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Approved Judgment - clients.squareeye.com
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Neutral Citation Number: [2011] EWHC 2525 (QB)<br />
IN THE HIGH COURT OF JUSTICE<br />
QUEEN'S BENCH DIVISION<br />
Before :<br />
Royal Courts of Justice<br />
Strand, London, WC2A 2LL<br />
Date: 6 October 2011<br />
THE HONOURABLE MR JUSTICE EADY<br />
- - - - - - - - - - - - - - - - - - - - -<br />
Case No: HQ10X01793<br />
Between :<br />
RICHARD BUTLER-CREAGH Claimant<br />
- and -<br />
AIDA HERSHAM Defendant<br />
Between :<br />
Case No: HQ11X01414<br />
CHERRILOW LIMITED Claimant<br />
- and -<br />
RICHARD BUTLER-CREAGH Defendant<br />
- - - - - - - - - - - - - - - - - - - - -<br />
- - - - - - - - - - - - - - - - - - - - -<br />
James Lewis QC, James Ramsden and James Weale (instructed by Devonshires) for<br />
Richard Butler-Creagh<br />
John Brisby QC, Tom Gentleman and James Knott (instructed by David Cooper & Co) for<br />
Aida Hersham<br />
Stephen Auld QC and Rachel Oakeshott (instructed by Grosvenor Law LLP) for Cherrilow<br />
Limited<br />
Hearing dates: 11-29 July 2011<br />
- - - - - - - - - - - - - - - - - - - - -<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this<br />
<strong>Judgment</strong> and that copies of this version as handed down may be treated as authentic.<br />
.............................<br />
THE HONOURABLE MR JUSTICE EADY
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Mr Justice Eady :<br />
Introduction<br />
Butler-Creagh v Hersham<br />
1. These cases were ordered to be heard together by Nicola Davies J on 14 April 2011,<br />
although the claim by Cherrilow Ltd against Mr Richard Butler-Creagh was begun<br />
almost a year after his claim against Ms Aida Hersham. Nevertheless, they have the<br />
factual background in <strong>com</strong>mon and there is considerable overlap in the issues to be<br />
resolved.<br />
2. The claims arise out of the purchase of a large property on the river at Henley-on-<br />
Thames called Fawley Court, which is thought to have been designed by Sir<br />
Christopher Wren and is situated in gardens attributed to Capability Brown. The<br />
purchaser was Cherrilow Ltd (a <strong>com</strong>pany incorporated in Jersey, for the purpose of<br />
this transaction, on 3 December 2008). The contracts were exchanged on 10<br />
December of that year and <strong>com</strong>pletion took place in April 2010. The vendors were<br />
the Marian Fathers, a religious group with charitable status which had owned the<br />
property since just after the Second World War. In accordance with obligations under<br />
the Charities Act, the trustees received outside professional advice throughout from<br />
Ms Alexa Beale, a solicitor, and from Mr Martin Conway, a property expert. He and<br />
his firm, Marriotts, had been appointed as independent surveyors pursuant to s.36(3).<br />
Both gave evidence at the trial.<br />
3. Cherrilow Ltd was created as a special purpose vehicle for the acquisition of the<br />
property at the instigation of Ms Hersham a few weeks after she had first been shown<br />
round the property on 19 October 2008 by Mr Butler-Creagh, who claimed at that<br />
time to have the benefit of an exclusivity arrangement with the Marian Fathers<br />
whereby he would be recognised as the sole purchaser. He now claims a fee of £5m<br />
from Ms Hersham on the basis that he permitted her to “step into his shoes” and<br />
obtain the benefit of his contract with the Marian Fathers. That forms the subjectmatter<br />
of the first claim. Mr Butler-Creagh brought no proceedings against Cherrilow<br />
and acknowledges that no contractual relationship exists between him and that<br />
<strong>com</strong>pany.<br />
4. Cherrilow began its action earlier this year claiming damages for deceit, or fraudulent<br />
misrepresentation, against Mr Butler-Creagh and seeks a declaration that it is not<br />
liable to him in the sum of £5m or any other sum. Mr Butler-Creagh denies any<br />
dishonesty on his part and challenges causation. He also contends that Cherrilow has<br />
suffered no loss. He counterclaims on the basis of quantum meruit or unjust<br />
enrichment, alleging that he is owed fees in respect of services rendered to Cherrilow.<br />
5. The trial took place over a three week period beginning on 11 July 2011. It was rife<br />
with allegations and cross-allegations of dishonesty, each side accusing the other inter<br />
alia of forging documents. Ms Hersham and Cherrilow have gone so far as to<br />
characterise Mr Butler-Creagh as a “confidence trickster” and a “middle man”<br />
fraudster. The dispute has given rise to a considerable amount of documentation and<br />
some 25 witness statements were prepared, although in the event 17 witnesses of fact<br />
and three experts were called. The essential issues, however, were reasonably<br />
straightforward.
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
The background to the claims<br />
Butler-Creagh v Hersham<br />
6. In summarising the factual background, it is necessary to begin before Ms Hersham<br />
became aware of the property and made her first visit in October 2008. In June of that<br />
year Mr Butler-Creagh made a successful bid to purchase the property in the sum of<br />
£22.5m. In that context, he made representations to the Marian Fathers to the effect<br />
that he was willing and able to fund the purchase of Fawley Court himself and that<br />
some funding had been made available, in principle, by the Bank of Ireland (falsely<br />
described as “my bankers”). That was a lie.<br />
7. He also presented them with what purported to be a reference from the same Bank,<br />
addressed “to whom it may concern”, stating that he was “good for” £25m. On any<br />
view, that was again simply untrue. Mr Butler-Creagh seemed to think that this was<br />
legitimate as it was only to give “<strong>com</strong>fort”. The reference itself is alleged to have<br />
been fraudulently created at Mr Butler-Creagh‟s instigation by a corrupt employee of<br />
the bank, which itself has given evidence to the effect that it has no record of the<br />
document and denies its authenticity. A senior bank employee provided written<br />
evidence, in particular, that no such letter would have been written on a general basis<br />
(“to whom it may concern”) or without the usual disclaimers based on Hedley Byrne v<br />
Heller [1964] AC 465. That evidence went unchallenged.<br />
8. It is quite obvious that the supposed reference is not genuine and that the contents are<br />
false. The person who prepared it was a former bank employee called Ms Sayeda<br />
Rafiq. She had apparently sent it from a (disused) Bank of Ireland fax number to Mr<br />
Butler-Creagh‟s then solicitor, Mr Osmond, for onward transmission to the Marian<br />
Fathers (through Mr Conway). Until trial, it had been anticipated that she would be<br />
called by Mr Butler-Creagh. When he was asked in cross-examination about the<br />
“reference”, he sought to direct any “flak” in her direction, by suggesting that<br />
counsel‟s questions should be put to her instead. That was the height of cynicism.<br />
Shortly after he left the witness box, the decision was made not to rely on her or make<br />
any other challenge to the Bank‟s evidence. Ms Rafiq was described by counsel as<br />
one of Mr Butler-Creagh‟s “cronies”, to whom he had lent large sums of money<br />
(giving rise to an obvious conflict of interest). That fell foul, not surprisingly, of the<br />
Bank‟s code of conduct for its employees. The terms on which such monies were lent<br />
are unclear. Being wholly improper, there was no documentation recording the<br />
payments.<br />
9. Mr Lewis QC canvassed the possibility that she might have misguidedly sought to do<br />
him a favour and supplied the reference without his connivance. I find that<br />
unpersuasive. It is highly unlikely that she would have used the phrase “good for<br />
£25m” without his prompting. At one stage, when interviewed by her employers, Ms<br />
Rafiq claimed that her signature on the document had been forged. I cannot decide<br />
whether that is so or not. All I need to say is that it was a fraudulent document put<br />
forward on Mr Butler-Creagh‟s behalf and with his knowledge.<br />
10. Mr Conway to an extent appears to have taken up the bogus “reference”, since he<br />
spoke to Ms Rafiq on 11 July 2008. She lied to him, saying that the Bank was “in<br />
principle very happy to provide finance to enable them to undertake the purchase”.<br />
11. Mr Butler-Creagh made a number of other misrepresentations at this time. He<br />
claimed in an email of 7 July 2008 that his money-lending business, known as
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
Mainstream, was valued at £40m. He later explained, in the course of crossexamination,<br />
that this could only be justified on the basis of what he called<br />
“potential”. He at least accepted that it was “slightly exaggerated”. He also claimed,<br />
without supporting evidence, that his home was valued at £4.5m, whereas there was<br />
actually a net equity value of about £1m. Furthermore, he stated that he had £2m in<br />
cash at the bank. That, of course, has a well understood meaning. It would have been<br />
nearer the truth to say that he and Mainstream had overdraft facilities of more than<br />
£700,000 in June 2008. Mr Butler-Creagh personally seems to have had an overdraft<br />
of £65,561. The position worsened over the next six months (a period of dramatic<br />
downturn in the property market and the economy more generally).<br />
12. Against this background, Cherrilow in closing submissions characterised Mr Butler-<br />
Creagh‟s conduct as an “abnegation” of the informal tender process carried out on the<br />
Marian Fathers‟ instructions:<br />
“It was a cynical attempt to take advantage of the Catholic<br />
charity and its difficult circumstances by someone who was<br />
looking to try and implicate himself in the transaction, falsely<br />
achieve a position of some „influence‟ and then, having done<br />
so, achieve some financial advantage for himself.”<br />
The bid he made was not genuine, in the sense that it was his intention, as he accepted<br />
in his witness statement, to negotiate the price downwards once he had succeeded in<br />
the tender process.<br />
13. Having put in the highest bid for the property, Mr Butler-Creagh set about negotiating<br />
with the Marian Fathers to obtain an exclusivity agreement, ultimately dated 1 August<br />
2008, in the hope that this could be exploited if a prospective purchaser emerged who<br />
had the necessary funds available. It is clear from the evidence that the Marian<br />
Fathers and their advisers went along with this proposal only with reluctance and<br />
subject to strict time limits. Accordingly, the agreement imposed on Mr Butler-<br />
Creagh an obligation to proceed with the conveyancing process “as soon as is<br />
reasonably practical” and, if he should decide not to proceed, then to inform the<br />
Marian Fathers immediately (whereupon the agreement would lapse). He also<br />
acknowledged “a mutual duty of good faith”.<br />
14. Meanwhile, quite cynically, he instructed his solicitor, Mr Will Osmond, to “sit tight”<br />
on the sale transaction while he found a suitable candidate. That is confirmed in an<br />
email of 18 August 2008 and again on 7 October, when he gave instructions to<br />
Osmonds to stop work until they heard from him. (Mr Osmond was also<br />
characterised as a “crony”. He too had been lent sums of money by Mr Butler-<br />
Creagh. As in the case of Ms Rafiq, the terms of such arrangements are obscure, as<br />
they appear to have been undocumented. That is a remarkable state of affairs, having<br />
regard to Rule 3.01(2)(b) of the Solicitors‟ Code of Conduct and paragraphs 39 and<br />
40 of the relevant guidance.)<br />
15. The exclusivity deal was, however, limited in point of time, originally expiring on 19<br />
September 2008. It was later extended to 10 October, again with reluctance. Mr<br />
Conway, who was seeking to protect the best interests of the Marian Fathers in<br />
accordance with the Charities Act, had <strong>com</strong>e to the conclusion that the<br />
disadvantageous market conditions justified that course. He confirmed in his witness
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
statement that “ … as long as matters moved forward positively, the Marian Fathers<br />
intended to progress a sale with [Mr Butler-Creagh] and were not seeking to remarket<br />
the property” (emphasis added). That accords with the evidence of Father Jasinski.<br />
This was so even after the expiry of the exclusivity agreement. Mr Conway and<br />
Father Jasinski were unaware at the time that Mr Butler-Creagh was simply delaying<br />
matters for his own purposes.<br />
16. At all events, the agreement had expired prior to his meeting with Ms Hersham on 19<br />
October. Despite this, the primary basis of his claim against her is that she was to pay<br />
him a fee of £5m, as agreed orally on the day of their first meeting, in return for<br />
“stepping into his shoes” so as to take advantage of his supposed right of exclusivity<br />
(by then, as I have said, apparently expired).<br />
17. In closing submissions, the nature of what Mr Butler-Creagh had to offer was<br />
described by his counsel in these terms. It is said that he “was in a position to allow<br />
any third party to by-pass entirely [the Marian Fathers‟] tendering process or … to<br />
„jump to the top of the queue‟ without having to <strong>com</strong>pete with any other bidder”. I<br />
find this difficult to understand, especially as the bidding process had been <strong>com</strong>pleted<br />
in the previous summer. It is not clear to me what “queue” is being referred to. It<br />
was also said that “ … having established credibility with the Marian Fathers, [he]<br />
was able to and did present Mrs Hersham to the Marian Fathers [as] a suitable<br />
purchaser”. I do not believe that this would be <strong>com</strong>prehensible to the Marian Fathers<br />
or their advisers as bearing any relation to their contractual arrangements.<br />
18. It was confirmed in evidence by Father Jasinski that the only reason why the Fathers<br />
were interested in treating with Mr Butler-Creagh was that he appeared to be making<br />
a better offer than anyone else. Their decision had been to obtain the best price<br />
possible. They were unaware at the time that he was not in any position to make the<br />
purchase. The truth was, therefore, that he had no special rights or status in relation to<br />
the property. He had a contract to purchase (which he could not himself fulfil). There<br />
simply were no “shoes” to step into. Yet Mr Butler-Creagh admitted in his Cherrilow<br />
defence that he had actually represented that he had “the exclusive right to purchase<br />
Fawley Court with the consequence that it could not be purchased by any third party<br />
without [his] involvement”.<br />
Was there an oral agreement concluded on 19 October 2008?<br />
19. Ms Hersham denies that she entered into any such agreement. She described the<br />
suggestion as both “absurd” and “a categorical lie”. There was no reason for her to<br />
contract with Mr Butler-Creagh at all. She could have dealt directly with the Marian<br />
Fathers. Anyone knowing the basic facts would have been wholly irrational to pay<br />
Mr Butler-Creagh £5m, or any other sum, to “step into his shoes” for a number of<br />
reasons:<br />
i) The exclusivity agreement had expired nine days before she met him.<br />
ii) When still operative, it had required him to notify the Marian Fathers<br />
immediately if he decided not to purchase Fawley Court himself.
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
iii) They would not have countenanced any right on his part to pass on any such<br />
exclusivity to a third party without their consent – whether for a fee or<br />
otherwise.<br />
Against that background, even if she had been unwise enough to promise him £5m,<br />
the agreement could have been set aside for misrepresentation. There would, in any<br />
event, be no identifiable consideration for the £5m. Yet she was unaware of these<br />
matters at the time, having been presented like the Marian Fathers with a false picture.<br />
20. Any reasonable onlooker is thus left wondering how Mr Butler-Creagh could possibly<br />
pursue a claim against Ms Hersham and on what legal basis. By the time he went into<br />
the witness box, his stance was un<strong>com</strong>fortably straddling two alternatives. His<br />
primary case was that Ms Hersham had agreed to pay £5m on the first day they met,<br />
in order to “step into his shoes”, accepting what he said at face value and not taking<br />
the elementary precaution of checking whether he had anything to give in exchange.<br />
What he actually said was:<br />
“The discussion was quite brief. I was asked what I wanted for<br />
her to take over my position, to step into my shoes and<br />
effectively walk away from it, and that‟s it. I put my fee<br />
forward, which was £5m and it was never negotiated.”<br />
From time to time, however, his case metamorphosed into a claim that Ms Hersham<br />
had agreed to pay him £5m to “facilitate” the sale to her by the Marian Fathers or to<br />
“facilitate” <strong>com</strong>pletion (whatever that means). An attempt was made in his closing<br />
submissions to crystallise what this term was supposed to convey, namely that Mr<br />
Butler-Creagh would take the following steps:<br />
i) relinquish the opportunity to purchase Fawley Court himself;<br />
ii) nominate a special purpose vehicle suitable to Ms Hersham to proceed with<br />
the sale;<br />
iii) satisfy the vendors as to the “suitability” of the vehicle (and those individuals<br />
behind it);<br />
iv) “secure” the exchange of contracts on behalf of the relevant corporate vehicle;<br />
v) “ensure” that <strong>com</strong>pletion took place.<br />
Another gloss put on the case was that there was “an agreement which (at its core)<br />
involved [Mr Butler-Creagh] transferring his position as preferred purchaser to Mrs<br />
Hersham for which he would be paid his fee upon <strong>com</strong>pletion”. It was also submitted<br />
that there is no requirement in law “for every baroque detail of a contract to be<br />
stipulated in order for that contract to be binding”. What matters is the “clear<br />
intention of the parties”: see e.g. Chitty on Contracts (30 th edn) at 2-113 to 2-114. I<br />
still remain unclear what Mr Butler-Creagh contends that the intention was. Was he<br />
“to walk away from it” or “to ensure that <strong>com</strong>pletion took place”?<br />
21. My first task is to decide whether there was any such agreement. Is it possible to<br />
discern any “clear intention” at all? This depends on assessing the evidence of the
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
witnesses concerned, such contemporaneous documentation as there is and, also,<br />
where the inherent probabilities lie.<br />
22. It seems implausible that anyone would agree to pay £5m pursuant to an oral<br />
agreement, without making any enquiries as to the validity of Mr Butler-Creagh‟s<br />
claims. He has therefore a considerable burden to discharge.<br />
23. It is apparent from his solicitor‟s attendance note of 15 October 2008 that Mr Butler-<br />
Creagh had been hoping to lure what Mr Auld called a “rich punter” into a deal in the<br />
mistaken belief that he had a right of exclusivity. He was also intending to persuade<br />
the person concerned that it was necessary to exchange contracts quickly, so as to<br />
avoid him or her discovering that the exclusivity arrangement, whatever it was worth<br />
(if anything), had already expired. Thus, if a sense of urgency could be engendered<br />
with that objective in mind, the prospective purchaser might skip sensible enquiries.<br />
24. The note was prepared by a Mr Paul Flaherty of Osmond & Osmond and contained<br />
the following remarkable passage:<br />
“RBC explained that he had two potential purchasers viewing<br />
Fawley Court this afternoon and tomorrow, one from Dubai<br />
and one from Aberdeen. Both potential purchasers believe that<br />
he has an option to purchase the land.<br />
Explained that possible they will be able to determine that he<br />
has no option, RBC appreciated this and explained that it may<br />
be necessary to exchange therefore relatively quickly should<br />
one of the potential purchasers make a firm offer.”<br />
It is obvious that Mr Butler-Creagh, supported by the “fee earner”, was quite prepared<br />
to lead a potential purchaser up the garden path into exchanging contracts on a false<br />
premise. They had to “get a move on” before the deception was discovered. As it<br />
happens, it was the only typed attendance note on the file. This may well signify a<br />
degree of concern on Mr Flaherty‟s part that the client was pushing them towards<br />
unprofessional conduct. Mr Osmond accepted that Mr Flaherty kept him informed.<br />
(It is not surprising in these circumstances that the document was held back and only<br />
disclosed very late in the day. It was even then omitted by Mr Butler-Creagh‟s<br />
current solicitors from the trial bundle. An explanation for this is still awaited.) It is<br />
Mr Butler-Creagh‟s case now that the expiry of the exclusivity agreement made no<br />
difference and his representations as to his status were justified by the contract of<br />
purchase by itself; that he did not need an exclusivity agreement because he had an<br />
“exclusive contract of sale” and “was in an exclusive position to proceed as<br />
purchaser”. If that was his view, it is difficult to see why he felt the need to negotiate<br />
the exclusivity contract in addition and later extended it.<br />
25. It seems that 15 October was a busy day. This was the date on which another of Mr<br />
Butler-Creagh‟s associates, Mr Damien Kearsley, signed off his appraisal of the<br />
development of Fawley Court as an hotel. It is possibly from this that some of the<br />
misrepresentations derive. Specifically, there was the claim that such a change of use<br />
was possible (subsequently shown to be quite unrealistic); the projection that the task<br />
could be <strong>com</strong>pleted in 26 months; and that it would yield a profit of £32m. The<br />
purpose of this was obviously to lure prospective investors with at least the superficial
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
appearance of a carefully assessed business plan and to tantalise them with the<br />
prospect of an absurdly high return. How it came to be “<strong>com</strong>missioned” and whether<br />
it was paid for is unknown, but its purpose is clear.<br />
26. Two or three days later, Ms Hersham emerged as an another prospective “punter”<br />
following an introduction from a Mr Ted Dadley, who happened to mention her name<br />
to Mr Butler-Creagh in a public house in Henley on the evening of Friday, 17<br />
October. (He did rather well out of it, receiving an introducer‟s fee of some £65,000.)<br />
The plan remained unchanged. She too was to be deceived into thinking that Mr<br />
Butler-Creagh still had an exclusivity, or “lock out”, agreement which meant that she<br />
had to deal with him. The intention was to “rip off” both her and the Marian Fathers<br />
(although I suspect that in Ms Hersham he had met his match). It is highly likely that<br />
he would have shown her the recently acquired Kearsley appraisal as part of his “sales<br />
pitch” at the earliest opportunity. He certainly accepts that he faxed it to her, but not<br />
until an email of 29 November. I cannot be satisfied, however, to the required<br />
standard that it was actually produced at their first meeting.<br />
27. Mr Butler-Creagh‟s ploy was to be facilitated by telling Ms Hersham falsely that she<br />
could not use her own solicitor, Mr Edward Landau, but that it was necessary for her<br />
to use Osmonds. This clearly was to the advantage both of Mr Butler-Creagh and of<br />
Mr Osmond, who was well aware (as he admitted in the witness box) that “Ms<br />
Hersham could have gone direct to the vendor”.<br />
28. This device enabled Mr Butler-Creagh to conceal the truth about the exclusivity<br />
agreement. Osmonds kept hidden from Ms Hersham for 18 months the content of the<br />
document, the limited effect of its terms and, more importantly, the fact that it had<br />
expired before she even came on the scene.<br />
29. As for the attendance note of 15 October, that was only disclosed to Cherrilow on 3<br />
June 2011. By what Mr Osmond characterised as an “oversight”, no client retainer<br />
letter was sent to either Ms Hersham or Cherrilow prior to the exchange of contracts<br />
in December 2008 (cf. Rule 2.02 of the Code of Conduct). It was not just a question<br />
of omission, however, since in a letter to Mr Landau of 21 October Mr Osmond<br />
positively misled him. He purported to enclose “a <strong>com</strong>plete bundle of all<br />
documentation relating to [Mr Butler-Creagh‟s] purchase of Fawley Court”. It was<br />
manifestly not <strong>com</strong>plete, since it did not contain the expired exclusivity agreement.<br />
30. It is obvious that Mr Butler-Creagh had hoped and intended to reduce any<br />
arrangement with Ms Hersham into writing. Several drafts emerged, none of which<br />
was ever agreed or signed. Moreover, they contained various terms he hoped to have<br />
incorporated which had never been mentioned on 19 October. These included, for<br />
example, provision for a guarantee or indemnity. This tends to confirm, in my<br />
judgment, that no concluded oral agreement had been reached on that date.<br />
31. The drafting process is quite revealing. Mr Butler-Creagh wasted no time. On the<br />
day after his meeting with Ms Hersham, he gave instructions to Mr Osmond. They<br />
were not recorded in an attendance note. Mr Osmond thereafter set about drafting a<br />
“deed of <strong>com</strong>mission and indemnity” with a view to Ms Hersham <strong>com</strong>mitting herself<br />
to its terms. A rather shadowy figure called Mr Rangeley was involved in advising on<br />
the matter. He was a struck off solicitor (or, as he preferred, “non-practising”). He is
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
an associate of Mr Osmond, although it is unclear whether he was remunerated for his<br />
contribution and, if so, by whom.<br />
32. Mr Osmond was asked whether he had decided upon a deed being necessary because<br />
there was no consideration for the £5m payment. This proved, however, to be an<br />
unduly sophisticated approach. No clear answer was forth<strong>com</strong>ing. The document<br />
went through various drafts and was never in the end signed. But it was plainly<br />
intended to deceive Ms Hersham. Mr Butler-Creagh, Mr Osmond and Mr Flaherty<br />
knew perfectly well that the “lock out” deal had expired. Nonetheless, it contains the<br />
following introduction:<br />
“In consideration of the Introducer allowing the Purchaser to<br />
<strong>com</strong>plete the purchase of the Property in his place, and of the<br />
costs incurred to date by the Introducer, Mrs [X] agrees<br />
covenants and undertakes to,<br />
a. pay to the Introducer a total fee of £5,000,000.00 (five<br />
million pounds) (“the Introducer Fee”), such sum to be paid<br />
in full on exchange of the Contract to the Introducer; and<br />
b. to make good to the Introducer on demand and to keep the<br />
Introducer fully indemnified against all liabilities, damages<br />
or losses, awards of damages or <strong>com</strong>pensation, penalties,<br />
costs, disbursements and expenses arising from any claim,<br />
demand, action, or proceedings of any kind whatsoever that<br />
the Introducer may have or sustain or for which the<br />
Introducer may be<strong>com</strong>e liable either directly or indirectly as<br />
a result of having entered into the personal guarantee in the<br />
Contract.”<br />
33. This was a dishonest document. Not only had Mr Butler-Creagh no right or locus to<br />
“allow” Ms Hersham to “<strong>com</strong>plete the purchase of the property in his place”; but<br />
there was also a recital stating that it was a term of the contract that he should provide<br />
a personal guarantee in respect of the obligations of the purchaser. This was<br />
presumably another device for insinuating himself into the arrangements, since he was<br />
hardly in a position to take on such a <strong>com</strong>mitment. Also, somewhat optimistically,<br />
there was to be an exclusion of all liability, including in respect of any representations<br />
and warranties emanating from Mr Butler-Creagh. In the same spirit, once the £5m<br />
“introducer fee” was paid on exchange of contracts, it was not to be repayable for any<br />
reason.<br />
34. It was also to be an entire contract (again quite inconsistent with there being a<br />
concluded oral agreement on 19 October).<br />
35. As I have said, this came to nothing. One of many ironies in the case is that the bill<br />
for all this manoeuvring, albeit intended to pull the wool over the eyes of Ms Hersham<br />
and any corporate vehicle created for the purpose, was ultimately paid by none other<br />
than Cherrilow. Yet the deed was never even shown to Ms Hersham before April<br />
2010. It too had been omitted from “the <strong>com</strong>plete bundle” sent to Mr Landau on 21<br />
October 2008. Mr Osmond was cross-examined in a little detail about the stark<br />
conflict of interest involved but, although he had to acknowledge it in the witness box,
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
he claimed not to have spotted it at the time (cf. Rule 3.01 of the Code of Conduct).<br />
That is not credible.<br />
36. Finally, although she may be naïve in some respects, I am satisfied that Ms Hersham<br />
is not so stupid or gullible as to <strong>com</strong>mit herself to paying £5m on such a flimsy basis.<br />
37. It is quite clear that Mr Butler-Creagh had a scheme in mind as soon as he knew the<br />
property was available for sale. He could not possibly acquire it on his own, either in<br />
person or through a corporate vehicle of his own, and therefore planned, as the 15<br />
October attendance note amply demonstrates, to bring in someone else to provide the<br />
funding. He was then to take a “turn” or “<strong>com</strong>mission” by placing himself between<br />
that person and the Marian Fathers. He saw the opportunity to make £5m for doing<br />
effectively nothing. In order to achieve that, he would have to deceive both the<br />
Marian Fathers, by giving them the false impression that he had the means and the<br />
intention to acquire the property himself, and the hapless “punter” by pretending to<br />
him or her that he was a necessary intermediary. In truth, and in law, he had no other<br />
role than as an “officious bystander”.<br />
38. Mr Butler-Creagh has thus failed to establish any such concluded agreement, as<br />
pleaded, on 19 October 2008. It was said to have been reached during a telephone<br />
conversation on that date, at some point following the visit to Fawley Court and a<br />
discussion in the Hotel du Vin in Henley. Such telephone records as have been<br />
provided, however, do not corroborate any such call. I need to <strong>com</strong>e to conclusions,<br />
however, as to the evidence advanced on this issue at trial on Mr Butler-Creagh‟s<br />
behalf.<br />
39. I was asked to accept that the deal was clinched largely on the basis of Mr Butler-<br />
Creagh‟s own evidence. I am quite unable to do so. He told lie after lie in his<br />
dealings with the Marian Fathers and Ms Hersham. He even lied in his witness<br />
statements before the court, claiming for example that the Bank of Ireland had<br />
previously provided finance for him in respect of other property developments. This<br />
he sought to explain away in court as a “mistake”. He was an unusual witness. He<br />
gave the impression of being quite confident and self-assured. Yet it emerged very<br />
clearly from his two days and more of cross-examination that he lives in a parallel<br />
universe where truth and falsehood imperceptibly merge, the one into the other, he<br />
being quite insensitive to the distinction between them.<br />
40. In his own mind, Mr Butler-Creagh justifies such behaviour as being necessary to<br />
survive in what he described as “a <strong>com</strong>mercial world out there”. Indeed, he accepted<br />
in cross-examination that he was “not too scrupulous” in what he was prepared to say<br />
to obtain business opportunities. In those circumstances, anyone would be unwise to<br />
place reliance on what he says without independent corroboration. I reject without<br />
hesitation his evidence that an oral agreement was reached on 19 October 2008.<br />
41. In this context I need to address the evidence of Mr Dadley, who was described by Mr<br />
Lewis as “the only independent witness”. He was also present at the Hotel du Vin on<br />
19 October, along with Ms Hersham, her partner Mr Patrick Sieff and Mr Butler-<br />
Creagh himself. He has a background in property and is “currently involved in an<br />
international property development project”, which he is unable to specify further on<br />
grounds of confidentiality. He seems to have been on friendly terms for some time<br />
with Ms Hersham. He said that when he used to ring Ms Hersham or Mr Sieff he
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
would often introduce himself as “Uncle Ted” as just “a bit of light-heartedness”. She<br />
claimed that he is known locally as Tesco Ted (reflecting perhaps his former<br />
employment with that <strong>com</strong>pany). After a time, however, they appear to have fallen<br />
out.<br />
42. Mr Dadley claims to have heard Mr Butler-Creagh mention that he wanted £5m at the<br />
meeting. This Ms Hersham vehemently denies. In the witness box, Mr Dadley came<br />
across as a rather truculent and dogmatic figure. It was put to him in crossexamination<br />
that he was confusing the meeting of 19 October with the conversation in<br />
the Unicorn two days earlier, when Mr Butler-Creagh might well have told Mr Dadley<br />
of his aspiration, having won the tender, to make a “turn” of £5m on the deal. But Mr<br />
Dadley would have none of this.<br />
43. In the course of cross-examination, certain matters were put to him as having been<br />
mentioned at the Hotel du Vin. In particular, it was suggested that Mr Butler-Creagh<br />
had on that occasion made certain “representations” to Ms Hersham (for example, as<br />
to the need for his involvement because of the exclusivity agreement). It is clear from<br />
the defence that these representations were admitted as having been mentioned on that<br />
occasion. It was thus uncontroversial. Yet Mr Dadley apparently had no recollection<br />
of them. In those circumstances, I cannot confidently rely on his recollection or<br />
accept his account in this respect. I prefer Ms Hersham‟s evidence that the figure of<br />
£5m was not mentioned. She said with some feeling that she would certainly have<br />
remembered such a suggestion, as it would have been exorbitant (representing a<br />
wholly disproportionate percentage of the purchase price). Mr Sieff too might have<br />
been expected to sit up and take notice if such a “fee” were mentioned, but he appears<br />
not to have heard it either.<br />
44. In any event, Mr Dadley does not purport to have witnessed the critical telephone<br />
conversation during which it is claimed that the contract for a £5m payment was<br />
actually entered into. What he said, therefore, is ultimately of no assistance in<br />
resolving the central issue.<br />
45. Mr Butler-Creagh seeks to buttress his claim by reference to two subsequent<br />
documents. These are said to be relevant in two ways. First, they are relied upon to<br />
discredit Ms Hersham and thus incline the court to reject her oral evidence and, I<br />
assume, specifically as to the Hotel du Vin conversation. Secondly, they are supposed<br />
to confirm the subsistence of the pleaded oral agreement.<br />
46. There is a letter purporting to be dated 18 December and signed by Ms Hersham. It is<br />
in these terms:<br />
“This is to confirm our agreement with regards to Fawley<br />
Court, Henley. As per our agreement you will receive a fee of<br />
£5,000,000 upon <strong>com</strong>pletion on April 6 th 2010. Should<br />
<strong>com</strong>pletion happen prior your fee will correspond with any<br />
nominated <strong>com</strong>pletion date.<br />
The fee is for all your services for enabling the purchase and<br />
your continued involvement with the project and all the<br />
Planning issues.
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
We would like to thank you at this point for all your assistance<br />
and invaluable input in this matter.”<br />
Butler-Creagh v Hersham<br />
47. It is <strong>com</strong>mon ground that an email in these terms was created on or about 7 March<br />
2009 at Mr Butler-Creagh‟s request. She says that she typed it at No 20 Eaton Square<br />
that morning at his dictation. She sent it by email twice, once without and the second<br />
time with her address. He wanted to give some pressing creditors “<strong>com</strong>fort”, by way<br />
of assuring them that he was owed £5m and that it was due to be paid at some<br />
identifiable point in the medium term. Ms Hersham was willing to go along with this,<br />
as Mr Brisby QC recognised, somewhat “unwisely”. That was, of course, a<br />
euphemism.<br />
48. At all events, Ms Hersham appears to have adopted her little-used maiden name and<br />
dated the email 18 December – when it so happened that she had been out of the<br />
country. This was with a view to making the document “deniable” later. Ms<br />
Hersham says that this was Mr Butler-Creagh‟s idea and indeed that he dictated the<br />
contents to her. It may be that she regrets having allowed herself to be talked into<br />
this, but she must have known that it would be used to mislead others. No such<br />
agreement had been entered into on 18 December. It may not reflect much credit on<br />
Ms Hersham, but it does not enhance the merits of Mr Butler-Creagh‟s claim either,<br />
since that depends upon establishing an oral agreement two months earlier.<br />
49. She also says that he promised her that the document would not be used as an<br />
admission against her. This is one of the many disputed factual allegations in the<br />
case. Whichever version is true, however, it does not assist Mr Butler-Creagh for at<br />
least two reasons. First, the purported letter differs in its terms from the pleaded oral<br />
agreement. Secondly, since it is a bogus document, it is capable of confirming<br />
nothing. It was created for a particular purpose and has no greater significance.<br />
Despite assuring Ms Hersham that he would not use the document against her, since<br />
she was providing him with it purely as a favour, he nonetheless consulted Mr<br />
Osmond with a view to doing just that. Mr Osmond gave such advice uninhibited by<br />
the fact that Cherrilow was his client (and indeed paying the bill). It is possible that<br />
Mr Butler-Creagh was actually under no particular pressure from creditors in March<br />
2009 and that his primary or even sole purpose in obtaining the document was to use<br />
it against Ms Hersham to support his claim to £5m.<br />
50. At some point it appears that the content of the email might have been cut and pasted<br />
into a hard copy letter which purports actually to have been signed by Ms Hersham<br />
(again using her maiden name). On the other hand, on close examination, the two<br />
versions are differently set out and have different font sizes and punctuation. In the<br />
witness box Mr Butler-Creagh said he collected this version from Ms Hersham on<br />
Sunday, 8 March, although earlier he had said it was on the Saturday. She does not<br />
accept this and claims to have been on her way to Henley at the time. It remains<br />
something of a mystery as to when and by whom the signed version was created. At<br />
all events, the experts were unable to find that version on any of Ms Hersham‟s<br />
<strong>com</strong>puters.<br />
51. I should add that Ms Hersham‟s case on this document was for a long time rather<br />
obscure. Mr Lewis submitted that she did not deny outright that she signed the<br />
document until she was in the witness box. Hitherto she had adopted a policy of non-
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
admission and/or putting to proof. It is fair to say that in her witness statement she<br />
put it in these terms:<br />
“The letter carries what is said to be my signature against my<br />
maiden name, Aida Dellal. I have no recollection of printing or<br />
signing this letter and do not believe it is my signature.”<br />
That is close to a denial but still rather cautiously worded. Earlier, however, in her<br />
first witness statement of 19 January 2011, she stated unequivocally:<br />
“I have no recollection of ever having seen this letter before or<br />
signing it in this way. My normal signature is Aida or Aida<br />
Hersham. I have not signed the name Dellal since my marriage<br />
over 30 years ago.”<br />
That seems to me to amount to a clear denial that she signed the document.<br />
52. There was evidence from handwriting experts but this was inconclusive. I am told<br />
that their analysis was inhibited by an unwillingness on Ms Hersham‟s part to provide<br />
further samples for <strong>com</strong>parison. It emerges from the correspondence, however, that<br />
this was not simply for the purpose of obstruction, but was explained on the basis that<br />
the maiden name had not been used for many years and that relevant samples would<br />
therefore not be available. Either she signed it, under considerable pressure to help<br />
Mr Butler-Creagh out with his creditors, or he caused it to be forged. Neither<br />
scenario reflects much credit on the participants. It has no significance, however, for<br />
the out<strong>com</strong>e of the case.<br />
53. Incidentally, whatever else may be said about this document, it does rather suggest<br />
that Ms Hersham was still, as at 7 March 2009, labouring under the misapprehension<br />
that Mr Butler-Creagh had some relevant qualifications or expertise to equip him for<br />
the planning travails that appeared to lie ahead.<br />
54. Mr Ted Dadley <strong>com</strong>es back into the story over a year later, reliance being placed upon<br />
him, once again, to confirm the existence of the pleaded agreement for £5m. He<br />
referred to a telephone conversation on 17 April 2010. He claims that Ms Hersham<br />
asked him on that date if he thought Mr Butler-Creagh “would go for £2m”. Ms<br />
Hersham denied this version of the conversation and recalled that Mr Dadley had told<br />
her at the outset that he had had “a few sherbets”. The suggestion was, I believe, that<br />
his recollection in those circumstances might not be wholly dependable. At all<br />
events, he was ready to stick up for Mr Butler-Creagh and says that he told her “the<br />
fee had always been £5m from the outset and that [he] believed this was set out in<br />
some agreement between her and [Mr Butler-Creagh]”. In this respect he was, as I<br />
have now found, in error.<br />
55. Even if Ms Hersham did ask Mr Dadley if Mr Butler-Creagh “would go for £2m”,<br />
that would be consistent with her contemplating paying him to go away. By this time<br />
she may well have wished to be shot of him. It does not necessarily connote on her<br />
part an acceptance that she had already <strong>com</strong>mitted herself to pay £5m.<br />
56. Mr Dadley then claimed that she had conceded to him that she had provided Mr<br />
Butler-Creagh with a document, but only to enable him to show to a third party. She
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
then read out to him, during the conversation, the letter backdated to 18 December.<br />
She says that the conversation went rather differently and concerned “an Arab” who<br />
was supposed to have offered £2m. That is how the figure came to be mentioned on<br />
her account. It matters not, however, since, even if she did read the letter out to Mr<br />
Dadley, it remains in my judgment of no contractual significance.<br />
57. The other document said to support Mr Butler-Creagh‟s case is a so-called letter of<br />
termination apparently dated 22 July 2009 – but said by him to be a forgery created on<br />
21 July 2010 (well after his claim was launched in April of that year). Ms Hersham<br />
says that it was handed to him at some point between 22 and 28 July 2009. It is in<br />
these terms:<br />
“Dear Richard,<br />
As a result of the considerable time lost on the project at<br />
Fawley Court, the ability to gain planning consent prior to<br />
<strong>com</strong>pletion has definitely been lost. Thank you for offering to<br />
pay back Tim Mullany‟s fees, which have been incurred.<br />
However, the burden of financing the purchase is now very<br />
much a reality and the prospect of having a bank finance the<br />
full amount on <strong>com</strong>pletion, as you stated, will clearly not<br />
materialize.<br />
Equally as a result of this incredible time loss it seem uncertain<br />
if indeed <strong>com</strong>pletion will take place at all. The problem of<br />
Fawley being in the highest category flood zone is a very dire,<br />
not just for insurance but for any valuation or residential<br />
development. What has be<strong>com</strong>e clear is that the second tranche<br />
of exchange monies will be due without there being an answer<br />
to this dire problem.<br />
This is obviously a most unsatisfactory position to be in. Any<br />
prospect of anyone making money from this investment seems<br />
to be remote. In particular your wish to get a large fee has<br />
clearly been superseded by these events.<br />
The true financial prospect of Fawley Court have to be readdressed<br />
in its entirety. As indeed any profits at all are<br />
unclear and your financial projections are very uncertain.<br />
Although this has been the premise for any fees or profits its<br />
safe to assume this will not happen in the course of a few<br />
months.<br />
You should be under no illusion that no matter how hard I try<br />
to recover this time loss, I am unable to fully understand the<br />
<strong>com</strong>plexity of the issues as I have never done this before.<br />
Thank you for agreeing to help accelerate this process.<br />
You must now formalize any financial arrangement you can<br />
formulate with Cherrilow / Paul Sewell, as promised before. I<br />
am uncertain how this can be done given the uncertainty of the
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
project and its prospect but I am sure you will be able to<br />
establish a formula that is workable. Please do so as a matter of<br />
urgency as to not have any problems going forwards. You have<br />
promised to do so many times and you must as a matter of<br />
urgency. I am sorry that all your wish for getting this fee have<br />
been shattered but you must trust that I will do my best to<br />
recapture my prospects.<br />
Regards,<br />
Aida Hersham.”<br />
Butler-Creagh v Hersham<br />
58. The primary relevance of this document is that, if the court were to hold that an<br />
agreement had been entered into that Mr Butler-Creagh was to receive a £5m fee, it<br />
would be relied upon as demonstrating that it had been terminated. She is alleged to<br />
have created it dishonestly after the <strong>com</strong>mencement of proceedings to provide her<br />
with this alternative defence. Of course, if she did so, that might well have been<br />
because she feared that the bogus letter of 18 December 2008 would be used against<br />
her in the litigation. It does not in any way show that she was trying to extricate<br />
herself from an oral agreement entered into on 19 October 2008. Indeed, one of the<br />
short drafts of the termination letter referred back to “our earlier letter”. It is possible,<br />
in other words, that she decided to answer one bogus document with another. (“O<br />
what a tangled web … ”)<br />
59. The rather <strong>com</strong>plicated expert evidence suggests that there is no trace to be found on<br />
Ms Hersham‟s <strong>com</strong>puters of the final version of this document until July or of any<br />
draft prior to May 2010. The explanation given for its appearance at that time is that<br />
she was attempting to reconstruct what she had written the year before. There is some<br />
evidence from her solicitors to support that. They witnessed her reconstruction one<br />
morning in her London flat. Moreover, Mr Hume says that he was shown two<br />
versions of it earlier (on 18 May 2010, which happened to be the first time he met Ms<br />
Hersham) and that there is no room for doubt or confusion. There is no reason to<br />
reject that evidence. Whether it was delivered in July 2009, or even existed at that<br />
time, is quite another matter.<br />
60. What seems to me the most <strong>com</strong>pelling evidence in this instance is that of Mr Butler-<br />
Creagh himself, who denies receiving it. If his role (whatever it was) had in fact been<br />
terminated, and it had been made clear to him that he was definitely not going to<br />
receive his £5m, I do not believe he would have remained on such friendly terms with<br />
Ms Hersham, or have carried on performing his “services” at Fawley Court. Mr<br />
Butler-Creagh actually claims thereafter to have spent more time on the project rather<br />
than less. It is at least implausible that, if such a letter had been delivered, it would<br />
have had no impact on their relationship at all. There is apparently no<br />
contemporaneous reference to it in emails or correspondence. Indeed, Mr Lewis has<br />
cited various friendly, light-hearted and apparently trouble-free <strong>com</strong>munications<br />
passing between them within a matter of days after what would have been the<br />
termination bombshell. I cannot believe that this would have been the case if it had<br />
been delivered.<br />
61. The document is not required for its primary purpose, since I have <strong>com</strong>e to the<br />
conclusion that no agreement was entered into in October 2008 and it is strictly
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
unnecessary to decide, therefore, whether it was terminated. The question does not<br />
arise. For present purposes, what matters is Mr Butler-Creagh‟s reliance on the<br />
document as confirming the existence of the pleaded (oral) agreement forming the<br />
basis of his claim. In my judgment, it does no such thing. I am not persuaded that it<br />
was what it purports to be. Even if it had been delivered, its terms would not reflect<br />
what he claims to have been agreed. In so far as it refers to an agreement at all, it is a<br />
reference to a document (“our earlier letter”) – not a bargain reached orally.<br />
Moreover, it would appear that the “earlier letter” referred to can only have been the<br />
one backdated to 18 December 2008. Ms Hersham seemed to confirm that in<br />
evidence.<br />
62. Although I have found neither of the two disputed documents of any assistance in<br />
resolving the central issues in the case, I record that a great deal of time was taken up<br />
at the trial in addressing expert evidence about their derivation. I would agree that<br />
this served no useful purpose and was largely irrelevant to the real issues.<br />
63. Mr Butler-Creagh relied, in closing, upon a variety of witnesses to whom he had made<br />
statements to the effect that Ms Hersham had agreed to pay him £5m (his wife, Mr<br />
Platel, Ms Thomson of the Royal Bank of Scotland, Mr Pieters, Mr Colin, Mr<br />
Minikin, Mr Dadley and Mr Osmond). That I regard essentially as a “boot straps”<br />
argument. The fact that Mr Butler-Creagh claims to have reached a binding agreement<br />
does not mean that he actually had – however many times he says it.<br />
64. There are other pointers which in my judgment throw some light on the central issue<br />
of the oral contract. As late as on 4 December, Mr Butler-Creagh was assuring the<br />
Marian Fathers that “I propose to develop the property as a high class hotel”. That<br />
would hardly be consistent with a concluded agreement on 19 October that Ms<br />
Hersham was to “step into his shoes”.<br />
65. Furthermore, it is of some interest to note that Mr Butler-Creagh <strong>com</strong>missioned an<br />
enquiry agent‟s report into Ms Hersham‟s background. This was dated 1 November<br />
2008 and indicates the instructions on which it was based; namely, “in contemplation<br />
of engaging in a business relationship with the Subject of Enquiry” (emphasis added).<br />
That too is inconsistent with the pleaded oral agreement.<br />
66. Matters appear still to have been up in the air a year later. On 9 December 2009 (five<br />
months after the supposed “termination”) Mr Butler-Creagh emailed Ms Hersham<br />
proposing another arrangement whereby he could secure £5m. He suggested that “the<br />
easiest way forward [was] for Cherrilow to purchase 20% of Mainstream Commercial<br />
Finance Ltd for £5,000,000”. That went nowhere.<br />
67. As I have already made clear, I concluded that Mr Butler-Creagh has failed to<br />
establish, either by his own evidence or by reference to documentation, that the<br />
agreement was reached with Ms Hersham for the payment of £5m. In reaching that<br />
conclusion, I took into account all of these elements in Mr Butler-Creagh‟s case.<br />
Cherrilow’s claim against Mr Butler-Creagh<br />
68. It is accepted by Mr Butler-Creagh that he did not enter into any agreement with<br />
Cherrilow Ltd. That is despite suggestions made to him on a number of occasions by<br />
Ms Hersham from early in 2009 that, if he wanted to be paid for “facilitating” the
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
sale, or anything else for that matter, he should approach Cherrilow and reach such an<br />
agreement with it (as the purchaser of the property). A year after his claim was<br />
launched against Ms Hersham, however, and apparently only by way of response to<br />
its claim for damages, Mr Butler-Creagh claimed his £5m (or some alternative figure)<br />
from Cherrilow. He naturally had to formulate his claim on a non-contractual basis.<br />
He therefore seeks a quantum meruit. Modern authorities appear to suggest that the<br />
proper foundation for any such claim is the doctrine of unjust enrichment. This<br />
presents him with a considerable hurdle, but I shall return to consider it at a later<br />
stage. Now I should turn to address Cherrilow‟s claim itself.<br />
69. The <strong>com</strong>pany claims that it was induced to acquire Fawley Court by dishonest<br />
representations made to it prior to exchange of contracts on 10 December 2008 (by<br />
which time, of course, it had been in existence for just a week). What is said is that<br />
lies told to Ms Hersham, whether before or after the date of its incorporation, were<br />
intended to induce her to purchase or, alternatively, to be passed on to whatever<br />
special purpose vehicle was to be created for making the acquisition.<br />
70. It is important in this context to focus directly, from the various false statements made<br />
by Mr Butler-Creagh in 2008, only upon those which were intended to induce, and did<br />
in fact induce, the purchase of Fawley Court. It is hardly germane to this claim, for<br />
example, that Mr Butler-Creagh lied to the Marian Fathers in order to succeed in the<br />
June bidding process or with a view to obtaining the exclusivity concession dated 1<br />
August. He told Mr Conway, for example, on 3 July that “funding has been put in<br />
place by the Bank of Ireland … ”. Also, on 28 July Osmonds wrote to the Marian<br />
Fathers‟ solicitors claiming that “ … my client is still finalising the precise vehicle<br />
through which he will <strong>com</strong>plete the purchase” (emphasis added). He lied to them<br />
again later, in suggesting that he held or was going to hold shares in Cherrilow and<br />
that it was still his intention to develop it. Even before that <strong>com</strong>pany was ever<br />
thought of, Osmonds wrote to the Marian Fathers‟ solicitor on 2 October 2008, stating<br />
that “my client is currently setting up a UK private <strong>com</strong>pany to be the purchase<br />
vehicle”.<br />
71. It is obviously evidence of the way he does business, and of a propensity to mislead,<br />
but that would not be directly relevant to a claim that he induced Cherrilow to acquire<br />
the property. On the other hand, it is part of the background or, as Mr Auld described<br />
it, “the other side of the coin”. It was all part of one elaborate “middle man” fraud,<br />
whereby he planned to deceive the vendors first and then a prospective purchaser.<br />
72. Through Mr Sewell of the Jersey based Key Trust Company, who is a director of<br />
Cherrilow‟s corporate trustees, and also through Mr Auld on its behalf, Cherrilow<br />
advances a claim that it was induced to pay £16.5m for Fawley Court when it was, at<br />
the material time, only worth £10m. This against the background, of course, that in<br />
June Mr Butler-Creagh had put in a bid of his own (at least purportedly) at £22.5m. It<br />
is necessary to remember, however, that he might have cynically pitched it rather high<br />
purely to secure the bid and also that, by the time Cherrilow exchanged contracts in<br />
December, the notorious bank collapses of that autumn had taken place with a<br />
significantly deflationary effect on the property market. It will be for Cherrilow to<br />
prove that Mr Butler-Creagh dishonestly talked up the value of the property at the<br />
relevant point.
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
73. Cherrilow relies essentially upon six misrepresentations by Mr Butler-Creagh, albeit<br />
expressed in various ways, which are said to have been intended to cause it to enter<br />
into the purchase, and in fact to have done so:<br />
i) That he had an exclusive and enforceable right to purchase and develop<br />
Fawley Court (and that in consequence no one else could approach the Marian<br />
Fathers).<br />
ii) That he had the means to purchase it himself (while not wishing to shoulder<br />
the entire risk of the project on his own) and that it was his intention at the<br />
time to do so.<br />
iii) That Fawley Court was undervalued as at October 2008 at the purchase price<br />
of £22.5m.<br />
iv) That Fawley Court could be developed in 26 months into a hotel with<br />
residential units, yielding a profit of £32m.<br />
v) That he had 25 years of relevant experience as a property developer, such as to<br />
enable him to manage the development and that he could find the funding<br />
necessary over and above the purchase price.<br />
vi) A purchaser would not need to produce further funds beyond the purchase<br />
price (except perhaps for some modest professional fees).<br />
These representations are largely admitted in the Defence and Counterclaim at<br />
paragraph 11.3.<br />
74. It is disputed to what extent some of these assertions were (if made) statements of fact<br />
or expressions of opinion. Mr Auld argues that a statement concerning an opinion<br />
(e.g. as to valuation) may be actionable as a misrepresentation if it carries with it,<br />
expressly or impliedly, a claim genuinely to hold that belief at the material time(s).<br />
That is supported by authority of long standing.<br />
75. It is said that the representations, in so far as they were made to Ms Hersham and Mr<br />
Sewell, were received on behalf of Cherrilow and that Mr Butler-Creagh so intended:<br />
see Chitty on Contracts (30 th edn) at 6-028. Also, even in the absence of a<br />
relationship of principal and agent, a person can make a representation to A intending<br />
that it be passed on to B and that B should act upon it. It was clear throughout to Mr<br />
Butler-Creagh, as he informed the Marian Fathers on more than one occasion, that the<br />
property was likely to be purchased through a special purpose corporate vehicle. It is<br />
thus an unavoidable inference that he knew and intended that any representations he<br />
made would be duly conveyed to the relevant entity. So much emerges, for example,<br />
from Recital D in the draft “deed” prepared by Mr Osmond in October. He accepted<br />
in evidence that he had always been aware that Cherrilow was the vehicle for<br />
purchasing Fawley Court.<br />
76. On 2 December 2008, there was a meeting at which the earlier representations were<br />
passed on by Ms Hersham and Mr Landau to Mr Sewell. The meeting lasted just over<br />
three hours (taking place at first in the premises of Howard Kennedy and latterly in a<br />
nearby coffee shop). These led to the incorporation of Cherrilow the next day, which
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
thereby, in turn, became a representee. It is said to have changed its position as a<br />
result of those representations. In this context, I was referred to Leslie Leithead Pty<br />
Ltd v Barber (1965) 65 SRNSW 172, 177 and Gould v Vaggelas (1984) 157 CLR<br />
215, 253.<br />
77. On 3 December, once Mr Sewell had returned to Jersey, he explained to his<br />
colleagues the rationale for the purchase of Fawley Court and the action plan that was<br />
envisaged. This would be further evidence of the <strong>com</strong>munication of the<br />
representations to Cherrilow and another link in the chain of causation. It is<br />
unfortunate that there was no written record of the 3 December discussions, but I see<br />
no reason to reject Mr Sewell‟s evidence on this aspect of the case.<br />
78. Further reliance is placed on representations to Ms Hersham (and through her to<br />
Cherrilow) to the effect that:<br />
i) Any contact with the Marian Fathers had to be through Mr Butler-Creagh or<br />
his solicitors, Osmonds.<br />
ii) He and his solicitors had to be the sole channel of contact with the Marian<br />
Fathers by virtue of the exclusivity contract (which had expired on 10 October<br />
2008).<br />
iii) Mr Butler-Creagh would have to mislead the Marian Fathers if Ms Hersham<br />
were to meet them by pretending that she was an interior designer, rather than<br />
a prospective purchaser.<br />
iv) An intended purchaser would have to use Osmonds in the transaction.<br />
79. These false claims might have led Cherrilow to adopt a more circuitous route than<br />
was necessary in acquiring Fawley Court, but it is difficult to see that in themselves<br />
they would have been directly causative of the decision to purchase. Similarly, Mr<br />
Butler-Creagh‟s financial position could hardly have been in itself a factor inducing<br />
the decision to purchase. Nevertheless, these representations formed part of an<br />
overall picture, which appears to have fooled Ms Hersham and Mr Sewell by lending<br />
credibility and substance to his more central claims as to experience, skills, business<br />
acumen and project evaluation. There was also the over-arching claim that he was a<br />
man of substance who could have brought the project to fruition and who had<br />
genuinely therefore been able to place himself in a position whereby he had be<strong>com</strong>e a<br />
necessary intermediary.<br />
80. These further representations undoubtedly played their part in the causal chain<br />
because, otherwise, Cherrilow would not have been trapped in the web of<br />
misinformation which led it to make the purchase. If Ms Hersham and Mr Sewell had<br />
not felt obliged, for example, to rely on Osmonds, they would have realised that there<br />
was no exclusivity agreement and that Mr Butler-Creagh had no special status in the<br />
matter at all.<br />
81. After Ms Hersham had <strong>com</strong>e on the scene, Mr Butler-Creagh continued to mislead the<br />
Marian Fathers, for example by claiming that Fawley Court was to be purchased by<br />
an offshore <strong>com</strong>pany in which he had an interest, and that he would be providing at<br />
least part of the funding himself. This emerges from letters to the Marian Fathers
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
dated 20 November and 4 December 2008. On this date, for example, Mr Butler-<br />
Creagh stated that the purchase was to be by Cherrilow “ … in which I own all the<br />
shares together with the person who is assisting with the funding … I can confirm that<br />
I propose to develop the property as a high class hotel”. There is also a letter dated 2<br />
December, signed by their agent Mr Martin Conway. He there put on record his false<br />
understanding that Mr Butler-Creagh would be “providing an element of the funding”.<br />
Mr Butler-Creagh further stated to the Marian Fathers that he no longer wished to be a<br />
guarantor because of tax advice he had received to that effect, although there was no<br />
documentary evidence to confirm that this was so. It seems likely that these<br />
statements were indeed all false, but they are not such as to induce Cherrilow to<br />
acquire the property.<br />
82. I can see that Cherrilow might have been induced in part to acquire Fawley Court by a<br />
reliance (unwise no doubt) on Mr Butler-Creagh‟s estimate of its value. On the other<br />
hand, I have to be satisfied on a balance of probabilities inter alia that he did not<br />
genuinely believe this valuation at the time: see e.g. Connolly Ltd v Bellway Homes<br />
Ltd [2007] EWHC 895. This is by no means self-evident, given his lack of<br />
credentials as an experienced property valuer and his natural inclination to espouse<br />
optimistic fantasies. Yet, applying the civil standard of proof, I can be satisfied on<br />
these facts that he had no genuine belief:<br />
i) It was all part of an elaborately planned deception;<br />
ii) There were no grounds to believe at that time that any willing purchaser (let<br />
alone a “queue”) would be available at more than £22.5m, especially given the<br />
rapid downturn in the economy – and no such grounds have emerged in the<br />
course of the litigation;<br />
iii) He had deliberately pitched his own bid high, so as to win the tender process,<br />
while having every intention of thereafter beating the price down.<br />
83. It may seem implausible in the cold light of hindsight that Mr Sewell or Cherrilow<br />
would really place reliance on any statements made by Mr Butler-Creagh. The<br />
question arises as to why Cherrilow failed to obtain its own valuation or survey report<br />
in order to make its own judgment. The explanation proffered is that he exerted<br />
pressure upon Ms Hersham, falsely claiming that others were interested as potential<br />
purchasers in the background and that he might transfer his supposed right to<br />
purchase to one of them (albeit having no locus standi to do so). This pressure was<br />
conveyed via Ms Hersham to Cherrilow, although with the benefit of hindsight she<br />
now sees the claim that other investors were lining up as “nothing more than a ruse”.<br />
It was clearly critical to Mr Sewell‟s decision to go ahead with the exchange of<br />
contracts on 10 December. He was determined that this unique opportunity should<br />
not be lost.<br />
84. It is necessary for me to take account of the contemporaneous record made by Mr<br />
Sewell at the meeting of 2 December in which he refers both to the supposed urgency<br />
and to Mr Butler-Creagh‟s claim that Fawley Court was indeed still worth £22m.<br />
That record is consistent with the present claim of reliance, as is an email from Mr<br />
Sewell dated 4 December:
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
“Further to our discussions this afternoon and following on<br />
from our meeting on Tuesday, it is clearly noted that Cherrilow<br />
Limited has been established to purchase UK residential<br />
property; Fawley Court, Henley-on-Thames, Oxfordshire, RG9<br />
3AE for the sum of £16.5m (<strong>com</strong>pletion set for 6 April 2010).<br />
It is also noted that the initial deposit of £500,000, is being<br />
advanced to the <strong>com</strong>pany via loan and is now available for<br />
exchange. It is further noted that Osmond & Osmond of 62/67<br />
Temple Chamber, Temple Avenue, London EC4Y 0HP are<br />
acting for the purchaser and are holding the deposit funds<br />
directly to their order.<br />
After due and careful consideration I confirm that the directors<br />
here authorise you on their behalf to give authority to Osmond<br />
& Osmond to exchange on contracts as and when you are<br />
<strong>com</strong>fortable that arrangements are in good order.”<br />
Butler-Creagh v Hersham<br />
85. Mr Sewell asserts that Cherrilow did rely on Mr Butler-Creagh‟s representations in<br />
deciding to go ahead with the purchase (in accordance with Mr Sewell‟s<br />
re<strong>com</strong>mendation). I need to form an independent judgment about that and his<br />
assertions to that effect cannot be conclusive. In doing so, however, I should bear in<br />
mind that the law effectively acknowledges a presumption of reliance, which it is for<br />
the representor to dispel in circumstances such as here, where the representations are<br />
of such a nature as to make it inherently likely that a representee would act upon<br />
them.<br />
86. It is also part of Cherrilow‟s case that not only exchange but also <strong>com</strong>pletion (as late<br />
as 13 April 2010) was induced by Mr Butler-Creagh‟s continuing representations, as<br />
pleaded. Despite Ms Hersham‟s claims to have terminated their relationship, at or<br />
shortly after 22 July 2009, it is alleged that Cherrilow continued to take his earlier<br />
representations at face value.<br />
87. Any perception of “urgency” would surely have dissipated following the exchange of<br />
contracts on 10 December 2008. By this time, however, Cherrilow was effectively<br />
“locked into” the transaction. It is thus conceivable that one or more false<br />
representations made prior to exchange of contracts did continue to affect Cherrilow‟s<br />
conduct and decision-making right through to <strong>com</strong>pletion without any break in the<br />
chain of causation. If they were set upon a course, it might be difficult for the<br />
representor to extricate himself from continuing responsibility. It is Ms Hersham‟s<br />
case that because Cherrilow found itself “locked in” it had to incur certain<br />
consequential costs. On this, she went unchallenged. Moreover, it is necessary to<br />
have in mind the need to spend money for the purpose of mitigating loss. As she put<br />
it, “Costs continue to be incurred in an attempt to minimise the losses Cherrilow has<br />
suffered on entering into the transaction”.<br />
88. There is evidence available as to when Cherrilow found out that the material<br />
misrepresentations were false. It is argued on its behalf that it was reasonable to place<br />
continuing reliance upon at least some of the representations until this was<br />
discovered.
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
89. One of the most significant is said to be the claim to a right of exclusivity or “lock<br />
out”. In this instance, the scales only fell from Cherrilow‟s eyes (and those of Ms<br />
Hersham) on 29 April 2010 when Mr Osmond sent a copy of the expired agreement.<br />
This was, of course, after <strong>com</strong>pletion had taken place. The fact that it had been<br />
hidden at all is a further illustration of Osmonds‟ extraordinary conflict of interest.<br />
90. It was even more recently that Cherrilow became aware that Mr Butler-Creagh‟s<br />
claims that he had the wherewithal to purchase and develop Fawley Court were<br />
untrue. It was only the disclosure orders made in this litigation, and the evidence<br />
from the Bank of Ireland, which revealed that the cupboard had always been more or<br />
less bare.<br />
91. It is also said that Cherrilow did not realise the true value of Fawley Court as at<br />
December 2008 until it obtained the expert evidence of Mr Nicholas Greene to the<br />
effect that it was worth only £10m. That is the only expert evidence on that subject<br />
before the court.<br />
92. Mr Butler-Creagh pleads that it would have been irrational for Ms Hersham to place<br />
reliance on any claims made by him without putting in train enquiries of her own. It<br />
is in this context that Mr Auld cited a number of authorities to support the proposition<br />
that one to whom a representation has been made does not have a duty to verify it<br />
before acting upon it: King v Wilson (1843) 6 Beav 124, 129, per Lord Langdale MR;<br />
Redgrave v Hurd (1881) 20 Ch D 1, 14, per Jessel MR; Haas Timber & Trading Co<br />
Pty Ltd v Wade (1954) 94 CLR 593, 601. So also, he submits, it is not open to a<br />
defendant in deceit proceedings to rely on alleged carelessness on the claimant‟s part<br />
in failing to discover the truth: see e.g. Clerk & Lindsell on Tort (20 th edn) at para 18-<br />
37 and Spencer Bower on Actionable Misrepresentation (4 th edn) at para 188. There<br />
is no doctrine of contributory negligence.<br />
93. The justification for this aspect of legal policy is especially evident in a case such as<br />
this, where the defendant has made representations as to urgency, specifically with a<br />
view to discouraging independent checks being made on his claims.<br />
94. Against that background, it seems less implausible to attribute responsibility to Mr<br />
Butler-Creagh for Cherrilow‟s acquisition, and any consequential losses there may<br />
have been. What seemed to have been of particular significance at that stage were his<br />
claims of “urgency” coupled with his optimistic valuation. That clearly affected Ms<br />
Hersham and Mr Sewell. Another factor was undoubtedly his claim to 25 years‟<br />
experience as a developer. He was ordered to provide information, shortly before<br />
trial, as to his best examples of relevant development experience. It emerged that<br />
there was nothing remotely <strong>com</strong>parable to the nature or scale of development he was<br />
proposing at Fawley Court. Indeed, most of his past property experience had been by<br />
way of dealing rather than developing. This meant that his claims to Ms Hersham as<br />
to what could be achieved for Fawley Court, how long it would take and at what cost,<br />
were virtually worthless. They may have derived to an extent from the appraisal by<br />
Mr Kearsley, but were put forward as reliable and effectively endorsed by Mr Butler-<br />
Creagh in the light of his supposed experience.<br />
95. The claim to have had 25 years of relevant experience in planning and property<br />
development can be characterised primarily as one of fact rather than opinion.<br />
Moreover, it is relevant also to the other representations as to valuation and the
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
proposed cost of development. Those claims involved the implicit factual assertion<br />
that the opinions expressed were those of a person with that sort of experience. The<br />
figures he gave did not purport to have merely been plucked out of thin air, but rather<br />
to have been based on relevant expertise. Further, even on the hypothesis that Mr<br />
Butler-Creagh genuinely believed that his estimates at the time were valid (perhaps<br />
having deluded even himself), there is scope for Cherrilow to argue that he had no<br />
reasonable grounds for any such belief. That would be contrary to the impression<br />
created in the listener by claims of long experience. The implicit assertion that the<br />
estimates or opinions expressed were based on his expertise is itself factual in<br />
character. Moreover, that claim cannot be separated out from the assessment of<br />
value: the two are indivisible.<br />
96. These were the representations that seem to me to have been of particular significance<br />
because, as she attested vehemently in the witness box, Ms Hersham attached most<br />
importance to them at the time. He was presenting himself almost as a “package”.<br />
She thought she could rely upon his experience and development skills. As she put it<br />
in the witness box, “ … for me his ability was critical”.<br />
97. It is now possible to understand that the estimates were not based on any objectively<br />
reasoned assessment. What was apparent from his evidence in this trial, and from<br />
other material that has <strong>com</strong>e to light, is that his conduct from June 2008 onwards was<br />
driven predominantly by his plan to conjure up a payment of £5m on the false<br />
pretence that he was someone with whom any prospective purchaser had to do<br />
business. He had managed to insinuate himself between the Marian Fathers and any<br />
genuine purchaser purely for that purpose.<br />
98. The false claims of urgency, because of supposed rival bids, were also plainly<br />
material in Mr Sewell‟s decision to re<strong>com</strong>mend the acquisition to Cherrilow. They<br />
too were demonstrably false. There were in fact no other “punters” interested in<br />
making offers anywhere near Mr Butler-Creagh‟s bid. It is now known, from a letter<br />
sent by Mr Conway to the Marian Fathers on 4 December 2008, that the only other<br />
prospective purchaser in the offing was Tusk Developments, which had earlier offered<br />
£18m but would now “only be prepared to pay up to £12m”. It is also relevant that,<br />
according to a report in the Catholic Herald as early as 16 May 2008, the property<br />
had been offered at £14m by the Marian Fathers before it was put on the market.<br />
99. It is said that if Cherrilow, through Mr Sewell in particular, had been able to make a<br />
judgment at or prior to 10 December 2008, unencumbered by these<br />
misrepresentations, the position would have been quite different. Either Cherrilow<br />
would not have purchased Fawley Court at all or, if still interested, the purchase price<br />
would have been reduced to what is now said to have been the true market value of<br />
£10m.<br />
100. It may be helpful in this context to spell out in rather more detail what that<br />
hypothetical scenario would have been like. The position then confronting Mr Sewell<br />
and/or Ms Hersham would have been very different. They would have known the<br />
following matters:<br />
i) Mr Butler-Creagh had no exclusivity or “lock out” deal and no other locus<br />
standi at all (save as the prospective purchaser under his contract with the<br />
vendors).
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
ii) There was no urgency to exchange contracts in December 2008, in the sense<br />
that there were any other willing purchasers in the offing; there would thus<br />
have been time to take advice and make independent enquiries.<br />
iii) They did not need to deal with or through him (or through Osmonds) and<br />
could have gone straight to Mr Conway acting on behalf of the vendors.<br />
iv) Moreover, Mr Butler-Creagh had no relevant expertise and was not able or<br />
willing to purchase or develop Fawley Court himself.<br />
v) The property was not worth £22.5m in the open market or even £16.5m.<br />
vi) There was no reason to suppose that permission could be obtained for<br />
conversion to a hotel, let alone that development could be <strong>com</strong>pleted within 26<br />
months.<br />
vii) Nor was there any reason to suppose that the property could be developed<br />
without the purchaser having to invest millions of pounds in the process.<br />
viii) There was no solid basis for assuming, even after a delay of several years and<br />
the investment of tens of millions of pounds, that the project would yield a<br />
profit of £32m (or indeed any other figure).<br />
None of this had be<strong>com</strong>e apparent to them by 10 December 2008.<br />
101. I have <strong>com</strong>e to the conclusion, in the light of Mr Sewell‟s evidence, that Cherrilow<br />
did place reliance, as always intended by Mr Butler-Creagh, on the false<br />
misrepresentations of fact I have identified; moreover, had it not done so, the<br />
decision, on the balance of probabilities, would have been not to take the open ended<br />
risks. The purchase would not have been made. Mr Ramsden took some time going<br />
through Mr Sewell‟s evidence with a view to showing that he had been rather lacking<br />
in curiosity. He did seem rather vague while in the witness box, not to say semidetached,<br />
but this does not assist the submission that there had been no reliance. He<br />
plainly relied on something in <strong>com</strong>ing to his re<strong>com</strong>mendation to exchange contracts.<br />
I would not accept the submission that he was a mere cipher; that “he simply acted on<br />
the instruction to set up Cherrilow to purchase Fawley Court”. On the other hand,<br />
virtually everything he knew derived from Ms Hersham. She had plainly passed on to<br />
Mr Sewell the gist of the representations made to her – originally with the intention<br />
that she should pass them on to Cherrilow or whatever other vehicle was to enter into<br />
the transaction. The only information Mr Sewell had, on which to base his decision,<br />
derived from Mr Butler-Creagh. It would be unreal to draw the conclusion that he<br />
relied on anything else. He had consulted no one else and was not in a position to<br />
form any independent judgment of his own.<br />
102. The pleaded representations (even though not made directly to Mr Sewell) were at the<br />
very least a substantial factor in the decision to exchange contracts. That is the test to<br />
apply according to modern authority: see e.g. Smith New Court Securities Ltd v<br />
Citibank NA [1997] AC 254, 285A, per Lord Steyn. (My conclusion coincides with<br />
the “very likely assumption” discussed in McGregor on Damages (18 th edn) at 41-010<br />
to 41-030.) The claim in deceit accordingly succeeds.
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
The quantification of loss<br />
Butler-Creagh v Hersham<br />
103. This is not an easy case in which to assess the appropriate <strong>com</strong>pensation. Where the<br />
deceit has led to a sale of property, the straightforward measure of damage is to fix<br />
upon the difference between the sale price and the actual value at the material date.<br />
This will ordinarily be identified as the date of the transaction. Mr Lewis contended<br />
for the date of <strong>com</strong>pletion here, 13 April 2010, by which time there had been a<br />
significant recovery in the property market. But I accept that 10 December 2008 is<br />
more appropriate as being the date of the transaction. That is when Cherrilow entered<br />
into its <strong>com</strong>mitment. The adoption of that date would be consistent with the<br />
reasoning in Smith New Court of Lord Browne-Wilkinson at 266 and Lord Steyn at<br />
284.<br />
104. The only expert evidence I have as to the true value on 10 December 2008 is that of<br />
Mr Greene, which puts the figure at £10m. There is no reason to reject it. Mr Butler-<br />
Creagh chose not to put in any expert evidence when given the usual opportunity.<br />
105. Considerable weight was attached by Mr Butler-Creagh to a valuation prepared by<br />
Savills in March 2010 for the purpose of deciding whether to make a loan to<br />
Cherrilow to enable <strong>com</strong>pletion to take place. It seems that Credit Suisse Bank has a<br />
50% policy, whereby they are only prepared to lend 50% of the value of a property.<br />
In this instance, they were prepared to lend £12m on a valuation of £24m. This does<br />
not, on the other hand, undermine the opinion of Mr Greene. Most importantly, the<br />
Savills report is not an expert report for the purposes of this litigation. That was not<br />
its purpose and it does not <strong>com</strong>ply with any of the relevant requirements. In any<br />
event, it was concerned with a valuation 18 months later (i.e. not at 10 December<br />
2008). It has not been subjected to testing in court, unlike the evidence of Mr Greene,<br />
who was cross-examined for three hours.<br />
106. A significant factor, which would have been tested in that way, was the extent to<br />
which the Savills valuation was affected by the size of Mr Butler-Creagh‟s bid and by<br />
the price later agreed between Cherrilow and the Marian Fathers. For the reasons I<br />
have canvassed already, those were artificial and not to be regarded as representing a<br />
true reflection of the market, whether at June or December 2008. Mr Butler-Creagh<br />
cannot be characterised as a “willing buyer”. It is clear from his own witness<br />
statement that he had intended in June 2008, having made the highest bid, to beat the<br />
Marian Fathers down significantly by renegotiating from that advantageous position.<br />
(That was obviously prior to the impact of the banking crisis.)<br />
107. Mr Butler-Creagh also pointed to insurance valuations, but they do not provide a<br />
reliable <strong>com</strong>parison when the issue is market value.<br />
108. The sale price was £16.5m and the difference is thus £6.5m. This is subject to a<br />
<strong>com</strong>plication with regard to a “retention” or “abatement” of £3.5m negotiated by Ms<br />
Hersham, shortly before <strong>com</strong>pletion, in connection with unresolved issues about<br />
rights of way and the exhumation of bodies. Clearly Cherrilow can only recover,<br />
under this head of loss, the difference between £10m and the price ultimately paid,<br />
whatever that is: McConnell v Wright [1903] 1 Ch 546<br />
109. As I indicated, there was an alternative formulation of the damages calculation, based<br />
on the hypothesis that Cherrilow would, in full knowledge of the facts, have decided
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
to negotiate with the Marian Fathers directly, rather than withdrawing altogether. The<br />
calculation by Cherrilow arrives at the same final figure because it is assumed that a<br />
deal would have been done at Mr Greene‟s valuation of £10m. Whether the Marian<br />
Fathers would have <strong>com</strong>e down that far I rather doubt. Since, however, my finding is<br />
that Cherrilow would have withdrawn altogether as a prospective purchaser, it is<br />
perhaps unnecessary for me to address this hypothesis further.<br />
110. So far the out<strong>com</strong>e would appear reasonably straightforward, but there is also a claim<br />
for additional damages in respect of the consequential losses incurred. The<br />
calculation of these stood until the close of trial at £21,707,708. That was based on a<br />
total expenditure of £31,707,708 minus the value of the property at £10m. (It will be<br />
noted that the expenditure incurred appears to correspond almost exactly to the<br />
supposed profit which Mr Butler-Creagh was dangling in front of prospective<br />
purchasers back in 2008.) Somewhat surprisingly, perhaps, no challenge was offered<br />
in cross-examination to Ms Hersham‟s evidence on these figures. Obviously, credit<br />
would have to be given for any gain accruing to Cherrilow: see e.g. Spence v<br />
Crawford [1939] 3 All ER 271, 288-9. Yet Mr Auld submits that there has been no<br />
gain to show for the expenditure. He described Fawley Court as “a white elephant”.<br />
111. The underlying policy is that damages are intended to put the relevant claimant in the<br />
position he would have occupied if he had not sustained the wrong for which he is<br />
being <strong>com</strong>pensated: see e.g. the observations of Lord Browne-Wilkinson in Smith<br />
New Court Securities Ltd v Citibank NA [1997] AC 254, 262. Such a claim may be<br />
made in respect of consequential losses even if they were not reasonably foreseeable:<br />
Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158. But they must be consequential.<br />
112. Unfortunately, perhaps through constraints of time, the position on quantification was<br />
left at the end of the trial in a rather unsatisfactory state. In particular, the issue of<br />
causation was not explored. On the last day of the hearing, a newly formulated<br />
summary of Cherrilow‟s alleged losses was presented without amplification or an<br />
opportunity for Mr Butler-Creagh to test or challenge it.<br />
113. One cannot simply spend money in a situation of this kind and express it as a loss<br />
flowing from the actionable misrepresentations. It is said that the money has been<br />
spent with nothing to show for it. It needs, however, to be demonstrated that it was<br />
necessary or reasonable to spend the money to mitigate loss or to preserve the relevant<br />
asset. It is surely appropriate to demonstrate that the claimant in question has had to<br />
spend the money, not merely as a matter of choice, but as a result of being placed<br />
wrongfully in a particular predicament as a result of the misrepresentation(s)<br />
<strong>com</strong>prising the cause of action.<br />
114. One possibility, once the nature and extent of the misrepresentations became<br />
apparent, would have been to market the property and, if sold, to make an assessment<br />
of loss at that stage. Yet, having chosen in spite of everything to “make a go of it”,<br />
Cherrilow needs to show that the cost of doing so is somehow greater in consequence<br />
of the wrongdoing than would otherwise have been the case. It is necessary to focus<br />
on this marginal impact of the misrepresentations.<br />
115. The written summary of losses submitted on the final day was significantly reduced<br />
from the pleaded figure of £21.7m. The thinking was explained in supplemental<br />
written submissions, which I received in the middle of August (and to which Mr
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
Butler-Creagh was given the opportunity to respond). Nothing new was added. A<br />
decision had apparently been taken to abandon parts of the original claim. In<br />
particular, there was no longer to be any claim in respect of the acquisition of<br />
Wyevale Garden Centre and North Lodge or removal of those involved in the Toad<br />
Hall garden centre. This had all been directed to “tidying up” the estate, albeit at<br />
considerable cost, with a view to rendering it a more desirable entity.<br />
116. Mr Ramsden, rather than attempt to deal with the new schedule of loss on his feet in<br />
the course of his closing submissions, called upon Cherrilow‟s team to identify the<br />
documents disclosed in support of consequential losses. This was done in the<br />
supplemental August submissions (at paragraphs 3 and 4).<br />
117. The evidence in support of these losses was contained in the pre-trial witness<br />
statement of Ms Hersham dated 20 June 2011 (at paragraph 21.2). There was no<br />
challenge to this aspect of her case while she was in the witness box. Nor were any<br />
submissions made as to the documentary evidence disclosed, either in opening or<br />
closing. Nor had any evidence been introduced on the subject in Mr Butler-Creagh‟s<br />
witness statements. In these circumstances, it is difficult to see by what means the<br />
claims could be resisted, except by pointing out some logical or legal flaw in the<br />
course of closing submissions.<br />
118. The final claim in respect of direct and consequential losses stood as follows:<br />
Fawley Court<br />
Borrowing<br />
ITEM COST<br />
Purchase price paid so far less credit of<br />
£10m given for Fawley Court‟s value on<br />
the transaction date, 10 December 2008.<br />
3,000,000<br />
Stamp duty 520,000<br />
Capital expenditure 1,792,206<br />
Running Costs 154,118<br />
Staffing Costs 65,866<br />
Credit Suisse set up and professional fees 500,000<br />
Credit Suisse Interest 731,250<br />
Edward Landau interest 79,000<br />
Aida Hersham interest 270,000<br />
Osmond & Osmond 108,000<br />
Howard Kennedy 38,000<br />
BDO LLP 6,500<br />
Tim Mullany 120,000<br />
Ted Dadley 65,000
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
COST TO BE INCURRED<br />
Part of the purchase price relating to the abatement 2,300,000<br />
Stamp duty on the abatement 115,000<br />
TOTAL RECOVERABLE LOSS: £ 9,864,940<br />
Butler-Creagh v Hersham<br />
119. A number of written submissions were made about the various items of claimed loss.<br />
Before I address these, I can deal shortly with the claim for Mr Dadley‟s fee of<br />
£65,000. I can see no reason why Mr Butler-Creagh should have to pay Cherrilow a<br />
sum corresponding to that which Ms Hersham chose to pay Mr Dadley for<br />
introducing her to Mr Butler-Creagh – not least because there does not appear to be<br />
any causal connection between it and any misrepresentation by Mr Butler-Creagh.<br />
120. A general point is taken as to how the damages issue was presented by Cherrilow at<br />
the trial. Mr Butler-Creagh (and, for that matter, the court) was led to believe, both by<br />
Ms Hersham and by counsel, that the calculations of loss were still undergoing an<br />
auditing process by KPMG and that a report would, at some stage, be introduced to<br />
support them. For whatever reason, that never materialised. I was later informed that<br />
the auditing process was not specifically directed towards this litigation. Mr Auld had<br />
simply been referring to the usual auditing of the <strong>com</strong>pany‟s accounts and this<br />
happened to take longer than anticipated.<br />
121. I would not accept the thrust of Mr Butler-Creagh‟s submission about this, which was<br />
effectively that I should conclude that Cherrilow was therefore unable to prove any of<br />
its pleaded losses. It may seem curious that the audit process went off the radar, at the<br />
time without explanation, but I do not believe that this alone would justify that<br />
inference. A claimant can prove losses without needing to have them audited at all.<br />
But it is at least fair to say that the promise (or at least the prospect) of an auditor‟s<br />
report might have been the reason why Mr Butler-Creagh‟s legal team did not deal<br />
with quantification issues, either in opening or in the course of cross-examination. It<br />
would have proved to be a waste of time if the pleaded figures, as supported by Ms<br />
Hersham‟s evidence, were later superseded. Indeed, Ms Hersham herself suggested<br />
(at para. 21.3 of her witness statement) that “ … costs continue to be incurred and<br />
Cherrilow reserves its right to file a detailed, <strong>com</strong>plete and up to date schedule of loss<br />
in due course”. That too might have given the impression that the process of<br />
quantification remained inchoate and yet to be finalised. Whether that is the reason<br />
for Mr Butler-Creagh‟s reticence on the subject at trial, I cannot tell. In any event,<br />
there came a point (at least by closing speeches) when it would have be<strong>com</strong>e apparent<br />
to Mr Butler-Creagh‟s lawyers that no such report was to be forth<strong>com</strong>ing and the<br />
question would need to be addressed on the evidence as it stood.<br />
122. Another general point now taken is that Ms Hersham was not an appropriate witness<br />
to prove Cherrilow‟s loss (not being an officer or “agent” at the material time). Yet<br />
no objection to that effect was taken prior to closing speeches. Her evidence is before<br />
me, unchallenged either as to its admissibility or substance, and it is not necessary to<br />
show that she had some formal post or status before the court can attach any weight to<br />
it. She was involved throughout and had first hand knowledge.
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
123. The position is by no means satisfactory, since the calculations of loss have not been<br />
examined in any detail, but that is largely because they went unchallenged. I must<br />
now turn to the individual items.<br />
124. I have already indicated that Cherrilow is, in principle, entitled to recover the<br />
difference between the value of the property as at 10 December 2008 (the date of<br />
exchange) and what was ultimately paid for it. That cannot yet finally be determined,<br />
as the “abatement” issue has not been resolved.<br />
125. Stamp duty and borrowing costs also appear to be recoverable as flowing directly<br />
from the decision to purchase (induced by false representations).<br />
126. Running and staffing costs seem to me to be less straightforward. Had Cherrilow<br />
decided to sell (at a loss) at some point between <strong>com</strong>pletion and the <strong>com</strong>mencement<br />
of the trial, it would be relatively easy to calculate what would have been required to<br />
restore its financial position. Since Cherrilow chose to stay and progress its plans for<br />
development, causation is more problematic. Clearly, as I have already noted, it<br />
cannot recover whatever it chooses to spend. Reasonable maintenance costs to ensure<br />
that the asset does not depreciate (prior to an onward sale, for example) would, in my<br />
view, be a legitimate head of claim. The cost of running and staffing the estate<br />
indefinitely is another matter. That may be regarded in large measure as a factor of<br />
Cherrilow‟s decision to stay. It has been recognised that the decision to acquire other<br />
properties (to “rationalise” the estate), such as Toad Hall, is not recoverable. That is,<br />
presumably, because it cannot be shown to flow directly from the false<br />
representations which constitute the cause of action.<br />
127. Since I have held that the representations continued to affect Cherrilow‟s state of<br />
knowledge and its decision-making until after the date of <strong>com</strong>pletion, I think that the<br />
reasonable running and staffing costs up to that date should be recovered. On the<br />
other hand, once the scales fell from Cherrilow‟s eyes and it was in a position to<br />
formulate its claim, a more discriminating judgment would have to be made.<br />
128. Had a supplemental claim been made and an “up to date schedule of loss” been<br />
produced (as foreshadowed in Ms Hersham‟s witness statement), there would have<br />
been room for debate as to the length of time for which reasonable running costs<br />
would be recoverable. But that did not happen and I have had no submissions that the<br />
relevant period had expired. Accordingly, the more limited heads of recovery<br />
identified in the above table seem to me legitimate, supported as they have been by<br />
Ms Hersham‟s evidence and by disclosed documentation. She characterises them as<br />
“the losses [Cherrilow] suffered from being locked into the transaction to buy Fawley<br />
Court as a result of its reliance on [Mr Butler-Creagh‟s] untrue representations”. That<br />
seems to be an accurate appraisal and it went unchallenged.<br />
The quantum meruit claims<br />
129. The final issue I must address is that of Mr Butler-Creagh‟s quantum meruit. Given<br />
the modern analysis of this form of claim, his primary difficulty is to demonstrate that<br />
whatever he did led to any “enrichment” on the part of Cherrilow at all – unjust or<br />
otherwise. At the moment, it appears to be hugely out of pocket. This aspect of the<br />
case was hardly explored in the course of opening or closing speeches (but only in<br />
writing). Furthermore, by contrast with most claims of this kind (and indeed in
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
contrast with the professionals who were performing tasks at Fawley Court), no<br />
records have been produced of work done or hourly rates to be charged. That is<br />
probably because Mr Butler-Creagh‟s alternative argument (he having failed on his<br />
oral agreement of 19 October 2008) is based on the proposition that he was to be paid<br />
£5m for “facilitation”. At all events, the court is faced with a large evidential gap.<br />
130. At first I was puzzled as to what Mr Butler-Creagh‟s role actually was or how it was<br />
perceived by Ms Hersham and Mr Sewell. Why was he on the scene at all? What<br />
was he supposed to be doing? Whatever it was, was he supposed to be doing it out of<br />
the goodness of his heart (somewhat unlikely)? The picture is somewhat clouded by<br />
the fact that for a long time Mr Butler-Creagh and Ms Hersham seem to have been<br />
friends and there was a remarkable informality about their relationship and dealings.<br />
(That may account, for example, for his being allowed to base his business activities<br />
on site free of rent.) He rendered an invoice for his £5m immediately following<br />
<strong>com</strong>pletion in April 2010 and claimed to be astonished that it was not immediately<br />
settled. His suggestion is that he was owed the money because of “facilitating”<br />
something – either exchange of contracts or <strong>com</strong>pletion. Given that the whole edifice<br />
was based on a series of deceptions, and that he had no standing at all in the matter, it<br />
is hard to understand what facilitation was required. It could have progressed as a<br />
relatively straightforward conveyancing transaction between vendors and purchaser –<br />
using its solicitor of choice. Mr Butler-Creagh had inserted himself between them<br />
quite needlessly.<br />
131. Some other ways of putting his claim were advanced. There was a “reduction” from<br />
£22.5m to £16.5m in the agreed purchase price between Mr Butler-Creagh‟s tender<br />
price at the end of June and the exchange of contracts between Cherrilow and the<br />
Marian Fathers on 10 December 2008. On the other hand, that was all that Ms<br />
Hersham and Cherrilow intended or were willing to pay. This information was<br />
conveyed through the medium of Mr Butler-Creagh, but only because he had falsely<br />
claimed to be a necessary intermediary. Had Ms Hersham dealt directly with the<br />
vendors, it is possible that a lower price would have been negotiated (unaffected by<br />
the inflationary influence of Mr Butler-Creagh‟s artificially high bid). Be that as it<br />
may, however, the “reduction” would not justify the payment of any “fee” to Mr<br />
Butler-Creagh. This argument was tantamount to saying that Cherrilow should pay<br />
him £5m for having reduced the purchase price payable to the Marian Fathers by<br />
£6m. I suppose it lacks nothing by way of chutzpah, but how <strong>com</strong>fortably it sits with<br />
his “mutual duty of good faith”, owed to the Fathers, is another question.<br />
132. One suggestion was that Mr Butler-Creagh had effected certain introductions to<br />
professionals, but this cannot justify payment of any fee either. The principal<br />
example given was that of Mr Tim Mullany, as “architect” who proved (as I think Mr<br />
Butler-Creagh effectively conceded) worse than useless, costing Cherrilow £120,000.<br />
He lacked any relevant qualifications and achieved nothing. He was sacked on 29<br />
July 2009. Mr Butler-Creagh can hardly expect to be remunerated for this, least of all<br />
by reason of unjust enrichment.<br />
133. In these very unusual circumstances, it is difficult to <strong>com</strong>e to a definitive conclusion<br />
as to his actual role, since there is no evidence of a mutual understanding. It was not<br />
analysed or defined. Until after <strong>com</strong>pletion had taken place, Ms Hersham and Mr<br />
Sewell were still labouring under various misconceptions. Mr Butler-Creagh knew<br />
the true position and, for that reason, has found it difficult throughout, including while
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
in the witness box, to identify exactly what he was doing there or why it should be<br />
worth £5m. He accepted that he had never been “project manager” (as had at one<br />
stage been tentatively suggested). It seems clear that between December 2008 and<br />
July 2009, when Ms Hersham decided that she had little choice but to take charge of<br />
operations herself, virtually nothing was achieved. At one stage, there was talk of his<br />
playing a role in relation to planning, but he had no relevant skills or experience and,<br />
in any event, that was a task assigned to Mr Phillips and Mr Cooper.<br />
134. The only conclusion I can reach corresponds to the general perception described by<br />
Ms Hersham in the witness box, when challenged about the letter backdated to 18<br />
December 2008; that is to say, she believed for some time that all concerned were<br />
going to make a significant profit and Mr Butler-Creagh would at that stage get a<br />
share:<br />
“I envisaged that he was going to do all the work at Fawley<br />
Court. I believed he was going to deliver all the profits that he<br />
was going to get on the projections of £32m profit and I<br />
thought that he would be remunerated handsomely for all of<br />
that, so I did genuinely believe that, sir.”<br />
Earlier, she had said:<br />
“ … this letter was written in good faith and in genuine belief<br />
that everybody was going to <strong>com</strong>e out with a lot of money and<br />
very happy.”<br />
In other words, if required to attach a formal label to the exercise, she seemed to be<br />
characterising it as a kind of joint venture with each participant‟s profit depending<br />
upon a successful out<strong>com</strong>e. It is of some interest that a “joint venture” option was<br />
being discussed as late as 4 December 2008 by Mr Butler-Creagh with Mr Osmond<br />
and Mr Rangeley – another fact which is inconsistent with a concluded fee agreement<br />
on 19 October (as Mr Osmond had to accept). It would by no means, therefore, be<br />
unrealistic of Ms Hersham to interpret the exercise in that way. As time went by,<br />
however, it turned out that Mr Butler-Creagh was not intending to share any risk and<br />
had no funds or significant expertise to contribute.<br />
135. He is unable to identify exactly what is supposedly due to him, but he has set out in<br />
broad terms what he can remember. He happened to be at Fawley Court up to<br />
<strong>com</strong>pletion, occupying office space free of charge, and took the opportunity from time<br />
to time to let people in and show them round (experts, advisers, tradesmen and so on).<br />
He himself used the term “door keeper”. Nevertheless, despite these relatively<br />
modest contributions, it seems that Ms Hersham and/or Cherrilow would probably<br />
have allocated him a “cut” if the project came to fruition and there was a profit to<br />
show for it. Since that never happened, I cannot see that he has any accrued<br />
entitlement or even legitimate expectation. His cross-claim against Cherrilow must<br />
therefore be dismissed.<br />
136. The quantum meruit argument was also advanced against Ms Hersham, as an<br />
alternative to the claim in contract, but that does not work since the purchaser of the<br />
property was Cherrilow. Its “enrichment” is what matters. This argument led to<br />
several attempts to investigate the trust structure behind Cherrilow. It was variously
THE HONOURABLE MR JUSTICE EADY<br />
<strong>Approved</strong> <strong>Judgment</strong><br />
Butler-Creagh v Hersham<br />
argued that Ms Hersham should be regarded as the “principal” of Cherrilow or a<br />
beneficiary of the trust. She is neither a settlor nor a beneficiary. It is undisputed that<br />
Mr Butler-Creagh is aware of the beneficiaries‟ identities. Any claim that the trust<br />
was not genuine was eschewed by Mr Lewis at an early stage and it is not open to<br />
him, therefore, to investigate the trust with a view to identifying Ms Hersham as a<br />
beneficiary. Nor would such an exercise bear upon any other of the true issues in the<br />
case. In any event, there is no reason why Mr Butler-Creagh would be able to<br />
establish a quantum meruit against Ms Hersham any more than against Cherrilow.<br />
The ultimate out<strong>com</strong>e<br />
137. It follows that Cherrilow‟s claim in deceit has succeeded and Mr Butler-Creagh‟s<br />
claim against Ms Hersham and cross-claim against Cherrilow have failed.