Butler- Creagh v AIDA Hersham

These cases were ordered to be heard together by Nicola Davies J on 14 April 2011, although the claim by Cherrilow Ltd against Mr Richard Butler-Creagh was begun almost a year after his claim against Ms Aida Hersham. Nevertheless, they have the factual background in common and there is considerable overlap in the issues to be resolved.

The claims arise out of the purchase of a large property on the river at Henley-on-Thames called Fawley Court, which is thought to have been designed by Sir Christopher Wren and is situated in gardens attributed to Capability Brown. The purchaser was Cherrilow Ltd (a company incorporated in Jersey, for the purpose of this transaction, on 3 December 2008). The contracts were exchanged on 10 December of that year and completion took place in April 2010. The vendors were the Marian Fathers, a religious group with charitable status which had owned the property since just after the Second World War. In accordance with obligations under the Charities Act, the trustees received outside professional advice throughout from Ms Alexa Beale, a solicitor, and from Mr Martin Conway, a property expert. He and his firm, Marriotts, had been appointed as independent surveyors pursuant to s.36(3). Both gave evidence at the trial.

Cherrilow Ltd was created as a special purpose vehicle for the acquisition of the property at the instigation of Ms Hersham a few weeks after she had first been shown round the property on 19 October 2008 by Mr Butler-Creagh, who claimed at that time to have the benefit of an exclusivity arrangement with the Marian Fathers whereby he would be recognised as the sole purchaser. He now claims a fee of £5m from Ms Hersham on the basis that he permitted her to “step into his shoes” and obtain the benefit of his contract with the Marian Fathers. That forms the subject-matter of the first claim. Mr Butler-Creagh brought no proceedings against Cherrilow and acknowledges that no contractual relationship exists between him and that company.

Cherrilow began its action earlier this year claiming damages for deceit, or fraudulent misrepresentation, against Mr Butler-Creagh and seeks a declaration that it is not liable to him in the sum of £5m or any other sum. Mr Butler-Creagh denies any dishonesty on his part and challenges causation. He also contends that Cherrilow has suffered no loss. He counterclaims on the basis of quantum meruit or unjust enrichment, alleging that he is owed fees in respect of services rendered to Cherrilow.

The trial took place over a three week period beginning on 11 July 2011. It was rife with allegations and cross-allegations of dishonesty, each side accusing the other inter alia of forging documents. Ms Hersham and Cherrilow have gone so far as to characterise Mr Butler-Creagh as a “confidence trickster” and a “middle man” fraudster. The dispute has given rise to a considerable amount of documentation and some 25 witness statements were prepared, although in the event 17witnesses of fact and three experts were called. The essential issues, however, were reasonably straightforward.

In summarising the factual background, it is necessary to begin before Ms Hersham became aware of the property and made her first visit in October 2008. In June of that year Mr Butler-Creagh made a successful bid to purchase the property in the sum of £22.5m. In that context, he made representations to the Marian Fathers to the effect that he was willing and able to fund the purchase of Fawley Court himself and that some funding had been made available, in principle, by the Bank of Ireland (falsely described as “my bankers”). That was a lie.

He also presented them with what purported to be a reference from the same Bank, addressed “to whom it may concern”, stating that he was “good for” £25m. On any view, that was again simply untrue. Mr Butler-Creagh seemed to think that this was legitimate as it was only to give “comfort”. The reference itself is alleged to have been fraudulently created at Mr Butler-Creagh’s instigation by a corrupt employee of the bank, which itself has given evidence to the effect that it has no record of the document and denies its authenticity. A senior bank employee provided written evidence, in particular, that no such letter would have been written on a general basis (“to whom it may concern”) or without the usual disclaimers based on Hedley Byrne v Heller [1964] AC 465. That evidence went unchallenged.

It is quite obvious that the supposed reference is not genuine and that the contents are false. The person who prepared it was a former bank employee called Ms Sayeda Rafiq. She had apparently sent it from a (disused) Bank of Ireland fax number to Mr Butler-Creagh’s then solicitor, Mr Osmond, for onward transmission to the Marian Fathers (through Mr Conway). Until trial, it had been anticipated that she would be called by Mr Butler-Creagh. When he was asked in cross-examination about the “reference”, he sought to direct any “flak” in her direction, by suggesting that counsel’s questions should be put to her instead. That was the height of cynicism. Shortly after he left the witness box, the decision was made not to rely on her or make any other challenge to the Bank’s evidence. Ms Rafiq was described by counsel as one of Mr Butler-Creagh’s “cronies”, to whom he had lent large sums of money (giving rise to an obvious conflict of interest). That fell foul, not surprisingly, of the Bank’s code of conduct for its employees. The terms on which such monies were lent are unclear. Being wholly improper, there was no documentation recording the payments.

Mr Lewis QC canvassed the possibility that she might have misguidedly sought to do him a favour and supplied the reference without his connivance. I find that unpersuasive. It is highly unlikely that she would have used the phrase “good for £25m” without his prompting. At one stage, when interviewed by her employers, Ms Rafiq claimed that her signature on the document had been forged. I cannot decide whether that is so or not. All I need to say is that it was a fraudulent document put forward on Mr Butler-Creagh’s behalf and with his knowledge.

Mr Conway to an extent appears to have taken up the bogus “reference”, since he spoke to Ms Rafiq on 11 July 2008. She lied to him, saying that the Bank was “in principle very happy to provide finance to enable them to undertake the purchase”.

Mr Butler-Creagh made a number of other misrepresentations at this time. He claimed in an email of 7 July 2008 that his money-lending business, known as Mainstream, was valued at £40m. He later explained, in the course of cross-examination, that this could only be justified on the basis of what he called “potential”. He at least accepted that it was “slightly exaggerated”. He also claimed, without supporting evidence, that his home was valued at £4.5m, whereas there was actually a net equity value of about £1m. Furthermore, he stated that he had £2m in cash at the bank. That, of course, has a well understood meaning. It would have been nearer the truth to say that he and Mainstream had overdraft facilities of more than £700,000 in June 2008. Mr Butler-Creagh personally seems to have had an overdraft of £65,561. The position worsened over the next six months (a period of dramatic downturn in the property market and the economy more generally).

Against this background, Cherrilow in closing submissions characterised Mr Butler-Creagh’s conduct as an “abnegation” of the informal tender process carried out on the Marian Fathers’ instructions:

“It was a cynical attempt to take advantage of the Catholic charity and its difficult circumstances by someone who was looking to try and implicate himself in the transaction, falsely achieve a position of some ‘influence’ and then, having done so, achieve some financial advantage for himself.”

The bid he made was not genuine, in the sense that it was his intention, as he accepted in his witness statement, to negotiate the price downwards once he had succeeded in the tender process.

Having put in the highest bid for the property, Mr Butler-Creagh set about negotiating with the Marian Fathers to obtain an exclusivity agreement, ultimately dated 1 August 2008, in the hope that this could be exploited if a prospective purchaser emerged who had the necessary funds available. It is clear from the evidence that the Marian Fathers and their advisers went along with this proposal only with reluctance and subject to strict time limits. Accordingly, the agreement imposed on Mr Butler-Creagh an obligation to proceed with the conveyancing process “as soon as is reasonably practical” and, if he should decide not to proceed, then to inform the Marian Fathers immediately (whereupon the agreement would lapse). He also acknowledged “a mutual duty of good faith”.

Meanwhile, quite cynically, he instructed his solicitor, Mr Will Osmond, to “sit tight” on the sale transaction while he found a suitable candidate. That is confirmed in an email of 18 August 2008 and again on 7 October, when he gave instructions to Osmonds to stop work until they heard from him. (Mr Osmond was also characterised as a “crony”. He too had been lent sums of money by Mr Butler-Creagh. As in the case of Ms Rafiq, the terms of such arrangements are obscure, as they appear to have been undocumented. That is a remarkable state of affairs, having regard to Rule 3.01(2)(b) of the Solicitors’ Code of Conduct and paragraphs 39 and 40 of the relevant guidance.)

The exclusivity deal was, however, limited in point of time, originally expiring on 19 September 2008. It was later extended to 10 October, again with reluctance. Mr Conway, who was seeking to protect the best interests of the Marian Fathers in accordance with the Charities Act, had come to the conclusion that the disadvantageous market conditions justified that course. He confirmed in his witness statement that “ … as long as matters moved forward positively, the Marian Fathers intended to progress a sale with [Mr Butler-Creagh] and were not seeking to remarket the property” (emphasis added). That accords with the evidence of Father Jasinski. This was so even after the expiry of the exclusivity agreement. Mr Conway and Father Jasinski were unaware at the time that Mr Butler-Creagh was simply delaying matters for his own purposes.

At all events, the agreement had expired prior to his meeting with Ms Hersham on 19 October. Despite this, the primary basis of his claim against her is that she was to pay him a fee of £5m, as agreed orally on the day of their first meeting, in return for “stepping into his shoes” so as to take advantage of his supposed right of exclusivity (by then, as I have said, apparently expired).

In closing submissions, the nature of what Mr Butler-Creagh had to offer was described by his counsel in these terms. It is said that he “was in a position to allow any third party to by-pass entirely [the Marian Fathers’] tendering process or … to ‘jump to the top of the queue’ without having to compete with any other bidder”. I find this difficult to understand, especially as the bidding process had been completed in the previous summer. It is not clear to me what “queue” is being referred to. It was also said that “ … having established credibility with the Marian Fathers, [he] was able to and did present Mrs Hersham to the Marian Fathers [as] a suitable purchaser”. I do not believe that this would be comprehensible to the Marian Fathers or their advisers as bearing any relation to their contractual arrangements.

It was confirmed in evidence by Father Jasinski that the only reason why the Fathers were interested in treating with Mr Butler-Creagh was that he appeared to be making a better offer than anyone else. Their decision had been to obtain the best price possible. They were unaware at the time that he was not in any position to make the purchase. The truth was, therefore, that he had no special rights or status in relation to the property. He had a contract to purchase (which he could not himself fulfil). There simply were no “shoes” to step into. Yet Mr Butler-Creagh admitted in his Cherrilow defence that he had actually represented that he had “the exclusive right to purchase Fawley Court with the consequence that it could not be purchased by any third party without [his] involvement”.

Ms Hersham denies that she entered into any such agreement. She described the suggestion as both “absurd” and “a categorical lie”. There was no reason for her to contract with Mr Butler-Creagh at all. She could have dealt directly with the Marian Fathers. Anyone knowing the basic facts would have been wholly irrational to pay Mr Butler-Creagh £5m, or any other sum, to “step into his shoes” for a number of reasons:

Any reasonable onlooker is thus left wondering how Mr Butler-Creagh could possibly pursue a claim against Ms Hersham and on what legal basis. By the time he went into the witness box, his stance was uncomfortably straddling two alternatives. His primary case was that Ms Hersham had agreed to pay £5m on the first day they met, in order to “step into his shoes”, accepting what he said at face value and not taking the elementary precaution of checking whether he had anything to give in exchange. What he actually said was:

“The discussion was quite brief. I was asked what I wanted for her to take over my position, to step into my shoes and effectively walk away from it, and that’s it. I put my fee forward, which was £5m and it was never negotiated.”

From time to time, however, his case metamorphosed into a claim that Ms Hersham had agreed to pay him £5m to “facilitate” the sale to her by the Marian Fathers or to “facilitate” completion (whatever that means). An attempt was made in his closing submissions to crystallise what this term was supposed to convey, namely that Mr Butler-Creagh would take the following steps:

My first task is to decide whether there was any such agreement. Is it possible to discern any “clear intention” at all? This depends on assessing the evidence of the witnesses concerned, such contemporaneous documentation as there is and, also, where the inherent probabilities lie.

It seems implausible that anyone would agree to pay £5m pursuant to an oral agreement, without making any enquiries as to the validity of Mr Butler-Creagh’s claims. He has therefore a considerable burden to discharge.

It is apparent from his solicitor’s attendance note of 15 October 2008 that Mr Butler-Creagh had been hoping to lure what Mr Auld called a “rich punter” into a deal in the mistaken belief that he had a right of exclusivity. He was also intending to persuade the person concerned that it was necessary to exchange contracts quickly, so as to avoid him or her discovering that the exclusivity arrangement, whatever it was worth (if anything), had already expired. Thus, if a sense of urgency could be engendered with that objective in mind, the prospective purchaser might skip sensible enquiries.

The note was prepared by a Mr Paul Flaherty of Osmond & Osmond and contained the following remarkable passage:

“RBC explained that he had two potential purchasers viewing Fawley Court this afternoon and tomorrow, one from Dubai and one from Aberdeen. Both potential purchasers believe that he has an option to purchase the land.

Explained that possible they will be able to determine that he has no option, RBC appreciated this and explained that it may be necessary to exchange therefore relatively quickly should one of the potential purchasers make a firm offer.”

It is obvious that Mr Butler-Creagh, supported by the “fee earner”, was quite prepared to lead a potential purchaser up the garden path into exchanging contracts on a false premise. They had to “get a move on” before the deception was discovered. As it happens, it was the only typed attendance note on the file. This may well signify a degree of concern on Mr Flaherty’s part that the client was pushing them towards unprofessional conduct. Mr Osmond accepted that Mr Flaherty kept him informed. (It is not surprising in these circumstances that the document was held back and only disclosed very late in the day. It was even then omitted by Mr Butler-Creagh’s current solicitors from the trial bundle. An explanation for this is still awaited.) It is Mr Butler-Creagh’s case now that the expiry of the exclusivity agreement made no difference and his representations as to his status were justified by the contract of purchase by itself; that he did not need an exclusivity agreement because he had an “exclusive contract of sale” and “was in an exclusive position to proceed as purchaser”. If that was his view, it is difficult to see why he felt the need to negotiate the exclusivity contract in addition and later extended it.

It seems that 15 October was a busy day. This was the date on which another of Mr Butler-Creagh’s associates, Mr Damien Kearsley, signed off his appraisal of the development of Fawley Court as an hotel. It is possibly from this that some of the misrepresentations derive. Specifically, there was the claim that such a change of use was possible (subsequently shown to be quite unrealistic); the projection that the task could be completed in 26 months; and that it would yield a profit of £32m. The purpose of this was obviously to lure prospective investors with at least the superficial appearance of a carefully assessed business plan and to tantalise them with the prospect of an absurdly high return. How it came to be “commissioned” and whether it was paid for is unknown, but its purpose is clear.

Two or three days later, Ms Hersham emerged as an another prospective “punter” following an introduction from a Mr Ted Dadley, who happened to mention her name to Mr Butler-Creagh in a public house in Henley on the evening of Friday, 17 October. (He did rather well out of it, receiving an introducer’s fee of some £65,000.) The plan remained unchanged. She too was to be deceived into thinking that Mr Butler-Creagh still had an exclusivity, or “lock out”, agreement which meant that she had to deal with him. The intention was to “rip off” both her and the Marian Fathers (although I suspect that in Ms Hersham he had met his match). It is highly likely that he would have shown her the recently acquired Kearsley appraisal as part of his “sales pitch” at the earliest opportunity. He certainly accepts that he faxed it to her, but not until an email of 29 November. I cannot be satisfied, however, to the required standard that it was actually produced at their first meeting.

Mr Butler-Creagh’s ploy was to be facilitated by telling Ms Hersham falsely that she could not use her own solicitor, Mr Edward Landau, but that it was necessary for her to use Osmonds. This clearly was to the advantage both of Mr Butler-Creagh and of Mr Osmond, who was well aware (as he admitted in the witness box) that “Ms Hersham could have gone direct to the vendor”.

This device enabled Mr Butler-Creagh to conceal the truth about the exclusivity agreement. Osmonds kept hidden from Ms Hersham for 18 months the content of the document, the limited effect of its terms and, more importantly, the fact that it had expired before she even came on the scene.

As for the attendance note of 15 October, that was only disclosed to Cherrilow on 3 June 2011. By what Mr Osmond characterised as an “oversight”, no client retainer letter was sent to either Ms Hersham or Cherrilow prior to the exchange of contracts in December 2008 (cf. Rule 2.02 of the Code of Conduct). It was not just a question of omission, however, since in a letter to Mr Landau of 21 October Mr Osmond positively misled him. He purported to enclose “a complete bundle of all documentation relating to [Mr Butler-Creagh’s] purchase of Fawley Court”. It was manifestly not complete, since it did not contain the expired exclusivity agreement.

It is obvious that Mr Butler-Creagh had hoped and intended to reduce any arrangement with Ms Hersham into writing. Several drafts emerged, none of which was ever agreed or signed. Moreover, they contained various terms he hoped to have incorporated which had never been mentioned on 19 October. These included, for example, provision for a guarantee or indemnity. This tends to confirm, in my judgment, that no concluded oral agreement had been reached on that date.

The drafting process is quite revealing. Mr Butler-Creagh wasted no time. On the day after his meeting with Ms Hersham, he gave instructions to Mr Osmond. They were not recorded in an attendance note. Mr Osmond thereafter set about drafting a “deed of commission and indemnity” with a view to Ms Hersham committing herself to its terms. A rather shadowy figure called Mr Rangeley was involved in advising on the matter. He was a struck off solicitor (or, as he preferred, “non-practising”). He is an associate of Mr Osmond, although it is unclear whether he was remunerated for his contribution and, if so, by whom.

Mr Osmond was asked whether he had decided upon a deed being necessary because there was no consideration for the £5m payment. This proved, however, to be an unduly sophisticated approach. No clear answer was forthcoming. The document went through various drafts and was never in the end signed. But it was plainly intended to deceive Ms Hersham. Mr Butler-Creagh, Mr Osmond and Mr Flaherty knew perfectly well that the “lock out” deal had expired. Nonetheless, it contains the following introduction:

“In consideration of the Introducer allowing the Purchaser to complete the purchase of the Property in his place, and of the costs incurred to date by the Introducer, Mrs [X] agrees covenants and undertakes to,

a.

pay to the Introducer a total fee of £5,000,000.00 (five million pounds) (“the Introducer Fee”), such sum to be paid in full on exchange of the Contract to the Introducer; and

b.

to make good to the Introducer on demand and to keep the Introducer fully indemnified against all liabilities, damages or losses, awards of damages or compensation, penalties, costs, disbursements and expenses arising from any claim, demand, action, or proceedings of any kind whatsoever that the Introducer may have or sustain or for which the Introducer may become liable either directly or indirectly as a result of having entered into the personal guarantee in the Contract.”

This was a dishonest document. Not only had Mr Butler-Creagh no right or locus to “allow” Ms Hersham to “complete the purchase of the property in his place”; but there was also a recital stating that it was a term of the contract that he should provide a personal guarantee in respect of the obligations of the purchaser. This was presumably another device for insinuating himself into the arrangements, since he was hardly in a position to take on such a commitment. Also, somewhat optimistically, there was to be an exclusion of all liability, including in respect of any representations and warranties emanating from Mr Butler-Creagh. In the same spirit, once the £5m “introducer fee” was paid on exchange of contracts, it was not to be repayable for any reason.

It was also to be an entire contract (again quite inconsistent with there being a concluded oral agreement on 19 October).

As I have said, this came to nothing. One of many ironies in the case is that the bill for all this manoeuvring, albeit intended to pull the wool over the eyes of Ms Hersham and any corporate vehicle created for the purpose, was ultimately paid by none other than Cherrilow. Yet the deed was never even shown to Ms Hersham before April 2010. It too had been omitted from “the complete bundle” sent to Mr Landau on 21 October 2008. Mr Osmond was cross-examined in a little detail about the stark conflict of interest involved but, although he had to acknowledge it in the witness box, he claimed not to have spotted it at the time (cf. Rule 3.01 of the Code of Conduct). That is not credible.

Finally, although she may be naïve in some respects, I am satisfied that Ms Hersham is not so stupid or gullible as to commit herself to paying £5m on such a flimsy basis.

It is quite clear that Mr Butler-Creagh had a scheme in mind as soon as he knew the property was available for sale. He could not possibly acquire it on his own, either in person or through a corporate vehicle of his own, and therefore planned, as the 15 October attendance note amply demonstrates, to bring in someone else to provide the funding. He was then to take a “turn” or “commission” by placing himself between that person and the Marian Fathers. He saw the opportunity to make £5m for doing effectively nothing. In order to achieve that, he would have to deceive both the Marian Fathers, by giving them the false impression that he had the means and the intention to acquire the property himself, and the hapless “punter” by pretending to him or her that he was a necessary intermediary. In truth, and in law, he had no other role than as an “officious bystander”.

Mr Butler-Creagh has thus failed to establish any such concluded agreement, as pleaded, on 19 October 2008. It was said to have been reached during a telephone conversation on that date, at some point following the visit to Fawley Court and a discussion in the Hotel du Vin in Henley. Such telephone records as have been provided, however, do not corroborate any such call. I need to come to conclusions, however, as to the evidence advanced on this issue at trial on Mr Butler-Creagh’s behalf.

I was asked to accept that the deal was clinched largely on the basis of Mr Butler-Creagh’s own evidence. I am quite unable to do so. He told lie after lie in his dealings with the Marian Fathers and Ms Hersham. He even lied in his witness statements before the court, claiming for example that the Bank of Ireland had previously provided finance for him in respect of other property developments. This he sought to explain away in court as a “mistake”. He was an unusual witness. He gave the impression of being quite confident and self-assured. Yet it emerged very clearly from his two days and more of cross-examination that he lives in a parallel universe where truth and falsehood imperceptibly merge, the one into the other, he being quite insensitive to the distinction between them.

In his own mind, Mr Butler-Creagh justifies such behaviour as being necessary to survive in what he described as “a commercial world out there”. Indeed, he accepted in cross-examination that he was “not too scrupulous” in what he was prepared to say to obtain business opportunities. In those circumstances, anyone would be unwise to place reliance on what he says without independent corroboration. I reject without hesitation his evidence that an oral agreement was reached on 19 October 2008.

In this context I need to address the evidence of Mr Dadley, who was described by Mr Lewis as “the only independent witness”. He was also present at the Hotel du Vin on 19 October, along with Ms Hersham, her partner Mr Patrick Sieff and Mr Butler-Creagh himself. He has a background in property and is “currently involved in an international property development project”, which he is unable to specify further on grounds of confidentiality. He seems to have been on friendly terms for some time with Ms Hersham. He said that when he used to ring Ms Hersham or Mr Sieff he would often introduce himself as “Uncle Ted” as just “a bit of light-heartedness”. She claimed that he is known locally as Tesco Ted (reflecting perhaps his former employment with that company). After a time, however, they appear to have fallen out.

Mr Dadley claims to have heard Mr Butler-Creagh mention that he wanted £5m at the meeting. This Ms Hersham vehemently denies. In the witness box, Mr Dadley came across as a rather truculent and dogmatic figure. It was put to him in cross-examination that he was confusing the meeting of 19 October with the conversation in the Unicorn two days earlier, when Mr Butler-Creagh might well have told Mr Dadley of his aspiration, having won the tender, to make a “turn” of £5m on the deal. But Mr Dadley would have none of this.

In the course of cross-examination, certain matters were put to him as having been mentioned at the Hotel du Vin. In particular, it was suggested that Mr Butler-Creagh had on that occasion made certain “representations” to Ms Hersham (for example, as to the need for his involvement because of the exclusivity agreement). It is clear from the defence that these representations were admitted as having been mentioned on that occasion. It was thus uncontroversial. Yet Mr Dadley apparently had no recollection of them. In those circumstances, I cannot confidently rely on his recollection or accept his account in this respect. I prefer Ms Hersham’s evidence that the figure of £5m was not mentioned. She said with some feeling that she would certainly have remembered such a suggestion, as it would have been exorbitant (representing a wholly disproportionate percentage of the purchase price). Mr Sieff too might have been expected to sit up and take notice if such a “fee” were mentioned, but he appears not to have heard it either.

In any event, Mr Dadley does not purport to have witnessed the critical telephone conversation during which it is claimed that the contract for a £5m payment was actually entered into. What he said, therefore, is ultimately of no assistance in resolving the central issue.

Mr Butler-Creagh seeks to buttress his claim by reference to two subsequent documents. These are said to be relevant in two ways. First, they are relied upon to discredit Ms Hersham and thus incline the court to reject her oral evidence and, I assume, specifically as to the Hotel du Vin conversation. Secondly, they are supposed to confirm the subsistence of the pleaded oral agreement.

There is a letter purporting to be dated 18 December and signed by Ms Hersham. It is in these terms:

“This is to confirm our agreement with regards to Fawley Court, Henley. As per our agreement you will receive a fee of £5,000,000 upon completion on April 6^th 2010. Should completion happen prior your fee will correspond with any nominated completion date.

The fee is for all your services for enabling the purchase and your continued involvement with the project and all the Planning issues.

We would like to thank you at this point for all your assistance and invaluable input in this matter.”

It is common ground that an email in these terms was created on or about 7 March 2009 at Mr Butler-Creagh’s request. She says that she typed it at No 20 Eaton Square that morning at his dictation. She sent it by email twice, once without and the second time with her address. He wanted to give some pressing creditors “comfort”, by way of assuring them that he was owed £5m and that it was due to be paid at some identifiable point in the medium term. Ms Hersham was willing to go along with this, as Mr Brisby QC recognised, somewhat “unwisely”. That was, of course, a euphemism.

At all events, Ms Hersham appears to have adopted her little-used maiden name and dated the email 18 December – when it so happened that she had been out of the country. This was with a view to making the document “deniable” later. Ms Hersham says that this was Mr Butler-Creagh’s idea and indeed that he dictated the contents to her. It may be that she regrets having allowed herself to be talked into this, but she must have known that it would be used to mislead others. No such agreement had been entered into on 18 December. It may not reflect much credit on Ms Hersham, but it does not enhance the merits of Mr Butler-Creagh’s claim either, since that depends upon establishing an oral agreement two months earlier.

She also says that he promised her that the document would not be used as an admission against her. This is one of the many disputed factual allegations in the case. Whichever version is true, however, it does not assist Mr Butler-Creagh for at least two reasons. First, the purported letter differs in its terms from the pleaded oral agreement. Secondly, since it is a bogus document, it is capable of confirming nothing. It was created for a particular purpose and has no greater significance. Despite assuring Ms Hersham that he would not use the document against her, since she was providing him with it purely as a favour, he nonetheless consulted Mr Osmond with a view to doing just that. Mr Osmond gave such advice uninhibited by the fact that Cherrilow was his client (and indeed paying the bill). It is possible that Mr Butler-Creagh was actually under no particular pressure from creditors in March 2009 and that his primary or even sole purpose in obtaining the document was to use it against Ms Hersham to support his claim to £5m.

At some point it appears that the content of the email might have been cut and pasted into a hard copy letter which purports actually to have been signed by Ms Hersham (again using her maiden name). On the other hand, on close examination, the two versions are differently set out and have different font sizes and punctuation. In the witness box Mr Butler-Creagh said he collected this version from Ms Hersham on Sunday, 8 March, although earlier he had said it was on the Saturday. She does not accept this and claims to have been on her way to Henley at the time. It remains something of a mystery as to when and by whom the signed version was created. At all events, the experts were unable to find that version on any of Ms Hersham’s computers.

I should add that Ms Hersham’s case on this document was for a long time rather obscure. Mr Lewis submitted that she did not deny outright that she signed the document until she was in the witness box. Hitherto she had adopted a policy of non-admission and/or putting to proof. It is fair to say that in her witness statement she put it in these terms:

“The letter carries what is said to be my signature against my maiden name, Aida Dellal. I have no recollection of printing or signing this letter and do not believe it is my signature.”

That is close to a denial but still rather cautiously worded. Earlier, however, in her first witness statement of 19 January 2011, she stated unequivocally:

“I have no recollection of ever having seen this letter before or signing it in this way. My normal signature is Aida or Aida Hersham. I have not signed the name Dellal since my marriage over 30 years ago.”

That seems to me to amount to a clear denial that she signed the document.

There was evidence from handwriting experts but this was inconclusive. I am told that their analysis was inhibited by an unwillingness on Ms Hersham’s part to provide further samples for comparison. It emerges from the correspondence, however, that this was not simply for the purpose of obstruction, but was explained on the basis that the maiden name had not been used for many years and that relevant samples would therefore not be available. Either she signed it, under considerable pressure to help Mr Butler-Creagh out with his creditors, or he caused it to be forged. Neither scenario reflects much credit on the participants. It has no significance, however, for the outcome of the case.

Incidentally, whatever else may be said about this document, it does rather suggest that Ms Hersham was still, as at 7 March 2009, labouring under the misapprehension that Mr Butler-Creagh had some relevant qualifications or expertise to equip him for the planning travails that appeared to lie ahead.

Mr Ted Dadley comes back into the story over a year later, reliance being placed upon him, once again, to confirm the existence of the pleaded agreement for £5m. He referred to a telephone conversation on 17 April 2010. He claims that Ms Hersham asked him on that date if he thought Mr Butler-Creagh “would go for £2m”. Ms Hersham denied this version of the conversation and recalled that Mr Dadley had told her at the outset that he had had “a few sherbets”. The suggestion was, I believe, that his recollection in those circumstances might not be wholly dependable. At all events, he was ready to stick up for Mr Butler-Creagh and says that he told her “the fee had always been £5m from the outset and that [he] believed this was set out in some agreement between her and [Mr Butler-Creagh]”. In this respect he was, as I have now found, in error.

Even if Ms Hersham did ask Mr Dadley if Mr Butler-Creagh “would go for £2m”, that would be consistent with her contemplating paying him to go away. By this time she may well have wished to be shot of him. It does not necessarily connote on her part an acceptance that she had already committed herself to pay £5m.

Mr Dadley then claimed that she had conceded to him that she had provided Mr Butler-Creagh with a document, but only to enable him to show to a third party. She then read out to him, during the conversation, the letter backdated to 18 December. She says that the conversation went rather differently and concerned “an Arab” who was supposed to have offered £2m. That is how the figure came to be mentioned on her account. It matters not, however, since, even if she did read the letter out to Mr Dadley, it remains in my judgment of no contractual significance.

The other document said to support Mr Butler-Creagh’s case is a so-called letter of termination apparently dated 22 July 2009 – but said by him to be a forgery created on 21 July 2010 (well after his claim was launched in April of that year). Ms Hersham says that it was handed to him at some point between 22 and 28 July 2009. It is in these terms:

“Dear Richard,

As a result of the considerable time lost on the project at Fawley Court, the ability to gain planning consent prior to completion has definitely been lost. Thank you for offering to pay back Tim Mullany’s fees, which have been incurred. However, the burden of financing the purchase is now very much a reality and the prospect of having a bank finance the full amount on completion, as you stated, will clearly not materialize.

Equally as a result of this incredible time loss it seem uncertain if indeed completion will take place at all. The problem of Fawley being in the highest category flood zone is a very dire, not just for insurance but for any valuation or residential development. What has become clear is that the second tranche of exchange monies will be due without there being an answer to this dire problem.

This is obviously a most unsatisfactory position to be in. Any prospect of anyone making money from this investment seems to be remote. In particular your wish to get a large fee has clearly been superseded by these events.

The true financial prospect of Fawley Court have to be re-addressed in its entirety. As indeed any profits at all are unclear and your financial projections are very uncertain. Although this has been the premise for any fees or profits its safe to assume this will not happen in the course of a few months.

You should be under no illusion that no matter how hard I try to recover this time loss, I am unable to fully understand the complexity of the issues as I have never done this before. Thank you for agreeing to help accelerate this process.

You must now formalize any financial arrangement you can formulate with Cherrilow / Paul Sewell, as promised before. I am uncertain how this can be done given the uncertainty of the project and its prospect but I am sure you will be able to establish a formula that is workable. Please do so as a matter of urgency as to not have any problems going forwards. You have promised to do so many times and you must as a matter of urgency. I am sorry that all your wish for getting this fee have been shattered but you must trust that I will do my best to recapture my prospects.

Regards,

Aida Hersham.”

The primary relevance of this document is that, if the court were to hold that an agreement had been entered into that Mr Butler-Creagh was to receive a £5m fee, it would be relied upon as demonstrating that it had been terminated. She is alleged to have created it dishonestly after the commencement of proceedings to provide her with this alternative defence. Of course, if she did so, that might well have been because she feared that the bogus letter of 18 December 2008 would be used against her in the litigation. It does not in any way show that she was trying to extricate herself from an oral agreement entered into on 19 October 2008. Indeed, one of the short drafts of the termination letter referred back to “our earlier letter”. It is possible, in other words, that she decided to answer one bogus document with another. (“O what a tangled web … ”)

The rather complicated expert evidence suggests that there is no trace to be found on Ms Hersham’s computers of the final version of this document until July or of any draft prior to May 2010. The explanation given for its appearance at that time is that she was attempting to reconstruct what she had written the year before. There is some evidence from her solicitors to support that. They witnessed her reconstruction one morning in her London flat. Moreover, Mr Hume says that he was shown two versions of it earlier (on 18 May 2010, which happened to be the first time he met Ms Hersham) and that there is no room for doubt or confusion. There is no reason to reject that evidence. Whether it was delivered in July 2009, or even existed at that time, is quite another matter.

What seems to me the most compelling evidence in this instance is that of Mr Butler-Creagh himself, who denies receiving it. If his role (whatever it was) had in fact been terminated, and it had been made clear to him that he was definitely not going to receive his £5m, I do not believe he would have remained on such friendly terms with Ms Hersham, or have carried on performing his “services” at Fawley Court. Mr Butler-Creagh actually claims thereafter to have spent more time on the project rather than less. It is at least implausible that, if such a letter had been delivered, it would have had no impact on their relationship at all. There is apparently no contemporaneous reference to it in emails or correspondence. Indeed, Mr Lewis has cited various friendly, light-hearted and apparently trouble-free communications passing between them within a matter of days after what would have been the termination bombshell. I cannot believe that this would have been the case if it had been delivered.

The document is not required for its primary purpose, since I have come to the conclusion that no agreement was entered into in October 2008 and it is strictly unnecessary to decide, therefore, whether it was terminated. The question does not arise. For present purposes, what matters is Mr Butler-Creagh’s reliance on the document as confirming the existence of the pleaded (oral) agreement forming the basis of his claim. In my judgment, it does no such thing. I am not persuaded that it was what it purports to be. Even if it had been delivered, its terms would not reflect what he claims to have been agreed. In so far as it refers to an agreement at all, it is a reference to a document (“our earlier letter”) – not a bargain reached orally. Moreover, it would appear that the “earlier letter” referred to can only have been the one backdated to 18 December 2008. Ms Hersham seemed to confirm that in evidence.

Although I have found neither of the two disputed documents of any assistance in resolving the central issues in the case, I record that a great deal of time was taken up at the trial in addressing expert evidence about their derivation. I would agree that this served no useful purpose and was largely irrelevant to the real issues.

Mr Butler-Creagh relied, in closing, upon a variety of witnesses to whom he had made statements to the effect that Ms Hersham had agreed to pay him £5m (his wife, Mr Platel, Ms Thomson of the Royal Bank of Scotland, Mr Pieters, Mr Colin, Mr Minikin, Mr Dadley and Mr Osmond). That I regard essentially as a “boot straps” argument. The fact that Mr Butler-Creagh claims to have reached a binding agreement does not mean that he actually had – however many times he says it.

There are other pointers which in my judgment throw some light on the central issue of the oral contract. As late as on 4 December, Mr Butler-Creagh was assuring the Marian Fathers that “I propose to develop the property as a high class hotel”. That would hardly be consistent with a concluded agreement on 19 October that Ms Hersham was to “step into his shoes”.

Furthermore, it is of some interest to note that Mr Butler-Creagh commissioned an enquiry agent’s report into Ms Hersham’s background. This was dated 1 November 2008 and indicates the instructions on which it was based; namely, “in contemplation of engaging in a business relationship with the Subject of Enquiry” (emphasis added). That too is inconsistent with the pleaded oral agreement.

Matters appear still to have been up in the air a year later. On 9 December 2009 (five months after the supposed “termination”) Mr Butler-Creagh emailed Ms Hersham proposing another arrangement whereby he could secure £5m. He suggested that “the easiest way forward [was] for Cherrilow to purchase 20% of Mainstream Commercial Finance Ltd for £5,000,000”. That went nowhere.

As I have already made clear, I concluded that Mr Butler-Creagh has failed to establish, either by his own evidence or by reference to documentation, that the agreement was reached with Ms Hersham for the payment of £5m. In reaching that conclusion, I took into account all of these elements in Mr Butler-Creagh’s case.

It is accepted by Mr Butler-Creagh that he did not enter into any agreement with Cherrilow Ltd. That is despite suggestions made to him on a number of occasions by Ms Hersham from early in 2009 that, if he wanted to be paid for “facilitating” the sale, or anything else for that matter, he should approach Cherrilow and reach such an agreement with it (as the purchaser of the property). A year after his claim was launched against Ms Hersham, however, and apparently only by way of response to its claim for damages, Mr Butler-Creagh claimed his £5m (or some alternative figure) from Cherrilow. He naturally had to formulate his claim on a non-contractual basis. He therefore seeks a quantum meruit. Modern authorities appear to suggest that the proper foundation for any such claim is the doctrine of unjust enrichment. This presents him with a considerable hurdle, but I shall return to consider it at a later stage. Now I should turn to address Cherrilow’s claim itself.

The company claims that it was induced to acquire Fawley Court by dishonest representations made to it prior to exchange of contracts on 10 December 2008 (by which time, of course, it had been in existence for just a week). What is said is that lies told to Ms Hersham, whether before or after the date of its incorporation, were intended to induce her to purchase or, alternatively, to be passed on to whatever special purpose vehicle was to be created for making the acquisition.

It is important in this context to focus directly, from the various false statements made by Mr Butler-Creagh in 2008, only upon those which were intended to induce, and did in fact induce, the purchase of Fawley Court. It is hardly germane to this claim, for example, that Mr Butler-Creagh lied to the Marian Fathers in order to succeed in the June bidding process or with a view to obtaining the exclusivity concession dated 1 August. He told Mr Conway, for example, on 3 July that “funding has been put in place by the Bank of Ireland … ”. Also, on 28 July Osmonds wrote to the Marian Fathers’ solicitors claiming that “ … my client is still finalising the precise vehicle through which he will complete the purchase” (emphasis added). He lied to them again later, in suggesting that he held or was going to hold shares in Cherrilow and that it was still his intention to develop it. Even before that company was ever thought of, Osmonds wrote to the Marian Fathers’ solicitor on 2 October 2008, stating that “my client is currently setting up a UK private company to be the purchase vehicle”.

It is obviously evidence of the way he does business, and of a propensity to mislead, but that would not be directly relevant to a claim that he induced Cherrilow to acquire the property. On the other hand, it is part of the background or, as Mr Auld described it, “the other side of the coin”. It was all part of one elaborate “middle man” fraud, whereby he planned to deceive the vendors first and then a prospective purchaser.

Through Mr Sewell of the Jersey based Key Trust Company, who is a director of Cherrilow’s corporate trustees, and also through Mr Auld on its behalf, Cherrilow advances a claim that it was induced to pay £16.5m for Fawley Court when it was, at the material time, only worth £10m. This against the background, of course, that in June Mr Butler-Creagh had put in a bid of his own (at least purportedly) at £22.5m. It is necessary to remember, however, that he might have cynically pitched it rather high purely to secure the bid and also that, by the time Cherrilow exchanged contracts in December, the notorious bank collapses of that autumn had taken place with a significantly deflationary effect on the property market. It will be for Cherrilow to prove that Mr Butler-Creagh dishonestly talked up the value of the property at the relevant point.

Cherrilow relies essentially upon six misrepresentations by Mr Butler-Creagh, albeit expressed in various ways, which are said to have been intended to cause it to enter into the purchase, and in fact to have done so:

It is disputed to what extent some of these assertions were (if made) statements of fact or expressions of opinion. Mr Auld argues that a statement concerning an opinion (e.g. as to valuation) may be actionable as a misrepresentation if it carries with it, expressly or impliedly, a claim genuinely to hold that belief at the material time(s). That is supported by authority of long standing.

It is said that the representations, in so far as they were made to Ms Hersham and Mr Sewell, were received on behalf of Cherrilow and that Mr Butler-Creagh so intended: see Chitty on Contracts (30^th edn) at 6-028. Also, even in the absence of a relationship of principal and agent, a person can make a representation to A intending that it be passed on to B and that B should act upon it. It was clear throughout to Mr Butler-Creagh, as he informed the Marian Fathers on more than one occasion, that the property was likely to be purchased through a special purpose corporate vehicle. It is thus an unavoidable inference that he knew and intended that any representations he made would be duly conveyed to the relevant entity. So much emerges, for example, from Recital D in the draft “deed” prepared by Mr Osmond in October. He accepted in evidence that he had always been aware that Cherrilow was the vehicle for purchasing Fawley Court.

On 2 December 2008, there was a meeting at which the earlier representations were passed on by Ms Hersham and Mr Landau to Mr Sewell. The meeting lasted just over three hours (taking place at first in the premises of Howard Kennedy and latterly in a nearby coffee shop). These led to the incorporation of Cherrilow the next day, which thereby, in turn, became a representee. It is said to have changed its position as a result of those representations. In this context, I was referred to Leslie Leithead Pty Ltd v Barber (1965) 65 SRNSW 172, 177 and Gould v Vaggelas (1984) 157 CLR 215, 253.

On 3 December, once Mr Sewell had returned to Jersey, he explained to his colleagues the rationale for the purchase of Fawley Court and the action plan that was envisaged. This would be further evidence of the communication of the representations to Cherrilow and another link in the chain of causation. It is unfortunate that there was no written record of the 3 December discussions, but I see no reason to reject Mr Sewell’s evidence on this aspect of the case.

Further reliance is placed on representations to Ms Hersham (and through her to Cherrilow) to the effect that:

These false claims might have led Cherrilow to adopt a more circuitous route than was necessary in acquiring Fawley Court, but it is difficult to see that in themselves they would have been directly causative of the decision to purchase. Similarly, Mr Butler-Creagh’s financial position could hardly have been in itself a factor inducing the decision to purchase. Nevertheless, these representations formed part of an overall picture, which appears to have fooled Ms Hersham and Mr Sewell by lending credibility and substance to his more central claims as to experience, skills, business acumen and project evaluation. There was also the over-arching claim that he was a man of substance who could have brought the project to fruition and who had genuinely therefore been able to place himself in a position whereby he had become a necessary intermediary.

These further representations undoubtedly played their part in the causal chain because, otherwise, Cherrilow would not have been trapped in the web of misinformation which led it to make the purchase. If Ms Hersham and Mr Sewell had not felt obliged, for example, to rely on Osmonds, they would have realised that there was no exclusivity agreement and that Mr Butler-Creagh had no special status in the matter at all.

After Ms Hersham had come on the scene, Mr Butler-Creagh continued to mislead the Marian Fathers, for example by claiming that Fawley Court was to be purchased by an offshore company in which he had an interest, and that he would be providing at least part of the funding himself. This emerges from letters to the Marian Fathers dated 20 November and 4 December 2008. On this date, for example, Mr Butler-Creagh stated that the purchase was to be by Cherrilow “ … in which I own all the shares together with the person who is assisting with the funding … I can confirm that I propose to develop the property as a high class hotel”. There is also a letter dated 2 December, signed by their agent Mr Martin Conway. He there put on record his false understanding that Mr Butler-Creagh would be “providing an element of the funding”. Mr Butler-Creagh further stated to the Marian Fathers that he no longer wished to be a guarantor because of tax advice he had received to that effect, although there was no documentary evidence to confirm that this was so. It seems likely that these statements were indeed all false, but they are not such as to induce Cherrilow to acquire the property.

I can see that Cherrilow might have been induced in part to acquire Fawley Court by a reliance (unwise no doubt) on Mr Butler-Creagh’s estimate of its value. On the other hand, I have to be satisfied on a balance of probabilities inter alia that he did not genuinely believe this valuation at the time: see e.g. Connolly Ltd v Bellway Homes Ltd [2007] EWHC 895. This is by no means self-evident, given his lack of credentials as an experienced property valuer and his natural inclination to espouse optimistic fantasies. Yet, applying the civil standard of proof, I can be satisfied on these facts that he had no genuine belief:

It may seem implausible in the cold light of hindsight that Mr Sewell or Cherrilow would really place reliance on any statements made by Mr Butler-Creagh. The question arises as to why Cherrilow failed to obtain its own valuation or survey report in order to make its own judgment. The explanation proffered is that he exerted pressure upon Ms Hersham, falsely claiming that others were interested as potential purchasers in the background and that he might transfer his supposed right to purchase to one of them (albeit having no locus standi to do so). This pressure was conveyed via Ms Hersham to Cherrilow, although with the benefit of hindsight she now sees the claim that other investors were lining up as “nothing more than a ruse”. It was clearly critical to Mr Sewell’s decision to go ahead with the exchange of contracts on 10 December. He was determined that this unique opportunity should not be lost.

It is necessary for me to take account of the contemporaneous record made by Mr Sewell at the meeting of 2 December in which he refers both to the supposed urgency and to Mr Butler-Creagh’s claim that Fawley Court was indeed still worth £22m. That record is consistent with the present claim of reliance, as is an email from Mr Sewell dated 4 December:

“Further to our discussions this afternoon and following on from our meeting on Tuesday, it is clearly noted that Cherrilow Limited has been established to purchase UK residential property; Fawley Court, Henley-on-Thames, Oxfordshire, RG9 3AE for the sum of £16.5m (completion set for 6 April 2010).

It is also noted that the initial deposit of £500,000, is being advanced to the company via loan and is now available for exchange. It is further noted that Osmond & Osmond of 62/67 Temple Chamber, Temple Avenue, London EC4Y 0HP are acting for the purchaser and are holding the deposit funds directly to their order.

After due and careful consideration I confirm that the directors here authorise you on their behalf to give authority to Osmond & Osmond to exchange on contracts as and when you are comfortable that arrangements are in good order.”

Mr Sewell asserts that Cherrilow did rely on Mr Butler-Creagh’s representations in deciding to go ahead with the purchase (in accordance with Mr Sewell’s recommendation). I need to form an independent judgment about that and his assertions to that effect cannot be conclusive. In doing so, however, I should bear in mind that the law effectively acknowledges a presumption of reliance, which it is for the representor to dispel in circumstances such as here, where the representations are of such a nature as to make it inherently likely that a representee would act upon them.

It is also part of Cherrilow’s case that not only exchange but also completion (as late as 13 April 2010) was induced by Mr Butler-Creagh’s continuing representations, as pleaded. Despite Ms Hersham’s claims to have terminated their relationship, at or shortly after 22 July 2009, it is alleged that Cherrilow continued to take his earlier representations at face value.

Any perception of “urgency” would surely have dissipated following the exchange of contracts on 10 December 2008. By this time, however, Cherrilow was effectively “locked into” the transaction. It is thus conceivable that one or more false representations made prior to exchange of contracts did continue to affect Cherrilow’s conduct and decision-making right through to completion without any break in the chain of causation. If they were set upon a course, it might be difficult for the representor to extricate himself from continuing responsibility. It is Ms Hersham’s case that because Cherrilow found itself “locked in” it had to incur certain consequential costs. On this, she went unchallenged. Moreover, it is necessary to have in mind the need to spend money for the purpose of mitigating loss. As she put it, “Costs continue to be incurred in an attempt to minimise the losses Cherrilow has suffered on entering into the transaction”.

There is evidence available as to when Cherrilow found out that the material misrepresentations were false. It is argued on its behalf that it was reasonable to place continuing reliance upon at least some of the representations until this was discovered.

One of the most significant is said to be the claim to a right of exclusivity or “lock out”. In this instance, the scales only fell from Cherrilow’s eyes (and those of Ms Hersham) on 29 April 2010 when Mr Osmond sent a copy of the expired agreement. This was, of course, after completion had taken place. The fact that it had been hidden at all is a further illustration of Osmonds’ extraordinary conflict of interest.

It was even more recently that Cherrilow became aware that Mr Butler-Creagh’s claims that he had the wherewithal to purchase and develop Fawley Court were untrue. It was only the disclosure orders made in this litigation, and the evidence from the Bank of Ireland, which revealed that the cupboard had always been more or less bare.

It is also said that Cherrilow did not realise the true value of Fawley Court as at December 2008 until it obtained the expert evidence of Mr Nicholas Greene to the effect that it was worth only £10m. That is the only expert evidence on that subject before the court.

Mr Butler-Creagh pleads that it would have been irrational for Ms Hersham to place reliance on any claims made by him without putting in train enquiries of her own. It is in this context that Mr Auld cited a number of authorities to support the proposition that one to whom a representation has been made does not have a duty to verify it before acting upon it: King v Wilson (1843) 6 Beav 124, 129, per Lord Langdale MR; Redgrave v Hurd (1881) 20 Ch D 1, 14, per Jessel MR; Haas Timber & Trading Co Pty Ltd v Wade (1954) 94 CLR 593, 601. So also, he submits, it is not open to a defendant in deceit proceedings to rely on alleged carelessness on the claimant’s part in failing to discover the truth: see e.g. Clerk & Lindsell on Tort (20^th edn) at para 18-37 and Spencer Bower on Actionable Misrepresentation (4^th edn) at para 188. There is no doctrine of contributory negligence.

The justification for this aspect of legal policy is especially evident in a case such as this, where the defendant has made representations as to urgency, specifically with a view to discouraging independent checks being made on his claims.

Against that background, it seems less implausible to attribute responsibility to Mr Butler-Creagh for Cherrilow’s acquisition, and any consequential losses there may have been. What seemed to have been of particular significance at that stage were his claims of “urgency” coupled with his optimistic valuation. That clearly affected Ms Hersham and Mr Sewell. Another factor was undoubtedly his claim to 25 years’ experience as a developer. He was ordered to provide information, shortly before trial, as to his best examples of relevant development experience. It emerged that there was nothing remotely comparable to the nature or scale of development he was proposing at Fawley Court. Indeed, most of his past property experience had been by way of dealing rather than developing. This meant that his claims to Ms Hersham as to what could be achieved for Fawley Court, how long it would take and at what cost, were virtually worthless. They may have derived to an extent from the appraisal by Mr Kearsley, but were put forward as reliable and effectively endorsed by Mr Butler-Creagh in the light of his supposed experience.

The claim to have had 25 years of relevant experience in planning and property development can be characterised primarily as one of fact rather than opinion. Moreover, it is relevant also to the other representations as to valuation and the proposed cost of development. Those claims involved the implicit factual assertion that the opinions expressed were those of a person with that sort of experience. The figures he gave did not purport to have merely been plucked out of thin air, but rather to have been based on relevant expertise. Further, even on the hypothesis that Mr Butler-Creagh genuinely believed that his estimates at the time were valid (perhaps having deluded even himself), there is scope for Cherrilow to argue that he had no reasonable grounds for any such belief. That would be contrary to the impression created in the listener by claims of long experience. The implicit assertion that the estimates or opinions expressed were based on his expertise is itself factual in character. Moreover, that claim cannot be separated out from the assessment of value: the two are indivisible.

These were the representations that seem to me to have been of particular significance because, as she attested vehemently in the witness box, Ms Hersham attached most importance to them at the time. He was presenting himself almost as a “package”. She thought she could rely upon his experience and development skills. As she put it in the witness box, “ … for me his ability was critical”.

It is now possible to understand that the estimates were not based on any objectively reasoned assessment. What was apparent from his evidence in this trial, and from other material that has come to light, is that his conduct from June 2008 onwards was driven predominantly by his plan to conjure up a payment of £5m on the false pretence that he was someone with whom any prospective purchaser had to do business. He had managed to insinuate himself between the Marian Fathers and any genuine purchaser purely for that purpose.

The false claims of urgency, because of supposed rival bids, were also plainly material in Mr Sewell’s decision to recommend the acquisition to Cherrilow. They too were demonstrably false. There were in fact no other “punters” interested in making offers anywhere near Mr Butler-Creagh’s bid. It is now known, from a letter sent by Mr Conway to the Marian Fathers on 4 December 2008, that the only other prospective purchaser in the offing was Tusk Developments, which had earlier offered £18m but would now “only be prepared to pay up to £12m”. It is also relevant that, according to a report in the Catholic Herald as early as 16 May 2008, the property had been offered at £14m by the Marian Fathers before it was put on the market.

It is said that if Cherrilow, through Mr Sewell in particular, had been able to make a judgment at or prior to 10 December 2008, unencumbered by these misrepresentations, the position would have been quite different. Either Cherrilow would not have purchased Fawley Court at all or, if still interested, the purchase price would have been reduced to what is now said to have been the true market value of £10m.

It may be helpful in this context to spell out in rather more detail what that hypothetical scenario would have been like. The position then confronting Mr Sewell and/or Ms Hersham would have been very different. They would have known the following matters:

I have come to the conclusion, in the light of Mr Sewell’s evidence, that Cherrilow did place reliance, as always intended by Mr Butler-Creagh, on the false misrepresentations of fact I have identified; moreover, had it not done so, the decision, on the balance of probabilities, would have been not to take the open ended risks. The purchase would not have been made. Mr Ramsden took some time going through Mr Sewell’s evidence with a view to showing that he had been rather lacking in curiosity. He did seem rather vague while in the witness box, not to say semi-detached, but this does not assist the submission that there had been no reliance. He plainly relied on something in coming to his recommendation to exchange contracts. I would not accept the submission that he was a mere cipher; that “he simply acted on the instruction to set up Cherrilow to purchase Fawley Court”. On the other hand, virtually everything he knew derived from Ms Hersham. She had plainly passed on to Mr Sewell the gist of the representations made to her – originally with the intention that she should pass them on to Cherrilow or whatever other vehicle was to enter into the transaction. The only information Mr Sewell had, on which to base his decision, derived from Mr Butler-Creagh. It would be unreal to draw the conclusion that he relied on anything else. He had consulted no one else and was not in a position to form any independent judgment of his own.

The pleaded representations (even though not made directly to Mr Sewell) were at the very least a substantial factor in the decision to exchange contracts. That is the test to apply according to modern authority: see e.g. Smith New Court Securities Ltd v Citibank NA [1997] AC 254, 285A, per Lord Steyn. (My conclusion coincides with the “very likely assumption” discussed in McGregor on Damages (18^th edn) at 41-010 to 41-030.) The claim in deceit accordingly succeeds.

This is not an easy case in which to assess the appropriate compensation. Where the deceit has led to a sale of property, the straightforward measure of damage is to fix upon the difference between the sale price and the actual value at the material date. This will ordinarily be identified as the date of the transaction. Mr Lewis contended for the date of completion here, 13 April 2010, by which time there had been a significant recovery in the property market. But I accept that 10 December 2008 is more appropriate as being the date of the transaction. That is when Cherrilow entered into its commitment. The adoption of that date would be consistent with the reasoning in Smith New Court of Lord Browne-Wilkinson at 266 and Lord Steyn at 284.

The only expert evidence I have as to the true value on 10 December 2008 is that of Mr Greene, which puts the figure at £10m. There is no reason to reject it. Mr Butler-Creagh chose not to put in any expert evidence when given the usual opportunity.

Considerable weight was attached by Mr Butler-Creagh to a valuation prepared by Savills in March 2010 for the purpose of deciding whether to make a loan to Cherrilow to enable completion to take place. It seems that Credit Suisse Bank has a 50% policy, whereby they are only prepared to lend 50% of the value of a property. In this instance, they were prepared to lend £12m on a valuation of £24m. This does not, on the other hand, undermine the opinion of Mr Greene. Most importantly, the Savills report is not an expert report for the purposes of this litigation. That was not its purpose and it does not comply with any of the relevant requirements. In any event, it was concerned with a valuation 18 months later (i.e. not at 10 December 2008). It has not been subjected to testing in court, unlike the evidence of Mr Greene, who was cross-examined for three hours.

A significant factor, which would have been tested in that way, was the extent to which the Savills valuation was affected by the size of Mr Butler-Creagh’s bid and by the price later agreed between Cherrilow and the Marian Fathers. For the reasons I have canvassed already, those were artificial and not to be regarded as representing a true reflection of the market, whether at June or December 2008. Mr Butler-Creagh cannot be characterised as a “willing buyer”. It is clear from his own witness statement that he had intended in June 2008, having made the highest bid, to beat the Marian Fathers down significantly by renegotiating from that advantageous position. (That was obviously prior to the impact of the banking crisis.)

Mr Butler-Creagh also pointed to insurance valuations, but they do not provide a reliable comparison when the issue is market value.

The sale price was £16.5m and the difference is thus £6.5m. This is subject to a complication with regard to a “retention” or “abatement” of £3.5m negotiated by Ms Hersham, shortly before completion, in connection with unresolved issues about rights of way and the exhumation of bodies. Clearly Cherrilow can only recover, under this head of loss, the difference between £10m and the price ultimately paid, whatever that is: McConnell v Wright [1903] 1 Ch 546

As I indicated, there was an alternative formulation of the damages calculation, based on the hypothesis that Cherrilow would, in full knowledge of the facts, have decided to negotiate with the Marian Fathers directly, rather than withdrawing altogether. The calculation by Cherrilow arrives at the same final figure because it is assumed that a deal would have been done at Mr Greene’s valuation of £10m. Whether the Marian Fathers would have come down that far I rather doubt. Since, however, my finding is that Cherrilow would have withdrawn altogether as a prospective purchaser, it is perhaps unnecessary for me to address this hypothesis further.

So far the outcome would appear reasonably straightforward, but there is also a claim for additional damages in respect of the consequential losses incurred. The calculation of these stood until the close of trial at £21,707,708. That was based on a total expenditure of £31,707,708 minus the value of the property at £10m. (It will be noted that the expenditure incurred appears to correspond almost exactly to the supposed profit which Mr Butler-Creagh was dangling in front of prospective purchasers back in 2008.) Somewhat surprisingly, perhaps, no challenge was offered in cross-examination to Ms Hersham’s evidence on these figures. Obviously, credit would have to be given for any gain accruing to Cherrilow: see e.g. Spence v Crawford [1939] 3 All ER 271, 288-9. Yet Mr Auld submits that there has been no gain to show for the expenditure. He described Fawley Court as “a white elephant”.

The underlying policy is that damages are intended to put the relevant claimant in the position he would have occupied if he had not sustained the wrong for which he is being compensated: see e.g. the observations of Lord Browne-Wilkinson in Smith New Court Securities Ltd v Citibank NA [1997] AC 254, 262. Such a claim may be made in respect of consequential losses even if they were not reasonably foreseeable: Doyle v Olby (Ironmongers) Ltd [1969] 2 QB 158. But they must be consequential.

Unfortunately, perhaps through constraints of time, the position on quantification was left at the end of the trial in a rather unsatisfactory state. In particular, the issue of causation was not explored. On the last day of the hearing, a newly formulated summary of Cherrilow’s alleged losses was presented without amplification or an opportunity for Mr Butler-Creagh to test or challenge it.

One cannot simply spend money in a situation of this kind and express it as a loss flowing from the actionable misrepresentations. It is said that the money has been spent with nothing to show for it. It needs, however, to be demonstrated that it was necessary or reasonable to spend the money to mitigate loss or to preserve the relevant asset. It is surely appropriate to demonstrate that the claimant in question has had to spend the money, not merely as a matter of choice, but as a result of being placed wrongfully in a particular predicament as a result of the misrepresentation(s) comprising the cause of action.

One possibility, once the nature and extent of the misrepresentations became apparent, would have been to market the property and, if sold, to make an assessment of loss at that stage. Yet, having chosen in spite of everything to “make a go of it”, Cherrilow needs to show that the cost of doing so is somehow greater in consequence of the wrongdoing than would otherwise have been the case. It is necessary to focus on this marginal impact of the misrepresentations.

The written summary of losses submitted on the final day was significantly reduced from the pleaded figure of £21.7m. The thinking was explained in supplemental written submissions, which I received in the middle of August (and to which Mr Butler-Creagh was given the opportunity to respond). Nothing new was added. A decision had apparently been taken to abandon parts of the original claim. In particular, there was no longer to be any claim in respect of the acquisition of Wyevale Garden Centre and North Lodge or removal of those involved in the Toad Hall garden centre. This had all been directed to “tidying up” the estate, albeit at considerable cost, with a view to rendering it a more desirable entity.

Mr Ramsden, rather than attempt to deal with the new schedule of loss on his feet in the course of his closing submissions, called upon Cherrilow’s team to identify the documents disclosed in support of consequential losses. This was done in the supplemental August submissions (at paragraphs 3 and 4).

The evidence in support of these losses was contained in the pre-trial witness statement of Ms Hersham dated 20 June 2011 (at paragraph 21.2). There was no challenge to this aspect of her case while she was in the witness box. Nor were any submissions made as to the documentary evidence disclosed, either in opening or closing. Nor had any evidence been introduced on the subject in Mr Butler-Creagh’s witness statements. In these circumstances, it is difficult to see by what means the claims could be resisted, except by pointing out some logical or legal flaw in the course of closing submissions.

The final claim in respect of direct and consequential losses stood as follows:

A number of written submissions were made about the various items of claimed loss. Before I address these, I can deal shortly with the claim for Mr Dadley’s fee of £65,000. I can see no reason why Mr Butler-Creagh should have to pay Cherrilow a sum corresponding to that which Ms Hersham chose to pay Mr Dadley for introducing her to Mr Butler-Creagh – not least because there does not appear to be any causal connection between it and any misrepresentation by Mr Butler-Creagh.

A general point is taken as to how the damages issue was presented by Cherrilow at the trial. Mr Butler-Creagh (and, for that matter, the court) was led to believe, both by Ms Hersham and by counsel, that the calculations of loss were still undergoing an auditing process by KPMG and that a report would, at some stage, be introduced to support them. For whatever reason, that never materialised. I was later informed that the auditing process was not specifically directed towards this litigation. Mr Auld had simply been referring to the usual auditing of the company’s accounts and this happened to take longer than anticipated.

I would not accept the thrust of Mr Butler-Creagh’s submission about this, which was effectively that I should conclude that Cherrilow was therefore unable to prove any of its pleaded losses. It may seem curious that the audit process went off the radar, at the time without explanation, but I do not believe that this alone would justify that inference. A claimant can prove losses without needing to have them audited at all. But it is at least fair to say that the promise (or at least the prospect) of an auditor’s report might have been the reason why Mr Butler-Creagh’s legal team did not deal with quantification issues, either in opening or in the course of cross-examination. It would have proved to be a waste of time if the pleaded figures, as supported by Ms Hersham’s evidence, were later superseded. Indeed, Ms Hersham herself suggested (at para. 21.3 of her witness statement) that “ … costs continue to be incurred and Cherrilow reserves its right to file a detailed, complete and up to date schedule of loss in due course”. That too might have given the impression that the process of quantification remained inchoate and yet to be finalised. Whether that is the reason for Mr Butler-Creagh’s reticence on the subject at trial, I cannot tell. In any event, there came a point (at least by closing speeches) when it would have become apparent to Mr Butler-Creagh’s lawyers that no such report was to be forthcoming and the question would need to be addressed on the evidence as it stood.

Another general point now taken is that Ms Hersham was not an appropriate witness to prove Cherrilow’s loss (not being an officer or “agent” at the material time). Yet no objection to that effect was taken prior to closing speeches. Her evidence is before me, unchallenged either as to its admissibility or substance, and it is not necessary to show that she had some formal post or status before the court can attach any weight to it. She was involved throughout and had first hand knowledge.

The position is by no means satisfactory, since the calculations of loss have not been examined in any detail, but that is largely because they went unchallenged. I must now turn to the individual items.

I have already indicated that Cherrilow is, in principle, entitled to recover the difference between the value of the property as at 10 December 2008 (the date of exchange) and what was ultimately paid for it. That cannot yet finally be determined, as the “abatement” issue has not been resolved.

Stamp duty and borrowing costs also appear to be recoverable as flowing directly from the decision to purchase (induced by false representations).

Running and staffing costs seem to me to be less straightforward. Had Cherrilow decided to sell (at a loss) at some point between completion and the commencement of the trial, it would be relatively easy to calculate what would have been required to restore its financial position. Since Cherrilow chose to stay and progress its plans for development, causation is more problematic. Clearly, as I have already noted, it cannot recover whatever it chooses to spend. Reasonable maintenance costs to ensure that the asset does not depreciate (prior to an onward sale, for example) would, in my view, be a legitimate head of claim. The cost of running and staffing the estate indefinitely is another matter. That may be regarded in large measure as a factor of Cherrilow’s decision to stay. It has been recognised that the decision to acquire other properties (to “rationalise” the estate), such as Toad Hall, is not recoverable. That is, presumably, because it cannot be shown to flow directly from the false representations which constitute the cause of action.

Since I have held that the representations continued to affect Cherrilow’s state of knowledge and its decision-making until after the date of completion, I think that the reasonable running and staffing costs up to that date should be recovered. On the other hand, once the scales fell from Cherrilow’s eyes and it was in a position to formulate its claim, a more discriminating judgment would have to be made.

Had a supplemental claim been made and an “up to date schedule of loss” been produced (as foreshadowed in Ms Hersham’s witness statement), there would have been room for debate as to the length of time for which reasonable running costs would be recoverable. But that did not happen and I have had no submissions that the relevant period had expired. Accordingly, the more limited heads of recovery identified in the above table seem to me legitimate, supported as they have been by Ms Hersham’s evidence and by disclosed documentation. She characterises them as “the losses [Cherrilow] suffered from being locked into the transaction to buy Fawley Court as a result of its reliance on [Mr Butler-Creagh’s] untrue representations”. That seems to be an accurate appraisal and it went unchallenged.

The final issue I must address is that of Mr Butler-Creagh’s quantum meruit. Given the modern analysis of this form of claim, his primary difficulty is to demonstrate that whatever he did led to any “enrichment” on the part of Cherrilow at all – unjust or otherwise. At the moment, it appears to be hugely out of pocket. This aspect of the case was hardly explored in the course of opening or closing speeches (but only in writing). Furthermore, by contrast with most claims of this kind (and indeed in contrast with the professionals who were performing tasks at Fawley Court), no records have been produced of work done or hourly rates to be charged. That is probably because Mr Butler-Creagh’s alternative argument (he having failed on his oral agreement of 19 October 2008) is based on the proposition that he was to be paid £5m for “facilitation”. At all events, the court is faced with a large evidential gap.

At first I was puzzled as to what Mr Butler-Creagh’s role actually was or how it was perceived by Ms Hersham and Mr Sewell. Why was he on the scene at all? What was he supposed to be doing? Whatever it was, was he supposed to be doing it out of the goodness of his heart (somewhat unlikely)? The picture is somewhat clouded by the fact that for a long time Mr Butler-Creagh and Ms Hersham seem to have been friends and there was a remarkable informality about their relationship and dealings. (That may account, for example, for his being allowed to base his business activities on site free of rent.) He rendered an invoice for his £5m immediately following completion in April 2010 and claimed to be astonished that it was not immediately settled. His suggestion is that he was owed the money because of “facilitating” something – either exchange of contracts or completion. Given that the whole edifice was based on a series of deceptions, and that he had no standing at all in the matter, it is hard to understand what facilitation was required. It could have progressed as a relatively straightforward conveyancing transaction between vendors and purchaser – using its solicitor of choice. Mr Butler-Creagh had inserted himself between them quite needlessly.

Some other ways of putting his claim were advanced. There was a “reduction” from £22.5m to £16.5m in the agreed purchase price between Mr Butler-Creagh’s tender price at the end of June and the exchange of contracts between Cherrilow and the Marian Fathers on 10 December 2008. On the other hand, that was all that Ms Hersham and Cherrilow intended or were willing to pay. This information was conveyed through the medium of Mr Butler-Creagh, but only because he had falsely claimed to be a necessary intermediary. Had Ms Hersham dealt directly with the vendors, it is possible that a lower price would have been negotiated (unaffected by the inflationary influence of Mr Butler-Creagh’s artificially high bid). Be that as it may, however, the “reduction” would not justify the payment of any “fee” to Mr Butler-Creagh. This argument was tantamount to saying that Cherrilow should pay him £5m for having reduced the purchase price payable to the Marian Fathers by £6m. I suppose it lacks nothing by way of chutzpah, but how comfortably it sits with his “mutual duty of good faith”, owed to the Fathers, is another question.

One suggestion was that Mr Butler-Creagh had effected certain introductions to professionals, but this cannot justify payment of any fee either. The principal example given was that of Mr Tim Mullany, as “architect” who proved (as I think Mr Butler-Creagh effectively conceded) worse than useless, costing Cherrilow £120,000. He lacked any relevant qualifications and achieved nothing. He was sacked on 29 July 2009. Mr Butler-Creagh can hardly expect to be remunerated for this, least of all by reason of unjust enrichment.

In these very unusual circumstances, it is difficult to come to a definitive conclusion as to his actual role, since there is no evidence of a mutual understanding. It was not analysed or defined. Until after completion had taken place, Ms Hersham and Mr Sewell were still labouring under various misconceptions. Mr Butler-Creagh knew the true position and, for that reason, has found it difficult throughout, including while in the witness box, to identify exactly what he was doing there or why it should be worth £5m. He accepted that he had never been “project manager” (as had at one stage been tentatively suggested). It seems clear that between December 2008 and July 2009, when Ms Hersham decided that she had little choice but to take charge of operations herself, virtually nothing was achieved. At one stage, there was talk of his playing a role in relation to planning, but he had no relevant skills or experience and, in any event, that was a task assigned to Mr Phillips and Mr Cooper.

The only conclusion I can reach corresponds to the general perception described by Ms Hersham in the witness box, when challenged about the letter backdated to 18 December 2008; that is to say, she believed for some time that all concerned were going to make a significant profit and Mr Butler-Creagh would at that stage get a share:

“I envisaged that he was going to do all the work at Fawley Court. I believed he was going to deliver all the profits that he was going to get on the projections of £32m profit and I thought that he would be remunerated handsomely for all of that, so I did genuinely believe that, sir.”

Earlier, she had said:

“ … this letter was written in good faith and in genuine belief that everybody was going to come out with a lot of money and very happy.”

In other words, if required to attach a formal label to the exercise, she seemed to be characterising it as a kind of joint venture with each participant’s profit depending upon a successful outcome. It is of some interest that a “joint venture” option was being discussed as late as 4 December 2008 by Mr Butler-Creagh with Mr Osmond and Mr Rangeley – another fact which is inconsistent with a concluded fee agreement on 19 October (as Mr Osmond had to accept). It would by no means, therefore, be unrealistic of Ms Hersham to interpret the exercise in that way. As time went by, however, it turned out that Mr Butler-Creagh was not intending to share any risk and had no funds or significant expertise to contribute.

He is unable to identify exactly what is supposedly due to him, but he has set out in broad terms what he can remember. He happened to be at Fawley Court up to completion, occupying office space free of charge, and took the opportunity from time to time to let people in and show them round (experts, advisers, tradesmen and so on). He himself used the term “door keeper”. Nevertheless, despite these relatively modest contributions, it seems that Ms Hersham and/or Cherrilow would probably have allocated him a “cut” if the project came to fruition and there was a profit to show for it. Since that never happened, I cannot see that he has any accrued entitlement or even legitimate expectation. His cross-claim against Cherrilow must therefore be dismissed.

The quantum meruit argument was also advanced against Ms Hersham, as an alternative to the claim in contract, but that does not work since the purchaser of the property was Cherrilow. Its “enrichment” is what matters. This argument led to several attempts to investigate the trust structure behind Cherrilow. It was variously argued that Ms Hersham should be regarded as the “principal” of Cherrilow or a beneficiary of the trust. She is neither a settlor nor a beneficiary. It is undisputed that Mr Butler-Creagh is aware of the beneficiaries’ identities. Any claim that the trust was not genuine was eschewed by Mr Lewis at an early stage and it is not open to him, therefore, to investigate the trust with a view to identifying Ms Hersham as a beneficiary. Nor would such an exercise bear upon any other of the true issues in the case. In any event, there is no reason why Mr Butler-Creagh would be able to establish a quantum meruit against Ms Hersham any more than against Cherrilow.

It follows that Cherrilow’s claim in deceit has succeeded and Mr Butler-Creagh’s claim against Ms Hersham and cross-claim against Cherrilow have failed.