Att 1447620820391

Neutral CitationNumber: [2010] EWHC 306 (CH)
Case
No: HC08C03684
IN TIIE HIGII QOURT OF JUSTICE

CHANCERY DTVISION
Roval Courts of Justice
Strand. London. WCZA 2LL
Date: 19/0212010
Before
THE IION MR JUSTICE BLAIR

Between :
(1) DAVrD BAXTER EDWARD THOMAS
(2) PETER SAFIDFORD GANDER
Claimants
-andBPE SOLICITORS (a firm)
Defendants
Mr Jeremy Cousins QC and Mr Hugb Jackson (instructed by Wright Hassall LLP) for the
Claimants
Mr Michael Douglas QC and Mr Michael Davie (instnrcted by Beale and Company
Solicitors LLP) for the Defendants
Hearing dates: 2,3,4, 5 and 8 February 2010
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
THE HON MR JUSTICE BLAIR
THE HON MRJUSTICE
BL{R
Aooroved Judqment
Mr Justice Blair
l.
Thomas and Gander -v- BPE Solicitors
This is a claim by the claimants, Mr David Thomas and Mr Peter Gander, against
their former solicitors, BPE Solicitors, which is a firm with offices in Cheltenham and
elsewhere. It is alleged that the defendants were negligent in connection with the sale
of the claimants' shares in a company called PDP Management Services Ltd ("PDP").
At the last minute, the vendor withdrew from the deal. The claimants allege (among
other things) that the defendants were negligent in failing to advise the claimants that
by then the transaction had completed. Had they known, their case is that they would
have insisted upon the transaction being given fuIl effect, and would have required the
receipt of monies payable under the buyer's solicitors' undertaking. The defendants'
case is that completion did not take place, so that there was no failure to advise in that
respect, and that even if it did, the actual course of events demonstrates that the
parties would nevertheless, in the changed financial circumstances, have agreed that
the transaction should be cancelled. The claimants accept that, if their claim
succeeds, they have to give credit for the value of the shareholdings which they
retained in PDP, but there is a dispute as to how much their shares were worth.
The setting up and proposed sale of PDP
2.
The facts as I find them to be are as follows. Mr Thomas's background is in banking

where he held senior positions with Midland Bank (now HSBC) and then the TSB
Group. On being made redundant from his position as an Area Director for the North
West, he took on a senior management role at a company called Legat & Trade. Part
of his responsibilities was to bring to market a new service in respect of what has been
called mortgage affears counselling. He subsequently moved to a company called
Intrum Justitia which is a credit managernent goup, and it was through that business
that he met Mr Peter Wilson, who was Group Finance Director. Through Mr Thomas,
Intrum Justitia recruited Mr Gander, a mathematics graduate who already had
experience at a senior level in this tlpe of business, and who was engaged to set up a
similar unit within Intrum Justitia.
3.
Following the three of them being made redundant, in the course of 1997, IvIr
Thomas, Mr Gander and Mr Wilson decided to set up PDP as a company operating in
the mortgage counselling field. The company was incorporated in 1998 with offices
inBanbury. PDP had an issued share capital of f 10,000 divided into 10,000 Ordinary
Shares of fl. The three shareholders each owned one third of the issued share capital
(to be precise Mr Wilson owned 3334 shares and the claimants owned 3333 each).
They were each directors, ffid Mr Wilson was also the Company Secretary. There
were three registered charges attaching to the shares, two of which were held by Close
Invoice Finance Ltd which provided factoring services to the company.
4.
Reflecting the expertise of its founders, the company's business was the provision of
services of behalf of lenders in relation to mortgage affears, but a major source of
business became what they describe as utility companies' service calling. To quote
from the claimants' written opening, it was in this field that Powergen became a
major source of PDP's business. By the summer of 2007, it is common ground that
Powergen represented in excess of a third of PDP's turnover. As regards their
respective responsibilities, Mr Thomas told me that Mr Gander dealt with the
mortgage affears side of the business, Mr Wilson dealt with the utilities side of the
THE HON MRJUSTICB BLAIR
Thomas and Cmnder -v- BPE Solicitors
Annrcved Judsment
business, ffid he dealt with the property side of the business, by which facilities were
provided for buy-to-let investors.
5.
Both Mr Thomas and Mr Gander gave evide,nce at the trial, though Mr Wilson did
not. I found them both to be honest witnesses, who did their best to assist the court on
the matters in issue. Mrs Thomas and Mrs Gander provided witness staternents, but
they were not subject to cross examination, and so were not called. (The same applies
to Mr Richard Lilley, who was Mr Gander's banker at the time of the transaction.) I
shall come back to their evidence, but it is not in dispute that for a long time personal
relationships between the clairnants had been strained. Relationships deteriorated to
the point that the claimants had little to do with each other at work from about the
summer of 2004. Though a substantial part of their witness statements deals with this
subject, as their written opening puts it, the reasons for these diffrculties are perhaps
unimportant. The important point, which I fully accept, is that these difficulties
existed and caused the directors to wish for a parting of the ways. Additionally, Mr
Gander lives in Croydon, which is a five hour return drive from the company's offices
in Banbury, which meant that he and his wife (who also worked for the company) had
to live in inadequate PDP funded accommodation during the week. Furthermore, both
claimants reached an age at which they wished to retire. In addition, as Mr Thomas
puts it, there was a perception growing within PDP that its business was on a plateau,
and it was time to sell.
6.
In late 2005 or early 2006, an outside party approached the directors with a view to
purchasing PDP. In the event this approach did not lead to a sale, but it appears to
have caused the directors to take the possibility seriously. I am satisfied that by then,
as they contend, each of the claimants was anxious to sell their stakes in the business.
In late 2A06, the directors decided to retain the services of Mr Ken Elrick to market
PDP through his Tudor Holdings consultancy. The claimants point out that Mr Elrick
had a substantial financial incentive to achieve a sale, and at a high value, becauseo in
addition to his hourly based fees, he was entitled to be paid 10 per cent of any
consideration over f2.85m. The company's accountants, Merrick & Co, prepared a
draft share valuation dated 16 October 2006. Its conclusion was that, "The minimum
value of the company based on the last three years' post tax profits to March 31 2006
is 91,480,000 and the maximum f2,368,000 using 5 or 8 as a profit multiple
respectively. If the forecast figures for the three years to 31 March 2009 are used, ffid
these may or may not be maintainable profits, the minimum value of the company is
f,3,455,000 and the maximum value is f5,520,000 using 5 or 8 as a profit multiple
respectively. If a six year average of historical and forecast profits is used, then the
minimum value would be f2,465,000 and the maximum value would be f3,944,000
using 5 or 8 as a profit multiple respectively."
The MBO
7.
Efforts to market the company did not meet with success, and the parties began to
think in terms of Mr Wilson (who was younger than either of them) buyrng out his
fellow shareholders. Discussions between Mr Wilson and Mr Mike Johnson of Royal
Bank of Scotland in May 2007 led to concrete proposals for a purchase by Mr Wilson
funded by the Bank. The transaction was styled "Project Communicatot''. Mr Elrick
drafted Heads of Terms setting out the agreement in principle reached betwee,n the
shareholders. A new company subsequently called PDP Management Holdings Ltd
was to be set up to purchase the shares in the company for f,3 million funded as to the
Aoproved Judgment
cash element by lending from the Bank.
Mr Wilson was to receive shares to the value

of f,l million in the new company in exchange for his shares in PDP, Mr Gander was
to receive f950,000 in cash on completion, and Mr Thomas was to receive f550,000
in cash and f,500,000 in interest bearing deferred loan notes at a coupon of 0.5% over
base rate. Mr Thomas says that he was reluctant to accept loan notes rather than the
fulI amor:nt in cash, but Mr Gander's insistence on taking his share in cash made such
an {urangement inevitable.
8.
It was at this point in time that the parties retained solicitors, the firms in question
being recoillmended by Mr Elrick. On 30 May 2007, the claimants went to the offices
of the defendant firm, where they were introduced by Mr Elrick to Mr Tim Ward, the
partner who would handle the transaction on their behalf. At that time, he had been
qualified for some ten years. The deal was outlined to him, and the claimants say, and
I accept, that he told them that he had considerable experience in acting in the sale
and purchase of companies, as indeed he had. The Heads of Terms were sent to him
the following day (they were signed by the parties on 5 June 2007). The claimants
formally instructed the defendant to act for them in the sale of their PDP shares by a
letter of retainer dated 1 June 2007 . Mr Ward was to be assisted by a trainee solicitor
called Mr David Dew. The transaction was not considered a complex one, and at this
stage, completion of the sale was envisaged as taking place in July 2007.
9.
Meanwhile, Mr Wilson instructed Rickerbys, another Cheltenham firm of solicitors,

on behalf of himself and the new company Holdings that would purchase the shares in
PDP. Rickerbys initially acted through Mr Richard Knight, a partner. Mr Knight
was assisted from mid-July 2007 onwards by Mr Richard Cusack, who had qualified
in Septernber 2006. In the week commencing 20 August 2007, which is the crucial
week so far as the completion issue is concerned, Mr Knight was on holiday and Mr
Cusack had conduct of the transaction on behalf of Holdings and Mr Wilson, subject
to the superuision of Mr Edward Davies and Mr Jonathan Morley, both partners in
Rickerbys. A Staffordshire firm of solicitors called Knight & Sons acted on behalf of
National Westminster Bank Plc (part of the Royal Bank of Scotland group), which
provided finance for the transaction and also for RBSIF (Royal Bank of Scotland
Invoice Financing Limited) which was to take over the factoring business from Close.
Knight & Sons acted through a solicitor called Ms Joanna Dale. I should say at this
point of time that Mr Ward, Mr Dew and Mr Cusack gave evidence for the defendants
at trial.
10.
As discussions proceeded, following due diligence by accountants appointed by the

Bank, the company's projections were revised downwards, and the Bank reduced the
cash advance from f,l,500,000 to f 1,300,000. Mr Ganderhowever continued to insist
on payment of f950,000 in cash in full, and anxious as he was for the deal to proceed,
in about late July Mr Thomas agreed to take f350,000 in cash with f,700,000 in loan
notes repayable over five years. That was the final shape of the deal so far as the
vendors and purchasers were concerned.
lt.
Matters progressed up to the week of Monday 20 August 20A7. As Mr Thomas

explains, on that day Mr Wilson ran revised financials (i.e. a cash flow forecast) based
on the current position, ffid was concerned about the short term cash flow of the
company. Mr Gander offered to defer fl50,000 of his payment by way of loan notes,
or take an equity stake of 150,000 following the deal, but Mr Elrick told them that
the Bank was not comfortable with this late change, and would only agree to it subject
THE HON MRJUSTICE BLAIR
Anoroved Judqment
to reducing the up-front advance by the same amount. On 22 August 2007, Mr Dew
sent the documents including the Share Purchase Agreement to the claimants for
signing, but they were asked not to date them. Mr Thomas and Mr Gander duly
signed, and the documents were subsequently taken by Mr Wilson to Rickerbys.
12.
At this point, it is convenient to note the material adverse change provisions in the
SPA and the Loan Agreement. By the clause 5 and Schedule 4 of the SPA the sellers
(that is, the claimants and Mr Wilson) warranted to the buyer (that is PDP
Management Holdings Ltd), inter alia, that since the Accounts Date, which was 31st
March 2007, there had been "no material adverse change in the turnover, financial
position or (so far as the Sellers are aware but without making enquiry of any third
party), the prospects of [PDP]" (see paragraph 17). The Loan Agreement between
National Westminster Bank Plc and PDP Management Holdings Ltd by which the
loan to fund the purchase was made also contained warranties. By clause 8.1(g),
Holdings warranted that "...there has been no material adverse change in its business
or financial condition of the business or financial condition of the Group since the
date of [the] financial statements".
13.
The terms of the SPA (as set out below) contemplated completion taking place on the
date of the agreement at a place agreed by the sellers and the buyer. In fact, a meeting
room was booked for the completion meeting at Rickerbys' offices on the afternoon
of Thursday 23 August 2007. (Mr Ward did not plan to be present.) Completion did
not occur as planned because an issue again arose as to the impact on the fransaction
of possible cash flow difficulties facing the business. Mr Cusack of Rickerbys made a
note of receiving a telephone call from Mr Elrick at 9 a.m. on23 August 2007, to the
effect that there was a "small problCIn" in that "sales in PDP had fallen quite
substantially in the last coupie of months". Mr Thomas and Mr Gander describe how
they met with Mr Wilson and Mr Elrick at the latter's home that morning. Mr Gander
said that he would be prepared to put up to f150,000 into the new company if the
need arose. Mr Cusack's attendance notes also record a call from Mr Ward that
morning 'oin respect of the changed deal", though Ndr Ward still thought that
completion was achievable that day or possibly the next. In any case, matte,rs were
resolved, ffid that afternoon Mr Gander emailed Mr Dew to the ef,[ect that '\pe are
going ahead with the original deal - straight cash to me". On the evening of Thursday
23 August 2007, Mr Cusack was told that the Bank 'Just needed sight of the signed
docume,nts in preparation for sending the monies through on 24 Augusf'. All seemed
set therefore for completion the following day.
The issues between the parties
14.
Up to 24 August 2007, there are no relevant factual issues between the parties. The
issues that arise between thern thereafter are heavily dependent on what happened
next. I will need to consider the facts carefully, and reach findings on the matters in
dispute. To put the discussion into context, I begin, as the claimants have done, by
identiffing the relevant issues.
(1)
Did completion of the transaction occur on 24th August 2007 ("the completion
issue")? The claimants say that it did, the defendants say that it did not. This has
bee,n described as by far the most important issue in the case, and it is where the
bulk of the parties' written and oral submissions have been focused.
Thomas and Gander -v- BPE Soliciton
Aoproved Judgment
(2)
Were the defendants negligent in failing to advise the claimants of the fact of
completion and of the rights arising in that regard in respect of an undertaking by
the purchaser's solicitors to transfer the completion money ("the faihne to advise
issue")? This is largely dependent on the sonclusion reached in respect of the
completion issue.
(3) If completion did not occur because of the non-acceptance,
or rejection of, the

purchaser's solicitors' undertaking, was this negligent on the part of the defendants
("the non-acceptance of rxrdertaking issue")? A number of sub-issues arise in this
regard. One is whether, if the defendants in fact accepted the undertaking by
subsequent email, as a matter of law such acceptance was effective upon sending, as
the claimants argue by analogy to the "postal ruIe", or whether acceptance by email
should be treated in the same way as other instantaneous cofilmunications (Entores
Ltdv Miles Far East Corporationl19551 2 QB 327),as the defendants argue.
(4)
In the light of information which emerged on 25 August 2007 , would the claimants
in any event have agreed voluntarily to rescind, or as the defendants prefer to put it,
not to proceed with, the transaction despite completion? Would any attenrpt to
adhere to completion have foundered because of the complexities and expense of
litigation ("the causation issue")?
(5)
What is the value of the assets in the form of their original shareholdings in PDP
which the claimants have retained as a result of the abandonment of the transaction
("the quantum issue")?
Friday. 24 August 2007
15.
Mr Thomas took 24 August off and spent it with his family in Oxford. Mr Gander, in
the expectation that completion would occur that day, had packed his things up in
PDP's Banbury offices, and returned to his home in Croydon. He was shortly to go
on holiday to Italy to mark his 30th wedding anniversary and the end of his working
life. Mr Ward was in and out of the office on Friday (he was working on another
transaction at the time), and when he was absent Mr Dew dealt with the matter. As I
have said, by that time Mr Cusack was handling the matter at Rickerbys for the
purchaser, the partner in charge (Mr Knight) being on holiday. Mr Ward records in
his witness statement that, "All of the signed, undated transaction documents were at
Rickerbys by the morning of 24 August 2007". By then the bank had put Knight &
Sons in funds (the firm held f.1,410,000 ready to be paid to Rickerbys). During the
morning, Mr Cusack sent copies of the signed transaction documents to the
defendants and to Knight & Sons by way of attachments to emails (some thirty seven
were sent this way at 11.08). In fact, Mr Ward's recollection is not quite accurate,
because though by the afternoon almost all the documents had been sent to the
defendants, the Loan Note signed by Mr Wilson in respect of that part of the
consideration due to Mr Thomas was still outstanding.
16.
Thereafter, it is necessary to examine the sequence of events in some detail. In this

respect, I have heard oral evidence from three of the four solicitors who were
involved that afternoon, namely Mr Ward and Mr Dew of the defendant firm, and Mr
Cusack of Rickerbys. I should say that Mr Dew and Mr Cusack have since moved to
new firms. I found each of them to be honest witnesses, who were concerned to put
an accurate account before the court, though my impression was that Mr Ward, in
Thomas and Gander-v- BPE Solicitors
Appruved Judsment
particular, had a tendency to reconstruct what took place after the event. This may be
in part because he was dealing with other matters at the time, and did not expect his
conduct of this transaction to be called into question until, without prior warning, his
firm received the Professional Negligence Pre-action Protocol dated 13 Decenrber
2007 from the claimants. By then, some months had passed. In any case, since the
recollection of all three solicitors is strongly challenged by the claimants, the
documentary evidence in the form of emails and otherrvise is of prime importance.
As regards the receipt of ernails when they were out of the office, I should mention
that at this time none of the solicitors had a BlackBerry.
The early afternoon
17. At 15.00, Mr Ward says that he still did not know whether completion was likely to
take place that day or the following week. The weekend was the bank holiday
weekend, ffid the banks would be closed on Monday. The defendantso case is that
there was no urgency in that regard. I am satisfied that Mr Ward instructed Mr Dew
to call Mr Cusack to call him (Mr Ward) on his mobile phone when he was ready to
complete. Mr Cusackos secretary took a note of a telephone message left by Mr Dew
at 15.03:
"Re: Completion project communicator Can you call Tim Ward when you are
ready to cornplete".
18.
Under clause 4.3.1 of the SPA, at completion the buyer had to pay the sum of
f I,300,000 by telegraphic transfer to the sellers' solicitors, i.e. the defendants.
However, it is common ground that at 15:30 in the afternoon, the time for making
same-day electronic transfers expired without the funds having been transferred, so
that payment of the purchase consideration that day was no longer possible. In fact,
the buyer's solicitors (i.e. Rickerbys) were not themselves in funds. The Bank's
solicitors (i.e. Knight & Sons) still held the money which had been drawn down under
the various facilities.
19.
By an email sent at 15:50, Mr Cusack forwarded the last of the signed documents
required for completion to Knight & Son. By an email sent at 15:51, Mr Cusack sent
Mr Ward (copy to Mr Dew) the signed Loan Note. This is the first of two ernails
which cast particular light on what the parties did and said at the time. Mr Cusackos
email read:
"I now attach signed Loan Note for your records.

I will call shortly, hopefully to complete."
The defendants accept that all the documents had now been provided ffido as they put
it in closing, were ready to be dated on the basis that completion took place. But, as
the claimants put it in closing, Mr Cusack had apparently overlooked the bank
deadline of 15:30.
2A.
At I 5:52 the phone records show that Mr Dew called Mr Ward's mobile phone. He
told him that he had received the Loan Note. Mr Ward says of this conversation, 'oAs

Approved Judqment
the 15:30 bank telegraphic transfer deadline had passed and we had not completed I
realised that it would not be possible to transfer the funds to BPE's bank account that
day. At that stage I did not know whether or not Rickerbys had received the fuirds
from RBS' solicitors Knight & Sons. In view of the fact that the money could not be
transferred that day I immediately realised that there was no point in Richard Cusack
calling me to complete on Friday unless I had an undertaking from him to transfer the
money. Alternatively, if we had been completing on Tuesday, Rickerbys would have
required an undertaking from BPE confirming that, following transfer of the money
we would hold the money to Rickerbys order until completion by telephone. I
therefore instructed David Dew to email Richard Cusack requesting an
undertaking as there was no point in Richard Cusack telephoning me to complete
without an undertaking in place".
2r.
Whatever Mr Ward may have thought at the time, it is clear that he and Mr Dew
spoke, and the documentary record shows that in response to Mr Cusack's ernail sent
at 15:51, Mr Dew emailed Mr Cusack at t5:59 as follows:
o'Many
thanks for this.
In readiness for completion please can
I have your undertaking to transfer
f,1,300,000 to our account on Tuesday?

Please could you call
Tim on his mobile (07766 426592) to complete."
What the parties agreed as to completion
22. I set out below the terms of the SPA as to completion, but note that it contemplated
completion taking place on the date of the agreement at a place agreed by the sellers
and the buyer. As I have said, a completion meeting in respect of the transaction was
originally planned by Rickerbys, ffid a meeting room booked at their offices on the
afternoon of 23 August 2007, albeit Mr Ward did not plan to be present. That
meeting went off because of the issue which emerged that morning as to the impact
on the transaction of possible cash flow difficulties, and which was resolved later that
day. Mr Ward maintained in cross examination that completion was nevertheless
o'formal moment in time". He said:
something that had to occur at a
o'It
corporate transactions and I have followed this in

everything that I have done -- that an undertaking is simply a prerequisite to
completion. It is one of the conditions that need to be put in place before you
can complete. It is nothing more than that. There has to be a formal moment
in time in which the parties agree that completion has been effected."
is vital in all
On this basis, the question arises as to when and how that "formal moment in timeoo
was to occur, in circumstances in which there was to be no completion meeting, and
payment could not be made that day because the deadline for electronic transfers had
passed.
23.
This issue has given rise to a fundamental difference between the parties which is at
the heart of this case. The claimants invite the court to infer that a conversation took

AoorcvedJudsment
Thomas and Gander -v- BPE Solicitots
place at around 16:00 between Mr Cusack and Mr Ward in which the method of
completion wim agreed. It is necessary to be clear as to the submission in this respect.
To quote from the claimants' written closing, "Very soon after this [i.e. Mr Dew's
email sent at 15:59], Mr Cusack spoke by telephone to Mr Ward to say that the bank
was ready to complete and that all documentation was in place. Mr Cusack had Mr
Ward's mobile number ... . In the course of the call the solicitors recognised that
completion could only be achieved by undertakings as the bank deadline had passed.
Mr Cusack was unprepared to give an unqualified undertaking to forward monies as
they \ilere still with Knights, so it was agreed that a pair of undertakings would
suffice: first an undertaking from Knights to Rickerbys to forward the monies on
Tuesday: secondly Rickerbys' undertaking to forward monies when received from
Knights". These factual assertions are said to be supported by certain material, and
"each of these documents supports the fact that Rickerbys got in touch with Mr
Wardoo. I draw attention to the words "it was agreed that a pair of undertakings would
suffice"o because this is the first of two ways in which the claimants put their case on
completion. As their oral closing made clear, their case is that it was agreed in this
conversation that the receipt of the undertakings would suffice to complete the
transaction. If so, Mr Ward's "formal moment in time" can be established by
refere,nce to the time when the "pair of undertakings" were received later that
afternoon (as they were) at the defendants' offices.
24.
The following material is relied on by the claimants to support the inference of such a
conversation.
(1) First, it is pleaded in the defence that, "By late afternoon the parties were in a position
to complete the sale and purchase transaction save that it was too late to transfer funds
that day because the bank deadline for electronic transfers had passed". In paragraph
1 1, the defence goes on to plead that, "It was agreed between Mr Tim Ward of the
Defendant and Mr Richard Cusack of Rickerbys that an undertaking of payment by
Rickerbys would subsequently be acceptable in place of transfer of funds and that
completion would be made by telephone". The claimants point out that the statement
of tnrth is signed by Mr Ward, and they rely on the fact that the defence expressly
asserts an agreement between the two solicitors.
(2) The claimants also rely on the response of 27 March 2008 by the defendants'
solicitors' following receipt of the Letter of Claim in Decernber 2007. This says
among other things that, ooThe aim was to complete on Thursday 23 August but the
papenilork was not in place and during the course of the following day, Fnday 24
August it was apparent that Rickerbys were working to finalise the documentation
with the bank. By 4pm on 24 August Rickerbys had indicated that the bank were
ready and the documentation was in place but the cut offtime for the transfer of funds
had been missed and it was not possible to transfer the money that day''. This (it is
submitted) places the time of such agreement at about 16:00. It shows, it is said, that
there was a telephone coillmunication, because some of the things which were
'tndicated'o do not appear from any of the emails.
(3) Third, the claimants refer Mr Ward's evidence, including an earlier witness statement
made by him in connection with sunmary judgment proceedings in which he says,
"... we heard from Rickerbys that the documentation with the bank was complete and
they were ready to proceed". It was conte,lrded that none of the ernails indicates that
the documentation with the bank was complete and there was a readiness to proceed.
Approved Judqment
That must have been gleaned, the claimants say, by some other means of
communication. In this respect, the claimants point out that in cross examination Mr
Cusack said that, "I believe that I was in touch with him [Mr Ward] throughout the
day''. A similar contention is made as regards the next passage, in which he says, "By
this time it was past the cut-off time for bank transfers and it was therefore impossible
for the funds to be transferred that day. The only alternative was to obtain an
undertaking from Rickerbys and Knight & Sons to transfer the funds to complete the
following TuesdaS 28m August as the Bank Holiday intervenedo'. Finally, reference
is made to a passage which states that, "I discussed the position with David Dew, who
sat in the same room, and asked him to send an e-mail to Richard Cusack asking him
to forward an undertaking to transfer the funds to our account on Tuesday. The
intention, once an acceptable undertaking had been received was to complete the
transaction by telephone as is standard practice in this situation." (I should note that
although Mr Dew sat in the same room as Mr Ward, they were not physically together
at 16:00 because Mr Ward was not in the office at that time. He did not return until
after 17:00 that afternoon.)
25.
The defendants submit that none of this provides evidence that such a conversation
took place between Mr Ward and Mr Cusack, and in particular provides no evidence
that Mr Ward was expecting a "pair of undertakings". The evidence of Mr Ward and
Mr Cusack in cross-examination was that they did not recall such a conversation. The
Rickerbys' phone records which might have established such a conversation could
have been adduced, it is said, but are not in evidence. The conversation is not
pleaded, and it is, in the defendants' view, "an invention" designed to filI a "gaping
hole" in the claimants' case. Their own case as advanced in closing submissions is
that the parties "through their respective solicitors ... agreed that completion of the
Transaction would take place by means of (l) Rickerbys providing an undertaking in
agreed terms that they would pay f 1.3m in completion monies to BPE on Tuesday 28
August 2007 and (2) a telephone call between Mr Ward for BPE and Mr Richard
Cusack for Rickerbys agreeing actual completion". The primary difference from their
pleading is that the agreement is not expressly asserted to have been reached between
Mr Ward and Mr Cusack.
26.
The defendants rely (as they put it on oral closings) on conduct, circumstances and
practice as o'supporting the agreement that completion would be upon agreement of a
satisfactory undertaking and a telephone call". They rely in particular on:
(1) The contemporaneous documentary material, namely Rickerbys attendance note of

15.03 recording Mr Dew's telephone call to Mr Cusack stating, "Can you call Tim
Ward when you are ready to complete": Mr Cusack's ernail to Mr Ward of 15.51
stating, 'oI now attach signed Loan Note for your records. I will call shortly to
complete": Mr Dew's email to Mr Cusack of 15.59 stating, "In readiness for
completion please can I have your undertaking to transfer f1,300,000 to our account
onTuesday? Please could you call Tim onhis mobile (07766 426592) to complete."
(2) The evidence of Mr Ward who stated, "...I would need to be satisfied that the terms
of the undertaking were acceptable and if they were I could complete the transaction
by means of a telephone call to Richard Cusacko', ffid of Mr Dew who said in cross
examination that he had glven Mr Ward's mobile number to Mr Cusack because, "I
was aware that once the undertaking had been received, it would be necessary in order
to achieve completion that Mr Cusack would speak to Mr Ward."
Anoroved Judsment
(3) The need in a consensual transaction for the form of an undertaking to be accepted by
the receiving party. In that regard, Mr Ward said in cross exarnination:
*And in this arrangement it never altered from the fact that that was going to
be by tele,phone. I do not know the form of the undertaking that was going to
be given, it had not been discussed in detail. I did not know whether it was
going to be signed by a partner in an acceptable form. I didn't know whether
it was going to come by just an ernail, on headed notepaper. I didn't know
when it was going to arrive. You would not agree to complete simply on
undertakings without a definitive phone call and a moment in time in order to
effect that completion."
27.
My conclusions on this issue are as follows. The claimants are probably right to
submit that there were communications between the solicitors that cannot now be
pinpointed. On the other hand, this period around 16:00, when the claimants say that
the conversation took place, has been the subject of the closest scrutiny during the
course of this case. In the event, the claimants accept that they cannot point beyond
inference to such a conversation. It does not feature in their helpful and thorough
chronology prepared for the trial. Although it is fairly said that neither of them
excluded the possibility in cross examination, Mr Cusack cannot recall making the
call, and Mr Ward cannot recall receiving it, and that in itself is important evidence.
In the absence of clear evidence that this conversation took place, I do not feel able to
draw an inference that it did. However, this conclusion may not greatly matter,
because it is common ground that something was agreed between the firms about
completion. The real issue (in my judgment) is what was agreed, rather than how it
was agreed. In that regard, I consider that there has been a degree of reconstruction of
eve,nts in the witness evidence, particularly in Mr Ward's evidence. The safest course
appears to me to look to the contemporaneous material in form of Rickerbys
attendance note of 15.03, Mr Cusack's email of 15.51, and Mr Dew's email to Mr
Cusack of 15.59. Each of these contemplates a phone call to complete the transaction.
The latter also refers to an undertaking, stating: "In readiness for completion please
can I have your undertaking to transfer f,1,300,000 to our account on Tuesday?
Please could you call Tim on his mobile (07766 426592) to complete." That in my
judgment is where the parties got to so far as completion was concerned that
afternoon, and on balance I accept the defendants' case as to what was agreed in this
regard. It did not need to be spelled out that the undertaking or undertakings which
Rickerbys were to send would have to be acceptable to the defendants, since that
would have been obvious. Thereaftffi, n call between Mr Cusack and Mr Ward was
required to complete the transaction.
28.
It follows that I reject the claimantso invitation to infer a conversation in the course of
which "it was agreed that a pair of undertakings would suffice". As the defendants
argued, correctly in my view, it is very unlikely that Mr Ward would have agreed that
the receipt of undertakings would suffice to complete the transaction, since he would
not know until he got them whether the undertakings were adequate or not. In the
claimants' oral closing a variant was advanced as follows: "Alternatively - we can see
this is possible - the solicitors might have arranged that there would be confirmation
on the part of BPE that the submitted undertakings were acceptedo ffid that
completion would occur upon that confirmation". This way of putting the case was to
e,nable a submission that completion was effected by a brief phone call that took place
Annroved Judsment
in disputed circumstances later that afternoon. I do not consider that I should infer an
agreement in these terms either. For the reasons I have grven, I have concluded on
balance that a call between Mr Cusack and Mr Ward was required to complete the
transaction, and there is no reason to confine that requirement to confirmation by the
defendants that the submitted undertakings were accepted.
The
provision of the undertakings
29.
On the evidence, what happened next is as follows. Having received Mr Dew's

ernail, Mr Cusack set about providing an undertaking. Since Rickerbys did not have
the money, he required a back to back undertaking from Knight & Sons (which he
probably aranged by phone, as he accepted in cross examination). After a chasing
email sent at 16.59, this eventually arrived. In order to provide an undertaking on
behalf of his firm, Mr Cusack had to obtain approval from a partner, which again he
did. At I 7 .14, he faxed through these undertakings to the defendants. The first was
on Rickerbys headed notepaper FAO Tim Ward dated 24 August 2007. It read:
"Dear Sirs
PROJECT COMMUNICATOR
Please accept this fax as our undertaking
to send you by telegraphic transfer

the amount of f1,300,000 in respect of the completion money for the above
matter upon receipt of the same from Knight & Sons pursuant to their
undertaking (copy enclosed).
Yours faithfully,
Rickerbys"
30.
The second was Knight

2007. It read:
& Son's
undertaking to Rickerbys again dated 24 August
"Dear Sirs,
Acquisition of PDP Management Services Limited by PDP Management

[Holdings] Limited ("Acquisition")
We curently hold the sum of f 1,410,000 (one million four hundred and ten
thousand pounds) in our client account ("the Sum").
On bank opening on the morning of Tuesday 28 August 2A07 we undertake to
instruct our bankers to transfer the Sum to your account with Lloyds TSB
Bank plc (sort code: ... and account number: ... )."
Yours faithfully,
Knight & Sons"
31.
Because the undertakings were sent by fax, whereas the parties had been
communicating by email, I am satisfied that they were not seen by either Mr Ward or
Mr Dew immediately. By now it was after five in the evening before the bank
Thomas and Gander -v- BPE Solicitons
Approved Judqment
holiday weekend, ffid Mr Ward had returned to the office. At this point, he called the
claimants on their mobile phones. He explains in his witness statement that he called
Mr Thomas from his office at 17:33, the call lasting approximately 5 to 6 minutes.
During this conversation, he says, he discussed the current situation. At 17:39, he
called Mr Gander. This call lasted approximately 4 to 5 minutes. His recollection
(which I accept) is that he had not at that point had sight of the undertaking from
Rickerbys. He says that he informed both his clients that the transaction had not yet
completed.
32.
In response to Mr Ward's witness statement to this effect, both claimants provided

furttrer witness staternents in substantially the same terms. Neither has any
o'recollection of the call but if he did speak to me then I have no doubt whatever he
said to me acoorded with my understanding that the transaction had not completed".
Whilst the cl4imants do not recall the tele,phone conversation, they are clear that it
must have been the case that Mr Ward did not inform them about the undertaking he
had received. Otherwise, they say, they would have bee,n prepared to accept such
undertaking r{ther than insisting on the receipt of cash. It is somewhat strprising (Mr
Thomas described it as a "little bizarreo') that neither claimant has any recollection of
the calls. It Was the only occasion that day on which either of them spoke to their
solicitor, a day on which they hoped that a transaction would complete which (as their
evide,lrce emphasises) they saw as vital to their futures and those of their families.
That howeven is the position, and I conclude that since Mr Gander had already
established thpt the money haci not arrived in his account by the time of the calls
(which he regarded as constituting completion) whatever Mr V/ard had to say did not
make an irnpdct on him. The same must apply to Mr Thomas, though he did not
establish the position as to his bank balance until he got back home that night after
dinner.
The 17:44 phone
33.
call
Shortly before trial, the defendants' general telephone records were disclosed, ffid
these show that at 17.44 (in other words shortly after the call by Mr Ward to Mr
Gander) a phone call of 15 seconds duration was made from BPE's general line to Mr
Cusack's extension number at Rickerbys. This has given rise to a further important
factual dispute between the parties. I start by setting out the claimants' case as to this
phone call. To quote their closing submissions, ooBy 5:44 [Mr Ward] saw the
undertakings and called Mr Cusack's direct line to confirm receipt and the fact of
completion. ... The call was not strictly necessary given the earlier arrangement as to
urdertakings to be given to achieve completion. It was a courtesy, grven the time of
day, so that Mr Cusack would know that everything was finalised. ... This call can
have had no other purpose." I have already mentioned the claimants' alternative case
as to completion, nsrmely that the solicitors arranged in the disputed conversation (i.e.
at 16:00) that there would be confirmation on the part of the defendants that the
submitted undertakings were accepted, ffid that completion would occur upon that
confirmation. Their case is that this happened when Mr Ward phoned Mr Cusack at
17.M. They say (again quoting from their written closing) that following the call, Mr
Ward "ttren realised that since completion had occurred on the Friday, but monies
would not be received for four days, interest which accrued on the monies would
belong to his clients, and he caused Mr Dew to send the 6:00 e-mail".
Anproved Judement
34.
Though I have rejected the claimants' alternative version of the disputed conversation
at 16:00, I must set out my factual findings as to the call at 1,7:44. Mr Ward accepted
in cross examination that though the call was not made from his office extension, he
and Mr Dew were the likely candidates for making it. However, he said that he did
not remernber making the call, and did not believe that he made it. He thought that
the purpose of the call would have been to raise the question of interest over the long
weekend (which was not mentioned in the undertakings), and thought it may have
been made by Mr Dew. The claimants respond in that regard that Mr Ward said in his
witness statement that he directed Mr Dew to raise the interest point by ernail. The
only thing that needed to be said on the phone, the claimants argue, was that the
undertakings were fine, the deal was done, and the paper"work could be sorted out on
Tuesday, and that could be done within fifteen seconds.
35.
The solicitors disagreed. Mr Ward said in cross examination that considerably more
than fifteen seconds would be needed, allowing for opening courtesies, the agreernent
to complete the transaction, the reconfirmation he said he would ask for that Mr
Cusack was holding the documents signed by his clients, and satisfinng himself that
Mr Cusack would send the papenvork to Mr Ward the next business day. Moreover
the defendants submit, if a call had been made making completion, it would be natural
for Mr Ward to raise the question of interest which was covered in the subsequent
email sent by Mr Dew. Mr Cusack said in cross examination that he did not
rernember the call, but that bearing in mind that this was his first unassisted
completion, "if I had made this call to complete, I believe that call would have taken a
lot longer than 15 seconds". He mentioned other completion formalities to be carried
out subsequent to the completion phone call, such as dating the documents, which he
says would have been discussed with Mr Ward.
36.
On the balance of probabilities, I am satisfied that Mr Ward and Mr Cusack did not
speak to each other at 17:44. My reasons are as follows. First, there is the evidence
of Mr Ward and Mr Cusack themselves. Although this is not wholly satisfactory in
some respects, the fact is that neither of them recall making or receiving a phone call
from the other at this time. In particular, the evidence of both is positively that there
was no phone call by which the transaction was completed, at this time or later.
Second, this seerns to me to be supported by the overall probabilities. It is unlikely
that if as the claimants contend, d conversation had taken place between them at
17:44 to the effect that the transaction had completed, neither solicitor would have
informed his respective client. Mr Ward had just come off the phone to his clients,
and he would surely have called back if completion had occurred. A more likely
explanation, and the one I accept, is that he saw the undertakings after speaking to his
clients, but did not regard thern as satisfactory, because they did not cover interest
pending receipt of the funds on Tuesday. Third, there is the short time span of the
call, namely fifteen seconds. The claimants' factual case in closing has, I think it is
fair to say, been crafted to enable a call on completion credibly to fit within this time
span. I accept their submission that, interest aside, all was by now in place to enable
completion to go forward, and the conversation could have been brief. But even on
that basis, I cannot accept that fifteen seconds would be sufficient even for the briefest
of completion calls. On balance, I am satisfied that the defendants' factual case as
regards this call is correct. The call was made (I find) either by Mr Ward or Mr Dew,
and was probably about interest. As I shall explain shortly Mr Cusack had probably
left by the time it was made, but in any case, he did not answer the phone.
Anoroved Judsment
37.
That brings me to the evidence in respect of interest. Mr Ward says that the
rurdertaking offered by Rickerbys was unsatisfactory because it did not make
provision for interest between completion occurring and payment of the purchase
monies after the bank holiday weekend. He says that he directed Mr Dew to send an
email to Mr Cusack requesting an amended undertaking that made provision for
interest. Mr Dew said in his witness statement that he could not specifically recall the
conversation, but that he believes that Mr Ward was concerned about interest accruing
on the completion monies over the bank holiday weekend and asked him to obtain a
revised undertaking from Rickerbys that made provision for interest until payment.
38.
The documentary record shows that at 18:00, MrDew sent the following email to Mr
Cusack:
"Thank you for your undertaking, please could you include interest from
today when the f,I,300,000 is transferred to our client account."
39.
The claimants submit (quoting from their closing submissions) that the sending of this
email o'reflected completion's having taken place, triggering the right to interest on
monies held". They then deal with Mr Ward's explanation of the email: "Mr Ward
zuggested that the email amounted to a request for a revised undertaking ... . It is
common ground that the ernail did not, in terms, request an amended undertaking; it
simply requested the inclusion of interest in the monies transferred. It is to be noted
that, in the absence of any indication that the text is to be constnred as raising a
question (there is, for example, no question mark and the word "please" is included),
its plain meaning is as a direction and not a request for change. This reflects an
underlying entitlement to interest on completion monies". Thereafter, to complete the
claimants' account of events, it is said that, "Messrs Ward and Cusack, both
appreciating that nothing remained to be done, left their officeso'.
40.
Beginning with the last point first, Mr Ward's evidence is that he left the office
sometime after six o'clock, which accords with the claimantso view. The timing may
be more important in the case of Mr Cusack. It was put to him in cross examination
that he was still in the office at quarter to six. He said that, "I donot believe so, no''.
He said that by this time, he would have been anxious to get out of the office to e,njoy
the long weekend. As the defendants say, Mr Cusack had no personal interest to
protect in maintaining that completion did not take place-he has never worked for
BPE and now works in Australia. Though he suffers from the same difficulties of
recollection as the other solicitors, and there is no means of veriffing his precise time
of departure that evening, I found his evidence convincing in this and other respects,
and accept it. It follows that I find that he had left by the time the email of 18:00
arrived.
4t.
The last to leave was Mr Dew, who was due to be away for two weeks on a charity
trek the firm was sponsoring in Morocco, and so stayed late. He believes that he
would have left the office at around 2l:30. The following exchange took place in Mr
Dew's cross examination:
ooQ.
So when you dispatched that ernail at 6 o'clock, what was the

position then as far as you saw it?
Aoproved Judsment
A.
That the undertaking originally received from Mr Cusack wasn't in

satisfactory form. It needed to be revised and emailed to us, or
alternatively by fax, and that once we had received that undertaking,
it would be reviewed and if it was agreed, then following that,
arrangements would be made in order to complete the share purchase.
a.
Right. So in order to do the deal that evenitrg, n further phone call

was going to be needed?
42.
A.
Yes, at some stage.
a.
Yes. Either from Mr Ward to Mr Cusack or Mr Cusack to Mr Ward?
A.
Yes."
Mr Dew appeared to me to be a reliable witness, and I accept his evidence in this

respect. But despite his subjective view of what it meant, the language of the ernail of
18:00 must be viewed objectively, and it is open to interpretation. As the claimants
submitted, it can be read as suggesting that, completion having occuffedo interest

should be added to the completion monies when transferred on Tuesday. Clearly,
there was no entitlernent to interest over the weekend in the absence of completion on
Friday. But in my judgment, viewed against the factual matrix as I have found it to
be, a more natural reading is that the email was a request for something additional to
that provided for in the undertaking which Mr Cusack had sent three quarters of an
hour earlier. If completion was to happen on the basis of the undertakitrgs, then the
claimants were entitled to interest earned on the funds prior to receipt of the money.
In my view, the defendants are right to submit that the email amounted to a rejection
of the undertaking. Interest need not, in my view, have been an obstacle to
completion that night, since it is hard to see what objection there could have bee,n to
agreeing to pay it. On the other hand, the money was actually held at that point by
Knight & Sons, and their assent would have been needed, and Mr Cusack would have
required a partner's approval before irmending his firm's undertaking. But in any
case, whilst a satisfactory undertaking was required for completion, a completion call
between Mr Ward and Mr Cusack was (as I have held) also required. That did not
happen that evening.
43.
In that regard, Mr Cusack's evidence was he held the "vague recollection" when he
went home that completion had taken place. But he said, and I accept, that he left the
office forgetting that he should have made a phone call to Mr Ward to complete. He
was clearly upset that he had fallen short in this regard, as the following exchange in
cross examination shows:
o'Q
Mr Cusack, the situation is this, isn't it, in truth: you left your office
believing that you had completed because that's what you had done.
You prepared an attendance note the following Tuesday, noting that
the deal had completed, because that's what you believed had
happened, and you prepared that billing narrative recording
completion because it's what you believed had happened?
THg HON MRJUSTICE BLAIR
AoDloved Judqment
A.
No, the billing nalrative, to take that one in a side completion would
just be a very general term. I didn't recall exactly -- or didn't record
exactly what I was doing for seven hours, so it would have been a
general -- I was working towards completion of this matter in seven
hours' time. I do not believe completion occurred on the Friday
evening although at the time, I had the mistaken belief that my
actions had completed, although I did not go through everything I
should have done to complete, which was vry mistaken and -- a very
mistaken belief and something that -- well, I wasn't doing my job
properly. So, no I don't -- yes, we didn't -- we didn't complete."
I have quoted this passage not by way of censure of Mr Cusack, but because of the
light it sheds on the issue I have to decide. The reference to the term "completion" in
billing narrative which he prepared, showed no more, as he said, than that he was
working towards completion that day.
the
44.
Mr Ward accepted in cross-examination that it would have made sense to close the
deal off that Friday. When asked *hy, before leaving the office, he did not himself
pick up the phone and ttry to get through to Mr Cusack, he did not have an
explanation. Mr Dew says that he thinks he made a chasing call as to interest
sometime between 18:00 and 19:30, but was told that Mr Cusack had left the office
(the phone records do not confirm this evidence but there is no reason to doubt it).
Before leaving himself, he left Form 395 for filing with Companies House for Mr
Ward, but (as the claimants point out) did not leave a handover note to the effect that
he had not received a response to his email from Mr Cusack. He believes that he
would have left the office at around 2l:30.
45.
I have the strong impression that the transaction was left in an unsatisfactory state on
that Friday night. The explanation, I have no doubt, lies in the timing, coming just
before the bank holiday weekend. The last minute hitch (for which Mr Ward was in
no way responsible) had prevented completion the previous day as planned. For
whatever reason, the loan note signed by Mr Wilson arrived too late to permit the
hansfer of funds that Friday afternoon. By the time undertakings had arrived, it was
Friday evening, and both Mr Ward and Mr Cusack were anxious to get away. The
question of interest was raised but not resolved. Despite the detailed analysis which
this case has required, I doubt that the forrnalities of completion were foremost in any
of the solicitorso minds. The fact is that no-one foresaw any difficulties remaining,
least of all Mr Ward, who planned to be on holiday on Tuesday, though he would be
available on his mobile phone, and could, he said, have arranged cover if necessary.
46.
The claimants' case is that the evide,lrce as to the events that Friday has to be
considered in the context of alleged admissions by Mr Ward, ffid that when these and
other matters are taken into account, the court should conclude that the transaction did
complete on that day. It has been argued that Knight & Sons would not have given its
undertaking unless satisfied that completion had taken place. As it is put in the
claimants' closing submissions, o'Inherent in the case advanced by the defendants is
the suggestion that Knights incompetently released fimds without taking any steps to
see that the Bank's position was secured". I reject this contention. Since the funds
were not to be transfemed that day, an undertaking from Knight & Sons was a
necessary preliminary to completion, which could not have taken place that day
TIIE HON MR JUSTICE BLAIR
Aoproved Judqment
without
it.
The provision of the undertaking does not show that completion had
occured. I regard this as a neutral factor. Before reaching a conclusion as to
completion however, I must describe what happened over the following days.
Saturday. 25 August 2007
47.
48.
It is convenient to begin by setting out a summary of the claimants'
case from their

opening. In complete ignorance of what had happened the previous duy, it is said, the
claimants learned from Mr Wilson of the serious threat to PDP from the loss of
Powergen's business in the course of Saturday 25 August. Mr Gander was the first to
hear around lunchtime, and Mr Thomas spoke to Mr Wilson at about 18:45 having
been unavailable earlier in the day. Mr Wilson informed the claimants that he had
that morning spoken to a contact at Powergen who told him that there was going to be
a substantial down turn in invoicing, because Powergen intended to take "in house"
much work which had previously been outsourced. Mr Wilson mentioned that he had
also spoken to Mr Elrick who expressed the view that the projected reduction in
business would mean that revenues would be inadequate to sustain the transaction
which would have to be called off. Both Mr Thomas and Mr Gander (erroneously
they submit in view of the fact of completion) were of the view that disclosure would
have to be made to the bank and that in consequence the deal would fall through. Mr
Wilson told both claimants that he considered they should speak to the defendants on
the following Tuesday to "call off' the transaction. Mr Gander sent an email to Mr
Ward at 16:29 on 25 August stating that for reasons beyond his control, and of which
he was previously unaware, the deal would not go through and was cancelled.
Mr Wilson did not give evidence at trial, and this account of how news of the loss of
the Powergen business was received by him on Saturday morning may seem
surprising. As Mr Jeremy Cousins QC for the claimants put it in opening, the
coincidence is absolutely rernarkable. But it is the evidence of both the claimants, and
as Mr Cousins QC correctly said, the defendants do not dispute it as to the essentials.
The specific effect of the loss of the business was further explored in the part of the
case that concerned quantum, ffid was in broad terms as follows. PDP's turnover for
the year ending 3l March 2007 was f4,617,932, and it is common ground that
Powergen (which Mr Thomas said was the company's major client) accounted for
34% of the company's turnover that year. (It appears that this percentage had been
rising prior to August 2007.) Commenting on the experts' views as to the expected
loss of turnover which was f,lm in the view of the claimants' expert and f0.5m in the
view of the defendants' expert, the claimants said in closing that, "it is more like one
and a half million that is lost, from four and a half million down to about three
million". This was described by the claimants as the o'hammer blow of a loss of a
third of the business". Mr Gander in particular emphasised that at the time, he would
have regarded it as fraudulent not to disclose these developments to the Bank.
Neither claimant may have had any formal disclosure duties to the Bank, because it
was Mr Wilson (or his new company) who were in contractual relations with the
Bank. Strictly speaking, it might be said that neither claimant had any disclosure
duties at all, since their own contract was with Mr Wilson, who was himself the
source of the information. But I am satisfied that this was not how they saw it at the
time, no doubt reflecting the fact that this was an entirely consensual transaction. Mr
Wilson, Mr Thomas and Mr Gander had founded PDP's business, and nursed it
through until it was sufficiently viable to be sold. Despite the differences between Mr
Aonroved Judsment
Thomas and Mr Gander, all three were essentially partners in the same enterprise, and
the claimants would not, in my view, have wished this transaction to go througb on a
false premise.
49.
The question arises therefore whether the claimants would have stood on their legal
elrtitlement, assuming that the transaction completed the day before. The defendants
submit that the reality is that, regardless of the position as to completion, the
claimants would have agreed to unscramble this transaction. On that basis, it is
submitted, any negligence that may be proved on the part of the defendants did not
cause the claimants' loss. This is the causation issue, which I shall express my
conclusions on in due course, but first I must set out my findings of fact as to the
events on Saturday 25 August 2407 .
50.
It is common ground that the loss of the Powergen business had very serious financial
implications for the company. The experts called by the parties on the valuation issue
concluded (on figures now agreed) that the value of the company would have declined
substantially between Friday 24 August 2007 and Tuesday 28 August 2007 (the
defendants' expert says foom about f3.6m to about f-l.32m, the claimants' expert says
from about f,lm to about f0.5m). On the assumption that the purchase had gone
ahead, a substantial additional burden would have fallen on the business in the form
of the transaction charges and borrowings from the Bank. The due diligence report
commissioned by the Bank suggests that as well as substantial deal costs, the capital
repayments would have been f,130,000 in year 1, and f219,000 in subsequent years,
and that the interest payments would have been f134,000 in 200718, f,119,000 in
200819 and f 105,000 in2009110.
51.
52.
These details would not perhaps have been in the claimants' mind on 25 August, but
as their evidence made clear, the general implication of the loss of the Powrgexl
business was fully understood by them. As Mr Thomas (who had himself been a
se,nior banker) put it, "in effect the company could not afford the commitment it was
entering into. . . . All was in jeopardy at that moment." He was asked:
a.
Leaving aside any further questions about this, the object of this
transaction had not been, had it, that Mr Wilson should be buying a
compilly which was worth significantly less for a price that he could
not afford and which would threaten the viability of the company and
his interest in it. That was not the object of this fransaction, was it?
A.
Not at all.
ln his witness statement Mr Gander said that, o'This loss of Powergen revenue would
have a devastating effect on the new companyos cash flow and endanger its ability to
meet financial commitments under its proposed new borrowing arrangementso'. He
was asked about that in cross examination:
a.
A.
For want of a better word, you believed what Mr Wilson was telling
you?
Yes
Approved Judsment
a.
If what he was telling you

represents your view
be ...
A.
Yes.
a.
And
was correct, fyour witness staternent]

of what the likely effect on the company would
if
the new company's cashflow was endangered and it was

unable to meet its financial commitments, it could possibly go into
liquidation?
A.
Yes.
a.
So that was a very serious financial possibility?
A.
Very serious indeed.
a.
And meant that from a commercial point of view he could not

possibly be expected to go on with the deal, from a cofilmercial point
of view.
A.
Yes.
a.
And you accepted that? Commercially
A.
Commercially
Definitely.
a.
And couldn't reasonably commercially proceed with the deal?
A.
Commercially, correct.
he would not want to proceed with the deal.
53.
He accepted that as of 25 August, things looked "very dire", which was why Mr
Wilson could not possibly contemplate carrying on with the deal. By October 2007,
he said that they were talking about the possibility of putting PDP into voluntary
administration, oothat's how bad it was". That was without the burden of the bank
lending. At this point, I should record that the evidence is to the effect that the loss of
the Powergen business was not in the long nrn as devastating as was feared, and the
company is nearly back to where it was-but it is common ground that I have to look
at the matter as it was at the time.
54.
Having spoken to Mr Wilson at lunchtime, and dissussed the matter with his wife, at
16:29, Mr Gander sent an ernail to Mr Ward (copied to Mr Dew) stating:
"I have taken an urgent telephone call this afternoon from Peter Wilson to tell
me that, for reasons beyond my control and of which I was previously
unaware, the Communicator deal will now NOT go through and is
cancelled.
THE HON MR JUSTTCE BLAIR
Aooroved Judqment
Had I not already pre-paid all the costs, I would now be cancelling our 30th
wedding anniversary holiday to help Peter Wilson sort things out, however, to
practical intents & purposes there is nothing I can do until I return to the
office on I I Septenrber when I shall contact you.
In the meantime, please refer to Ken Elrick, Rickerbys and/or Peter Wilson"
Mr Ward's evidence was that he did not see the email until he returned to the office
on29 August 2A07 .
55. Mr Gander did not try to speak to Mr Ward about this, nor did he speak to Mr
Thomas. When asked why he did not seek advice from his solicitor, his explanation
was that he was under great stress, and in any case had no choice, since the money
had not arrived in his account, and he understood that the transaction had not
completed. In particular, he strongly believed that the Bank had to be advised
immediately of the adverse developments, ffid that it would have been fraudulent not
to have done so. I have set out in paragraph 12 above the material adverse change
warranties. In his evidence, Mr Gander said that he believed at the time that he would
have risked committing some kind of fraud had disclosure to the Bank not happened,
irrespective of what the warranties said.
56.
Mr Thomas rang Mr Wilson on Saturday at about 18:45, Mr Thomas having been out
during the day. He was shattered by the news. He did not speak to Mr Gander, and
he did not try to get in touch with Mr Ward to ask his advice either, since in his view
the hansaction had not closed, and he had no choice, and firther, he explained, he did
not wish to trouble his solicitor at the weekend. As with Mr Gander, the obligation to
disclose the changed position to the Bank was lying heavy on his mind, and he had a
duty, he said, to join with his co-directors in relaying this information. He also made
it clear in his evidence that he was concerned about the transaction fees that might be
payable to the bank. He thought (and this is not in dispute) that there was an
arrangement fee payable in respect of the loan in the region of f,l00,000.
57.
So far as the evidence before the court is concerned, the next thing that happened was
that at 17:05 on Monday 27 August (i.e. bank holiday Monday), Mr Wilson emailed
Ndr Knight and Mr Cusack at Rickerbys saying:
"Following a very recent change in circumstances I am afraid that the

directors of PDP have decided not to complete on the deal and to cancel the
transaction.
Can you please notiff all the relevant parties concerned as early as possible on
Tuesday and instruct that no drawdown under the proposed facilities be made
nor any payments out to the existing shareholders.
I understand that Peter Gander has already issued instructions to Tim Ward in
respect of this change.
I will try to talk to you
as early as possible on Tuesday but please do give me

a call on my mobile (0771 724225) if I don't catch you first."

Aoproved Judsment
Tuesday. 28 August 2007
58.
Though the deal had been called off, it is plain that the parties appreciated that the
position was potentially messy. High among their concerns, I find, was the possibility
that an arrangement fee might be due to the Bank (I have already referred to Mr
Thomas' concerns in that respect). At any rate, they did not want anything firrther to
happen that might trigger that outcome. At 08:01 Mr Elrick emailed Mr Cusack and
Mr Knight at Rickerbys saying:
"Re PDP, Would you please let me have in the post today copies of the signed
PSA and both Bank Facility documents.
Please do not under any circumstances draw down the capital funding from
Knight & Co today Tuesday until we have talked"
59.
Mr Cusack saw that email when he got into the office, along with the ernail sent by
Mr Dew at 18:00 on Friday, and the ernail sent by Mr Wilson the day before. At
08:50 he took a call from Mr Wilson, which he noted as follows: "Call from Peter.
Biggest client - less work to PDP therefore financially not good. RBS [i.e. the Bank]
notified this morning. Deal stopped."
60.
Mr Ward, who was on holiday, says that he checked his mobile phone just after 10:00,
and retrieved a message from Mr Gander. He called Mr Gander at l0:L2, and they
spoke for between 6 and 7 minutes. He says that Mr Gander asked him what they
would have to do to call off the transaction, and he said that in relation to the SPA it
would largely be a case of ripping up the documents. For his part, Mr Gander says
the discussion quickly moved to discuss his concerns as to some f100,000 in fees
payable to the Bank. According to Mr Gander, Mr Ward said that, if he was speaking
as a lawyer for the Bank, he would argue that the transaction did complete. N{r
Gander says that Mr Ward proposed a solution that, provided Rickerbys agreed, he
would be prepared to say that completion still awaited a phone call between the
solicitors. Mr Gander accepted in cross-examination that Mr Ward had not told him
that completion had taken place. He said that Mr Ward was trying to be helpful. At
one point in his evidence, he accepted that his understanding from Mr Ward was that
the transaction had not completed. However he went on to say that though he never
said it had completed, he didn't say it had not completed. He said that he had realised
a long time afterwards that Mr Ward would not have had to invent this scenario if
completion had not taken place.
61. At 10;34, Mr Ward called Mr Thomas, the call lasting approximately
5 minutes. He
says that Mr Thomas confirmed that the transaction was to be cancelled. Mr Thomas
says that he told him it was largely a case of o'tearing up the documents", but that he
needed something in writing from him. Mr Thomas was out of the office at this point
with a client, and said that this would have to follow later in the day. Mr Ward did
not mention to either Mr Thomas or Mr Gander that any undertakings had been glven
the previous Friday.
62.
Mr Ward says that at 10:42 he called Rickerbys, "as is demonstrated by the iternised
fphone] bill. This call lasted approximately 1 minute". I do not think timing of the
call is courmon ground, but equally I do not think that his evidence was challenged in
this respect. He spoke to Mr Cusack, who made an attendance note (erroneously
Thomas andGander-v- BPE Soliciton

Anrroved Judsment
timed at 10:00 am). This is an important document in the claimants' case. It read as
follows:
respect of a message he had
received from Peter Gander saying that the deal had fallen through.
"TW [Mr Ward] called zuC [Mr Cusack] in
RIC said that he had the same email confirmation from his client in the
morning. zuC explained the reasons for this, and explained that he understood
all the parties were in agreement to this. RJC and TW agreed that if all the
parties were in agreernent, then the documents would be simply ripped up, and
the deal would not go ahead. zuC queried his undertaking to send the money,
and TW confirmed that RIC should hold this money until he had firttrer
instructions, and not send it to BPE pursuant to the undertaking.
TW said he would speak to his clients, and get back to RJC as to how to
proceed. TW noted that if his clients were not in agreement to stop the deal,
then completion had actually taken place, and the parties should therefore sit
down and decide the best way forward with this.
TW said he would call his clients now, and get back to RIC at some point
during the morning."
63.
The defendants' pleaded defence originally asserted that the attendance note was
inaccurate, and that the last sentence should read "completion had not acfually taken
place". That was later deleted by amendment, and in Further Information served on
18 June 2009, the defendants state that,'oupon reviewing the documents disclosed in
the case, Mr Ward is no longer confident as to whether the attendance note is accurate
or not. At the time of the telephone conversation between Mr Ward and Mr Cusack
on 28 August 2007 Mr Ward was on holiday and did not keep an attendance note of
the telephone conversation". Mr Ward's evidence at trial was that he was not in a
position to say whether the contents of the attendance note were true or not, but that
he did not believe that completion had occurred. He was asked, "Is there any sensible
explanation that you can glve for why you miglrt have said to Mr Cusack on 28
August that completion had actually taken place?" He said that there was not.
64.
Mr Cusack, who was the author of the attendance note, said that confronted with the
emails that came in on Tuesday morning to the effect that the deal should not go
atread, he was confused. He said that he may have written the last sente,lrce in 'oa
mistake,n belief that was what was said" by Mr Ward. The claimants submit that it
defies corrmon sense that a solicitor could have been so confused as to make a note
recording Mr Ward's acknowledgement that completion had occurred, when it had
not. They submit that the attendance note records an admission by Mr Ward that
completion had taken place. I agree that the best evidence of what was said by Mr
Ward to Mr Cusack is that set out in the attendance note. I shall have to come back to
the question of the admissibility of Mr Ward's views in this respect. But in its terms,
I do not regard the attendance note as recording an unequivocal admission by Mr
Ward that completion had taken place. I am satisfied that at this time, his
understanding of his clients' concern was as to potential liability to the Bank.
65.
At
10:33 following their conversation,

Wilson and Mr Thomas) as follows:
Mr Gander emailed Mr V/ard (copying Mr
Anproved Judsment
"I
sent you an email on Saturday explaining that Peter Wilson's MBO of mine
and David's shares had fallen through

unknown to me and outside my control.
for last minute
reasons previously
Peter has telephoned me this morning to say that Ken Elrick has advised him
that completion progressed further than anyone had realised, that legal
"unravelling" was now required and that both David and I (especially as I am
in Italy from Thursday 30 August) need to give you instructions to do this in
conjunction with Rickerbys. This apparently has come from the Bank's
solicitors.
If this is necessary
and unavoidable then you must do so and I authorise you

to do so whilst obviously minimising costs as much as possible
am confused as to what may need unravelling as it seems to me

that, without my having received funds yet and I will not now do so,
completion has not taken place. Furthermore, you tell me that Rickerbys
haven't received the funds from the Bank or the Bank's solicitors so I don't
see how the Bank's solicitors can say that completion has taken place.
However,
I would appreciate your advice
as to what needs unravelling but
if it needs to
be done then please do it.
You asked me to contact David to get him to telephone you as you need to
speak to him personally. He is at an IFA meeting this morning and I cannot
contact him, however, I have told Peter Wilson who will talk to David at the
earliest opportunity and I am copying David in on this email."
Mr Ward did not
this ernail until his return to the office on 29 August. On the

face of it, it gives him clear instructions to unravel the transaction, if it needed
unravelling. It was correct (as the ernail records) that at the time of the call Rickerbys
had not received the funds from Knight & Son. Funds appear to have been received
shortly afterwards, and returned by Rickerbys later in the morning.
see
66. At 10:44, Mr Ward called Mr Elrick, who "sought to ensure that I had instructions
from the claimants not to proceed to complete the transaction". He then called Mr
Gander at 10:52, and recalls that he was adamant that the transaction should not
proceed. He then made a second call to Rickerbys at 11:05, presumably to pass that
on. By the afternoon, Mr Thomas had returned to the office, and at 14:01 sent the
ernail he had promised to Mr Ward (copying in Mr Wilson, Mr Gander and Mr Dew).
It said:
I write to eonfirm, vtry sadly, due to

circumstances which came to light on Saturday morning, I confirm that the
sale should now not proceed of my shares. It is my understanding that Peter
Gander has already written to you confirm the same regarding his
shareholding. You informed me this morning that it should largely be a case
of tearing up the documents, but I appreciate that you need to take account of
the other parties in the transaction.
'oFurther to our telephone earlier today
Auoroved Judsment
understand that the funds had not been released to Rickerbys, just held to
order under an undertaking at this stage at RBS, so technically the sale had not
been concluded. Having now just arrived back in the office and had the
opporhmity to read a copy of Peter Gander's email to you on the same subject,
I also echo his sentiments regarding fees. We will now have to fund these out
of our own resources without the benefit of the share sale proceeds. If you
could look sympathetically at the total amount, taking account of the
circumstances, it would be very much appreciated."
As regards fees, the defendants in due course rendered a bill in the sum of f,11,500
plus VAT, which was paid.
Subsequent eve,nts
67. At 16:09 on 28 August, Mr Elrick emailed Mr Thomas saying, o''We commiserate on

the totally unexpected outcome but up and at it for tomorrow and the new dawn of
PDP which we will help with in any possible way''. However just a few days later, on
31 August 2007, the three directors were shocked to receive invoices from Mr Elrick
in the sum of f,146,000 in respect of his services. Payment not having been received,
on I October 2007 Mr Elrick wrote to them demanding payment. The letter states,
o''We
do appreciate the unfortunate circumstances that have conspired to cause your
instnrctions to abort the case after completion". This prompted Mr Thomas and Mr
Gander to take advice from new solicitors. Following that, Mr Gander explained that
he purchased a solid state electronic recording device. He fiUed it up at his home,
with the intent of calling Mr Ward and recording the conversation. He said that the
purpose was to confirm whether the transaction completed or not. The claimants'
case is that he confirmed that it did, and that, it is submitted, is compelling evidence
and amounts to an admission.
68.
It was on the morning of 5 October 2007 that Mr Gander called Mr Ward. He did not
disclose that he was recording the conversation. Mr Gander carefully devised the
conversation, the defendants submit, to put Mr Ward on the horns of an apparent
dilemma-how to explain that Mr Elrick was entitled to his arrangement fee if the
Bank was not entitled to its arrangement fee. Mr Gander's evidence was that he
regarded Mr Elrick's claim as a o'tr5/ or", and Mr Elrick Ers a man of "weasel talk", but
the defendants submit, in my view rightly, that in the course of the call he encouraged
Mr Ward to think that the directors wanted to do the decent thing by Mr Elrick. Mr
Gander said, o'Now we regild Ken entirely differently to [the Bank] who did not do
much and did not advance the funds anlnilay and Ken [Elrick] we had worked with for
a long time so I just want to make sure that we do whatever is completely right and I
just want to check in my own mind, I'm right in saying that technically completion
did take place. Ken therefore has done all of his job and we just pay him and that orn
approach to [the Bank] is an entirely separate issue".
69.
This went back to the conversation about the Bank's fees that they had had on 28
August 2007. To make sure that the claimants did "whatever is completely right", Mr
rWard was invited to agree that "technically completion did take place". Mr Ward
responded, 'Yes - I would agree with you". He went on to say, o'I know we say
contradictory things to an extent, but I think with regard to Ken and what he did the
deal had been completed to all intents and purposes and technically and legally I think
it has been. My conversation to you was that I thought there was an angle to try and

Aporoved Judqment
reduce [the Bank's] fees and it just did not seem right to pay thern a whole load
money for money they advanced to you that they returned the same dat''.
70.
of
Apparently coincidentally (as the defendants put it), Mr Elrick rang Mr Ward later
that morning saying that the directors were not paytng his fees. Mr Ward then rang Mr
Gander, and that call was also recorded. Again, Mr Ward appears to draw a
distinction between the position as regards Mr Elrick and the position as regards the
Bank. He explains that Mr Elrick had asked if his firm could get involved to act for
him in helping out. He says at one point, oothe deal did complete and therefore
whatever is due under that contract with Ken is payable". He goes on to say, as was
obviously the case, that there would be a conflict if he acted for Mr Elrick, and he
would not want to get involved. He says, 'oI have always said that I believed that
completion had occurred it was just purely a negotiation tactic with [the Bank] to say
that maybe it hadn't occurred". The recording device catches Mr Gander saying after
Mr Ward had rang off, "Oh shit did he just drop himself in it". At no stage in the
conversation however did Mr Ward say that the Share Purchase Agreement had
completed, nor was he asked whether it had completed. The conversation, the
defendants submit in my view correctly, had to do with whether Mr Elrick had earned
his fees. Mr Gander did not suggest that, on the basis that completion had occurred,
Mr Wilson was liable on the SPA, and that in my judgment was not the subject of the
conversation. The defendants say, again in my view rightly, that as maffer of fact Mr
Ward had not "always said that I believed that completion had occurred". To the
extent that he did so, I shall have to consider whether his opinion is admissible in this
respect.
7l.
There is one final matter relied upon by the claimants with which I must deal. Without
(it seerns) prior notice that there was a potential dispute between thern, on 13
December 2007 a Letter of Claim under the Professional Negligence Pre-action
Protocol was sent to the defendants, alleging that the defendants had failed to advise
the claimants that the sale of PDP had completed, and that it would have been open to
the claimants to receive the moneys due to them. Mr Ward says that he was
dumbfounded, and overlooking the fact that he should not at that time have been
contacting the claimants personally, on 17 Decemb er 2007 he made a call to Mr
Thomas. Mr Thomas did not record the call, but made a note of it afterwards. It was
described by the claimants in closing, as the oomost telling of all" the conversations.
72.
The note reads that Mr Ward oo...explained that he tried to assist the situation on
Tuesday [28 August], to unravel the situation and mitigate the cost to the bank, that
we requested. I [Mr Thomas] said, yes that it true Tim, but the fact of the matter was
we had completed on the Friday and he had not told Peter or I this, ffid in fact the
completion moneys were ours to keep. He said it was late in the afternoon on the
Friday, but he admitted he did not telephone either Peter Gander or I on the
Friday to say completion had taken place and the money was ours". The
claimants submit that the inference to be drawn is that Mr Ward thereby accepted that
completion had taken place. However, the note does not say so, and Mr Ward says he
did not do so, and even if admissible, this conversation does not appear to me to take
the matter any further.
The issues between the parties: discussion and conclusions

(1) The completion issue

Aooroved Judgment
73.
74.
The claimants' case is that completion of the transaction occuffed on24 August 2007,
and the defendants' case is that it did not, and this is the first, and most conte,ntious,
issue which I have to decide. A convenient starting point is the Share Purchase
Agreement (it was never dated) which was the principal constituent of the fransaction
so far as the claimants were concerned. It provided for completion as follows.
Clause I defined:
(i)
"Completion" as "completion of the sale and purchase of the Sale

accordance with this agreement";
(ii)
"Completion Date" as "the date of this agreernent"
Clause 2 of the SPA provided as follows:
"2.1
75.
Shares in
On the terms of this agreement, the Sellers shall sell and the Buyer shall buy,
with effect from Completion, the Sale Shares..."
Clauses 3 and 4 of the SPA provided as follows:

..3.
PURCHASE PRICE
3.1 The Purchase Price is f,3,000,000 payable
as
follows:
3.1.1 On Completion the sum of f1,300,000 shall be paid in
cash
to the
Sellers Solicitors ('othe Initial Consideration");
3.1.2
f,700,000 ("the Deferred Consideration) by the issue by the Buyer

the Loan Notes; and
3.1.3 969 "A"
3.2
of
ordinary shares of one pound each in the Buyer
The Loan Note Instrument shall be issued at Completion in accordance with

Clause
4....
4. COMPLETION
4.1
Completion shall take place on the Completion Date at a place agreed by the
Sellers and the Buyer.
4.2
At Completion the Sellers shall:
4.2.1 Deliver or cause to be delivered the documents
and evidence set out in
Part 1 of Schedule 3;
4.2.2
Procure that a board meeting of the Company is held at which the

matters identified in Part 2 of Schedule 3 are carried out; and
Anoroved Judement
4.2.3 Deliver any other documents referred to in this
agreement as being
required to be delivered by them.
4.3
At Completion the Buyer shall:
4.3.L Pay the sum of
f,1,300,000 by telegraphic transfer to the Sellers'

Solicitors (who are irrevocably authorised to receive the same) and
otherwise in accordance with clause 3.1.1 . Payment made in
accordance with this clause shall constitute a valid discharge of the
Buyer's obligations under clause 3. I . 1 ; and
4.3.2 Deliver a certified copy of the resolution
adopted by the board of

directors of the Buyer authorising the Transaction and the execution
and delivery by the officers specified in the resolution of this
agreement, ffid any other documents referred to in this agreement as
being required to be delivered by it;
4.3.3
Issue the Loan Notes;
4.3.4 Deliver
a share certificate for 969 "A" ordinary shares of one pound

each in the Buyer in the name of Mr Peter Brian Wilson;
4.3.5
4.3.6
Execute the Debenture; and

Procure that Close Brothers issues letters in the agreed form releasing
Mr Gander and Mr Thomas from the personal guarantees given by
them in respect of the existing Close Brothers facilities granted to the
Company.
76.
Under the SPA therefore, completion was to take place on the "Completion Date'o
[being the date of the Agreement] at a place agreed by the sellers and the buyer. At
completion, the sellers had (among other things) to deliver specified documents. On
its part, the buyer (among other things) had to pay the sum of f1,300,000 by
electronic transfer to the sellers' solicitors (i.e. the defendants). The SPA therefore
envisaged a completion meeting, ffid as I have explained, Mr Cusack arranged such a
meeting for the afternoon of Thursday 23 August 2007.It could not go ahead because
of the problern that emerged that morning as regards the company's cash flow. The
question, therefore, is what alternative affangements as to completion were agreed,
and whether they took place.
77.
The defendants submit,
in my view with justification, that the claimants have
advanced different and inconsistent suggestions as to how completion might have

occurred. The way it was put to Mr Ward at the end of his cross-examination was that,
"whatever was necessary to bring about completion that afternoon was in fact done".
The claimants point out that completion was handled by the solicitors, ffid they were
not a party to that process. What there is, it is submitted, is the most compelling
evidence that completion took place contained in the telephone conversations between
Aonroved Judsment
Mr Ward and three other individuals after the event, namely Mr Cusack on 28 August
2007 , Mr Gander (twice) on 5 October 2007 , and Mr Thomas on I 7 Decemb er 2007 .
78.
It is correct that completion was handled by the solicitors, but the claimants
have
brought this case asserting that completion took place on 24 August 2007 , and that the
defendants were negligent in failing to inform them of this, and with the benefit of
evidence gathered in the trial process, it is up to them to establish that it did take
place. As I have said, they lay great emphasis on what they characterise as
admissions by Mr Ward in the forn telephone conversations, all of them after the
event. I have set out my factual findings as regards each such call above, and will not
repeat them. In my view, when put in context, these do not amount to "admissions"
by Mr Ward that completion took place. He seems to have adopted the mistaken
ap'proach that this could be tailored to the outcome his clients wanted to reach with
the other parties to the transaction. On the other hand, an unfortunate feature of the
first of the conversations on 5 October 2007 is that it was set up, as the defendants
submit in my view rightly, as a trap for Mr Ward, who was not aware that he was
being recorded. Be that as it may, the point of principle that applies to these after the
event conversations in my judgment is as follows. The question whether a transaction
has completed, or a contract has been entered into, or similar, must be determined
objectively. Evidence from the parties' lawyers as to whether particular steps were
take,n, or particular events occurred, are admissible. But the subjective views of the
parties' lawyers as to the conclusions to be drawn from the facts in question, in the
present case whether completion occurred, are neither relevant nor admissible. I
agrce with the defendants that, taken at the highest, Mr Ward's comments in the
various conversations to which I have referred, state his opinion as to whether
completion had occurred. As Mr Michael Douglas QC for the defendants put it, if the
court concludes that completion did not occur on 24 August 2007, then nothing Mr
Ward says can retrospectively have made it occur. The contrary is also tnre. In my
judgment, the completion issue has to be decided by an objective consideration as to
what happored on 24 August 2007.
79.
In its oral closing, the claimarrts put their case as to completion as follows. The court
should infer that there was a telephone conversation between Mr Ward and Mr
Cusack at about 4pm on 24 August 2007 when a pafu of undertakings was discussed.
The claimants say that it was agreed between them that a pair of undertakings in the
form in which they were actually submitted would suffice to complete the transaction.
Upon receipt, completion would happen. Alternatively, it is submitted that the
solicitors might have arranged that there would be confirmation on the part of the
defendants that the submitted undertakings were accepted, ffid that completion would
occur upon that confirmation.
80.
I have set out my factual findings (on the balance of probabilities) in this regard
above, and will not repeat the detail. In suilrmary, contrary to the claimants'
submissions, I do not infer that a conversation took place as contended. The

contemporaneous material shows that what was agreed was an undertaking to transfer
the funds to the defendants' account on Tuesdry, and that thereafter, a call between
Mr Cusack and Mr Ward was required to complete the transaction. I reject the
submission that completion occurred on receipt of the r:ndenaking (or pair of
undertakings) since Mr Ward would not know until he got them whether the
undertakings were adequate or not. I conclude that Mr Ward thought that they were

Approved Judpment
Thomas and Cander -v- BPE Soliciton
not adequate because they did not provide for interest over the weekend. I further
conclude that no call took place between Mr Ward and Mr Cusack at 17:44 or later
that evening as regards completion or otherwise. Fifteen seconds (the duration of the
17:44 call) would not have been sufficient even for the briefest of completion calls,
and I conclude that Mr Cusack did not pick up the phone, having (as he said) gone
home by that time. It follows that, in my judgment, the transaction did not complete
on 24 August 20A7 .
The failure to advise issue
81
Were the defendants negligent in failing to advise the claimants of the fact of
completion, and of the rights arising in that regard in respect of an undertaking by the
purchaser's solicitors to transfer the completion money? I do not think that it is
disputed, ffid in any case hold, that if the transaction completed on 24 Augu st 20A7 ,
the defendants were negligent in failing to advise the claimants of that fact. For
completeness, I note that in opening, the claimantso case was that such advice should
havebeen gtven on 28 August 2007. It was said that as a "counsel of perfection", Mr
Ward should have made efforts to get through on Friday to say it had happened, but
what "really matters is what happened on the 28th because no harm was done on the
Friday afternoon". There was, in my view, no separate negligence in respect of the
solicitors' undertakings. Though the undertakings provided for the transfer of funds
on Tuesday 28 August, this was on the basis that completion occurred, ffid clearly the
funds would be held to the purchaser's order pending completion.
The non-acce,ptance of undertaking issue
82. If
completion did not occur because of the non-acceptance, or rejection of the

purchaser's solicitors' undertaking, was this negligent on the part of the defendants?
The claimants' case is that completion had occurred before Mr Dew's email of 18:00
was sent, ffid that the request for interest was an afterthought and was incapable of
amounting to a rejection of the undertakings. For reasons set out above, I have
rejected this submission on the facts. Though the language of the ernail of 18:00 is
open to interpretation, in my view the defendants are right to submit that it amounted
to a rejection of the undertaking.
83.
On that basisn the claimants submit that if, contrary to their case, the email constituted
a rejection, then this was as a result of negligent drafting on the part of the defendants
who rejected the undertaking without instructions. They submit that ie contrary to
their case, the undertaking was rejected, or not accepted, then this was a step taken
without their authority. Authority should have been sought, it was submitted, because
of the risk that what otherwise would have been an effectual and beneficial
completion of the transaction would be lost by virtue of seeking to improve upon the
undertaking already given. As I have said, the claimants' witness staternents are to
the effect that they would have instructed the defendants to accept the undertakings as
proffered had they known about thern.
84.
ln my view, there was no negligence on the defendants' part in requiring the payment
of interest over the weekend without reverting to the claimants for express
instructions. The amount involved was not insubstantial, and at that point in time,
neither party had any reason to anticipate the events of the following morning. But in
any case, whilst a satisfactory undertaking was required for completion, a completion

AnorcvedJudsment
Thomas and Gander -v- BPE Solicitor:s
call between Mr Ward and Mr Cusack was (as I have held) also required. That did not
happen that evening, and could not in the event have happened, Mr Cusack (as I have
held) having left the office by 17.45 on Friday evening. The claim on this basis fails
in any event on causation grounds.
85.
The claimants also submiued that the defendants ought to have accepted the proffered
undertaking off their own bat without going to the claimants for instructions, and that
it was negligent not to craft their response in a way that accepted Rickerbys'
undertaking. For the reasons set out above, I do not consider that the course the
defendants took was negligent, nor in the circumstances as they were understood to be
on 24 August 2A07, was there a foreseeable problem which would be visited on the
claimants by stipulating that interest should be included in the undertaking. I should
nevertheless deal with an issue between the parties as to the time at which Mr Dew's
email of t8:00 would have been effective as an acceptance of the undertakings, had it
been drafted as such. The question is, had the defendants drafted the email in such a
way as to accept the undertakings, as a matter of law, would such acceptance have
been effective upon the sending of the ernail at 18:00, as the claimants argue by
analogy to the "postal rule"? Or should acceptance by ernail be treated in the same
way as other instantaneous communications, as the defendants contend? If the
defendants are correct in this regard, at what point in time did acceptance by email
occur, gtven my finding that the recipient (Mr Cusack) had left the office by 17.45
that evening? The defendants say that the ernail cannot operate as an acceptance
because it was not seen by Mr Cusack until the following Tuesday (he did not have a
BlackBerry), by which time the parties had decided not to proceed with the
transaction. The claimants' submission is that acceptance by email does not de,pend
upon the message being read by the intended recipient. As with the "postal nrle", it is
effected (it is said) at the moment of despatch, or at latest, the moment by which the
sender would receive, but does not receive, a non-delivery notification.
86.
The general rule is that the acceptance of an offer is not efflective until communicated
to the offeror. The "postal rule" is an anomalous exception to the ge,neral rule, which
is limited to its particular circumstances. It does not apply to acceptances made by
some "instantaneous" mode of communication (Chitty on Contracts, 30th edn,
paragraph 2-050). This was decided in Entores Ltd v Miles Far East Corporation
[1955] 2 QB 327 as regards communications bytelex. Atpage 334, Denning LI said
that in such a case, "The contract is only complete when the acceptance is received by
the offeror". Contrary to the claimants' submissions, in my view the same principle
applies to communication by email, at least where the parties are conducting the
matter by email, as the solicitors were in this case. However, that does not conclude
the question, because issues may remain as to when the email in question was
received (and also whether it was received). As Lord Wilberforce put it in Brinkibon
Ltd v Stahag Stahl G.m.b.h. [983] 2 AC 34 (another telex case in which Entores was
approved) at page 42:
*Whre the condition

of simultaneity is met, and where it appears to be within
the mutual intention of the parties that contractual exchanges should take
place in this woy, I think it a sound rule, but not necessarily a universal rule.
... . The senders and recipients may not be the principals to the contemplated
contract. They may be servants or agents with limited authority. The message
may not reach, or be intended to reach, the designated recipient immediately:
Aooroved Judqment
of office hours, or at night, with the intention, or

upon the assumption, that they will be read at a later time. There may be some
elror or default at the recipient's end which prevents receipt at the time
messages may be sent out
contemplated and believed in by the sender. The message may have been sent
and/or received through machines operated by third persons. And many other
variations may occur.
87.
Similar issues arise when the medium of communication is by ernail. ln Brinkibon,

Lord Wilberforce's conclusion was that:
"No universal rule can cover all such cases: they must be resolved by
reference to the intentions of the parties, by sound business practice and in
some cases by a judgment where the risks should lie."
88.
In Bernuth Lines Limited v High Seas Shtpping Ltd 120061 1 Lloyds Rep . 537 , it was
held that notice of arbitration was validly served by email notwithstanding that it may
not have reached the relevant managerial or legal staff in the recipient company.
Christopher Clarke J said at p. 541-2:
*129)
That is not to say that clicking on the'osendo' icon automatically amounts

to good service. The e-mail must, of course, be despatched to what is, in fact,
the e-mail address of the intended recipient. It must not be rejected by the
system. If the sender does not require confirmation of receipt he may not be
able to show that receipt has occurred. There may be circumstances where, for
instance, there are several e-mail addresses for a number of different divisions
of the same company, possibly in different countries, where despatch to a
particular e-mail address is not effective service."
89.
These particular considerations do not apply in the present case. It is not in dispute
that the email was received in Mr Cusack's mailbox at or close to 18:00 on24 August
2007, and was available to be read by him. The question is whether the defendants
are correct in their submission that acceptance was not effective from the moment the
email was received because it was sent after working hours. In those sircumstances, it
is submitted, relying on the passage in Lord Wilberforce's judgment that I have
quoted, acceptance by the 18.00 email could not in any event have been effective until
it came to Mr Cusack's eye on Tuesday morning.
90.
Once one sets aside the "postal rule" as inapplicable to email communications, the
question whether an ernail acceptance is effective when it arrives, or at the time when
the offeror could reasonably be expected to have read it, is not a straightforward one,
and does not appear to be settled by authority. On the basis that it must be resolved
by reference to the intentions of the parties, by sound business practice and in some
cases by a judgment where the risks should lie (Brinkibon at page 42), the answer
does however appear to me to be clear in the present case. In the context in which the
18:00 email was sent-that is a transaction which (as the earlier emails show) could
have been completed that evening-I do not consider that 18:00 was outside working
hours. The email was available to be read within working hours, despite the fact that
Mr Cusack had in fact gone home. For that reason, I would have held that were the
defendants to have accepted the Rickerbys undertaking by Mr Dew's email, then as a
matter of law such acceptance would have been effective upon the receipt of the email
'THE HON MR JUSTICE BLAIR

Aooroved Judement
Thomas and Crander -v- BPE Solicitots
at or about 18:00. However, as I have held, they did not do so, nor were they
negligent in that regard.
The causation issue
91.
On the assumption (contrary to my above finding) that the transaction completed on
24 August 2007, in the light of the information which emerged the following
morning, would the claimants in any event have agreed voluntarily to rescind, or as
the defendants prefer to put it, not to proceed with, the transaction despite
completion? Would any attempt to adhere to completion have foundered because of
the complexities and expense of litigation?
92.
The defendants have a formidable case in this regard. This was a situation in which
the parties to the SPA were the founders of the company. The position as relayed to
the claimants by Mr Wilson on 25 August 2007 was that the company was to lose one
third of its turnover. As Mr Thomas put it, "all was in jeopardy at that moment". IvIr
Gander spoke of the "devastating effect" of the loss of the Powergen revenue. From a
commercial point of view, he accepted that Mr Wilson could not possibly be expected
to go on with the deal. Had the transaction gone forward, the business would have
had to carry the cost of the bank lending on much diminished revenue. In those
circumstances, it is not surprising that both claimants decided on that Saturday there
and ther that the transaction could not go ahead. Neither claimant souglrt Mr Ward's
advice. On the contrary, Mr Gander sent him an unequivocal email to the effect that
the deal would not go through and was cancelled. The only realistic conclusion, the
defendants submit, is that whatever the technical legal status of the agreement and the
obligations of the parties under it, the parties were not going to proceed with the
transaction. Mr Thomas and Mr Gander would not have conternplated leaving Mr
Wilson or PDP facing ruin. Furthermore, the defendants point out that the lion's share
of Mr Thomas's consideration was by way of loan notes, which were subordinated to
the bank lending. His deferred consideration would have been at substantial risk,
whereas most of the loan proceeds would go to pay Mr Gander, who would receive
his full amount in cash straight away. Finally, the defendants point out that the
evidence is that Mr Wilson was firmly of the opinion that completion had not taken
place. Neither he nor the Bank, it is submitted, would have stood by without a fight.
A dispute would have ensued, during which the directors would be forced to continue
to work together in a poisonous and hostile atmosphere. The defendants accordingly
invite the court to find as a fact that if the transaction had completed on Fiday 24
August 2007, and the claimants had been advised this was the case and/or that the
Rickerbys' undertaking was enforceable, the claimants would have agreed with Mr
Wilson and/or PDP to render the transaction of no effect andlor not to enforce the
undertaking. Hence, it is submitted, the alleged negligence even if proved, did not
cause the claimants any loss.
93.
The claimants' case in this respect was as follows. The difficulties in relationships at
PDP, Mr Gander's very real personal hardship in continuing involvement in PDP, and
the desire of both claimants to take their money out of the business was unchallenged.
Further, it is submitted, this was a life-changlng transaction for the claimants. It
offered an "escape route" from financial constraints and a difficult situation. Whilst
they would not have wished hardship upon Mr Wilson, they could hardly be expected
to shoulder the burden of the changed circumstances when they were not obliged to
do so, gtven the implications not only for themselves but their families. Mrs Thomas
Approved Judsment
spoke of what happened as a oocrushing
blow". In Mr Gander's case, he and his wife

were distraught when the deal fell through. Mrs Gander says that they were
devastated. She had to sell her car, and the couple had to remortgage their home
rather than extinguish the mortgage as they had planned. Considerable financial
hardship has thus been caused. The evidence of Mr Thomas was that the news from
Mr Wilson shattered him, and caused his world to fall apart. He also spoke of his
desperation to get out of PDP. Rickerbys and Knights were professionally committed
to honour their undertakings, and would have been obliged to do so. The evidence, it
is said, is that Mr Wilson is a man who faces reality and he not would have sought to
run an ill-founded case. The Bank had no basis for involvement in any dispute, since
its solicitors had released the funds pursuant to an unqualified undertaking. In
sunmary, the claimants would not have been prepared voluntarily to unravel the
transaction had they known that completion had occurred. They and their families
had too great an interest in seeing it through.
94. I have found this a particularly difficult issue to resolve. On the one hand, I fully
accept that the news conveyed by Mr Wilson on 25 August 2007 was a crushing blow
to the claimants and to their families, for all the reasons explained by thern and by
Mrs Thomas and Mrs Gander in their evidence. But I am sceptical of the claimants'
claim that they agreed to the deal going off because, in the absence of completion,
they felt they had no option. These are both experienced business people, and in my
judgment, the reason they agreed that Saturday to the cancellation of the transaction,
without apparently investigating whether some renegotiated deal might be possible,
and without seeking advice from their lawyer, was that they realised immediately that,
on the reduced turnover, the transaction was simply not viable. That said, it is a fact
that they did believe (the money not having reached their bank accounts) that the
transaction had not completed, and I accept their evidence to the extent that this was
an important factor that governed their reactions. What has weighed with me most is
that if, as is their case, the transaction completed on the evening of 24 August 2007 by
way of the receipt of undertakings and a confirmatory phone call, then the claimants
were entitled to know about it. If they had, the dynamics of the situation would have
been different. Equipped with that knowledge, however unpalatable it might appear,
they might have insisted that the deal went forward, and taken the risk of any ensuing
legal dispute. At any rate, I have come to the on balance conclusion that I cannot
conclude to the contrary, ffid that I should determine the causation issue in favour of
the claimants, though it does not affect the ultimate result.
Ouantum
95.
Given my conclusion as to liability, the question of quantum of damages does not

arise. But I should nevertheless set out my conclusions in that respect. The parties
were broadly agreed as to the approach. Had the deal gone ahead, Mr Thomas would
have received f,350,000 in cash and a funher f700,000 in loan notes. Mr Gander
would have received f950,000 in cash. The claimants accept that they have to give
credit for the value of the shareholdings which they retained in PDP, it being common
ground that valuation is to be as of 28 August 2007. A further valuation issue arises as
regards the loan notes which Mr Thomas would have received had the deal gone
ahead.
96.
Both parties called valuation evidence. In the case of the claimants it was glven by Mr
Anthony Hindley, ffid in the case of the defendants it was glven by Mr David Cook.
Apnroved Judsment
Both are well qualified and produced clear and helpful reports. The issues were
narrowed foliowing the experts' meeting prior to trial, and further nalrowed in the
course of the trial prior to their oral evidence. I should record my appreciation of their
work in that respect. In the event, most issues were agreed.
97.
As regards the value of Mr Thomas's loan notes, the experts agreed before the trial
that although the face value of the notes was f,700,000, taking into account the
company's prospectso the value on 24 August 20A7 was in fact only 9525'000.
Reflecting the deterioration in the company's prospects following news of the
withdrawal of the Powergen business on 25 August 2007 , the experts valued the notes
at f305,000 as at 28 August 2007. During the trial, the defendants suggested that
these figures did not take into account the f1,010,000 debt which would have been
due to Royal Bank of Scotland, and which might have brought the company down had
the deal gone ahead in the changed circumstances. So, it was suggested, Mr Thomas
might not have recovered anything from his loan notes at all. However both Mr
Hindley and Mr Cook said that they had taken this into account, and these valuation
figures are now cofirmon ground.
98.
So far as the valuation of the claimants' respective one third shareholding in PDP is
concerned, the experts agree that the value of the retained shares is to be calculated by
reference to the value of the company, and that the appropriate way to value the
company is by reference to its maintainable post ta:r earnings multiplied by an
appropriate multiple, namely the applicable price/earnings ratio. As regards post-ta:r
profit (allowing for tax at 22.5o/o) the experts have helpfully agreed an annual figure
of f132,000, and it is consequently unnecessary to describe the differing
considerations that each took into account in agreeing that figure. Nor is it necessary
to resolve issues within their calculations that would otherrvise have risen had
agreement on this figure not been reached.
99.
However the experts are not in agreement as regards the multiple. The price/ eamings
ratio is determined (in simple terms) by reference to the return a purchaser would seek
from his investment. It reflects the investor's assessment of the number of years
required to enable him to recover his outlay out of the company's earnings. The
formula as expressed by Mr Cook is, maintainable profits x P/E : valuation. In
seeking to assess the PIE which a notional purchaser would apply, one looks for
closely comparable deals and other market evidence or indices.
100. Mr Hindley's opinion is that 4 is the applicable
PIE ratio in the case of PDP. Mr

Cook's opinion is that l0 is the applicable P/E ratio. The difference between them
depends on a number of factors. Mr Hindley has used the ratings provided by the
London Business School Risk Management Service materially adjusted downwards to
reflect the difference between small private companies and the far larger and more
diverse concerns in the quoted sector. Mr Cook notes that the Financial Times Share
Indices show forthe FTSE listed companies aPlE of 23.71 and for Support Services a
P/E of 22.88 around the material time. These P/Es are for listed companies, and
should be discounted to reflect the differences in market ability and size between a
listed and a small private company like PDP. On that basis, he arrived at aP/E of 10.
101. Mr Cook was not aware of the sale of similarbusiness in2007 which might provide
Mr Hindley (while pointing out there is little available
public
information within the
domain) did find some deals involving small
comparable transactions.

Anoroved Judement
companies, although the activities were not directly comparable. These showed an
average multiple of 3. However it is clear that the primary factor that influenced his
opinion was the prospective effect on the company's business of the loss of
Powergen. As he put it, the company only had two major customers, and if one was
to go, the business could be in serious trouble. Mr Cook also accepted the serious
effect of the loss of the Powergen business, but maintained that he had reflected this
within his own methodology in reaching the agreed post tax profit nurnber of
f132'000. His view was that the most serious risk of insolvency would have arisen
had the deal gone through.
L02.
The parties are in agreement that Powergen accounted for 34% of the company's
turnover in the year ending 31 March 2007 . The loss of this customer was plainly
therefore a most material factor in assessing its future profitability. As it happens,
matters have not turned out as badly as was feared, but the position has to be judged
as at 28 August 2007. On the other hand, Mr Hindley's opinion leads to a total
valuation of the company at f628,000, as opposed to the f3 million agreed in respect
of the sale of the shares. Even allowing for the changed circumstances, that is a big
difference. Also significant, is the fact that his valuation of PDP on 24 August 2007
was only between f860,000 and f,1,040,000. I agree with the defendants that this is
unrealistically low at a time when the Bank was advancing over f 1 million after due
diligence. That said, I see no reason not to take at face value the claimants' evidence
that, as it appeared at the time, the loss of the Powergen business left the company in
a dire position. I also accept Mr Hindley's evidence that there is a very significant
reduction in the level of multiples paid for small companies as opposed to larger
companies. Whilst I consider Mr Hindley's valuation to be on the low side, I consider
that (all things taken into account) Mr Cook's is considerably on the high side.
Valuation as the witnesses explained is not an exact science, but my conclusion is that
aPlE of 6 is applicable as of 28 August2007, which when a sum of f100,000 is
added (as the experts agree) to reflect the company's cash balance, gives a total
valuation of [892,000.
103. That leaves the question
of whether and if so by how much the value attributable to

the claimants' shares should be discounted to reflect the fact that the entire share
capital would not pass to a prospective purchaser. I do consider that it is correct to
apply a discount. In that regard, the claimants submit that the shareholdings should be
valued as individual holdings, ffid therefore subject to a discount of 37.5%. I
consider it much more likely that their shareholdings would be sold as a block. As the
defendants put it, the most likely sale was of the company as a whole. The next most
likely sale was of both interests to Mr Wilson. The next most likely sale was of a
single interest to one or other share holders. The least likely sale was to an outsider
seeking to buy a one third interest in a private company. I prefer the evidence of Mr
Cook to that of Mr Hindley in this respect. On that basis, the experts are agreed that
the appropriate discor:nt for the sale of a two thirds interest is 12.5o/o.
Conclusion
104. Whilst in some respects I have acce'pted their submissions, the overall outcome is that
the claimants have not established negligence on the part of the defendants. I should
express my appreciation to the parties for the manner in which the case was presented
at trial, but in the event, this claim must be dismissed.

Att 1447620820391

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Att 1447620820391

Uploaded by

Copyright:

Available Formats

Neutral CitationNumber: [2010] EWHC 306 (CH)

IN TIIE HIGII QOURT OF JUSTICE

THE IION MR JUSTICE BLAIR

-andBPE SOLICITORS (a firm)

THE HON MR JUSTICE BLAIR

THE HON MRJUSTICE

Thomas and Gander -v- BPE Solicitors

The setting up and proposed sale of PDP

The facts as I find them to be are as follows. Mr Thomas's background is in banking

THE HON MRJUSTICB BLAIR

Thomas and Cmnder -v- BPE Solicitors

THE HON MR JUSTICE BLAIR

Thomas and Gander -v- BPE Solicitors

cash element by lending from the Bank.

Mr Wilson was to receive shares to the value

Meanwhile, Mr Wilson instructed Rickerbys, another Cheltenham firm of solicitors,

As discussions proceeded, following due diligence by accountants appointed by the

Matters progressed up to the week of Monday 20 August 20A7. As Mr Thomas

THE HON MRJUSTICE BLAIR

Thomas and Gander -v- BPE Solicitors

The issues between the parties

THE HON MR JUSTICE BLAIR

Thomas and Gander -v- BPE Soliciton

(3) If completion did not occur because of the non-acceptance,

or rejection of, the

Friday. 24 August 2007

Thereafter, it is necessary to examine the sequence of events in some detail. In this

THE HON MRJUSTICE BLAIR

Thomas and Gander-v- BPE Solicitors

"I now attach signed Loan Note for your records.

Thomas and Gander -v- BPE Soliciton

THE HON MRJUSTICE BLAIR

thanks for this.

In readiness for completion please can

I have your undertaking to transfer

f,1,300,000 to our account on Tuesday?

Tim on his mobile (07766 426592) to complete."

What the parties agreed as to completion

corporate transactions and I have followed this in

THE HON MRJUSTICE BLAIR

Thomas and Gander -v- BPE Solicitots

THE HON MR JUSTICE BLAIR

Thomas and Gander -v- BPE Solicitors

(1) The contemporaneous documentary material, namely Rickerbys attendance note of

THE HON MR JUSTICE BLAIR

Thomas and Gander -v- BPE Solicitors

THE HON MRJUSTICE BLAIR

Thomas and Gander -v- BPE Solicitors

provision of the undertakings

On the evidence, what happened next is as follows. Having received Mr Dew's

to send you by telegraphic transfer

The second was Knight

undertaking to Rickerbys again dated 24 August

Acquisition of PDP Management Services Limited by PDP Management

Knight & Sons"

THE HON MRJUSTICE BLAIR

Thomas and Gander -v- BPE Solicitons

In response to Mr Ward's witness statement to this effect, both claimants provided

The 17:44 phone

THE HON MR JUSTICE BLAIR

Thomas and Gander -v- BPE Soliciton

THE HON MRJUSTICE BLAIR

Thomas and Gander -v- BPE Solicitors