LSC Finance Ltd v Abensons Law Ltd

This is my extemporary judgment on a claim by LSC Finance Limited (as claimant) against Abensons Law Limited trading as Abensons Solicitors (as defendant), claim no.A30MA139.

This is the trial of LSC's claim against Abensons, a solicitor's practice based in Allerton Road in Liverpool, by which LSC seeks money relief in respect of Abensons' alleged breaches of undertakings (and thus breach of contract), negligence, breach of trust, and (by amendments for which I gave permission last Friday 6 March) breach of warranty of authority.

LSC is a commercial lender which provides secured short-term bridging loans to borrowers for commercial purposes. The claim arises from a loan made by LSC in the sum of £169,000 to one of Abensons' purported clients, known as Mrs Gail Ann Boddice, and which was intended to be secured by (1) a legal mortgage over a residential buy-to-let property known as 2 Howey Hill, Congleton, in the County of Chester, which was to be executed by the sole proprietor, Mrs Boddice, and (2) a personal guarantee from Mrs Boddice’s husband, Richard Harold Albert Boddice. Until a transfer of the property from Mr and Mrs Boddice into Mrs Boddice’s sole name in March 2013, the property had been registered in the joint names of Mr and Mrs Boddice. It would appear, although this was apparently not known to Abensons at the time, that the transfer into the sole name of Mrs Boddice had followed on from a financial property adjustment order made in matrimonial proceedings between Mr and Mrs Boddice.

Although the subject loan was released by LSC to Abensons on 1 July, and transferred by Abensons into a joint account at Barclays in the names of Mr and Mrs Boddice on 2 July 2013, the envisaged security was not effected; and it is common ground that LSC would appear to have been the victim of a mortgage fraud perpetrated, most probably, by Mr Boddice.

In making the loan, LSC and its solicitors, Woodcocks Haworth and Nuttall ("Woodcocks"), relied on solicitors' undertakings given by Abensons on 1 July 2013 and other confirmations provided before the loan monies were advanced. LSC alleges that such matters gave rise to binding obligations on Abensons which were breached and, as a result, LSC suffered loss and damage for which Abensons are said to be liable. I should emphasise at the outset that there is no suggestion that Mr Abenson, or his solicitors' practice, was knowingly involved in any way in setting up the mortgage fraud. All heads of claim are disputed by Abensons.

The claimant, LSC, is represented by Mr Giles Maynard-Connor (of counsel). The defendant solicitors, Abensons, are represented by Mr Glen Campbell (of counsel). In his opening skeleton argument, Mr Campbell stated that the essence of the claim, as pleaded in equity, is that the loan was held on trust and that trust was breached by paying away the money without obtaining a validly executed charge by the real Mrs Boddice.

At law, the claim is pleaded in three discrete ways. First, for breach of undertaking. It is said that the solicitors gave an undertaking before completion; that that undertaking had contractual force as between the solicitors and the lender; that that undertaking, properly interpreted, could only be validly and properly discharged if the solicitors were in possession of a charge by way of legal mortgage over the property executed by the real Mrs Boddice; and that a charge which was executed by an imposter impersonating Mrs Boddice would render the solicitors liable for breach of that undertaking.

Secondly, it is said that the solicitors owed a duty of care to the lender in tort, and that they breached that duty by failing to act reasonably in relation to the matter at issue, namely investigating the identities of the people claiming to be Mr and Mrs Boddice, and placing reliance upon a legal charge purportedly executed by Mrs Boddice without taking reasonable care to establish that it had been validly executed by her. It is said that the lender relied on the solicitors to discharge that specific duty; and that the lender suffered loss because, in such reliance on the solicitors, LSC transferred the loan money to them, and thereby to the person or persons claiming to be Mr and Mrs Boddice. It is said that the loan money has been lost, and that that loss ought to be made good in damages by the solicitors.

A third common law claim, that of breach of warranty of authority in representing that the solicitors were duly authorised to act on behalf of the real Mr and Mrs Boddice in the transaction, was, as I have said, added by way of amendment on the last working day before the trial. I delivered an extemporary judgment last Friday, 6 March, setting out my reasons for allowing that very late amendment, and refusing a consequential application by the defendants to adjourn the trial date.

It is appropriate for me at this stage to review the four witnesses I heard, two for the claimant and two for the defendants.

The claimant called two witnesses, both on the morning of the first day of the trial. The first was Katie Hardiman, who had prepared a witness statement dated 25 November 2014. She gave evidence on the morning of the first day of the trial for about an hour and ten minutes. She was also very briefly recalled this morning to give evidence as to the drafting of the legal charge that was to be executed by Mrs Boddice. Her supplemental evidence was not challenged when she was recalled before me this morning for about five minutes only.

Miss Hardiman is a history graduate who started her training contract to become a solicitor with Woodcocks in September 2011. She spent virtually all of her training contract in non-contentious work with a view to specialising in property matters. She qualified in September 2013. In closing, Mr Campbell rightly described Miss Hardiman as an excellent witness and a bright, hard-working solicitor who was a credit to those who had trained her. I accept that description. I found Miss Hardiman to be intelligent, alert, knowledgeable about property matters in general, and, in particular, alert to the possibility of mortgage fraud. I found her to be professional and competent. I found her to be a reliable and an honest witness. There was no challenge to any of her evidence. She made it clear in her evidence that she expected Abensons to be holding the original of a validly executed legal charge from Mrs Boddice to LSC because, first, of one requirement (8) in a checklist that had been sent to Abensons at the outset of the transaction, headed "Original Executed Security". That checklist required Abensons to note that Woodcocks “must either be holding the original, validly executed security prior to completion”, or Abensons were to “provide an undertaking of the same”.

Secondly, because the written undertakings supplied by Abensons to Woodcocks prior to release of the mortgage funds from LSC to Abensons and completion of the transaction, included undertakings numbered 1, "We confirm the execution of the first legal charge by the Borrower [defined as Mrs Boddice] in favour of LSC over the Property", and "the personal guarantee by the Guarantor” (defined as Mr Boddice), and also because undertaking numbered 3 required Abensons, within seven working days of completion, to complete the registration of the charge against the borrower, i.e. Mrs Boddice, as a first legal charge on the property. "We will send to the Land Registry the charge and requisite registration fee with form(s) AP1, RX1 and all relevant documents (including certified copies of the Charges [sic]) to register the Charge at the Land Registry."

Miss Hardiman made it clear that if Abensons had told Woodcocks that they were only holding either (1) a copy of the legal charge from Mrs Boddice to LSC, or (2) only the execution page of that legal charge, then Miss Hardiman would not have authorised the release of the funds from LSC to Abensons for onward transmission to their client. Miss Hardiman was also clear as to her understanding that a transfer from Mrs Boddice into the joint names of herself and her husband, Mr Boddice, was only to follow after completion of the registration of the legal charge granted by Mrs Boddice alone to LSC. The reason for that was that, if LSC's charge was to follow on from a transfer from Mrs Boddice to Mr and Mrs Boddice, then it would be necessary for indemnity insolvency insurance to be established in relation to Mrs Boddice to guard against any possible challenge to the validity of the joint transfer, and thus the security of any charge granted jointly by Mr and Mrs Boddice to LSC, in the event of Mrs Boddice becoming bankrupt within the relevant prescribed period, given that she and Mr Boddice would be “connected persons”.

I also find as a fact, and confirmed by Miss Hardiman's evidence this morning, that she only drafted the legal charge to be granted by Mrs Boddice to LSC at about 9 o'clock on the morning of completion, 1 July 2013.

The claimant's second witness was Mr Bradley Hacking, the former sales director of LSC. He had produced a witness statement dated 28 November 2014; and he gave evidence for about 35 minutes, immediately before the luncheon adjournment on day one of the trial. Mr Campbell acknowledged in closing that Mr Hacking was, as I find to be the case, an honest and careful witness. However, the evidence he was able to give to the court was of only limited assistance. He had never met Mr or Mrs Boddice or received any documents identifying them. He had had no direct contact with Abensons Solicitors. All contact between LSC, acting by Mr Hacking, and Mr and Mrs Boddice had been through an independent broker, Mr Peter Stott, or through the parties' respective solicitors.

In his closing submissions, Mr Campbell emphasised that Mr Hacking had only been in post as the sales director of LSC since January 2013 and, therefore, at the time of the relevant transaction he had only had some six months’ experience in what was, for him, a new field of business. Mr Hacking clearly deferred to what his superior, Mr Sean Morley, told him to do. Mr Hacking had had limited training in the field of finance provision and he was paid partly by results. Mr Campbell emphasised the fact that Mr Hacking had taken no steps to check the identities of those to whom LSC was proposing to lend £169,000.

In closing, Mr Campbell emphasised the absence from court of a Mr Peter Stott. He was the independent broker who had introduced Mr and Mrs Boddice to LSC. He had produced a witness statement, dated 27 November 2014; and there is, on the court file, a witness summons issued in relation to him by the claimant. I was told at the time of the application to amend the Particulars of Claim, on the afternoon of Friday 6 March, that Mr Stott would not be called as a witness. I indicated that I had noted that, at one stage, it would appear that the defendants had contemplated calling Mr Stott themselves. In the event, he was called by no-one.

Mr Stott was described by Mr Campbell as the conduit for obtaining relevant signatures. Mr Campbell submits that, on the evidence I should find that it was Mr Stott who received a copy of the legal charge to be executed by Mrs Boddice shortly after 9.30 on the morning of Monday 1 July 2013; and that it was he who provided that document to Mr Boddice for him to secure execution by Mrs Boddice. As will become apparent, I will be making a finding to that effect.

The defendants called two witnesses. The first was Mr Abenson, to whom I will return in a moment. The second was Mrs Beverley Ann Arkell. She described herself in her witness statement of 28 November 2014 as a "conveyancing paralegal", but, as she said in evidence, she was effectively a personal assistant to Mr Abenson. Mr Maynard-Connor accepted, as I find, that Mrs Arkell came across as a credible and honest witness. I do find that she was honest and reliable, and there was no real challenge to any of her evidence. But, as Mr Maynard-Connor also submits, Mrs Arkell's evidence was limited. She could not clearly confirm that she had found certified copy passports of Mr and Mrs Boddice (as asserted by Mr Abenson) in a file unrelated to this transaction; nor was she able to confirm whether a pdf attachment sent by her on 1 July 2013 to Miss Hardiman at Woodcocks contained copies or originals of the amended loan letter and the charge purportedly executed by Mrs Boddice. However, Mrs Arkell was clear as to the respective roles of herself and Mr Abenson and how relevant emails and other documents were produced and considered by him. She made it clear that she would not do anything without Mr Abenson's instructions. All emails were dictated by Mr Abenson, although purporting to come from her, and she would not send any email off unless Mr Abenson had checked it. Mrs Arkell had never met either Mr or Mrs Boddice. She was unable to assist the court as to how the legal charge, purportedly executed by Mrs Boddice, within the pdf files sent to Woodcocks, had come to be sent in reverse order, or how the first and second pages came to be missing. She did, however, provide some, albeit (as Mr Maynard-Connor said) limited, corroboration of finding certified copy passport documentation in a file unrelated to the subject transaction.

I turn finally to Mr Abenson himself. He had originally made a statement dated 12 September 2013 for the purposes, he said, of assisting the police into an investigation into the circumstances surrounding the apparent mortgage fraud, and also to assist himself in recording relevant events. His first witness statement for the purposes of this litigation was dated 28 November 2014. Mr Abenson made a second witness statement dated 9 March 2015 (the first day of the trial) over the weekend after the successful amendment application by the claimant on the afternoon of Friday 6 March. Mr Abenson is now 69 years of age. He qualified as a solicitor in 1971. He has specialised in conveyancing since 1974, when he founded the defendant practice (or its predecessor), and he has therefore practised as a conveyancer for in excess of 40 years.

Mr Campbell emphasised that Mr Abenson has suffered two really serious misfortunes. The first was to meet a couple posing as Mr and Mrs Boddice. The second was in obtaining insurance from a regulated and approved insurer who then fell into insolvent liquidation, causing difficulties for Mr Abenson in relation to cover in respect of the instant claim. On the issue of his credibility, Mr Campbell invited me to bear in mind that Mr Abenson had (as I am sure is the case) worked hard, and had a good practising record as a solicitor. He invited me to bear in mind that his firm was now facing financial ruin. Mr Campbell portrayed Mr Abenson as a truthful and honest man who had done the best he could. He invited me to have regard to his history and his character. He was said to be aware of his responsibilities and was ashamed of all that had happened, not only at the time of the transaction, but in relation to Mr Abenson's response to, and conduct of, the instant litigation. Mr Campbell described Mr Abenson as a fool rather than a knave.

Mr Maynard-Connor's description of Mr Abenson and his evidence was very different. He said that Mr Abenson was far from satisfactory as a witness and was not a credible witness. His evidence was unreliable in material respects and should be rejected. It was described as being often evasive, self-serving, unclear and not corroborated. Mr Maynard-Connor identified specific criticisms (at subparagraph 1.2 of his written closing submission). In my judgment, those criticisms are justified and have foundation.

Mr Abenson gave evidence for over six hours in total, commencing after the luncheon adjournment on day one of the trial and continuing until about 2.50 on the afternoon of day two. I found Mr Abenson to be a wholly unsatisfactory and unreliable witness. At times I had to pinch myself to remember that he was a qualified solicitor of longstanding and experience. He is by far the worst solicitor witness I have ever seen giving evidence in the witness box. He found it hard, or professed to find it hard, to understand questions. He found it difficult to follow the documents. He was unable to answer obvious questions, either satisfactorily or in some cases at all. He was extremely vague in his evidence. Over five hours into his cross-examination, at about 12.45 on day two, he referred, for the first time, to a signed client care letter which he said he had found on another file. This was produced to me this morning, and the manila folder within which it is contained is indeed headed "Correspondence with Lothbury".

Mr Abenson's evidence has changed, and changed in material, and inexplicable, respects from his original, informal, statement of 12 September 2013, to his first witness statement of 28 November 2014, and now his second witness statement of 9 March 2015. But the metamorphosis of Mr Abenson's evidence did not end there. In the course of his witness evidence, Mr Abenson supplied additional information, in particular as to a meeting which he said, first, was with Mr Boddice, and then with Mrs Boddice as well, on 28 June, which must have come as a surprise even to his own counsel because, in his written skeleton argument, Mr Campbell had referred to meetings between Mr Abenson and Mr and Mrs Boddice on 5, 18 and 26 June; but Mr Campbell had referred to them as the "only three meetings" between the three of them: see paragraphs 15 and 22 of Mr Campbell's skeleton argument.

Mr Abenson told me that he had found this matter very disturbing. He had found it very difficult to look at the papers. This litigation was said to have destroyed two years of his life, and could actually destroy 40 years of professional work. He denied being cavalier in his approach to this litigation. He said that he was stressed, and that he could not cope. He told me that he did not think that he had had a good night's sleep in two years worrying about this case. I acknowledge that this case has troubled Mr Abenson greatly, and I have sympathy with him; but I cannot regard that as an adequate explanation for the deficiencies in his written evidence, the contradictions contained within it, and the way in which, to adopt Mr Maynard-Connor's expression, Mr Abenson's evidence "morphed" during the course of his time in the witness box. Mr Abenson told me that he had signed the first witness statement without having carefully considered the papers. Indeed, he had not looked carefully at them until, for the first time, last Friday, 6 March, when their deficiencies became apparent during the course of Mr Maynard-Connor's submissions in support of his application to amend, at which Mr Abenson was present.

Paragraph 35 of Mr Abenson's first witness statement was clearly wrong. Mr Abenson there said that on 1 July Mr and Mrs Boddice had attended the defendant's offices to sign the legal charge, which was signed in his presence. Mr and Mrs Boddice then took home with them the transfer form, transferring the property from Mrs Boddice into their joint names, for that to be signed. Mr Abenson accepted that he had made an obvious error in saying that he had seen a woman (Mrs Boddice) whom he had not seen, and that he had witnessed her signature when he had not done so. He sought to excuse himself on the footing that that was an “obvious error”.

That witness statement, naturally verified by a statement of truth, was to be contrasted with paragraph 16 of the statement made in September 2013. There, describing events of 1 July, Mr Abenson had said that, unfortunately, when Mrs Boddice could not get in, Mr Boddice had collected the joint transfer and brought it back to Mr Abenson signed, apparently, by Mrs Boddice. That was an incomplete account of what later came to be related at paragraph 35 of Mr Abenson's second witness statement. Thus, the first witness statement for these proceedings was wrong; and his earlier witness statement, made in September 2013, was not wrong, but was an incomplete account of the events of 1 July.

Mr Abenson's evidence was also unsatisfactory as to events on Friday 28 June. On the afternoon of day one, Mr Abenson first mentioned that he had possibly seen Mr Boddice between 26 June and 1 July. He said simply, "I think I may have seen Mr Boddice in-between as well." Later that afternoon, however, he expanded upon that evidence. Mr Maynard-Connor put to Mr Abenson an email which had been sent to him by Miss Hardiman at 12.19 on 28 June. That was an email to Bradley Hacking, and recorded that Mr Abenson had just called him to say that he was meeting with his clients now, who were prepared to put the property back into joint names, but that he was not aware that such a transfer had taken place. Mr Maynard-Connor observed that that was not a meeting to which Mr Abenson had previously referred. Mr Abenson's evidence was that he did not think he had had a meeting on 28 June. He said he did have a chat with Mr and Mrs Boddice about the fact that the property had been transferred from the names of Mr and Mrs Boddice into Mrs Boddice’s sole name. He said that they had not told him very much. It was said just to be an argument: they had had an argument and had put the property into Mrs Boddice’s sole name. He then said, "I don't even know if there was a meeting on 28 June." Mr Maynard-Connor made the point that it had not been suggested to Miss Hardiman that her email was incorrect. Mr Abenson then said, "I don't think I was meeting them on that day. Mr Boddice told me they'd had an argument. The explanation just came from Mr Boddice. He could have told me over the phone. I can't recall if I spoke to Mrs Boddice to confirm what Mr Boddice had told me. I've just recalled it since talking about it."

Mr Abenson then modified that evidence on the morning of the following day. He said that he had not asked what the argument was about. He said that the whole situation of the change in ownership of the property from joint names to the sole name of Mrs Boddice was “odd”. He then said, "I think Mrs Boddice was there at the time. Yes, she was there." It was pointed out to him that there was no file note; and that, although Miss Hardiman had asked for an explanation of the transfer into Mrs Boddice’s sole name, and Mr Abenson had sent an email at 10.37 on 28 June saying, "We do not understand the transfer and we will take this up with our client and come back to you", he had in fact never done so, and he had never given any explanation.

Mr Abenson then said, when paragraph 33 of his first witness statement was put to him (in which all he had said about 28 June, was that, "On 28 June 2013, Mrs Arkell sent through the requested documents to Ms Hardiman upon my instructions. The email confirmed we did not understand the transfer and we would take this up with our client") Mr Abenson then said that both Mr and Mrs Boddice were there at the time: "I am sure it was a meeting. I can't recall. I think there was a meeting. I met Mr and Mrs Boddice. I may have been in a meeting on 28 June. I don't know. I was with her when the explanation was given. The explanation was given by Mr Boddice and Mrs Boddice agreed with it." I then sought clarification, and Mr Abenson told me they were both there, although thereafter he did not meet Mrs Boddice again.

As I say, that evidence must have come as a surprise to Mr Campbell, representing Mr Abenson's practice, because Mr Campbell had said that there had only been the three meetings between all three of them, on 5, 18 and 26 June.

Mr Abenson was equally unclear and inconsistent in his evidence about the events of 1 June. Mr Abenson had first said in cross-examination (on the afternoon of day one) that Abensons had had a copy of the sole legal charge by Mrs Boddice delivered to the practice on 1 July, and they had sent it on to the claimant's solicitors. It was then put to him by Mr Maynard-Connor that Mr Abenson could not say who it was who had brought the purportedly executed sole legal charge from Mrs Boddice into the office. All that Mr Abenson could say at that point was that it must have been brought in. That was the only way it could have arrived in his office. That echoed what had been said at paragraph 23 of Mr Abenson's second witness statement, where he said that the one signed by Mrs Boddice in her sole name "must have been brought in by Mr Boddice on 1 July 2013 before 13.13 because that is the only way I believe that it could have been included in the pdf attachment to the email sent at that time." Mr Abenson said (in cross-examination on the afternoon of day one) that he could not recall; it must have been brought in. However, on the following day, his evidence was much fuller. He said that Mr Boddice had come into the office on 1 June, mid-morning. He was pushing to have the transaction completed and had come in to sign documents. He said that Mr Boddice had come unannounced. He was not told beforehand that he needed to come in and sign documents. There had been no prior contact with Mr Boddice. He brought in a charge signed by Mrs Boddice. Mr Abenson would say that he did bring it in. Mr Abenson did not know how Mr Boddice had got the charge to bring it in, but he had brought it in and it had not come out of thin air. For some reason he had brought in the signed document. It was put to him that there was no file note recording that Mr Boddice had brought it in, whereas there were two file notes for the following day. Mr Abenson was asked why there was no file note for 1 July; and Mr Abenson said that he had not known that Mr Boddice was coming into the office. Mr Abenson said that the signature on the sole legal charge looked like Mrs Boddice’s signature. I inquired as to what checks Mr Abenson had made in that regard; and Mr Abenson said that that was only from his own knowledge. He said he knew her signature, he did not check it against any other signature. He recognised the signature, but he did not call her, nor did he ask Mr Boddice to call her. Mr Abenson said, "I recognised the signature. That is all I can say. I don't know what checks I can take."

Mr Abenson tried to row back slightly in re-examination when he said that he believed that he would have checked the signature on the sole legal charge and it did look like Mrs Boddice’s signature.

Mr Abenson was later cross-examined about the events of 2 July. It was put to him that he had given three separate accounts of the receipt of the executed joint transfer into the joint names of Mr and Mrs Boddice from Mrs Boddice alone. In the September 2013 witness statement (at paragraph 16) it was said that Mrs Boddice could not get in and that Mr Boddice had collected the transfer and had brought it back to the office executed by Mrs Boddice. At paragraph 35 of the first witness statement for this litigation, it was said that Mr and Mrs Boddice had taken the transfer with them, and had then returned it; and in his second witness statement it was said that Mr Boddice had received the joint transfer and got his wife to execute it elsewhere on 2 July.

Mr Abenson was unable to supply any satisfactory explanation as to why the joint transfer had not been handed to Mr Boddice for execution by Mrs Boddice when Mr Boddice had been in the office on 1 July. All that Mr Abenson was able to say was that Mr Boddice called him two or three times a day, and that he (Mr Abenson) had told Mr Boddice that he needed to come in to sign the transfer, which Mr Abenson then backdated from the 2nd to 1 July without, apparently, telling Mr or Mrs Boddice of the backdating.

Mr Abenson's evidence was unsatisfactory in other respects. He could not explain - although he was pressed on many occasions - why he had never told LSC that, rather than applying, as he was required to do, to register the sole legal charge from Mrs Boddice, he had instead applied to register a joint transfer from Mrs Boddice to herself and Mr Boddice and then a joint charge from Mr and Mrs Boddice in favour of LSC. No documentary indication to that effect was ever given until very late in the course of this litigation. The only mention of it was made during the course of Mr Abenson's telephone conversation with Miss Hardiman on 23 August; and it was never confirmed in writing. There was no satisfactory explanation for this other than the fact that it had all been done in a rush. Mr Abenson was unable to explain how, when he came to draft a declaration of solvency for the purposes of obtaining insolvency indemnity insurance in relation to Mr Boddice, the declaration that Mr Abenson had drafted referred to a deed of gift when in fact it should have referred to the March transfer of the property into the sole name of Mrs Boddice. Mr Abenson was unable to proffer any explanation for that other than to say it was a mistake.

I find it very difficult to see how that mistake came about, given that it was Mr Abenson himself who inserted the date of the supposed deed of gift into the declaration of solvency. Mr Abenson would have known that he was the only person who could be drafting a deed of gift for Mr Boddice on 1 July 2013, and he must have known that he was not drafting such a document. Again, there was no satisfactory explanation as to why Mr Abenson, who said he was being pressed by his client, delayed the release of the monies received from LSC on 1 July until the following day, when he received the transfer of the property into the joint names of Mr and Mrs Boddice.

He was asked why he had withheld the monies until he got the joint transfer, and Mr Abenson's explanation was, "I just wanted to get it done. I wanted to register the charge and the transfer at the same time." I find Mr Abenson's motivation completely inexplicable. Not only were the terms of the undertaking very clear, but Mr Abenson's email to Miss Hardiman of 1 July (timed at 1.13pm) concluded "We note we need to transfer the property into joint names after we have registered your charge at HM Land Registry." Moreover, after Mr Abenson's cross-examination had concluded on the afternoon of day two, the original file which had been lodged with the police as part of the criminal investigation was produced. Many of the documents within it were already within the trial bundles. But there emerged for the first time an attendance note dated 2 July 2013, addressed to Jan Garden, who was a legal secretary at Abensons, from Mr Abenson which reads: "Jan, can you please get this ready for registration with the mortgage and once that is registered, I need to do a transfer from Mrs Boddice into Mr and Mrs Boddice’s names." That clearly shows that on 2 July Mr Abenson was conscious that he needed to complete the registration of the sole charge from Mrs Boddice to LSC before the transfer from Mrs Boddice into Mr and Mrs Boddice’s names was done. Despite that, on 2 July Mr Abenson's efforts were focused upon getting the joint transfer executed which, in the event, was done by Mr Boddice alone coming back to the office with it purportedly executed by Mrs Boddice.

In his first witness statement, Mr Abenson had said at paragraph 36 that:

I must confess, particularly in the light of the lately disclosed 2 July attendance note, I find the whole matter completely incomprehensible in terms of Mr Abenson's thinking.

Having heard Mr Abenson giving evidence for over six hours, I am entirely satisfied that I cannot rely on anything that Mr Abenson has told me unless either (1) it is supported by contemporary documentary evidence which I find to be reliable; or (2) it is supported by some reliable independent testimony, such as that of Miss Hardiman, or of Mrs Arkell; or (3) what Mr Abenson says is against his own interests.

During the course of his evidence, Mr Abenson did make a number of admissions against his own interests. He made it clear that he understood from the checklist supplied by Woodcocks that his obligation was to hold the original, validly executed security before completion. He also knew that the relevant undertakings had to be provided before the transaction could complete. He knew that the claimant would be relying upon those undertakings and the documents which his firm was providing to Woodcocks.

Mr Abenson also knew that his firm needed to be holding a validly executed first legal charge by Mrs Boddice over the property. He also knew that the monies being transmitted by Woodcocks from LSC were only being sent for the purpose of a loan to be made to Mrs Boddice against the security of the property in question. I specifically got Mr Abenson to confirm that he knew that he was obliged to confirm valid execution of the charge, and that his firm was holding the original.

That concludes my review of the witnesses. Against that background, I turn to consider the chronology of the transaction. Originally it was to proceed in the sum of £170,000, although it was then reduced to £169,000 to reflect a slightly lower valuation of the security. Abensons were first approached by Woodcocks on 3 June 2013 seeking confirmation that they were instructed by Mr and Mrs Boddice. It was with that email, later confirmed by a hard copy letter of 4 June, that the checklist was sent to Abensons. On 3 June Abensons received from a Michael Morris, who had apparently introduced Mr and Mrs Boddice to Abensons, a certified copy of a passport purporting to be that of Mr Boddice. Although Abensons wrote to Mr and Mrs Boddice at their property in Southport on 4 June stating that they had, “of course”, already provided identification, in fact the certified copy of Mrs Boddice’s passport was only sent by Mr Morris to Abensons on the following day, 5 June 2013. I acknowledge that it is possible that the letter of 4 June was not sent out until after that document had been received because the client care letter and attached terms of business are dated 6 June 2013. There is an attendance note on Abensons’ file dated 5 June which purports to record that Mr and Mrs Boddice had called in to discuss the transaction and that they wanted it done - I think it reads - "today".

On 7 June Abensons first contacted Woodcocks by email enclosing various documents. There were in fact two emails on that day. On 9 June, Miss Hardiman emailed Abensons noting, from the day list at the Land Registry, that there was currently a pending application against the title lodged by Mrs Boddice. Abensons were asked to confirm the nature of the application. No such confirmation was ever provided. On 10 June 2013, in the absence from the office of Miss Hardiman, Gary Jones, a partner at Woodcocks, sent an email to Abensons. He was still seeking clarification on the pending application with the Land Registry; and, subject to receiving such clarification, he attached a draft legal charge, at that stage to be executed by Mr and Mrs Boddice jointly, together with the undertakings which were said to be required prior to completion. There was also to be a declaration of exemption for business purposes.

On 14 June, Miss Hardiman emailed Mr Abenson wondering if it was possible for him to give her an indication as to when he wished to complete the matter. She again indicated that she was also looking forward to receiving confirmation from Mr Abenson as to what the pending application at the Land Registry was. On 18 June there is an attendance note on Abensons’ files which reads:

It was on that occasion that Mr Abenson purports to have witnessed the execution of the joint legal charge from Mr and Mrs Boddice to LSC.

At some time in or about November 2014 Mr Abenson is said to have found, on another, and unrelated, file, copies of the relevant pages of passports of Mr and Mrs Boddice, certified to be true copies of the originals by Abensons & Co. Mr Abenson has belatedly asserted that it was he who confirmed the identities of Mr and Mrs Boddice against their passports on 18 June, and then caused the receptionist to photocopy the relevant pages of the passports. Mr Maynard-Connor rightly emphasises that this was information that only came to light when Mr Abenson came to make his first witness statement for the purposes of these proceedings at the end of November. He rightly emphasises that the fact that the passports had been seen and verified by Mr Abenson himself, and at the same time that those passports had been photocopied, had not featured at all in either the initial formal letter of response to the pre-action correspondence or in the defence. Indeed, in Mr Abenson's response to the first request for further information, Mr Abenson had stated, in terms on 13 June 2014, that, having seen the certified copy passports provided by the mortgage broker, Mr Morris, "further copies of the original passports were not taken at this stage [i.e. 18 June 2013] because Edward Abenson had already been provided with copies of the original passports." In the light of that, Mr Maynard-Connor invited me to find that Mr Abenson had not indeed checked the identities of Mr and Mrs Boddice against their passports personally on 18 June, and that the attendance note of that date was effectively a fabrication designed to bolster Mr Abenson's case.

I am not prepared to make that finding. The passports were found, albeit on an unrelated file. They are certified by Abenson & Co. I do not see how that could have happened unless Mr Abenson is correct in his evidence that it was he who had performed that task. His evidence, and the evidence of Mrs Arkell, was that she had had nothing to do with Mr and Mrs Boddice and had never seen them. Mr Abenson's evidence was that the only persons at the practice to have seen Mr and Mrs Boddice were Mr Abenson and the receptionist. I accept that Mr Abenson did verify the passports against the two individuals who appeared before him. On a balance of probabilities, I find that Mr Abenson was there with, before him, someone who bore a sufficient resemblance to Mrs Boddice to have taken Mr Abenson in. But the fact that Mr Abenson had no recollection of having undertaken this exercise, and obtaining photocopies of the passports, and then certifying them, even though (according to Mr Abenson) this was his practice's standard practice, does say very little for Mr Abenson's powers of recollection or the care with which he verified the further information at paragraph 12 of his response to the claimant's first request for further information.

On 26 June, Woodcocks carried out a further check at the Land Registry and discovered that the pending application in fact related to a transfer of the property from the joint names of Mr and Mrs Boddice into Mrs Boddice’s sole name. On the following day, Miss Hardiman sent an email to Abensons alerting them to that fact. They said that the office copy entries clearly show Mrs Boddice as the sole proprietor:

Abensons never provided that information. Instead, later on 27 June, Peter Stott, the independent mortgage broker, emailed Katie Hardiman saying that the Boddices had been advised by someone he described as a "half-wit broker" to put the property into Gail's name to make a buy-to-let easier.

Miss Hardiman gave consideration to the way forward. In an email to Mr Bradley Hacking of 27 June (at 5.14 on that day) she suggested two alternative ways forward. Early the next morning (at 9.22) in an email to Miss Hardiman (copied to Mr Stott), Mr Hacking indicated that both of Miss Hardiman's suggested ways forward would cover LSC's interests, but the main question was which would take less time. Miss Hardiman responded to that and, eventually, it was agreed to proceed by way of a sole charge from Mrs Boddice, which was then to be registered and, following registration of that charge, the property was to be re-transferred from Mrs Boddice to Mr and Mrs Boddice. That re-transfer would, of course, be subject to the existing registered charge in favour of LSC.

At 10.37 on 28 June, Abensons emailed Katie Hardiman attaching a pre-completion search, up-to-date office copy entries, and a bankruptcy search. Abensons said that their office copies of 27 March showed the property clearly in the joint names of Mr and Mrs Boddice. They said, "We do not understand the transfer and will take this up with our client and come back to you." At 12.19 Miss Hardiman forwarded that email to Mr Hacking. It was in that email that she said that Mr Abenson had just called to say he was meeting with his clients, who were prepared to put the property back into joint names but that he was not aware that such transfer had taken place. She asked how Mr Hacking would like to proceed: wait until the property was registered in both names again or lend to Mrs Boddice only.

At 3.16 on that day (28 June), which was a Friday, Mr Hacking emailed Katie Hardiman (with a copy to Mr Stott) saying that he had spoken to Sean about this. LSC was happy to proceed with the loan being in Mrs Boddice’s name and LSC having a first charge, with Mr Boddice guaranteeing it. They also wanted an undertaking that the names would be changed on the deed. Miss Hardiman was instructed to proceed towards completion. At 3.41 Miss Hardiman thanked Mr Hacking for confirming the position. She said she would obviously have to increase her fees to cover the fact that a guarantee was now required. She said that in terms of the undertaking, she suspected that all Abensons would agree to was to draft a transfer transferring the property from Mrs Boddice to Mr and Mrs Boddice and to submit the application to the Land Registry. She said that Abensons would not undertake to amend the title as they could not do that. When the property was transferred, then the first charge in place would have to be amended to make Mr Boddice a party to it. He could not be a party to the original loan. She said that they would have to pay Woodcocks' fees for doing that. If they wished to reduce the fees, then they would have to wait until the property was transferred before they proceeded.

On Monday 1 July (at 8.38) Mr Hacking sent an email to Mr Stott (with a copy to Miss Hardiman). He said that Peter was to find attached the amended formal offer for the borrower's signatures. The monies would be transferred that day to Woodcocks to complete. I find that it was following on from receipt of that email that Miss Hardiman amended the form of legal charge so that it showed Mrs Boddice alone as the mortgagor. At 10.54 she sent an email to Mr Hacking saying that she had sent the amended documents to Abensons "so hopefully their client would be able to attend their offices to execute them". She said that she had amended the charge so that it was in the sole name of Mrs Boddice. She had added a new clause stating that she was to transfer the property into the joint names of herself and Mr Boddice within 30 days of the charge being registered. She said it was obviously important that LSC got the charge registered before she transferred the property. If Mrs Boddice did not do that, she would be in default of the mortgage. Miss Hardiman then dealt with the issue of fees.

Miss Hardiman had already (at 9.39) sent an email to Abensons saying that she had by then received her client's instructions and could confirm that her client was willing to proceed on the basis that the charge was entered into in the sole name of Mrs Boddice. The charge was to be guaranteed by Mr Boddice. Once the charge had been successfully registered at the Land Registry, her client would like the property transferred into the joint names of Mr and Mrs Boddice. A new charge would then need to be entered into to reflect the change in proprietorship. She said that she had amended the charge and had incorporated a new clause 8, which placed an obligation on Mrs Boddice to transfer the property. She attached the amended charge, the personal guarantee from Mr Boddice, amended completion undertakings, and an amended offer letter. She concluded:

The amended undertakings were now headed so as to relate to a charge by Mrs Boddice, with a guarantee by Mr Boddice. The charge was re-defined accordingly.

At 10am, Miss Hardiman sent a further email to Abensons confirming that, given the circumstances, her client would require bankruptcy indemnity insurance to be put in place. She looked forward to receiving a draft policy for Woodcocks' approval. At 1.13, Abensons responded, attaching the letter of undertaking, the acceptance of the loan, the mortgage offer and the guarantee. Woodcocks were invited to accept the email as a commitment to put in place insolvency insurance in the sum of £200,000. Abensons' bank details were given. Abensons said that they were looking forward to receipt of funds. The email concluded:

The letter of undertaking was signed, Mr Abenson accepts, by him, and I so find. Mrs Arkell was clear that she would not have signed the undertaking. The legal charge by Mrs Boddice has a front sheet dated in manuscript 1 July. The next page is the execution page. It bears the purported signature of Mrs Boddice, witnessed by a Jeremy Witts, with an address in Ormskirk, described as a mortgage broker. The legal charge then follows in reverse page order, but with pages 1 and 2 missing. On 1 July Mr Boddice executed a declaration of solvency drafted by Mr Abenson in the presence of a solicitor, Mr Roger A Billinge, with premises in the same road in Liverpool (at 11 Allerton Road).

The monies (£161,360 net) were transferred from Woodcocks to the bank account of Abensons on the afternoon of 1 July 2013. They were released to a Barclays bank account, apparently in the names of R and G Boddice on the following afternoon (2 July). In the meantime, the transfer from Mrs Boddice to the joint names of herself and Mr and Mrs Boddice had purportedly been executed by Mrs Boddice, again in the presence of Jeremy Witts, but this time giving an address at 329 Croxteth Road, Liverpool 20. Mrs Boddice’s signature on the transfer is totally unlike her signature on the mortgage deed or the letter accepting the revised loan offer. It was not until 18 July 2013 that Abensons applied, not to register the sole legal charge from Mrs Boddice, but to register the transfer into Mr and Mrs Boddice’s joint names and then to register a joint charge from Mr and Mrs Boddice to LSC which, I find, had been executed by Mr and Mrs Boddice (or persons purporting to be them) on 18 June 2013 before Mr Abenson, but which was only dated 1 July 2013.

The transfer itself was only executed, according to Mr Abenson, on 2 July, but he dated it back to 1 July, I find in order to accord with the date of the joint mortgage, which he had, for some reason, previously dated 1 July. On the balance of probabilities, I find that he dated the joint mortgage 1 July because that was the date that he received the funds from LSC; and he then backdated the joint transfer to accord with the date he had inserted on the joint mortgage.

On 5 August 2013 Miss Hardiman wrote to Abensons, referring to their letter of 1 July and the undertakings given therein, and noting that Woodcocks had yet to receive anything further from Abensons. They looked forward to hearing from Abensons as a matter of urgency and, in particular, with confirmation that the charge in favour of LSC had been successfully registered against the property. Reference was made to the fact that LSC had instructed Woodcocks that they had not yet received payment from Mr and Mrs Boddice, and they therefore asked that their client should complete the enclosed standing order mandate and present it to their bank. Mr Abenson's response, on 8 August, was simply that the AP1 was submitted on 18 July and they would send the standing order mandate to their client.

No reference was made to the fact that what had been applied to be registered was the joint transfer, and the joint legal charge, and not the sole charge by Mrs Boddice. On 15 August Abensons wrote to Mrs Boddice, at the Southport address, saying they had a query on the transaction and would be most grateful if she could contact Mr Abenson. On 19 August they wrote to both Mr and Mrs Boddice, at the Southport address, saying that they had asked their agents to call to arrange to have the transfer signed by Mrs Boddice as the Land Registry were said not to be happy with the signature on the transfer that had been forwarded to them. It was said that that needed to be done immediately. On 22 August 2013 Miss Hardiman received a call from Abensons Solicitors. Mr Abenson confirmed that, unfortunately, the Land Registry had refused to register the charge in favour of LSC as they believed there had been a mortgage fraud. Apparently the Mr and Mrs Boddice whom he had attended upon were not the real Mr and Mrs Boddice, who lived in Bahrain. He confirmed he had met with the clients and he had a utility bill and certified copy of their ID. They too had certified the ID; and he confirmed that it was the broker who had just found out, which was why he was telephoning, and that he was going to refer the matter to the police.

A letter was written to Abensons on 23 August. On the same day there was a response from Abensons. On 23 August, Miss Hardiman again had a telephone conversation with Mr Abenson. She asked him to send any information that he had as obviously her client was anxious to sort the matter out. Miss Hardiman asked Mr Abenson to confirm once again what it was exactly that the Land Registry had queried. He said it was the signature on the transfer and the charge. Miss Hardiman asked about the charge in Mrs Boddice’s sole name and when that was submitted: "He [Mr Abenson] didn't seem to have any recollection of such a charge and said the charge he had submitted was that in joint names. It was agreed that the first charge would be in her sole name guaranteed by Mr Boddice and it was on completion the transfer would be done. He confirmed he wasn't sure and would have to check his file. I confirmed I looked forward to receiving any information he can send to us as soon as possible." No such information was forthcoming.

The only further document to which I need to refer is the Land Registry's requisition of 7 August 2013. Numbered paragraph 6 states that the signature of Gail Boddice on the charge dated 1 July 2013 was entirely different to that on the transfer of the same date, and neither signature appeared similar to that on the transfer of 26 March 2013, a copy of which was enclosed. The signature of Mr Boddice on the charge was also said to be unlike that on the transfer of 26 March 2013. Abensons were asked to explain the reasons for those discrepancies. Numbered paragraph 5 asked for confirmation of the correct name and address of the witness to the transferor's signature on the transfer dated 1 July 2013 as the address set out appeared not to exist. Requisition number 7 stated that the transfer dated 26 March 2013 appeared to have been pursuant to a court order on breakdown of marriage. Under the circumstances, Abensons were asked to explain why Gail Boddice had now transferred the property back into joint names.

That concludes my recital of the chronology. I have already indicated that I accept Mr Abenson's evidence that on 18 June 2013 he did purport to verify the appearance of the two individuals before him against their passports. I have indicated that I find, on a balance of probabilities, that, although Mr Boddice was there, the woman accompanying him was someone masquerading as Mrs Boddice. The next question I have to make findings of fact upon is whether, on 1 July, Abensons held the original of the sole legal charge from Mrs Boddice to LSC.

Mr Maynard-Connor submits that Abensons held no such original legal charge and that that is the reason why, on 2 July, Mr Abenson set about obtaining a joint transfer of the property from Mrs Boddice to Mr and Mrs Boddice, so that he could then rely upon the joint legal charge, execution of which by Mr (and, apparently, Mrs) Boddice, he had previously witnessed on 18 June. Mr Maynard-Connor also submits that attempts to obtain a properly-executed sole legal charge from Mrs Boddice explain why there was a delay until 18 July in submitting the application to the Land Registry. What Mr Maynard-Connor invites the court to find is that Mr Abenson found that he did not have an original legal charge from Mrs Boddice, that he was attempting to obtain a sole legal charge so that he could register that, but that, as a backstop, and because he knew that he would have to obtain a joint transfer eventually, he also took steps to obtain that joint transfer. It was only when he was unable to obtain an original legal charge from Mrs Boddice that he decided to do the next best thing and register the joint transfer, together with the joint legal charge. That, Mr Maynard-Connor says, explains the delay in submitting the application to the Land Registry.

There is some force in the points that Mr Maynard-Connor makes. As I have indicated, I find Mr Abenson's conduct after 1 July difficult to explain on any rational basis. However, I do have to bear in mind that on 1 July Abensons did send through to Woodcocks all but the first two pages of a legal charge purportedly executed by Mrs Boddice. Mr Campbell submits that the likely course of events is that Mr Stott had provided Mr Boddice with both the revised offer letter and the required amended form of legal charge. It is quite clear that Mr Stott had, throughout the transaction, been in email contact with Mr Boddice. Mr Stott had been the conduit for obtaining the original signed offer letter from the persons purporting to be Mr and Mrs Boddice. Mr Stott was clearly anxious for completion to take place, no doubt for the understandable reason that he would only receive his commission on completion.

It is quite clear that at 8.38 on Monday 1 July, Mr Hacking emailed Mr Stott, enclosing the amended formal offer letter for the borrowers' signatures. It is also clear that at 9.39 on the morning of Monday 1 July, Mr Stott received from Miss Hardiman the amended charge and personal guarantee. On the balance of probabilities, I find that Mr Stott, who was anxious to ensure that the transaction proceeded to completion, emailed those documents through to Mr Boddice, and that Mr Boddice arranged for a signature, purporting to be from Mrs Boddice, to be applied to each of the amended offer letter and the amended charge.

I am satisfied, on the balance of probabilities, that Mr Boddice then took the originals of those documents to Abensons, and that Abensons had them at the time the email timed at 1.13 was sent through to Miss Hardiman. It may well be that, in the course of the scanning procedure, the first two pages of the original charge became detached from the remainder of the document; but I do not see that that affects the matter. It was always possible for those first two pages to be printed out again and attached to the form of legal charge which the person purporting to be Mrs Boddice had executed.

I find, on the balance of probabilities, that Abensons did have the original, and purportedly validly executed, legal charge on 1 July. As I say, I find Mr Abenson's conduct thereafter inexplicable. It may be that he was concerned that the first two pages of the legal charge from Mrs Boddice were not on the file, and he did not appreciate that he could simply print them out again. Otherwise, I do find his conduct inexplicable.

I then move on to consider what had happened on the previous Friday. On the basis of Miss Hardiman's email to Bradley Hacking at 12.19 on 28 June, I find that Mr Abenson was expecting to meet with Mr and Mrs Boddice on that day. In the light of Abensons’ earlier email at 10.37, I find that the purpose of that meeting was for Mr Abenson to find out why the property had been transferred from the names of Mr and Mrs Boddice into the sole name of Mrs Boddice. I do not accept that Mrs Boddice attended at Abensons' offices on that day. I find that the sole explanation for the transfer was provided by Mr Boddice to Mr Abenson. I find that Mr Abenson was concerned about that explanation. He himself described it all as "odd". He originally had no recollection of Mrs Boddice being there. I am not satisfied that he spoke to Mrs Boddice, who was not present, by telephone that day. Mr Boddice was the only one present, and he provided an explanation which should have set alarm bells ringing with Mr Abenson, and may indeed have done so. It was for those reasons that Mr Abenson did not come back to Miss Hardiman on Friday 28 June with the explanation that had been promised in the email of 28 June timed at 10.37.

Moving forward to 1 July, I have already found that the original of the sole legal charge was provided to Mr Abenson at some time before 1.13 that afternoon. Mr Abenson himself said originally that he carried out no verification of the signature against any other document. In the light of what Mr Abenson already knew, I consider that that was negligent. He relied entirely upon a document that was proffered to him by Mr Boddice, and witnessed by someone who was not another lawyer.

Mr Abenson had previously witnessed the signatures of Mr Boddice and the imposter Mrs Boddice on the joint charge. It may be that that is something that concerned Mr Abenson; and it may be that that is why he set about obtaining, as a matter of urgency, the joint transfer.

On 2 July Mr Abenson says that Mr Boddice attended at his office, received the joint transfer, took it away and then returned with it, apparently executed and witnessed by Mrs Boddice and Mr Witts again. Mr Abenson said he did not spot that the witness's address was different, and that he did not even pick up on the fact that it purported to be the person who had witnessed the previous sole mortgage. Mr Abenson said that he was concerned enough about the form of the signature of Mrs Boddice that he asked to be put through to Mrs Boddice, and that she confirmed by telephone that it was her signature; but it had been done in a rush.

Even if Mr Abenson did make such a call, in my judgment he was negligent in accepting the joint transfer as having been duly executed in those circumstances. He already, on his own evidence, had regarded the original transfer to Mrs Boddice as odd. The re-transfer should have appeared doubly odd. The fact that the signature bore no resemblance to the signature he had received the day before should also have struck him as odd. It certainly bore no resemblance to the signature on the certified copy passport. Indeed, from my inexpert eye, there are substantial differences between the signature on that copy passport and the signature on the sole legal charge as well.

By then, I am satisfied that Mr Abenson should have been put on inquiry as to the genuineness of these documents; and he should have insisted upon seeing the woman who had previously presented herself to him, and had represented herself as Mrs Boddice. As Mr Maynard-Connor pointed out, one simply does not know whether Mr Boddice would have been able to present to Mr Abenson, either at short notice or at all, the woman who had previously been represented as Mrs Boddice, and who had successfully passed herself off as that person by reference to the passport.

I am satisfied that Mr Abenson was indeed negligent in relation to accepting both the sole legal charge and the joint transfer as genuinely executed documents.

Those findings of fact are, I think, sufficient to enable me to proceed to consider the legal issues in the case.

The first legal issue I have to consider is the true meaning and effect of the undertaking. I was referred to in excess of 20 authorities. It is sufficient for me to refer only to a number of them. On the issue of the meaning and effect of the solicitor's undertaking, and also the warranty of authority issue, I derive particular assistance from the following authorities: The first is Zwebner v The Mortgage Corporation Ltd [1998] PNLR 769, CA. There the same solicitors were acting for both the borrowers and the mortgagee. A claim for breach of fiduciary duty failed. A claim for breach of an undertaking that all appropriate documents would be properly executed on or before completion, and a claim in negligence, both succeeded on appeal. The claim for breach of fiduciary duty was not pursued in the Court of Appeal.

I derive particular assistance from the passage in the judgment of Robert Walker LJ at page 777 between B and G. There Robert Walker LJ said:

In the case of Barclays Bank Plc v Weeks, Legg & Dean [1999] QB 309 at page 328, between letters C and D, Millett LJ pointed out that:

In the present case, Woodcocks were clearly relying upon Abensons, as solicitors for the proposed borrowers, in relation to the execution of the mortgage documentation to be provided by Abensons' client or clients. Mr Campbell submitted, as is correct, that the decision in Zwebner was one on the particular wording of the particular undertaking, and was very much a case on its own facts. That was said to be apparent when one contrasted the Zwebner case with the third of the authorities which I find of particular relevance in the present context, that of Midland Bank Plc v Cox McQueen [1999] PNLR 593.

I was taken to passages in the judgment of Lord Woolf MR at page 597B to 598B and from page 602C to 603F. I was also taken to passages in the concurring judgment of Mummery LJ at pages 604F to G, and page 605A. I find particular assistance from the passage in Lord Woolf's judgment at page 602 between letters E and F. There Lord Woolf distinguished the earlier Zwebner case on two particular grounds. First, that in Zwebner the court was concerned with undertakings rather than merely a certificate; and, secondly, that in the Zwebner case, the words used had been “properly executed”. They were said to be words to which Robert Walker LJ had attached significance, and they did involve a statement as to the quality of the execution which was absent in the retainer. Furthermore, for solicitors, an undertaking was said to be of particular significance, and that did not apply to a certificate. Lord Woolf MR concluded this part of his judgment by stating that:

Lord Woolf recognised that, if the bank's submissions as to the interpretation of the retainer did not succeed, it was difficult for the bank to succeed on the argument based on collateral warranty. In view of the conclusion which Lord Woolf had come to as to the interpretation of the retainer as a whole, he could see no reason for coming to a different conclusion as to the interpretation of the certificate.

Mummery LJ, in the course of his concurring judgment (at page 604E), said that the court's function was to construe the retainer. Later on the same page he said that:

Mummery LJ concluded his judgment (at page 605 between letters E and F) as follows:

The fourth authority on this aspect of the case to which I must refer, and upon which Mr Campbell placed particular reliance, was the decision of His Honour Judge Hegarty QC (sitting in the Manchester District Registry of the Queen's Bench Division) in the case of Excel Securities Plc v Masood & Ors [2010] Lloyd's Rep PN 165. That was an application for summary judgment. Mr Campbell took me to paragraphs 59, 63, 65, 88, 90 through to 92, and 95 to 104 of Judge Hegarty's judgment. I have derived particular assistance from the distinction that Judge Hegarty drew at paragraph 95 between authority on the one hand and identity on the other.

At paragraph 96 Judge Hegarty said that:

At paragraph 98, Judge Hegarty said:

At paragraph 102, having considered the authorities, and in particular Midland Bank Plc v Cox McQueen, Judge Hegarty said:

At paragraph 103 Judge Hegarty considered that the point could be illustrated by:

Mr Campbell points out that the approach of Judge Hegarty has been followed in later cases. He referred me to the decision of His Honour Judge Richard Seymour QC in Stevenson v Singh [2012] EWHC 2880 (QB), in particular at paragraph 99. There Judge Hegarty was said to have proceeded on the basis that there was a warranty of authority in that case, but a limited one. Judge Seymour inclined to the view that in fact it was unarguable that a solicitor could give a warranty of authority which went further than that he had a client who had given the solicitor the name which the solicitor had identified to the opposite party or other parties. Such a warranty would be of no practical benefit in any foreseeable circumstance, and so the question arises whether, even a limited warranty of authority should be found to exist:

Mr Campbell also pointed out that Judge Hegarty's approach had been followed by the Inner House of the Court of Session in the case of Cheshire Mortgage Corporation Ltd v Grandison [2012] CSIH 66; [2013] PNLR 21. This case, Mr Campbell submitted, had a striking similarity to Excel.

In my judgment, everything in the present case turns on the precise terms and effect of the undertakings given by Abensons to LSC through their solicitors, Woodcocks. I have already set out the terms of the undertaking. It was on a letter on Abensons Solicitors' notepaper which referred to Mrs Boddice as “the Borrower”, Mr Boddice as “the Guarantor” and 2the Property” as 2 Howey Hill, Congleton. The undertaking was said to be given:

In my judgment, that undertaking has to be read in conjunction with the earlier document headed "Property Security Requirements", which (at paragraph 8, headed "Original Executed Security"), required Abensons to note that Woodcocks must be either holding the original, validly-executed security prior to completion, or Abensons were to provide an undertaking of the same.

In my judgment, read in its context, undertaking 1(a) required Abensons to confirm the execution of an original, validly-executed security in the form of a first legal charge by Mrs Boddice in favour of LSC over the property. As Millett LJ observed in Barclays Bank v Weeks, Legg & Dean, Woodcocks could take reasonable precautions to ensure that the legal charge was properly executed by LSC, but it was difficult to see what steps they could take to ensure that the mortgage to Mrs Boddice was properly executed by her. Woodcocks had to rely on Abensons for that purpose.

Mr Campbell's submission is that the undertaking, properly construed, is limited to an undertaking that there was a legal charge validly executed by a person purporting to be Abensons' client, Mrs Boddice; but the undertaking did not extend to an undertaking effectively guaranteeing that the legal charge was executed by Abensons' client, Mrs Boddice. The undertaking was simply as to execution by a person purporting to be the borrower.

In support of that submission, Mr Campbell pointed out that the undertaking had been provided in a form drafted by Woodcocks. It did not require confirmation of the execution of a validly executed security. All that it did was to confirm the execution of a first legal charge. I cannot accept that submission. In my judgment, for the reasons I have indicated, the undertaking has to be read in conjunction with paragraph 8 of the property security requirements, which requires an undertaking in relation to an "original validly executed security". I can see no material difference between the requirement of a “validly executed security” and that of a “properly executed” security, which was what was in issue in the Zwebner case. As Mr Maynard-Connor submits, this case is very much on all fours with the Zwebner case. It is, in my judgment, very different from the other cases to which I have been referred, and to which I have made reference. In this case, I am satisfied that, on the true construction of the undertaking, Abensons undertook that they would hold an original, validly executed security by Mrs Boddice, and not by merely by someone purporting to be Mrs Boddice. I am satisfied that the undertaking was given by Abensons in their personal and professional capacity. I accept Mr Campbell's submission that Mr Abenson's evidence as to his subjective understanding that his obligation was to hold the original, validly executed security prior to completion cannot affect the construction of the undertaking; but I do take comfort from the fact that, as an experienced conveyancing solicitor of longstanding, Mr Abenson did construe the undertaking as extending that far. That, no doubt, was why Mr Abenson took steps to have execution of the original joint mortgage witnessed by himself, after he had taken the precaution of checking the appearance of the two individuals executing the document against the passports proffered to him. The fact is that one of the two individuals, Mrs Boddice, was an imposter at the time the original joint charge was executed; but it seems to me that the risk of imposture was one which Abensons assumed, rather than it falling upon LSC as the lender. True it is that the lender took no steps to verify the identities of Mr and Mrs Boddice, but that was because they knew that they were instructing solicitors, and they looked to those solicitors to do so.

Once the undertaking is construed in that way, it seems to me clear that Abensons should also be taken to have been warranting that they were duly authorised to act, not simply for a person purporting to be Mrs Boddice, but warranting that they were actually acting for the Mrs Boddice who was the registered proprietor of the property being offered by way of security.

For those reasons, I am satisfied that the claims for breach of undertaking and breach of warranty of authority are made out.

On that basis, it does not matter whether Mr Abenson was also in breach of a Quistclose resulting trust in releasing the advance monies to his clients on 2 July. However, it seems to me that the finding that the undertaking was to the effect I have indicated means that there was in fact also a breach of a Quistclose resulting trust. As Mr Maynard-Connor submitted, a Quistclose trust may arise where one person advances money to another on the understanding that that other is not to have the free disposal of the money, and that it may only be applied for the purpose as stated by the person advancing the money. A trust will not be imposed on the recipient unless the provider of the money intends to restrict the recipient's freedom to dispose of the subject money. I accept that that is an objective question.

Mr Maynard-Connor accepted on behalf of LSC that there was no express stipulation that the advance monies were to be held on trust, nor any like invitation from Abensons. He acknowledges that the Abensons' undertakings did not expressly go that far. However, he submits, and I accept, that Woodcocks made it quite clear that the advance monies would only be transferred on the provision of the Abensons' undertakings. He relies upon Miss Hardiman's email at 9.39 on 1 July stating that she would obviously require the amended undertakings before Woodcocks could complete. Those undertakings have to be viewed in the light of my decision that, on their true construction, Abensons were to be in possession of a validly executed, original legal charge document before releasing the monies. It was only when Abensons were in possession of such a document, that they could comply with their undertakings and release the monies to their clients. Absent such a document, the known purpose for which the advance monies were being transferred could not be achieved. As a result, I accept that LSC's conduct, through their solicitors, Woodcocks, was sufficient to impose restrictions on Abensons' ability to apply the advance monies. Mr Abenson himself accepted that the advance monies were provided for the specific purpose of providing a loan secured by a valid legal charge over the property from Mrs Boddice and that he knew this. He also accepted that, unless his firm was holding the original of such a validly executed charge, it could not release the monies. Indeed, his own actions in allegedly not releasing the monies until the joint transfer was provided - inexplicable though the need for that was - confirmed that he knew that his firm was not free to deal with the monies. I accept that in the circumstances, a Quistclose trust did arise; and in releasing the monies on 2 July, that trust was breached by the firm.

Although relief under section 61 of the Trustee Act 1925 was claimed in the defence, no argument in support of such a claim was advanced, and quite properly. The burden would fall squarely on Abensons to establish all the requisite elements of the statutory defence; and I am satisfied that it cannot do so. It did not act reasonably or honestly, and it ought not fairly to be excused from breach of trust.

That only leaves outstanding the question of the claim for breach of a duty of care in tort. On that, I was referred to the seminal case of Grand Gelato Ltd v Richcliff (Group) Ltd [1992] Ch 560, a decision of Sir Donald Nicholls VC. Mr Campbell rightly described this case as the leading authority in this jurisdiction on when a duty of care may arise on the part of a solicitor towards the opposing party to a transaction. The question was whether a vendor's solicitor owed a duty of care to the purchaser in answering preliminary enquiries.

Mr Campbell took me to Sir Donald Nicholls's judgment at page 569C through to page 572C. The general principle, with which I would not take any issue, is expressed at page 570D. In Sir Donald Nicholls's view, in normal conveyancing transactions, solicitors who are acting for a seller did not in general owe to the would-be buyer a duty of care when answering enquiries before contract or the like. In reaching that conclusion - that the law should not generally import a duty of care in such circumstances - Sir Donald Nicholls identified three factors as weighing with him, which he proceeded to set out. However, at page 571 just below letter G, Sir Donald Nicholls identified two caveats. He emphasised two points: the first was that there would be special cases where the general rule does not apply, and a duty of care would be owed by solicitors to a buyer. A good illustration was said to be the New Zealand decision of Allied Finance & Investments Ltd v Haddow & Co [1983] NZLR 22, a decision of the New Zealand Court of Appeal. There, solicitors acting for a borrower had certified to an intending mortgagee that specified documents had been duly executed and were fully binding on their client and that there were no other charges on the boat which was the intended security. The solicitors were held to owe a duty of care to the lender in connection with the giving of that certificate. Sir Donald Nicholls said that, on any reasonable appraisal of that arrangement, the solicitors must be taken to have assumed personal responsibility to the mortgagee for the accuracy of their certificate. The case was said to be one in which, to adapt the language used by Lord Donaldson MR in Al Kandari v JL Browne & Co [1988] QB 665 at 672 in the context of a solicitor acting in adversarial litigation:

As Judge Hegarty said in the different context of breach of warranty of authority in Excel Securities v Masood at [98], the usual mechanism for imposing a duty of care in favour of someone other than a solicitor's client is through the usual mechanism of an explicit solicitor's undertaking. Mr Campbell enjoined me, by reference to the Privy Council's decision in Invercargill City Council v Hamlin [1996] AC 624, to take care about applying New Zealand authority in the context of any development of the common law tort of negligence.

However, like Sir Donald Nicholls in Grand Gelato, I have no hesitation in accepting that the New Zealand Court of Appeal's decision in the case of Allied Finance & Investments Ltd v Haddow & Co correctly represents the law in this jurisdiction also. In my judgment, this is a classic situation in which a duty of care was owed by Abensons towards LSC. As Mr Maynard-Connor submitted, Woodcocks and, through them, LSC clearly relied on the Abensons' undertakings, and the confirmation given in Mrs Arkell's accompanying email of 1 July 2013, in releasing the monies to Abensons for onward release to Abensons' perceived client. I have no doubt that such reliance was reasonable. Mr Abenson accepted - and in this context his acceptance is material - that he knew that LSC and Woodcocks would be relying on the Abensons' undertakings. In those circumstances, I am satisfied that Abensons assumed responsibility for the accuracy of the undertaking; and a duty of care was owed, as a result, to LSC.

For the reasons I have already given, I am satisfied that that duty of care was clearly breached in relation to Abensons' failure properly to verify the execution of the sole legal charge from Mrs Boddice. Although pleaded, no allegation of contributory negligence was pressed in either evidence or argument.

The difficulty with the claim in tort, however, as it seems to me, is in establishing causation. Unlike the strict obligation assumed by Abensons in its undertaking to hold a validly executed legal charge from Mrs Boddice, a duty of care required them only to take reasonable care in that regard. Had Abensons declined to accept the legal charge executed by Mrs Boddice at face value, would the transaction have proceeded to completion? Mr Maynard-Connor submits that, without the undertaking, the monies would never have been released by Woodcocks to Abensons, and would never have been available for release by Abensons to their clients.

I am by no means satisfied that that is enough to establish causation. It may well be that, if Mr Abenson had insisted upon seeing, or speaking to, the person who had masqueraded as Mrs Boddice on 18 June, Mr Boddice would not have been able to produce her; but he may have been able to do so. It is, to some extent, speculation. No argument was addressed to me upon whether causation has to be established in a case such as the present on a balance of probabilities in order to make good a claim in tort, or whether the lesser standard formulated by the Court of Appeal in the case of Allied Maples Group Limited v Simmonds & Simmonds [1995] 1 WLR 1602 applies. Does causation have to be proved on a balance of probabilities, or is it sufficient for the claimant to establish a real and substantial chance that the transaction would not have proceeded to completion? If so, I would have to evaluate that chance. No argument along those lines was addressed to me by either party. In the limited time I have had available to me to conclude this case, which was listed for three days, and which is only being finished within that time because the court has sat early and has been prepared to sit late, and because I am not due to be sitting in Manchester again for some weeks, it seems to me that I can “park” this issue. It will not affect the outcome of this case in this court. I have made sufficient findings of primary fact for any appeal court to consider the matter fully. In those circumstances, it would not be right to adjourn the matter for further argument on the question of the applicable test of causation of damage in the context of the tort claim.

I am satisfied that there was a breach of a duty of care that was owed in tort by Abensons to LSC; but at the present time, I make no decision on the applicable test for causation of loss and, depending upon such test, what the damages should be.

It is sufficient that the claimant's claim succeeds on breach of the undertaking, on breach of warranty of authority, and, for what it is worth, on the additional breach of a Quistclose resulting trust claim.