IN THE HIGH COURT OF JUSTICE HC-2014-000297
CHANCERY DIVISION
Before:
ROBERT ENGLEHART QC
(sitting as a Deputy Judge of the Chancery Division)
B E T W E EN:
(1) ROLLERTEAM LIMITED
(2) JOHN AIDINIANTZ Claimants
- and -
LINDA RILEY Defendant
(by original action)
AND B E T W E E N:
Defendant Third Party
(1) LINDA RILEY
(2) JENNIFER DECOTEAU
- and -
(1) ROLLERTEAM LIMITED
(2) JOHN AIDINIANTZ Claimants (by counterclaim)
Hugh Sims QC and Matthew Brown (instructed by Gordon Dadds) for the
Claimants
Neil Hext QC and Hamid Khanbai (instructed by Smithfield Partners) for the
Defendant and the Third Party
This is the official judgment of the Court and I direct that no further note or transcript be made
Rollerteam & Anor v Riley
JUDGMENT
INTRODUCTION
1.
The context of this case is what is now a bitter family dispute. It is all the more
unfortunate because it does appear that originally family relations were
reasonably harmonious. Indeed, members of the family co-operated together in
what has become a fairly successful enterprise. This is the Sherlock Holmes
museum at the well-known fictional detective’s residence said to have been at
221B Baker Street in London but now placed at 239 Baker Street. The
pleadings in the action disclose wide ranging issues. Nevertheless, by the
conclusion of the trial it had become apparent that, whilst there were a number
of subsidiary issues, the central question is whether or not a concluded
contractual settlement had been reached of four legal actions and, if so, on what
terms. There is both a claim and counterclaim. However, it is the counterclaim
and defence to counterclaim which have taken up the great majority of time in
the case. The claim itself raises little of substance. Indeed, it is in my view
clear that, subject to the resolution of one factual point and whatever the
outcome of the counterclaim, the Claimants are indeed entitled to some form of
declaratory relief on the claim.
THE PARTIES
2.
The First Claimant (“Rollerteam”) was originally incorporated by the Second
Claimant, Mr Aidiniantz, in 1984 to effect leaflet distribution on roller skates,
but in 1989 it was used as a vehicle for the purchase of 239 Baker Street. It was
Mr Aidiniantz’s idea to found a Sherlock Holmes museum but the site was
acquired with deposit money from his mother, Mrs Grace Aidiniantz. To an
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extent, the museum business seems to have been informally regarded as something of a family enterprise, albeit with Mr Aidiniantz being in control of operations through Rollerteam. That company, at least at one time, had two subsidiaries, Sherlock Holmes Limited and Sherlock Holmes Museum Limited which were also involved with the museum. Of particular relevance to the present litigation is a company called Sherlock Holmes International Society Limited (“SHIS”). It was founded in 2004 as a not-for-profit company in order to take advantage of the VAT exemption on ticket sales for cultural bodies. At various times Mr Aidiniantz’s mother, his half-sisters, Linda Riley and Jennifer Decoteau, and his half-brother Stephen Riley served as directors of the company.
3.
Ms Riley, the Defendant, and Ms Decoteau, the Second Counterclaimant, are,
as noted, Mr Aidiniantz’s half-sisters. Ms Riley’s principal occupation is that
of a publisher; at the material time she was concerned in a company called
Square Peg Media Limited. Ms Decoteau, on the other hand, was, with Mrs
Aidiniantz, occupied in working on SHIS business.
THE BACKGROUND
4.
The breakdown in family relations may be traced back to September 2012.
Until then, the cash takings from admission receipts to the museum had been
taken each evening for safekeeping by Mrs Aidiniantz or Ms Decoteau to the
safe at Mrs Aidiniantz’s home, 1 Parkgate Road in Battersea. Mr Aidiniantz
would then decide to where the money was to go, whether into one or other of
the bank accounts or retained as cash. In September 2012 Mr Aidiniantz
formed the view that the cash takings were not being properly accounted for.
He cut off access to funds for the other family members. This led to Ms Riley
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withdrawing £175,000 from Rollerteam’s bank account. She gave part of this money to Ms Decoteau and part to her brother Stephen Riley. The consequence was outrage on the part of Mr Aidiniantz. He commenced legal proceedings in the name of Rollerteam and obtained a freezing order against Ms Riley. Ms Decoteau and Stephen Riley were also joined to the action. Then, in October 2012 Ms Riley secured the release of the freezing order by paying the sum of £175,000 into a solicitors’ joint account.
Mr Aidiniantz’s resort to litigation then led to the institution of further legal proceedings by members of the family. First, Ms Riley commenced proceedings for possession of the house where Mr Aidiniantz lived, that is 1 Albion Mews, London W2 2BA. Ms Riley was in fact the registered owner of the house, although Mr Aidiniantz lived there; he claimed that the house was held by Ms Riley on trust for him. Second, Ms Riley and Ms Decoteau caused SHIS to institute legal proceedings against Mr Aidiniantz and Rollerteam as well as the two other Sherlock Holmes companies I have mentioned. The allegation was that Mr Aidiniantz had been misappropriating the funds of SHIS. In December 2012 a freezing order was granted in favour of SHIS and, specifically, a cash sum of £535,000 which Mr Aidiniantz was holding at his home was ordered to be paid into court. A subsequent attempt by Mr Aidiniantz to have this Order set aside before Proudman J was substantially unsuccessful. Finally, Mrs Aidiniantz launched an action against her son, Mr Aidiniantz, and Rollerteam in which she claimed that in reality the entire share capital of Rollerteam and the museum business beneficially belonged to her.
Thus, there were four sets of proceedings on foot as at April 2013: (1) the Rollerteam claim (2) the 1 Albion Mews possession proceedings (3) the SHIS
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action and (4) Mrs Aidiniantz’s claim. I refer compendiously to these four sets of proceedings as “the litigation”. Moreover, relations within the family were understandably in an appalling state. It was against this background that on 7 April 2013 Ms Riley came to have a tentative discussion about possible settlement of the litigation with Mr Aidiniantz.
APRIL – MAY 2013
On 7 April 2013 Ms Riley and Mr Aidiniantz met up unexpectedly at their mother’s home at 1 Parkgate Road. Mr Aidiniantz was particularly upset about being estranged from his mother and was attempting to see her. By chance Ms Riley was there. After a rather heated altercation, Mr Aidiniantz and Ms Riley went to a nearby café for a discussion. It was there that the notion of resolving all the disputes and restoring family harmony came to be put forward. It would seem that the discussions in the café were considered by both parties to be potentially productive. They both returned together to 1 Parkgate Road where there was in Ms Riley’s words an “emotional reunion” or, as Mr Aidiniantz put it, a desire to “heal our wounds”. Ms Riley and Mr Aidiniantz agreed to meet for lunch at a club, Home House, the following day in order to explore further the possibility of compromise. In the meantime Ms Riley and Ms Decoteau spoke on the telephone about what might be an acceptable settlement.
Over lunch on 8 April 2013 there were wide ranging and apparently harmonious discussions over how to resolve all points of contention. I need not recite all points discussed since, immediately following the lunch, Mr Aidiniantz sent an email to his solicitors, and it is common ground that this email accurately covers the ground apart from one matter relating to a Mr Tariq Siddiqi. He was a gentleman who had been providing some assistance to members of the family
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but against whom Mr Aidiniantz had taken great exception. Mr Aidiniantz had even published a website containing highly derogatory statements about Mr Siddiqi but which he now said he would take down at Ms Riley’s request.
9. I should refer in some detail to Mr Aidiniantz’s email of 8 April 2013 to his
solicitor which he copied to Ms Riley. This is because the points covered in this email formed the basis of all future communications. Whether or not a concluded binding settlement agreement was reached on 8 April 2013, as Ms Riley believes, there is no doubt that Mr Aidiniantz and Ms Riley were broadly in agreement. The email is headed “WITHOUT PREJUDICE” and commences with a request for “this proposed agreement” to be kept confidential. It goes on:
Further to my meeting with Linda Riley this afternoon, the basis of the settlement was agreed as follows: There will be a stay of all proceedings for one month to enable the legal paper work to be completed.
£1 million will be paid to Linda,
£1 million will be paid to Jennifer Decoteau
Jennifer will be paid from the proceeds of the monies paid into court - £535,000 plus £175,000 held by Edwin Coe + £290,000 cash. So the sooner the settlement and legal paperwork is signed the better.
Linda Riley to be paid £1 million by Rollerteam Ltd, spread over 12 months from the date of settlement – but payable by the summer of 2014 if not before.
The email continues:
1 Parkgate Road London SW1l 4NL
Rollerteam Ltd will be granted the beneficial ownership over 1 Parkgate Road London SW1l 4NL in order to justify the payment to Linda Riley of £1 million.
Linda will inform me of mortgage account details on this property and will be reimbursed for the mortgage payments made since September 2012, plus £4,000 per month from September 2012 for the household expenses she has incurred in relation to looking after Grace Aidiniantz and paying household bills.
Rollerteam Ltd will henceforth take over all mortgage payments on this property and will endeavour to obtain funding via the museum to redeem Linda’s mortgage at the earliest opportunity.
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30 Wimbledon Road SW17 [Ms Decoteau’s home] Linda will inform me of mortgage account details on 30 Wimbledon Road from September 2012 to the present date and she will be reimbursed for those mortgage instalments. Jennifer Decoteau’s mortgage on this property will be paid by the museum until such time as she receives the payment of £1 million due under the settlement – thereafter she will be completely responsible for her own financial commitments.
1 Albion Mews London W2 2BA
Linda will inform me of mortgage account details on 1 Albion Mews W2. A Trust document will be executed by Linda Riley in favour of John Aidiniantz, who will pay all mortgage payments due on the mortgage and arrears of mortgage interest.
John Aidiniantz will endeavour to obtain funding via the museum to redeem Linda’s mortgage at the earliest opportunity.
SHIS
The directors of SHIS will resign and I will be appointed the sole director of this company and the books will be returned to Harry Daniels for completing the necessary accounts.
Rollerteam Ltd
Grace Aidiniantz will disclaim any interest in the shares of the company.
Legal Fees
Rollerteam Ltd will pay the legal costs of SHIS and Linda Riley in the respective proceedings.
The foregoing is as I understand the gist of the agreement reached by myself and Linda.
It is in everybody’s interest to unlock the funds held in court and by EC so that they can be paid over to Linda/Jennifer asap together with the additional £290,000 cash, which will in total represent the first tranche of £1 million.
The email concluded with the expression of a desire to work out the tax implications “but in principle [Linda and Jennifer] should receive the above amounts”. It then ended with Mr Aidiniantz’s name and address and was formally stated also to be sent on behalf of Rollerteam and the Sherlock Holmes companies other than SHIS.
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There then followed frequent and extensive email communications. It will be necessary for me to refer to a number of these emails, but before doing so I should outline the course of some critical events.
On 11 April 2013 there was a formal document signing meeting at 1 Parkgate Road. Present were Mr Aidiniantz, Ms Riley and Ms Decoteau. Mrs Aidiniantz was also there together with Mr Suleman, a solicitor whom the family had previously used, in order to advise her. This was at Mr Aidiniantz’s suggestion. He was concerned at the solicitors then on the record, Smithfield Partners, running up costs which he was going to have to bear since Ms Riley had been paying their mother’s costs and he was agreeing to pay her costs. He was also most anxious that Smithfield Partners should not learn about the sums of money which he and Rollerteam would be paying to Ms Riley and Ms Decoteau. Mr Aidiniantz handed over to Ms Decoteau £300,000 (in fact he had only brought with him £289,000 but the missing £11,000 was taken from the safe). This £300,000 was intended as part payment of the £1 million which was to be paid to Ms Decoteau.
It was at this meeting on 11 April 2013 that the following documents were executed:
(1) A receipt for the £300,000 in fact made out for some unexplained reason
by Mr Aidiniantz in Ms Riley’s name. This document also contained an acknowledgment signed by Mr Aidiniantz by which it was recorded that a further £700,000 was due to be paid as soon as possible and a further £1 million by the summer of 2014 “in full and final settlement of all claims between all the parties”.
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A company resolution for SHIS by which Mrs Aidiniantz and Ms Decoteau agreed to be substituted as directors by Mr Aidiniantz and for their resignation to take effect upon Mr Aidiniantz filing notice at Companies House.
A Consent Order in Tomlin form in the action brought by Mrs Aidiniantz by which she abandoned her claim but with Mr Aidiniantz and Rollerteam paying her costs. Ms Riley, Ms Decoteau and Stephen Riley were also added to the Consent Order. The document was certainly signed by Mrs Aidiniantz, Ms Riley and Ms Decoteau at the meeting itself and, probably immediately afterwards, then by Mr Aidiniantz’s solicitors and Stephen Riley. The formal Consent Order was subsequently made by the Court on 19 April 2013.
Two documents by which Ms Riley made, on Mr Aidiniantz’s case, declarations of trust in favour of Rollerteam in the case of 1 Parkgate Road and in favour of Mr Aidiniantz in the case of 1 Albion Mews. These were apparently executed by both Mr Aidiniantz and Ms Riley and witnessed by Mr Suleman. It is right to record that Ms Riley acknowledges that these documents as presented in court bear her genuine signature. However, she says that what she signed was not these documents but some agreement to create a trust; her signature page has, whether by accident or design, become attached to the wrong documents.
13. Following the 11 April meeting there continued to be extensive email communications. It is also evident that Mr Aidiniantz was very keen that Ms Riley should dismiss Smithfield Partners as her solicitors; in his view there was no need for them now that settlement had been reached, they were running up bills at his expense and it was most undesirable that they should learn about the financial details of what had been agreed. Eventually, on 21 May 2013 Ms
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Riley, who was now as Mr Aidiniantz wished acting in person, signed a consent order in the Rollerteam action. It was also signed by Ms Decoteau and Stephen Riley. This Order was also in Tomlin form and provided for the end of all claims and the release of the £175,000 odd held in a solicitors’ joint account. It also provided for there to be no order as to costs. Hence, the £175,000 was released. Whilst it had originally been envisaged that this money would go to Ms Decoteau towards the balance of the £1 million due to be paid to her, in fact it appears to have been largely utilised by Mr Aidiniantz towards payment of Ms Riley’s costs bill for the funding of the SHIS action.
14. Finally, on 22 May 2013 a third Consent Order in Tomlin form was executed by Mrs Aidiniantz and Ms Decoteau. They signed personally on behalf of SHIS. The effect of the Order was to bring the SHIS proceedings to an end and payment out to Rollerteam of the £535,000 held in court. Again, it had originally been envisaged that this money would go to Ms Decoteau. This, however, did not happen. It is noteworthy that the Order also provided that SHIS was to pay the Defendants’ costs. This is in contrast to what had been provided in Mr Aidiniantz’s original email of 8 April 2013. However, given that henceforth SHIS was intended to be under the complete control of Mr Aidiniantz, it may not have been thought material. There was no Consent Order terminating the 1 Albion Mews possession action; indeed, it was not specifically addressed by the parties. I presume this was because it was generally assumed that with Mr Aidiniantz obtaining beneficial ownership of the house the possession proceedings against him necessarily lapsed.
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THE AFTERMATH
15.
In all the lengthy email correspondence passing between Mr Aidiniantz and Ms
Riley after 8 April 2013 there was no suggestion from either party that
settlement of the litigation had not been achieved until an email of 18 August
2013. By this email Mr Aidiniantz for the first time asserted that there had only
been a proposed overall settlement which had not materialised. Following this
email, relations between him and Ms Riley rapidly deteriorated. Mr Aidiniantz
attempted to move into 1 Parkgate Road where his mother (with a carer) and her
half-sister with Stephen Riley were living. There followed a flurry of legal
proceedings including (1) the present claim seeking to uphold the declarations
of trust of 11 April 2013 (2) non-molestation proceedings against Mr Aidiniantz
brought by Mrs Aidiniantz’s half-sister (3) winding up proceedings instituted by
Mr Aidiniantz against both SHIS and Ms Riley’s company, Square Peg Media
Limited. Family relations were once again at a very low ebb. However, for the
purposes of this judgment I do not need to elaborate on these legal proceedings.
The main question before me is whether or not there had previously been a
concluded settlement of the litigation.
THE ISSUES
16. The central issue before me had by the end of the trial become:
(1)
Was there a concluded binding compromise of the litigation reached on
(a) 8 April 2013 or (b) 11 April 2013 or (c) by 22 May 2013 and, if so,
on what terms?
Ancillary issues argued before me were:
(2)
Was any compromise unenforceable by reason of section 2 of the Law
of Property (Miscellaneous Provisions) Act?
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To what relief, if any, are Mr Aidiniantz and Rollerteam entitled on the Claim?
To what relief, if any, are Ms Riley and Ms Decoteau entitled on the Counterclaim?
THE ORAL EVIDENCE
17.
The only witnesses called to give evidence before me were Mr Aidiniantz, Ms
Riley and Ms Decoteau. They were each cross-examined extensively over a
wide range of matters.
Their evidence was helpful in providing some
clarification and information from time to time. However, I do not propose to
examine what each had to say in any detail. This is because in my view
resolution of the factual issues in this case largely depends on what would have
been reasonably understood from what the parties communicated to each other
and what they did. It does not depend on what individuals may individually
have thought at the time. I therefore turn to consider the email traffic and other
communications passing between the parties at the material time.
THE EMAIL AND OTHER COMMUNICATIONS
18.
I have already set out the content of Mr Aidiniantz’s email of 8 April 2013
which he sent to his solicitor and copied to Ms Riley. The consistent theme of
all the many subsequent emails between Mr Aidiniantz and Ms Riley is that the
parties considered themselves to have made a deal. It is right to say that the
inter-solicitor communications are rather more cautious. Both solicitors were
understandably anxious to protect their respective clients and not commit them
to something which they might come to regret. Nevertheless, it is important to
bear in mind that this was a settlement negotiated directly between individuals
rather than through the medium of solicitors. At Mr Aidiniantz’s request, the
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solicitors were not being informed as to what he and Ms Riley were saying to each other. As for Ms Riley’s solicitors, Smithfield Partners, Mr Aidiniantz was clearly most upset by them. He considered that they were a hindrance to the settlement. He wanted Ms Riley not only to withhold information from them but even to dispense with their services. Ultimately, Ms Riley did indeed do as what Mr Aidiniantz wanted. She dispensed with their services. It is evident from the contemporary emails that she was trusting Mr Aidiniantz to implement what she clearly thought was a concluded settlement of the litigation.
19. If this judgment is to be kept within reasonable bounds, I cannot do more than mention some of what the voluminous communications show. On 9 April 2013 Mr Aidiniantz wrote to Ms Riley:
Please confirm when you have instructed Smithfield to stay all the proceedings so the solicitors can work together
I want to get the cash out of the court and into the solicitor’s hands/Jenny/Mum as soon as possible – that will be the first million out of the way which could be arranged by the end of the week or early next week.
Ms Riley responded:
Yes how long the stay, I am trusting you here as we will lose the court date but I am assuming we are settled I think we all want to call it off.
Mr Aidiniantz’s answer was:
Yes, what we agreed in our email stands
The stay can be for one month – but really once mum signs her document in front of her solicitors then the first million can be paid over. That ought not to take more than a few days or at the most by early next week.
Ms Riley agreed:
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Yes I agree, well mum is ready to sign and I am ready to sign trust documents for Parkgate and albion Mews so can we get this moving asap?
Smithfield Partners were quite understandably counselling caution for Ms Riley until complete finalisation of a comprehensive settlement agreement. Mr Aidiniantz’s reaction to Ms Riley was:
Linda
You need to stop Smithfield working by instructing Smithfield now to agree a stay of all proceedings as it is holding things up and they ae [sic] still continuing to build up fees.
On 9 April 2013 Mr Aidiniantz informed the Social Services Department at Wandsworth Council:
Mr Bharat – Linda Best – thank you for your assistance in this matter but the family has now resolved all its difficulties and I have now resumed contact with my mother.
Evidently, Mr Aidiniantz believed a deal had been agreed. Nevertheless, he was blaming Smithfield Partners for causing difficulties when he wrote on 9 April 2013 to Ms Decoteau:
Can you give instructions to Smithfield on behalf of mum and stephen and SHIS to stay all proceedings and to stop all work except to agree with Davenport Lyons [his solicitors] that all proceedings be stayed for one month.
Smithfield are insisting upon a full settlement proposal despite the fact that they already have a copy of my email to you both setting out the ouline [sic] of the settlement.
He further confirmed to Ms Decoteau:
Linda [Riley] and I are working to resolve everything so you can relax. We have all been very stupid these last months and nobody more so than myself.
Smithfield Partners were still pressing Davenport Lyons for the draft of a comprehensive settlement agreement. This infuriated Mr Aidiniantz. He wrote to Ms Riley on 10 April:
Hi Linda
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I have spoken to my solicitor Nicholas Yapp. I have asked him to prepare a simple instruction which you can email to Smithfield which will oblige them to agree to a stay of all proceedings. I have also asked Nicholas to email you a draft of a second email which SHIS can use to withdraw instructions from them and which mum can also use to withdraw her instructions to them in the GA/JA proceedings.
If they continue working or seek to try to involve themselves in the settlement proposal then you can email them the 2nd option draft or send them signed copies by courier to remove them from the picture by withdrawing instructions, because if they are kept in play we are not going to be able to complete everything today and things will drag on – which is obviously what they want to happen.
I am ready to pay the £300,000 over to Jenny today and like you I want to wrap up everything today. There needs to be some formal document which I have to sign to ensure that the payment of £2 million is reflected officially as that will bind Rollerteam to making those payments to you and Jenny even if I get run over by a bus.
The tax side of things we can look at later.
In a nutshell, we need Smithfield to either play ball or they should be knocked out of the picture by SHIS and mum (acting in her own proceedings) withdrawing instructions from Smithfield. You can always revert to them if you need to have a solicitor witnessing any required signatures, or mum can simply use Bromptons etc to witness her signature, but we need to step back from Smithfield if we are to complete things this afternoon.
The answer was:
All is agreed I am out at a client lunch but try to have this Letter ready and I will send on my return I don’t know how many times I have told them I agree to everything!
Later on that day Mr Aidiniantz suggested that his mother have Mr Suleman of Bromptons present at a signing event rather than Smithfield Partners. In the same email he was proposing at this event to pay Ms Decoteau £300,000 towards her £1 million, signature of trust documents for the houses at 1 Parkgate Road and 1 Albion Mews and a written commitment from him to pay the £1 million to Ms Riley by the following summer. His email of later that
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evening confirmed the arrangements for completion in the morning and ended: “After tomorrow I hope we can stop shelling out money to solicitors before they bleed us dry”.
It was following the above communications that the signing of documents took place on 11 April 2013 at 1 Parkgate Road and Mr Aidiniantz handed over £300,000 as I have described.
Following the events of 11 April 2013 Ms Riley was clearly of the view that the litigation had been settled. That afternoon she wrote to Rollerteam’s mortgagee:
Just to confirm that John and I have now settled the family dispute and the matter will not be going to court, Grace has dropped all her claims on the Rollerteam shares and an amicable agreement has been reached.
This email was forwarded to Mr Aidiniantz and he thanked Ms Riley for it. But, as he pointed out on 12 April 2013, he still wanted to obtain the £175,000 held in the solicitors’ joint account and the £535,000 in court. As far as he was concerned, all that was required from Smithfield Partners was their consent. Otherwise, he did not want them involved or to know anything about the settlement. On the same day Mr Aidiniantz emailed Ms Riley to say that he would be making some mortgage payments for Parkgate Road and Albion Mews as well as reimbursing her for their mother’s living expenses. These payments were in fact made by him and were in accordance with the terms set out in the original email of 8 April. Later that evening Mr Aidiniantz emailed Ms Riley:
Hi Linda
I can see clearly that Smithfield has their eye on the £175,000 and the £535,000 – I wouldn’t like to agree to
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anything which gives them control over the money or the right to hold up payments of this money out of court.
My first commitment is to make sure you have your first million and I don’t want any solicitors to take a cut from this money because as far as I am concerned it belongs to Jenny (or you as you decide).
I think you should seriously consider sacking Smithfield on Monday morning because they are actually no longer needed to wind things down and are just hanging on. ….
I have earmarked £700,000 from that money for Jenny and I don’t want to be blamed if it doesn’t reach her in full, because Smithfield wants to dip into it or is being obstructive.
On 14 April 2013 Mr Aidiniantz further noted in an email to Ms Riley that he did not want Smithfield or Mr Siddiqi to know that a settlement had been reached.
22. On 14 April 2013 Ms Riley again complained by email to Mr Aidiniantz that, although they had agreed everything, “this is all being just strung out”. She remarked:
Why don’t you just focus now on building up your business instead of holding grudges against solicitors etc, costs can be reduced legally on both side which will save you a fortune instead of suing.
Nevertheless, Mr Aidiniantz continued his grave suspicion of Smithfield and Mr Siddiqi:
Jenny has to come first rather than Smithfield or Tariq and any money in court has to go over to her via SHIS or however it should be paid.
I then have to pay you your £1 million but that is all I need to do in order to discharge our agreement. Smithfield and Tariq are not part of any deal apart from me paying your legal fees which you are obliged to pay Smithfield. I will be suing Edwin Coe to pick up most of these fees (which will cost me more money and more headaches) but Tariq will definitely have to stump up cash – and lots of it – if he doesn’t want to see the website back up and running.
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Mr Aidiniantz’s mistrust of Mr Siddiqi was continued in his email of 16 April 2013:
I consider Tariq a danger to me personally and a danger to the deal we have agreed in so far as I now have to be much more careful in how I now pay you and Jenny’s money. …. You cannot expect me to pay for your legal fees as well as not expect me to sue Tariq/Smithfield, because that is precisely how I was intending to get my legal fees back. …
However, we also agreed that Tariq wouldn’t know anything about what we have discussed and agreed and yet I see you are using the guy in further work!
The email concludes with a reference to Mr Aidiniantz wishing to take out a bank loan and thereby pay off the money owed to Ms Decoteau and Ms Riley:
I have spoken to the bank who are coming to see me on 24th April and they have said that the 6-7 million I want to borrow ought to be no problem. My aim is to try to pay you and Jenny off quickly over this summer rather than wait for next summer to pay you and I would also like to remove you from the two houses by redeeming the mortgages asap.
Ms Riley was unhappy at Mr Aidiniantz’s approach:
Can’t you just relax a little please, the reason we settled is because we want to stop all the family rowing, yet you just can’t seem to let go of the constant arguing it is really draining me.
But Mr Aidiniantz maintained his anger at Smithfield and Mr Siddiqi:
Hi, Linda – our deal of course stands and this will be formalised in a proper document, but Tariq’s website and my not suing Tariq or Smithfield was never even discussed except to say that while we stayed all the proceedings the site would be taken down, which is what I have done – again in good faith, so as not to upset anybody.
23. There followed lengthy correspondence from Mr Aidiniantz in which he maintained his complaints about Smithfield Partners and also about Mr Siddiqi. He also floated various ideas for ways of paying off Ms Decoteau and Ms Riley which might in his estimation give rise to tax savings. He raised numerous other concerns and queries although, as I have noted, at this time he was
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certainly not suggesting that there had been no settlement of the litigation. It is also right that I should record that, whilst the individuals were corresponding directly, the solicitors were continuing to proceed in a fairly measured way and without acknowledgment of what both Mr Aidiniantz and Ms Riley obviously both thought at the time, i.e. that a binding settlement had been agreed.
24. There still remained for disposal by Court Order of two pending sets of legal proceedings (apart from the possession action), that is the SHIS claim and the Rollerteam claim. Davenport Lyons put forward for consideration two draft Orders for these actions which appeared to diverge from what had been agreed between Mr Aidiniantz and Ms Riley. Nevertheless, on 2 May 2013 Mr Aidiniantz assured Ms Riley that she could readily agree to these drafts:
As you know we decided to settle things between us as we saw fit and to bypass the solicitors. Unfortunately however, you made the mistake of copying in our emails to Smithfield about “£2 million”, which has made them suspicious.
Smithfield says that the settlement leaves you with the costs to pay on both matters, but I don’t see how that can be true.
In regard to Rollerteam/Riley you are giving up your defence and counter claim, but there is no order as to costs, so neither side can sue each other as the arrangement to end the proceedings is in full and final settlement. They don’t need to know that Rollerteam will actually be paying SHIS the whole £175,000 on account (which you will use to recover your legal fees) towards admission fees.
So Rollerteam cannot sue you or anyone as part of the consent order.
In regard to the SHIS claim, it is SHIS which will be liable to pay our costs. We cannot sue you or jenny because neither of you have given an undertaking as to costs and we are not likely to sue SHIS if it has 22p in its bank account. Our claim for legal fees would be owed by SHIS and will appear as a bad debt in our accounts.
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The consent order is quite sufficient as it is and I am not going to add anything to it. Since I will be having to work for you and jenny for another year by sweating and cleaning out the toilets at the museum, I think you have done rather well out of the whole affair and I am not going to give you anything more.
25.
On 10 May Mr Aidiniantz repeated a constant message: “Leave Smithfield –
you don’t need them.” Ms Riley finally did as asked in order to bring finality to
what had been a long running saga. She notified the court that she would be
acting in person. As I mentioned earlier in this judgment, consent orders were
finally executed (a) on 21 May 2013 disposing of the Rollerteam claim and (b)
on 22 May 2013 disposing of the SHIS claim. The former was signed by
Davenport Lyons on behalf of Rollerteam and by Ms Riley, Ms Decoteau and
Stephen Riley personally. The latter was signed by Mrs Aidiniantz and Ms
Decoteau as directors of SHIS and by Davenport Lyons for the Defendants in
the action.
CONTENTIONS FOR MR AIDINIANTZ AND ROLLERTEAM
26.
For Rollerteam and Mr Aidiniantz, Mr Sims QC submitted on the claim that Ms
Riley clearly had signed the two declarations of trust on 11 April 2013. Her
assertion that what she had signed were some unidentified agreements to create
trusts could not be reconciled with the evidence. The declarations of trust
produced in evidence were consistent with the trust references in all the other
documents. Whilst it may be the case that Ms Riley had not kept copies of what
she had signed, there was no reason to believe that the trust declarations as
disclosed were anything other than genuine documents. The documentary
evidence pointed unequivocally to Ms Riley having signed these documents
whether or not she had read them through carefully before signing. A demand
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Rollerteam & Anor v Riley
for conveyance of the legal estate having been made, I should order transfer of the legal title pursuant to clause 10 of the declarations of trust as well as making an order under section 12(1) of the Trusts of Land and Appointment of Trustees Act 1996.
Turning to the Counterclaim, it was Mr Sims’ case that no concluded binding settlement of the litigation as a whole had been reached. What had been achieved was merely consensual termination by Consent Order of each of the three separate actions. Whilst he acknowledged that the parties had been trying to achieve a settlement, his submission was that that they had been unsuccessful in this aim. The case for a concluded settlement on 8 April 2013 was not maintainable in light of the language used in the contemporary emails, and the case for a concluded settlement of the litigation on 11 April 2013 suffered from the following defects. There had been no intention to create legal relations beyond the formal signed documents; what had been agreed was merely viewed by the parties as an unenforceable moral commitment. Mr Sims emphasised the family context of the dispute and drew my attention to the observations of Danckwerts LJ in Jones v Padavatton [1969] 2 All ER 616 at 620. It was this context which explained how Mr Aidiniantz had come to pay £300,000 and made other payments as a gesture of goodwill.
Mr Sims supported his submissions with written appendices providing detailed analysis of many of the emails. He submitted that the documents showed how the parties had deliberately kept their proposals flexible as had always been the position within the family. There was here much discussion about different ways of achieving the maximum tax advantages for payments to be made to Ms Riley and Ms Decoteau. With this in mind any commitment had been
21
Rollerteam & Anor v Riley
deliberately left flexible and uncertain. The most likely conclusion on the evidence was that Ms Riley, with Ms Decoteau, took a calculated risk over settlement. There was to be no concluded binding overall agreement until a comprehensive formal contract was drawn up. This, of course, never happened. Finally, if the case for a settlement agreement concluded on 11 April 2013 failed, it would be entirely artificial to say that some later agreement came into existence. The documents provide no support for the later conclusion of a contract. In May 2013 there were simply consent orders made in resolution of the respective actions.
29.
If there were a compendious binding agreement, it would in any event be
unenforceable by reason of section 2 of the Law of Property (Miscellaneous
Provisions) Act 1989 since the terms of the agreement would have involved the
transfer of interests in land to Rollerteam and Mr Aidiniantz. Mr Sims referred
me to the observations of Peter Gibson LJ in
Firstpoint Homes Ltd v Johnson
[1995] 1 WLR 1567 at 1571E-H. Whilst a genuine collateral contract might
avoid the operation of section 2, the courts would be astute to avoid artificiality
just in order to avoid the operation of section 2. He referred me to
Business
Environment Bow Lane Ltd v Deanwater Estates Ltd
[2007] EWCA Civ 622 at
[42-3] and
Sukhlall v Bansoodeb
[2013] EWHC 952 (Ch) at [23].
CONTENTIONS FOR MS RILEY AND MS DECOTEAU
30.
For Ms Riley and Ms Decoteau, Mr Hext QC submitted that the issue on the
claim over what kind of documents relating to the houses Ms Riley signed on
11 April 2013 was in truth insignificant. Nevertheless, I should prefer the
evidence of Ms Riley who was a much more satisfactory witness than Mr
Aidiniantz. In any event, I should not make any order for the transfer of the
22
Rollerteam & Anor v Riley
legal estate or any order under section 12(1) of the Trusts of Land and Appointment of Trustees Act 1996 (“TLTA”). There was no such pleaded claim and it would be unjust and inconsistent with the wording of the declarations of trust to direct Ms Riley to transfer a legal estate when she was still liable for mortgage repayments.
The Counterclaim was, of course, the major contest between the parties. The position of Mr Aidiniantz and Rollerteam was highly unmeritorious. On their version of events they had achieved everything they wanted including the end of the SHIS claim, abandonment of Mrs Aidiniantz’s claim and the release of the money in court and in solicitors’ joint account. Yet, their contention was that they were obliged to provide nothing in return.
It was submitted that the contemporary email evidence was overwhelming in support of the case that on 11 April 2013, if not on 8 April 2013, the litigation was regarded by all parties as having been settled. At any rate, there was certainly a settlement by the time the last two Consent Orders came to be signed in May 2013. Mr Hext reminded me of a well-known passage in RTS Ltd v Molkerei Alois Műller GmbH & Co KG [2010] 1 WLR 753 at [45] per Lord Clarke. He also referred me to G Percy Trentham ltd v Archital Luxfer Ltd & Ors [1993] I Lloyds Rep 25 where Steyn LJ pointed out that performance of a putative contract may render it unrealistic to say that there was no contract. Whilst a family context might be material in some cases, here it had to be remembered that the context was essentially the settlement of commercial disputes and litigation.
23
Rollerteam & Anor v Riley
As for other points raised by Mr Sims, the reality was that Ms Riley was always ready to consider methods of payment proposed by Mr Aidiniantz which he considered might ameliorate the tax position. But, as Mr Aidiniantz’s original email of 8 April 2013 showed, the overriding principle was that the money was to be paid. The existence of an agreement did not depend on mechanics of payment being resolved. Similarly, the fact that the parties or one of them might have envisaged some formal comprehensive document being drawn up to record the settlement did not necessarily mean that there was no contract until this were done.
As for section 2 of the Law of Property (Miscellaneous Provisions) Act 1989, Mr Hext acknowledged that it might give rise to difficulty if there were a finding of a concluded contract on 8 April 2013. However, there was no such problem if the settlement agreement were concluded on 11 April 2013. Section 2 does not invalidate dispositions which actually take place such as the declarations of trust here: cf. Keay v Morris Homes (West Midlands) Ltd [2012] 1 WLR 2855 at [8]. The proper analysis was that on 11 April 2013 Mr Aidiniantz was promising to fulfil the provisions of his 8 April 2013 email if the declarations of trust were signed along with the other documents. This was a true collateral contract which was not vitiated by section 2: cf. Keay and North Eastern Properties Ltd v Coleman [2010] 1 WLR 2715.
Whilst Mr Aidiniantz had made some payments, there was still much outstanding. I was invited to give judgment for the balance due to Ms Decoteau of £700,000 and the £1 million due to Ms Riley. There are further sums owing by reference to the legal costs funded by Ms Riley, mortgage payments and household and care expenses for Mrs Aidiniantz. However, it was agreed that I
24
Rollerteam & Anor v Riley
am not in a position to assess the amounts outstanding. It was accordingly common ground that, if I were to find a concluded enforceable agreement, I should direct an inquiry before the Master in relation to these other sums.
DISCUSSION
I address firstly the claim. I have no doubt that the trust documents which Ms Riley executed on 11 April 2013 were indeed the declarations of trust in evidence before me. The signature is undoubtedly hers, and no other trust documents have been produced. The fact that what Ms Riley signed had something to do with creating a trust in favour of Mr Aidiniantz in respect of 1 Albion Mews and 1 Parkgate Road was common ground. I very much doubt whether Ms Riley analysed in any detail the precise wording of the trust documents which she was signing on 11 April 2013. It is probable that the deep mistrust which Ms Riley now has for her half-brother has coloured her recollection of what she signed. I accept Mr Aidiniantz’s evidence and reject her evidence on this point.
Turning to the Counterclaim, I have concluded that on balance there was no concluded agreement on 8 April 2013. I do not accept Ms Riley’s contention on this point. There had certainly been the amicable lunch on 8 April 2013 at which the outline of an acceptable settlement was negotiated. The principle had been agreed but it was, as the email of 8 April described it, a proposed agreement. As Ms Riley put it in an email to her solicitors: “it looks like we have reached a compromise”. Nevertheless, the documents suggest that all parties were envisaging that further steps would be taken before they would be bound. There was a common desire to progress matters as quickly as possible. Final conclusion of a settlement agreement in accordance with the terms of Mr
25
Rollerteam & Anor v Riley
Aidiniantz’s email of 8 April 2013 was to take place with the signature of formal documents and the payment of £300,000 by Mr Aidiniantz – something which in the event, of course, happened on 11 April 2013. In coming to this conclusion I have placed no reliance on the inter-solicitor communications. I accept that they are inconsistent with a finding of a concluded agreement. But, these were settlement negotiations being conducted directly between Mr Aidiniantz and Ms Riley. I do not regard the understandably cautious approach between the solicitors as affecting my conclusions, particularly when Mr Aidiniantz was urging Ms Riley to ignore Smithfield Partners who were in his view impeding settlement.
38. Whilst I am not prepared to find that there was a concluded settlement of the litigation on 8 April 2013, I am satisfied that a concluded contract came into existence on 11 April 2013. The terms of the contract were those which had been set out in Mr Aidiniantz’s email of 8 April 2013 to his solicitor and copied to Ms Riley as amplified by the provisions of the formal documents signed on 11 April 2013. It is in my view quite clear from the subsequent email correspondence that from this point both Mr Aidiniantz and Ms Riley considered that a settlement had been reached on these terms. It was not until August 2013 that Mr Aidiniantz first suggested otherwise. Unsurprisingly, given the volume of the email communications, it is possible to latch onto the occasional word or phrase in an email in order to found an argument that there was no agreement. Nevertheless, I am entirely satisfied that the general tenor of the emails is only consistent with both Mr Aidiniantz and Ms Riley considering that they had from 11 April 2013 settled the litigation.
26
Rollerteam & Anor v Riley
39. In coming to the above conclusion, I have endeavoured to follow the approach set out in the RTS case at [2010] 1 WLR 753 at [45]:
The general principles are not in doubt. Whether there is a binding contract between the parties and, if so, upon what terms depends on what they have agreed. It depends not on their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement.
40. In my judgment, the following factors point strongly towards a conclusion that on 11 April 2013 the parties had reached a concluded and binding agreement:
The tenor and content of the email communications passing between Mr Aidiniantz and Ms Riley;
the payment by Mr Aidiniantz of £300,000 and the terms of the signed receipt and acknowledgment;
the execution of a formal Consent Order for the withdrawal of Mrs Aidiniantz’s claim; and
the execution by Ms Riley of the formal declarations of trust.
In my view, the above is really only explicable if the parties considered themselves to have settled. The fact that a putative contract has been, even partly, implemented is a powerful indicator of a concluded contract. As Steyn LJ pointed out in the G Percy Trentham case cited above at page 27:
The fact that the transaction was performed on both sides will often make it unrealistic to argue that there was no intention to enter into legal relations. It will often make it difficult to submit that the contract is void for vagueness or uncertainty. Specifically, the fact that a transaction is executed … may make it possible to treat a matter not finalised in negotiation as inessential. In this case fully
27
Rollerteam & Anor v Riley
executed transactions are under consideration. Clearly, similar considerations may sometimes be relevant in partly executed transactions.
I also agree with Mr Hext that the notion that the parties simply agreed that Mr Aidiniantz should have all that he wanted from a settlement of the litigation but that the other members of the family should receive nothing in return is most unlikely.
I have taken into account Mr Sims’ submission that the family context points towards the parties not intending to create legal relations. Certainly, I accept that such a context will often be highly material. Nevertheless, in my view it is here of little weight. This is not a case of trusting family relations and informal arrangements. On the contrary, the background here is one of bitter commercial disputes and arms length litigation. Nor do I think that the fact that from time to time Mr Aidiniantz proposed possible tax advantageous ways of making payments can affect my assessment that there was a contractual obligation to make the payments. A basic obligation to pay is not dependent upon agreement as to the mode of payment. As Mr Aidiniantz said in his original email of 8 April 2013, a desire to work out the tax implications was not to affect the principle that Ms Decoteau and Ms Riley should be paid.
Finally, on this aspect of the case I should mention that I have also specifically considered two further reasons advanced by Mr Aidiniantz in evidence why there was no concluded contract. I cannot accept that it was a condition of the settlement that Mr Aidiniantz would receive bank funding for the payments he was to make. Mr Aidiniantz may well have wanted to raise money by way of a bank loan but there is no hint in the email traffic of any condition about this in the settlement. Second, the proposition advanced by Mr Aidiniantz that a party
28
Rollerteam & Anor v Riley
cannot be contractually bound without his or her signature on a comprehensive formal document does not accord with the English law of contract. Certainly, parties may intend that they are not to be bound prior to the signing of formal documentation. This is the ordinary “subject to contract” case. But, if this is their intention, it needs to be spelt out.
43.
I now turn to Mr Sims’ point on section 2 of the Law of Property
(Miscellaneous Provisions) Act 1989. This provides in material part:
2.— Contracts for sale etc. of land to be made by signed writing.
A contract for the sale or other disposition of an interest in land can only be made in writing and only by incorporating all the terms which the parties have expressly agreed in one document or, where contracts are exchanged, in each.
The terms may be incorporated in a document either by being set out in it or by reference to some other document.
The document incorporating the terms or, where contracts are exchanged, one of the documents
incorporating them (but not necessarily the same one) must be signed by or on behalf of each party to the contract.
As Mr Hext points out, the section affects contracts. It cannot invalidate an actual disposition of an interest in land.
44.
The initial understanding had been the wholly general intention (i) to grant
“beneficial ownership over 1 Parkgate Road” to Rollerteam and (ii) for Ms
Riley to execute “a Trust document” in respect of 1 Albion Mews in favour of
Mr Aidiniantz. It was not until Mr Aidiniantz produced the actual declarations
of trust for signature by Ms Riley on 11 April 2013 that content was given to
the general understanding. I have already found that there was no concluded
contract prior to 11 April 2013. In my view, the proper contractual analysis of
what occurred on 11 April 2015 was that a contract was formed on the terms set
29
Rollerteam & Anor v Riley
out in the 8 April 2013 email for which part of the consideration was the actual execution of the declarations of trust. I agree with Mr Sims that it would not be right for me artificially to devise some collateral contract simply for the purpose of evading the 1989 Act. Nevertheless, on the present facts it seems to me that execution of the declarations of trust rather than a mere promise by Ms Riley was indeed what Mr Aidiniantz was bargaining for. Mr Aidiniantz wrote on 9 April 2013: “once mum signs her document in front of her solicitors then the first million can be paid over”. To this Ms Riley responded on the same day: “yes I agree, well mum is ready to sign and I am ready to sign trust documents for Parkgate and albion Mews so can we get this moving asap?”
45.
A contract where the consideration, or part of it, is the actual disposition of an
interest in land rather than an agreement to dispose of the interest is not within
section 2: see
Keay
cited above, especially at [8] and [27-8]. Accordingly, I do
not accept that section 2 precludes enforcement of the settlement agreement in
this case.
CONCLUSION
46.
In the result, I find that Rollerteam and Mr Aidiniantz are entitled to
declarations on the claim that the declarations of trust dated 11 April 2013 are
valid and binding. However, I consider that this is all the entitlement that has
been established. No case for further relief as claimed in the Prayer to the
Amended Particulars of Claim has been made out. In argument Mr Sims
suggested an entitlement of occupation of 1 Parkgate Road vested in Rollerteam
pursuant to section 12 of TLATA. The section provides in part:
30
Rollerteam & Anor v Riley
12.— The right to occupy.
(1) A beneficiary who is beneficially entitled to an interest
in possession in land subject to a trust of land is entitled by
reason of his interest to occupy the land at any time if at that
time—
the purposes of the trust include making the land available for his occupation (or for the occupation of beneficiaries of a class of which he is a member or of beneficiaries in general), or
the land is held by the trustees so as to be so available.
(2) Subsection (1) does not confer on a beneficiary a right to
occupy land if it is either unavailable or unsuitable for
occupation by him.
Any right of occupation may be subject to the restrictions mentioned in section 13. No order under TLATA is sought in the Prayer to the Amended Particulars of Claim, although the body of the pleading does refer to it. It seems to me to be highly doubtful that the purposes of the declaration of trust in respect of 1 Parkgate Road included making it available for occupation by Rollerteam specifically. Nor do I even know whether it would be available for such occupation on account, for example, of possible planning restrictions. Nor has there been any consideration of restrictions under section 13. I do not think it right to make any order under TLATA. Mr Sims also raised the possibility of an order to enforce clause 10 of the declarations of trust by an order directing transfer of the legal estate by Ms Riley. I do not think it right to make any such order without my having heard any evidence about the mortgages which Ms Riley took out on the properties and which, I am told, are still in place. I note that clause 10 would require Rollerteam and Mr Aidiniantz respectively to discharge, or arrange for the transfer of, any mortgages in the event of a transfer of the legal estate. It seems to me that enforcement of clause 10 would be inappropriate on the information now before me.
31
Rollerteam & Anor v Riley
47.
As far as the Counterclaim is concerned, I see no reason why Ms Decoteau
should not be paid the balance of £700,000 which Mr Aidiniantz undertook
would be paid to her. Similarly, Mr Aidiniantz undertook that £1 million would
be paid by Rollerteam to Ms Riley. I had no information about other sums
payable under the settlement and the parties were agreed that I should direct an
inquiry before the Master to establish what, if anything, is due from Mr
Aidiniantz on his promises that:
Rollerteam would pay the legal costs borne by Ms Riley in the litigation;
Ms Riley would be reimbursed all mortgage payments for 1 Parkgate Road since September 2012;
Mr Aidiniantz would pay all mortgage payments due for 1 Albion Mews from 11 April 2013 together with any arrears due as at that date;
Ms Decoteau would be reimbursed all mortgage payments on 30 Wimbledon Road London SW17 until she receives the balance of the £1 million; and
Ms Riley would be paid £4,000 per month from September 2012 to April 2013 in reimbursement of household expenses and household bills for 1 Parkgate Road.
48.
It may be that some declaratory relief could also be appropriate in respect of
future mortgage payments on 1 Parkgate Road and 1 Albion Mews. I will hear
Counsel on this. However, I am conscious of the fact that compliance with
what was envisaged by the settlement in this respect is not a matter within the
sole power of Mr Aidiniantz himself. Possibly, if in future Mr Aidiniantz does
not in fact meet his commitments when they fall due, a pecuniary remedy may
then become appropriate. Finally, I should say that I do not think it appropriate
to make any order in respect of Mr Aidiniantz’s website about Mr Siddiqi.
32
Rollerteam & Anor v Riley
Whilst Mr Aidiniantz did say in April 2013, in the spirit of co-operation which then prevailed, that he would take the offending website down, no mention of this appears in his April 8 2013 email. I am not satisfied that there was ever what was regarded as a binding contractual term about the website. What Mr Aidiniantz said that he would do was regarded as a gesture of goodwill.
49. Hopefully Counsel will be able to agree a Minute of Order in the light of my judgment. But, if this is not possible, I will naturally hear the parties as well as consider any ancillary matters which may arise consequential upon this judgment.
33