Euro Securities & Finance Ltd v Stephen Barrett & Ors

This case raises interesting legal questions on the attestation (i.e. witnessing) of deeds. It is a preliminary issue in a claim by the Claimant lender whether the guarantee and indemnity of the Defendants they admit signing in September 2008 (‘the Guarantee’) was validly attested for s.1 Law of Property (Miscellaneous Provisions) Act 1989 (‘LPMPA’). If the Guarantee was validly attested as a deed, the Claimant’s claim in August 2020 would be a ‘claim on a specialty’ under s.8 Limitation Act 1980 (‘LA’) with a limitation period of 12 years, so in time. If not validly attested, the limitation period would be 6 years and the claim out of time unless extended under ss.29-30 LA.

The Claimant’s Particulars of Claim dated 23^rd November 2020 claimed a total of £384,477 plus costs stemming from two different loans and a guarantee each arranged by Mr Weatherer, who was both the Defendants’ accountant and the Claimant’s sole director (although the Defendants’ knowledge of that is disputed).

The Defendants’ Defence dated 4^th June 2021 denied the claims. It partly just put the Claimant to proof: over its entitlement to sue over its identity as a Company registered in Delaware USA and over the amounts owing, but it also raised limitation defences:

At the CCMC on 9^th December 2021, DJ Rouine listed these two preliminary issues:

Therefore, I accept it would have come as some surprise to the Claimant’s Counsel Mr Aldis to see the Skeleton Argument from the Defendants’ Counsel Mr Bradshaw allege Mr Weatherer owed the Defendants fiduciary duties for the loans (which had not been pleaded) but had concealed his connection and sole directorship of the Claimant. This was not suggested to be a free-standing allegation of breach of duty, but rather that Mr Weatherer does not ‘Come to Equity with Clean Hands’ and so the Claimant could not rely on estoppel; or to put it another way, the Defendants were not estopped from denying the validity as a deed of the Guarantee, as their denial would not be ‘unconscionable’ for that reason. When Mr Aldis objected at the start of trial that adjudicating this unpleaded allegation of breach of fiduciary duty by Mr Weatherer strayed outside the scope of the preliminary issue, Mr Bradshaw replied the allegation was an intrinsic aspect of the Claimant’s estoppel argument and could not be separated from it. Sympathetic to the points made by both Counsel, I suggested unless they could agree a way of adjudicating the point, I would have to defer the whole estoppel issue until trial. But I suggested a compromise could be to limit the question to a factual one of whether Mr Weatherer deliberately concealed his connection to the Claimant from the Defendants. Counsel helpfully agreed I could adjudicate whether Mr Weatherer deliberately concealed from the Defendants his role as director and/or agent of the Claimant.In examining this, some findings relevant to the Defendants’ knowledge of his role are inevitable, but it at least avoided the fiduciary duty allegation. Yet whether Mr Weatherer was legally an ‘agent’ of the Claimant is key to the acknowledgment issue that was reserved to trial. So, I will substitute the more neutral and factual term ‘representative’, which does not detract from the Defendants’ unconscionability point.

Accordingly at this stage the following issues arise, flowing from s.1(3)(a)(i) LPMPA:

“An instrument is validly executed as a deed by an individual if, and only if— (a) it is signed (i) by him in the presence of a witness who attests the signature..”

I will sub-divide two separate issues which were rolled together into DJ Rouine’s first ‘formality’ issue; and include that Mr Weatherer question as part of the estoppel issue:

Central to this case are the witnesses’ recollections of events many years ago. This subject has been the topic of considerable judicial attention in recent years:

The only witness for the Claimant was Mr Weatherer. As he was not present at the signing of the Guarantee, cross-examination focussed on his alleged ‘deliberate concealment from the Defendants of his role as director and/or representative of the Claimant’. Consistent with Gestmin, Mr Bradshaw focussed on the contemporaneous email correspondence from 2011 to 2020 discussing repayment, almost always with Mr Barrett who dealt with this on behalf of the other Defendants. In assessing Mr Weatherer’s credibility, it is helpful to distinguish three aspects of his evidence:

I turn to the Defendants’ evidence (after Mr Miner withdrew his allegation against Mr Weatherer, he was not really challenged and I have already noted his evidence):

Speaking of Ms Money’s ‘recollection’ rather than ‘evidence’, ironically in a case all about attestation, the Defendants did not call live evidence from the ‘attesting’ witness. Ms Money left Mr Barrett’s employment, but he tracked her down in February 2022 and exhibited a short letter from her (she is now called Mrs Clarke) dated 12^th March 2022 (pg.92). I accept she did not wish to give evidence as she is in poor health. But other than explaining her change of name and how she was contacted, her letter simply says she has no memory of the Rhombus Loan or the Guarantee and does not recall signing either document. Yet she added: “I could not have witnessed the signature of John Mason because I do not believe I have ever met him in person.” However, the weight of that is very limited without a statement of truth and testing under cross-examination. Moreover, if Mrs Clarke cannot remember the signing of the documents, she would not be able to remember who else was there, including whether Mr Mason was. Finally, Mrs Clarke says she does not believe she has met him. Yet if she was only in the room with him once briefly when witnessing signatures (which she does not recall), she may well not remember. So, I can place no real weight on her assertion, especially given the unreliability of Mr Mason’s evidence (and Mr Barrett’s evidence, who also said he did not think she had met Mr Mason and who provided her letter).

Especially given those reservations about the Defendants’ evidence, I specifically remind myself the burden of proof is on the Claimant, the Defendants do not have to give any explanation and I must not simply choose the most likely but only make findings of fact on the balance of probabilities - if I cannot do so the Claimant has failed to discharge its burden - ‘The Popi M’ [1985] 1 WLR 948 (HL). In that case, the Lords held Bingham J (as he then was) was wrong to accept the owners’ theory that damage to their ship was caused by a submarine (covered by the ship’s insurance) on the basis that whilst it was unlikely, he could rule out the only other explanation - wear and tear (not covered). As the submarine theory was less likely than not, Bingham J should have simply found the shipowners failed to discharge the burden of proving what happened on balance of probabilities. Lord Brandon memorably said at pgs.955-6:

“My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter's friend, Dr. Watson: "How often have I said to you that, when you have eliminated the impossible, whatever remains, however improbable, must be the truth ?"

It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners' submarine theory, even though he regarded it as extremely improbable. In my view there are three reasons why it is inappropriate to apply the dictum of Sherlock Holmes, to which I have just referred, to the process of fact-finding which a judge of first instance has to perform at the conclusion of a case of the kind here concerned. The first reason is one which I have already sought to emphasise as being of great importance, namely that the judge is not bound always to make a finding one way or the other with regard to the facts averred by the parties. He has open to him the third alternative of saying that the party on whom the burden of proof lies in relation to any averment made by him has failed to discharge that burden. No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take. The second reason is that the dictum can only apply when all relevant facts are known, so that all possible explanations, except a single extremely improbable one, can properly be eliminated. That state of affairs does not exist in the present case….The third reason is the legal concept of proof of a case on a balance of probabilities must be applied with common sense. It requires a judge of first instance, before he finds a particular event occurred, to be satisfied on the evidence that it is more likely to have occurred than not. If such a judge concludes, on a whole series of cogent grounds, that the occurrence of an event is extremely improbable, a finding by him that it is nevertheless more likely to have occurred than not, does not accord with common sense. This is especially so when it is open to the judge to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the party on whom the burden of proving the event occurred lies has therefore failed to discharge such burden.”

However, Lord Bingham (as he became) - perhaps the greatest judge of recent decades - went on to write the seminal article on fact-finding ‘The Judge as Juror’ cited in Martin (and 50 other cases according to Lord Leggatt in his recent speech), which influenced the observations of Lord Leggatt in Gestmin, Males LJ in Simetra and Court in Martin. Applying those observations – especially on the relevance of contemporary documents - and of Lord Brandon in the Popi M, I turn to my findings of fact. They are relatively brief as I am conscious to try to avoid straying into issues reserved to trial.

Mr Weatherer is a partner of a firm of accountants Weatherer Bailey Bragg (‘WBB’) in Sutton Coldfield, which in 2007 became a Limited Liability Partnership (‘LLP’), Weatherer Bailey Bragg LLP. Taking matters out of chronological order for a moment to deal with Mr Miner’s intervention into proceedings, he joined WBB in 2005 and planned to buy-in as partner, but owing to a dispute with another partner Mr Bragg, this was not resolved until 2010. WWB’s March 2010 accounts show Mr Miner as a partner with Mr Weatherer and a Mr Horsley (pg.103). The balance sheet in those accounts also notes a loan for £175,000 (pg.107) from an unnamed lender. As I said, Mr Miner originally contended that loan was from the Claimant to which Mr Weatherer had failed to disclose his connection. However, in evidence Mr Miner accepted Mr Weatherer had shown the loan of £175,000 was on 12^th April 2010 from an Isle of Man company called ‘Mantool’ (pg.201). I accept in accordance with usual accounting practice for financial year ‘accruals’, this April 2010 loan was noted in the March 2010 accounts not signed off until October 2010 (pg.105). However, whilst I accept the loan was not from the Claimant, the format of the loan document (pgs.201-208) signed between 12^th and 15^th April 2010 and the guarantees to Mantool of Mr Weatherer, Mr Horsley and Mr Miner on 15^th April 2010 (pgs.209-216) were very similar to those used by the Claimant. Indeed, in fairness to Mr Miner, Mantool’s directors were Mr Byers and Ms Elliot, the administrative agents based in the Isle of Man for the Claimant (pg.318) - an indirect connection. I return to the ‘set-up’ of the Claimant in a moment.

Mr Barrett, Mr Brereton and Mr Mason were all long-standing clients of Mr Weatherer at WWB. Indeed, each had known him for many years – Mr Mason for more than 30 years as close friends who used to go on holiday together. Mr Weatherer acted as accountant for many of the Defendants’ business ventures, including Rhombus (to which I will return), whose 2010 and 2011 accounts he audited himself (pgs.177-184 and 193-200). Mr Brereton said Rhombus was only one of about 20 business ventures the Defendants had run between them in the period between 2001-2013. Mr Mason largely left the running of any joint businesses (including Rhombus) to Mr Barrett and Mr Brereton – his role with them was mainly that of an investor. Another business Mr Mason invested in run by Mr Brereton and Mr Barrett took on some of Guardian Royal Exchange’s loan book, comprising some 2000 loans they negotiated successfully – with only three cases ending in litigation. Whilst Mr Barrett denied knowing every borrower excuse in the book, I am sure he has heard a fair few.

Therefore, it is clear that Mr Barrett and Mr Brereton (who had been a commercial lending analyst and broker) were very familiar with commercial lending in their jobs. Indeed, one of their other businesses was the partnership ‘Brereton Thurgood Barrett’, described in a letter to Mr Weatherer at his accountancy firm from February 2003 as ‘consulting financiers’ in Birmingham (pg.149). In that case, they approached Mr Weatherer to secure a loan from the Claimant for a company called M&P Food Products Ltd: Mr Mason’s separate company. Indeed, I accept Mr Mason was also very experienced as a commercial borrower for his various businesses, even if he was evidently not particularly interested in paperwork and formalities.

This shows that by then, Mr Weatherer was wearing two ‘hats’ for the Defendants. On one hand, he was their long-standing friend and accountant. On the other, he was also arranging funding for their various businesses from the Claimant company. It had been incorporated in Delaware USA in 2001 and its tax returns show that in 2006 (pg.339), its Company Secretary was Homeric Ltd, based in the Isle of Man. As Mr Weatherer said, its administrative functions were run from there by Mr Byers and Ms Elliot, although the Claimant’s registered address appears to have been in Portugal for some reason. The 2006 tax return does not name a director, although Mr Weatherer accepts he was one from 2001. The 2007 and 2008 returns (pgs.340-1) still name Homeric Ltd as Company Secretary (albeit by 2007 registered in the Turks and Caicos islands) but also name Mr Weatherer as the sole director, albeit in 2007 placed him in Delaware and 2009 in Cyprus. The same is true for 2009 and 2017 (pgs. 342-343). By 2020 he had a UK address and Homeric were not involved (pg.344).

The Delaware tax records for the Claimant company do not disclose the identity of its shareholders. However, I accept the sole shareholder of the Claimant company is Mr Mark Weile. He may have connections with the US as it was registered in Delaware when its Company Secretary was initially based in the Isle of Man and its director in the UK. Mr Miner recalled being told by Mr Weatherer at the time that it was funded by several high-net worth individuals (including, Mr Miner cautiously confirmed, Mr Weile) who would lend to clients to whom normal commercial banks would have no appetite to lend and with higher interest rates to reflect the risk. Indeed, as Mr Mason said, the Rhombus loan in September 2008 was at the height of the ‘credit crunch’ and he said he was very busy with his various businesses as it was a very difficult time. I come back to the relevance of this for the Loan and Guarantee central to the case.

Mr Miner said Mr Weatherer had not told him he was a director of the Claimant but had said it ‘took comfort’ from WBB’s involvement as auditor as part of the lending process. Mr Weatherer said in evidence that he had an agreement with his partners to bill the Claimant for his time. Correspondence he sent out in respect of the Claimant to the Defendants is addressed from him at WBB like that 30^th January 2013 letter (pg.223). I have no evidence on the role of a Company Director in Delaware law, but I accept that whilst Mr Weatherer was nominally the Claimant’s director, he considered the company as effectively the alter-ego of Mr Weile, who found the money and made the lending decisions, with Mr Byers and Ms Elliot handling the administration. His own role was handling the loans with borrowers. Indeed, I accept Mr Weatherer habitually referred to the Claimant company in the third person and sometimes explicitly as his ‘client’ (e.g. 31^st January 2013 letter pg.227). I accept he did so to Mr Miner and to the Defendants, especially Mr Barrett in their correspondence from 2011 I summarise later. The only documents in the bundle before 2020 which mention Mr Weatherer being the Claimant’s director are its Delaware tax documents which the Defendants only obtained once the litigation had effectively begun in 2020.

Turning back to the narrative, in April 2002 for one of their businesses, Mr Brereton and Mr Barrett needed a loan of £371,000 to assist two clients in the construction of two residential properties. Mr Mason was not involved at all in this transaction and Mr Barrett seems to have left all relevant matters to Mr Brereton, who successfully arranged the loan repayable in 10 months (pgs.108-113). He had called Mr Weatherer and asked for help in obtaining the loan, who put forward the Claimant company as a potential lender. Mr Weatherer says that he referred to it as ‘another client that could possibly help’ (not disputed) and that he was its director (very much disputed).

As summarised above but elaborated now with relevant contemporaneous documents in order up to 2008, I find on the balance of probabilities that Mr Weatherer did mention his directorship of the Claimant to Mr Brereton. I accept the latter was not doing ‘due diligence’ into a lender proposed by professional adviser he had known for 12 years and trusted. However, as someone experienced in commercial lending and a careful professional, Mr Brereton is bound to have asked a few questions about the Claimant. Mr Weatherer also knew Mr Brereton well by then and obviously foresaw that he would. Why then would he suggest a lender in which he was the director (but not a shareholder with a financial interest) which he intended to conceal ?

It is far more likely – and I find, more likely than not - that Mr Weatherer very briefly mentioned to Mr Brereton his directorship of the Claimant, but minimised it as something like a nominee director in a company without a shareholding and where he did not make the decisions. This would be consistent with him also referring to Mr Weile (although I accept probably not by name) as his ‘client’. After all, Mr Brereton needed this loan, probably because they could not find a loan elsewhere. Therefore, Mr Brereton went to an old and trusted professional friend who suggested a suitable lender with whom he was not just connected, but a director of it. If anything, that would have reassured Mr Brereton that Mr Weatherer whom they knew well would be fair. Indeed, we are here 20 years later arguing about limitation because Mr Weatherer did not enforce within limitation loans the Defendants do not dispute had previously been due. In any event, the loan was arranged as Mr Brereton later recalled (pg.151) and repaid by January 2003 (pg.109).

Meanwhile, in October 2002, with the first loan well under way to being repaid, Mr Brereton approached Mr Weatherer again for another loan from the Claimant for him and Mr Barrett. This time, it was not for a client but for the Defendants’ business – the office premises at Centre Court in Hall Green, Birmingham, in part for the newly set-up Rhombus LLP. This was a partnership between the three Defendants (and three companies) employing Ms Money as Mr Barrett’s PA which developed commercial and industrial property, including Centre Court but also in Coventry. It was a short-term secured bridging loan for £800,000 repayable in one payment within 21 days (pgs.129-148). Again (indeed perhaps just before the first loan), it was successfully repaid.

By February 2003, Mr Brereton and Mr Barrett were fast becoming a regular customer of the Claimant – with two loans successfully paid off in short order. As I mentioned above, this time on 4^th February 2003 (pg.149-150) Mr Brereton on behalf of Brereton Thurgood Barrett wrote to Mr Weatherer for a 3 month £250,000 loan from the Claimant for one of Mr Mason’s companies. Mr Brereton was frank that it was in cash flow trouble and its overdraft would not suffice as it had been absorbed by a £500,000 investment in a Film Partnership and a £300,000 Extraordinary Tax Charge relating to other businesses. This is a classic example of lending which banks would not touch – indeed it stemmed from ‘maxing out’ an overdraft. Indeed, Mr Mason was offering a personal guarantee backed by equity in his home and Mr Brereton said ‘On behalf of [Mr Mason’s company] I would like to apply to Euro Securities..for a 3 month loan….’.

However, Mr Brereton then said ‘Please could you make an approach on our behalf’. In isolation, those words might be thought consistent with him treating Mr Weatherer like his business’ broker. However, the period until 2011 has many apparent gaps in the documentary record. Mr Weatherer said that loan was taken out and repaid in good time. Yet there is no response from Mr Weatherer, nor any loan documents, still less any guarantee signed by Mr Mason (which might have been thought to be relevant to a case about a guarantee). Moreover, whilst Mr Brereton asked Mr Weatherer to ‘make an approach on our behalf’, he also said ‘On behalf of Mr Mason’s company I would like to apply’ to the Claimant. In the absence of any surrounding documentary context, I am wary of placing too much weight on those words. Yet even in isolation, they are also consistent with Mr Brereton having been told the previous year of Mr Weatherer’s directorship in the terms I have found he was. I found ‘Mr Weatherer very briefly mentioned to Mr Brereton his directorship of the Claimant but minimised it as something like a nominee director in a company without a shareholding and where he did not make the decisions’ that were made by his (probably unnamed) ‘client’. Therefore, it would make sense for Mr Brereton in February 2003 to tell the nominee director of the Claimant that he would like to apply to it for a loan and to ‘please make an approach’ – i.e. to the decision-maker (in fact Mr Weile, even if Mr Brereton did not know his name) which Mr Brereton knew Mr Weatherer was not. However, that reading of this contemporaneous document is far from the only reason I have made this finding of fact, for the reasons I summarised above and continue to elaborate below.

Between 2003 and 2008, there are clearly other substantial documentary gaps where we do not know what Mr Weatherer (or indeed the Defendants) may have said of relevance to this issue. One gap actually relates to a loan disputed in this litigation – the ‘Partners Loan’ in September 2003 of €190,000 to purchase a property in Bulgaria, of which equivalent to £140,967 (the claim is in Pounds) was outstanding in June 2020. I should say Mr Aldis confirmed that this preliminary issue on the Guarantee does not relate to that unguaranteed loan, so nothing I say determines the outcome of that claim. We have the unsigned loan document (pgs.301-308) in similar format to the other loans and we have Mr Weatherer’s instruction of 26^th August 2003 (pg.298) - as ‘treasurer’ rather than ‘director’ though nothing was made of this - to the Claimant’s bank in the Isle of Man to pay €190,000 to Mr Barrett’s account in Bulgaria. However, we have very little if anything else about this loan from 2003. However, the issue is limitation. In April 2007, the Defendants made a part-payment of £90,540 towards the Partners’ Loan and on 14^th September 2007 made another part-payment of £46,156 so that the balance on that original loan in Euros equivalent to £133,000 was £55,721. I should add, that was the last payment on that loan as annual interest of £6,886 gave a balance of £133,167 by April 2019 (pg.270) and £140,967 by June 2020 (pg.10).

Another notable gap in the documentary record is on a guarantee dated 17^th January 2006 and signed by Mr Mason. Since it relates to a loan to Mr Barrett from the Claimant in September 2003, it may relate to the Partners’ Loan or another loan. In a remarkably informal (albeit written) two-sentence guarantee, it says (pg.299):

“In connection with the above loan, I John Howard Mason, hereby agree to personally guarantee the above sum in the event of it not being paid by Stephen Alan Barrett. The loan is incurring an interest rate of 15% gross per annum and will be repaid at the same time as the capital.”

Mr Mason must have noticed the 2008 Guarantee differed, whether he read it or not.

Conscious of all those gaps and what the presumably missing documents might have fed into Mr Brereton’s understanding of Mr Weatherer’s role, I turn to his letter of 12^th September 2008 (pg.151) which is the prelude to the Rhombus Loan and Guarantee I am concerned with at this preliminary trial. As I said earlier, Mr Brereton wrote:

“Your assistance in helping arrange this is much appreciated. In respect of the payment of funds would you like to issue a cheque or a bank transfer ? From recollection you have in the past done a cheque.” (My underline)

This makes no reference to Mr Weatherer ‘making an approach to the Claimant on their behalf’ as Mr Brereton’s 2003 letter did. As I noted above, it explicitly refers to Mr Weatherer issuing or ‘doing’ the Claimant’s cheques for previous loans. Mr Barrett also accepted Mr Weatherer had done so (possibly to him personally in 2003) but suggested it did not make him the Claimant’s representative. In fact, it clearly made him more than a representative if he was personally issuing its cheques. By 2008 the Defendants had received several from the Claimant issued by Mr Weatherer, whom Mr Brereton must therefore have seen not just as its representative but as I put it above ‘the person within the Claimant they were dealing with’. There is no suggestion Mr Brereton was at all surprised or concerned by this. In my judgement, along with the later documentation (e.g. in 2013) discussed above, this supports the finding that it is more likely than not he knew Mr Weatherer was the Claimant’s (nominee) director.

To summarise, I have found on the balance of probabilities that at the time of the Claimant’s first loan to Mr Brereton and Mr Barrett in 2002 ‘Mr Weatherer very briefly mentioned to Mr Brereton his directorship of the Claimant, but minimised it as something like a nominee director in a company without a shareholding and where he did not make the decisions’ that were made by his (probably unnamed) ‘client’. However, even if I am wrong about that, given the gaps in the documentary record between 2002 and September 2008 (and doubtless many other verbal conversations too) I infer on the balance of probabilities that by the time Mr Brereton wrote that letter in 2008, he must have been aware that Mr Weatherer, regularly issuing the Claimant’s cheques, was not just its representative, but its director (or at least, one of its officers). Given that Mr Brereton was partners with Mr Mason and Mr Barrett in Rhombus from 2002, telling him but not the others was not Mr Weatherer ‘deliberately concealing’ from them either, even if as his old friends they may have initially have been surprised. Doubtless, they would have been less surprised (and certainly they would have realised) with loan after loan having cheques issued by Mr Weatherer but decided upon by ‘his client’ (even if not named as Mr Weile). In any event, as I have noted, by 2013 (pg.224), Mr Barrett was calling Mr Weatherer their ‘creditor’, apparently to his face.

Indeed, even if Mr Brereton and the other Defendants were not aware by 2008 that Mr Weatherer was the Claimant’s director – and even if he really ‘should’ have told them as their accountant and friend - that does not mean he deliberately concealed it, the issue I am asked to decide. As I have said, I accept Mr Weatherer genuinely saw himself as akin to Mr Weile’s nominee and the latter as synonymous with ‘the company’. I accept that he genuinely felt (many would say, wrongly) that he did not need to mention his directorship. Moreover, as he also personally issued the Claimant’s cheques, I accept Mr Weatherer’s evidence that on the balance of probabilities he was not deliberately concealing his directorship from the Defendants at least up until the time of the Rhombus Loan and Guarantee in 2008. If he had wished to conceal his directorship, it would have been easy enough for him to make arrangements for others such as Mr Byers and Ms Elliot to issue the cheques or arrange bank transfers without any obvious input from him, such as a signature as would be on a cheque. Indeed, the fact that Mr Brereton and Mr Mason knew Mr Weatherer’s handwriting (each recognised it on the Guarantee) reinforces that he would not have issued cheques if trying to conceal his directorship from any of the Defendants up until 2008.

Therefore, on all the evidence (including later) in 2008 at the time of the Rhombus Loan and Guarantee I find on the balance of probabilities that Mr Weatherer had not ‘deliberately concealed’ from any of the Defendants that he was a director of the Claimant (still less its representative which would have been blatantly obvious from the issuing of the cheques). Whether he ‘deliberately concealed’ it later, I will consider later. Having considered what Mr Brereton’s September 2008 letter (pg.151) tells me about the parties’ conduct and understanding prior to it, I now turn to its actual subject – the Rhombus Loan which also led to the Guarantee; and how they were signed.

Mr Weatherer was not present at the signing by the Defendants so can only be of limited assistance with what he did and thought at the time. I have found the evidence of Mr Barrett entirely unreliable, Mr Mason’s largely unreliable and Mr Brereton’s partially unreliable. So given Popi M, Gestmin, Simetra and Martin the contemporary documents themselves (especially the Guarantee and Loan) are especially important evidence of how they were signed. As Males LJ said in Simetra at p.49:

“…[W]here there are contemporary documents which appear on their face to provide cogent evidence contrary to the conclusion which the judge proposes to reach, he should explain why they are not to be taken at face value or are outweighed by other compelling considerations…”

Given the difficulties with the Defendants’ evidence I have described, in this case the safest course is to consider what inference should be drawn on the balance of probabilities from the contemporary documents taken at face value and/or from to the known or probable facts; and then consider whether the Defendants’ evidence leads me to reach the same or a different conclusion. That is not the same as reversing the burden of proof, which remains on the Claimant on the balance of probabilities, although it seeks to prove that by the contemporary documents and inferences from them not eyewitness evidence. This does not require the Defendants to prove anything but given the difficulties with their evidence it involves focussing first on the documents. Moreover, once I have provisionally reached my conclusion on the documents and the witness evidence on the balance of probabilities, I will test it in another way by running through five different factual scenarios which Counsel in closing submissions teased out of the Defendants’ evidence. This is not to choose which is the least unlikely or even most likely – the error in Popi M - but to assist me to reach my final conclusion on the balance of probabilities as to how the Guarantee was signed.

Before turning to the Loan or Guarantee documents, I go back to Mr Brereton’s letter (pg.151). I find in September 2008, he called Mr Weatherer to request a loan to Rhombus Properties LLP of £100,000. Doubtless having checked with Mr Weile, Mr Weatherer agreed as the Defendant had previously repaid loans and made payments on the Partners’ Loan up to 2007. Once this was agreed, on (Friday) 12^th September 2008 Mr Brereton wrote to Mr Weatherer confirming the borrower details would be Rhombus Properties LLP at the Centre Court address. As I have discussed, he also asked whether it would be paid by cheque or bank transfer. Mr Brereton concluded ‘Thanks Alan, I will call you later in the week to arrange the details’ (perhaps as it was typed and posted/faxed on Friday 12^th September, but was dictated earlier in the week).

The timing is relevant because the Loan is dated (Wednesday) 17^th September and on instructions from Mr Weatherer, Mr Aldis did not challenge Mr Brereton’s (and Mr Mason’s) recollection that handwriting on the Guarantee dating it (Thursday) 18^th September was Mr Weatherer’s and I find on the balance of probabilities it was. That is a remarkably quick turn-around, especially since the borrower details were only provided on the Friday (by post and fax) and the documentation could only have been sent out by post (as Mr Weatherer says it was and I accept) that day. That means on the balance of probabilities the earliest the Defendants would have had a hard copy of the Loan and Guarantee paperwork to sign would have been Monday 15^th September. Yet the Loan document was dated 17^th September and Mr Weatherer must have had both documents back by the 18^th September to date the Guarantee that day. Given the shortness of time, the documents show the Loan and Guarantee must have been signed between 15^th and 17^th September. In fact, just touching on the Defendants’ evidence, Mr Brereton and Mr Mason both accepted the Loan and the Guarantee would probably have been signed on 17th September. Whilst Mr Barrett suggested it might not have been, given that he could not recall and was speculating, I find on the balance of probabilities the Loan and Guarantee were both signed by all on 17^th September 2008.

I turn next to the Rhombus Loan document (pgs.152-159). The loan was to the partnership, Rhombus Properties LLP rather than the partners personally, so provided for a separate guarantee. The loan was for £100,000 repayable in a single payment after 12 months with 12% compound interest but withholding tax at 20% so 9.6% pa. So, it was for a longer term than some of their other loans, but at the same if not a slightly lower rate of interest (their first loan in 2002 had been at 12% net interest).

This is a photograph of the signature page of the Loan document (pg.159):

Again, turning briefly to the Defendants’ evidence, Mr Brereton accepted he had signed, named and dated his part. Whilst Mr Barrett said that he had signed and named his part, he did not accept he had dated it because the ‘8’ was on its side. However, the obvious inference is that he wrote the date and made a slight slip. Given that handwriting is different from everyone else’s (including Mr Weatherer’s) it is difficult to see who else would have dated Mr Barrett’s part. Mr Mason accepted signing his part but did not know whether he had named and dated it. He confirmed he was not saying it was not his handwriting, but rather that he did not know whether it was his or not. However, given its ‘spiky’ form clearly resembles his signature (compare those of Mr Brereton, Mr Barrett and Ms Money), the obvious inference is it was his writing.

Turning back to the Loan document, the obvious inference is the Defendants each signed, named and dated on 17^th September 2008 ‘witnessed by’ Ms Money in each case. She did not suggest or annotate she had ‘witnessed’ some signatures not others. Moreover, the verb ‘witnessed’ presupposes that she was present and observed all the signatures being made. As I discuss later, ‘to witness’ something ordinarily means to ‘observe’, ‘watch’ or ‘see’ it (as in ‘eyewitness’) and indeed in a 1940s case it was held whilst a blind person may be ‘present’ at the signing of a will, they cannot ‘witness’ it. However, if A ‘witnesses’ B signing, the natural inference is that A is ‘present’ (leaving aside the complications of ‘witnessing’ through remote technology, which is not suggested here). Furthermore, Ms Money gave the ‘address’ (which did not specify ‘home’ or ‘office’) as 1301 Stratford Road – i.e. Centre Court. The obvious inference is the signing took place there on 17^th September, as Mr Brereton accepted was probable.

I now turn to the Guarantee (pgs.160-7). It specified the three Defendants as the ‘guarantors’ and the ‘customer liabilities’ being guaranteed as the loan (plus interest) to Rhombus Properties LLP of £100,000, which it stated was ‘to assist with working capital’ (pg.161). However, Mr Weatherer there appears to have written in that the Loan document was dated 18^th September 2008 in the same handwriting in which Mr Brereton and Mr Mason agreed he dated the signature page. Clauses 8.1-8.2 stated:

“You will be bound by this Guarantee from the time that you sign it, even if …someone else was supposed to sign…If this Guarantee is signed by more that one person as guarantor, each of you is liable to us individually as well as jointly. Your individual liability will not be affected by the fact that any guarantee or security given by any other guarantor is not valid or cannot be fully enforced.”

This is a photograph of the signature page of the Guarantee (pg.167):

Whilst the Defendants complained they were given no signing instructions for their Guarantee signature sheet (pg.167), Mr Mason had guaranteed loans from the Claimant before. Mr Brereton and Mr Barrett were regular personal borrowers from it and indeed very experienced in commercial lending. Therefore, the Defendants’ complaints ring extremely hollow. Mr Weatherer was not dealing with inexperienced personal borrowers who need post-it notes to show them where and how to sign a document. For commercial borrowers of the Defendants’ experience, a fairly quick scan of the signature page of the Guarantee (pg.167) would itself provide five implicit instructions:

In my judgement, the natural and obvious inference is all the Defendants as guarantors and Ms Money as their witness all signed together: (i) from the appearance and terms of the Guarantee alone; (ii) if not, from the Guarantee and Loan together; or (iii) if not, from both the Guarantee and Loan with the surrounding undisputed and probable facts:

So, my provisional conclusion is the natural inferences from the contemporaneous documents and known and probable facts are: (1) the Loan and Guarantee were both signed by each of the Defendants on 17^th September – as Mr Brereton and Mr Mason think probable; (2) that Ms Money witnessed (i.e. observed) all their signatures being made and signed to say so, most likely at Centre Court – as Mr Brereton thinks probable; and (3) all four actually did so and signed together – as the Defendants and Ms Money deny. I turn to whether the denials cause me to reach a different conclusion.

In short, even in the light of the Defendants’ evidence, I reach the same conclusions on the balance of probabilities for the following reasons relating to each witness (linking my observations about the evidence at the start of this judgment to my other findings – although Mr Miner’s evidence was not in fairness said to be relevant to this issue).

I can very briefly test my conclusion in a different way by running through in ascending order of likelihood the five different factual scenarios (re-ordered and lettered):

Finally, on the Guarantee point, on 18th September 2008, I accept Mr Weatherer received the completed Loan and Guarantee paperwork and as Mr Barrett said, checked it had been completed correctly, which it had although the date needed to be entered, which he did. I accept that on the face of the documents, for the reasons I have given, Mr Weatherer probably assumed all the guarantors and Ms Money had signed in each other’s presence, although he cannot recall that. Indeed, I also find that if he had not been reassured the Guarantee was properly executed, he would have sent it back to the Defendants for re-signature; and such was their need for money in the Credit Crunch, they would have re-signed it, making it clear they signed in each other’s presence. It would have been a small price to pay for a much-needed injection of money at a very difficult time when if the Claimant had backed out, Rhombus would have had few alternatives. In any event, as Mr Weatherer was satisfied the Guarantee had been executed properly and delivered as a deed by all the Defendants and witnessed by Ms Money, he arranged for a bank transfer of the £100,000 on 1^st October 2008 (pg.168). Weeks later the Claimant loaned to Mr Mason’s son each guaranteed (pg.316)

I finally turn to my remaining findings of fact about 2008-2020. This is a long period but I can take it very quickly, as my findings only relate to the ‘deliberate concealment’ issue which I have already partly dealt with and which is a fall-back argument on Estoppel. Indeed, it is important that my findings of fact on this later period are brief because they pose a risk of trespassing on trial and creating inadvertent issue estoppel. For example, I simply note that no payment was made on the Partner’s Loan in September 2008 or thereafter, but interest continued to accrue up to 2019 (pg.270). I also note WWB’s various credits and debits with Rhombus in 2009 (pg.169-74). I have already addressed WWB’s 2010 accounts and the £175,000 loan from Mantool which Mr Miner accepted was not from the Claimant (pgs.185-191, 201-216), where the guarantee used by Mr Weatherer to sign himself is the same as in this case (pg.216).

I also noted Mr Weatherer prepared Rhombus’ accounts in 2010 and 2011. As Mr Miner said, it was seemingly contrary to good accountancy practice for Mr Weatherer to audit accounts in a business which was in debt to a company of which he was a director (but that is a matter for a professional regulatory body, not the Court). However, all I am deciding is if Mr Weatherer deliberately concealed his directorship and I find on the balance of probabilities that in fact he did not do so from 2008-2016:

However, as I indicated at the start, from 2017 to 2019, Mr Weatherer was at times evasive – not about being the Claimant’s representative, which was obvious – but about being its director, at times when he might have been expected to mention it but did not. In September 2017– the 14^th anniversary of the Partners’ Loan and 9^th anniversary of the Rhombus Loan and Guarantee, Mr Barrett asked for some information on loans relating to Mr Mason, which appears to relate to a HMRC investigation into his tax affairs. Mr Weatherer replied on 25^th September 2017 (pgs.317-8) listing various lenders, including Mantool. However, Mr Weatherer said the Claimant’s ‘directors’ had initially been Mr Byers and Ms Elliot but no further business had been done with them since April 2009 and that to find out more its current ‘directors’ would need to be contacted. However, as Delaware Tax records from 2017 show (pg.343), Mr Weatherer was still the Claimant’s director at that point. In cross-examination, he suggested he meant ‘directors’ in terms of the people running the administrative side of the Claimant, which was not himself. I do accept that this is genuinely what he meant, but nevertheless, Mr Weatherer here did ‘deliberately conceal’ his directorship of the Claimant. However, this genuinely reflected how he saw himself more as the Claimant’s representative and those running its administration as its directors, just as I accept he had told Mr Brereton back in 2002. It was plainly poor accountancy practice and it was ‘concealment’ of his directorship and apparently ‘deliberate’ as I have said, but it was not dishonest. I return to whether it was ‘unconscionable’ in Equity later on.

In 2018, the HMRC tax investigation into Mr Mason continued and on 15^th August 2018, there was a meeting between Mr Weatherer, a WBB colleague, Mr Mason and Mr Barrett (pgs.319-335). HMRC were still investigating Mr Mason’s involvement in loans from the Claimant and other lenders and had become concerned that WBB had misled them (this has not been alleged against Mr Weatherer himself). Despite these very uncomfortable questions, Mr Weatherer did not bring up his directorship of the Claimant to flag up a potential conflict of interest. However, again whilst this is poor accountancy practice, I do not accept this was ‘deliberate concealment’ from Mr Mason and Mr Barrett who after all had previously called him their ‘creditor’. Indeed, sure enough, within a few weeks, Mr Weatherer was chasing Mr Barrett again for repayment of the Rhombus Loan and Guarantee to the Claimant (pg.263) and Mr Barrett replying to indicate Rhombus had an admission of blame for the earlier undervalue sale of Centre Court which could possibly cover debts (pg.266).

In 2019, relationships changed between the parties and they headed towards litigation:

Therefore, save for those limited and qualified findings of ‘deliberate concealment’ of his directorship by Mr Weatherer in 2017 and 2019, I reject that allegation against him. Indeed, it is telling that even after Mr Weatherer ‘clarified’ his directorship in January 2020, it did not provoke any real reaction or accusation in the Defendants’ solicitors’ correspondence in early 2020. Indeed, rather than continuing to push the Claimant’s corporate identity and allege ‘deliberate concealment’ by Mr Weatherer of his directorship, the Defendants’ solicitors changed tack to take the much more simple limitation point in their letters in March and May 2020 (pg.295-297). Mr Weatherer then sent final statements on the loans in June 2020 (pgs.336-338) confirming the balance of the Partners’ Loan was £140,967 and the Rhombus Loan (and so the Guarantee) was £240,996. In August 2020, the Claimant then issued this claim (pg.5).

Before I go back to Victorian case-law on ‘attestation’, I remind myself that this case concerns interpreting a modern statute: s.1(3) Law of Property (Miscellaneous Provisions) Act 1989 (‘LPMPA’). The modern approach to statutory interpretation was summarised by Lord Hodge in R(O) v SSHD [2022] 2 WLR 343 (SC) at ps.29-31:

“29 The courts in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’: Black-Clawson International Ltd v Papierwerke [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: ‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context (R v DETR, Ex p Spath Holme [2001] AC 349, 396.) Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.”__

30 External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty….But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity.

31 Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. Lord Nicholls, again in Spath Holme 396, in an important passage stated: “The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House….Thus, when courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”

With that in mind, I turn to s.1 LPMPA (as amended) so far as material, not just s.1(3):

“1 Deeds and their execution.

(1)

Any rule of law which— (a) restricts the substances on which a deed may be written; (b) requires a seal for the valid execution of an instrument as a deed by an individual; or (c) requires authority by one person to another to deliver an instrument as a deed on his behalf to be given by deed, is abolished.

(2)

An instrument shall not be a deed unless— (a) it makes it clear on its face that it is intended to be a deed by the person making it or, as the case may be, by the parties to it (whether by describing itself as a deed or expressing itself to be executed or signed as a deed or otherwise); and (b) it is validly executed as a deed by that person or, as the case may be, one or more of those parties.

(3)

An instrument is validly executed as a deed by an individual if, and only if— (a) it is signed— (i) by him in the presence of a witness who attests the signature; or (ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and (b) it is delivered as a deed…”

(4)

In…(2) and (3) above “sign”, in relation to an instrument, includes making one’s mark on the instrument and “signature” is to be construed accordingly.

(4A) (3)…applies [to an] instrument executed by an individual in the name or on behalf of another person whether or not that person is also an individual….”

However, the crucial aspect of s.1 LPMPA in this case is s.1(3)(a)(i) which I repeat:

“(3)

An instrument is validly executed as a deed by an individual if, and only if— (a) it is signed (i) by him in the presence of a witness who attests the signature…”

The first issue I am consider is the proper interpretation of the first half of s.1(3)(a)(i) LPMPA: namely the meaning of a deed being ‘signed by [an individual] in the presence of a witness’. In seeking ‘the meaning of the words Parliament used’ as Lord Reid put it in Black-Clawson, a helpful starting point is the ordinary meaning of those words. The word ‘signed’ in s.1(3)(a)(i) is defined by s.1(4) to include ‘making a mark’. However, the phrase ‘in the presence of’ and the word ‘witness’ are not defined by s.1. They are not synonymous with each other. One can be ‘present’ at an event without being a ‘witness’ to it. I mentioned earlier a case where a blind person was held to be unable to be a ‘witness’ signing of a will. As I discuss later, s.9 Wills Act 1837 differs from s.1(3) LPMPA, but amongst other requirements, it requires a testator to sign a will ‘…in the presence of two or more witnesses present at the same time…’ The case was In The Estate of Gibson [1949] P 434, when Pearce J said at p.436-7:

“There is no direct authority on the capacity of a blind man to witness a will. The normal meaning of "attesting" is testifying or bearing witness to something and the normal meaning of "witness" is one who is a spectator of an incident or one who is present at an incident. Is mere presence, without the faculty of sight, enough to constitute a witness for the purposes of s. 9 of the Wills Act, 1837 ? ….In the light of common sense, and without any authority, I should be inclined to hold that for the purposes of the Act, a "witness" means, in regard to things audible, one who has the faculty of hearing, and in regard to things visible, one who has the faculty of seeing. The signing of a will is a visible matter. Therefore, I think that a will is not signed "in the presence of" a blind person, nor is a blind person a witness for the purposes of the section….”

However, it is important to be clear about the weight I place on Gibson. I do not say an earlier case on a different statute defines the meaning of a later one, but rather that it clarified the meaning of ordinary words or phrases which a later statute used. For similar reasons, the signing of a deed is a visible matter. The ordinary meaning of being a ‘witness’ to the signature in a deed is not just to be ‘present’ at it - but asleep or engrossed in watching television (to pick extreme examples to make the point) - but to ‘observe’, ‘watch’ or ‘see’ the signature(s) being made. Moreover, the signature on the deed should be ‘witnessed’ in that sense, rather than ‘recognised as the usual signature’. A ’witness’ need not be familiar with the party’s signature: the role is to ‘witness’ it.

However, as Lord Hodge said in R(O) at p.29, ‘the meaning of the words Parliament has used’ depends on their meaning not just in isolation, but in their statutory context:

I therefore turn to examining my findings of fact against this interpretation of ‘a deed being ‘signed by [an individual] in the presence of a witness’ under s.1(3)(a)(i):

This issue stems from the second half of s.1(3)(a)(i) LPMPA: whether the ‘witness’ in whose presence the individual ‘signed’, ‘attests the signature’. Again, turning first to the ordinary meaning, ‘signature’ is an ordinary word and in any event, is defined by s.1(4) LPMPA to include the party simply making a mark. This issue hangs on the meaning of ‘attestation’: not an ordinary word and not defined by the LPMPA. Indeed, there is no real clue as to the meaning of ‘attest’ anywhere in that short statute.

Given that ambiguity, it is particularly helpful and indeed legitimate to go back to the 1987 Law Commission report, which at p.2.13 in recommending that ‘a signature on a deed should be witnessed and attested by at least one person’ added this footnote:

“‘Attestation’ involves more than simply witnessing the execution of the deed; it also includes the subscription of the witness' signature following a statement (attestation clause) that the document was signed or executed in his presence (Re Selby-Bigge [1950] I All E.R. 1009). It is necessary for the witness actually to ‘observe’ the event (….Gibson…). These two requirements are essential as they preclude the necessity for later requiring parol evidence regarding the execution of the document, which would lead to great difficulties after a long lapse of time when there is the possibility that one or more of the parties may have died.”

I have already referred to the relevance of Gibson to the first aspect of s.1(3)(a)(i) ‘signed…in the presence of a witness’. Selby-Bigge was another will case which held the clause in a will which referred to the witnesses ‘attesting’ the testatrix’s signature was valid as it necessarily included a reference to the witness not only observing it but also ‘subscribing’ it i.e. signing it to say they had done. Hodson J in Selby-Bigge referred to dictionaries defining ‘attest’ as ‘bearing witness’ or ‘affirming the truth’ of something (similar to the definition of ‘attest’ Pearce J gave in Gibson), but he stressed in law it also implied the act of writing/signing by the witness. The Law Commission (including such legal luminaries as Beldam J, as he then was; and Professor Brenda Hoggett, now better known as Lady Hale) therefore summarised the two requirements of ‘attestation’ as (i) ‘witnessing the execution of the deed’, in the Gibson sense of ‘observing the event’ (which I have already addressed); and (ii) ‘subscription (i.e. writing) of the witness' signature following a statement (attestation clause) that the document was signed…in his presence’ in the sense discussed in Selby-Bigge. It also explained its purpose being to avoid oral evidence about execution much later.

Mr Bradshaw submitted the attestation of the Guarantee by Ms Money in this case did not comply with the requirements of ‘attestation’ in s.1(3)(a)(i). I repeat the page again:

I can deal with the first point briefly, since as I have already discussed the attestation clause ‘witnessed by’(at least in the absence of any contrary indication) presupposes Ms Money was present. This point reads too much into the Law Commission report which made it clear at p.2.14 it was not prescribing any particular attestation clause and nor indeed does s.1 LPMPA. In my respectful opinion, all the report meant was that the ‘attestation clause’ had to confirm a valid attestation, not that that clause explicitly had to use any particular words. Indeed, Selby-Bigge which the report refers to for that proposition was itself a case about words being read into an attestation clause. In Selby-Bigge, the two witnesses to the testatrix’s signature signed this clause: ‘Signed by the testatrix in our presence and attested by us in the presence of her and each other’. Hodson J held that was valid compliance with the Wills Act 1837 which required witnesses to ‘attest’ and ‘subscribe’ because ‘attestation’ presupposed ‘subscription’. Likewise, here Ms Money signing to say she ‘witnessed’ the signatures presupposed that she was ‘present’ at them, as ‘witnessing’ is more specific, as explained in Gibson. Indeed, I have found as a fact Ms Money was indeed ‘present’ in Scenarios A and B. For good measure, this is consistent with other authority on attestation. In Selby-Bigge, Hodson J noted Burdett v Spilsbury (1843) 8 ER 772, where the Lords held witnesses to a will who ‘signed as a witness’ validly ‘attested’, as Lord Lyndhurst said at p.801:

“The party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then an attesting witness.”

Similarly, ‘attest the signature’ in s.1(3)(a)(i) only requires a ‘witness’ to the party signing in their presence to ‘sign as a witness’ in order to ‘attest’. Ms Money here did.

Mr Bradshaw’s second point (albeit transported here from ‘estoppel’) I need to deal with at slightly more length. He articulated it helpfully in his Skeleton Argument:

“Of itself s.1(3) is silent as to whether a single witness may attest multiple signatures by a single signature of his or her own, as is purportedly done in the Guarantee. Absent such statutory constraint, HM Land Registry's Practice Guide 8 on the Execution of Deeds states as follows at section 2.1.2:

We look to see that a witness has signed the deed, that their signature clearly records the witnessing of the signing of the deed by the individual concerned... The same witness may witness each individual signature, but each signature should be separately attested, unless it is absolutely clear by express wording on the face of the attestation that the witness is witnessing both or all signatures in the presence of the named signatories.

The Defendants submit that this interpretation is not only correct as a matter of policy, but is necessarily correct.

As set out in the line of authority referred to in Netglory, the rationale behind attestation has, since the Statute of Frauds 1677, been that the witness is confirming by his or her attestation that the person executing the deed actually did so (Netglory, paragraphs 130, 134, 137, 140, 142, 144). Where a single witness attests the making of one signature, there is no ambiguity about what is being attested to. Nor indeed is there any ambiguity if two witnesses attest, as is required by s.1(3)(a)(ii) LP(MP)A 1989 where a deed is executed at the direction of a person (e.g. where that person cannot physically sign the deed). The two witnesses are attesting to a single event. By contrast, where one witness purports to attest two or more signatures executing a deed, it is quite unclear and ambiguous, unless the very specific wording alluded to by HMLR’s practise guidance is adopted, as to what is being attested to. The attestation might equally well relate to just one of the signatures, in which case it would be impossible to say which of the signatures comprised proper execution of the deed. Accordingly, the Defendants submit that a deed with multiple signatures purportedly attested by a single witness cannot, without further clear wording that is not present in this instance, be on its face a properly executed deed.”

I need not (yet) turn to Netglory, since I am prepared to assume for the sake of this argument that ‘the rationale behind attestation [is] that the witness is confirming by his or her attestation that the person executing the deed actually did so’. The Land Registry guidance gives a range of suggested wordings for attesting multiple signatures, but it says ‘Signed as a deed by A and B in the presence of X’ is not acceptable as it not clear that both A and B have signed in the presence of the sole witness X, whilst ‘Signed as a deed by A and B both in the presence of X’ is acceptable. Mr Bradshaw also argued the Claimant could and should have used the same pro-forma for the Guarantee in September 2008 that it used for Mr Mason and his son’s guarantee in October 2008 (pg.316), providing for a similar witness attestation as the Guarantee, but separately under each guarantor signature. I accept that it is probably a better precedent for multiple-signatory guarantees as it avoids this argument. However, it notably goes further than the simpler ‘acceptable’ clause in the Land Registry guidance where the addition of the word ‘both’ turns an attestation clause they will not accept into one that they will. One can always add verbiage to precedents to avoid arguments, but as Hodson J said in Selby-Bigge at 1010G, skilled practitioners prefer to simplify.

In any event, the question is not which is the best precedent for a multiple-signatory, single-witness deed attestation clause. It is whether this one complied with s.1(3)(a)(i): “…it is signed by him in the presence of a witness who attests the signature…” in that the clause attested multiple signatures collectively rather than the individual signatures separately. Perhaps since many clauses in these circumstances would follow the Land Registry template, I was not taken to any authority on this specific point. It does not appear to be addressed in Emmet & Farrand on Title (2022) at p.20.015 on attestation. Neither is it addressed explicitly in ‘Formation and Variation of Contracts’ (2018) by Prof. Cartwright at p.7-11. But in a footnote, he mentioned comments of Geraldine Andrews QC (then co-author of Law on Guarantees and now Andrews LJ) at ps.11-12 of Darjan v Hurley [2012] 1 WLR 1782 (HC) (a case about a lease signed as a deed):

“11 Mrs Hurley also raises a point in respect of the lease itself, namely, that it was not validly executed as a deed and thus it fails to comply with the requirements of section 1(3)(a)(i) [LPMPA]. On Mrs Hurley’s evidence, the lease was not ‘signed by her in the presence of a witness who attested the signature’. The signature which appears below hers on the lease was appended by an unidentified individual on some subsequent occasion. The only signatures that she saw on the lease at the time when her husband asked her to sign it were those of two directors of Darjan (…in the space for the landlord to sign), and there was nobody present to witness it. Indeed, that was a point that she made to her husband at the time, when expressing her disquiet about signing the document.

12 I observe that no one appears to have witnessed Mr Hurley’s signature on the lease either. Although Darjan would not necessarily have known that the signature below Mrs Hurley’s was not that of an attesting witness, the absence of a witness to Mr Hurley’s signature appears to have been overlooked by everyone. On the face of the lease, it does not appear to be possible to interpret the signature of the unidentified person as an attestation of the signatures of both the Hurleys. Thus, the deficiency in the execution of the lease as a deed is manifest, and it does not comply with requisite statutory requirements.” (My underline).

Andrews LJ (as she now is), with her vast experience in this field, plainly there thought the issue was not whether one witness can in principle attest collectively multiple party signatures, but whether it was possible on the face of that deed to interpret them as having done so (finding it was not). By contrast, on the face of this deed it is entirely possible: that is just how I have interpreted Ms Money’s signature on this Guarantee.

However, as I was not addressed on Darjan, in fairness, I will consider the issue as one of statutory interpretation of s.1(3)(a)(i) LPMPA. In my judgment, Ms Money signing under ‘and witnessed by’, itself under the three signatures of the three guarantors, themselves under ‘signed and delivered as a deed by’ was a valid ‘attestation’ of all three signatures, which complied with s.1(3)(a)(i) LPMPA for three reasons:

I turn to examining my findings of fact against this interpretation of ‘a deed being ‘signed by him in the presence of a witness who attests the signature’under s.1(3)(a)(i) LPMPA (with apologies for a degree of repetition from earlier in the judgment):

However, with Mr Bradshaw’s third argument, all the Defendants may benefit if it is correct. He submitted that just as existing case-law such as Selby-Bigge and Gibson is a legitimate aid to construction of the words and phrases Parliament later used in s.1(3)(a)(i), so too is earlier Victorian case-law on ‘attestation’ which he submitted required that to be done by the witness in the presence of the signatory. Of course, in Scenario A, I have found that is precisely what happened on the balance of probabilities – i.e. that they all (including Ms Money) signed in each other’s presence and that is the short answer to this subtle point. However, in the event I am wrong to find that all four signed together, then I accept that Ms Money did not attest in the presence of all the signatories in Scenario B and Scenario C (although, again the issue of estoppel arises).

Moreover, this is an important issue of statutory interpretation on which I have heard full argument from experienced and skilful Counsel and where the authorities do not all speak with one voice. Emmet & Farrand set out its view on the debate at p.20-015:

“According to the Law Commission’s Consultation Paper on Electronic Execution (dated 21 August 2018) Chapter 4—the current law is that: “The signature of the witness must also be affixed at the time of execution” (para.4.53) with a footnote (70) citing appellate court authority: Wright v Wakeford [1803-13] All E.R. Rep. 589, 591. Also added was this comment: “In the Australian case of Netglory Pty Ltd v Caratti [2013] WASC 364 at [148] to [169], following an extensive survey of English authorities, the court concluded that attestation must be contemporaneous with execution by the signatory”. Unfortunately, these authorities were not drawn to the attention of the judge in Wood v Commercial First Business Ltd [2019] EWHC 2205 (Ch), where Mr James Pickering (sitting as a Deputy Judge of the High Court) misconstrued s.1(3) of the 1989 Act as follows: "the proper interpretation is that while there is a requirement for the person executing the deed to sign in the presence of a witness, it is not a requirement for the witness to sign in the presence of the person executing the deed (or indeed of anybody else)." However, the statute does not require the witness to “sign” but to “attest” and does so in the present tense. Accordingly, the better view must be that, in practice and in law, witnesses attest signatures on instruments by signing attestation clauses at the time.”

Unsurprisingly, Mr Bradshaw commends this analysis to me with Scenarios B and C. (In fairness, he accepted it would not arise on Scenario A which I have found proved).

Whilst Mr Aldis referred me to another part of ‘Formation and Variation of Contracts’ on deed formalities, Professor Cartwright was less certain in this debate at p.7-11:

“It was held in Wood v Commercial First Business Ltd that, although there is a requirement for the person executing the deed to sign in the presence of the attesting witness, it is not a requirement of the [LPMPA] for the witness to sign the attestation in the presence of the person executing the deed (or indeed of anybody else). This decision was based on the wording of the [LPMPA], although there are old cases which held that, at common law, the signature of attestation should form part of the execution of the deed, and therefore should be contemporaneous with the attested signature. However, the decision opens up the possibility of a time-lag between the (witnessed) execution of the deed and the signature by the attesting witness and even, perhaps, the witnessing of a deed remotely by video-link technology if the document which the witness has seen being signed over a video-link has to be sent to the witness for later (physical) signature. The Law Commission has said that, although it would be open for a court to decide that remote or virtual witnessing would satisfy the statutory requirements, they are not persuaded that parties can be confident that the current law would allow for a witness viewing the signing on a screen or through an electronic signature platform, without being physically present. Until this is clarified either by the courts at a higher level, or by legislation, parties should continue to use only physically-present witnesses, and are best advised to ensure that the attesting witness adds his signature immediately.” (Footnotes omitted)

I should say immediately the ‘time lag’ concern is a valid one, but in Wood the judge (Mr Pickering - now KC sitting as a Deputy High Court Judge) held a witness did not have to be in the physical presence of a signatory in order to attest because he did not consider there was any such requirement in s.1(3) LPMPA. He was not concerned with the separate issue of what ‘signing in the presence of a witness’ means (explicitly part of s.1(3)(a)(i)). Nothing he said throws into doubt the Law Commission’s analysis that ‘the presence of a witness’ there means ‘physical presence’ (whether the First-Tier Tribunal case Prof. Cartwright referred to was right to do so is a different issue). The issue does not arise in this case either and I say no more about it, other than to note s.9 Wills Act 1837 has been amended specifically to provide that ‘presence’ of the testator or the witnesses for wills from 2020-2024 can include video conferencing.

I set out Mr Pickering KC’s full analysis on this in Wood, even though it is not binding on me, as I respectfully could not improve upon it. (Original underline):

“42.

As outlined above, it is Mrs Wood’s case that in order for a deed to have been validly executed: (1) the person executing the deed must have signed in the presence of a witness, (2) the witness must have attested that signature, and (3) the witness must have so attested in the presence of the person executing the deed. In short…both the person executing the deed and the witness must have not only signed but they must have so signed in the presence of the other.

43.

The Assignees accept propositions (1) and (2) above but not (3). It is their position that while the person executing the deed must of course sign in the presence of the witness, the witness need not sign in the presence of the person executing the deed.

44.

The relevant requirements for the proper execution of a deed are contained in section 1(3) of the Law of Property (Miscellaneous Provisions) Act 1989 (“LP(MP)A 1989”). This provides: “(3) An instrument is validly executed as a deed by an individual if, and only if — (a) it is signed — (i) by him in the presence of a witness who attests the signature; or (ii) at his direction and in his presence and the presence of two witnesses who each attest the signature; and (b) it is delivered as a deed.”

45.

I was told by both counsel that there was no direct authority on the point. I was, however, invited by counsel for the Assignees to consider and contrast the above wording of section 1(3) of the LP(MP)A 1989 with the wording of section 9 of the Wills Act 1837 which requires certain acts of a witness to be carried out “in the presence of the testator”. I did find the above comparison of some use but I have to say that in my view by far the most significant comparator appears within section 1(3) itself. Indeed, as can be seen, section 1(3)(a)(i) provides that the person executing the deed must do so “in the presence of a witness who attests the signature”. By contrast, however, there is no such wording in relation to the witness. In short, therefore, while for the person executing the document there is a clear requirement that he or she signs “in the presence of a witness”, for the witness there is no such express additional requirement.

46.

Counsel for Mrs Wood urged me to take into account policy considerations and in particular invited me to consider Law Commission Working Paper No. 93 1985: Transfer of Land. Formalities for Deeds and Escrows At paragraph 3.2 it described aims for having formalities for deeds as follows: “(a) Cautionary: that is, trying to ensure that the maker does not enter into the transaction without realising what he is doing; (b) Evidential: providing evidence that the maker did enter into a transaction, and evidence of its terms…” On this basis, so it was submitted, it is obvious that those drafting the LP(MP)A 1989 must have intended not only that the person executing the deed must sign in the presence of a witness but also that the witness must sign in the presence of the person executing the deed.

47.

While I understand the policy implications of the above submission, it seems to me plain that if those drafting the LP(MP)A 1989 had wanted it to be a requirement that the witness should sign in the presence of the person executing the deed, it would have been very easy for that to be expressed. Indeed, section 1(3) could have been drafted to read that: “an instrument is validly executed as a deed by an individual if, and only if (a) it is signed (i) by him in the presence of a witness who attests the signature in the presence of the individual executing the deed …” As can be seen, however, while the first reference to “in the presence of ” does appear in s.1(3), the second (and underlined) reference does not. Those drafting clearly chose to include the words “in the presence of ” in relation to the person executing the deed but chose not to include those same words in relation to the witness. It is unlikely that this was an accidental omission.

48.

Overall, given what seems to me to be the clear wording of section 1(3) , I find that the proper interpretation is that while there is a requirement for the person executing the deed to sign in the presence of a witness, it is not a requirement for the witness to sign in the presence of the person executing the deed (or indeed of anybody else).”

Respectfully this is a classic exercise in statutory interpretation. Consistent with the (later) guidance of Lord Hodge in R(O), it affords primacy to the actual words of s.1(3) LPMPA over ‘external aids’ such as the 1985 Law Commission report which led to s.2 LPMPA to which Mr Pickering KC was referred. In any event, there is nothing to the contrary in the more relevant 1987 report leading to s.1 LPMPA. As I said, p.2.13 of the 1987 report stated two requirements of attestation of deeds: witnessing signature and signing of an attestation clause. There is no suggestion of a third requirement that the latter needed to be in the presence of signatories. Nor do Emmet or Prof Cartwright refer to any case on the LPMPA that holds there is such a requirement.

However, as they both do fairly point out, in Wood Mr Pickering KC was not referred to any authority at all on ‘attestation’, including pre-LPMPA English authority, helpfully summarised in Netglory by Edelman J (then in the Supreme Court of Western Australia, now a Justice of the Australian High Court – the equivalent of our Supreme Court). Netglory was an extreme case on the facts where Edelman J (at ps.148-9) found the supposed ‘witness’ (who had previously been in jail) attested seven years after the signature. Again, whilst not binding on me, I set out his analysis in full at ps.151-169, but for ease of reference, I keep the footnote numbers but omit the citations:

“5.3

Attestation must be contemporaneous with the signature witnessed…

151 As I explained above, in Wright v Wakeford70 one question was the effect of subsequent attestation of a deed purportedly made under a trust power for the sale of land. That trust power required attestation by two or more credible witnesses. At first instance, the Lord Chancellor considered 'the question, whether an attestation, not contemporaneous, but subsequent, would do'. He said that he had 'a very strong opinion, that a subsequent attestation would not do'.71 The reason for this was that the execution of the power, by deed, was a limitation upon the use so that unless the limitation arose at the time of the use then it could not arise at all. In other words, if the limitation were not valid at the time, it could not subsequently become valid.

152 The Lord Chancellor then directed a case for the Court of Common Pleas, where a majority of the Court (Sir James Mansfield CJ dissenting) held that the attestation was required to be contemporaneous.72

153 In a joint judgment, Heath, Lawrence and Chambre JJ held 'the attestation required to constitute a due and effectual execution of the power, ought to make a part of the same transaction with the signing and sealing ... such being the usual and common way of attesting the execution of all instruments requiring attestation'.73 Their Lordships did not confine themselves to the circumstance that the party to be bound had died at the time of subsequent attestation.

154 This decision was followed two years later by Lord Ellenborough CJ in Doe v Peach.74 In that case, the attestation was invalid because it was not expressed to extend to the act of signature. The Chief Justice confined his remarks to the circumstance in which the subsequent attestation by the witness sought to cure the defect in circumstances in which the party had died. Delivering the opinion of the Court, the Chief Justice said:

We think that [the defect in attestation] is not cured by the second attestation made after the death of one of the parties. It is not necessary to enter into the question at what precise time an attestation must be made; but it seems difficult, if not impossible, to say, that an attestation subsequent to the death of one of the parties should give an operation to their act, which it had not during the life of the parties. And upon this point also the case of Wright v Wakeford is an authority.75

155 Again, in Doe v Pearce,76 a power was found to be invalid because the attesting witness did not attest the sealing as well as the signing. Serjeant Copley argued that a subsequent oral attestation by the witness was competent. But Gibbs CJ held that it was impossible to distinguish the case from Wright v Wakeford. The power was held to be invalid.

156 My research suggests that modern authority concerning the timing of the statutory requirement of attestation is very limited. However, as a matter of principle, the approach of the majority in Wright should be preferred in the interpretation of s 9 of the Property Law Act for five reasons.

157 First, this interpretation is consistent with the authority which preceded s 9 in cases which involved a requirement of attestation under other statutes and powers, including the leading case of Wright. As I have explained above, the decision in Wright was approved by the House of Lords in the watershed case of Burdett v Spilsbury,77 which considered the requirement for written signature of an attesting witness.

158 The assumption of contemporaneous attestation is also embodied in Roberts v Phillips,78 (which was described by the Privy Council as having 'invariably been followed'79): 'it should be subscribed by the witnesses in the presence of the testator; ie that they should subscribe their names upon the will in his presence'.

159 The passage on attestation in the leading work, Norton on Deeds, is also premised upon the assumption that attestation (including signature) is contemporaneous with witnessing: 'Attestation means that one or more persons are present at the time of the execution for that purpose (ie for the purpose of attesting the execution) and that as evidence thereof they sign the attestation clause ‘'

160 Section 9 was enacted against, and ought to be interpreted as incorporating, this historical understanding of the meaning of attestation.

161 Secondly, there is little reason to deny validity to a purported deed where the attesting witness signs after the party who was witnessed has died, as in Doe v Peach, but, at the same time, to permit the attesting witness to sign at any time, possibly many years later, when the party whose signature was witnessed is still alive. Many years after the event the living party might have little or no memory of the event.

162 Thirdly, s 9 of the Property Law Act sought to create uniformity of the requirements for creation of a deed. Parliament cannot have intended to do so in a manner which would undermine the purposes of attestation. If subsequent signature by an attesting witness were permitted then at least one of the purposes of the formality of written signature could be easily defeated.

163 One purpose of the attestation requirement in s 5 of the Statute of Frauds 1677 29 Car 2 was the goal of avoidance of fraud including by a written signature from an attesting witness. This purpose would be undermined if an alleged witness could simply sign the deed, many years later, even immediately before litigation or possibly even in the witness box.

164 Fourthly, s 9 of the Property Law Act was introduced to provide 'a simple and uniform method for execution of a deed and [to] dispense with the necessity for sealing, indenting and formal delivery'.

165 The intended simplicity of the formality in s 9 would be significantly undermined if the signature of an attesting witness were required (as explained above) but that signature could be affixed at any time after the transaction.

166 The consequent complications undermining the intended simplicity of s 9 might be expressed as a series of questions. How could a person wishing to rely upon the deed recall if the deed had been witnessed, especially after the passage of many years? How could any suspected witness be located without any subscription of his or her name? What would be the status of the purported deed which had not satisfied the requirement of signature but might do so in the future? Could a purported deed be invalid due to the absence of an attesting signature but subsequently become valid at an unknown point in time when the attesting witness signs? If so, would the cause of action accrue only when the deed became valid? Would the limitation period run only from that point in time so that the running of time might be indefinitely postponed ? How could that point in time be determined if the attesting witness did not date his or her signature ?

167 Fifthly, although contemporary authority on this point is slim, one modern reference touching on the issue of timing occurred in Edwards v Skilled Engineering Pty Ltd.82 In that case, Priestley JA (with whom Kirby P and Meagher JA agreed) considered whether initials or 'a very stylized signature' was sufficient attestation. In finding that it was, Priestley JA said ‘'formalities necessary for the execution of the deed are on the face of the deed complied with'

Netglory relied upon the decision in Reid Murray v David Murray Holdings Pty. That decision does not support Netglory's submission. In that case, the affixing of the corporate seal of the company to be bound by the deed was not within the express authority of the directors. But the affixing of the seal was subsequently ratified by the directors. The issue was whether there had been proper delivery of the deed…..There was no issue concerning attestation….”

I very respectfully make seven observations on Netglory and on this issue generally.

Firstly, Edelman J in Netglory summarised the Victorian cases as establishing a rule that ‘attestation must be contemporaneous with the signature witnessed’, but strictly the actual rule was that ‘attestation ought to make a part of the same transaction with the signing and sealing’. At the time, for a deed to be validly executed, it needed to be (in the famous phrase) ‘signed, sealed and delivered’ as well as attested. As Edelman J explained earlier in Netglory at ps.128-130, one leading case on attestation was Wright, which concerned a sale of land where there was a defective attestation because the witnesses had only attested the sealing and delivery not the signing and such ‘partial attestation’ was held defective. 20 years later the witnesses had purported to attest the signing but the Lord Chancellor at first instance said ‘attestation, not contemporaneous, but subsequent would not do’. However, he directed consideration by the Court of Common Pleas. The majority of that Court agreed, but for slightly different reasons:

Following Wright, in Peach there was again a defective attestation not covering the signing and a later attempt by the witnesses to cure it. Unsurprisingly the Court followed Wright and as Edelman J quoted in Netglory, Lord Ellenborough in Peach said it was ‘not necessary to enter into the question at what precise time an attestation must be made’ but suggested attestation after a party’s death was too late. In Pearce, there was again a defective attestation (this time sealing not signing) and a later attempt to cure (this time by oral attestation), but in a three-line judgment, Gibbs CJ followed Wright. As Edelman J noted in Netglory at ps.131-6, in Burdett the Lords approved Wright but held (as I noted above) where the witnesses had simply attested as witnesses that was valid (as there was no ‘partial attestation’ as in Wright, Peach and Pearce) and so the ‘later curing attestation’ point did not arise. I come back to Roberts in a moment, but all these other cases either followed or endorsed Wright on later attempts to cure defective attestation and its ratio that attestation had to ‘make a part of the same transaction with the signing and sealing’ rather than ‘contemporaneous’ as such.

Secondly however, in Netglory Edelman J plainly considered attestation ‘making a part of the same transaction with the signing and sealing’ in Wright was synonymous with it being ‘contemporaneous with the signature attested’, especially as ‘sealing’ had been abolished (as it was here by s.1(1) LPMPA). I respectfully agree, given the word Edelman J used (following the Lord Chancellor in Wright) was ‘contemporaneous’, not ‘simultaneous’. Whilst it is wrong to read judgments of even a judge as internationally-respected as Edelman J like statutes, the ordinary meaning of ‘contemporaneous’ is two events occurring in the ‘same period of time’. When the judges in Gestmin, Simetra and Martin refer to ‘contemporaneous’ or ‘contemporary’ documents, they mean those from the same period of time as an event, not just precisely simultaneous with it. So, I respectfully consider the 2018 Law Commission report at p.4.53 noted in Emmet slightly glossed Netglory as requiring attestation ‘at the time of execution’: Edelman J’s test was ‘contemporaneous with the signature attested’. Attestation ‘making a part of the same transaction with the signing’ is very likely to need to be ‘in the same period of time’ i.e. ‘contemporaneous’ with it. If so, that fulfils the purposes of attestation both ‘cautionary’ and ‘evidential’ as the 1985 Law Commission report put it, namely: (i) to protect the signatory and other parties with formalities as Pill LJ said in Shah, (ii) to avoid fraud and evidence a party did execute as Edelman J said in Netglory; and (iii) to reduce the need for oral evidence later as the 1987 Law Commission report said.

Thirdly, neither Netglory, nor any case cited in it or to me, require the attestation of deeds ‘in the presence of the signatory’; and neither would it further those statutory purposes. Edelman J’s ‘contemporaneous’ test in Netglory does not require that and whilst he mentioned Norton on Deeds in 1928 stating such a requirement, it is not clear whether it related to wills, since that is an express requirement of s.9 Wills Act 1837. Indeed, the only case Edelman J cited in Netglory suggesting attestation must be in the presence of a testator was Roberts which was actually a will case under that statute. Yet with that model before it in 1989, Parliament did not choose to require the same for deeds in s.1 LPMPA, indeed the Law Commission report at p.2.12 stated it wished to avoid the additional complications of will attestation. Doubtless simultaneous signature and attestation is often convenient, as discussed in my findings of fact. Mr Pickering KC in Wood focussed on the statutory wording, but my answer on the cautionary and evidentiary purposes of attestation is what matters about the witness’ signature is that it evidences the signatory’s one, not vice-versa. Signature of a witness in the presence of a signatory offers little additional evidence of execution, or protection against fraud or undue influence etc. Indeed, requiring it would encourage disputes and oral evidence - as here: whether Ms Money validly attested had I accepted the ‘busy office scenario’.

Fourthly, therefore Mr Pickering KC’s analysis in Wood is not ‘per incuriam’ and I agree with him attestation in the presence of the signatory is not required by s.1(3) LPMPA. True, Emmett at p.20-015 notes s.1(3)(a)(i) requires the witness not to ‘sign’ but to ‘attest the signature’ - in the present tense. However, ‘signing’ is implicit in ‘attesting’: Selby-Bigge and the present tense features throughout s.1(3) LPMPA:

“An instrument is validly executed as a deed by an individual if, and only if (a) it is signed (i) by him in the presence of a witness who attests the signature…and (b) is delivered as a deed.”(My underline)

Emmet’s emphasis at p.20-015 on the present tense of ‘attests’ proves too much, as all three elements of execution in s.1(3) - a witnessed signature, attestation and delivery – are in the present tense. Yet, as Emmet itself observes at p.20-005, whilst ‘delivery’ of a deed can be unilateral upon signature, it can also be by physical delivery to the other party to the deed, which by definition happens later. Indeed, Emmet then emphasises:

“….[C]hronologically delivery is the last requirement of a deed. If anything, whether signing or sealing or the filling in of material blanks, comes after, then the deed must be redelivered: Tupper v Foulkes (1861) 9 CB (Ns) 797.”

Fifthly, this practical fact that in execution delivery comes last, means that whilst the present tense of ‘attests the signature’ in s.1(3) LPMPA does not require the witness to attest in the presence of the signatory, the present tense of ‘is delivered as a deed’ does prevent ‘retrospective re-attestation’ (for want of a better phrase) of an already-delivered deed. In other words, if Parliament intended (in the sense explained in R(O) at p.31) to permit such ‘retrospective re-attestation’, it would have chosen to word s.1(3)(b) as “is (or has previously been) delivered as a deed.” The fact Parliament did not do so suggests it must have intended to prevent such ‘retrospective re-attestation’ under s.1(3)(a)(i) LPMPA. This is probably because it would lead to the problems Edelman J noted in Netglory at ps.162-6 – supporting his view the Western Australian Parliament intended ‘contemporaneous’ attestation. The solution to defective attestation is not ‘retrospective re-attestation’, but either re-delivery (Tupper) or if dispute ensues potentially estoppel (Shah). So, in this way, s.1(3) LPMPA achieves a similar outcome to Wright and the following cases which disallowed such ‘retrospective re-attestation’.

Sixthly, it is therefore unnecessary, and in my judgement also inappropriate, to interpret ‘attests’ in s.1(3)(a)(i) LPMPA by reading-in Victorian cases on attestation, as Edelman J in Netglory did with ‘attested’ in s.9 Law of Property (Western Australia) Act 1969:

“9(1) Every deed whether or not affecting property (a) shall be signed by a party to be bound thereby; and (b) shall be attested by at least one witness not being a party to the deed but no particular form of words is required for the attestation.

(2)

It is not necessary to seal any deed except in the case of a deed executed by a corporation under its common or official seal.

(3)

Formal delivery and indenting are not necessary in any case….”

Unlike s.1(3) LPMPA, s.9 contains no explicit requirement for ‘delivery’ at all or for the signature to be in the presence of a witness; and there is a specific requirement the witness not be a party to the deed that s.1(3) does not contain. Given the difference in language, we should not be surprised that different approaches are taken to ensure effective execution of deeds and to avoid the practical problems and frustration of statutory purpose with attestation years after the event Edelman J discussed in Netglory. Having removed ‘delivery’ and ‘sealing’, to do so, the Australian statute placed most of weight its weight on ‘attestation’, pointing the way for Edelman J in Netglory to read in older case-law. By contrast, s.1(3) LPMPA provides a more intricate statutory code for ‘execution’ where there is much less ‘room’ to read-in those older authorities.

Therefore, unlike with that Australian statute, in my judgement it is impermissible to read into ‘attests the signature’ in (or the rest of) s.1(3) LPMPA a requirement from pre-LPMPA case-law that ‘attestation must be contemporaneous with the signature attested’. As Lord Hodge said in R(O) at p.29, legislative intention primarily stems from the words Parliament chose and citizens and advisers should be able to rely upon them. I respectfully add they should not need to research Victorian case-law on attestation to do so. Whilst Edelman J in Netglory did not refer to what in England is called the ‘Barras principle’ on interpretation, in Belhaj v DPP [2018] 3 WLR 435 (SC) Lord Sumption at ps.19-20 explained that even where Parliament reuses ambiguous language that has previously received a clear judicial interpretation, there is only a presumption that Parliament intended to adopt that meaning, which can be rebutted by the particular statutory language and context. One way of looking it is that the open language of the Western Australian statute permitted that presumption to work, but with s.1(3) LPMPA it is rebutted. The 1987 Law Commission report which led to the enactment of s.1 LPMPA summarised the effect of two previous cases (i.e. Gibson and Selby-Bigge) on ‘attestation’, so that summary and those cases summarised are legitimately ‘external aids’ to interpret ‘attest’ in s.1(3) LPMPA in the sense discussed in R(O) at p.30. However, given the Law Commission effectively ignored Victorian authorities on ‘attestation’ because it was seeking to modernise the law on deeds, the assistance to be derived from them in interpreting s.1(3) LPMPA is quite limited.

Seventhly, of course I may be wrong and ‘attest the signature’ in s.1(3)(a)(i) LPMPA may include a requirement for the witness’ ‘attestation to be contemporaneous with the signature witnessed’. However, if so and the witness attests on the same day as the signature witnessed (as I have found on all the scenarios Ms Money did), then on any reasonable view, that is ‘contemporaneous’ or indeed ‘part of the same transaction with the signing’. That would still be the case even if the witness does not sign in the actual presence of the signatory party, or effectively simultaneously with them (which I found on balance of probabilities Ms Money did in Scenario A). If the signature and attestation are the same day, none of the legitimate concerns of Edelman J in Netglory and of the judges in the Victorian cases he cited, about what Prof Cartwright called a ‘time lag’ in attestation of several years or even after a party’s death, would apply. Attestation the same day would be perfectly consistent with its purposes set out in Netglory to ‘confirm the person executing the deed actually did so’ and in Shah at p.29:

“[T]he requirement for attestation is integral to the requirement for signature in that the validity of the signature is stipulated to depend on the presence of the attesting witness. I also accept attestation has a purpose in that it limits the scope for disputes as to whether the document was signed and the circumstances in which it was signed…..It gives some, but not complete, protection to other parties to the deed who can have more confidence in the genuineness of the signature by reason of the attestation. It gives some, but not complete, protection to a potential signatory who may be under a disability, either permanent or temporary. A person may aver in opposition to his own deed he was induced to execute it by fraud, misrepresentation or..duress..The attestation requirement is a safeguard.”

Therefore, I am entirely convinced of three conclusions on this issue about attestation:

It follows from the first two issues that I have found the Guarantee was in fact validly executed as a deed. On my findings of fact that all three guarantors and Ms Money signed together on 17^th September (i.e. ‘Scenario A’), Mr Bradshaw accepted that. On Mr Brereton’s ‘busy office scenario’ (‘Scenario B’), Ms Money witnessed all of the signatures in the guarantor’s presence and then attested by signing as a witness under all their signatures contemporaneously I find that valid execution. However, on ‘Scenario C’ where Mr Brereton and Ms Barrett signed, witnessed by Ms Money who contemporaneously attested, then the Guarantee would be effective against them but not against Mr Mason. Only in that situation (or if of course I am wrong about my other conclusions), does estoppel come into play. So, I deal with it relatively briefly.

The leading case on estoppel in this field is Shah, where as in this case, the defendants signed a guarantee in deed form. Pill LJ explained the relevant facts at p.8:

“Each [defendant] signed the deed at the appropriate place and the signature of an attesting witness, the same signature in each case, appears at the appropriate place. The attesting signature is that of…[a man who]… had an office in the same building as the defendants. The document was brought to him by the defendants' secretary after it had been signed by them. The judge found that the signature of the attesting witness was added to the document shortly after it had been signed by the parties to the document but not in their presence.” (My underline)

Especially in the light of the analysis I have just set out about Netglory and Wood, it is important not to misconstrue the facts in Shah. The parties signed first not in the presence of the witness, then the deed was taken to the witness, who then signed also not in their presence. As I have underlined, the witness was not in the parties’ presence when they signed. Therefore, the deed was in fact invalid under s.1(3)(a)(i) LPMPA, although it was ‘valid on its face’ notwithstanding the absence of the name and address of the witness, which are not statutory requirements of s.1 LPMPA (Shah p.13).

In Shah, the Court held the defendants were estopped from denying the validity of the guarantee as a deed. Pill LJ noted that in Yaxley v Gotts [2000] Ch 162 (CA), a case on s.2 LPMPA, Beldam LJ (who had served on the Law Commission committee whose reports led to the LPMPA) had accepted in principle that a party can be estopped from denying a statutory requirement was not met. As Pill said at ps.20-21, 30 and 33:

“20.

Beldam LJ stated, at p 191, that "The general principle that a party cannot rely on an estoppel in the face of a statute depends upon the nature of the enactment, the purpose of the provision and the social policy behind it."

21.

In my judgment, that statement of Beldam LJ, reflecting Kok Hoong [1964] AC 993 is, with respect, an accurate statement of the law of England and Wales. The court is entitled to consider the particular statutory provision, its purpose and the social policy behind it when deciding whether an estoppel is…allowed….

30.

I have….come to the conclusion there was no statutory intention to exclude the operation of an estoppel in all circumstances or in circumstances such as the present. The perceived need for formality in the case of a deed requires a signature and a document cannot be a deed in the absence of a signature. I can detect no social policy which requires the person attesting the signature to be present when the document is signed. The attestation is at one stage removed from the imperative out of which the need for formality arises. It is not fundamental to the public interest, which is in the requirement for a signature. Failure to comply with the additional formality of attestation should not in itself prevent a party into whose possession an apparently valid deed has come from alleging that the signatory should not be permitted to rely on the absence of attestation in his presence. It should not permit a person to escape the consequences of an apparently valid deed he has signed, representing that he has done so in the presence of an attesting witness, merely by claiming that in fact the attesting witness was not present at the time of signature. The fact the requirements are partly for the protection of the signatory makes it less likely that Parliament intended that the need for them could in all circumstances be used to defeat the claim of another party

31 Having regard to the purposes for which deeds are used and indeed in some cases required, and the long-term obligations which deeds will often create, there are policy reasons for not permitting a party to escape his obligations under the deed by reason of a defect, however minor, in the way his signature was attested. The possible adverse consequences if a signatory could, months or years later, disclaim liability upon a purported deed, which he had signed and delivered, on the mere ground that his signature had not been attested in his presence, are obvious. The lack of proper attestation will be peculiarly within the knowledge of the signatory and…will often not be within the knowledge of the other parties.

33….[T]he delivery of the document…..involved a clear representation that it had been signed by the third and fourth defendants in the presence of the witness and had accordingly been validly executed by them as a deed. The defendant signatories well knew that it had not been signed by them in the presence of the witness, but they must be taken also to have known that the claimant would assume that it had been so signed and that the statutory requirements had accordingly been complied with so as to render it a valid deed. They intended it to be relied on as such and it was relied on. In laying down a requirement by way of attestation in s.1 of the 1989 Act, Parliament was not in my judgment excluding the possibility that an estoppel could be raised to prevent the signatory relying upon the need for the formalities required by the section…”

By contrast, in Actionstrength v IGE [2003] 2 AC 541 (HL), the Lords held that an oral guarantee in violation of s.4 Statute of Frauds could not give rise to an estoppel. Lord Walker endorsed the Defendants’ submission on the Statute of Frauds at p.53:

“To treat the very same facts as creating as an unenforceable oral contract and as amounting to a representation (enforceable as soon as relied on) that the contract would be enforceable, despite section 4….would be to subvert the whole force of the section as it remains in operation, by Parliament's considered choice, in relation to contracts of guarantee….”

However, Lord Walker specifically distinguished Shah at p.51:

“In Shah the delivery of an apparently valid deed constituted an unambiguous representation of its nature. In the present case, by contrast, what passed between the parties did not amount to an unambiguous representation there was an enforceable contract, or that St-Gobain would not take a point on the Statute.”

In Briggs v Gleeds [2015] Ch 212 (HC), Shah was also distinguished by Newey J (as he then was) in holding that pension scheme members (who had not signed any deed) were not estopped from denying that a deed signed by employers was not validly attested as the signatures had not been witnessed as there was no attestation clause. Newey J gave a number of reasons for distinguishing Shah at p.43:

There are three relevant distinctions between Shah and Briggs, which can be fitted into the estoppel framework Lord Walker and Lord Clyde gave in Actionstrength of unambiguous representation; inducement of assumption/reliance; and unconscionability (which the Claimant here deploys as a ‘shield’ to the Defendants’ limitation argument):

On the first of those three issues, Mr Bradshaw submitted that the Guarantee here was not ‘apparently valid’ because a deed featuring one attestation clause where one witness attests multiple signatures is not valid. As I explained above, that seemed to me to go to the statutory requirements of ‘attest’ under s.1(3)(a)(i) LPMPA and so I addressed it above. I noted that in Darjan the principle is that where it is ‘possible to interpret the signature as an attestation of all the signatures’ then the deed is ‘apparently valid’ and it was in this case. In any event leaving Darjan aside, I went on to find that the attestation clause in this case where Ms Money explicitly ‘witnessed’ all three signatures was consistent with the wording of ‘attest the signature’ in s.1(3)(a) LPMPA especially given the singular includes the plural under the Interpretation Act 1978; consistent with the statutory setting of the provision, especially s.1(2) LPMPA and indeed the external aids such as the Law Commission report and the statutory purpose of attestation within s.1(3) LPMPA as discussed in Shah. Accordingly, the ‘attestation’ was apparently valid’. For the purposes of estoppel, for the same reasons, in language of Actionstrength at p.51 and Shah at p.13, unlike in Briggs, the ‘delivery’ of the Guarantee here (both in law by the signature and in practice by posting it to Mr Weatherer) constituted an unambiguous representation by the Defendants of the fact that it was a valid deed.

On the second issue, as Mr Aldis submitted in detail in his Skeleton at ps.42-9, the Defendants admit that they signed the Guarantee. If they did not sign in the presence of Ms Money or if she did not attest ‘in their presence’ or ‘contemporaneously’, this was something they could control and they would know but the Claimant would not. Nevertheless, they presented the ‘apparently valid’ deed to the Claimant without disclosing any failure to follow the implicit instructions in the deed. In doing so, they must have known that Mr Weatherer on behalf of the Claimant would assume the deed had been validly executed and I have found that is what he did assume. This is the reason he did not query it at the time. I have also found that had he done so, such was the Defendants’ need for funds, they would have re-executed it. In detrimental reliance on that assumption of a valid guarantee, Mr Weatherer released the funds to Rhombus. The Defendants accepted and spent those funds, without ever raising any problem with the validity of the deeds for over a decade, after limitation had expired and indeed after the main debtor Rhombus had gone into liquidation. Therefore, the elements Lord Clyde discussed in Actionstrength of inducement, assumption and reliance (indeed substantial detriment) are all established for the Claimant.

Thirdly, on unconscionability, like Shah and unlike Briggs, this case is one of a party who failed to validly execute a deed seeking to rely on their own failure to follow the clear implicit instructions in it, despite being three extremely experienced business-people. Moreover, whilst I do not consider they give rise in this case at least to any distinct legal principle, the cases of Webb v Spicer (1849) 13 QB 886 and much more recently Promontoria v Hancock [2021] EWHC 259 (Ch) support the view that where a party has taken the benefit of a deed, it is often unconscionable for him to refuse to take its burdens because he did not execute it properly. It is highly relevant to the Defendants’ ‘unconscionability’ that the Defendants as partners in Rhombus took the benefit of the Guarantee in inducing the loan even if they failed to execute it properly. Moreover, without getting drawn into whether the Defendants have ‘acknowledged’ the Rhombus Loan under ss.29-30 LA, it is undeniably true the Defendants are seeking to take advantage of the indulgence the Claimant gave them with their requests for time to repay the Rhombus Loan which, according to the Defendants, has given them a limitation defence. All that together unquestionably shows that it would be plainly unconscionable for the Defendants to deny the validity of the Guarantee. (I need not make any finding on Mr Aldis’ point about the Defendants’ ‘bad faith’).

Weighed against all this, even on the assumption it is relevant to ‘unconscionability’, it does not seem to me that Mr Weatherer’s modest ‘deliberate concealment’ of his directorship of the Claimant in 2017 and 2019 mitigates the Defendants’ unconscionable denial of the validity of the Guarantee. In either case, it was long after limitation had expired on the Defendants’ case this was an invalid deed and so the limitation period was only 6 years. Indeed, in 2017 I have accepted Mr Weatherer’s ‘deliberate concealment’ reflected his own genuine view that he was not practically the ‘director’ of the Claimant in the sense that others handled the administrative issues he was being asked about. Whilst I was more critical of his evasion in 2019, this was after the relationship between the parties had deteriorated, not so much because of Mr Mason’s professional negligence claim, but because Mr Barrett had suddenly, after over a decade, started raising technicalities about the loans. In any event, within a short period, Mr Weatherer openly accepted he was a director of the Claimant. Indeed, even were I to consider that he had ‘deliberately concealed’ that throughout, that would not mean it was not ‘unconscionable’ for the Defendants to dent the validity of the Guarantee, as Mr Weatherer was in no way to blame for any defective execution of it.

Finally, for that same reason, I cannot see how the ‘clean hands’ maxim helps the Defendants. As discussed in UBS v Kommunale Wasserwerke [2017] 2 CLC 584 (CA) by a very strong majority of (now) Lords Briggs and Hamblen at p.171:

“…The key part of it, which dates back to the 18^th Century, is that that the misconduct or impropriety of the claimant must have ‘an immediate and necessary relation to the equity sued for’, and that it must be shown that the claimant is seeking ‘to derive advantage from his dishonest conduct in so direct a manner that it is considered unjust to grant him relief’…This is one of those multi-factorial assessments to be conducted by the trial judge, with which an appellate court will be slow to intervene, unless the judge’s conclusion was clearly wrong, or based upon some evident failure of analysis.”

Even if one ignores the Defendants’ own ‘unconscionability’ and focusses solely on Mr Weatherer’s ‘deliberate concealment’ of his directorship in 2017 and 2019, it is completely irrelevant to the equitable estoppel the Claimant seeks to establish. That was effectively established at the latest when the 6-year period expired, if not earlier. In any event, Mr Weatherer clarified his directorship in early 2020 and the Defendants seemed entirely unperturbed. Even if one assumes Mr Weatherer ‘deliberately concealed’ his directorship throughout – contrary to my findings of fact –for the same reasons, it is irrelevant to the basis on which it seeks to establish estoppel: unambiguous representation, assumption of validity, reliance and unconscionability. Nor is Mr Weatherer seeking to derive any advantage for the Claimant from any misconduct. It is Defendants who seek to do that with this rather opportunistic argument. In those circumstances, if I had found the Claimant needed an estoppel against any or all of the Defendants, I would have upheld it. As it is, it is academic. The Claimant has established the Guarantee is a valid deed and s.8 LA applies so the claim on it is in time That concludes my judgment on this preliminary issue.