“41. The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”
“Can’t answer this myself, would have to get info from Sandra”
“Kelly will be able to advise you as to whether or not she has received any demand for excess service charge since she has owned the other flat.”
“Repayments still represent a hefty commitment and I am not sure whether income generated will cover these going forward or whether cash will need to be injected by JB to meet.”
“With current debt of£1.25m we would thereafter need gtee from JB in sum of£725k . This would be too big a commitment toprovide on an unsupported basis and I would therefore want to benefit from cash cover currently held by way of formal charge.”
“£2,000,000 of the sum of£2,399,148.88 belongs to [the claimant] as the true and rightful owner of the same as the Trustee by this Deed acknowledges.”
“31. Of course, in the Summer of 2008, the banking crisis hit and the world economic downturn took a heavy toll on the business jet market. Charter income began to dry up as there is an over supply of business jets and by May 2009, the account with [Four Seasons Aviation] showed signs of distress. There was a payment overdue and a couple of payments had been received late.”
“As promised yesterday I have had a look at the allocation of the value of the sale of the Chantry. It was sold for£6.8m and was held in joint names. So£3.4m is attributable to SB and same to JB. The mortgage on redemption was£3.8m of which£1m approx was obtained to finance JB's business projects. So only£2.8m was appropriate to the original purchase and improvements to the property. Therefore£1.4m of the redeemed mortgage was relevant to Sandra and£2.4m to John. This means that approx allocation of sales proceeds was£2m to Sandra with£1 [sic] to John. John's share was quite clearly used to pay his business debts since then. These are only approx figures but I think it simply explains the facts.”
“Please accept this letter as my irrevocable undertaking giving Natwest Bank full control of the£1,000,000 currently held on Treasury Reserve (Deal ID P21272026500004, settlement account 64190153 / 601530) due to mature28 October 2009 .”
“Ah yes but we were man and wife. I don’t need to have permission. We are man and wife for Christ …”
“Huh? Yes but Finella, she is my wife, I can do what I like … I was looking after the Trust, there was no objection to me doing whatever I did, I have done it for years, you know, blah, blah, blah …”
“If you have any particular positions you wish us to stick to come hell or high water, please let us know. At this stage we should decide the absolutely minimum deal we can accept and build from there.”
“38. In breach of:- (a) the implied terms of the retainers of the Defendant set out in paragraphs 29 to 37 of these Particulars of Claim; and (b) its concomitant duty of care in tort; the Defendant:- (c) failed to exercise the care and skill to be expected of reasonably competent solicitors in the performance of its duties pursuant to the respective retainers; and (d) failed to carry out both Kelly Blower’s and the Claimant’s instructions with reasonable diligence; and (e) failed to act in the best interests of the Claimant, Kelly Blower and Mr & Mrs Turnbull.” (a) the implied terms of the retainers of the Defendant set out in paragraphs 29 to 37 of these Particulars of Claim; and (b) its concomitant duty of care in tort; (c) failed to exercise the care and skill to be expected of reasonably competent solicitors in the performance of its duties pursuant to the respective retainers; and (d) failed to carry out both Kelly Blower’s and the Claimant’s instructions with reasonable diligence; and (e) failed to act in the best interests of the Claimant, Kelly Blower and Mr & Mrs Turnbull.”
“339. (1) Subject as follows in this section and sections 341 and 342, where an individual is [made] bankrupt and he has at a relevant time (defined in section 341) entered into a transaction with any person at an undervalue, the trustee of the bankrupt's estate may apply to the court for an order under this section. (2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that individual had not entered into that transaction. (3) For the purposes of this section and sections 341 and 342, an individual enters into a transaction with a person at an undervalue if— (a) he makes a gift to that person or he otherwise enters into a transaction with that person on terms that provide for him to receive no consideration, (b) he enters into a transaction with that person in consideration of marriage [or the formation of a civil partnership], or (c) he enters into a transaction with that person for a consideration the value of which, in money or money's worth, is significantly less than the value, in money or money's worth, of the consideration provided by the individual.”
“(1) This section applies where before the commencement of the bankruptcy there have been mutual credits, mutual debts or other mutual dealings between the bankrupt and any creditor of the bankrupt proving or claiming to prove for a bankruptcy debt. (2) An account shall be taken of what is due from each party to the other in respect of the mutual dealings and the sums due from one party shall be set off against the sums due from the other. (3) Sums due from the bankrupt to another party shall not be included in the account taken under subsection (2) if that other party had notice at the time they became due that [proceedings on a bankruptcy application relating to the bankrupt were ongoing or that]a bankruptcy petition relating to the bankrupt was pending. (4) Only the balance (if any) of the account taken under subsection (2) is provable as a bankruptcy debt or, as the case may be, to be paid to the trustee as part of the bankrupt's estate.”
“48. Had the Defendant properly so advised the Claimant, she would not have agreed to the settlement comprised in the Settlement Deed (as indeed she did not) and/or would not have agreed to settle the TiB’s claim for the sum to which she was committed by the Defendant or in any sum at all.”
“94. C’s case is that once proper conflict advice had been given, Mr Blower would either have been separately represented or a position would have been agreed on the basis outlined above. The former would have made any deal impossible because, whatever Mr Blower said, C, Natalie and Mrs Blower [this is probably a mistake for “Kelly”; see line 2 of paragraph 95] would have prevented any such agreement. The latter would have either led to a settlement that acknowledged the factual reality. Or to no settlement being reached. Given the facts of the case, it is surpassingly unlikely that the TiB would have ventured his money on litigation: he was insured against the Blowers’ costs, but would have had to account for his own. Commercially, the case was defensible on the merits and would have been costly to run. 95. It is submitted that, on the balance of probabilities, C, Natalie and Kelly would not have authorised Mr Whitehouse to represent them in the mediation at all, let alone settle, if they had been fully and properly advised: see, e.g. [TRANS 353/157/22 – 159/18]. They would either have waited until the proceedings were issued and there was, therefore, a properly articulated position, or insisted that counsel was fully instructed to ascertain the position and attend the mediation, or told him to cancel the mediation. Mr Whitehouse explained that he anticipated playing second fiddle to Counsel at the Mediation: WS §69 [A179]. [ … ] 111. … The Court is entitled to and should conclude on the balance of probabilities that the TiB would not have secured the result actually secured had there been no negligence. Once that conclusion is reached, causation is established. [ … ] 118. On C’s submission the issue of what the TiB would have done is a matter of quantification. But, to address the issue here, looking at matters from the TiB’s perspective, it is likely that the TiB would have done a deal for a lesser sum than was agreed in the Settlement. … [ … ] 134. It is submitted that, C being properly represented at Mediation, the TiB would nonetheless have continued to assert that Mr Blower had a half share in 201 Parkgate, and his claim would defeat Kelly’s position, such that the TiB would be entitled to£65,000 together with the costs of those proceedings from Mr and Mrs Blower (initially); and latterly, from Kelly. In the circumstances, there was a deal to be done with the TiB that involved the sale of 201 Parkgate (even if Mr and Mrs Blower needed to account back to Kelly for the loss of this property). This was achievable without putting significant assets at risk, and without putting any of the Blowers’ homes at risk. On the balance of probabilities, this was where the deal lay.”
“284. When a solicitor gives advice that his client has a strong case to start litigation rather than settle and the client then does just that, the normal inference is that the advice is causative. Of course the inference is rebuttable – it may be possible to show that the client would have gone ahead willy-nilly. But that was certainly not shown on the evidence here. The Judge should have approached the case on the basis that the evidential burden had shifted to Linklaters to prove that its advice was not causative. Such an approach would surely have led him to a different result.”