Jones & Anor v Hamilton

This is the trial of a preliminary issue pursuant to an order made on 12 October 2016 in an action concerning the financial arrangements and accounts between the parties. In essence the issue for determination is whether the first Claimant (“Mr Jones”) is the owner of 80% of the shares in two companies, Solfado SA (“Solfado”) and Ministros Properties Ltd (“MPL”) with the Defendant (“Mr Hamilton”) owning the remaining 20%, whether the converse is the position, or whether each of them owns 80% of the shares in one of those companies, and if so which, with the other owing the remaining 20%. Mr Jones seeks a declaration that he owns 80% of each of the relevant companies as security for guarantees he has given pursuant to two loan agreements whereas Mr Hamilton also seeks declarations but to the effect that Mr Jones has an interest in only 20% of the shareholdings.

The dispute about the ownership of these two companies is part of a wider dispute and I was urged by Mr Staunton on behalf of Mr Jones to be careful not to make findings which are not directly pertinent to the dispute before me. He pointed out that the case on behalf of Mr Jones had addressed only those issues directed to be decided at this preliminary hearing and not otherwise and that any findings more than necessary could be embarrassing.

It is common ground that the share ownership of Solfado and MPL was decided upon by the parties by oral agreements to which there were no witnesses save Mr Jones and Mr Hamilton themselves and that there are no written memoranda evidencing the same. Making matters more difficult is that the pleadings contain no meaningful particulars about the agreements or, save in very general terms, the reasons why they came to be made. As for timings, I was told that the parties agree that the agreement in relation to Solfado was made sometime before the entry into a loan agreement connected with that company (and probably early 2011) whereas the agreement in relation to MPL, if it existed as contended for by Mr Jones, was made sometime between 13 June and 1 July 2013, otherwise before that time.

Often, in circumstances like this, contemporary documents come to the rescue. In the present case, unfortunately, they do not. The parties accept that many of the company documents are not reliable and, in some cases, are positively misleading as to their contents. Mr Jones was very frank about it. He admitted that he would produce documents irrespective of the truth of their content if the same were required, for example, for tax purposes. I understood from him that otherwise there could be serious tax implications for both Mr Hamilton and himself which he regarded, I infer, to be a very bad thing. And Mr Wagner, a witness for Mr Jones and a director of Solfado, admitted that corporate documents he prepared for his clients to record, for example, Board Meetings (including attendees thereat) were frequently (probably more often than not) not a true record of what had transpired or who had been present. He considered his conduct in preparing such documents to be a useful convenience and it did not seem to concern him that the documents were misleading, although he said he may change his practice and be a bit more careful in future.

A further difficulty is that a number of important documents which purport to be signed by Mr Hamilton were not in fact signed by Mr Hamilton. They were signed by Mr Jones using an electronic signature of Mr Hamilton. Mr Jones asserted he had Mr Hamilton’s authority to use that signature but Mr Hamilton contended otherwise. Indeed, Mr Hamilton said that he did not learn about this use of his signature until this case came into being and he was shown a lot of documents he had never seen before but which contained his signature. On making this point to his advisers, a forensic examination was carried out and it was discovered that many of the signatures were identical to each other, that in fact they were a single signature which had been reproduced electronically many times.

Mr Jones has conceded that some 12 of the 13 examples of copy signatures were applied by him but he was adamant that he was doing so with Mr Hamilton’s blessing, that Mr Hamilton merely wanted him to get on with the job and arrange matters on his behalf. With respect to the 13^th, which is that on the MPL Memorandum of Incorporation, Mr Jones said that it had been applied by Mr Hamilton himself pursuant to Mr Jones’ email request for him so to do. That email request is not in evidence and no satisfactory explanation was given as to why this use of an electronic signature was or should be any different from the others.

There is no documentary or independent evidence supporting the assertion that Mr Jones ever asked for or received Mr Hamilton’s permission to use a copy of his signature on any documents. I was reminded by Mr Staunton that it is no part of my remit to find whether or not any of the documents were forgeries (and there is no pleading of forgery) but a consequence of what has happened is that I cannot rely without more on what appears on the face of many of the documents as evidence of either the content thereof or the signature thereto.

Each of the parties has been a successful businessman and has made substantial amounts of money at various times. In about 2009 Mr Hamilton had liquidity problems and he sought help from this then friend, Mr Jones, who was known as a person with expertise in making and managing investments, in particular in relation to property. At the time Mr Hamilton and/or his family were using a villa, Le Remondière (the “Villa”), in Valbonne, France as their home and it was thought that this property could be used as security for a loan which would benefit Mr Hamilton. The value of the Villa was thought to be in excess of €13 million and Mr Jones played a significant part in arranging a loan of €10 million from UBS (Monaco) SA (the “UBS Loan”) secured on the Villa.

In 2009 the Villa was owned by a French company, SCI Remondière Properties (“SCI”), incorporated in 1997, and the shares in SCI were owned by a Swedish couple, Mr and Mrs Lind, as trustees for Mr Hamilton. Mr Lind is a Liechtenstein regulated financial services provider and Mr Hamilton’s adviser. The sole director of SCI was Ms Simone Passioni, Mr Hamilton’s French lawyer.

Mr Jones proposed, as part of the financing arrangements to secure a loan, for the ownership of SCI to be transferred to a new Luxembourg company and for this purpose Solfado was incorporated on 24 December 2009. At the outset the shares in Solfado were bearer shares and, according to Mr Lind, they were held by him as trustee for Mr Hamilton, beneficially. Mr Lind’s evidence in this respect was not challenged.

There is a share transfer agreement dated 1 July 2011 whereby Mr and Mrs Lind transferred their shares in SCI to Solfado. However, there is clear evidence that the transfer agreement was not made on 1 July since a draft of it was sent by Mr Jones to Mr Lind by letter of 19 July. In his letter Mr Jones gives examples to Mr Lind of how the ownership of Solfado can be manipulated to suit various purposes (and he gives an example of how, for a few minutes of an EGM of Solfado, according to the Minutes of that meeting, he and Mr Hamilton were shareholders) but one thing was clear and it is that, at that time, Mr Lind was the sole shareholder (albeit as trustee).

On 8 August 2011 Mr Lind sent to Mr Wagner, an adviser to Mr Jones and witness in this action, a declaration made on 22 July 2011 to the effect that Mr Hamilton was the sole beneficial owner of SCI. The veracity of that declaration was not challenged.

Mr Phillipe Declercq of MAG Asset Management SA was working with Mr Jones on arrangements for a loan and what became the UBS Loan was offered by way of a facility letter to Mr Declercq dated 30 June 2011. That letter provides for refinancing of €10 million with a first mortgage on the Villa and a joint guarantee from the economic beneficiaries, and was premised on a valuation of the Villa being equal to or greater than €12.9 million (Footnote: ¹).

The UBS Loan was made under an agreement dated 9 August 2011. The borrower was SCI and the guarantors were Mr Jones and Mr Hamilton. As a condition of the loan (according to the document itself), Mr Hamilton became guarantor for €2 million and committed, as holder of 800 shares in Solfado, which held all the shares in SCI, to maintain ownership of those 800 for the duration of the loan. In addition, Mr Jones became guarantor for €8 million and committed, as owner of 200 shares in Solfado to maintain ownership of those 200 for the duration of the loan. It is common ground that the agreement between Mr Hamilton and Mr Jones was that Mr Jones would transfer his 200 (or 800) shares back to Mr Hamilton once the loan was paid off, i.e. he held them merely as a security whilst his personal guarantee was outstanding. As matters stand the UBS loan has not been paid off and, accordingly, there is a contractual obligation on Mr Jones and Mr Hamilton not to dispose of their shareholdings in Solfado.

The loan agreement with UBS is evidence of an agreement between Mr Hamilton and Mr Jones to the effect contended for in these proceedings by Mr Hamilton, i.e. that he owns beneficially 80% of the shares in Solfado. Mr Jones contends, however, that the document recording the loan contains an error and that the shareholdings have been written in the wrong way round. Mr Jones has not taken any effective steps vis-vis UBS to correct what he contends is a mistake in that documentation. There was a last minute attempt to introduce evidence from UBS but that did not take matters significantly further.

Mr Jones’ prime argument to support his contention that his agreement with Mr Hamilton was that he took security ownership of 80% of Solfado was that he was guaranteeing 80% of the loan. This, of course, does not take into account the fact that, at the outset, the Villa belonged to Mr Hamilton’s company or that there were in place a number of safeguards to minimise the likelihood of the guarantee being called upon. Nor does it take into account the position of UBS.

The next relevant event chronologically was in about 2012/2013 and it concerned a loan of £4.5 million from SG Hambros (Channel Islands) Limited (“SG Hambros”). Again, the reason for the loan was the perceived requirements of Mr Hamilton for liquid funds. This loan also concerned an oral agreement as to shared ownership of a company (this time it is MPL) and personal guarantees, the detail of which I will come on to. What is of significance is that it is common ground that at all material times until about 13 June 2013 the agreement was that Mr Jones would own 20% of the shares in MPL (for the duration of his guarantee, after which that 20% would be returned to Mr Hamilton) and Mr Hamilton 80%, and that the guarantees would be joint and several, each for the full amount. This shareholding division is not consistent with Mr Jones’ argument in relation to the UBS Loan that his 80% liability should be reflected in an 80% shareholding.

By 2015 bearer shares were not permitted in Luxembourg companies and so the shares in Solfado were converted to registered shares. The share register records Mr Jones as holding 80% and Mr Hamilton 20%. Mr Jones says the share register is correct whereas Mr Hamilton says that there has been a mistake and that the holdings should be reversed, that the correct position is as set out in the UBS Loan documentation.

The 80:20 agreement about the shares in what became MPL was in the context of discussions between Mr Hamilton and Mr Jones about entering into an investment and profit sharing arrangement. In addition, Mr Hamilton was considering having one of his companies buy a property, Walton Castle, from his ex-wife. Whether or not and if so on what terms a profit sharing agreement was entered into between the parties is the subject of dispute but that dispute is not before me and I make no observations upon it. There is no dispute that there were discussions about such an agreement and it was partially in that context that the SG Hambros loan was procured.

Mr Jones arranged for the loan by SG Hambros of £4.5 million to a Costa Rican company, Mercantil Ministros MMSA (“MMSA”) a company incorporated in 1995 and originally owned by Mr Hamilton. The loan was offered to MMSA on 5 April 2013 and accepted by Mr Jones on behalf of MMSA the next day. It was secured by way of a first legal charge on three flats in Battersea (11, 12 and 15 Southside Quarter, 11 being used by Mr Hamilton as his London home) owned by MMSA, a joint and several guarantee from each of Mr Jones and Mr Hamilton in the sum of £4.5 million and a security interest agreement by MMSA in favour of SG Hambros.

Earlier, sometime in about October 2012, and in anticipation of the SG Hambros Loan, Mr Hamilton agreed to transfer 20% of the shares in MMSA to Mr Jones as security for Mr Jones’ personal guarantee which was anticipated would be required by SG Hambros. There is no dispute about this agreement and the respective shareholdings agreed at that time.

As part of the arrangements leading up to the SG Hambros Loan, Mr Jones persuaded Mr Hamilton to transfer his shares in MMSA to a new Guernsey company, MPL and there is transfer agreement dated August 24 2013 signed by Mr Jones and Mr Hamilton whereby all the shares in MMSA were transferred to MPL, 80% by Mr Hamilton and 20% by Mr Jones. Both parties accept the veracity of that share transfer agreement.

Moreover and in connection with the intended incorporation of MPL, on about 13 June 2013 written instructions were given to the local solicitors, Collas Crill, by Mr Jones to the effect that 80% of the shareholding in MPL be owned by Mr Hamilton and 20% by Mr Jones. Further, Mr Jones’ pleaded case was to this effect.

MPL was incorporated on 1 July by Collas Crill and 80% of the shares were allotted to Mr Jones and 20% to Mr Hamilton, i.e. the reverse of the position as set out in the written instructions to Collas Crill.

It appears that Collas Crill realised they may have made a mistake since on 10 November 2015 they wrote to Mr Hamilton and Mr Jones stating that a recent review of the corporate file of MPL showed that the current shareholdings may not be in accordance with the original intentions of the parties prior to incorporation. They drew attention to their instructions prior to incorporation (20:80 - Jones:Hamilton) whereas the Memorandum of Incorporation apparently signed by the parties on 1 July 2013 and the Minutes of a Board Meeting of that date record the position as 80:20, Jones:Hamilton. It is now common ground that the signature of Mr Hamilton on the Memorandum of Incorporation is a copy of his signature and is the same as the copy Hamilton signatures Mr Jones applied to other documents. It is also common ground that Mr Hamilton was not present at any Board Meeting of 1 July although the Minutes of such record otherwise. This is an example of how unreliable the documentation is in this case.

Mr Jones’ response to Collas Crill’s letter expressing concern about the state of the register with respect to MPL is an email of 9 December 2015 and is of some interest. Mr Jones stated that ‘I confirm that I do not under any circumstances accept that the shareholding of [MPL] be modified in the registers of the company to reflect any change from the current position...’ (emphasis in the original) He went on to give a justification for his stance in these terms ‘1. The Memorandum of Incorporation was signed, in original and in my presence, by Mr Hamilton of his own accord. There is no dispute possible of this fact and this reflects the intent of the parties at this point in time...’ The reason I comment that this response is interesting is that Mr Jones now concedes that what he said by means of justification for his position is completely untrue.

This letter of Mr Jones was not the only occasion that he asserted the signature of Mr Hamilton on the share register of MPL was genuine. In solicitors’ correspondence before action Mr Jones asserted that the Memorandum of Incorporation was ‘discussed, approved and signed by [Mr Hamilton]’ and in a response to a Part 18 Request Mr Jones asserted that Mr Hamilton signed the document on 1 July in Valbonne. Mr Jones’ position only changed when it was revealed to him that forensic expert handwriting evidence showed that Mr Hamilton’s signature on the share register was not a genuine original. He also subsequently accepted that he did not know where Mr Hamilton was on 1 July, i.e. that the reference to him having signed the document in Valbonne was mere conjecture (by coincidence, Mr Hamilton was in Valbonne on that day).

Thus Mr Jones no longer relies on Mr Hamilton signing the MPL share register as irrefutable evidence of his assent to its content. He asserts that, subsequent to 13 June 2013 and prior to the incorporation of MPL on 1 July 2013, he had a telephone conversation with Mr Hamilton wherein it was agreed that the shareholding be 80:20 in his favour rather than the other way round. Mr Hamilton disputes that such a conversation took place. There is no email or other documentary exchange between the parties acknowledging the changed position, as one might have expected between parties who communicate regularly with each other when there has been a fundamental change in an important aspect of their relationship.

With that background, I turn to the witness evidence in the case.

The first witness for Mr Jones was Mr Wagner. He is an accountant based in Luxembourg and is one of the owners of a firm which provides both accountancy and fiduciary services. He has been a director of Solfado since 10 December 2009 and his company has acted as a fiduciary for both Mr Jones and Mr Hamilton since July 2011. I consider that he was truthful in his answers to the court but there were a number of matters about his conduct which caused me concern. Thus he was happy to sign off company documents such as minutes as being accurate when he knew they were not. His justification was that it was not important, an attitude which this trial has shown to be completely misguided.

The consequence of Mr Wagner’s practice with respect to corporate documentation is that I cannot rely upon any document signed by him as being a document which speaks for itself. Indeed, from what I heard, it is more likely than not to be false.

A second matter of concern was his evidence about the profit sharing agreement. His written evidence was that Mr Jones had signed a copy of this agreement and left it with him with a post-it note attached. However, this was not true. The document had been left in his office and he had been told about the post-it note, perhaps by a Ms Mathieu. Thus I have to treat Mr Wagner’s written evidence with caution. He is not a man who recognises the importance of being careful to ensure the accuracy of what he says.

The next witness was Mr Declercq. He is a director of a professional wealth adviser operating in Geneva. He played an important role in obtaining the UBS Loan. I found him to be a careful and honest witness who was very reluctant to give full answers to financial questions or any matters involving money. In the end his evidence did not assist me very much in the matters I have to decide although it did help to explain some of the background.

The next witness was Mr Jones and he was cross examined at length upon his evidence. As a result of that examination I formed a very clear view as to the extent to which I could rely upon him. Mr Jones is an intelligent man who knows what he thinks is best for him and, in my judgment, will say whatever he thinks is best for him. He is not a man who is troubled by saying things which are not true if so to do would be to his disadvantage. Mr Jones is a person content with the truth if that fits in with what suits him but not otherwise. The result of that approach combined with his undoubted intelligence is that Mr Jones gives the impression of having an answer to everything. If I have to rely upon Mr Jones’ word for something having happened, I have no confidence in that word unless I can be satisfied from other matters that what he is saying is likely to be true.

There are circumstances where it is possible to say that the testimony of a witness cannot be relied upon unless it is supported by documents or corroborated in some meaningful way. The difficulty for Mr Jones in this case is that the corporate documentation he is content to use (and I am satisfied that he well knew that the documents prepared by Mr Wagner were unreliable indicators of their content) is not reliable. It may well be sufficient to confuse or mislead tax authorities or corporate regulators but it is hopeless if the object is to present a true account or record of what happened on any particular occasion.

Another matter of relevance is that there are some 13 examples of Mr Jones using an electronic signature of Mr Hamilton to attest documents. Mr Jones says that he did this with consent whereas Mr Hamilton says otherwise and that he did not know Mr Jones was using his signature in this way. I agree with counsel for Mr Hamilton that it is significant that there is not a single email from Mr Jones which refers to this happening, to Mr Jones requesting permission for it to happen, or to Mr Jones telling Mr Hamilton, for the record, that it has happened and the consequences thereof. Mr Jones said that there were such emails and that it is merely unfortunate that they have not been provided on disclosure, an explanation which is not very satisfactory. His alternative explanation was that he was told orally by Mr Hamilton to achieve the loans and not bother him with the details.

Counsel for Mr Hamilton relied on a number of examples of what he contended were Mr Jones changing his story to suit as indicia of his unreliability. Some of those related to matters which are still in issue in these proceedings (such as the profit share agreement) and I do not refer to them as it is not necessary bearing in mind the conclusions I have reached. I refer to one regarding the signing of the MPL memorandum above and, also, below when I consider the evidence of Ms Harding.

Although what I have said is critical of Mr Jones’ reliability, I do recognise that Mr Jones was a friend of Mr Hamilton and that Mr Hamilton went to him for help when he was short of money. Moreover, Mr Jones did help Mr Hamilton when he was in need. The question for me to decide, however, is the terms upon which he provided personal guarantees during the course of providing that help.

Mr Hamilton was the first witness to give evidence to support his case. He is an emotional person and recognises, rightly so, that he went through a period of some hardship in the years after about 2009. He, like Mr Jones, was cross examined at length. I gained the impression from that examination that Mr Hamilton was trying to answer questions honestly and to the best of his ability. He was not evasive and, instead, answered questions directly. Moreover, he was, in the main, consistent in his answers. With respect to the various arrangements put in place by Mr Jones, I believe that he was confused by some of them and what they were purporting to achieve. But I do not consider that apparent confusion was a cover up for any dishonesty.

In submissions counsel for Mr Jones submitted that Mr Hamilton was never confused by the business arrangements in which he was involved and that the suggestion of such was a convenient cover to mask recognition of the true arrangement he reached with Mr Jones. This however did not sit with Mr Jones’ suggestions in evidence that Mr Hamilton was often too intoxicated to follow matters and that he had given him what was, in effect, carte blanche, to manage his affairs and secure the loans. Having considered all matters, I am satisfied that there were occasions during the relevant period that Mr Hamilton did not fully appreciate what Mr Jones was doing and that Mr Jones knew this.

Regarding documentation, I am satisfied that, more likely than not, Mr Hamilton was aware that the documentation prepared, for example, by Mr Wagner was not a true record of what it purported to be and that he did not complain about this. Moreover, there are letters from Mr Hamilton where he himself stated matters which were not true. Thus in a letter of June 2011 to Mr Lind and in the context of the UBS Loan, Mr Hamilton stated that he was present at an EGM of Solfado whereas he was not present. He said that at the EGM he was present representing 20% of the shares of the company and Mr Jones was also present representing 80% of the shares of the company. I have no reason to think that Mr Jones was present at that meeting and Mr Wagner led me to believe he was not. As for the shareholders’ position in Solfado, that same letter states that Mr Lind is or is to become possessor of all the bearer shares in Solfado and that Mr Lind will hold them for and on behalf of Mr Hamilton. Mr Jones relies on this letter as an acceptance by Mr Hamilton that, for the purposes of the security for the UBS Loan, Mr Jones owned 80% of Solfado. But the letter does not say that.

There were other documents which can be read as Mr Hamilton acknowledging that Mr Jones had an 80% shareholding in Solfado. But I am not satisfied they are consistent or that they were any more than Mr Hamilton setting out what Mr Jones had told him to say (which I am satisfied did happen on occasion).

My conclusion is that, although the matter is not at all straightforward and there are indicators which raise warning flags, on the whole Mr Hamilton is a man who I can rely upon for an honest account of events. When it comes to comparing his reliability with that of Mr Jones, I am fully satisfied that Mr Hamilton is the more likely to be doing his best to set out the true facts as he understands them.

The next witness for Mr Hamilton was Victoria Harding who has been Mr Hamilton’s personal assistant since April 2013. She was an impressive witness who was subject to some hostile examination which would have unnerved some. I am satisfied that she was doing her best to assist the court at all times and that her evidence was completely reliable.

One aspect of Ms Harding’s evidence bore on an important aspect of the case and it relates to Mr Jones’ assertion that he emailed the MPL Memorandum of Incorporation to Mr Hamilton on 1 July 2013, that Mr Hamilton inserted an electronic signature on it and sent it back – thus the document does bear a signature inserted by Mr Hamilton, albeit not one applied by him in the normal way. There was a refusal by Mr Hamilton to offer voluntary inspection of his computer and I was invited to draw adverse inferences from this.

Ms Harding gave evidence to the effect that she was with Mr Hamilton in Valbonne on 1 July 2013 and that what had been proposed by Mr Jones could not have been done without her knowledge (primarily because of Mr Hamilton’s lack of relevant IT skills). She said that it was not done. Further she gave evidence that she had checked Mr Hamilton’s computers (including one that had been damaged) for evidence of any relevant email chain and had found nothing to support Mr Jones’ assertions.

Having considered the evidence I am satisfied that Mr Jones did not send the Memorandum to Mr Hamilton for his signature in the way that he set out in his third witness statement (and amplified in oral evidence – he said he was in Nice airport at the time on 1 July 2013 and had sent the memorandum attached to a blank email and that it was returned minutes later).

Further support for this finding was Mr Jones’ reluctant acceptance in cross examination that he did not discuss the Memorandum with Mr Hamilton; his discussions, he said, were about the general agreement and shareholding. If there were no discussions about the Memorandum, it is hard to visualise how the exchange of the document and the insertion of Mr Hamilton’s signature could have taken place.

Mr Hamilton also relied on witness statements from Mr Lind who was not required to attend for cross examination. I accept his evidence.

There is a gentleman called Mr Yettarian who, Mr Jones said, was working for Mr Hamilton and who knew that Mr Jones had an 80% interest in the relevant companies. I was invited to draw an adverse inference from the failure of Mr Hamilton to call Mr Yettarian as a witness.

Mr Hamilton was asked about Mr Yettarian in evidence. He said that he had asked Mr Yettarian to contact Mr Jones to sort out the dispute and that he had tried so to do. He said that Mr Yettarian had had no success in communicating with Mr Jones and that the conversations had gone nowhere.

I am not prepared to draw any adverse inference from the failure to call Mr Yettarian. There was insufficient material put before me which would lead to the conclusion that his evidence might have been probative and there was nothing in the documents which appeared to assist.

I have heard the evidence in this case and reached a clear conclusion upon the points before me. I have not set out all the reasons for my conclusion since I have been asked to limit myself strictly to the matters before me. Nevertheless I have endeavoured to set out sufficient reasoning for the parties to understand my judgment.

I am satisfied that the true position with respect to Solfado is that reflected in the UBS Loan documentation. Mr Jones held 20% of the shares in Solfado as security for his guarantee and not as he contests in this action. His argument to the contrary was based on a philosophy which does not stand scrutiny and his own evidence which I do not accept.

I am satisfied that the true position with respect to MPL is that reflected in the written instructions given by Mr Jones to Collas Crill. Mr Jones held 20% of the shares in MPL as security for his guarantee and not as he contests in this action. His argument that he reached an oral agreement with Mr Hamilton to reverse the 20:80 split is based entirely on his word and is not supported by any of the documentation apart from the share register itself (which Collas Crill believe may reflect their error). Mr Jones’ evidence in relation to the Memorandum of Incorporation does him no credit. I am satisfied it was not truthful.

In conclusion, Mr Hamilton and not Mr Jones is entitled to the declarations which are sought.