Quick Property Sale Limited v Oladotun Olakunle Solaja & Anor [2025] EWHC 1257 (Ch)

[2025] EWHC 1257 (Ch)Case No PT-2023-000037IN THE HIGH COURT OF JUSTICEBUSINESS AND PROPERTY COURTS OF ENGLAND AND WALESPROPERTY TRUSTS AND PROBATE LIST (ChD)Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 28/5/2025
Before
MASTER CLARK
Between
QUICK PROPERTY SALE LIMITEDClaimant(1) OLADOTUN OLAKUNLE SOLAJADefendants(2) OLAYEMI OLAJUMOKE SOLAJADefendant
Tim Hammond (instructed by Jury O’Shea LLP) for ClaimantThe Defendants in person for in personHearing Hearing dates: 25-27 February 2025
Approved JudgmentThis judgment was handed down remotely at 10.00 am on 28 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................Master Clark:
[1]This is the trial of a claim brought by claim form dated 23 January 2023 for specific performance of a contract for the sale of land.

Parties and the claim

[2]The claimant, Quick Property Sale Limited (“QPS”) is a property investment company that buys properties and then either resells them, or rents them out.[3]The defendants, Oladotun and Olayemi Solaja are a married couple who were, until shortly before the trial, the owners of 8 Weston Lodge, Portsmouth Road, Thames Ditton Surrey KT17 0EZ (“the property”). They lived there with their children until 19 October 2022, when the property was repossessed by their mortgagee, Santander UK PLC (“the bank”)[4]On 25 October 2022 they entered into a written agreement with QPS to sell the property to it for £436,000 (“the Agreement”). This claim is to enforce the Agreement.[5]The Defence defends the claim on the grounds that the execution of the Agreement was procured or induced by:(1) misrepresentations; and(2) undue influence by Mr Paul Essien, who is alleged to be the agent of QPS.. In addition, the bank is alleged to have actual or constructive notice of Mr Essien’s undue influence. The Defence also alleges that the bank would not sanction a sale to QPS or redeem the mortgage because of the actions of QPS and/or the Solajas’ solicitors and/or QPS’s solicitors. The Solajas allege they have rescinded the Agreement. For those reasons, QPS is said not to be entitled to enforce the Agreement.[6]The Solajas were initially legally represented (by Taylor Rose MW) and the Defence was drafted on their behalf by counsel (Robyn Cunningham). However, they represented themselves at the CCMC on 21 February 2024 before Deputy Master Arkush. At that hearing, the parties had agreed, and the Deputy Master ordered, Model B disclosure. However, some of the issues in this claim justify Model D disclosure. The limited scope of Model B has meant that the court does not have the full evidential picture. In particular, the evidence did not include the mortgage deed and/or terms and conditions, the parties’ solicitors’ conveyancing files, nor the claimant’s own correspondence relating to the transaction.[7]On 20 March 2024, the Solajas’ solicitors ceased to act for them, and they have acted in person since then, including representing themselves at the trial. Witnesses QPS’s

Witnesses

[8]QPS called 3 witnesses:(1) Tim Hodges, QPS’s sole director;(2) Natasha Moore, Mr Hodges’ (domestic) partner, who works as a property consultant for QPS;(3) Paul Essien. It did not call Miles Fish, the partner at QPS’s then solicitors, AxiomDWFM, who acted on its behalf in the transaction.[9]Mr Hodges met Mr (but not Mrs) Solaja on one occasion and spoke to Mr Solaja on the phone on one or two occasions. Ms Moore had no direct contact with them. Their evidence was of limited relevance.[10]Mr Essien is a self-employed consultant who works for AX365 Property Services Limited (“AX365”), a company whose business is contacting homeowners facing eviction, with a view to sourcing a buyer for their properties. Mr Essien was not an entirely satisfactory witness. His witness statement did not reveal that he was paid on a commission basis, so had a direct financial interest in the sale of the property. He did not give a credible explanation as to how he obtained Mrs Solaja’s phone number or, more importantly, her consent to his calling her, and I find that he cold called her. In addition, his evidence as to whether he provided the Solajas with a panel of solicitors to choose from lacked credibility (for reasons given below) and was inconsistent with his contemporaneous emails. I therefore treat his evidence with caution, and where it conflicts with that of the Solajas, prefer their evidence.

Defendants’ witnesses

[11]Mr and Mrs Solaja both gave evidence. I found them to be honest witnesses who did their best to help the court.

Factual background

[12]The basic factual background is largely undisputed. To the extent that it is, these are my findings of fact.[13]Mr and Mrs Solaja bought the property on 6 August 2007 with the benefit of a loan secured by a legal charge (“the mortgage”) on it in favour of the bank.[14]In about 2015, they became unable to meet the payments due in respect of the loan, and the bank brought possession proceedings. There were a number of hearings in the possession claim in 2015, 2016 and 2017. At some stage a possession order was made. On 9 September 2022 a warrant of possession was issued by the County Court at Kingston upon Thames, with a date for execution of 19 October 2022. Mr Solaja applied to the court to suspend the warrant. His application was heard on 18 October 2022, and was unsuccessful.[15]Mr Essien’s business model is to access and use the information in County Court cause lists (published on CourtServe) to identify claims in which the claimant is a mortgage lender, and the defendant is an individual. He then uses people-tracing tools to find the owners and address of the property concerned, and, as he put it, start sending letters.[16]In October 2022, Mr Essien identified the Solajas’ application to suspend the warrant of possession, and traced them and the property.[17]On 18 October 2022, he phoned Mrs Solaja. Mrs Solaja was not expecting his call, she did not know who he was, or how he had obtained her number. He told her he knew that Mr Solaja had gone to court in connection with repossession proceedings. She cut the call short.[18]The following day, 19 October 2022, Mr Essien came to the property early in the day, before the bailiffs had arrived. He was uninvited and had not told the Solajas he would be coming to their house. Only Mr Solaja was there, Mrs Solaja having left earlier with the children. Mr Essien presented himself as someone with some authority, there to provide advice and help protect the Solajas’ interests: someone who could help them and whom they could trust. He told Mr Solaja that the bank would be looking out for their own interests, and not the Solajas’ interests. He referred to his own personal experience of repossession. He advised them to move quickly, as the bank and their asset managers, Equivo and Countrywide, would be levying daily charges related to the repossession which would fall to be paid by the Solajas. He also said that as the Solajas held significant equity in the property, in his professional opinion a quick sale would be their best option; and that he, as an agent, could arrange this.[19]Mr Essien’s account of the arrangements he reached with the Solajas is set out in his email dated 15 December 2022 to Mr Hodges:
“AX365 agreed with the Solajas that they would find a third party that would release funds required to redeem their mortgage, subject to the subsequent sale of their interest in the property.”
[20]The bank went into possession of the property at 10.10am that day.[21]The Solajas spent the rest of the day, 19 October 2022, at the offices of the local authority (Elmbridge Borough Council) trying to arrange accommodation for the night. The local authority housed the family in a single room in a guest house in Langley, near Slough. This was 20 and 30 miles from where their sons were at school. Mr Essien offered to help the Solajas with arranging accommodation. He told Mr Solaja that he had friends that worked at the council, who could help them obtain more suitable accommodation. He also offered to speak to any buyer to ask them to release £5-10,000 to enable the Solajas to find alternative accommodation.[22]Mr Essien took photographs and details of the property while he was there.[23]The following morning 20 October 2022, Mr Essien told the Solajas that he had solicitors ready to work on the transaction and that they needed to go to their offices immediately. Mr Solaja told him that this was not possible as they needed to be with the children. Mr Essien emailed Leo Shogunle of James Solicitors, copying in Mr Solaja, effectively instructing him to act, and to start contacting the bank and the other charge holders on the property’s title. Mr Shogunle replied asking that the Solajas come in that day with all necessary documents i.e. passports, proof of address and mortgage statements. Mr Essien replied:
“Not today as we are navigating the rehousing situation.”
[24]In his witness statement Mr Essien claimed to have provided Mr Solaja with details of 3 firms of solicitors; and that Mr Solaja chose James Solicitors as being closest to the family’s temporary accommodation. In cross examination, Mr Essien said that he put forward a panel comprising James Solicitors (based in Woolwich), Whitmore Law (based in Ilford) and Taylors Legal (based in Chigwell). However, as mentioned, the Solajas’ temporary accommodation was in Langley, near Slough; and the notion of Woolwich being nearer or more convenient to that location is nonsensical. Indeed, as Mr Solaja said, public transport links meant that it would have been easier to get to Ilford or Chigwell from Slough. Mr Essien also denied knowing that the Solajas were in Langley, when it was clear from transcripts of his WhatsApp messages with Mr Solaja that he did know that.[25]Mr Essien’s evidence was also inconsistent with his email dated 15 December 2022 to Mr Hodges in which he said:
“AX365 asked Mr Solaja if he has a solicitor that he could use. He stated that he did not. James Solicitors were then suggested to him by AX365 as a firm to consider.”
[26]Mr Solaja’s evidence was that Mr Essien did not provide a panel but just recommended James Solicitors who were not near or particularly convenient to get to. I accept that evidence, and reject Mr Essien’s evidence that he provided a choice of solicitors.[27]On the same day, 20 October 2022, Mr Essien circulated the photographs and details to AX365’s list of prospective buyers. Initially, QPS made an offer of £420,000. Another investment company offered £434,000. Half an hour later, QPS offered £436,000. Mr Essien emailed the Solajas, copying in Mr Shogunle:
“Dear Mr and Mrs Solaja, We have obtained an increased offer of £436,000 for the purchase of your property. The buyer proposes to exchange contracts immediately by releasing the funds required to redeem your mortgage with Santander in full. The buyer has also agreed to make funds available to secure immediate and short term accommodation for the family. Please consider this offer and respond by return of email with your decision.”
(emphasis added) Please consider this offer and respond by return of email with your decision.”[28]This was also the evidence of Mr Hodges in paragraph 35 of his witness statement: the purpose of the deposit was to pay off the mortgage and other charges on the property so that the Solajas could regain possession, so as to transfer the property to QPS on completion. In his oral evidence, Mr Hodges confirmed that the agreement was that the Solajas would use the deposit monies to redeem their mortgage, but that there had to be a contract of sale to protect his (i.e. QPS’s) interest, because without this, the Solajas would have been free to sell to someone else. He was, however, clear that QPS were not lending the deposit monies to the Solajas.[29]Mr Hodges also confirmed QPS’s agreement to providing the Solajas with a cash advance of between £5,000 and £10,000 to secure alternative accommodation. However, this never eventuated.[30]About an hour after receiving Mr Essien’s email, Mr Solaja replied:
“We’d like to proceed.”
[31]On 21 October 2022, the Solajas signed an agency agreement with AX365. This provided that they instructed AX365 to act on their behalf on a sole agency basis for a fee of 2% of the agreed purchase price. They also went to James Solicitors’ offices where they signed:(1) a memorandum of sale dated 20 October 2022;(2) letters authorising James Solicitors to act for them;(3) a contract of sale in which they were the sellers and QPS were the buyers. Mr Shogunle told them not to contact the bank and that he would deal with everything that was needed.[32]On the same day (Friday), Mr Shogunle wrote to the bank requesting a redemption statement as at 31 October 2022 and providing the letters of authority. The following Monday he chased for the redemption statement with an email headed “VERY VERY URGENT REQUEST REQUIRED”.[33]Mr Solaja needed to access the property to collect medication. Mr Essien arranged this. The bank’s agents, Hamptons, agreed that Mr Solaja could have access on 25 October. On 25 October Mr Essien messaged Mr Solaja:
“the buyer has asked to discreetly attend the property with you at 12pm? They are happy to pose as your Brother in Law there to provide support. The keyholder will not be a problem and will most likely be a locksmith or a trainee.”
[34]It is clear from this message that both Mr Essien and Mr Hodges were concerned to conceal from the bank that QPS was a prospective buyer of the property.[35]Mr Solaja was not willing to misrepresent who Mr Hodges was, but in the end he did not need to do so. Contracts were exchanged by telephone on 25 October 2022, and by a letter of that date, James Solicitors acknowledged the “exchange funds” of £231,000.[36]The terms of the Agreement included:(1) the Sellers were the Solajas;(2) the Buyers were QPS;(3) the property was sold with full title guarantee;(4) the price was £436,000;(5) the deposit was £231,000 – on the Solajas’ version of the Agreement, this has been amended in manuscript from £236,000;(6) the completion date was 23 January 2023, “'or such earlier date that is 5 working days after the Buyer (or their solicitor) serves the Seller (or their solicitor) written notice, including email, requiring completion”;[37]The Agreement included the Standard Conditions of Sale (5th edition). Standard Condition 2.2. provided, so far as relevant:
“2.2.5If before completion date the seller agrees to buy another property in England and Wales for his residence, he may use all or any part of the deposit as a deposit in that transaction to be hold on terms to the same effect as this condition and condition 2.2.6. 2.2.6 Any deposit or part of a deposit not being used in accordance with condition 2.2.5 is to be held by the seller’s conveyancer as stake holder on terms that on completion it is to be paid to the seller with accrued interest.”
[38]Standard condition 7.2 provided, so far as relevant:
“7.2 Late completion 7.2.1 If there is default by either or both of the parties in performing their obligations under the contract and completion is delayed, the party whose total period of default is the greater is to pay compensation to the other party. 7.2.2 Compensation is calculated at the contract rate on an amount equal to the purchase price, less (where the buyer is the paying party) any deposit paid, for the period by which the paying party’s default exceeds that of the receiving party, or, if shorter, the period between completion date and actual completion, 7.2.3 Any claim for loss resulting from delayed completion is to be reduced by any compensation paid under this contract.”
[39]In addition, the Special Conditions of the Agreement included terms that:(1) the property was sold with vacant possession on completion: special condition 4.(2) (so far as relevant) the deposit should be held by the Seller's solicitor as stakeholder: special condition 10.[40]As at the date of the Agreement, the Solajas were of course not in possession of the property, and not therefore able to give vacant possession of it unless and until their mortgage was redeemed. In addition, unless and until the mortgage was redeemed, the bank was free to sell the property without regard to the Agreement: Duke v Robson [1973] 1 WLR 267.[41]That afternoon, 25 October 2022, Mr Shogunle emailed the Solajas, confirming that he had exchanged contracts. He attached what he referred to as “amended and final documents” to be executed and returned. These documents did not appear to be in evidence, and it is unclear if the Solajas ever signed them. Mr Shogunle continued:
“As soon as we receive the exchange funds we would be paying off the bank and also to yourselves.”
(emphasis added)[42]Also on 25 October 2022, the bank (Laura Currie) emailed Mr Shogunle:
“Just to confirm the property has been repossessed by Santander on 19.10.2022. for the house to be returned we would require proof of funds in a bank account. Once this information is received, I will then place the property on hold and request costs this will take 7 to 10 working days for the redemption letter to be produced. I would require the following • If funds are being sent by a third party, then I would require a written letter confirm if funds are gifted or loan. This will have to a written letter with a signature from the third party. If no information is sent Santander will be place the property on the open market to sell.”
[43]Mr Shogunle replied:
“We confirm that we have done our due diligence properly and the redemption settlement figures are in our client account. Therefore we should be grateful if you can oblige us with your redemption figure including your costs and payment will be from our clients account to your account.”
[44]The following day, 26 October 2022, Laura Currie of the bank replied:
“I am unable to act your request until you send me proof of funds customer have not made mortgage payments, if this is in a third party account they will have to transfer the funds in your client name or as l confirmed before that I what a written letter from the third party confirm they are gifted the loan the funds to Mr & Mrs Solaja with a signature at the bottom of the letter if you can get this over as soon as possible I will then act on getting the redemption letter. As a bank we are required to have proof of where the funds are coming from when the properly has been taken into repossession this was because Mr & Mrs Solaja had broken their arrangement with Santander bank.”
[45]There is then a break in the correspondence before the court. On 31 October 2022, Mr Solaja spoke to the bank, who reiterated to him that they needed to see a loan agreement. On 1 November 2022, Mrs Solaja emailed Mr Shogunle asking if there was anything they needed to do with regard to the bank. He replied:
“Just chase them like we do.”
[46]Around this time, Mr Solaja called the bank and spoke to Vivenne John, whose job title was Team Manager, Enterprise Risk Management and Oversight. She asked him whether the redemption funds were being either loaned or gifted, to which he replied that they were not. She said that the bank had noted that QPS were mentioned in emails and were the intended buyer of the property. Ms John told Mr Solaja that the bank was clear that the transaction was a sale to QPS, rather than redemption of the mortgage by the Solajas.[47]Ms John then told the Solajas that the bank would not approve a sale to QPS. She gave the following reasons:(1) The bank had to follow an industry code of conduct and were required to look out for the interests of the mortgagor in the case of a repossession.(2) The bank’s policy was not to deal with third party buyers once it had repossessed.(3) Once it had repossessed, the bank would either sell the property on the open market, or accept the mortgagor redeeming using funds that had been loaned or gifted to them.(4) James Solicitors and AxiomDWFM had not provided proof of funds despite being asked to do so by the bank.(5) The bank was concerned about Mr Shogunle’s conduct and had referred the matter to their legal department.(6) She and her colleagues found Mr Shogunle unprofessional and no longer wished to deal with him.[48]On 2 November 2022, Miles Fish, emailed Vivienne John of the bank, apparently replying to an email from her (which was not in evidence):
“I can confirm that my client has released funds to Mr and Mrs Solaja. These funds are for the purpose of redeeming the mortgage in full.”
(emphasis added)[49]This was untrue. The funds had not been released. They were held by James Solicitors as stakeholder pursuant to the Agreement. Furthermore, neither James Solicitors nor AxiomDWFM ever provided the bank with proof of funds.[50]This email was followed by chasing emails to Ms John from Mr Shogunle, the second of which (17.29) said:
“We also have our clients consent to reply to your request that they are satisfied and happy to proceed to redeem their mortgage account in full without further delay as per your telephone conversation to Mr Solaja this afternoon asking if they are happy to go ahead. We are of the opinion that your concerns about the funds have been addressed by both Solicitors in this matter without prolonging the issuance of settlement figures. Please note that tomorrow is the 14 days that we have requested the redemption statement from Santander which is causing unnecessary hardship to our clients and their family. If your other costs are not ready, please provide us with your actual figure now and the balance will be paid as soon as you provide them to us.”
[51]Ms John replied on 3 November 2022:
“Until I have a copy of the agreement to loan the funds to the Borrower I will not be in a position to release the redemption statement. Santander is regulated and to ensure due diligence is adhered to on our part we do need to see the loan agreement as to date, although You have advised their funds are sitting in an holding account we do have to evidence the funds are available. Therefore, I will speak to my legal team this morning to establish if I can go ahead and issue the redemption statement without proof of funds as I am also conscious of the borrower's situation and their need to get back into their property and resume normality for the family. Can you confirm if 'Quick property Sale Ltd' will be the legal owners and the charge will be released to them?”
[52]It would appear that from this email that Ms John believed that the redemption funds were being provided by way of loan, and that the Solajas would be returning to the property to live following redemption of the mortgage.[53]Mr Shogunle did nothing to correct this misapprehension. On 4 November 2022, he wrote to Ms John:
“Our clients are entitled to redeem their mortgage even after repossession as much as we have established the genuinity (sic) of their funds as required by law.”
[54]Ms John replied saying that the letter of authority (LOA) provided by the Solajas had expired, and that going forward any communication she had would be with the Solajas directly unless instructed otherwise.[55]Between 28 October and 8 November 2022, Mr Essien did not contact the Solajas.[56]Mr Essien eventually resurfaced on 8 November 2022 to say that he and his family had had norovirus. That day he wrote to Mr Shogunle and the Solajas asking them both to draft witness statements setting out their communications with the bank. He stated that he was drafting an “application for re-entry”, which would be supported by the witness statements. The application could, he said, if submitted that day be given a hearing by the next day. In his oral evidence, he said that the basis of the application would be that funds were available to redeem the mortgage.[57]Later, on 8 November 2022, Mr Shogunle wrote to the Solajas (although he used an incorrect email address for Mr Solaja):
“In respect of the above-mentioned property matter after our exchange of contracts and funds released to us to redeem Messrs Santander, have you now spoken to Vivienne John as promised this morning?”
(emphasis added)[58]Notwithstanding Mr Essien’s instructions, Mr Shogunle did not draft a witness statement, nor did Mr Essien draft an application. On 9 November 2022, Mr Shogunle wrote to the bank telling it that “we have contacted our clients and they have both confirmed their authority to act concerning this matter”.[59]On 10 November 2022, Mr Essien messaged Mr Solaja to say that “having taken advice from my Barrister; I am now clear on our position, assuming that I am aware of your intentions”. He then set out the question he asked:
“A house has been repossessed and the bank has possession. The mortgagor has now borrowed funds from a family member. Can the mortgagor now redeem the mortgage and ‘dispose of the bank having possession of the property’? If so, how is this done – by application to the court?”
(emphasis added)[60]He then set out the answer (from “Property Disputes Q&A produced in partnership with Desmond Kilcoyne”) and concluded:
“An application for re-entry at Kingston County Court tomorrow would see the judge ensure that Santander make available the redemption statement and allow you to redeem before close of play tomorrow.”
[61]Again, no application was forthcoming. On 11 November 2022, Mr Shogunle (again using the wrong email address for Mr Solaja) asked the Solajas to confirm to Santander that their instructions to him still stood.[62]On 15 November 2022 at 11.37, QPS’s solicitor, Mr Fish, wrote to Mr Shogunle:
“I understand it has been agreed that the buyer can have access to the property between exchange and completion, to carry out works. I attach a supplemental agreement for your approval. Please can you confirm it is agreed and you are authorised to exchange.”
Please can you confirm it is agreed and you are authorised to exchange.”[63]At 13.47 on 15 November 2022, Mr Essien emailed Mr Shogunle telling him that Mr Solaja had reservations over the sale of the property. He continued:
“Rather than seek to enforce contracts, the buyer has suggested reviewing the purchase price, despite agreeing a price with the Solaja's, and releasing funds upon exchange.”
[64]Mr Shogunle forwarded this email to the Solajas, and told them that SPS had increased their offer by £50,000 to £486,000.[65]On 16 November 2022, Mr Fish again emailed Mr Shogunle:
“I understand that the price has now increased to £498,000. The buyer also wants the ability to change the locks. Please can you confirm these points are agreed and I will amend the variation agreement.”
[66]Both this email and Mr Fish’s email of 15 November 2022 are premised on the assumption that the mortgage would be redeemed before completion, since unless this had occurred the Solajas could not grant possession of the property to QPS.[67]The same day at 21.29, Mr Solaja emailed Mr Shogunle telling him that the Solajas would not be signing replacement letters of authority to the bank, because the bank had made it clear that it would not proceed with the transaction.[68]Mr Shogunle replied to Mr Solaja the next day, 17 November 2022, saying that Ms John had not mentioned to him that it was unwilling to proceed. He continued by warning the Solajas of the consequences of their not proceeding and said he would inform the buyers.[69]On 17 November 2022 at 11.13, Mr Solaja emailed Mr Shogunle:
“I have explained to you that Santander will not proceed. They have not changed their position and therefore there is no point in issuing a new LOA. When you speak to the buyers solicitors, I strongly suggest that you explain to them that Santander will not proceed and therefore neither can we.”
[70]At 12.19 Mr Shogunle emailed Mr Fish to say that his clients were not proceeding and that his firm would be returning the exchange deposit.[71]At 20.34 Mr Solaja emailed Mr Shogunle and 4 others (which must have included Mr Essien and Mr Fish):
“Santander Bank informed us that they will not approve/proceed with this transaction. Note again: Santander will not proceed and therefore neither can we. Mr Fish is free to speak to Santander on behalf of his client If he so wishes.”
[72]On 18 November 2022, Mr Fish wrote directly to the Solajas urging them to reconsider and concluding:
“My client is happy to assist in getting the lender to agree to allow the redemption to take place.”
[73]On 23 November 2022, the claimant served a Notice to Complete the sale, with a completion date of 1 December 2022. The same day the Solajas instructed Mr Shogunle to return the deposit and any accrued interest, and to confirm to them when this had been done.[74]The letter before claim was sent on 16 December 2022. On 19 December 2022, QPS’s solicitors also wrote to the bank setting out the Agreement, the fact that it held sufficient monies to redeem the mortgage (and the other interests registered against the title to the property) and pay the balance of the purchase price. They sought the bank’s formal assurance that it would not sell the property to a third party purchaser whilst QPS claim for specific performance was making its way through the court.[75]The bank replied on 20 December 2022:
“We do not endorse the position of the purchaser, however in the interest of not complicating matters further, we will place the property on hold for 6 weeks to allow all parties to resolve their dispute.”
[76]On 22 December 2022, QPS’s solicitors wrote to the Solajas:
“We write further to our letter dated 16 December 2022 sent by post and by e-mail. We understand that you have subsequently spoken to our client's Director, Mr Hodges, and informed him that the mortgagee, Santander, is refusing to sell the property to our client. First, this appears unlikely given the terms of our communications with Santander. Second, it appears that you have misunderstood the position as the mortgagee is not required to be a party to the sale. The agreement is of course between you and our client. The mortgagee does not have the right to refuse any sale as it is not a party to the sale: you will be exercising your right to redeem the mortgage. If you are claiming that you are being prevented by Santander from adhering to the terms of the sale contact, please confirm precisely what has been said to you and provide any evidence available. We will then liaise with Santander. We put you on notice that should you fail to respond to our aforementioned letter and this email, we are instructed to issue the claim against following the expiry of the deadline contained in our letter of 16 December 2022. No further notification will be provided.”
[77]Mr Solaja’s response was to email Ms John and ask to speak to her.[78]On 22 December 2022, Mr Hodges messaged (by WhatsApp) Mr Solaja:
“Hi, it’s Tim. My solicitor has contacted you to say Santander will allow the sale to proceed. Please contact my solicitor to organise completion.”
[79]Mr Solaja spoke to Mr Hodges who said that he had good news, that Santander had agreed to approve the sale to his company, QPS. Mr Solaja said that he had not received any communication from Santander to that effect. He told Mr Hodges that he would call Santander, which he did immediately after speaking to Mr Hodges. He spoke to Ms John, and she confirmed that there had been no change in Santander’s position.[80]The claim was commenced 23 January 2023. The substantive relief sought in the claim form is:(1) specific performance of the Agreement;(2) damages for breach of contract in addition to or in lieu of specific performance or at common law;(3) compensation pursuant to standard condition 7.2 of the Standard Conditions of Sale (5th edn).[81]The value of the claim (for the purpose of determining the issue fee) is stated to be £25,000, also, separately, stated to be capped at £25,000.[82]The evidence before the court included expert evidence in the form of a single joint expert’s report dated 10 December 2024, which values the property at £465,000 on 25 October 2022, 1 December 2022 and 10 December 2024.[83]Shortly before the trial, the bank agreed to sell the property for £460,000. On the first day of the trial, QPS’s counsel told me QPS had been told by the bank that it had exchanged contracts on 21 February 2025, but was awaiting formal confirmation. Legal principles Misrepresentation

Legal principles

[84]For present purposes, the applicable principles (derived from paras 10-006 and 10-31 of Chitty on Contracts (35th edn)) are as follows, where A is the party seeking to rescind for misrepresentation and B is the person against whom rescission is claimed:(1) A must have entered the contract after statement of fact or law has been made on which it was reasonable to believe A was intended to rely;(2) The statement must have been at least substantially untrue;(3) The statement must have induced A to enter the contract. It need not have been the sole cause of A entering the contract but in most cases A must show that it would not have entered the contract, or would not have entered it on the same terms, “but for” the misrepresentation;(4) The statement must have been made by, or where it originated from a third person, adopted by B, made by that third person acting as B’s agent acting within the scope of his authority, or B must have had actual or constructive notice of it. Undue influence Objective[85]The objective of the doctrine of undue influence “is to ensure that the influence of one person over another is not abused.” RBS v Etridge (No. 2) [2002] 2 AC 773 HL, at [6] per Lord Nicholls

Unitary doctrine

[86]Previous caselaw divided cases into ones of “actual undue influence” and “presumed undue influence”. However, RBS v Etridge (No. 2) [2002] 2 AC 773 established that there is a single unitary doctrine; and the distinction is between the different methods of proving that the exercise of undue influence caused the relevant party to enter the impugned transaction. Etridge at [13-14] per Lord Nicholls; at [92] per Lord Clyde; at [219] per Lord Scott.

Burden of proof

[87]Whether a transaction was the result of undue influence is a question of fact, and the burden of proof rests on the party asserting it. Etridge at [13] per Lord Nicholls

Unconscionability

[88]The doctrine applies where it would be unconscionable for one party (‘A’), as against the other party (‘B’), to insist on the benefit of a right where the right arose out of a transaction that B entered into as a result of undue influence. Actual

Undue influence

[89]Actual undue influence is:

Actual undue influence

“an equitable wrong committed by the dominant party against the other which makes it unconscionable for the dominant party to enforce his legal rights against the other. It is typically some express conduct overbearing the other party’s will. It is capable of including conduct which might give a defence at law, for example duress or misrepresentation”
(emphasis added) Etridge at [103] per Lord Hobhouse. . It does not depend on a pre-existing relationship between the parties. Etridgeat [103] per Lord Hobhouse.[90]B may prove specific acts of A occurring at the time of B’s decision to enter into a particular transaction. Actual undue influence may also be inferred from the facts. Re Craig [1971] Ch 95.[91]The court must take into account all of the circumstances of the case, including:
“the nature of the alleged undue influence, the personality of the parties, their relationship, [and] the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship.”
Etridge at [13] per Lord Nicholls.[92]Undue influence may be found on the facts even when the transaction was not disadvantageous to B, although “in the nature of things, questions of undue influence will not usually arise, and the exercise of undue influence is unlikely to occur, where the transaction is innocuous. The issue is likely to arise only when, in some respect, the transaction was disadvantageous either from the outset or as matters turned out.” Etridge at [12] per Lord Nicholls

Presumed undue influence

[93]B may discharge the burden of proof with the assistance of an evidential presumption of undue influence. For the evidential presumption to arise, two facts must be established:(1) there must be relationship of influence between the parties;(2) the impugned transaction must call for explanation.[94]If(1) and(2) above are proved by B, “the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that [A] abused the influence he acquired in the parties’ relationship”. Etridge at [14] per Lord Nicholls.

Relationship of influence

[95]It is possible to prove the requisite relationship through showing that the relationship falls within a special class of relationship (such as parents, guardians, trustees, religious, medical and spiritual advisers, solicitors, fiancés - which are irrebuttable Etridge at [18] per Lord Nicholls. ). That does not apply here.[96]If the relationship does not fall within a special class, it may instead be proved that there was a “relationship of influence”. Such a claim arises out of “a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage” Etridge at [8] per Lord Nicholls . It is not necessary for the relationship to be one of domination, Goldsworthy v Brickell [1987] Ch 378 CA at [406], per Nourse LJ. but a finding should not be made on slim grounds (e.g. mere inequality of bargaining power does not suffice). Etridge at [14] per Lord Nicholls.[97]It is possible (for example) for a relationship to be established by proof that B placed “trust and confidence” in A in relation to the management of [B’s] financial affairs Etridge at [14] per Lord Nicholls. . But the principle is not confined to relationships of trust and confidence.[98]As explained by Lord Nicholls in Etridge at [11]:
“The principle is not confined to relationships of trust and confidence. It also extends, for instance, to cases where a vulnerable person has been exploited. Indeed, there is no single touchstone for determining whether the principle is applicable. Several expressions have been used in an endeavour to encapsulate the essence: trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other. None of the descriptions is perfect. None is all embracing”
(emphasis added).[99]The essential question is whether A “is in a position to influence B into effecting the transaction of which complaint is later made”. Goldsworthy v Brickell at [401] per Nourse LJ. Everything turns on the facts.

Transaction which calls for explanation

[100]A transaction “calls for an explanation” if it cannot be readily accounted for by the ordinary motives of ordinary persons in that relationship. Etridgeat [24] per Lord Nicholls

Rebutting the presumption

[101]If the court finds that(1) there is a relationship of influence and(2) the transaction calls for an explanation, the doctrine of undue influence applies, unless A can show that, in fact, B’s entry into that transaction was not procured by undue influence. At this point the evidential burden of proof shifts to A “to counter the inference which otherwise should be drawn” Etridge at [14] per Lord Nicholls .[102]The question of rebuttal is a question of fact to be determined on the evidence. Etridge at [20] per Lord Nicholls.[103]It is not sufficient for A to show that B understood what he or she was doing and intended to do it: undue influence concerns the lack of sufficient independence in relation to the transaction. Etridge at [111] per Lord Hobhouse.[104]A must prove that B was sufficiently independent of A and was able to, and did, consent to the transaction, free from any undue influence: a result of “full, free and informed thought about it” Zamet v Hyman [1961] 1 WLR 1442 at 1444, per Lord Evershed MR; followed in Re Craig [1971] Ch. 95 at 105. .

Causation

[105]There must be a causal link between the undue influence and B’s consent to the transaction. The caselaw is not entirely settled as to whether the “but for” test or the lesser “a factor” test is the appropriate one to be applied. Snell’s Equity suggests that “at least until further consideration of the matter by the Court of Appeal, the less demanding “a factor” test is now, by convention, the causal test applied in all cases of undue influence” Snell’s Equity, 35th Edition, at 8-017 .

Third parties

[106]Where one party seeks to avoid a contract on the ground of undue influence by a third person, it must appear either that the third person was acting as the other party’s agent, or that the other party had actual or constructive notice of the undue influence: Chitty at para 11-148. Impossibility[107]Again, for present purpose, the applicable principles are found in Chitty at 28-052:(1) Where one party has, by his own act or default, disabled himself from performing his contractual obligations in some essential respect, the other party will be entitled to treat himself as discharged.(2) The inability to perform his contractual obligations must be established on the balance of probabilities and the fact that a party has:
“… entered into inconsistent obligations does not in itself necessarily establish such inability, unless these obligations are of such a nature or have such an effect that it can truly be said that the party in question has put it out of his power to perform his obligations.”
Alfred C. Toepfer International GmbH v Itex Itagrani Export SA [1993] 1 Lloyd’s Rep. 360 at 362. (3) The inability to perform need not be due to a deliberate act:
“A party is deemed to have incapacitated himself from performing his side of the contract, not only when he deliberately puts it out of his power to perform the contract, but also when by his own act or default circumstances arise which render him unable to perform his side of the contract or some essential part thereof.”
Smith, Leading Cases, 13th edn (1929), Vol.II, p.40, cited by Devlin J in Universal Cargo Carriers Corp v Citati [1957] 2 Q.B. 401 at 441. Analysis and discussion Section 2 of the Law of Property Act (Miscellaneous Provisions) Act 1989

Analysis and discussion

[108]Section 2(1) of the Law of Property Act (Miscellaneous Provisions) Act 1989 (“the 1989 Act”) provides:
“A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.”
[109]In this case, it is clear, and I find that the parties to the Agreement agreed that the deposit paid by QPS could and should be used to redeem the mortgage before completion. This was set out at the outset in Mr Essien’s email of 20 October 2022, and all of the correspondence throughout the transaction is premised on this taking place. In order to give effect to that agreement, the deposit monies would have to have been loaned by QPS, so that the beneficial interest in them passed to the Solajas.[110]That term is not however to be found in the Agreement. Indeed, the Agreement provided that the deposit was to be held by the Solajas’ solicitors as stakeholder.[111]The proper analysis of the nature of holding monies as a stakeholder is to be found in the judgment of Millett LJ in Manzanilla Ltd v Corton Property and Investments Ltd (unreported) 13 November 1996 (cited in in Gribbon v Lutton [2002] Q.B. 902):
"Where a stakeholder is involved, there are normally two separate contracts to be considered. There is first the bilateral contract between the two principals which contemplates two possible alternative future events and by which the parties agree to pay a sum of money to a stakeholder to abide the happening of one or other of them. … The second contract is the tripartite contract which results from the deposit of the money with the stakeholder on terms that he is to keep it until one or other of the relevant events happens and then pay it to one or other of the parties accordingly. The stakeholder is a party to the second contract but not the first. His rights and obligations are not normally expressly spelt out. They are implicit in the transaction itself, and must be discovered, not by implying terms, but by analysing the relationship of the parties which arises from the deposit of the money."
[112]The Agreement therefore provided that the deposit in this case was held by James Solicitors on those terms. This was inconsistent with what had been agreed between the parties, namely with it being used to redeem the mortgage, for which it was necessary that beneficial ownership of it passed to the Solajas. It follows that the Agreement did not, contrary to the 1989 Act, incorporate all the terms that had been agreed between the parties, and it is, for that reason unenforceable, against the Solajas.[113]I drew the attention of QPS’s counsel to this point at the trial, and he addressed me on it. I acknowledge that it is not a point taken by the Solajas in their pleading. It is however a point of law arising out of the facts as I have found them. It would in my judgment be wrong in principle for the court to enforce a contract which is as a matter of law unenforceable.[114]In case, however, that I am wrong about this, I turn to the defences raised by the Solajas.

Misrepresentation

[115]There is a degree of overlap between the Solajas’ case on misrepresentation and undue influence, in that the alleged misrepresentations are also pleaded as giving rise to the undue influence.[116]So far as misrepresentation is concerned, the only basis on which QPS is said to be affected by representations said to have been made by Mr Essien is that, in making those representations, Mr Essien was acting as the agent of QPS.[117]As to this, as set out above, the Solajas entered into an express agreement by which they appointed AX365 as their agent. The evidence of Mr Hodges and Mr Essien was that they were introduced by a third party, Paul Prab, in 2019; and that they had had no business dealings with each other before the transaction in this claim. There is no documentary evidence as to any communications or dealings with Mr Hodges and Mr Essien before or during the transaction. The Solajas have not therefore shown that Mr Essien acted as QPS’s agent, and their defence based on misrepresentation cannot, for that reason, succeed.

Undue influence

[118]The first issue to be determined is whether a relationship of influence arose between Mr Essien and the Solajas. The following factual features in my judgment justify concluding that it did.[119]First, Mr Essien sought the Solajas out by obtaining information from court lists. He knew that they were about to be evicted. He cold called Mrs Solaja and then, when he received no response, physically attended without prior notice at the property. He did so in order to persuade the Solajas to instruct him to sell the property on their behalf, in order that AX365 and he personally could earn commission from the sale.[120]Second, when he attended at the property, the Solajas were about to be evicted. Indeed, the bailiffs arrived about 30 minutes after he did. Mr Solaja was in a state of extreme stress. The family were initially homeless and then housed in unsatisfactory and inconvenient accommodation. Mr Essien held himself out as someone who was both knowledgeable and able to help the Solajas to manage all the consequences of their eviction, including finding alternative accommodation to their unsatisfactory accommodation. As Mr Solaja put it, he did everything to ingratiate himself.[121]QPS’s counsel submitted that Mr Essien did not spend enough time with the Solajas for a relationship of influence to arise: he only had one in person meeting with Mr Solaja and never met Mrs Solaja in person. However, the initial meeting with Mr Solaja was for 30 minutes to an hour, and there were many calls and WhatsApp messages between them. In addition, Mr Essien represented the transaction as a straightforward sale, when as matters stood, the Solajas could not give vacant possession of the property; and if the mortgage was to be redeemed in order that they could give vacant possession, the monies to do so would have had to be loaned to them.[122]Mr Essien also told the Solajas not to contact the bank. He directed them to James Solicitors who were not known to the Solajas but had acted previously for his clients, and who did not seek to advise or warn the Solajas about the risks of the transaction.[123]I am therefore satisfied that, on the facts I have found, the Solajas were in a very vulnerable position, which Mr Essien used to create a relationship of trust and confidence, in order to procure their entering into this transaction (from which he and AX365 stood to benefit); and thus that a presumption of undue influence arose.

Transaction calling for an explanation

[124]The Defence does not expressly set out that the Agreement was a transaction calling for an explanation. However, the facts pleaded in the Defence provide a clear basis for that proposition. First, the arrangement between QPS and the Solajas was bound to end in failure. The monies paid as a deposit were never going to be accepted by the bank in redemption of the mortgage, because the Solajas were not the beneficial owners of those monies. The proof of funds required by the bank could never have been provided. The correspondence shows Mr Shogunle trying to bully and bluster his way through the bank’s objections; but he did not meet its requirements.[125]Secondly, by entering into the Agreement, the Solajas were obliging themselves to give vacant possession of the property, when they did not have possession of it. They were also, for the reasons already given, not going to be able to obtain vacant possession.[126]Thirdly, the Agreement also obliged the Solajas to transfer title to the property. However, the Solajas were only entitled to sell their equity of redemption. In addition, such right as they had to sell that was liable to be defeated by the bank exchanging contracts to sell the property: National Provincial Building Society v Ahmed [1995] 38 E.G. 138, CA. This was entirely outside their control and could have happened at any time, thereby exposing them to a claim for breach of the Agreement. Furthermore, the bank was under no duty to delay sale simply because redemption was imminent (from whatever source): Routestone Ltd v Minories Finance Ltd [1997] 21 E.G. 148, Ch. D.

QPS’s knowledge of the undue influence

[127]Although the Solajas alleged that Mr Essien and Mr Hodges had worked regularly worked together, there no evidence to support that allegation. However, in my judgment, Mr Hodges’ knowledge was sufficient to give him constructive knowledge of the circumstances giving rise to a presumption of undue influence.[128]First, he knew that the property had been repossessed by the bank very recently. Secondly, he knew that the Solajas and their children were homeless, that they were living in accommodation that was not fit for the family, and that they found themselves in financial hardship. He knew therefore that they were or were very likely to be in a stressed and vulnerable position. Thirdly, he knew that Mr Essien was seeking to achieve a quick sale before the bank could sell the property. Indeed, QPS’s name suggests its business model is focussed on quick sales. Fourthly, Mr Hodges knew that the Agreement was entered into a very short time after the repossession, when the Solajas were likely to be highly stressed and vulnerable to influence[129]In my judgment, therefore, Mr Hodges knew facts which should have alerted him to the fact that Mr Essien was in a position to exercise undue influence, because of the Solajas’ vulnerability and the circumstances in which they found themselves.[130]As to whether the Agreement was a transaction calling for an explanation, Mr Hodges himself seems to have had a limited understanding of it. However, it is clear that his solicitors were aware that only funds of which the Solajas were beneficial owners would be accepted by the bank in redemption of the mortgage. Mr Fish’s email dated 2 November 2022 is an attempt to satisfy the bank of this. In my judgment, his knowledge must be imputed to QPS. He must have known (and QPS treated as knowing) that the Agreement exposed the Solajas to the risks set out above.

Independent legal advice

[131]As noted above, the Solajas were steered to James Solicitors by Mr Essien. There is no evidence that Mr Shogunle gave the Solajas any advice as to the nature of the transaction or the risks involved in entering into it. Indeed Mr Shogunle sought unsuccessfully to get the bank to accept that the deposit monies had been “released” to the Solajas. I am not therefore satisfied that the Solajas received advice that was sufficient to rebut the presumption of undue influence.

Conclusion on undue influence

[132]For the reasons set out above, therefore, the Solajas are entitled to set aside the Agreement on the grounds that it was obtained by undue influence of which QPS had constructive notice.

Impossibility

[133]The Defence sets out (at paras 27 and 28) that the bank raised various concerns as to the transaction which were not met or answered by QPS; and that in those circumstances the bank would not sanction a sale to QPS or allow redemption of the mortgage.[134]This is expanded upon in paragraph 39 of Mr Solaja’s witness statement where he says:
“the failure of the contract between exchange and completion cannot be attributed to us. If at all there was a breach it was down to the claimant, QPSL. They were aware that the house had been repossessed by the mortgagee and therefore that any transaction would require their approval and involvement. The transaction was not presented to Santander as a sale. Santander asked for confirmation (exhibits 3,4 and 5) i.e. was it a loan or a gift but there was no response. We were very clear in communicating Santander’s decision and the reasons for that decision which are outlined above. It was simply impossible to complete the transaction given the circumstances which were not of our making and outside our control.”
[135]QPS did not challenge the proposition that the bank, as a mortgagee in possession, was entitled to decide to whom it would sell the property. QPS’s position was that the deposit was paid to the Solajas to enable them to redeem the mortgage, and that the bank could not refuse redemption.[136]QPS referred to and relied upon the following passages in Fisher and Lightwood’s Law of Mortgage (15th edn) (omitting citations):
“30-35 The mortgagee will be restrained from exercising his power of sale if, before there is a contract for the sale of the mortgaged property, the mortgagor tenders to the mortgagee or pays into court the amount claimed to be due. The amount due for that purpose is the amount which the mortgagee claimed to be due to him for principal, interest and costs unless, on the face of the mortgage, the claim is excessive, in which case the amount claimed less such excess must be tendered or paid. 30-36 If the mortgagee has, in exercise of his power of sale, already entered into a contract for the sale of the property, the court will not, upon tender of the money due under the mortgage, interfere to stop the completion of the sale by conveyance unless the sale is improper, since his equity of redemption is suspended during the currency of the contract. Assuming that the mortgagee is otherwise acting properly, the mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute.”
[137]QPS’s case is set out at para 23 of its Reply:
“(a) The Claimant and the Defendants entered into the Agreement, whereby a large deposit was paid to enable the Defendants to redeem the Mortgage. (b) The Defendants would then give up vacant possession to the Claimant on completion upon payment of the balance of the purchase monies.”
[138]QPS’s factual case is that the reason that the Solajas did not complete is that they had a change of heart after having signed the Agreement, and considered that they could sell the property for more money. I reject that case for two reasons. First, I accept Mr Solaja’s evidence that they did not ever tell either Mr Essien or Mr Hodges (as he accepted) that they wanted more money. Secondly, QPS in fact offered over £50,000 more for the property, and the Solajas’ position remained unchanged.[139]As to the legal analysis, for the reasons set out above, QPS’s case is flawed. The terms of the Agreement as to the deposit meant that the Solajas were never in a position to redeem the mortgage, because they were not entitled to the deposit under the terms of the Agreement.[140]Although the correspondence refers to the deposit being “released” to be used to redeem the mortgage, this never happened. If it had happened, it would have been a loan by QPS to the Solajas, which, in his evidence, Mr Hodges was very clear was never QPS’s intention.[141]In my judgment therefore, the Agreement was impossible to perform. QPS’s failure to transfer the beneficial ownership of the deposit monies, so that they could be used to redeem the mortgage meant that the Solajas could not do so, and could not therefore give vacant possession to QPS. The Solajas were therefore entitled to treat themselves as discharged from the Agreement.

Conclusion

[142]For the reasons set out above, therefore, I dismiss the claim.