to have to repay the £643,000. Against this or other liability to him Mr Shaw accepts he has to give credit for a sum of the order of £50,000 and it is convenient to bring that into credit here. I shall leave Counsel to agree the appropriate figure under this heading; the subject will need to be restored only if they cannot.

Further observations as to the credibility of Miss Finnimore’s evidence

[91]I have already given reasons for a holding that Miss Finnimore’s evidence is unreliable but I should add some further examples arising of passages in it on which I have not so far needed to comment.

[92]She was completely reckless with her Oath on the subject of the transcript of her interview with the Police on 13th December 2007. She had commissioned the making of the transcript and, when they received it, her then Solicitors disclosed it, as they had to do, and did so without her first seeing it, no doubt because at the time she was in purdah, so to speak, as her cross-examination had begun but was unfinished. On seeing it she recognised that it contradicted much of what she had already said in oral evidence and (very likely not then realising that the tape might be played to the Court) she totally denied in a number of instances that she had said what she was recorded in the transcript as having said, adding that her Solicitors must have been “got at”, that the tape or the transcript may have been doctored and that there had been some conspiracy to alter what she had said. That was completely reckless; not only was there no evidence of any improper conduct by her then Solicitors or of any doctoring or any conspiracy but in a number of areas she was found (once the tape had been heard either between Counsel, or by then, also by Miss Finnimore and the Court) to have said, as she then accepted, either exactly or substantially as the transcript suggested and as she had earlier denied or had declined to accept.

[93]In an effort to minimise the harm the transcript was doing her she at first repeatedly said that the interview had been very late, of the order of 2 or 3 in the morning, and that she had been accordingly very tired. She later had to accept that the interview had been from 5.15 pm on 13th December 2007 to 6.55 pm on the same day, there having been an 11 minute break at 6.02 pm.

[94]I have already mentioned her carelessness as to the baby photograph. She sought to say that a simple error (not of hers, she said, but of her Solicitors) had led to the wrong photograph being exhibited. The point of the photograph was that it was one which was intended, by reference to the obvious age of the baby in it and his condition as being a sick baby in hospital, to bolster her case that she and Mr Shaw were thoroughly known to each other long before April 2006. She said in the witness box that she would bring the intended photograph to Court the next day. She neither did so nor explained why she had not. Thus she was not only careless, as I have already held, in exhibiting the photograph which she did but untruthful, as I think I have to assume, in her explanation of what she had intended to and could freshly exhibit.

[95]It was her case that she and Mr Shaw had agreed to marry. I prefer Mr Shaw’s evidence that she had suggested it but that it was not discussed further and that he did not at all fancy to marry her; as to that side of things she was just a good friend (though, as I hold, with the occasional sexual practice between them of which Miss Finnimore spoke). But in the course of her cross-examination it was put to her that she could not, in any event, have married Mr Shaw as she was undivorced from her second husband, Mr F. Ball who is still alive. She accepted the evidence of the marriage certificate that she had married Mr Ball on 14th December 1996. She was shewn a Court Service letter certifying that no trace was found at the Central Index for the years 1997-2007 of a decree absolute relating to her and Mr Ball. She accepted that if she had divorced him it would have been within those years. She said she believed she was divorced as she had signed and sent off some papers. When it was put to her that in any case she could not marry Mr Shaw as to do so would be bigamous a remarkably cavalier attitude to propriety was revealed in her answer, which was that they would have found out whether it was bigamous or not when they tried to get married. She made matters worse by volunteering that she was very drunk, so much so that she had to be held up, when she married Mr Ball. Not only the unlikelihood of the Registrar permitting a marriage had that been so but her clear and firm signature on the Marriage Certificate and the wedding photograph produced of the happy couple, family and friends together suggest, as I accept, that she had not been in the state she alleged. She was, I hold, not telling the truth.

[96]Another incident is concerned with an alleged Power of Attorney, limited to a specific property transaction in Spain and which, in her Defence, Miss Finnimore claimed to have been given her in Spain in order that she could deal with Mr Shaw’s Spanish property. It was not disclosed to the Claimant and on 23rd September 2008 Deputy Master Cousins made a specific order for its disclosure. On 7th October 2008 Miss Finnimore swore in her second witness statement that it had last been in her possession “in or about 2006” and that it “would have been handed over to Mr Shaw’s Spanish attorney by the name of Pillar in Estapona” when she attended, with Mr Shaw, on the lawyer at the lawyer’s offices. Pilar Rodriguez Hervella, the Abogado who had acted for Mr Shaw in 2003 and in July 2006, gave written evidence that the firm had never had any dealings with Miss Finnimore or any other woman in connection with Mr Shaw’s affairs and that no woman, but only one or other of two gentlemen, had attended the office with Mr Shaw. Her firm had never been asked to draft a Power of Attorney for Mr Shaw in favour of any third parties (although there had been an earlier Power of Attorney by Mr Shaw in favour of the Abogado’s firm). The Abogado’s witness statement was accepted without challenge and hence no oral evidence was given on the point from the Claimant’s side. Miss Finnimore said in cross-examination that she had never met “Pilar”, meaning Pilar Rodriguez Hervella, and in a confusing tale sought, I think, to suggest she had been referring to some other Abogado “Pilar”, not further identified, who had acted for Mr Shaw in Spain and whose unidentified offices she had visited with Mr Shaw. Such is the implausibility of that, given also when and how this alternative “Pilar” emerged in evidence, that I conclude that the pleaded Power of Attorney never existed and that Miss Finnimore’s second witness statement is untrue.

[97]These incidents of untruthfulness in Miss Finnimore’s evidence are far from the only ones asserted Mr Callman. He relies also on what were called the HMRC letter, the Land Registry letter, on particular cheques and on furniture invoices and her frequent use of aliases. Each of such matters does, indeed, give rise to real doubts as to her credibility but none, in my judgment, is as relatively clear-cut, in the face of the evidence, as the examples to which I have referred under this heading. As I have felt able to conclude that her evidence is unsound even without these further alleged examples it would serve no purpose other than to lengthen this judgment to go further into the subject.

Conclusion

[98]The Claimant succeeds; leaving aside interest (as to which I will need to be addressed if it is not agreed) Miss Finnimore is to repay £643,000 (paras 70 and 77 above). In addition, she has been using money directly or indirectly provided by Mr Shaw in the confident (but, in my judgment, unfounded) belief that she would soon be entitled to receive and keep the £643,000. In that way she has become liable to pay or repay £208,450 (para 79 above), £20,000 (para 87 above) and £57,600 or so (subject to adjustment as described in para 89). Beyond that a sum is due under paragraph 90 above. I will need to hear Counsel, if a form of Order as between Claimant and 1st Defendant is not agreed, as to that form, as to costs and to any other ancillary or consequential matters. I will also need to be addressed as to relief appropriate against the 2nd Defendant.