Brook Properties (Birmingham) Ltd v Alton & Co (A Firm)

The defendants, Alton & Co, a firm of solicitors, acted for the claimant, Brook Properties (Birmingham) Limited (“Brook”), in connection with a loan that it made in December 2007. Brook alleges negligence on the part of Alton & Co. Alton & Co deny negligence as well as advancing other defences.

In mid-2007, a Mr Mohammed Hussain was asked by a nephew, Mr Nisar Afzal, whether he knew of anyone who would be able to lend him (Mr Afzal) some £700,000 in order to prevent his property at 9 Farquhar Road, Edgbaston from being repossessed. Knowing that one of his great-nieces, Mrs Saima Parveen, had recently inherited some valuable land in Pakistan from her grandfather, Mr Hussain contacted her and subsequently met her and her husband, Mr Muhammad Irfan. Mrs Parveen and Mr Irfan said that they would be willing to make a £700,000 loan to Mr Afzal (a brother of Mrs Parveen’s mother) on the basis of an arrangement fee of £100,000, 10% interest and security over 9 Farquhar Road. After speaking to Mr Afzal, Mr Hussain confirmed to Mrs Parveen that the proposed terms were acceptable.

At this stage, Mrs Parveen sought to sell her land in Pakistan and a buyer was quickly found. On 5 December 2007, the sale was completed at a price of 120 million rupees (about £945,000). Mrs Parveen had flown to Pakistan a few days earlier, on 1 or 2 December. While in Pakistan, Mrs Parveen met Mr Afzal at least once or twice and was told by him that 9 Farquhar Road was due to be repossessed on 12 December.

By early December 2007, Mrs Parveen and Mr Irfan had arranged to acquire Brook for the purpose of the proposed loan to Mr Afzal. Mrs Parveen became the company’s only director and Mr Irfan its secretary. By 6 December, steps had also been taken to change Brook’s registered office from Corner Chambers, 590a Kingsbury Road, Erdington (which Mrs Parveen has described as “a ‘default address’ used as the registered company address of various ‘shelf companies’”) to 176 Norman Road, Smethwick, where Mrs Parveen and Mr Irfan lived.

Mr Afzal suggested that Levys, the Manchester solicitors who were representing him, should also be instructed by Brook. Levys, however, said that they were unable to act for conflict of interest reasons and proposed that Mr Martin Wilcock of Alton & Co, the defendants, should instead be approached.

Alton & Co had been established by Mr Wilcock and another solicitor, Mr Eddie Halsall, earlier in 2007. The firm had offices in Accrington and Longridge, near Preston.

In the early afternoon of 5 December 2007, Mr Wilcock spoke on the telephone to a person whom he understood to be Mr Irfan and a meeting was arranged for the next day. In an attendance note prepared during the morning of 6 December, Mr Wilcock recorded that he had spoken by telephone with both “The client (Mr. Irfan)” and “Michael Levy (the introducer)” and continued:

“Meeting arranged whereby client will attend with ID and sign Money Laundering Declaration for tomorrow morning.”

Mr Irfan said this in his witness statement about a telephone conversation with Mr Wilcock on 5 December 2007:

“I … contacted the Defendant’s offices by telephone … and spoke to Martin Wilcock …. I explained the loan transaction to him and that Brook Properties wished to instruct him to act on its behalf.”

There is, however, reason to doubt whether it was Mr Irfan who spoke to Mr Wilcock. Mr Irfan’s English is clearly poor and it will, if anything, have been less good in 2007. He ultimately preferred to give his oral evidence through an interpreter and I was left with the impression that he would have struggled to comprehend and respond to questions in English. I imagine that Mr Irfan was correct when he said in cross-examination that he understands English rather better than he can speak it, but even his estimate of his speaking ability was no more than about 30% to 40% and he recognised that his ability to read English is weak.

Given the limitations on Mr Irfan’s English, I do not think he could have discussed anything at all complicated with Mr Wilcock on the telephone. Still less could there have been such a conversation without Mr Wilcock realising that Mr Irfan’s command of English was very limited. During cross-examination, Mr Irfan suggested that Mr Wilcock had told him on the telephone that he should bring an interpreter to their meeting because he could not understand him (Mr Irfan). Mr Wilcock, however, denied proposing an interpreter and said that the individual to whom he spoke was fluent in English. Further, there was no reference to Mr Wilcock having spoken of an interpreter in Mr Irfan’s witness statement: the point emerged for the first time in the course of cross-examination. In all the circumstances, I accept that Mr Wilcock took the person on the other end of the telephone line to be competent in English and made no mention of an interpreter attending the meeting. If, therefore, it was Mr Irfan himself who rang Mr Wilcock, the conversation must have been brief and simple. It is also possible that the call was made by someone else on Mr Irfan’s behalf.

Mr Wilcock had some knowledge of the proposed transaction even before his telephone conversation with “Mr Irfan” (i.e. the true Mr Irfan or someone speaking for him). Mr Wilcock noted in one of his witness statements that he had already spoken to Mr Levy (of Levys). He said, too, that he was told by Mr Levy that he (Mr Levy) “was acting for Mr Afzal on a Proceeds of Crime Act application which involved 9 Farquhar Road … which was going to form part of the security for the proposed transaction”.

Later in the afternoon of 5 December 2007, Mr Wilcock had faxed to him a letter outlining the transaction on which it was proposed that Alton & Co should act for Brook. The letter began:

“Further to our telephone conversation today, the information and instructions you require are as follows, we are arranging finance for Mr. Nisar Afzal, clients of Levy Solicitors as you are aware. This is to redeem the mortgage that Mr. Afzal has with Bank of Scotland. You are also aware that Eversheds are acting for B.O.S. We need you to firstly get the redemption figure of Eversheds. Also get all necessary documents in place for completion ASAP.”

The letter went on to say that Brook was to have a charge over the property, there were to be arrangement fees totalling £100,000 and interest was to be charged at the rate of 10%. The letter was faxed to Alton & Co from Brothers Internet Café in Dudley Road, Birmingham.

The letter was signed by Mr Irfan, but drafted for him by a Mr Mohammed Khan. Born and educated to “A” level standard in England, Mr Khan speaks excellent English as well as Punjabi. He had ambitions to become a solicitor, but was obliged by circumstances to go into the family business. He has been the owner of a grocery store in Kings Heath since about 2011.

An attendance note gives more details of a conversation which Mr Wilcock had with Levys on 5 December 2007. The note states that Mr Wilcock rang Levys after receiving faxed instructions to act for Brook. The note proceeds to explain:

“Accordingly I spoke with Asim at Levy’s offices to ascertain some more detail as to the transaction;

1.

He tells me that Brook Properties Birmingham Ltd is a company formed for the specific purpose of providing the advance referred to in the attached fax.

2.

He further tells me that he has told Mr. Irfan, (the Lender) that he will need to attend these offices with the requisite ID documents and enter into a Money Laundering declaration.”

Mr Wilcock received, too, a letter from Mrs Parveen in which she referred to advancing money “to secure a first charge” on 9 Farquhar Road subject to a satisfactory valuation report, a £100,000 arrangement fee, a five-year term and annual interest of 10%. On the face of it, the letter was faxed from Pakistan at “09:38” on 5 December 2007. I suspect, however, that the fax was in fact sent rather later than this. On the basis of both British and Pakistani time, Mr Wilcock had yet to speak to “Mr Irfan” at 9.38 am on 5 December. Further documents that were faxed to Mr Wilcock from Pakistan in December 2007 also bear transmission times that are hard to reconcile with other evidence.

At 9.53 am on 6 December 2007, Mr Wilcock emailed Eversheds to ask for a redemption figure for the Bank of Scotland charge over 9 Farquhar Road. By 9.58 am, Eversheds had replied saying that they could not release the information sought without authority from Mr Afzal. Soon afterwards, Mr Wilcock received emails from Companies House telling him that details had been submitted to it of, among other things, Mrs Parveen’s appointment as a director of Brook, Mr Irfan’s appointment as secretary of the company and a change in the registered office.

The meeting arranged the previous day appears to have taken place at Alton & Co’s offices in Longridge later in the morning of 6 December 2007. Mr Irfan attended the meeting with Mr Khan, who had driven him from Birmingham. In the course of the meeting, Mr Irfan signed several documents. One confirmed acceptance of Alton & Co’s terms, conditions and fees, another authorised Alton & Co to proceed to completion “without the requirement of updated Local Searches and /or Survey and Valuation report”, a third contained information about Alton & Co’s obligations as regards money laundering.

When Mr Irfan went into the witness box, Mr Alex Hall Taylor, Alton & Co’s counsel, said that he was not the person whom Mr Wilcock had believed to be Mr Irfan. The picture that subsequently emerged from Mr Wilcock’s evidence was that he took Mr Khan to be Mr Irfan at the 6 December meeting. Mr Wilcock said that he did not recall either Mr Irfan speaking to him at all during the meeting or any interaction between Mr Irfan and Mr Khan in his (Mr Wilcock’s) presence. So far as he was concerned, his instructions came from Mr Khan, whom he believed to be Mr Irfan.

In their evidence, Mr Irfan and Mr Khan each spoke of Mr Irfan having played a larger role in the 6 December meeting. Mr Khan acknowledged that he did the lion’s share of the talking, but said that Mr Irfan spoke too and that he translated for Mr Irfan. For his part, Mr Irfan said that he spoke a little at the meeting, that Mr Wilcock inspected his passport to verify his identity and that he signed documents in front of Mr Wilcock. That evidence, it was argued by Mr Ross Fentem, who appeared for Brook, is supported by the reference in the attendance note mentioned in paragraph 7 above to the client attending “with ID”. Mr Wilcock, however, said that he was concerned to confirm Mrs Parveen’s identity, not Mr Irfan’s, and that he had never seen Mr Irfan’s passport before the trial.

The differing evidence about the 6 December meeting may at least largely be attributable to faulty recollection. Nearly eight years have, after all, passed. It may well be, for example, that Mr Wilcock does not remember Mr Irfan saying anything even though he in fact did speak. Equally, Mr Irfan and Mr Khan may be mistaken as to the extent of Mr Irfan’s contribution to the meeting and whether Mr Khan translated for Mr Irfan at the time.

In my view, it is overwhelmingly probable that Mr Wilcock believed Mr Khan to be Mr Irfan. That conclusion is supported not only by Mr Wilcock’s evidence to that effect and his reaction (through Mr Hall Taylor) to seeing Mr Irfan in the witness box, but by his behaviour in December 2007. Mr Wilcock would surely have handled matters differently had he appreciated which of the people he met on 6 December Mr Irfan was and, hence, how little English he spoke. Further, I accept Mr Wilcock’s evidence that he did not see Mr Irfan’s passport at the 6 December meeting or notice Mr Irfan signing as such. Perhaps Mr Wilcock was out of the room when the documents in question were signed.

Another issue arising from the evidence is whether Mr Wilcock said at the 6 December meeting that Brook would step into the “shoes” (or “boots”) of Bank of Scotland if it lent money to Mr Afzal as proposed. Mr Irfan maintained that Mr Wilcock made such a statement. In a similar vein, Mr Khan said in his witness statement:

“My recollection is that the solicitor discussed the restraint order at the meeting, but that Mr Irfan did not need to worry, because the legal charge which he and Mrs Parveen were to have would be a first legal charge, such that they would be able to recover the loan by a sale of the property, in the event that Mrs Parveen’s uncle did not pay.”

On balance, however, I do not think Mr Wilcock went as far as this. It was Mr Wilcock’s evidence that he never used such an expression as “stepping into a person’s shoes”. Moreover, Mr Wilcock had not yet received office copy entries for 9 Farquhar Road and so had not seen the restriction on the register in respect of a restraint order (as to which, see paragraph 28 below). It could be that Mr Wilcock said something to the effect that Brook would be taking Bank of Scotland’s place, but, if so, he was not expressing any view on the impact of the restraint order or priorities as between Brook and the Serious Fraud Office (“SFO”). The SFO appears to have been mentioned no more than briefly at the meeting.

It is also convenient to mention at this stage contact details to be found on the cover of Alton & Co’s file for the matter. Someone has written in manuscript “Fax 0121 5588246” (which is a fax number for Brothers Internet Café) and “no 07837556610” (with the note, “Mohammed Tel.”). Mr Wilcock spoke of both numbers having been provided to him at the 6 December meeting. For his part, Mr Irfan said in cross-examination that he could not remember whether he had given Mr Wilcock the fax number and that he was not sure whose the mobile number was. The likelihood, I think, is that Mr Wilcock is right that he was supplied with both numbers on 6 December.

It was also, it seems, on 6 December 2007 that Mrs Parveen faxed to Mr Wilcock the page of her passport containing her photograph and a letter authorising her husband to act on her behalf in relation to 9 Farquhar Road. According to the transmission information, the faxes were sent at, respectively, “05:07” and “10:08”, but it seems more likely that both in fact postdate the meeting at Alton & Co’s offices later on 6 December. Levys subsequently confirmed to Mr Wilcock that the passport photograph was of Mrs Parveen.

On 7 December 2007, Levys faxed to Mr Wilcock a letter in which they said that Mr Afzal had been told by Bank of Scotland that 9 Farquhar Road was listed for sale at auction on 12 December. Levys said that they had been advised by their client that “this matter is to proceed urgently and … your client has been advised of such urgency”.

At around this time, Mr Wilcock received office copy entries for 9 Farquhar Road from the Land Registry. These showed not only Bank of Scotland’s charge but that a unilateral notice had been entered in the charges register in favour of a Mr Michael Olley for an interim charging order made in the Birmingham County Court. Of much greater importance, however, was a restriction on the proprietorship register in these terms:

“Under a restraint order made under The Proceeds of Crime Act 2002 on 24 July 2006 no disposition by the proprietor of the registered estate is to be registered without the consent of the Director of the Serious Fraud Office … or under a further order of the Court.”

The restraint order in question had been made in respect of Mr Afzal by Judge Elwen, sitting in the Southwark Crown Court.

Mrs Parveen returned from Pakistan on about 9 December 2007. She had already arranged for £299,985 (i.e. £300,000 less charges) to be transferred into Alton & Co’s client account. Shortly afterwards, the further sum of £199,985 (i.e. £200,000 less charges) was credited to the client account.

A note made by Mr Wilcock on 10 December 2007 refers to a telephone conversation with “Irfan”. The note goes on:

“Who is S.Ahmed? Power of Attorney to be produced via Levys.”

When giving evidence, Mr Wilcock said that he thought that he had made the note because it was the first time that he had heard the name. At all events, at 12.19 pm on 10 December Levys faxed to Mr Wilcock a power of attorney that Mr Afzal had granted to Mr Saghir Ahmed Afzal.

During his oral evidence, Mr Wilcock spoke of having had a number of other telephone conversations with “Mr Irfan” over this period. According to my notes, he referred to there having been “quite a few” conversations overall, “several” conversations to-ing and fro-ing, and phone calls happening “on a constant basis over a period of time”.

On balance, I accept that Mr Wilcock will have had conversations with “Mr Irfan” which are not recorded in attendance notes. It is inherently likely that Mr Wilcock needed to speak to “Mr Irfan” from time to time as the transaction proceeded and, during this period, Mr Wilcock clearly had conversations (with Levys, for instance) without making attendance notes. The telephone call on 10 December in which Mr Ahmed was mentioned was probably different because Mr Wilcock had not come across Mr Ahmed’s name before.

I also think it very likely that, in the light of Mr Irfan’s limited English, Mr Wilcock’s telephone conversations with “Mr Irfan” were not with the true Mr Irfan. It is conceivable that Mr Wilcock was speaking to Mr Khan, but Mr Khan was clear that he was not involved in any telephone calls. If “Mr Irfan” was not Mr Khan, then I have not heard evidence from the person with whom Mr Wilcock was talking. In this connection, it is relevant to note that Mr Irfan said in cross-examination that there may have been occasions when someone spoke to Mr Wilcock on his behalf.

Very shortly before Levys sent their 12.19 pm fax (see paragraph 30 above), the SFO had faxed to Mr Wilcock (at 11.59 pm on 10 December 2007) a copy of a letter of 10 December to Levys. The letter read as follows:

“Thank you for your fax of 7^th December 2007.

Firstly, we still await a response from you in regards whether you have relayed our request to your client to produce a disclosure statement in accordance with his restraint order. Please respond to this urgently. We find it of concern that you are not willing to provide us with this confirmation as your client is now in contempt and we are dealing with restraint assets.

Secondly, we are grateful for the indication that there is no familial link between Mr and Mrs Parveen and Mr. Afzal.

We reiterate our position, that this is a matter for your client, Brook Properties (Birmingham) Limited … and the Bank of Scotland as to how the repayment of the mortgage arrangements takes place. As such we do not want to and are not in a position to prevent this redemption provided it is satisfactory to the Bank of Scotland. Please be advised that post redemption of the Bank of Scotland loan this property and or any proceeds of sale remain restrained and still form part of Mr. Afzal’s realisable assets.

We are grateful for the indication that Messrs Alton & Co has informed you that Brook Properties have complied with all of their money laundering checks and regulations.

Finally, we would request that your client could undertake to forward to us in due course the loan agreement in its final form.”

As regards the reference to there being “no familial link between Mr and Mrs Parveen and Mr. Afzal”, Mr Levy explained in a witness statement that he had been told by Mr Afzal that he was not related to Mrs Parveen.

That same day, Mr Wilcock rang the SFO and spoke to a Mr Theal. The SFO subsequently sent Mr Wilcock a further copy of their letter to Levys.

At 11.37 am on 11 December 2007, Mr Wilcock had faxed to him from Brothers Internet Café a letter asking him to forward £499,970 to Levys. The letter appeared to be signed by Mrs Parveen, but she and her husband explained in evidence that her name had been written by her husband with her permission.

Within a few minutes, Mr Wilcock faxed a letter addressed to Mr Irfan to Brothers Internet Café. Just before midday on 11 December, Mr Wilcock also faxed his letter to Jay News, a newsagents not far from Brothers Internet Café whose number, Mr Wilcock said, “must have been given to [him] by Mr Irfan as an appropriate number to use”. The letter was further sent by post to Corner Chambers, 590a Kingsbury Road, which had until recently been Brook’s registered office and which still appeared on its letters.

Mr Wilcock’s letter began by referring to “our telephone conversation of the 11^th December” and went on to note:

“The monies which I currently hold on your behalf amount to £499,970.00 …. You tell me that a further £150,000.00 … is in transit.”

Mr Wilcock then said this:

“The Serious Fraud Office, who have an existing investigation into Mr. Afzal’s affairs have given consent for the redemption of the Bank of Scotland mortgage subject to the conditions referred to in the attached letter addressed to Levys. The conditionality, however, gives me something of a problem in that following redemption of the Bank of Scotland mortgage, the restriction placed on the property by the S.F.O. (shown highlighted on the enclosed Office Copy Entries) will still remain and effectively precede your own charge on the property. I should advise, therefore, that unless you instruct me to the contrary you should not proceed with the re-mortgage as your title post-redemption would be tainted”

Mr Wilcock went on to say that he was making further inquiries in relation to the charging order in favour of Mr Olley and that, as he now had notice of the SFO’s involvement, he was required to ask for, among other things, confirmation that the money paid into his client account was from Brook’s own resources and “from bona fide lenders or investors not connected in any way with Mr. Afzal, directly or indirectly”.

Mrs Parveen and Mr Irfan have each maintained that Mr Wilcock’s 11 December letter did not reach them. They have pointed out that Brook’s registered office had been moved. More significantly, perhaps, they have stated that “there were no facilities available for customers to receive faxes at Brothers Internet Café”. In that connection, reliance is placed on a document dated 9 March 2014 in which the owner of Brothers Internet Café said:

“The only fax service we provide in my business is send only, we do not [receive] fax here for customers, if a fax is to come to our machine we will usually shred the document.”

In my view, however, the chances are that Mr Wilcock’s letter did reach Mrs Parveen and Mr Irfan. Mr Wilcock is unlikely to have been supplied with the fax number for Brothers Internet Café unless it was known that faxes sent to the number would come to the notice of Mrs Parveen and Mr Irfan. If (as is probably the case) Mr Wilcock was also given the Jay News number, that will presumably be because it was thought that faxes to it would similarly be received by Mrs Parveen and Mr Irfan. Since, moreover, Mr Wilcock faxed his letter to Brothers Internet Café within minutes of the 11.37 am fax having been sent to him from that number, it may well be that the sender had not even left Brothers Internet Café when Mr Wilcock’s letter arrived there. On top of all that, Mr Wilcock gave evidence to the effect that “Mr Irfan” called him after seeing the letter.

It is, I think, now common ground that Mrs Parveen spoke to Mr Wilcock on the telephone on 11 December 2007. Mrs Parveen said this about the conversation in her most recent witness statement:

“I think I did speak to Mr Wilcock on 11 December 2007; I remember a brief conversation about the issue of Alton & Co sending the money it held on its client account to the solicitors acting for Mr Afzal. I do not recall any discussions about the Serious Fraud Office or that the legal charge to be granted to Brook … would not carry into effect the company’s instructions to the Claimant (that is, that Brook … would effectively be stepping into the shoes of the Bank of Scotland, such that it would have the usual powers of the holder of a first legal charge …).”

To my mind, however, it became apparent in cross-examination that Mrs Parveen had no real recollection of her conversation with Mr Wilcock.

Mr Wilcock’s own evidence about the conversation was somewhat muddled. Among other things, he was not sure whether the conversation took place before or after he sent his letter. On balance, the likelihood is, I think, that Mr Wilcock had not yet faxed the letter when he spoke to Mrs Parveen. That would seem to explain why the 11.37 am letter began, “As per our telephone conversation”. It by no means follows, however, that Mr Wilcock did not mention the restraint order to Mrs Parveen. To the contrary, Mr Wilcock probably, in my view, referred to the restraint order and expressed views along the lines of those voiced in his letter. After all, Mr Wilcock plainly had the SFO’s letter very much in mind and may already have dictated his own letter. In the circumstances, it is likely, I think, that the 11.37 am letter was sent in the knowledge that it was Mr Wilcock’s advice that Brook should not proceed with the proposed transaction.

There was evidently a further conversation, with “Mr Irfan”, after Mr Wilcock had faxed his letter. Mr Wilcock explained (and I accept) that, during this conversation, Mr Wilcock reiterated that Brook should not proceed but was informed that the family wished to go ahead “come what may”. Mr Wilcock was also told that Mr Afzal was resolving matters with the SFO. Mr Wilcock was, he said, given the impression that Levys were engaged in some sort of negotiation with the SFO.

On 13 December 2007, £149,985 (i.e. £150,000 less charges) was credited to Alton & Co’s client account.

In a letter dated 13 December 2007 (and faxed early on 14 December), Mr Wilcock told Levys that the restrictions on 9 Farquhar Road’s title had “been brought to the attention of my client save for the restriction in favour of Mr. Olley for which I have no details”. Mr Wilcock also said:

“The present situation is that I am currently awaiting the following from my client before I can proceed:

i.

Signed authority to proceed with re-mortgage having been informed of the title restrictions.

ii.

Certified copy of the sale contract for Land in Pakistan from the proceeds of which the re-mortgage monies are being drawn.”

At 2.25 pm on 17 December 2007, there was faxed to Mr Wilcock from Brothers Internet Café a letter asking him to forward £150,000 to Levys “[a]s per our telephone conversation”. Once again, Mr Irfan had signed Mrs Parveen’s name with her permission. Mr Wilcock explained that he took this letter as confirmation that he was to proceed notwithstanding the restraint order.

At some stage, Alton & Co were evidently provided with the agreements in respect of the sale of Mrs Parveen’s land in Pakistan. Somewhat later, on 12 February 2008, Alton & Co sent Brook a letter enclosing the “two original Sale Agreements you provided for this company, as proof of non-money Laundering”.

The transaction was completed on 18 December 2007. At that stage, Brook advanced £648,527.81 to Mr Afzal, that being the amount that, in the event, he required to redeem the charge in favour of Bank of Scotland.

The charge in favour of Brook was eventually registered at the Land Registry in August 2008, with effect from 16 June. It was, however, removed from the register on 30 April 2013 pursuant to an order made in the Crown Court. The whole of Brook’s loan remains outstanding.

Mr Fentem put Brook’s case against Alton & Co in two ways. In the first place, he submitted that Mr Wilcock failed to warn Brook about the restraint order and the impact it could have on the charge that was to be granted in favour of Brook. Rather, it was alleged, Mr Wilcock wrongly advised Brook that it would “step into the shoes” of Bank of Scotland. In the alternative, Mr Fentem contended that, even if (as he claimed) Mr Wilcock advised Brook not to proceed, his advice was inadequate. The argument was broadly to the effect that Mr Wilcock should have disabused Brook of the idea that Mr Afzal would be able to sort things out with the SFO.

In support of his submissions, Mr Fentem took me to the decision of Judge Cooke, sitting as a Judge of the High Court, in Kandola v Mirza Solicitors LLP [2015] EWHC 460 (Ch), [2015] PNLR 19. In the course of his judgment, Judge Cooke said this:

“46 [Counsel for the defendant] also [cited] Yager v Fishman & Co [1944] 1 All E.R. 552 and Carradine Properties v DJ Freeman & Co [1999] Lloyd’s Rep PN 48 in support of the proposition that the solicitor’s duty to explain matters to his client takes account of the client’s own experience; the solicitor is not required to explain matters that should be obvious to a person with the client’s experience or background.

47 This is particularly relevant in considering the extent to which a solicitor should explain matters such as the risks involved in taking a particular step. An inexperienced client, or one dealing in matters he is not familiar with, may require more explanation before he can sufficiently understand the risk he is about to take. An experienced client may need less explanation, or even none at all. When an explanation is given, the solicitor may appropriately tailor it to fit his knowledge of the client’s understanding. Of course if the client asks for more explanation or appears not to understand, the solicitor may have to go into more detail. But the solicitor is not a guarantor of his client’s subjective understanding, and will have fulfilled his duty if he gives an explanation in terms the client reasonably appears to him to be able to understand, and to have understood, even if the client later alleges that he did not in fact understand what was said.

48 In the present case, in my judgment the risks were adequately explained to a person of [the claimant’s] experience ….

49 I have found above that [the claimant] did in fact understand the advice he was given. Even if I had found he did not subjectively understand that advice, it would have been fatal to his claim that the advice was given in terms suitable for a person of his experience and that he gave [the solicitor] the impression at the time that he had understood it.”

Mr Fentem stressed Judge Cooke’s recognition of the fact that “[a]n inexperienced client, or one dealing in matters he is not familiar with, may require more explanation before he can sufficiently understand the risk he is about to take”.

In the light of the findings I have made earlier in this judgment, the first way in which Mr Fentem puts Brook’s case must fail. As I have said, Mr Wilcock’s letter of 11 December 2007 (in which he advised against proceeding, noting that the SFO’s restriction would “remain and effectively precede” any charge in favour of Brook) probably reached Mrs Parveen and Mr Irfan. I think it likely, moreover, that Mr Wilcock expressed similar views during telephone conversations on 11 December with Mrs Parveen and “Mr Irfan”. On this basis, there can be no question of Mr Wilcock having failed to warn Brook about the restraint order or the impact it could have on the charge that was to be granted to Brook. In fact, Mr Wilcock went so far as to advise Brook not to go ahead with the proposed transaction.

Turning to the alternative case advanced by Mr Fentem, it seems to me that the advice Mr Wilcock gave was adequate. While he may not have advised that it would be impossible for Mr Afzal to sort things out with the SFO, it was, I think, reasonable for him not to do so. It may have seemed inherently unlikely that Mr Afzal would be able to satisfy the SFO, but the possibility existed in principle and Mr Wilcock understood Levys to be dealing with such matters. Mr Wilcock was, moreover, quite explicit that the SFO restriction would “effectively precede” any charge in favour of Brook and that Brook should not proceed with the proposed transaction, and it was entirely reasonable for him to believe (as he did) that Mrs Parveen and Mr Irfan spoke English fluently. I do not think he was obliged to go further than he did.

In any case, Brook has not, in my view, established that it would have acted differently had Mr Wilcock given the advice that Mr Fentem said should have been given. Brook chose to go ahead with the transaction in the face of advice against doing so from Mr Wilcock, and without, for example, having 9 Farquhar Road professionally valued or, seemingly, inquiring into Mr Afzal’s ability to repay. There were, it seems, family reasons for proceeding “come what may” (as Mr Wilcock was told that the family wished). In the circumstances, I have not been persuaded that Brook would not have made the loan if it had been given the additional advice that Mr Fentem submitted that it ought to have received.

I shall dismiss the claim.