Approved Judgment - clients.squareeye.com

THE HONOURABLE MR JUSTICE EADY
Approved Judgment
Butler-Creagh v Hersham
appearance of a carefully assessed business plan and to tantalise them with the
prospect of an absurdly high return. How it came to be “commissioned” and whether
it was paid for is unknown, but its purpose is clear.
26. Two or three days later, Ms Hersham emerged as an another prospective “punter”
following an introduction from a Mr Ted Dadley, who happened to mention her name
to Mr Butler-Creagh in a public house in Henley on the evening of Friday, 17
October. (He did rather well out of it, receiving an introducer‟s fee of some £65,000.)
The plan remained unchanged. She too was to be deceived into thinking that Mr
Butler-Creagh still had an exclusivity, or “lock out”, agreement which meant that she
had to deal with him. The intention was to “rip off” both her and the Marian Fathers
(although I suspect that in Ms Hersham he had met his match). It is highly likely that
he would have shown her the recently acquired Kearsley appraisal as part of his “sales
pitch” at the earliest opportunity. He certainly accepts that he faxed it to her, but not
until an email of 29 November. I cannot be satisfied, however, to the required
standard that it was actually produced at their first meeting.
27. Mr Butler-Creagh‟s ploy was to be facilitated by telling Ms Hersham falsely that she
could not use her own solicitor, Mr Edward Landau, but that it was necessary for her
to use Osmonds. This clearly was to the advantage both of Mr Butler-Creagh and of
Mr Osmond, who was well aware (as he admitted in the witness box) that “Ms
Hersham could have gone direct to the vendor”.
28. This device enabled Mr Butler-Creagh to conceal the truth about the exclusivity
agreement. Osmonds kept hidden from Ms Hersham for 18 months the content of the
document, the limited effect of its terms and, more importantly, the fact that it had
expired before she even came on the scene.
29. As for the attendance note of 15 October, that was only disclosed to Cherrilow on 3
June 2011. By what Mr Osmond characterised as an “oversight”, no client retainer
letter was sent to either Ms Hersham or Cherrilow prior to the exchange of contracts
in December 2008 (cf. Rule 2.02 of the Code of Conduct). It was not just a question
of omission, however, since in a letter to Mr Landau of 21 October Mr Osmond
positively misled him. He purported to enclose “a complete bundle of all
documentation relating to [Mr Butler-Creagh‟s] purchase of Fawley Court”. It was
manifestly not complete, since it did not contain the expired exclusivity agreement.
30. It is obvious that Mr Butler-Creagh had hoped and intended to reduce any
arrangement with Ms Hersham into writing. Several drafts emerged, none of which
was ever agreed or signed. Moreover, they contained various terms he hoped to have
incorporated which had never been mentioned on 19 October. These included, for
example, provision for a guarantee or indemnity. This tends to confirm, in my
judgment, that no concluded oral agreement had been reached on that date.
31. The drafting process is quite revealing. Mr Butler-Creagh wasted no time. On the
day after his meeting with Ms Hersham, he gave instructions to Mr Osmond. They
were not recorded in an attendance note. Mr Osmond thereafter set about drafting a
“deed of commission and indemnity” with a view to Ms Hersham committing herself
to its terms. A rather shadowy figure called Mr Rangeley was involved in advising on
the matter. He was a struck off solicitor (or, as he preferred, “non-practising”). He is