Hurndell v Hurndell & Ors [2010] EWHC 3340 (Ch)

Case No HC05C01580

[2010] EWHC 3340 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

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

Date 17/12/2010

Before

MR JUSTICE MORGAN

Between

WILLIAM HURNDELLClaimant

BARRIE HOZIERDefendants

…Defendant

DAVID HOZIERDefendant

Mr Hodge Malek QC and Ms Saima Hanif (instructed by Devonshires) for Claimant

Mr Michael Booth QC and Mr Robert Bourne (instructed by Bevans) for First and Fifth Defendants

Hearing Hearing dates: 15, 18 – 21, 25 – 29 October and 1 - 3 and 5 November 2010

Judgment

The case in outline

[1]This claim by Mr William Hurndell is essentially based on the contention that he was given 33,309,940 shares in Stanelco plc (“Stanelco”) in December 1996. (For convenience I will refer to this number of shares as “33 million” or “some 33 million”.) Although the gift was not perfected at that time, these shares were registered in his name in February 2001. Mr Hurndell says that 31,809,940 of these shares were “stolen” from him by the Defendants, Mr Barrie Hozier and Mr David Hozier. (Again for convenience, I will refer to this number of shares as “32 million” or “some 32 million”.) In particular, it is said that the Hoziers obtained two stock transfer forms, which Mr Hurndell had signed in blank for another purpose, and completed those blank forms so that some 32 million shares were transferred to two off-shore companies under the control of the Hoziers. Mr Hurndell claims compensation equal to the value of the 32 million shares.

[2]The Hoziers say that, in and after December 1996, the intention of all parties, including Mr Hurndell, was that the 33 million shares would be put into Mr Hurndell’s name as a nominee only and not as a beneficial owner. The shares were to be held by Mr Hurndell as a nominee for Mr Howard White, a director of Stanelco. When the shares were registered in Mr Hurndell’s name in February 2001, he held them as a nominee for Mr White. In 2000 or 2001, Mr White agreed that he would give some 32 million of these shares to Mr Barrie Hozier and would allow Mr Hurndell to keep 1.5 million shares beneficially. In 2001, Mr White told Mr Hurndell of his intentions in these respects. Later, on 16th August 2001, at the request of David Hozier, Mr Hurndell signed a note which confirmed that he was authorised by Mr White to give effect to Mr White’s intentions in relation to the shares. Later still, in 2001, Mr Barrie Hozier asked Mr Hurndell to sign two blank stock transfer forms, to be completed in due course and to be used to effect the transfer of some 32 million shares to Mr Barrie Hozier, or as he might direct. Mr Hurndell did so. Mr Barrie Hozier later completed the transfers in favour of the two off-shore companies. He says that everything he did was with the agreement of the beneficial owner of the shares (Mr White) and of the nominal owner of the shares (Mr Hurndell).

[3]It is common ground that in December 1996, Stanelco successfully applied to be admitted to the Official List of the London Stock Exchange. Mr Davis and Mr White were two of the directors of Stanelco. Prior to Stanelco’s application, 40% of the shares in Stanelco were owned by the I N Davis (1991) Trust and another 40% of the shares in Stanelco were owned by the H White (1991) Trust; these shares were treated as being beneficially owned by Mr Davis and by Mr White respectively. The listing rules of the London Stock Exchange required that the aggregate number of shares owned beneficially by Mr Davis and Mr White should not exceed 75%. Accordingly, the aggregate number of shares owned by Mr Davis and Mr White had to be reduced from 80% to 75%. It was intended that some 5% of the shares in Stanelco were to be registered in the name of Mr Hurndell. A central issue in the case is whether Mr Hurndell was intended to be the beneficial owner of the shares registered in his name or whether he was to be a nominee for Mr White. In the former case, the listing rules would have been complied with. In the latter case, the listing rules would not have been complied with. After December 1996, certain company documents issued by Stanelco described Mr Hurndell as the beneficial owner of some 5% of the shares in Stanelco. There is an issue as to whether those documents described the true position or whether they were wrong in this respect. If the documents were wrong in this respect, there may be a further question as to whether this was due to a misunderstanding in some respect or other or whether they were knowingly false for the purpose of pretending that the listing rules had been, and were being, complied with.

The structure of this judgment

[4]The structure of the remainder of this judgment will be as follows. I will first set out the procedural history of this litigation. I will then comment on the approach I will adopt when considering the evidence in this case. I will next refer to the pleaded cases. Then I will set out the sequence of events principally by reference to the documents before the court but I will also include matters which are not contentious. Where I refer to documents, the reliability of which is in issue, I will note that fact but not resolve the issue at that point. I will then assess the reliability of the various witnesses who gave evidence before me or who have made statements which are admissible under the Civil Evidence Act 1995. In assessing the reliability of witnesses, I will refer to some of the matters in dispute and indicate how, in my judgment, they ought to be resolved and the consequential help that gives me in assessing the reliability of witnesses. Following that I will make my findings of fact on all relevant matters. I will then consider the consequences of those findings of fact as to the outcome of the case.

The procedural history

[5]The claim form in these proceedings was issued on 17th June 2005. The First Defendant was Mr Barrie Hozier (“Mr Hozier”). The Second Defendant was Finale Finance Ltd (“Finale”) and the Third Defendant was Khaki Investments Ltd (“Khaki”). The Fourth Defendant was Stanelco Plc (“Stanelco”). As Finale and Khaki had been dissolved prior to the commencement of these proceedings, they never became active defendants and their names have been deleted by amendment from the claim form and subsequent pleadings. Stanelco’s name has also been removed by amendment from the claim form and subsequent pleadings because, in the end, no relief was sought against it. David Hozier was later added as Fifth Defendant.

[6]On 25th May 2006, Mr Hurndell applied for summary judgment against Mr Hozier and David Hozier. That application was dismissed by HHJ Hodge QC, sitting as a judge of the High Court, on 14th July 2006.

[7]The action came on for trial before David Richards J in July 2007. The learned judge gave a reserved judgment on 19th March 2008. He dismissed the claim. Mr Hurndell appealed to the Court of Appeal, with permission given by that court. The Court of Appeal (the Chancellor, Pill and Lloyd LJJ) heard the appeal on the 10th and 11th December 2008 and gave a reserved judgment on 12th February 2009. The court, unanimously, admitted certain new evidence which had been put forward on behalf of Mr Hurndell. The new evidence related, principally, to the events, or the alleged events, of 16th August 2001. Although the court admitted that new evidence, the Chancellor, in a minority judgment, would have dismissed the appeal on the ground that the new evidence did not ultimately affect the underlying question whether Mr White had intended to make a gift of some 5% of the shares in Stanelco to Mr Hurndell; David Richards J had held that Mr White did not so intend. The majority (Pill and Lloyd LJJ) allowed the appeal and ordered a new trial on the grounds that Mr Hurndell was entitled to a new trial of all the issues arising in the light of the impact, whatever it might be, of the new evidence relating to the events or alleged events of 16th August 2001.

[8]The action was tried again before me in October and November 2010. Mr Hurndell called witnesses who had not given evidence at the earlier trial. His additional witnesses were not restricted to the witnesses whose evidence the Court of Appeal had admitted as new evidence on the hearing of the appeal. There was one notable witness who had given evidence at the first trial but who did not give evidence at the retrial. This was a Mr Ian Davis who was not available to come to court to give evidence at the retrial. The witnesses for the Defendant were the same persons who had given evidence at the earlier trial, namely, Mr Hozier, David Hozier, Karen Hozier and Mr White. Although I have not attempted a comparison of the documents put before me with the documents in evidence at the first trial, I understand that I have been provided with material which was not produced at the first trial.

[9]I have not been asked to read the judgment given by the judge at the earlier trial and I have not done so. It seems to me that this is the proper approach for me to adopt. The Defendants cannot pray in aid the fact that they succeeded at the earlier trial and Mr Hurndell should not be at a disadvantage by reason of the earlier judgment, which was later set aside by order of the Court of Appeal. In the trial before me, the parties start again afresh and I will reach my conclusion based on the material that is put before me which, as I have described, is different in a number of respects from the material used at the first trial.

[10]The fact that this is a second trial may be material in this respect. Mr Hurndell, Mr Mills, Mr Hozier, David Hozier, Karen Hozier and Mr White all gave evidence and were cross-examined at the earlier trial. I understand that in his judgment, David Richards J set out in detail his assessment of the witnesses and of the strengths and weaknesses of their evidence. That evidence was again the subject of detailed comment by the Court of Appeal. Accordingly all these witnesses know very well what it is like to be cross-examined on the detail of the evidence they wish to give and they will know, to a greater or lesser extent, what they said on the earlier occasion and what was found persuasive and conversely what was found unpersuasive at that time.

[11]A second consequence of the fact that this is a retrial is that comments can be made on any differences between the evidence given by a particular witness at the retrial with the evidence that witness gave at the first trial. I have a full transcript of the first trial. The witnesses who gave evidence at both trials are Mr Hurndell, Mr Mills, Mr Hozier, David Hozier, Karen Hozier and Mr White. I also have a transcript of the evidence which Mr Davis gave at the first trial and which is agreed to be admissible under the Civil Evidence Act 1995 as evidence at this retrial.

[12]At the retrial, Mr Hurndell was represented by Mr Hodge Malek QC and Ms Saima Hanif and Mr Hozier and David Hozier were represented by Mr Michael Booth QC and Mr Robert Bourne. None of these counsel appeared at the first trial.

My approach to the evidence

[13]The issues in this case are issues of fact. They concern events which took place some time ago. I heard detailed evidence as to events which occurred in relation to a possible development on the Ile du Levant in 1989 and 1990. There is a considerable dispute as to the events of 1996. Finally, there is a conflict of evidence as to the events of 2000 to 2002. Much of the conflict of evidence will have to be resolved by assessing the credibility of witnesses. The conflict of evidence is a stark one. If Mr Hurndell is right in the case he advances, then there has been serious dishonesty by Mr Hozier and David Hozier. Mr Hurndell contends that they stole his shares and forged documents to enable them to do so. If the Defendants are right, then Mr Hurndell’s case has no foundation in fact. If the Defendants are right, it is difficult to see how Mr Hurndell could fail to appreciate that his case has no foundation in fact. Accordingly, on this basis, Mr Hurndell has brought this claim and persisted in it knowing that he would have to tell, and persist in, a large number of lies in order to succeed. Further, when Mr Hurndell failed at the first trial, he did not give up. He took his case to the Court of Appeal and, before me, he continued with his claim during fourteen days of a retrial.

[14]Of course, there is nothing new in the court being asked to resolve a massive conflict of evidence. Further, unfortunately, it is not unheard of for the court to hear evidence where one side, or the other, or both, are trying to mislead the court. There are well recognised approaches which a court can take to assist it in making its findings of fact in such a case. Some of these approaches were referred to by Lord Justice Robert Goff (as he then was) in the Ocean Frost [1985] 1 Lloyds LR at page 57, where he said:

“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth. I have been driven to the conclusion that the judge did not pay sufficient regard to these matters in making his findings of fact in the present case.”

[15]Pill LJ drew attention to this passage in the Ocean Frost when giving judgment in the Court of Appeal in the present litigation:

[2009] EWCA Civ 67

at [104]. This guidance is very helpful and I will attempt to apply it. I will have regard to the objective facts proven independently of the conflicting evidence and to the motives of the participants and to the overall probabilities of the accounts given. In a typical case, the contemporaneous documents are of the greatest value in resolving conflicts of recollection at the time of the trial. However, there is a particular difficulty with using the contemporaneous documents for that purpose in the present case. The Defendants say that the contemporaneous documents misstated the real intentions of the parties at the relevant time. It may be that I will find that some of the contemporaneous documents deliberately misstated the real position. The question as to whether the contemporaneous documents were accurate or inaccurate is therefore one of the issues which has to be resolved. Plainly, I cannot assume the answer to that question by assuming the contemporaneous documents were accurate and making findings of fact accordingly. I will have to look elsewhere for pointers as to what was really happening in order to determine whether the contemporaneous documents can be relied upon in the respects in which there is now a dispute.

The pleaded cases

[16]The Particulars of Claim served by the Claimant did not give any detail as to the circumstances in which Mr Hurndell became registered as the holder of some 33 million shares in Stanelco. Paragraph 1 of the Particulars of Claim simply asserted that until about 15th February 2002, this was the case. The remainder of the Particulars of Claim continued by describing the events of February 2002, and later events, pursuant to which, as Mr Hurndell alleged, Mr Hozier and David Hozier took some 32 million of those shares from Mr Hurndell. The Particulars of Claim refer to the two stock transfer forms by which Mr Hurndell purportedly transferred the 32 million shares on the 14th February 2002. In one part of the original Particulars of Claim (paragraph 6), Mr Hurndell sought to keep open the question whether the signatures on the stock transfer forms, which were apparently his signatures, were genuine signatures. In another part of the Particulars of Claim (paragraph 2), Mr Hurndell accepted that his signature was not forged on either form. Mr Hurndell stated that he did not recall when he signed the stock transfer forms: see paragraphs 2 and 7.

[17]On 10th March 2006, Mr Hurndell served a response to Mr Hozier’s request for further information as to the Particulars of Claim. In this response (at paragraphs2.1 -

2.2 ), Mr Hurndell said that Mr White and Mr Davis offered Mr Hurndell the 33 million shares in Stanelco. To the best of Mr Hurndell’s recollection, this offer was made and accepted “in about 1996” but Mr Hurndell could not give any further particulars of when or where this agreement was made. He pleaded that he had been of great assistance to Mr White and Mr Davis in connection with a proposed development on the Ile du Levant and in connection with the collection of debt owed to a shoe manufacturing business. He pleaded that there was an understanding that he would receive “a share of the profits of the development on the Ile du Levant when they were realised”. He said that the offer of 33 million shares in Stanelco was “in satisfaction of the moral obligation” which Mr White and Mr Davis felt for his extensive work in relation to the Ile du Levant. He also pleaded that he “now understands” that the 33 million shares were formally transferred to him in February 2001; this suggests that he was not aware in February 2001 that this transfer had taken place. In relation to the signing of the two stock transfer forms, Mr Hurndell repeated, in his response to the request for information, that he had no recollection of signing the two stock transfer forms nor indeed of signing any blank stock transfer forms.

[18]In his Defence, Mr Hozier pleaded that the arrangement put in place by Mr Davis and Mr White in 1996 was that the 33 million shares were to be transferred to Mr Hurndell as a nominee. Mr Hozier pleaded that he drafted a letter of instruction addressed to the trustees of the Howard White (1991) Trust requesting them to transfer these shares to Mr Hurndell. After that date, until about December 2000, Mr White, Mr Davis and Mr Hozier proceeded on the basis that this transfer had happened. Mr Hozier later became aware that the shares had not been transferred to Mr Hurndell and so Mr Hozier arranged for the transfer to be executed and Mr Hurndell registered as a shareholder of Stanelco. Mr Hozier also pleaded that Mr Davis had made a promise to Mr Hozier that before Mr Hozier retired from his employment with Mr Davis’ companies, Mr Hozier would be given 5% of the shares in Stanelco. This averment appeared in the original Defence and remained unaltered in the amended and re-amended Defence of Mr Hozier. In relation to the execution of stock transfer forms, Mr Hozier initially pleaded that in around 1996 Mr Hurndell had executed “the necessary stock transfer forms”, i.e. “forms” in the plural. Mr Hozier later amended this plea. The amended plea was that in 1996 Mr Hozier “executed” a stock transfer form (i.e. in the singular) in relation to the 33 million shares; this form was blank as to the identity of any transferee. Mr Hozier gave the form to Mr Davis for him to obtain Mr Hurndell’s signature on it but Mr Hozier did not know whether Mr Hurndell ever signed that blank form. Mr Hozier added that in late 2001 during a visit made by Mr Hurndell to see Mr Davis at Stanelco’s offices in Barnet, Mr Hozier asked Mr Hurndell to execute two stock transfer forms relating to the shares in Stanelco but blank as to the number of shares and as to any consideration and as to the identity of any transferee and, on this request being made, Mr Hurndell signed the two blank stock transfer forms unconditionally. Mr Hozier’s Defence also referred to a meeting between David Hozier and Mr Hurndell in St Tropez on 16th August 2001 when Mr Hurndell signed a note setting out the position in relation to the shares.

[19]Mr Hozier served a response to a request for further information as to his Defence. He repeated his case that a promise was made to him by Mr Davis in relation to a gift to Mr Hozier of 5% of the shares in Stanelco. Mr Hozier stated this promise was made “some time in 1993”. In relation to the alleged meeting in St Tropez on 16th August 2001, Mr Hozier gave the information that this meeting took place at lunch time in a restaurant known as Le Café, St Tropez and the meeting was between Mr Hurndell, David Hozier and Karen Hozier (although David and Karen Hozier were not at that time married).

[20]Mr Hurndell’s Reply to Mr Hozier’s Defence referred to the allegation that Mr Hurndell had signed a document at a meeting in St Tropez on 16th August 2001. He denied having signed any such document. He pleaded that “in and prior to 2001” the Claimant from time to time signed blank pieces of paper for use by Mr Davis and Mr White and properly authorised employees of Stanelco, in connection with property dealings in the south of France, so that letters could without delay be issued from London, bearing Mr Hurndell’s signature, at times when he was in France negotiating such dealings. Mr Hurndell pleaded that he believed that such a blank piece of paper bearing his signature had been misused to fabricate the note allegedly signed in St Tropez on 16th August 2001. Mr Hurndell dealt further with this matter in his response to a request for further information as to his Reply. He stated he was unable to particularise every occasion that he had signed a blank piece of paper. He was asked to state the period of time during which the property dealing in the south of France had taken place. He answered that this was in the late 1980s and the early 1990s although he did not recall precisely the dates involved.

[21]Another feature of Mr Hurndell’s Reply was that he contended that if the 33 million shares had been transferred to him as a nominee only then this would have resulted in Mr Davis and Mr White committing a number of unlawful acts. First, he contended that Mr Davis and Mr White would have conspired together to contravene rule 3.19 of the relevant listing rules of the London Stock Exchange. Further, he contended that Mr White would have committed breaches of section 324 of the Companies Act 1985, section 47 of the Financial Services Act 1986 and section 397 of the Financial Services and Markets Act 2000. Further, Mr Hozier himself would have been in breach of section 397 of the Financial Services and Markets Act 2000 in relation to the accounts of Stanelco for the years ended 31st October 2001 and 31st October 2002. It was further contended that certain action taken by Mr Hozier in 2002 and 2003 contravened section 324 of the Companies Act 1985 and section 397 of the Financial Services and Markets Act 2000.

How matters appear from the documents

[22]I will now set out certain non-contentious facts and, in addition, I will describe the position as shown by the documents. As I have explained above, there is an issue as to whether some of the documents, which purported to describe the beneficial interests in shares in Stanelco, were accurate or were inaccurate, perhaps deliberately so. This must be borne in mind in reading my references to these documents. I will in due course make my findings of fact on all relevant issues of fact, including the question as to the beneficial ownership of the shares in question.

[23]Mr Hurndell was born on 31st July 1933. At the time of the first trial, he was nearly 74 years old. At the time of the retrial, he was 77 years old. At the age of 26, Mr Hurndell went to drama school and for a time he had a career as a professional actor. He told me that he appeared in the theatre, and in television and films. It seems to be common ground that his work as an actor involved minor roles. By 1973, Mr Hurndell had stopped working as a professional actor and in that year he emigrated to the south of France. Between 1973 and recent times, Mr Hurndell lived full time in the south of France. In particular, he resided in St Tropez. For all of the period relevant to this litigation, Mr Hurndell lived at the same address in St Tropez. His accommodation in St Tropez has been described in the evidence. The scale of that accommodation may be relevant to contentions that have been put forward that Mr Hurndell was, and is, a man of considerable means. The accommodation in which he has resided for some decades is not the accommodation of a man of considerable means, as it appears to be very modest indeed. I was told that Mr Hurndell no longer retains that accommodation in St Tropez. In recent years, he acquired a property in Thailand and he stated that since 29th September 2009 he has lived full time in Thailand. Although Mr Hurndell has resided in France, either all of the year or part of the year, since 1973, he tells me that he has not learnt to speak any French.

[24]At all times material to this litigation, Mr Davis has paid the sum of £500 per month to Mr Hurndell. The purpose of this payment has been variously described. In my judgment, the most accurate description for it is that Mr Davis pays a retainer to Mr Hurndell. There is evidence as to the various things which Mr Hurndell has done for Mr Davis over the years where, it could be said, Mr Hurndell earned his retainer. In addition, Mr Hurndell has been useful to Mr Davis in a number of respects but some of the details relating to those respects are controversial. The controversial matters include the Isle of Man transactions in 1992, the purchase of shares in Middle East Tube Co Ltd (“Metco”) in 2000 and the central issue in this case as to the 33 million Stanelco shares. I will defer consideration of those matters to a later place in this judgment. Mr Hurndell also incurred various expenses at various times when performing tasks at the request of Mr Davis. Mr Hurndell claimed, and recovered, these expenses from Mr Davis.

[25]Mr Hurndell was involved, in particular in 1989 and 1990, with the possibility of a development on the Ile du Levant. This island lies off the coast of France, near to Toulon. At the relevant time, the greater part of the island was a French military base. A part of the island comprised a small village called Heliopolis, which was a nudist colony. The village comprised a number of restaurants and hotels and houses or villas. Mr Hurndell told me that he conceived the idea of a development on the Ile du Levant in around 1989 and he put that idea to Mr Davis and Mr White. They were prepared to follow up this idea and, for that purpose, to buy up properties on the Ile du Levant. Mr Davis and Mr White visited the island. It seems fairly clear that the project was conceived as a commercial project with a view to showing a return, although there was an element of the project which represented fun or amusement to Mr Davis and Mr White, certainly as compared with their more normal commercial ventures, involving the rescue of ailing engineering companies. I will refer in due course to the corporate structures which were to be created to carry forward the Ile du Levant project. Mr Davis and Mr White did not want the owners of individual properties on the island to become aware that a substantial London company wanted to buy up a large section of the island with a view to developing it. They thought that such knowledge would push up the sale price of the properties. Mr Davis and Mr White and, indeed, Mr Hurndell wanted the owners of the properties to be approached in a much more low-key way. The intention was that Mr Hurndell, acting in his own name, would buy some or all of the properties that were capable of being acquired. I do not know if all the transactions involving the Ile du Levant were in the name of Mr Hurndell but certainly some of them were.

[26]At all times which are relevant to the Ile du Levant events, Mr Hurndell was living with a young woman, then called Helen Robertson. She was known as Helen Matheson at the time of the retrial and I will refer to her as Miss Matheson. Miss Matheson was involved with Mr Hurndell certainly from 1989, when the Ile du Levant project began, until around 1996 when they separated.

[27]Mr Hurndell and Miss Matheson were involved in 1989 and 1990 in gathering information as to possibly available properties on the Ile du Levant. They reported this information back to Mr Davis and Mr White in London. Most of the written communications for this time came from Miss Matheson rather than from Mr Hurndell. Miss Matheson spoke good French and she appears to have been active with Mr Hurndell in respect of this project.

[28]In addition to buying up, or obtaining options over, certain commercial and residential property on the island, there was an intention to acquire land from the French Ministry of Defence for the purpose of creating a golf course. The documents include a letter dated 12th September 1991 from the Ministry of Defence in Paris recording certain communications which had taken place between Winemanor Holdings Limited (“Winemanor”), a company owned by Mr Davis and Mr White, and the French Ministry of Defence. This letter records that the first contact between Winemanor and the Ministry was in February 1990. In May 1990, Winemanor sought to purchase from the Ministry land on the island for the purpose of building a golf course. On the 2nd August 1990, Iraq invaded Kuwait. I was told that this fact changed the attitude of the Ministry to a possible sale of land on the island. The letter of 12th September 1991 records that by September 1990, the Ministry had rejected the proposal that it should sell land to Winemanor. In any event, by the middle of October 1990, it was clear that the project relating to the Ile du Levant would not proceed. On 17th October 1990, there was an exchange of correspondence between Winemanor and an English estate agent when the estate agent was instructed to sell the properties which had been acquired for or on behalf of Winemanor.

[29]I will next refer to the corporate structures which were to be created to carry forward the project on the island. The documents show that a fairly complicated corporate structure was envisaged. A trust for Mr White and a separate trust for Mr Davis were to become share holders in a Dutch company which would wholly own another Dutch company which would wholly own six French companies. Five of the French companies would own separate businesses on the island and the sixth French company would own all the land and buildings which were to be acquired. It is clear from the documents as to the intended corporate structure that the ultimate ownership of all the companies which were to be created would rest with a trust for Mr White and a trust for Mr Davis. The documents do not reveal any contemplation that Mr Hurndell was to be a shareholder in any of these companies. A letter dated 29th January 1990 from Winemanor to a French notaire referred to a letter of authority confirming that Mr Hurndell was authorised to act “as manager” on behalf of Messrs White and Davis. Another letter of 14th June 1990 from Winemanor to the notaire expressed concern at purchases being authorised by the signature of Mr Hurndell alone; that letter stated that the authorisation of either Mr Davis or Mr White was required before there could be a commitment to purchase a property.

[30]Although Mr Davis and Mr White sought to retreat from the island project in the autumn of 1990, they were not able immediately to detach themselves. They, through a company, had acquired a hotel, Hotel Le Minimum. Mr Hurndell and Miss Matheson went to the island and ran the hotel for a time. Mr Hurndell and Miss Matheson were paid sums of money called “a salary” during this time. The evidence was not clear whether Mr Hurndell received this salary in addition to his usual retainer of £500 a month or whether the retainer of £500 a month was called his salary in return for him being involved with the hotel at this period. In addition to these payments, Mr Hurndell was reimbursed his expenses.

[31]Mr Hurndell told me that there were a number of sets of court proceedings following the decision to abandon the island project. The documents before me only relate to one set of proceedings and those proceedings continued until judgment was given in them on 3rd February 1997. In brief summary, the position was that Mr Hurndell had contracted on 29th January 1990 to buy a hotel/restaurant called L’Esquinade. A cheque for 175,000 francs had been paid to the notaire. This sum was either to be set off against the sale price or retained by the vendor by way of compensation should the sale fall through. On 30th November 1990, Mr Hurndell sued the vendor seeking, in effect, rescission of the contract because, it was alleged, the vendor had been guilty of misrepresentation and/or there was a latent defect (vice caché) which entitled Mr Hurndell to withdraw from the sale. The claim was defended and the proceedings took a considerable time before judgment was given on 3rd February 1997. The judgment records the various procedural steps including the involvement of a court appointed expert. The court appears to have reviewed the litigation from time to time and there was a hearing on 28th October 1996. Mr Hurndell was represented by a French lawyer whose fees were paid by Winemanor or another company controlled by Mr Davis and Mr White. The claim was dismissed. The vendor was entitled to retain the 175,000 francs. Mr Hurndell was ordered to pay a sum towards the vendor’s costs and the court costs. Again, these sums were paid by Winemanor or a company controlled by Mr Davis and Mr White.

[32]One document which related to the hotel Le Minimum received considerable attention at the trial before me. In April 1996, the insurance on the hotel was about to expire. Mr Hurndell wished to renew the insurance as a matter of urgency. He contacted Mr Radia at Winemanor’s offices. He sent a fax to Mr Radia with a draft of a letter to be typed up at Winemanor’s offices. Mr Hurndell’s handwritten draft was addressed, it seems, to the insurers or a broker. It asked for the insurance to be renewed. Mr Radia caused this request to be typed and faxed the typed document back to Mr Hurndell who then signed the document as faxed and, no doubt, sent the signed document to the appropriate person. This otherwise unimportant matter was said to be relevant to the case put by Mr Hurndell that he had left at the offices in Barnet, London blank pieces of paper which bore his signature. There was a question as to why, if these signed blanks existed, one of them had not been used instead of Mr Hurndell sending his fax to Mr Radia and Mr Radia sending a fax back to Mr Hurndell. For the present, I record the simple fact that no signed blank was used on this occasion.

[33]Mr Hurndell also referred to other work he was doing for the benefit of Mr White and Mr Davis. In around 1990, Mr White and Mr Davis had acquired a company known as John White Footware Ltd. This company sold shoes and, in particular, had sold them to some French shoe retailers. Some of the retailers did not pay sums due to the company. The company ceased trading and, perhaps because of that fact, the company had difficulty in collecting debts. Mr Hurndell and Miss Matheson were involved to some extent in communicating with French lawyers instructed by the company in connection with pursuing recovery of these debts. It may be that Mr Hurndell went to visit some of the retailers although his inability to speak French would have been severely limiting as to what he could hope to achieve.

[34]In 1991, Mr Davis and Mr White set up two offshore family trusts. The trust set up by Mr Davis was called the I N Davis (1991) Trust. The trust set up by Mr White was called the H White (1991) Trust. The trust documents were not produced at the trial before me. The court was given only very limited information as to the terms of these trusts. Some 40% of the shares in Stanelco were registered in the name of Abacus (Nominees) Ltd and Abacus (Nominees) Ltd was to hold those shares as a nominee owner for the I N Davis (1991) Trust. The position was the same in relation to another 40% of the shares in Stanelco which were held by Abacus (Nominees) Ltd for the H White (1991) Trust. The share certificates in relation to these two blocks of shares were issued on 10th September 1991.

[35]The identity of the trustee under the two 1991 trusts has not been clearly established. However, there was produced a document dated 9th April 1997 in the name of Abacus (C.I.) Ltd which describes this company as having the capacity of the corporate trustee of a settlement known as the H White (1991) Trust dated 15th March 1991. In the absence of any contradictory information, this suggests that Abacus (C.I.) Ltd was the trustee of the H White (1991) Trust. That has the consequence that the relevant 40% of the shares in Stanelco which were held for this trust were held by Abacus (Nominee) Ltd as a nominee for Abacus (C.I.) Ltd. The terms of the H White (1991) Trust were described as creating a discretionary trust. The document signed on 9th April 1997 to which I have referred is a resolution by the trustee to exercise the trustee’s discretionary power to appoint in favour of Howard White, described as a beneficiary, in respect of the block of 40% of the shares in Stanelco. The appointment is said to be in accordance with clause 2(1)(b) of the trust but no further information is available to the court.

[36]In 1992, Mr Hurndell co-operated with Mr Davis in relation to certain monies that emanated from companies controlled by Mr Davis, passed through a bank account or bank accounts of Mr Hurndell and were then returned to Mr Davis personally. The documents which are before the court and which relate to these matters are in the period September to November 1992. Mr Hurndell had two relevant bank accounts. The first bank account was with Isle of Man Bank Ltd in Douglas, Isle of Man. The second bank account was with the Royal Bank of Scotland in London, W1. On 23rd October 1992 Mr Hurndell signed a letter addressed to the Isle of Man Bank Ltd. It referred to the fact that there would shortly be received in his bank account two sums totalling some £650,000. He said that the monies were being paid to him as stakeholder and they would be re-invested via a business associate, Mr Davis, based in the UK. Mr Hurndell asked the bank to transfer £550,000 to Mr Davis’ bank account. It was suggested that this letter signed by Mr Hurndell was an example of Mr Hurndell having placed his signature on a blank piece of paper where the text of the letter was later added giving the impression that Mr Hurndell had signed a letter containing that text. Having regard to the layout of the text on the page and the position of Mr Hurndell’s signature on the page, I regard that suggestion as unlikely. It was also suggested that in addition to Mr Hurndell, Mr Davis and Mr Radia, all of whom were clearly involved in this matter, Mr Hozier was also involved. Mr Radia said he was. Mr Malek suggested that the contents of the letter were the sort of thing that Mr Hozier would write. Mr Hozier denied being involved. It is not necessary for me to make a finding as to whether Mr Hozier was involved in this matter and I do not do so.

[37]It is not clear whether the sum of approximately £650,000, referred to in the letter of 23rd October 1992, was ever paid into Mr Hurndell’s Isle of Man bank account. It seems likely that the money was instead paid into Mr Hurndell’s Royal Bank of Scotland account. Further payments were then made into Mr Hurndell’s Royal Bank of Scotland account. Mr Hurndell then signed cheques totalling some £1.2 million in favour of Mr Davis.

[38]It is clear that Mr Hurndell was allowing his bank accounts to be used to receive monies which he would then pay out in favour of Mr Davis. Mr Hurndell was a nominee recipient of these monies. His letter dated 23rd October 1992, referring to an investment of these monies via Mr Davis, did not accurately describe the position and was written to mislead the Isle of Man Bank. Mr Hurndell was obviously willing to allow himself to be used as a nominee for Mr Davis and to make misleading statements in support of Mr Davis’s objectives. Although Mr Radia gave evidence about these matters at the retrial, it never became clear precisely what was going on but that does not matter for present purposes.

[39]As I have described earlier, Mr Hozier pleaded that it was in 1993 that Mr Davis promised Mr Hozier that before Mr Hozier’s retirement, Mr Hozier would be given 5% of the shares in Stanelco. I will refer to that matter again later in this judgment.

[40]In the early 1990s, possibly in 1993 or 1994, Howard White left the United Kingdom to live in the United States to pursue his business interests there. From that time, Stanelco was the only business with which Mr Davis and Mr White were jointly concerned.

[41]The documents include a ledger sheet dated 17th July 1996. This seems to show certain monies which were paid to, or for the benefit of, Mr Davis and further monies paid to, or for the benefit of, Mr White. This might have been an important document if there had been any clear evidence explaining it. I heard conflicting evidence as to whether Mr White had been paid more, or had borrowed more, than Mr Davis had. This could be relevant to the dispute as to why, when shares were to be transferred to Mr Hurndell, they came from the shares owned by Mr White’s trust and not from the shares owned by Mr Davis’ trust. However, the ledger sheet of 17th July 1996 was not really properly explained in the course of the evidence.

[42]In the period before December 1996, the shares in Stanelco were traded on the Unlisted Securities Market (USM). In 1996, the London Stock Exchange decided to abolish the USM. Companies whose shares were traded on the USM had the choice or either moving up to the Official List, or down to the AIM. The directors of Stanelco decided to apply for Stanelco to move up to the Official List. It seems that this decision was made at the last moment so there was comparatively little time to take all the steps that needed to be taken for this purpose. The application for admission to the Official List of the London Stock Exchange was handled on behalf of Stanelco by financial advisers, Collins Stewart & Co and by solicitors, Maxwell Batley & Co. Mr Hozier’s diary for the relevant period shows that he had appointments with Collins Stewart & Co on 5th and 18th December 1996.

[43]Collins Stewart & Co prepared an application for admission to the Official List. A draft of the document showed that the draft had been prepared on or before 12th December 1996. The draft stated that it was prepared in accordance with the listing rules made under section 142 of the Financial Services Act 1986. The draft stated that the directors of Stanelco accepted responsibility for the information contained in the application document and in the appended document. The draft stated that it was expected that admission to the Official List would become effective and that dealings in Stanelco shares could commence on 30th December 1996.

[44]In December 1996, Mr White was in the United States. Documents which required Mr White’s signature were faxed to him in the United States and the documents which he signed were received by fax at Stanelco on 17th December 1996. On the same day, Mr Hozier sent copies of the documents faxed by Mr White on to Maxwell Batley & Co. Mr White signed, or initialled, the various documents he had been asked to sign. He signed the front sheet of the draft document applying for admission to the Official List. He also signed an undertaking as a director of Stanelco to ensure that the necessary resolutions would be put to shareholders at the next general meeting of the company to amend the articles of association of the company to ensure that they complied fully with the listing rules. He signed a three page document containing undertakings as to the procedures being followed in relation to the listing. Mr White also executed a power of attorney in favour of any other director for the time being of Stanelco. This authorised the attorney to complete a series of specified documents in connection with the proposed listing.

[45]On 18th December 1996, there was a meeting of the board of Stanelco. The only directors present were Mr Hozier and Mrs Shepherd. Representatives of Collins, Stewart & Co, of Maxwell Batley & Co and of the auditors, Grant Thornton, were in attendance. The minutes referred to the various documents that needed to be duly executed for the purpose of achieving the full listing. In particular, Mr Hozier reported to the meeting that the board had to approve audited accounts for Stanelco for the period ended 31st October 1996 and that these accounts had been prepared and audited accordingly.

[46]Also on 18th December 1996, Mr Hozier signed the report of the directors in the audited accounts of Stanelco for the period ended 31st October 1996. The report of the directors stated that Abacus (Nominees) Ltd held 40% of the shares of Stanelco for the I N Davis (1991) trust and a further 40% of those shares for the H White (1991) trust. The report contained this statement:

“There have been no changes in the directors interests in the share capital of the company as set out above from the end of the financial period to the date of approving the financial statements. However to enable the company to comply with Stock Exchange regulations the holdings of H White and I N Davis must reduce and so following announcement of the results for the period and prior to 31st December 1996 the former will sell at least 5% of his holding.”

[47]On 20th December 1996, Mr Hozier wrote to Collins Stewart & Co stating that following the transfers of shares set out in a schedule attached to the letter, over 25% of the issued share capital of Stanelco was now in public hands. It was stated that the five directors of the company namely Mr Hozier himself, Mr Davis, Mr White, Mr Mills and Mrs Shepherd controlled under 75% of the issued share capital of the company and, with the exception of the directors, no shareholder currently held over 5% of the issued share capital. The schedule which was attached to Mr Hozier’s letter contained a mistake in that it showed Mr White as having minus 60 shares which was, of course, an impossibility. Mr Hozier pointed this out to Collins Stewart & Co stating that the schedule needed to be amended in this respect. Ignoring that point, the schedule set out the position “pre transfers”, then referred to “transfers by HW”, i.e. by Mr White, and the position “following transfers”. Mr Davis was shown as owning 40% of the shares both before and after the relevant transfers. Mr White was shown as owning a little over 40% as he had 60 shares more than Mr Davis. The transfers by Mr White were said to be to three companies who were referred to as Majorgraph, Homebeam and Warrington. These transfers were of the entirety of the shares formerly owned by Mr White. It was then stated that Majorgraph transferred to Mr Hurndell 33,310,000 shares, which were said to be 4.999% of the issued share capital. Majorgraph was also said to have transferred to a Mr Sharland some 101,878 shares, which were said to be 0.015% of the issued share capital. Mr Sharland was the partner of Mrs Shepherd, a director of Stanelco. The schedule showing the position following the transfers referred to Mr Hurndell and Mr Sharland as the relevant persons in relation to the numbers of shares to which I have referred.

[48]On or about 23rd December 1996, the final version of the application for admission to the Official List was signed by Mr Hozier as the attorney for, amongst others, Mr White and Mr Davis. A document of 23rd December 1996 gave further information about Mr Davis and Mr White. Mr Davis was said to have a 40% interest in the issued share capital of the company and Mr Davis and Mr White, jointly, were said to own companies which had a further 34.9% of the shares. Following its application for admission to the Official List, Stanelco obtained a full listing on the London Stock Exchange.

[49]Mr Hozier has stated that in January 1997, he drafted a letter to “the trustee of the H White (1991) Trust” instructing it to transfer the 33 million shares or thereabouts to Mr Hurndell. No copy of the draft letter has been produced. According to the schedule referred to in the letter of 20th December 1996, the contemplation was that Abacus (Nominees) Ltd would transfer shares to three limited companies, including Majorgraph Ltd, and Majorgraph Ltd would transfer the 33 million shares to Mr Hurndell. Whether there needed to be two transfers to vest the shares in Mr Hurndell or only one may not matter. Mr Hozier did not say in terms in his witness statement that he had asked Abacus (Nominees) Ltd to transfer the other shares they held on behalf of the H White (1991) Trust. In any event, Abacus (Nominees) Ltd transferred no shares in or shortly after December 1996, whether to Mr Hurndell or to anyone else.

[50]I have referred earlier to the appointment dated 9th April 1997 whereby the trustee of the H White (1991) Trust appointed all of the shares in Stanelco, the subject of that trust, in favour of Mr White. Following that appointment, the position would seem to be that the 40% shareholding in Stanelco in the name of Abacus (Nominees) Ltd was held by it as nominee for Abacus (C.I.) Ltd who held as trustee for Mr White absolutely.

[51]The financial statements for Stanelco showed net assets of £44,000 as at 31st October 1996 and £34,000 as at 31st October 1997.

[52]In March 1998, the financial statements for the year ended 31st October 1997 were in the course of preparation by Stanelco’s auditors, Grant Thornton. The auditors wrote to Mr Hozier asking for information about the current shareholdings of Mr Davis and Mr White. Grant Thornton stated that these should have decreased to reflect changes which were required when Stanelco moved from the USM to the full listing. Grant Thornton asked for an updated schedule of interests for all directors and information as to substantial shareholders with a beneficial interest of 3% or more. Mr Hozier replied to this letter on 23rd April 1998. His answer described the situation as if the transfers to Warrington Wireworks Ltd, Homebeam Ltd, Majorgraph Ltd, Mr Hurndell and Mr Sharland had all taken place in accordance with his earlier letter of 20th December 1996 to Collins Stewart & Co. In his letter to Grant Thornton, Mr Hozier recorded that the shareholdings of Mr Davis and Mr White had to be reduced to below 75% and that Mr Hurndell held approximately 5% of the shares.

[53]On 30th April 1998, Mr Hozier signed the directors’ report in the financial statements for the year to 31st October 1997. The directors’ report recorded the shareholdings of Mr White and Mr Davis. Mr White was shown as owning one half of the shares owned by the companies Warrington Wireworks Ltd, Homebeam Ltd and Majorgraph Ltd. The figure shown for Mr White was consistent with transfers to Mr Hurndell and Mr Sharland in accordance with the earlier letter of 20th December 1996. A later part of the directors’ report purported to identify shareholders who held a beneficial interest of 3% or more of the share capital of Stanelco. Mr Hurndell was not mentioned. The correct position would have been that if Mr Hurndell held some 33 million shares as nominee for Mr White then those 33 million shares should have been added to Mr White’s shareholding. That would have brought the total shares beneficially owned by Mr White and Mr Davis together to approximately 80% of the shares in the company. Conversely, if Mr Hurndell had been the beneficial owner of some 33 million shares, then his name should have appeared in the part of the report dealing with substantial shareholdings.

[54]On 30th April 1999, Mr Hozier signed the directors’ report in the financial statements of Stanelco for the year to 31st October 1998. The position as to the shareholdings of Mr White and Mr Davis was stated in the same way as in the previous year’s statements. Further, Mr Hurndell was not mentioned as having a beneficial interest of 3% or more in the shares of the company.

[55]On 7th December 1999, Mr Hozier drew up a description of the bonus which he asked Ian Davis to agree. The bonus was described as a proposed “retirement” bonus. The bonus related to the operating profits of a company trading as Renown Holidays Villages for the period to June 2004. This “retirement” bonus did not contain any reference to an earlier promise by Mr Davis to give 5% of the shares in Stanelco to Mr Hozier on his retirement.

[56]On 14th January 2000, Mr Hozier drafted a press announcement in relation to Stanelco. This referred to recent movements in the share price of the company and to various commercial activities engaged in by the company. The announcement stated that there was no real certainty that a commercial benefit would ensue to Stanelco and the directors were not aware of any other reasons to account for the movements in the share price.

[57]On 31st January 2000, Mr Hozier contacted a Mr Jones of the well known solicitors, Lovells. Mr Jones was an associate at that firm and was supervised by a partner, Mr Murray Jones. Mr Murray Jones was a long standing friend of Mr Davis and had acted for Mr Davis’ companies for many years. Mr Hozier told Mr Jones that 35% of the shares in Stanelco were owned by three nominee companies for Howard White and it was proposed that this 35% stake would be sold to Mr White’s son. The earlier references to these three companies identified them as being jointly owned by Mr White and Mr Davis but Mr Hozier’s statement suggested that they were now wholly owned by Mr White. Mr Jones’ advice to Mr Hozier concerned the possibility of Howard White’s son becoming obliged to make a cash bid for all the shares in Stanelco. Mr Hozier told Mr Jones that 80% of the shares in Stanelco were held by three shareholders. This must have been a reference to Mr Davis, Mr White and the third share holder, Mr Hurndell. On 4th February 2000, Mr Jones sent an internal note to Mr Murray Jones in relation to Stanelco. Mr Jones stated that he had spoken to both Mr Hozier and to Mr Howard White. The note concerned the possible application of the rules requiring a cash bid for the shares in Stanelco.

[58]Also on 4th February 2000, Mr Hozier sent a fax to Mr White giving a breakdown of the 40% shareholding which had originally been invested in the H White (1991) Trust. This showed the 40% of the shares allocated between the same five shareholders as were identified in the schedule attached to the letter of 20th December 1996. The correction to that schedule, removing the figure of minus 60 shares, has been arranged by reducing Mr Hurndell’s shares from 33,310,000 to 33,309,940. In the document faxed on the 4th February 2000, Mr Hozier had calculated a value or a price for each of these five shareholders. He told me that he based this price on the quoted price of shares in Stanelco when the market opened on 2nd January 1997. The market then showed a price of 0.875p per share. On this basis, Mr Hurndell’s shares were given a value of £291,461.98 and Mr Sharland’s shares were given a value of £891.43.

[59]On 14th February 2000, Mr Hozier wrote to Mr Jones of Lovells. Mr Hozier’s enquiry related to Howard White’s shares in Stanelco. It was said that:

“Howard holds 40% of Stanelco Plc”

. The 40% figure was right if Mr Hurndell was holding as a nominee for Howard White but otherwise was incorrect. Oddly enough, this statement was not the subject of any examination at the trial before me.

[60]On 17th February 2000, Mr Hozier wrote again to Mr Jones of Lovells. This letter referred to Mr White originally having owned 40% of the shares in Stanelco and then to a transfer by him of 5% of the shares in Stanelco “to a third party”. It was stated that the 35% holding was owned by three companies jointly owned by Ian Davis and Howard White and they had caused Majorgraph Ltd to sell all its shares in Stanelco and Warrington Wireworks Ltd to sell 80 million of its shares. The transferee in each case was the Heart of Darkness Foundation which was a Liechtenstein foundation, which, as I understand it, was controlled by Mr White’s son, Ben White. References in this judgment to “Mr White” are references to Howard White and not to Ben White.

[61]On 18th February 2000, Mr Hozier wrote again to Mr Jones of Lovells in order to give a full history of Mr White’s shares in Stanelco. The letter stated that on 18th December 1996, “Abacus Trustees” transferred all of Mr White’s former 40% holding in Stanelco to five transferees, one of whom was Mr Hurndell in relation to 33,309,940 shares. On the same day, Mr Hozier wrote to the Independent Registrars Group who, it seems, maintained the share register for Stanelco. Mr Hozier told the registrars of the transfers to Heart of Darkness Foundation. Mr Hozier said that it did not appear that the transfer of shares to Majorgraph Ltd and Warrington Wireworks Ltd had ever been recorded in the share register. He asked the registrars to update the register and, amongst other things, to register Mr Hurndell with some 33 million shares and issue share certificates accordingly.

[62]On 18th February 2000, Mr Jones of Lovells wrote to Mr Hozier with a draft letter to be sent to the takeover panel and a draft letter to be sent to the Stock Exchange. Both these drafts concerned the sales or proposed sales of shares to the Heart of Darkness Foundation. The draft letters do not in turn deal with the transfer of 5% of the shares in Stanelco to Mr Hurndell but it is fair to say that the impression given is that Mr Howard White and Mr Davis between them owned some 74.99% of the shares rather than 80% of the shares. Mr Jones’ letter to Mr Hozier stressed that it was vitally important that the factual details set out in the letters were strictly correct and accurate. The draft letter to the Stock Exchange was sent to it on 18th February 2000 and it seems that the draft letter was sent to the takeover panel around that time because the takeover panel then approved the application to it, as explained in the later letter of 29th February 2000 from Mr Murray Jones of Lovells to Mr Davis.

[63]On 29th February 2000, the shares in Stanelco which had been retained by Warrington Wireworks Ltd and the shares in Stanelco owned by Homebeam Ltd were transferred to the Heart of Darkness Foundation. The contemporary correspondence shows that Howard White was aware of these various transfers to the Foundation which was controlled by his son.

[64]On 6th March 2000, Mr Hozier wrote to a Mr Schellenberg who was at that time employed by Barclays Bank in Zurich in connection with the transfers of shares to Heart of Darkness Foundation. Mr Hozier stated that arrangements had been put in place for “the issue” of shares in Stanelco into the name of the Heart of Darkness Foundation. The reference to the issue of shares may have been because the shares had not been transferred by Abacus (Nominees) Ltd to the three companies who had purported to transfer the shares on to the Heart of Darkness Foundation. In around April 2000, the Heart of Darkness Foundation changed its name to the Age of Reason Foundation.

[65]On 28th April 2000, Mr Hozier signed the directors’ report in the financial statements for Stanelco for the year to 31st October 1999. The shareholdings of Mr White and Mr Davis as at 31st October 1999 were shown as being the same as at the 1st November 1998 but the report recorded that the joint interests of Mr Davis and Mr White in the three companies that together had owned 34.98% of the share capital had been transferred to the Age of Reason Foundation. The report also recorded the shareholders who held a beneficial interest of 3% or more as at 28th April 2000. Mr Davis’ trust owned 40%, the Age of Reason Foundation owned 34.98% and Mr Hurndell was shown as owning 4.99% that is 33,309,940 shares. This was the first occasion on which Mr Hurndell’s interest had been disclosed in the financial statements of Stanelco. Mr Mills signed the chairman’s statement on the 28th April 2000. The statement recorded that Stanelco had had a very successful year and referred to a joint venture with a substantial UK company for the exploitation of certain technology developed and patented by Stanelco.

[66]On 18th April 2000, Mr Hozier had sent to a number of addressees, including Mr White, the second proof copy of the financial statements that were later signed on 28th April 2000. It is more probable than not that the content of the proof copy sent on 18th April 2000 was the same in all material respects as the final statement signed on 28th April 2000. Thus, Mr White was sent the directors’ report recording that Mr Hurndell had a beneficial interest in 4.99% of the shares in Stanelco.

[67]On 24th May 2000, the registrars who kept the share register for Stanelco wrote to Mr Hozier suggesting that he obtain transfers of shares by Abacus (Nominees) Ltd.

[68]On 13th June 2000, a Mr Secrett of Grant Thornton sent an internal message to Mr Wilson of Grant Thornton and Mr Wilson e-mailed Mr Hozier so that his e-mail included a copy of Mr Secrett’s message. It is apparent from the contents of these communications that Mr Hozier had contacted Grant Thornton to discuss the possibility of David Hozier acquiring 4.99% of the shares in Stanelco. Mr Secrett had commented that an acquisition of 4.99% of the shares by David Hozier would not cause a difficulty with the listing rules of the Stock Exchange as 25% of the shares would remain in the hands of the public and David Hozier’s shares would not be treated as the shares of his father, Mr Hozier, who was a director. Mr Secrett did however raise a point about the parties acting together in concert and referred to the Blue Book. Mr Wilson’s e-mail to Mr Hozier suggested that there would not be a problem if the shares went to David but the size of his holding would mean that it must be disclosed in the annual accounts.

[69]In July 2000, Mr Hozier contacted Mr Jones of Lovells. Mr Jones wrote to Mr Hozier on 20th July 2000 and his letter was copied to Mr Murray Jones. Mr Jones’ letter considered the possibility that 5% of the shares in Stanelco would be transferred to Mr Hozier (rather than David Hozier). Mr Jones discussed two possibilities. The first was that the holding of just under 5% by one individual (obviously Mr Hurndell) might be transferred to Mr Hozier, alternatively 5% of the shares would be transferred from an existing holding of one of the directors to Mr Hozier. Mr Jones pointed out the different consequences of these two alternatives.

[70]In November 2000, Mr Hozier contacted Mr Jones of Lovells again. On 16th November 2000, Mr Jones wrote to Mr Hozier and his letter was copied to Mr Murray Jones. The proposal considered by Mr Jones in this letter was significantly different from that considered by him in his letter of 20th July 2000. The proposal now was that 5% of the shares in Stanelco would be transferred to David Hozier and the transfer would be from “the large individual shareholder”, who was obviously Mr Hurndell. This transfer was proposed to be by way of a gift in consideration of marriage. It was also said that one of the directors had offered to resign in connection with the proposal and the content of the letter suggests that this was a reference to Mr White. I make the following comments on this letter. First, the proposal was that Mr Hurndell’s shares would be transferred to David Hozier. Secondly, Mr White appears to have been involved in discussions with Mr Hozier about this because Mr Hozier was able to tell Lovells that Mr White had offered to resign in connection with this suggested transfer. Mr Jones advised that a transfer of some 5% of the shares to David Hozier might result in this 5% ceasing to be in public hands because David Hozier would be connected with a director, Mr Hozier. Mr Jones acknowledged that this might be an overly defensive interpretation of the listing rules.

[71]On 12th October 2000, Mr Ian Balchin was appointed a director and chief executive of Stanelco.

[72]On 15th December 2000 Mr Hozier wrote to Abacus Financial Services Ltd in the following terms:

“Howard White (1991) Trust Howard White has asked me to write to you, regarding his Stanelco shares. In December 1996, as part of the arrangements for Stanelco to move from the USM to a full listing, there was a requirement for Ian Davis and Howard White to dispose of 5% of their shares to a third party in order to keep below the 75% limit imposed by the Stock Exchange. Howard agreed that 5% of his holding would be transferred to William Hurndell with a small number going to Denis Sharland. In addition, he arranged for the balance of his shares to be transferred to three companies jointly owned by Ian and himself. The following transactions took place – Majorgraph Limited 75,687,000 Warrington Wireworks Limited 131,277,413 Homebeam Limited 26,113,709 William Hurndell 33,309,940 Denis Sharland 101,878 Total 266,489,940 The shares transferred to Majorgraph Limited, Warrington Wireworks Limited and Homebeam Limited were subsequently transferred into a Liechtenstein Foundation set up for the benefit of his son Ben. Copies of those share transfers are attached. The registrar is unable to put these transactions through the share register, without transfers signed by yourselves as Trustees. It would be appreciated if you could sign the original transfers, as set out above, and return them to me for forwarding onto the company’s Registrar. I am enclosing a copy of the Stanelco Plc accounts which reflects the above transactions.”

I am enclosing a copy of the Stanelco Plc accounts which reflects the above transactions.”

[73]It is more likely than not that the Stanelco accounts which were enclosed with this letter were the accounts for the year to 31st October 1999. As stated earlier, the directors’ report in the accounts to 31st October 1999 stated that Mr Hurndell held a beneficial interest of 4.99% of the shares of Stanelco, being 33,309,940 shares.

[74]Also on 15th December 2000, Mr Hozier wrote to Abacus Financial Services Limited in relation to the H White (1991) Trust. Mr Hozier stated that Howard White was convinced that he had approximately £35,000 left in his trust and Mr Hozier asked for copies of statements showing the movement of funds.

[75]On 9th January 2001, Abacus Financial Services Ltd sent to Mr Hozier five stock transfer forms executed by Abacus (Nominees) Limited. Abacus Financial Services Ltd reminded Mr Hozier that it had forwarded the original share certificate for the shares in the H White (1991) Trust with an earlier letter of 7th April 1998. The five stock transfer forms were in favour of the transferees and for the number of shares requested in Mr Hozier’s letter of 15th December 2000. In particular, Abacus Nominees Limited executed a stock transfer form in respect of 33,309,940 shares in favour of Mr Hurndell.

[76]In January and February 2001, there were a number of communications between Mr Hozier and a solicitor, Stephen Walker of Bray Walker. Bray Walker were acting for the Age of Reason Foundation but it seems that Mr White was the moving force behind the Age of Reason Foundation giving instructions to Bray Walker. It appears from these communications that Mr White was pressing hard for a share certificate in the name of the Age of Reason Foundation and matters were taking a little time, more time than Howard White wanted. The registration of the transferees from Abacus Nominees Ltd and, later, the registration of the Age of Reason Foundation were being dealt with in this period. The registration of Mr Hurndell as a shareholder was part of this process. On 18th January 2001, Mr Hozier wrote to the registrars asking for a share certificate in relation to Mr Hurndell’s shares being 33,309,940. On 19th January 2001, Mr Hozier wrote again to the registrars stating that he wanted the new share certificate to be sent for his attention at Stanelco’s address at Oliver House, Barnet.

[77]On 6th February 2001, the registrars issued a share certificate for 33,309,940 shares in the name of Mr Hurndell. The registrar sent the share certificate to Mr Hozier at Oliver House, as requested.

[78]Mr Hozier appears to have received share certificates for Majorgraph Limited, Warrington Wireworks Limited, Homebeam Limited, Mr Hurndell and Mr Sharland on the 7th February 2001. Mr Hozier retained Mr Hurndell’s share certificate that is, he did not forward it to Mr Hurndell. He forwarded Mr Sharland’s share certificate to Mr Sharland. He dealt with the other three share certificates under the direction of the Age of Reason Foundation to whom the relevant shares had been transferred.

[79]On 16th February 2001, Mr Hozier wrote to Mr White stating that the trustee of the H White (1991) Trust had suggested that the trust be wound up, as there was only £200 left in the trust.

[80]On 30th April 2001, Mr Hozier signed the directors’ report in the financial statements for Stanelco for the year to 31st October 2000. The directors’ report stated that Mr White had no shares in Stanelco as at 31st October 2000. The report stated that the substantial shareholders were Abacus (Nominees) Ltd for the I N Davis (1991) Trust, the Age of Reason Foundation and Mr Hurndell. These three shareholders had respectively 40%, 34.98% and 4.99%.

[81]On 15th May 2001, Mr Hozier wrote to Mr White stating that the trustees of the H White (1991) Trust were seeking confirmation that Mr White no longer had a use for the trust. Mr Hozier included a draft letter to be sent to the trustee. There was no evidence that Mr White did send such a letter to the trustees.

[82]I will now attempt to summarise some of the undisputed facts in relation to Mr Hurndell’s involvement with an Israeli company, known as Middle East Tube Co Ltd (“Metco”). At the relevant time, Ian Davis had a substantial stake in Metco. In late 2000, Mr Hurndell became the registered shareholder of shares in Metco representing over 6% of its issued share capital. These shares cost a substantial sum, of the order of £500,000. Mr Hurndell did not use any of his own money to acquire these shares. The money to acquire the shares came from the bank and from Mr Davis (or from Mr Davis and an associate). As will be seen, the question as to the circumstances in which Mr Hurndell acquired these shares in Metco became contentious. The Israeli authorities made allegations against Mr Davis and others and in due course Mr Davis was indicted for alleged criminal offences in Israel in connection with shares in Metco. As will be seen, Mr Hurndell was interviewed by the French police and by Israeli agents on 31st August and 1st September 2004. What he said to the police on that occasion is said to be material to this trial. Later still, Mr Hurndell gave evidence by video link to the Israeli court in the Israeli criminal proceedings. I have transcripts of the evidence given by Mr Hurndell and indeed by other witnesses in those proceedings and I have a copy of a lengthy judgment given by the judge in those proceedings and, further, a second judgment when he passed sentence on Mr Davis, following his conviction on the criminal charges. I will not at this stage refer in any more detail to those matters but I will refer to certain documents which indicate certain events which happened, involving Mr Hurndell, in late 2000.

[83]On 28th September 2000, Mr Hozier sent a memorandum to Mr Dennis a bookkeeper at Oliver House on the subject of Metco. Mr Hozier stated that “we” are acquiring a 5% share holding in Metco; the shares had been purchased in the market that day and that “we” need to send money to Israel in settlement. The memo stated: “The shares will be held in the name of William Hurndell…”.

[84]On 29th September 2000, Mr Hozier received a request for payment of $540,000 in connection with the purchase of shares in Metco. On the same day, Mr Hozier, on behalf of another Ian Davis company, R J Bown (Holdings) Ltd transmitted $540,000 as requested.

[85]I have been shown a draft document relating to a loan from Phoenicia Glass Works Ltd to Mr Hurndell. The draft is dated 29th September 2000 and refers to a loan of 2,300,000 new Israeli shekels from Phoenicia Glass Works Ltd to Mr Hurndell. The draft states that the loan was to be repaid not later than 1st November 2000.

[86]On 5th October 2000, a lady called Ann, writing from Oliver House, wrote to Mr Hurndell giving him full details of his proposed trip to Israel. Mr Hurndell was to fly to Israel where he would be collected and taken to the office of a lawyer. The letter stated:

“The lawyer will then direct you”

. Mr Hurndell duly went to Israeli and met the lawyer as arranged for him. On the 10th October 2000, Mr Hurndell executed a power of attorney in favour of the lawyer, a Mr Avi Shatz. The power of attorney was an extensive one in relation to dealings with bank accounts and with money generally. Mr Hurndell also authorised his attorney to vote for him at company meetings; this would have extended to voting at meetings of Metco. On 25th October 2000, Mr Hurndell flew back from Israel to France. Subsequently, Mr Hurndell drew up a complete list of the expenses he had incurred in connection with his trip to Israel and he submitted this list to Mr Hozier seeking reimbursement. On 31st October 2000, Mr Hozier on behalf of R J Bown (Holdings) Ltd sent a sum of $100,000 to an account in the name of Mr Hurndell at an Israeli bank.

[87]The Defendants rely on a document which they say was signed by Mr Hurndell in St Tropez on 16th August 2001 (“the St Tropez note”). Mr Hurndell says that he did not sign this document. The note has a heading “ST TROPEZ 13TH AUGUST 2001”. The text of the note reads:

“I, WILLIAM HURNDELL CONFIRM THAT HOWARD WHITE HAS AUTHORISED ME TO TRANSFER APPROXIMATELY THIRTY TWO MILLION SHARES IN STANELCO PLC TO DAVID HOZIER AT THE APPROPRIATE TIME IN THE NEAR FUTURE. SIGNED”

SIGNED”

[88]The heading to the note and the text I have quoted was written by David Hozier and is in black ink. Below the text is the signature of Mr Hurndell in blue ink. Mr Hurndell accepts that this is his signature. He says that what has happened is that the Defendants have taken a sheet of note paper which was blank, apart from the presence of Mr Hurndell’s signature, and have then written the text I have quoted above Mr Hurndell’s signature, without his knowledge or consent.

[89]On 14th February 2002, Mr Hozier signed the directors’ report in the financial statements for Stanelco for the year to 31st October 2001. The directors’ report identified Abacus (Nominees) Ltd, the Age of Reason Foundation and Mr Hurndell as three share holders having a beneficial interest of more than 3% in the issued share capital of the company. Mr Hurndell was recorded as owning 33,309,940 shares, which were stated to be 4.85% of the issued share capital. The percentage had gone down, no doubt because of issues of shares which had taken place. The directors’ report also recorded that Mr Hozier had been awarded certain share options in relation to 20 million shares.

[90]Also on 14th February 2002, two stock transfers were completed. The first stock transfer related to 20,500,000 shares and the second stock transfer related to 11,309,940 shares. The first stock transfer named the transferor as Mr Hurndell and the transferee as Khaki. The second stock transfer named the transferor as Mr Hurndell and the transferee as Finale. Khaki and Finale were companies registered in the British Virgin Islands. The first stock transfer recorded consideration money of £717,500 and the second stock transfer recorded consideration money of £395,847.90. Mr Hurndell’s signature appears as the signature of the transferor on both stock transfers. Mr Hurndell accepts that the signature is his in both cases. He says that he signed blank stock transfer forms and that he did not sign stock transfer forms which identified the name of the transferee or the number of shares or any consideration money. Apart from Mr Hurndell’s signature and the addresses of Khaki and Finale, the remainder of the stock transfer forms have been completed by Mr Hozier. The addresses of Khaki and Finale were completed by David Hozier. The two stock transfer forms were stamped on 15th February 2002. The stamp paid for the first stock transfer form was £3,590 and the stamp paid for the second stock transfer form was £1,980.

[91]On 15th February 2002, Mr Hozier caused a stock exchange announcement to be made. The announcement read:

“Disposal by substantial shareholder The Company has today been notified that Mr William Hurndell has today sold 31,809,940 ordinary shares of 0.1p each (4.63% of the issued share capital), reducing his holding from 33,309,940 ordinary shares (4.85%) to 1,500,000 ordinary shares (0.22%).”

[92]The announcement directed enquiries to two persons, one of whom was Mr Hozier, who was described as the finance director of Stanelco. The telephone number given for Mr Hozier was his office number at Oliver House.

[93]On 22nd February 2002, the registrars issued new share certificates to give effect to the stock transfers of 14th February 2002. As Mr Hurndell retained 1,500,000 shares, the registrars issued a new share certificate in his name for that number of shares. The share certificate was sent to Mr Hurndell at his address in St Tropez.

[94]On 14th March 2002, the AGM of Stanelco took place. Mr Hozier attended the AGM with Mr White and Mr Balchin. Mr Davis did not attend the AGM. Later that day, Mr Davis and Mr Hozier had a serious disagreement with reference to what had happened at the AGM. During the weekend following the AGM, Mr Hozier decided to resign from the various Ian Davis companies which employed him. On Sunday 17th March 2002, Mr Hozier went to the office at Oliver House. He says he cleared out his personal belongings and all the files belonging to Stanelco. Amongst the documents which Mr Hozier took were the documents dating from 1992 showing that Mr Davis had passed monies through one or other bank account of Mr Hurndell. I have referred to those documents earlier in this judgment. Mr Hozier told me that he already had the memorandum of 28th September 2000 (to which I have referred) referring to shares in Metco being put in the name of Mr Hurndell. Mr Hozier also left a resignation letter for Mr Davis to find on the following Monday, 18th March 2002.

[95]Around the time that Mr Hozier resigned as an employee of Mr Davis’ companies, Mr White instructed solicitors, Bray Walker, to make certain legal claims against Mr Davis. On 22nd March 2002, those solicitors wrote to Mr Davis putting forward those claims on behalf of Mr White. On 26th March 2002, Bray Walker acting on behalf of the Age of Reason Foundation wrote to Mr Davis to put forward certain claims on behalf of that Foundation. It is not necessary to describe the detail of these claims by Mr White or by the Foundation.

[96]On 13th June 2002, Mr Hozier applied to an Employment Tribunal for compensation for constructive dismissal and wrongful deduction of salary. Mr Hozier’s solicitors were again Bray Walker. The respondents were three companies controlled by Mr Davis. Mr Hozier alleged he had been constructively dismissed on or about 18th March 2002. He stated that he had resigned from all of Mr Davis’ companies as a director or secretary on 16th May 2002, save that he had not resigned from Stanelco. His application to the Employment Tribunal stated that:

“until October 2001, he enjoyed his job and the challenge it offered and he enjoyed the trust and friendship of Mr Davis”

. He stated that on 14th December 2001, he overheard a statement by Mr Davis that “Barrie is finished…” He also referred to Mr Davis having agreed a retirement package for him. He did not refer to a promise by Mr Davis to give him 5% of the shares in Stanelco on his retirement.

[97]On 5th August 2002, the respondents to the application in the Employment Tribunal filed a notice of appearance with a supporting statement. This recorded that Mr Hozier’s resignation letter of 18th March 2002 enclosed the document which referred to “retirement bonus for Barrie Hozier” of 7th December 1999; I have referred to that document earlier in this judgment. Mr Hozier is said to have signed his copy of this bonus letter stating that Mr Hozier looked forward to receiving Mr Davis’s proposals for a financial settlement. The statement referred to the fact that Mr Davis’ attitude to Mr Hozier may well have changed from “October/November 2001 onwards”. It was stated that Mr Hozier’s signature on the proposed retirement bonus letter was not contractually binding.

[98]On 2nd October 2002, Mr Balchin sent a memorandum to the chairman of Stanelco. The memorandum concerned certain aspects of the behaviour of Mr Davis. For present purposes, it is only necessary to refer to two points made in the memorandum. One point concerned a dispute as to Mr Davis’ behaviour in making payments from Stanelco to an Israeli company known Logistico. The second concerned a breakdown in the relationship between Mr Davis and Mr White. Mr Balchin said he first expressed concern at this breakdown in October 2000. Mr Davis then denied that the relationship had broken down. However, by the date of the memorandum, 2nd October 2002, Mr Balchin was clear that there was a dispute between Mr Davis and Mr White which Mr Balchin thought was harmful to Stanelco.

[99]In January 2003, Mr Hozier settled his claim against Mr Davis’ companies. Some of the terms of settlement were referred to in the letter of 22nd January 2003 from Mr Hozier to Seymour Pierce Ltd. This letter referred to an agreement under which 15 million shares in Stanelco would be transferred to Mr Hozier and David Hozier. Mr Hozier was to acquire 13.5 million shares and David Hozier was to acquire 1.5 million shares.

[100]On 24th February 2003, the financial statements of Stanelco for the year to 31st October 2002 were finalised. The shareholdings connected with Mr Davis were split into two blocks. The smaller block comprised 15 million shares which appear to be the shares intended to be transferred to Mr Hozier and David Hozier. The directors’ report recorded that Mr Hozier had share options in respect of 20 million shares. Mr Hurndell was not listed as a substantial shareholder. There was no reference to Khaki or Finale in these financial statements.

[101]On 25th February 2003, Mr Hozier sought advice from Seymour Pierce Ltd as to the disclosure he should make in relation to the shares he was to acquire under the settlement with Mr Davis. The number of shares was given as 13,333,333. These communications did not refer to the position of Khaki or Finale. On 28th February 2003, Stanelco made a Stock Exchange announcement recording that Mr Hozier had acquired 13,333,333 shares in Stanelco.

[102]On 3rd April 2003, a sum of £284,109.59 was paid into Mr Hurndell’s bank account. On the 25th April 2003, that identical sum was paid out of the account to R J Bown (Holdings) Ltd. Mr Hurndell told me that he did not know what this money represented.

[103]On 13th August 2003, Mr Davis was questioned by the Israeli authorities on the subject of share dealings in Metco. On 4th February 2004, the Israeli authorities sent to the French authorities an international letter rogatory seeking the assistance of the French authorities in relation to a search of the premises of Mr Hurndell and an interrogation of Mr Hurndell in relation to intended proceedings in Israel concerning share dealings in Metco. In due course, on 31st August 2004 and 1st September 2004, Mr Hurndell was detained by the French police pursuant to this letter rogatory. The French police had arranged for a translator, Madame Annick Lucas to assist with translation from French into English during the time of Mr Hurndell’s detention by the police.

[104]I have been provided with a number of documents, originating from the French police, relating to the search which occurred at Mr Hurndell’s flat in St Tropez and three formal interviews of Mr Hurndell on 1st September 2004. The formal notes of the three interviews on 1st September 2004 have been translated into English. The other documents remain in French.

[105]In summary, what occurred was that Mr Hurndell was present during a search of his flat on 31st August 2004 from 5.30pm to 7.15pm. Mr Hurndell was kept in custody overnight on 31st August 2004 and was interviewed three times on 1st September 2004. The French police were authorised to keep Mr Hurndell in custody for a period of 24 hours expiring at 3pm on 1st September 2004. Before the expiry of that period, the French police obtained the authority of the court to detain Mr Hurndell for a further 24 hour period. Mr Hurndell completed the third interview on 1st September 2004 at 5.30pm and he was then released.

[106]The documents record what happened in relation to Mr Hurndell obtaining legal advice on 31st August and 1st September 2004. On 31st August 2004, the French police explained to Mr Hurndell the reason for their interest in him. They explained that they had grounds to suspect that he had committed or had attempted to commit certain unlawful acts and was to be detained for a period of 24 hours. They explained to Mr Hurndell that he was entitled to speak with a lawyer at the beginning of these procedures and when 20 hours had gone by, and also at the end of the 36th hour, in the event of the matter continuing for that time. Mr Hurndell indicated that he did wish to speak to a lawyer in this way. He identified his lawyer as Maitre Arnaud of the Toulon Bar. The French police prepared a written statement recording these matters. The written statement was read to Mr Hurndell by Madame Lucas and he signed the statement on 31st August 2004 at 3.20pm.

[107]The French police prepared a further statement at 4.10pm on 31st August. This recorded that in accordance with the wishes of Mr Hurndell, Maitre Arnaud spoke to Mr Hurndell from 3.55pm to 4.10pm. At the end of this meeting, Maitre Arnaud made no observations to the French police. The French police made a further statement on 1st September 2004 at 5.35pm. This recorded that Mr Hurndell had met his lawyer on 31st August 2004 from 3.55 to 4.10pm and again on 1st September 2004 from 10.45am to 10.55am. The police statement was read to Mr Hurndell by Madame Lucas and he signed it on 1st September 2004 at 5.45pm. The three formal interviews of Mr Hurndell on 1st September 2004 were conducted by Captain Ortega of the French police in the presence of two investigators from the Department of Financial Inquiry in Israel, and Mrs Lucas, the interpreter.

[108]The first interview statement related to an interview beginning at 9.00am and ending at 10.10am. The note of the interview recorded that Mr Hurndell swore to tell the truth in his answers to the questions put to him. He later signed a statement written in French which recorded that the statement was read to him in English by Madame Lucas. My attention was drawn to the fact that the note of the interview refers to Buckingham as “Buckingh”. In this interview, Mr Hurndell stated that he currently held 1,500,000 shares in Stanelco. He said he received an annual income of about £150 from this shareholding. He said he was a shareholder in Metco. He thought these shares might have been sold by his lawyer. He said that Ian Davis had been taking care of everything in London since 1983/1984. He referred to the receipt of a monthly sum of £500 from Mr Davis which he had received since 1983. In addition to these sums he received occasional payments for expenses. He had complete confidence in Mr Davis. He referred to his purchase of a 49% interest in a property in Thailand, financed by funds from Israel.

[109]The second interview on 1st September 2004 lasted from 11.00am to 1.00pm. The French police prepared a note in French of the interview. This was read to Mr Hurndell in English by Madame Lucas and he signed the note. The note records that Mr Hurndell was reminded that he had sworn to tell the truth in his answers. He was asked about Metco. He said that he was not the one behind that investment. Barrie Hozier was behind the investment. Mr Davis told Mr Hurndell that investing in Israel would be a good thing. He signed several documents in Israel trusting in Mr Davis and his associate. He did not know whether the documents were in English or in Hebrew. He placed complete confidence in Mr Davis. He funded the purchase by borrowing the money from a company run by Mr Davis. He did not remember what sum he invested. He believed it was about 6 million new Israeli shekels. He did not have to pay interest on the loan. He was asked what his holding in Metco was. He thought the investment was for something like 3% or 5% but he could not remember. He said:

“I don’t take much interest in that sort of thing”

. He stated that Mr Davis had paid him for expenses he had incurred at the time. This was because Mr Davis had asked him to check up on some renovation work on his villa in Tel Aviv. Mr Hurndell subsequently told me that Mr Davis did not have a villa in Tel Aviv. Mr Hurndell said that he opened a bank account in Israel. He used the lawyer Mr Schat to do this for him. Mr Schat had a power of attorney. Mr Hurndell added that he did not personally decide the amount of money to invest. He thought it was Mr Hozier who knew how many shares had to be bought and at what price.

[110]The third interview began at 3.10pm and ended at 5.30pm. The French police prepared a note in French of the interview and this was read in English to Mr Hurndell by Madame Lucas. Mr Hurndell signed the note of the interview. He said he had never heard of a company called Phoenicia. If he held any shares in Phoenicia it was Mr Davis who had taken care of it. If he had to obtain a loan from Phoenicia, it was Mr Davis who would have acted for him. He had not received dividends from Metco. He said he asked Mr Davis for money as and when he needed it. He was asked: who decided how money from Metco was to be used? He answered that he did not know the detail of how things were done as Mr Davis took those sorts of decisions. He had no idea of the dividends received in relation to the shares in Metco. He did not know his current holding in Metco. He did not know if he had sold any shares in Metco. He did not know if he had repaid the loan of the money borrowed to buy the shares. He was asked if the Metco investment was a sound one. He said he did not know and he had no figures. He was asked if Mr Schat knew that Mr Hurndell was buying shares through Mr Davis. He answered that he had no idea as he just signed the papers. He said he was mistaken when he had earlier stated that he had signed voting papers. He said he signed some papers for Stanelco as part of the Metco deal. He said the lawyer voted in relation to Metco. He did not know who gave Mr Schat voting instructions. He said that instructions were given to the lawyer by Ian Davis’ office in London. He was then shown a document dated 1st September 2004 recording that he had contracted a loan with Phoenicia Glass Works Company. He confirmed that the signature on this document was his. He did not know what would have happened if the Metco shares had lost their value. He was asked how he would repay €1.2 million. He said by reason of another investment or some other business deal arranged by “the office”. He said he was not a business man; everything was handled by “the office”. He said that the money for Metco did not come out of his pocket but from “the holding company” which seems to be a reference to a company controlled by Mr Davis. He said the gratuity of £500 a month was payable to him for the rest of his life. He said a profit from the Metco deal did not affect him at all because the money for that investment was not his, it was Mr Davis’. He did not know anything about the transfer of £284,109.59 into his account in April 2003. He said that “Oliver House” handled it. He then said that the money was for Ian Davis’ company. He was asked:

“do you in fact lend your name on Davis’ behalf?”

He answered:

“Yes. All I get in exchange is the £500 monthly gratuity I mentioned.”

He was asked:

“If Oliver House decided to sell the shares, could they do it and keep the money?”

He answered: “Yes, of course, because it’s their money. The shares in fact belong to Oliver House. To summarise my position in this matter, I did what I was told to do. If I agreed to lend my name to the Middle East tubes’ deal it was because in a way I belong to Oliver House”.

[111]In relation to the 1,500,000 shares registered in the name of Mr Hurndell, Mr Hurndell sold these shares in two blocks. The first block of 750,000 shares was sold in September 2004 and the remainder were sold on 11th July 2005.

[112]On 5th August 2004, Finale began to sell shares in Stanelco. These sales by Finale continued until 1st March 2005. Finale sold all the shares which had been transferred to it and received gross proceeds of some £714,000.

[113]On 9th December 2004, Khaki began selling the shares that had been transferred to it. This process continued until 21st April 2005. Khaki sold all the shares that had been transferred to it and received gross proceeds of some £2,573,000.

[114]Finale was dissolved on 23rd March 2005 and Khaki was dissolved on 21st May 2005. The proceeds of the sale of the shares by Khaki and Finale were transferred to Bestrish Ltd, a company registered in the Bahamas. Bestrish Ltd was formed on 15th February 2005, in anticipation of the later dissolution of Khaki and Finale.

[115]As a result of the various sales of shares by Khaki and Finale, various representatives of Stanelco wished to know more about the identity of Khaki and Finale. Mr White wanted Stanelco to obtain the relevant information and on or about 21st February 2005, Mr White wrote to Globe Trust AG of Zurich who, as Mr White knew, had assisted with the formation of Khaki and Finale. Mr White’s letter referred to allegations having been made to Stanelco that one of its directors, past or present, was in some way connected with Khaki and Finale. He said that Khaki and Finale had owned and traded in Stanelco shares. Stanelco was taking the allegations seriously since if they were accurate they could cause significant reputational damage to it. Mr White authorised Globe Trust to disclose to the directors of Stanelco and its professional advisors any information relating to Mr White’s involvement with Khaki or Finale.

[116]On 21st February 2005, Mr Hozier wrote a letter to Globe Trust in the same terms as Mr White’s letter. This was not a voluntary act on Mr Hozier’s part. The letter had been drafted by Stanelco’s solicitors, Eversheds, and sent to Mr Hozier by Stanelco. Mr Hozier did not feel he could refuse to send the letter and he sent it. He subsequently spoke to Mr Hartman of Globe Trust and instructed Mr Hartman not to answer the letter. Mr Hartman made no reply to the letter from Mr White, nor to the letter from Mr Hozier.

[117]On 6th March 2005, Mr Balchin asked Mr White to provide a written account of what he knew in relation to involvement of Khaki and Finale.

[118]On 12th April 2005, solicitors for Mr Hozier wrote to Stanelco referring to “allegations/insinuations” relating to Khaki and Finale. Mr Hozier’s solicitors wanted an assurance that when Mr Hozier retired he would be able to exercise his share options in respect of Stanelco. The letter referred to a proposed retirement on 22nd April 2005.

[119]Eventually, on 18th April 2005, Mr White made a detailed statement in relation to Khaki and Finale and on 28th April 2005, Mr Hozier made a statement in response to Mr White. These two statements are lengthy documents but I will attempt to draw out the points which are of principal relevance for present purposes.

[120]Mr White’s statement was prepared with the assistance of Stanelco’s solicitors, Eversheds. The statement described the issue of shares to the H White (1991) Trust, to the Stock Exchange listing in December 1996, to the transfer of shares to Mr Hurndell, to discussions Mr White had with Mr Hozier, to the creation of Khaki and Finale, to the transfer of shares to Khaki and Finale and the later sale of those shares. At paragraph 2.2, Mr White stated that he believed that Mr Davis and Mr Hozier had agreed that 5% of the shares in Stanelco would be transferred to Mr Hurndell so that 25% of the shares in Stanelco would be in public hands. Mr White did not object to this proposal. He said that he did not understand why the shares should all come from his trust, rather than half from Mr Davis’ trust and half from Mr White’s trust. He then added that when the trustees appointed the beneficial interest under the H White (1991) Trust to him, in April 1997, the shares were still held for the account of the H White (1991) Trust. Mr White then gave various reasons why he did not query the decision to transfer 5% of the shares in Stanelco from the H White (1991) Trust. These reasons related to his inability to devote a great deal of time to Stanelco, the regulatory requirement, the company’s best interests, the fact that the shares were worth very little and that he had moved to the United States. He did not refer to the shares being held by Mr Hurndell as a nominee. However, at paragraph 3.4 of the statement, Mr White stated that the shares transferred to Mr Hurndell for nil consideration appeared to have been held for Mr White. Mr White then explained that Mr Hozier had told Mr White of Mr Davis’ promise to give Mr Hozier 5% of the shares. Mr White did not want a dispute involving the executive management of Stanelco and Mr White agreed to give to Mr Hozier that 5% interest. The shares to be transferred to Mr Hozier were the shares held by Mr Hurndell for the benefit of Mr White. Mr White then disclosed that he had assisted Mr Hozier to set up Khaki and Finale and had advanced monies by way of a loan to Mr Hozier for that purpose. In his conclusion, Mr White stated that he accepted the recommendation of Mr Davis and Mr Hozier that 5% of the shares should be transferred to Mr Hurndell to comply with the Stock Exchange listing rules. Mr White was not aware that he had acquired a beneficial interest in the shares in April 1997. He left everything to Mr Davis and Mr Hozier to arrange “given the general authority that I had vested in them.” He later agreed to give the shares to Mr Hozier and at that point he did not consider himself to have any further interest in them.

[121]Mr Hozier’s statement is dated 28th April 2005. Part of that statement is a purported response to Mr White’s memorandum of 18th April 2005 but Mr Hozier also dealt with a number of other topics. Mr Hozier told me that parts of his statement of 28th April 2005 were untrue. I will not therefore refer to parts of the statement which are not put forward by either party as being accurate. Mr Hozier said that Mr Davis had agreed with Mr White that 5% of Mr White’s family trust shares would be transferred to Mr Hurndell. Mr Hozier said that Mr White would regularly ring Mr Hozier for an update on Stanelco. Mr Hozier said that the shares were transferred by the H White (1991) Trust to the three company transferees to settle the overdrawn personal accounts of Mr Davis and Mr White in relation to various companies. He said that Mr White had borrowed more than Mr Davis on these loan accounts. In relation to the conversation between Mr White and Mr Hozier about Mr Davis having promised 5% of the shares to Mr Hozier, Mr Hozier sought to play down that matter. He said that Mr Davis and Mr White had promised 30 million shares to a Mr Radia and to Mr Hozier. The promise was made in 1991/1992. It was only a semi-serious arrangement. It was never performed. Mr Radia left Mr Davis’ employment in around 1995 without any Stanelco shares. The only shares that Mr Hozier had received were the shares he received by way of settlement of his application to the Employment Tribunal. Mr Hozier ended his statement by saying that Mr White was engaged in a vendetta against him. The cause of the vendetta was Mr Hozier’s refusal in February 2004 to comply with Mr White’s request that Mr Hozier give up his share options.

[122]On 20th April 2005, solicitors, Sebastians, acting for Mr Hurndell wrote three letters, one each to the following three representatives of Stanelco, namely, Mr Duggan, Mr Lovegrove and Mrs Filkin. The letters were in the same terms. There may have been an earlier letter to Mr Duggan but it has not been produced. Sebastians stated that they had been asked by Mr Hurndell to investigate the alleged sale of his holding of shares to Khaki and Finale. The letter said this:

“Our client has had no dealings at all with either of these alleged purchasers, having dealt exclusively and at all times with Mr Barrie C. Hozier”

. The letter went on to say the alleged consideration had never been received by Mr Hurndell. Further, it was stated that the sales were the subject of an investigation by the French tax authorities, who had interviewed Mr Hurndell and who were seeking tax in respect of the alleged sales. Sebastians stated that the purpose of the letter was to advise Stanelco that Mr Hurndell intended to pursue the matter through the courts and he asked for the full co-operation of Stanelco in establishing the true circumstances. Mr Hurndell’s concern as expressed by Sebastians in those three letters appeared to be that it was being contended, or could be contended, that he had sold his shares for substantial sums to Khaki and Finale whereas, in fact, he had dealt exclusively with Mr Hozier.

[123]Between April and May 2005, Mr Hurndell changed solicitors and instructed Devonshires. On 17th May 2005, Devonshires wrote to Mr Hozier. They referred to the two stock transfer forms of February 2002 which, they stated, they had obtained from Companies House. They said that Mr Hurndell had not authorised the sale of the shares and the consideration was not paid so that the sale should be set aside and the shares returned to Mr Hurndell. Devonshires said that the stock transfer forms had been completed by Mr Hozier and also, on information provided by Howard White, Khaki and Finale were under the control of Mr Hozier.

[124]On 24th May 2005, Mr Hozier replied to Devonshires’ letter of 17th May 2005. Mr Hozier said that he did not complete the stock transfer forms. He said that the shares were not transferred to vehicles under his control. He also said that Mr Hurndell had made a statement to the French police regarding the Stanelco shares and that Devonshires should investigate that statement.

[125]On 26th May 2005, the Israeli authorities served on Mr Davis an indictment in relation to alleged criminal offences in connection with the shares in Metco. It alleged that Mr Davis had carried out a fraudulent scheme in a series of stages. One of the alleged stages was that shares were put in the name of Mr Hurndell when in truth they were owned by Mr Davis and his associate. The indictment listed a large number of prosecution witnesses including Mr Hurndell and Captain Ortega of the French police.

[126]On 7th June 2005, Devonshires wrote to the Attorney General of Israel. They said they represented Mr Hurndell “in a multi-million claim by him relating to his shareholding in the British company Stanelco Plc”. Devonshires referred to the detention of Mr Hurndell by the French police on 31st August and 1st September 2004. Devonshires stated that they were aware that persons had now been charged in connection with share dealings in Metco. Devonshires made a large number of points about the conduct of the arrest, the detention of and the interview of Mr Hurndell. They stated that his detention overnight was a deliberately malicious act and was a disgrace. They said that the interviews should have been tape recorded and the reason they were not tape recorded was because the Israeli agents present at the interviews had threatened Mr Hurndell. The way in which the interviews had proceeded had caused Mr Hurndell maximum fear, distress, discomfort and humiliation with a view to obtaining evidence from a terrified individual. The interviews were shambolic. The notes of the interviews contained a substantial number of errors. It was said that the Israeli agents had threatened Mr Hurndell that he would be extradited to Israel and “kept in a cell with three other men who have sexual diseases”. Devonshires demanded a formal apology on behalf of the Government of Israel and required a payment to Mr Hurndell as damages for unlawful detention, abusive and unlawful treatment and stress.

[127]On 9th January 2007, Mr Hurndell gave evidence in the Israeli criminal proceedings against Mr Davis and others. Mr Hurndell gave the evidence from France, by video link. He was called as a witness by the prosecution. He said that he had invested in shares in Metco from his own money. The £500 per month which he received was money taken from his own account. The account consisted of his own money but it was handled for him by representatives of a Mr Davis company, based at Oliver House. He was asked about the statements he made to the French police on 1st September 2004. He stated that much of what was contained in those statements was not true. He described the state he was in on 1st September 2004 and that he had given the police the answers they wanted to hear simply in order to be released from detention. The Israeli court admitted into evidence the three statements he had made to the French police. Mr Hurndell said that the statements were inaccurate in a number of respects. He said that he obtained a loan from Mr Davis to buy the shares in Metco and he mortgaged other shares which he had in order to buy the Metco shares. When asked how much money he was willing to invest in Metco shares, he stated that he relied on Mr Davis and he did not care the risk he ran as he was willing to invest as much as he could borrow in order to buy the shares. Mr Hurndell said that the questions asked by the advocate for the prosecution were beginning to sound like the interrogation he had had in France. He later stated that he borrowed the money to buy the shares in Metco against his shares in an English company. He stated that Mr Davis had helped him in the legal action he had brought against Mr Hozier; that was a reference to the present proceedings. Mr Hurndell was then cross-examined by the advocates acting for the defendants in the Israeli criminal proceedings. Mr Hurndell said that he had never helped with renovation work to Mr Davis’ villa in Tel Aviv, as stated in one of the statements of 1st September 2004. Mr Hurndell also gave evidence about the lawyer who had attended on him at the French police station. He said she was a young female intern who said there was nothing she could do. Mr Hurndell was asked questions by the judge in the Israeli criminal proceedings, Judge Kabub. Mr Hurndell told the judge that he had not paid interest on the loan and he had not received the dividends on the Metco shares, save that he received a payment of £100,000. He confirmed that he did not know whether his shares were 3% or 5% of the share capital of Metco and that was because he was not a businessman. He paid Mr Shatz’s fee out of the sale of the shares and that was something he completely trusted Mr Davis to do for him.

[128]As stated earlier, the trial in this action before David Richards J took place in July 2007. Mr Davis gave evidence at that trial. The criminal proceedings in Israel continued after July 2007. I have a transcript of the evidence given in the criminal proceedings. In particular, I have the evidence of Mr Davis. He gave evidence that he was assisting Mr Hurndell in this litigation.

[129]On 6th January 2009, Judge Kabub gave his judgment in the Israeli criminal proceedings. The judgment was handed down in Hebrew and I have been provided with an English translation. The judgment as translated extends to some 260 pages. In his judgment, the judge recorded the evidence given by three witnesses in relation to Mr Hurndell’s interrogation on 31st August and 1st September 2004. This evidence was given by Captain Ortega, the French police officer, and the two Israeli investigators, Nir Braun and Zion Levi.

[130]Although at one time it appeared that this issue might be contentious, in the end, there was little difference between the parties as to the use which it was permissible for me to make of the evidence given and the judgment given in the Israeli proceedings. It is accepted that the evidence given by Mr Hurndell is admissible in the present action. So too is the evidence given by Mr Davis. I have transcripts of all that evidence. I do not have a transcript of the evidence given by Captain Ortega, Mr Braun and Mr Levi but the judge’s recital of that evidence is a hearsay statement as to what the evidence was and as such it is admissible under the Civil Evidence Act 1995. Conversely, the judge’s finding on the matters in issue in the Israeli proceeding and the judge’s assessment of the witnesses is not admissible and not helpful to me in this case. Those findings record that judge’s opinion based on the evidence before him. My duty is to form my own independent opinion based on the evidence before me.

My assessment of the witnesses: general remarks

[131]The central issues in this case turn on the findings of fact which I should make and these in turn depend heavily upon my assessment of the credibility of the various witnesses on each side. The principal witnesses in support of the claim are Mr Hurndell and Mr Davis. Mr Davis’ evidence is in the form of a witness statement and the evidence he gave at the first trial (of which I have a transcript); this evidence has been admitted under the Civil Evidence Act 1995. There are root and branch challenges to the credibility of these two witnesses. There are also challenges of various kinds to the reliability of the evidence of other witnesses for the Claimant, in particular, the evidence of Ms Panter in relation to the events of 16th August 2001. The witnesses for the Hoziers are Mr White, Mr Hozier, David Hozier and Karen Hozier. There are root and branch challenges to the credibility of all of these witnesses.

[132]Although one of the principal matters I have to resolve concerns the circumstances in which the shares were to be transferred to Mr Hurndell, and later were transferred to Mr Hurndell, it transpires that Mr Hurndell is not the principal witness who can give relevant evidence on that subject. Apart from his evidence that he had a conversation with Mr White and later on the same day with Mr Davis, in December 1996, when he was told that the shares would be transferred to him and the reason for this was given to him, Mr Hurndell, certainly on his own case, was not much involved with the question of the shares at that time or, indeed, until very much later. This means that I need to consider the evidence of others as to what was intended to happen in relation to a transfer of shares to Mr Hurndell. The witnesses for Mr Hurndell in relation to that topic are Mr Davis and, to some extent, Mr Mills. The witnesses for the Hoziers on that point are Mr White and Mr Hozier.

[133]In order to assess the credibility of Mr Davis, I find that the evidence which I have heard as to the Metco transaction is of great assistance to me in reaching my overall assessment of him. Further, the evidence as to Metco transaction is of great assistance to me in reaching my assessment of the credibility of Mr Hurndell. Although the actual findings which I will make in relation to the Metco transaction are not otherwise of central relevance to the issues in this case, it is helpful to me to consider that transaction at an early point in order to help me assess the credibility of these two witnesses.

[134]There is a total conflict of evidence as to whether Mr Hurndell met David Hozier and Karen Hozier in St Tropez for dinner on 16th August 2001. That issue is of central relevance to the issues in this case. In addition, my findings on that topic will also, I think, be of great assistance to me in assessing the credibility of Mr Hurndell.

[135]In these circumstances, I will consider the evidence I have heard as to the Metco transaction and as to the alleged meeting in St Tropez on 16th August 2001 before I consider other questions as to the credibility of the various witnesses.

The Metco transaction

[136]There are two distinct versions as to what happened in relation to the Metco shares. The account given by Mr Davis, and by Mr Hurndell, was that Mr Davis saw an opportunity for a good investment by buying shares in Metco. He recommended this opportunity to his friend, Mr Hurndell. Mr Hurndell wished to take advantage of the opportunity. Mr Hurndell did not have immediately available the funds to invest. Mr Davis was prepared to lend the necessary funds to Mr Hurndell. In order to give Mr Davis security for the repayment of the loan by Mr Hurndell, Mr Davis required Mr Hurndell to grant a security of some kind over Mr Hurndell’s shares in Stanelco. All these things duly happened, Mr Davis made the loan, Mr Hurndell made the investment, the investment paid off and Mr Hurndell retained the profit.

[137]The alternative version of the Metco transaction is radically different. In reality, there was never an investment by Mr Hurndell, there was never a loan to Mr Hurndell and there was never the grant of security over Mr Hurndell’s shares in Stanelco. What Mr Davis wanted to do was to place a percentage of the shares in Metco in the name of Mr Hurndell, who would act as a nominee under the direction of Mr Davis. The money for the acquisition of the shares came from Mr Davis or one of his companies. In no sense was Mr Hurndell investing his own money and he was not borrowing money from Mr Davis in order to invest. Mr Hurndell at all times did act under the direction of Mr Davis. He did not have any understanding of the detailed business of Metco nor the wisdom of an investment in Metco. That did not matter as he was not risking anything of his own. Shares were transferred into Mr Hurndell’s name. Mr Hurndell opened a bank account. Mr Hurndell gave a power of attorney to the lawyer acting in concert with Mr Davis. Everything went according to plan. Mr Hurndell’s shares were voted as Mr Davis wanted and all seemed to be well, at any rate until the matter was investigated by the Israeli authorities.

[138]I have no hesitation in holding that the first version of the Metco transaction is entirely false and the second version is correct. The first version was improbable to a very high degree. Mr Hurndell did not have any money to invest in shares in Metco. This was not simply a matter of Mr Hurndell not having the necessary funds available at the appropriate time. Mr Hurndell was not a man of means. The sums involved in the Metco transaction were of the order of £500,000. Mr Hurndell had no understanding of the business of Metco and had no means of assessing the wisdom of an investment in Metco. He says that he relied upon the good advice of his friend, Mr Davis. However, in the absence of some collateral reason for Mr Davis to place shares in the name of Mr Hurndell, the question which needs to be answered is: why would Mr Davis have loaned a substantial sum to Mr Hurndell to allow him to make an investment for Mr Hurndell’s benefit, instead of Mr Davis simply investing for his own benefit? Of course, if the investment were considered to be completely risk free so that Mr Davis saw no risk of not being repaid his loan to Mr Hurndell and if Mr Davis had thought that he himself did not need to make one further profitable investment, he might have seen it as an opportunity to do a favour to Mr Hurndell. However, Mr Davis and Mr Hurndell were at pains to talk up the idea that Mr Davis needed to have, and did obtain, security for repayment of the loan in the form of some form of security over the shares in Stanelco. That is incompatible with the idea that the investment was entirely free of risk. Further, the suggestion of security appears to have been a complete fiction. There was no reliable evidence that any steps were taken to create the security which was allegedly necessary. Indeed, until 6th February 2001, the shares in Stanelco were not even registered in Mr Hurndell’s name. There is no sign whatever of Mr Davis or Mr Hurndell pressing for the shares to be registered in Mr Hurndell’s name to complete any security documentation in relation to those shares. Added to the above are the facts that Mr Hurndell acted totally under the direction of Mr Davis and Mr Davis’ company arranged for Mr Hurndell’s flight to Israel and paid all of Mr Hurndell’s expenses.

[139]My findings mean that Mr Davis gave untruthful evidence in the Israeli proceedings. He also gave untruthful evidence on the subject of Metco at the first trial. Further, my findings mean that Mr Hurndell gave untruthful evidence on the subject of Metco at the trial before me. Mr Hurndell’s untruthful evidence in this respect cannot have been anything other than deliberate. It follows that Mr Hurndell told deliberate lies in his evidence on the subject of the Metco transaction.

The St Tropez note

[140]I will next consider the evidence as to the alleged events of 16th August 2001. This topic is relevant not only as to the credibility of Mr Hurndell on other matters but it is also a matter of central importance to the claim.

[141]There are two versions of the events to choose from. The version put forward by the Defendants is that David Hozier made an arrangement with Mr Hurndell, shortly before 16th August 2001, to meet Mr Hurndell for dinner in Le Café, St Tropez at 8pm on 16th August 2001. The Defendants say that this arrangement was kept and that David Hozier, Karen Hozier and Mr Hurndell had dinner together as arranged. The Defendants also say that in the course of that dinner, Mr Hurndell was asked to sign, and did sign, the St Tropez note. The second version as to the alleged events of 16th August 2001 is as follows. Mr Hurndell says that he never made an arrangement to have dinner with David Hozier on 16th August 2001 or at any other time. Further, he says that he did not have dinner with David Hozier and Karen Hozier on 16th August 2001, or at any other time. He says he did not sign the St Tropez note.

[142]In order to make my findings in relation to those events, I need to consider the evidence of Mr Hurndell and also the evidence of David Hozier and Karen Hozier. Mr Hozier’s evidence is also relevant in that he says that he helped to set up the meeting in question. Further, I need to consider the evidence of Ms Panter as to the whereabouts of Mr Hurndell on the evening of 16th August 2001.

[143]I will begin with the evidence of Karen Hozier. Her evidence was essentially confined to the events of 16th August 2001. She described the events of that day and, in particular, the meeting with Mr Hurndell over dinner at Le Café in St Tropez. She was correctly and carefully cross-examined as to the many details of the evening of 16th August 2001. She was asked about who drank what, the precise sequence of events and the times involved. There are obvious difficulties, many years after 2001, in recalling details that were not important at the time. In my judgment, nothing emerged from the cross-examination to throw any real doubt on Karen Hozier’s evidence. Further, there was nothing in the way in which Karen Hozier gave her evidence to throw doubt upon it. Mr Malek was critical of the fact that she did not know, or appeared not to know, certain things which in other circumstances someone in her position might have known. I do not see anything in those matters which throws doubt upon her evidence. It was suggested that she had come to court to support the knowingly untruthful account put forward by her husband and her father in law. I am alive to that possibility. I will refer, later in this judgment, to the caution I have before believing Mr Hozier’s evidence. I am also cautious about the evidence of David Hozier, but not to anything like the extent of my caution about Mr Hozier. Taking Karen Hozier’s evidence on its own, it appears to be reliable evidence as to the events of the evening of 16th August 2001. There is no possibility of Karen Hozier having made a genuine mistake about the evidence she gave. She was either telling the truth or deliberately lying. In due course, I will have to weigh her evidence against any evidence that conflicts with it and reach my conclusion.

[144]I next consider the evidence of David Hozier as to the events of 16th August 2001. I am more cautious about accepting the evidence of David Hozier on that subject than I was about the evidence of Karen Hozier. For the reasons which I will give later, I am very cautious about accepting the evidence of his father, Mr Hozier. To some extent, my caution about accepting Mr Hozier’s evidence must affect the attitude I take to David Hozier. He has sought to side himself with everything his father has said and, in particular, the alleged promise in 1993 by Mr Davis to give 5% of the shares in Stanelco to Mr Hozier. Another reason for caution is that David Hozier gave two different accounts of the meeting on 16th August 2001. In his witness statement prepared for the first trial, he described the meeting as having taken place over lunch and he professed to remember a lot of corroborative detail showing that the meeting was at lunchtime. He now accepts that his original recollection was wrong. He offers explanations as to why he thought the meeting was at lunchtime. The original intention was to have a meeting at lunchtime. In my judgment, it is possible for an honest witness to misremember a point such as this. It is therefore open to me to reject Mr David Hozier’s first version of the meeting being at lunch time and still to accept his second version that the meeting was over dinner. Nonetheless, this change in his evidence would cause me to be cautious about his evidence if it stood alone.

[145]Mr Hozier gave evidence that he had telephoned Mr Hurndell in order to help his son set up the meeting with Mr Hurndell. Mr Hurndell does not accept that. As I will later explain, I am very cautious about accepting the evidence of Mr Hozier and I am inclined to give it little independent weight on this subject. I acknowledge that if I later find that the meeting of 16th August 2001 did take place as described by Karen Hozier, then I would be inclined to accept Mr Hozier’s account of his conversation with Mr Hurndell in order to set up the meeting.

[146]Mr Hurndell told me that he did not have any meeting, over dinner or otherwise, with David and Karen Hozier. He says that the Hoziers’ suggestion to the contrary is a complete fabrication. He suggests an explanation for the existence of a piece of note paper which bears his signature and which the Hoziers allege was signed on 16th August 2001. Mr Hurndell suggests that this was a blank piece of note paper which he had signed with the intention that it be used by one of Mr Davis’s companies. He suggests that Mr Hozier must have stolen this blank piece of paper and David Hozier filled in the text and the Hoziers are now passing it off as a document signed in St Tropez on 16th August 2001.

[147]As regards Mr Hurndell’s direct evidence, denying that he was at the alleged meeting on 16th August 2001, I am obviously very cautious about accepting his denial because I have already held that Mr Hurndell told me deliberate lies about the Metco transaction. However, I have to consider the possibility that he might still be telling the truth about the 16th August 2001. I also have to consider the alibi evidence from Ms Panter and the evidence as to the blank note paper signed by Mr Hurndell.

[148]Mr Hurndell called Ms Lisa Panter to describe Mr Hurndell’s movements on the evening of 16th August 2001. In summary, the purpose in calling Ms Panter was to prove that Mr Hurndell could not have been present at dinner with the Hoziers on 16th August 2001 in view of his movements elsewhere.

[149]I received evidence about Mr Hurndell’s movements in the week beginning 13th August 2001. Further, I heard detailed evidence about his movements on 15th August 2001. It is not necessary to recite that evidence as there is no issue about it. As regards 16th August 2001, I heard detailed evidence about Mr Hurndell’s movements up to 6pm on that day. Again, it is not necessary to recite that evidence as there is no real dispute which I must resolve. I pause to comment that this evidence about Mr Hurndell’s movements on 16th August 2001 was not given at the first trial even though the allegation which Mr Hurndell faced at the first trial was that there had been a lunch meeting on 16th August 2001 and this evidence would tend to show Mr Hurndell had an alibi for an alleged lunch meeting. What really matters in this case is where Mr Hurndell was between, say, 6pm and, say, midnight on 16th August 2001.

[150]Mr Hurndell and Ms Panter both gave evidence about the period 6pm to midnight on 16th August 2001. As it happens, there were important differences between their two accounts. However, as I do not regard Mr Hurndell as a reliable witness, his inconsistent account does not itself throw doubt on Ms Panter’s account. If anything, it might strengthen Ms Panter’s account as it shows that she did not merely sign up to an account supplied to her by Mr Hurndell.

[151]Although Ms Panter gave her evidence in chief in response to specific questions from counsel and did not confirm the truth of her witness statement of 27th April 2008, I do have that witness statement and it was put to her in cross-examination. In her witness statement, and indeed in her evidence, she explained the difficulties there were on 15th and 16th August 2001 as a result of Anne Mackenzie’s husband, Ian, being taken seriously ill on 15th August 2001. Ms Panter says that in the evening of 16th August 2001, she stayed with Anne Mackenzie at the latter’s caravan for the evening. In her witness statement, Ms Panter said:

“William was certainly there for the vast majority of the evening, but I can’t remember whether William was with us for the entire evening. That being said, I am certain that he never went off for more than ¾ hour – if he left the campsite at all, it would have been to go and get some supper at his home or my mobile home or something else very quick – he would not have gone away for any extended period of time, and certainly not for a dinner with friends because I knew that he did not leave me alone to look after Anne for any extended period of time. William was definitely with Anne when I left.”

[152]I note that Ms Panter thought when she prepared her witness statement that Mr Hurndell might have gone to get supper at his home. I was given evidence that it would have taken significantly more than ¾ hour for Mr Hurndell to get from the campsite to his home, have supper and return to the campsite.

[153]In her evidence at the trial, Ms Panter referred to her getting back to the campsite at 6pm. Her oral evidence was that Mr Hurndell could not have left the campsite although she thought that he did leave Mrs Mackenzie’s caravan to get something to eat on the campsite. The other thing which emerged in Ms Panter’s evidence was that whereas Mrs Mackenzie and Ms Panter were in the former’s caravan for the whole evening, Mr Hurndell was not in the caravan. Ms Panter remembers him lying on a chaise longue outside the caravan for the whole evening, except when he was away getting something to eat.

[154]Ms Panter was asked for the first time to remember these details about the evening of 16th August 2001, when she prepared her witness statement of 27th April 2008. I am prepared to accept that Ms Panter was doing her best to remember what really happened although it is possible that she might have been encouraged by Mr Hurndell to say something helpful to him. I have to take into account the possibility that although Ms Panter is generally correct about what happened on 15th and 16th August 2001, she has not properly remembered the time scale involved in the events of the evening of 16th August 2001. Ultimately, I will have to weigh her evidence on these matters against any conflicting evidence from other sources and the overall probabilities. However, I can say at this point that the possibility that Ms Panter has misremembered the detailed time scale of the events of the evening of 16th August 2001 means that her evidence by itself is not a very strong basis for the suggestion that Karen Hozier and David Hozier are telling me deliberate lies about that evening. Even before I consider all the surrounding circumstances which support the evidence given by Karen Hozier and David Hozier, my assessment is that it is quite possible that Ms Panter is not right on these matters of detail. I accept that Ms Panter was right when she told me that she stayed with Mrs Mackenzie all of the evening of 16th August 2001. On that basis, Mr Hurndell would have been able to leave Mrs Mackenzie to honour any prior arrangement he might have made with David Hozier to have dinner in Le Café beginning at 8pm.

[155]I now turn to consider other matters which help me to resolve the conflicts in the oral evidence as to the events of 16th August 2001.

[156]As regards these other matters, there is powerful support for the Hoziers’ version of the facts in Mr Hurndell’s diary for that date. The diary apparently refers to an arrangement for Mr Hurndell to meet David Hozier in St Tropez at 8 pm on 16th August 2001. In a witness statement signed by Mr Hurndell on 27th March 2001, that is before the first trial, Mr Hurndell accepted that his diary indicated that he had agreed to meet David Hozier at 8pm on 16th August 2001. At the trial before me, it was suggested that there was another explanation for this diary entry. The other suggested explanation was that David Hozier contacted Mr Hurndell asking Mr Hurndell to help him by making a booking for David Hozier at Le Café on 16th August 2001 for a dinner which Mr Hurndell was not invited to attend. That is an inherently unlikely explanation of the note. David Hozier and Mr Hurndell were not particularly well known to each other. It was suggested that it was very difficult to book a table at Le Café in St Tropez in August 2001 and therefore Mr Hozier needed the help of a person like Mr Hurndell who would have considerable influence with a restaurant in St Tropez. However, this was not Mr Hurndell’s explanation in his earlier witness statement. Further, I did not receive any worthwhile evidence as to the ease or difficulty of booking a restaurant in St Tropez in August 2001, although Mr Hurndell made a passing reference to that subject. I am prepared to accept that St Tropez in August 2001 was very busy and restaurants would be booked up. However, there is no sufficient material before me to support a finding that it was not possible to book a table at Le Café in that week of August 2001 by reserving a few days in advance. Further, there is no evidence which would enable me to find that David and Karen Hozier were eager to travel from where they were staying in the south of France to St Tropez merely for the purpose of having dinner in Le Café. In fact, David and Karen Hozier would have fully appreciated that it would be a very inconvenient thing for them to do to travel from where they were staying in the south of France to St Tropez merely for the purpose of having dinner there. Accordingly, the diary entry is powerful evidence that Mr Hurndell did agree with David Hozier to meet him for dinner at 8pm on 16th August 2001 at Le Café. Mr Hurndell did not give evidence that he had made the arrangement and then cancelled it. His evidence was that he had never made such an arrangement.

[157]The diary entry has a further significance. The Hoziers pleaded their case as to Mr Hurndell’s signature on the note, before they were aware that he had a diary with an entry identifying a dinner appointment with David Hozier on 16th August 2001. It would have been an extraordinary coincidence for the Hoziers to have made up a story about a meeting over a meal with Mr Hurndell on 16th August 2001, which story had no basis in fact, only to find that the story was unexpectedly supported by Mr Hurndell’s diary entry. My reaction to this point might have been different if Mr Hurndell’s case had been that he had made an arrangement to meet David Hozier on the 16th August 2001 but he then cancelled the arrangement. As I have explained, that is not Mr Hurndell’s evidence. He says that he never made an arrangement to meet David Hozier at any time in August 2001.

[158]I also take into account that, if the Hoziers were to make up a story about a meeting with Mr Hurndell in St Tropez in August 2001, they would run the very considerable risk that Mr Hurndell would have evidence that he was somewhere else at the suggested time. Although Mr Hurndell has indeed suggested that he was somewhere else on the evening of 16th August 2001, he has not come up with particularly convincing evidence to that effect. Further, if the Hoziers were to make up a story about the dinner on 16th August 2001, they went about it in a somewhat risky way. The story required evidence to be given not only by Mr Hozier himself but also by David Hozier and by Karen Hozier.

[159]The Hoziers’ version of the facts is also strongly supported by a bill and a credit card payment, produced by Le Café. This bill related to three persons having dinner on the evening of 16th August 2001. That bill was paid on 16th August 2001 by David Hozier’s credit card. The bill was said to be presented at 21:33 and to have been paid at 22:40. It seems a little surprising to have had such a gap between the presentation of the bill and its payment. The explanation may lie in the fact that one, or other, of these stated times is an hour out. In any event, these documents appear to show that David Hozier, Karen Hozier and one other person had dinner at Le Café in St Tropez beginning at around 8pm. I find that David Hozier and Karen Hozier did indeed have dinner with another person in that way. They say that the third person was Mr Hurndell. No other candidate as the third person was ever identified. It is accepted that one can rule out Mr Hozier and his wife. David Hozier and Karen Hozier did not have friends with them in the south of France in August 2001 and they did not know anyone in St Tropez, apart from Mr Hurndell, with whom they might have had dinner that evening. Another reason for suggesting that Mr Hurndell was the third person was that the bill shows that when the waiter brought three free drinks to the table at the beginning of the meal, he brought two glasses of champagne (or possibly sparkling white wine) and a glass of Perrier mineral water. Mr Hurndell did not drink alcohol in August 2001. Further, Mr Hurndell was well known in Le Café. Accordingly, the fact that one of the three diners took a mineral water as the free drink supports a finding that Mr Hurndell was the third diner. Karen Hozier was cross-examined in detail about the alcoholic drinks consumed at Le Café. There was earlier evidence that David Hozier did not drink as he was driving on that occasion. It was suggested that David Hozier drank the mineral water which meant that the third diner drank a glass of champagne and that showed the third diner could not have been Mr Hurndell. Similarly, it was suggested that the fact that the Hoziers had ordered a full bottle of Rosé at a time when David Hozier was not drinking showed that the third diner must have been someone who drank wine and that could not have been Mr Hurndell. While these were proper points to put in cross-examination, Karen Hozier and indeed David Hozier gave reasonable answers to them and, in the end, these points did not in my judgment carry very much weight in the overall assessment of the evidence which I had to make.

[160]It was also put to me that the evidence given by the Hoziers that Mr Hurndell did not mention what he had gone through with Mr and Mrs Mackenzie on 15th/16th August 2001 when he met the Hoziers for dinner that evening is most improbable. My conclusion is that it is entirely possible that Mr Hurndell met the Hoziers for dinner and did not tell them about Mr and Mrs Mackenzie who were people the Hoziers had never heard of.

[161]David Hozier and Karen Hozier say that, at the dinner, Mr Hurndell signed the St Tropez note. Mr Hurndell does not put forward any contention to the effect that he was at the dinner but did not sign the note at the dinner or that he signed it under some kind of duress or misrepresentation. However before reaching a conclusion as to the genuineness of the St Tropez note, I need to address Mr Hurndell’s suggestion that the note was written by David Hozier at a different time, probably in 2005, on a blank piece of note paper that had been signed by Mr Hurndell for use by Mr Davis in other circumstances. This suggestion gave rise to two further issues. The first related to whether David Hozier’s and Karen Hozier’s account, of where they obtained the paper they used for the note, was true. The second related to the alleged practice of Mr Hurndell of signing blank sheets of note paper.

[162]There are two versions of the facts put forward. David Hozier and Karen Hozier said that the paper on which the note was written was a piece of note paper which was in the flat which Mr Hozier owned in the south of France. They say that David Hozier wrote the text of the note on 13th August 2001 in preparation for the meeting with Mr Hurndell on 16th August 2001. The other version of the facts is that the paper on which the note was written was a piece of notepaper belonging to one of Mr Davis’ companies which was kept at Oliver House Barnet. Mr Hurndell said that he was in the practice of placing his signature on blank pieces of paper which were kept at Oliver House. The purpose for this was said to be so that others at Oliver House could use the pieces of paper signed by Mr Hurndell to write the text of letters above his signature so that the completed document would be sent out as a letter signed by Mr Hurndell. It is said that Mr Hozier must have taken a blank sheet of paper signed by Mr Hurndell and then many years later David Hozier wrote the text of the St Tropez note above Mr Hurndell’s signature.

[163]In relation to these two versions of the facts, I was given evidence of various kinds. I received written expert evidence on behalf of Mr Hurndell and separate written expert evidence on behalf of the Defendants. The experts agreed that the notepaper on which the St Tropez note was written was a piece of paper that had been manufactured in the early 1990s. It was from a very well known manufacturer who manufactured a large number of sheets of that paper at that time. I was also given evidence that the notepaper in question was the type of notepaper used at Oliver House.

[164]There was also a dispute as to whether the previous owner of the flat which Mr Hozier had bought in the south of France had left notepaper of that type, or indeed any notepaper, at the time of the sale to Mr Hozier. The former owner of the flat was a Mrs Bullimore-Pyne, or her husband. She gave evidence that when the flat was sold to Mr Hozier there was no notepaper of any kind in the flat. It was accepted that the circumstances in which the flat was sold to Mr Hozier produced the result that the flat was sold with all of its contents and no attempt had been made by the previous owner to clear anything from the flat prior to the sale. Although I accept that Mrs Bullimore-Pyne was doing her best to remember whether the contents of a fully stocked and furnished flat did or did not contain notepaper, I take the view that it is unlikely many years later that Mrs Bullimore-Pyne would be able to remember a detail of that kind which would have been quite unimportant in any other context.

[165]I also heard evidence as to the practice at Oliver House of certain persons signing blank pieces of paper. There was evidence that Mr Davis and Mr White did so. Mr Radia, a financial controller employed by one of Mr Davis’ companies, found and was able to produce a blank piece of paper bearing the signatures of Mr Davis and Mr White. Of course, it might be said that Mr Davis and Mr White were relevant signatories on formal documents and there was much less need for Mr Hurndell to place his signature on blank paper. Mr Radia also said that he remembered that Mr Hurndell did sign blank sheets of paper in connection with the arrangements made in 1992 for Mr Davis’ money or his companies’ money to be paid through Mr Hurndell’s bank accounts. Mr Radia’s evidence on that point could be right. It is possible that this evidence might link Mr Hurndell’s signature on a blank piece of note paper to the St Tropez note. The banking transactions were happening in 1992, which date fits in with the expert evidence about the date of manufacture of the piece of notepaper used for the St Tropez note.

[166]In addition to Mr Radia’s evidence, I was given further evidence about an alleged practice, in particular in relation to the Ile du Levant project, whereby Mr Hurndell signed blank pieces of paper on which someone at Oliver House would write the text of a letter which would then be dispatched as a letter signed by Mr Hurndell. The evidence was that this procedure was followed when Mr Hurndell wished to have a letter sent to a possible vendor of land on the Ile du Levant. It might also have been used in the case of a letter to be sent to a French retailer who owed money to John White Footwear Ltd. I have some difficulty in accepting that evidence. The letters in question would have to be in French. The evidence was that no one at Oliver House would have been able to write a letter in French.

[167]Having considered all of the evidence about Mr Hurndell signing blank pieces of paper, my assessment is that it is just possible that a blank piece of note paper, signed by Mr Hurndell, was available at Oliver House even as late as 2002, when Mr Hozier resigned from Mr Davis’ companies. Mr Hozier said that he did not take such a piece of paper when he took documents from Oliver House on Sunday 17th March 2002. Whilst I note Mr Hozier’s evidence, I do not regard him as a truthful or reliable witness in every respect so it is conceivable that he did take such a piece of paper on that occasion.

[168]This possibility means that David Hozier could have been provided with such a piece of paper by Mr Hozier and David Hozier could have written the text of the St Tropez note above Mr Hurndell’s signature. Admitting that possibility, the question for me is whether it is more probable that Mr Hurndell signed the St Tropez note at dinner on 16th August 2001 or whether that dinner did not take place and the St Tropez note was a forgery later created by the Hoziers.

[169]I also take into account this further matter. If the note had been fabricated by the Hoziers in 2005, they would have known by that date the precise details of what had happened in connection with the transfer of the shares in 2002. With that knowledge of what had happened, I think it is unlikely that the note would have been expressed in the way in which it was expressed. It is more likely than not that the note was created before the shares were later transferred in February 2002.

[170]The final matter in relation to the St Tropez note arises from the fact that the note was only produced by the Hoziers on 25th July 2005. In particular, it was referred to in a letter of that date from their solicitors to the solicitors for Mr Hurndell. The Hoziers’ solicitors said that they were in the course of preparing a defence to Mr Hurndell’s claim which had been issued on 17th June 2005 and that “a document has come to light”. This language suggests that it was only in July 2005 that the Hoziers showed the St Tropez note to their solicitors. This raises the question why the Hoziers had not shown it to their solicitors and/or why their solicitors had not referred to the document at an earlier point in time. In my view, it is necessary to place the letter of 25th July 2005 in the context of what was then happening. In early 2005, the secretary of Stanelco was concerned about the sales of shares by Khaki and Finale. Mr White told Mr Balchin of Stanelco that Khaki and Finale were under the control of Mr Hozier. Mr Hozier denied it. Indeed, on 12th April 2005, the solicitors then acting for Mr Hozier referred to “allegations/insinuations” about Khaki and Finale. On 18th April 2005, Mr White signed the report prepared by Eversheds in support of his contention that Khaki and Finale were controlled by Mr Hozier. Mr Hozier’s response on 28th April 2005 pretended that he was not connected with Khaki and Finale. Mr Hozier’s statement was in part deliberately untrue. On 17th May 2005, Mr Hurndell’s solicitors wrote to Mr Hozier asserting that Mr Hozier had completed the stock transfer forms to Khaki and Finale. On 24th May 2005, Mr Hozier replied stating that he did not complete the stock transfer forms. This statement was untrue except in the most technical (and I think unacceptable) interpretation of the facts. Thus, in the period up to July 2005, Mr Hozier was telling lies about his involvement with Khaki and Finale. It did not suit the untruthful case he was putting forward to reveal the St Tropez note. Later, when Mr Hurndell sued him and Khaki and Finale had been conveniently dissolved, Mr Hozier produced the St Tropez note. Although none of this reflects any credit on Mr Hozier and causes me to be cautious about accepting parts of his evidence, I find that this is the explanation for the late disclosure of the St Tropez note. The late disclosure of the note does not persuade me that the St Tropez note was a forgery created shortly before July 2005.

[171]I have now considered all of the evidence about the events of the evening of 16th August 2001 and the source of the note paper on which the St Tropez note was written. I regard it as very much more probable than not that David Hozier and Karen Hozier did meet Mr Hurndell for dinner at Le Café in St Tropez on 16th August 2001 and that Mr Hurndell signed the St Tropez note on that occasion. I find that the combination of the factors which I have listed is such that the evidence in favour of this finding is very strong indeed. I also accept that the note paper was used was in the flat in the South of France where David Hozier and Karen Hozier were staying.

[172]I reject Mr Hurndell’s evidence about the evening of 16th August 2001. I find that his evidence was untrue. This cannot be the result of poor recollection on his part. I find that his evidence on this subject was deliberately untrue. Mr Hurndell simply told lies on this subject. He persisted in his lies when he appealed to the Court of Appeal. He continued to lie on this subject throughout his evidence before me.

My assessment of the individual witnesses

[173]I have spent a little time considering the evidence as to the Metco transaction and I have gone into the question of the St Tropez note in detail. It seemed to me that my conclusions on those matters would help me assess the credibility of Mr Davis and Mr Hurndell. In the result, I am able to reach clear conclusions as to their credibility. I will now comment on each of the witnesses in turn.

[174]At the first trial, all of the witnesses who were called to give evidence gave evidence in chief orally by way of answer to specific questions put by counsel rather than simply confirming the truth of witness statements they had previously signed. The same procedure was adopted at the trial before me.

Mr Davis

[175]Mr Davis did not give evidence before me. I admitted under the Civil Evidence Act 1995 two witness statements he had previously made and the transcript of the evidence he gave before David Richards J on 10th and 11th July 2007. His witness statements are dated 3rd April 2007 and 30th April 2008 (the latter was after the first trial and prior to the hearing in the Court of Appeal). Although I was not able to assess Mr Davis in the course of his giving oral evidence, I have come to the clear conclusion that he was not an honest witness genuinely trying to assist the court when he gave evidence at the first trial. I have referred above to my findings in relation to the Metco transaction. I have found that Mr Davis did not give truthful evidence at his trial in Israel nor at the first trial of this present claim. Where Mr Davis’ evidence conflicts with that of Mr White, I prefer the evidence of Mr White.

[176]In reaching my conclusion as to Mr Davis, I have considered why he would have been prepared to tell lies to assist Mr Hurndell in putting forward this claim. I think that the explanation lies in the prosecution of Mr Davis in Israel. It is significant that the claim now made by Mr Hurndell was not made when Mr Davis and Mr Hurndell first knew (not later than April 2002) about the share transfers but was only made shortly before Mr Davis was indicted in Israel. It seems to me to be likely that before a formal indictment was served on Mr Davis, he was aware of what was about to happen. Further, what appears to be a letter written on Mr Hurndell’s behalf to the Attorney General of Israel was plainly written to help Mr Davis in connection with the Israeli prosecution. Further, Mr Davis has said that he was assisting Mr Hurndell with this claim. Mr Davis obviously saw a connection between the allegations about the Metco shares and the allegations about the Stanelco shares. He obviously thought that if he established that Mr Hurndell was the beneficial owner of the Stanelco shares, that would help Mr Davis establish that Mr Hurndell was not a nominee in respect of the Metco shares.

[177]In particular, I reject the following evidence which was given by Mr Davis. I reject his evidence that he agreed with Mr White that he and Mr White would transfer 5% of the shares held by their respective family trusts to Mr Hurndell beneficially in order to discharge a moral obligation to Mr Hurndell for his work on the Ile du Levant and in order to comply with the listing rules in December 1996. I reject his evidence that Mr White agreed to transfer 5% of the shares in Stanelco to Mr Hurndell beneficially. I reject his evidence that he telephoned Mr White on 18th December 1996 and woke him up. I reject his evidence that he would not intentionally breach the listing rules. I reject his evidence that Mr Hurndell was the owner of shares in Metco or that Mr Hurndell used his Stanelco shares as a short term security for repayment of a loan to Mr Davis.

[178]There are some parts of Mr Davis’ evidence to which I should draw attention. In the course of his examination in chief, Mr Davis was asked how and when Mr Hurndell was told that he was to receive some 33 million shares. Mr Davis said that he did not remember how the news was given to Mr Hurndell, as he had been speaking to Mr Hurndell on many occasions.

[179]In his evidence at the first trial, Mr Davis described the intended arrangements in relation to the Ile du Levant and how Mr Hurndell might have benefited from the development. He said that any benefit to Mr Hurndell was dependant upon the eventual outcome so that Mr Hurndell might receive a certain percentage of the eventual profits. Mr Davis was not referring to any agreement that had been made with Mr Hurndell entitling Mr Hurndell to a payment in accordance with an agreed formula. Rather, Mr Davis was referring to the kind of thing that he (and presumably Mr White) would be prepared to consider doing in the event of a profitable outcome of the development. Mr Davis did not suggest that, at the time of the Ile du Levant project, that there had been any agreement that Mr Hurndell would be given shares in any company.

[180]Mr Davis also described his assessment of the opportunity available to Stanelco to obtain a full market listing in 1996. He said that because Stanelco was such a small company, it was clear that there would have been no opportunity for it to have ever entered the main market by any conventional process. Therefore, the opportunity for it as a company whose shares were traded on the USM to obtain a full listing was “an amazing opportunity” and “a remarkable opportunity”. I accept that evidence.

Mr Hurndell

[181]I next consider the credibility of Mr Hurndell as a witness. Some parts of his evidence, which were not contentious to any marked extent, are probably acceptable. I refer to the basic facts as to his involvement in connection with the Ile du Levant. There is no real argument as to the sequence of events and the fact that Mr Hurndell was involved to some extent with those events. It may be that he has overstated his own importance in relation to that matter. In the end, I conclude, for the reasons that I will give, that the events surrounding the Ile du Levant are not of much importance to the result of this case. I will hold that Mr Hurndell’s services in relation to the Ile du Levant and the help he gave in relation to John White Footwear Ltd were not any part of the motivation of Mr Davis and Mr White in December 1996 and January 1997. In other words, Mr Davis and Mr White did not have an intention to give Mr Hurndell 5% of the shares in Stanelco as a reward for services previously rendered in these respects.

[182]Leaving the evidence as to the Ile du Levant on one side, I have come to the conclusion that I am not able to accept any evidence from Mr Hurndell on any contentious matter, unless it is corroborated by a truthful witness or by a contemporaneous document, which document is not itself the subject of an issue as to its reliability. I have a number of reasons for this conclusion.

[183]I have already referred to the Metco transaction. I have made my findings to the effect that Mr Hurndell was a nominee for Mr Davis in relation to the acquisition of shares in Metco. Mr Hurndell gave evidence to the contrary effect. I have also considered in detail the St Tropez note where I have rejected Mr Hurndell’s evidence on that subject. In my judgment, Mr Hurndell deliberately lied to me on both of these matters.

[184]In case it matters, I will comment on Mr Hurndell’s demeanour when giving evidence before me. Mr Hurndell is 77 years old. He has had periods of bad health in recent times. He underwent surgery in around 2007. Based on the above, I would not have been surprised if Mr Hurndell had presented as a somewhat frail figure whose recollection of events in 1989 or 1990 or in 1996 was rather limited. In fact, Mr Hurndell appeared fairly robust and not frail. He gave evidence for several days, although his evidence was interrupted more than once by witnesses being interposed. Giving evidence in the High Court for that length of time, subjected to a testing cross-examination, would have been a considerable strain for a much younger man. I am sure that Mr Hurndell did find the process of giving evidence in this case very tiring. However, he came across as reasonably fit and strong throughout. His voice remained strong throughout his evidence. On the subject of his ability to recollect past events, Mr Hurndell told me that he remembered things better at the present time than he had remembered them at the time of the first trial in 2007. He suggested that his state of health in 2007 had interfered with his recollection then. I was, and remain, wholly sceptical about the suggestion that Mr Hurndell’s memory has improved. Mr Hurndell was unable to answer a lot of questions about matters of detail. However, this did not appear to be because he had now forgotten the detail, having once been aware of it. His general approach was to say that he did not concern himself with the details at any time and therefore he did not know them at the present time. Mr Hurndell stuck to his account of the facts throughout his cross-examination. His essential themes were that he had performed extensive services for Mr Davis and Mr White on the Ile du Levant, that there was a moral obligation on them in that respect, that he had an expectation of something in return, that both Mr Davis and Mr White told him in December 1996 that they were giving him shares in Stanelco, that he owned the shares beneficially and that he had never agreed to transfer the shares to Mr Hozier or as Mr Hozier directed. Mr Hurndell gave the impression of a man sticking to his script throughout his evidence. I do not rely exclusively on that observation when coming to my conclusions as to the reliability of his evidence. I have found his evidence to be wholly unreliable for many other reasons but his demeanour, being as I have described, supports my overall conclusion that Mr Hurndell stuck to a fabricated story throughout his evidence before me.

[185]I also wish to comment upon the interviews of Mr Hurndell by the French police. I have set out in some detail the answers which Mr Hurndell gave when interviewed. Based on the evidence at the trial before me and on my assessment of the witnesses including Mr Hurndell, in my view, the answers which Mr Hurndell gave to the police during the third interview were generally accurate. In particular, based on the evidence before me, I think that Mr Hurndell told the French police the truth when he said that he was not using his money to buy the shares in Metco and that he belonged to Oliver House. Accordingly, my conclusion is that Mr Hurndell was being truthful in the third interview with the French police whereas he was deliberately telling lies in his evidence to the court. I do not reach that conclusion by admitting into evidence and relying upon the interviews with the French police. Rather, I form that conclusion on the evidence before me which, as it turns out, entirely accords with what Mr Hurndell said to the French police.

[186]I will briefly comment on one or two other points that were raised in relation to the interviews with the French police. Mr Hurndell gave an account of threats and pressure and other wrongdoing by the French police and the Israeli agents which caused him to give answers out of fear or under duress. Mr Hurndell’s evidence on this subject sounded grossly exaggerated when he gave it to me. I have no doubt that Mr Hurndell felt under some degree of pressure. The fact was that he was being asked very probing questions based upon documents that had been obtained on a search of his flat and questions where he could no longer maintain the pretence, that Mr Davis had wanted him to maintain, in relation to the Metco shares. The result was that Mr Hurndell told the truth. I do not think that any of the circumstances in which he gave his answers throw doubt on the reliability of those answers. I have also read the summary by Judge Kabub in the Israeli criminal proceedings of the evidence given by Captain Ortega, the French police officer, and the two Israeli agents. Of course, I have not had the benefit of hearing the evidence of those three witnesses myself. It might be said that when they gave evidence that nothing untoward of any kind had occurred, “they would say that wouldn’t they”. Nonetheless, those three witnesses gave detailed evidence about the circumstances of the interview which, to my mind, ring true and show Mr Hurndell’s evidence not only to be grossly exaggerated but to be in fact untrue.

[187]Mr Malek cited the recent decision of the Supreme Court in Cadder v Her Majesty’s Advocate [2010] UKSC43 which concerns Article 6(1) and 6(3)(c) of the European Convention on Human Rights in the context of a defendant detained for questioning in the absence of his lawyer and later charged with a criminal offence based upon admissions made during such an interview. I do not think that Mr Malek went so far as to say that this decision applied directly to the present proceedings which are not criminal proceedings involving a charge against Mr Hurndell. However, Mr Malek said that I should carefully consider the weight to be given to Mr Hurndell’s answers to the French police and I ought, in the end, to give those answers no weight. As I have explained, I have not reached my conclusion on any topic based on Mr Hurndell’s answers to the French police. I have reached my conclusions on those matters and then, upon examining the answers given to the French police, I have found that Mr Hurndell was telling the French police the truth. Even without the interview material being adduced into evidence, I would have reached the same conclusions on all questions. If I admit the French interviews into evidence, I find they corroborate conclusions I have already reached. In my judgment, if it were necessary to do so, it would be appropriate to give considerable weight to what Mr Hurndell said to the French police. I find there is nothing in the circumstances of the interview which would diminish the weight to be given to the answers Mr Hurndell then gave.

Mr Mills

[188]Mr Mills gave evidence that he believed, in and after December 1996, that the directors of Stanelco had behaved properly by complying with the listing rule that 25% of the shares in Stanelco were in public hands and that the way in which this had been achieved was by way of a transfer of some 5% of the shares in Stanelco to Mr Hurndell beneficially. I am prepared to accept that that is what Mr Mills believed. If he had been told that the shares were held by Mr Hurndell beneficially, then that is some evidence that there was an intention on someone’s part at Stanelco to transfer the shares to Mr Hurndell beneficially. However, it is equally consistent with the fact that the relevant persons at Stanelco wanted to make it appear that Mr Davis and Mr White had reduced their 80% stake in Stanelco to 75%, so that 25% of the shares were in public hands. After all, the documents were drafted to convey that impression. If the relevant persons at Stanelco had wished merely to “park” the shares with Mr Hurndell to make it appear, contrary to the real facts, that the listing requirements had been met, then those persons were hardly likely to tell Mr Mills what they had done.

[189]Mr Mills also gave evidence about the integrity of Mr Davis. I have had to form my own assessment of Mr Davis’ integrity and I disagree with Mr Mills’ assessment on that matter.

Mr White

[190]I next consider the position of Howard White. If Mr White’s evidence were reliable, it would be of particular assistance in resolving the primary issue as to the basis on which Mr Hurndell held shares in Stanelco. After all, the shares which were transferred to Mr Hurndell came from the shares held on behalf of the H White (1991) Trust. Mr Hurndell’s case is that Mr White intended Mr Hurndell to be the beneficial owner of those shares in and after December 1996. Mr Hurndell also contends that when arrangements were made to vest the shares in Mr Hurndell in the period from December 2000 to February 2001, Mr White again intended, or continued to intend, that the beneficial interest would be vested in Mr Hurndell.

[191]In the case of Mr White, I need to consider whether his evidence was a genuine attempt to describe matters as they really happened or whether he was intending to mislead the court. If I were to decide that his evidence was a genuine attempt to describe matters as he truly remembered them, then an issue may arise as to whether his recollection is safe and reliable or whether he has got things wrong or whether he had misstated matters. In favour of accepting Mr White as a truthful witness is the fact that he very plainly did not want to come to court to give his evidence. It is true that he attended the first trial without having a witness summons served upon him. However, he had indicated before the second trial that he was not prepared voluntarily to give evidence and a witness summons was served upon him and he attended the trial accordingly. Further, it was plain from his evidence that he was not in any sense a partisan supporter of Mr Hozier. Mr White made a large number of critical remarks about Mr Hozier. I will give examples of some of those remarks. He said that Mr Hozier had “just lied” in his response of 28th April 2005 to Mr White’s memorandum of 18th April 2005. He said he did not regard Mr Hozier as an honest, straightforward and truthful person. He said that Mr Hozier had reneged on a promise to exercise his share options and that Mr Hozier’s self interest and greed overcame him and Mr Hozier’s account of the matter was “just another typical misrepresentation by Barrie”, who had no difficulty in lying. He said it was difficult to dispute the statement that Mr Hozier was a liar and a crook when it was convenient to him to be so.

[192]My assessment is that these statements by Mr White of his attitude to Mr Hozier were genuine. If and in so far as Mr Malek on behalf of Mr Hurndell suggested that these statements were a pretence by Mr White, I wholly reject that suggestion.

[193]As against these pointers to the truthfulness of Mr White, there are other matters that need to be considered. Mr Malek stressed three matters in particular. The first was the loan which Mr Hozier made to Stanelco. The second was the fact that Mr Hozier invested in Mr White’s company, AFC. I think that I might have attached greater weight to those matters if I was only considering Mr White’s evidence at the first trial. However, by the time of the retrial before me, I do not think that Mr White’s evidence was influenced by those matters. At the retrial, Mr White was prepared to be more frank in certain respects, in particular, in stating what he really thought of Mr Hozier and why he had made a gift of shares to Mr Hozier in 2001. Thirdly, Mr Malek pointed to a note dated 27th June 2007, which was just before the first trial, from Mr Hozier to Abacus Financial Services Ltd. In the note, Mr Hozier asked Abacus Financial Services Ltd to confirm the genuineness of the trustees’ appointment of 9th April 1997. Mr Hozier obviously felt it necessary to explain to Abacus Financial Services Ltd that his request was connected with Mr White. He told Abacus Financial Services Ltd of the High Court litigation and he stated that he was “supported by Howard White”. I do not regard this note as particularly sinister and liable to cast doubt on the reliability of Mr White’s evidence. In June 2007, it was the case that Mr Hozier was intending to call Mr White as a witness for the defendant with a view to advancing the defendants’ case. Mr Hozier was explaining to Abacus Financial Services Ltd what the link was between Mr Hozier, making the request for confirmation, and Mr White who had been the beneficiary under the trust administered by Abacus (Nominees) Ltd. I certainly cannot regard the terms of the note of 27th June 2007 as one which throws doubt upon the truthfulness of Mr White’s evidence.

[194]Another factor which I have considered is whether Mr White’s animosity towards Mr Davis may have led Mr White to give deliberately untruthful evidence. It is clear that Mr Davis and Mr White fell out very badly at some point in the past. The indications are that there was mutual hostility between the two of them in the past. Indeed, I think that Mr White’s obvious hostility to Mr Davis was one of the factors which persuaded Mr White to co-operate with Mr Hozier enabling Khaki and Finale to acquire the shares in Stanelco which they did acquire in February 2002. Nonetheless, I think it is unlikely that the animosity between Mr White and Mr Davis was enough to lead Mr White to give deliberately untruthful evidence, particularly at this second trial. I also bear in mind that relations between Mr White and Mr Davis were severed some time ago and it is likely that the degree of animosity will have lessened over the years.

[195]Balancing up these various factors in relation to the credibility of Mr White, my assessment is that I should accept Mr White as a witness who was genuinely intending to recall the real facts with which he was involved. That does not mean to say that I accept everything he told me. There are parts of his evidence which are much less probable than other parts. I do not reach the conclusion that the improbability of some parts of his evidence contaminates the whole. Instead, my approach will be to accept the parts which are probable and to be circumspect about those which are improbable. There are two parts of Mr White’s evidence about which I am particularly cautious. The first concerns the evidence he gave me as to his conversations with Mr Davis in January 1997. Mr White told me that Mr Davis explained that the 5% shareholding in Stanelco would be “parked” with Mr Hurndell. Mr White asked Mr Davis whether that was OK and Mr Davis assured Mr White that it was, which assurance Mr White accepted. It is possible that this evidence is true but it is quite likely that Mr White appreciated that parking the shares with Mr Hurndell was either contrary to the listing rules or there was a grave risk that it was contrary to the listing rules. In the end, it does not seem to me to matter which of these versions is true. If it is true that Mr White accepted Mr Davis’ assurance then that is compatible with Mr White’s other evidence that the intention was always that the shares be parked with Mr Hurndell i.e. that Mr Hurndell would be a nominee for Mr White. If on the other hand, Mr White knew that vesting the shares in Mr Hurndell as a nominee would or might be a breach of the listing rules, I think that Mr White would have been prepared to proceed on that basis.

[196]The other part of Mr White’s evidence about which I have doubts is his statement that he agreed to transfer the 5% shareholding, or thereabouts, in Stanelco to Barrie Hozier, or as Barrie Hozier would direct, in order to fulfil an expectation which Barrie Hozier had based on a promise which had been made to Barrie Hozier by Ian Davis in 1993. That evidence does not make much sense. I do not think that Mr Davis ever made that promise to Mr Hozier. Of course, it is possible that Mr Hozier told Mr White, wrongly, that such a promise had been made. But even so, why should it fall to Mr White to fulfil a promise which Mr Davis had made? At the highest, Mr White might have felt that it was desirable for him to fulfil one half of the promise leaving Mr Davis to fulfil the other half. My assessment of Mr White’s motives in co-operating with Mr Hozier in 2000/2001 has little to do with the alleged 1993 promise or the fulfilment of Mr Hozier’s expectation. In my view, what Mr White wanted to achieve was Mr Hozier’s co-operation as to the running of Stanelco. Mr White wanted Mr Hozier to keep Mr White informed as to what was going on. Mr White also feared that while the shares were vested in Mr Hurndell (which Mr White believed was the case even before 6th February 2001), those shares were vulnerable to being transferred away, where Mr Hurndell was acting under the direction of Mr Davis. In other words, I accept what Mr White told me at the trial as to these being a substantial part, or the whole, of his reasoning as to co-operation with Mr Hozier.

[197]These findings of fact as to the credibility of Mr White are an important matter in the case as I am able to rely on much of the evidence from Mr White who, Mr Hurndell alleges, was the donor of the shares to Mr Hurndell.

Mr Hozier

[198]I am very cautious about accepting Mr Hozier’s evidence where it is not corroborated by the evidence of a truthful witness or in some other way. There are various reasons for my caution; some of these reasons are more weighty than others. The first reason is Mr Hozier’s very odd behaviour in relation to the allegation he made that, in 1993, Mr Davis promised to give Mr Hozier 5% of the shares in Stanelco on Mr Hozier’s retirement. I have already described the way in which this alleged promise in 1993 was pleaded by Mr Hozier. He followed up that pleading in his witness statements signed in 2007 purporting to give a detailed account of the promise made to him in 1993. When he came to give his oral evidence in chief at the trial before me, Mr Hozier put forward a completely different version of the alleged 1993 promise. He played down the significance of any discussion of that kind. However, at later stages in his evidence he appeared to revert to the allegation he originally made of Mr Davis having promised him 5% of the shares in Stanelco on Mr Hozier’s retirement. Accordingly, Mr Hozier’s evidence is at least inconsistent in these respects. There was evidence from other witnesses that when the question of a bonus for Mr Hozier had been discussed on one or more occasions, Mr Davis would say to Mr Hozier something along the lines of:

“would you like to take your bonus by way of shares in Stanelco?”

The suggestion was that Mr Davis would have preferred to part with shares in Stanelco rather than making a payment to Mr Hozier. The evidence was that Mr Hozier always preferred to take a payment rather than shares. In the light of this evidence, and reflecting on the different versions of the 1993 promise given by Mr Hozier, it seems to me that Mr Hozier’s evidence during his oral examination in chief at the trial before me is far nearer the mark than the pleaded case or the case particularised in Mr Hozier’s witness statement. It also seems to me to be probable that even the description given by Mr Hozier in his oral evidence in chief is somewhat slanted. My assessment is that what happened was that the question of shares in Stanelco was something that was mentioned by Mr Davis to Mr Hozier. Mr Davis would have quite liked Mr Hozier to have taken his bonus by way of shares in Stanelco but Mr Hozier wanted a sum of money rather than shares. What I think has happened here is that when Mr Hozier sat down to think about the case he would make in these proceedings, he transformed this discussion about a bonus in the form of shares into an elaborate story of a promise being made in 1993. Because there were difficulties with Mr Hozier’s story about the 1993 promise, he decided at the trial to tone down his evidence considerably and bring his new version nearer to what I think really happened in connection with the discussion about a bonus. However, as I have described, later in his evidence before me, Mr Hozier appeared to revert to his original story. I think that what has happened is that his original story was a story that Mr Hozier had well and truly learned and so under the pressure of cross-examination he began to repeat that version of the facts. This indicates to me that Mr Hozier is prepared to give wholly misleading evidence if he thinks that it will suit his overall case for him to do so.

[199]A second reason for my caution in respect of Mr Hozier is the evidence he gave about his lack of awareness that a transfer of shares to Mr Hurndell as a nominee would have been a breach of the listing rules in 1996. It seems completely obvious that if shares held for Mr Davis and Mr White by Abacus (Nominees) Limited were to be treated as the shares of Mr Davis and Mr White respectively then shares held by Mr Hurndell as a nominee for Mr White would also have to be treated as the shares of Mr White. It therefore seems obvious that transferring shares to Mr Hurndell, ostensibly as beneficial owner, but in truth as a nominee was a pretended compliance with the listing rules and was in truth a breach of the listing rules. It is difficult to see how Mr Hozier would not have understood that fact in December 1996. However, it was plain at the trial that Mr Hozier was very reluctant to admit that he knew that there was a breach of the listing rules. He might have been concerned that some action could be taken against him even after the lengthy period which has elapsed since 1996. I also think that Mr Hozier wanted at all times during his evidence to give a very good impression of himself and was not prepared to admit to anything which would cast him in a bad light. Therefore, he gave evidence that he did not appreciate that there was a breach of the listing rules in December 1996. To give credence to this evidence, he said that Mr Davis had told him that the matter had been cleared with Mr Mills. That particular assertion was not contained in Mr Hozier’s witness statement prepared before the first trial and was not put to Mr Davis who gave evidence at the first trial. However, Mr Hozier gave evidence about the conversation concerning Mr Mills at the first trial and again at the trial before me.

[200]Because I considered that this question as to Mr Hozier’s awareness that transferring the shares to Mr Hurndell as a nominee was a breach of the listing rules might have a bearing on the issue as to whether Mr Hurndell held the shares beneficially or as a nominee, I was interested to hear the evidence that Mr Hozier would give on that subject. However, the way in which Mr Hozier was asked questions in chief and in cross-examination was not designed to test his evidence on that point. When he gave his evidence in chief, he said the shares were transferred to Mr Hurndell as a nominee and he believed that complied with the listing rules. When he was cross-examined, Mr Malek questioned him with a view to obtaining his agreement that the shares were transferred to Mr Hurndell beneficially and therefore there was compliance with the listing rules. In those circumstances, I myself asked Mr Hozier to deal with a third possibility, namely, that the shares were indeed transferred to Mr Hurndell as a nominee but that Mr Hozier appreciated this was a breach of the listing rules. At that point in his evidence, for the first time, Mr Hozier came close to accepting that he did appreciate that Mr Davis’s behaviour was “a bit sharp”. It seemed to me that Mr Hozier was not attempting throughout his evidence to give truthful and accurate evidence but was determined to present an account of the fact which was most favourable to himself.

[201]A third reason for my caution in relation to Mr Hozier is the direct evidence of deceit on his part. I have referred to the memorandum prepared by Eversheds and signed by Mr White in April 2005 dealing with the circumstances in which the shares were transferred to Khaki and Finale. Mr Hozier was asked to respond to that memorandum and did so on 28th April 2005. In his response, Mr Hozier wrote things which he plainly knew were untrue. Further, he put forward assertions to the effect that it was Mr White who was not telling the truth.

[202]I was also initially cautious about the St Tropez note which was not produced by Mr Hozier’s solicitors until 25th July 2005, at which point the solicitors suggested that the note had just come to light. In the event, I have decided that the St Tropez note is genuine. However, it is apparent from the point at which Mr Hozier decided to rely on the St Tropez note, that up to that time, he judged that it was in his best interests to put forward other versions of the facts, in particular, the lies he told in his response of 28th April 2005. When, later, he judged that his case was best served by presenting the St Tropez note, he did so.

[203]Overall, my finding is that Mr Hozier is prepared to tell lies when he believes that it suits him and he thinks he can get away with it. However, this does not mean that all of his evidence is untrue. I am able to accept a great deal of his evidence because it is corroborated by the evidence of Mr White and I have indicated earlier my reasons for accepting the greater part of Mr White’s evidence.

David Hozier

[204]I am somewhat cautious about accepting everything that David Hozier told me. The principal reasons for my caution are as follows. First, David Hozier is very much an interested party rather than an independent witness. Secondly, some of his evidence concerned matters of which he did not have first-hand knowledge and where he recounted what, he said, his father had told him. That evidence was given in a way which supported his father’s own evidence on such matters. However, I am not always able to accept Mr Hozier’s evidence and so when I see that David Hozier told me that his father had told him (David Hozier) the same things as Mr Hozier told me (and which I do not accept), it would seem that David Hozier was prepared to say things irrespective of the truth as to the real position designed to support his father’s case. Thirdly, David Hozier’s witness statement signed by him on 4th April 2007 described the meeting with Mr Hurndell in St Tropez on 16th August 2001 as happening at lunch. His witness statement then contained considerable detail which was said to be consistent with the lunch meeting having taken place. In his oral evidence at the first trial and again at the trial before me, David Hozier stated that the meeting with Mr Hurndell on the 16th August 2001 was not at lunch but over dinner. This meant that a lot of the detail on the witness statement designed to show the meeting occurred at lunch time could not have been right. At best, David Hozier’s memory was shown to be faulty in some respects. At worst, there was the possibility that David Hozier had made up his evidence as to any meeting taking place with Mr Hurndell on 16th August 2001. Not withstanding these grounds for caution as to accepting David Hozier’s evidence, I am persuaded by my consideration of all the evidence as to the events or the alleged events of 16th August 2001 that David Hozier is telling the truth about the meeting over dinner with Mr Hurndell on 16th August 2001.

Karen Hozier

[205]Karen Hozier’s evidence was principally dealing with the events of 16thAugust 2001. I have dealt with the detail of those events earlier in this judgment. I have accepted that Karen Hozier gave truthful and accurate evidence on those matters.

Other witnesses

[206]Miss Matheson gave evidence by video link. Miss Matheson had lived with Mr Hurndell from around 1987 to 1996. This period covered the time of Mr Hurndell’s involvement with the Ile du Levant. Miss Matheson was plainly an honest witness who gave her evidence in a sensible and helpful way. It is necessary to refer to one part only of her evidence. This concerned her understanding of the arrangement which Mr Hurndell had made with Mr Davis and Mr White in relation to his participation in the Ile du Levant. Miss Matheson described Mr Hurndell’s salary and the reimbursement of his expenses in relation to that project. She said that Mr Hurndell was going to be given shares to reflect his involvement. Miss Matheson did not know the detail of this arrangement to do with shares. She did not know the identity of the company the shares of which were to be given to Mr Hurndell nor the number or value of any such shares.

[207]At the trial before me, Mr Hurndell did indeed suggest that during the time that he was involved with the Ile du Levant, that is before December 1996, there was an arrangement between himself and Mr Davis and Mr White that he would be given shares in some company or another to reflect his involvement in the Ile du Levant project. However, this evidence from Mr Hurndell appears to be a recent invention. On 10th March 2006, Mr Hurndell answered a request for further information as to his Particulars of Claim. In that answer he stated that his work in relation to the Ile du Levant project and in connection with John White Footwear Ltd was to result in him receiving “a share of the profits of the development on the Ile de Levant when they were realised”. He said much the same thing in a witness statement of 6th April 2006, an affidavit of 27th March 2007 and a witness statement of 5th August 2010.

[208]I have also seen the communications between Mr Davis and Mr White on the one hand and the French notaire on the other hand which showed the intended corporate structure for the development in the Ile du Levant. Those documents provide no support for the suggestion that Mr Hurndell was to be a shareholder in a company connected with the development.

[209]Although Miss Matheson was an honest witness doing her best to recall events which, so far as relevant, took place in 1989 or 1990, I am not able to accept that her evidence is accurate when she says that Mr Hurndell had the benefit of an arrangement pursuant to which he would be given shares to reflect his work in the Ile du Levant. There are other explanations for Miss Matheson’s evidence which separately or together are far more likely than her evidence being accurate. The first possibility is that Mr Hurndell said something to Miss Matheson along the lines of a statement that he would share in the profits of the development. If Mr Hurndell said something of that kind, Miss Matheson may at the time have understood that to mean he would be given shares in a company although that is not what Mr Hurndell was saying to her. Another possibility is that Mr Hurndell referred to a share of profits but not to shares in a company and Miss Matheson has quite understandably misremembered that matter 20 years later. The third possibility is that Mr Hurndell did tell Miss Matheson that he was to be given shares in a company and, in doing so, Mr Hurndell mis-described his expectations as to the arrangements which would be made between him on the one hand and Mr Davis and Mr White on the other.

[210]There is one other feature of Miss Matheson’s evidence on which I should comment. She agreed with suggestions put to her by Mr Booth that Mr Hurndell was a considerable raconteur and had a tendency to exaggerate his involvement in certain matters. People listening to Mr Hurndell would take these tales with a pinch of salt. I accept that evidence.

[211]As I have stated, Miss Matheson gave her evidence by video link. Mr Malek had applied to me for permission for this to happen and this application was strenuously opposed by Mr Booth. I acceded to the application. Having heard her evidence by video link, I should record that there did not appear to be the least difficulty in my assessing the reliability of her evidence, notwithstanding that she gave it by video link rather than by being present in court.

[212]Mr Radia, who was employed as an accountant or a financial controller in relation to one or more of Mr Davis’ companies, gave evidence before me. He had not given evidence at the first trial but Mr Hurndell took the opportunity of there being a second trial to call Mr Radia in support of Mr Hurndell’s case. Mr Radia professed to remember that there had been an arrangement in relation to the Ile du Levant development, at the time of the development, that Mr Hurndell would have shares in a company involved in that development. This evidence was somewhat surprising. Mr Davis had not given that evidence at the first trial. Further, that version of the facts was not spoken to by Mr Hurndell in his pleaded case or in his written witness statement. Indeed, when Mr Radia gave his evidence, it was clear that he could not support that version of the facts. It is not clear to me how this state of affairs came about. I find it difficult to judge whether this was a case of Mr Radia having only a poor recollection of the matter, believing himself to have a better recollection of it and then giving enthusiastic evidence in support of that mistaken recollection. Alternatively, was Mr Radia prepared to say whatever he thought would help Mr Hurndell which, he may have thought, would also help Mr Davis? In the event, I do not need to resolve that puzzle. I have no difficulty in rejecting the evidence that Mr Radia gave, at least some of the time, about shares being given to Mr Hurndell. The only other part of Mr Radia’s evidence that, at the end of the day, might matter is the evidence he gave that Mr Hurndell signed blank pieces of notepaper so that they could be used by Mr Davis at a later time. I think it is possible that Mr Hurndell did sign blank pieces of notepaper in around 1992 when his bank account was being used by Mr Davis for the transmission of sums of money at Mr Davis’ request. I am more doubtful whether Mr Hurndell signed blank pieces of paper at a later time. However, I am prepared to find in Mr Hurndell’s favour that a blank piece of paper signed by him might have been retained at Oliver House and might conceivably have been available to Mr Hozier when Mr Hozier took certain papers from Oliver House in March 2002. If I proceed on that basis, I do not believe that I need to discuss the reliability of Mr Radia’s evidence in any further detail.

[213]I heard evidence from Mrs Virginia Elliot. Mrs Elliot had lived with Dr Victor Ratner until 1992, or possibly a little earlier than that. Mrs Elliot knew Mr Hurndell and that he was involved with a project on the Ile du Levant. Mr Hurndell complained to her that he was only being paid expenses for his involvement. Mrs Elliot discussed Mr Hurndell with Dr Ratner and Dr Ratner told her that Mr Hurndell “was going to receive shares in lieu of payment”. When she was cross-examined, it emerged that there was one conversation to this effect and it seemed to have been a short conversation, not involving any discussion of matters of detail. Mrs Elliot did not speak to Mr Davis or Mr White about the arrangements with Mr Hurndell. Mr Hurndell did not himself tell Mrs Elliot that he was to receive shares. Indeed, the reverse is true; he complained that he was only being paid expenses. Mrs Elliot does not know where Dr Ratner got his information from. She assumes that it would have come from his nephew, Ian Davis.

[214]With respect to Mrs Elliot, I can attach no real weight to her evidence. Her evidence is confined to a comment made by Dr Ratner who may very well not have known anything about the arrangement with Mr Hurndell in relation to the Ile du Levant. It is entirely possible that Dr Ratner was speculating about those arrangements or that he said something to the effect that Mr Hurndell would share some how in the profits of the venture. Dr Ratner’s comment appears to have been a brief remark which Mrs Elliot is trying to remember twenty years after the event. In any event, I am able to make confident findings as to the arrangements between Mr Davis, Mr White and Mr Hurndell in relation to the Ile du Levant and I find that there was no such arrangement for Mr Hurndell to have shares in a company as a form of payment for his work.

[215]I received some evidence as to statements which Mr Hurndell had made to others over the years to the effect that he owned shares in Stanelco or in some unidentified company. To put this evidence into context, it is useful to summarise the parties’ cases as to Mr Hurndell’s ownership of shares. Mr Hurndell says that in December 1996, Mr White and Mr Davis told him that he was to be given some 33 million shares. In February 2001, Mr Hurndell was registered as the holder of some 33 million shares. In April 2001, Stanelco prepared its financial statements for the year to 31st October 2000 and the directors’ report in those financial statements referred to Mr Hurndell as owning 4.99% of the shares in the company. In February 2002, Mr Hurndell was registered as the holder of 1.5 million shares and a share certificate for this number of shares was sent to him. I heard oral evidence from three witnesses who told me that Mr Hurndell had referred to his ownership of shares. These three witnesses were Mr Bond Smith, Mrs Taylor and Mrs Liffen, Mr Hurndell’s sister. I also have three hearsay statements which are from Mr Withers, Mr Pettersson and Mr Colin Hurndell, who is Mr Hurndell’s brother. I think it is appropriate to deal with this evidence collectively rather than to refer to the witnesses individually. Some of the witnesses were unclear as to precisely when Mr Hurndell made the statements now relied upon. Some of them were unclear as to the details, if any, given by Mr Hurndell. In general, the conversations appear to have been fairly brief. However, the impression given by the evidence is that Mr Hurndell told a number of people that he owned a substantial number of shares in a company and the company in question must have been Stanelco. This evidence must be taken into account but it does not mean that I should make a finding that Mr Davis and/or White did vest shares in Mr Hurndell beneficially. The question as to what transpired between Mr Davis, Mr White and Mr Hurndell in relation to shares in Stanelco and the legal effect of what transpired can not be directly answered by these witnesses. I plainly must pay far more attention to direct evidence from Mr Davis, Mr White and Mr Hurndell, in so far as I can rely upon their evidence, as to what the arrangements were. I also must bear in mind that it is quite possible that Mr Hurndell made the statements to third parties about the ownership of shares because he was keen to give a favourable impression of himself even though he appreciated that, save for the 1.5 million shares, he did not truly own them but was holding them as a nominee.

[216]I heard evidence from Mr Quinlan. He gave evidence on a number of subjects. I regard Mr Quinlan as an honest witness genuinely trying to recall the events on which he gave evidence. Mr Quinlan was a person to whom Mr Hurndell had said that Mr Hurndell had shares in Stanelco. Mr Hurndell told Mr Quinlan that he acquired the shares in Stanelco in return for work he had done on the Ile du Levant. As with the other witnesses who gave similar evidence, I will take these statements by Mr Hurndell into account when I consider the findings I should make on the arrangements which were made between Mr Davis and Mr White on the one hand and Mr Hurndell on the other in relation to shares in Stanelco. Mr Quinlan also told me that Mr Hozier had not said anything to him about a promise by Mr Davis to make a gift to Mr Hozier of shares in Stanelco. I accept that evidence although I doubt if the evidence helps very much. Even if Mr Davis had made that promise to Mr Hozier, it is far from obvious that Mr Hozier would have explained that to Mr Quinlan. Mr Quinlan said that Mr Hozier was resentful about the financial returns to Mr Hozier for his involvement with Mr Davis’ companies. I think Mr Quinlan is probably right about that and that Mr Hozier’s resentment grew over time. Mr Quinlan also referred to a conversation or conversations he had with Mr Hozier when the subject of Mr Hurndell’s shares in Stanelco came up. Mr Quinlan’s evidence in chief was neither clear nor detailed as to how the conversation went. It appears from that evidence that Mr Quinlan was aware that Mr Hurndell had shares in Stanelco and this fact was mentioned and his interpretation of the situation was that Mr Hozier was upset that the shares had been given to Mr Hurndell by Mr Davis. Based on the way the matter was described by Mr Quinlan in his evidence in chief, I am not able to find that Mr Hozier said to Mr Quinlan that Mr Hozier believed that 5% of the shares in Stanelco had been the subject of a gift by Mr Davis to Mr Hurndell. Based on that evidence, it may very well be the case that Mr Quinlan thought that is what Mr Hozier believed. It is entirely possible that if Mr Quinlan brought up the subject of Mr Hurndell’s shares in Stanelco, Mr Hozier would not have felt it appropriate to go into Mr Hozier’s own understanding of the circumstance in which those shares were put in the name of Mr Hurndell.

[217]I heard evidence from Dr Biddulph. Dr Biddulph is a medical doctor who specialises as an analytical psychologist dealing with the treatment of anxiety and psychiatric disorders. Dr Biddulph was not called as an expert witness but as a friend of Mr Hurndell who knew him well over the years. Dr Biddulph did refer to the surgery which Mr Hurndell underwent in April 2007. He also said that he was in a very anxious state in 2007. Whilst I bear this comment in mind, I find that it does not help me very much in coming to findings of fact based on the evidence I have been given.

[218]I heard evidence from Mr Murray Jones. Mr Murray Jones is a solicitor. He was a partner at Lovells until 2001 when he left that firm and joined Skadden, Arps, Slate, Meagher & Flom (UK) LLP. Mr Murray Jones acted for Mr Davis’ companies over the years and he was also a friend of Mr Davis. He gave evidence twice in the Israeli proceedings on behalf of Mr Davis, first before conviction and then, secondly, as a character witness in relation to sentence.

[219]Mr Murray Jones explained that he was aware of the approaches by Mr Hozier to Lovells, and Mr Derek Jones in particular, in 2000. He said that Mr Hozier would have been aware that Mr Murray Jones was a friend of Mr Davis. Mr Murray Jones said that the file which covered the request for advice from Mr Hozier was opened in the name of Stanelco and if Mr Davis as a director of Stanelco had asked for information as to the request for advice or the advice given, Mr Murray Jones would have felt able to give that information. He gave evidence about a discussion he had with Mr Davis in 2002. Mr Davis told him that Mr Hurndell had been induced to sign a transfer of his shares without understanding what he was doing. Mr Murray Jones did not investigate the facts or form any view on the merits of this claim. Mr Davis was concerned that if Mr Hurndell took action in relation to the transfer of the shares, this could have an impact on the attitude of the gaming board to Mr Davis’ involvement in his casino business. Mr Murray Jones advised Mr Davis that he should definitely support Mr Hurndell in taking action and pursuing the matter if he believed the facts he had communicated to Mr Murray Jones. He said that the gaming board would not regard such action by Mr Davis as in anyway relevant to Mr Davis’ fitness to be involved in a casino. He told me that when Mr Davis spoke to him in 2002, Mr Davis was in a deeply paranoid mood. He thought that Mr Hozier was making life difficult for him with the gaming board and he felt that if Mr Hurndell brought proceedings against Mr Hozier, this would cause Mr Hozier to report Mr Davis in some further respect to the gaming board. I accept Mr Murray Jones’ evidence.

[220]I do not need to refer to any other witnesses from whom I received witness statements.

The relevant surrounding circumstances

[221]Before turning to my detailed findings of fact based on the documents and the oral evidence, I ought to deal with certain surrounding circumstances which assist me in coming to my conclusion. One of the matters I have to decide is whether the arrangements made in and after December 1996 involved Mr Hurndell holding the shares in Stanelco as a nominee for Mr White, or whether the shares were the subject of a gift to Mr Hurndell, who therefore held them beneficially.

[222]There is clear evidence that Mr Hurndell was very much the creature of Mr Davis. Mr Hurndell acted in that way in connection with the monies that passed through his bank account or bank accounts in 1992. Further, as I have found, Mr Hurndell acted as the creature of Mr Davis in relation to the Metco shares. For what it is worth, Mr Hurndell was in substance a nominee in connection with the purchases of some of the properties on the Ile du Levant although I do not suggest that his conduct in that respect was improper.

[223]Further, prima facie, Mr Davis did not himself make any gift to Mr Hurndell. Any gift to Mr Hurndell would have to have been the gift of Howard White, given that the shares in question were to be transferred from the H White (1991) Trust.

[224]Mr Hurndell alleges that he was telephoned by Mr White and then by Mr Davis on the same day in December 1996. Mr Hurndell says that Mr White told Mr Hurndell that there was to be a transfer of some 33 million shares to Mr Hurndell in return for Mr Hurndell’s services in relation to the Ile du Levant. This evidence seems to me very unlikely. Mr White was remote from the detailed arrangements being made in December 1996. He was in the United States. Mr Hurndell was in France. Whilst of course there is a telephone link from the United States to France, I think that it is unlikely that Mr White would have telephoned Mr Hurndell.

[225]Further, if Mr Hurndell was told in December 1996 that he had become the owner of some 33 million shares in Stanelco, he did nothing in connection with those shares between December 1996 and 2002, when he was sent a share certificate for 1.5 million shares. Between 1996 and 2002, he did not make any enquiries as to the whereabouts of his share certificate for some 33 million shares. When Mr Hurndell did become the beneficial owner of 1.5 million shares in February 2002, he did then receive a share certificate and he later sold the shares. There may have been reasons for him selling the shares later and not selling them earlier but the complete inactivity after 1996 remains.

[226]There is also the curiosity that Mr Hurndell made no complaint about the transfer of the shares away from Mr Hurndell in February 2002 until mid-2005. The explanation given by Mr Davis and Mr Hurndell for this is not particularly convincing. The explanation would be more convincing if Mr Hurndell held the shares as a nominee and Mr Davis appreciated that if Mr Hurndell brought proceedings, it would be likely to emerge that Stanelco had not complied with the listing rules in December 1996. The emergence of the fact might well have caused Mr Davis to have difficulties in connection with his gaming business and the evidence shows that Mr Davis was genuinely concerned to avoid difficulties of that kind.

[227]Further, in 2000, Mr Hozier was in communication with Grant Thornton and Lovells on the subject of a transfer of shares to him, or as he might direct. These discussions appear to have been open and in circumstances where information about the discussions might well have reached Mr Davis. This was a curious way for Mr Hozier to behave if, as Mr Hurndell alleges he was bent on “stealing” Mr Hurndell’s shares. Further, the correspondence at this time suggests that Mr Hozier genuinely thought that the shares vested in Mr Hurndell were not owned by Mr Hurndell beneficially and were available to be transferred to Mr Hozier, or as he might direct.

[228]Finally, there is the curiosity of the terms of the three letters written by Sebastians on 20th April 2005. These are consistent with Mr Hurndell accepting that he had dealt with the shares vested in his name in a transaction involving Mr Hozier. What Sebastians seem to be complaining about was the involvement of Khaki and Finale and the fact that the stock transfers quoted a substantial price for each transfer.

The evidence which I accept

[229]Taking all the evidence together as to the arrangements which Mr Hurndell had made with Mr Davis and Mr White in relation to the Ile du Levant, I find that the position was as follows. It was Mr Davis and Mr White who were to invest the funds needed for the Ile du Levant project. It was not expected that Mr Hurndell would put in any money of his own into that project, not least, because Mr Hurndell did not have any money. In return for Mr Hurndell’s time and effort, he was to be paid a fairly modest salary and his expenses were to be reimbursed. There was no real discussion between Mr Davis, Mr White and Mr Hurndell as to what Mr Hurndell might otherwise get out of the project. If the project had been successful, it is likely that Mr Davis and Mr White would have recognised Mr Hurndell’s contribution. It is far more likely that they would have made a payment to Mr Hurndell rather than giving him shares in a company which owned the project. There was no agreement in advance as to what would be done in this respect. There was certainly no contractual commitment in this respect. Mr Hurndell did not believe that any promises had been made to him. He relied upon his expectation that his efforts would be recognised in due course if the project were profitable.

[230]Howard White signed a witness statement in this action on 23rd January 2007. I was told by Mr Booth that this witness statement was exchanged when other witness statements were exchanged in April 2007. At one point, Mr Malek had suggested that Mr White’s witness statement had only been provided in June 2007 which, Mr Malek said, was significant because by June 2007, Mr White had become beholden to Mr Hozier. Mr Malek did not contradict the correction of this statement by Mr Booth and I will proceed on the basis that the statement was indeed exchanged in April 2007.

[231]When Mr White gave evidence he, like the other witnesses, was not asked to confirm the truth of his signed witness statement but he answered specific questions put to him in chief by counsel. However, his witness statement was later put to him in cross-examination. For convenience, I will quote parts of the witness statement which, in substance, contain the evidence given orally by Mr White at the trial before me.

[232]In paragraphs 5 and 6 of his witness statement, Mr White said:

“I am aware that in 1996 the USM was abolished and Stanelco wished to achieve a full listing as a public company. By this time I had separated my business interests from Ian Davis. A parting of the ways took place in 1993. In 1996 I was living in the United States. I did not actively participate in the running of Stanelco. Day to day management was delegated to Ian Davis and Barrie Hozier. I was kept informed from time to time of what was going on mainly by Barrie Hozier. I recall being told by Ian Davis, and this was subsequently confirmed to me by Barrie, that it was necessary that the shareholding owned by the H White (1991) Trust and the shareholding held by a similar trust for Ian Davis had to be reduced from an aggregate of 80% to 75%. I accepted what they said. I assumed that 2.5% would be coming from Ian Davis trust holding and 2.5% from my trust holding. In fact I subsequently discovered that all 5% came from my trust holdings. I did not give any instructions to Abacus Nominees Ltd to effect this. I later understood from them that they received instructions from Barrie Hozier. Apparently Ian Davis decided that the 5% of the shares should be transferred to William Hurndell solely from my trust. I was assured by Ian Davis that the shares were held on trust for me by William Hurndell. Ian Davis also confirmed to me that this arrangement would comply with the listing regulations. I therefore did not object to the whole 5% coming out of my trust. At no time has anybody told me that the shares were being transferred to William Hurndell in exchange for any work that he had done for anybody let alone work done in connection with the failed development of a golf course in the south of France. I am aware that a company called Winemanor Holdings Ltd, of which I owned 50% at the time, was interested in developing a golf course in the south of France and looked at an island called Ile du Levant. William Hurndell did do some work for Ian Davis and myself in this regard and was paid by Winemanor Holdings Ltd for doing it. I never agreed that any of the shares held in the H White (1991) Trust could be transferred to him in part payment or recognition of his work. If I had been asked to agree to this I would have refused.”

[233]In paragraph 8 of his witness statement, Mr White stated that the shares in question were held for his account following the exercise by the trustees of the H White (1991) Trust of a power of appointment in April 1997.

[234]In paragraph 12 of his witness statement, Mr White referred to the fact that Mr Hozier had told him that Mr Davis had promised Mr Hozier 5% of the shares in Stanelco. Mr White then added in paragraph 13:

“Some time later (around 2000/2001), Barrie Hozier’s expectations had still not been met. Feeling at that time that it was not in the interests of either the Company or shareholders to have an ongoing dispute between the executive management, I therefore agreed to give to Barrie Hozier the 5.00% interest in the Shares allegedly promised by Ian Davis and to meet this from the shares held by William Hurndell. It also helped Barrie Hozier to enable him to identify more closely with the interests of shareholders generally. As a result, the shares were from that time under the beneficial ownership of Barrie Hozier or connected persons of Barrie Hozier. However I am advised that legal ownership of the shares remained with Abacus Nominees Ltd pending registration of the transfer in 2001.”

[235]In paragraph 14 of his witness statement, Mr White said:

“In about mid 2001 I spoke to William Hurndell and told him that I was transferring my interest in my shares to Barrie Hozier or whomever he specified and that Barrie would now own them instead of me. Barrie may have been present when I spoke to William Hurndell, I cannot recall. I would have communicated the contents of the conversation to him anyway. I also told William Hurndell that I was giving him 1.5 million of the shares. They were his to do what he liked with. This was a thank you to him for having held all the shares. He thanked me for doing this. He was very grateful. At no time did he claim that the shares had always belonged to him.”

[236]In his evidence in chief at the last trial, Mr White was asked about what he understood was intended to happen to reduce the 80% shareholding held by the Ian Davis trust and by the Howard White trust to 75%. He gave this evidence (Transcript of 18 July 2007 at page 5):

“Q. Was anything more said to you at this stage about the nature or the form in which that reduction would be carried out? A.Um, I don’t believe that it was actually expressly spoken about. I think I took the implication, that if we were going to have to reduce our holdings by 5%, then it would obviously come 2.5% from Mr Davis’s holdings and 2.5% from mine. I think I probably assumed that.”

[237]Later in his evidence in chief at the first trial, Mr White said that he did not personally ever assent to making a gift to Mr Hurndell of 5% out of the shares held by H White (1991) trust nor, before the full listing was obtained, that 5% of the shares held by the H White (1991) trust should be transferred to Mr Hurndell as a nominee. He later explained how the reference to Mr Hurndell holding as a nominee came about he said (Transcript of 18 July 2007 at page 21):

“I was told after the event. So I don’t know if discussing, did I agree that they would be, no I didn’t agree. Was I told afterwards that they had been transferred? Yes. Q. Who told you? A. Ian Davis. Q. And you said “after they had been transferred”

. Can you try and give My Lord some date of that? A. Well, I would assume some time in early 1997. There had been a phone call. I mean, we didn’t speak every day, or every week for that matter, but on occasions we would speak, and on this occasion, Ian reported to me that the move from the USM had taken place… and he advised me that 5% of the shares had been put in William’s name. And he said they had come out of my trust. I enquired as to why they had come out of my trust and they hadn’t come out of both of our trusts and he said - I can’t really recall exactly verbatim the phone call but the gist of it was because these were shares having, I thought, been sold. But they weren’t being sold according to Ian, they were being parked with William who was holding them as nominee for me. Therefore it doesn’t matter that they came out of my trust because we were still equal, we were still 40/40. And I asked him if that was okay? If that was in order? I- again it wasn’t, it was a pretty short conferring. Yes, he had checked it out and that was fine. So I didn’t think any more of it. I mean, I trusted Ian and I trusted that, if he thought something was okay, it was okay.”

Q. Who told you?

[238]Later in his examination in chief, he referred to his agreement with Mr Hozier that the shares should be transferred to Mr Hozier. He confirmed that he had contacted Mr Hurndell and told him he was going to authorise Mr Hozier to have the shares and that Mr White was going to let Mr Hurndell keep 1.5 million shares as an appreciation or a thank you for having been a nominee. Mr Hurndell was grateful to receive the 1.5 million shares.

[239]At the first trial, Mr White was thoroughly and properly cross-examined by Mr Melville QC. The statements which I have quoted above were repeatedly tested in the course of that cross-examination and, of course, many other matters were investigated. As I read the cross-examination, Mr White essentially restated the matter, time and again, in substantially the same terms as I have set out. He said that the conversation with Mr Davis after Stanelco had been admitted to a full listing was in January or possibly in February 2007. He said on a number of occasions in his cross-examination that Mr Davis had referred to the shares being “parked with” Mr Hurndell. It was put to Mr White that Mr Davis had telephoned Mr White in December 1996 seeking Mr White’s approval to a distribution of 5% of the shares in Stanelco to Mr Hurndell. It was put that because of the time difference between the United States and the United Kingdom, Mr White was woken up by the telephone call. Mr White said the suggestion was not true. Mr White pointed out the irony that if his evidence were accepted it meant that there had been a breach of the listing rules in December 1996 whereas if Mr Hurndell’s case prevailed then there would not have been a breach of the rules.

[240]Mr White was re-examined at the first trial and in particular was asked about the authority of Mr Hozier in relation to shares held by the H White (1991) trust. Mr White was asked whether Mr Hozier had authority to give away shares from that trust. Mr White answered that question: no. He said that Mr Hozier was acting as a form of trustee. He had authority to act on Mr White’s behalf for the H White (1991) Trust. Mr White assumed that Mr Hozier was acting in Mr White’s best interests. He confirmed that Mr Hozier did not have authority to give away anything. Mr White was asked a leading question in re-examination as to whether the authority was “ministerial” rather than anything else. Mr White replied that the authority was not executive authority.

[241]At the trial before me, Mr White gave evidence in chief in answer to specific questions from counsel. He was not asked to confirm the truth of his witness statement of January 2007. In his evidence in chief, Mr White said this (Transcript of 1 November 2010 at pages 18-2): Q. What did you understand was going to happen in terms of how the 5% would be disposed of? A. I assumed as we both owned the shares equally, 2.5% would out of my trust and 2.5% out of his, and I assumed they would be sold on the market. Again, I want to contextualise this, it may be an assumption, I may not have even bothered thinking about it, but in logical terms, if we are 50/50 and we are partners, and we sit side by side, I would have expected both of them to come out of each of our holdings. Q. When was the first time that you knew that 5% had come out of your holding - and what were you told about the basis on which it had come out? A. Some time after it happening. Again, you know, we are trying to put this into context. It would have been part of the conversation, I may have been having a one hour conversation with Ian and he said to me - I don't even know whether it was Ian or Barrie who told me. But I sort of expressed surprise, it may have been Barrie telling me and then me talking to Ian, or talking to Ian and then to Barrie. I don't know what the - I was made aware of the fact it had come out of my holding, which I was surprised about, and when I questioned it, it was told the shares were going to William, they had been put in William's name, and he was holding them as nominee for me. I said, again, I think you have got to remember that I am in the States doing something which is engaging me completely, and I am just hearing this and going, does that meet the requirements? Have you checked it? Yes, they are fine. You are dealing with a relationship that you know - if Ian had said we are putting everything on black and I said are you sure and he said yes I would have gone along with it, we had that sort of level of trust still between each other. I did not spend an inordinate amount of time actually considering the position I just said well if that is fine, that is fine. Q. Mr Hurndell says that in 1996 you telephoned him and said words to the effect of:

"We have decided to give you Stanelco shares for all the work you have been doing."

And he thinks you said 33 million and used the word beneficially. Did you have that conversation with Mr Hurndell? A. No, I mean with great respect to William I don't think he would know what the word beneficial meant. Those conversations never occurred, William was never - no no that is fantasy. Q. And in terms of the position as it stood, you say you were told that Mr Hurndell was a nominee, was it ever during that period - first of all if we can identify when these conversations with Mr Davis took place. Would they be at the time of the listing or after the listing? A. The conversations took place and I am not going to give any sort of attempt at guessing the timeline but they certainly took place after everything had been done. To me when I was advised of these things they were historical events.

[242]Later in his evidence in chief, on the subject of a gift of the shares to Mr Hozier, Mr White said (Transcript of 1 November 2010 at page 23): Q. You can tell us what you recollect as the substance of what happened. A. Thank you. Essentially the relationship with Ian had sort of somewhat disappeared - no, it had not, it was before that - I was feeling very disconnected from what was going on and I figured that the - and I think this is another aspect of the whole thing - I figured that the shares that were allegedly being held by William on my behalf, the reality of it was that they had actually gone to William so that Ian could get them later and I had come to the conclusion I was never going to see those shares again so I took a view that it would be in my best interest because Barrie was the person who was doing anything for me and was actually my lifeline into the company where Stanelco was, and that he was doing the work on Stanelco, it was in my interest that Barrie should have an interest in it. Now, there was allegedly a conversation between Barrie and Ian that Barrie related to me saying that Ian had promised him 5% of Stanelco, which I was not party to, but again, it was quite normal for Ian to take these executive decisions and not actually consult me. And Barrie was - told me this and I put two and two together and said, Ian is never going to give them to him, I am never going to see that 5% again, I may as well give them to Barrie, because at least he will have an interest in Stanelco and I have still got 35%. So better 35% with someone doing something about it than arguing about the other 5% and arguing about nothing.

[243]Later still in his evidence in chief, Mr White said (Transcript of 1 November 2010 at pages 25-27): Q. --did you ever talk to Mr Hurndell? A. Yes, I told Ian - I told William what I was doing, and William's view was, well, they are your shares, do whatever you want with them. You know, he was just the - I will do as I am told. I think this was still a stage where William and I were still friends and he would still come over to my house, and it may have been mentioned, I am sure it was mentioned in passing. There was nothing, anything, you know, again, we are having to relate to what later on became of significant value, at this time was still paper and not of any significant tradable value. Q. And when you eventually spoke to Mr Hurndell about this was there any conversation about him getting anything? A. No that came about by me saying to Barrie - Barrie had - I frankly don't know what went on there but it was a disaster, shares not being registered, shares not being transferred, within two or three years - and this all stuff I learnt in the first court hearing. I wasn't aware of the majority of this - actually no I would have been made aware of it when I did the Eversheds documents. I think that is when the revelations as to the complete mess that the public companies books were in and in terms of transfers etc etc. When I said - because Barrie had started falling out with Ian and I said to Barrie you had better transfer these shares because if you don't Ian will put a block on William transferring them and you won't get them. And he procrastinated as normal and finally sort of when it was coming down to the wire a number of conversations were had with William and William at that became part of - because I wasn't - I think at this time my relationship with Ian had disappeared and he had become, yeah I would say, hostile. Relations were not good or in fact they just did not exist. So there was a little bit of - I don't really want to use the word conspiracy, but William was quite happy to comply with all of the necessary arrangements in order to get the shares transferred to Barrie. And at the time I said to Barrie that Barrie was going to leave one and a half million shares with William as a thank you because you know you have got to take a lot of flak for this. MR JUSTICE MORGAN: A thank you for what? A. For holding the shares. So you know he was getting one and a half million shares---- Q. Who was getting flak for what? A. William was going to get flak from Ian Davis when he found out that he'd transferred the share into Barrie's name. Q. Was the one and a half million to incentivise Mr Hurndell to cooperate? A. No he was not expecting it. He was just going to do it anyway. He was going to do it anyway. He would have done the whole lot. But I - because Barrie was saying that he did not think he should get that much I insisted we leave him one and a half million because it would make a big different[ce] to William because at the time William had nothing and so one and a half million shares because they were now starting to trade - I think it might have been 6p at the time or 5p so for someone who has got nothing one and a half million 6ps is a lot of money. MR BOOTH: And in terms of the - you talked about what Mr Davis might do in respect of the shares held as nominee by Mr Hurndell? A. Hmm-mm. Q. First of all just running through, who was Mr Hurndell holding as nominee? A. For me supposedly. Q. Yes. And so did you consider that Mr Davis had any entitlement to do anything with those shares? A. None, none whatsoever.

[244]Mr White was thoroughly and properly cross-examined by Mr Malek. As I read the transcript of the cross-examination, Mr White did not depart from the evidence he had given in chief. It is not necessary to quote passages where he essentially repeated his evidence in chief at this trial. He was asked about why he had allowed the shares to be transferred to Mr Hozier and he said (Transcript of 1 November 2010 at page 139): Q. You are giving away valuable shares to Barrie Hozier in return for very little? A. I am sorry, you know, you do the lawyering, I will do the business, and the fact is I was giving it away for very, very good reason. Because I was getting some - and Ian Davis was of course to a certain extent right that I was splitting Barrie's loyalty, because rather than Barrie being the hound dog to Ian and doing essentially whatever was in Ian's best interest, suddenly he was doing what was in his own best interest which happened to be in my best interest, so to suggest it was just a giveaway, is ridiculous.

[245]I accept Mr White’s evidence as set out above, save that I have expressed some doubt about the suggestion that he accepted Mr Hozier’s statement that Mr Davis had promised Mr Hozier 5% of the shares in Stanelco and, further, I am doubtful whether Mr White really thought that there was compliance with the listing rules in 1996.

[246]I have already explained in detail why I have accepted the evidence that Mr Hurndell signed the St Tropez note on 16th August 2001.

[247]I now need to consider certain parts of Mr Hozier’s evidence where that evidence was not corroborated by Mr White (because Mr White was not involved with the matter in question).

[248]I accept Mr Hozier’s evidence that he suggested to David Hozier that David Hozier meet Mr Hurndell in St Tropez for the purpose of getting Mr Hurndell to sign an appropriate statement about Mr White’s interest in the shares in Stanelco. I also accept Mr Hozier’s evidence that he spoke to Mr Hurndell to pave the way for a meeting between David Hozier and Mr Hurndell in St Tropez. I accept that evidence because I have accepted the other evidence that the meeting did take place in St Tropez on 16th August 2001 and I consider it highly probable that the arrangements for this meeting would have been initiated by Mr Hozier rather than being initiated by David Hozier alone.

[249]I also need to consider the evidence as to the two stock transfer forms signed in blank by Mr Hurndell. Mr Hurndell accepts that the signatures on the stock transfer forms which were later dated 14th February 2002 are his signatures. No one suggests that Mr Hurndell signed forms which had been completed prior to him signing them. It follows that Mr Hurndell at some time or other did sign two blank stock transfer forms. There are various suggestions in the evidence as to the time at which and the circumstances in which Mr Hurndell signed blank stock transfer forms. The first suggestion was that Mr Hurndell signed “a couple” of stock transfer forms, alternatively only one stock transfer form, in or around December 1996. Mr Hurndell did not give any evidence which supported this possibility. Mr Hozier was not able to say that this had happened. He did say that Mr Davis asked Mr Hozier for a couple of stock transfer forms with a view to Mr Davis getting Mr Hurndell to sign them. If Mr Hurndell had signed two stock transfer forms at that time and those were the stock transfer forms which Mr Hozier later completed on 14th February 2002, then Mr Hurndell’s case would have to be that Mr Hozier stole those forms and misused them for his own purposes.

[250]The next time at which it is suggested that Mr Hurndell signed a stock transfer form is in connection with the alleged security given by Mr Hurndell for the loan in relation to the Metco shares. No one suggested any reason why Mr Hurndell would have signed two blank stock transfer forms for that purpose, as one would have sufficed. In any case, I simply do not accept the evidence that Mr Hurndell did any such thing in connection with the Metco transaction.

[251]The third suggestion as to Mr Hurndell placing his signature on blank stock transfer forms is that Mr Hurndell did so at the request of Mr Hozier when Mr Hurndell was visiting Oliver House in Barnet in late 2001. I find that Mr Hurndell did visit Oliver House from time to time and there was no evidence that there would have been any difficulty in him visiting at the time identified by Mr Hozier. Further, having found that Mr Hurndell signed the St Tropez note without any real opposition being raised by him, it seems to me quite likely that he would have been prepared to sign blank stock transfer forms if he had been asked by Mr Hozier in late 2001.

[252]Based on the above, the rival possibilities as to the time at which and the circumstances in which Mr Hurndell signed blank stock transfer forms appear to be these. Either he signed them at the request of Mr Davis in or around December 1996 and Mr Hozier stole those documents and misused them or Mr Hozier’s evidence about forms being signed in late 2001 is correct. Although I have exercised considerable caution, for the reasons given, about accepting Mr Hozier’s evidence and those reasons reflect badly on Mr Hozier, I am not persuaded that it is more probable than not that he stole stock transfer forms signed by Mr Hurndell. I conclude that it is more probable than not that his evidence on this point is true.

[253]I accept the evidence that Mr Hurndell told third parties that he owned shares in Stanelco. I also accept that some of these statements were made before February 2002 at which point Mr Hurndell did beneficially own 1.5 million shares in Stanelco. I find Mr Hurndell’s statements to third parties that he owned shares in Stanelco have no real probative value as to whether he did or did not own those shares beneficially.

My findings of fact

[254]In December 1996, Mr Davis on behalf of Stanelco wished to obtain a full market listing for Stanelco. Mr Davis knew that under the relevant listing rules, the shares held by the I N Davis (1991) Trust and the H White (1991) Trust were treated as the shares of Mr Davis and Mr White respectively. He knew that, between them, they held 80% of the issued share capital of Stanelco and that the listing rules required that the shares in their ownership be reduced to 75% (or below) of the issued share capital.

[255]Mr Davis wished to obtain a full market listing for Stanelco but did not wish to give away any of his shares. He wished to retain his 40% shareholding. He decided that the apparent reduction in 5% of the relevant shareholdings should come from the H White (1991) Trust. Mr Davis conceived the plan that 5% of the shares in Stanelco, held by the H White (1991) Trust, should be “parked” with Mr Hurndell.

[256]Mr Davis’ assessment was that parking shares with Mr Hurndell would give the appearance that the listing rules had been complied with. Mr Hurndell could be trusted not to reveal that he was only a nominee. Mr Hurndell had been used before to act as a nominee to further Mr Davis’ plans. Mr Davis would have considered the plan to be low risk as it was unlikely that anyone would ever find out that Mr Hurndell was only a nominee in relation to the shares.

[257]Mr Davis told Mr White in around January 1997 that the intention was to park 5% of the shares in Stanelco with Mr Hurndell as a nominee and that the shares in question would come from the shares held by the H White (1991) Trust. Mr White was agreeable to this being done.

[258]Mr White did not telephone Mr Hurndell in December 1996 to tell him that he was being given some 33 million shares in Stanelco. Further, Mr Davis did not telephone Mr Hurndell in December 1996 to tell him that had been given some 33 million shares. It is more probable than not that Mr Davis did telephone Mr Hurndell at some point to tell him about the 33 million shares in Stanelco. Mr Davis would have told Mr Hurndell the position as intended by Mr Davis and Mr White, i.e. that the shares were being parked with Mr Hurndell. Mr Davis may well not have used the legal language that Mr Hurndell was a nominee in relation to the shares. Mr Hurndell agreed to go along with these intentions.

[259]Following the appointment of April 1997 by the trustees, the shares in the H White (1991) Trust were held by Abacus (Nominees) Limited as a bare trustee for Abacus (C.I.) Limited who held them on trust for Mr White.

[260]No steps were taken to transfer any shares to Mr Hurndell until much later. He became the registered shareholder in relation to some 33 million shares on 6th February 2001. It was Mr Hozier who initiated the steps needed to achieve the transfer of shares to Mr Hurndell and his registration as a shareholder on 6th February 2001. In connection with these steps, the beneficial owner of the shares (Mr White) did not intend Mr Hurndell to become the beneficial owner of those shares; as before, Mr White intended Mr Hurndell to be a nominee in relation to those shares, holding the same for Mr White. When Mr Hozier wrote to Abacus (Nominees) Limited on 15th December 2000, requesting a transfer of the shares to Mr Hurndell, Mr Hozier did not intend that the beneficial interest in those shares, vested in Mr White, should pass to Mr Hurndell. Although it is not necessary for me to decide this point, I doubt if Mr Hozier had authority on behalf of Mr White to make a gift of shares, beneficially owned by Mr White, to Mr Hurndell. Further, there was no evidence to rebut the presumption of a resulting trust in favour of the transferor of the shares.

[261]In 2001, Mr White wished to give his beneficial interest in some 32 million of the 33 million shares to Mr Hozier so that Mr Hozier would become the owner of those shares and he could deal with them as he saw fit. At the same time, Mr White wished to give his beneficial interest in 1.5 million of the 33 million shares to Mr Hurndell.

[262]Mr White told Mr Hurndell of his intentions as to the 33 million shares. Mr Hurndell was in no position to, and did not seek to, oppose Mr White’s wishes. He was pleased that, for the first time, he was to become the beneficial owner of some shares.

[263]Mr Hurndell met David Hozier and Karen Hozier in St Tropez on 16th August 2001 and signed the St Tropez note.

[264]Later in 2001, Mr Hurndell was asked by Mr Hozier to sign two blank stock transfer forms for the purpose of allowing Mr Hozier to transfer some 32 million of the shares from Mr Hurndell to Mr Hozier, or as he should direct. Mr Hurndell signed the two blank stock transfer forms as requested.

[265]Mr Hozier used the two blank stock transfer forms to effect a transfer of an aggregate of some 32 million shares to Khaki and Finale, who became registered as the holders of those shares on 22nd February 2002.

The result of the above findings

[266]I will now describe the consequences of the above findings as regards the interests which Mr Hurndell held in the 33 million shares in Stanelco.

[267]The first time that Mr Hurndell acquired any interest in the 33 million shares in Stanelco was on 6th February 2001, when he acquired legal title to the shares by reason of his registration as the holder of those shares.

[268]Mr Hurndell did not acquire any beneficial interest in the 33 million shares prior to 6th February 2001. He would only have had a beneficial interest in the shares before registration on 6th February 2001 if there had been an enforceable contract prior to 6th February 2001 to transfer those shares to him. Prior to that date, there was no enforceable contract on the part of anyone to transfer those shares to Mr Hurndell. In particular, neither Mr White nor anyone with authority to act on his behalf ever made any agreement with Mr Hurndell to transfer those shares to Mr Hurndell beneficially. Mr White’s intentions at all times from January 1997 until 6th February 2001 (and thereafter until a later date in 2001) were that Mr Hurndell would hold the shares as nominee for Mr White.

[269]Mr Hurndell did not acquire a beneficial interest in those shares on 6th February 2001. The beneficial owner of the shares prior to 6th February 2001 (Mr White) did not intend to make any gift of his beneficial interest to Mr Hurndell and Mr Hurndell knew that. Further, there was no one with authority to make such a gift on behalf of Mr White and, in any event, there was no such person who intended to make such a gift of Mr White’s beneficial interest in the shares. Further, there was no evidence which would rebut the presumption of resulting trust in favour of the transferor of the shares. It is not relevant to any issue in this case whether Mr Hurndell held the shares:(1) for Abacus (Nominees) Limited as a bare trustee for Abacus (C.I.) Limited as a trustee for Mr White; or

(2) for Mr White directly. It is also not necessary to consider the effect of the stock transfer form executed by Abacus (Nominees) Limited in January 2001, as there was no relevant intention to make a gift at the time of the execution of that form.

[270]In 2001, Mr White told Mr Hurndell that he wished Mr Hurndell to transfer some 32 million shares to Mr Hozier, or as he might direct, and he wished Mr Hurndell to keep 1.5 million shares beneficially. On 16th August 2001, Mr Hurndell confirmed in writing that he held certain shares on the terms of the St Tropez note. On the true construction of that note, read in the context of the earlier conversation between Mr White and Mr Hurndell to the effect that Mr Hurndell could retain 1.5 million shares beneficially, the number of shares the subject of the St Tropez note were the total number of shares held by Mr Hurndell less 1.5 million shares.

[271]As Mr Hurndell was at all times after 6th February 2001 a nominee only in relation to the 32 million shares which were the subject of the St Tropez note and of the two transfers which were subsequently dated 14th February 2002, it is not necessary to decide what the effect of the St Tropez note and the effect of the execution by Mr Hurndell of the blank transfers would have been if Mr Hurndell had previously been the beneficial owner of those shares. It seems difficult to avoid the conclusion that (even if Mr Hurndell had previously been the beneficial owner of those shares) after he signed the St Tropez note and/or after he executed the blank stock transfer forms, he held some 32 million of the shares as a trustee rather than as beneficial owner.

[272]On 22nd February 2002, Khaki and Finale became the legal owners of some 32 million shares. It is not material to decide whether Khaki and Finale owned those shares beneficially or on trust for someone else and, if so, on what trusts.

[273]By 22nd February 2002 at the latest, Mr Hurndell became the legal and beneficial owner of 1.5 million shares in Stanelco. He later sold those shares and retained the proceeds of sale; those shares are not part of the shares which are disputed in these proceedings.

The overall result

[274]Mr Hurndell’s claim is based on the contention that he was the beneficial owner of the 32 million shares in dispute. I have held that he was never the beneficial owner of the shares in dispute.

[275]It follows that I will dismiss Mr Hurndell’s claim.