Kent v Paterson-Brown & Anor

In late 2004 the Claimant, John Kent, until then an English resident, was looking to emigrate. Switzerland was the likely destination. He was in the process of selling his care-home construction businesses, which would provide him with substantial capital to invest elsewhere.

The First Defendant, William Paterson-Brown (“WPB”) was then living in Switzerland, having moved there in 2001. Among other things, as I will describe more fully below, he was in the business of promoting companies to potential investors, operating from an office at 15 rue de la Confederation, Geneva (the “Geneva office”).

Mr Kent was introduced to WPB by a mutual acquaintance, Grant Tromans, in the following circumstances. Mr Tromans ran a property business called Develica, and recommended to Mr Kent that he invest in a fund called “Develica 1”. Mr Kent took him up on that offer some time in 2004, investing £500,000 of his pension fund’s money.

Mr Kent mentioned to Mr Tromans that he was thinking of emigrating to Switzerland. Mr Tromans offered to introduce Mr Kent to colleagues of his, including WPB. According to Mr Kent, Mr Tromans told him that WPB was part of a group of business associates, including Mr Tromans and a Mr Stephen Forsyth, who worked closely together making investments in businesses and managing them. He described them as clever businessmen with far reaching connections extending to the Royal Family of Abu Dhabi. Mr Tromans told Mr Kent that WPB would be able to offer him advice.

Mr Kent and WPB disagree as to the precise timing of their first meeting, and the extent of contact between them prior to June 2005. Mr Kent says that they first met towards the end of 2004, and that they met on several subsequent occasions between then and June 2005, all of which were of a social nature. It is an element of Mr Kent’s case that he believed that the relationship between him and WPB was from the beginning one of friendship, which meant that the business conducted between them was done on an informal basis, involving trust, rather than with formal documentation as would have been the case had Mr Kent been dealing with a company.

WPB, on the other hand, says that, while he was friendly towards Mr Kent, their relationship was a business one. He says that they first met at a Burns’ night celebration on 12 February 2005, and that Mr Kent had been introduced to him as someone interested in making investments.

To the extent that it is necessary to make any findings about the precise nature of the relationship between Mr Kent and WPB, I do so when dealing with the elements of the causes of action pleaded. For the moment, it is sufficient to note that it is common ground that the first time they seriously discussed business was at the Geneva office on 16 June 2005.

At that meeting, WPB offered Mr Kent an investment opportunity which, shortly afterwards, Mr Kent took up. Thereafter, over the next four years, on WPB’s recommendations Mr Kent invested several millions of Euros and acquired shares in a variety of different companies, sometimes with new cash and sometimes with the proceeds of sale of earlier share purchases. The last of these investments was made in February 2009.

Between July 2010 and February 2011, Mr Kent was provided with share certificates (for shares held in certificated form) or evidence of shares held in uncertificated form for all the shares which – according to the sales and purchases made over the period 2005 to 2009 – he should have held. There was some considerable delay in provision of those share certificates to Mr Kent, but no claim is asserted by reason of that delay.

The investments acquired by Mr Kent were badly affected by the global financial crisis of 2007-2008, such that very little value remains in them.

In December 2013, Mr Kent commenced these proceedings against WPB, WPB’s brother, Timothy Paterson-Brown (“TPB”), and three companies with which WPB had been associated, Asia I.T. Capital Investments Limited (“Asia IT”), Khalidiya Investments SA (“Khalidiya”) and Zica SA (“Zica”). In April 2014 the claim form was amended to remove the corporate Defendants. In particulars of claim dated 7 April 2014, wide ranging claims in fraud and conspiracy were asserted, as well as a claim for an account based on allegations that the Defendants were trustees of money or other property for Mr Kent.

In 2015, however, the original particulars of claim were withdrawn, and new particulars served. The fraud and conspiracy claims were abandoned. The only claims now asserted by Mr Kent against WPB are (1) a claim for an account, in the sense of a description of what happened to his money and his investments and (2) (if and to the extent that upon the taking of the account it turns out that shares were purchased for him) damages for WPB’s failure to inform him of various matters (for example commissions received by companies associated with WPB), in breach of an alleged advisory duty. In addition, Mr Kent asserts a claim against TPB based on knowing receipt of trust property.

Mr Kent claims that WPB is obliged to account for his dealings with Mr Kent’s money and/or shares on three separate, but linked, bases.

First, he claims that WPB acted, in his personal capacity, as his agent in the purchase of shares and that, as such, he owed numerous fiduciary duties, including a duty not to profit from his position, a duty not to use the Claimant’s property to acquire a benefit, a duty not to allow his personal interests to conflict with his duty to the Claimant, and a duty to account for all his dealings.

Second, he claims that WPB became a trustee of the money which Mr Kent provided for the purchase of shares. The trust is said to be a “purchase trust”, in accordance with the principles derived from Quistclose Investments Ltd v Rolls Razor Ltd [I970] AC 567, in that the money was provided for the specific purpose of purchasing the relevant shares. The claim for an account, on this basis, is limited to an account of what he did with the purchase monies.

Third, if and to the extent that the purchase monies were used to acquire shares for Mr Kent, then it is alleged that WPB held those shares on trust for Mr Kent and, as trustee, is obliged to account for his dealings with them over the period that he held them.

WPB contends that his dealings with Mr Kent were limited to promoting investments to him (which he did in his capacity as director of Khalidiya), and that after introducing specific opportunities to him, Mr Kent contracted with another company (in most cases Asia IT) for the actual purchase of shares. He contends that any money provided by Mr Kent, and any shares held for him, were at all times held by a corporate entity, in most cases either Asia IT or a nominee company, Asia I.T. Nominees Ltd (“Asia Nominees”), a subsidiary of Asia IT. WPB denies, therefore, that he can be made liable to account in equity to Mr Kent.

Mr Kent submits that English law applies to his claim. WPB submits that if any relationship existed, as asserted by Mr Kent, then it was governed by Swiss law.

Mr Kent accepts that, after his dealings with WPB came to an end, he was in possession of all the shares which he should have held, pursuant to the numerous transactions (both purchases and sales) he believed he had entered into according to the information he received from WPB at the time. Leaving aside the claim for breach of an advisory duty (which I deal with separately below), therefore, there is no question of Mr Kent having suffered any loss even if WPB was a fiduciary or trustee and had abused that position in connection with money or shares held for Mr Kent. When I asked Ms Newman QC, counsel for Mr Kent, what would be the purpose of ordering an account, she said that it was partly to determine whether WPB had made an unauthorised profit by use of the purchase money or shares. For example, if WPB owed a fiduciary duty not to make a secret profit, then Mr Kent was entitled to an account to determine whether he had ever done so. Moreover, she said that if, on the taking of an account, WPB had not in fact – at the time – purchased the shares that he appeared to Mr Kent to be purchasing, but did so much later, then Mr Kent might be entitled to his money back, rather than being stuck with the shares themselves (most of which were now worthless).

It is important to appreciate what is not alleged by Mr Kent. It is not alleged that there was any over-arching relationship of agency between WPB and Mr Kent, or that WPB was appointed Mr Kent’s agent for the purpose of identifying, recommending and/or purchasing investments on his behalf. It is common ground that there was no written or other express appointment of WPB as agent, and that no remuneration of any kind was ever paid by Mr Kent to WPB.

Instead, it is alleged that, on each occasion when Mr Kent acquired shares, a separate agency relationship was created, pursuant to which WPB purchased those shares for and on behalf of Mr Kent.

Accordingly, it is necessary to examine each occasion on which Mr Kent acquired shares to determine whether WPB assumed a personal obligation to acquire the shares as Mr Kent’s agent. It was common ground, however, that whatever relationship arose out of their dealings in relation to the first acquisition, made in July 2005, is likely to have been the same for all subsequent transactions. Mr Kent’s evidence was that he assumed in relation to each of the later transactions that they were being conducted on the same basis as the first. In relation to transactions entered into in July 2006, for example, Mr Kent said “I understood that the basis on which I had first invested, which he told me I was investing, was still holding place.”

Similarly, the parties are agreed that although a different law could in theory govern each of the separate transactions, the conclusion as to governing law in relation to the first transaction is likely to apply, in practice, to the remaining transactions.

Accordingly, I will deal, first and most thoroughly, with the first transaction concluded in July 2005. So far as the remaining transactions are concerned, I will divide them into two categories: those entered into prior to Mr Forsyth’s death in August 2007, and those entered into afterwards. That is because, whereas prior to Mr Forsyth’s death Asia IT and Asia Nominees were involved in the transactions, thereafter (according to WPB) Khalidiya and Zica were involved instead.

Mr Kent, WPB and TPB each provided witnesses statements and were cross-examined at trial, in the case of WPB in particular, at some length. Much of the cross-examination of WPB focussed on what happened to Mr Kent’s investments over the period between 2005 and 2010. This was of no relevance to the principal issues in the case. It was relevant only to the issue (raised in the defence) that even if Mr Kent would otherwise be entitled to an order for an account, the court should exercise its discretion against ordering an account because WPB had already provided Mr Kent with the information which he would obtain via the taking of an account.

The evidence that was admissible and relevant to the principal issues (i.e. as to the whether WPB undertook at act as agent for Mr Kent, and whether there was a purchase trust, share trust or advisory duty) was within a relatively narrow compass. It is not surprising, given the passage of time, that neither gentleman had a distinct recollection of events during the numerous meetings and telephone conversations that took place between nine and thirteen years ago. In relation to many of the transactions, and in particular the first transaction, the key communications between them were by email, which provides an intrinsically more reliable record.

WPB, in his written and oral evidence, took care to describe himself, on repeated occasions, as acting on behalf of Khalidiya. I found this to be an unnatural, and overly defensive, trait, likely to have been driven by his understanding of the central issue in the case being whether he acted personally, or only on behalf of a corporate entity. As I explain below, however, his relationship with Khalidiya is largely irrelevant to the issues I have to decide. Aside from this defensiveness, I found him a truthful witness, candid to accept where he could not remember matters. He was subjected to a sustained and hostile attack on his honesty in relation to his alleged failings to provide a full account of what happened to Mr Kent’s investments. Although, given my findings on the principal issues as set out below, this is irrelevant to the issues I go on to decide in this judgment, I found his inability to provide further details to be the product of genuine lack of knowledge and not a sign of dishonesty.

I found that on the whole Mr Kent sought to give honest evidence as to his recollection of events. A fair proportion of his evidence, however, consisted of his subjective understanding of WPB’s position. This was mostly irrelevant to the issues I have to decide, which depend upon an objective assessment of what was said and done at the time. My overall impression was that Mr Kent had persuaded himself, through the course of preparing his evidence in this action, of the merits of his case, and that his evidence as to his subjective understanding was less the product of genuine recollection of matters which took place a decade ago, but was fuelled by his understanding of the legal arguments that underpin his case as currently pleaded (although, as I note below, not as originally pleaded).

At the time of the first business meeting between Mr Kent and WPB, on 16 June 2005 at the Geneva office, WPB was involved with a number of corporate entities.

First, he was a director of Asia IT, a company incorporated in the Bahamas and then owned by Stephen Forsyth and Sheikh Sultan bin Khalifa Al Nahyan of Abu Dhabi. Asia IT was a boutique financial investment house. Its activities were underwriting investments and opportunities in companies in which Mr Forsyth and Sheikh Sultan had, or were interested in taking, positions (both in the form of debt and equity).

Second, WPB was a minority shareholder in, and director of, Khalidiya. He owned 25% of the shares, the other 75% being owned by Mr Forsyth. WPB was also employed by, and received a salary from, Khalidiya. In a letter dated 14 March 2001 Asia IT confirmed the appointment of Khalidiya to represent Asia IT in Europe on a consultancy basis, in return for $100,000 per annum and potential further commissions on a deal by deal basis.

Third, WPB was a director of Zica, another company he had set up with Mr Forsyth to pursue investment opportunities.

Fourth, WPB was a director and executive chairman of Accsys Chemicals Limited. In August 2005 Accsys Chemicals Limited caused Accsys Technologies Limited to be incorporated in order to acquire all of its share capital in a share-for-share swap. I will use the term “Accsys” to refer to each of those companies.

WPB says that there were plaques for each of Khalidiya, Asia IT and Zica outside his office. Mr Kent accepted that there probably were such plaques, but he paid no attention to them.

WPB says that – while he cannot (unsurprisingly) remember the precise circumstances of his conversation with Mr Kent – he would always have given what he described as his “spiel” to any new client, in which he would have explained that Asia IT was a vehicle for Mr Forsyth and members of the Abu Dhabi royal family, and he would have explained how he, on behalf of Khalidiya, introduced investors to Asia IT.

In his original particulars of claim Mr Kent pleaded that at his first meeting with WPB (which he then put in December 2004), WPB said that he conducted investment business through Khalidiya and also referred to his involvement in Asia IT. In his witness statement he said that the pleading had been prepared under pressure and was mistaken. In his oral evidence, he clarified that his original pleading had been mistaken because it referred to discussing WPB’s connections with Accsys, Asia IT, Khalidiya and Zica at their first meeting in December 2004. He accepted, however that they had had such a discussion at an early meeting, which could have been that on 16 June 2005.

It is common ground that the investment opportunity which WPB brought to Mr Kent’s attention on 16 June 2005 was the acquisition of shares in Accsys. There is a difference of recollection between WPB and Mr Kent as to the source of these shares. WPB says that he told Mr Kent that there were some legacy shareholders looking to divest themselves of their Accsys shares ahead of an IPO planned for September 2005. Mr Kent says that he was told that there were some shares held back from a pre-IPO fundraising exercise which had taken place in the last quarter of 2004. In his witness statement he said WPB told him that “the final round of fundraising was complete but he had held back a few Accsys shares “for friends and family” from a recent fundraising exercise that had been undertaken”. In cross-examination he said that “I took this that he wasn’t selling me shares as a director of Accsys but he was letting me have some shares from the previous fundraising round.” Accordingly, he said that he had “assumed” that these would be “fresh” shares. In fact, the seller of the shares was a company called Wenco Limited (“Wenco”), a company under the control of Mr Forsyth. There is no claim either in misrepresentation or breach of contract based on the shares not having been newly issued shares. Ms Newman QC suggested that if it had been agreed that Mr Kent was to acquire newly issued shares then that became a term of the purchase trust, such that if it turned out that fresh shares were not acquired, Mr Kent could recover the purchase money. I consider later the claim that any purchase trust was created.

Either prior to, or at, the meeting, WPB gave to Mr Kent two documents relating to Accsys.

The first was a brochure dated October 2004 relating to the capital raising exercise which had been undertaken by Accsys. It was headed “Asia IT Capital Investments Limited” and was entitled “Pre - IPO round of 14.8mm for Accsys Chemicals managed by ASIA IT”. It stated that two shareholders had subscribed €8.7m and that Asia IT had subscribed the balance of €8.1million. The offer price was €0.46 per share. I note in passing that it should have been obvious from this document, if Mr Kent believed he was getting shares from this first round of fundraising, that any shares he was to purchase would not be fresh shares, as the document indicated that the full amount of the shares had already been subscribed for.

The second document given to Mr Kent was another document headed “Asia IT Capital Investments Limited” and provided a summary of a PricewaterhouseCoopers commercial evaluation report on Accsys.

It is also common ground that Mr Kent was given a business card by WPB at this meeting. Mr Kent says that it was a single-sided business card referring only to WPB as managing partner of Asia IT, giving the Geneva office address. WPB says that he handed him a double-sided card – on one side referring to him as a director of Khalidiya (giving the Geneva office address) and on the other side referring to him as a director of Asia IT (giving a London address). It does not matter which of them is correct, since in either event the business card clearly identified WPB as a director or managing partner of Asia IT.

Mr Kent accepted in cross-examination that on receipt of the Asia IT brochure on the Accsys fundraising he would have known that Asia IT had been retained by Accsys to provide services to it in respect of the fundraising. When it was put to him that he must, therefore, have known that Asia IT would have been paid for those services, he said that he had not thought about it. He said that he looked at this document as providing information on Accsys, that he “rather glanced over the Asia IT bit” and that he did not consider whether or not it was being paid.

According to the Claimant, WPB spoke, at the meeting on 16 June 2005, of the opportunity to purchase shares in Accsys in optimistic terms. Indeed, the Claimant says that WPB always spoke in optimistic terms about the investments he was offering. I accept this evidence, which is corroborated by the enthusiasm WPB regularly demonstrated in emails sent to Mr Kent relating to the investments he promoted over the following years.

Following the meeting, WPB emailed Mr Kent on 20 June 2005, providing him with contact details of a relocation agent, an accountant and a lawyer, all in Geneva. He added: “Bankers we can deal with when you are here.” The terms of this email indicate that WPB was made to believe that Mr Kent was actively pursuing a move to Switzerland.

On 22 June 2005, Mr Kent emailed WPB. Having referred to certain personal matters, he wrote:

“I also read the Accsys material and would be very interested in taking up your offer and purchasing some shares. Perhaps you could let me know what quantity of shares could be available to me at this stage? Of course if that were a significant number I will then have to decide how much I can sensibly invest.”

It is apparent from the next email sent by WPB on 24 June 2005 that the two men spoke by phone on that day, when they discussed the number of shares Mr Kent wanted, the fact that a friend of Mr Kent’s also wanted some shares, and the price at which they would be acquired. In the email, WPB said:

“It was good to chat today, and delighted for you and your friend Ian to get involved in Accsys. I attach 2 separate forms. One for Ian for 100,280 which rounds up to 218,000 - I have left it blank - he can either complete as per your form, or do it his own way. For your form I rounded it to 2 Million shares even which is 920k - adjust that if you are not comfortable but I rounded for the sake of convenience. As mentioned - just complete the forms, fax them back to me, transfer as per the instructions, I will then confirm receipt and issue the certificates.”

Two million shares at a price of €920,000 equated to €0.46 per share, the same as the offer price of the fundraising exercise in 2004. WPB’s email signature was followed by the words: “Managing Partner, Asia I.T. Capital Investments Ltd” and the Geneva office address.

The forms attached to the email were on the headed paper of Asia IT. Although unsigned, the signature block on the letters stated “William Paterson-Brown, Director”. The first related to shares being purchased by Mr Kent. The name of the investor was stated to be “Asia I.T. Nominees Ltd, A/C JK”, and its address was c/o Zica SA, 15 rue de la Confederation, Geneva. The letter stated:

“We do hereby confirm that in consideration for your having agreed to remit to us the sum of 920,000 (Nine Hundred and Twenty Thousand Euros), we have today caused to be allotted to you 2,000,000 (Two Million) Ordinary Shares. These shares are presently being held to your order and represent a purchase price of 0.46 per share.”

The bank details for payment of the purchase price were given as RBS, for the client account of Jerrard Saunders Donn (“JSD”). JSD was a firm of lawyers acting for Asia IT. Mr Kent acknowledges that he knew that this was a law firm acting for Asia IT, that he was being asked to send money to a client account in the name of Asia IT, and that Asia IT would therefore exercise control over the money in the account.

Mr Kent signed and returned the subscription form. In the meantime, he had decided that the purchase would be split equally between him and his pension fund. Accordingly, he added the name - “Parlick Properties DPS” - and the address for the pension fund to the subscription form.

Share certificates were issued by Accsys on 11 July 2005, one in the name of Asia I.T. Nominees Ltd A/C JK, for 1,000,000 shares, the other in the name of Parlick Properties DPS, also for 1,000,000 shares. On 10 August 2005 WPB emailed Mr Kent to inform him that he had his Accsys certificates, and asking: “Would you like me to hold originals and send copies or send originals or send the Parlick one and hold the AIT one?” The original of the Parlick Properties share certificate was sent to the trustees of Mr Kent’s pension fund. The original of the other certificate was retained by WPB, but a copy was sent to Mr Kent.

Mr Kent asserts that on the basis of the above matters, an agency relationship was created between him and WPB. It is not alleged that this constituted a contract under English law, since it is accepted that no consideration was provided by Mr Kent. It is nevertheless common ground that the EEC Convention on the Law Applicable to Contractual Obligations 80/934/EEC (the “Rome Convention”), which has effect in England pursuant to section 2 of the Contracts (Applicable Law) Act 1990 (the “1990 Act”), applies.

The relevant articles of the Rome Convention are as follows:

“Article 3

Freedom of choice

1.

A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or a part only of the contract …

Article 4

Applicable law in the absence of choice

1.

To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law of the country with which it is most closely connected.

2.

Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration. However, if the contract is entered into in the course of that party's trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated.

…

5.

Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country.

…

Article 10

Scope of the applicable law

1.

The law applicable to a contract by virtue of Articles 3 to 6 and 12 of this Convention shall govern in particular:

(a)

interpretation;

(b)

performance;

(c)

within the limits of the powers conferred on the court by its procedural law, the consequences of breach, including the assessment of damages in so far as it is governed by rules of law;

(d)

the various ways of extinguishing obligations, and prescription and limitation of actions;

(e)

the consequences of nullity of the contract.”

In this case, where it is denied that there was any relationship of agency at all, the parties agree that the Rome Convention applies by reference to such legal relationship as would exist on the assumption that the Claimant’s argument as to its existence was correct, in order to determine (a) whether that relationship was one of agency and (b) the parties to such relationship.

Mr Kent claims, first, that there was an implied choice that the parties' relationship would be governed by English law (applying article 3(1)). In the alternative, he claims that in all the circumstances the parties' relationship was most, or more, closely connected to English law (applying articles 4(1) and 4(5)).

Section 3 of the 1990 Act provides that, alongside the decisions of the Court of Justice of the European Union, the court may also consider the report on the Rome Convention by Professors Giuliano and Lagarde. As regards Article 3, the report states that:

“The choice of law by the parties will often be express but the Convention recognizes the possibility that the Court may, in the light of all the facts, find that the parties have made a real choice of law although this is not expressly stated in the contract. For example, the contract may be in a standard form which is known to be governed by a particular system of law even though there is no express statement to this effect, such as a Lloyd's policy of marine insurance. In other cases a previous course of dealing between the parties under contracts containing an express choice of law may leave the court in no doubt that the contract in question is to be governed by the law previously chosen where the choice of law clause has been omitted in circumstances which do not indicate a deliberate change of policy by the parties. In some cases the choice of a particular forum may show in no uncertain manner that the parties intend the contract to be governed by the law of that forum, but this must always be subject to the other terms of the contract and all the circumstances of the case. Similarly references in a contract to specific Articles of the French Civil Code may leave the court in no doubt that the parties have deliberately chosen French law, although there is no expressly stated choice of law. Other matters that may impel the court to the conclusion that a real choice of law has been made might include an express choice of law in related transactions between the same parties, or the choice of a place where disputes are to be settled by arbitration in circumstances indicating that the arbitrator should apply the law of that place. This Article does not permit the court to infer a choice of law that the parties might have made where they had no clear intention of making a choice. Such a situation is governed by Article 4.”

In Egon Oldendorff v Libera Corpn [1996] 1 Lloyd's Rep 380, Clarke J said that it is plain that Article 3 “contemplates an implied choice of law provided that the choice is a real choice which appears with sufficient clarity from the terms of the contract as a whole or the circumstances of the case”.

There was no discussion at the time between Mr Kent and WPB as to whether WPB was assuming any legal obligation at all. Not surprisingly, therefore, there is no evidence that they gave any consideration as to what law might govern such obligations. In those circumstances, there can be no question of there having been any implied choice of governing law. Accordingly, the governing law of the Purchase Agreements must be determined in accordance with Article 4.

Mr Kent accepts that there is a presumption that Swiss law applies, since WPB, being the party who was to effect the performance which is characteristic of the agency relationship (if such agency exists), was habitually resident in Switzerland. He also accepts that in order to displace the presumption, the evidence must “clearly show” that the contract (or non-contractual agency) was more closely connected with another country: Ennstone Building Products Ltd v Stanger Ltd [2002] 1 WLR 3059, at [41]. Put another way, it must be shown that there was a “preponderance of contrary connecting factors” in favour of another system of law: Samcrete v Land Rover [2001] EWCA Civ 2019, per Potter LJ at [4].

Mr Kent contends that the presumption is displaced in favour of English law, on the basis of a number of factors, which I address in turn.

First, Mr Kent was living in England at the time. In the context of a non-contractual agency, where the agent is the only party performing any obligations, I consider that little, if any weight, is to be given to the residence of the purported principal. In any event, the context of the first meeting was that Mr Kent was looking to move to Switzerland. That was the reason Mr Kent was introduced to WPB in the first place, and is clear from the terms of WPB’s email of 20 June 2005. That would further minimise such weight as might otherwise be given to England as the then residence of Mr Kent.

Second, the parties communicated exclusively in English. While the language of a written contract might in some cases be an indication as to its governing law, where the relationship is said to have been created orally (on a “handshake” as Mr Kent repeatedly said), then I cannot see that the language in which the parties spoke is to be given any weight. Mr Kent did not speak French or German. Accordingly, they necessarily spoke in English, the native language for both of them.

Third, Mr Kent was at all times unaware of Swiss law and customs, and was entirely grounded in English law and customs, as known to WPB. There is no reason in my judgment to give this factor any more weight than the first, in the context of a relationship where the only party assuming obligations was WPB. This is even more so, where Mr Kent was looking to move to Switzerland. There is no evidence that there was any consideration by them of the extent to which they were familiar with the “laws and customs” of either country.

Fourth, the parties were introduced by English friends. This has no bearing on which law was to govern their relationship.

Fifth, at one stage WPB referred to “beneficial ownership”, which is a concept characteristic of English law. He did so in an email dated 24 April 2006. It accordingly has no relevance to the law governing the relationship as at June 2005. In any event, in a communication between non-lawyers, a reference to “beneficial ownership” is hardly likely to have been understood as a reference to the English law concept of trust. This is particularly the case when, as WPB said (and I accept), the phrase is one commonly used in Switzerland when describing someone for whom shares are held as nominee, notwithstanding there is no concept of a trust in Swiss law. That was the context of its use in the email of 24 April 2006.

Sixth, Mr Kent and WPB both regularly visited (albeit separately) England for business and personal reasons. This is of no consequence, in my judgment, when all of their meetings to discuss business occurred in Switzerland.

Seventh, many of the companies in which Mr Kent acquired shares were registered, or had their main offices, in England, or were due to be listed on the London Stock Exchange Alternative Investment Market. It is true, focusing on the first transaction, that Accsys was an English company. While that might be a pointer towards English law applying to a contract between seller and purchaser in respect of shares in Accsys, that is not the relevant legal relationship contended for here. Mr Kent’s case is that there was a relationship of agency between him and WPB. I do not accept that, at the time of the first transaction, it was envisaged by Mr Kent that it was to be the only transaction. He had been introduced to WPB as someone who was involved in investments (plural) and not merely because he was involved in Accsys. There is no evidence that there was any discussion, let alone agreement, that the companies to be promoted in the future would be incorporated in, or floated on an exchange, in England. Accordingly, little weight in my judgment is to be attached to the fact that Accsys was an English company when considering the law applicable to the relationship between Mr Kent and WPB.

Eighth, it is alleged that WPB caused Mr Kent to believe that WPB’s investment interests were centred in London. In my judgment, this adds nothing to the seventh point. The location of WPB’s own investment interests is of little relevance to the question which law should govern Mr Kent’s relationship with WPB even if (as Mr Kent says) it was Mr Kent’s subjective understanding that their business interests were aligned.

In his closing submissions, Mr Kent also relied on the fact that the JSD account, to which purchase monies were to be sent, was an account with a firm of English solicitors, and that TPB suggested that the reason for this might have been in order to provide comfort to UK-based investors. This suggestion was made long after the event, and WPB himself did not know why the JSD account was used. Mr Kent knew, at the time, that the beneficial owner of the account was a foreign corporation. Accordingly, while this is a factor pointing towards English law, it carries little weight.

Finally, Mr Kent’s closing submissions also identify the fact that the “back-office” function in relation to his share purchases was carried on by Mr Sandys in London. There is no evidence that Mr Kent knew this at the time of the first transaction. Moreover, Mr Sandys carried out the back-office functions for Asia IT, and its associated companies. In circumstances where Mr Kent’s allegation is that WPB was personally obligated to him as his agent, it is the functions to be carried out by WPB that are of critical importance in considering the applicable law of that relationship.

Taking together all of the factors relied on by Mr Kent, I am satisfied that they do not get close to “clearly showing” that the alleged agency relationship is more closely connected with England. Accordingly, I find that the presumption that Swiss law would apply to such a relationship is not displaced.

Having read and heard expert evidence from two Swiss lawyers, Mr Saverio Lembo for Mr Kent and Professor Felix Dasser for the Defendants (both of whom were accepted as experienced and respected experts), it is clear that Swiss law, so far as it concerns questions as to the existence, parties and terms of contractual arrangements, is in most respects the same as English law. The principal material difference is that under Swiss law the absence of consideration is not a bar to the formation of a contract, so that the agency relationship between Mr Kent and WPB (if it existed at all) would be characterised as contractual.

According to the agreed statement of the experts, under Swiss law,

“a contract is executed by a mutual expression of intent by the parties (i) to be bound in law and (ii) to be bound by certain rights and obligations. Without the intention to be bound in law there cannot be a contract, but e.g. a mere courtesy. The consensus must cover the so-called essential elements of the contract, i.e. the provisions that form the necessary core of a contractual relationship, such as e.g. the kind of service required and the compensation due (if any).”

The agreed statement continued:

“If, as a matter of fact, an actual common intent or natural consensus of the parties - i.e. a meeting of the minds - cannot be proven, a contract can still be executed by means of a "normative consensus" by applying an objective test based on the principle of trust (''principe de confiance''). The court needs to consider how a fair and reasonable person in the shoes of the recipient of a declaration of intent could and had to understand such declaration in good faith taking into account the wording but also all other circumstances that were or should have been known at the time.”

This approach (first, to enquire whether there was a subjective meeting of minds and, second, to apply an objective test) applies to each of the following questions: (1) whether there was a contract at all (which encompasses the question whether there was a mutual intention to enter into a legally binding relationship); (2) who were the parties to the contract (which encompasses the question whether one of the parties acted in relation to the other as agent for a third party); and (3) what were the terms of the contract.

Each expert agreed, in cross-examination, that there is no limit on what the court may take into account, as part of the background circumstances, in determining the answer to these questions, save only that reference may not be made to matters that occurred after the execution of the contract. Professor Dasser referred to a number of factors which in his opinion would be taken into account by a Swiss court. Given, however, that both experts were in agreement that the question as to which factors should be taken into account in a given case, and the inferences which may be drawn from those factors, were matters of fact for the judge, it is unnecessary to refer further to that part of his evidence.

Where the question is whether a contract of agency existed as between Mr Kent and WPB then the requirement for a mutual expression of intent is determined, in the absence of an actual common intent, objectively by reference separately to the position of each party. As explained by Professor Dasser (and accepted as accurate in the joint report) a Swiss court would

“…analyse all the circumstances of the case to determine whether, first, the Claimant, acting in good faith, could and had to understand that the First Defendant acted on his own behalf or, rather, as a representative or employee of Khalidiya (or another company). If that is established, the court would then assess whether the First Defendant, acting in good faith, could and had to understand that the Claimant was requesting such services from the First Defendant in his personal capacity, thus finding a match between the objective understanding of the two parties.”

No particular form is required for contracting. The agency contract can therefore be concluded orally or by conduct.

Mr Kent’s pleaded case is that as a result of (1) his conversation with WPB on 16 June 2005, (2) his acceptance of WPB’s offer to acquire shares in Accsys, (3) WPB’s email of 24 June 2005 enclosing the allotment letters and instructions for payment, and (4) the transfer of funds by Mr Kent and Parlick to the JSD client account, an agreement was reached. That agreement was that WPB would purchase 2,000,000 shares in Accsys on behalf of Mr Kent using the funds sent to the JSD client account.

Mr Kent also alleges that the agreement contained express, or implied terms, that the Accsys shares would be newly issued shares and that the €920,000 would be used as working capital by Accsys.

It is apparent from the pleading, therefore, that there are two essential matters that Mr Kent must prove. First, that insofar as he entered into any agreement relating to the purchase of the Accsys shares, it was an agreement with WPB personally, and not with Asia IT or any other corporate entity. Second, that pursuant to such agreement, WPB undertook to buy the shares on behalf of Mr Kent as his agent. If those matters are established, then Mr Kent would have to establish the precise terms of that agency arrangement in order to identify the nature and content of any fiduciary duties owed.

In my judgment, for the reasons that follow, Mr Kent has failed to establish either of the essential matters.

I should first say a word, however, about the role of Khalidiya in relation to this transaction. WPB was at pains to point out that in introducing investment opportunities to Mr Kent, he always acted in his capacity as a director of Khalidiya, such that he never entered into any personal relationship with Mr Kent. It is pointed out on behalf of Mr Kent, however, that there is no reference to Khalidiya in any email passing between him and WPB in relation to this transaction, or indeed any other transaction until after Mr Forsyth’s death in 2007. Apart from the presence of a Khalidiya plaque (among others) at the Geneva office, and the fact that the spiel given by WPB to Mr Kent would have encompassed what he did for Khalidiya, there was no mention of Khalidiya’s role in the transaction.

In my judgment, the relationship between WPB and Khalidiya is largely irrelevant to the issues I have to decide in relation to the first transaction, and all subsequent transactions until after Mr Forsyth’s death. While I have no doubt that WPB saw himself as acting on behalf of Khalidiya (given that he was employed by Khalidiya which, in turn, was contracted to operate as representative of Asia IT in Europe), I think it unlikely, at the time, that he gave any thought to this insofar as his dealings with Mr Kent were concerned. That is because his role, on behalf of Khalidiya, was limited to promoting investments to clients and potential clients. WPB accepted in cross-examination that, in doing so, at no stage did he understand that he was either (a) causing Khalidiya to assume any obligations towards Mr Kent, or (b) inviting Mr Kent to assume any obligations towards Khalidiya. If a client wished to take up an opportunity for investing, then the transaction was conducted with a different corporate entity, usually Asia IT, at least prior to Mr Forsyth’s death. Accordingly, the relationship between WPB and Khalidiya was at the time of no legal or practical significance in so far as his dealings with Mr Kent, or any other client, were concerned.

There is no evidence of any mutual expression of intent by Mr Kent and WPB to the effect that WPB would assume any personal obligation to act as Mr Kent’s agent in the purchase of Accsys shares. Under Swiss law, therefore, it is necessary to review all the circumstances relating to the first transaction in order to determine whether, from what was said and written by each party, an objective observer would have understood that WPB was agreeing to assume a personal obligation towards Mr Kent as his agent for any purpose. That is essentially the same task that would need to be undertaken under English law.

I have set out in detail at paragraphs 34 to 49 above the content of the communications between Mr Kent and WPB in relation to the first transaction. On the basis of all the circumstances there described, I consider that the reasonable observer would have understood that Mr Kent was being invited to enter into a contract with Asia IT, and not WPB personally, for the purchase of the Accsys shares. In other words, the reasonable observer would not have understood that WPB was undertaking, personally, to purchase the shares for and on behalf of Mr Kent. This conclusion is based on the following matters.

In the first place, the contemporaneous documents point firmly towards WPB acting solely in his capacity as managing partner of Asia IT.

The terms of Mr Kent’s email of 22 June 2005, in which he expressed interest in taking up WPB’s offer of acquiring shares in Accsys and asked for further details, demonstrate that no legal arrangement of any kind had by that date been entered into so far as the purchase of the Accsys shares was concerned.

WPB’s response to that email, at the point in time when an actual purchase was first envisaged, was to send Mr Kent formal documentation, all of which clearly identified Asia IT as the counterparty, under cover of an email expressed to be sent in his capacity as Managing Partner of Asia IT.

Thus, the allotment letter enclosed with that email was on Asia IT letterhead, and the signature block referred to WPB as director of Asia IT. It confirmed that in consideration of Mr Kent having agreed to remit €920,000 “to us” (i.e. to Asia IT), “we” (again, Asia IT) have caused to be allotted 2,000,000 shares. In my judgment, a reasonable recipient of that documentation would have appreciated that it was intended to create a legal relationship, and that the counterparty to that relationship would be Asia IT.

Mr Kent points to the fact that many of the emails from WPB instructed the recipient to reply to a Zica email address, and that WPB often used a personal, aol, email address. I regard this as relatively insignificant, and certainly insufficient to outweigh clear statements in the body of the email and attached documents as to the capacity in which WPB acted.

Mr Kent contends that the allotment letter should be given little weight, in that it contained statements that were obviously not correct. Specifically, given that the 2,000,000 shares had been acquired from Wenco (as opposed to having been issued by Accsys), it is said that the statements that Asia had “caused to be allotted” the shares to Mr Kent, and that it was holding the shares to the order of Mr Kent, were incorrect. Although it is clear that Wenco was the seller of the shares, the precise manner in which Asia IT procured the transfer of the shares to Mr Kent is not known. Accordingly, save for the fact that to the extent that the use of the word “allotted” might indicate that the shares were being issued by Accsys, as opposed to transferred from a third party, it is not established that the contents of the letter were incorrect. Moreover, it is the impact on a reasonable recipient of the letter that matters. As to that, the letter clearly indicates that so far as WPB was involved in this transaction, he was doing so as managing director of Asia IT, and that Asia IT itself was undertaking the obligation to procure that Mr Kent received the shares.

The attachments to the email also included an instruction to pay the purchase price to the JSD account. Since Mr Kent accepts that he knew at the time that the JSD account was a client account for Asia IT, and that it was therefore Asia IT that could assert control over it, I have no doubt that the reasonable observer with such knowledge would have understood that he or she was being asked to send the purchase money for the benefit of the corporate entity, Asia IT.

As against the clear impression given by the contemporaneous documentation, Mr Kent cannot point to anything said by WPB, either at the meeting on 16 June 2005 or in a subsequent telephone conversation, that would have indicated to a reasonable observer that WPB had personally undertaken to acquire the shares on Mr Kent’s behalf.

So far as the meeting on 16 June is concerned, I am satisfied (given Mr Kent’s acceptance of being told about his involvement with Asia IT and Khalidiya at an early meeting) that WPB did give Mr Kent his “spiel” about his involvement in the various corporate entities (in particular Asia IT). This is corroborated by the fact that he provided numerous documents identifying both (i) Asia IT as the contracting party, and (ii) his role as managing partner or director of Asia IT, without provoking any response or query from Mr Kent.

Mr Kent points to the fact that WPB used the singular personal pronoun and referred to Asia IT as “his group”.

It is true that WPB used the word “I” six times in his email of 24 June 2005. I do not, however, place any significance on this. In the context of the email and its attachments as a whole, it would have been clear to the reasonable observer that when WPB wrote “I” he was referring to himself in his capacity as director of Asia IT. There would be nothing unusual, in my view, in a natural person, acting in their capacity as a corporate representative, using the singular personal pronoun when communicating with third parties on behalf of the corporate entity. A reasonable observer would not conclude from the use of the singular personal pronoun that the person was intending to assume personal obligations.

So far as the references to “his group” were concerned, even if Mr Kent had (mistakenly) taken that to mean that WPB was ultimate owner of the group of companies, that would not suggest to a reasonable observer that when dealing in the name of a company in that group it was WPB’s intention that he would be dealing personally (as principal) through the medium of that company (as agent). In any event, I do not accept that Mr Kent understood from references to “his group” that WPB owned Asia IT. That is inconsistent with the “spiel” which I have found WPB gave him in relation to his companies, and with the fact that Mr Kent’s initial introduction to WPB was as someone who was part of a group of associates with connections with Abu Dhabi, not as the owner of a group of companies.

Even if a reasonable observer had been led to question the capacity in which WPB was acting, by reason of anything he said at the meeting on 16 June, the terms of the subsequent emails indicated, unequivocally, that WPB was acting as director of Asia IT insofar as the subject matter of those emails was concerned. Mr Kent signed and returned the allotment letter without questioning the capacity in which WPB was stated to be acting.

Mr Kent’s evidence on this issue otherwise consisted of his subjective perception of WPB’s role. For example, he said that he “assumed” that WPB was the principal, and Asia IT the agent and that when he got the allotment letter he “assumed” WPB was using it as a vehicle to supply him with shares, but that he “did not go into it with any deep thought”. He also said that he always thought he was dealing with WPB as a friend, and that the relationship was always a personal one. If he had been dealing with a corporate body, he would have expected to see terms and conditions, and the fact that he did not do so indicated to him that he was dealing with WPB personally. His subjective understanding is irrelevant under Swiss law (as it is under English law), since the question is whether the declarations of each party would have led the reasonable observer to conclude that WPB was entering into a personal contract of agency with Mr Kent.

Accordingly, I find that Mr Kent has failed to establish, pursuant to the test required by Swiss law, that WPB undertook any personal obligation towards Mr Kent in connection with the purchase of the Accsys shares.

In light of this finding, it is unnecessary to consider the second question, whether the nature of any obligation undertaken by WPB was to act as Mr Kent’s agent in the acquisition of the Accsys shares.

Nevertheless, had I been required to do so, I would have rejected that contention for the following brief reasons.

It is essential to Mr Kent’s claim that WPB assumed obligations of loyalty towards Mr Kent, in particular the fiduciary duty not to allow his personal interests to conflict with his duty to Mr Kent, and the fiduciary duty not to make a secret profit. It would, however, have been obvious to the reasonable observer from the documentation provided to Mr Kent, and from the conversation with WPB on 16 June 2005, that WPB occupied at least two positions that would have been intrinsically inconsistent with him undertaking any personal obligation of loyalty towards Mr Kent in relation to the sale of the Accsys shares. First, he was executive chairman of Accsys. Second, he was director of Asia IT, a company that provided services to Accsys in connection with its capital-raising exercise, and for which it would have been entitled to a reward.

While I do not suggest that it is impossible for someone occupying those positions to have undertaken duties of loyalty towards a purchaser of shares, the natural inference to be drawn when they offer shares for sale is that they are doing so in the capacity of salesman, not offering to act as agent for the purchaser. That is consistent with WPB’s case that his role throughout was one of promoting investments in companies to Mr Kent, rather than offering to act on Mr Kent’s behalf to find investment opportunities for him.

The fact that Mr Kent himself appreciated this is apparent from his original particulars of claim, in which he positively asserted that WPB was in the business of “promoting investment in shares in companies”. Moreover, that is the conclusion most consistent with the fact that (1) all of the investment opportunities were in companies which WPB himself and/or his associates (in particular Asia IT, Mr Forsyth or TPB) were either already invested in, or were assisting in raising capital; and (2) as Mr Kent said, WPB invariably described the investments in enthusiastic terms.

If I am wrong that Swiss law governs the alleged agency relationship, then I would reach the same conclusion as a matter of English law.

Under English law, the question whether WPB was appointed agent for Mr Kent in relation to the first transaction, in the absence of an express appointment or written agreement, is to be determined by reference to all of the background facts reasonably available to the parties at the time of the alleged appointment. That is essentially the same exercise as the one I have undertaken in the application of Swiss law, and the outcome is the same.

Contrary to submissions made on behalf of Mr Kent, at no point was WPB purporting, or given power, to affect Mr Kent’s legal relations. Mr Kent was not legally obliged to do anything until the point in time he signed and returned the Asia IT allotment letter, in which he entered into a contractual arrangement with Asia IT. At no time did WPB do anything himself which caused Mr Kent to assume a legal obligation to any third party. Nor did WPB ever exercise control or dominion over any funds belonging to Mr Kent. Mr Kent transferred the purchase price directly to Asia IT.

It was contended on behalf of Mr Kent that a person such as WPB is prima facie personally liable for any agreement/arrangement he enters into, and it is up to him to negate that personal liability by showing that he made it clear to Mr Kent that he was dealing with him as agent. I disagree. At paragraph 56 of Mr Kent’s skeleton argument, the position is correctly stated as follows: “the identity of a party to an agreement is a factual question to be decided objectively on the basis of all the evidence”: Estor Ltd v Multifit (UK) Ltd [2009] EWHC 2565 (TCC), per Akenhead J at [26]. This was echoed by Males J in Cifal Group SA v Meridian Securities (UK) Ltd [2013] EWHC 3553 (Comm), at [88]: “in the case of oral contracts, the question whether an agent is personally liable will depend on all the circumstances.”

Even if WPB was required to rebut a presumption that he was personally liable, in circumstances where he emailed Mr Kent as director of a corporate entity, and in that capacity enclosed contractual documentation of the corporate entity to be signed and returned by Mr Kent, I would find that the presumption was clearly rebutted.

Mr Kent contends that the governing law of the alleged purchase trust in connection with the first transaction was either the law expressly or impliedly chosen by Mr Kent as the settlor or, in the absence of choice, the law with which the parties’ relationship/arrangements are most closely connected. WPB contends that the law governing the alleged purchase trust (which is a species of resulting or constructive trust) is the same as the law governing the underlying alleged agreement.

In my judgment, the Defendants’ definition of the test is the correct one: see Dicey Morris & Collins on the Conflicts of Laws (15^th ed), Rule 172(1) (paragraph 29R-075): “The law applicable to a cause of action or issue determines whether a person is required to hold property on constructive or resulting trust”. Given my conclusions on the law governing the alleged agency relationship, it follows that Swiss law governs this issue.

I would in any event reach the same conclusion on the basis of the Claimant’s definition of the test. There is no evidence that Mr Kent turned his mind to the possibility of the creation of a trust of any kind. Accordingly, there is no evidence that he expressly or impliedly identified the system of law to govern such a trust. For the reasons I have set out in concluding that Swiss law applies to the alleged agency relationship, I would also conclude that the law with which the arrangement between the parties to the alleged purchase trust is most closely connected is Swiss law.

Mr Kent accepts that, since Swiss law does not recognise the trust concept, this aspect of his claim necessarily fails if the issue is governed by Swiss law. I will nevertheless address this question in the event that English law applied.

The fundamental problem with the claim is that WPB did not himself hold any title to the purchase money so that, even if a trust is established, it cannot give rise to any claim for an account against WPB as trustee.

The funds were paid into Asia IT’s client account with JSD. Mr Kent’s case rests on the contention that Asia IT was the agent of WPB for the purposes of holding the funds relating to the purchase of the Accsys shares.

WPB was not a shareholder in Asia IT. It was under the control of Mr Forsyth. There is no evidence to indicate that Asia IT was (generally) WPB’s agent or nominee, so as to make him the beneficial owner of its assets.

While it is theoretically possible that Asia IT was acting as WPB’s agent specifically in relation to the transaction, so that it held rights against JSD in respect of the purchase money provided by Mr Kent as agent for WPB, that is not tenable in light of my conclusions on the question whether WPB was Mr Kent’s agent. The question here arises simply between Asia IT was WPB (was Asia IT holding funds on behalf of WPB?) so that the views of the reasonable observer in the position of Mr Kent are not relevant. Nevertheless, it is apparent from my summary of the facts relevant to alleged agency relationship that there is no admissible evidence to establish that a reasonable observer would consider that Asia IT held funds on behalf of WPB. The only evidence as to this was Mr Kent’s subjective (and therefore irrelevant) perception that WPB was the principal, and Asia IT his agent.

If and to the extent that WPB had power to give directions to JSD in respect of the funds in the Asia IT client account (which WPB denies) then I find that such power derived from his position as director of Asia IT. Although it has long been recognised that a director of a company, while not a trustee of the company’s assets, owes trustee-like duties to the company in respect of its assets, that does not mean that a director owes such trustee-like duties to a third party, for whose benefit the company holds assets as trustee. Accordingly, even if Asia IT was a trustee of the purchase money for Mr Kent, that was insufficient to render WPB a trustee for Mr Kent.

The Defendants contend that there is no possibility of a Quistclose trust arising because the funds were transferred to Asia IT as seller of the shares, and there is nothing to suggest any intention that Asia IT, as seller, could not use the funds received by it for its own purposes. That might be relevant to a claim based on a Quistclose trust against Asia IT, but since no such claim is asserted in this action I need not consider it further, save to note that it depends upon the role Asia IT played in the acquisition of shares from Wenco, which is not clear.

In light of these conclusions, I find it unnecessary to determine whether it was a term of the purchase agreement that the shares would be ‘fresh’ shares, such that the purchase money would be used to provide working capital to Accsys. Had it been necessary to do so, I would have found that there was no such term. There is no reference to it in any contemporaneous document and it is inconsistent with the fact (as revealed by the documents provided to Mr Kent at, or prior to, the meeting on 16 June 2005) that the shares which, on Mr Kent’s case, he believed he was getting were shares that had been issued, and fully subscribed for, in capital raising exercise of October 2004.

The parties are agreed that the law governing the existence and terms of any trust over the shares, once acquired, is either the law chosen by the settlor, or in the absence of such choice, the law with which the trust is most closely connected.

I find that there is no evidence of any express or implied choice of law in relation to the holding of shares for Mr Kent. The alleged trust arises from WPB holding shares on behalf of Mr Kent. It is closely related to the allegation of agency, since the claim in agency is that WPB undertook to acquire shares on behalf of Mr Kent, and the trust relates to the holding of those shares pending transfer of the shares into Mr Kent’s name. Accordingly, in my judgment, the law with which the trust is most closely connected is the same law with which the alleged agency relationship was most closely connected, namely Swiss law.

Swiss law does not recognise the concept of trust. However, if it is established that WPB agreed to have custody of Mr Kent’s shares then the Claimant contends that a contractual duty to account would arise under Swiss law. Professor Dasser accepted that where A holds shares as nominee for B Swiss law recognises a contractual duty to account, which could extend to explaining what the custodian had done with the shares while in his custody, even if the shares were eventually transferred to the principal.

Whether the share trust claim is governed by Swiss or English law, however, Mr Kent’s claim depends upon WPB having himself held title to, or title to an interest in, the shares.

In relation to the Accsys shares purchased in July 2005, it is common ground that, as to 1,000,000 shares, they were held by Parlick in its own name. The share certificate was sent to Parlick. Accordingly, no possible trust claim arises in relation to those shares. As to the other 1,000,000 shares, they were held by Asia Nominees in the name “Asia I.T. Nominees Limited a/c JK”. The allotment letter, and the register of Accsys shareholders at the time confirm that the shares were held by Asia Nominees as nominee for Mr Kent.

It is accepted that Mr Kent agreed to the shares being held by Asia Nominees. There is a dispute as to whether that was because Mr Kent asked for it, or because WPB suggested it. I do not find it necessary to resolve that dispute. Whichever of them suggested it, there is no doubt that it was agreed that the shares would be held by Asia Nominees as nominee for Mr Kent.

The only circumstances in which WPB could be found to be the trustee of these shares, notwithstanding the fact that they were held by Asia Nominees is if either (a) Asia Nominees was, generally, his agent, so that its assets were held on his behalf; or (b) Asia Nominees held the shares for him, and he in turn held his rights against Asia Nominees for the benefit of Mr Kent (under a sub-trust, or sub-custodian, arrangement such as that commonly used in the field of intermediated securities).

I reject both possibilities as a matter of fact. As to the first, I am satisfied that Asia Nominees was not, in a general sense, the agent of WPB so at to render him the owner of its assets. He was not a shareholder, whether directly or indirectly, in Asia Nominees, and there is no other evidence that Asia Nominees held its assets generally, on his behalf.

As to the second possibility, the shares once acquired were held by Asia Nominees as nominee for Mr Kent, not for WPB. There was a direct legal relationship between Mr Kent and Asia Nominees. That is clear from the form of the share certificate, which identifies the holder as “Asia IT Nominees Limited a/c JK”.

In closing argument, it was suggested on behalf of Mr Kent that WPB assumed the role of custodian or trustee because the share certificate of the shares issued in the name of Asia Nominees for the account of Mr Kent was retained by him in the Geneva office. I do not accept this. The most that could be said was that WPB was bailee of the certificate, being evidence of Asia Nominees’ title. This would not have affected the conclusion that legal title to the shares was vested in Asia Nominees, which held them as nominee directly for Mr Kent.

It is true that in some emails WPB used language such as “I will hold” shares in the Asia IT Nominee account. I find, however, that this was no more than an informal shorthand for WPB arranging (in his capacity as director of Asia IT) for the shares to be held in the Asia Nominees account for the benefit of Mr Kent.

Accordingly, I reject the claim that WPB was trustee of the shares under English law (or a custodian of the shares under Swiss law) so as to render him personally liable to account for the dealings with the shares.

No arguments were addressed by the parties as to the governing law of the later transactions separately from the arguments advanced as to governing law relating to the first transaction. It was common ground that the answer in respect of the first transaction was likely to govern the remaining transactions. In my judgment, there was nothing in the circumstances relating to the second or subsequent transactions that indicates any different conclusion – as to governing law – to that I have reached in relation to the first transaction. If anything, the factors pointing towards English law are weaker in relation to later transactions since, from the date of the second transaction, it was clear that the subject matter of the acquisitions included shares in non-UK companies and, by March 2006, Mr Kent had moved permanently to Switzerland. Accordingly, I conclude that the question whether WPB undertook personally to act as Mr Kent’s agent in respect of all subsequent transactions is governed by Swiss law.

Turning to the substantive question, it makes sense (as the parties agreed) that the relationship applicable to later transactions was likely to be the same as that established in the context of the first transaction. Where the reasonable observer had concluded that WPB was not acting personally as Mr Kent’s agent in connection with the first investment promoted by WPB, in June 2005, then he or she would likely reach the same conclusion in relation to later investments suggested to Mr Kent by WPB, in the absence of either specific agreement to the contrary (so as to satisfy the Swiss law test of a subjective meeting of minds) or a significant change in circumstances (such that, pursuant to the objective test applicable under both Swiss and English law, it was clear that WPB was undertaking a personal liability to act on behalf of Mr Kent in relation to the later purchases).

In this regard, there is force in the submission of Mr Weisselberg QC for the Defendants, that it is unlikely that a person in WPB’s position, having acted on behalf of a corporate entity at the outset, would be “stepping personally into the ring” and assuming personal liability as an agent in later transactions.

I turn, therefore, to address the circumstances of the later transactions prior to Mr Forsyth’s death. There were 13 in all, as follows:

The first of these transactions occurred in October 2005. Mr Kent met WPB in Geneva in early September 2005. WPB asserts that Mr Kent wished to meet in order to discuss other investment opportunities that might be available to him. WPB was at this time heavily engaged in the IPO in relation to Accsys, promoting it via various roadshows. Mr Kent denies that he was looking to make further investments. It does not matter who is right about the initial impetus for this meeting. Whether WPB promoted an investment in Medicsight Inc, unprompted, or Mr Kent came to him looking for further investments, does not assist either way in determining whether WPB assumed personal obligations as agent for Mr Kent. It is common ground that they discussed at this meeting the possibility of Mr Kent investing in Medicsight Inc, which was a company incorporated in the United States run by TPB.

WPB suggested that Mr Kent might swap some of his Accsys shares into Medicsight. In an email of 12 October 2005 to Mr Kent he explained his reason behind the swap suggestion was to “crystalize some gain and go into another deal with similar return potential thereby hedging a little.” He suggested it was a good opportunity, and finished his email: “Not a problem, of course, if you prefer not to, however I think it is a good one.” He said that there would be no problem as regards capital gains tax “… as the shares are held offshore by Asia IT and would be for both positions – just a paperwork transaction for me to arrange and then hold here for both entities as before for you.”

Mr Kent agreed and indicated that he wished to fund part of the purchase with a sale of Parlick’s Accsys shares and make up the difference with cash from Parlick. WPB emailed Mr Kent on 13 October 2005 saying “Ok, done. Will buy 150,000 Medicsight at $4 per share ($600k) and pay for it by selling a net 420,000 Accsys from Parlick, leaving 580,000 Accsys in Parlick, post the additional 100k you just put in.”

Later the same day, WPB emailed Mr Kent in the following terms:

“Parlick sent 100k recently, so that, plus selling 420k shares of Accsys gives 150k shares of Medicsight. That leaves you with 680k shares of Accsys and 150k shares of Medicsight in Parlick (plus your other piece in Accsys that I hold). 500k Euros buys $600k Dollars (150k shares at $4), so 100k cash plus 399k proceeds from selling 420k shares at net 0.95 (CS fees, transfer and stamp duty). Hope that is clear but let me know if you need any thing further - obviously we can chat about it if you like too.”

On 3 November 2005 WPB emailed Mr Kent information on Medicsight. On 28 November 2005 WPB wrote, as managing director of Asia IT, on Asia IT headed paper to Parlick, enclosing share certificates for Parlick’s holdings in Medicsight and Accsys, and saying “With both investments, my recommendation would be to take an eighteen months view.”

I do not regard the circumstances of the second transaction as sufficiently changed from the first transaction to cause the reasonable observer to conclude that WPB had undertaken a personal obligation to acquire shares on behalf of Mr Kent. It would have been clear from the reference in WPB’s email of 12 October 2005 to the shares for both positions being held by Asia IT that he was continuing to act in his capacity as director of Asia IT. That was also apparent from the letter from Asia IT to Parlick dated 3 November 2005 under cover of which the share certificates in Medicsight and Accsys were sent. Nothing said or done by WPB would, in my judgment, have led the reasonable observer to believe that the nature of the arrangement being entered into with Mr Kent was any different to that entered into in July 2005.

Without setting out all the details, I reach the same conclusion in relation to the remaining transactions. In many instances (the transactions numbered (2), (3), (4), (5), (6), (9) and (13) in the list at paragraph 136 above) WPB sent to Mr Kent an allotment letter in the same form as that sent in relation to the first transaction. In each case, that letter, on Asia IT headed paper, identified him as director and confirmed that Asia IT had caused to be allocated a certain number of shares in consideration of the receipt of the purchase price.

In one instance, despite Mr Kent’s evidence that he believed otherwise at the time, Mr Kent accepted that if he had read the email from WPB properly, he would have seen that he was acquiring shares from Asia IT. This related to the acquisition in May 2006 of 500,000 shares in Develica Deutschland. WPB emailed Mr Kent on 24 April 2006 attaching details of the “Develica German Property Fund investment”. The email was headed “AIM IPO opportunity”. In it, he wrote: “I am obviously substantially involved in this situation and am highly enthusiastic about the prospects and would love to have you involved, if you think it fits for you - if not, of course no worries, but I do feel it is a wonderful opportunity. Delighted for you to pass it on to others if you think appropriate - 1 will send info to Ian anyway.”

In the attachment, WPB explained as follows:

“The Develica Germany Fund is a very exciting investment opportunity that will be listed on the London Stock Exchange AIM market at the end of May. Fairfax are raising €250M prior to the float and Asia IT (my group) have agreed to take 25M of that of which we will invest €12.5M. We therefore have ability to offer €12.5M on a first come first served basis to our traditional friends and family co-investors. It is preferable for the subscription to be made via Asia IT and will be put into an Asia IT Nominees Ltd account until the time of the flotation, at which point the shares may, if you wish, be transferred into your own beneficial ownership name or entity.”

In his cross-examination, Mr Kent accepted that he was being told, by this email, that he was being offered shares that had already been acquired by Asia IT. He said:

“I thought originally that I was buying shares in the IPO. When I was forced to read the email properly [which he subsequently explained as being when he started these proceedings] I could see that I wasn’t … The email from Mr Paterson-Brown had talked about an IPO opportunity and so I fondly imagined that’s what I was getting. But when I look at it closely, I wasn’t”

When dealing with the transactions entered into in July 2006, Mr Kent said that he believed at the time that Asia IT’s role in the transactions relating to these shares was simply to facilitate the “handshake deal” that he had already made with WPB personally. He said that this handshake deal was the one made in WPB’s offices when they originally met in June 2005:

“I understood that the basis on which I had first invested, which he told me I was investing, was still holding place. I likened it to my own business. Somebody might approach me when I was director of this or that and ask if I could do something, and of course I would do it through the business if that was appropriate. But the deal, as far as I was concerned, was still with me, if I had said that I would undertake to do such a thing. And then the way he got it done was by going through Asia IT, clearly, which made sense to me. It seemed normal.”

When asked what he thought the terms of the handshake deal with WPB had been, he said “simply that I would pay over a certain amount of money as I had been requested, and I would receive whatever it was number of shares that we had agreed that I would have received.” He said that “the overriding thing for me was that there were then all to be … my shares were to be held then in Asia IT Nominees, which is what I understood Mr Paterson-Brown to be confirming to me in his letters and spreadsheet as well as obviously when we talked about it … There was never any discussion about any other arrangement superseding the original.”

This reinforces the point that whatever relationship between Mr Kent and WPB was established in connection with the first purchase of Accsys shares in June 2005, it remained the same thereafter.

On one occasion, in connection with the purchase of 2,854 shares in XShares Group Inc in July 2007, the allotment letter from Asia IT specifically indicated a contractual relationship being entered into with Asia IT. The letter, dated 16 July 2007, contained the following:

“Your Allotment of Shares is contingent upon your agreement to return to Asia IT Capital Investments Ltd. ("AIT'') 20% (twenty percent) of the profit made from this investment after you have made a return of 100% at the time of sale. The decision to sell your position is entirely with you, however the onus is upon you to: i) Inform AIT when you sell and at what price, ii) To make a payment to AIT within 10 days of the settlement, iii) To 'crystalise' the payment due to AIT within a maximum of three years. AIT has made undertakings on behalf of all shares available at this price, having underwritten this round of $10 million, which is hereby noted and understood by the undersigned.”

Mr Kent relies on WPB's continued use of the singular personal pronoun. I have rejected the significance of this, generally, at paragraph 95 above. Moreover, its continued use in emails where the surrounding circumstances made it clear that WPB was communicating as director of Asia IT reinforces the conclusion that the reasonable observer would not have understood WPB thereby to be undertaking any personal responsibility. For example, in an email dated 16 June 2006, in relation to the acquisition of further Accsys shares in July 2006, he wrote: "I attach herewith a letter of Allotment for Accsys shares. I have put together 2,900,000 shares at 1.23 per share for payment during the first week in July. I trust that is acceptable- although slightly below the number you were looking for it is roughly in that region. As before just complete and fax back the form- transfer details on the second page. I will hold the stock in Nominee account as discussed.” The signature block on the email, however, was WPB as director of Asia IT, and the attachments to the email included an allotment letter in the standard form from Asia IT.

I rejected, in dealing with the first transaction, the contention that any reasonable observer would have assumed, as Mr Kent said he did, that WPB was acting as principal, and Asia IT merely his agent on the basis that Asia IT was “his group”. That contention becomes even more difficult following a meeting between WPB and Mr Kent in February 2007. Mr Kent made a note of the meeting, which he sent to WPB, asking him to cast an eye over it “for in-accuracies and/or missing information.” The note contained brief summaries relating to the existing investments held by Mr Kent, and contained a summary of Asia IT, as follows: “Asia I.T. JK shares held in named account within Asia I. T. Nominees Ltd., a wholly owned subsidiary of Asia I.T. Capital investments Ltd. The latter holds the ‘family’ investments and is owned jointly by them and the Abu Dhabi royal family.”

My conclusions as to the law governing the subsequent alleged agency agreements necessarily lead to the conclusion that the law governing the alleged subsequent purchase trusts and share trusts is Swiss law. Neither party advanced separate submissions on the governing law of such subsequent trusts.

Accordingly, the claim that there were purchase trusts fails because no such trusts arise under Swiss law. Even if English law applied, there is no evidence that any of the purchase funds were received by WPB, such as to render it possible for him personally to become a trustee. The purchase monies were in each case sent to, or for the benefit of, a corporate entity: in most cases to a JSD client account, although in two cases, as I describe below in connection with the claim against TPB, it was sent to an account in the name of TPRC Ltd (“TPRC”), another company under the control of Mr Forsyth.

So far as the alleged share trust is concerned, there is no evidence that WPB was ever himself either the holder of the legal interest in the shares, or the holder of a beneficial interest which he then held on trust for Mr Kent. In all cases (except where shares were acquired by Parlick, when the shares were issued in its name and no question of a share trust could in any event arise) the shares were held by Asia Nominees. I have dealt with, and rejected, the contention that Asia Nominees was WPB’s agent – whether generally or specifically for the purposes of holding shares – in connection with the first transaction.

Mr Kent contends that certain statements from WPB showed him to be holding the shares personally. These consisted of various emails in which WPB made statements to the effect that “he” was holding shares for WPB, or “I will put [shares] into the Nominee account” or “I will hold in [Asia Nominees]”. Mr Kent also relies on a series of spreadsheets which, from time to time, WPB sent to Mr Kent showing “John’s positions with Willy”, and which identified all the shares which Mr Kent held via his dealings with WPB from time to time.

These further uses by WPB of the singular personal pronoun must be seen, however, in the context that on a number of occasions over the period, WPB provided Mr Kent with formal documentation from Asia IT which indicated the shares that Asia Nominees were holding for Mr Kent as nominee. For example, on 11 July 2006 WPB provided Mr Kent with a letter on Asia IT headed paper stating that Asia Nominees held the shares in Accsys and Develica Deutschland PLC on his behalf. Further letters dated 17 October 2006 and 20 November 2006, each on Asia IT paper, stated that shares in Accsys, Develica Deutschland PLC, Medicsight, Medicexchange and Playshare were held by Asia Nominees on his behalf. A reasonable observer would have viewed the documents which described the positions as being those of “John” with “Willy”, as informal records, not intended to set out the actual legal position as evidenced by the formal letters. That is reinforced by the fact that the investments of “John” included those of Parlick.

In any event, the question whether WPB was trustee of the shares for Mr Kent is not determined by reference to what either Mr Kent, or even a reasonable observer, would have understood the position to be. It is simply a question of fact: in whose name were the shares held? In addition to the above contemporaneous communications from Asia IT, share certificates have been disclosed identifying Asia Nominees (a/c JK) as the holder of (1) 250,000 shares in Medicsight (8 September 2006); (2) 500,000 shares in Medicexchange (12 September 2006); (3) 500,000 shares in Playshare (12 September 2006); (4) 133,333 shares in Library of Life (30 January 2007); and (5) 1,792.5 shares in XShares (12 December 2007).

In relation to Accsys there are no share certificates, apart from the original certificates issued in 2005 in the name of Parlick and Asia Nominees a/c JK. Mr Kent claims, by reference to Accsys’ own share register, that the 1,000,000 shares acquired by Asia Nominees a/c JK in July 2005 ‘disappeared’ in August 2006. It is true that from that date there is no continuing reference to Asia Nominees a/c JK as the registered holder of Accsys shares. WPB believes that, from August 2006, the shares held in Accsys would have been held electronically, so that from that point onwards the registered holder of the shares would have been an account holder with Crest, the identity of which WPB could not recall. That explained, he said, the apparent disappearance of the shares held by Asia Nominees a/c JK from Accsys’ share register. If WPB had been Mr Kent’s agent, or if WPB had been trustee of the Accsys shares originally held for Mr Kent, then he may well have been under an obligation to account for what happened to the shares. Given my conclusion on those prior issues, however, the fate of those shares thereafter is not relevant to any sustainable cause of action in this case.

The question whether the Accsys shares purchased for Mr Kent were held in electronic form is relevant, however, to the potential share trust (or Swiss custodian claim) in relation to the Accsys share purchases after August 2006. There is no direct evidence of the form in which those shares were transferred. My finding that WPB was not agent of Mr Kent in the purchase of those shares and that no purchase trust claim lies against him, means that WPB is not liable to account to Mr Kent in respect of the purchase of those shares. In order to establish a share trust or the equivalent Swiss law claim against WPB, therefore, it is for Mr Kent to prove on the balance of probabilities that the subsequently purchased Accsys shares were held by WPB, or were otherwise under his personal control such that he was the trustee or custodian of them (and that WPB’s statement – in an email dated 16 June 2006 – that he would hold the 2,900,000 Accsys further shares purchased around that date in “Nominee account as discussed” was either false or not honoured).

In my judgment, Mr Kent has not established this. It is certain that the shares in Accsys were indeed transferred into electronic form at some point after July 2005. That is because Mr Kent accepts that when he finally personally received all of the shares that he should have acquired, according to the purchases and sales made between 2005 and 2009, he received the Accsys shares in electronic form. This fact alone lends credence to the evidence of WPB that the reason the Accsys share register does not record Asia Nominees a/c JK as the holder of any Accsys shares after August 2006 is because subsequent dealings were in shares in electronic form.

Ms Newman QC made much of the fact that Mr Kent had agreed that his shares would be held as nominee only by Asia Nominees, so that there was an obvious breach of duty by WPB in allowing the shares to be transferred into electronic form at all. That was because the registered holder of the shares necessarily changed, at that point, from Asia Nominees to another custodian. That is true, but only because Asia Nominees was not an account holder at Crest and the only persons entitled to be registered holders of shares in the Crest system are account holders. In practical terms the transfer of shares into electronic form merely would have added an intermediary (Crest account holder) between Asia Nominees and Accsys.

Whether that was something Mr Kent had permitted or not, however, is irrelevant to the question whether the Accsys shares acquired in 2006 and 2007 were ever held by WPB himself. Given the preponderance of evidence showing that other shares were held by a nominee company, including the purchases made after Mr Forsyth’s death when Asia IT ceased to function, it would be surprising if WPB had personally held any shares in Accsys as custodian for Mr Kent. Given the inherent improbability, and the absence of any positive evidence that he did so, I conclude that on the balance of probabilities he did not. Accordingly, the alleged share trust (and Swiss law custodian claim) in relation to the Accsys shares fails for the same reason as in respect of the other shares acquired by Mr Kent.

The following transactions occurred in the period after Mr Forsyth’s death:

While Mr Kent accepts that he received €6,830,000 in October 2007, and that he ultimately ended up with precisely the right number of shares in Accsys, XShares and HipCricket in accordance with these transactions, he says that he has no idea whether the funds came from the sale of his (or any other) shares in Accsys and has no idea whether the shares in XShares and HipCricket were in fact acquired at the time. These are all matters which might need to be investigated on the taking of an account, if an account were to be ordered. They do not affect the logically prior questions, however, whether WPB assumed any obligations as agent of Mr Kent, whether a purchase trust arose and whether a share trust arose.

The reason that a different relationship might have been established after Mr Forsyth’s death is because Asia IT was no longer the entity involved in the transactions. WPB’s evidence is that he was concerned that, without Mr Forsyth, those working at Asia IT and TPRC (including Mr Sandys) would be unable to run things themselves, and he therefore began to put a structure in place to allow Khalidiya to enter into transactions.

As far as the relevant governing law is concerned, there is no evidence of any change in circumstances that would suggest that the question whether an agency relationship existed between Mr Kent and WPB is governed by any different law than that which governed the transactions prior to Mr Forsyth’s death. For the reasons provided above in connection with the earlier transactions, therefore, I find that the governing law remains Swiss law.

It is WPB’s evidence that in relation to these later transactions the party that acted on the acquisition of the investments (in place of Asia IT) was Khalidiya. Accordingly, his involvement thereafter was as agent for Khalidiya.

It is common ground that he did not inform Mr Kent of this change. It is also common ground that no allotment letters (equivalent to the allotment letters previously issued by Asia IT) were issued in relation to these later transactions. There is accordingly no contractual document which identifies Khalidiya as the counterparty that was arranging the allotment of shares. Nevertheless, in relation to the acquisitions that occurred in October 2007, using the proceeds of sale of Mr Kent’s Accsys shares, the following appears from the contemporaneous documents.

In relation to the last transaction, the purchase of 100,000 Accsys shares in January 2009, Mr Kent was again asked to transfer the funds to Khalidiya’s bank account.

Mr Kent was clearly put on notice, in October 2007, both of the fact that WPB was purporting, in giving instructions to Mr Kent’s bank for the transfer of funds for the purchase of these shares, to be acting on behalf of Khalidiya, and that Asia IT was not involved in this transaction. Mr Kent did not query with WPB either the absence of Asia IT from these transactions, or the appearance of Khalidiya in its place. Mr Kent already knew, of course, that WPB was a director of Khalidiya, so the name itself would not have been a surprise to him. The natural inference – and the inference which I conclude a reasonable observer would have drawn – is that WPB continued to be acting as agent but now for a different corporate entity.

This is reinforced by the fact that Mr Kent’s understanding at all times was that the nature of the arrangement he had with WPB was established in connection with the first transaction and that nothing happened so far as he was aware to alter that in subsequent transactions. It is further reinforced by the fact that it would be counter-intuitive for someone in WPB’s position, having transacted as agent on behalf of a corporate entity, to step into the ring and assume personal responsibility, without there being some obvious reason for doing so.

While there is no similar evidence of the capacity in which WPB was acting in relation to the penultimate transaction in May 2008, involving the sale of 500,000 Accsys shares and the acquisition of further XShares with the proceeds, I find it inherently unlikely that a reasonable observer would have understood in relation to that one transaction that WPB was undertaking a personal obligation as Mr Kent’s agent in the purchase of the shares.

The Claimant did not lead any evidence as to Swiss law governing the circumstances in which a person is known to be acting as agent, but the identity of the principal was unknown. The only evidence on this was the following exchange with Professor Dasser:

“A. The point is that if a person acts on behalf of a third party but does not define the third party, and if the other side doesn't care, the other side knows that the person A is acting not in his or her own capacity but on behalf of a third party, and if the opponent doesn't care who the third party is, the contract, if there is one, would still be with the third party. The third party would then have to be defined, but they could then be, in this situation, one or the other company saying "I'm your business partner".

MR JUSTICE ZACAROLI: So if A acts with B, or relates or has a communication with B and enters into some arrangement, and A is in fact acting on behalf of X, provided that B knows that A is acting for somebody, it doesn't matter that B doesn't know that he is acting for X, there is an agreement between X and B?

A. Yes.”

In other words, provided a person is known to be contracting as agent for a principal, the principal, and not the agent, is a contracting party even though the counterparty does not know the identity of the principal.

I find, accordingly, that if the reasonable observer understood, prior to Mr Forsyth’s death, that WPB acted as agent of Asia IT, then the fact that WPB thereafter acted as agent of Khalidiya, even if nothing would have put a reasonable observer on notice of the change, was not such a change in circumstance that would cause WPB to assume personal obligations under Swiss law as agent for Mr Kent. I therefore reach the same conclusion in connection with the alleged personal liability of WPB as agent for Mr Kent in relation to the transactions following Mr Forsyth’s death as that I have reached above in connection with the earlier transactions.

So far as the alleged purchase trusts, in this later period, are concerned, the governing law is Swiss law for the same reasons as in relation to the earlier transactions and, accordingly, the claim fails for the reason that no such trust arises under Swiss law.

So far as the alleged share trusts are concerned, there are more gaps than before in the evidence relating to who held title to the shares. In some cases, there is clear evidence that Zica Nominees was the holder of the shares, and that it held them directly for Mr Kent, in the same way that Asia Nominees had done previously. Thus, in relation to Diamond Wood, its register of shareholders indicates the following shares were held by “Zica Nominees a/c JK”: (1) 19,248 shares registered on 13 February 2008 (2) this was substituted for 1,924,800 shares on 5 September 2008 (following a share split) and (3) a further 297,400 shares were registered on 26 November 2008. WPB explained that on the original issue of these shares, there was a shortfall which – after the share split – amounted to 297,400 shares. That error was corrected by the transfer of that number of shares in November 2008.

In relation to HipCricket, the picture is far from clear. There are contemporaneous share certificates (dating from September and October 2007) in the name of Mr Kent himself (in respect of which no possible trust could arise) and one in the name of Asia IT Nominees. The correlation between the number of shares held, and the number of shares purchased by Mr Kent, is however unclear. It is WPB’s evidence that these shares were split between those held in Mr Kent’s name, and those held by two nominee companies, GAM Consulting SARL and ICG Limited, which were later transferred into Mr Kent’s name. As of 2 February 2010, 1,513,564 shares (the total number acquired by Mr Kent) were held in a certificate in his name.

In relation to XShares, the position is also unclear, at least prior to December 2008 when a certificate was issued showing Mr Kent personally holding 8,333,333, and September 2009, when a further certificate was issued showing Mr Kent holding 6,206,233 shares. It is accepted that these amounted to all of the shares that he should have held by that date.

As in relation to the position prior to Mr Forsyth’s death, if Mr Kent had succeeded in establishing either the existence of an agency relationship with WPB personally, or a purchase trust, in relation to any of these transactions then it might have been incumbent on WPB to establish which entity held such of the shares that were not represented by share certificates in Mr Kent’s own name. Given my conclusions on those prior issues, however, the burden of establishing that WPB held title to the shares, so as to constitute him a custodian for the purposes of the claim under Swiss law (or a trustee, if English law had applied) is on Mr Kent. The inherent likelihood is – given the manner in which all prior shares had been held – that the shares were held (as WPB maintains) by one or other corporate entity as nominee for Mr Kent. There is insufficient evidence to establish that the position was otherwise. Accordingly, I conclude that the share trust claim fails in relation to the transactions after Mr Forsyth’s death.

Mr Kent claims that WPB owed him a duty to advise. This is pleaded as follows:

“Between 2005 and 2011, the First Defendant provided the Claimant regular updates by way of email, telephone and meetings about the companies and his investments in them: see Table 2 (in the Schedule to these Particulars of Claim). These updates included the First Defendant providing the Claimant advice on current share prices, likely future share prices, and the companies' business activities and prospects; and included information and/or knowledge which the First Defendant acquired in the course of his management of the companies and/or his relationships with the managers/directors of the companies. In the premises, the First Defendant assumed a duty to advise the Claimant in respect of these investments ("the Advisory Duty").”

Although pleaded in broad terms as a duty to advise “in respect of these investments”, Ms Newman QC made clear that what was in fact alleged was a duty of disclosure, limited to the disclosure of the information pleaded at paragraphs 177 to 183 of the Amended Particulars of Claim. This consisted of the information that, allegedly, some of the companies the subject matter of the investments had made “uncommercial” payments and payments of commissions.

In the Claimant’s skeleton argument for the trial, this was advanced either as a tortious duty, or a fiduciary duty. Both duties assumed that English law applies. So far as the fiduciary duty is concerned, there is no such concept as a free-standing fiduciary duty to disclose information. As explained in the Claimant’s skeleton, the duty is said to be a facet of the fiduciary duty to avoid conflicts of interest or the duty not to make a secret profit. It is said that these duties – in practice – impose an obligation of disclosure in the event of a conflict. I accept that a fiduciary who is subject to the no-conflict or no-profit rule would need, in order to avoid breaching those duties, to disclose the existence of the conflict or profit. That however is not a free-standing duty of disclosure, and no claim could be made for breach of such a duty. The claim is one for breach of the underlying no-profit or no-conflict rule. Having rejected the contention that WPB owed such fiduciary duties to Mr Kent, this way of putting the advisory duty does not get off the ground.

So far as the tortious claim is concerned, it is first necessary to identify the governing law. This is determined by sections 11 and 12 of the Private International (Miscellaneous Provisions) Act, 1995:

The Defendants contend that the events constituting the alleged tort all occurred in Switzerland. WPB carried on his business there. Insofar as the “regular updates” on which the claim is founded were made at meetings, those always occurred in the Geneva office. Insofar as they occurred in emails or by telephone, WPB was generally situated (to Mr Kent’s knowledge) in Switzerland. From March 2006 onwards Mr Kent, too, was in Switzerland. The general rule, under section 11, would clearly point to Swiss law, and there are no factors which would lead to the displacement of that rule under section 12. The Claimant did not really have an answer to this. In his closing submissions the only point made is that if the law governing the various purchase agreements was English law, then that is a powerful factor for displacing the “general rule” under section 11. I have found that the law governing the agreements was Swiss law. Accordingly, I am satisfied that the claim to a tortious advisory duty is governed by Swiss law.

The experts were agreed that there are two potential routes to impose a form of advisory duty under Swiss law: liability in tort, and liability “based on trust” (not to be confused with English law concepts of trust).

Liability in tort, generally, arises under Article 41(1) of the Code of Obligations which provides the following for damage claims based on tort: "Any person who unlawfully causes loss or damage to another, whether wilfully or negligently, is obliged to provide compensation."

The experts, in their joint statement, agreed that a liability based on tort may arise – in exceptional circumstances – in cases of incorrect advice or disclosure of information. There was a dispute between the experts as to whether this liability was limited to cases involving banks and regulated firms.

I do not need to resolve this dispute, however, because it was clear from both experts that liability arises only in respect of “incorrect” advice or information. The only authorities cited by Mr Lembo on the point involved a Defendant providing inaccurate information. While this might include statements that were rendered inaccurate by omission, it did not otherwise impose a duty to disclose. When asked whether, where a seller of shares provides some, but not all, information about the company, liability could exist based on the failure to provide that other information, Mr Lembo said that it “depends upon the intensity of the wrong nature of your statement and the effect that it has.” He agreed with the statement that liability arises where what the seller does not say makes what it did say an untruth.

The Claimant, in his written closing submissions, contends that the following passage in the evidence of Professor Dasser supported the conclusion that liability exists where something important is not disclosed, even if this does not render what was disclosed misleading. Professor Dasser was asked to explain a case (DFT 111 (1985) II 471) from which a passage was translated in a foonote in his report. No full translation of the case was in evidence. It was not a case relied on by Mr Lembo. The translated passage reads as follows:

“Anyone who is asked about circumstances in which he has special insight due to his position has to give truthful information if he agrees to respond at all, insofar as it is recognizable to him that this information probably will have or is likely to have serious consequences for the addressee; he is not allowed to purposely assert false facts or to give light-minded statements whose incorrectness or inaccuracies have to be obvious to him without a long examination (…). Although the person asking cannot reckon with particularly careful investigation by the bank, but with the fact that the information was provided in good faith and not thoughtless and that the bank informs him about what they know loyally and completely (…). The requested person is not only acting unlawfully if, against better knowledge or recklessly, he makes false positive statements, but also if he conceals facts that are known to him and of which he must say that their knowledge might influence the decision in question.”

Professor Dasser went on to explain that the court had referred to a case, which he had left out of the translation, which was an “outrageous” case in which someone had introduced two people to do business with each other, and acted as intermediary, but “He simply did not tell that the person he introduced was the person under tutelage because of a troubled past and a lack of capacity to act reasonably. That, of course, when you buy a company or a business, that's pretty crucial information about your opponent, and that was left out. And therefore the court found that introducing two persons, advising them to enter into a transaction but not saying that one person is under tutelage, that's leaving out a crucial bit and you can't do that.”

The Claimant submits, in his closing submissions, that this last passage indicates that liability can arise in cases of non-disclosure even if that does not render what was said untrue. Immediately following this, however, when asked for clarification “Is the position that in this case it was simply that someone did not disclose something that was very important?” Professor Dasser said: “Yes, thereby rendering what was said misleading.”

I conclude that, when seen in its proper context, the passage in Professor Dasser’s evidence relied on by the Claimant does not support the proposition that in Swiss law there can be liability in tort for a failure to disclose information otherwise than where the failure to disclose renders what was disclosed misleading.

Mr Kent does not allege that WPB provided him with any inaccurate information or made any misleading statements, whether directly or by failing to make disclosure of other information. Accordingly, I conclude that the claim based on an alleged advisory duty in tort under Swiss law fails.

The joint statement of the experts identifies the following ingredients of liability based in trust:

“(i)

an established special legal relationship between the parties which results in the duties to protect and inform, (ii) trust worthy of protection awakened through the behaviour of one party within the frame of this special legal relationship, (iii) breach of such trust in violation of the good faith, (iv) adequate causal link between the breach of good faith and the damage, and (v) fault of the damaging party.”

There was disagreement between the experts, however, as to whether a Swiss court would today find that such a cause of action existed.

Professor Dasser’s position is that this form of liability was invented by one particular judge (Judge Walter) on the Federal Supreme Court, in order to deal with particularly hard cases. It has not been applied since that judge’s retirement in 2003. Since then it has been referred to only to distinguish it. He regards it as law “in the books” but no longer “law in action”. Mr Lembo agrees that “liability based on trust” has been heavily criticised and rarely applied. He says, however, that this is because “the requirements on which both Professor Dasser and myself agree are very strict, and it is admitted under strict conditions.” In fact, Mr Lembo had not dealt at all with this form of liability in his report.

When Professor Dasser was asked what amounts to a “special relationship” sufficient to give rise to this form of liability, assuming it still existed, he said “nobody knows, I guess”. In his report, he referred to the type of relationship as being one that “comes close to a contractual relationship”.

The few cases in which it was applied, prior to 2003, involved circumstances that were very far removed from the circumstances of this case. In a case involving Swissair from the 1980s, for example, Swissair was found liable to investors of an affiliated company which had become insolvent, based on the fact that – to Swissair’s knowledge – the affiliated company was marketing itself with the Swissair brand, a brand that was extremely well known, trusted and regarded as the “gold standard”. In another case, a wrestler had relied on confirmation from the Swiss team that he would be able to join them for the world championships to prepare and had, no doubt, expended time and money. Shortly before the championships he was told that he would not be allowed to join the team. The third case involved provision of inaccurate information by a bank, where the court found that liability for inaccurate information was founded both in tort and in trust.

In my judgment, even if such a liability would still be imposed by a Swiss court today (which I doubt, based on the evidence of Professor Dasser, combined with Mr Lembo’s acceptance that it has been the subject of criticism by academics and dissent in cases since 2003), it does not assist Mr Kent in this case.

In the first place, perhaps reflecting the fact that Mr Lembo made no reference to this basis of liability in his report, this cause of action is not pleaded. This is not merely an arid pleading point, but a significant barrier to the claim being advanced. That is because the cause of action requires proof of a number of factual matters that themselves were not pleaded. There is, for example, no pleading of the elements required to be proved in order to render the relationship “special”, nor of any facts that would satisfy that requirement. Nor is there any pleading of any facts said to give rise to “trust” worthy of protection “awakened through the behaviour” of one party.

No evidence was therefore led by either party addressing the particular elements of this cause of action.

In fact, the only facts pleaded as giving rise to the advisory duty (as I have noted above) were that WPB provided Mr Kent with regular updates about the companies and his investments in them. Based on the few cases in which this cause of action has ever been applied, this falls far short of establishing a special relationship within which trust worthy of protection was awakened through the behaviour of either party.

There are, in any event, considerable difficulties with the advisory duty claimed in this case.

First, Mr Kent was, throughout, aware of WPB’s involvement (either directly or through his brother, TPB, or one of the companies in which he was involved) in all of the companies in which he was being invited to invest. That is a highly unlikely starting point for the imposition on WPB of a duty to provide any advice to Mr Kent. It would be unlikely, in my judgment, for a reasonable person in Mr Kent’s shoes to have understood from the fact that WPB gave him information from time to time on the companies and investments, that WPB was thereby undertaking to give him any further information above that which was already disclosed.

Second, as I have found in relation to the allegation of agency, the over-arching nature of the relationship was that WPB was promoting investments in companies in which he was involved. The fact that – as Mr Kent said – WPB spoke invariably in positive terms about the investment opportunities is more consistent with the actions of a salesman than someone assuming an obligation to give independent advice.

Third, there is no suggestion that WPB ever asked Mr Kent for (or received from Mr Kent) any information about his wider investment portfolio or his preferred strategies or any other information that an investment advisor would need in order to provide independent advice. In recognition of this fact, Mr Kent limits the nature of the advisory duty to provision of relatively narrow categories of information. He does not assert, for example, a positive duty to advise as to the suitability of the investments. The problem then lies, however, in defining the scope of the disclosure obligation. Is it, for example, any information about the companies, known to WPB, which would have (objectively) had an impact on Mr Kent’s decision to invest? Or is it limited to such information that WPB believed would have an impact on Mr Kent’s decision to invest? In either event, how could WPB have known whether the information would have had such an impact such that it should be disclosed, unless he was privy to Mr Kent’s investment strategies and appetite for risk?

Fourth, while not determinative, it is a significant indicator against such advisory responsibility that WPB received no remuneration or other reward from Mr Kent.

For all the above reasons, I find that WPB did not owe Mr Kent the alleged advisory duty.

There is no separate pleading of an advisory duty arising in contract. The Claimant accepts that no such claim could arise under English law, since there was no consideration. It is contended, however, that since the experts agreed that under some contracts an advisory duty could arise under Swiss law, then it was open to Mr Kent to advance such a claim here.

As explained in the Claimant’s skeleton, however, the alleged contractual advisory duty was said to be an aspect of the purchase agreements. Since I have rejected the claim that there was any purchase agreement with WPB personally, it follows that the claim based on a contractual advisory duty necessarily fails.

There is only one claim pleaded against the Second Defendant, that is that he knowingly received trust property. It relates to two of the purchase agreements where the purchase money was paid to an account of TPRC: (1) €500,000 paid in respect of the first Develica Deutschland purchase on 10 May 2006; and (2) €3,567,000 paid in respect of the first Accsys Technology purchase on 5 July 2006. It is claimed that because of the control he exercised over TPRC, a receipt of funds by TPRC is to be treated as a receipt of funds by TPB.

It is a pre-requisite of a claim in knowing receipt of trust property that the trust property was paid away in breach of trust: El Ajou v Dollar Land Holdings Ltd [1994] BCC 143 (CA), per Hoffmann LJ at p.154:

“This is a claim to enforce a constructive trust on the basis of knowing receipt. For this purpose the plaintiff must show, first, a disposal of his assets in breach of fiduciary duty; secondly, the beneficial receipt by the defendant of assets which are traceable as representing the assets of the plaintiff; and thirdly, knowledge on the part of the defendant that the assets he received are traceable to a breach of fiduciary duty.”

There is no allegation that the funds received by TPRC were paid in breach of fiduciary duty. Indeed, they cannot have been, as they were paid by Mr Kent to TPRC for the purpose of purchasing shares. For that reason alone, this claim fails.

In the Claimant’s skeleton (the point was not addressed at all in the Claimant’s closing submissions) it was contended that, on the basis of the following statement in Lewin on Trusts (at paragraph 42-039), while a breach of trust (or fiduciary duty) is usually an essential element in a claim for knowing receipt, it is not so in the present type of case, because an exception to the requirement that the money was paid away in breach of trust is where:

“property is transferred without consideration by A to B, and A does not intend to make a gift though B is unaware of A’s intention at the time of transfer [citing Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669 at 705 per Lord Browne-Wilkinson]. In such a case, we consider that B takes the property subject to A’s retained beneficial interest, though B is not personally accountable as a trustee until he becomes aware of the relevant circumstances.”

That is, however, to ignore the remainder of the paragraph in Lewin:

“If B makes an innocent transfer to a third party before becoming aware that no gift was intended, but the transferee is aware at that time of A’s true intention or, being a volunteer, becomes aware subsequently while he still retains the property, we consider that it is the better view that the remedy of knowing receipt is available against the third party even though at the time of transfer to the third party, B held the property subject to A’s beneficial interest though was not at that time personally accountable as the trustee of a resulting trust.”

The exception which Lewin is describing, therefore, is where the third party has received property from B, in circumstances where B, at the time of the transfer, was unaware that A retained equitable title in the property. It has nothing to do with the facts of this case, where the transfer was made directly by Mr Kent to TPRC.

It is accordingly unnecessary to decide whether the receipt of funds by TPRC represented a receipt by TPB. Nevertheless, as the point was addressed by the Defendants, I will state my conclusion shortly.

The essential conclusion pleaded in support of this claim is that “TPRC was at all material times under the control of and the agent and/or nominee of the Second Defendant”.

Five matters were advanced, in further information served by the Claimant in November 2015, in support of this conclusion.

First, that TPB was, on dates between July 2002 and March 2003 able to control payments made on behalf of TPRC via a JSD client account in 2002 and payments out of the TPRC account. TPB accepts that he was a signatory on TPRC’s accounts until mid-2003, when he was removed from the list of signatories. Accordingly, it is not surprising that he was able to cause payments to be made on TPRC’s accounts during that period. This provides no assistance as to his ability to control TPRC in 2006.

Second, that TPB was a director of Asia IT (TPRC’s parent company) in January 2003, and Mr Kent “does not have any reason to believe that this control ceased after that date.” Mr Kent has no evidence, however, to contradict TPB’s evidence that he ceased to be a director of Asia IT in January 2003. In any event, being a director of the parent company of TPRC provides no basis for an inference that receipt of funds by TPRC is to be treated as a receipt of funds by TPB.

Third, that in a letter of 8 March 2006 TPB stated that he would “organise for a transfer” of a specific sum which was, the same day, debited from the TPRC account. This does not evidence TPB’s control over TPRC. TPB’s evidence is that by “organising” a transfer, he meant that he would liaise with Mr Forsyth, who would instruct the then signatories on the TPRC account (which did not include him). There was no serious challenge to that evidence in cross examination.

Fourth, in November 2006, it is alleged that TPB “authorised” a payment of £5,000 out of the TPRC bank account. This is based on a single document, an application for foreign transfer, relating to a payment by TPRC to TPB. The form does not suggest that TPB authorised the payment. TPB accepts that he was paid from time to time by Mr Forsyth, and that Mr Forsyth often used TPRC for the purpose of making payments. The Claimant asserts in the further information that these payments call for an explanation by TPB. Even if that were so, which I do not accept (the burden being on Mr Kent to prove that TPB himself received trust money) the fact of payments to him from TPRC does not give rise to any inference that he controlled TPRC to such an extent that a receipt of funds by it is to be treated as a receipt by him.

Fifth, it is said that TPB’s control of TPRC can be inferred from Mr Sandys’ continued involvement with the TPRC account and from the fact that Mr Sandys was an employee of Medicsight of which TPB was a director. These facts cannot in my view give rise to any such inference.

Accordingly, I find that the claim in knowing receipt fails on the facts as well, in that the Claimant has failed to establish that the relevant funds (payments to TPRC in 2006) were received by TPB at all.

The claim as pleaded turns on a relatively small number of, mostly factual, issues. While I am grateful to the parties for the extensive legal submissions, covering many aspects of English law relating to trusts and fiduciary duties, I have, with no disrespect to the parties, found it unnecessary to deal with most of them.

For the above reasons I dismiss the Claimant’s claims against both the First and Second Defendants.