“[39] There is now a considerable body of authority setting out the lessons of experience and of science in relation to the judicial determination of facts. Recent first instance authorities include Gestmin SGPS SA v Credit Suisse (UK) Ltd[2013] EWHC 3650 (Comm) (Leggatt J, as he then was) and two decisions of Mostyn J: Lachaux v Lachaux[2017] EWHC 385 (Fam) [2017] 4 WLR 57 and Carmarthenshire County Council v Y[2017] EWFC 36 [2017] 4 WLR 136 . Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office[2018] EWHC 2066 (QB) at [96]: “i) Gestmin: (1) We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate. (2) Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event. (3) Events can come to be recalled as memories which did not happen at all or which happened to somebody else. (4) The process of civil litigation itself subjects the memories of witnesses to powerful biases. (5) Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say. (6) The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth”. ii) Lachaux: (7) Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities.45 I extract from those citations, and from Mostyn J’s judgment, the following:- (8) “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…” (9) “…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…” (10) Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.” iii) Carmarthenshire County Council: (11) The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness. However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said: “…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context. 45 The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis[1968] 2 Lloyd’s Rep 403 , 431; Robert Goff LJ in Armagas Ltd v Mundogas SA[1985] 1 Lloyd’s Rep 1 , 57.” [40] This is not all new thinking, as the dates of the cases cited in the footnote make clear. Armagas v Mundogas, otherwise known as The Ocean Frost, has been routinely cited over the past 35 years. Lord Bingham’s paper on “The Judge as Juror” (Chapter 1 of The Business of Judging) is also familiar to many. Of the five methods of appraising a witness’s evidence, he identified the primary method as analysing the consistency of the evidence with what is agreed or clearly shown by other evidence to have occurred. The witness’s demeanour was listed last, and least of all. [41] A recent illustration of these principles at work is the decision of the High Court of Australia in Pell v The Queen [2020] HCA 12. That was a criminal case in which, exceptionally, on appeal from a jury trial, the Supreme Court of Victoria viewed video recordings of the evidence given at trial, as well as reading transcripts and visiting the Cathedral where the offences were said to have been committed. Having done so, the Supreme Court assessed the complainant’s credibility. As the High Court put it at [47], “their Honours' subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence …”
"I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help." "
"Psychologists and other students of human communication have investigated many aspects of deceptive behavior and its detection. As part of this investigation, they have attempted to determine experimentally whether ordinary people can effectively use nonverbal indicia to determine whether another person is lying. In effect, social scientists have tested the legal premise concerning demeanor as a scientific hypothesis. With impressive consistency, the experimental results indicate that this legal premise is erroneous. According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments."
“1.3 Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory: (1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but (2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore (3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.” (1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but (2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore (3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.”
“[28] Many matters were mentioned as constituting differences between the deceased and his children. A great deal of evidence was devoted to them. In many respects the claimants and co-defendants disagree with what is said about them, and maintain that their father was not estranged from them and would not have freely decided to disinherit them. It should be inferred, they say, that Tony has influenced his father so that he either cut the others out of his will despite not being estranged from them, or so that he came to think, wrongly that they had behaved badly towards him.”
“ One way or the other, they are prepared to present the facts as they see will suit the case they wish to advance.”
“…there is a dispute between the applicant and the Council as to the precise form of approved development.”
“To professional charges in respect to acting on your behalf. Instructions to prepare joint venture agreement between Connoisseur Developments Limited and Koumis Kyriacou and Flora Kyriacou and Christopher Koumis and Antros Koumis. Taking instructions in respect to proposed joint venture agreement. Drafting agreement and undertaking further instructions amending agreement and further conference. To finalising a agreement and to execution of agreement.”
“We are instructed that in 2006 you prepared a Joint Venture Agreement on behalf of our client [Koumis], his late wife, [the Company, Chris and Andy].”
“(3) The project is already completed and has been tenanted for the last 2½ + years. The purpose of registering the flats is for a variety of reasons. Firstly, at the moment, the building is just one entity and our bank has a charge on the whole site for a loan of only£810k , even though the value is approximately£3.6 million . Basically a loan-to-value of between 20 to 25%. We cannot raise any more finance and are basically stuck with the current bank. As a result of the planning issues we have on some of the flats, the bank is using the problems as an excuse to be less competitive with their loan rates and terms, and every year they have been increasing them & charging an arrangement fee annually. With the current planning problems, no other lender will consider us. By registering the flats individually there will be many benefits to the company and ourselves personally. We would be able to refinance competitively by simply taking out remortgages on individual flats to the value we require. We will need to remortgage approximately 4 flats to pay off the existing loan to our bank, RBS. We can then remortgage a couple more flats to pay off some monies to our father (as per the joint venture agreement). These remortgages would be more competitive but the main benefit is that they will be for a longer term we will not have to pay an arrangement fee every year (currently at approx£12k ). Excluding the 2 flats with the planning issues, we will still have another 3 flats (including personal ones) that will be unencumbered and available for refinancing, if we so wish. Another benefit of the individual registration is that myself, my brother and the company will now have the security of leases on our names, thus having equity after having spent£1.5 million on the project.”
“The fact that the deceased was unhappy at being unpaid did not cause a breakdown with Andy at least until the end of 2012. Andy continued to be a regular visitor to his father until then. Maria confirmed that he and Chris (presumably until the allegation about the icon) had been responsible for making medical appointments and taking their father to and from them and that Andy had helped his father with reading letters sent and completing forms.”
“SL..obviously with the enforcement notice, the actual restructuring of the loan has been outstanding for some time…” (2) (having made the point that the sale of Flats on long leases would be key to realising money) “SL: obviously what could curtail things is the enforcement notice isn’t it..that’s going to delay the matters” (3) When asked for a copy of the Lease comprising Schedule 2 of the JVA, Andy answered: “ultimately its the freeholder who is supposed to do the lease but according to this we are acting as he freeholder’s agent and we are responsible for doing the lease, and we are going to give him a copy of it for him to approve it. That’s fine. …. ,,I’m going o give you that information that you want, which really the old man should have had apart from the lease because it hasnt been done yet. Unless we get approval to go ahead how can we….” (4) Whether as lending to Andy and Chris half each or the full£800,000 or so then outstanding to Chris and Andy jointly or£800,000 or so to Koumis, the Bank was looking to refinance the existing interest only borrowing from the Bank and replacing it with a 3 year loan repayable at about£7 -8,000 per month, the bank’s security being over 7 of the 9 Flats. (5) Andy explained that what he had understood Koumis to have agreed was that he, Koumis, would get two of the Flats and the Freehold; and the Bank borrowings would be moved to Chris and Andy, so that Koumis had no further liability in respect of them. (6) Andy however made clear that planning permission was still needed. (7) Mr Liversidge made clear that the idea was that the s106 agreement would be negotiated with the Council, planning permission would then be granted subject to works being done and within 6 months further works required by the Council would be required to be completed. Koumis would then be given two flats worth about£700,000 which he could then sell to realise cash. (8) Tony then raised an issue about what happened if Koumis could only sell the two flats for£600,000 . Andy made the point that the Bank had had the Flats valued and that in addition Koumis was getting the freehold and he had already had£140,000 by way of rent. (9) Andy asserted that the Development had not been completed because planning permission was outstanding. (10) Tony suggested that Chris and Andy could borrow a further£1.6 million and repay the Bank and pay Koumis under the JVA. Andy said that no bank would lend£1.6 million . Mr Liversidge later confirmed the Bank would not be prepared to lend£1.6 million and that in his view the majority of high street banks would take the same position: “because of the current issues with the properties..and the fact that there’s not enough leases on them, I think you’d be very highly unlikely to be able to refinance those flats in the current marketplace”. (11) Mr Liversidge stated that his understanding was that “they’ve not been able to sell any flats because of the enforcement notice”
“(2) The powers of the administrator are limited to bringing to a conclusion the [JVA] made between the Deceased, his late wife, [the Company], [Andy] and [Chris] and dated4 August 2006 and include but are not limited to: (i) granting/joining in the granting of leases; (ii) signing documentation necessary to satisfy the local planning authority; (iii) discharging the borrowing secured over the property; or (iv) transferring the Property to [the Company]; (v) in the event of any dispute as to the administrator’s powers any party may apply to the Court.” (i) granting/joining in the granting of leases; (ii) signing documentation necessary to satisfy the local planning authority; (iii) discharging the borrowing secured over the property; or (iv) transferring the Property to [the Company]; (v) in the event of any dispute as to the administrator’s powers any party may apply to the Court.”
“[57] …Sincethese were the only grounds on which the Inspector's decision to dismiss the appeal against the Second Respondent's refusal to grant planning permission was challenged, it follows that I would dismiss the Appellant's appeal against Walker J's order insofar as it dismissed the Appellant's application to quash the Inspector's decision on the planning appeal under section 288 of the Act.”
“the Appellant's submission that the [relevant Council notice] was not effective to overcome the consequences of the only error in the Inspector's decision.”
“Relevant general legal principles [17] The well-known general principles of contractual construction are to be found in a series of recent cases, including Rainy Sky SA v Kookmin Bank[2011] UKSC 50 ;[2011] 1 WLR 2900 ; Arnold v Britton and others[2015] UKSC 36 ;[2015] AC 1619 and Wood v Capita Insurance Services Ltd[2017] UKSC 24 ;[2017] AC 1173 . 18. A simple distillation, so far as material for present purposes, can be set out uncontroversially as follows: i) When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. It does so by focussing on the meaning of the relevant words in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the contract, (iii) the overall purpose of the clause and the contract, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions; ii) The reliance placed in some cases on commercial common sense and surrounding circumstances should not be invoked to undervalue the importance of the language of the provision which is to be construed. The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable reader, and, save perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision. Unlike commercial common sense and the surrounding circumstances, the parties have control over the language they use in a contract. And, again save perhaps in a very unusual case, the parties must have been specifically focussing on the issue covered by the provision when agreeing the wording of that provision; iii) When it comes to considering the centrally relevant words to be interpreted, the clearer the natural meaning, the more difficult it is to justify departing from it. The less clear they are, or, to put it another way, the worse their drafting, the more ready the court can properly be to depart from their natural meaning. However, that does not justify the court embarking on an exercise of searching for, let alone constructing, drafting infelicities in order to facilitate a departure from the natural meaning; iv) Commercial common sense is not to be invoked retrospectively. The mere fact that a contractual arrangement, if interpreted according to its natural language, has worked out badly, or even disastrously, for one of the parties is not a reason for departing from the natural language. Commercial common sense is only relevant to the extent of how matters would or could have been perceived by the parties, or by reasonable people in the position of the parties, as at the date that the contract was made; v) While commercial common sense is a very important factor to take into account when interpreting a contract, a court should be very slow to reject the natural meaning of a provision as correct simply because it appears to be a very imprudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight. The purpose of interpretation is to identify what the parties have agreed, not what the court thinks that they should have agreed. Accordingly, when interpreting a contract a judge should avoid re-writing it in an attempt to assist an unwise party or to penalise an astute party; vi) When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time the contract was made, and which were known or reasonably available to both parties. [19] Thus the court is concerned to identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean. The court's task is to ascertain the objective meaning of the language which the parties have chosen to express their agreement. This is not a literalist exercise; the court must consider the contract as a whole and, depending on the nature, formality, and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to that objective meaning. The interpretative exercise is a unitary one involving an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences investigated.”
“[130] I will ….start with the law. I was referred by both Ms Jones and Mr McCaughran to a number of authorities on the question whether a fiduciary duty is owed by one person to another. For the most part I did not detect any significant difference between them as to the law; the authorities referred to were rather put forward as illustrations, thought to be helpful to one side or the other, of the principles. In those circumstances, I do not intend to discuss the authorities at length, but will try and summarise what I understand the principles to be. [131] Those are I think as follows: (1) There are a number of settled categories of fiduciary relationship. The paradigm example is that of trustee and beneficiary; other well-settled examples are solicitor and client, agent and principal, director and company (subject to the impact of theCompanies Act 2006 ), and the relationship between partners: Snell’s Equity (33rd edn, 2015) at §7-004. (2) Outside these settled categories, fiduciary duties may be held to arise if the particular facts warrant it. Identifying the circumstances that justify the imposition of fiduciary duties has been said to be difficult because the courts have consistently declined to provide a definition, or even a uniform description, of a fiduciary relationship: ibid at §7-005. (3) Fiduciary duties will not be too readily imported into purely commercial relationships. That does not mean that fiduciary duties do not arise in commercial settings – indeed they very frequently do, as the example of agency illustrates – but that outside the settled categories, this is not common, it being normally inappropriate to expect a commercial party to subordinate its own interests to those of another commercial party: ibid. (4) A joint venture is not one of the settled categories of relationship giving rise to fiduciary duties between the joint venturers. Although at first sight the analogy with a partnership might suggest that it would be, it is clearly established that the phrase “joint venture” is not a term of art either in a business or in a legal context, and each relationship which is described as a joint venture has to be examined on its own facts and terms to see whether it does carry any obligations of a fiduciary nature: Ross River Ltd v Waveley Commercial Ltd[2013] EWCA Civ 910 (“Ross River”) at [34] per Lloyd LJ. (5) The default position is that no such fiduciary duties arise. In the absence of agency or partnership, it would require particular and special features for such fiduciary duties to arise between commercial co-venturers: Crossco No 4 Unlimited v Jolan Ltd[2011] EWCA Civ 1619 at [88] per Etherton LJ. Examples of cases where, exceptionally, fiduciary duties have been held to arise are the decision in Ross River itself; that of Etherton J in Murad v Al-Saraj[2004] EWHC 1235 (Ch) (“Murad”) (appealed, but not on this point:[2005] EWCA Civ 959 at [4]); and that of Peter Smith J in J D Wetherspoon plc v Van de Berg & Co Ltd[2009] EWHC 639 (Ch) (“Wetherspoon”). In Wetherspoon one director of the defendant company was found to have owed a fiduciary duty but the other two not, and it was said by Lloyd LJ in Ross River at [37] to be a good illustration of the proposition that the existence of a fiduciary duty in such a case is very fact-sensitive. With these can be contrasted two recent cases in which fiduciary duties have been held not to arise between co-venturers: Baturina v Chistyakov[2017] EWHC 1049 (Comm) (Sue Carr J), and Cullen Investments Ltd v Brown[2017] EWHC 1586 (Ch) (Barling J) (“Cullen”), a case coincidentally involving Mr Watson. (6) What then are the particular factual circumstances that will lead to the Court finding that fiduciary duties are owed? This can best be elucidated by a number of citations: (a) In his well-known classic judgment in Bristol & West Building Society v Mothew[1998] Ch 1 (“Mothew”) at 18A, Millett LJ said: “A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.” (b) In Arklow Investments Ltd v Maclean[2000] 1 WLR 594 at 598G, Henry J, giving the judgment of the Privy Council, said: “the concept encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal.” (c) In F&C Alternative Investments (Holdings) Ltd v Barthelemy (No 2)[2011] EWHC 1731 (Ch) at [225], Sales J said: “Fiduciary duties are obligations imposed by law as a reaction to particular circumstances of responsibility assumed by one person in respect of the conduct of the affairs of another.” (d) In another case involving Ross River Ltd, Ross River Ltd v Cambridge City Football Club[2007] EWHC 2115 (Ch) (cited by Lloyd LJ in Ross River at [56]-[58]), Briggs J referred at [198] to: “well known badges or hallmarks of a fiduciary relationship, such as … [if] the plaintiff entrusts to the defendant a job to be performed, for instance, the negotiation of a contract on his behalf or for his benefit.” (e) In Ross River at [51]-[52] Lloyd LJ cited with approval a passage from Bean, Fiduciary Obligations and Joint Ventures (1995) (itself referring to Finn, Fiduciary Obligations (1977)), which is too long to set out in full but the essence of which is as follows: “[Fiduciary] office holders are entrusted with power to act for the benefit of another, but are not under the immediate control and supervision of the beneficiary… Finn’s rationale is that the fiduciary who has freedom to determine how the interests of the beneficiary are to be served requires the supervision of equity. Indeed, it is the fiduciary’s autonomy in decision-making that requires equity’s supervision and this is required whether or not the autonomy is created under a contract between the parties or is inherent in the office.” (7) Without in any way attempting to define the circumstances in which fiduciary duties arise (something the courts have avoided doing), it seems to me that what all these citations have in common is the idea that A will be held to owe fiduciary duties to B if B is reliant or dependent on A to exercise rights or powers, or otherwise act, for the benefit of B in circumstances where B can reasonably expect A to put B’s interests first. That may be because (as in the case of solicitor and client, or principal and agent) B has himself put his affairs in the hands of A; or it may be because (as in the case of trustee and beneficiary, or receivers, administrators and the like) A has agreed, and/or been appointed, to act for B’s benefit. In each case however the nature of the relationship is such that B can expect A in colloquial language to be on his side. That is why the distinguishing obligation of a fiduciary is the obligation of loyalty, the principal being entitled to “the single-minded loyalty of his fiduciary” (Mothew at 18A): someone who has agreed to act in the interests of another has to put the interests of that other first. That means he must not make use of his position to benefit himself, or anyone else, without B’s informed consent. (8) This analysis also explains why fiduciary duties will not readily be found in commercial settings. In commercial dealings the relationships are (usually) primarily contractual; and it is of the essence of commercial contracts that each party is (usually) entitled, subject to the express and implied constraints of the contract, to seek to prefer his own interests, and is not obliged to put the interests of the other party first. (9) So far as joint ventures are concerned, fiduciary duties may in particular be found to arise where one party has control of assets which are to be exploited for the joint benefit of both. Thus for example in John v James[1991] FSR 397 at 433 Nicholls J said of a publishing agreement: “The copyrights were to be assigned to the publisher, and to become its property, but with the intention that they would be exploited by the publisher, which would have complete control over the method of exploitation, not for its benefit alone but for the joint benefit. Thus, commercially, the arrangement was in the nature of a joint venture, and the writers would need to place trust and confidence in the publisher over the manner in which it discharged its exploitation function.”
“a clear and instructive example of a transaction in the nature of a joint venture where the relevant assets belong legally and beneficially to one party, whose task it is to exploit them, but they are to be exploited for the common benefit of both parties, and where fiduciary duties arose from the situation despite the fact that the operator had its own personal interest in the exploitation to which it was entitled to have regard.” (10) Even if a party is held to have owed a fiduciary duty to another party, the nature of the fiduciary obligations owed is itself a fact-sensitive enquiry, to be determined by considering the particular relationship between the parties: Ross River at [64]. Thus for example in John v James the defendants were not disposed to dispute that the publisher owed a fiduciary obligation to account for royalties received, but it was disputed, and had to be decided, whether it owed a fiduciary obligation in respect of exploitation of the copyrights; in Ross River Morgan J had found that the defendants owed fiduciary duties in certain respects but not others, and the Court of Appeal found that the duties were more extensive. [131] Those are I think as follows: (a) In his well-known classic judgment in Bristol & West Building Society v Mothew[1998] Ch 1 (“Mothew”) at 18A, Millett LJ said: “A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence.” (b) In Arklow Investments Ltd v Maclean[2000] 1 WLR 594 at 598G, Henry J, giving the judgment of the Privy Council, said: “the concept encaptures a situation where one person is in a relationship with another which gives rise to a legitimate expectation, which equity will recognise, that the fiduciary will not utilise his or her position in such a way which is adverse to the interests of the principal.” (c) In F&C Alternative Investments (Holdings) Ltd v Barthelemy (No 2)[2011] EWHC 1731 (Ch) at [225], Sales J said: “Fiduciary duties are obligations imposed by law as a reaction to particular circumstances of responsibility assumed by one person in respect of the conduct of the affairs of another.” (d) In another case involving Ross River Ltd, Ross River Ltd v Cambridge City Football Club[2007] EWHC 2115 (Ch) (cited by Lloyd LJ in Ross River at [56]-[58]), Briggs J referred at [198] to: “well known badges or hallmarks of a fiduciary relationship, such as … [if] the plaintiff entrusts to the defendant a job to be performed, for instance, the negotiation of a contract on his behalf or for his benefit.” (e) In Ross River at [51]-[52] Lloyd LJ cited with approval a passage from Bean, Fiduciary Obligations and Joint Ventures (1995) (itself referring to Finn, Fiduciary Obligations (1977)), which is too long to set out in full but the essence of which is as follows: “[Fiduciary] office holders are entrusted with power to act for the benefit of another, but are not under the immediate control and supervision of the beneficiary… Finn’s rationale is that the fiduciary who has freedom to determine how the interests of the beneficiary are to be served requires the supervision of equity. Indeed, it is the fiduciary’s autonomy in decision-making that requires equity’s supervision and this is required whether or not the autonomy is created under a contract between the parties or is inherent in the office.” “The copyrights were to be assigned to the publisher, and to become its property, but with the intention that they would be exploited by the publisher, which would have complete control over the method of exploitation, not for its benefit alone but for the joint benefit. Thus, commercially, the arrangement was in the nature of a joint venture, and the writers would need to place trust and confidence in the publisher over the manner in which it discharged its exploitation function.” “a clear and instructive example of a transaction in the nature of a joint venture where the relevant assets belong legally and beneficially to one party, whose task it is to exploit them, but they are to be exploited for the common benefit of both parties, and where fiduciary duties arose from the situation despite the fact that the operator had its own personal interest in the exploitation to which it was entitled to have regard.” ….. [134] I will add one further point here. The reference in the cases (such as John v James, Mothew and Longstaff v Birtles) to a relationship of “trust and confidence” does not mean that every relationship in which one party trusts the other is a fiduciary relationship. Contracting parties usually do trust each other – indeed they would be unlikely to do business with each other if they did not – but this does not mean that they owe each other the duties which are peculiar to fiduciaries. What I think is meant by a relationship of trust and confidence in this context is where one party places himself, or is placed, in the position where he trusts and confides that the other party will act exclusively in the first party’s interests. If the concept of trust and confidence is not confined in this way, it seems to me to cease to be of any utility in determining whether a fiduciary duty is owed: cf the recent decision of Leggatt LJ (at first instance) in Sheikh Al Nehayan v Kent[2018] EWHC 333 (Comm) (“Al Nehayan”) at [164]-[165]. This judgment, which contains a valuable analysis of the whole question of fiduciary duties (see at [153ff]), was not available at the time of the hearing, but it contains nothing with which I disagree, and on this particular point seems to me plainly right, and I have not thought it necessary to ask for the parties’ further submissions on it.”
“Third, there is considerable evidence that the deceased and his wife were unhappy to have been kept out of their money from the JVA since before Flora died in 2010. The deceased and Flora both told Maria that they wanted their money in order to go on a cruise. The deceased said the same to his solicitor Mr. Achillea when instructing him about the JVA. It was submitted that they did not lack money, as they were receiving the rents of two flats, and had also given various amounts to different children in the period 2006-9, but it is impossible to say without a detailed breakdown of their finances whether this meant they had sufficient for what they wanted. Whether they could in fact have funded the cruise from other resources is beside the point; they had themselves made clear they wanted to be paid under the JVA long before Tony is alleged to have influenced them, so that wish cannot have been put in their minds by Tony.”
“I absolutely know this 100% through conversations with my aunty, uncle, Chris and Andy”
“TK: … alright Whatever you’ve agreed-you agreed you were going to give him two flats that’s the£800,000 finished….. AK: … and the freehold… And he’s already got£140,000 … CK: …. he’s been getting money all the time! AK: … He’s been getting£140,000 as well…. …… TK: …from what I understand the rent they’re giving him now- the 2 ½ thousand pounds he gets every month - is coming off the£800,000 they owe him… AK: …. well that’s…. The agreement doesn’t say…. SL: … the….the… no…sorry… AK: … Doesn’t say that we should give him anything. Then why did we agreed to give him£800,000 ? What’s your response to that?”
“SL: …[inaudible] understand is this is - Andy and Chris will pay£800,000 . OK? Are you also saying OK you want to retain the freehold? TK: Yes. He…my father [inaudible] holding the freehold, yes. AK: …and they received£140,000 so far… SL: …OK…now am I right in thinking..does that sit outside the JV agreement? AK: Of course it does. SL: Right. OK. TK: Sorry, say that again…. It AK: Way out of it. TK: Sorry: Is that what? SL: I said is that… AK: ….it’s not in there what you’re asking for….. SL: ….basically by paying£800,000 and you retaining the freehold TK: …it doesn’t mention anything…. AK: …and after the money we’ve paid them.”
“we were just looking around, we did not approach anyone.”