Approved Judgment - clients.squareeye.com

THE HONOURABLE MR JUSTICE EADY
Approved Judgment
We would like to thank you at this point for all your assistance
and invaluable input in this matter.”
Butler-Creagh v Hersham
47. It is common ground that an email in these terms was created on or about 7 March
2009 at Mr Butler-Creagh‟s request. She says that she typed it at No 20 Eaton Square
that morning at his dictation. She sent it by email twice, once without and the second
time with her address. He wanted to give some pressing creditors “comfort”, by way
of assuring them that he was owed £5m and that it was due to be paid at some
identifiable point in the medium term. Ms Hersham was willing to go along with this,
as Mr Brisby QC recognised, somewhat “unwisely”. That was, of course, a
euphemism.
48. At all events, Ms Hersham appears to have adopted her little-used maiden name and
dated the email 18 December – when it so happened that she had been out of the
country. This was with a view to making the document “deniable” later. Ms
Hersham says that this was Mr Butler-Creagh‟s idea and indeed that he dictated the
contents to her. It may be that she regrets having allowed herself to be talked into
this, but she must have known that it would be used to mislead others. No such
agreement had been entered into on 18 December. It may not reflect much credit on
Ms Hersham, but it does not enhance the merits of Mr Butler-Creagh‟s claim either,
since that depends upon establishing an oral agreement two months earlier.
49. She also says that he promised her that the document would not be used as an
admission against her. This is one of the many disputed factual allegations in the
case. Whichever version is true, however, it does not assist Mr Butler-Creagh for at
least two reasons. First, the purported letter differs in its terms from the pleaded oral
agreement. Secondly, since it is a bogus document, it is capable of confirming
nothing. It was created for a particular purpose and has no greater significance.
Despite assuring Ms Hersham that he would not use the document against her, since
she was providing him with it purely as a favour, he nonetheless consulted Mr
Osmond with a view to doing just that. Mr Osmond gave such advice uninhibited by
the fact that Cherrilow was his client (and indeed paying the bill). It is possible that
Mr Butler-Creagh was actually under no particular pressure from creditors in March
2009 and that his primary or even sole purpose in obtaining the document was to use
it against Ms Hersham to support his claim to £5m.
50. At some point it appears that the content of the email might have been cut and pasted
into a hard copy letter which purports actually to have been signed by Ms Hersham
(again using her maiden name). On the other hand, on close examination, the two
versions are differently set out and have different font sizes and punctuation. In the
witness box Mr Butler-Creagh said he collected this version from Ms Hersham on
Sunday, 8 March, although earlier he had said it was on the Saturday. She does not
accept this and claims to have been on her way to Henley at the time. It remains
something of a mystery as to when and by whom the signed version was created. At
all events, the experts were unable to find that version on any of Ms Hersham‟s
computers.
51. I should add that Ms Hersham‟s case on this document was for a long time rather
obscure. Mr Lewis submitted that she did not deny outright that she signed the
document until she was in the witness box. Hitherto she had adopted a policy of non-