Jaison Property Development Co Ltd v Swinhoe [2010] EWHC 2467 (QB)

[2010] EWHC 2467 (QB)

Case No HQ10X01240

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 15 October 2010

Before

MR SIMON PICKEN QC

(sitting as a Deputy High Court Judge)

Between

JAISON PROPERTY DEVELOPMENT CO. LIMITEDClaimant

HOWARD SWINHOEDefendant

LASS SALT GARVIN (a firm)Third Party

Michelle Stevens-Hoare (instructed by Gregsons) for Defendant

Jamie Smith (instructed by Kennedys) for Third Party

Hearing Hearing dates: 14 June, 15 June, 16 June and 28 June 2010

Further written submissions: 23 July 2010

JUDGMENT

MR SIMON PICKEN QC:

[1]This Part 20 dispute concerns a single page personal guarantee given in 2005 by the Defendant, Mr. Howard Swinhoe (“Mr. Swinhoe”), to the Claimant, Jaison Property Development Co. Limited (“JPD”). The guarantee was provided as part of a property transaction which it was hoped would make money but which, as matters turned out, did not do so with the result that Mr. Swinhoe found himself liable to JPD under the personal guarantee, hence (as I shall explain) the present claim.

[2]Mr Swinhoe’s case is that he signed the guarantee without knowing that it was a personal guarantee and that, had he known that that was the case, he would not have signed it. In consequence, Mr. Swinhoe alleges professional negligence on the part of the Third Party, Lass Salt Garvin, a firm of solicitors (“LSG”). He says that LSG, specifically a partner in that firm, Mr. Michael Garvin (“Mr. Garvin”), should have pointed out to him that what he was being required by JPD to sign was a personal guarantee. He alleges that Mr. Garvin was negligent in not doing this, and accordingly seeks damages measured by reference to the amount of his liability to JPD under the personal guarantee.

[3]LSG and Mr. Garvin deny liability. Their case is that they were under no duty to tell Mr Swinhoe that he was signing a personal guarantee because they were not acting for Mr. Swinhoe personally but for a company of which he was, admittedly, the sole shareholder and only director, Lydian Securities Limited (“Lydian”). They further say that, even if a duty of care did exist, in any event, Mr Swinhoe was told about the personal guarantee and he, therefore, knew very well what he was signing when he signed it.

[4]The immediate context in which the dispute arises is the fact that JPD has a consent judgment against Mr. Swinhoe under the personal guarantee in the sum of £312,146.14, together with interest and costs. That judgment was obtained in the present proceedings on 27 January this year.

[5]The wider context needs somewhat more elaboration and is addressed in greater detail later in this judgment. In broad summary, however, and in order to set the scene, Mr. Swinhoe, an architect by profession, is a property developer who carries on business through the medium of Lydian. He does so, or at least at the material times did so, in conjunction with a Mr. Roger Hooper (“Mr. Hooper”), another property developer.

[6]Towards the end of 2004, Mr. Swinhoe and Mr. Hooper became interested in land at Saffron Lane, Leicester (“the Property”), which Leicester City Council was selling. This was a project which was large in scale. The purchase price was £8.96m; £896,000 was needed to exchange contracts. Mr. Swinhoe and Mr. Hooper considered that significant profit could be made if planning permission could be obtained and the Property sold to a third party with the benefit of that permission. As with all its ventures, Lydian’s (and Mr. Swinhoe’s/Mr. Hooper’s) plan was to ‘flip’ the land, i.e., to exchange contracts, obtain planning permission and sell the land on or before completion. Approximately £300,000 was estimated to be needed to secure planning permission. The anticipated profit was significant: the ‘funding application’ submitted to another potential funder, a Mr. Barclay (the owner of a company called Grabar Investments (1994) Ltd.) referred to “a bottom line profit of 3.259 million” (a figure which Mr. Swinhoe accepted in his evidence was a genuine estimate), and the predicted profit was that that bottom line would be exceeded by £2-2½m.

[7]The intention was that Mr. Swinhoe could use his architectural expertise to put together an acceptable scheme. However, in order for the project to succeed, funding was needed to enable a deposit to be paid for the land and for the cost of obtaining planning permission. In the event and despite approaches both to Mr. Barclay and, according to Mr. Swinhoe and Mr. Hooper, also a Mr. Philip Wallis of GHP Group, funding was obtained from JPD, which is a member of the Jaison Group of companies operated by Mr. John Jason (“Mr. Jason”). This followed a series of meetings with Mr. Jason, beginning with a meeting at Mr. Jason’s solicitors’ offices on 24 February 2005 attended by Mr. Hooper, Mr. Swinhoe and Mr. Garvin, as well as by Mr. Jason’s solicitor, Mr. Martin Selwood of Clifford Harris & Co. At that first meeting, Mr. Jason made it clear that he wished Lydian to share the burden of any loss made on the project. He proposed that (through a corporate entity) he would bear the first £75,000 of any loss, but thereafter it was to be shared equally with Lydian. It was agreed that Mr. Jason and Lydian would each take a 45% stake and Mr. Garvin 10% (5% from each venturer) for arranging the funding.

[8]In the months which followed, the project moved forward and Mr. Swinhoe, Mr. Hooper and Mr. Jason kept in touch. They met on 19 May 2005, as a result of which it was agreed that their respective shares of profit and loss should be reduced to a written agreement. Subsequently, between 4 and 5 August 2005, the structure of the deal was agreed taking account of certain tax advice which Mr. Jason had received from Mr Solly Benaim of BDO Stoy Hayward. The agreement was that:(a) a ‘Newco’ would be set up as a joint venture vehicle (the ‘Newco’ which was later set up was Lydian (Saffron) Ltd (“Saffron”));

(b) Lydian and a Jaison Group company would be 50/50 shareholders in the ‘Newco’; and

[9]In the meantime, Mr. Peter Levis (“Mr. Levis”), Finance Director of The Jaison Group, investigated Lydian and found it to have no assets. Mr. Levis told Mr. Jason about this and both agreed that a personal guarantee should be sought from Mr. Swinhoe. In view of this, Mr. Jason telephoned Mr. Garvin and told him that he was not prepared to fund the project without a personal guarantee. According to Mr. Jason, Mr. Garvin “said words to the effect that he would discuss this with Howard and I left it with him”.

[10]None of the above is in dispute. What is, however, very much in dispute is what happened next. Mr. Swinhoe and Mr. Hooper say that they were never told about Mr. Jason’s demand. Mr. Garvin is nevertheless insistent that he specifically raised the matter with Mr. Hooper. Mr. Garvin also relies upon the fact that a letter dated 10 August 2005 which he sent to Mr. Hooper, Mr. Swinhoe and Mr. Jason and which sets out the structure of the agreed arrangements, states that “David [Pollacchi] will prepare a simple form of Guarantee from Lydian/Howard Swinhoe to JIL to secure Lydian’s obligation to contribute 50% of an [sic] loss in excess of £75,000”. (I should explain that Mr. Pollacchi is another partner in LSG, and “JIL” is a reference to Jaisons Investments Limited, which until 17 August 2005 was to have been the funding company only, in the event, to be replaced by JPD).

[11]On Friday 12 August 2005, Mr. Pollacchi provided Mr. Hooper and Mr. Swinhoe (via Mr. Hooper) with draft versions of the SHA, Articles of Association for Saffron and a Facility Letter which he had prepared. The draft SHA at clause 2.5 stated as follows:

“Mr Swinhoe covenants with Jason to indemnify Jason in respect of 50% of any loss which Jason incurs in connection with its loans to [Saffron] in excess of £75,000”

. Mr. Hooper and Mr. Swinhoe went through these various documents at 4pm on Monday 15 August 2005. Annotations were made, including next to clause 2.5. Two days later, on 17 August 2005, a meeting took place involving Mr. Swinhoe, Mr. Hooper, Mr. Jason, Mr. Levis, Mr. Garvin and Mr. Pollacchi. The upshot of this meeting was that the personal covenant was deleted from the SHA and Mr Swinhoe was removed as a party, the Facility Letter was amended to make reference to a personal guarantee to be given by Mr. Swinhoe and a separate personal guarantee document was drafted. Mr. Garvin’s and Mr. Pollacchi’s evidence is that these were matters which were discussed at the meeting. Mr. Garvin says that Mr. Swinhoe raised the issue of whether the personal guarantee was really needed, only to be told by one or more of Mr. Jason and Mr. Levis that it was. Mr. Swinhoe, on the other hand, insists (along with Mr. Hooper, Mr. Jason and Mr. Levis) that the personal guarantee was not discussed with him (Mr Swinhoe) on this or on any other occasion.

[12]This meeting was followed by a further meeting on 22 August 2005 not involving Mr. Jason or Mr. Levis but only Mr. Garvin, Mr. Swinhoe and Mr. Hooper, and then a completion meeting on 24 August 2005. The evidence in relation to this latter meeting could not be more hotly disputed. There is not even agreement as to who the attendees were, still less about what happened during the meeting. It is common ground that Mr. Hooper, Mr. Swinhoe, Mr. Garvin and Mr. Pollacchi were in attendance. It is also common ground that the purpose of the meeting was to enable the various transaction documents (including Mr. Swinhoe’s personal guarantee) to be executed and that this was what was done. Beyond this, however, the evidence given by the respective sides could not be more starkly at odds. Mr. Garvin and Mr. Pollacchi say that Mr. Jason, Mr. Levis and a Mr. Tony Coutinho (Company Secretary of The Jaison Group) were also in attendance and that Mr. Jason and Mr. Coutinho thus signed the SHA, the Facility Letter and a Declaration of Trust. They also give a detailed account of the circumstances in which the personal guarantee signed by Mr. Swinhoe came to be signed. Mr. Pollacchi says that he told Mr. Swinhoe to get independent legal advice before signing, to which Mr. Swinhoe’s response was:

“I don’t need independent advice; I know what a guarantee is”

. Mr. Swinhoe and each of the witnesses called by him strongly dispute this version of events. All deny that Mr. Jason, Mr. Levis and Mr. Coutinho were in attendance; Mr. Jason says that he was in the South of France celebrating his wife’s birthday that very day at a restaurant called ‘Les Pecheurs’. Mr. Swinhoe and Mr. Hooper dispute that there was any discussion of the personal guarantee at the meeting.

[13]These are the critical factual disputes which I need to resolve. Miss Stevens-Hoare realistically and fairly accepted that, if I were to accept the evidence given by Mr. Garvin and Mr. Pollacchi in relation to the 24 August 2005 meeting, then Mr. Swinhoe’s claim must fail. Whether or not LSG owed Mr. Swinhoe a duty of care, if the fact that he was signing a personal guarantee was made known to Mr. Swinhoe, then no question of professional negligence arises. It seems to me that the same must apply were I to conclude that Mr. Swinhoe was made aware of this fact in advance of the meeting which took place on 24 August 2005. As Miss Stevens-Hoare acknowledged, if Mr. Swinhoe knew about the existence of the personal guarantee, that is sufficient for LSG to defeat Mr. Swinhoe’s claim since Mr. Swinhoe accepted in his evidence that he knew at the material time what a personal guarantee was and how it would impose personal liability upon him. In short, Mr. Swinhoe did not need LSG to tell him these things. Bearing this in mind, I consider it appropriate, first, to determine the disputed factual issues before going on to consider the question of duty of care, followed by the various other issues, namely causation, failure to mitigate and contributory negligence.

Meeting on 24 February 2005

[14]The main focus at trial was on the events which followed the agreement reached on 4/5 August 2005 concerning the structure of the deal. It is after that agreement had been reached that Mr. Levis raised with Mr. Jason the need for a personal guarantee from Mr. Swinhoe and that Mr. Jason raised the matter with Mr. Garvin. It is nevertheless necessary to set those later events in their proper context.

[15]This starts with the meeting which took place at Mr. Selwood’s offices on 24 February 2005, attended by Mr. Hooper, Mr. Swinhoe and Mr. Garvin (all acting on Lydian’s behalf) and Mr. Jason and Mr. Selwood. This was the meeting, it will be recalled, when Mr. Jason made it clear that he expected Lydian to bear 50% of the loss, but with the relevant Jaison Group entity bearing the first £75,000, and it was agreed that Mr. Garvin should take a 5% share from each co-venturer.

[16]What I have not so far mentioned is that, immediately after that meeting (as Mr. Swinhoe acknowledged in his evidence albeit that he had not mentioned it in his witness statement) Mr. Garvin raised with Mr. Swinhoe and Mr. Hooper the fact that Mr. Jason had not raised the issue of Lydian’s financial strength (it had none) and it was agreed that they would “cross that bridge” if Mr Jason did come to raise it. It is submitted by Mr. Smith (on behalf of LSG) that Mr. Swinhoe must, therefore, have appreciated that Mr. Jason might, in due course, learn that Lydian had no assets and only a very modest capitalisation, and demand a personal guarantee or other collateral from Mr. Swinhoe. It follows, Mr. Smith submits, that Mr. Garvin is hardly likely not to have passed on Mr. Jason’s later request, made in early August 2005, that Mr. Swinhoe provide a personal guarantee.

[17]I agree with Mr. Smith about this. Miss Stevens-Hoare suggests that the point about Lydian’s financial strength not having been raised by Mr. Jason, Mr. Swinhoe would not have been able to “predict that he would be asked to provide a personal guarantee when that had never happened before and no one had ever made any suggestion of such a thing” (Miss Stevens-Hoare’s closing submissions, paragraph 63). Accordingly, she submits that Mr. Smith’s submission represents “an unrealistic leap”. However, it seems to me perfectly obvious that at whatever stage concerns over Lydian’s financial standing came to be raised, the need for a personal guarantee would inevitably surface in that context. I regard it as being nothing to the point that Mr. Swinhoe had apparently never previously been required to put up a personal guarantee. The fact is that, as Mr. Swinhoe very fairly accepted in his evidence, he was familiar with what a personal guarantee is. He must be taken as knowing that a personal guarantee is often required in circumstances where a company has no assets, regardless of whether he had himself previously been required to give one. Mr. Swinhoe is a capable and intelligent man, with many years of experience in business matters.

[18]I also agree that, in the circumstances, Mr. Garvin having himself raised the question of Lydian’s standing in February 2005, at the outset of his involvement with this project, it would be surprising if, when Mr. Jason raised the matter of a personal guarantee with him in early August 2005, he would have decided to keep this from Mr. Swinhoe and Mr. Hooper. This is an aspect to which I shall return. However, to continue with the chronology, following the meeting on 24 February 2005, Mr. Swinhoe and Mr. Hooper discussed whether to proceed on the ‘loss sharing’ terms proposed by Mr. Jason. Although not entirely happy about having to accept Mr. Jason’s terms, they decided that they would do so and that they would not take further forward their other attempts at obtaining finance with Mr. Barclay or with Mr. Willis. I am satisfied that their thinking was in substantial part driven by their commercial analysis that the likelihood of Lydian suffering a loss was not high and that, in any event, any such loss would not exceed £50,625 once Mr Hooper’s and Mr Garvin’s contributions were taken into account. Specifically, Mr. Swinhoe and Mr. Hooper calculated that Lydian’s exposure would not exceed £78,750, namely 45% of the then estimated fees needed to obtain planning permission (£250,000) less the £75,000 which Mr. Jason had agreed to meet (£175,000). The £78,750 would then reduce further by a half to £39,375 because Mr. Swinhoe’s evidence was that Lydian and Mr. Hooper “always shared the profits on our deals 50:50”. The exposure was, therefore, not great. Indeed, although the £250,000 figure was later increased to £300,000 and, as Mr. Swinhoe explained, that “translated into revised figures which Lydian and Roger Hooper could cover”, still the exposure was limited amounting to just £50,625.

[19]These losses needed, of course, to be set against the potential upside if the Leicester project turned out to be successful as Mr. Swinhoe and Mr. Hooper anticipated it would: the “bottom line” profit to which I have already referred, £3.259m, would translate into a profit of £733,275 based on Lydian’s 50% share of its combined (45%) interest overall, rising to as much as £1.296m if (as was hoped) that “bottom line” was exceeded by £2-2½m. The potential upside for Lydian (and Mr. Swinhoe) was, therefore, substantial. The evidence also demonstrated that Mr. Swinhoe and Mr. Hooper were influenced by their expectation that profits would be achieved on another of their projects, the so-called Wembley Hill transaction. Mr Swinhoe’s evidence was that he believed that this project would be successful and profitable, with Lydian’s share amounting to £500,000. This must have given him further comfort that if the Leicester project was loss-making, Lydian’s exposure would anyway be easily covered. For this additional reason, I am quite clear that Mr. Swinhoe made the assessment that the risk to Lydian was very low. The point, however, goes rather further than this since Mr. Swinhoe was adamant in his evidence before me that he would not have contemplated allowing Lydian to fold; should it have proven necessary, he would have injected his own personal funds into Lydian to keep the company afloat. It follows that Mr. Swinhoe’s assessment of the commercial risk on Lydian’s part was, in effect, an assessment of the personal risk which he, as a person and not as a corporate entity, was facing. In practice, the assessment related to the risk to his own assets. He was nevertheless content to proceed.

Meeting on 19 May 2005

[20]Some months later, on 19 May 2005, a meeting took place involving Mr. Garvin, Mr. Hooper and Mr. Jason at Mr. Selwood’s offices. Although he was uncertain whether he also attended, I find that Mr. Swinhoe did attend the meeting. This is borne out by the fact that Mr. Garvin copied Mr. Swinhoe (along with Mr. Hooper and Mr. Jason) in on a letter which he sent to Mr. Selwood on 13 May 2005, in which he referred to Mr. Jason having confirmed to him that “there is to be a meeting at your offices on the morning of Thursday 19 May 2005 to discuss the matter generally and I hope conclude terms for the Profit and Loss Sharing Arrangement to be entered into by Lydian with JGC so that we may then draft the Profit and Loss Sharing Agreement”. It is also confirmed by Mr. Hooper’s diary entry for 19 May 2005, which refers to meeting “John Jason to discuss Leicester” at 10.00am, before stating, “Howard and I went back to MG [Mr. Garvin’s] flat”. 4/5 August 2005: agreement on structure

[21]There were then a number of exchanges between Mr. Selwood and Mr. Garvin concerning the project. These culminated in the parties agreeing the structure of the deal between 4 and 5 August 2005. There is no issue as to what that agreement was. It entailed the setting up of a ‘Newco’ as a joint venture vehicle, with Lydian and a Jaison Group company each holding 50% of the shares and with the terms of the joint venture being regulated by a shareholders agreement or SHA. The intention was that LSG would set up the ‘Newco’ (Saffron) and prepare the SHA. To this end, Mr. Garvin brought in his corporate partner, Mr. Pollacchi, to assist him in completing the transaction.

[22]These arrangements were described by Mr. Garvin in letters which he sent to Mr. Levis and Mr. Jason on 4 and 5 August 2005 respectively. Each was copied to Mr. Solly Benaim of BDO Stoy Hayward; the 4 August letter was also copied to Mr. Selwood. However, neither was sent to Mr. Swinhoe or to Mr. Hooper, a point which was highlighted by Miss Stevens-Hoare as indicating that Mr. Garvin adopted an unsatisfactory approach when it came to explaining to Mr. Swinhoe and Mr. Hooper what the deal involved. I am nonetheless satisfied that Mr Garvin must have spoken to Mr. Swinhoe and Mr. Hooper about these matters. It should be borne in mind that Mr. Garvin began his letter to Mr. Selwood dated 4 August 2005 with the words, “I would refer to our telephone conversation at lunch time today and our further telephone conversation this evening. I would confirm that FPHL [another Jaison company] has agreed in principle with Lydian as follows”. He then set out the detail of the structure which had by that stage been agreed. Although Mr. Hooper in particular was reluctant to accept that this was the position, I cannot believe that Mr. Garvin would have felt able to write in such terms unless he had obtained instructions from Lydian (Mr. Swinhoe and Mr. Hooper) which reflected what he was writing.

[23]This is further borne out by the fact that Mr. Garvin’s attendance note dated 3 August 2005 shows that he made a telephone call to Mr. Hooper “to explain”. This ties in with Mr. Garvin’s mobile telephone records, which show a 4-minute call at 1.45pm from Mr. Garvin’s mobile telephone to Mr. Hooper. There is also a reference to “Advise RH and explain” (albeit that this has been crossed out), which ties in with a very short (15 seconds) call made from LSG’s offices to Mr. Hooper at 6.20pm. It is fair to say that Mr. Garvin’s note-keeping left quite a bit to be desired. However, the explanation for the crossing-out would appear to be that Mr Garvin tried to speak to Mr. Hooper but there was no answer. Similarly, Mr. Garvin’s attendance note for the next day, 4 August 2005 (the day that he wrote the first of the two letters to which I have referred) contains an entry which states “Clarified with R Hooper” immediately after another entry which states “Tel with JJ who confirm Joint Venture Co ok”. It is obvious that what Mr. Garvin was doing was explaining what he had discussed with Mr. Jason to Mr. Hooper and ensuring that Mr. Hooper (and, therefore, Lydian) understood the position which had been reached. Again this is what one would expect a solicitor in Mr. Garvin’s position to do. Indeed, Mr. Smith points out that there were, in fact, three calls made from Mr. Garvin’s mobile telephone to Mr. Hooper on this day.

[24]As to 5 August 2005 (the date of the second letter which was sent by Mr. Garvin to Mr. Jason as opposed to Mr. Levis), Mr. Garvin’s attendance note records his speaking first to Mr. Hooper “to update”, then to Mr. Levis and (separately) to Mr. Jason and to Mr. Benaim, again to Mr. Levis and then to Mr. Hooper and Mr. Swinhoe (“Advised R.H. and H.S.”) – all before sending his letter (incorrectly described as being to Mr. Selwood) and a further telephone conversation with Mr. Jason. There is little room for doubt, in such circumstances, that Mr. Garvin must have informed Mr. Hooper and Mr. Swinhoe what the position was; he was plainly keeping them in the loop. Indeed, telephone records show that no fewer than eight short calls were made from LSG’s offices to Mr. Hooper’s number on this day, consistent (I agree with Mr. Smith) with Mr. Garvin having left messages for Mr. Hooper to call him back.

Mr. Jason’s demand for a personal guarantee

[25]In the meantime, as I have previously explained, discovering that Lydian had no assets, Mr. Levis told Mr. Jason, and both agreed that a personal guarantee should be sought from Mr. Swinhoe. Mr. Jason, therefore, telephoned Mr. Garvin and told him that he was not prepared to fund the project without a personal guarantee. Mr. Jason said that Mr. Garvin’s response was “to the effect that he would discuss this with Howard and I left it with him”. This telephone conversation took place at some stage between 8 and 10 August 2005, at a time when there were a number of telephone conversations between Mr. Garvin and Mr. Hooper.

[26]Mr Garvin was insistent in his evidence that, rather than tell Mr. Swinhoe directly, he spoke to Mr. Hooper and told him what it was that Mr. Jason was asking for. He said that he did this more than once. Mr. Hooper, however, denies that this was the case. His evidence is that no mention was made of a request for a personal guarantee from Mr. Swinhoe at all. Mr. Swinhoe also denies that Mr. Hooper ever told him that Mr. Garvin had passed on Mr. Jason’s request to him (Mr. Hooper). There is, therefore, a straight conflict of evidence on this important issue. It is a conflict which I must resolve based largely, although not exclusively, on my assessment of the witness evidence which I heard.

[27]Miss Stevens-Hoare points out that LSG’s pleaded case was that the request for a personal guarantee was communicated by Mr. Garvin in a telephone conversation with either Mr. Swinhoe or Mr. Hooper. Whilst she is right about that, I do not myself consider that it much matters, not least because I consider that Miss Stevens-Hoare is wrong to suggest, as she went on to suggest, that the matter was not addressed in Mr. Garvin’s witness statements and it was effectively only when he gave his oral evidence that it became clear that he was saying that he had spoken only to Mr. Hooper. Miss Stevens-Hoare overlooks the fact that in paragraph 60 of his first witness statement Mr. Garvin had said this:

“I know that I discussed this issue [the personal guarantee issue] more than once with Mr Hooper in one, if not all, of the conversations which I had with him during this period. I feel sure that he reviewed the position with Mr Swinhoe”

. In the circumstances, I am not inclined to read too much into the fact that the pleaded case referred to Mr. Swinhoe having been told in the alternative to Mr. Hooper. I am satisfied that Mr. Garvin was not lying to the Court when he said that he told Mr. Hooper – both in his first witness statement and in his oral evidence.

[28]Miss Stevens-Hoare has a related submission, however, which is that it is odd that Mr. Garvin should choose to convey Mr. Jason’s request not to Mr. Swinhoe (the person from whom the personal guarantee was required) but to Mr. Hooper. It is right to say that this was not a matter which Mr. Garvin sought to address in his first witness statement. As can be seen from the passage just quoted, he seems merely to have assumed that Mr. Swinhoe would have found out from Mr. Hooper, in circumstances where his main point of contact appears to have been Mr. Hooper. When he was asked about this by Miss Stevens-Hoare, Mr. Garvin explained that he preferred to speak to Mr. Hooper because he (Mr. Garvin) and Mr. Swinhoe had a personality clash and he thought that news of the request for a personal guarantee would come better from Mr. Hooper than if Mr. Garvin told Mr. Swinhoe about Mr. Jason’s request. Miss Stevens-Hoare submits that this would be a more credible explanation if it had been given in Mr. Garvin’s witness statements. She suggests that, since it only emerged during the evidence which Mr. Garvin gave during his cross-examination, it is an explanation which should be rejected as not credible. I do not agree. It would be different if Mr. Garvin had previously put forward a different explanation to the one given when he was cross-examined. However, that is not the position. Mr. Garvin had previously not sought to explain other than to make the point that he felt sure that Mr. Hooper would tell Mr. Swinhoe about the personal guarantee request. In any event, having observed Mr. Garvin, Mr. Swinhoe and Mr. Hooper give their evidence, it seems to me that what Mr. Garvin had to say about finding it easier to deal with Mr. Hooper than with Mr. Swinhoe was obviously right; I can well see that Mr. Garvin and Mr. Hooper, who after all had a long-standing and close relationship, got on better with each other than did Mr. Garvin and Mr. Swinhoe.

[29]Considering the matter in the round, I regard it as most unlikely that, having told Mr. Jason that he would pass on the request for a personal guarantee, Mr. Garvin then kept quiet about the matter. It is perfectly clear, as I have explained, that Mr. Garvin was in frequent contact with Mr. Hooper (and to a lesser extent Mr. Swinhoe) in this period. It would be very surprising indeed, in such circumstances, if Mr. Garvin did not pass the request on. He would be bound to have known that it was not something about which he could remain silent. Mr. Swinhoe was, after all, going to have to sign the personal guarantee at some stage. Mr. Garvin must have realised, at a minimum, that there was at least a risk that Mr. Swinhoe would notice that what he was signing was a personal guarantee. Moreover, as previously pointed out, it was Mr. Garvin who had himself raised the issue, in February 2005, that Lydian had no assets and only a very modest capitalisation. In such circumstances, Mr. Garvin is hardly likely to have made a positive decision not to pass on Mr. Jason’s request for a personal guarantee when, in due course, it came to be made. There is absolutely no evidence that he made such a decision. In particular, I reject the suggestion made by Miss Stevens-Hoare that Mr. Garvin was desperate to complete the project because of his own (10%) interest in it and the time which he had spent working on it. I do not consider that Mr. Garvin would have been so influenced by these considerations as to keep Mr. Jason’s demand from Mr. Swinhoe. That would have involved the most disreputable conduct on his part, and I see no basis for such a conclusion. The other possibility is that Mr. Garvin made a mistake in not passing on the demand. However, I do not see how that can have been the case. Mr. Garvin told Mr. Jason that he would pass the demand on and the personal guarantee was subsequently drawn up and entered into within the space of a relatively short time period during which Mr. Garvin (along with Mr. Pollacchi) was dealing with matters relating to the transaction. In such circumstances, I consider it very unlikely that he could simply have overlooked the matter.

[30]I should just add that I am not swayed from this conclusion by the fact that, during his cross-examination, Mr. Garvin was unable to recollect receiving instructions from Mr. Swinhoe (whether directly or via Mr. Hooper) that he agreed to give the personal guarantee. Miss Stevens-Hoare suggests that LSG simply proceeded to draft the personal guarantee on the basis that Mr Swinhoe had agreed to give it. I do not consider this very likely. Mr. Garvin told me that, based on the communications he had had with Mr. Hooper, he understood that Mr Swinhoe was prepared to give the guarantee; and I accept that evidence. I also agree with Mr. Smith that Miss Stevens-Hoare’s submission ignores the speed at which the deal was moving. It needs to be borne in mind that it was only very shortly after Mr. Jason had made his demand that, on 10 August 2005, Mr. Garvin wrote to Mr. Jason (copied to Mr. Hooper and Mr. Swinhoe, amongst others) setting out the structure of the agreed arrangements and including in that description a reference to the personal guarantee (albeit that Miss Stevens-Hoare would say that this was not a very clear reference). It was then only two days after that, on Friday 12 August 2005, that the draft transaction documentation was circulated. I am clear that Mr. Garvin must have satisfied himself that he had instructions to act as he was, in fact, acting in this period, specifically that he was instructed to agree what he was telling all the other parties he had instructions to agree.

[31]This is underlined by a closer consideration of the 10 August 2005 letter setting out the agreed structure of the deal. I am referring here to the version of that letter and the accompanying memorandum which were received and annotated by Mr. Hooper; these were the versions which were understandably the focus of counsel at the hearing. I should explain that the 10 August 2005 letter and memorandum were preceded by drafts prepared on 8 August 2005 (in the case of the letter) and 10 August 2005 (in the case of the memorandum), which Mr. Garvin discussed with Mr Pollacchi, his corporate partner and as such the person at LSG who would put together the transactional documentation. In particular, the draft letter refers to Mr. Pollacchi preparing a “simple form of Guarantee from Lydian/Howard Swinhoe to JIL”. This, in a letter which it was intended would be copied to Mr. Swinhoe because he appears as a “cc” party at the end of the draft. This appears, therefore, to confirm that Mr. Jason made his demand for a personal guarantee on 8 August 2005.

[32]As for the 10 August 2005 letter and accompanying memorandum themselves, these were sent out by fax and post on 10 August itself. Mr. Swinhoe and Mr. Hooper both said in evidence that Mr. Hooper annotated the documents before providing his annotated versions to Mr. Swinhoe. They then discussed matters. It is LSG’s case that both Mr. Swinhoe and Mr. Hooper must have appreciated from these documents (as well as from the discussions which took place between Mr. Garvin and Mr. Hooper to which I have referred) that a personal guarantee from Mr. Swinhoe was what Mr. Jason was seeking. Mr. Smith relies, in particular, upon the reference to Mr. Pollacchi preparing a “simple form of Guarantee from Lydian/Howard Swinhoe to JIL to secure Lydian’s obligation to contribute 50% of an [sic] loss in excess of £75,000”. He makes the point that somebody with Mr. Swinhoe’s business knowledge and intelligence would know that, since the guarantee concerned was intended to secure “Lydian’s obligation”, the reference to “Lydian/Howard Swinhoe” giving a “simple form of Guarantee” must, in fact, be a reference to Mr. Swinhoe giving the guarantee rather than Lydian because Lydian could hardly guarantee its own obligations. I agree with this. Obviously the letter could have been better expressed, but the meaning is clear enough or ought to be to somebody in Mr. Swinhoe’s position. I do not think it matters that, as Miss Stevens-Hoare submits, neither Mr. Swinhoe nor Mr. Hooper is a lawyer. Nor do I think it matters that Mr. Swinhoe had not himself previously ever given a personal guarantee, since he accepted that he was familiar with the concept of what a personal guarantee was. Anyway, I repeat that the possibility that Mr. Jason might seek some protection, in view of Lydian’s lack of assets, must have been appreciated several months earlier, in February 2005. It follows that the request which Mr. Jason made could hardly have come as a complete surprise, either to Mr. Swinhoe or to Mr. Hooper.

[33]There is a further oddity in relation to Mr. Swinhoe’s (and Mr. Hooper’s) position. This is that, even if poorly expressed, the 10 August 2005 letter nevertheless contains an explicit reference to “Lydian/Howard Swinhoe” giving a “simple form of Guarantee”. Despite this, according to Mr. Swinhoe and Mr. Hooper, no mention was made of Mr. Jason’s request for a guarantee, whether from Mr. Swinhoe personally or from Lydian, aside presumably (and apparently for the first time) in this letter. It seems to me somewhat improbable that Mr. Garvin had not already told Mr. Hooper (and, through him, Mr. Swinhoe) at least something about Mr. Jason’s request for a personal guarantee, even if he failed to mention (which I do not consider he would have done) that the request was for a personal guarantee from Mr. Swinhoe and not from Lydian. If not, then, I find it hard to see why Mr. Swinhoe and Mr. Hooper did not react to the 10 August 2005 letter by asking what was meant by the reference to “Lydian/Howard Swinhoe” giving a “simple form of Guarantee”, yet their evidence appeared to be that nothing at all was ever said about any guarantee.

[34]Mr. Swinhoe and Mr. Hooper tried in their evidence to explain the position away by claiming that they had not appreciated that a personal guarantee was being sought because, in effect, they were not expecting there to be a requirement that there should be a personal guarantee or some such protection. I have already rejected the suggestion that the possibility of a personal guarantee or some such protection had not previously been contemplated earlier in the year, in February 2005. Besides this, however, I cannot accept that Mr. Swinhoe and Mr. Hooper failed to appreciate, at a minimum, that something more was being demanded by Mr. Jason than had previously been sought. The reference in the letter to “Lydian/Howard Swinhoe” giving a “simple form of Guarantee” was quite obviously seeking something extra, even if that was understood by them to be a reference to Lydian providing a guarantee, since that was still something which was in addition to the various other contracts which were to be entered into. There is also the fact that Mr. Hooper wrote “Joint. Sub agreement” against the reference to the guarantee, underlining the word “Joint”. In these circumstances, I cannot accept that Mr. Hooper (and, therefore, Mr. Swinhoe since he and Mr. Hooper discussed Mr. Hooper’s annotated version) failed to appreciate that a guarantee was required. The point goes further than this, however, because the fact that Mr. Hooper wrote “Joint” seems to me to make it clear that Mr. Hooper knew that, at a minimum, the guarantee was required from both Lydian and Mr. Swinhoe. In other words, I am satisfied that Mr. Hooper must have appreciated that Mr. Swinhoe was himself required to give a guarantee. He may have considered that this was in addition to Lydian giving a guarantee. Alternatively, he may have considered that the only guarantee which was required was from Mr. Swinhoe and his reference to “Joint” was, therefore, a reference to Lydian having primary liability and Mr. Swinhoe guaranteeing that (primary) liability. Either way, I am clear that Mr. Hooper and Mr. Swinhoe must have appreciated that Mr. Swinhoe was being required to enter a personal obligation under a guarantee given in his own name.

[35]Mr. Hooper sought to suggest that the reference to “Sub agreement” related to his own promise to pay Lydian his share of any loss which Lydian might sustain. However, even leaving aside the point that that promise ultimately came to be embodied in a personal guarantee given not to Lydian but to Mr. Swinhoe, I do not myself see how that can explain why, if Mr. Hooper is right in what he says, he also wrote the word “Joint” since Mr. Hooper’s promise to Lydian/Mr. Swinhoe was not a promise which he made jointly with anybody else. Miss Stevens-Hoare submits that, in context, the word “Joint” reflects the fact that Lydian’s liability would ultimately be shared by Lydian, Mr. Hooper and Mr. Garvin. She submits that that is why the word “Joint” is followed by the words “Sub agreement”, the mechanism by which the liability between Lydian, Mr. Hooper and Mr. Garvin was to be shared. This is a subtle point, which Miss Stevens-Hoare submits is supported by what Mr. Hooper said in his evidence before me. I am not so sure about that. I certainly do not recall Mr. Hooper putting the point quite as clearly as Miss Stevens-Hoare does in her submissions to me. In any event, I am not persuaded by the point. It seems to me that it is much more likely that the word “Joint” was intended by Mr. Hooper as a reference to the fact that the letter referred to “Lydian/Howard Swinhoe”, and not to any “Sub agreement” arrangement. Indeed, if the position were otherwise, it is difficult to see why the word “Joint” would have been necessary. A reference to “Sub agreement” would have been all that was required to cater for the point which Mr. Hooper was wishing to highlight.

[36]The position as I have found it to be is confirmed by a later passage which appears further down the same page as the reference to “Lydian/Howard Swinhoe” giving a “simple form of Guarantee”. This passage reads as follows:

“As agreed with Peter any private participation which JIL may have with any third party and which Lydian may have with any third party being in particular Roger Hooper, will not form part of the Shareholders Agreement and will be dealt with separately. It will be for JIL to receive the appropriate indemnity from any participant at its side and for Lydian/Howard to obtain the appropriate indemnities from any participant on Lydian/Howard’s side.”

The passage, therefore, draws a clear distinction between the instance where reference is made to “Lydian” and the instances where reference is made to “Lydian/Howard”. In the first two lines, the reference is only to “Lydian”, not to “Lydian/Howard”, whereas in the fifth and sixth lines the references are to “Lydian/Howard” and not merely to “Lydian” and the reference remains to “JIL” as opposed to “JIL/Mr Jason”. I agree that, in the circumstances, Mr. Swinhoe and Mr. Hooper must have appreciated the reason for this distinction, namely that Mr. Swinhoe was bearing personal obligations, whereas Mr. Jason was not.

[37]That Mr. Hooper must have appreciated that this was the position, even if he thought that Mr. Swinhoe was somehow going to have to give a joint guarantee along with Lydian, is supported by the fact that Mr. Hooper wrote this next to the passage: “[Howard] – estate”. Asked about what he meant by this wording, Mr. Hooper was unable or, perhaps, unwilling to say. It seems to me fairly obvious, however, that Mr. Hooper was noting by his annotation that Mr. Swinhoe bore some personal risk from the deal. Miss Stevens-Hoare submits that it is unlikely that any discussion between Mr. Swinhoe and Mr. Hooper would have involved reference to Mr. Swinhoe’s “estate” since laypeople tend not to refer to this type of concept. I am not persuaded by this submission, however, since it seems to me that businessmen such as Mr. Swinhoe and Mr. Hooper are quite likely to know what is meant by “estate” in the context of an individual taking on a potential liability. The fact is that Mr. Hooper did use the term, and he did so next to a reference not to Lydian but to Mr. Swinhoe. It seems to me that Miss Stevens-Hoare’s submission that Mr. Hooper is not to be treated as being familiar with the concept is somewhat undermined by this fact. I am not prepared to ignore Mr. Hooper’s own use of the term, certainly not in the absence of a satisfactory explanation from Mr. Hooper as to what he intended by using it. It seems to me that Mr. Hooper and Mr. Swinhoe (to whom Mr. Hooper spoke about the letter) must have had in mind that Mr. Swinhoe was taking on a personal risk. That accords with the earlier reference to “Lydian/Howard Swinhoe” giving a “simple form of Guarantee”. It also accords with Mr. Hooper having been told that this was the position by Mr. Garvin, and with Mr. Hooper subsequently himself providing a personal guarantee to Mr. Swinhoe, which is what he did by letter dated 24 August 2005, as follows: “... Mr H Swinhoe Lydian Securities Limited 47 Linden Gardens London W2 4HQ Dear Howard Lydian (Saffron) Limited (“the Company”) In consideration of you guaranteeing to Jaison Property Development Limited (“JPD”) the repayment by the Company to JPD of one half of the loan made by JPD to the Company in excess of £75,000 (“the Guarantee”) I hereby undertake and guarantee to you that I will pay to you 45% of any sums which you are obliged to pay pursuant to the provisions of the Guarantee”. I find it hard to see how, in these circumstances, Mr. Hooper can really have been giving straightforward evidence when he told me that he was not aware of the requirement for a personal guarantee from Mr. Swinhoe. There is no evidence that he ever expressed surprise that he was being required to provide this guarantee, yet he must have known that what he was doing was giving a guarantee to Mr. Swinhoe in respect of his (Mr. Swinhoe’s, not Lydian’s) liability to JPD. The guarantee expressly referred to the guarantee given to JPD and distinguished between that guarantee (from Mr. Swinhoe to JPD), on the one hand, and the Company’s (Saffron’s) liability to JPD under the “loan made by JPD to the Company”, on the other. Although, therefore, Mr. Hooper and, for that matter, Mr. Swinhoe insisted that they considered that this guarantee was given to Lydian rather than to Mr. Swinhoe, I cannot accept that evidence. The wording of the guarantee is straightforward and clear. I do not see how it can have been understood as being a guarantee given other than to Mr. Swinhoe in his personal capacity. In particular, although Mr. Hooper relied upon the fact that the guarantee is addressed to “Mr H Swinhoe, Lydian Securities Limited” and not to Mr. Swinhoe alone, the difficulty with this is that, the same day as Mr. Hooper executed the guarantee, he also signed an undertaking which (in contrast to the guarantee) is addressed to “Lydian Securities Limited” without any mention of Mr. Swinhoe. That undertaking is not only addressed in this way but also begins “Dear Sirs”, as opposed to “Dear Howard” which is how the guarantee begins. In such circumstances, I struggle even more to comprehend how Mr. Hooper and Mr. Swinhoe can really have thought that the guarantee from Mr. Hooper was a guarantee which was given to Lydian, the corporate entity. Therefore, it does not seem to me to be a tenable position for Mr. Hooper and Mr. Swinhoe to adopt the position that the reference to “you” in the guarantee should be regarded as a reference not to Mr. Swinhoe but to Lydian. I might add that I do not think it matters that some appreciable time later, on 26 January 2006, Mr. Hooper was sent copies of the guarantee and undertaking under cover of a letter from Mr. Garvin which incorrectly described the guarantee as a “copy of your guarantee to Lydian Securities Limited”. The fact remains that the guarantee was, self-evidently, not a guarantee in favour of Lydian. Mr H Swinhoe Lydian Securities Limited London W2 4HQ Dear Howard

Lydian (Saffron) Limited (“the Company”)

[38]It is also telling that Mr. Hooper’s guarantee was witnessed by Mr. Garvin, who himself provided a similar guarantee to Mr. Swinhoe on the same day, agreeing to pay “10% of any sums which you are obliged to pay pursuant to the provisions of the Guarantee” (Mr. Hooper was the witness to Mr. Garvin’s signature). If Mr. Hooper had been in any doubt over what he was signing, it is difficult to see why he did not ask Mr. Garvin for clarification. I regret to say that, in my assessment, the reason why Mr. Hooper and Mr. Swinhoe maintained before me that the guarantee given by Mr. Hooper was given to Lydian rather than to Mr. Swinhoe was because they realised that otherwise I would be bound to conclude that they appreciated that Mr. Swinhoe was taking on a personal liability to JPD. The absence of a guarantee from Mr. Hooper (and, for that matter, from Mr. Garvin) given to Lydian reflecting Mr. Swinhoe’s evidence that Lydian and Mr. Hooper “always shared the profits on our deals 50:50” is nothing to the point since, in giving Mr. Swinhoe the guarantee to which I have referred and taking account also of the guarantee which was given by Mr. Garvin, that 50/50 arrangement was achieved. Mr. Swinhoe was Lydian’s sole director and shareholder.

[39]In summary, my conclusion is that Mr. Swinhoe and Mr. Hooper must have appreciated, from the reference to “Lydian/Howard Swinhoe” giving a “simple form of Guarantee” in the 10 August 2005 letter, that a personal guarantee was being sought from Mr. Swinhoe. Mr. Hooper had clearly noted the reference. It must have been the subject of discussion between Mr. Hooper and Mr. Swinhoe when they met to discuss matters, including in particular Mr. Hooper’s annotated version of the letter. Even if they did not already know from discussions between Mr. Garvin and Mr. Hooper, Mr. Swinhoe and Mr. Hooper must have appreciated by the time that they came to consider the 10 August 2005 letter that a personal guarantee from Mr. Swinhoe was what Mr. Jason was seeking. In view of Miss Stevens-Hoare’s acceptance that it is sufficient for LSG’s purposes that Mr. Swinhoe knew of the fact that he was required to sign a personal guarantee, it follows that this is an end to Mr. Swinhoe’s case. In any event, I am quite satisfied that Mr. Swinhoe (and Mr. Hooper) must have known about the personal guarantee as a result of subsequent events, as I shall now explain.

Draft SHA: clause 2.5

[40]Two days after the 10 August 2005 letter, on Friday 12 August 2005, drafts of the SHA, Articles of Association for Saffron and a Facility Letter, all of which had been prepared by Mr. Pollacchi, were distributed to the parties. In Mr. Hooper’s case, he collected the documents personally from LSG’s offices. He explained that he collected two copies, one for him and one for Mr. Swinhoe. He delivered Mr. Swinhoe’s copies to him, ahead of a meeting which took place in the afternoon of Monday 15 August 2005 when Mr. Swinhoe and Mr. Hooper discussed the drafts. It appears that Mr. Swinhoe and Mr. Hooper independently considered the drafts in preparation for that discussion; indeed, Mr. Swinhoe’s annotated drafts were before me.

[41]The parties’ focus before me was on the draft SHA, and in particular clause 2.5 which is in the following terms:

“In consideration of Jason agreeing to enter into this Agreement with Lydian (in which Mr Swinhoe has an interest) Mr Swinhoe covenants with Jason to indemnify Jason in respect of 50% of any loss which Jason incurs in connection with its loans to the Company [Saffron] in excess of £75,000”

. Mr. Smith submits that this is clear language. He makes the point that Mr. Swinhoe agreed in his evidence that he knew that to covenant something means to make a promise to do that something. In such circumstances, Mr. Smith says that Mr. Swinhoe (and Mr. Hooper) must have known what was meant by the provision, namely that Mr. Swinhoe was himself (not through Lydian) promising to indemnify “Jason” (at that stage the relevant Jaison entity was identified as JIL rather than as JPD). He relies upon the fact that Mr. Swinhoe was named as a party to the SHA (in addition to Lydian, his company), something which Mr. Swinhoe acknowledged in cross-examination. Further, Mr. Swinhoe accepted that clause 2 contained important parts of the SHA, and that each clause in succession, clauses 2.1 through to clause 2.5, dealt with the obligations of different parties. I should say that I do not agree with Miss Stevens-Hoare that Mr. Swinhoe’s evidence as he was (as she put it) walked through the provision word by word in cross-examination should effectively be discounted because it does not follow that he had the same understanding when he was looking at the SHA in August 2005 as he had when he was giving his evidence at trial. The fact is that Mr. Swinhoe plainly read clause 2.5 because he annotated it. In these circumstances, I am not prepared to take it that he did not read the provision with care. Clause 2.5 very clearly differentiates between Lydian and Mr. Swinhoe, in particular the bracketed words recording that “Mr Swinhoe has an interest” in Lydian which make it obvious that, in referring to Mr. Swinhoe giving the covenant, it was indeed Mr. Swinhoe who was making the relevant promise. The position could hardly have been made more explicit. Mr. Swinhoe and Mr. Hooper are intelligent businessmen well used to having to read contractual documentation of this sort. I do not accept Miss Stevens-Hoare’s submission that, as they have no legal training, Mr. Swinhoe and Mr. Hooper could not be expected to understand what was meant by clause 2.5. It might be different if there was more complexity about the provision, but there is not. For the same reason, I do not accept Miss Stevens-Hoare’s related submission that, because clause 2.5 is one of many clauses in many pages of several complex legal documents, it was understandable that, without the benefit of any explanation or any information to highlight it as a significant clause, Mr. Swinhoe did not understand that clause 2.5 imposed a personal liability upon him. I repeat that clause 2.5 is perfectly clear in what it provides, and Mr. Swinhoe had read the provision because he had annotated it. In addition and in any event, I do not accept the premise of Miss Stevens-Hoare’s submission which is that Mr. Swinhoe was not expecting to have to provide a personal undertaking and, therefore, was not expecting that clause 2.5 would create a personal liability. As I have previously explained, I consider that Mr. Swinhoe would have appreciated that Mr. Jason might seek some protection after his meeting with Mr. Jason on 24 February 2005.

[42]Mr. Swinhoe and Mr. Hooper insisted in their evidence that they did not understand that clause 2.5 imposed personal obligations on Mr. Swinhoe. I struggled to understand what they were telling me they believed the function of clause 2.5 was if it did not impose personal obligations on Mr. Swinhoe. They were unable to provide any meaningful explanation as to what their belief was at the time. They seemed even to be suggesting that they believed that Mr. Swinhoe was giving a guarantee to Lydian. Mr. Swinhoe, in particular, stated in paragraph 22 of his witness statement as follows:

“It did not strike me as odd that I was being made personally a party to that Agreement. So far as I was concerned, Lydian and I were the same thing from a practical viewpoint but the liabilities were always with Lydian. I did of course have to ensure that Lydian performed its obligations”

. That, however, seems to me to make little sense, in circumstances where clause 2.5 is quite obviously concerned with a formal covenant or promise “to indemnify Jason”, and not some informal arrangement stemming from the fact that Mr. Swinhoe was Lydian’s sole shareholder and director. Indeed, when asked about paragraph 22 during cross-examination, Mr. Swinhoe’s answer essentially confirmed that what he was referring to was not a formal covenant or promise such as that to be found in clause 2.5 but merely the fact that, given that he was the sole director of Lydian, Lydian could only act through him and to this extent he had to ensure that Lydian performed its obligations. Mr. Hooper made a similar point during his cross-examination, but again, in my view, unconvincingly. As I see it, Mr. Swinhoe and Mr. Hooper must have appreciated what clause 2.5 was concerned with. They must, therefore, have appreciated that Mr. Swinhoe was being required to provide a personal indemnity. I repeat that clause 2.5 could hardly be in clearer terms.

[43]That Mr. Swinhoe and Mr. Hooper must have appreciated that clause 2.5 imposed a personal obligation on Mr. Swinhoe is underlined by the fact that next to clause 2.5 is Mr. Swinhoe’s annotation as follows:

“sub agreementinterest”

. I appreciate that it is Miss Stevens-Hoare’s submission that this annotation could refer to a liability on the part of Lydian or Mr. Swinhoe. However, I come back to the point again that Mr. Swinhoe plainly looked at clause 2.5, and it is a provision which is not difficult to understand. Mr. Swinhoe must have realised that it was dealing with a personal liability on his part, and not a liability on the part of Lydian. I say this independently of the fact that Mr. Hooper had previously made his “Joint. Sub agreement” annotation next to the reference in the 10 August 2005 letter to “Lydian/Howard Swinhoe” giving a “simple form of Guarantee”. I also leave out of account Mr. Garvin’s evidence that he told Mr. Hooper about Mr. Jason’s demand. I consider that clause 2.5 is sufficient by itself to have alerted Mr. Swinhoe to the personal liability which he was being expected to assume. It seems to me that Mr. Smith is right, therefore, when he submits that Mr. Swinhoe’s annotation demonstrates that Mr. Swinhoe knew that he was to give a guarantee to JIL and that Mr. Garvin and Mr. Hooper were in turn to give sub-guarantees to him. That, of course, explains why those sub-guarantees came to be given. The fact that Mr. Swinhoe’s obligation, in the event, took on a different form, a stand-alone personal guarantee rather than clause 2.5, is immaterial.

[44]The reason why, in the event, Mr. Swinhoe signed a stand-alone personal guarantee is nonetheless worth briefly explaining because it provides the setting for what seems to me more likely than not to have been another occasion when Mr. Swinhoe would have been made aware that he was being required by Mr. Jason to undertake a personal obligation in order for the deal to go ahead. It will be recalled that BDO Stoy Hayward were giving Mr. Jason advice in relation to the project’s tax implications for him or, more accurately, his group. Mr. Levis explained that it was in this context that, on 16 August 2005, BDO Stoy Hayward raised a tax issue in relation to clause 2.5. Essentially, the advice was that it would be more tax efficient for JPD to provide the financing instead of JIL. Since JPD was not itself a party to the SHA, there would need to be a stand-alone guarantee document, so that clause 2.5 would come out of the SHA. It is clear that this change was raised with Mr. Garvin right away because his attendance note for 16 August 2005 shows that he took part in “Various calls with Stoys + Peter Levis + John Jason” amounting to some 40 units of billable time. Moreover, Mr. Garvin must have kept Mr. Pollacchi informed about matters because in the various manuscript revisions to the draft SHA, which Mr. Pollacchi made that same day, it can be seen that next to clause 2.5 he wrote, “[Tax issue – consider]”.

Meeting on 17 August 2005

[45]The next day, 17 August 2005, there was a meeting at LSG’s offices involving Mr. Jason, Mr. Levis, Mr. Swinhoe, Mr. Hooper, Mr. Garvin and Mr. Pollacchi. This started at about 1.10pm and ended just after 2.00pm. Before this meeting started, Mr. Hooper met up with Mr. Garvin at 12 noon. Although neither Mr. Hooper nor Mr. Garvin could actually recall what was discussed during this pre-meeting, it is a reasonable inference that they would have run through matters ahead of the round-table meeting which was going shortly to take place. That this is what happened is supported by an email which Mr. Garvin sent to Mr. Selwood’s secretary at 12.26pm, in which he wrote this:

“Please advise [Mr Selwood] that [t]here is one likely change namely that reference to Lydian/Swinhoe’s indemnity in the [SHA] will be removed and there will be provision in the [Facility Letter] for Lydian/Swinhoe to guarantee. This does not go to the substance of the documents. It is merely form to deal with a remote tax issue for JIL.”

It is clear to me that this must have been a matter which Mr. Garvin discussed with Mr. Hooper when they were talking things through. Since Mr. Hooper was with Mr. Garvin when he sent the email, it would be very odd if it was not something which was discussed between the two men. Indeed, given the timing of the email, which was written just under half an hour after Mr. Hooper and Mr. Garvin began their pre-meeting discussions and just over half an hour before the round-table meeting began, it is likely that the clause 2.5/stand-alone guarantee issue was one of the main issues which was discussed by Mr. Hooper and Mr. Garvin. Certainly no other issue was the subject of an email sent by Mr. Garvin to Mr. Selwood ahead of the round-table meeting.

[46]As to the round-table meeting, Mr. Pollacchi’s and Mr. Garvin’s evidence was that one of the issues which was discussed was the tax issue which BDO Stoy Hayward had raised and which was the subject of Mr. Garvin’s very recent email. They say, in particular, that the deletion of clause 2.5 was discussed and that, as part of that discussion, it was decided that Mr. Swinhoe’s personal covenant would move from the SHA to a stand-alone personal guarantee. They say that, in this context, Mr. Swinhoe queried whether Mr. Jason really needed a personal guarantee from him, and that Mr. Jason and/or Mr. Levis replied by making it clear that no monies would be advanced without the personal guarantee being given. Although Mr. Swinhoe and his witnesses did not positively deny that there was a discussion about the deletion of clause 2.5, they strongly disputed that Mr. Swinhoe raised the query to which I have referred and that Mr. Jason or Mr. Levis said what Mr. Pollacchi and Mr. Garvin say was said about no monies being advanced without the personal guarantee being given.

[47]I was not impressed by the evidence which was given by Mr. Swinhoe and his witnesses on this issue. Mr. Swinhoe said that he was unable to recall the detail of the meeting. Indeed, his original recollection was that he had not attended the meeting at all. Mr. Hooper only somewhat grudgingly accepted that the deletion of clause 2.5 was discussed when he was shown his notes referring to the deletion. As for Mr. Levis, he was only prepared to accept that it was “quite possible” that the deletion of clause 2.5 was discussed. This, in circumstances where it is perfectly obvious that the issue was discussed. The evidence is overwhelming, and is not confined to the oral evidence which was given by Mr. Garvin and Mr. Pollacchi. First, there is Mr. Garvin’s email sent at 12.26pm to which reference has already been made. I agree with Mr. Smith that it would be very odd if, this email having been sent so soon before the round-table meeting and in direct response to BDO Stoy Hayward having given Mr. Jason the tax advice which they had given the day before, the question of clause 2.5 was not then the subject of discussion between the parties at a meeting when, on any view, the SHA was discussed. Miss Stevens-Hoare suggests that, the tax issue having been raised in advance of the meeting, it had already been agreed, again in advance of the meeting, that clause 2.5 would be removed and replaced by a separate guarantee document. She submits that, therefore, this would not have been discussed at the meeting itself. In circumstances where Mr. Garvin’s email had only just been sent, that, however, seems most improbable to me. Indeed, in his email Mr. Garvin had referred to a “likely change”. He was, therefore, raising a point which quite obviously he expected would need to be discussed. He was not presenting a fait accompli. Secondly, the version of the SHA which Mr. Pollacchi took along to the meeting was a typed up (and tidied up) version of the draft to which he had made various manuscript revisions including the words next to clause 2.5, “[Tax issue – consider]”. Again, it would be most peculiar if, in the circumstances, clause 2.5 had not been the subject of consideration at the meeting. Thirdly, in his handwritten notes made at the meeting itself, Mr. Pollacchi wrote, “Tax – Stoys advising – Stoys satisfied – subject to removal of ...”, explaining in his evidence before me that this was a reference to the removal of clause 2.5. Fourthly, it is clear that, in addition to his handwritten notes, Mr. Pollacchi also made manuscript revisions to the version of the SHA which he took along to the meeting (on the front page he wrote, “Amendments Meeting – 17th August”), including putting a line right through clause 2.5. Lastly, as I have mentioned, Mr. Hooper’s own notes also contain words consistent with a discussion about tax and also the transaction structure.

[48]In circumstances where the deletion of clause 2.5 was discussed, it is hardly likely that there was not also discussion about where the obligation contained in clause 2.5 should instead appear. It is perfectly plain that there must have been such a discussion, indeed an agreement that the clause 2.5 obligation would be moved to a stand-alone document. It is inconceivable that, having made the demand for a personal guarantee only days previously because he was concerned over Lydian’s lack of assets, Mr. Jason would then be content not to reach agreement, at the meeting on 17 August 2005, as to where Mr. Swinhoe’s obligation should be contained, in circumstances where the only reason why clause 2.5 was being deleted was because of tax advice which he had received and not because he had changed his mind about the need for a guarantee. I am confident, therefore, that there was a discussion about the need for a stand-alone guarantee. This is no doubt why Mr. Pollacchi’s timesheet for 17 August 2005 shows that, within an hour or so of the round-table meeting ending, he had set about the task of drafting a stand-alone guarantee document. Clearly in his mind there was no question that this was what the parties had agreed was necessary.

[49]I recognise that it is theoretically possible that the discussion concerning the replacement of clause 2.5 with a stand-alone guarantee document might have taken place without anybody focusing on the fact that the guarantee was to be a personal guarantee given by Mr. Swinhoe, as opposed to a guarantee given by Lydian. Miss Stevens-Hoare submits that this would have been “perfectly possible” (paragraph 58 of Miss Stevens-Hoare’s written closing submissions). That, however, is not what Mr. Swinhoe and his witnesses said happened; their evidence is that there was no discussion at all. There is, therefore, no evidence that the discussion was other than as described by Mr. Garvin and Mr. Pollacchi in their evidence, namely that Mr. Swinhoe queried whether Mr. Jason really needed a personal guarantee from him and Mr. Jason and/or Mr. Levis replied saying that, without a personal guarantee, funding would not be provided. I consider that I should be slow to reject that evidence, in circumstances where I have accepted that their recollection of events at the 17 August 2005 meeting is to be preferred to that of Mr. Swinhoe and his witnesses. It seems to me that I should nevertheless consider the possibility that Mr. Garvin and Mr. Pollacchi are right when they say that there was a discussion concerning the need for a stand-alone guarantee, but wrong when they say that the fact that that stand-alone guarantee was to be given by Mr. Swinhoe personally was a matter which was raised by Mr. Swinhoe.

[50]I have concluded that this is not likely to have been the position. I consider it unlikely that if there was a discussion (indeed, agreement) that the clause 2.5 obligation should be replaced by a stand-alone guarantee (a discussion which, as I say, I am satisfied did take place), there was not in the context of that discussion at least some reference to the stand-alone guarantee being in the nature of a personal guarantee from Mr. Swinhoe. It seems to me inherently unlikely that, in the discussion which took place concerning clause 2.5, somebody would not have made some reference to the personal liability issue. Mr. Jason and Mr. Levis were part of the discussions, and they were the people who had raised the demand. Mr. Garvin was also there, and he was the person to whom the demand had been made. There was also Mr. Pollacchi, who, as I say, went away and started very shortly afterwards drafting a personal guarantee. Whilst Miss Stevens-Hoare is, therefore, right that neither of the attendance notes relating to the meeting contains any reference to a “personal guarantee”, nevertheless it is self-evident that a stand-alone personal guarantee document was what the parties agreed at the meeting there should be. That agreement must have been made at the meeting because, as I have pointed out, in his email sent at 12.26pm Mr. Garvin had merely referred to a “likely change”, plainly contemplating that the matter would need to be discussed and had still to be agreed. Lastly, as noted earlier, Mr. Hooper and Mr. Swinhoe had each previously shown that they were aware that what Mr. Jason was insisting upon was an additional requirement which had not previously been raised, hence their respective annotations on the 10 August 2005 letter and clause 2.5 as it appeared in the draft SHA which was produced on 12 August 2005. I find it difficult to believe that, in such circumstances, they would have been content to make no reference to the nature of the obligation being imposed. It seems to me that this is the case irrespective of whether Mr. Swinhoe and Mr. Hooper themselves realised by this stage that the guarantee sought was a personal guarantee. Obviously, if (as I have found) they already realised that this was the position, then my conclusion is all the stronger, assuming, that is, that (as Mr. Swinhoe now says) he would not have entered into a personal guarantee under any circumstances.

[51]In any event, having heard the various witnesses who attended the meeting on 17 August 2005, I have formed the clear view that I should accept the evidence which Mr. Garvin and Mr. Pollacchi gave on this issue. Mr. Swinhoe and his witnesses had little or no independent recollection of what happened at the meeting, yet felt able to deny that the personal guarantee had been discussed or mentioned. Their evidence in relation to whether clause 2.5 had been discussed was, for reasons which I have explained, not evidence which I could accept. In such circumstances, I do not feel that I can have any real confidence in what they told me about the meeting. In contrast, Mr. Garvin and Mr. Pollacchi gave evidence which seemed to me to be far more reliable and which finds support in the contemporaneous documentation. In short, I accept their evidence not only that there was a discussion concerning a stand-alone personal guarantee, but also that Mr. Swinhoe queried whether Mr. Jason really needed a personal guarantee from him and Mr. Jason and/or Mr. Levis replied by making it clear that no monies would be advanced without the personal guarantee being given. It follows that Mr. Swinhoe appreciated that he was being required to provide a personal guarantee, and his claim against LSG must, therefore, fail. In case I am wrong about this, I shall nevertheless continue with the narrative.

The immediate period after the meeting on 17 August 2005

[52]I have previously mentioned that, after the meeting on 17 August 2005, Mr. Pollacchi wasted no time in drafting Mr. Swinhoe’s personal guarantee. He did so, as again his timesheet for the day makes clear, at the same time as making the various amendments to the transactional documentation which had been discussed at the meeting. I need not set out all the detail, but some points are worth noting. The first of these is that there is a handwritten note timed at 4.35pm which shows that Mr. Pollacchi telephoned Mr. Levis to tell him “Docs on their way”, only to discover that both Mr. Jason and Mr. Levis had already left the office for the day. This was very shortly afterwards followed by an email which Mr. Pollacchi sent to Mr. Benosiglio of BDO Stoy Hayward timed at 4.37pm, attaching “latest [SHA], Facility Letter and Articles” and stating: “John Jason has also been provided with a copy of these documents ready for signature subject to your comments. ... I look forward to hearing from you as soon as possible as I understand that John is about to go away”.

[53]Twenty minutes or so later, it appears from a LSG Courier Request Slip timed at 4.50pm that the various documents were then despatched to Mr. Jason’s offices. Mr. Pollacchi told me, in re-examination, that the SHA, in particular, was in wire-bound form. In his covering letter to Mr. Jason, Mr. Pollacchi said this:

“I have also sent a form to Peter in connection with his appointment as a director in case this is needed in your absence. I have drafted the Guarantee by Howard Swinhoe and also a Declaration of Trust and I have passed these to Michael for his comments. These will follow shortly.”

The evidence was that then, at 6.10pm, Mr. Pollacchi and Mr. Garvin discussed the personal guarantee and a draft Declaration of Trust to be given by Lydian in favour of JIL (relating to the 50% shareholding by Lydian on behalf of JIL). Twenty minutes later, Mr. Pollacchi emailed to Mr. Benosiglio a draft personal guarantee, a draft Declaration of Trust and also a draft Facility Letter. The next day, 18 August 2005, at 9.17am, Mr. Pollacchi sent to Mr. Jason by email the draft personal guarantee and draft Declaration of Trust, saying:

“I look forward to hearing from you with any comments”

. This was followed by a fax in similar terms sent at 10.18am (this fax was later, at 2.28pm, re-sent to Mr. Levis at a different fax number). Mr. Garvin also sent Mr. Benosiglio a further fax (the time of which is unclear), enclosing two further drafts, one of which concerned JIL’s Declaration of Trust in respect of its 5% shareholding in Saffron on Mr. Garvin’s behalf. Later the same day, at 2.17pm, a fresh draft of JIL’s Declaration of Trust in favour of Mr. Garvin (as sent by fax by Mr Garvin, as above) was created on LSG’s computer system, i.e., incorporating Mr Garvin’s manuscript annotations.

[54]The reason why I have set out this chronology is that it demonstrates that Mr. Jason’s one-time suggestion that he signed all the documents during the meeting which took place on 17 August 2005 (except for one which he signed the next morning and Articles of Association in respect of Saffron which it is common ground were signed during the meeting) cannot be right. Mr. Jason could not have signed any documents (other than the Articles of Association) until he came into work the day after the meeting in view of the fact that he had already left the office when Mr. Pollacchi called Mr. Jason’s office at 4.35pm to tell Mr. Levis that “Docs on their way”. In particular, Mr Jason cannot have signed JIL’s Declaration of Trust prior to 2.17pm since not only is that a document which had not previously existed but there is anyway no evidence that the document was ever sent to Mr. Jason in final form.

[55]In the circumstances, I am sceptical about Mr. Jason’s evidence that, if he did not sign the documents at the meeting on 17 August 2005, then he signed them on 18 August 2005 before he left on holiday; as Mr. Jason put it, it was “one of the two dates”. It is possible but not, in my view, likely that he signed the documents before his departure. I say this for a number of reasons. First, I have already rejected Mr. Jason’s evidence that he signed the documents at the meeting itself. It follows that I do not find Mr. Jason’s evidence on this topic inherently reliable. Secondly, there is no evidence that BDO Stoy Hayward and Mr. Selwood approved the drafts at any stage, whether on 17 or on 18 August 2005. Thirdly, I am bound to note that the most that Mr. Levis could say was that Mr. Jason “presumably” signed the documents on 18 August 2005; this is hardly compelling evidence. Nor, fourthly, in my view, was Mr. Coutinho’s evidence very persuasive. According to Mr. Coutinho’s witness statement (admitted under a hearsay notice), the documents “would have been signed by me after Mr Jason had signed them and before we both departed the office on holiday”. However, this is evidence which is based not on recollection but on reconstruction. Fifthly, in any event and somewhat surprisingly given the importance of the documents concerned, even if Mr. Jason (and Mr. Coutinho) did sign the SHA, the JIL Declaration of Trust and the Facility Letter on 18 August 2005, there is no evidence as to how those documents came to be returned to LSG. Whilst Miss Stevens-Hoare makes the point, in this context, that LSG’s offices and Mr. Jason’s offices are minutes apart from each other and there would be no need for any covering letter, the fact remains that there is no evidence before me concerning how or when the documents were returned to Mr. Pollacchi. I specifically raised this issue during the course of the evidence and was told by Miss Stevens-Hoare that there was, indeed, no such evidence. In the circumstances, given that Mr. Pollacchi has no record of their return, I am not prepared merely to assume that signed documents were returned.

The meeting on 22 August 2005

[56]There then followed a meeting between Mr. Garvin, Mr. Swinhoe and Mr. Hooper which took place in the morning of 22 August 2005. It appears from Mr. Garvin’s short attendance note that the meeting took some 2 hours. It was Mr. Garvin’s evidence that during this meeting there “would have been” discussion about the documentation relating both to the acquisition of the Property and to the corporate and loan documentation. It is fair to say, however, that Mr. Garvin was unable to say whether, in the course of these discussions, there was any specific discussion concerning Mr. Swinhoe’s personal guarantee. As far as Mr. Swinhoe was concerned, there was no such discussion. His evidence was that, although he had not initially recollected the meeting at all, shortly before the start of the trial he had talked about the meeting with Mr. Hooper, and the upshot of that conversation was that he and Mr. Hooper believed that the meeting concerned technical property issues (such as boundary issues and rights of way), and not the corporate and loan documentation (including the personal guarantee).

[57]In view of the somewhat uncertain evidence which Mr. Garvin gave on the matter, I feel unable to make a positive finding that Mr. Swinhoe’s personal guarantee was, indeed, discussed at the meeting on 22 August 2005. I am inclined to think that it may very well have been discussed. It seems to me that if the corporate and loan documentation was discussed, then in all probability the personal guarantee was the subject of at least a mention. Equally, however, it is possible that there was no such discussion. I say this notwithstanding that, as Mr. Smith points out, on 19 August 2005 Mr. Selwood sent an email to Mr. Garvin, in which he raised a query over “whether the Guarantee of Mr Swinhoe should also cover the obligation of [Lydian] in the [SHA]”, and on 22 August 2005 Mr. Garvin responded by saying:

“My instructions are that the Guarantee of Mr Swinhoe is limited to the financial obligations contained in the [Facility Letter]as set out in the form of Guarantee”

. It seems to me that Mr. Garvin could have sent this email without raising the matter with Mr. Swinhoe (or Mr. Hooper). I say this because it seems to me that Mr. Garvin was quite possibly in a position to answer Mr. Selwood’s question without having to obtain fresh instructions from Mr. Swinhoe. I also bear in mind that the reason for the delay in replying to Mr. Selwood’s question may well be merely that the email was sent on a Friday and Mr. Garvin took until the Monday to revert with his answer. Equally, it may be that the issue was one which he raised at the meeting on 22 August 2005, since it would obviously make sense for Mr. Garvin to raise Mr. Selwood’s email with Mr. Swinhoe and Mr. Hooper if they were discussing the corporate and loan documentation (including the personal guarantee) at the meeting. If so, that would clearly explain Mr. Garvin’s express reference to his having “instructions” which enabled him to answer Mr. Selwood’s question. As I say, I find it difficult to decide which of these two possibilities is the more likely and, in such circumstances, I decline to make a positive finding either way.

Revisions to the transactional documentation in the lead-up to the meeting on 24 August 2005

[58]Mr. Selwood’s email on 19 August 2005 is, however, significant for two additional reasons. This is because Mr. Selwood also raised drafting points in respect of the Facility Letter,pointing out that clause 8.1 wrongly referred to “the Lender” instead of JIL, and in respect of the SHA. Although Miss Stevens-Hoare is quite right to make the point that these were minor queries, they were nevertheless queries.Mr. Selwood clearly was contemplating that the documents still had the status of drafts which could undergo change. As far as Mr. Selwood, Mr. Jason’s own solicitor, was, therefore, concerned, the drafting process was not yet complete. I regard it as somewhat unlikely that Mr. Selwood would have been unaware that Mr. Jason and Mr. Coutinho had already signed the documents which they had been sent by LSG. This seems to me to support the conclusion which I have already reached, namely that the transactional documents had not been signed by the time that Mr. Jason left for France. Further, as Mr. Pollacchi explained in his second witness statement, Mr. Garvin having brought Mr. Selwood’s email to Mr. Pollacchi’s attention on 22 August 2005, Mr. Pollacchi set about amending the Facility Letter accordingly. It follows that the Facility Letter which ultimately came to be executed differed from the version which Mr. Pollacchi had previously, on 17 August 2005, sent to Mr. Jason.

[59]In fact, it was Mr. Pollacchi’s evidence that the other transactional documentation was also amended right up to the start of the completion meeting on 24 August 2005. Mr. Pollacchi identified a number of revisions which he made to the SHA, although (as Miss Stevens-Hoare points out) the changes to the SHA raised by Mr. Selwood were not made. In particular, in re-examination, he referred to certain changes which he says he made on the day of the meeting itself. He also mentioned in his evidence certain changes made to the Debenture. Mr. Smith relies on these various revisions as supporting LSG’s case that Mr. Jason and Mr. Coutinho must have attended the meeting on 24 August 2005 and signed the documents on that occasion. Miss Stevens-Hoare nevertheless submits that there are what she described as “a number of curiosities” about the documents relied upon by LSG which suggest that the issue is not as clear-cut as Mr. Smith suggests.

[60]First, she makes the point that Mr. Smith does not suggest that any of the amendments were on the signature pages or required any adjustment to the page breaks. The logic of this submission is that Mr. Pollacchi must, therefore, have replaced pages in a version which had already been signed by Mr. Jason and returned to Mr. Pollacchi. However, that is not something which I believe a solicitor in Mr. Pollacchi’s position would do. Certainly, having listened to Mr. Pollacchi give evidence before me, I am quite satisfied that it is not something which he did. I am clear that, even leaving aside his evidence that the draft SHA sent to Mr. Jason was in wire-bound form and so it would be difficult to replace pages, I do not consider that Mr. Pollacchi would have considered it something which it would be proper to do. Secondly, as I have already mentioned, Miss Stevens-Hoare highlights the fact that the changes to the SHA which Mr. Selwood had raised were not made. All that this shows, however, is that Mr. Pollacchi did not think the revisions were necessary. Thirdly, whilst there is a one page document matching the one page of the Facility Letter that was changed which states 22 August 2005 in the footer, the page with the same amendment in the final version states 17 August 2005 in the footer. This is, indeed, a curiosity. However, the fact that an amendment was made in response to Mr. Selwood’s email, an email which came after Mr. Jason says he signed the (unaltered) Facility Letter, is sufficient for LSG’s purposes. Miss Stevens-Hoare complains that what she called “the document properties” of the page with the footer dated 22 August 2005 have not been disclosed by LSG, but I am not prepared to infer from this that LSG has somehow doctored the document. Fourthly, Miss Stevens-Hoare refers to three small changes that were made to the SHA necessitated by the fact that Leicester City Council required Lydian to exchange contracts rather than Saffron. She correctly points out that these only affected the first three pages and, on Mr. Pollacchi’s own account, they could not have been made prior to 24 August 2005. To my mind, however, if anything, this is a point which is in LSG’s favour, since again it seems to me to support LSG’s case that the SHA was only finalised on 24 August 2005 and not before. Fifthly, Miss Stevens-Hoare submits that Mr. Pollacchi’s timesheet shows (and his evidence was) that he made changes to both the Facility Letter and the SHA on 22 August 2005, yet there are no changes to the SHA which could have been made on that date. Again, however, even if this is right, it seems to me to no more than a curiosity. It does not mean that it is right that the terms of the SHA remained the same as those which were set out in the draft sent to Mr. Jason several days earlier. On the contrary, it is clear that that is not the case, if only for the reason just given.

[61]Sixthly, Miss Stevens-Hoare says that, although Mr. Pollacchi’s evidence was that he made changes to the SHA on 24 August 2005, his timesheet does not show any record of those changes being made on that day and nor do any of his notes. I am not sure that Miss Stevens-Hoare is right about this, since I note that his timesheets contain various references to “Review”, “Prep for exchange” and “Review with MSPG [Mr. Garvin]”, all before the meeting took place. Although there is not, therefore, a reference to the SHA being revised, it is possible that these references cover such revisions. In addition, it is apparent from certain computer records which were before me that the SHA was “last saved” at 12.04pm on 24 August 2005, and that this version of the SHA remained identified as “Agt001-Shareholders Agt-D3-170805.doc” notwithstanding that it was “last saved” on 24 August 2005 and not 17 August 2005. There does not appear to be any change made on 22 August 2005. It may be, therefore, that Mr. Pollacchi’s timesheet on 22 August 2005 refers to changes which had yet to be made electronically. What is clear, however, is that Mr. Pollacchi did at least something with the document on 24 August 2005 because the computer records show this. In any event, I see no basis for Miss Stevens-Hoare’s related suggestion that Mr. Pollacchi may have made the changes later. Again, I cannot accept that Mr. Pollacchi would have made changes to the SHA after it had been signed by the parties.

[62]As to Miss Stevens-Hoare’s seventh and final point (set out in paragraphs 70.9-70.12 of her written closing submissions), this is that it appears to be LSG/Mr. Pollacchi’s practice that footer dates are changed to reflect the dates when documents are amended, yet this practice was not followed after 17 August 2005. As Miss Stevens-Hoare points out, each and every page of the relevant documents in the transactional Bible has a footer which is dated 17 August 2005. I have already explained that I do not consider that this means that the documents had not undergone any change since 17 August 2005. Plainly that cannot be the case for reasons which have already been given. However, Miss Stevens-Hoare’s point goes further than this. She suggests that the only reason for Mr. Pollacchi to retain the 17 August 2005 footer date must have been because that was the date which appeared on the pages which (as Miss Stevens-Hoare submits) Mr. Jason had already signed. She suggests, therefore, that Mr. Pollacchi must have decided to keep the pages consistent, presumably in order to avoid it ever later being suggested that Mr. Jason had signed a document which had subsequently been revised. For reasons which I have already explained, however, I cannot accept that this is what happened. I cannot accept that Mr. Pollacchi replaced pages in a version which had already been signed by Mr. Jason. That is not something which I consider he would have been willing to do. Mr. Pollacchi is plainly a careful and professional person. As Miss Stevens-Hoare herself pointed out, he is “a good and meticulous lawyer” (paragraph 51 of Miss Stevens-Hoare’s written closing submissions). I do not believe that he would have engaged in the type of conduct described by Miss Stevens-Hoare, even assuming that it would have been physically possible for him to replace pages in the wire-bound documentation which had been sent to Mr. Jason and which (on Miss Stevens-Hoare’s case) Mr. Jason had signed before leaving for France. As Mr. Pollacchi said, in answer to a question from me, whilst “correcting pages happens all the time”, there is a “huge difference between doing that and inserting a page in a signed document”. He was clear, therefore, that, whilst he would substitute pages of an unsigned document if it were necessary to make changes that did not affect the overall formatting, he would never insert a page in a signed document, and I accept that evidence.

The meeting on 24 August 2005

[63]I need now to deal with the meeting on 24 August 2005 itself. As I say, the evidence in relation to this meeting could not be more hotly disputed. There is not even agreement as to who the attendees were, let alone what happened at the meeting. In particular, Mr. Garvin and Mr. Pollacchi say that Mr. Jason, Mr. Levis and Mr. Coutinho were at the meeting and that it was then that Mr. Jason and Mr. Coutinho signed the transactional documentation. This is denied by Mr. Swinhoe and each of the witnesses called by him. Mr. Garvin and Mr. Pollacchi also say, importantly, that at the stage when the personal guarantee came to be signed by Mr. Swinhoe, Mr. Swinhoe declined the suggestion that he obtain independent legal advice before signing, stating:

“I don’t need independent advice; I know what a guarantee is”

. This is denied by Mr. Swinhoe and Mr. Hooper. Specifically, Mr. Jason says that, far from attending the meeting, he was in the South of France celebrating his wife’s birthday on 24 August 2005, something which he told me he has done for over 40 years.

[64]Before the formal meeting, Mr. Swinhoe and Mr. Hooper met with Mr. Garvin in LSG’s boardroom. Mr. Swinhoe and Mr. Hooper agreed that they met Mr. Garvin but suggested that this was not until 12 noon when they went to LSG’s offices, after first having a coffee together at 11.30am which they said was their usual practice before meeting Mr. Garvin. It turned out, however, when Mr. Hooper’s diary note was put to him, that it was the pre-meeting with Mr. Garvin which, in fact, started at 11.30am, not Mr. Swinhoe’s and Mr. Hooper’s coffee together. Mr. Smith suggested that Mr. Swinhoe and Mr. Hooper had deliberately sought to minimise the period of time that they spent at LSG’s offices on 24 August 2005. I am not sure that this is necessarily the case. I think it more likely that a simple error was made in relation, after all, to events which took place some five years ago. Nevertheless, given that the formal business did not begin until about 12 noon, the fact that the pre-meeting began at 11.30am means that it lasted about half an hour.

[65]Mr. Garvin says that the purpose of the pre-meeting was to discuss and review the corporate and finance documentation. His recollection is that this included Mr. Swinhoe’s personal guarantee. He and Mr. Pollacchi both recall that, towards the end of the pre-meeting, Mr. Pollacchi came in to see if there were any questions for him. Mr. Swinhoe and Mr. Hooper dispute this. They say that there was no discussion of the corporate documentation and certainly not of the personal guarantee. Their position is that Mr. Garvin “was in and out of the room dealing with some last minute issue with Leicester”, the implication being that there was not really the time for there to have been the discussion and review which Mr. Garvin suggests. It seems to me unlikely that there was not at least some such discussion and review. I agree with Mr. Smith that it would be a natural time for Mr. Garvin to run through the documentation, just before the formal completion events. Further, Mr. Garvin’s attendance note supports Mr. Garvin’s version of events since it states:

“Attending HS + RH part with DP to execute docs & go through corporate & finance”

. I consider that in relation to this aspect there is, therefore, more force in Mr. Smith’s submission that Mr. Swinhoe and Mr. Hooper have sought to downplay the significance of the pre-meeting. However, although I am clear that there must have been some discussion and review, I am rather less confident that that discussion and review included a specific discussion about Mr. Swinhoe’s personal guarantee. It seemed to me that Mr. Garvin’s evidence that there was this specific discussion and review was somewhat vague. I do not, therefore, attach too much significance to what Mr. Garvin told me about the pre-meeting, whilst nevertheless observing that, if Mr. Swinhoe’s later reaction when he was about to sign the personal guarantee was as Mr. Garvin and Mr. Pollacchi say it was, it is, perhaps, a little odd that Mr. Swinhoe is not said by Mr. Garvin or Mr. Pollacchi to have raised any point about the personal guarantee before the formal meeting began, whether in response to Mr. Garvin or Mr. Pollacchi mentioning the personal guarantee or because Mr. Swinhoe raised the issue himself.

[66]Be that as it may, Mr. Garvin and Mr. Pollacchi say that at about 12 noon Mr. Pollacchi came back into the boardroom, where Mr. Garvin, Mr. Swinhoe and Mr. Hooper were already sitting. Mr. Garvin and Mr. Pollacchi say that Mr. Jason, Mr. Levis and Mr. Coutinho arrived at much the same time. This, Mr. Garvin and Mr. Pollacchi say, was the start of the formal completion meeting. As I have pointed out, Mr. Swinhoe, Mr. Hooper, Mr. Jason, Mr. Levis and Mr. Coutinho all dispute this. Their position is that Mr. Jason, Mr. Levis and Mr. Coutinho were not at the meeting and Mr. Garvin and Mr. Pollacchi are simply wrong when they say that they were. I have not found this an easy dispute to resolve since it inevitably requires me to decide that evidence which has been given before me is evidence which I cannot accept. I must either accept the evidence which was given by Mr. Garvin and Mr. Pollacchi or the evidence which was given by Mr. Swinhoe, Mr. Hooper, Mr. Jason, Mr. Levis and Mr. Coutinho. In relation to the attendance issue, the position is either as Mr. Garvin and Mr. Pollacchi say it was or it is as Mr. Swinhoe, Mr. Hooper, Mr. Jason, Mr. Levis and Mr. Coutinho say it was. There is no room for a finding somewhere in the middle: either Mr. Jason, Mr. Levis and Mr. Coutinho attended or they did not.

[67]I have obviously had to engage in an evaluation of the witnesses’ credibility. In so doing, I have taken into account the fact that Mr. Garvin is not an independent witness since he clearly would not wish to have a finding of professional negligence made against him. I also consider that, as one of Mr. Garvin’s partners in LSG, Mr. Pollacchi is not an independent witness. Similarly, however, Mr. Swinhoe is not independent since whether he succeeds with the present claim is self-evidently a matter of great significance for him. Mr. Hooper is in a similar position because he faces his own liability under the personal guarantee which he himself gave to Mr. Swinhoe. If Mr. Swinhoe fails in the present claim, it would be open to him to seek to recoup from Mr. Hooper 45% of what he has been found liable to pay JPD. Although Miss Stevens-Hoare suggests that, in reality, Mr. Swinhoe is unlikely to do that because Mr. Swinhoe recognises that Mr. Hooper “does not have, and never did have the means to satisfy his obligations under his sub-guarantee, whoever he was to pay unless and until the Wembley Hill transaction succeeded (which it did not)” (paragraph 12 of Miss Stevens-Hoare’s written closing submission), I cannot be confident that Mr. Swinhoe will make no claim against Mr. Hooper. In any event, as Miss Stevens-Hoare fairly acknowledged, given Mr. Hooper’s close working relationship and friendship with Mr. Swinhoe, he clearly is not an independent witness. Whatever friendship there may previously have been between Mr. Hooper and Mr. Garvin (a longer standing relationship than that between Mr. Hooper and Mr. Swinhoe) regrettably having now ceased, it is unlikely to serve as an effective counter-balance to this lack of independence on Mr. Hooper’s part.

[68]Miss Stevens-Hoare suggests that the position in relation to Mr. Jason, Mr. Levis and Mr. Coutinho is different. As to Mr. Jason, she points out that he (or, more accurately, his company JPD) has a judgment against Mr. Swinhoe and that that judgment is secured by a final charging order which is registered. Since, as Miss Stevens-Hoare also points out, there is no suggestion that there is insufficient equity in Mr. Swinhoe’s house to secure the whole of the judgment, she submits that it follows that Mr. Jason has nothing to gain financially from supporting Mr. Swinhoe’s case against LSG. The point is additionally made that Mr. Jason did not know Mr. Swinhoe before his involvement in the project, whereas he did know Mr. Garvin with whom he had done business for a number of years. I bear these points in mind when considering the evidence and determining the issue which I have to determine. I also bear in mind that it is not suggested by Mr. Smith that Mr. Levis and Mr. Coutinho lacked independence as witnesses. This does not, of course, mean that I am obliged to accept the evidence which these witnesses gave before me. I must evaluate that evidence along with the other evidence which I heard from the other witnesses, whilst also taking account of the documentary evidence. Having undertaken that exercise, my conclusion is that the evidence which Mr. Garvin and Mr. Pollacchi is to be preferred to that given by Mr. Swinhoe, Mr. Hooper, Mr. Jason, Mr. Levis and Mr. Coutinho.

[69]The main reason for my reaching this conclusion is that, as I have explained in some detail already, it was only on the day of the meeting itself that the SHA and the Facility Letter were finalised. It was not until 24 August 2005, therefore, that the signed versions of these documents could have come into existence. I repeat that I simply do not accept that Mr. Pollacchi substituted pages within documents which had already been signed by Mr. Jason. It is not conduct in which I consider Mr. Pollacchi would have regarded it as appropriate to engage. In any event, since the SHA was sent to Mr. Jason on 17 August 2005 in wire-bound form, practically speaking it is difficult to see how it would even be possible to substitute pages as this would require de-binding and reconstruction which there is no evidence took place. If I am right that the relevant documents were not signed by Mr. Jason and Mr. Coutinho until 24 August 2005, it is obviously the case that when Mr. Jason told me (supported by Mr. Coutinho’s witness statement) that he did not attend the meeting that day because he was in France, that was evidence which was not right. That may be because Mr. Jason made a mistake in recalling whether he attended the meeting. The other possibility is that Mr. Jason was deliberately not telling the truth when giving his evidence to the Court. Regrettably, even allowing for the fact that Mr. Jason would appear to have nothing to gain from giving evidence which he knew to be incorrect, I consider that the latter is the case. I was not impressed by Mr. Jason as a witness. I have no doubt that he is, as Mr. Smith describes him, a shrewd and highly successful businessman. However, I did not regard him as a straightforward witness. I am clear that Mr. Jason is, again as Mr. Smith describes him, a man who is prepared to change his evidence depending upon what best suits his purpose. That was my impression from observing Mr. Jason giving his evidence. It is an impression which was reinforced by his inability to explain why he previously told Mr. Swinhoe’s solicitors, Gregsons, things which were later contradicted by the evidence which he gave at trial. Thus, despite telling the Court that he raised the need for a personal guarantee from Mr. Swinhoe during a telephone discussion with Mr. Garvin, following enquiries by Mr. Levis into Lydian’s financial substance (paragraphs 7 and 8 of his witness statement), in a letter to LSG dated 29 June 2009, based on a discussion with Mr. Jason, Gregsons wrote:

“There is no record of this [the personal guarantee] being a requirement of Mr Jason and indeed when questioned he denied absolutely ever raising it as a requirement in the transaction”

. Similarly, although before me Mr. Jason was insistent that the personal guarantee was an absolute requirement if he was to fund the Leicester project (paragraph 11 of his witness statement), it is apparent that he had previously told Gregsons something rather different because in their letter Gregsons wrote: “Mr Jason when asked if he would have continued with the transaction without the personal guarantee has indicated that he would. It was not crucial to his requirements as funding partner and he could not say from where the idea emanated”.

[70]Miss Stevens-Hoare does not suggest that what Gregsons stated in their letter did not accord with what Mr. Jason had told them. There is no reason to suppose that Gregsons would have misunderstood what Mr. Jason was telling them. Further, it is significant that Mr. Jason had solicitors acting for him, Shoosmiths, at the time. That seems to me to make it all the more unlikely that there would have been any confusion as between Mr. Jason and Gregsons as to what Mr. Jason was telling them. It is perfectly clear that Mr. Jason simply changed his version of events. I also agree with Mr. Smith that Mr. Jason’s attempts during cross-examination (as Mr. Smith puts it) to “harmonise” the evidence which he gave to Gregsons in mid-2009 with his evidence to the Court were much to his discredit. As to the first inconsistency, Mr. Jason’s explanation was that he had told Gregsons only that he had not raised the need for a personal guarantee from Mr. Swinhoe directly with Mr. Swinhoe but that he had done so with Mr. Garvin. If that is right, however, it is inconceivable that Gregsons could have written that “There is no record of this [the personal guarantee] being a requirement of Mr Jason and indeed when questioned he denied absolutely ever raising it as a requirement in the transaction”. It is equally inconceivable that Shoosmiths would have allowed Gregsons to write this. As to the second inconsistency, Mr. Jason’s suggestion was that the personal guarantee was not crucial until Mr. Levis discovered Lydian’s lack of substance whereupon it did become crucial. That, however, overlooks the fact that the need for a personal guarantee was not even raised until after Mr. Levis had discovered the lack of assets. More importantly, if the position was as Mr. Jason suggested when giving evidence, then, it is again simply inconceivable that Gregsons could have written saying that the personal guarantee from Mr. Swinhoe was not crucial. I consider that Mr. Smith is right when he suggests that these responses indicate that Mr. Jason is a man who is prepared not to be straightforward with the Court. It is no answer for Miss Stevens-Hoare to say that Mr. Jason did not just speak to Gregsons but came to Court, gave evidence and produced extensive personal documentation, all without compulsion. This does not change the fact that what he told Gregsons was contradicted by what he said in evidence, and not merely on matters which are immaterial since, on the contrary, the matters concerned are of absolutely central importance. It is also no answer to suggest, as Miss Stevens-Hoare does, that “the suggested motivation has passed” in that Mr. Jason has now a secured judgment against Mr. Swinhoe (paragraph 19 of Miss Stevens-Hoare’s written closing submissions). That is not the point. What matters is that Mr. Jason has shown himself prepared to give flatly contradictory versions of events. This cannot simply be overlooked, whatever Mr. Jason’s motivations may or may not have been whether in 2009 or at trial.

[71]Miss Stevens-Hoare submits that, in any event, Mr. Jason cannot have been at the 24 August 2005 meeting because he was not in the country that day. She says that Mr. Jason has a very good and specific reason for clearly remembering that he was not at the meeting, since that is the day of his wife’s birthday and he and his wife always spend the day together at their holiday home in France. Apparently, they have done this for 43 years. Moreover, Mr. Jason was able to produce airline and credit card documentation supporting his evidence that from 19 August 2005 until 2 September 2005 he was in France and not in London. In his written closing submissions, Mr. Smith acknowledged that there is a letter from British Airways to Shoosmiths dated 19 May 2010, in which details of the British Airways flights taken by Mr. Jason in the period from August to October 2005 are given, and there are no flights between Mr. Jason’s flight to Nice on 19 August and his return flight on 2 September 2005. Mr. Smith made the point (not disputed by Miss Stevens-Hoare) that other airlines fly from London to Nice. Mr. Smith, therefore, submitted that the fact that Mr. Jason is not shown as having flown with British Airways on 24 August 2005 is not conclusive of the position. Mr. Smith submitted that, in the circumstances, Shoosmiths, having confirmed that the dinner at ‘Les Pecheurs’ (the restaurant in Antibes where Mr. and Mrs. Jason ate on the evening of 24 August 2005 in celebration of Mrs. Jason’s birthday) was a late dinner, which was paid for between 10.30pm and 11.00pm, Mr. Jason could have travelled from London to the South of France between the end of the meeting and the time when Mr. and Mrs. Jason sat down to dinner that night (even allowing for the 1-hour time change from England to France).

[72]Mr. Smith additionally criticised Mr. Jason for not producing copies of entries for all his credit cards including, in particular, his NatWest Visa (no. ending 0136) which is understood to be a card of which Mr Jason is sole signatory and which he uses for UK transactions, and his Barclaycard (no. ending 3001), which is understood to be a card used for general business of The Jaison Group and which has Mr Jason, his children and a Mr. Ciampa as signatories. Mr. Smith additionally complained that Mr. Jason had not produced his mobile telephone records. In her written closing submissions, Miss Stevens-Hoare explained, however, that it was only rather late in the day, not long before the trial started, that LSG’s solicitors, Kennedys, requested the further material which Mr. Smith was criticising Mr. Jason for not having produced. Miss Stevens-Hoare explained that it had not been possible in the time available to locate the documents concerned. In the event, after oral closing submissions had been made and the trial had ended, Mr. Jason having in the meantime been able to obtain his mobile telephone records for August 2005, it was agreed between the parties that Mr. Swinhoe should be permitted to adduce additional evidence in the form of a further witness statement from Mr. Jason exhibiting a copy of those mobile telephone records. Consequently, both Miss Stevens-Hoare and Mr. Smith submitted further written submissions directed to this new evidence.

[73]Miss Stevens-Hoare points out that it is possible to match various communications between Mr. Garvin and Mr. Jason by comparing Mr. Garvin’s mobile telephone records for the period with those in respect of Mr. Jason’s mobile telephone. She says that the Vodafone records relating to Mr. Jason’s mobile telephone demonstrate that Mr. Garvin’s calls and texts to Mr. Jason were received on a French network, so making it clear that Mr. Jason was in France when he received the calls and texts, and not in the UK. It follows, Miss Stevens-Hoare submits, that Mr. Jason was right when he told the Court in his evidence that he was not at the meeting on 24 August 2005 but was in France. Specifically, Miss Stevens-Hoare points out that Mr. Garvin had produced a redacted Vodafone bill for his mobile telephone (07798942424) for August 2005, which showed a number of calls to Mr. Jason’s mobile telephone, 07860344111 and 447860344111. She refers to the fact that, in the course of his evidence, Mr. Garvin said that he called Mr. Jason twice on 22 August 2005, the second occasion speaking to him for some time. Mr. Garvin also confirmed that, on 24 August 2005, he called Mr. Jason at 10.43am and spoke to him briefly. In addition, he gave evidence that Mr. Jason left the meeting on 24 August 2005 in a rush so that he was gone or going as Mr. Garvin made his call to Leicester City Council at 12.24pm to exchange contracts on the purchase of the Property. Mr. Garvin said that this was why he sent a text to Mr. Jason at 12.30pm, confirming that exchange had occurred. It was also Mr. Garvin’s evidence that he spoke to Mr. Jason at his London office later that afternoon. That is supported by an entry in Mr. Garvin’s office telephone records timed at 3.09pm, the call lasting 9 minutes and 37 seconds. Miss Stevens-Hoare says it can be seen that Mr. Jason was making and receiving “calls while in the UK” until the morning of 19 August 2005, but that thereafter the records show him making and receiving “calls while abroad” for the remainder of August. In particular, looking at the records produced in respect of Mr. Jason’s and Mr. Garvin’s respective mobile telephones and allowing for the one hour time difference between France and this country, Miss Stevens-Hoare submits that it can be seen that, on 22 and 24 August 2005, there were calls corresponding in length and time to those made by Mr. Garvin to the same number that are listed as received while abroad, on a French network. She submits that the same applies to texts, again allowing for the time difference. Miss Stevens-Hoare makes the further point that at no stage did Mr. Garvin suggest in his evidence that, when making the calls which he says he made, he spoke to anybody other than Mr. Jason. She submits that it is, therefore, clear that Mr. Jason cannot have been at the meeting on 24 August 2005.

[74]Mr. Smith, in his supplemental written closing submissions, makes the point that Mr. Jason’s new witness statement provides little information about the process by which the copy bills were obtained. Whilst that may be right, I do not think it matters since the mobile telephone records are plainly what they purport to be. Mr. Smith then reminds me that LSG does not dispute that Mr. Jason left for France on 19 August 2005 and that he was away in France for most of the period leading up to early September 2005. The dispute is whether Mr. Jason was or was not present at LSG’s offices for a short period on 24 August 2005. With this in mind, Mr. Smith focuses on the two communications involving Mr. Jason’s mobile telephone which took place that day, whilst also relying upon the call made to Mr. Jason’s offices at 3.09pm, and not on any communications which took place on 22 August 2005. As to those three communications, those to which Miss Stevens-Hoare herself refers, Mr. Smith acknowledges that the call recorded as having been made from Mr. Garvin’s mobile telephone to Mr. Jason’s mobile telephone at 10.43am appears in the records which Mr. Jason has produced under the bill heading “Calls received while abroad”, recorded as routed through “Orange (France)”. As to the text which Mr. Garvin sent Mr. Jason at 12.30pm, the text in which he told Mr. Jason that exchange had occurred, again Mr. Smith acknowledges that there is a corresponding “Text messaging received while abroad” timed at 1:30pm (French time). There is also at 2.18pm (French time) a 4-minute telephone call from Mr. Jason’s mobile telephone to Mr. Garvin’s mobile telephone, which is referred to in Mr. Jason’s bill in the category “Calls sent while abroad”.

[75]Mr. Smith submits that Mr. Jason’s mobile telephone records nevertheless still leave the matter in doubt. He says that there is uncertainty as to the position because the records are not consistent in their descriptions of where texts, in particular, have been sent from and received. Specifically, Mr. Smith relies upon the fact that, although the above entries suggest that Mr. Jason must have been in France when those particular communications took place, elsewhere there are specific references to two texts having been sent from Mr. Jason’s mobile telephone on 24 August 2005, at 8:54am and 6:12pm, which are in the category “Text messaging sent while in the UK”. This, accordingly, suggests that Mr. Jason was in the UK all day and would be consistent with Mr. Jason either having arrived from Nice early in the morning or the night before and having then flown back to Nice in the early evening. Oddly, as Mr. Smith goes on to point out, the same page also refers to two texts on the same day under the heading “Text messaging sent while abroad”, so suggesting that Mr. Jason was in France rather than the UK on 24 August 2005. However, as no time is given for those two texts, it may be that these were texts which Mr. Jason sent either before setting off for London earlier in the day (if he flew on 24 August 2005 as opposed to the night before) or after arriving back in Nice from London. If so, that would be consistent with Mr. Jason having travelled to and from London on 24 August 2005. The position is not clear and is made even less clear when it is appreciated that there are texts recorded as having been sent on 22 and 25 August 2005 under both the “Text messaging sent while in the UK” category and the “Text messaging sent while abroad” category, with an exact one hour time difference between the respective entries.

[76]Mr. Smith’s submission, in the circumstances, is that Mr. Jason’s mobile telephone records do not constitute quite the powerful evidence which Miss Stevens-Hoare suggests they do. I agree. Whilst it would be inappropriate to discount the mobile telephone records completely, I nevertheless consider that it would be a mistake to accord them too much weight in view of the oddities and inconsistencies to which I have referred. In short, although I have taken them into account in assessing the credibility of the witnesses from whom I heard, I have not regarded them as being conclusive as to who were the attendees at the meeting on 24 August 2005. The position in relation to the mobile telephone records is just too uncertain. Indeed, the mobile telephone records which Mr. Jason has now produced, with their references to two texts having been sent by him “while abroad” on 24 August 2005, seem to me, if anything, to make the position less clear than was otherwise the case. Similarly, although obviously the letter from British Airways to Shoosmiths dated 19 May 2010 showing that Mr. Jason did not apparently fly with British Airways between 19 August and 2 September 2005 supports Mr. Jason’s evidence that he did not return to London for the meeting on 24 August 2005, I do not consider that this is conclusive of the position since there are other airlines which he could have used. Ultimately, however, it comes back to my evaluation of the evidence which the witnesses gave, and my conclusion that the evidence which Mr. Garvin and Mr. Pollacchi gave is to be preferred to that given by Mr. Swinhoe, Mr. Hooper, Mr. Jason, Mr. Levis and Mr. Coutinho. The mobile telephone records and the British Airways evidence are not sufficient, whether taken individually or together, to cause me to change my assessment of the evidence which I heard. In particular, I consider that they are outweighed by the evidence which I have addressed in some detail previously concerning the fact that it was only on the day of the meeting itself that the SHA and the Facility Letter were finalised, and, therefore, these documents must have been signed by Mr. Jason in London, at LSG’s offices, as Mr. Garvin and Mr. Pollacchi say was the case. As I say, I reject the suggestion that Mr. Pollacchi substituted pages within documents which had already been signed by Mr. Jason.

[77]I appreciate that this means that I am not only rejecting the evidence which was given by Mr. Jason but also that which was given by Mr. Swinhoe, Mr. Hooper, Mr. Levis and Mr. Coutinho. In so doing, I am also conscious that I am preferring the evidence which has been given by two people (Mr. Garvin and Mr. Pollacchi) over evidence which was given by five people. My concern, however, is with the quality of the evidence which was given rather than with the quantity of witnesses who gave the evidence. In my assessment, the evidence given by Mr. Garvin and Mr. Pollacchi was simply more credible than that given by the other witnesses. I have already explained why I have formed this view in relation to Mr. Jason’s evidence. I did not regard him as a straightforward witness, an impression gained from observing him give his evidence which was reinforced by the fact that he had previously given a contradictory version of events to Gregsons. As for Mr. Swinhoe and Mr. Hooper, besides their lack of independence (a feature shared with Mr. Garvin and Mr. Pollacchi), I consider that there is force in Mr. Smith’s submission that, whilst not lying, they are nevertheless engaged in what Mann J in Tamlura NV v. CMS Cameron McKenna

[2009] EWHC 538

; [2009] Lloyd’s Rep PN 71 described as “litigation wishful thinking” in the following passage at paragraph [174]:

“... as is not unfamiliar in litigation, regret over what happened has led to a search for those who might be blamed, and has tinted the spectacles through which the events are now viewed. It is a form of ‘litigation wishful thinking’. So [the representatives of the Claimant] have forgotten they were content with the original deal, and meetings at which they discussed things with [the solicitor] have turned into false recollections of advice that was not given. This does not amount to a deliberately fabricated case, but it does not create a good one either.”

Another way of describing the phenomenon would be to say that Mr. Swinhoe and Mr. Hooper are in denial. They simply cannot accept that what happened did, indeed, happen. Mr. Swinhoe, in particular, cannot accept that he signed a personal guarantee knowing that it was a personal guarantee, indeed that he even knew that a personal guarantee from him was what Mr. Jason was insisting upon if funding was going to be forthcoming. That is, in my assessment, the explanation for the evidence which Mr. Swinhoe and Mr. Hooper have given, not that they have deliberately given evidence which was untruthful. Their starting point is that Mr. Swinhoe would not have signed a personal guarantee, even though it was Mr. Swinhoe’s evidence that he would not have contemplated allowing Lydian to fold and, if necessary, would have used his own personal funds to keep the company afloat. With this as their starting point, I consider that Mr. Swinhoe and Mr. Hooper have persuaded themselves that events were as they say they were. They are, therefore, genuine in their recollection, but are, at least in places, mistaken.

[78]As for Mr. Levis, I am quite clear that again his evidence was truthfully given. I agree with Miss Stevens-Hoare that Mr. Levis was completely open about the quality of his recollection and what had assisted him in his recollection. Indeed, Mr. Smith does not suggest otherwise. Nevertheless, it needs to be borne in mind that he was, in his evidence, dealing with events which happened some five years ago. He did not, in particular, sign his witness statement until May this year. Aside from this, there is also the point that Mr. Levis clearly had only a limited involvement in the Project. It was Mr. Jason who took the lead in discussions with Mr. Swinhoe and Mr. Hooper (and Mr. Garvin). Whilst Mr. Levis admittedly raised the question of Lydian’s financial status with Mr. Jason, it was Mr. Jason who conveyed the demand for a personal guarantee from Mr. Swinhoe to Mr. Garvin in early August 2005 and it was, of course, Mr. Jason (and Mr. Coutinho) who executed the various transactional documentation on JPD’s behalf. In the circumstances, it would be readily understandable if Mr. Levis did not have any distinct recollection of events. I consider that Mr. Smith is also probably right when he submits that Mr. Levis appeared, at least to some extent when giving his evidence, to have engaged in a process of reconstruction based upon deductions to be drawn from other evidence, rather than to have drawn upon his own direct recollection of events. The particular example given by Mr. Smith is a passage in paragraph 10 of Mr. Levis’s witness statement, in which Mr. Levis’ position was stated to be that, since neither Mr. Jason nor Mr. Coutinho was in the office on 24 August 2005, “there would have been no purpose for me to come into the office on that date, and I would not have done so”. Mr. Levis was not here explaining why he was not in the office, but why he was able to recall that he was not in the office. The two are the not the same thing. Mr. Levis’s inability to recall events independently was underlined by the fact that, having been told by Mr. Jason, just before he came to give his oral evidence, about the 9 minutes and 37 seconds long telephone call which had been made to The Jaison Group’s offices at 3.09pm on 24 August 2005, Mr. Levis then changed his account to say that he was, after all, in the office that day. Mr. Levis explained that Mr. Jason had also told him that his son, James, who was involved in the business, was not in the office but was (also) in France that day. It was this which had prompted him to change his evidence because otherwise nobody else would have been available to take the call if he had not been in the office. Again, this could hardly be described as an independent recollection of events, particularly in view of Mr. Jason having spoken to Mr. Levis at the stage which he did. I agree with Mr. Smith that, in the circumstances, whilst not seeking to criticise Mr. Levis, nevertheless the evidence which he gives needs to be approached with a degree of caution.

[79]That leaves Mr. Coutinho. His evidence was admitted under a hearsay notice because he had previously arranged a foreign holiday at a time when the trial had still to be fixed. This is not a reason for criticism, and Mr. Smith makes no criticism. He nevertheless does make the point that Mr. Coutinho’s role was a purely formal one involving the signing of the transactional documentation. There is even less reason for Mr. Coutinho to recall events than there is for Mr. Levis to do so. He was not part of any decision-making process at all. In addition, although Mr. Coutinho’s holiday dates include 24 August 2005, it is nevertheless clear that he, in fact, worked on at least one day (Thursday 25 August 2005) because that day is left out of the dates listed in his “Holiday Request Form”. Mr. Coutinho had not left the country. He was able to come to work easily enough. It may, therefore, be that he attended the completion meeting, a brief meeting after all, without it being formally recorded as a day of work. Mr. Smith also makes the legitimate point that in his witness statement Mr. Coutinho stated that he “would have spent the day with” his family, but he did not say that he recalled actually doing this. The same applies to paragraph 6 of his witness statement, in which he again used the words “would have” when saying that he would have signed the relevant documentation “after Mr Jason signed them and before we both departed the office on holiday”. This is not direct recollection but is reconstruction. As to Miss Stevens-Hoare’s reliance on the fact that, according to Mr. Coutinho, he had only ever attended LSG’s offices once many years ago and was unaware that he had ever met Mr. Pollacchi, since Mr. Coutinho did not attend to be cross-examined, I am not inclined to place much weight on a submission that this is evidence which was “not challenged or contradicted by any evidence from LSG” (paragraph 33 of Miss Stevens-Hoare’s written closing submissions). The simple fact is that I have reached a firm conclusion that it was only on the day of the meeting itself that the SHA and the Facility Letter were finalised, and that Mr. Pollacchi did not substitute pages within documents which had already been signed by Mr. Jason (and Mr. Coutinho). This makes it impossible to reconcile Mr. Coutinho’s evidence with the evidence which was given by Mr. Garvin and Mr. Pollacchi. In such circumstances, I cannot accept what Mr. Coutinho has to say. As with Mr. Levis, I make no criticism of Mr. Coutinho in this respect. It is merely that his recollection is largely a reconstruction, and as such is not as valuable as would otherwise be the case.

[80]There are further reasons why I prefer the evidence which was given by Mr. Garvin and Mr. Pollacchi. I shall set these out, albeit only briefly. First, whilst neither Mr. Garvin’s nor Mr. Pollacchi’s notes of the meeting refer to Mr. Jason’s, Mr. Levis’s and Mr. Coutinho’s attendance, nevertheless the Saffron board minutes prepared by Mr Pollacchi do record Mr. Jason’s attendance. If Mr. Jason had not attended the meeting, the Saffron board meeting would not have been quorate. Mr. Pollacchi was adamant that he would not have allowed an inquorate meeting to take place, and I am satisfied that he would not have allowed Saffron’s board minutes to state something which was not true. Secondly, although related to the last point, it is common ground that at the meeting on 17 August 2005 Mr. Jason had raised the possibility that he would not be at the meeting on 24 August 2005 as he would shortly be leaving for France. Consideration had, therefore, been given as to whether it was necessary to appoint Mr. Levis as Mr. Jason’s alternate director. Indeed, forms had been sent to Mr. Levis by Mr. Pollacchi for that purpose. I agree with Mr. Smith that the fact that Mr. Levis was not appointed in that role (and did not return the forms) supports the proposition that Mr Jason was to attend on 24 August 2005. Thirdly and significantly, Mr. Swinhoe’s own initial recollection (in paragraph 28 of his witness statement) was that Mr. Jason was present. This was evidence which in cross-examination became evidence to the effect that he could not independently recall whether Mr. Jason attended, but (based on Mr. Jason’s evidence) he could not have attended.

[81]Fourthly, Mr Pollacchi’s recollection of the meeting on 24 August 2005, in particular, has always been very specific, even to the extent that he was able to recall where each of the attendees was sitting and he prepared a seating plan showing this. I acknowledge that Mr. Pollacchi failed initially to recall that Mr. Coutinho also attended, but I do not consider that this changes matters. I do not consider it right to say, as Miss Stevens-Hoare did, that Mr. Pollacchi “claimed to have a phenomenally clear and detailed recollection of events including many things that would have seemed completely inconsequential at the time and it would be extremely surprising for someone to recall” (paragraph 45 of Miss Stevens-Hoare’s written closing submissions). I had the opportunity of observing Mr. Pollacchi give his evidence. I considered him an impressive witness, every bit the “good and meticulous lawyer” which everybody appears to have regarded him as being (see paragraph 51 of Miss Stevens-Hoare’s written closing submissions). I do not consider it accurate to say, as Miss Stevens-Hoare suggested in paragraph 46 of her written closing submissions, that he had allowed his recollection to grow and develop “as he reflected on the matter and his documentation representing a memory enhanced subsequently”. In my assessment, Mr. Pollacchi’s evidence was straightforward and convincing. I am not persuaded, in particular, by the various examples given by Miss Stevens-Hoare showing Mr. Pollacchi allegedly give evidence which initially was less dogmatic than it was to become when cross-examined (paragraph 47 of Miss Stevens-Hoare’s written closing submissions). To take one of these examples, Miss Stevens-Hoare submits that, although in his evidence in chief, Mr. Pollacchi had stated that it was likely that the SHA which he sent out on 17 August 2005 was wire-bound because that was his usual practice, by the end of his evidence his position was that it was definitely wire-bound. I do not myself consider that there was any development in what Mr. Pollacchi said in evidence. I am clear that he was consistent throughout his evidence that the SHA had been sent out in wire-bound form. As he explained in re-examination, had he sent it out in looseleaf form “all the pages would fall apart”, which seems to me to be an entirely credible explanation. In the circumstances, I am not impressed by Miss Stevens-Hoare’s further submission that the same would have applied to the version sent out on 17 August 2005 since Mr. Pollacchi was similarly pressed for time on that occasion. The difficulty which Mr. Pollacchi identified concerning pages falling apart would not be a difficulty in respect of a meeting where he could himself ensure that that did not happen.

[82]To take another of Miss Stevens-Hoare’s points, she submits that Mr. Pollacchi’s evidence in relation to the meeting which took place on 17 August 2005 was that Mr. Swinhoe made it clear that he was refusing to give a personal guarantee, a position which he maintained as the meeting ended, and so it was not known until the 24 August 2005 meeting whether the transaction would go ahead. The point was made that this is not borne out by the contemporaneous documentation. Further, Miss Stevens-Hoare refers to Mr. Pollacchi having gone on to paint a dramatic picture of the 24 August 2005 meeting with his description of a “deathly silence” when Mr. Hooper asked Mr. Swinhoe if he was going to sign the personal guarantee. She makes the point that nowhere in LSG’s pleaded case is it alleged that Mr. Swinhoe refused to give a personal guarantee, merely that he was reluctant to do so and that he made that reluctance known; and that is consistent with the evidence given in Mr. Pollacchi’s and Mr. Garvin’s witness statements. I consider, however, that this is more a matter of emphasis than it is of substance. In particular, I do not agree with Miss Stevens-Hoare when she submits, in paragraph 47.3 of her written closing submissions, that “The ‘continuing reluctance’ rather than a reluctant agreement replacing a refusal is specifically pleaded as being Pollacchi’s recollection of 24 August 2005”. I do not read the paragraph in the Defence on which she relies, paragraph 35.5.4, as distinguishing between the two things. It seems to me that the essence of Mr. Pollacchi’s evidence remained unaltered: Mr. Swinhoe raised his unhappiness at having to sign the personal guarantee, both at the meeting on 17 August and at the meeting on 24 August 2005. Indeed, Mr. Pollacchi had said this in paragraph 74 of his first witness statement:

“I sensed some degree of apprehension at the meeting, which I believe was due to the requirement for Mr Swinhoe to give the Guarantee. Normally there is exhilaration and excitement accompanying a completion meeting, but that was somewhat muted at this meeting. I was at this time aware of Mr Swinhoe’s reluctance to give the Guarantee”

. He had also gone on to describe a silence, albeit not describing it as a “deathly silence”, when it came to Mr. Swinhoe’s personal guarantee being the one document left to be signed (paragraphs 89-91 of his first witness statement). It seems to me that this is consistent with what he said in his oral evidence. In summary, therefore, I do not accept Miss Stevens-Hoare’s criticism of Mr. Pollacchi’s evidence in this respect either.

[83]I am conscious that my focus so far in relation to the meeting on 24 August 2005 has been as to who the attendees were. As I say, my conclusion is that the meeting was attended by Mr. Garvin, Mr. Pollacchi, Mr. Swinhoe, Mr. Hooper, Mr. Jason, Mr. Levis and Mr. Coutinho. This is for all the reasons which I have given. I need now, however, to decide whether at the meeting, at the stage when the personal guarantee came to be signed by Mr. Swinhoe, Mr. Swinhoe declined the suggestion that he obtain independent legal advice before signing, stating:

“I don’t need independent advice; I know what a guarantee is”

. This is what Mr. Garvin and Mr. Pollacchi say happened, but it is denied by Mr. Swinhoe and Mr. Hooper. It does not necessarily follow that, because I have found that the evidence given by Mr. Garvin and Mr. Pollacchi as to who attended the meeting is to be preferred to the evidence given by Mr. Swinhoe and Mr. Hooper on that issue, I am obliged to prefer what Mr. Garvin and Mr. Pollacchi have to say on this other issue. It is possible that Mr. Swinhoe and Mr. Hooper could be wrong about who attended the meeting but right about what happened at the meeting. That said, as Miss Stevens-Hoare herself acknowledges in paragraphs 11 and 12 of her supplemental written closing submissions, a rejection of the evidence given by Mr. Garvin and Mr. Pollacchi on the attendance issue would inevitably undermine the evidence which Mr. Garvin and Mr. Pollacchi gave concerning what happened at the meeting. Obviously the reverse also applies. In the circumstances, although I would be reluctant to reject the evidence which Mr. Garvin and Mr. Pollacchi have given concerning what happened at the meeting, my approach to the matter is that I should nevertheless do so if I were to conclude that it is appropriate that I do so. That said, having considered the evidence, I have reached the clear conclusion that what Mr. Garvin and Mr. Pollacchi say happened did, in fact, happen. I set out my reasons below.

[84]The first part of the formal meeting was spent tidying up the Saffron board minutes and other documentation relating to certain formal business which had taken place at the meeting on 17 August 2005. Thus, Mr. Swinhoe signed the minutes of the Saffron board meeting which had taken place that day, a“Consent to Short Notice”, minutes of an EGM also held on 17 August 2005, certain ordinary and special resolutions passed at that EGM and a share application letter. Although each is dated 17 August 2005, it is clear that these are documents which were signed later since they each bear a footer date of 18 August 2005. It is not, in any event, in dispute that they were signed by Mr. Swinhoe at the 24 August 2005 meeting. There then followed the critical part of the meeting, consisting of a Saffron board meeting (at 12.15pm, according to the relevant minutes), followed by a Lydian board meeting (at 12.20pm, according to the relevant minutes), followed by signature of the five transactional documents, namely the SHA (between Lydian, JPD and Saffron), the Facility Letter (given by JPD to Saffron), the Debenture (between Saffron and JPD), the contract relating to the purchase of the Property (between Lydian and Leicester City Council) and Mr. Swinhoe’s personal guarantee, followed by exchange of the Property contract and conclusion of the deal.

[85]Specifically, Mr. Pollacchi’s and Mr. Garvin’s account of events was that Mr. Pollacchi requested that Mr. Jason sign the Facility Letter, which he did. They then said that the Saffron board meeting took place. This involved Mr. Pollacchi running through the draft minutes with the attendees (not just Mr. Swinhoe and Mr. Jason, who are both named in the minutes as being present but everybody in the room), paraphrasing what was being done. Mr. Garvin and Mr. Pollacchi insist that, in doing so, Mr. Pollacchi made express mention of each of the five documents listed in paragraphs 2.2(a)-(e) of the minutes, picking up each document and showing it to the attendees as he did so. Those five documents are the documents to which I have referred: the SHA, the Facility Letter, the Debenture, the contract relating to the purchase of the Property and Mr. Swinhoe’s personal guarantee.

(d) is in the following terms:

“(d) A Guarantee by Howard Swinhoe in favour of Jaison Property Development Co. Limited in respect of the Company’s obligations under the Facility Letter (‘Guarantee’);”

There is, therefore, express reference to “Howard Swinhoe” giving the guarantee to JPD. There is no mention of Lydian doing so. Nor is there any mention of Mr. Swinhoe giving a guarantee to Lydian. The only reference is to the guarantee from Mr. Swinhoe to JPD. I would refer also to paragraph 4 of the minutes, which states: “4. Approval of Documents 4.1 The terms of each of the above documents were carefully considered and the directors concluded they were satisfied, after due consideration of all the circumstances that it is for the benefit of the Company [Saffron] and in the interests of the Company [Saffron] for the purpose of carrying on its business to enter into each of the above Agreements and complete to the same. 4.2 It was resolved that the terms of each of the Agreement above documents be and are hereby authorised and approved ... “. I am bound to note that Mr. Pollacchi’s description of running through the five documents is entirely consistent with the fact that the Saffron board was being asked to approve the five documents concerned. It is difficult to imagine that this could have happened without the board members (Mr. Swinhoe and Mr. Jason) knowing, at the very least, what those documents were. Even if they did not know every detail of the agreements, they must surely have been aware of what they were. In the case of the Guarantee (as defined), they would, therefore, be bound to have appreciated that it was a guarantee which Mr. Swinhoe (and not Lydian) was giving to JPD. Mr. Jason obviously knew this because he was the person who had insisted on the personal guarantee being provided. I am clear that Mr. Swinhoe must also already have known about it, but even if that was not the case, he must, in any event, have realised what the document was when signing off on these minutes.

[86]Quite aside from the reference in paragraph 2.2(d), I am confident that Mr. Pollacchi told Mr. Swinhoe and Mr. Jason (and the others in attendance) what the guarantee was. I do not accept the suggestion made by Mr. Swinhoe that he was simply given a stack of documents to sign without any clue as to their nature. I regard that as being inherently unlikely, and similarly the suggestion made by Mr. Swinhoe and Mr. Hooper in their witness statements that Mr. Pollacchi came into the boardroom towards the end of the meeting and simply placed the documents on the table for Mr. Swinhoe’s signature. This does not square with the fact that, according to his timesheet, Mr. Pollacchi attended the meeting from 12 noon onwards and it is apparent from the Lydian board meeting minutes that he was still in attendance at 12.20pm, even if the timing shown on the various minutes is not absolutely precise. Since I am clear that it was only after that meeting had taken place that the five documents came to be signed, he must have been there for longer still. Indeed, it is known that exchange of contracts with Leicester City Council did not take place until 12.24pm and there is no suggestion that he was not present when this happened. This demonstrates not only that he did not merely come in at the end but also that he must have done rather more than merely ask Mr. Swinhoe to sign where indicated. In any event, I am satisfied from what Mr. Pollacchi told me, and it is apparent from the various documents themselves, that the meeting had a very deliberate structure. The notion that, in these circumstances, Mr. Swinhoe would be left just to sign is not one which I can accept. Had that been the case, I am clear, having heard Mr. Swinhoe give evidence, that he would have been bound to ask what it was that he was signing. That, on his version of events, he did not do so seems to me to demonstrate how implausible that version of events is.

[87]Whilst I appreciate that it is Miss Stevens-Hoare’s submission that people in the position of Mr. Jason and Mr. Swinhoe leave the detail of the contracts into which they are entering to their lawyers, this does not mean that they have no interest in what it is that they are asked to sign. I cannot accept that Mr. Jason and Mr. Swinhoe did not at least know what the various documents were, including, in the case of Mr. Swinhoe, that the personal guarantee was a personal guarantee. I say this even leaving to one side my previous findings that Mr. Swinhoe had previously been told about the personal guarantee, whether by Mr. Hooper (who had been told by Mr. Swinhoe) or through the 10 August 2005 letter or the draft SHA containing the clause 2.5 indemnity obligation. In this regard, it is telling that, as Mr. Smith rightly points out, neither Mr. Swinhoe nor Mr. Hooper was prepared expressly to deny (except in relation to the personal guarantee) that Mr. Pollacchi had described the nature of the documents referred to in paragraph 2.2 of the Saffron board minutes. As Mr. Hooper put it in paragraph 25 of his witness statement:

“There was no discussion or explanation as to their content and at most a very brief description”

. He, therefore, appeared to acknowledge that there was, or could have been, some discussion or explanation as regards the other contracts, and did not positively dispute that there had been some discussion or explanation. Both he and Mr. Swinhoe nevertheless do apparently dispute that Mr. Pollacchi said that a personal guarantee was to be given by Mr. Swinhoe. As Mr. Smith submits, however, this is a quite impossible position to sustain. It is not credible that Mr. Swinhoe and Mr. Hooper would remember that Mr. Pollacchi failed to mention the personal guarantee, yet would be unable positively to remember whether the other agreements listed in paragraph 2.2 were mentioned by Mr. Pollacchi. I also find it difficult to see how, if the other agreements were mentioned, Mr. Swinhoe and Mr. Hooper would not have noticed that Mr. Pollacchi had missed out one of the agreements from the paragraph 2.2 list, the personal guarantee. They would be bound to have noticed and to have queried the matter with Mr. Pollacchi, assuming, that is, that they did not already know that the personal guarantee was required. There is also the point that, unless Mr. Pollacchi was seeking to conceal the existence of the personal guarantee (not an allegation made by Miss Stevens-Hoare), there is no reason at all why Mr. Pollacchi would have referred only to four of the five documents and missed out the personal guarantee.

[88]In the circumstances, I am quite satisfied that Mr. Pollacchi did refer to the personal guarantee and that Mr. Swinhoe, therefore, knew about it before he signed it. On this basis, in line with Miss Stevens-Hoare’s acceptance that, if the fact that he was signing a personal guarantee was made known to Mr. Swinhoe, then no question of professional negligence arises, it follows that Mr. Swinhoe’s claim must fail. I do not consider that Mr. Pollacchi’s mention of the personal guarantee was all that was said about it during the meeting, however, since I accept Mr. Garvin’s and Mr. Pollacchi’s further evidence about what subsequently happened. I accept that, Mr. Swinhoe having signed the Saffron board meeting minutes in his capacity as chairman, there was then the Lydian board meeting to which I have referred. This was attended by Mr. Swinhoe alone, as the sole director of Lydian, and its purpose was to approve the Property contract. Mr Swinhoe did so, signing the minutes accordingly.

[89]That left the five documents referred to in paragraph 2.2 of the Saffron board minutes still to be signed. Mr. Pollacchi said that these were laid out on the boardroom table. He said that he had cleared the table of water and coffee cups. As I have explained before, he said (and I think that it was anyway common ground) that the SHA was loose within a plastic wallet rather than being wire-bound. I accept all that evidence. I also accept that the various documents were signed in the following

[90]I turn now to consider the evidence relating, specifically, to Mr. Swinhoe’s signing of the personal guarantee. It was Mr. Pollacchi’s and Mr. Garvin’s evidence that, after an awkward and quite lengthy pause, Mr. Hooper asked Mr. Swinhoe whether he was going to sign, and that Mr. Swinhoe then picked up the document, looked at it for a few moments and went to sign it despite being visibly unhappy about doing so. Their evidence was that at that juncture Mr. Garvin suggested that Mr. Pollacchi should witness Mr. Swinhoe’s signature. They said that Mr. Pollacchi then warned Mr. Swinhoe that he should obtain independent legal advice before signing the document and said that Mr. Swinhoe would be making himself personally liable if Saffron failed to pay, only for Mr. Swinhoe to respond by saying something to the effect that “I don’t need independent advice; I know what a guarantee is”. Mr. Garvin’s and Mr. Pollacchi’s evidence was that, Mr. Garvin and Mr. Hooper having both re-confirmed that they would each be giving Mr. Swinhoe a sub-guarantee and Mr. Swinhoe having read the guarantee, Mr. Swinhoe then went ahead and signed it, with Mr. Pollacchi witnessing his signature.

[91]All this was disputed by Mr. Swinhoe and Mr. Hooper. Their position was clear: the personal guarantee was not specifically mentioned, and what Mr. Garvin and Mr. Pollacchi say happened when Mr. Swinhoe came to sign it simply did not happen. I cannot, however, accept that evidence. I have previously explained that I consider that Mr. Swinhoe was made aware of the personal guarantee, if not in advance of the 24 August 2005 meeting, then at the meeting itself. In such circumstances, I can readily believe that Mr. Swinhoe hesitated before signing the personal guarantee. This would be consistent with Mr. Swinhoe having queried the need for the personal guarantee seven days earlier, at the meeting on 17 August 2005. Mr. Swinhoe having hesitated, I can equally readily believe that Mr. Pollacchi felt obliged to tell Mr. Swinhoe that it was open to him to seek independent legal advice. Mr. Pollacchi was, after all, and on any view, acting on behalf of Saffron. Whether he was also acting on Mr. Swinhoe’s behalf is an issue which I shall come on to address, but even if he was, I can well see why Mr. Pollacchi would suggest that independent legal advice should be sought. He was being asked to witness Mr. Swinhoe’s signature and because of this was concerned that Mr. Swinhoe should know what it was that he was signing. In the circumstances, it also seems to me more likely than not that, having been advised that he was free to seek independent legal advice, Mr. Swinhoe’s response was that he did not need it because he knew what a personal guarantee was. As I have previously indicated, I have no doubt that Mr. Swinhoe knew what a personal guarantee was. Indeed, it is for this reason, among others, why I have felt able to conclude that Mr. Swinhoe had previously taken exception at having to provide a personal guarantee, when he raised the issue at the meeting which took place on 17 August 2005. Moreover, as Mr. Smith points out, it is worth noting that Mr. Pollacchi’s evidence from the outset has been that, at the meeting, Mr. Swinhoe said that he knew what the effect of a personal guarantee is, even before Mr. Swinhoe explained in his witness statement served this year that he did, indeed, know what the effect of a personal guarantee is. This tends to suggest that what Mr. Pollacchi says Mr. Swinhoe told him is right. For all these reasons, I accept the evidence given by Mr. Garvin and Mr. Pollacchi, and again am bound, therefore, to conclude that Mr. Swinhoe knew that he was signing a personal guarantee.

[92]In any event, I cannot overlook the fact that the personal guarantee is no more than a single page document and is very easy to follow. It begins:

“This Guarantee is made ...”

. It then identifies the parties as Mr. Swinhoe and JPD (defined as “the Lender”); there is no mention of Lydian. It then continues:

“Mr Swinhoe is fully aware of the terms of a loan facility (‘the Facility Letter’) (a copy of which is attached) to be entered into today between Lydian (Saffron) Limited ... (‘the Borrower’) and the Lender has agreed to lend to the Borrower One Million One Hundred and Ninety-Six Thousand Pounds (£1,196,000) repayable in accordance with the terms set out in the Facility Letter.”

Then the following paragraphs appear:

“Now this Deed Witnesseth as follows: 1. Mr Swinhoe hereby irrevocably and unconditionally guarantees the due punctual and full performance of the Borrower to the Lender of all its obligations under the Facility Letter as if Mr Swinhoe were the principal obligor in place of the Borrower provided always that Mr Swinhoe’s obligations shall be limited in amount to one half of the obligations of the Borrower to the Lender in excess of £75,000. 2. It is acknowledged by Mr Swinhoe that he has received full and adequate consideration from the Borrower for entering into this Guarantee with the Lender, that he understands the legal implications of it and that he has taken or had the opportunity of taking independent legal advice on his liability under it. 3. It is further acknowledged and accepted by Mr Swinhoe that his obligation to make payment under this Guarantee is unconditional and irrevocable and that no action claim or dispute between the Lender and the Borrower or any other party will affect in any way Mr Swinhoe obligations under this Guarantee. 4. The Lender may without notice to or consent from Mr Swinhoe and without reducing or extinguishing Mr Swinhoe’s liability renew, vary, or determine any accommodation or credit given to the Borrower or grant time or indulgence to or compound with the Borrower or any other person or guarantor and may do or omit to do anything which, but for this provision, might operate to exonerate or discharge Mr Swinhoe from any of his obligations and this Guarantee.”

There is little complexity about these provisions. Mr. Swinhoe’s name appears nine times. There is no mention of Lydian at all. The notion that Mr. Swinhoe would not have appreciated that this was a personal guarantee, had he looked at the document at all, is very hard for me to accept. As I believe that Mr. Swinhoe must have looked at the document, it follows that I conclude that he would have appreciated what it was that he was signing. I cannot accept that Mr. Swinhoe would simply have signed the document without looking at it even briefly and I am satisfied that even a brief look would have been sufficient to alert him to what the document was. Since I have concluded that Mr. Swinhoe had anyway been told that he was to sign a personal guarantee, both in advance of the meeting and at the meeting itself, it seems to me that the position is even clearer still. In short, I have concluded that Mr. Swinhoe must have been aware of the nature of the document which he was signing. Again, this must mean that Mr. Swinhoe’s case against LSG fails. Then the following paragraphs appear:

[93]After all five documents had been signed, I am satisfied that Mr. Jason then authorised the release of the deposit monies, which LSG had been holding after Mr. Garvin had, on 18 August 2005, opened a new file in JIL’s name for this specific purpose. As Mr. Garvin explained in a letter to Mr. Jason on 19 August 2005 (copied to Mr. Swinhoe and Mr. Hooper):

“I would confirm that the firm will hold on an interest earning deposit account the sum until such time as the firm is specifically authorised by JPD/JIL to release the monies to [Lydian] to pay the deposit and will return the monies as directed by JIL/JPD if required”

. Since I have reached the conclusion that Mr. Jason was at the meeting on 24 August 2005, it follows that I find that Mr. Jason authorised the deposit’s release in person and not, as Miss Stevens-Hoare submits, over the telephone from France. There is anyway no entry in Mr. Jason’s mobile telephone records showing a telephone call at this time. There is the call to which I have previously referred at 10.43am, made from Mr. Garvin’s mobile telephone to Mr. Jason’s mobile telephone and lasting 2 minutes and 45 seconds, but that was almost two hours before Mr. Garvin’s telephone conversation with Leicester City Council regarding exchange started at 12.24pm. In the circumstances, I agree with Mr. Smith that the 10.43am call would be an odd time for Mr Garvin to seek Mr. Jason’s authorisation as regards the deposit. I am, therefore, satisfied that what Mr. Garvin and Mr. Pollacchi told me was the position is right. I also see no reason not to accept their evidence that, immediately after the signing of the documentation and before exchange of contracts with Leicester City Council took place, Mr. Jason, Mr. Levis and Mr. Coutinho left LSG’s offices. Why they left at this stage is a matter in relation to which there is no evidence. Their position is, of course, that they were not at the meeting in the first place, and so they could hardly assist on the issue. Similarly, Mr. Swinhoe and Mr. Hooper disputed that Mr. Jason, Mr. Levis and Mr. Coutinho attended the meeting. As for Mr. Garvin and Mr. Pollacchi, they did not say why Mr. Jason and the others left. It may be thought a little strange that they should do so, especially since, in the event, the exchange was quickly accomplished. On the other hand, I can well imagine that Mr. Jason would have regarded the exchange as something of a formality which he and his colleagues did not need to stay to see carried out. He might also have thought that the process would take longer than it did and preferred, therefore, to leave it to Mr. Garvin to sort out. He might also have been anxious to be on his way in order to ensure that he could be back in the South of France in time for dinner with his wife at ‘Les Pecheurs’. These are all possibilities, but since they were not the subject of evidence I prefer to leave them out of account and instead simply to accept the evidence which Mr. Garvin and Mr. Pollacchi gave concerning Mr. Jason’s and his colleagues’ departure from the meeting. I consider it unlikely that Mr. Garvin and Mr. Pollacchi would be wrong in what they told me in their evidence about this, bearing in mind that I have accepted their evidence on other matters. I have accepted their evidence, in particular, that Mr. Jason, Mr. Levis and Mr. Coutinho were at the meeting. The options are, therefore, that they remained at the meeting during the process of exchange, or that they left before this. Since Mr. Garvin sent Mr. Jason a text message at 12.30pm, informing Mr. Jason that exchange had taken place, it necessarily follows that the latter must have been the case, consistent with what Mr. Garvin and Mr. Pollacchi said in their evidence. I appreciate that Miss Stevens-Hoare has her point that this text message appears in Mr. Jason’s mobile telephone records in the category “Text messaging received while abroad”. However, I have previously explained that these records contain a number of inconsistencies which, in my view, make it difficult to place too much weight on them as regards the whereabouts of Mr. Jason at any given time.

[94]After exchange, Mr. Garvin and Mr. Hooper then each signed their own personal guarantees. Mr. Garvin explained that this happened in his own office rather than in LSG’s boardroom where the completion meeting had taken place. I have previously referred to these personal guarantees, highlighting the fact that they were very short documents which were addressed to Mr. Swinhoe and which were expressed in simple, readily understandable language. In this respect, I do not repeat everything which I have said before. Suffice to say, I cannot accept that either Mr. Hooper or Mr. Swinhoe did not appreciate what it was that the personal guarantees were designed to achieve. I repeat also that if Mr. Hooper had been in any doubt over what he was signing, or if Mr. Swinhoe had not been clear either, it is difficult to see why they did not just ask Mr. Garvin for clarification. Mr. Garvin, after all, was not only witnessing Mr. Hooper’s signature but was himself providing his own personal guarantee to Mr. Swinhoe. The reality is that both Mr. Hooper and Mr. Swinhoe knew what the personal guarantees were and why they were being given. Although not lawyers, they are nevertheless intelligent businessmen who were well able to understand what the documents were, even leaving to one side the fact that, as I have found, they had previously been told about Mr. Jason’s requirement for a personal guarantee from Mr. Swinhoe and had themselves previously referred to “sub-agreements” in their annotations on the 10 August 2005 letter and against clause 2.5 in the draft SHA produced on 12 August 2005. Moreover, consistent with my earlier findings, the signing of Mr. Hooper’s and Mr. Garvin’s personal guarantees took place very shortly after Mr. Garvin and Mr. Hooper had re-confirmed that they would each be giving Mr. Swinhoe a sub-guarantee. It was, indeed, only after being reassured about this that Mr. Swinhoe had gone ahead and signed his own personal guarantee.

September 2008

[95]Finally, Miss Stevens-Hoare relies upon what happened three years later when, Leicester City Council having refused to give planning permission enabling the project to go ahead as planned and with substantial losses suffered as a result, Mr. Jason convened a meeting, in September 2008, at his offices and at that meeting made a formal demand under the personal guarantee which Mr. Swinhoe had given to JPD. Miss Stevens-Hoare relies, in particular, upon the fact that Mr. Garvin agreed in his evidence that Mr. Swinhoe appeared to be genuinely shocked at the mention of a personal guarantee having been given by him. In addition, Miss Stevens-Hoare alleges that, either at that meeting or at a subsequent meeting at Mr. Garvin’s flat, Mr. Garvin said that Mr. Pollacchi had made a mistake in drafting the guarantee as a personal guarantee from Mr. Swinhoe. Mr. Garvin’s evidence, however, was that he did no such thing, and that since he felt that Mr. Swinhoe was being accusatory he suggested to Mr. Swinhoe that, if he had any issue in relation to the personal guarantee, he should take the matter up with Mr. Pollacchi, the person who witnessed his signature on the document.

[96]Miss Stevens-Hoare submits that Mr. Swinhoe’s shocked reaction serves to confirm that he had not previously appreciated that he had signed a personal guarantee. I do not agree. It seems to me that Mr. Swinhoe might simply have forgotten about the personal guarantee, or he might equally possibly merely have been shocked that Mr. Jason would decide to invoke his entitlement under the personal guarantee. I consider that these possibilities are at least as likely as the possibility that Mr. Swinhoe was learning for the first time that he had given JPD a personal guarantee. I certainly do not regard Mr. Swinhoe’s shock as being sufficient to cause me to change my earlier findings that Mr. Swinhoe already knew about the personal guarantee. Nor do I regard Miss Stevens-Hoare’s point about Mr. Garvin admitting to a mistake having been made by Mr. Pollacchi very compelling. The suggestion that Mr. Garvin would own up to a mistake in the meeting with Mr. Jason seems to me to be very unlikely. In any event, it seems to me somewhat unlikely that somebody in Mr. Garvin’s position would admit to a mistake in the manner suggested even in a private meeting. Miss Stevens-Hoare submits that Mr. Garvin must have realised that Mr. Swinhoe had not understood the liability he had taken on and, as she put it, caught on the hop, responded by seeking to blame someone else. However, given that that someone else was Mr. Pollacchi, Mr. Garvin’s partner, I find that highly unlikely. Mr. Garvin, as a solicitor, would inevitably be concerned not to say anything damaging in the event that Mr. Swinhoe were to bring a claim against his firm. I cannot believe that, in such circumstances, he would have sought to blame Mr. Pollacchi, even if he thought that Mr. Pollacchi was responsible for an error. Further, the fact that Mr. Garvin must surely have known that he had himself given Mr. Swinhoe (not Lydian) a personal guarantee makes it all the more unlikely that he made the alleged admission. Lastly, Miss Stevens-Hoare submits that, in view of how the meeting on 24 August 2005 unfolded, with Mr. Swinhoe being reluctant to sign the personal guarantee and only doing so after being invited to seek independent legal advice, it is odd that, on Mr. Garvin’s account of the September 2008 meeting, nobody sought to remind Mr. Swinhoe of what had happened at the 24 August 2005 meeting. Again, however, I do not agree. It seems to me that there was no reason for Mr. Jason, in particular, to remind Mr. Swinhoe of what had happened, in circumstances where it was quite sufficient for his purposes that he had the signed personal guarantee document. Mr. Swinhoe could hardly deny having signed the document. For all these reasons, therefore, I am not persuaded that the events of September 2008 should cause me to change my previous conclusion that Mr. Swinhoe already knew about the personal guarantee, having known what the document was when he signed it three years earlier.

Retainer/Duty of care

[97]In view of the findings which I have made concerning the state of Mr. Swinhoe’s knowledge when he signed the personal guarantee, then, as I have explained and as Miss Stevens-Hoare accepts, Mr. Swinhoe’s claim must fail. This is because Mr. Swinhoe is not, in such circumstances, able to say that LSG failed (in breach of duty, whether in contract or in tort) to tell him about the personal guarantee. As I say, Mr. Swinhoe accepts that he knew what a personal guarantee was and how it would impose personal liability upon him and he did not need a solicitor to tell him these things. In the circumstances, it is strictly unnecessary for me to go on and consider Miss Stevens-Hoare’s submissions that Mr. Swinhoe and Lydian both retained LSG alternatively that LSG owed Mr. Swinhoe a duty of care in tort. Even if Miss Stevens-Hoare is right in these submissions, for the reason just given, it does not mean that Mr. Swinhoe’s claim succeeds. Nevertheless, since I have heard submissions on these matters, I consider it appropriate that I should relatively briefly deal with them.

Retainer

[98]Miss Stevens-Hoare puts her case based on the existence of a retainer in fairly broad terms. Mr. Smith uses a different description; he says that the particulars relied upon are “sparse”. Miss Stevens-Hoare points to the fact that, although Mr. Garvin opened a conveyancing file in February 2005 with Lydian as the identified client, it was not until much later that, on 4 August 2005, Mr. Garvin provided Lydian with brief details concerning fees. She complains that, in the circumstances, Mr. Garvin did not observe the professional conduct obligations and formalities expected and required of a solicitor, but worked in what Miss Stevens-Hoare described as “a far more fluid way”. She makes the additional point that the potential for the structure of the deal to involve different entities holding and representing Mr. Swinhoe’s interest was always understood, and submits, therefore, that the retainer which came into being with the opening of the conveyancing file in February 2005 really entailed a retainer between LSG and such legal personality as Mr. Swinhoe adopted from time to time during the progress of the transaction.

[99]I cannot accept these submissions. Whatever Mr. Garvin’s shortcomings in terms of letter writing, it is clear to me that the retainer which came into being was a retainer where Lydian was the only client. Lydian was named as such and it was Lydian which was sent the letter on 4 August 2005 to which Miss Stevens-Hoare herself refers. Moreover, it is apparent that other files were opened by LSG as the transaction progressed and on each occasion the client was specifically identified. Thus, after the meeting on 19 May 2005 to which I have referred and ensuing correspondence between Mr. Garvin and Mr. Selwood as to who would draft a profit and loss sharing agreement (what was to become the SHA), on 21 July 2005, Mr. Garvin opened a second new file described as “Leicester Project – Profit Sharing Arrangement” and naming the client as Lydian with Mr. Hooper as the client contact. This was followed, on 9 August 2005, by Mr. Pollacchi opening another new file described as “Shareholder Agreement” and again in the name of Lydian (although it is clear that the real client was always going to be ‘Newco’ or, as it became, Saffron). Lastly, as I have previously mentioned, on 18 August 2005 Mr. Garvin opened a new file, this time in JIL’s name, for the explicit purpose of holding (what came to be JPD’s) deposit monies. Although in the case of the latter two accounts it is right to acknowledge that ‘Newco’/Saffron and JPD were not named as such, as I have explained, the identity of the client was nevertheless very clear. The position is not equivalent to Lydian being named as the client yet Mr. Swinhoe being the actual client. In short, had LSG been instructed by Mr. Swinhoe in his personal capacity, as Miss Stevens-Hoare sought effectively to suggest, I am clear that LSG would have made that clear either when opening the original file in February 2005 or at whatever later stage Mr. Swinhoe retained LSG’s services.

[100]I would add that I am not persuaded that it would be appropriate to view the matter on the basis that Mr. Swinhoe was so intertwined with Lydian that he could not be separated from the company, so as to mean that LSG was acting under a dual retainer. This is not a case like, for example, RP Howard v. Woodman Matthews & Co.

[1983] BCLC 117

, where Staughton J (as he then was) held (at page 121a-b) that a contractual duty of care was owed in part because the solicitors concerned had acted in the past both for the individual and for his company. Mr. Swinhoe had not previously been a client of Mr. Garvin in his personal capacity, although it appears that some appreciable time before other people at LSG had acted for Mr. Swinhoe in relation to the preparation of a will and on another occasion in relation to a remortgage. It seems to me that, when LSG was instructed in relation to the present matter, Mr. Swinhoe was only acting in his capacity as Lydian’s representative, and that it would be stretching matters somewhat were I to accede to a submission that he was also acting on his own (personal) behalf on the basis that Lydian was known by LSG to be Mr. Swinhoe’s (and only Mr. Swinhoe’s) company. As I see it, the position is similar to the position in Dean v. Allin & Watts

[2001] EWCA Civ 758

, [2001] Lloyd’s Rep PN 605, in which Lightman J (sitting in the Court of Appeal) was not prepared to hold that there was a dual retainer in circumstances where the individual had no personal liability for the solicitor’s fees (as was also the case with Mr. Swinhoe) and where no contractual relationship between the individual and the solicitor had previously existed (see paragraphs [22]-[24]). I do not regard the fact that other solicitors at LSG had previously acted for Mr. Swinhoe in his personal capacity as putting this case into the RP Howard v. Woodman Matthews & Co. category of case.

[101]Similarly, in Johnson v. Gore Wood & Co. [1999] Lloyd’s Rep PN 91, it was the fact that it was alleged that the solicitor had acted for the individual in relation to other businesses and was familiar with his personal financial position that led the Court of Appeal to decline to strike out the allegation that there was a dual retainer. As Ward LJ explained at pages 98-99, although in a given case the point may be arguable (he cited in this context RP Howard v Woodman Mathews & Co.), it does not follow that, when all the circumstances are considered at trial, it will be found that a contractual duty is owed. For the reasons which I have given, I am not satisfied (in my capacity as the trial judge in this matter) that, in all the circumstances, a conclusion that a contractual duty was owed by LSG to Mr. Swinhoe would be appropriate.

[102]For completeness in this context, I should note that Miss Stevens-Hoare did not press a point which had been pleaded, namely that Mr. Garvin’s statement in his 10 August 2005 letter that “I will be advising Lydian/Howard/Roger” (allied with the fact that LSG then drafted the personal guarantee) should be taken as indicating that LSG had a retainer from Mr. Swinhoe as well as from Lydian. In context, I am clear that this was no more than a reference to the fact that Mr. Garvin obtained his instructions from Mr. Swinhoe (and, indeed, from Mr. Hooper) on behalf of Lydian. I do not consider that it is sufficient to cause me to decide that a contractual duty was owed.

Duty of care

[103]Miss Stevens-Hoare’s alternative case is that LSG owed Mr. Swinhoe (in his personal capacity) a duty of care in tort to tell him that Mr. Jason required that he provide a personal guarantee. She submits that the duty arises in circumstances where (in summary): LSG (specifically Mr. Garvin) received Mr. Jason’s request that Mr. Swinhoe should provide a personal guarantee and accepted responsibility for passing on that request to Mr. Swinhoe; LSG (Mr. Pollacchi) drafted the clause 2.5 indemnity in the SHA which was distributed on 12 August 2005 both to Mr. Jason and to Mr. Swinhoe; LSG (Mr. Garvin and/or Mr. Pollacchi) agreed with Mr. Jason and his advisers that clause 2.5 would be replaced by a stand-alone personal guarantee; LSG (Mr. Garvin and/or Mr. Pollacchi) explicitly or implicitly communicated to Mr. Jason and his advisers that Mr. Swinhoe had agreed to take on the personal liability requested; LSG (Mr. Pollacchi) drafted the stand-alone personal guarantee; and LSG (Mr. Garvin and/or Mr. Pollacchi) provided Mr. Swinhoe with the stand-alone personal guarantee at the meeting on 24 August 2005, inviting him to sign it.

[104]Mr. Smith disputes that any duty of care in tort was owed by LSG to Mr. Swinhoe. He has essentially five objections to a duty being imposed. First, he submits that, in circumstances where Mr. Swinhoe had chosen to take advantage of the benefits of incorporation, through Lydian, it would require a particular reason if a tortious duty of care were to be imposed which would mean, in effect, that there was a piercing of the corporate veil. Secondly, he submits that it would be inappropriate to impose a duty which does not arise from a positive act carried out by LSG for his benefit. He contrasts the present situation with the case where, say, LSG had drafted the personal guarantee (a positive act) but got its terms wrong. He submits that Mr. Swinhoe’s complaint is that LSG owed him a proactive duty to advise and was in breach of that duty by failing to advise. Thirdly, he submits that Mr. Swinhoe cannot have been relying upon LSG if his case is that he was wholly unaware of the personal guarantee. There was no respect in which, to his knowledge, he needed professional assistance from lawyers as to his own personal position. Fourthly, he submits that there was nothing to put LSG reasonably on notice that Mr. Swinhoe was looking to the firm to protect his personal position. He makes the point in this context that Mr. Swinhoe is an intelligent and sophisticated businessman. Lastly, Mr. Smith submits that if LSG were held to have owed a duty to Mr. Swinhoe personally in respect of the personal guarantee, it would place the firm in a position of conflict since Lydian and Saffron (LSG’s clients) stood to profit from the project and would welcome support from a director and shareholder in the form of a guarantee. Mr. Swinhoe’s personal interests, he submits, were the opposite.

[105]Mr. Smith submits that these various features point strongly away from the imposition of a duty of care whichever legal test is adopted. He has in mind the three tests to which Lord Bingham referred in Commissioners of Customs & Excise v. Barclays Bank plc

[2006] UKHL 28

[2007] 1 AC 181

at paragraph [4]:

“... the authorities disclose three tests which have been used in deciding whether a defendant sued as causing pure economic loss to a claimant owed him a duty of care in tort. The first is whether the defendant assumed responsibility for what he said and did vis-à-vis the claimant, or is to be treated by the law as having done so. The second is commonly known as the threefold test: whether loss to the claimant was a reasonably foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimant ...”

. After reviewing a number of authorities concerned with the application of these various tests, Lord Bingham went on to say this at paragraph [8]:

“...it seems to me that the outcomes (or majority outcomes) of the leading cases cited above are in every or almost every instance sensible and just, irrespective of the test applied to achieve that outcome. This is not to disparage the value of and need for a test of liability in tortious negligence, which any law of tort must propound if it is not to become a morass of single instances. But it does in my opinion concentrate attention on the detailed circumstances of the particular case and the particular relationship between the parties in the context of their legal and factual situation as a whole.”

The same point was made by Lord Hoffmann at paragraph [35]:

“There is a tendency, which has been remarked upon by many judges, for phrases like "proximate", "fair, just and reasonable" and "assumption of responsibility" to be used as slogans rather than practical guides to whether a duty should exist or not. These phrases are often illuminating but discrimination is needed to identify the factual situations in which they provide useful guidance.”

The same point was made by Lord Hoffmann at paragraph [35]:

[106]I do not agree with Mr. Smith about this, for reasons which I shall now explain. First, although I agree with Mr. Smith that the Court should be wary about imposing a duty of care which would have the effect that there was a piercing of the corporate veil, it does not follow that in an appropriate case a duty of care in tort should not be held to exist. The question is whether this is such a case. As I see it, that will depend on whether I agree with Mr. Smith’s further and more specific submissions.

[107]As to the first of those more specific submissions, I am not persuaded that it is right to characterise Mr. Swinhoe’s case as entailing a duty which does not arise from any positive act carried out by LSG for Mr. Swinhoe’s benefit. I acknowledge the following guidance which was given by Lord Hoffmann in Commissioners of Customs & Excise v. Barclays Bank plc at paragraphs [38-39]:

“38. ... the notion of assumption of responsibility serves a different, weaker, but nevertheless useful purpose in drawing attention to the fact that a duty of care is ordinarily generated by something which the defendant has decided to do: giving a reference, supplying a report, managing a syndicate, making ginger beer. ... In the present case, however, the duty is not alleged to arise from anything which the bank was doing. It is true that the bank was carrying on the business of banking, handling money on behalf of its customers. But that is not alleged to have been either necessary or sufficient to generate the duty in this case. ... 39. There is, in my opinion, a compelling analogy with the general principle that, for the reasons which I discussed in Stovin v Wise [1996] AC 923, 943-944, the law of negligence does not impose liability for mere omissions. It is true that the complaint is that the bank did something: it paid away the money.”

I agree with Mr. Smith that the availability of the three different legal tests should not obscure the application of “the general principle that ... the law of negligence does not impose liability for mere omissions”. It is just that I do not see how it is correct to say that LSG took no positive act. I agree with Miss Stevens-Hoare that it is not right to portray Mr. Swinhoe’s case as entailing a duty which arises from inaction. LSG was so actively (and positively) engaged in relation to the transaction during August 2005 that it seems to me somewhat artificial for Mr. Smith to suggest that, in context, the alleged duty arises out of no positive action. Even allowing for the fact that LSG’s clients were Lydian and Saffron (not Mr. Swinhoe), I still consider that Mr. Smith’s submission is lacking in realism. I agree with Miss Stevens-Hoare that it needs to be borne in mind that, when told by Mr. Jason that he required a personal guarantee to be provided by Mr. Swinhoe, Mr. Garvin took on responsibility for passing that demand on to Mr. Swinhoe as part of his overall efforts to move the transaction forward. In this context, I have in mind the following passages in the judgment of Lord Browne-Wilkinson in White v Jones

[1995] 2 AC 207

at pages 273H, 274D-E and 274G-H:

“Just as in the case of fiduciary duties, the assumption of responsibility referred to is the defendants, assumption of responsibility for the task not the assumption of legal liability. Even in cases of ad hoc relationships, it is the undertaking to answer the question posed which creates the relationship. If the responsibility for the task is assumed by the defendant he thereby creates a special relationship between himself and the plaintiff in relation to which the law (not the defendant) attaches a duty to carry out carefully the task so assumed. ... ... the fact that the defendant assumed to act in the plaintiffs' affairs pursuant to a contract with a third party is not necessarily incompatible with the finding that, by so acting, the defendant also entered into a special relationship with the plaintiff with whom he had no contract. ... Although the categories of cases in which such special relationship can be held to exist are not closed, as yet only two categories have been identified, viz. ... (2) where the defendant has voluntarily answered a question or tenders skilled advice or services in circumstances where he knows or ought to know that an identified plaintiff will rely on his answers or advice. In both these categories the special relationship is created by the defendant voluntarily assuming to act in the matter by involving himself in the plaintiff's affairs or by choosing to speak. If he does so assume to act or speak he is said to have assumed responsibility for carrying through the matter he has entered upon.”

I also have in mind the following passage in the speech of Lord Goff in the same case, at page 268H, in which he explained that, at least in general terms, there can be liability for negligent omissions where there has been a relevant assumption of responsibility:

“Since the Hedley Byrne principle is founded upon anassumption of responsibility, the solicitor may be liable for negligent omissions as well as negligent acts of commission: ...”

. Applying an assumption of responsibility approach, it seems to me that this is an appropriate case in which to hold that a duty of care arises in relation to the failure (if there was a failure) to tell Mr. Swinhoe about the personal guarantee.

[108]I appreciate that in Brownie Wills v Ian Meredith Shrimpton [1999] PNLR 552, at page 562, Tipping J (sitting in the New Zealand Court of Appeal) cited this last passage before going on to decide that the solicitors had not assumed responsibility to the guarantor (a non-client) in that case to advise him as to the terms of the personal guarantee which the guarantor knew he was signing. Specifically, the guarantor’s complaint was that the solicitors did not explain to him that the personal guarantee was joint and several, not limited as he believed to one-sixth of a maximum of NZ$85,000 and that it would be effective despite one of his co-directors not also signing a personal guarantee. That this was the position is demonstrated from page 554B-D (where the facts are set out), page 556B-D (where reference is made to the trial judge’s decision that the solicitors were liable because they failed “to explain the contents of the document and the nature of the transaction”), pages 557F-558A (where it is made clear that the issue was as to whether the solicitors had assumed responsibility to advise) and page 559A-B (where reference is made to the solicitors “taking [the guarantor’s] signature without offering an explanation”). It seems to me to be a key distinction when compared with the present case. As I see it, LSG (specifically Mr. Garvin) must be taken to have assumed responsibility to tell Mr. Swinhoe about the personal guarantee. After all, Mr. Garvin insists that he did precisely that, and I have found that by one means or another he did so. The matter might be different if the case which Mr. Swinhoe was putting forward were that LSG failed to advise him concerning the terms of the personal guarantee. Then the position might be said to be similar to Brownie Wills v Ian Meredith Shrimpton, and Mr. Smith could legitimately say that Mr. Garvin never assumed responsibility to advise Mr. Swinhoe as opposed to tell him about Mr. Jason’s demand for a personal guarantee. That is not Mr. Swinhoe’s case, however, at least not as Miss Stevens-Hoare ultimately put it. In short, I consider that Miss Stevens-Hoare is right that, having regard tothe detailed circumstances of this particular case and the particular relationship between Mr. Swinhoe and LSG in the context of the “legal and factual situation as a whole”, it would be wrong to decline to hold that a duty of care in tort was owed on the basis which Mr. Smith suggests.

[109]As to Mr. Smith’s third point, that Mr. Swinhoe cannot have been relying upon LSG if his case is that he was wholly unaware of the personal guarantee, again it seems to me that this is too artificial an analysis. The fact that, as far as he was concerned, he did not need professional assistance from LSG as to his own personal position cannot, as I see it, in the circumstances of this case, be a reason why there should be no duty imposed. The only reason why Mr. Swinhoe was unaware (if he was unaware) that he did not need legal assistance in his personal capacity was because (on his case) he had not been told about Mr. Jason’s demand for a personal guarantee. As before, the position might be different if the case advanced were that LSG failed to advise Mr. Swinhoe as to the terms of the personal guarantee, in circumstances where Mr. Swinhoe knew that he was being required to provide a personal guarantee. The position would then (again) be similar to the position in Brownie Wills v Ian Meredith Shrimpton, in which it was held that the guarantor did not rely on the solicitors “as adviser” (see page 557G). Mr. Smith submits that the position is nevertheless the same in the present case, even though Mr. Swinhoe does not allege a failure to advise. I do not agree. In particular, to the extent that any reliance is placed on the fact that in Brownie Wills v Ian Meredith Shrimpton at pages 563F-564A reference is made to the guarantor having no knowledge of a certificate provided by the solicitors to the bank confirming that they had advised the guarantor as to the nature and effect of the guarantee, that does not assist Mr. Smith’s argument because, I repeat, in that case (in contrast to Mr. Swinhoe at least on his case) the guarantor nevertheless knew that what he was signing was a personal guarantee. He could, therefore, have asked the solicitors for advice had he seen fit to do so. As he did not, he could not be regarded as having relied on the solicitors for such advice. Mr. Swinhoe’s position is materially different.

[110]I agree with Miss Stevens-Hoare that, in the circumstances of the present case, it would be odd if a duty of care in tort were held not to exist because of a lack of reliance on Mr. Swinhoe’s part when the only reason why there was no reliance was that Mr. Garvin did not communicate Mr. Jason’s demand for a personal guarantee despite his telling Mr. Jason that that was what he would do. In my view, as this is not an advice case, reliance is not needed in order for there to have been a duty of care in tort owed by LSG to Mr. Swinhoe. I consider it sufficient that Mr. Garvin assumed responsibility for passing Mr. Jason’s demand for a personal guarantee on to Mr. Swinhoe. There is no need for there to have been reliance. In this regard, I would refer, in particular, to the following passage in the speech of Lord Browne-Wilkinson in White v Jones at page 272D-F, when addressing the Hedley Bryne case (emphasis supplied):

“Second, since this House was concerned with cases of negligent misstatement or advice, it was inevitable that any test laid down required boththat the plaintiff should rely on the statement or advice and that the defendantcould reasonably foresee that he would do so. In the case of claims based onnegligent statements (as opposed to negligent actions) the plaintiff will haveno cause of action at all unless he can show damage and he can only havesuffered damage if he has relied on the negligent statement. Nor will adefendant be shown to have satisfied the requirement that he should foreseedamage to the plaintiff unless he foresees such reliance by the plaintiff as togive rise to the damage. Therefore, although reliance by the plaintiff is anessential ingredient in a case based on negligent misstatement or advice, itdoes not follow that in all cases based on negligent action or inaction by thedefendant it is necessary in order to demonstrate a special relationship that the plaintiff has in fact relied on the defendant or the defendant has foreseen such reliance. If in such a case careless conduct can be foreseen as likely to cause and does in fact cause damage to the plaintiff that should be sufficient to found liability.”

[111]I also cannot accept Mr. Smith’s fourth submission. I appreciate that Mr. Swinhoe is an intelligent and sophisticated businessman. That does not mean, however, that he did not require to be told about the personal guarantee in circumstances where the demand which Mr. Jason made was made to Mr. Garvin with the expectation that it would then be passed on to Mr. Swinhoe. I do not accept, in such circumstances, that it is very realistic for Mr. Smith to say that there was nothing to put LSG reasonably on notice that Mr. Swinhoe was looking to the firm to protect his personal position. As I have explained, I consider that LSG (specifically Mr. Garvin) must be taken to have assumed responsibility to tell Mr. Swinhoe about the personal guarantee. In particular, I do not agree with Mr. Smith when he seeks to rely upon the fact that the personal guarantee contained a clause which stated that Mr. Swinhoe “understands the legal implications of it and that he has taken or had the opportunity to taking independent legal advice on his liability under it”. I repeat that this is not a case where the allegation is as to the advice which was given by LSG to Mr. Swinhoe. The allegation is that Mr. Swinhoe was not told that what he was signing was a personal guarantee, despite Mr. Garvin having assumed responsibility for telling him that this was the position. In such circumstances, viewed from Mr. Garvin’s perspective (knowing on this hypothesis that he had not told Mr. Swinhoe about the personal guarantee despite having told Mr. Jason that he would tell Mr. Swinhoe), I do not see how this wording can stand in the way of a duty of care in tort being held to have come into being.

[112]Lastly, as to Mr. Smith’s submission that a duty of care in tort should not be held to have existed because that would entail LSG being in a position of conflict, once again I am not persuaded that this can be right. I recognise that if the imposition of a duty of care in favour of a third party would entail putting a solicitor into a position where he has a conflict of interest with his client, then that would be likely to make it inappropriate to impose such a duty. It would not be fair and reasonable to do so. It would also make it unlikely that the solicitor had assumed any responsibility towards the third party which would result in there being a conflict. Mr. Smith, in this context, relies upon a passage in the speech of Lord Browne-Wilkinson in White v Jones at page 276D which I need not set out. He also relies on various passages in the judgments in Brownie Wills v Ian Meredith Shrimpton, in particular a passage in which Tipping J made the point that if the guarantor had been advised as to the nature and effect of the guarantee, “he would probably have declined to proceed with the guarantee, and the whole transaction may have collapsed”, something which “was hardly in the interests of the company, albeit the guarantors were all directors” (see page 563B). Mr. Smith submits that the position is the same in the present case. Had Mr. Swinhoe not signed the personal guarantee, the transaction would have collapsed. As it was not in Lydian’s interests (LSG’s client’s interests) that that should happen, so, Mr. Smith submits, it cannot be the case that LSG owed Mr. Swinhoe any duty of care in tort to tell him about Mr. Jason’s demand for a personal guarantee. Mr. Smith also relies on Huxford v. Stoy Hayward& Co.

(1989) 5 BCC 421

, another personal guarantee case. His submission is that the cases in which a duty of care in tort has been held to exist have entailed no conflict of interest. In particular, he points out that in RPHoward v. Woodman Matthews & Co. there was an absolute identity of interests between the claimant and his corporate alter ego, and that in Woodward v. Wolferstans(unrep., 20March 1997) Mr. Martin Mann QC (as he then was) held that the relevant duty of care was limited in scope precisely because otherwise there would be a conflict of interest which would make it inappropriate that the duty should be held to exist. He also points out that in Dean v. Allin & Watts Lightman J concluded that a conflict precluded a duty of care to a non-client save where “special circumstances of a particular case” require a different conclusion (see paragraph [33]). He further submits that, although in Trustee of the Property of PAF Foster v. Crusts

[1986] BCLC 308

, HHJ Finlay QC held that a solicitor acting for a company owed a duty of care in tort to guarantors, the judge did not address the question of conflict of interest. Had he done so, Mr. Smith submits, a different result might well have been reached.

[113]I reiterate that I consider that it must be right that if the imposition of a duty of care in favour of a third party would entail putting a solicitor into a position where he has a conflict of interest with his client, then that would be likely to make it inappropriate to impose such a duty. The authorities to which Mr. Smith refers seem to me to make that clear. On the facts of the present case, however, it seems to me that there would not be the position of conflict which Mr. Smith suggests. I agree with Miss Stevens-Hoare, in particular, that it is necessary to consider with some care whether there would have been a conflict not merely in a general sense, but, specifically in the present case, whether a conflict would have arisen had Mr. Garvin done what he told Mr. Jason he would do, which was to pass on Mr. Jason’s demand that Mr. Swinhoe (not a client of LSG) should provide a personal guarantee. I am bound to observe that the fact that Mr. Garvin told Mr. Jason that he would do this seems to me of itself to confirm that, as far as he at least at the time was concerned, a duty confined to passing on the demand would entail no conflict of interest. If the position were otherwise, it is difficult to see why Mr. Garvin would have told Mr. Jason what he told him. Clearly Mr. Garvin perceived no conflict. This is then underlined by Mr. Garvin’s evidence (which I have accepted) that he did, indeed, pass the demand on to Mr. Swinhoe. Even leaving these considerations to one side, however, the very limited duty which Mr. Swinhoe alleges was owed to him by Mr. Garvin needs to be considered. Mr. Swinhoe says that Mr. Garvin should have told him about Mr. Jason’s demand, not that he should then have gone on and offered legal advice to Mr. Swinhoe concerning the terms of the personal guarantee. Mr. Garvin could not have known what Mr. Swinhoe’s attitude would be to putting up a personal guarantee. He may have had no difficulty with doing so. I am not aware that it is suggested that Mr. Garvin would have thought at the time that he would have done. I also consider that there is force in Miss Stevens-Hoare’s point that if Mr. Smith’s submission is to succeed, then he would, in effect, need to persuade me that LSG owed Lydian a duty not to tell Mr. Swinhoe (Lydian’s sole shareholder and director) that Mr. Jason required a personal guarantee since telling Mr. Swinhoe would mean (or at minimum make it possible) that the transaction would not go ahead. I do not consider that Mr. Smith has come anywhere near demonstrating this. I consider that Miss Stevens-Hoare is also right when she submits that there was, in real terms, no potential for conflict since, for practical purposes, Lydian had no capacity to make decisions or form an intention which was distinct from Mr. Swinhoe. This is not a question of piercing any corporate veil; it is merely that any decision made by a corporate entity is made by some natural person or persons, and in the case of Lydian that natural person was Mr. Swinhoe.

[114]Mr. Smith submits, in the alternative, that, even if there was no conflict in relation to Lydian, there was nevertheless a conflict as regards Saffron. Again, I do not agree. I acknowledge that Mr. Swinhoe was not the only director nor indeed (albeit through Lydian) the only shareholder in Saffron. Mr. Jason was also a director and (through JIL) a shareholder in that company. I am again bound to note that any conflict arising thereby did not apparently occur to Mr. Garvin at the time or else he would not have felt able to tell Mr. Jason that he would pass on his demand to Mr. Swinhoe. In any event, looking at the matter in practical terms, since it was Mr. Jason who made the demand, it is difficult to see how he (in his guise as a shareholder and director of Saffron) would have been able to complain that Mr. Garvin passed on his own demand. As to Mr. Swinhoe, it seems to me that, in reality, his position (as an individual) must have been the same whether he is to be viewed in his guise as a shareholder and director of Lydian or in his guise as a shareholder and director of Saffron. Either way, it is unrealistic to suppose that Mr. Garvin being under a duty of care limited to the passing on of Mr. Jason’s request would have put him or his firm in a position of conflict in relation to Saffron. Mr. Smith’s approach in this respect is too artificial. Furthermore, I can hardly overlook the fact that both Lydian and Saffron were clients of LSG. Accordingly, the conflict which Mr. Smith suggests would have come into existence is a conflict which, in any event, already existed as between Lydian and Saffron if I am right in the view which I have formed that, for practical purposes, Lydian had no capacity to make decisions or form an intention which was distinct from Mr. Swinhoe. As such, I do not see that that conflict could be a sufficient reason for holding that the duty of care alleged did not arise. Technically anyway, there is the further point that it was not until 9 August 2005, at the earliest, that Saffron could be regarded as being a client of LSG since it was only that day that LSG opened a new file in the name of Lydian albeit with the intention that “Newco” (later Saffron) would be the client. This was about the same time as Mr. Jason made his demand for the personal guarantee, which he did at some stage between 8 and 10 August 2005. If the demand was made before the file was opened, there could be no question of a conflict, at least initially. It was then not until 15 August 2005 that a formal Saffron retainer came to be signed (by Mr. Swinhoe on behalf of Saffron). If that is the relevant date when Saffron became LSG’s client, and I consider that that is probably the position, then again no question of conflict could arise in the preceding period. These are technical answers to what is a technical submission, but they are nevertheless answers and, indeed, in my view, further reasons why I consider that it would be inappropriate to decline to hold that a duty of care existed on this further basis suggested by Mr. Smith.

[115]It follows that I agree with Miss Stevens-Hoare that LSG owed Mr. Swinhoe (in his personal capacity) a duty of care in tort to tell him that Mr. Jason required that he provide a personal guarantee. I reiterate, however, that this is not a matter which affects my overall determination of the case in view of the factual findings which I have earlier made.

Causation

[116]It is common ground that Mr. Swinhoe bears the burden of establishing that, had he been aware that the personal guarantee was a personal guarantee when he signed it, he would not have proceeded with the project, whether with Mr. Jason (and JPD) or with any other lender who insisted on a personal guarantee being given. Miss Stevens-Hoare submits that it is clear, on the evidence, that, had he been aware that a personal guarantee was a requirement which Mr. Jason was imposing, he would have sought other funding, which she submits was potentially available, but that if this could not have been obtained, then ultimately he would have abandoned the transaction rather than take on any personal liability. She invites me to accept Mr. Swinhoe’s evidence in that respect. She submits also that Mr. Barclay’s evidence was supportive of Mr. Swinhoe’s evidence. She says that his keenness to be involved was demonstrated by his agreement that his company (Grabar Investments (1994) Ltd.) should be put forward in the bid which Lydian submitted to Leicester City Council on 4 November 2004. She also submits that Mr. Barclay was, as she puts it, very clear that it was Mr. Swinhoe and Mr. Hooper who decided not to continue with him as the funder rather than him cooling about the transaction. She points out, in particular, that, more formal requests for commitment having been made to Mr. Barclay and Mr. Jason at about the same time, in late 2004/early 2005, a choice was then made between by Mr. Swinhoe and Mr. Hooper as to whether to proceed with Mr. Barclay or with Mr. Jason. She relies, in this context, on the evidence which Mr. Swinhoe gave as to the factors which went into the decision to proceed with Mr. Jason rather than Mr. Barclay, and the decision to continue with Mr. Jason despite Mr. Jason making it clear, at the meeting on 24 February 2005, that, whilst Mr. Jason (or his company) would bear the first £75,000 of any loss, thereafter it was to be shared equally with Lydian.

[117]Miss Stevens-Hoare submits that there was good commercial reasoning behind those decisions. I do not doubt that that is the case. I am, however, bound to note that, despite Mr. Swinhoe and Mr. Hooper not being overly happy about Lydian having to share any loss, neither Mr. Swinhoe nor Mr. Hooper appears to have approached Mr. Barclay to see if he would lend on softer terms. This does tend to suggest that they knew that Mr. Barclay was not a realistic option, and that there was not as such a choice as to whether to proceed with Mr. Jason. The real question, however, is not so much whether it made sense for Mr. Swinhoe and Mr. Hooper (and Lydian) to opt for Mr. Jason as the funder, but whether, had Mr. Jason not been available, other funding could have been obtained which did not entail Mr. Swinhoe having to put up a personal guarantee. Unless such alternative funding would have been available or unless Mr. Swinhoe can show that, had he had to, he would simply not have proceeded at all, he will fail with his causation case. It is nothing to the point that, as between Mr. Barclay and Mr. Jason, Mr. Swinhoe and Mr. Hooper (and Lydian) chose Mr. Jason. Mr. Swinhoe needs to establish that Mr. Barclay or some other funder would have been willing to provide funding without requiring a personal guarantee from him. Although Mr. Hooper made somewhat vague reference to alternative funding having also been considered from Mr. Philip Wallis of GHP Group, Miss Stevens-Hoare understandably placed no reliance on this as an alternative source in her written closing submissions. That leaves only Mr. Barclay to be considered. I have to ask myself whether I am satisfied that Mr. Barclay would have maintained his interest in funding the project had Mr. Swinhoe and Mr. Hooper (and Lydian) decided to proceed that funding route instead of proceeding with Mr. Jason, or had they decided to transfer their allegiances from Mr. Jason to Mr. Barclay when Mr. Jason’s demand for a personal guarantee was made known to them.

[118]Miss Stevens-Hoare points out, and I accept, that Mr. Barclay is an independent witness, despite his having known Mr. Swinhoe for 10 years and Mr. Hooper for about 25 years. Indeed, I do not understand Mr. Smith to suggest otherwise. Miss Stevens-Hoare submits that Mr. Barclay was clear that he had agreed to put forward £300,000 for obtaining planning permission and £900,000 on exchange. She relies on the fact that, whilst he acknowledged that he would have been looking for a purchaser to commit in the event of planning permission being obtained, since (like everyone else) he was not interested in building out the development, he rejected any notion he was looking for other investors. She points out that Mr. Barclay had also been clear that he would still have been prepared to step into the deal at the last minute had he been asked to do so. Again, I do not doubt that what Mr. Barclay said in his evidence is what he believes he would have done. However, I agree with Mr. Smith that that was with the benefit of hindsight since Mr. Barclay was never actually called upon to commit his money to the project. As Mr. Smith submits, it was an easy thing for Mr. Barclay to come to Court and say that he would have advanced all the necessary monies to Lydian without seeking any personal guarantee from Mr. Swinhoe. Whilst I am clear that he gave that evidence in good faith, nevertheless it seems to me that that was unlikely to have been what he would have done if he had actually been called upon to assist. He would have been likely to have wanted to know what the stumbling block had been with Mr. Jason. He would, therefore, have learned that it was that Mr. Jason had required a personal guarantee which Mr. Swinhoe was not willing to give. In such circumstances, it seems to me that Mr. Barclay is likely to have himself then become concerned over Lydian’s financial position and similarly required a personal guarantee from Mr. Swinhoe. The fact that he did not do so in relation to the Wembley Hill project does not change this assessment, since that was not a project where Mr. Barclay had been asked to step into Mr. Jason’s shoes. It was also a rather smaller project compared to the Leicester project, where the financial risks were not as great. It follows that, in my view, the only alternative source of funding, funding from Mr. Barclay, would still have entailed Mr. Swinhoe providing a personal guarantee.

[119]Miss Stevens-Hoare submits, in the alternative, that if Mr. Swinhoe had known that he was required to put up a personal guarantee, whether by Mr. Jason, Mr. Barclay or any other funder, he would not have proceeded with the project. I do not accept that submission nor the evidence which underlies it given by Mr. Swinhoe, which seems to me to be riddled with hindsight. I regard it as being really most unlikely that Mr. Swinhoe simply would have walked away from a project which he and Mr. Hooper had spent several months trying to bring to fruition. Further, as I have previously explained, I am clear that Mr. Swinhoe’s and Mr. Hooper’s (and Lydian’s) thinking was in substantial part driven by their commercial analysis that the likelihood of Lydian suffering a loss was not high and that, in any event, any such loss would not exceed £50,625 once Mr Hooper’s and Mr Garvin’s contributions were taken into account. This was not a substantial loss when compared with the potential upside if the Leicester project turned out to be successful, which would have entailed profits for Lydian somewhere in the £733,275-£1.296m range. Moreover, Mr. Swinhoe and Mr. Hooper were also anticipating that Lydian would make a £500,000 profit on the Wembley Hill transaction, and so they must have felt that any exposure which Lydian might ultimately turn out to have in relation to the Leicester project could thereby be mitigated. In short, I consider that Mr. Swinhoe is unlikely to have refused to allow the project to go ahead. Indeed, had he been inclined to do so, I am clear that Mr. Hooper would have tried hard to dissuade him. Mr. Hooper, after all, was not a director of Lydian nor a shareholder. His interest, therefore, was a personal interest, albeit one which depended on Lydian being prepared to proceed with the project. That Mr. Hooper was anxious not to let the transaction fail is, of course, demonstrated by my findings that he (and Mr. Garvin) reconfirmed to Mr. Swinhoe at the 24 August 2005 meeting that he would be providing Mr. Swinhoe with his own personal guarantee when Mr. Swinhoe hesitated before signing the personal guarantee which he himself gave to JPD.

[120]Miss Stevens-Hoare submits that this nevertheless does not mean that Mr. Swinhoe would have proceeded with the transaction. She submits, in particular, that Mr. Smith is wrong when he suggests, as Miss Stevens-Hoare said he suggests, that there is no great difference between Lydian taking on responsibility for losses with Mr. Swinhoe intending to support Lydian and not letting the company fail, and a personal guarantee given by Mr. Swinhoe. She makes the point that Mr. Swinhoe had consciously used a corporate vehicle at all times for all his property dealings, and that he must have done that for a reason, namely the protection which incorporation gives. I do not agree with Miss Stevens-Hoare about this. Whilst she is, of course, right that incorporation gives the protection to which she refers, her submission ignores Mr. Swinhoe’s own clear evidence that he would not have contemplated allowing Lydian to fold and, had it proven necessary, he would have injected his own personal funds into Lydian to keep the company afloat. Mr. Swinhoe, very honourably, was, therefore, aligning his own personal position with that of Lydian, his company. In so doing, as I have previously explained, I believe that the commercial risk assessment which he had carried out was, in effect, a commercial risk assessment which related to his own assets and not merely those of Lydian (which anyway had no assets). He was nevertheless content to proceed, and I believe that he would similarly have proceeded even if he had known about the personal guarantee which he was required to put up in order to obtain the funding essential to the transaction. It follows that Mr. Swinhoe’s causation case fails even on this alternative basis.

Failure to mitigate

[121]I turn now to Mr. Smith’s failure to mitigate argument. Mr. Smith submits that Mr. Swinhoe should have acknowledged his liability under the personal guarantee as soon as the demand was made by JPD, and certainly before JPD commenced the present proceedings. Mr. Smith submits that, had Mr. Swinhoe done this, he would have avoided a liability to pay JPD’s legal fees, as well as his own legal fees dealing with the claim which JPD brought against him. Mr. Smith’s position is that any damages entitlement which Mr. Swinhoe might have should be restricted to the claim to the judgment debt of £312,146.14 together with interest; there should be no liability in respect of any costs. Mr. Smith explains that, JPD having made its demand under the personal guarantee in the September 2008 meeting to which I have referred, Mr. Swinhoe (through Gregsons) wasted no time himself demanding payment from Mr. Hooper and Mr. Garvin under their sub-guarantees, sending out letters in October 2008. He points out, however, that Mr. Swinhoe did not admit liability to JPD, despite Shoosmiths (on behalf of JPD) sending a letter on 24 June 2009 giving him seven days in which to do so, failing which proceedings would be commenced. Mr. Smith adds that, by the end of July 2009, Shoosmiths had given details of the quantum claimed and had offered Mr Swinhoe the opportunity to go and inspect the relevant documentation at The Jaison Group’s offices, yet still liability was not admitted. That led JPD to commence proceedings on 21 August 2009, so acquiring an entitlement to claim legal costs which otherwise would not have come about.

[122]Miss Stevens-Hoare submits that, although Mr. Swinhoe knew from September 2008 that he had signed the personal guarantee, he did not have knowledge of the circumstances surrounding his signing of the document and, indeed, he says that he had been told by Mr. Garvin that Mr. Pollacchi had made a mistake. She says that at no point prior to service of LSG’s Defence in the Part 20 proceedings did LSG provide Mr. Swinhoe with a detailed explanation of how the personal guarantee came to be given. In view of my earlier findings that Mr. Swinhoe knew that he was signing a personal guarantee when he signed it and further that Mr. Garvin did not say anything about Mr. Pollacchi having made a mistake, it follows that I reject this submission. Miss Stevens-Hoare nevertheless goes on to submit that, until LSG served its Defence it could not be known whether LSG would be contending that Mr. Swinhoe had a defence to JPD’s claim. She says that it would not have been sensible for Mr. Swinhoe to concede liability without knowing whether LSG would criticise him for doing that. Whilst not entirely convinced by this submission, not least because it ought surely to have been possible for Gregsons simply to have asked LSG whether there was any objection to liability being conceded, nevertheless, on a fine balance, I am prepared to accept that it was not unreasonable for Mr. Swinhoe to delay conceding liability. I bear in mind, in particular, that the duty to mitigate is not an onerous duty. In any event, the question is academic given my earlier findings.

Contributory negligence

[123]Lastly, Mr. Smith submits that, if necessary, I should make findings to the effect that, if Mr. Swinhoe was unaware of the existence of the personal guarantee, that is (as Mr. Smith put it) “in large part his own fault”; in other words, I should decide that Mr. Swinhoe is contributorily negligent and reduce his damages entitlement accordingly. Mr. Smith submits that, were Mr. Swinhoe to succeed in his claim against LSG, necessary findings of fact by the Court would include that:(i) Mr. Swinhoe misunderstood the terms of the 10 August 2005 letter and the draft SHA which included clause 2.5, in circumstances where he did not seek any clarification from LSG (or other solicitors); and

(ii) Mr. Swinhoe signed a simple one page personal guarantee on 24 August 2005 essentially on an ‘unseen’ basis without alerting LSG to the fact that he simply did not know what he was signing. It is Mr. Smith’s submission that, in these circumstances, the Court should reduce Mr Swinhoe’s damages by at least 75%.

[124]Miss Stevens-Hoare submits that since the alleged contributory negligence goes (as she put it) “to the very service that LSG was obliged to provide”, it would be inappropriate for a reduction to be made. She goes on to submit that, in circumstances where there were only limited and (as she puts it) oblique references by LSG to the nature and subject matter of the obligation which Mr. Jason was insisting that Mr. Swinhoe should undertake, it cannot properly be suggested that Mr. Swinhoe failed to act reasonably in handling his own affairs. She makes the point that, with solicitors involved as they were, the introduction of such a significant additional feature to the transaction as a personal guarantee would need to be more explicitly drawn to Mr. Swinhoe’s attention.

[125]Since I have concluded that LSG is not under any liability to Mr. Swinhoe, contributory negligence is not an issue which arises. Had it arisen, however, I am satisfied that a reduction would have been appropriate since it does seem to me that if Mr. Swinhoe was ignorant of the fact that he was signing a personal guarantee, this was, at least in part, the result of his own negligence in the respects which Mr. Smith has identified. In the circumstances of this case, I do not consider it an answer for Miss Stevens-Hoare to say that this essentially entails a finding that Mr. Swinhoe was negligent as regards “the very service that LSG was obliged to provide”. This is because, even had I concluded that LSG should have done more to make Mr. Swinhoe aware of the personal guarantee, I am nevertheless still clear that Mr. Swinhoe should himself have adopted a somewhat more careful and inquiring approach than he did. Had he been more careful, then, whatever LSG’s shortcomings, Mr. Swinhoe would have found out about the personal guarantee. I consider that his failure to ask Mr. Garvin about clause 2.5 in the draft SHA which was produced on 12 August 2005 is especially open to criticism. This was a provision which, as I have explained, was very clear in its reference to Mr. Swinhoe providing an indemnity. The same point, however, applies to the 10 August 2005 letter. The fact that Mr. Swinhoe should then, on his version of events, go ahead and sign the personal guarantee without reading it seems to me to be another legitimate ground for criticism of his approach to the transaction.

[126]As to the level of reduction which would have been appropriate in the circumstances, I do not consider it right that any reduction should be as much as 75%, as Mr. Smith suggests. In my assessment, if it had been necessary to determine the point I would have held the appropriate reduction to be 50%. I consider that this would have reflected the relative levels of fault on LSG’s and Mr. Swinhoe’s part.

Conclusions

[127]In conclusion and by way of summary, since Mr. Swinhoe knew at the time that the document he was signing was a personal guarantee, no question of professional negligence arises. Mr. Swinhoe’s claim must, therefore, be dismissed.

[128]In the circumstances, none of the other issues arises. However:(1) I reject Mr. Swinhoe’s case that there was a retainer as between LSG and him.

(2) I nevertheless consider that LSG owed Mr. Swinhoe the duty of care in tort alleged.

(3) I consider that Mr. Swinhoe’s case on causation has not been made out.

(4) I conclude that there has been no failure to mitigate on Mr. Swinhoe’s part.

(5) Had it been necessary, I would have reduced the damages awarded to Mr. Swinhoe by 50% because of his contributory negligence.

order

first the SHA, then the Facility Letter, and then the Debenture, leaving Mr. Swinhoe’s personal guarantee still to be signed and then the contract with Leicester City Council. I consider that at some stage Mr. Jason must also have signed JIL’s Declaration of Trust in favour of Mr. Garvin. Miss Stevens-Hoare makes the point that Mr. Pollacchi appeared to be suggesting in his evidence that the signing of the various documents took place during the two board meetings rather than after they had finished, and that this was not consistent with LSG’s case as put to Mr. Swinhoe and Mr. Hooper that there were three distinct parts to the meeting which involved, first, the tidying up of the corporate documentation, then the two board meetings and then the signing of the five documents. I consider that this is not a point of substance, however, since Mr. Pollacchi was nevertheless still not suggesting that the signing took place before approval had been given. In any event, I certainly do not regard the point as meaning that I should discount the evidence which Mr. Pollacchi gave.

Cited in 1 later judgment

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