Glentree Estates Ltd v Holbeton Ltd [2010] EWHC 2901 (QB)

[2010] EWHC 2901 (QB)

Case No HQ09X03327

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

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

Date 25/11/2010

Before

HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

(sitting as a Judge of the High Court)

Between

GLENTREE ESTATES LIMITEDClaimant

HOLBETON LIMITEDDefendant

Robert Deacon (instructed by CKFT) for claimant

Adam Solomon (instructed by Ross & Craig Solicitors) for defendant

Hearing Hearing dates: 3, 4, 5, 8 November 2010

Judgment

[1]The claimant in this action, Glentree Estates Ltd. (“Glentree”) carries on business as an estate agent.

[2]Until completion of the sale of such property to Mr. Jimoh Ibrahim on 22 July 2009 the freehold owner of the property known as and situate at Silverwood, 17 The Bishops Avenue, London N2 (“Silverwood”) was the defendant, Holbeton Ltd. (“Holbeton”), a company incorporated in the Isle of Man.

[3]The consideration paid by Mr. Ibrahim for Silverwood was, as to £10 million, an amount in cash, and, at an agreed value of £6 million, the property known as and situate at The Villa, 8 White Lodge Close, London N2 (“The Villa”).

[4]In this action Glentree claimed against Holbeton payment of an amount of £368,000, inclusive of Value Added Tax at 15%. That sum was said to represent commission of 2% on the value of the consideration paid by Mr. Ibrahim on the purchase of Silverwood.

[5]That claim was resisted principally on the basis that Glentree had not been the effective cause of the sale of Silverwood to Mr. Ibrahim. It was said that the effective cause of the sale had been the activities of another estate agent company, Hanover Residential Ltd. (“Hanover”). However, there were also differences between Glentree and Holbeton raised on the statements of case of the parties, and to those differences I shall come.

The contractual arrangements between Glentree and Holbeton

[6]It was common ground that Holbeton did engage Glentree in 2006 to act as sole selling agent of Silverwood. It was also common ground that the contract between the parties in relation to that engagement was contained in a letter dated 10 October 2006 written by Mr. Jeremy Gee of Glentree to the directors of Holbeton, countersigned on behalf of Holbeton to indicate agreement, and in the standard form “Terms of Business” (“the Terms”) of Glentree enclosed with that letter. It is convenient for the purposes of this judgment to refer to this contract as “the First Contract”.

[7]The letter dated 10 October 2006 included the following provisions which are presently material:- “1. Agency Glentree International will be appointed as Sole Selling Agents for a minimum marketing period of six months from practical completion of works at the above property. This period is open to review at the end of this time. A Sole Selling Agency means that we are renumerated [sic] whenever the property is sold within the remit of our agency agreement. It is not impossible that we will offer the property to a third party or middlemen and that this may lead to another party trying to make contact with the vendors directly. Even if the property is sold to a close associate or friend this should be done at an arms [sic] length by allowing us to negotiate on your behalf. 2. Fees In the event of this company introducing an applicant directly or indirectly our fees will be charged at the rate of 2% of the full sale price to include any apportionment for fixtures and fittings. It has been agreed that if a middleman or third party requires a further fee this will be discussed and agreed on an “ad hoc” basis. 3. Knight Frank It has been agreed that Knight Frank will be appointed as the Sole Sub Agent for the property. This means that no other agent will be able to introduce a potential purchaser on a Sub-Instructed basis. Additionally, 12% of the fee payable to Glentree International will be reserved for Knight Frank on a ‘come what may’ basis for the duration of the agency agreement. … 7. Estate Agents Act I am obliged by the above Act to send you the enclosed standard Terms & Conditions which are a general menu of our services. However please consider this letter as having varied the relevant parts of these terms in accordance with any agreement we may reach.”

[8]The Terms included:- “1. AGENCY We will act on the basis of one of the following arrangements as agreed with you:- A) SOLE AGENCY Our rate of commission is % of the sale price. You will be liable to pay the commission to us (in addition to any other costs or charges if agreed), if at any time unconditional contracts for the sale of the property are exchanged during the period of our sole agency or at any other later date, I. With a purchaser introduced by us or with whom we had negotiations or discussions about the property during that period, or II. With a purchaser introduced by another agent. B) MULTIPLE AGENCY Our rate of commission is % of the sale price. You will be liable to pay the commission to us (in addition to any other costs or charges if agreed), if at any time unconditional contracts for the sale of the property are exchanged with a purchaser introduced by us directly or indirectly, with whom we had negotiations or discussions during our multiple agency or at some later stage. … 2. COMMISSION Glentree Estate’s [sic] fees will be calculated as a percentage of the sale price achieved unless a fixed fee has been previously arranged. The sale price includes any extra sums paid for carpets, curtains, furniture, fixtures or other items included in the sale. The commission is due and payable in the event that we introduce a purchaser directly or indirectly who exchanges contracts on the purchase of the property. An introduction occurs where a purchaser is found as a result of any marketing or negotiating activity by us. Unless otherwise agreed in writing the person(s) to whom the accompanying letter sent with these terms is addressed is responsible for payment together with the owner of the property (if different, and in which event the addressee undertakes to make these terms and conditions known to the owner). Where more than one person is responsible for our fees the liability is joint and several. Our fees will be due upon the exchange of contracts with the purchaser but by concession may be payable out of the completion monies. … 5. TERMINATION OF AGREEMENT Upon the expiration of a Sole Agency or Joint Sole Agency period, unless otherwise specified in writing, we shall continue to act for you on the same basis. In the absence of any specified agency period our appointment may be terminated or varied by either of us giving twenty-one days notice to the other (excluding weekends and public holidays). Should you wish to terminate our instructions then any expenses which you have agreed to pay will be payable immediately, and any terms of our agreement which are intended to have effect after the termination will continue to apply. … 9. PAYMENT OF ACCOUNTS Interest will be charged at 3% above the base rate of National Westminster Bank plc on any invoices which remain unpaid seven days after completion date. In the event that we have to take legal proceedings for the recovery of any fees due to us then you will be responsible for our legal costs and any other costs on a full indemnity basis. …13. VARIATION OF TERMS These standard terms of business are varied as set out in the confirmation of instruction letter but no other variation shall apply unless specifically agreed in writing.

14. VAT Our commission and any agreed expenses are exclusive of VAT which is chargeable at the prevailing rate regardless of your domicile and will be added to our invoice.”

[9]In a letter dated 23 June 2008 to the directors of Holbeton Mr. Gee wrote, so far as is presently material, as follows:- “Please find enclosed a copy of our original letter of instruction signed by The Directors of Holbeton Ltd and dated 10 October 2006. We are also enclosing a copy of the sales brochure for this property. As you will see from the enclosed our original agency period states that “Glentree International will be appointed as Sole Selling Agents for a minimum marketing period of six months from practical completion of works at the above property. This period is open to review at the end of this time.” As we are beyond this period please would you sign the enclosed copy of this letter, send it back to us in the stamped addressed envelope to confirm that our agency is ongoing on the original terms.”

[10]The copy of the letter was countersigned on behalf of the directors of Holbeton and returned to Glentree, thereby, as it seems to me, bringing a second contract (“the Second Contract”) into existence. The terms of the Second Contract were the same as those of the First Contract, save that the term of the engagement commenced on countersignature and return of the copy of the letter dated 23 June 2008, and was of unspecified duration.

[11]In a letter dated 28 November 2008 to Glentree the directors of Holbeton wrote:- “We note that to date no interested party has been sourced by your Company to purchase the above property and it is now 6 months since we re-engaged your services. In addition, we believe you have provided no viewings since March 2008. With this in mind please accept this letter as your written confirmation to terminate our agreement executed on the 20th June 2008 forthwith and remove the property details from your website.”

[12]That letter did not give the 21 days notice for which clause 5 of the Terms provided. It would seem that it was on that account that it was pleaded at paragraph 12 of the Amended Particulars of Claim in this action that, “By letter dated 28th November 2008 the Defendant sought to terminate the Claimant’s agency agreement forthwith.” The case for Holbeton, pleaded at paragraph 11 of the Defence, was that the letter of 28 November 2008 was effective to terminate the agency agreement forthwith. It is unnecessary to resolve this difference because of what happened subsequently. The immediate response of Glentree to the letter dated 28 November 2008 was a letter dated 1 December 2008 written by Mr. Gee:- “Thank you for your letter dated 20 [sic] November 2008. We have just placed a double page advertisement in the Glentree Review magazine which will appear in January. May I suggest that you extend our term until the end of February otherwise we will be unable to deal with any direct response to this advertisement.”

[13]There was no reply to the letter dated 1 December 2008. However, the terms of that letter seemed to contemplate that, unless there was an agreed extension as requested, Glentree would not be able to undertake further work for Holbeton. In other words, Glentree indicated by that letter that it was treating the Second Contract as at an end. Thus if, technically, the letter dated 28 November 2008 amounted to a repudiation of the Second Contract by seeking to terminate it without giving the requisite notice, it appears that Glentree accepted that repudiation by the letter dated 1 December 2008.

[14]It was common ground that a new agreement (“the Third Contract”) replaced the previous arrangements between the parties, whether the Second Contract was determined by notice given by Holbeton or by acceptance on the part of Glentree of a repudiation by Holbeton.

[15]From his witness statement prepared for the purposes of this action it seems that Mr. Faheem Ahmed was a director of a company called Bright Services Ltd. (“Bright”), which was the United Kingdom agent of Holbeton, until Bright went into liquidation, and since that event he personally has acted as agent of Holbeton in place of Bright.

[16]Mr. Gee was called to give evidence at the trial on behalf of Glentree. In his witness statement, at paragraph 24 he said, referring to the letter dated 1 December 2008:- “Shortly after that letter was sent, I spoke to Mr. Ahmed about the extension. He told me that he wanted to bring in other agents as he felt that the marketing might be a bit stale and, although he wanted to continue to market the Property discreetly, he wanted more exposure through other agents. I told him that this would be achieved by changing our sole agency to a multiple agency and he agreed this. There was no suggestion that the existing agency agreement was terminated, we agreed we were to continue on the same terms save that it would be a multiple agency. The reason I suggested and agreed the multiple agency was because I recognised that it had been quite an achievement anyway to have kept the sole selling agency for two years with someone who was fairly “anti-Glentree” as a result of the previous history. In any event, and since we were to continue as before and in view of Glentree’s presence in sales on Bishops Avenue, I was confident that we would introduce the ultimate buyer anyway regardless of steps taken by other agents.”

[17]Mr. Ahmed agreed that he had had a discussion with Mr. Gee about Glentree acting on a multiple agency basis for Holbeton. However, his account of that discussion in his witness statement prepared for the purposes of this action was rather different from that of Mr. Gee:- “8. Glentree wrote to Holbeton on 1 December suggesting that the sole agency be extended to the end of February 2009. Holbeton did not agree to this and I did not respond to the letter. Mr Gee of Glentree then spoke to me on the telephone and I confirmed that the sole agency agreement was at an end but that Glentree could continue to show prospective purchasers around Silverwood as multiple agents, as opposed to sole agents. I understand that Glentree concedes it acted on a multiple agency basis in 2009. 9. Like Glentree Estates, I agreed with Hanover Residential Limited “Hanover” that it could act on behalf of Holbeton Limited on a multi-agency basis. I made clear to Hanover that I would discuss a precise fee with it once it had made a successful introduction of a purchase.”

[18]Thus Mr. Ahmed’s account was to the effect that there was no discussion of importing the terms and conditions of the Second Contract into the Third Contract.

[19]In the event it did not prove necessary to reach any conclusion as to whether the account of Mr. Gee or that of Mr. Ahmed as to what had been agreed between them was correct. That was because Mr. Robert Deacon, who appeared on behalf of Glentree, accepted that there was to be implied into the Third Contract a term that, in order to be entitled to commission on a sale of Silverwood, it was necessary for Glentree to prove that it was the, or an, effective cause of the sale which had been achieved, and Mr. Adam Solomon, who appeared on behalf of Holbeton, accepted that, if commission was payable to Glentree, the rate of commission was agreed as 2%. The need to determine whether clause 9 of the Terms, providing for a contractual rate of interest if an invoice was not paid within seven days, could be relied upon on behalf of Glentree was avoided because it was common ground that in fact no invoice had ever been rendered.

[20]There was an issue as to whether it was to be implied into the Third Contract a term that Glentree was only entitled to a commission if it rendered an invoice, was well as being the, or an, effective cause of a sale of Silverwood. That issue was pleaded at paragraph 16 ii of the Defence. Mr. Solomon mentioned the issue in his written opening skeleton argument, but did not seek to elaborate as to why the term in question should be implied. I see no necessity to imply it. As it seems to me, if Glentree was the, or an, effective cause of the sale of Silverwood to Mr. Ibrahim, it is entitled to a commission at the agreed rate without the need to perform some additional condition to entitlement, such as producing an invoice.

[21]Mr. Solomon raised as a separate point the question whether Glentree, if entitled to a commission, was also entitled, in the absence of a Value Added Tax invoice, to payment of Value Added Tax on the amount of that commission. Technically I think that he is correct that a Value Added Tax invoice needed to be issued, but that is a matter of machinery to be gone through if the claim to commission succeeds, not a substantive answer to the claim insofar as it relates to Value Added Tax.

[22]Thus, in the end there proved to be no matter in difference between the parties which depended upon the precise terms of the Third Contract. That said, in cross-examination Mr. Gee told me that he could not actually remember exactly what he had said to Mr. Ahmed in the conversation between them in which the Third Contract had been agreed. Consequently, had it been important for Glentree to prove that its pleaded version of the Third Contract was correct, I should have found that it had failed to do so.

[23]The real question in dispute in this action, to which I now turn, was whether Glentree was the, or an, effective cause of the sale of Silverwood to Mr. Ibrahim. As Lord Neuberger pointed out in Foxtons Ltd. v. Bicknell

[2008] EWCA Civ 419

at paragraph 20 of his judgment, it is not entirely clear whether, as a matter of law, what an estate agent claiming commission on a sale has to prove is that he was “the” effective cause of the sale, or “an” effective cause of the sale. On the facts of the present case I do not think that it is necessary for me to reach any conclusion on this controversial question.

Effective cause

[24]It is apparent from the terms of the communications between Glentree and Holbeton to which I have referred that during the period of rather over two years in which Glentree was acting as sole agent in attempting to sell Silverwood it failed to produce a purchaser.

[25]It was not, I think, in dispute that Mr. Ibrahim first came to know of the existence of Silverwood, and of the fact that it was on sale, at an asking price of £22,000,000, from Mr. Wole Adenle-Samuels. Mr. Adenle-Samuels, who was called to give evidence on behalf of Glentree, told me that he was an estate agent, as well as a friend of Mr. Ibrahim, to whom he had been introduced by a mutual friend, Mr. Adedamola Aderemi, in 2008. In his role as an estate agent Mr. Adenle-Samuels traded under the name Ardenleigh Estates. Mr. Aderemi told Mr. Adenle-Samuels towards the end of 2008 that Mr. Ibrahim was interested in purchasing a home on The Bishops Avenue, or nearby. Mr. Adenle-Samuels and Mr. Ibrahim then discussed the matter. Following that discussion Mr. Adenle-Samuels set about investigating what properties were available for sale in the area in which Mr. Ibrahim was interested. Mr. Adenle-Samuels made contact with Mr. Jeremy Rosenblatt of Hanover. Mr. Rosenblatt sent Mr. Adenle-Samuels details of Silverwood, which by this time was on the books of Hanover, as an attachment to an e-mail sent at 11:26:35 GMT on 10 December 2008. Mr. Adenle-Samuels forwarded those details to Mr. Aderemi, who printed it out and showed it to Mr. Ibrahim. Mr. Aderemi was also called to give evidence on behalf of Glentree. Mr. Aderemi’s evidence was that the details of Silverwood shown to Mr. Ibrahim were in black and white, and Mr. Ibrahim was not particularly impressed. I accept the evidence of Mr. Aderemi on these points. I also accept his evidence that the details of Silverwood were sent to him by Mr. Adenle-Samuels as one of a number of sets of details of properties comprised in an attachment to a single e-mail sent on 15 December 2008.

[26]According to the evidence of Mr. Adenle-Samuels and that of Mr. Aderemi, which again I accept, another of the properties the details of which were obtained from Hanover and passed to Mr. Aderemi for Mr. Ibrahim in December 2008 was The Villa. In the event Mr. Ibrahim did purchase The Villa, at a price of £5,800,000. He made an offer, subject to contract, on 6 March 2009, contracts were exchanged on 9 March 2009, and completion occurred on 12 March 2009.

[27]Mr. Aderemi told me, and again I accept, that the details of properties sent to him by Mr. Adenle-Samuels in the attachment to the e-mail dated 15 December 2008 did not include any indications of which estate agents were offering the properties for sale, or any contact details. It seems likely that Mr. Adenle-Samuels, who knew perfectly well that he had obtained the details of Silverwood from Hanover, and that the details so obtained showed, in the version put in evidence, the name, logo, telephone number and web address of Hanover, omitted such details when sending information about the various properties included in the attachment to the e-mail of 15 December 2008 to Mr. Aderemi because he was hoping to earn an introductory commission in respect of any property which Mr. Ibrahim decided to buy. Mr. Adenle-Samuels did in fact receive commission from Hanover in respect of the sales of both The Villa and Silverwood to Mr. Ibrahim.

[28]Nothing was done by or on behalf of Mr. Ibrahim to pursue his interest in acquiring a property in the area of The Bishops Avenue for some time after the details which I have mentioned were sent by Mr. Adenle-Samuels to Mr. Aderemi. However, in his witness statement prepared for the purposes of this action Mr. Aderemi said, at paragraph 13:- “Early in 2009 I was in Mr. Ibrahim’s office in Lagos when he showed me photographs and details of some properties on The Bishop’s Avenue which he had received from his Banker, Mr Obigwe. The photographs had been sent with a complimentary card from Glentree although Mr Obigwe told Mr Ibrahim that he had used a lady to contact Glentree. One of the Properties was Silverwood of which the asking price was £22,000,000. Another property was Jersey House also on The Bishop’s Avenue valued at £40,000,000. Mr Ibrahim immediately said he liked both Jersey House and Silverwood House although he felt that Jersey House was too expensive at £40,000,000. I told Mr Ibrahim that he could expect to knock about 25% from the prices given the depressed state of the economy.”

[29]It was common ground that Mr. Ibrahim viewed Silverwood for the first time on 3 March 2009 with Mr. Aderemi, Mr. Adenle-Samuels and Mr. Ibrahim’s assistant, Mr. Olaoke. It was also common ground that Mr. Ibrahim and his party were shown round Silverwood on this occasion by Mr. Robert Kramer, a sales negotiator employed by Glentree. The account given by Mr. Aderemi in his witness statement of what happened on 3 March 2009 and the immediately succeeding days was:- “15. On 3 March 2009 after our arrival in London Mr Ibrahim and I went to view Silverwood as Mr Ibrahim had previously arranged this with Glentree. We went with Mr Adenle [sic] and Mr Ibrahim’s assistant, Emmanuel Olaoke.16. …

17. Mr Ibrahim asked Glentree to make an offer of £10,000,000 although the Glentree representatives told us the Owner was likely to accept an offer in the region of £16,000,000. I believe the next day Glentree called Mr Ibrahim to say his offer had been rejected and he asked them to make an offer of £12,000,000. A few days later we were told that this offer had also been rejected. Mr Ibrahim liked this house a lot and did want to purchase it.

18. On the same day we viewed Silverwood we went to view The Villa with Mr. Adenle-Samuels and Jason [Goldstone] the representative of Hanover Residential. I believe there was one other person from Hanover Residential present. They had waited outside Silverwood whilst we viewed it because I had impressed on Mr Adenle-Samuels that we had a tight schedule and Mr Ibrahim would not like to be kept waiting. It was Mr Adenle-Samuels who had introduced Hanover Residential to Mr Ibrahim.

19. Once Mr Ibrahim’s offers in respect of Silverwood were rejected he was prepared to buy and did buy The Villa on a temporary basis because it was located just off The Bishop’s Avenue although, it did not have the grandeur of Silverwood which remained his preferred choice.

20. Mr Ibrahim, Mr Adenle-Samuels and I also viewed several other properties including Jersey House which was also shown by Glentree and The Mansion on Courtenay Avenue which was shown by Hanover Residential.”

[30]There was a difference between the evidence of Mr. Aderemi and Mr. Adenle-Samuels, on the one side, and Mr. Goldstone, who was called to give evidence on behalf of Holbeton, on the other, as to the date upon which Mr. Ibrahim first viewed The Villa. Mr. Aderemi and Mr. Adenle-Samuels recalled that they and Mr. Ibrahim viewed The Villa for the first time on 3 March 2009. Mr. Goldstone thought that the viewing had been the following day. Nothing turns on this difference of recollection. I do not think that Mr. Adenle-Samuels dissented much from Mr. Goldstone’s account in paragraph 7 of his witness statement of what actually happened on the occasion of the viewing:- “Mr Ibrahim immediately liked 8 White Lodge Close and I noticed he discussed it quite carefully with Mr Adenle-Samuels. Mr Ibrahim quickly made up his mind to purchase the property and made an offer for it. Mr Ibrahim exchanged and completed on the purchase of 8 White Lodge Close within a week during March 2009. During that time, I understood that Mr Ibrahim relied on Mr Adenle-Samuels’s advice and he appeared to be key to any decision that Mr Ibrahim made to purchase a property. Mr Adenle-Samuels told me on several occasions “leave it to me”, so I knew he had a big influence on Mr Ibrahim’s decision making. We had agreed with Mr Adenle-Samuels that we would share the introduction fee with him should Mr Ibrahim purchase 8 White Lodge Close. Once the sale was completed and we were paid, we shared the fee with Mr Adenle-Samuels in accordance with our agreement.”

[31]At one point in his cross-examination Mr. Adenle-Samuels agreed that Mr. Ibrahim did immediately like The Villa. However, later he said that he could not say that. It appeared that the alteration of the view of Mr. Adenle-Samuels was based on his knowledge of Mr. Ibrahim continuing to look at other properties after completing the purchase of The Villa, rather than the impression which he formed at the time of what Mr. Ibrahim thought of The Villa.

[32]That Mr. Ibrahim had agreed, subject to contract, on or by 6 March 2009 to purchase The Villa was demonstrated by a number of letters, each bearing that date, written by Mr. Goldstone, recording that fact, of which copies were put in evidence. Examples were letters to Mr. Ibrahim’s solicitor, Mrs Philippa Knox, and to Mr. Adenle-Samuels. 6 March 2009 was a Friday. In each of the letters I have taken as examples it was recorded that arrangements had been made for exchange of contracts to take place the following Monday, 9 March 2009. Commission invoices in relation to the sale produced by Hanover and Mr. Adenle-Samuels were each dated 12 March 2009, which seems to have been the day of completion of the sale and purchase of The Villa.

[33]It was common ground between Mr. Aderemi, Mr. Adenle-Samuels, Mr. Ahmed and Mr. Kramer that Mr. Ibrahim had offered £10 million for Silverwood on about 4 March 2009, but Mr. Ahmed had rejected that offer. Mr. Aderemi and Mr. Adenle-Samuels considered that Mr. Ibrahim had increased his offer, after the initial rejection, to £12 million, but that was not a matter of which either Mr. Ahmed or Mr. Kramer gave evidence. What is material for present purposes, it seems to me, is that on or by 6 March 2009 Mr. Ibrahim had decided to purchase The Villa. Plainly he must, by that date, have decided that there was no prospect of persuading the owners, in the immediate future, to sell Silverwood to him at a price which he was prepared to pay. If he had thought that he could, in the reasonably near future, acquire Silverwood for a price which he was prepared to pay, and he wanted to buy Silverwood, he would not have proceeded so quickly to purchase The Villa. Mr. Adenle-Samuels told me that, as he understood it, Mr. Ibrahim needed a house in England to be available for the summer of 2009 for his children, who were at school here.

[34]Mr. Ibrahim’s decision not, for the time being, to pursue the possibility of purchasing Silverwood was unknown to Mr. Kramer as at 9 March 2009, as appears from his e-mail of that date to Mr. Ahmed:- “Dr Ibrahim has intimated he may go up to near £15m for Silverwood. He is offering on two other properties that I know of so we do have competition. He is obviously a negotiator who starts low but seems somewhat determined to buy a house in the road. Let me know your thoughts.”

[35]In terms of copies of contemporaneous documentation put in evidence, there was no further contact between Glentree and Holbeton or Mr. Ahmed between that e-mail and a letter dated 1 June 2009 from the directors of Holbeton to Mr.Gee about providing information to Barclays Commercial Bank. So far as documentary evidence of contact between Glentree and Mr. Ibrahim about viewing properties was concerned, again there was a gap between the beginning of March 2009 and 3 June 2009. A diary appointments record for the latter date indicated that Mr. Ibrahim had been shown on that day by representatives of Glentree three properties, called, respectively, Dryades, Sahara and Palladio.

[36]In his witness statement prepared for the purposes of this action Mr. Kramer, who was supposed to be the principal point of contact between Glentree and Mr. Ibrahim, said of events after 9 March 2009 and before 4 June 2009:- “12. On 12th March 2009 Mr Ibrahim acquired a property on White Lodge Close for £5.8 million through Hanover (I understand this was the property they were viewing with Mr Ibrahim on 3rd March). We were surprised to learn this as this was a small property and not the luxury home that Mr Ibrahim was looking for with his budget of £15-30 million. Mr Ibrahim confirmed to me that he was still looking for other properties as he had purchased the property in White Lodge Close on a whim and as a temporary base. He confirmed that he was still interested in the Property and also in Jersey House.13. In relation to Jersey House, there was a second viewing on 21st April 2009. At that viewing Mr Ibrahim and I met with the owner of Jersey House, Andrew Silver, to negotiate price for that property. At that meeting, because Mr Ibrahim had a limited amount of cash, because I knew that he had recently acquired the White Lodge Close property, and because I knew that he didn’t necessarily want to keep it, I suggested that he sell White Lodge Close as part of the price for Jersey House. Andrew Silver appeared interested in this suggestion as did Mr Ibrahim. In the event though, terms could not be agreed.

14. My discussions with Mr Ibrahim continued in relation to the Property. I should point out that the discussions were complicated by the fact that Mr Ibrahim was constantly coming and going from London. While he was in Nigeria I would have absolutely no contact with him, it was only when he was in London that he was interested in speaking about properties.

15. On 3rd June I had arranged viewings of three other properties for Mr Ibrahim. Even at this stage, while viewing and discussing these other properties, Mr Ibrahim and I were still discussing a higher offer for the Property as he remained interested in it particularly since he was no longer interested in Jersey House.

16. Later that day or the following day, Jeremy found out that Mr Ibrahim had viewed the Property again through Knight Frank. He told me about this and I immediately telephoned Mr Ibrahim to find out whether this was correct. He laughed off the suggestion as preposterous and vehemently denied that such a viewing had taken place.”

[37]Before coming to what Mr. Kramer said in cross-examination about his dealings with Mr. Ibrahim between about 3 March 2009 and about 3 June 2009 it is convenient to notice other versions given in evidence about what transpired.

[38]In his witness statement prepared for the purposes of this action Mr. Aderemi continued, after the passage which I have already quoted, in this way:- “21. Mr. Ibrahim was also very interested in Jersey House and made several offers but these were rejected. At one stage during negotiations for Jersey House Glentree suggested that Mr Ibrahim might use The Villa as a makeweight to purchase Jersey House but Mr Ibrahim told me his offers had been rejected. I was usually present when Mr Ibrahim took calls from Glentree.22. Mr Ibrahim also made an effort to purchase the Mansion and the property beside it as an alternative but the truth is that he was not really keen and he said as much to me. He had more or less made up his mind on purchasing Silverwood because he wanted to live on The Bishop’s Avenue.

23. Although Jersey House also interested Mr Ibrahim initially he had lost almost all interest by May 2009 because Jersey House was too close to Kenwood House which attracted a lot of tourists so that the number of cars and people that came to the road and actually sometimes parked outside Jersey House made it uncomfortable for him.

24. I was always with Mr Ibrahim when he visited London and a lot of times Mr Adenle-Samuels was with us because we were also looking at various other hotels and properties for investment purposes and were meeting to discuss them.

25. Sometime at the end of May 2009 I was approached by some Solicitors I knew that they could [sic] get Silverwood for £12,000,000 as Receivers were now involved and the Owner would now sell at this price. I was excited about this and immediately told Mr Ibrahim. We arranged to visit the property again just to be sure but the first scheduled visit on 2 June 2009 did not materialise. The solicitors said they could not obtain the keys and that the appointment was now rescheduled for 3 June 2009. We asked if the keys could be obtained from Glentree and we were told the keys would be obtained from one of the agents and did [sic] not have to bother ourselves.

26. Mr Ibrahim and I visited Silverwood on 3 June 2009. Mr Adenle-Samuels was with us. I had asked him to come along the previous day and he was with us when the visit was rescheduled for 3 June 2009.

27. Mr Ibrahim agreed to purchase the property for £12,000,000 and he instructed me to inform Mrs Philippa Knox, my close friend who was the solicitor I had introduced to him in respect of the purchase of The Villa. Mr Ibrahim was anxious to complete the transaction as quickly as possible but Mrs Knox and I advised that we should act prudently but expeditiously.

28. Mr Ibrahim in my presence immediately asked his English bankers, Union Bank (UK) to put Mrs Knox in funds to meet the deposit. This was done. Following exchange of contracts Mr Ibrahim again arranged for Mrs Knox to be put in funds for Completion purposes.

29. Fortuitously I asked Mrs Knox to insist the completion monies would only be transferred simultaneously upon receipt of keys and other documentation to the Property. This was not forthcoming. We discovered that in fact this had all been a scam which was unknown to the solicitors who had initially approached me. Mrs Knox was able to recover all monies that she had paid.

30. The fact that he had come close to purchasing Silverwood made Mr Ibrahim more determined to buy the property. He told me about this and said he would return to London for this purpose. I told Mr Adenle-Samuels about this and said Mr Ibrahim would contact him on his return to London because Mr Adenle-Samuels had told us he knew how to contact the Owner, a Mr Ahmed.

31. Mr Ibrahim told me that he wanted to deal directly with the Owner and no other Agent because of the fact that he had almost been a victim of substantial fraud. In fact we thought Mr Adenle-Samuels was in direct communication with the Owner and it was only much later after meeting with the Owner and Mr Ibrahim that I realised this was not the case.

32. I did not attend the meetings on 1 and 2 July 2009 because I had other commitments although I knew about them. I know from what Mr Ibrahim told me and my lengthy interaction with him that the visit on the second occasion was simply to let Mrs Ibrahim to [sic] see the property her husband had purchased and for no other purpose. Certainly she was not involved in the decision making process when it comes to matters of this nature.

33. I met with Mr Ibrahim at his company guest house a few days later and advised him about the price. I said he should only pay a cash element of £10,000,000 because The Villa was valued at £6,000,000. Mr Ibrahim agreed with me and in my presence called Mrs Knox and told her to sort this out with the Owner’s Solicitors or the deal was off.

34. Shortly afterwards, I was present when Mrs Knox called to say that the Owner was agreeable to a cash payment of £10,000,000 and not the £11,000,000 earlier agreed on 1 July 2009.”

[39]Although Mr. Aderemi did not give direct evidence of how the agreement to sell and purchase Silverwood was made, it seems clear from his account that his understanding was that it was agreed in direct negotiation between Mr. Ibrahim and Mr. Ahmed on 1 July 2009.

[40]Mr. Adenle-Samuels, in his witness statement, gave evidence to very similar effect as that of Mr. Aderemi, but he was able to add personal knowledge of what had happened on 1 July 2009 because he had actually been present at the meeting that day between Mr. Ibrahim and Mr. Ahmed. What Mr. Adenle-Samuels said was:- “19. On 2 June 2009 Mr Aderemi informed me that Mr Ibrahim and himself were going to visit ‘Silverwood’ again as they had been told that the Owners would now accept £12 Million. At this time Mr Ibrahim I am aware from conversations with Mr Ibrahim [sic] that he had made ‘Silverwood’ his preferred choice of home and would purchase the property even if he acquired some other place in the meantime.20. I am not sure of the precise circumstances that made us believe that the property was now available for about £12 Million but there was an attempt at explaining it to me and it included the alleged involvement of Receivers.

21. Unfortunately because the keys could not be obtained by the people who were going to take Mr Ibrahim to visit the property the appointment was rescheduled for 3 June 2009. I was with Mr Aderemi and Mr Ibrahim at the Villa when the appointment was rescheduled. Indeed someone asked whether Glentree or one of the other agents could provide the keys but I do not remember who.

22. We did visit ‘Silverwood’ on 3 June 2009 and Mr Ibrahim agreed to purchase the property for £12 Million. He instructed Mr Aderemi to liaise with Mrs Philippa Knox who Mr Aderemi had introduced to him in order to get the transaction going and actually stated that he wanted the sale completed within days.

23. I recall Mr Aderemi calling Mrs Knox and it was agreed that the purchase should not be rushed although it would be dealt with expeditiously. Mr Ibrahim there and then promised to put Mrs Knox in funds immediately to pay the deposit on the purchase.

24. Subsequently I was informed by Mr Aderemi that the whole transaction had been an attempted fraud but that fortunately Mr Ibrahim been [sic] able to recover the deposit he had paid. Mr Aderemi told me that Mr Ibrahim was however still interested in the property and would contact me on his return to London.

25. Later on in June Mr Ibrahim did contact me. He was obviously still interested in the house as he told me but stated that he wanted to talk directly with the Owner, Mr Ahmed, so that the kind of fraud that he had almost fallen victim to would not happen again. He asked me to arrange this as I had previously told him I could get the Owner for him through my contacts.

26. I immediately got in touch with Jason of Hanover Residential since it was in my interest to do so and I did not know Glentree and told him to make the necessary arrangements for Mr Ibrahim to meet Mr Ahmed. It was a matter of indifference to Mr Ibrahim whether the arrangements were made through Hanover Residential or Glentree.

27. This was done and Jason told me that the meeting was fixed for 1 July 2009 at ‘Silverwood’ as this was clearly convenient for both parties. I attended that meeting at which Mr Ibrahim and Mr Ahmed negotiated the price and it was eventually agreed that Mr Ibrahim would pay £11 Million in cash and transfer ‘The Villa’ to Mr Ahmed as the purchase price of ‘Silverwood’.

28. …

29. On 2 July 2009 we again visited ‘Silverwood’ with Mr Ibrahim, his wife, Mr Ahmed and Hanover Residential. This was because Mr Ibrahim wanted his wife to see the property although the deal had already been completed.

30. Mrs Ibrahim never took part in the negotiation and indeed to the best of my knowledge has never been involved in that aspect of Mr Ibrahim’s life and acquisitions. After visiting ‘Silverwood’ we returned to ‘The Villa’ because Mr Ahmed also wanted to take a closer look at that property.

31. A few days later Mr Ibrahim informed me that after discussions with Mr Aderemi he had decided to pay only £10 Million in cash and not £11 Million and had instructed his solicitors accordingly. The Owner had agreed to do this and he was quite pleased at that outcome.

32. I was not involved with negotiation for the reduction of the cash element from £11 Million to £10 Million. Mr Ibrahim only informed me after the reduction had been agreed and he told me that his Solicitors had secured this for him. He had also spoken to Mr Ahmed about it. I did talk to Jason about the reduction but I certainly did not negotiate at anytime on Mr Ibrahim’s behalf.”

[41]The evidence of Mr. Aderemi and Mr. Adenle-Samuels as to how, and in what circumstances, the agreement to sell Silverwood to Mr. Ibrahim was actually made was supported by the evidence of Mr. Goldstone and that of Mr. Ahmed.

[42]In his witness statement Mr. Goldstone said:- “8. Not surprisingly, we quickly developed a good business relationship with Mr. Adenle-Samuels. Around mid-May 2009, Mr Adenle-Samuels approached us again. We were told that Mr Ibrahim wished to buy further properties either to live in or for investment and that he had a budget of approximately £10 million. We showed him two properties for sale on Harley Road, Swiss Cottage at £5 million and £6 million each and also showed him once again, the Courtney Avenue properties, namely The Mansion and The Villa. Mr Ibrahim saw The Villa again with me and Mr. Adenle-Samuels and made an offer on it on 18th May 2009. At that viewing, Mr Ibrahim met with the owner in the presence of me and Mr Adenle-Samuels and they negotiated the price but without success. The reason was, I believe, that Mr Ibrahim’s offer was not high enough. 9. On the failure of the sale of Courtney Avenue, Mr Adenle-Samuels suggested to me that we show Mr Ibrahim around Silverwood. 10. … 11. Once Mr Adenle-Samuels had come to us for a second time, suggesting that Mr Ibrahim would be pleased to see further properties, I had regularly advised Faheem Ahmed that I could set up a meeting between him and Mr Ibrahim. Initially, Mr Ahmed did not take me up on the offer but then, in late June, he came back to me and said that he would like to meet Mr Ibrahim. 12. I called Mr Adenle-Samuels, who said that he would set up a meeting with Mr Ibrahim as soon as possible. Mr Adenle-Samuels was as good as his word and we arranged for Mr Ibrahim to look round Silverwood with Mr Adenle-Samuels on 1 July 2009. 13. Mr Ibrahim returned with his wife on 2 July. I think she had joined him for the summer. She had not seen the property before and appeared to like it very much. Myself, Mr Adenle-Samuels and Mr Ahmed were also present on this occasion and Mr Ahmed showed them personally around the property. Mr Ibrahim made Mr Ahmed an offer and they shook hands on it in the garden. The offer had an unusual element to it: they agreed that Mr Ibrahim would offer £11 million for Silverwood but would also give Mr Ahmed White Lodge Close, free of charge. 14. They then went round to White Lodge Close with me and looked round there as well. Mr Ahmed liked the property, and because of the part exchange, Mr Ibrahim was able to offer Mr Ahmed sufficient cash to give satisfactory overall price of Silverwood. Without this, I very much doubt that the transaction would have gone through, as I do not think Mr Ibrahim wished to spend more than £10-£11 million. This “property swap” was one key to the deal, and Mr Adenle-Samuels was the other key, as without the vendor and the purchaser getting together, the property swap would never have been proposed and agreed. On an agreement being reached I proposed a fee structure to Mr Ahmed in a letter dated 2 July 2009, which he accepted. 15. A few days later, the deal nearly fell through as, on either 7 or 9 July, I cannot recall exactly which, Mr Ibrahim changed his mind over the price and requested a £1 million reduction on the purchase price of Silverwood from £11 million to £10 million. I spent a great deal of time negotiating with Mr Adenle-Samuels on this and then phoning Mr Ahmed. Eventually, the deal went through and it was agreed that the price would be reduced by £1 million. I spoke to Mr Adenle-Samuels about this, rather than Mr Ibrahim. 16. I then sent out a Memorandum of Sale to all the relevant parties with the revised price and I believe contracts were exchanged shortly afterwards, with a completion date of 22 July 2009.”

[43]Obviously Mr. Goldstone had a different recollection from those of Mr. Aderemi and Mr. Adenle-Samuels as to exactly who proposed a meeting between Mr. Ibrahim and Mr. Ahmed and how that meeting came about. However, they all agreed that important in the sale eventually achieved was that Mr. Ibrahim and Mr. Ahmed had wished to meet, and that, following discussions between them, subject to the re-negotiation on about 7 or 8 July 2009, terms of sale of Silverwood were agreed.

[44]Mr. Ahmed’s account of events from the first viewing by Mr. Ibrahim of Silverwood until the eventual agreement was set out in his witness statement in this way:- “13. I believe that it was Glentree who first showed Mr Ibrahim around Silverwood. This it did on 3 March 2009. I was called by Mr Kramer of Glentree on or about 4 March to be told that Mr Ibrahim had offered £10m for the property. Holbeton rejected the offer as being several £m too low. Mr Kramer of Glentree emailed me on 9 March 2009 (15:45) to say that Mr Ibrahim might go up to £15 million but he was offering on two other properties in Bishops Avenue. I did not hear again from Glentree about an increased offer from Mr Ibrahim. Nor did Glentree introduce anyone else who made an offer on Silverwood. In their letter to Holbeton of 5 June 2009 Glentree suggest that, once Mr Ibrahim had seen Silverwood in March, “negotiations commenced … a purchase price has not been agreed and negotiations have been ongoing between ourselves and the applicant”. I am not aware of any negotiations between Glentree and Mr Ibrahim. I do not believe there were any after 9 March 2009. Again, in Glentree’s letter to me of 5 June, it is suggested that negotiations are continuing but that seems very unlikely to be the case. The letter goes on to say … “I understand that Mr Ibrahim visited the house again this week through Messrs Knight Frank via another third party. Mr Ahmed has accepted our introduction as the effective cause of the Sale should a transaction proceed, and will be informing Knight Frank immediately”. I remember my call with Robert Kramer on 4 June. He was concerned because he believed Knight Frank had showed Mr Ibrahim around Silverwood. As I set out below, I do not think that was necessarily the case. Nonetheless, I acknowledged to Mr Kramer that he had been the person who first showed Mr Ibrahim round Silverwood on 3 March 2009. I did not, as he suggests, accept that Glentree was the “effective cause of sale” should a transaction through Knight Frank proceed. I believe that Glentree eventually took injunctive proceedings against Holbeton in July 2009 believing that Knight Frank was indeed the effective cause of the sale of Silverwood when, in fact, it was not.14. …

15. Knight Frank may have introduced Mr Ibrahim to the Property on 3 June 2009 when they met Maria Feliciano who works at my office. I was not present. I would have been told a prospective purchaser was viewing the property but not his or her name. I believe Knight Frank did not themselves show the prospective purchaser around Silverwood on that day. They had done a deal with a sub-agent, a company called M2 Property Limited, I believe it was M2 Property Limited who showed Mr Ibrahim around Silverwood – although this is open to doubt. The purchaser was stated in email correspondence with me to be Mr Ibrahim. Mr Ibrahim was said to have offered £22 million to purchase the property, a sum considerably in excess of any previous offer Holbeton had received. Solicitors’ details were given but the lawyers apparently appointed, “Sovereign Chambers LLP” turned out to be an LLP that was not authorised by the Law Society. Holbeton’s solicitors commenced the usual conveyancing procedures with Sovereign Chambers but got nowhere. It rapidly became apparent that Sovereign Chambers did not act for Mr Ibrahim and were unable to pay a deposit on the purchase of Silverwood. The purchase was therefore aborted on Friday 19 June. This cost Holbeton a considerable amount of money in legal fees. I am told by Mr Ibrahim that he has not dealt with M3 [sic] Properties and has never instructed Sovereign Chambers LLP to represent him. I can only assume that this agreement was a sham created for some fraudulent reason but, further than that, I will not speculate.

16. Finally, I turn to Hanover Residential – In my view, the fee is payable to it and Holbeton has agreed to pay it a fee. It was clear that Mr Ibrahim was interested in Silverwood but the price he was willing to pay was not nearly high enough. What Holbeton needed in order to proceed to a satisfactory exchange and completion was to meet Mr Ibrahim and attempt to do a deal with him satisfactory to both parties. Hanover had, I understand, a close relationship with Mr Ibrahim, having sold him a property called White Lodge Close, off The Bishop’s Avenue. I was keen not to repeat my experience of the apparent introduction of Mr Ibrahim through Knight Frank. At this time, in late June 2009, Jason Goldstone of Hanover called me, saying that he could arrange a meeting with Mr Ibrahim through a reliable business associate of his, Mr Wole. I asked Hanover to arrange such a meeting and they very quickly did so.

17. On 1 July 2009, Mr Goldstone of Hanover arranged for Mr Ibrahim to view the Property with his associate, Mr Wole, and I met him. Mr Goldstone did not attend. Mr Ibrahim liked Silverwood but he told me that he would not make an immediate offer on Silverwood because first he needed to sell White Lodge Close. I suggested that we do a property swap, by which he paid me cash and a free transfer of White Lodge Close as the purchase price for Silverwood. We both discussed this at some length. I knew White Lodge Close because I had seen it advertised. He and I then went round to White Lodge Close and I viewed it with him. We therefore had an outline deal. Having agreed a property swap in principle, I told Mr Ibrahim that I needed to clear the deal with the directors of Holbeton Ltd. I called Holbeton that afternoon to do this. I described fully the details of the White Lodge Close property to Holbeton’s directors and they agreed to the deal. Mr Ibrahim and I agreed to meet at Silverwood the next day to agree the details of the deed [sic]. I also called Hanover to say where we were with the deal.

18. On the following day, both Mr and Mrs Ibrahim viewed Silverwood together, with me and Mr Goldstone from Hanover Estates [sic]. Mr Wole was also present.

19. On either 1 or 2 July, Mr Ibrahim told me that White Lodge [sic] had been marketed for about £10 million but he had bought it for £6 million. As he had used a dollar account to purchase the property at a very good exchange rate, the property had, in effect, cost him £5 million. After some negotiation, we agreed that Mr Ibrahim would purchase the Property for £11 million in cash plus a free transfer to Holbeton of White Lodge [sic] being a total of £16 million. With the cash Holbeton could pay the mortgage to Barclays off with some cash left over and have a new property which was likely to be worth considerably more than £5 million. On 2 July, I went round and had a second look at White Lodge Close. Silverwood had no furniture or chairs and so that [sic] most of our negotiations took place at White Lodge Close. Mr Wole was involved in the discussions on both days and Mr Goldstone was present on 2 July.

20. The only subsequent change to the deal we reached was that Mr Ibrahim eventually paid me £10 million in cash, rather than £11 million. I had expected this and was therefore not surprised by it. Nonetheless, a renegotiation was required and Hanover was very helpful in this. Contracts to sell the Property were promptly exchanged on 15 July 2009 and completion took place on 22 July 2009. On 2 July, I acknowledged to Jason Goldstone of Hanover by telephone that it had introduced Mr Ibrahim to Silverwood, and agreed his fees as set out in his letters to both me and Holbeton of 2 July 2009 having agreed with Holbeton that was appropriate; namely a fee of £300,000 plus VAT; £220,000 of which was payable on completion of the sale of Silverwood, with an additional £80,000 being payable six months after the date of completion. This was reduced to £280,000 when the sale value of the transaction was reduced by £1 million.”

[45]It is clear from the witness statement of Mr. Kramer that he knew nothing of the attempt to defraud Mr. Ibrahim or Holbeton, whatever precisely that attempt amounted to, or of the desires of Mr. Ibrahim and Mr. Ahmed to deal directly with each other. Moreover he plainly had no involvement in the negotiation of the terms upon which Silverwood was eventually sold to Mr. Ibrahim. In his witness statement Mr. Kramer dealt with events between 4 June 2009 and 14 July 2009 as follows:- “17. On 4th June 2009 I then spoke to Mr Ahmed about the possible Knight Frank viewing and to confirm that Mr Ibrahim had in fact been introduced to the Property by Glentree. Mr Ahmed agreed this and I confirmed the conversation in writing the following day confirming, in particular that “Mr Ahmed has accepted our introduction as the effective cause of Sale should a transaction proceed, and will be informing Knight Frank immediately. If Mr Jimoh Ibrahim, his representative or nominee company be successful in purchasing Silverwood then Glentree Estates Ltd. Would [sic] look to you for payment of our full fee of 2.5% plus VAT of the full sale price as agreed by you in our original confirmation letter.” No response was received to that email. 18. On 14th July 2009 Jeremy Gee told me that he had spoken to Graham Keable at Barclays who had informed him that Mr Ibrahim had agreed to purchase the Property with the White Lodge Close property being part of the purchase price. I called Mr Ibrahim about this and asked whether this was correct. Mr Ibrahim literally laughed it off and said that this wasn’t the case. I wasn’t convinced and therefore on the same date wrote to Holbeton reminding them that since the termination of the sole agency, Glentree had continued to act as a multiple agent. The letter confirmed the introduction of Mr Ibrahim by Glentree on 3rd March and confirmed that discussions in relation to the price were ongoing. I reminded Holbeton of obligation [sic] to pay commission on any sale to Mr Ibrahim stating:

“we want to make it crystal clear to you however that if our applicant Jimoh Ibrahim or any nominee company or other associate through him is successful in purchasing Silverwood, Glentree Estates Ltd. will be entitled to and will certainly require payment of our full fee of 2.5% plus VAT of the full sale price in accordance with the terms of our appointment.”

No response was received to this email.”

[46]The account in Mr. Kramer’s witness statement of sending an e-mail in confirmation of his alleged conversation with Mr. Ahmed on 4 June 2009 was rather misleading. What he described as an e-mail seems in fact to have been a letter, of which a copy was put in evidence. That letter was not addressed to Mr. Ahmed, but to Miss Sinead Barry at Holbeton at an address in Douglas, Isle of Man. The letter was in these terms:- “Further to yesterday’s telephone call with Mr. Fahim Ahmed I am writing to confirm our introduction of Mr. J Ibrahim to Silverwood. Several weeks ago after showing Mr. Ibrahim the property, negotiations commenced however to date a purchase price has not been agreed and negotiations have been ongoing between ourselves and the applicant. I understand that Mr. Ibrahim visited the house again this week through Messrs Knight Frank via another third party. Mr. Ahmedhas accepted our introduction as the effective cause of Sale should a transaction proceed, and will be informing Knight Frank immediately. If Mr. Jimoh Ibrahim, his representative or a nominee company be successful in purchasing Silverwood then Glentree Estates Ltd. would look to you for payment of our full fee of 2.5% plus VAT of the full sale price as agreed by you in our original confirmation letter. We look forward to hearing from you by return.” We look forward to hearing from you by return.”

[47]While it may not be appropriate to subject the letter to close syntactical analysis, it was expressed somewhat strangely in a number of respects. First, all that was said to be confirmed from the telephone conversation with Mr. Ahmed was the assertion that Glentree had introduced Mr. Ibrahim to Silverwood. The assertion that Mr. Ahmed had accepted that introduction was not, in terms, said to have been something that he said in the telephone conversation. Rather it seemed to be a free-standing contention not associated with any particular indication on the part of Mr. Ahmed on any identified occasion. If it was intended to assert that Mr. Ahmed had accepted the introduction in the telephone conversation on 4 June 2009, that contention would more naturally have been contained in the first paragraph of the letter, where reference was made to the conversation, rather than in the second paragraph, following the statement of Mr. Kramer’s understanding that Mr. Ibrahim had visited Silverwood again that week. Second, while Mr. Kramer asserted in the letter that negotiations had commenced with Mr. Ibrahim and were continuing, although no purchase price had been agreed, he gave no details at all of the alleged negotiations. Since he evidently considered it appropriate to mention the alleged fact of continuing negotiations, one might have thought that he would have decided that it was appropriate to add some flesh to the bones reported, yet he did not. Third, notwithstanding that it was common ground before me that there had never been any agreement between Glentree and Holbeton that Holbeton would pay a commission of 2.5% to Glentree in any circumstances, Mr. Kramer asserted that that had been agreed “in our original confirmation letter”. Fourth, although apparently directed, at least in part, to record what Mr. Ahmed was said to have agreed on behalf of Holbeton, the letter was neither addressed, nor copied, to Mr. Ahmed.

[48]It subsequently transpired that the viewing of Silverwood by Mr. Ibrahim at the beginning of June 2009 was undertaken in the context of the attempted fraud to which I have referred. It is not necessary for the purposes of this judgment to consider who attempted to defraud whom, or in what precise manner. The only real relevance of the attempt to defraud to the issues in this action was that, on the evidence, it prompted Mr. Ibrahim to want to make contact directly with Mr. Ahmed. However, at a time when Holbeton believed that a sale of Silverwood to Mr. Ibrahim at a price of £22,000,000 was likely, the directors of Holbeton wrote a letter dated 9 June 2009 to Mr. Sinton-Hewitt of Knight Frank LLP (“Knight Frank”). The letter included the following:- “Further to your email with the memorandum of proposed sale of the above property please accept this letter as your written confirmation that we are happy to accept the proposed sale price of £22,000,000 (twenty two million pounds). If the client Mr J Ibrahim introduced by Glentree International proceeds to purchase the above property, we will agree to pay commission to you of 3% (three per cent) of the sale price achieved. As previously agreed the commission of 3% of the full sale price includes 2.5% plus VAT to be paid to Glentree Estates Ltd. The amount will become due and payable on completion of the purchase.” The amount will become due and payable on completion of the purchase.”

[49]That letter seems to have been sent by facsimile transmission, for at 18.31 the same day Mr. Grant Alexson of Knight Frank replied:- “Thank you for your note in respect of the above. Unfortunately it does not relate to what was agreed with your London representative. Fees have been agreed as a minimum of 2% plus VAT to Knight Frank to be shared with an introducing third party agent. The additional fee of 1% was due as a bonus for achieving such an excellent price and is due to be split with the third party agent but has been put on hold pending discussions with Glentree. The 2% plus VAT was never the subject of any debate. We were not aware of the name of the purchaser until the sale was agreed and it was at this time that the potential conflict was mentioned. To this end we have been advising for more than 3 years on the sale and having agreed a sale in the best possible terms we are disappointed in your letter and do not accept the contents therein. Please confirm that the position is as detailed above by return.” Please confirm that the position is as detailed above by return.”

[50]The directors of Holbeton wrote a letter dated 10 June 2009 to Mr. Sinton-Hewitt which reflected, albeit somewhat ungrammatically, the terms of that e-mail.

[51]It seems that the attempted fraud was not abandoned until about 24 June 2009, when those who had been purporting to act on behalf of the intending purchaser, Sovereign Chambers LLP, wrote to the solicitors acting on behalf of Holbeton, Messrs. Ross & Craig Solicitors, to inform them that they were no longer instructed. As I have already noted, Mr. Ahmed, at paragraph 15 of his witness statement, considered that the fraud was aborted on 19 June 2009, apparently when the deposit due on exchange of contracts was not paid. This difference in analysis of exactly when and how the attempted fraud came to an end is not material to any issue which I have to determine.

[52]In terms of documentation copies of which were put in evidence, the next significant exchange chronologically was an e-mail timed at 14.10 hrs on 2 July 2009 sent by Mr. Goldstone to Mr. Adenle-Samuels:- “Further to our telephone conversation, I can confirm that in the event of this sale proceeding to a successful completion, we will reserve for you a fee of 1.25% (gross) based on a purchase price of £15m equating to a fee of £187,500. This fee is payable in two instalments. The first of which will be £137,500 which is payable on completion, and naturally once we have received the fee from our client. The balance of £50,000 will be payable within 6 months from the date of completion.”

[53]A little later the same afternoon, at 14.49 hrs, Mr. Ahmed sent an e-mail to Mr. Goldstone:- “Kindly find enclosed the purchaser’s details together with the solicitor’s information. Please prepare the memorandum and SEND TO ME before sending to Ross and Craig. Please note the price is £11 Million or US$18,332,500 plus the White Lodge Close property. The Purchasers’ [sic] name is Holbeton Ltd …”

The Purchasers’ [sic] name is Holbeton Ltd

[54]Also on 2 July 2009 Mr. Goldstone wrote to Mr. Ahmed. The material part of the letter for present purposes was in these terms:- “I am writing to confirm that our applicant Mr J Ibrahim has agreed to purchase the above mentioned Freehold property at the agreed price of £11,000,000 (or US$18,332,500) Subject to Contract, plus the part exchange of The Villa, 8 White Lodge Close, London N2 0BL. I have pleasure in enclosing a memorandum of sale for your records. … Whilst writing I can confirm that in the event of this sale proceeding to a satisfactory conclusion, we shall look to you for payment of our commission as previously agreed in the sum of £300,000 plus VAT (if applicable). As agreed in our telephone conversation of today, we will accept our fee in two installments [sic]. The first instalment of £220,000 being paid upon completion of Silverwood and the balance of £80,000 to be paid up to 6 months from the date of completion.”

[55]Mr. Ahmed sent an e-mail to Mr. Ibrahim at 11.33 hrs on 3 July 2009:- “It was great to see you again yesterday and to conclude the deal. Congratulations again and I look forward to a long and mutually successful relationship. As arranged I am attaching the budget quotes from Honky, the interior designers, dated the 8th June 09. These are the people who have done the show flats in Allingham Court, in Bishops Avenue, and I was very impressed with their work. I am also sending you today, by courier, a brochure and a DVD of the interiors of Silverwood.”

[56]The first indication, at least so far as copy documents put in evidence went, of any difficulty in implementing what had been agreed on 1 and 2 July 2009 between Mr. Ahmed and Mr. Ibrahim was an e-mail timed at 11.35 hrs on 7 July 2009 from Tracy Roast of Messrs. Ross and Craig Solicitors to Mr. Ahmed. That e-mail began:- “Further to our telephone conversation, Natasha has spoken to Mrs. Knox and she informed her that our respective clients have spoken and the following has been agreed:- 1. You have the option of choosing either:- a) Accepting £10m cash and transfer of the Villa to him (est value £6m); or b) Accepting £15m in cash in full and final … Can you please let me have your thoughts in [sic] this? They expect to exchange by Friday and complete the following Friday.” Can you please let me have your thoughts in [sic] this? They expect to exchange by Friday and complete the following Friday.”

Can you please let me have your thoughts in [sic] this?

[57]That there had been a conversation the previous evening, the effect of that conversation, and Mr. Ahmed’s reaction to it were all evidenced by an e-mail timed at 13.19 hrs sent by Mr. Ahmed to Mr. Ibrahim also on 7 July 2009:- “Thank you for your telephone call last night and our discussion. It was very disappointing indeed that you are seeking to reduce the offer by £1 Million, after our agreement of last Thursday which was approved by the Holbeton Directors. Unfortunately it is not possible to reduce the price that we agreed i.e. £11 Million plus the white lodge close house [sic]. May I suggest you consider the following; You could purchase the company shares and thereby have a saving of £440,000. I appreciate the conclusion of the deal could take 2 weeks, however we could exchange contracts within the next couple of days with condition that your legal people are happy with the companies [sic] due diligence, and the money could be held in escrow until completion. This is the best deal/solution for both parties where by [sic] £11 Million is payable and £5 Million for the White Lodge Close property, a total of £16 Million. You would be saving £440,000 and in addition the US$ exchange rate is very much in your favour as it was at 1.675 to the £ last Thursday and is now 1.62. Kindly come back to me with your thoughts.” Kindly come back to me with your thoughts.”

[58]The reply came at 20.50 hrs the same day:- “thanks for your email my position is clear, we can only buy this house for 16m in part exchange withe [sic] my house or 15m each without my house. the [sic] solicitor got fund [sic] today but will has to [sic] return the money to my account by tommorow [sic] close of work, if you do not agree to any of the terms you can cross cheek [sic] with her i [sic] did not buy my house for 5m so let be reasonable. I took time to reply your mail out of respect and fusture [sic] relationship i [sic] will not buy the house beyound [sic] any of the condition above.”

[59]The difference between Mr. Ahmed and Mr. Ibrahim at that stage seemed to focus on the value of The Villa. Although I have noted the price paid by Mr. Ibrahim in sterling for that property, it seems that he in fact used funds held in United States dollars to buy the property, and that, on one view, the movement of the rate of exchange £:$ had meant that it only cost Mr. Ibrahim the equivalent of £5,000,000.

[60]In an e-mail to Mr. Ibrahim timed at 13.36 hrs on 8 July 2009 Mr. Ahmed set out his account of the agreement which they had made and of how that had been achieved:- “Many thanks for your email. I agree with you that you wanted to by [sic] for £16 Million with the part exchange. Let me briefly summarise how you arrived at the price of £11 Million plus the house, at our lengthy meeting last week Wednesday. I mentioned at the outset that the price of £15 Million for the house was not acceptable to the Holbeton Directors. We then discussed the option of cash and White Lodge Close (WLC) house in part exchange. You then suggested £10 Million for the house and £6 million for WLC, a total of £16 Million, I said, at the time, that this would not be acceptable because by taking WLC in part exchange, we would take on the problem of selling the house which could take a long time and would incur finance charges as well as agents and selling fees and this would easily come down to closer to the £15 million cash mark. I then requested £12 million plus WLC, and you counter offered £11 million plus WLC. Your reasoning was that you could reduce the cost price of WLC house as you had purchased WLC some months ago, when the US$rate/£ was at 1.40 (last weeks rate was 1.67) therefore giving you a cost price of £5 Million. The total cost would then be £11 Million plus £5 Million, totalling £16 Million. This was the reasoning you explained to me and Mr. Wole. In considering the above, kindly agree to the original deal, and as you rightly say, our business relationship is very important, and we could both mutually benefit from future deals together.”

[61]There were many exchanges of e-mails on 8 July 2009 about the transaction, most of them between or involving solicitors on each side. For present purposes the detail of these exchanges is not material. How matters were resolved, as appeared from an e-mail timed at 17.49 hrs on 15 July 2009, sent by Mr. Ibrahim to Mrs. Knox, but copied to Holbeton’s solicitors, was that The Villa was given an agreed value of £6,000,000, rather than the £5,000,000 previously discussed. The e-mail was in these terms:- “I hereby authorise my solicitor, Philippa Knox of Knox & Co Solicitors of [the address of the firm was then set out], to act as my agent for the purpose of signing and exchanging contracts with respect to the transfer of freehold interest in The Villa, 8 White Lodge Close, London N2 0BL (The Villa) and the concurrent purchase of the freehold interest in Silverwood, 17 The Bishops Avenue, London N2 0AL (Silverwood). I confirm that the price to be paid for me for the purchase of the freehold interest in Silverwood is £16,000,000 to be paid by £10,000,000 in cash plus a transfer of the freehold interest in The Villa and by this authority Mrs. Knox is permitted to do all such things as are necessary to give effect to the signing and exchange of contracts in respect of both properties taking place today, 15 July 2009 or at any time soon thereafter.”

[62]The same day Mr. Goldstone wrote a letter to Mr. Ahmed which was almost identical in terms to his letter of 2 July 2009, save that in the first paragraph the details of the agreement were recorded as an agreed price of £10,000,000 plus part exchange of The Villa, in the third paragraph the commission to be paid was adjusted to £280,000, and in the fourth paragraph it was provided that that amount was to be paid as to £200,000 on completion and as to £80,000 six months thereafter.

[63]On 14 July 2009 Mr. Kramer wrote to Holbeton in the Isle of Man:- “As you know following expiry of our sole agency Glentree have continued to act on the sale of your above property on a multiple agency basis. Silverwood remains unsold despite considerable effort expended and heavy investments in brochures and advertising but we are in an exceptionally difficult market. Even so throughout we have been as focused on securing a sale at a viable price as you are. On [March 3rd 2009] we introduced Mr. Jimoh Ibrahim to Silverwood and after showing him the property we entered into negotiations in earnest but to this point the purchase price has not been agreed even though discussions have been ongoing between ourselves and the applicant. We are finding more and more that the limited number of buyers who can perform are using every possible tactics to get the lowest possible price. This is only to be expected and because of this – negotiations have to be even more carefully managed. This brings me to the point of this letter, precisely because this is a multiple appointment – one of the tactics buyers are using is to play one agent off against another. This is what is now happening in this negotiation. We put Mr. Fahim Ahmed on notice yesterday that Mr. Ibrahim visited Silverwood again this week through Messrs. Knight Frank apparently via yet another intermediate third party agent. There can be no question that Jimoh Ibrahim was introduced by Glentree and that so far as we are concerned our discussions with him are continuing. Mr. Ahmed accepts this and has stated that should a transaction proceed with Mr. Ibrahim he will be informing Knight Frank immediately. We are bound to accept that this is all about disposing of Silverwood – the selling agents are merely incidental. We certainly have not lost sight of the plot – we don’t want to disaffect the buyer. But Holbeton Limited needs to be aware that it may attract double commission. It may be you are quite prepared to pay two full agency multiple commissions at a total of 5% to get the sale through. We want to make it crystal clear to you however that if our applicant Jimoh Ibrahim or any nominee company or other associate through him is successful in purchasing Silverwood, Glentree Estates Ltd will be entitled to and will certainly require payment of our full fee of 2.5% plus VAT of the full sale price in accordance with the terms of our appointment. It is not too late to try to impose some control on the conduct of the other agents in any negotiations to avoid contracting two commissions and we naturally urge you to do so. We discharge our obligation to you by giving you notice of the facts.”

[64]It was quite plain from the terms of that letter that in fact Mr. Kramer was wholly unaware of what had actually been happening in relation to Silverwood between Mr. Ibrahim and Holbeton, acting by Mr. Ahmed. The letter contained two clear untruths. One was “that so far as we are concerned our discussions with him [Mr. Ibrahim] are continuing”. The truth, as Mr. Kramer must have known perfectly well, was that he and Glentree had had absolutely no involvement whatsoever in any discussions with Mr. Ibrahim about Silverwood in July 2009. Although Mr. Kramer did not know that there had been discussions which had led to an agreement, subject to contract, on 1 or 2 July 2009, or further discussions in respect of the re-negotiation of that agreement, he certainly did know that he personally had not been involved in any negotiations at all which could property be described as ongoing as at 14 July 2009. Another untruth in the letter dated 14 July 2009 was the assertion that Mr. Ahmed accepted that Glentree’s alleged discussions with Mr. Ibrahim were ongoing. As was the case in relation to the letter dated 5 June 2009 to Holbeton, the letter dated 14 July 2009 was not copied by Mr. Kramer to Mr. Ahmed.

[65]In my judgment the only sensible reason for Mr. Kramer to have written the letter dated 14 July 2009 in the terms which he did, including, in particular, the untruths to which I have drawn attention, was to seek to improve the position of Glentree in relation to claiming commission on a sale of Silverwood which he feared was about to take place by suggesting, falsely, that Glentree was involved in continuing negotiations with Mr. Ibrahim, and that Mr. Ahmed accepted that.

[66]Unhappily, Mr. Kramer did not confine his untruths to those contained in the letter dated 14 July 2009. He lied under oath during the course of his evidence at the trial. Once again the occasion of his lies was his attempt to suggest that he, on behalf of Glentree, had been involved in negotiations with Mr. Ibrahim concerning Silverwood after the making by Mr. Ibrahim of the offer to pay £10,000,000, which offer was rejected. The point of departure, in a part of the cross-examination of Mr. Kramer when, as it seemed to me, he was simply making up his evidence in the witness box, was when he was invited to consider what he had said at the end of paragraph 14 of his witness statement. Mr. Kramer told me that what he had said about not being in contact with Mr. Ibrahim when Mr. Ibrahim was in Nigeria was not correct. He said that what was written he believed was true when he signed the witness statement, but he did not know why it had not been corrected “before”. “Before”, in this context, meant before he was asked about it in cross-examination. By this stage he had already verified the contents of his witness statement as accurate. What had actually happened, Mr. Kramer asserted, was that he had had some contact with Mr. Ibrahim in Nigeria, but with immense difficulty. In my judgment this reversal of the evidence of Mr. Kramer came close to seeking to insult the intelligence of his listeners.

[67]Next Mr. Kramer was asked about his letter dated 5 June 2009 to Holbeton and the assertions contained in it that, “negotiations commenced however to date a purchase price has not been agreed and negotiations have been ongoing between ourselves and the applicant”. He accepted that there were no notes of any alleged negotiations and that, prior to this letter, no indication had been given to Holbeton that there had been any negotiations with Mr. Ibrahim about buying Silverwood after about 9 March 2009. Initially in cross-examination Mr. Kramer agreed with the proposition that, in the context of negotiations about selling a house, what negotiations meant was discussion about the price to be paid. However, he then accepted that actually Mr. Ibrahim had never increased his offer of £10,000,000 or mentioned any particular figure which he was prepared to pay for Silverwood. Next Mr. Kramer changed tack, and suggested that the process of negotiation included discussion of other possible properties the prospective purchaser might buy, and seeking to eliminate them from consideration. The problem with that point was that it was common ground that, after the rejection of the offer of £10,000,000 for Silverwood, Mr. Kramer did show Mr. Ibrahim other properties on the books of Glentree, including Jersey House, the asking price of which was £40,000,000. It verges on the risible for Mr. Kramer to suggest, if this is what he was in fact seeking to persuade his listeners, that he sought to dissuade Mr. Ibrahim from purchasing other properties on Glentree’s books in order to foster his interest in Silverwood. Any sale of a property on Glentree’s books to Mr. Ibrahim would probably have entitled Glentree to a commission, and one imagines that the higher the price Mr. Ibrahim was persuaded to pay, the greater the commission Glentree would expect to receive.

[68]The emphasis in the alleged negotiations of Mr. Kramer with Mr. Ibrahim about Silverwood then changed again. Now what was said to have been discussed was exchange of information. However, Mr. Kramer was quite unable to explain initially what information had been exchanged. Later in his cross-examination Mr. Kramer returned to this theme, when asked about paragraph 13 of his witness statement and the reference to it being his idea in the first place to suggest to Mr. Ibrahim that The Villa be offered in part-exchange on the acquisition of a new property. Now he asserted that he had first expressed that thought to Mr. Ibrahim in March 2009 in the context of a possible purchase of Silverwood. He was unable to explain how this piece of evidence, important if true, only emerged towards the end of his cross-examination and had never been mentioned before, even though the question of a possible offer of The Villa in part-exchange had been specifically addressed in paragraph 13 of his witness statement. Mr. Gee, who gave his oral evidence after Mr. Kramer, told me that Mr. Kramer would have discussed with him any offers made in respect of Silverwood, and did, indeed, do so. However, Mr. Gee said that the first time he had heard of the suggestion that Mr. Kramer had proposed that part of the consideration for a purchase of Silverwood by Mr. Ibrahim might be provided by part-exchange of The Villa was in court.

[69]For the reasons which I have explained I have reached the firm conclusion that Mr. Kramer adopted an extremely flexible approach to the truth and to the oath which he took at the start of his evidence. Essentially, I thought, he would say whatever he thought for the time being suited his interests and those of his employers. I do not accept a single word of his evidence insofar as it was disputed on behalf of Holbeton.

[70]The evidence of Mr. Kramer that his contention in his letter dated 5 June 2009 to Holbeton that Mr. Ahmed had told him that he, Mr. Ahmed, accepted the introduction of Glentree of Mr. Ibrahim as the effective cause of any sale of Silverwood to Mr. Ibrahim was based upon what Mr. Ahmed had told him in their conversation on 4 June 2009 I reject entirely. Mr. Ahmed accepted that there had been a conversation with Mr. Kramer on 4 June 2009, but he denied that he had accepted that Glentree was the effective cause of any sale of Silverwood to Mr. Ibrahim. In contrast to Mr. Kramer, I was much impressed by Mr. Ahmed as a witness. He was measured, strove to be accurate and I accept his evidence on all material points without question.

[71]It seemed to me that the evidence of Mr. Adenle-Samuels and that of Mr. Aderemi needed to be approached with a degree of caution in each case. Although Mr. Adenle-Samuels presented himself as a friend of Mr. Ibrahim, it seemed that in fact their relationship was of a business nature. Mr. Ibrahim looked to Mr. Adenle-Samuels to identify potential opportunities to purchase residential or investment property. Mr. Adenle-Samuels did that, but in the expectation of generating a fee for himself, not simply because he wished, out of generosity, to assist Mr. Ibrahim. As I have already noted, Mr. Adenle-Samuels accepted that he had received payment from Hanover of a commission on the sale of The Villa to Mr. Ibrahim, and had received a further commission on the sale of Silverwood. He told me that it was the fact that he had agreed in principle with Hanover that he would be paid a commission on a sale of Silverwood to Mr. Ibrahim that influenced him to approach Hanover to secure direct contact between Mr. Ibrahim and Mr. Ahmed. The relationship between Mr. Aderemi and Mr. Ibrahim was less clear, but Mr. Aderemi certainly seemed to perform the role of a business adviser to Mr. Ibrahim to some extent. I was not persuaded on the evidence that either Mr. Adenle-Samuels or Mr. Aderemi was a close personal friend of Mr. Ibrahim, such that Mr. Ibrahim might share his innermost thoughts or wishes with either of them.

[72]Moreover, it appeared that both Mr. Adenle-Samuels and Mr. Aderemi were in error about an important matter of which each spoke, a second offer on the part of Mr. Ibrahim for Silverwood in March 2009 of £12,000,000 (paragraph 13 of the witness statement of Mr. Adenle-Samuels, paragraph 17 of the witness statement of Mr. Aderemi). If there had been any such offer, I have no doubt that Mr. Kramer would have been anxious to emphasise it. However, his evidence, even in cross-examination taking place after Mr. Adenle-Samuels and Mr. Aderemi had given their evidence, made no mention of an offer of £12,000,000, and neither did the evidence of Mr. Ahmed. The facts that Mr. Adenle-Samuels and Mr. Aderemi made an error on this point, and that they both made the same error, are somewhat troubling. It is suggestive of a degree of collusion between them in the preparation of their respective witness statements, although each told me he had written his own. However, even at the level that each, independently, fell into the same error over an important matter, doubt is cast over the accuracy of their evidence, where not supported by other evidence.

[73]In his written final submissions Mr. Deacon included these paragraphs:- “17. The crucial issue is Mr Ibrahim’s state of mind during the whole process. Mr Ibrahim did not give evidence but Mr Adenle-Samuels and Mr Aderemi (who were closely connected with Mr Ibrahim) did give evidence and were able to give evidence about what they understood about Mr Ibrahim’s intentions. Theirs is entirely independent evidence and neither is aligned to either side in this dispute. It is submitted that their evidence is at the heart of this case. 18. Crucially Mr Aderemi’s unchallenged evidence (at para 36 of his witness statement) was as follows “Indeed I am aware from my own interaction and conversations with Mr Ibrahim that his interest in Silverwood was kindled once he actually viewed the property on 3rd March 2009. That interest continued unabated and indeed increased as he saw other properties and discountenanced them”.”

[74]It was not in fact correct to say that the evidence of Mr. Aderemi in paragraph 36 of his witness statement was unchallenged, but the real point in Mr. Deacon’s submissions was that he was inviting me to accept what Mr. Aderemi said in that paragraph. I am afraid that I do not feel able to do so.

[75]As Mr. Deacon pointed out, Mr. Ibrahim would have been able to give evidence about his own intentions in relation to Silverwood in the period from his first viewing on 3 March 2009 to completion on 22 July 2009, but Mr. Ibrahim was not called to give evidence. There was some debate between Mr. Deacon and Mr. Solomon as to who should, or might, have called Mr. Ibrahim. There was inconsistent evidence from Mr. Adenle-Samuels at different times in his cross-examination that he understood that Mr. Ibrahim had, or had not, provided a witness statement for the purposes of this action. Mr. Aderemi told me in cross-examination that he understood that, at least at one stage, Mr. Ibrahim was thinking of providing a witness statement. In the end Mr. Ibrahim did not attend the trial to give evidence, and, if a witness statement were ever made by him, no one sought to adduce it in evidence.

[76]In my judgment the circumstances of the case, as I find them to be, provide a proper basis on which to draw inferences as to the state of mind of Mr. Ibrahim from time to time over the period 3 March 2009 to 22 July 2009.

[77]Plainly Mr. Ibrahim was sufficiently interested in possibly purchasing Silverwood, after inspecting the property on 3 March 2009, to make an offer. Silverwood was at that time on the market for sale at an asking price of £22,000,000. Mr. Ibrahim’s offer was of £10,000,000, less than half the asking price. There was no point in making an offer at all if it was thought that there was no prospect of the offer being accepted, but an offer so much below the asking price does not suggest that Mr. Ibrahim was keen to pay as much as was necessary to secure the property. Rather it suggests that Mr. Ibrahim was interested in purchasing Silverwood only if he could secure it for a figure of the order of £10,000,000.

[78]I find that, contrary to the evidence of Mr. Adenle-Samuels and Mr. Aderemi, Mr. Ibrahim did not make a further offer of £12,000,000 for Silverwood after the offer of £10,000,000 was rejected. What he did do, within three days of viewing Silverwood, was decide to purchase The Villa at a price of £5,800,000. That decision, as it seems to me, demonstrates that, at that time, Mr. Ibrahim was not sufficiently interested in purchasing Silverwood to allow any time to pass while considering making a further offer, still less actually to make a further offer. The decision not further to pursue any prospect of obtaining Silverwood, but to purchase The Villa, was, in my judgment, consistent, and consistent only, with Mr. Ibrahim having decided not to seek to acquire Silverwood at that time. That finding is supported by the fact, as I find, that no further discussion between Mr. Ibrahim and Mr. Kramer about Silverwood took place at any stage after the rejection of the offer of £10,000,000.

[79]What revived interest on the part of Mr. Ibrahim in purchasing Silverwood was the false information conveyed to him in the context of the attempted fraud that he might be able to purchase Silverwood for £12,000,000. As it seems to me, the price at which Mr. Ibrahim thought that he could obtain Silverwood was critical to the revival of interest. Mr. Ibrahim had maintained, I find, his interest in purchasing a further property in the area of The Bishops Avenue after completing his purchase of The Villa, but did not, prior to the beginning of June 2009 and the start of the attempted fraud, show any continuing interest in Silverwood. Once the attempted fraud was revealed Mr. Ibrahim took the initiative, and asked to be put in direct contact with Mr. Ahmed. It seems to me that Mr. Ibrahim took that step because he was interested in acquiring Silverwood, but only if it could be had at a price which he was prepared to pay. Out of the direct discussions between Mr. Ibrahim and Mr. Ahmed emerged the possibility, which I find was suggested by Mr. Ahmed, that The Villa might be offered in part-exchange for Silverwood. The introduction of the possibility of part-exchange proved to be the key to the eventual sale.

[80]Mr. Deacon placed considerable reliance not only upon the alleged agreement of Mr. Ahmed during the telephone conversation with Mr. Kramer on 4 June 2009 that the introduction of Glentree had been the effective cause of any sale to Mr. Ibrahim, but also on the terms of the letter dated 9 June 2009 written by Holbeton to Mr. Sinton-Hewitt in providing for 2.5% commission to be paid to Glentree. Mr. Ahmed was asked about that letter in cross-examination. He said that, at the time the letter was written, it was in his mind that originally Knight Frank had been sole sub agent of Glentree in relation to the sale of Silverwood, and it was unclear what role Glentree had had in the transaction then in contemplation. It appeared, from Mr. Kramer’s letter dated 5 June 2009, that Glentree claimed to be involved in that transaction. Consequently Holbeton, on his advice, was simply seeking to avoid finding that commission had to be paid to Glentree in addition to the sum agreed to be paid to Knight Frank, at least until it became clear what the respective roles of Knight Frank and Glentree had been. I accept that evidence.

[81]Mr. Deacon began his written final submissions in this way:- “1. The issue in this case is whether or not Glentree was the effective cause of the sale of Silverwood to Mr Ibrahim. The reason Glentree says it was the effective cause of that sale is because it was through Glentree that Mr Ibrahim chose to view the property on 3rd March 2009 and after that viewing made an offer to purchase shortly after which was relayed to Mr. Ahmed in Mr Kramer’s 9th March 2009 email. Mr Ibrahim’s interest in Silverwood remained unbroken through to 1st July 2009 when the deal in principle was done. There was an unbroken causal chain running from the initial potentially effective introduction on 3rd March 2009 through to the deal on 1st July 2009 and nothing was done meantime which affected Glentree’s right to commission. 2. It is submitted that on the authorities the crucial point is Mr Ibrahim’s continued interest in the property after that initial introduction not what others apart from Mr Ibrahim may have done or not done. 3. If Glentree’s showing of Mr Ibrahim around Silverwood on 3rd March 2009 elicited nil interest from Mr Ibrahim the introduction would not have been potentially effective. But the initial viewing did elicit not just interest but an offer; the question, therefore, is whether that interest continued through to the sale. There is no doubt that Mr Ibrahim was a serious purchaser and the evidence is that he had a budget of between £15 and £30 million so Silverwood was well within that budget.”

[82]In the course of the closing submissions of Mr. Deacon and Mr. Solomon I was reminded of some of the many authorities produced over the years on questions relevant to the entitlement, or not, of an estate agent to commission on the sale of a property. In some cases the issue depended upon the proper construction of the particular agreement between the parties. In other cases the resolution of the dispute depended upon the analysis of the facts of the case, against the background of fairly well-understood principles. The relatively recent decision of the Court of Appeal, Foxtons Ltd. v. Bicknell

[2008] EWCA Civ 419

, was relied upon in particular by Mr. Solomon, but Mr. Deacon also based his submissions in part upon it. It was a case of a sole agency, and the principal issues concerned the proper construction of the written agreement between the parties, in particular the words, “a purchaser introduced by us”. The need to construe those, or similar, words did not arise in the present case. The only substantive judgment was that of Lord Neuberger of Abbotsbury. In the course of his judgment he said:- “18. Article 57 of Bowstead and Reynolds on Agency (18th edition) states that, at least usually, “where the remuneration of an agent is a commission on a contract to be brought about, he is not entitled to such commission unless his services were the effective cause of the transaction being brought about”. The implication of such an “effective cause” term in an agency contract appears to have been first raised by Henn Collins MR in the relatively briefly reported case of Millar Son & Co v. Radford

(1903) 19 TLR 575

. However, while such a term will relatively readily be implied into an estate agency contract, it was made clear by Viscount Simon in Luxor (Eastbourne) v Cooper

[1941] AC 108

at 119 that, where there is an argument whether or not such a term is to be implied, the issue should be resolved by reference to the normal rules relating to implication of terms.19. We were referred to a number of cases decided by this court in the past twenty years, which did not involve the same express terms as in this case, and in which either the implication of an “effective cause” term was rebutted (Brian Cooper & Co v Fairview Estates (Investments) Ltd

[1987] 1 EGLR 18

and The County Homesearch Company (Thames and Chilterns) Ltd v Cowham

[2008] EWCA Civ 26

), or such a term was assumed by all parties to be implied (John D Wood & Co v Dantata

[1987] 2 EGLR 23

, Peter Yates & Co v Bullock and Anr

[1990] 2 EGLR 24

, Chasen Ryder & Co v. Hedges

[1993] 1 EGLR 47

, and Egan Lawson Ltd v Standard Life Assurance Co

[2001] 1 EGLR 27

). The one case to which we were referred which involved a contract with the same form of words as the present case (Burney v The London Mews Co Ltd

[2003] EWCA Civ 766

) turned on its own very unusual facts.

20. Having said that, the judgment in one of these cases, John D Wood, gives guidance (discussed below) as to the meaning of “introduced” and, more generally, the judgments in those cases establish the following propositions. First, the term identified in Article 57 of Bowstead is “very readily” implied, especially in a residential consumer context, unless the provisions of the particular contract or the facts of the particular case negative it (see per Woolf LJ in Brian Cooper at 19H-J and per Longmore LJ in County Homesearch at para 11). Secondly, the main reason for implying the term is to minimise the risk of a seller having to pay two commissions (see per Longmore LJ County Homesearch at para 14). Thirdly, it is not entirely clear whether the test is “an effective cause” or “the effective cause” (see per Mummery LJ in Egan Lawson at 29M to 30B, a point also discussed in Article 57 of Bowstead). Fourthly, whether an agent was the effective cause is a question whose resolution turns very much on the facts of the particular case (see e.g. per Nourse LJ in John D Wood at 25H and per Mummery LJ in Egan Lawrence [sic] at 29L). Fifthly, while two commissions are to be avoided, there will be cases where the terms of the relevant contracts and the facts compel such a result (as in Brian Cooper and County Homesearch). Sixthly, where the term is implied, the burden is on the agent seeking the commission to establish that he was the effective cause (see per Staughton LJ in Chasen Ryder at 28G).”

[83]Mr. Deacon took me through the decisions in Cobbs Property Services v. Liddell-Taylor

[1990] 1 EGLR 49

; Chasen Ryder & Co v. Hedges

[1993] 1 EGLR 47

; Egan Lawson Ltd. v. Standard Life Assurance Co.

[2001] 1 EGLR 27

; Lordsgate Properties Ltd. v. Balcombe

[1985] 1 EGLR 20

; Burney v. The London Mews Co. Ltd.

[2003] EWCA Civ 766

; Bow’s Emporium Ltd. v. A. R. Brett & Co. Ltd.

(1927) 44 TLR 194

; Taplin v. Barrett

(1889) 6 TLR 30

; Robert Drummond v. Mangles

[1981] 2 EGLR 31

; Chesterfield & Co v. Zahid

[1989] 2 EGLR 24

; John D Wood & Co v. Dantata

[1985] 2 EGLR 23

; and Lewis v. Calder (1957) 170 EG 5. However, it is not necessary for the purposes of this judgment to refer to any of the passages in any of those judgments to which my attention was drawn by Mr. Deacon. For present purposes it is enough that it was common ground that, to be entitled to the commission claimed in this action, Glentree had to be the, or an, effective cause of the sale of Silverwood to Mr. Ibrahim; that, as Lord Neuberger pointed out in the passage from his judgment in Foxtons which I have quoted, “whether an agent was the effective cause is a question whose resolution turns very much on the facts of the particular case”; and, as he also said, ibid, “the burden is on the agent seeking the commission to establish that he was the effective cause”.

[84]Quite simply, on the facts as I have found them to be, Glentree was not the, or an, effective cause of the eventual sale of Silverwood to Mr. Ibrahim. The evidence did not show, as Mr. Deacon submitted, that Mr. Ibrahim maintained a continuous interest in Silverwood after viewing it with Mr. Kramer on 3 March 2009. To the contrary, he almost immediately lost interest when his offer of £10,000,000 was rejected, and bought The Villa. His interest was subsequently revived by the, false, intelligence that Holbeton was prepared to sell Silverwood for £12,000,000. However, the real effective cause of the sale was that in discussion between Mr. Ibrahim and Mr. Ahmed it emerged that Holbeton was prepared to take The Villa in part-exchange for Silverwood, plus, as it first appeared £11,000,000. Glentree was not the first to make Mr. Ibrahim aware that Silverwood was available for purchase – that was Mr. Adenle-Samuels. After showing Mr. Ibrahim around Silverwood and acting as the conduit between Mr. Ibrahim and Mr. Ahmed in relation to the offer of £10,000,000 Glentree did exactly nothing in relation to encouraging Mr. Ibrahim to purchase Silverwood and it performed no role in the achievement of the eventual sale.

[85]In the course of his oral closing submissions Mr. Deacon submitted that, if I reached the conclusion which I have reached on the facts, nonetheless Glentree was entitled to the commission which it claimed because it showed Mr. Ibrahim round Silverwood and generated his interest in the property in the first place. For the reasons which I have explained, in my judgment that was simply not enough.

Conclusion

[86]In the result this action fails and is dismissed.

Cited in 1 later judgment

Glentree Estates Ltd v Holbeton Ltd 2011