Andre & Anor v Clydesdale Bank Plc [2013] EWHC 169 (Ch)

[2013] EWHC 169 (Ch)Case No HC10C00948IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONCourt 16Venue Rolls BuildingDate 1 February 2013
Before
HIS HONOUR JUDGE HODGE QCSitting as a Judge of the High Court
Between
JEAN-CLAUDE PIERRE FERDINAND GUNTHER ANDRE JANE ANDREClaimantsCLYDESDALE BANK PLCDefendant
(Transcript of WordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Norman Palmer QC (Hon), Hugh O'Donoghue, Daniel Hubbard (Instructed by Enyo Law LLP) appeared for ClaimantAngharad Start and Tom De Vecchi (Instructed by Addleshaw Goddard LLP) appeared for Defendant31 January 2013 & 1 February 2013
Judgment

JUDGE HODGE QC:

[1]This judgment is divided into six chapters as follows: 1. Introduction. 2. The trial. 3. The evidence and my assessment of the witnesses. 4. The chronology of events. 5. The contents of the trunk; and 6. Issues of quantum. But I should make it clear, and also emphasise, at the outset that although this judgment is structured in this way for clarity of exposition, the contents of each separate chapter have informed the contents of the judgment as a whole. Chapter 1: Introduction[2]Had Sir Arthur Conan Doyle (or Anthony Horowitz) sought to adapt the subject matter of this litigation as a vehicle for another tale of the exploits of the great detective, he would probably have chosen to describe it as “The Case of the Missing Stamps”.[3]By a claim form issued in the Chancery Division of the High Court on 22 March 2010, the claimants, Baron Jean-Claude Pierre Ferdinand Gunther Andre and his wife Mrs Jane Andre, claim against Clydesdale Bank plc, as defendant, the delivery up of a trunk containing (amongst other things) covers with Swedish 3 skilling banco yellow stamps, or the value of the property, and damages for the loss of at least part of the contents of the trunk (including those covers) whilst in the care and custody of the defendant bank as bailee for reward.[4]In September of last year, the claimants made an application to amend the particulars of claim. That application came before Mr Justice Hildyard who, on 14 September 2012, ordered that, save for certain minor and non-contentious amendments, the application to amend the particulars of claim in the way set out in the draft should be adjourned to the trial judge; but that pending any decision by the trial judge, the parties were to prepare for trial on the basis of the proposed amendments to the statement of case. It is upon that basis that the trial has proceeded before me. The parties have taken the pragmatic, and sensible, view that my decision on whether to allow any, and if so which, of the proposed amendments to the particulars of claim is fact-sensitive, and so should be deferred until after the conclusion of the evidence and, in the event, this fact-finding judgment.[5]The claimants are represented before me by three counsel: Mr Norman Palmer QC (Hon), CBE, FSA, Mr Hugh O'Donoghue and Mr Daniel Hubbard. The defendant bank is represented by Ms Angharad Start (of counsel) leading Mr Tom De Vecchi (also of counsel).[6]In outline, the claimants' case is that on or about 12 December 1986, the claimants delivered a trunk to the bank for safekeeping. The trunk is said to have contained (amongst other things) a valuable collection of postage stamps and covers. (A cover is a folded letter which contains the address and any stamps on the back, rather like a modern day airmail letter.) This was the usual way of transmitting letters prior to the general adoption of the use of envelopes. The trunk, although not containing these covers, had been delivered to the bank for the purpose of safekeeping on two earlier occasions, in 1982 and 1984, and had been withdrawn for short periods of time by the claimants when they had required access to the trunk's then contents. It is said by the claimants that, following its final redelivery to the bank on 12 December 1986, the trunk had remained with the bank undisturbed from 1986 until 2004. The bank disputes that, and contends that the claimants had had access to the trunk on at least two occasions over the intervening 18 years or so. The claimants say that from 12 December 1986 until 25 March 2004, the claimants neither repossessed the trunk nor sought access to it at any time.[7]On 25 March 2004, Mr Andre discovered, on a visit to the bank made for the purpose of accessing the trunk, that an unidentified person or persons had broken into the trunk. He found that the securing devices had been removed or broken, and the contents had been heavily disordered. Certain items, principally some very valuable postage stamps and covers, were no longer in the trunk.[8]Within a few days Mr Andre had informed the police, who conducted more than one investigation into the disappearance of these items. Despite what are said to have been extensive efforts, over many years, pursued both by the claimants themselves and by a retrieval agent whom they had engaged at their expense, the missing items have not been recovered.[9]Insofar as the claimants are able to recall them, the items stolen from the trunk are described in the schedule to the amended particulars of claim, and in Mr Andre's witness statement. Such items are said to consist of individual or loose stamps, stamps attached to covers, and a Cartier cigarette lighter. The loose stamps and stamps attached to covers have been valued by Mr David Feldman, the claimants' stamp valuation expert and a leading philatelic auctioneer, based in Switzerland, at some GBP4.7 million or thereabouts, GBP3.7 million of which is said to be attributable to the six covers which bore a total of nine Treskilling Yellow stamps. Indeed, Mr Feldman, in a supplemental report, has expressed the belief that the price achieved at auction by the Treskilling Yellow covers could, in the event of a competitive auction room, be as much as 30 per cent higher than the valuation in his original report, thus increasing the value of the Treskilling Yellow covers from GBP3.7 million to GBP4.81 million.[10]The claimants also claim GBP600 in respect of the Cartier lighter, notwithstanding that it is said to have been of significant sentimental value to Mr Andre. They also claim aggravated damages, damages for distress, and interest on all sums found to be due to them, in each case to be assessed by the court.[11]That is the claimants' position. The bank's position is that this is a claim which is wholly lacking in substance. The bank points out that it is Mr Andre's case that, included amongst the items missing from the trunk on 25 March 2004, are said to be no less than nine examples of a rare, and valuable, Swedish stamp although the parties' experts are agreed that only one example of this stamp is known to be in existence. The bank objects that the claim is entirely reliant on Mr Andre's account of what he had put in the trunk, and taken out of it, over the course of 22 years, from 1982 to 2004. There is said to be no documentary evidence, contemporaneous or otherwise, that Mr and Mrs Andre had possession of these stamps at any time, or that they even existed.[12]The court is invited to the view that Mr Andre's account itself is deeply flawed and internally inconsistent. It is said that the court must satisfy itself, and Mr Andre bears the burden of proving, both(1) that the items allegedly missing actually existed, and were deposited with the bank, and(2) that the items were never removed from the trunk by Mr or Mrs Andre. The bank points out that separate bank and police investigations have found no evidence that any theft from the bank has taken place. The bank further contends that it has, in any event, not breached any duty it owed to the claimants, and that any loss is excluded by the terms of the contract between the parties and/or is too remote, as the bank had no knowledge of what was deposited with it. It is said that the claim is also time-barred. It is objected that the claim rests on a series of propositions which are not supported by the evidence, and which are inherently implausible, namely (1) that Mr Andre possessed a stamp collection which included nine examples of the rarest, most valuable, and most famous stamp in the world, of which only one is known to exist; (2) that despite being a stamp collector himself since childhood, Mr Andre was unaware of his collection's value, and placed it in a safety deposit facility for 18 years, with little or no insurance cover in place; and(3) that a theft of part of his collection, comprising the most valuable part, took place from a locked trunk in a secure deposit facility and yet (a) it was only that part of the collection that was stolen; (b) there is no evidence of any other theft of any items from the bank's safety deposit facility in the relevant period; and (c) the police, after investigating Mr Andre's claims, have found no evidence of a theft. The bank therefore invites the court to dismiss the claim. Chapter 2: The trial[13]The case has previously been listed for trial in March, and again in October, 2012. On each occasion, it has been adjourned because of the poor state of Mr Andre's health. Eventually it was relisted for trial at the commencement of this term in London.[14]In August of last year, the trial was estimated to last five days. At the end of September, that trial estimate was revised upwards to seven days. On 9 January 2013, just before the start of the trial, the claimants reiterated their seven days' time estimate, but with the addition of one day of pre-reading. The bank estimated the case at nine days, plus one day's pre-reading.[15]I undertook a day's pre-reading on Monday, 14 January 2013. The trial opened with oral submissions, preceded by my pre-reading of the skeleton arguments and other documents, on Tuesday, 15 January. Evidence was heard over the remaining three days of the first week of the trial (16 to 18 January) and the whole of the following week (Monday 21 to Friday 25 January). The court did not sit on Monday, 28 January for the court to read the LiveNote notes of all nine days of the trial, and for the parties' counsel to prepare written closing submissions.[16]At an early stage in the trial, I had suggested, given the volume of the likely legal submissions, and the fact that certain of them were likely to prove to be intensely fact-sensitive, that a sensible course might be for me to deliver a preliminary oral judgment setting out my findings of fact, and then to adjourn for submissions, written and then oral, on the legal consequences of those findings of fact. That course commended itself to the parties. The judgment that I now deliver is, therefore, confined to that fact-finding judgment.[17]The case has been provisionally set down for the hearing of oral legal submissions on Monday 11 and Tuesday 12 February in Manchester, leading (hopefully) to a final judgment, dealing with all outstanding matters, being handed down in London, presently on Tuesday, 19 February 2013. That was the course that had been agreed by the time the trial adjourned on Friday, 25 January, after the conclusion of all of the evidence.[18]On Tuesday, 29 January, the court sat from 10.00 until just before 5.30, with the customary break for lunch, to hear the parties' oral submissions on the facts. Those oral submissions are in addition to the written submissions I have received by way of closing. Chapter 3: The evidence and my assessment of the witnesses[19]The documentary evidence comprised over 2,800 pages of documents, contained within 12 files. I heard oral evidence over Days 2 to 9 of the trial.[20]For the claimants, I heard three witnesses of fact. The first was Mr Jean-Claude Andre, the first claimant. He is now 67 years of age. His witness statement is dated 6 July 2012.[21]Mr Andre gave evidence for some 18 hours in total, of which 17 hours was taken up by cross-examination by Ms Start. That evidence was heard over five court days, Days 2, 3, 4, 5 and 7, and was interrupted by the evidence of one of the bank's factual witnesses, Mr Robb, and by two of the expert witnesses, Dr Obermuller-Wilen for the claimants and Mr Arnrup for the bank.[22]In the course of closing, Mr Palmer referred me to the case of Jabir v HA Jordan & Co [2011] EWCA Civ 816 at paragraph 17. There Lord Justice Longmore observed that judges can often say little more than that having seen and heard a witness giving evidence, they believed him. When I asked Mr Palmer whether the converse also applied, he replied:
"Indubitably ... It's purely an option which I wouldn't have you be unmindful of, but of course it does cut both ways."
[23]See transcript Day 10, page 219.[24]I have to say at this point that, with regret, I find that I do not believe Mr Andre's evidence; but I fear that I should explain why in some detail.[25]Mr Andre suffered a major stroke in April of 2007. This, according to his evidence, has affected both his memory and his ability to think clearly and to articulate his thoughts succinctly and accurately. That was apparent throughout the course of his evidence, and was confirmed by his wife when she came to give evidence. I make due allowances for those difficulties. These are in addition to cancer and other medical conditions from which Mr Andre has suffered over the course of the last decade. I also bear in mind the interruptions to his evidence by the interposition of other witnesses, and the length and intensity of the probing cross-examination to which he was subjected by Ms Start.[26]However, having made all due allowances, I find that Mr Andre was thoroughly unreliable as a witness of fact, and hopelessly inaccurate in his recollection of events. I find his evidence to be conflicting, contradictory and shifting. He acknowledged that he had a terrible memory. Indeed, his wife was later to comment (at transcript Day 9, page 28) that Mr Andre had even confused the churches in which his late daughter, Louise, and his eldest son, Guillaume, had been christened.[27]At one point, on Day 4 of the trial (at page 162 of the transcript), I commented that the cross-examination of Mr Andre was like “wading through glue”. I fear that it was little more profitable. I have no doubt whatsoever that Mr Andre was not setting out deliberately to seek to mislead the court; but I am also satisfied that he has deluded himself, and I am afraid also his wife, about the existence of the Yellow 3 Treskilling covers.[28]There is a moment in Act 1 of Harold Pinter's play Old Times when Anna poignantly observes:
"There are some things one remembers even though they may never have happened. There are things I remember which may never have happened but as I recall them so they take place."
[29]In my judgment, it is that phenomenon, which operates to persuade a witness of the truth of a story that suits that witness, which has driven the evidence of Mr Andre, and also of Mrs Andre, in this sad case.[30]In the bank's written closing submissions, various examples were given of the difficulties that became apparent from Mr Andre's evidence which, in the bank's submission (which I accept) should lead the court not to accept his evidence. The following are merely examples illustrative of the unreliability of, or the contradictions in, Mr Andre's evidence.[31]First, Mr Andre’s evidence was that after its discovery on 25 March 2004 in the condition which he described, the trunk was left unlocked. I cannot accept that Mr Andre left the trunk unlocked on 25 March 2004. Mr Andre asserted in the witness box that the trunk, even now, could still not be locked; but he then found, when he sought to open the trunk, that he needed a key to do so. I have inspected the trunk in court, directed by both parties' counsel. The locking clasp can still be engaged, but the clasp cannot be double-locked with a key. It needs a key, once the clasp has been engaged, to unlock it. The unchallenged evidence of one of the bank's witnesses, who was present both on 25 March and when, later, on 30 March Mr and Mrs Andre sought again to obtain access to the inside of the trunk, that on that (later) day it could not be unlocked without a key. That is consistent with the present position as I observed it.[32]It was Mrs Shivas's unchallenged evidence that the reason why an internal examination of the trunk could not be undertaken on 30 March was because it was locked, and Mr Andre had not brought his key with him. It was, therefore, necessary for Mr and Mrs Andre to return home to obtain the key; and, in fact, they did not return to the bank until the following day, 31 March. In cross-examination, Mr Andre said that the evidence of Mrs Shivas that he had needed but had had no key on 30 March was a total fabrication: see transcript Day 7, pages 99 to 100. I reject that evidence. The trunk was lockable and needed a key to open it, although I accept that it had not been double-locked by turning the key within the locking clasp. That is why the claimants had to return to the bank on the following day, having been unable to open, and conduct an internal investigation of, the trunk on 30 March.[33]Secondly, there is the evidence about the letter, and accompanying list, of 1 April 2004. At paragraph 113 of his witness statement, Mr Andre had said that after the discovery of the violation of the trunk on 25 March, a friend of the Andres, Mr John Beveridge QC, had advised Mr Andre to write a list of the missing items; and, in accordance with that advice, Mr Andre had prepared a list of missing stamps and covers which he had sent to Mrs Shivas on 1 April 2004. It is exhibit JCA1, pages 75 to 76 (at pages 425 and 426 of bundle A2).[34]In the letter to Mrs Shivas of 1 April, Mr Andre wrote:
"Further to our meeting at the bank yesterday, having looked through the trunk with you, I can confirm that the silver items are all present in the trunk, although, as discussed, they had been unpacked and undisturbed."
[35]That statement later proved, according to Mr Andre, to be incorrect.[36]One of the items claimed in these proceedings is the loss of a silver cigarette lighter. In evidence, Mr Andre said that it was now apparent to him that a silver pill box had also gone missing from the trunk, although he was making no claim in respect of that. In April 2004, Mr Andre had also first asserted that a silver fruit bowl, or stand, was missing, and then he had said that it was not missing. I am satisfied that even as early as 1 April, Mr Andre was vague and uncertain about what was missing. The letter of 1 April went on to say that a great many of the stamps were missing, that the red stamp album had contained a large number of stamps of various denominations and from various different countries around the world, and that a large number of the stamps from the earliest dates were no longer in the album.[37]The most important Swedish stamps were said to be in a brown envelope on their original letters in one of the box files. Mr Andre enclosed a list of those stamps, together with a list of some of the British stamps that were in the album.[38]The accompanying list said that the stamps were on letters and were stored carefully in brown envelopes in the box files. It then went on to refer to 3 skilling orange stamps on letters, three to five letters with stamps. The above stamps were said to be on letters, one stamp on a letter and another letter with two stamps. There was then reference to various other denominations of skilling coloured stamps, totalling 26 to 40 stamped letters. There were then various UK stamps which were said to have been in the album. These were then identified. There were then said to be various Austrian stamps, including Coats of Arms yellow; and the list concluded:
"The album was very full of stamps from around the world, including Austria, Bayern, England and France, dating from around the mid-19th century."
[39]In paragraph 13 of his witness statement, Mr Andre said that the list, which was prepared in haste, recorded his broad recollection of the range of covers bearing the various denominations of Swedish skilling stamps which had been in the Swedish box file, and also the British stamps, and a few of the Austrian stamps which had been in the stock album.[40]He said that the list did not purport to be comprehensive and, other than those mentioned, did not refer to any individual stamps. He says that having subsequently focused in much greater depth on the covers and individual stamps which were stolen, particularly the Treskilling Yellows, he was able to produce a more comprehensive account of what was stolen, as recorded in the schedule to the particulars of claim. He says he supplied further detail in the evidence set out above and exhibited to his statement. It is quite clear that Mr Andre's recollection of the missing stamps has grown, and developed, over time.[41]What I find a little strange is that although the list records that the album had been very full of stamps from around the world, including France, no reference was made at that time to any individual missing French stamps. The reason I find that surprising is because amongst those stamps now said to be missing are two unused green 15 centime Ceres stamps, which are valued by Mr Feldman at GBP9,000 each, and two unused vermillion 1 franc Ceres stamps, which Mr Feldman values at GBP40,000 each.[42]The collection of those stamps had been described at paragraph 8 of Mr Andre's witness statement. He had there talked about going to the stamp market on the Rond-Point des Champs Elysees. He said that he was interested in first issue French stamps which comprised the majority of his collection. He never sold any stamps. He only bought or, on rare occasions, exchanged. He said that he bought and consulted French stamp catalogues, which informed his purchases, and he would also watch and learn from the dealers in the market. Later, at paragraph 100 of his witness statement, Mr Andre says about the Ceres stamps that he believes that 72 of those were stolen from the stock book. His recollection is that one whole page of the stock book was filled with Ceres stamps, most of which had derived from his own collection, and some of which had derived from the Beck Friis collection. He says that, as a young man, he had tried to purchase some examples of each stamp within a particular series in which he was interested, and he believed that his collection was divided out equally between each of the different types. As cancelled stamps were more common than unused stamps, and were therefore less expensive, the majority of the stamps which he had purchased had been cancelled. Whether he bought cancelled or unused stamps, he would always target the ones in the best condition.[43]I find it surprising that there should be that degree of recollection now about the missing French stamps, which were amongst the first which Mr Andre had collected, and yet he omitted any reference to them as missing in the letter and list of 1 April.[44]The list that accompanied the 1 April 2004 letter is very different from both a list later provided to the police (at F/1680) and also very different from the schedule to the amended particulars of claim.[45]The list at F/1680 differs from that contained within the amended schedule to the particulars of claim in two significant respects.[46]First, the list provided to the police refers to five covers with Yellow Treskilling stamps, whereas that which now comprises the amended schedule to the particulars of claim refers to six Yellow Treskilling covers.[47]Secondly, the second of the allegedly stolen Swedish covers on both lists, and the only one said to be a white cover, is recorded in the schedule provided to the police as including one 24 skilling banco (coloured red) whereas there is no reference to that in the schedule to the amended particulars of claim.[48]At one point in his cross-examination (at Day 7, pages 121 to 122) Mr Andre had said that the enumeration of the missing Yellow Treskillings had been “a work in progress”. That description, in my judgment, accurately sums up the totality of Mr Andre's evidence. Mr Andre was cross-examined about this on Day 3, pages 44 to 48 of the transcript. In answer to questions from the bench, Mr Andre said that the April 2004 list had been the start of a working process of concentrating on what Mr Andre could remember, when he could remember it, and put it down. When he was asked about it:
"... it would have taken me much, much too long and would have been impossible to sort of go through the mental process of bringing those pictures back in my mind, you know, photographic type of memory. And this was done in haste. This was, okay, what is the most important, and I knew at that stage that I may or may not have -- well, I had more to list, but it was most important to give an idea -- well, more than an idea; a guidance to both the bank and the police that we were dealing with something which was terribly, terribly, terribly important."
[49]I took up that observation, saying:
"... these were terribly, terribly, terribly important ... because these were the most valuable stamps in the world."
Mr Andre said: 50. I then went on: 51. "It looks there as though, at that time, you can't remember whether there were three or four or five letters." 52. Mr Andre answered: 53. "No, that is because -- yes, I did remember, but you know, being -- being cautious and being -- state down, put down on paper what I remembered was more important than sort of going to the details, which I've done -- which I did later on. I wanted to have, you know -- this is not something that could have been dealt with, obviously, in one page, like I did. It was something that needed much, much more work. But the important part of this action was to give something now so that everybody knows what we are dealing with, rather than the complete detailed list of everything. I mean, you can -- you can see, in there I give absolutely no detail of -- how can I explain that?"[50]That demonstrates the vagueness of Mr Andre's evidence.[51]Thirdly, in his witness statement Mr Andre had said that the police had concluded that there had been a theft of items from the trunk. Mr Andre was cross-examined about that on Day 3 at pages 54 to 61. At page 59, it was put to him that the police's conclusion in fact had been that there had been no theft. Mr Andre's response was:
"This is like a bomb to read."
[52]When asked whether he had read that part of the police report, which had clearly been provided to him, his answer was, at page 60:
"Well, if I read it, I obviously did not understand it, because to my understanding it was classified as a theft ..."
[53]Fourthly, in relation to the non-Treskilling Yellow Swedish covers that are listed as items 18 through to 23 of the amended schedule to the particulars of claim, Mr Andre gave conflicting, unclear and unsatisfactory evidence as to the change in description of the colour of the covers between the original description of “blue/white” and the amended description of “white” or “blue”.[54]Fifthly, at a number of points in his evidence Mr Andre repeated what I am satisfied is the false assertion that he had last taken the trunk out of the bank for his son's christening eleven years before the discovery of the violation of the trunk in March 2004.[55]Sixthly, Mr Andre accepted that the description of the police investigation alleged in paragraph 39 of the particulars of claim was misleading.[56]Seventhly, Mr Andre's evidence as to the composition and origin of the contents of the stock book was contradictory and conflicting. At page 72 of the transcript for Day 7, Mr Andre said that most of the contents of the stock book had been purchased by himself, which conflicted with what he had said at paragraph 102 of his witness statement. Indeed, during the course of closing submissions, there was a dialogue between the court and Mr Hubbard about this evidence around the morning break at transcript Day 10, pages 60 to 63.[57]Eighthly, in his witness statement (at paragraph 84) Mr Andre had given evidence about never having been urgently in need of cash and thus there being no question of selling any of the stamps or covers in order to raise cash. Mr Andre accepted in cross-examination that that paragraph was contradicted by his letter to Mr McCue of the bank of 1 February 1988 at D1, page 800. In that letter, addressing action which Mr Andre was proposing to take in order to reduce his personal overdraft, Mr Andre had said that he was writing to various foreign stamp specialists in order to get them to value his stamp collection. Mr Andre accepted (at Day 7, pages 57 to 60) that he had not done that, but that the contents of the letter contradicted what he had said at paragraph 84 of his witness statement.[58]Ninthly, in his proposed amended reply at paragraph 9(d), Mr Andre asserted that the claimants had not known of the sub-bailment to Securicor until they had received the bank's amended defence in November 2010. In cross-examination at Day 4, pages 65 to 66, 69 to 71, 76 to 78 and especially pages 80 to 82 of the transcript, Mr Andre acknowledged that he had known about involvement on the part of Securicor from the time he inspected the trunk on 25 March 2004.[59]Tenthly, Mr Andre exaggerated the values of the missing lighter, the family fruit bowl (which in the event proved not to have been missing), and also the stamps to the police; but he denied in his evidence to the court that he had done so, as I find that he did: see the transcript on Day 3 at pages 65 to 77 and page 82.[60]In her oral closing, Ms Start submitted that Mr Andre's evidence had been riddled with fatal inaccuracies, U-turns and varied approaches depending on who was asking the questions and where Mr Andre thought the question was going: see the transcript at Day 10, page 163. In the bank's written closing, it made a number of what I consider to be valid points about the deficiencies in Mr Andre's evidence in the case: see paragraphs 10 through to 15, and paragraphs 35 through to 54.[61]I do not propose to burden this judgment by enumerating those various matters and relating them one by one. It is sufficient to say that, having had the opportunity of observing Mr Andre in the witness box for 18 hours, and bearing fully in mind his health problems and the difficulties to which they have given rise, and also the fact that English is not his first language, which is French, I have to say that I simply cannot accept Mr Andre as a reliable witness of fact.[62]The claimants' second witness of fact was Mrs Andre, the second claimant. She is slightly younger than her husband, being 60 years of age, and is in apparent good health. Her witness statement is dated 6 July 2012 although there is also a paragraph, paragraph 4, of an earlier witness statement dated 1 March 2012 to which reference was made during the course of the trial and her evidence. In addition, during the course of the trial, Mrs Andre made a second very brief witness statement dated 21 January 2013. Mrs Andre gave evidence for about two and a quarter hours on the morning of Day 9 of the trial. Her evidence is addressed in the bank's written closing at paragraphs 64 to 69.[63]I am satisfied that Mrs Andre's recollections, such as they are, are principally reconstructed from analysis, rather than being comprised of actual recall on her part. Mrs Andre was careful and precise in the evidence she sought to give in the witness box. She was highly critical of the bank's perceived failure to do anything after the discovery of the theft from her husband's trunk.[64]I have no doubt that Mrs Andre has strong feelings, and is very angry, towards the bank. She is clearly neither an independent nor an impartial witness. She broke down in tears after about 35 minutes of her cross-examination and had to have a short, 4-minute break to enable her to compose herself, recorded in the transcript of Day 9 at page 30.[65]I am satisfied of two important matters:[66]First, that until she received the bank's custody record (which was sent by letter dated 16 October 2004 at D1, page 838, to the claimants' then solicitors, Lane & Partners) Mrs Andre, and also Mr Andre, believed that they had accessed the trunk in 1992 for the christening of their eldest son Guillaume: see transcript Day 9, pages 30 to 37. I am satisfied that there was no such access to the trunk at that time, contrary to the bank's submissions in the case. It follows that Mrs Andre's recollection in that regard was false.[67]Secondly, until after 23 February 2008, Mrs Andre had wrongly believed that she had drawn up a list, which she now says was drawn up in 1986, at the time when the trunk had first been deposited with the bank in 1982. In a document which was prepared for the police entitled "The burglary at the Clydesdale Bank" in February 2008 (at F/1683), Mrs Andre had referred to the fact that, at the time the trunk was first deposited with the bank's Victoria branch on 26 February 1982, the bank had refused to take a copy of the list of the contents that had been prepared by Mr Andre. I am satisfied, as a result of the evidence given on Day 9 at pages 61, 66, 68 to 69 and 71 to 74, that Mrs Andre, until at least February 2008, had thought that the list, which she now says was drawn up in 1986, had been drawn up in 1982, when the trunk had first been deposited with the bank. The reason why she changed her mind on that was because, when she considered the second page of the list (which is to be found at pages 471 and 472 of bundle A2), she noticed that the penultimate item referred to the date of Louise's christening on 7 December 1986, and therefore the list could not have predated 7 December 1986. But it is quite clear that that is something that Mrs Andre only discovered at a relatively late stage. The consequence of that is, as Ms Start pointed out in closing, that that lack of recollection about when the list had been drawn up contradicts Mrs Andre's own evidence, at paragraphs 68 to 69 of her witness statement, about how the list came to be drawn up.[68]I do not accept that Mrs Andre has any actual recollection, or can assist the court, about the drawing up of that list. I cannot accept her as a reliable or an accurate witness. In particular, I can attach little weight to her denial that the bank ever wrote to her about the closure of the Victoria branch.[69]It is accepted by Mrs Andre, and acknowledged by her husband, that she knows very little about stamps, and that she could not assist the court on specific stamps. I can therefore attach very little weight to her evidence about the contents of the stamp book.[70]The claimants' third and final witness of fact was Dr Alvin Ronlan. He is now 70 years of age; and he gave evidence from Florida via Skype, with a break in the Skype connection. His evidence was given on the afternoon of Day 9 and took about an hour and 25 minutes. His witness statement is dated 4 July 2012. Exhibited to it is a document headed "Affidavit written by Alvin Ronlan 22 June 2004" which (on the second page) is signed January 11, 2007, and was apparently signed before a notary on 22 January 2007.[71]In her oral closing, Ms Start submitted that one should be very careful of accepting what Dr Ronlan says he can specifically recall on oath. The reasons are addressed at paragraphs 70 to 75 of the bank's written closing submissions. The bank submits that Dr Ronlan's evidence of seeing the Yellow 3 Skillings should be given little or no weight. The bank submits that Dr Ronlan's recollection has been compromised by his contacts with Mr Andre, and later Dr Obermuller. But the bank also submits that, properly understood, his evidence undermines the notion that Mr Andre ever possessed the Yellow 3 Skilling covers. I was invited to re-read Dr Ronlan's evidence with some care, and that I have done.[72]Dr Ronlan was clear that he could give no evidence as to what was contained within the trunk: see Day 9, page 103. (All subsequent references to the transcript in relation to Dr Ronlan's evidence are to the transcript on Day 9.)[73]Dr Ronlan said that it was in the fall (or autumn) of 1980 or the spring of 1981 that he had helped Mr Andre to sort through the material. At page 104, he said that it was an “initial crude sorting” and that it was quite a small fraction of the documents that actually passed through his hands. Earlier, at page 103, he had said that it was “brief and quite superficial”. At page 104 he said that it was a total of two or three hours. At page 105 he said that he had never been involved in cataloguing, evaluating or detailed studies of any of the material. When asked about the greater apparent degree of recollection in his 2012 witness statement, as compared with his earlier June 2004 statement, Dr Ronlan said that the statement represented what had come to his mind right away without any effort. It was his immediate recollection of the events; but it was no more true than the later witness statement of 2012: see pages 105 and 111.[74]Dr Ronlan accepted that since 1980 and 1981 he had not thought about, or discussed, his involvement with Mr Andre until Mr Andre had rung him after the discovery of the alleged loss of the stamps in March 2004: see page 108. Dr Ronlan said that he had had very little contact with Mr Andre between 1998 and 2004: see page 112. At page 115, Dr Ronlan said that it was Mr Andre's call in March 2004 that had triggered Dr Ronlan's memory about the Yellow 3 Skilling stamps. Dr Ronlan also related a meeting with Mr Andre and his adviser, Mr Emmanuel de Montaigu, in Stockholm in 2007 when they had discussed the case: see pages 106 and 113.[75]Mr Andre was said to have described, but not in great detail, the kind of stamps that he had lost: see page 114.[76]During the course of evidence that was interrupted by a break in the Skype connection, Dr Ronlan said that Mr Andre had called him in spring 1981 and had said he had some “yellow stamps”, although on other occasions Dr Ronlan referred to them as “Yellow 3 Skilling stamps”, which Mr Andre had said he could not find in the catalogue. That is not consistent with what is said in the affidavit, as was acknowledged by Dr Ronlan at page 139. Nor is it consistent with what Mr Andre had said in his evidence at Day 7, pages 41 to 44.[77]Dr Ronlan said that he remembered that some of the yellow stamps were 3 skilling stamps. He had assumed that when Mr Andre had been referring to a stamp catalogue, it was the German catalogue that Dr Ronlan had seen on Mr Andre's table in the study. Dr Ronlan explained that he himself spoke German fairly well, and that he also read it.[78]Dr Ronlan's reaction to Mr Andre's reported discovery had been, "So what?": see pages 114 to 120. Dr Ronlan had not thought it was significant in any way. He had understood Mr Andre to be merely referring to some “yellow stamps”; and he, Dr Ronlan, had never made any association or connection between Mr Andre's collection and the 3 skilling banco, which Dr Ronlan knew to be the most famous, or at least the rarest, stamp in the world: see pages 119 to 123 and 132. As a boy, Dr Ronlan had collected stamps, although he acknowledged (consistently with Mr Andre's evidence) that Mr Andre had more expertise in stamps than Dr Ronlan himself. Dr Ronlan had not connected any of Mr Andre's stamps with what he knew to be the rarest stamp in the world.[79]It was Dr Ronlan's impression that the article in the Financial Times (to which I shall later make reference) was what had prompted Mr Andre to identify the stamps he said he had found in the Beck Friis archive as the Yellow Treskillings.[80]Dr Ronlan said that Mr Andre had never asked Dr Ronlan if he could help translate the entry in the German stamp catalogue. Nor had he ever met Mr Andre's late father-in-law.[81]In relation to the Beck Friis estate, Dr Ronlan, who had acted as some form of informal trustee for Mr Andre's daughter by his first marriage (Alexandra), said that the three estate transfers, involving the estates of Count Corfitz Beck Friis, Mr Andre's father-in-law Sigvard Beck Friis, and Mr Andre's brother-in-law Joachim, had been an extremely complicated affair; and he, Dr Ronlan, had not been really sure about how the devolution of the estates worked.[82]Dr Ronlan said (at page 134) that he had not seen a lot of yellow stamps. At 135 he said he had searched his memory, and remembered seeing Yellow 3 Skilling stamps. A lot of these stamps had had smeared cancellations and had been blurred and indistinct; although the only thing that had ruined them had been the cancellation stamp: see pages 135 to 136.[83]In re-examination, Dr Ronlan had said that the numbers on the stamps showing their denomination had been clear: see page 144.[84]In answer to questions from the bench, Dr Ronlan said that he had known of the rarity of the 3 skilling banco, which he described as such and not as the “Yellow” 3 Skilling banco, as a boy. He had thought that the stamps that Mr Andre had found, and described as "yellow stamps", had simply been faded: see pages 140 to 142.[85]In re-examination, Dr Ronlan said that his impression in March 2004 had been that Mr Andre was "totally convinced" that he had had these stamps in his possession, and that he was "extremely upset" because he found them to be missing: see page 143.[86]My analysis of Dr Ronlan's evidence, and the way it emerged, is that the bank is justified in its submission that Dr Ronlan's evidence, which is the only evidence corroborative of the claimants' case as to the existence of the Yellow Treskilling stamps, should be treated with considerable reserve; and in some respects that it undermines the claimants' case that Mr Andre ever possessed the Yellow 3 Skilling covers. I find the evidence to be not entirely internally consistent, and not to be entirely consistent with Mr Andre's own evidence. Dr Ronlan's evidence is impaired by(1) his limited involvement in the matter, and(2) the massive lapse of time between the events in 1980 to 1981 of which he speaks and the first occasion, in March 2004, when he was asked to recall those events. I am satisfied that he has no real actual recollection of any matters of detail; and that his evidence is, albeit unconsciously, and without imputing to him any wish to mislead the court, prompted by discussions he has had with Mr Andre.[87]The bank called three witnesses of fact. The first, whose evidence was interposed within that of Mr Andre, was Mr James Robb. His witness statement is dated 11 January 2013. He was part of the team, based at the bank's head office in Glasgow, responsible for managing the closure of the Victoria branch in 1997. He is currently unemployed, having recently been made redundant by the bank. Mr Palmer, in his closing submissions, submitted that Mr Robb’s evidence was largely irrelevant. I would agree with that assessment.[88]The salient parts of Mr Robb’s cross-examination involved evidence that when the bank moved or closed branches, items were not generally stored elsewhere overnight; and that Securicor were regarded as a “safe pair of hands” for moving valuable items.[89]At paragraph 21 of his witness statement, Mr Robb had concluded by saying that in the 200 branch moves he had managed, the instant case was the only incident of an alleged theft or loss of a customer's deposited items. In the light of a document which he was shown at E2, page 1431, Mr Robb qualified that evidence at page 116 of Day 3 of the transcript.[90]Mr Robb indicated that all files relating to branch closures would have been deleted as redundant some time after the relevant closure, and certainly in the case of the Victoria branch closure before March 2004. He also said that the bank would not have sought a customer's consent to move items in any letter communicating a branch closure to a customer: see page 128 of Day 3 of the transcript. He also gave evidence that there had been no routine checking by the bank of items taken into safe custody: see page 128 of the transcript of Day 3.[91]As I say, I was not greatly assisted by Mr Robb's evidence.[92]The bank's second witness of fact was Mr George Armstrong, who had made two witness statements dated 21 February 2002 and (much more recently) 14 January 2013. Mr Armstrong gave evidence for about an hour and 10 minutes, interrupted by lunch, on Day 8. Again, Mr Palmer submitted that Mr Armstrong's evidence was largely irrelevant; but he indicated that it was also potentially misleading.[93]Mr Armstrong had only worked at branches within the Glasgow area, and he gave evidence about the bank's safe custody procedures. He said that letters informing customers of a branch closure were sent out in advance, and before objects were moved, and had not required any reply: see page 111 of the transcript of Day 8. Mr Palmer, in cross-examination, challenged Mr Armstrong on the footing that his evidence that letters informing customers of a branch closure were sent out in advance was inconsistent with what Mr Armstrong had said at paragraph 19 of his witness statement.[94]There, Mr Armstrong had said that it was his understanding that the defendant contacted the customers centrally to inform them that the safe custody items “had been moved”; in other words, after the event.[95]I accept Mr Armstrong's explanation that he had not expressed himself as he had intended to do. Nevertheless, whilst I accept Mr Armstrong's evidence that letters informing customers of a branch closure were sent out in advance, and not after the event, the error in the way in which his witness statement was expressed does not engender great confidence in the accuracy of Mr Armstrong's evidence generally. But that does not really matter because of Mr Armstrong's limited knowledge, and limited ability to give evidence on relevant matters of fact. Indeed, Mr Armstrong acknowledged (at pages 118 to 119 of the transcript of Day 8) that he had no knowledge whether items moved by Securicor had gone straight from the closing branch to the transferee branch. At page 125 and page 131, Mr Armstrong acknowledged that he had had no personal knowledge of the trunk, and could only speak from his own experience.[96]At the end of his evidence, I questioned Mr Armstrong about the contents of paragraph 324 of the bank's safe custody manual (at F/1484). That section, relating to temporary access, had indicated that where items were held in a package or a box, a safe custody, temporary access to packages form must be completed when the customer had finished accessing the package or locked box in question. Mr[97]Armstrong's evidence was that that was something that had been introduced at some stage, although he could not put a date on it. It was obviously pre-2006; but Mr Armstrong could not say precisely when. He said:
"I couldn't put a date on it. I would say ten, twelve years ago. I'm not sure."
[98]When I specifically asked whether it might have come in before March 2004, Mr Armstrong replied: "I don't know."[99]The bank's third, and final, witness of fact was Mrs Judith Shivas. She was the area manager who had been responsible for overseeing the Piccadilly branch during the period 2002 to 2005. She is no longer employed by the bank, having retired in June of 2005. Mrs Shivas's witness statement is dated January 2012; and she gave evidence for just over two hours on the afternoon of Day 8. Whilst making absolutely no imputation upon her honesty, Mr Palmer submitted, in his closing address, that Mrs Shivas had given evidence that was in parts contradictory, in parts demonstrably false, and in parts highly surprising.[100]I found Mrs Shivas to be precise and exact in her evidence. I found her to be a patently honest, but not an entirely reliable witness, to the extent that she was now seeking (or indeed in her witness statement seeking) to recall the events of March 2004 and shortly thereafter. I bear in mind that her witness statement was made before the proposed amendments to the particulars of claim, and thus before certain matters had been raised regarding the bank's conduct of the investigation of the alleged theft. I also bear in mind the point made by Mrs Shivas in her witness statement itself that she had made the statement without seeing the earlier statement she had made to the police.[101]I am satisfied that in certain respects Mrs Shivas's present recollection is not entirely reliable. She referred to Mrs Andre as having been present at the time the trunk was first shown to Mr Andre on 25 March 2004: see transcript Day 8 at pages 142 and 143. That is clearly a mistake, and was pointed out by me at pages 150 to 151 of the transcript. It was put to Mrs Shivas by Mr Palmer that Mrs Andre had not been there on 24 March and Mrs Shivas said:
"I can't remember, I'm assuming she was."
[102]I intervened to say:
"I should just mention that I have noted that early in her evidence Mrs Shivas twice referred to Mr and Mrs Andre as being there on that day."
[103]Mrs Shivas's answer was:
"To me they always came as a pair, but, you know, I couldn't swear that she was there that first day."
[104]I am satisfied that Mrs Shivas was mistaken in her assumption that Mrs Andre was there on 25 March. It is common ground that she was not; and she is not recorded as having been present in Mrs Shivas's contemporary notes. I am also satisfied that Mrs Shivas was mistaken in her present recollection that she saw a chain with the trunk (although not attached to it) on 25 March. Mrs Shivas had not referred to the chain in her contemporaneous email or notes, or in her later statement to the police made in May 2008. I am satisfied that her present recollection of there being a chain is mistaken.[105]On the whole, however, I am satisfied that Mrs Shivas's contemporary notes are accurate; and, indeed, she was not challenged seriously as to their detail in cross-examination. The notes can be found at exhibit JAS2, at page 278 of bundle A2. That is an email sent at just after 7.00 on the evening of 25 March 2004. The only aspect of that email on which Mrs Shivas was really challenged was her recollection that Mr Andre had then locked the trunk with a key he had in his possession. I am not sure that that is an entirely accurate description of what took place. I am satisfied, on the evidence, and having regard to the condition of the trunk, that what happened was that the locking clasp was put into place, that Mr Andre did have the key with him, but I am not satisfied that he actually succeeded in double-locking the clasp in place. The clasp was locked by being engaged, but it was not double-locked.[106]The other contemporaneous notes are to be found at exhibit JAS1, which record a series of meetings with Mr Andre. I am satisfied, on the evidence, that this was sent through to the bank's head office on 6 April 2004: see bundle E1, page 1154. I also accept Mrs Shivas's evidence that this was effectively the product of a running note, made contemporaneously with the several meetings to which it relates. I am satisfied that this is an accurate record of what Mrs Shivas was being told at the time. I also accept what is recorded at page 275, that at the attendance by Mr and Mrs Andre at the branch on 30 March to catalogue the contents of the trunk in order to give a more specific list of missing items, Mr Andre discovered that he had not brought the key to the trunk with him and, therefore, he could not open it.[107]It is that evidence (which I accept) that leads me to conclude that the trunk had been locked, although not double-locked, after Mr Andre's discovery of the violation of the trunk on 25 March. Had the trunk not been locked, there would have been no impediment to undertaking the cataloguing of the contents of the trunk, which was the purpose of the visit of 30 March; and there would have been no need for Mr and Mrs Andre to return to the branch on the following day, 31 March, to undertake that task.[108]Mrs Shivas gave evidence that she had not examined the trunk or its lock when she came into the room and that the lid was already open. She could not say whether it appeared to have been forced. The Claimants' counsel challenged that part of Mrs Shivas's evidence as being surprising; but I am satisfied that Mrs Shivas took the view that her subordinate, the branch manager (Mr David Helsby), had already undertaken an inspection of the trunk.[109]I accept Mrs Shivas's evidence that she never saw a padlock; but I reject her evidence that she saw a chain lying on the floor for the reasons I have already given.[110]Mrs Shivas said that on 25 March, Mr Andre had never referred to specific numbers of stamps; and I accept her evidence on that point. She very fairly said that Mr Andre had seemed extremely upset, and that his complaint appeared to be genuine.[111]When she was taken to the document at E2/1431, reporting a number of missing items, Mrs Shivas fairly acknowledged that that document shook her faith in the dual key system. On analysis, I am not sure that the document is as helpful to the claimants as they would wish. It records very few actual complaints of missing items. What it does record is a substantial number of items being said to be missing; but that may merely be indicative of defects in the bank's system of recording items when they were deposited with the bank for safe custody and later removed from its safe custody.[112]But nevertheless, it does give rise to some cause for concern about the integrity of the bank's safe custody mechanisms.[113]Mrs Shivas remembered something about trying to get photographs taken of the contents of the trunk, but she could not recall being there when they were taken; and, unfortunately, any such photographs are no longer available.[114]As I have already indicated, Mrs Shivas was not challenged about her evidence to the effect that Mr Andre did not have the key to the trunk with him on 30 March.[115]Mrs Shivas had made a handwritten list of the contents of the trunk that was subsequently typed up. I am satisfied that the original handwritten list was disposed of, and that the typed-up version was an exact copy of the list that was later signed on 10 June 2004, with the addition of a couple of items at the top of the second page which Mrs Shivas said (and I accept) had been written in with her own hand. The typed list is that exhibited to Mrs Shivas's witness statement as exhibit JAS4 (at pages 283 and 284 of trial bundle A2).[116]Mrs Shivas acknowledged that if the trunk had been outside the caged area within the bank's vaults, it would only have been under the dual control of the keys to the bank vault itself, and not under the additional security of two padlocks leading to the caged areas. She accepted that that would reduce the level of security. She also made it clear that she had never seen where the trunk had been originally found.[117]That concludes the evidence of fact in the case.[118]Three expert witnesses were called, two for the claimants and one for the bank. By an order made on 2 February 2011, Master Moncaster had permitted each party to instruct one expert, and to adduce expert evidence in relation to the following issues:(a) stamp history, specifically expert evidence in relation to the history of the Yellow Treskilling stamp, including the number issued, the number in circulation, records of ownership and sales of such stamps; and(b) stamp valuation, specifically to value the items allegedly removed from the claimants' trunk and listed in the schedule to the particulars of claim. By a later order of Master Marsh, dated 6 August 2012, the claimant was permitted to instruct two experts, one to deal with stamp history and the other to deal with stamp valuation.[119]The claimants' expert on stamp history was Dr Helena Obermuller-Wilen. She had made a written report, signed on 13 August 2012. She gave evidence for just over five hours on Days 5 and 6. Part of her evidence on Day 5 was given through a Swedish interpreter, who was present throughout her evidence on Day 5. Many of the questions were understood by Dr Obermuller in English and were answered in that language.[120]Dr Obermuller is an expert on the authenticity and history of Swedish stamps. She is well qualified. Indeed, Mr Arnrup, the bank's stamp expert, acknowledged that Dr Obermuller was “very good”. He said that sometimes she changed her mind, which was not normal. I took that to be a positive factor, indicating that she did not have a closed mind. And Mr Arnrup also indicated that he would recommend Dr Obermuller as an expert on classic Swedish material. As I say, Dr Obermuller was well qualified and competent; and I find that she was non-partisan. I reject the suggestion that she had a tendency to seek to argue the claimants' case, rather than providing independent evidence. That is, to my mind, exemplified by the fact that she had mentioned the article by Mats Ingers, and had volunteered the fact that she actually had a copy, which she provided to the court, in her suitcase. I accept her evidence that the article was written in 2011, and had only come to her notice after she had signed off her expert report. She should perhaps have submitted a supplemental report, addressing the content and implications of the article; but in that she was not alone. Mr Arnrup made no reference to the Mats Ingers article in his evidence either.[121]Dr Obermuller addressed only the early Swedish stamps, and specifically the Treskilling Yellow stamps. She provided no valuation evidence. It was she who mentioned the view of another expert, Mats Ingers, who had thought that up to 20 further Yellow Treskilling stamps might have survived. Insofar as Swedish stamps are concerned, I accept that Dr Obermuller has more expertise than Mr Arnrup.[122]A number of matters were common ground between the stamp experts. The only known Treskilling Yellow was discovered in 1885 or 1886. The Treskilling stamp series was the first Swedish series of stamps, and they were printed between 1855 and the end of July 1858. The series came to an end when the new ore currency, and thus the new ore stamps, were introduced on 1 July 1858. It was common ground that there was a theoretical possibility that there might be additional surviving Yellow 3 Skilling stamps. It was common ground that the one known Yellow Treskilling stamp had come into existence during the course of the seventh, and penultimate, delivery of skilling stamps. It was common ground that there was a survival rate for skilling stamps of about 10 per cent. It was common ground that the postage rates on the six covers alleged by Mr Andre suggested that the post office must, if those covers existed, have mistaken the 3 skilling stamps for 8 skilling stamps. It was common ground that if Mr Andre was right, that mistake must have been made on no less than six occasions. It was common ground that the total value of the stamps on each cover asserted by Mr Andre was high, but that it did not represent an impossible rate of postage. Finally, it was common ground that the known Yellow Treskilling had been cancelled in Nya Kopparberget on 13 July 1857, before the printing of the eighth delivery of stamps had occurred. According to Dr Obermuller, Nya Kopparberget is about 150 to 200 kilometres from Uppsala. It was Dr Obermuller’s view that, generally, one would have purchased the stamps at the location where they had been cancelled.[123]Dr Obermuller said -- and it was not challenged by Mr Arnrup -- that the known Yellow 3 Skilling stamp had been printed at the end of the printing of the seventh delivery, because the composition of the colour of the stamps had changed. It seems to me that the significance of that should not be overstated. Although the known Yellow Treskilling was clearly printed at the end of the printing of the seventh delivery, one does not know for how long the cliche in question had been situated within the plate for the printing of the 8 skilling stamps.[124]Dr Obermuller accepted that the conjunction of two Yellow Treskilling stamps was a unique allegation, a possibility that had never been alleged before: see the transcript of Day 5, pages 110 to 111. She accepted that it was incredible, an incredible coincidence, if nine -- although I think it should only have been six, given that there are only six covers -- people should have gone to Uppsala and had bought nine incorrectly coloured 8 skilling stamps, and had then used them all in letters to Count Corfitz Beck Friis. She acknowledged that the chances of that were infinitesimally small: see the transcript on Day 5, pages 114 to 127.[125]Dr Obermuller said that the print run of the 8 skilling stamp had been 250,000. Therefore, given that there were two plates, there were potentially 1,250 defective stamps if there was only one defective cliche and two separate plates (of 100 stamps per plate). Therefore one would have expected 125 stamps to have survived if the defective cliche had been in place throughout the print run, although that number would be less if the defective cliche had only been placed within a plate at the end of the print run.[126]Dr Obermuller said that the Swedish Facit and German Michel catalogues in the 1970s all made it clear that there was only one known Yellow Treskilling.[127]In re-examination, Dr Obermuller analysed the contents of both the Facit and the Michel catalogue entries: see the transcript of Day 6, pages 14 to 16 for Facit and 18 to 21 for Michel.[128]Dr Obermuller's opinion was that further Yellow Treskillings might exist.[129]The claimants' second expert witness was Mr David Feldman.He is an auctioneer of stamps who gave evidence from Bangkok via Skype on Day 8 of the trial for about two and a half hours, although that evidence was interrupted by several breaks in the Skype connection. Mr Feldman's reports were dated 8 August 2012 and 9 January 2013.[130]In her oral closing, Ms Start disclaimed any suggestion that Mr Feldman had been “partial”, but, nevertheless, she asserted that he was not “properly independent”.[131]Mr Feldman (at transcript Day 8, page 11) agreed that the stamp collection which Mr Andre was asserting that he had assembled would be “extraordinary”. Mr Arnrup in cross-examination had already described the asserted collection (at Day 6, page 64) as being “very sensational” if one had put together such a stock book with such rarities. That was despite the fact that Mr Arnrup, who had examined the remaining stamps in the stock book, was of the view that they were largely worthless.[132]Mr Feldman indicated that he had been instructed to value the Yellow Treskillings as being in “very fine condition”: see paragraph 10 of his witness statement and Day 8, page 38 of the transcript.[133]Mr Feldman acknowledged that he had no idea whether the lost stamps were ones that had been repaired, or were reprints. He said that he had assumed in his expert report that they had all come from an archive collected at the time the stamps had been issued. That was not entirely the evidence given by Mr Andre, who had said that some of them had come from the Beck Friis collection, but others represented stamps which he himself had collected in his youth.[134]Mr Feldman said that the existing known Yellow Treskilling was of poor quality because of the cancellation, and that merited a 10 to 20 per cent deduction in its value. He indicated that the last asserted sale of the Yellow Treskilling in 2010 had been effected without the parties knowing about Mr Andre's claims to have found any further Yellow Treskillings.[135]In answer to a question from the bench, Mr Feldman made it clear that his valuations included the auction house's commission, or buyer's premium, of 15 per cent.[136]Mr Feldman was clear that the one known Yellow Treskilling was “always one of the greatest and most famous stamps in the world”: see transcript Day 8, page 88.[137]He had assumed that the non-Yellow Treskilling stamps were in the best condition that one could expect, bearing in mind their age.[138]He gave evidence that, contrary to the views of Mr Arnrup, the number of non-yellow stamps asserted by Mr Andre would not operate to depress their individual values because of the numbers of such stamps already available in the market. On that point, I accept Mr Feldman's views in contrast to those of Mr Arnrup.[139]Mr Feldman's valuations were, in summary, as follows:[140]So far as the one known Yellow Treskilling is concerned, he was of opinion that it was worth now, and had been worth in 2004, 1.5 million euros, equating (at present rates of exchange) to something in the order of GBP1.2 million. That can be contrasted with Mr Arnrup's valuation of GBP950,000. For the nine Yellow Treskillings on their six covers spoken to by Mr Andre, Mr Feldman valued them in total at GBP3.7 million, whereas Mr Arnrup put a maximum value on them of GBP1.5 million.[141]Mr Feldman valued the other Swedish covers asserted by Mr Andre -- items 18 through to 24 -- at GBP32,600, and the Great British covers asserted by Mr Andre -- items 25 to 28 -- at GBP11,250. Mr Feldman valued the loose stamps, at items 29 through to 42, in the total sum of GBP725,497.[142]In his addendum to his original report, Mr Feldman indicated that the value of the Treskilling Yellows, in a competitive and exciting auction room, could increase by as much as 30%, raising the value from GBP3.7 million to GBP4.81 million.[143]Those figures, of course, all include the 15 per cent buyer's premium, and, in terms of the value to a seller, would fall to be reduced accordingly.[144]In his supplemental report, based upon the latest information, Mr Arnrup did not disagree with Mr Feldman's individual valuations of the non-Yellow Treskilling Swedish covers, the British covers, and the loose stamps, which, in total, amounted to GBP769,347, provided that these were stamps of very fine quality, without any damage, and were all original stamps and not reprints.[145]The bank's expert was Mr Claes Arnrup. He is a dealer in stamps rather than a scientist such as Dr Obermuller. He had made two reports dated 22 February and 18 September 2012, the former being based on information which, in his later report, Mr Arnrup acknowledged required some updating and thus qualification. Mr Arnrup gave evidence for about two hours and 40 minutes, interrupted by lunch, on Day 6.[146]Mr Hubbard in his closing submissions submitted that Mr Arnrup had overreached himself by opining on questions of likelihood and probability. He was also said to have made a series of unjustified assumptions about the quality of the stamps, and to have speculated that some of these might be copies.[147]Mr Hubbard invited the court to treat Mr Arnrup's evidence with scepticism. He was said to have displayed partiality, being determined to marshal every argument he could find in the bank's favour, and demonstrating what was said to be a very unhelpful tendency to speculate where he thought such might help the bank's case.[148]I reject these criticisms as unjustified. In my judgment, Mr Arnrup was acting perfectly appropriately in seeking to assist the court on the likelihood of there being the number and composition of Yellow Treskillings asserted by Mr Andre, bearing in mind the circumstances in which Mr Andre said that they had come into his possession.[149]Mr Arnrup's criticisms of the quality of the stamps and their originality seem to me to be justified by his inspection, unique I think to himself, of the stamps that had remained in the stock book.[150]Mr Arnrup was positive in his endorsement of the qualifications of Dr Obermuller. Mr Arnrup acknowledged the possibility of the existence of a further, or further, Yellow Treskillings, and he accepted the possibility that two Yellow Treskillings had been printed side by side: see the transcript of Day 6, page 123.[151]His objection to the possible existence of the stamps asserted by Mr Andre was founded upon the number of covers which Mr Andre said that he had found.[152]Mr Arnrup also gave evidence, both at paragraph 102 of his first report and at Day 6, page 103 of the transcript, that any collector in the Beck Friis family, building up a collection of stamps, would have been likely to have looked in the family archives to see what stamps could be found there.[153]Mr Arnrup gave evidence that the stamps remaining in the stock book had not been organised by a knowledgeable collector. Many had been of poor quality and of little value, and some had been very common stamps which one would not expect to have come from a quality collector: see transcript Day 6, page 152.[154]Mr Arnrup was criticised by Mr Hubbard for not having identified his valuation criteria in his report; but I am satisfied that, whilst not articulating them, Mr Arnrup had had regard to appropriate valuation considerations.[155]The bank's closing submissions on the state of the expert evidence are to be found at paragraphs 136 through to 151 of their closing written submissions.[156]I accept the submission that the values of any Yellow Treskilling covers would vary according to the alleged constituency of the non-Yellow Treskilling stamps. I accept that the quality of the stamps contained in the stock book which remained in the trunk was poor, and that the remaining stamps were relatively worthless. It is likely that some, at least, of any missing stamps were not of fine to very fine quality. It is not possible to say on the evidence whether the missing stamps were reprints or originals, whether they had repairs, and what condition they were in, given that the evidence of those matters comes from Mr Andre, and Mr Andre alone, and I do not regard him as a reliable witness.[157]On the state of the expert valuation evidence, I see no reason to reject Mr Feldman's evidence that the present value, unchanged from 2004, of the known Yellow Treskilling is in the order of GBP1.2 million. I do not accept Mr Arnrup's criticisms of that valuation. But I am satisfied that Mr Feldman has considerably understated the impact of the discovery of a further nine Yellow Treskillings on the value of Yellow Treskillings in general. On that, I prefer Mr Arnrup's evidence.[158]I do not accept the additional premium to which Mr Feldman speaks as a possibility in a competitive auction room.[159]Therefore, if it were necessary for me to do so, I would be inclined to ascribe a value to the asserted nine Yellow Treskillings in excess of the value placed upon them by Mr Arnrup of 1.5 million, but considerably less than the value placed upon them by Mr Feldman because (1) his valuations assume a 15 per cent premium for the auctioneer, but (2), more significantly, Mr Feldman has considerably underestimated, in my judgment, the deleterious effect that the discovery of the fact that there are further Yellow Treskillings would have upon the value of the rarest stamp in the world.[160]The value that attaches to the one known Yellow Treskilling derives from the fact that it is unique, and its documented provenance, passing through the hands of many renowned collectors, including (during the Second World War) King Caroll II of Romania, over the years since its discovery in 1885 or 1886. I simply cannot accept that there would be the same interest in, and value attached to, nine Yellow Treskillings in the way asserted by Mr Feldman.[161]In their written closing submissions (at paragraph 146) the bank maintains that the sales strategy envisaged by Mr Feldman to artificially - as they say - inflate the price of the Yellow 3 Skilling covers, if they were to be sold, is inappropriate, as potential buyers would not be told that nine further examples existed. In his report, Mr Feldman had suggested a methodology involving "offering only one at a time to the market and remaining discreet about the others to potential buyers". Under cross-examination, Mr Feldman did explain away that suggestion by saying that he meant that potential buyers would be told that there were nine further examples, but that they would not be told when other examples would come to the market: see Day 8, page 68. The bank submits that this is not what Mr Feldman was asserting in his report. Whether or not Mr Feldman has changed his evidence in this regard is not something upon which I can reach a final conclusion. All I can say is that I am not satisfied that his revised approach and methodology would achieve sales figures along the lines that he indicates.[162]The knowledge that the rarest stamp in the world was only one of at least ten, with the consequent possibility that there might be others still to surface, when none had come to the knowledge of the stamp collecting community, or the public in general, between 1885 or 1886 and 2004 would, in my judgment, seriously dent the market for the Yellow Treskillings found by Mr Andre.[163]If I have to try and pluck a figure from the two experts' reports for the Yellow Treskilling covers asserted by Mr Andre, I would adopt a figure in the region of GBP1.8 to GBP2 million; but that is not the product of any scientific analysis, nor inevitably, and on the expert evidence (where a degree of latitude was acknowledged by both experts) could it hope to be.[164]So that concludes my review of the evidence that was given at trial. Chapter 4: The chronology of events[165]The bank produced a helpful, extensive 36-page chronology upon which this section of my judgment is based.[166]The first Swedish stamps were issued on 1 July 1855. They were denominated in skillings, the then currency. They continued in production until 30 June 1858. On 1 July 1858, the new ore currency was introduced in Sweden and a range of stamps, denominated in ores, replaced those previously denominated in skillings including both the 3 and the 8 skilling stamps. By then, the one known existing Yellow 3 Skilling banco had come into existence. It was cancelled at the post office in Nya Kopparberget on 13 July 1857. Its existence only became known in about 1885 or 1886 when it was discovered and sold by a 14-year-old schoolboy, Georg Backman, to a dealer in Stockholm. It was exhibited for the first time in 1890. During the mid-1930s and 1940s, it was owned by King Caroll II of Romania. It has a documented provenance from 1886, although a little mystery surrounds the actual ownership in recent years. In May 2010, Mr Feldman exhibited the known Yellow Treskilling at the London Philatelic Exhibition at the Business Design Centre in Islington.[167]In December 1968 or thereabouts, Mr Andre, then in his early 20s, married Christina Beck Friis, known as Kina. Her father was Sigvard Beck Friis, the younger brother of the head of Kina's family, Count Corfitz Beck Friis. Count Corfitz Beck Friis lived in a country house in Sweden known as Borringe Kloster which had belonged to the Beck Friis family for more than a century. Kina's father, Sigvard Beck Friis, had an apartment in that house.[168]At some time before 1 June 1974, Count Corfitz Beck Friis died. The heir (or ultimate heir) and last surviving male member of the family was Sigvard's son, Joachim Beck Friis. He was, of course, the brother of Kina. He died on 1 June 1974. His uncle and Kina's father, Sigvard Beck Friis, survived until 12 June 1976.[169]Sigvard's heirs were his two sisters, Kina -- Mr Andre's then wife -- and Elisabeth; his niece Alexandra, the daughter of Mr Andre with Kina; and Joachim's wife, Tuve Beck Friis. It is, I think, common ground that they inherited the Beck Friis family estate; but what is unclear is whether they had done so directly on the death of Joachim on 1 June 1974 or whether the estate had, for an interval of some two years, passed through the hands of Sigvard.[170]The provenance of the alleged contents of the trunk, in the form of the alleged covers and certain of the contents of the stamp book, is addressed at paragraphs 76 through to 80 of the bank's written closing submissions.[171]In his witness statement (at paragraph 19), Mr Andre had said that the line of inheritance had passed from Count Corfitz Beck Friis to Joachim and then to the four female members of the Beck Friis family; although (at paragraph 20) he added that, on Joachim's death, his father-in-law, Sigvard, had become the head of the family. Mr Andre contradicted himself in his evidence as to the devolution of the estate in the course of his cross-examination. In part, that was the result of what may have been an unhelpful intervention and question from the bench.[172]I must confess, in the absence of any expert evidence as to the law of Swedish succession, to finding difficulty in understanding how, during the lifetime of Mr Andre's father-in-law, Sigvard, Sigvard's son, Joachim, could have inherited the estate from Sigvard's brother, Count Corfitz. I would have expected the estate to have had to pass first to Sigvard and then to the heirs of Joachim. In other words, I would have expected the estate to have had to pass through the next male in line, who would have been Sigvard, before it could have passed to Joachim's heirs.[173]That analysis seems to me to be more consistent with the translated terms of the 29 November 1977 document at E1/1118 which, according to the translation, provides that Kina thereby left as a gift to her husband, Mr Andre, all Kina's share in the estate after her father, Sigvard.[174]I acknowledge that my expectation is inconsistent with Mr Andre's evidence, at least in his witness statement; but Mr Andre did contradict himself in his oral evidence, and Mr Andre's evidence is inherently unreliable. Dr Ronlan, who might have been expected to have been able to assist, could not really do so, perhaps understandably with the passage of time.[175]On the state of the evidence, I do not find it possible to determine in whom the legal title to the asserted covers, and the contents of the Beck Friis stamp album, was vested in the middle to late 1970s. What is, however, clear is that the covers and the stamp collection, such as it was, have been in the unchallenged, and undisputed, possession of Mr Andre since the late 1970s.[176]I am satisfied on the evidence that, although perhaps not in express terms, Sigvard effectively indicated to Mr Andre that he might have the various covers; otherwise they would have been destroyed. I am also satisfied that Mr Andre came into possession of the stamp album from those then having the control of the Beck Friis estate.[177]Those are the only findings I find myself able to make on the evidence as to the provenance of the stamps and covers. The legal consequences of those findings will have to be the subject of further submissions if necessary.[178]Returning to the chronology, some time after the death of Joachim, and before the death of Sigvard, and thus between June 1974 and June 1976, Mr Andre came into possession of the Beck Friis family papers, including the asserted covers. It is his evidence, which I see no reason in this regard to disbelieve, that this happened because he saved them from being burned by a member of staff on Sigvard's instructions at Berringe Kloster.[179]Mr Andre explains his possession of the book of stamps in paragraph 49 of his witness statement. He says that soon after the death of his father-in-law, his mother-in-law, Baroness Ulla Beck Friis, gave him some of Sigvard's personal possessions, including the stock book of stamps. Mr Andre's impression was that at least some of that collection had belonged to his father-in-law's ancestors. He says that the stock book consisted almost exclusively of European first-issue stamps, dating from the mid-19th century, and appeared to be an old collection that had been in the family for generations. He says that his father-in-law had not mentioned the stock book to him whilst he was alive and that he had no reason to believe that Sigvard himself had been interested in philately.[180]The book was said to be full of stamps. Mr Andre says that he never had any intention of selling any of the stamps in the collection as, in his view, they were family possessions, to be handed over to the next generation. Again, I see no reason to disbelieve that evidence.[181]It was at some time at the end of the 1970s or early 1980s that, when going through the archive of family papers, Mr Andre alleges that he discovered the covers containing the nine examples of the Yellow Treskilling banco. Dr Ronlan puts the discovery as being between the fall (or autumn) of 1980 and the spring of 1981.[182]In his witness statement, Mr Andre refers to three reference works on postage stamps which he says he consulted, including Stanley Gibbons Stamps of the World 1981. In response to an invitation from the court, Mr Andre, during the course of the trial, produced the edition, apparently published in September 1980, of the Stanley Gibbons Stamps of the World 1981 (46th edition), which he says he had consulted. From the date of the publication of the work in September 1980, it would appear that if Mr Andre's account is correct, then he must have been sorting through the papers at some stage between September 1980 and, if the publication is an annual one, about September 1981. Examination of the relevant page makes it clear that there is no reference to a Yellow 3 Skilling stamp. The only 3 skilling stamp said to have been published between 1855 and 1858, when the ore currency was introduced, is described as green. I note that the book was originally published as Stanley Gibbons Simplified Stamp Catalogue, and was renamed Stamps of the World in 1971.[183]However, it is common ground between the experts that the Yellow Treskilling is mentioned in both the Facit (the Swedish) and the Michel (the German) stamp catalogues.[184]Mr Andre moved to London in about 1981; and he was divorced from Kina, his first wife, on 4 September.[185]In July and October 1981, Mr Andre auctioned some of his stamp collection. This is described at paragraph 48 of his witness statement. He says that although his intention was to keep the covers, he also wanted to verify the book value of the stamps which they contained. He says that he therefore selected a small number of the most common covers, mainly those featuring 4 skilling stamps and some pre-philately covers, and deposited them with Bengt Lilja, auctioneers in Malmo, for sale in a philatelic auction. He says that they were sold in two auctions, in July and October 1981 respectively, where they fetched some 2,580 Swedish kroner in total, equating to approximately some GBP260. At this time, Mr Andre had apparently moved to London and had divorced his first wife, Kina.[186]On 26 February 1982, the trunk was deposited for the first time at the Victoria branch of the defendant, Clydesdale, Bank, to be held in safe custody.[187]Mr Andre offered to provide a list of the contents of the trunk; but the bank, in accordance with its standard practice (also apparently shared with at least one other clearing bank, HSBC) declined.[188]Mr Andre says that he was given a receipt for the trunk, although no copy of that receipt presently exists.[189]In February 1984, the claimants -- Mr and Mrs Andre -- married in London. For the purposes of their wedding reception, Mr Andre removed the trunk from the bank so that certain items of silver contained therein could be displayed at the wedding breakfast. A copy of the safe custody record can be found at page 389 of bundle A2.[190]In paragraph 63 of his witness statement, Mr Andre says that, subsequent to the initial deposit of the trunk in February 1982, they removed it from the bank on two occasions. The first was on 21 February 1984, when Mr Andre removed the trunk to recover certain items for his wedding to Mrs Andre. He says that in order to remove the trunk from storage, he had to, and did, produce the initial receipt that he had been given to him by the bank when he had deposited the trunk in 1982. He says that when he returned the trunk to the bank again on 24 February, he was given another receipt, which appears at page 388 of bundle A2. The receipt is dated (in manuscript) 28 February 1984. The branch of the bank is stated (in manuscript) to be Victoria, London. Immediately below those details there is printed (in capital letters):
"This receipt should be carefully preserved and produced if redelivery of an item is desired. Items are held at the depositor's own risk and if of value should be insured."
[191]There is then given (in manuscript) the number of the receipt, 35/48. The addressee inserted (in manuscript) is said to be "Jean-Claude Pierre Ferdinand Gunther Andre, Esquire"; and (in typescript):
"Clydesdale Bank plc acknowledges receipt of the following items to be held for account of", then there is inserted in manuscript "
Yourself. One locked green trunk, contents unknown."[192]The receipt is signed by the manager. Below there is printed: "Received from Clydesdale Bank plc the above-mentioned items", and nothing apparently appears.[193]Mr Andre says that nothing was said to him about any writing on the receipt, or about any terms or conditions governing the deposit of the trunk.[194]Mr Andre had earlier said that that was what had happened when he had first deposited the trunk.[195]He says in relation to the original receipt that he does not have a copy of that receipt as he had to hand it back to the bank when he first retrieved the trunk in 1984. I see no reason not to accept that part, at least, of Mr Andre's evidence.[196]At paragraph 64, Mr Andre relates the second occasion that he withdrew the trunk. It was on 5 December 1986 for his daughter, Louise's, christening. He says he returned it on 12 December 1986. He says he was not given any new receipt on that occasion, and no mention was made of any terms or conditions.[197]That account of the removal, and redeposit, of the trunk is consistent with the record on the bank's log by its staff which appears at page 389.[198]At paragraphs 66 and following of his witness statement, Mr Andre goes on to relate that before returning the trunk to the bank in December 1986 he made some changes to its contents. He says that he retained a large silver soup tureen that had been in the trunk; and he added a number of covers, including most of the covers with stamps, including those with the Treskilling Yellows. He says that he placed all of those envelopes inside the old Swedish box-file which he, in turn, placed in the trunk. He says in all there were probably more than 200 covers placed in the brown envelopes and stored in the old Swedish box file, together with a stock book, and placed into the trunk.[199]In paragraph 68 he says that his decision to add the covers to the trunk in 1986 was taken on the spur of the moment. He was re-packing it before he returned it to the bank and he gave thought to whether there was anything else he should put in it. Notwithstanding that he believed the covers to be a relatively unattractive target for a thief, as they all bore the family name, or were related, or addressed, to one of the estates, he says he knew them to be of monetary value; and given that there was room in the trunk, it made sense to put the most valuable ones in there, along with the stock book for safekeeping. In addition to the covers, he says he also added some items of family jewellery, and some mounted dress miniatures.[200]He says that at the time Mrs Andre drafted a handwritten inventory of the contents for their own records. That inventory is the document at pages 391-2 of bundle A2. It includes reference to one silver Christian Dior lighter. There is also reference to one silver pill box. Over the page, there is a reference to one soup tureen and lid; and the penultimate reference is to a silver goblet, engraved CMBT (which I was told were the initials of Mrs Andre's parents), and then the words "Louise, 7/12/86." The final item in the list was one samovar.[201]It is the claimants' case that that was the last time Mr Andre dealt with, or saw, the trunk before 25 March 2004. I note that in his witness statement (at paragraph 64) Mr Andre says that he was not given any new receipt when he returned the trunk on 12 December 1986. He does not mention anything about the receipt that he had been given in 1984.[202]I find, on the balance of probabilities, that when Mr Andre returned the trunk on 12 December, he was given the receipt that he had been given in 1984, and bearing the disclaimer on its face, the terms of which I have already recited. My reasons for this are, first, that the bank clearly treated the redeposit of the trunk as a continuation of the bailment which had been initiated in 1982 and interrupted briefly in February 1984. That is evidenced by the single custody record for the deposit of the trunk. Secondly, Mr Andre clearly appreciated that on the two previous occasions he had deposited the trunk, and then removed it, he had needed a receipt. I cannot accept that Mr Andre would have left the trunk with the bank on 12 December 1986 without being given some receipt for it. He still has the original of the 1984 receipt in his possession. The inference I draw is that when he re-deposited the trunk on 12 December 1986, the bank gave him back the original 1984 receipt as a receipt for the return of the trunk. That may have been retained by the bank during the interval between 5 and 12 December on the footing that Mr Andre had made it clear that he would only be withdrawing the trunk from the bank's safe custody temporarily. So, on the balance of probabilities, I find that the 1984 receipt was handed back to Mr Andre when he returned the trunk to the bank on 12 December 1986.[203]There is no positive evidence that the terms on the front of the receipt were expressly drawn to Mr Andre's attention. I see no reason to draw the inference that they were. From the brevity of the document, there was no need for express reference to be made to them. They were clear for Mr Andre to see and read. [Addendum: I later clarified that that was a finding of fact, and that I was not ruling that that was sufficient as a matter of law. I also indicated that if I had to make a finding of fact as to whether or not Mr Andre had actually read the terms of the receipt, on the balance of probabilities I would find that he had done so because of its brevity, and because he would have needed to have established what he was being given the document for.] The evidence does not permit me to make any other findings of fact in relation to the receipt and the December 1986 deposit of the trunk.[204]Returning to the chronology, on 1 February 1988 Mr Andre wrote to Mr McCue of the bank in the terms to which I have previously made reference in connection with Mr Andre's then financial situation. In the course of that letter, which can be found at D1, page 800, Mr Andre said that he was writing to various foreign stamp specialists in order to get them to value his stamp collection.[205]Mr Andre asserts that at a subsequent meeting with Mr McCue, he informed him that the stamp collection was held in the bank's safe custody. I have no evidence from Mr McCue in that regard. I find myself unable, given the general unreliability of Mr Andre's evidence, to make any specific finding as to whether or not he mentioned the stamp collection to Mr McCue. Certainly, there is no written reference to it.[206]In July of 1991, Mr and Mrs Andre's infant daughter, Louise, sadly passed away.[207]At paragraph 83 of his witness statement, Mr Andre says that the only time since 1986 that he can recall discussing the stamps was when, following the death of his daughter Louise in July 1991, his wife had asked him what she should do if he ever became ill and she urgently needed some funds. Mr Andre says that he told her that the easiest way to get cash was to go to the bank, take out the stock book and sell a few stamps. Whilst I have found Mr and Mrs Andre generally to be unreliable witnesses, given the impact that the death of their daughter Louise must have had upon them, I see no reason to doubt that that is a genuine recollection on their part.[208]The bank invites the court to find that the trunk was accessed by the Andres at times other than those recorded in the bank's safe custody record. During the period up to March 2004, it is said that access to safe custody items was not recorded, unlike removal of the trunk. As I have indicated, the evidence is not entirely clear as to when the present requirement for access to an item deposited to be recorded was introduced.[209]The bank relies upon the fact that there were repeated, and unretracted, references, on many occasions after 2004, in statements made to the police that Mr Andre had, before March 2004, previously accessed the trunk “eleven years ago”.[210]At paragraph 84 of his witness statement, Mr Andre says that between redelivering the trunk to the bank in December 1986 and the events in March 2004, they had not inspected the trunk. He says that in the summer of 2002, they had considered retrieving certain items of silver for the christening of their son, Guillaume, but in the event they did not do so. I have already indicated that the stated reason for not doing so -- namely the lack of any reason to do so because of the lack of any need for cash -- is not borne out by the evidence.[211]The bank invites the court to find that the trunk was accessed in about 1992 to remove items of silver in connection with Guillaume's christening, and again in 2002. The assertion that there was access to the trunk in 2002 is said by the bank to be supported by the contents of a letter written by Mrs Andre to the manager of the Piccadilly branch of the Clydesdale Bank on 5 February 2002 at D1/818. The letter was primarily directed to the position of Mrs Andre's own account; but she concluded the letter in the following terms:
"In addition to this, we have two trunks which are held in your vaults and we would like to come and remove these from you. Can you please let me know how much notice you need in order to do this."
[212]Mrs Andre and her husband both said in evidence that the reference to "two trunks" was a clear mistake.[213]I find that there was no access to the trunk by either Mr or Mrs Andre between December 1996 and March 2004. I accept that they genuinely thought that they had accessed the trunk in connection with Guillaume's christening; but I accept their evidence that they did not do so. However, the fact that they could make such a fundamental error demonstrates the inaccuracy of their powers of recollection, which is understandable at this interval in time.[214]At a very late stage of the trial, during closing submissions on Day 10, I was invited by the claimants to look at two photographs of Guillaume's christening. Without serious opposition from the bank, I did so de bene esse, although I indicated that I would bear in mind the lateness of the production of these photographs and the fact that there was no evidence in relation to them and no cross-examination thereon. Those photographs have not influenced me in any way in the conclusion that I have formed in terms of the issue of access to the trunk between December 1986 and March 2004.[215]I am satisfied that, for the reasons they gave, although they genuinely thought that they had done so, Mr and Mrs Andre had not accessed the trunk in 1992. In this regard, I bear in mind, and accept, the evidence that Mrs Andre gave, which seems to me to be consistent with their previous behaviour, that had they sought to access the trunk in order to remove items of silver, they would have physically removed the trunk from the bank's premises: see the transcript of Day 9 at page 88.[216]The letter upon which the bank relies in 2002 did not talk about accessing the trunk. It talked about “removing two trunks”. The reference in paragraph 84 of Mr Andre's witness statement to the summer of 2002 was a clear error, accepted as such in cross-examination, because Guillaume's christening had taken place a decade earlier.[217]There is no bank record of any access to the trunk, and it is not clear on the evidence when the bank ceased not requiring there to be any record of access to a trunk.[218]So I find, on the balance of probabilities, that there was no access to the trunk by the Andres between December 1986 and March 2004.[219]In May 1995, the claimants effected insurance in respect of jewellery in the sum of GBP22,500, and stamps in the sum of GBP50,000.[220]The jewellery included, as item 10 on the schedule which is specification A, one lighter, Christian Dior silver, gold-plated, serial number 69015. The sum insured was GBP352.12. Mr Andre was questioned about the precision of the sum insured, which referred to a sum of money down to the specific pence (although I note that the sum is exactly the same as that assigned to the Canon camera, item 9). He was unable to explain how he had arrived at the sum insured for the lighter.[221]Although reference is made to specification I (the stamps) I am told that no such specification exists or existed. The documents are at pages 469 to 470 of bundle A2. Mr Andre says that he only insured the stamps for GBP50,000 as representing a reasonable compromise between the true value of the stamps, which he says he knew to be higher than GBP50,000, and an affordable premium: see paragraph 54 of his witness statement.[222]Given the unreliability generally of Mr Andre's evidence, and the fact that these were items which, on Mr Andre's evidence and case, were stored in the safe custody of a bank, I do not accept his evidence that the insured sum of GBP50,000 was a significant, or any, undervaluation of the relevant stamps.[223]On 3 January 1997, the bank wrote to Mr Andre at 6 Halkin Place advising him that there were insufficient funds available in his account to make a payment in favour of the Guards Polo Club of GBP125.20: see D1/801. Further letters continued to be sent to Mr Andre at 6 Halkin Place. There is a bank statement dated 21 October 1997 at D1/803. There is an advice of a service charge to be applied by the bank to Mr Andre's account addressed to him at 6 Halkin Place on 31 May 1998 at D1/806. There is a letter to Mr Andre of 5 June 1998 at D1/807. There is a letter advising Mr Andre of irregular borrowings on his account on 6 July 1998, again addressed to him at 6 Halkin Place.[224]Evidence was produced by Mrs Andre during the course of the trial (which I accept) which shows that the Andres had moved from 6 Halkin Place to 29 Alderney Street on or about 24 or 25 January 1997: see the exhibit to Mrs Andre's latest witness statement, inserted at A2/463-4.[225]Indeed, Mrs Andre appears to have notified the bank of her change of address, certainly by January 1998, because the bank wrote to her there on 2 January 1998: see D1, page 804; although they continued to write to Mr Andre thereafter at 6 Halkin Place until 23 July 1998: see D1/810.[226]It is clear, and I find, that Mr and Mrs Andre had moved from 6 Halkin Place to 29 Alderney Street at the end of January 1997; but although Mrs Andre had communicated details of her change of address by no later than January 1998, the bank was still corresponding with Mr Andre at 6 Halkin Place until July 1998. The important feature, however, is that Mr and Mrs Andre have the originals of letters addressed to Mr Andre at 6 Halkin Place during 1997 and the first half of 1998 even though they were living then at 29 Alderney Street. It is quite clear, therefore, that letters sent by the bank to 6 Halkin Place were coming into the hands of Mr and Mrs Andre.[227]It was the bank's evidence (which I accept) that customers of a branch were notified in advance of a branch closure and move. I am satisfied that the bank did send out letters to Mr Andre informing him of the closure of the Victoria branch in advance of such a closure. I am satisfied that, in ordinary course of post, because other letters reached Mr Andre, those letters should also have reached him. It is not possible for me to say whether or not the bank's letters did go astray, or whether they were received and Mr and Mrs Andre simply now cannot recall receiving them; but I am satisfied that the bank took such steps as, barring any unforeseeable mishap, were appropriate to alert Mr Andre to the closure of the Victoria branch and the consequent need to remove his trunk before such closure took place.[228]It is clear that Mr Andre, although still apparently accessing, and using, his account, was in financial difficulties at the time so far as the bank is concerned. It is, therefore, possible that he chose not to communicate with the bank during this period. There was, however, clearly some movement on his account, as Mr Andre acknowledged when I drew his attention to the relevant correspondence during this period.[229]As I say, the bank did what was appropriate to alert its customer, Mr Andre, to the closure of the Victoria branch and the consequent removal to some other location of his trunk. Whether or not Mr Andre received, or read, those letters is not the fault of the bank. If he did receive those letters, Mr Andre chose, perhaps because of his then financial difficulties, and the consequent wish not to rock the boat, not to respond to them.[230]On the bank's own evidence, those letters would not have called for any response from him, and therefore the bank would not have known that they had not been received.[231]At some time in June 1997, the trunk was moved by Securicor from the bank's Victoria branch to its Piccadilly branch. Such removal was effected, as I find, by Securicor. The claimants have not shown that the safe custody facilities at the Piccadilly branch were in any way inferior to those at the Victoria branch. There is no evidence either way that the trunk was interfered with during the course of the move. There is no evidence that the trunk was not moved directly from the Victoria to the Piccadilly branches; and the inference I draw is that it was moved directly, rather than being taken on a roundabout route via any depot of Securicor.[232]What is clear is that no concerns were ever raised by Mr or Mrs Andre as to the fact that Mr Andre's trunk had been moved. Having previously written on 23 July 1998 (at D1/810) to Mr Andre notifying him that a cheque had bounced, the bank wrote again to Mr Andre (at page D1/813) on 8 September 1998 indicating an irregular debit balance on the account. Following on from this letter, on 9 September (at 814) the bank wrote to Mr Andre, again at 29 Alderney Street, stating that due to the recent unsatisfactory conduct of his account, it was that day being closed; and they enclosed a cheque for the balance of GBP2.22. There is no record of any correspondence from Mr Andre in response to that. There is no record of any query as to the trunk that was then in the bank's safe custody, no expression of concern on his part as to what might have happened to it, or where it might be.[233]The first expression of interest in that regard is to be found in a letter from Mrs Andre of 8 September 2000, addressed to the manager of the bank's Victoria branch at the Piccadilly branch address at 35 Regent Street: see D1, page 815.[234]Referring to her account, Mrs Andre said that she did not seem to have received a statement from the bank for some time, and she requested one to be sent to her forthwith at 23 Maxwell Road, an address to which by then the Andres had moved. The letter continued:
"Whilst writing this letter, I will also take this opportunity to enquire about various items that you had stored in the Victoria branch on behalf of my husband, JC Andre. Can you please let me know where these are being stored now."
[235]The response to that letter can be found at bundle A2, page 475. It is addressed to Mrs Andre at 23 Maxwell Road; but it is directed to both Mr and Mrs Andre. The letter is dated 23 September 2000 and comes from the Piccadilly branch of the defendant bank. The letter reads:
"We refer to your enquiry regarding your items in safe custody and advise that they are all now stored at these premises at 35 Regent Street. If we can be of any further assistance do not hesitate to contact us and may we apologise for the delay in replying to your letter."
[236]There is no response to that letter, which formed an exhibit to the witness statement of Mrs Andre.[237]The next letter in sequence is a letter from her dated 17 October 2000 (at A2/476 and D1/817) in which she simply states that she is still waiting for the requested statement for her own account and that it is essential that she receive this as a matter of urgency. There is no expression of concern that the trunk has been moved to the bank's premises at 35 Regent Street. The inference that I draw is that the Andres were entirely content that the trunk should continue to be stored there.[238]In the course of her cross-examination, Mrs Andre revealed that at some time, which must have been before her letter of 8 September, she had noticed, when driving past, that the former Victoria branch of the bank was now a wine bar. When it was suggested that the Andres had had no objection to the fact that the trunk had been moved, Mrs Andre initially said (as her husband had said in evidence) that it had all been “a fait accompli”.[239]When Ms Start pressed, at Day 9, pages 41 through to 43 of the transcript, that there was no complaint, Mrs Andre said:
"Well, it was still in safe custody, and it was at the new branch ... "
There's no concern then that my items were not in safe custody. I thought it was strange -- I don't -- I was not concerned that it was being -- that it had been -- it was still in safe custody in Regent Street."[240]Later she said:
"As long as it was being -- it was safe in the bank, it was done."
[241]I find that Mr and Mrs Andre had no concern that the trunk had been moved from the Victoria to the Piccadilly branches of the bank. They understood that it was still being kept in safe custody by the defendant bank.[242]On the weekend of 28 and 29 February 2004 an article appeared in the Financial Times. It was read by Mrs Andre, who drew it to the attention of her husband. The article can be found at A2, pages 398 and 399, although the graph on the right-hand side of the photocopied article does not make it clear that in addition to the graph, showing the results of Stanley Gibbons, there was also reproduced a photograph of the one known Yellow Treskilling stamp in colour.[243]I have viewed the original of the FT front cover containing the article. The article was headed "Stamp-dealer Gibbons posts record profits". Mrs Andre drew it to her husband's attention because he had visited Stanley Gibbons with their youngest son recently in order for him to start a stamp collection of his own. The article concluded that:
"Canny schoolboys may still have the edge upon retiring baby boomers rediscovering childhood hobbies as philatelists."
[244]The article recorded that the world's most expensive stamp, a 3 skilling Swedish yellow, was found by a 13 year old in his grandfather's collection. It was auctioned in 1996 for -- I think it says $2.8 million.[245]It was the drawing of this article to Mr Andre's attention that, he says, alerted him for the first time to the potential value of the nine covers which contained further examples of this rare stamp. At paragraph 79 of his witness statement, he records:
"Janie read the article out loud to both our son Francois and me and also showed it to me. As soon as I saw the picture of the Treskilling Yellow stamp I immediately recognised it and turned to Janie and said, 'My God, we've got those in the bank'. Janie asked me whether I was sure and I said that I was. I specifically remembered unsuccessfully searching for them in various stamp catalogues at the time. This was the first indication I had ever had that the Treskilling Yellow stamps were a considerable rarity and of very high value. Janie and I were naturally both amazed and excited. I was jubilant and suddenly understood why the entry in the Michel catalogue did not attribute a price to Treskilling Yellow stamps. Until now, it was not known that more than one such stamp existed."
[246]It was that that led Mr Andre to resolve to go to the bank. In the proposed amended particulars of claim it is said that that happened over the weekend of 13 to 14 March. That is certainly consistent with the fact that two members of the bank's Piccadilly branch staff appear to have viewed the trunk on 16 March. Those two members of staff were Mr Glen Gavin and Mr Marcus Pethurst. Neither was available to give evidence before me and nor did either of them do so. But there are contemporaneous records from them.[247]A fax message from Glen Gavin to Mrs Shivas dated 30 March 2004, on the subject of Mr Andre's safe deposit box, can be found at F/1475. It reads as follows:
"On Thursday, 16th, I was asked to go down to the basement to locate a large chest belonging to Mr Andre so that when he visited the branch we would know exactly where it was. I was already dealing with another safe custody item so checked it whilst I attended to that. I was accompanied by Marcus to look for the items and upon checking we found the chest in the walkway through the safe. It was not locked inside a cage. On that occasion, I did not notice if there was a lock of any kind on the chest. I was only looking for the object and the name on it. Ten days later, on Thursday, 25th, I was informed that Mr Andre was in the branch to look through his chest so went down again with Marcus to fetch it. When we brought it upstairs we instructed the customer to take a seat in one of the interview rooms. We then placed the chest on top of the desk. Marcus then left the room and it was at this time that the customer asked where the padlock had gone. I explained to the customer that the chest was in the same state as when we found it in the safe but he was adamant a lock did exist because he said Clydesdale Bank would not allow him to place the item into its safe without one."
[248]There is a note headed "Re safe custody" signed by Marcus Pethurst which appears at F/1618. The note reads as follows:
"Lisa Gray requested that myself and Glen Gavin (GG) on or around 16 March to check to see if a trunk was in the safe deposit area. The trunk in question was located in a non-caged area in the right-hand passage after entering the safe area. The only check completed on the box was to confirm that it belonged to Mr Andre as per a screen print that was attached to the top. We did not examine the box. However, it was rather shabby and dirty. On 25 March, we were requested, myself and GG, to go back to the safe deposit area to retrieve the box. The box had brown tape surrounding the edge which had partly dropped away. There was no locked padlock present on the outside and the trunk lock appeared to be open so I pushed it back towards the locked position. The box was rather tatty and dirty and difficult to manoeuvre. We took the box to an interview room where it was placed on a table in front of the customer. After a period of ten to fifteen seconds I then left the room. I was not aware of the customer's concerns until GG advised me of this after five to ten minutes."
[249]Those notes were sent to Detective Constable Hugh Evans of the Metropolitan Police under cover of a letter from Barbara Bell, a solicitor in the bank's dispute resolution section in Glasgow, under cover of a letter dated 18 March 2008 at F/1476 to 1477.[250]There is also a contemporaneous record from the Piccadilly branch manager, David Helsby. It is completed on a standard form report applicable to fraud -- reportable incidents greater than GBP35,000. It reads:
"Customer requested access to a trunk held in safe custody. Customer claims trunk was locked with a padlock which is no longer attached to trunk and trunk shows evidence of external damage. Customer now claims that the trunk has been accessed in his absence and a number of valuable stamps are missing. Customer made the discovery at Piccadilly branch on Thursday, 25th [and then inexplicably it says 'November'] at approximately midday."
In relation to potential loss, it is said: 255. "Unknown at this time, although customer states that a similar stamp recently sold for in excess of $2 million and a minimum of ten such stamps are missing from one box within the trunk and a number of other stamps are missing from albums also contained within the trunk. 256. Mr Andre has advised me by phone this afternoon that his insurance company has advised him to report the matter to the police and he planned to do so. 257. Detected by customer Mr Andre in the presence of member of staff Glenn Gavin."[251]In answer to the question "Suspects", it says:
"Unknown. Trunk was originally held in safe custody at Victoria branch and transferred to Piccadilly branch on closure of Victoria in June 1997. Mr Andre closed his account some time ago but did not remove his trunk. There is no note of the trunk in the Victoria branch safe custody register and Mr Andre cannot supply a receipt. No fees have been collected from Mr Andre for the storage of the trunk and Mr Andre has never requested access to the trunk since it was transferred to Piccadilly. It would now appear that when the new safe custody procedures demanded that all items already held had to be reviewed, bagged in the new plastic sacks and customers advised of the charges which were to be applied, that items held in the Piccadilly basement safe custody area were not included. There are a great many items currently stored in this area and a review should be undertaken as soon as possible."
[252]These are contemporary, or near contemporary, reports by bank members of staff of the incident. They are entirely consistent with the account that Mr Andre has given of what happened on 25 March. In the absence of any other evidence, and in the absence of the production of these former members of bank staff for cross-examination, I accept the evidence related in these documents. I note that in his document Mr Helsby says that Mr Andre had never requested access to the trunk since it was transferred to Piccadilly, which of course was June of 1997.[253]Accepting the evidence contained in these statements, it seems to me quite clear that the bank had not kept the trunk in a caged area. Although photographs were put to Mrs Shivas, she was not entirely clear in the descriptions that she gave; but on the basis of what is said by Mr Gavin and Mr Pethurst, I find that the trunk was found on 16, and again on 25, March in the non-caged area which is shown on the photograph at F/1641, and not within the cages beyond the walkway which appear at the back of that photograph, and also appear on the photograph at F/1643. I also find that there was no padlock, and that when Mr Pethurst found the trunk on 25 March it was not locked.[254]I have already indicated that as to what happened after Mrs Shivas became involved, I accept what is said in her contemporaneous notes, although I am satisfied that she was mistaken in thinking that the trunk needed a key to lock it. It was locked, but only singly locked by engaging the lockable clasp; and it was not capable of being double-locked with a key. That may be the cause of Mr Andre's evidence about the trunk not having been locked when he left it on 25 March.[255]I am satisfied that when the trunk was deposited with the Victoria branch in December 1996, it was locked and it had been chained and padlocked. I am satisfied that the bank would not have accepted it on any other basis. I am satisfied that by March 2004 the padlock and chain had been removed, and access had been obtained to the trunk. I have examined the trunk, and I am satisfied that it bears evidence of having been forced open.[256]I note that Mr Helsby wrote that the trunk showed evidence of “external damage” at the time when he saw it. According to Mrs Shivas, he was the member of staff whom she had relied upon to examine the condition of the trunk.[257]I can take matters thereafter quite shortly.[258]On 30 March, Mr and Mrs Andre attended the Piccadilly branch. What happened then is as related by Mrs Shivas. In particular, the intended inspection of the contents of the trunk did not proceed because Mr Andre had forgotten his key and so could not open the trunk. As a result, there was a need for the Andres to return the following day.[259]I have already related the terms of the letter of 1 April, in which Mr Andre reported the theft of items from his trunk, and provided his first attempt at a list of items missing. At that stage, he thought that all of the silver items were present. At that stage, I am entirely satisfied that Mr and Mrs Andre did indeed think that they had last accessed the trunk for the purposes of Guillaume's christening in 1992.[260]It was only on 15 April that a fruit bowl and silver lighter were added to the list of items missing from the trunk, although on 29 April the police spoke with Mr Andre and he advised them that the fruit bowl on his list was in his possession and so could be taken off the list of stolen items.[261]I have already related that on 10 June 2004 Mr Andre attended the Piccadilly branch with valuers from Stancliffe & Glover and from Spinks, the stamp auctioneers, and that the typed list which Mrs Shivas had already had made up from her previous manuscript list was amended in manuscript by her and signed by those present.[262]On 22 June 2004, Dr Ronlan made the statement which was later signed and attested by him in January 2007. His evidence was that he had supplied a copy of that to Mr Andre.[263]In the light of that, it is surprising that Lane & Partners, solicitors acting for Mr Andre, did not provide a copy of Dr Ronlan's then unsworn statement to the bank when the bank was requesting evidence of the allegedly lost items. Had they done so, the bank might have taken the matter a little more seriously.[264]I do not propose to go through all of the correspondence between the bank, Mr Andre and Mr Andre's then solicitors, Lane & Partners, from the discovery of the violation of the trunk in March 2004. I can sum it up by saying that the bank did not appear to show a real concern for what I find was a serious breach of the integrity of an item placed with it for safe custody.[265]The claimants' legal representatives accuse the bank of having acted towards Mr and Mrs Andre in a misleading, high-handed, dismissive, obscurantist and obstructive way so as to exacerbate the grief, distress, anxiety, disappointment, loss of peace of mind and inconvenience which Mr and Mrs Andre have suffered. They say that that conduct justifies an award of aggravated damages. Mr Palmer, in closing, took me in detail through the correspondence after March 2004. I accept that the bank adopted an unduly uncaring approach to what was a serious breach of security at the bank. However, Mr Andre did not improve the situation by his failure to engage with the bank's requests for information. In particular, the statement from Dr Ronlan could, and in my judgment should, have been produced. The bank had written on 3 September 2004 (at D1/836) requiring vouching evidence that the property which Lane & Partners said had been lost was in fact in the trunk in question. Without that, it was said that Lane & Partners had no legal basis upon which to raise an action. Lane & Partners' response of 5 October had been that the evidence required had been obtained from Baron Andre and would be made in the form of witness statements and, if necessary, affidavits should the matter proceed to litigation. That was unhelpful; but it was no less unhelpful than the attitude which the bank itself was adopting in declining to produce copies of documents that had been requested.[266]I am satisfied that the bank did not investigate the matter with the degree of attention that they should, and that the bank failed properly to keep Mr Andre alive to the results of the investigation.[267]During 2005, it is quite clear, on the claimants' own evidence and case, that Mr Andre was simply not able, due to his state of health, to pursue the matter. Mr Andre acknowledged that when, at the end of 2007, he motivated the police into making a further enquiry, that the investigation that they then conducted was a methodical and thorough investigation. However, it produced nothing. I am not satisfied, however, that even if the investigation had been pursued more actively during the course of 2004, it would have produced any more positive result.[268]Nevertheless, I am satisfied that the bank's apparent lack of concern, after the initial concern expressed by Mrs Shivas at the end of March 2004, did add to the distress that Mr Andre felt at first having thought that he had had a windfall, amounting to a lottery win (as Ms Start described it), and thereafter finding that the fruits of that win had been dashed from his lips.[269]In the event, a police investigation which ultimately took place and which, as I have said, Mr Andre described as methodical and thorough, produced absolutely nothing.[270]This claim was not initiated until March 2010, just within six years of the discovery of the alleged loss of the contents of the trunk.[271]For at least substantial parts of that period, I accept that Mr Andre was too ill to pursue litigation. I also accept that he had genuinely wanted to avoid the need for litigation, and he felt that, ultimately, he had simply been forced into it by the bank's conduct. I have considerable sympathy for Mr Andre's position, given that (as I find) he had persuaded himself that he had lost extremely valuable stamps which, as Mrs Andre said, would have made a dramatic difference to their joint lives.[272]That concludes my review of the chronology of events. (4.40 pm) (The court adjourned until 10.00 am the following day) Friday, 1 February 2013 (10.00 am)

Approved judgment (continued)

JUDGE HODGE QC:

[273]Before I conclude the chapter of my judgment relating the chronology of events, I should record that I was requested, before the court adjourned last evening, to amplify certain of the findings I had already made.[274]I trust the following will be sufficient:[275]There is no evidence about how the removal of the trunk from the Victoria to the Piccadilly branches of the bank was effected by Securicor. Irrespective of the incidence of the burden of proof, I find that it was moved directly from Victoria to Piccadilly without being stored at any depot of Securicor. In this regard, I rely upon:(1) the evidence of Mr Robb at transcript Day 3, page 108 that when moving branches items were not generally stored overnight; and(2) the respective locations of the Victoria and the Piccadilly branches of the bank, and the relevant Securicor depot.[276]I find that it was both reasonable and prudent to use a reputable security company (such as Securicor) to move the trunk from one of the bank's branches to another.[277]There is no evidence before the court of the terms on which Securicor were engaged to move the trunk. There is no evidence either way as to whether the trunk was damaged or interfered with before, during the course of, or after the trunk's removal from Victoria to Piccadilly. There is no evidence before the court as to whether the custody facilities at Piccadilly were in any way either superior, or inferior, to those at Victoria.[278]I have found that at some time between December 1986 and March 2004, the chain and padlock which had been attached to the trunk, so as to secure it, were removed from the trunk, that the lock was forced open and the trunk's contents interfered with, and certain items were removed from the trunk; but there is no evidence as to precisely when, where, in what circumstances, or by whom those actions were performed.[279]I find that between 16 and 25 March, the trunk was not kept within the secured caged area of the bank's vault at Piccadilly. That was the position as at 16 March. There is no evidence as to whether the trunk had ever been stored within the caged area, as it should have been or, if so, when or why it was removed to the open area within the vault, or by whom.[280]I find that the storage of the trunk outside the caged areas was not in accordance with the bank's standard, and prudent, safe custody procedures, and that it did reduce the level of security attending the trunk's safe custody.[281]I find that neither of the claimants was ever asked for their consent to the removal of the trunk from the Victoria to the Piccadilly branches of the bank. Nor were they ever consulted about the terms and conditions of such removal, or about the terms and conditions upon, or in, which the trunk was to be stored at the Piccadilly branch of the bank.[282]I find that the claimants' only concern was to ensure that the trunk was, in Mrs Andre's words, "Kept in safe custody" (see transcript Day 9, page 42), and was also, in her words "safe in the bank" (see transcript Day 9, page 43). Chapter 5: The contents of the trunk[283]On this issue, I can derive no assistance from the evidence of Dr Ronlan. The only evidence comes from the claimants themselves. For the reasons I have already given, I cannot treat either of the claimants as reliable witnesses, either generally or on this particular issue. I am satisfied that the claimants have not made out their case that any of the six alleged covers containing Yellow Treskilling stamps ever existed, and thus were deposited in the trunk. On the contrary, and insofar as the bank may bear any burden of proof on this issue (which, subject to legal argument, I doubt), I am satisfied that the bank has proved on the balance of probabilities that the six Yellow Treskilling covers never existed.[284]There are three principal reasons for this:[285]First, there is Mr Andre's own evidence. He said that he consulted but could not find any reference to the Yellow Treskilling stamps in either the Facit or the Michel catalogues. He was pretty sure that he showed Dr Ronlan the Michel catalogue; yet, as Dr Obermuller herself said, the reference to the unique known Yellow Treskilling was there to be seen.[286]Dr Obermuller said that the Swedish Facit and German Michel catalogues in the 1970s all made it clear that there was only one known Yellow Treskilling: see transcript Day 5, pages 131 to 132 and Day 6, pages 43 to 45. I have already mentioned that in re-examination (at transcript Day 6, pages 14 to 16 and 18 to 21) Dr Obermuller analysed both the Facit and the Michel catalogue entries.[287]Moreover, if, as he said at transcript Day 7, page 43, Mr Andre had thought that he had found something “extraordinary”, which he could not identify in the catalogues, I fail to see why Mr Andre did not make any enquiry when the stamps were placed for auction, not long after (on the evidence, in particular, of Dr Ronlan) Mr Andre had been investigating the provenance of the asserted Yellow Treskilling covers.[288]I also rely upon the general unreliability of Mr Andre's own evidence.[289]Secondly, there is the evidence of Dr Ronlan, insofar as I am able to accept what he says. Dr Ronlan told the court that he had known since he had been a boy collecting stamps of the rarity of the Treskilling banco. The perception of both Dr Ronlan, and also of Mr Andre, was that it was Mr Andre who had more knowledge of stamps than Dr Ronlan. Yet it was Dr Ronlan who had known since a boy about the rarity of the Treskilling banco.[290]Although told about Mr Andre's discovery, Dr Ronlan did not make any connection between that discovery and the Yellow Treskilling banco.[291]Finally, Mr Andre never asked Dr Ronlan to look at the entry in the Michel catalogue, although it apparently mystified Mr Andre. Reference to this catalogue was made by both gentlemen.[292]Thirdly, and perhaps most significantly, there is the sheer inherent implausibility of, first, six covers with nine stamps, including three hitherto unknown, unperforated doubles ending up in the same archive. Mr Arnrup made it clear that his objection to the possible existence of the stamps was founded upon the number of covers. That was apparent both from his written report, and also his cross-examination at transcript Day 6, page 74. In the course of her cross-examination, Dr Obermuller said that it would be incredible if nine -- although as I have mentioned I think it should really be six -- people should have gone to Uppsala and bought nine incorrectly-coloured 8 skilling stamps, and then used them all in letters to Count Corfitz Beck Friis. The chances were said to be infinitesimally small, or an incredible coincidence: see transcript Day 5, pages 114 and 127.[293]Further, there is the sheer inherent implausibility of those six covers with nine stamps remaining undiscovered for 120 years, when, on Mr Andre's evidence as to the family stamp album, there had at some time apparently been a keen, and apparently knowledgeable, stamp collector in the Beck Friis family. In the course of his evidence, Mr Arnrup had said (at transcript Day 6, page 103) that any collector in the Beck Friis family, building up a collection of stamps, would have been likely to have looked at the archives. In his witness statement (at paragraph 102), Mr Andre had said -- although this was not entirely consistent with other oral evidence from him -- that the greater proportion of the valuable part of the stock book comprised stamps which he had been given from the Beck Friis family. That collection contained a large number of first-series stamps, specifically, first-series stamps from Sweden, Denmark, Norway, Austria, Great Britain, Italy, Baden and France. As Mr Feldman had observed, and as was known to Dr Ronlan, the known Yellow Treskilling was “always one of the greatest and most famous stamps in the world”: see, in the case of Mr Feldman, transcript Day 8 at page 88.[294]All of these considerations are explored further in the bank's written closing at paragraphs 16 and following, and are summarised at paragraph 31.[295]The expert evidence on the Yellow Treskilling covers is summarised in the bank's written closing as follows:(1) it is possible that another Yellow Treskilling stamp may have been printed and may have survived; but(2) there is no evidence available to the court to assist it in concluding that that is the case; and(3) the chances of nine further examples existing in the same location, having been sent to the same person by (on Mr Andre's evidence) one other person are, as a matter of common sense, infinitesimally small, as was acknowledged by the experts.[296]For the claimants' story about the existence of the six Yellow Treskilling covers to be correct, the following people would need to have made the following mistakes:[297]1. The printer of the 8 skilling stamps in the seventh delivery needs to have used two defective cliches, inserted next to each other.[298]2. On six separate occasions post office workers, all apparently in Uppsala, need to have mistaken a 3 skilling stamp for an 8 skilling stamp. On three of those occasions they need to have done so in relation to pairs of skilling stamps.[299]3. The sender or senders of the Yellow Treskilling covers -- which on Mr Andre's evidence (see Day 7, page 6) were the same person -- need to have made the same mistake six times in preparing and sending the covers. This would have required the postal clerk selling the stamps to the original purchasers to have taken one erroneous stamp (or pair of stamps) from one printed sheet after another and sold them to the same person.[300]4. Mr Andre needs to have mistaken the entry in the Facit catalogue (and, indeed, the Michel catalogue if one accepts Dr Ronlan's explanation that one does not need to understand the language in order to construe the catalogues).[301]5. Mr Andre needs to have failed to appreciate the Yellow Treskilling's rarity and value in spite of its notoriety and the 25 years or so between 1979 and 2004, which were available to him to ascertain it.[302]6. Dr Ronlan, despite his knowledge (since a boy) of the known Yellow Treskilling banco, does not recognise it in Mr Andre's collection.[303]7. Mrs Andre has to have made a mistake in failing to record the inclusion of the covers as they were put into the trunk, or Mr Andre must have made a mistake in failing to tell her about them.[304]Those factors are supported by a further, and fourth, consideration: The fact that none of the six asserted covers, or nine asserted Yellow Treskilling stamps, has ever surfaced since, at the latest, March 2004. Mr Feldman was very surprised that the stamps had not come to the market: see his answer to questions from the bench at transcript Day 8, page 81. I asked:
"At paragraph 29 of your report, you say that in this case Mr Andre's covers with the Yellow Treskillings have never come to market. Assuming that these covers disappeared before March 2004 or at about that time, how surprising is it in your opinion as a leading stamp auctioneer that these stamps have not come to market? "
Answer: Very surprising. Honestly speaking very surprising. The judge:
"Why do you say that? "
Answer: I mean, if they existed, if they were stolen or I don't know what the alleged issue is, but if they were in somebody's hands you would presumably wish to sell them at some stage and I would have thought that would happen within a period of a few years from when they had been, and there have been so many years since it seems rather unusual that we haven't heard about them. The judge:
"Would you expect them, if they had been offered, to have come to your notice? "
Answer: Yes."[305]In the course of re-examination, Mr Hubbard (for the claimants) sought to limit the impact of that evidence by inquiring (at transcript Day 8, page 88 whether there was a “black market” in stamps (which he clarified as “stolen stamps”). Mr Hubbard inquired:
"Are there persons other than you and reputable stamp-dealers that such a person might go to shift them? "
Answer: I've never been asked that question before, and my immediate reaction would be to say 'no', but some items do come on the market in I would say possibly deceptive ways, but there is no recognised black market and we don't -- I don't know of any specific people who deal as such in a black market."[306]It is right to record, and bear in mind, that Dr Obermuller (at transcript Day 5, pages 142 to 143) gave somewhat different evidence. I asked Dr Obermuller whether, if six covers, containing nine Yellow Treskilling stamps, had been found in London before March 2004, how likely it was that any of them would have come to the knowledge of someone like her, or David Feldman, since then. Her answer was:
"It's very difficult to answer because if somebody who doesn't know anything about the Treskilling Yellow now had found them and had no idea that they were rare or exceptional or a printing error, I don't think -- in my profession I very often meet people who -- they don't see anything that they can't -- they see a stamp and they think it is something and they can't -- they can't."
[307]Her answer was then interpreted:
"They don't appreciate that it may be a forgery or something else that they -- something different from what they might have expected."
[308]Answer not interpreted:
"I don't think people see anything."
[309]Insofar as there is a conflict between the evidence of Dr Obermuller and Mr Feldman, on this particular issue it seems to me that the evidence of Mr Feldman is to be preferred because Dr Obermuller is an academic and a scientist, whereas it is Mr Feldman who is the actual dealer in stamps.[310]Mr Palmer sought to address the point about the non-appearance of any of the asserted Yellow Treskillings during the course of his oral closing. At Day 10, pages 217 to 219, Mr Palmer said this:
"The fact is that there are many people in the world of heritage chattels, cultural objects, who know enough about things to steal them and to know what to steal, but they don't know enough to know that they are then not disposable of afterwards. This happens frequently, for example, with stolen paintings. Sometimes people steal things because they think they might be insured and that there might be an insurance reward or something like that. So the mere fact that these things haven't turned up does not necessarily mean that they were not stolen. They may not have turned up because no reward has been offered, for example, or because of other reasons. It may be that someone has taken them to a less reputable dealer, a less reputable dealer has decided not to handle them because it's too dangerous because they must have been stolen, but at the same time that dealer is not necessarily going to go and do what that dealer should do, which is to tell the police. A person like that will simply not want to get involved. So the reason why, for example, Mr Arnrup may not have heard about it is that anyone who has heard about it has quite a substantial interest in keeping silent about it. That's simply the point I would make."
[311]I commented that that, of course, was not something that Mr Feldman had ever suggested; and Mr Palmer responded:
"Well, he said he knew nothing about the illicit market and that is, no doubt, to his credit."
[312]I bear Mr Palmer's observations in mind, although I am not sure that they are a matter of which I can take judicial notice. But the fact is that if one were to accept Mr Andre's evidence about the covers and stamps that are missing from the trunk, and relate that to Mr Arnrup's evidence of the poor quality of the stamps that remained in the stock book, then whoever accessed the trunk and removed the asserted covers and stamps must have had at least some professional expertise in the identification and evaluation of postage stamps to have taken the most valuable and to have left the rubbish. On that basis, I do find it surprising that none of the nine has ever surfaced. My surprise is shared by an acknowledged expert in the field, proffered as such by the claimants.[313]The likelihood of the existence of the other covers and stamps asserted by Mr Andre was not addressed by Dr Obermuller, or by Mr Feldman in his report. Mr Arnrup (at transcript Day 6, page 64) was of opinion that it would be “very sensational if you put together such a stock book with such rarities” as were asserted by Mr Andre. Mr Feldman agreed that the collection of stamps allegedly assembled by Mr Andre would be “extraordinary”: see transcript Day 8, page 11. That has to be weighed against the fact that the stamps remaining in the trunk were, according to Mr Arnrup who had examined them, largely worthless.[314]The claimants' case on the existence of the other covers and stamps was addressed at paragraphs 33 to 34 of the bank's written closing so far as the expert evidence is concerned; at paragraphs 35 to 54 so far as Mr Andre's evidence is concerned; and at paragraphs 55 through to 63 so far as the contemporaneous documentation (or lack of it) is concerned. I have borne all of those submissions in mind.[315]I am satisfied that, wherever the burden of proof may lie in this matter, Mr Andre has retrospectively convinced himself, and also Mrs Andre, that what were in fact yellow 8 skilling stamps were in fact examples of the hitherto unique Treskilling stamp.[316]In any event, and subject to that qualification, I cannot be satisfied, wherever the burden of proof lies, that the number and composition of the covers was as asserted by Mr Andre. My reasons are: 1. The lapse of time between the indeterminate period of time which passed between Mr Andre last considering the covers (which on his evidence was earlier than the act of placing them in the trunk in December 1986) and March 2004. 2. Mr Andre's varying, and discrepant, accounts of the constitution of the covers.[317]If the covers were of the constitution asserted by Mr Andre, but with the substitution of yellow 8 skilling stamps for the asserted Treskilling stamp, then I would find that the covers were worth about GBP6,000. That was the valuation placed upon the six covers with 8 skilling banco stamps by Mr Arnrup at paragraph (f) on page 663 of bundle A3. Although I am not sure that the matter was addressed by Mr Feldman directly, looking at the valuations at page 701 of his report, Mr Feldman would not appear to place any higher value than Mr Arnrup upon the 8 skilling covers.[318]In relation to the other covers asserted by Mr Andre, there is no similar implausibility about their actual existence, as a matter of theory. I accept that Mr Andre did put some covers into the trunk in 1986. That is supported by the existence within the trunk of the box file. I accept also that Mr Andre did put a stock book of stamps in the trunk in 1986. That was recorded as such on the 1986 list; and the stock book was found within the trunk, and has been examined.[319]There is no issue in the present case as to the standard of proof I should apply. That is the usual civil standard of the balance of probabilities. There is, however, an outstanding legal issue as to the incidence of the burden of proof. That is a matter which I will have to address after hearing legal submissions. At this stage, I am concerned merely to make findings of fact on alternative hypotheses as to the incidence of the burden of proof.[320]Mr Andre has not satisfied me, for the reasons I have previously stated and his general unreliability as a witness, as to the precise composition of the covers that he had placed in the trunk. If the burden of proving the number, composition and condition of the covers and the stamps in the stock book rests with the claimants, I find that they have not discharged that burden because of the unreliability of both claimants' evidence, and because of the agreement between Mr Arnrup and Mr Feldman that the collection alleged by Mr Andre would be “extraordinary” or “very sensational”, and the fact that the stamps remaining in the stock book were not organised by a knowledgeable collector, and were of poor quality and of little value.[321]If, however, the burden of disproving the existence of the covers and the stamps rests on the bank, for the same reasons I find that that burden has been discharged, save in relation to an indeterminable number of covers, of uncertain composition and quality, and an indeterminate number of unidentifiable stamps, of unknown quality and condition.[322]It will be a matter of legal argument as to what consequences may flow from those findings of fact.[323]In relation to value, if the burden of proving the value of the covers and the stamps rests with the claimants, given the poor quality of the remaining stamps in the stamp book, and having regard to the expert evidence, I could not attribute more than GBP10,000 as the value for the stamps and the covers.[324]If, however, the burden of disproving the value of the missing stamps and covers rests on the bank, I find that the bank has satisfied me that I should value them at no more than the present, or 2004, equivalent of the GBP50,000 value that was placed upon the stamps for insurance purposes by the claimants in 1995. I have already indicated that I have rejected the claimants' evidence that they had deliberately undervalued the stamps for insurance purposes.[325]As far as the lighter is concerned, I accept that that was placed in the trunk when it was deposited in the bank in 1986, and that it was missing from the trunk when it was accessed by Mr Andre in March 2004. There was no direct evidence as to the value of the lighter. The value placed upon it by the claimants is GBP600; and given the value that was placed upon it in 1995, it would seem to me that GBP600 is not an unreasonable figure to take for the value of the lighter. Chapter 6: Issues of quantum[326]I have dealt in part with issues of quantum in the last chapter of this judgment, relating to the contents of the trunk. There will, of course, have to be legal submissions founded upon those findings of fact.[327]The claimants seek, in addition to the value of the items missing from the trunk as at 25 March 2004, various additional heads of damage.[328]They assert that the provision of peace of mind and freedom from vexation or anxiety was a major purpose of the relevant bailment. In other words, it is said to have been a major component in the benefits that a reasonable party to the deposit of a trunk with a bank containing valuable items would have expected to derive from the bank's due observance of its obligations arising by virtue of the bailment. I find that that submission is well-founded as a matter of fact.[329]The claimants' representatives go on to found upon that a submission that the claimants had a compensatable, non-financial interest in, or subjective attachment to, the missing items beyond the capital value those items actually have, which rendered them of greater personal value to the claimants than their ordinary market value among persons having no such interest or attachment.[330]It is said that the claimants suffered alarm, trauma, distress, grief and disappointment by reason of their discovery of the violation of the trunk and the abstraction of the relevant part of its contents.[331]It is said that the claimants suffered distress, grief, anxiety and disappointment by reason of the bank's failure to act as a reasonable bank should have acted, both before and after the claimants' discovery of the violation of the trunk and the abstraction of the relevant part of its contents.[332]It is said that the claimants also suffered the aforementioned grief, distress, anxiety, disappointment and loss of peace of mind on their part as a direct consequence of the bank's dereliction of its obligations under the bailment.[333]It is also said that the bank has not affirmatively shown that this was not the case.[334]It is said that it was foreseeable to the bank that grief, distress, anxiety, disappointment and loss of peace of mind on the part of the claimants would follow from the bank's dereliction of its obligations under the bailment, and that the bank has not shown affirmatively that this was not the case.[335]It is also said that the bank has acted, both in the manner, and in the aftermath, of its breaches of obligation towards the claimants in so misleading, high-handed, dismissive, obscurantist and obstructive a way towards the claimants as to exacerbate the grief, distress, anxiety, disappointment, loss of peace of mind and inconvenience suffered by the claimants, and as to justify aggravated damages.[336]I have already set out my findings on that issue in chapter 4 of my judgment, relating the chronology of events.[337]The bank has addressed its investigations in the bank's written closing submissions at paragraphs 109 through to 126. The bank also addresses the claims for aggravated damages and distress at paragraphs 153 through to 159 of its written closing submissions.[338]In my judgment, the additional claims would only fall to be considered if I had found that the Yellow Treskilling covers had existed. Even in that event, I would have rejected all claims on the part of Mrs Andre. I find that she has no title, or possessory claim, to the covers or the stamps. She was not an owner or depositor of the trunk. In that regard, I bear in mind:(1) the label that was attached to the trunk, bearing only Mr Andre's name;(2) the receipt, which was issued to Mr Andre alone;(3) the custody record, which refers again to Mr Andre alone; and(4) to Mrs Andre's own letter to the bank of 8 September 2000 at D/815. In that letter, she says that, whilst writing it, she will also take the opportunity to inquire about various items that the bank had stored in its Victoria branch, and then the crucial words:
"On behalf of my husband, JC Andre."
[339]In my judgment, there can be no claim for any of these heads of loss by Mrs Andre. In any event, on her own evidence, the stamps and the covers had no additional value to her. They were merely to be regarded as cash assets.[340]As I have said, it seems to me that given the non-existence of the asserted Yellow Treskilling covers, Mr Andre also has no claims to additional damages. I would, in any event, have rejected any claim on his part to any additional value for these items since, on the expert evidence -- whichever expert valuer one accepts -- the money values of the stamps and covers would have been far in excess of any special value that they would have held for Mr Andre. [Addendum: I later clarified that the monetary value of the missing stamps and covers was far in excess of any sentimental (or special) value that they might have had for Mr Andre.][341]Had the Yellow Treskilling covers existed, and if such head of loss is recoverable as a matter of law (which will fall to be debated hereafter) I would have been prepared to allow a modest sum to Mr Andre for the distress which he suffered, both as a result of his discovery of the violation of the trunk which he thought had been securely deposited at the bank, and also for the aspects of the bank's failure to follow up that violation by way of a prompt, full and transparent investigation of the circumstances of that violation. That would have involved the award of a modest sum, encompassing all aspects of the matter, which I would have assessed in the order of GBP10,000 to GBP15,000. But that is the limit of any additional, or aggravated, damages for non-financial loss that I would have awarded. [Addendum: I later clarified that this sum was intended to encompass both the trauma of Mr Andre’s discovery that his trunk had been broken into and the bank’s later uncaring behaviour; and it reflected the fact that Mr Andre had also contributed to the general problems that had emerged.][342]That concludes, subject to any further points that may require elaboration or elucidation by me, my findings of fact judgment. (11.00 am) (Approved judgment concluded)