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THE HONOURABLE MR JUSTICE EADY Approved Judgment Butler-Creagh v Hersham 89. One of the most significant is said to be the claim to a right of exclusivity or “lock out”. In this instance, the scales only fell from Cherrilow‟s eyes (and those of Ms Hersham) on 29 April 2010 when Mr Osmond sent a copy of the expired agreement. This was, of course, after completion had taken place. The fact that it had been hidden at all is a further illustration of Osmonds‟ extraordinary conflict of interest. 90. It was even more recently that Cherrilow became aware that Mr Butler-Creagh‟s claims that he had the wherewithal to purchase and develop Fawley Court were untrue. It was only the disclosure orders made in this litigation, and the evidence from the Bank of Ireland, which revealed that the cupboard had always been more or less bare. 91. It is also said that Cherrilow did not realise the true value of Fawley Court as at December 2008 until it obtained the expert evidence of Mr Nicholas Greene to the effect that it was worth only £10m. That is the only expert evidence on that subject before the court. 92. Mr Butler-Creagh pleads that it would have been irrational for Ms Hersham to place reliance on any claims made by him without putting in train enquiries of her own. It is in this context that Mr Auld cited a number of authorities to support the proposition that one to whom a representation has been made does not have a duty to verify it before acting upon it: King v Wilson (1843) 6 Beav 124, 129, per Lord Langdale MR; Redgrave v Hurd (1881) 20 Ch D 1, 14, per Jessel MR; Haas Timber & Trading Co Pty Ltd v Wade (1954) 94 CLR 593, 601. So also, he submits, it is not open to a defendant in deceit proceedings to rely on alleged carelessness on the claimant‟s part in failing to discover the truth: see e.g. Clerk & Lindsell on Tort (20 th edn) at para 18- 37 and Spencer Bower on Actionable Misrepresentation (4 th edn) at para 188. There is no doctrine of contributory negligence. 93. The justification for this aspect of legal policy is especially evident in a case such as this, where the defendant has made representations as to urgency, specifically with a view to discouraging independent checks being made on his claims. 94. Against that background, it seems less implausible to attribute responsibility to Mr Butler-Creagh for Cherrilow‟s acquisition, and any consequential losses there may have been. What seemed to have been of particular significance at that stage were his claims of “urgency” coupled with his optimistic valuation. That clearly affected Ms Hersham and Mr Sewell. Another factor was undoubtedly his claim to 25 years‟ experience as a developer. He was ordered to provide information, shortly before trial, as to his best examples of relevant development experience. It emerged that there was nothing remotely comparable to the nature or scale of development he was proposing at Fawley Court. Indeed, most of his past property experience had been by way of dealing rather than developing. This meant that his claims to Ms Hersham as to what could be achieved for Fawley Court, how long it would take and at what cost, were virtually worthless. They may have derived to an extent from the appraisal by Mr Kearsley, but were put forward as reliable and effectively endorsed by Mr Butler- Creagh in the light of his supposed experience. 95. The claim to have had 25 years of relevant experience in planning and property development can be characterised primarily as one of fact rather than opinion. Moreover, it is relevant also to the other representations as to valuation and the
THE HONOURABLE MR JUSTICE EADY Approved Judgment Butler-Creagh v Hersham proposed cost of development. Those claims involved the implicit factual assertion that the opinions expressed were those of a person with that sort of experience. The figures he gave did not purport to have merely been plucked out of thin air, but rather to have been based on relevant expertise. Further, even on the hypothesis that Mr Butler-Creagh genuinely believed that his estimates at the time were valid (perhaps having deluded even himself), there is scope for Cherrilow to argue that he had no reasonable grounds for any such belief. That would be contrary to the impression created in the listener by claims of long experience. The implicit assertion that the estimates or opinions expressed were based on his expertise is itself factual in character. Moreover, that claim cannot be separated out from the assessment of value: the two are indivisible. 96. These were the representations that seem to me to have been of particular significance because, as she attested vehemently in the witness box, Ms Hersham attached most importance to them at the time. He was presenting himself almost as a “package”. She thought she could rely upon his experience and development skills. As she put it in the witness box, “ … for me his ability was critical”. 97. It is now possible to understand that the estimates were not based on any objectively reasoned assessment. What was apparent from his evidence in this trial, and from other material that has come to light, is that his conduct from June 2008 onwards was driven predominantly by his plan to conjure up a payment of £5m on the false pretence that he was someone with whom any prospective purchaser had to do business. He had managed to insinuate himself between the Marian Fathers and any genuine purchaser purely for that purpose. 98. The false claims of urgency, because of supposed rival bids, were also plainly material in Mr Sewell‟s decision to recommend the acquisition to Cherrilow. They too were demonstrably false. There were in fact no other “punters” interested in making offers anywhere near Mr Butler-Creagh‟s bid. It is now known, from a letter sent by Mr Conway to the Marian Fathers on 4 December 2008, that the only other prospective purchaser in the offing was Tusk Developments, which had earlier offered £18m but would now “only be prepared to pay up to £12m”. It is also relevant that, according to a report in the Catholic Herald as early as 16 May 2008, the property had been offered at £14m by the Marian Fathers before it was put on the market. 99. It is said that if Cherrilow, through Mr Sewell in particular, had been able to make a judgment at or prior to 10 December 2008, unencumbered by these misrepresentations, the position would have been quite different. Either Cherrilow would not have purchased Fawley Court at all or, if still interested, the purchase price would have been reduced to what is now said to have been the true market value of £10m. 100. It may be helpful in this context to spell out in rather more detail what that hypothetical scenario would have been like. The position then confronting Mr Sewell and/or Ms Hersham would have been very different. They would have known the following matters: i) Mr Butler-Creagh had no exclusivity or “lock out” deal and no other locus standi at all (save as the prospective purchaser under his contract with the vendors).
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