“wants to agree his 35% entitlement of the pre-tax profits as a “Facilitation/Finder’s fee” before signing the contract with MDNL”
“I recall telling Richard that Bob would not agree to Moda having a share of the Angel Row profits. This would have been orally by telephone because Richard was in Cyprus; it is not recorded in an attendance note because as I explained above, I did not always do this given the nature of my relationship with Richard. I would have been well aware in any event of Bob’s views about the part B profits, because he and Bob were discussing the project and the parameters of their agreement frequently and then reporting back to me…”
“The “Developer’s Profit” shall, without limiting clause 1.1, be determined in accordance with paragraph 2 of Part A of Schedule 4 to the DA, but adding back to such profit any charges or other payments to any “Mortar Party” which are not reimbursement of, or which exceed, amounts paid by the Mortar Party to third parties under the DA, the Building Contract or the Agreement for Lease.”
“RM stated that the only expected outstanding payment after Completion (which will be 15 working days after practical Completion) will be the letting of Angel Row.”
“Charles [Fish] is part of Mortar and as part of that team he forms part of the service that I have paid for in the additional 15% profit sacrifice[emphasis added]”
“I refer to our telephone conversation on Tuesday morning and attach a revised contract. This includes a new clause 5.4. This is for your assurance because it was always the position that profit calculations should include costs and expenses and those are not limited by the budget but by the actual outcome of the development project.”
“The effect of this agreement is that Moda would give up a beneficial interest it has in some shares in Mortar Developments (Nottingham) Limited in exchange to a profit share agreement set out in the attached document based on a property development which is about to commence. … I cannot see any difficulties in the agreement from Moda’s point of view. In fact, the contractual right to a share of profits is in my view preferable to having a beneficial interest in the share capital of the company which would give uncertainty as to any return. The level of profit share which may be earned from this development is also very uncertain, but there is effectively no positive obligation on Moda to do anything in exchange for the profit share so I see no realistic downside.”
“I can confirm the rights of Moda equate to 35% of the development profit on the Odeon Project, after some fixes prior payments to both Moda and Mortar in respect of expenses discharged by them totalling circa£500,000 ”
“The figure does not include any reference to Schedule 4 Part B Angel Row Profit as this is firstly NOT part of the Modus [sic] agreement, and secondly, is still unlet at present. To be clear, Moda International is not a party to any proceeds relating to Part B – Angel Rows developer payment as per the Modus Agreement. Part B is specifically excluded.”
“2. You maintain that the deal agreed between Moda and Mortar was for all profit including the Part B profit so the agreement is wrong. You will seek rectification on the agreed intention. I will obviously give evidence on that including indications on the file. Having looked at the file, I confirm notes of a meeting with you on6 September 2012 (amongst other things) and longhand notes written on the development appraisal documents tend to support what you say, that, since there is reference to Angel Row on the development appraisal and the deal refers to all the profits. Thus there does seem to be a case for rectification. (emphasis added) That is probably the biggest point. The weakness is that the agreement is quite specific in referring to Part A of Schedule 4 to the Development Agreement.”
“I have told Bob in person that you maintain the contract does not reflect the intentions of the parties in relation to that letting and you intend to seek rectification of it. He did not give any indication that he accepts or denies this. He said that this right may yield a profit in the future, but there is no value in this right now…”
“The central issues in this claim are: a. What, if anything Mr Wilkinson and Mr Monk (acting on behalf of Moda and Mortar), agreed about the Part B profits; and b. (On the assumption that he did not agree that Mortar would keep all of the Part B profits) what they would have agreed had a draft of the Participation Agreement [PA] been put forward which asserted an entitlement by Moda to share the Part B profits.”
"The main tests needed to determine whether a witness is lying or not are, I think, the following, although their relative importance will vary widely from case to case: (1) the consistency of the witness's evidence with what is agreed, or clearly shown by other evidence, to have occurred; (2) the internal consistency of the witness's evidence; (3) consistency with what the witness has said or deposed on other occasions; (4) the credit of the witness in relation to matters not germane to the litigation; (5) the demeanour of the witness."
“In one of those conversations with Mr Wilkinson, where the agreement was reached between us increasing his share of profit from 25% to 35%, I also explained to Mr Wilkinson that I had arranged for myself (by which I meant through Mortar) a separate agreement in respect of the letting of the Angel Row unit.”
“Judge: If you had that arrangement with Anglo Irish, why didn't you just forget about this, the Angel Row 131. argument? A. (Inaudible). Judge: Why didn't you just walk away from Mr Wilkinson and just deal with Anglo Irish Bank? A. That is a question I have often asked myself, my Lord. I was very close to doing that. Judge: When you asked yourself, did you give an answer to the other party? A. I should have done it perhaps. I should have done it. Kaplan, the tenant, would have been quite happy – had spoken to 132. them -- we had stretched them going to 450 beds, they actually 133. wanted 400. It would have suited them. Planning wouldn't 134. have been an issue. We would have had to go back to planning. 135. We had the height and the massing. Judge: So, when you asked yourself the question, did you come up with no answers as to why you hadn't done it or what? 136. A. As the deal came together, right at the very end, I thought it best to carry on with what we'd got. And it was finally, it was -- the last piece of the jigsaw didn't come until literally New Year’s Eve. 137. Judge: What is the last piece of the jigsaw? 138. A. We had to get Park Plaza's bankers to sign off the 139. agreement, which was BlackRock at the time. And they 140. were -- he was on holiday. 141. Judge: So, if Mr Wilkinson had insisted on 142. the Angel Row part of the deal being all part of it, 143. without knowing the price in relation to Anglo Irish, 144. how can you say what would have happened? A. I know the price would have been considerably less. Considerably less. Far more than my having to share 145. 35 per cent of this deal. Judge: And the source for your knowledge is? A. My relationship with the bank. They trusted me because I had done a previous project with them.”
“I was very close to doing that…” “I should have done it perhaps” “I thought it best to carry on with what we’d got…”
“Q. There is no evidence whatsoever of anything on Mr Moore's file to say that he had a discussion with Mr Wilkinson to say that you had insisted upon Part B profits being excluded? A.Not that I had insisted, saying that I was very unhappy and would like them removing. I was not prepared to share them. Q. But you would have done, wouldn't you? A. I might have done. Q. You might have done, thank you. A. Who knows. MR BACON: Who knows.”
“53. Moda’s case on causation is that: a. Had such a term been included, Moda would have received the sum of£315,679.74 , being 35% of the Part B profits (see further below as to quantum) [1/2/16]. b. This is not a “loss of a chance” case because the Participation Agreement failed to reflect what had already been agreed [1/5/84]. c. If it is a “loss of a chance” case, Mortar would have agreed terms “at least” as favourable (i.e. the same 35% deal or better) [ibid]. a. Had such a term been included, Moda would have received the sum of£315,679.74 , being 35% of the Part B profits (see further below as to quantum) [1/2/16]. b. This is not a “loss of a chance” case because the Participation Agreement failed to reflect what had already been agreed [1/5/84]. c. If it is a “loss of a chance” case, Mortar would have agreed terms “at least” as favourable (i.e. the same 35% deal or better) [ibid]. 54. No alternative case has been advanced that Mortar might have agreed some different but lesser deal. Gateley will resist any attempt to introduce such a case by way of cross-examination.”
“33. Had the First Defendant discharged the duties it owed to the Claimant then: 33.1 The Claimant would have had a right to receive 35% of all the profits from the development of the Site, including the profits categorised as part B profits; … 33.4 Further or alternatively, the Claimant would have sought to negotiate with MDNL a more beneficial contractual arrangement which was as favourable to the Claimant as the situation following the Declaration of Trust, and/or alternatively which provided the Claimant with a contractual entitlement to a 35% share in profits of the development such that (at the very least) the Claimant would have received 35% of the profits relating to the lease of the property to Taco Ball; and/or alternatively at least more favourable than the effect of the Participation Agreement, read together with the Development Funding Agreement (and in the circumstances MDNL would have agreed to enter into a contract on those terms).” 33.1 The Claimant would have had a right to receive 35% of all the profits from the development of the Site, including the profits categorised as part B profits; … 33.4 Further or alternatively, the Claimant would have sought to negotiate with MDNL a more beneficial contractual arrangement which was as favourable to the Claimant as the situation following the Declaration of Trust, and/or alternatively which provided the Claimant with a contractual entitlement to a 35% share in profits of the development such that (at the very least) the Claimant would have received 35% of the profits relating to the lease of the property to Taco Ball; and/or alternatively at least more favourable than the effect of the Participation Agreement, read together with the Development Funding Agreement (and in the circumstances MDNL would have agreed to enter into a contract on those terms).”
“…the courts have developed a clear and common-sense dividing line between those matters which the client must prove, and those which may better be assessed upon the basis of the evaluation of a lost chance. To the extent (if at all) that the question whether the client would have been better off depends upon what the client would have done upon receipt of competent advice, this must be proved by the claimant upon the balance of probabilities. To the extent that the supposed beneficial outcome depends upon what others would have done, this depends upon a loss of chance evaluation. 21. This sensible, fair and practicable dividing line was laid down by the Court of Appeal in Allied Maples Group Ltd v Simmons & Simmons (a firm)[1995] 1 WLR 1602 , a decision which received surprisingly little attention in either of the courts below (although, in fairness, the trial judge cited another authority to similar effect: namely Brown v KMR Services[1995] 4 All ER 598 ). Allied Maples had made a corporate takeover of assets and businesses within the Gillow group of companies, during which it was negligently advised by the defendant solicitors in relation to seeking protection against contingent liabilities of subsidiaries within the vendor’s group. Allied Maples would have been better off, competently advised, if, but only if: (a) it had raised the matter with Gillow and sought improved warranties and (b) Gillow had responded by providing them. The Court of Appeal held that Allied Maples had to prove point (a) on a balance of probabilities, but that point (b) should be assessed upon the basis of loss of the chance that Gillow would have responded favourably. The Court of Appeal (Stuart-Smith, Hobhouse and Millett LJJ) were unanimous in that statement of legal principle, although they differed as to the outcome of its application to the facts. It was later approved by the House of Lords in Gregg v Scott, at para 11 by Lord Nicholls and para 83 by Lord Hoffmann. 22. The Allied Maples case was about the loss, due to negligence, of the opportunity to achieve a more favourable outcome in a negotiated transaction, rather than about the loss of an opportunity to institute a legal claim. But there is no sensible basis in principle for distinguishing between the two, and none was suggested in argument. In both cases the taking of some positive step by the client, once in receipt of competent advice, is an essential (although not necessarily sufficient) element in the chain of causation. In both cases the client will be best placed to assist the court with the question whether he would have taken the requisite initiating steps. He will not by the defendant’s breach of duty be unfairly inhibited in proving at a trial against his advisor that he would have done so, save perhaps where there is an unusual combination of passage of time and scarcity of other probative material, beyond his own unaided recollection.”
“18. Sometimes it is simply unfair to visit upon the client the same burden of proving the facts in the underlying (lost) claim as part of his claim against the negligent professional. This may be because of the passage of time following the occasion when, with competent advice, the underlying claim would have been pursued. Sometimes it is because it is simply impracticable to prove, in proceedings against the professional, facts which would ordinarily be provable in proceedings against the third party who would be the defendant to the underlying claim. Disclosure and production of relevant documents might be impossible, and the obtaining of relevant evidence from witnesses might be impracticable. The same departure from the practicable likelihood that the underlying claim would have been settled rather than tried is inherent in any such process of trial within a trial. 19. But none of this means that the common law has simply abandoned the basic requirement that a claim in negligence requires proof that loss has been caused by the breach of duty, still less erected as a self-standing principle that it is always wrong in a professional negligence claim to investigate, with all the adversarial rigour of a trial, facts relevant to the claim that the client has been caused loss by the breach, which it is fair that the client should have to prove.”
“1. The legal burden lies on the plaintiff to prove that in losing the opportunity to pursue his claim (or defence to counter-claim) he has lost something of value i.e. that his claim (or defence) had a real and substantial rather than merely a negligible prospect of success. (I say ´negligible' rather than ´speculative' - the word used in a somewhat different context in Allied Maples Group Limited v Simmons & Simmons[1995] 1 WLR 1602 - lest ´speculative' may be thought to include considerations of uncertainty of outcome, considerations which in my judgment ought not to weigh against the plaintiff in the present context, that of struck-out litigation.) 2. The evidential burden lies on the defendants to show that despite their having acted for the plaintiff in the litigation and charged for their services, that litigation was of no value to their client, so that he lost nothing by their negligence in causing it to be struck out. Plainly the burden is heavier in a case where the solicitors have failed to advise their client of the hopelessness of his position and heavier still where, as here, two firms of solicitors successively have failed to do so. If, of course, the solicitors have advised their client with regard to the merits of his claim (or defence) such advice is likely to be highly relevant. 3. If and insofar as the court may now have greater difficulty in discerning the strength of the plaintiff's original claim (or defence) than it would have had at the time of the original action, such difficulty should not count against him, but rather against his negligent solicitors. It is quite likely that the delay will have caused such difficulty and quite possible, indeed, that that is why the original action was struck out in the first place. That, however, is not inevitable: it will not be the case in particular (a) where the original claim (or defence) turned on questions of law or the interpretation of documents, or (b) where the only possible prejudice from the delay can have been to the other side's case. 4. If and when the court decides that the plaintiff's chances in the original action were more than merely negligible it will then have to evaluate them. That requires the court to make a realistic assessment of what would have been the plaintiff's prospects of success had the original litigation been fought out. Generally speaking one would expect the court to tend towards a generous assessment given that it was the defendants' negligence which lost the plaintiff the opportunity of succeeding in full or fuller measure…”
“In Stone Heritage His Honour Judge Hodge [QC] considered that the rationale for the distinction between claimants and third parties is that claimants can give evidence upon which a view can be taken but third parties are generally not before the court. This is a rationale which does not appear in any of the authorities. Judge Hodge appeared to think that this was the rationale based on public policy that Lord Hoffmann was propounding in Gregg v Scottbut, as has been pointed out, Lord Hoffmann does not provide us with the public policy ground that he may have had in mind. In any event Judge Hodge [QC]’s rationale is considered to be misconceived. In this whole area we are dealing with loss of a chance and this is so whether the chance lost is or is not dependent on the actions of a third party. There should be no difference between the various cases. No doubt where a third party’s acts are in issue and the third party is called upon to give evidence, this will assist the court in determining the strength, or the weakness, of the chance, which might lead to total recovery or a nil recovery, but there is no need for the court to apply the balance of probabilities test so as to have to decree a total, or else a nil, recovery where uncertain, despite the third party’s evidence, of how he would have acted. Moreover, it would be unfortunate if decisions should turn on the availability or otherwise of witnesses which would generally be fortuitous and could be tactically arranged.”
“31. However if, as was the present case, a witness is asked to consider a situation which was not covered by any policy or guidelines and which had not previously arisen in his experience, his evidence as to what he would have done in that situation may properly be regarded as speculative. He can do no more than speculate as to what he would have done in circumstances which he had never previously met. 32. Mr Cramp and Mr Tew were adamant that they would not have continued with the transaction. The judge, after considering their evidence, said this, at page 25 line 13 of his judgment: “I found these answers wholly unconvincing. They smacked of hindsight and of justification. They lacked all commercial reality. Having seen Mr Cramp and Mr Tew, and having read the documents I have no doubt that this loan of£1,266,000 would have been made even if the background with Oldrose had been spelt out …” 33. That were the seventh reason which the judge gave for his conclusion. In reaching that view the judge is not suggesting that Mr Cramp or Mr Tew are giving dishonest evidence. Rather, he is saying that he does not accept their assessment of how they would have reacted to a situation with which they were not in fact confronted. That is, to my mind, a conclusion which a judge who has seen and heard the witnesses is entitled to reach. He is not bound to accept that the witnesses would have done what they now say they would have done. He can test that against the circumstances as they actually were. And he can make his own assessment of what the person who he has seen and heard in the witness box would have been likely to do in those circumstances.”
“There is no doubt but that the judge was entitled to reject the confident assertion of Mr O'Brien that he would not have advised Wyko to seek the advice of counsel and the evidence of Mr Davidson that he would have relied upon the opinion of Mr O'Brien, provided that it was strongly maintained. It should be remembered that both of those witnesses were being asked to give evidence on the basis of hypothetical facts which had not in fact occurred. They were being asked to speculate. The judge was entitled to reject the fruit of that speculation since he, himself, was being asked to speculate and assess the loss of a chance.”
“The Judge will have to assess the Plaintiffs' loss on the basis of the value of the chance they have lost to negotiate better terms. This involves two elements: what better terms might have been obtained there may be more than one possibility and what were the chances of obtaining them. Their chance of obtaining some greater improvement, although significant, may be less good than the chances of obtaining some other lesser improvement. It will be a question for the Judge, on the basis of the evidence already adduced together with any further evidence which the parties place before him at the further trial, to make his assessment of the value of what the Plaintiffs lost.”
“In weighing up the lost chance, the court has to weigh up the small chance of a huge reward, the large chance of a medium reward, the small chance of a small reward, and the small chance of no reward (for example).”