Aitsan Limited & Ors v Stuart Robert Duffy & Anor [2025] EWHC 1562 (Ch)

[2025] EWHC 1562 (Ch)

Case No BL-2020-001430

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NL

Date 23/06/2025

Before

Master Pester

Between

AITSAN LIMITED and othersClaimants

STUART ROBERT DUFFYDefendants

THE KEITH DAVISON PARTNERSHIP LIMITEDDefendant

Amit Gupta (instructed by Penningtons Manches Coopers LLP) for Claimants

Martin Budworth (instructed by Dallas & Richardson Solicitors Limited) for First Defendant

Hearing Hearing date: 18 March 2025

APPROVED JUDGMENT

This judgment was handed down remotely by circulation to the parties or their representatives by email. The date and time for hand-down is deemed to be 10am on 23 June 2025.

MASTER PESTER:

[1]This is a trial on quantum. The way the trial took place was somewhat unusual. Although the parties exchanged witness statements, shortly before trial both sides indicated that they did not wish to cross-examine the other side’s witnesses. Accordingly, the trial proceeded on the basis of submissions alone.

[2]The Claimants are 43 parties who invested in the acquisition off-plan of one or more units in a development (“the Development”) which was to provide 279 units of student accommodation in a building to be known as Sky Building in Newcastle-under-Lyme. The First Defendant (“Mr Duffy”) is a former architect; the Second Defendant (“KDP”) is or was Mr Duffy’s company. As I understand it, KDP is in liquidation. It took no part in the trial. On 30 January 2019, Mr Duffy was disciplined by an Architects Registration Board Professional Conduct Committee who found that he had dishonestly and deliberately issued untrue and misleading certificates of practical completion in relation to the Development (and to one other development). The Registration Board directed the erasure of his name from the Architects Register Board.

[3]The Claimants each entered into a sale agreement (hereafter, “the Sale Agreement”) with the developer, Sky Building Limited (“the Developer”) to acquire 250 year leases for units in the Development. The claim arises from the issue of completion certificates by KDP (but signed personally by Mr Duffy) which are all materially identical in respect of individual units, between 7 June and 24 July 2017. The Claimants alleged that the completion certificates were false, because the building was far from complete and there was no possibility of beneficial occupation of any part of it.

[4]Further, the Claimants claimed that each completion certificate was signed and issued by Mr Duffy on behalf of KDP fraudulently, because when signing and issuing them Mr Duffy knew that practical completion had not been reached and the construction had not been to a satisfactory standard. In other words, he knew that the certification and representations contained in the completion certificates were false.

[5]At an early stage in the proceedings the Claimants applied for summary judgment. In a judgment dated 25 March 2021, I granted the Claimants summary judgment on both liability and quantum, on the basis that the Defendants had no real prospect of successfully defending the claims against them and there was no other compelling reason for the matter to go to trial. I ordered the Defendants to pay damages to the individual Claimants.

[6]The Defendants appealed. By order dated 13 May 2022, HHJ Keyser KC, sitting as a Deputy High Court Judge, dismissed the appeal on liability but allowed the appeal on quantum, and instead ordered that the Defendants and each of them do pay to the Claimants damages to be assessed. Although I have seen the order of the Deputy High Court Judge, his judgment is not reported and does not appear to have been reduced to writing.

Background

[7]What is set out in this judgment should be read as supplemental to my earlier judgment.

[8]Pursuant to the Sale Agreement, the purchase price was to be paid in defined stages. The Claimants were to make payments for their units by way of(a) a Reservation Fee (paid prior to the date of the Sale Agreement on a non-refundable basis – see clause 4.1),

(b) a first payment due on the date of the Sale Agreement

(d) a completion payment, which was to be made on the Completion Date. The Completion Date is defined in the Sale Agreement as being 10 working days after the date of dispatch of a written notice from the Developer’s solicitors that (a) the unit was ready for occupation and (b) the Developer had received a Certificate of Practical Completion (“the Certificate”). The Sale Agreement was, in substance, the same for each Claimant apart from minor variations, such as the parties’ names and, in some cases, different amounts for different units within the Building.

[9]There was also provision that the sale and purchase of the unit would be completed on the Completion Date, whereupon vacant possession would be given to the individual purchaser, subject to the terms of a management agreement: clause 5.1 and 5.2. If, however, the Certificate had not been issued by the Long Stop Date, then either party might at any time before the issue of the Certificate rescind the Sale Agreement, whereupon deposit payments previously made (together with interest) would be repaid by the Developer to the purchaser within 7 days of the giving of notice of rescission: clause 5.3.

[10]The Long Stop Date varied from contract to contract, but was in any event no later than 31 December 2017.

[11]The Sale Agreement provided that the Developer would execute the lease in favour of the Buyer, and both parties would execute a Management Agreement at Completion.

[12]In all cases, the Claimants had already exchanged contracts before the completion certificates were produced. This meant that each of the Claimants had (or ought to have had) the benefit of an agreement for a lease upon exchange of contracts protected by a UN1 with the Land Registry. However, a few of the Claimants (four in total) never obtained the benefit of a UN1, possibly due to the oversight or neglect of their conveyancing solicitors.

[13]The Claimants say that, if the completion certificates had not been issued by the Defendants, then the Claimants would not have made any of the completion payments. Appended to the Amended Particulars of Claim, are various schedules, setting out the amount claimed by each Claimant. These vary somewhat from Claimant to Claimant, but total in aggregate around £550,000.

[14]Following the appeal, the Defendants filed a defence, addressed solely to matters of quantum. Three main points were taken:(1) the Claimants had not in fact suffered any loss by reason of the representations, because had the Claimants not made the completion payments, the Developer would have rescinded the Sale Agreement, all the payments would have been forfeit and the Developer would have resold the units;

(2) if, on the other hand, the Claimants had suffered a loss, then (rather than the completion payments simply being taken as forfeit), the true measure of loss was the difference between what they had acquired due to having chosen to proceed and the value of what they had contracted to receive;

(3) the Claimant should give credit for the value of any resale of units (if such had occurred) and also for any payments received from the professionals insurers of Blunts Solicitors (“Blunts”), a firm which had acted for some of the Claimants and which had been threatened with legal action.

[15]The Claimants filed a reply. The first point taken in the Reply was that the Defendants are precluded from alleging that their misrepresentations did not cause the Claimants to make the completion payments, as being inconsistent with my earlier judgment. That seems to me to be correct. But for the completion certificates, the Claimants would not have made the completion payments (and would not have had a legal liability to do so). Once the “Notice of Practical Completion” was sent by the Developers’ solicitors, confirming that works had been satisfactorily completed on their unit, the Claimants were contractually obliged to make the completion payments. The Reply also made the point that the claims against Blunts were based upon defective advice from Blunts. Further, the Reply pleads that the original developer, the Developer, became insolvent, and the two subsequent owners of the Development, Sky Apartments 2018 Limited (“Sky Apartments”) and Built4Learning Limited (“B4L”) both went into administration without completing the Development.

[16]Following the Reply, the Claimants’ solicitors sent a letter dated 22 December 2023 to the Defendants. That letter explains that the Claimants had pursued various routes to recover their losses in respect of the Development. Three matters were identified:(1) claims against Blunts;

(2) claims in the administration of Sky Apartments;

(3) through selling their leases (where completed and registered) to the new owner of the Development. The letter denied that any such recoveries diminished the loss which could be claimed from the Defendants. The letter contends that the Claimants would have been entitled to pursue these recoveries “in some form” in relation to their losses through investing in the Development (that is, the amount of the earlier payments) in any event, regardless of the Defendants’ fraud, and “… so these recovered sums ought to be applied against those earlier losses first.”

[17]It is necessary to set out the background about the claims in the administration and the sale of the leases to new owner of the Development in more detail. My understanding of the position, set out in the various witness statements and a judgment of HHJ Halliwell, referred to below, is as follows:(1) On 25 May 2018, the Building was sold by the Developer to Sky Apartments, subject to any registered leases. As at this date, most of the leases had been registered, but some had not; of those which were not registered, the agreement for lease was protected by a UN1 registered with the Land Registry. In the further case of four Claimants, the 10th, 11th, 23rd and 31st Claimants, no lease had been registered, and neither had any UN1.

(2) In November 2020, the Developer went into administration.

(3) On 5 February 2021, Sky Apartments went into administration.

(4) On 14 October 2021, the joint administrators of Sky Apartments obtained a court order, pursuant to paragraph 71(1) of Schedule B1 of the Insolvency Act 1986 This provides that the Court may enable the administrator of a company to dispose of property which is subject to security (other than a floating charge) as if it were not subject to that security, subject to the condition that the net proceeds of the disposal of the property be applied towards discharging the sums secured by the security. , authorising the sale of the Building to B4L, subject to registered leases but free from the secured rights of those investors who held equitable liens (whether or not the subject of a unilateral or agreed notice entered against the charges register for the Property or the subject of any pending application for entry of such a notice at the Land Registry). At the time, issues relating to the distribution of assets were adjourned.

(5) On 10 December 2021, the joint administrators completed the sale of the Building to B4L, with total realisations of £2.165 million.

(6) In January 2022, B4L made various offers to purchase the leases of those Claimants who had obtained a registered lease, but none of the proposed sales completed.

(7) On 4 March 2022, the administrators of Sky Apartments applied for directions to resolve various matters relating to the distribution of assets in the administration.

(8) On 1 April 2022, HHJ Halliwell handed down judgment with regard to that application. This is reported at

[2022] EWHC 763 (Ch)

. He concluded that only those investors in the Development who still had a UN1 registered when the Building was transferred to Sky Apartments were entitled to claim in the administration. Those Claimants who had acquired leases which had been registered, or those who never had a UN1, as at May 2018, were not entitled to claim in the administration. Accordingly, the net proceeds of the sale by Sky Apartments was to be distributed rateably among those investors who by 23 May 2018 had a registered entry or notice at the Land Registry and those (if any) who had by then submitted a priority search: see at [53] – [54].

(9) In February 2023, B4L entered administration. In the same month, the administrators of B4L accepted a conditional offer from another company, Integritas Property Group Ltd (“Integritas”), in respect of the sale of the Building.

(10) In May 2023, Integritas contacted each of the Claimants who had received a registered lease(s), and made provisional offers to buy their leases. In the end, all those Claimants who had the benefit of a registered leases agreed to sell that lease to Integritas.

(11) In June and again in August 2023, the administrators of Sky Apartments paid dividends to those Claimants who were entitled (that is, those who held a UN1 but not a registered lease).

The evidence

[18]As explained above, the parties exchanged witness statements, although neither side wished to cross-examine the other’s witnesses. A large number of witness statements were filed and served from the individual Claimants (or, in the case of the corporate claimants, for example the 1st Claimant, a shareholder on their behalf). I also had a statement from Mr Duffy.

[19]The parties have prepared a Schedule of Loss (“the Schedule”), with a number of columns, as follows:(1) The first set of columns, coloured light blue, showed the amount paid by way of the “Deposit and Stage Payments”, together with an amount for interest, totalling what is described as “the Total Pre-Fraud Losses”.

(2) The next set of columns, coloured pink, set out the losses claimed from the Defendants, showing the date of the Completion Payment, the amount of the Completion Payment, small sums for various other losses, costs and expenses, interest on the Completion Payment, a deduction for deposit interest and other refunds, and then a column showing the total losses claimed from the Defendants.

(3) The third set of columns, coloured purple, showed the amount recovered from Blunts (if any), the amounts recovered in the administration of Sky Apartments (if any) and any proceeds from the sale of the Leases. The final column coloured purple is headed “Recoveries left to be deducted from the claim against the Defendants (after being applied against pre-fraud losses)” – the figure in this last column is “nil” in relation to every Claimant, apart from the 39th Claimant, who (as I explain further below) is in an unusual position.

(4) The fourth set of columns, coloured orange, shows the total amount being claimed from the Defendant by each Claimant.

[20]At the far right of the Schedule, the Defendants set out their position, which is that the Claimants are better off for having relied on the fraudulent statements, and the loss they would have suffered without the tort is “already greater than the loss they claim to have suffered as a result of it.” The point is also taken that the completion payments made as a result of reliance have been “overtaken” as a result of sums received in mitigation, whether received from Blunts, recovered in administration, or from selling the lease.

[21]The 39th Claimant accepts that he did not make a loss at all. This is because he was able to obtain the sum of £100,000 for his lease, something which he accepts was a matter of “pure good fortune”. As I understand it, from reading his witness statement, by holding out for longer than the other investors, he was able to negotiate an exceptional payment for his lease. He advances no claim against Mr Duffy, and asks for permission to discontinue his claim.

Legal principles

[22]This is a claim in deceit. The measure of damages in deceit, as set out in Clerk & Lindsell on Torts, 24th ed., 2024, at 17-45, is: “… the loss directly flowing from the claimant’s reliance on the defendant’s statement; that is, generally speaking, the sum that will put him in the same position as if he had not relied on it. Credit must of course be given for any gains made by the claimant, though to qualify for deduction such gains must be closely connected with the relevant transaction, and also both tangible and relatively permanent.” (citations to the authorities omitted)

[23]The Defendants rely upon a passage from McGregor on Damages, 22nd ed., 2022, at 25-003, which considers the measure of damages in contract, as opposed to tort. After setting out the position in relation to damages for misrepresentation in contract and tort, it is said that if the representation constitutes a term of the contract then the claimant is entitled to such damages as will put them into the position they would have been in had the misrepresentation been true. On the other hand, where the representation does not constitute a term of the contract, the only common law damages can be for a tort, either for deceit (if the misrepresentation has been fraudulently made), in negligence where it has been carelessly made. It is then said that:

“… It is sometimes assumed that if the claimant can show fraud then the claimant is in as good as a position as far as damages are concerned as if the claimant had been able to sue for breach of contract on the ground that the representation was a term of the contract. This is fallacious, for the proper measure of damages in deceit – a measure adopted in the late 19th century and now firmly established by the Court of Appeal in Doyle v Olby (Ironmongers) – is to put the claimant in the position they would have been in, not if the representation had been true, but if the representation had never been made. This is a more restrictive rule.”

[24]In Smith New Court Ltd v Citibank NA

[1997] AC 254

, HL, at pp. 266H – 267C, Lord Browne-Wilkinson set out the following principles to be applied in assessing the damages payable where the plaintiff has been induced by a fraudulent misrepresentation to buy property:(1) The defendant is bound to make reparation for all the damage directly flowing from the transaction;

(2) Although such damage need not have been foreseeable, it must have been directly caused by the transaction;

(3) In assessing such damage, the plaintiff is entitled to recover by way of damage the full price paid by him, but he must give credit for any benefits which he has received as a result of the transaction;

(4) As a general rule, the benefits received by him include the market value of the property acquired as at the date of acquisition; but such general rule is not to be inflexibly applied where to do so would prevent him obtaining full compensation for the wrong suffered;

(5) Although the circumstances in which the general rule should not apply cannot be comprehensively stated, it will normally not apply where either (a) the misrepresentation has continued to operate after the date of the acquisition of the asset so as to induce the plaintiff to retain the asset or (b) the circumstances of the case are such that the plaintiff is, by reason of the fraud, locked into the property;

(6) In addition, the plaintiff is entitled to recover consequential losses caused by the transaction;

(7) The plaintiff must take all reasonable steps to mitigate his loss once he has discovered the fraud.

[25]See also, in the same case, the opinion of Lord Steyn, at p. 281G-H.

[26]Deceit is not actionable per se; damage is the gist of the action. It is, in the usual way, for the claimant to prove his loss. However, there is authority that where a claim proves that he has been deceived into expending money, the burden shifts to the defendant if he wishes to argue that the expenditure did not amount to a loss to the claimant: see Clerk & Lindsell, at 17-43; also Parallel Imports (Europe) Ltd t/a Baglan Car Centre v Radivan

[2007] EWCA Civ 1373

[27]The Claimants relied on Glossop Cartons and Print Limited v Contact (Print & Packaging) Limited

[2021] EWCA Civ 639

;

[2021] 1 WLR 4297

(“Glossop”). In that case, the claimants brought a claim in fraudulent misrepresentation against the defendants, contending that they had been induced by the defendants’ misrepresentations to enter into three agreements for the purchase of business assets. The defendants were found liable. There was then a separate trial on quantum. The claimants were entitled on the application of established principles to recover by way of damages the full price paid by them but were required to give credit for any benefits which they had received as a result of the transaction, which as a general rule included the market value of the assets acquired as at the date of acquisition. At the trial on quantum, it was acknowledged by the parties that it would be difficult to calculate the market value of the business assets purchased by the claimants because the business had been a loss making one. The claimants suggested that the judge should start with the assumption that the price paid represented the market value but then deduct a figure to reflect every flaw or defect that they had not factored into their calculation of the price, so as to reach the “true market value”. The judge adopted this approach, but refused to deduct as flaws or defects any potential losses and commercial risks which the claimants had appreciated and factored into the purchase price, nor any losses sustained as a result of commercial misjudgments on the part of the claimants which were wholly unrelated to the defendants’ fraud.

[28]On the claimants’ appeal, the appeal was allowed. The Court of Appeal found that the judge’s deduction approach was unduly complex but also wrong in principle: at [36] and following. In fairness to the judge, he appears to have adopted the approach suggested to him by the parties. The Court of Appeal warned, at [43], that “… the judge ought not, insofar as he did, to have speculated either about what the claimants would have done if the fraudulent misrepresentations had not been made or had been true”, citing two passages from the decision of the House of Lords in Smith New Court as authority for those propositions.

[29]Glossop is addressing a somewhat different factual scenario, because the present case is not about a difference in price situation. The Claimants relied on Glossop to say that the court should not speculate and that it must avoid embarking “on a hypothetical reconstruction of what the parties would have agreed had the deceit not occurred”, per Lord Steyn in Smith New Court, at p. 283F-G. However, that does not mean that the court can entirely avoid comparing the position as it actually turned out with what would have been the position had the representation never been made, because the aim of an award of damages in an action for deceit is to put the innocent party in the position they would have been in if no dishonest representations had been made to them: Clerk & Lindsell, at 17-44.

Discussion and analysis

[30]The only sums claimed from Mr Duffy are the amount of the completion payments (with a few small associated debits and credits). It is submitted on behalf of Mr Duffy that the Claimants have suffered no loss at all, but if there was a loss, then it is eliminated once one takes into account the credits received. Mr Duffy suggests that the position is to be compared by with the position had Mr Duffy not made his fraudulent statements. It is said that, had the Claimants not relied on the fraudulent certificates to make the completion payments, the Developer could and would have rescinded the Sale Agreement, all their payments would have been contractually forfeited and the Developer would have been free to resell to a third party. In the Schedule, the Defendants suggest that all the Claimants “became better off” as a result of the Defendants’ producing the fraudulent certificates.

[31]This submission is wrong. The Developer would not have been in a position to complete the Development (as Mr Duffy also appears to accept). Had no fraudulent misrepresentation been made, the Longstop Date fixed in the Sale Agreement would have come and gone with no completion, and the Claimants would have been in a position to rescind the Sale Agreement and reclaim any previous payments. This is not impermissible speculation after the event. It reflects what is known. The fact that the Developer would have been unable to complete the Development, and that the purchasers would have had a right to rescind the Sale Agreement and reclaim earlier payments, appears to be in substance agreed.

[32]I therefore have no hesitation in rejecting the submission that the Claimants suffered no loss. As a result of the Defendants’ deceit, the Claimants were locked into a property purchase in a development which languished for many years in an unfinished state. The completion payments represent an expenditure of money by the Claimants which is properly characterised as a direct loss occurring as a result of the Defendants’ deceit.

[33]As this is a trial on quantum Mr Duffy cannot seek to re-open matters relating to liability. What he is entitled to do, however, is to challenge the amounts claimed against him and in particular to submit that the Claimants must give credit for the professional negligence recoveries, the payments recovered in the administration and the sale of the leases. I will consider each of these in turn. In doing so, the key task for the court is to identify the relevant transaction, identify any benefit received as a result, and determine whether the direct loss has been avoided to any degree. Importantly, whether a benefit qualifies as a deduction depends on whether it is “closely connected with the relevant transaction”: see Clerk & Lindsell, at 17-45. It is essentially a question of causation. The court must decide whether such benefit arose independently of the transaction giving rise to the loss. In this case, the relevant transaction is not the entry into the Sale Agreement (a matter unconnected to the Defendants’ fraud) but the making of the completion payments.

[34]I reject the submission that the Claimants should give credit in their claims against the Defendants for the sums received from Blunts. The payments made by Blunts’ professional negligence insurers following a mediation are a collateral benefit. The recoveries from Blunts were based on the provision of allegedly defective advice which led the Claimants to enter into the Sale Agreement in the first place. Such recoveries are collateral to the relevant transaction.

[35]Mr Duffy relied on a letter dated 21 July 2020, from CLC Solicitors (the solicitors acting for the relevant buyers, who included the Claimants, in respect of the threatened claim against Blunts) to Brown Jacobson Solicitors (acting for Blunts). The letter is a formal letter of claim served in accordance with the Pre-Action Protocol for Professional Negligence. The letter asserts that the causes of action asserted against Blunts are(i) breach of express and/or implied terms of the retainer

(ii) negligence, including negligent misstatement

(iii) breach of fiduciary duty and/or implied trust in releasing client monies by way of deposit to the seller’s (that is, the Developer’s) solicitor. These do not relate to the separate cause of action in respect of Mr Duffy’s deceit. One paragraph in the letter refers to an alleged failure on the part of Blunts to advise the Claimants that the Developer’s representations and those of its architect (that is, Mr Duffy) should be independently verified, and that Blunts’ “systematic inaction in avoiding issuing sufficient warnings” led to the loss of the Second Deposit and the Completion Monies.

[36]However, that paragraph must be read in the context of the letter as a whole. It does not change my conclusion that any payments made by Blunts were in relation to their own breaches, and not in relation to Mr Duffy’s deceit. Blunts made a single payment to avoid litigation by the Claimants. Even if one matter in that fairly lengthy letter might be said, somewhat obliquely, to touch on the matters surrounding Mr Duffy’s fraudulent misrepresentation, it is impossible to allocate what part of the payment from Blunts related solely to their own breaches of duty, and what part might be said to be connected to Mr Duffy’s separate deceit. Another way of looking at it is to say that Mr Duffy has failed to discharge the burden of showing that any part of the payment by Blunts is related to his own deceit and falls to be taken into account when assessing his own liability to compensate the Claimants.

[37]I turn now to the separate question of whether the Claimants must give credit to Mr Duffy in relation to either(i) recoveries in the administration and

(ii) the proceeds from the sale of the Lease. As to the recoveries in administration, I do not accept that these are matters which diminished the Claimants’ loss. The only reason that the Claimants recovered in the administration of Sky Apartments was because they had the benefit of a registered agreement for lease. The agreements for lease were obtained prior to the Defendants’ deceit. It follows, as a matter of logic, that the Claimants’ recovery in the administration is again a collateral matter, obtained independent of the Defendants’ deceit. Had the Claimants never relied on the deceit, and never made the completion payments, they would nevertheless have been entitled to prove in the administration.

[38]This is entirely consistent with the well-established position that in a claim for tortious misrepresentation, the court looks at the position if the representation had never been made, rather than if it had been true. This was something stressed by Mr Duffy. However, if the fraudulent misrepresentation had never been made, the Claimants would never had paid the completion payments (which is a loss recoverable from Mr Duffy), the Longstop Date would have come and gone without the Development being finished (the parties appear to be agreed on this at least) and the Claimants would be entitled to prove (in principal) in any subsequent administration for the amount of any previous payments to the Developer. There might have been debate as to how many pence in the pound the Claimants could have recovered via the administration of the Developer and Sky Apartments. However, there is no need to speculate where there is evidence, based on the actual figures of what the Claimants actually recovered in the subsequent administration.

[39]The position in relation to those Claimants who obtained a lease and have sold the lease is more difficult. One would normally have thought that the recoveries following the sale of the lease would be a matter to take into account. The Claimants say that this is not so. It is said that most of the Claimants had UN1s before obtaining their respective leases. It is said that they “would have been in the same position as the UN1 Claimants” who, as the Claimants submitted and I have found, do not have to give credit.

[40]I am not persuaded that matters are so simple. The lease is an indivisible whole, representing a package of rights and liabilities. The Claimants’ loss is the amount of the completion payments, but without the completion payments, the Claimant would never have obtained the lease. It follows that the Claimants do have to give credit for sums obtained following the sale of the leases. The Claimants were only able to obtain their respective leases because of the fraudulent certificates. Had the leases been valueless (which appeared to be the position when the summary judgment application was heard in 2021), there was nothing for which the Claimants had to give credit for. The position however is now different.

[41]In so far as the Claimants have suggested in correspondence or in the Schedule (but not in their pleaded case) that before giving credit for any recoveries made from selling the lease, one must first deduct any “pre-fraud losses”, that would be to calculate damages on the basis the representations made by Mr Duffy were true. That is not the correct way to calculate tortious damages.

[42]That this is the correct analysis is strengthened when one considers the position of the 39th Claimant. If the Claimants were correct, and no credit needed to be given for any sale of the leases, then the 39th Claimant could keep his £100,000 and nevertheless pursue his claim for the amount of his completion payment against Mr Duffy. The fact that the Claimants accept that this would not be the right approach is a recognition that payments received in respect of the leases must be brought into account when claiming against Mr Duffy. The sale of the lease is so closely connected with the relevant transaction to require any payment received to be taken into account when fixing the measure of recoverable loss from Mr Duffy.

[43]This appears anomalous. Those Claimants who obtained a lease are in a worse position, as against Mr Duffy, than those Claimants who never did. However, that anomaly is a result of the decision of HHJ Halliwell, who decided that the UN1 Claimants would be treated differently from the Claimants with registered leases. My conclusion is simply a logical working out of the consequences of that earlier decision.

Conclusion

[44]For the reasons set out in this judgment, I find that the Claimants have suffered a loss, and they do not need to give credit either for any sums recovered from Blunts, or for sums recovered in the administration of Sky Apartments. However, they must give credit for sums recovered by selling their leases. As the sums received for the sale of the leases in most (but not quite all) cases exceed the amount of the completion payments, most of those Claimants who managed to sell their leases have no claim against Mr Duffy.

[45]I will ask Counsel to update the Schedule to reflect my judgment.