Parker v Walker

Parker v Walker [2014] EWHC 1571 (Ch) Chancery Division 16 May 2014 Stephen Smith QC (Sitting as a Deputy Judge of the High Court) APPROVED JUDGMENT I DIRECT THAT PURSUANT TO CPR PD 39A PARA 6.1 NO OFFICIAL SHORTHAND NOTE SHALL BE TAKEN OF THIS JUDGMENT AND THAT COPIES OF THIS VERSION AS HANDED DOWN MAY BE TREATED AS AUTHENTIC. STEPHEN SMITH QC (Sitting as a Deputy Judge of the High Court): 1. Introduction The Claimant 1. The Claimant in these proceedings is David Michael Parker. Mr. Parker is 77 years old. He is hard of hearing, suffers from cerebral palsy, is confined to a wheelchair and needs assistance with his personal care. He became a widower in 1995 and since then he has lived on his own in Worthing, West Sussex. As will appear below, whilst he is not inordinately wealthy, Mr. Parker has had available to him for immediate use more money than most people are able to enjoy, a situation which he explains as being a consequence of a good investment his father encouraged him to make many years ago. 2. It is clear on the evidence that between June 2009 and February 2011 Mr. Parker was cajoled, bullied and on occasions lied to, by the telesales agents or employees of companies operating under the umbrella of The Defendant 3. The Defendant is Dale Robert Walker. Mr. Walker is a solicitor who has specialized in conveyancing throughout his career, which commenced in 1985 or thereabouts. Since 1989 Mr. Walker practised as a sole trader under the name Dale R Walker from premises in Bromley, and latterly Sevenoaks, in Kent. Mr. Walker was retained by the TPP companies throughout the time Mr. Parker was induced to pay money to them. Mr. Walker handled all the conveyancing aspects of TPP 4. Mr. Walker is no longer in practice as a solicitor. He ceased to practise at the end of 2013 because, he said, like many other small solicitor businesses he could no longer obtain professional indemnity insurance cover. The Solicitors Regulatory Authority intervened in his practice on 17th February 2014, because, so he told me, he could not afford to pay for a final audit, or for the necessary run-off insurance. 5. During the course of his career as a solicitor Mr. Walker was twice disciplined by the Solicitors 6. At the time of the trial (March 2014) Mr. Walker was also about to stand trial at Southwark Crown Court (along with 7 others) on money laundering charges arising out of similar schemes to the ones operated by TPP, but which have no connection with TPP or with the affairs of Mr. Parker. 7. I have set out the information in paragraphs 4-6 above about Mr. Walker, which might be thought to cast him in a poor light, because it was brought out at trial and because at least some of it is in the public domain. However, none of that information appears to me to be of any relevance to Mr. Parker The TPP companies 8. There were a significant number of TPP companies. Many, but not all, of them had the word Ultraclassconsultant 9. Mr. Walker acted as the solicitor to Mr. Assemakis and Mr. Evans, as well as the TPP companies. The claims 10. Mr. Parker makes three claims against Mr. Walker. First, Mr. Parker alleges that Mr. Walker was his solicitor as well as being the solicitor to the TPP companies, and that as his solicitor Mr. Walker owed him contractual duties of care, specifically to advise in connection with, and about the imprudence of, entering into the transactions with the TPP companies, and generally; he also claims that Mr. Walker, as (on this hypothesis) the solicitor to both parties, was in a position where he had an acute conflict of interest. Secondly, Mr. Parker claims that Mr. Walker owed him similar duties of care in tort. Thirdly, Mr. Parker alleges that Mr. Walker is liable as a joint tortfeasor in respect of torts allegedly committed against him by the TPP companies. 11. The torts alleged to have been committed by the TPP companies are the statutory tort of (negligent) misrepresentation, and the common law tort of negligent misstatement. Mr. Anthony Higgins, counsel for Mr. Parker, confirmed on the first day of the trial that Mr. Parker did not assert that the misrepresentations on which Mr. Parker relies in these proceedings amounted to the tort of deceit. This perhaps reflects the fact that although, as I have said, there is clear evidence that on occasion the TPP salesmen lied to Mr. Parker during their telephone conversations with him, there is no evidence that Mr. Walker had any involvement at all with those lies, nor that he knew at any material time that they were being peddled. 12. The scheme operated by the TPP companies is typical of what have come to be known as 13. As liquidator of Ultraclass, Mr. Michael has brought proceedings against Mr. Assemakis and Mr. Evans for breach of fiduciary duty as de facto directors. In those proceedings Mr. Michael obtained a freezing order against Mr. Assemakis, which Mr. Assemakis challenged. The challenge was rejected by Mr. Bernard Livesey QC sitting as a Deputy Judge, on 4th April 2012. Subsequently Mr. Michael reached a compromise with the defendants pursuant to which they agreed to pay him a substantial sum in instalments. 14. In this judgment where I refer to a fact without questioning it, I am to be taken as finding that it is true to the extent that it was controversial between the parties at the trial. It should be borne in mind, however, that those parties were just Mr. Parker and Mr. Walker: none of the TPP companies was a party to the proceedings, and none of them (and none of their telesales agents) attended the trial (save Ultraclass Limited through Mr. Michael). My findings Land banking 15. The Land Registry is necessarily involved in land banking schemes, because all divisions of land and transfers of land have to be registered with the Land Registry in order to be effective. In 2009, when land banking schemes had already begun to achieve notoriety, the Land Registry promulgated a warning concerning them, in a document called What this guide covers This guide is aimed at warning the public about 1 Introduction We have written this guide to warn you about Many investors have been persuaded to pay thousands of pounds for land that has little or no chance of ever being developed. The Financial Conduct Authority estimates that land banking schemes have cost United Kingdom investors as much as 3 What is Land banking is the practice of buying undeveloped land with the aim of dividing it up into small plots and then selling them on to buyers at inflated prices. The plots are offered for sale to individual investors, sometimes with the claim that there will be huge returns if they get planning permission for housing or other development. The land is often in ntry protected from urban development by planning law 16. My attention has also been drawn to advice provided to conveyancers by the Law Society on 10th September 2008 (ie almost a year before Mr. Parkerout of pocket and in possession of land that has little or no chance of ever being built on. If acting for promoters of such a scheme, the client needs to be clear about the legal parameters for promoting such a scheme, not merely for the promotional material but also in terms of what the actual sales team can and cannot say. If acting for a purchaser, seek information about what the client was actually told during the sales discussions, check the veracity of claims made and whether the scheme requires FSA authorization. Mr. Walker said that he took the Law Society 17. The first of the TPP schemes with which Mr. Parker became involved (albeit not his first involvement with land banking, as I shall explain below) was a scheme in the Vale of Aylesbury in Buckinghamshire, on the edge of the village of North Marston. The North Marston scheme appears to be a typical example of the schemes described by the Land Registry, so I shall concentrate on the North Marston scheme for the purposes of further description. 18. On 14th April 2009, Ultraclass Limited acquired two adjoining pieces of land (then contained in two separate titles at the Land Registry), at North Marston, from C & J S Limited. The aggregate area of the land acquired was 3.7 acres. C & J S Limited was a company owned by one Christopher Shipton, whose business, according to Mr. Walker, was or included sourcing land which was suitable for 19. Ultraclass paid C & J S Limited 20. Mr. Walker then arranged for the land to be plotted, in other words divided up into a large number of small plots on an estate layout. As regards North Marston there were 84 plots in total. They ranged in size from 0.03 of an acre (by my calculation approximately 12.5 metres x 10 metres), to 1 plot of 0.06 of an acre (by my calculation approximately 20 metres x 12 metres); and were arranged around what was no doubt intended to appear as a main estate road which ran the length of the site, with 4 connecting roads running off it. 21. Once the site had been plotted, the TPP telesales team were given the task of finding buyers for the plots. Potential buyers such as Mr. Parker appear to have been sent two documents at the outset of the process (at least if they had not previously participated in a TPP scheme). One of these was a brochure which contained generic information about investing in plots of land through TPP (ie general information about the nature of the investment); the other some additional sheets containing information on the locality of the particular plots being offered for sale and a plan showing all the plots. 22. The brochure sent to Mr. Parker in connection with the plots at North Marston had the words (1) (2) 23. Mr. Parker refers to 5 particular passages in the brochure which, he alleges, contain misstatements or misrepresentations on which he relied when deciding whether to purchase a plot at North Marston, viz.: (i) (ii) (iii) (iv) (v) It is an alternative to traditional investments, eg pension schemes, ISAs and shares. As there is the potential for high returns if the land is sold or developed, we suggest a holding in land as part of a diverse portfolio. 24. The additional sheets provided invariably described the respective sites as A prime investment opportunity 25. Mr. Parker was persuaded to pay Expert valuation 26. For the purposes of his claims in these proceedings, Mr. Parker instructed an expert, James O 27. Mr. Oridge and furrow grassland bounded by hedges he settlement pattern without intruding into the countryside and c) the proposal does not compromise the partial development of the larger site. As Mr. O. 28. Mr. O recorded by Buckinghamshire County Council, and is subject to planning notification in relation to archaeological interest, which means that an application for planning permission would necessitate an archaelogical investigation. 29. Mr. Onegligible 30. In the absence of any challenge to Mr O Collective Investment Schemes 31. The Financial Services and Markets Act 2000 provides for the regulation of . The definition of such a scheme for the purposes of that Act is contained in Section 235, the relevant parts of which state: (3) The arrangements must also have (b) the property is managed as a whole by or on behalf of the operator of the scheme. 32. One of the aspects of regulation is the power conferred on the authorities under Section 284 of the FMSA 2000, to conduct an investigation into the affairs of the scheme or the operator of the scheme. 33. The first TPP company for which Mr. Walker acted was a company incorporated in August 2005 called Nationwide Land Developments Limited ( 34. At that time the relevant TPP brochure was in its second edition. Mr. Walker was instrumental in the development of the third edition. Mr. Walker was keen to ensure that the scheme for which the brochure solicited participation did not amount to a collective investment scheme for the purposes of the 2000 Act, and he instructed experienced junior counsel to advise NLDL in that connection. The same counsel seemingly advised on several occasions. 35. A draft of the third edition contained a section headed We will manage the approval processOur team will manage the planning application at every stage 36. It appears that counsel may have advised that the provision of a planning application service might cause problems so far as the 2000 Act was concerned and NLDL ure to meet housing targets. 37. However, that service had been dropped altogether by the time of publication of the sixth edition, ie the time of Mr. Parker 38. The consequence of the abandonment of a coordinated plan for the development of the plots was, however, potentially very serious for the individual purchasers. Instead of a scheme where the vendor of the plots, or an , was tasked with seeking planning permission for the site on behalf of all of the plot-holders, the individual purchasers were signing up to a scheme where there was no proposal for any application for planning permission, no facility for a coordinated approach for planning permission, indeed no organized exit route in the direction of the Nirvana of development. In reality the plot-holders were to be left to fend for themselves, with no more than an aspiration that one day somebody would come along who had sufficient enthusiasm to contact them all with a view to obtaining planning permission. 2. Mr. Parker 39. Mr. Parker purchased 14 plots in total from TPP at 3 different locations, in the period July-December 2009, for a total outlay of Click here to view attachment Click here to view attachment 40. Mr. Parker was also induced to pay TPP three Mr. Parker 41. As I have mentioned already, Mr. Parker 42. Mr. Parker 43. Mr. Parker returned the plot reservation form on 4th July with a cheque for 44. On 8th July 2009 Mr. Parker received his first communication from Mr. Walker. This comprised a covering letter, an official copy of the register of the title to the whole of the North Marston site, and a contract for the purchase of the plot. Mr. Walker asked Mr. Parker to sign the contract and return it to TPP, which Mr. Parker did. 45. As I have said, Mr. Parker 46. First, Mr. Parker relies on the following passage at the very end of the generic brochure: No. You have the option, of course, to use your own solicitor, however most of our clients use our free legal service, as we prepare the contracts and ensure that the transfer of freehold is registered at the Land Registry by a solicitor. 47. Earlier in the brochure, it was explained that any purchase would be made in 3 quick steps the contract for your signature and return. Our solicitor will send form TP1, the Stamp Duty Exemption Certificate and form AP1 to the Land Registry. 48. Mr. Walker was the brains behind the 3 quick steps 49. TPP 50. Mr. Walker Please note that this is a formal document signed to create legal rights and obligations and therefore you are entitled to take independent legal advice if you so wish before signing and using this document. At the top of the second (and final) page, the letter said: Please note that all documentation should in the first instance be returned direct to my clients. 51. Finally, the enclosed contract of purchase incorporated a number of special conditions. One is pertinent in this connection: 12. This is a legally binding document on which the Buyer is advised to take independent legal advice. 52. At the end of the special conditions, Dale R. Walker was described as Seller 53. Mr. Parker signed the purchase contract and returned it to Ultraclass. He spoke to nobody before doing so. Nothing else relevant happened until 9th September 2009, when Mr. Walker wrote a short letter to Mr. Parker, informing him of the completion of his application for registration at HM Land Registry and enclosing an official copy of his title and a copy of the purchase contract now signed by Ultraclass. 54. In his witness statement, Mr. Walker disclosed that he charged Ultraclass a fixed price of Mr. Parker 55. In the meantime, seemingly once Mr. Parker had come onto the radar of the TPP sales team as a person amenable to plot purchases, he was approached by another salesman, who said his name was William Lord. Mr. Lord proposed that Mr. Parker purchase a plot of land at King 56. Mr. Parkerdocumentation relating to your recent purchase 57. The letter of 14th August was headed Institutional TradeInstitutional Trade 58. Quite what an Institutional Tradesmaller parcelshundreds of clientsAs you are an experienced client 59. Mr. Parker 60. Mr. Parker says that he then called Mr. Lord and asked him how he could be sure he would get his money back (and more) on a future sale of the plot to the Council. His account of the response, which is relied on as containing a (further) misrepresentation, is as follows: would increase in value due to the development of the marina. 61. Mr. Parker says that on 21st August, based on what Mr. Lord had told him and mindful of the statements made in TPP 62. Mr. Parker 63. Mr. Walker 64. Mr. Parker signed the documentation and returned it to Mr. Walker. 65. As I have set out in paragraph 39 above, Mr. Parker purchased a further plot on the King 66. In connection with the purchase of the second plot at King 67. Mr. Parker heard nothing further from Mr. Walker in connection with the King 68. The letter then explained what Mr. Walker had done in the light of the current impossibility of registering transfers of plots: The absurdity of this step, however, was that the beneficiary of the Unilateral Notices was identified on the register as Christopher Shipton, not Mr. Parker or any other purchasers of plots. Thus if Christopher Shipton wanted to effect a disposition of the site notwithstanding the contracts referred to in the Notices, he could agree as beneficiary that the Notices be removed without the agreement (or knowledge) of any plot holder. 69. Mr. Walker took the step of registering Unilateral Notices without any prior discussion or other engagement with Mr. Parker. Even disregarding the absurdity just mentioned (which confirms that Mr. Walker was in fact acting for Mr. Shipton), the registration would not necessarily mean that when effecting it Mr. Walker assumed the role of solicitor to Mr. Parker: the registration of some form of protection for the purchasers when title could not be immediately transferred would be in the interests of the vendor as well, because otherwise the purchasers would be likely to press them for an early completion of their transactions. 70. The compulsory purchase order had been made by the Council in February 2009. In November 2009 the order was not confirmed by the Secretary of State and the Council decided not to pursue the purchase. This important development on the planning position was not disclosed to Mr. Parker in 2009 (or at any time by TPP or by Mr. Walker). 71. Mr. Parker 72. Mr. Lord did not accept Mr. Parker 73. This agreement resulted in the now familiar letter from TPP enclosing documentation, and a letter, also in familiar terms, from Mr. Walker dated 15th December 2009 enclosing an official copy of the title, a draft contract and a draft transfer of part. 74. By 16th February 2010 Mr. Parker had heard nothing about the registration of his latest purchases (plots 111, 112 and 116). He therefore called Mr. Walker Mr. O 75. Mr. O 76. The site extends to 0.7 acres and was subdivided (on paper) into 131 plots. Mr. Parker 77. In his description of the site Mr. O 77). There is therefore a history of potentially contaminated past land use. [There is also] a significant risk of flooding 78. Mr. O 79. As regards the level of compensation payable on a compulsory purchase, Mr. Ocompletely irrelevant Mr. Parker 80. TPP 81. The 7th September letter enclosed various documents relating to the Slough site, including a plot reservation form which identified William Lord as the broker, the price to be paid as . Mr. Parker wrote a cheque for 82. Mr. Walker 83. On 19th October 2009 Mr. Walker wrote to Mr. Parker informing him of the completion of his application for the registration of the Slough plots and enclosing an up to date official copy of the register of his title and a copy of the signed agreement. 84. The charges register of the title refers to a number of restrictive covenants having been imposed on the land by a variety of instruments over the years. One of those instruments is a deed dated 15th December 1960 made with Buckinghamshire County Council pursuant to the Green Belt (London and Home Counties) Act 1938. 85. Mr. Walker did not give Mr. Parker any advice in connection with any of the restrictive covenants noted in the charges register (and Mr. Parker did not seek any advice from him). A copy of the 1960 deed was not supplied to Mr, Parker, though Mr. Walker did have a copy himself: he had acted for TPP on the acquisition of the site in 2007 and had investigated title in the normal way. Indeed, by an email to Mr. Assemakis dated 11th December 2007 and copied to Mr. Evans, Mr. Walker had said that the entry into the 1960 deed was an area of particular concern 86. A copy of the 1960 deed was disclosed by Mr. Walker just before the trial commenced, pursuant to an order made by Master Teverson. The material part of clause 2 of the deed provides: (a) that the several parts of the said property rable land or pasture land without such consent. (b) (c) That no building structure or erection (including moveable dwellings or caravans) nor any advertisement hoarding or similar notice or placard nor any addition or extension to or of the existing buildings on the said property shall at any time hereafter be erected placed made or exhibited on the said property or any part thereof without the consent of the Council 3. 4. Nothing herein contained shall be deemed or taken to be a grant of planning permission for the purposes of Part III of the Town and Country Planning Act 1947 nor shall any permission granted under the said Act or any statutory re-enactment or modification thereof be deemed to be a consent under this Deed but any consent required under this Deed shall be separately applied for and given by the Council if they think fit. 87. The embargo on buildings, structures or erections on any part of the relevant land might be thought to prevent any plot-holder from installing even a fence around his plot, should he ever feel the urge to do so (and could lawfully gain access to it). 88. Perhaps unsurprisingly, the local authority search disclosed that the site at Slough was in a Green Belt/Conservation Area Mr O 89. Mr. Oopen farmland, cultivated as grassland ite. The policy of the Local Council is to prohibit development in the greenbelt. Development in Conservation areas is also restricted. Given that the site is also adjacent to Historic Parkland the prospect of Planning Permission is remote. 90. It is therefore scarcely surprising that Mr. O Further payments 91. Though there was no immediate abatement in the endeavours of the TPP telesales team to persuade him to purchase yet more plots (to which he very nearly succumbed), Mr. Parker 92. In October 2010 Mr. Morgan called Mr. Parker and said that he had a purchaser for his land. However, TPP were only prepared to sell Mr. Parker 93. Before he sent the money to TPP, Mr. Parker decided to take advice, and, Mr. Crystal says, it is instructive to see to whom he turned. He approached a firm of accountants with whom he had had dealings in connection with other, more traditional, investments (ie not Mr. Walker). The accountants advised him that they thought Mr. Morgan 94. Mr. Parker did not send the accountantsfor the sale of my land 95. The message on the back of the cheque upset Mr. Baxter, the individual with whom Mr. Parker was now also dealing at TPP. Mr. Baxter told Mr. Parker that TPP would not proceed unless he provided a clean cheque. Mr. Parker therefore obliged. In return, Mr. Parker received a plot reservation form for an institutional trade at a price of 96. Not long thereafter, the process was repeated. Mr. Morgan and Mr. Baxter contacted Mr. Parker and told him that they could arrange for the sale of his land at a huge profit (in excess of a million pounds). They said that monies were needed to facilitate the sale, ie for the payment of fees, but they would be returned on completion. Mr. Parker believed what he was told, and on 18th November 2010 he instructed his bank to transfer 97. As no sale appeared to be imminent, in February 2011 Mr. Parker started to record his telephone conversations with Mr. Morgan, Mr. Baxter and Mr. Masters. Mr. Parker was repeatedly assured that he would be likely to receive a very considerable amount of money for his land in the near future, so long as he was prepared to pay more fees. I have been provided with a transcript of at least some of the conversations (which I understand occupy the space on more than one compact disc). The critical passage on this topic is as follows: Mr. Parker: Yes. Mr. Morgan: Basically, everybody who Mr. Parker: Oh for Pete Mr. Morgan: Baxter Mr. Parker: So the last conversation I had with Baxter he said you don Mr. Morgan: Listen I don 98. After further exchanges to similar effect, Mr. Parker agreed to make another transfer for 99. Not long after that, in March 2011, the BBC ran a news item on the land investment scams 100. Whilst the payment of the 101. Two of the people who claimed to be able to arrange a sale of Mr. ParkerEurasian M&A 102. The 2012 payments do not form part of Mr. Parker Miscellaneous points 103. Before I turn to consider each of the claims Mr. Parker makes, I should refer to four further aspects of the case which have not appeared, or have appeared only briefly, in the account given above. Mr. Walker 104. There is no dispute that Mr. Walker was retained by the TPP companies. But no retainer letters are in evidence before me. Mr. Michael, the liquidator of Ultraclass, says that he has searched for retainer letters but not found any. Mr. Walker says that such letters existed, but has not produced any himself. 105. I find it very surprising that if retainer letters ever existed, not one has been found. I would have expected at least one of the letters to have surfaced somewhere during the course of the preparation for this trial. 106. I think it probable that the retainer letters never existed. Mr. Walker knew what was required for land banking schemes to be successful, and I believe that TPP would have expected him to do Mr. Walker 107. As I indicated in paragraph 34 above, Mr. Walker was instrumental in the development of TPP 108. As I have already recorded, Mr. Walker was at times assisted by experienced junior counsel in this connection (who was neither Mr. Crystal nor Ms Stock). An email from counsel to Mr. Walker dated 12th November 2006 began: Re your latest instructions enclosing a draft brochure. Previously I have been specifically concerned to advise upon the impact of S 235 of the FMSA 2000. I have looked at the brochure from this Counsel then commented on four particular statements in the draft, the third of which was There has never been a better time for the private investor to become a landowner 109. Counsellittle phrase 110. The email exchange in which Mr. Walker gave his approval to TPP of the fifth edition gives an insight into the familiarity between Mr. Walker and Mr. Evans (who, as I have noted above, was one of the controlling minds of TPP, although in name only a consultant to it). On 4th October 2007, Mr. Evans wrote: Just a quick thought before I go on my golf and beer-drinking trip to sunny Cyprus whilst you David On 5th October 2007 Mr. Walker responded: The draft brochure looks fine. Please do not come back tanned, relaxed and happy as we all prefer you white, knackered and grumpy. Regards, Dale DRW Consultancy Services Limited 111. The third point I mention concerns Mr. Walker (1) Advice in relation to identification and sourcing of suitable land for acquisition. (2) Advising in relation to company structure, expansion and administration. (3) Advising on non-legal employment issues. (4) Advising on company structure and compliance. In fact, however, the advice also extended to advice in connection with the telesales operation and the location of premises. When Mr. Walker vacated his premises in Bromley, TPP moved into them. 112. I have been provided with statements on DRW 113. In his Reamended Defence, Mr. Walker asserts that DRW rendered its services to Ultraclass Limited, and that it charged Ultraclass Dale R Walker Client Account 114. The fourth point is that the fees charged by Mr. Walker to Ultraclass for legal services in the 25 month period from 1st March 2009 to 30th April 2011, totaled 115. Mr Parker alleges that Mr. Walker and DRW received in total almost 116. Mr. Walker was obliged by one or more interlocutory orders in these proceedings to disclose certain financial information. One such piece of information concerned the figures for his turnover and profit as a solicitor in the period 2008-2012. Those figures ranged from just over 117. I have also been provided with a list which is headed Information on Monies Received to Dale R Walker Solicitor-Client Account and DRW Consultancy Services Limited 118. Mr. Walker 119. Whilst I am therefore not in a position to say with confidence how much Mr. Walker and DRW were paid for their services to the TPP companies since 2007, whether by Ultraclass, the various vendor or other TPP companies or European Fine Wines or any other companies connected with Mr. Assemakis or Mr. Evans, on any footing those payments were substantial. (3) The issues in this case 120. There are the following six issues which I have to decide: (1) Was Mr. Walker retained by Mr. Parker as his solicitor? (2) Did Mr. Walker owe Mr. Parker a duty of care at common law? (3) Were any torts committed against Mr. Parker by the vendor companies (acting through TPP)? (4) Does Mr. Walker bear any responsibility for any torts committed by TPP? (5) What recoverable losses has Mr. Parker suffered? (6) Was Mr. Parker guilty of contributory negligence? Issue 1: Was Mr Walker retained by Mr. Parker as his solicitor? 121. If Mr. Walker was indeed Mr. Parker 122. I also agree with Mr. Higgins that if Mr. Walker was Mr. Parker 123. As I have said, Mr. Walker never regarded Mr. Parker as his client. It is scarcely surprising, therefore, that there is no retainer letter addressed to Mr. Parker. But Mr. Higgins is again correct in his submission that the lack of an express retainer is not determinative: there may have been an implied retainer; and as regards that, Mr. Walker 124. The leading case on whether an implied retainer was created is the decision of the Court of Appeal in Dean v. Allin & Watts [2001] PNLR 39. In that case, the claimant had attended a number of meetings with solicitors instructed by individuals who were involved with a potential borrower from the claimant. The claimant did lend money to the borrower, the security provided for repayment turned out to be worthless, and the claimant alleged that the solicitors had acted in breach of duties of care owed to him in contract and in tort. At first instance both claims failed. On appeal, the judge 125. The principal judgment was given by Lightman J, whose reasons were endorsed by Sedley and Walker LJJ. At paragraph 22 Lightman J said this: the parties. In Searles v. Cann and Hallett [1999] PNLR 494 the question arose whether the solicitors for the borrowers impliedly agreed to act as solicitors for the lenders. Mr. Philip Mott QC (sitting as a deputy judge of the Queen that there was nothing in the evidence which clearly pointed to that conclusion. He went on: resume that relationship, and where there has been such a previous relationship the failure of the solicitor to advise the former client to obtain independent legal advice may be indicative that such advice is not necessary because the solicitor is so acting 126. Leaving aside for a moment the reference in the generic brochure to the offer of a free legal service (a) The fact that the steps to an acquisition of a plot set out in the generic brochure referred to action which our solicitor solicitor, not to a solicitor jointly instructed by TPP and the purchaser. (b) The fact that in their letters enclosing a plot reservation form, TPP said that once payment for the plot was made, the intended plot-holder would be contacted by our solicitor (c) The fact that in each of his first letters to Mr. Parker in connection with an acquisition, Mr. Walker: (i) pointed out that the contract for the sale of a plot was a formal document intended to create legal rights and obligations on which Mr. Parker was entitled to take independent legal advice; (ii) stated that any queries should be directed to Mr. Parker (iii) in most cases (though not as regards the King (d) The fact that the draft contract provided by Mr. Walker to Mr. Parker contained a special condition which advised Mr. Parker to take independent legal advice. (e) The fact that the draft contract identified Mr. Walker as the solicitor for the vendor (only). (f) The fact that Mr. Walker and Mr. Parker never met. (g) The fact that there is no evidence that Mr. Parker ever spoke with Mr. Walker at any material time. (h) The complete absence of any reference by Mr. Parker to Mr. Walker as his solicitor in any contemporaneous material. (i) The fact that, when he wished to take advice in respect of TPP (j) The lack of any previous solicitor-client relationship between Mr. Walker and Mr. Parker. 127. Mr. Parker, however, points to what he describes as the offer of a free legal service 128. First, I do not believe that Mr. Parker did assume that Mr. Walker was his solicitor. The lack of any communication between them beyond the routine provision of documents for signature, onward submission or safekeeping is not a promising start; it is even less promising when one appreciates that Mr. Walker 129. Second, Mr. Parker did nothing to accept the offer of a free solicitor (if that is what it was, see the next point). He never requested Mr. Walker to act as such for him, nor gave any reason for Mr. Walker to think that that is what he believed he had done. In the words of Mr Mott QC cited by Lightman J in the Dean case, there was very far from being so clear an implication 130. Third, the offer in the brochure was not an offer to provide a solicitor to act for the plot-holder (at no cost). It was an offer of a free legal service comprising the preparation of the contract and the registration of the transfer. That was a service which TPP were offering to provide themselves: if a contract for the provision of that service came into being, that contract was between TPP and the plot-holders. TPP were free to delegate the performance of that contractual duty to Mr. Walker, but when so acting he was acting on their instructions as their solicitor, not as a solicitor to the plot-holders. 131. In making the finding about Mr. Parker r me. 132. I have little doubt that when he gave that evidence, Mr. Parker thought that that was what he believed at the time of the transactions. But by then and bitterly regrets 133. For all of these reasons, my clear conclusion on this part of Mr. Parker Issue 2: Did Mr. Walker nonetheless owe a duty of care in tort towards Mr. Parker? 134. At the conclusion of the trial I invited supplementary submissions in writing on the question of whether I needed to, and if so whether I could, pierce the corporate veil of DRW Consultancy Services Limited in connection with the joint tortfeasor argument which I address below. 135. Mr Higgins 136. The main way in which Mr. Higgins 137. The relevant pleas are to be found in paragraphs 68 to 71 of Mr. Parker (a) In paragraph 69 it is pleaded that Mr. Walker owed Mr. Parker a duty of care at common law to advise him in the terms set out in paragraph 68(ii). (b) Paragraph 68(ii) reads: (ii) to inform the Claimant (a) that he could not act for or advise him in relation to his proposed purchase of any Plot, and (b) to advise him that he must take independent legal advice and instruct his own solicitor if he wished to proceed with the purchase of any Plot. (c) Paragraph 70 pleads that in breach of the common law duty of care, Mr. Walker: (iv) entered into the express, alternatively implied, retainers with the Claimant pleaded at paragraph 66M above. (d) Paragraph 71 then pleads that having entered the retainers in breach of duty, Mr. Walker came under various other duties to Mr. Parker. 138. This is a somewhat tortuous plea. The essence of it appears to be that Mr. Walker acted in breach of a common law duty of care owed to Mr. Parker because he did not make it clear to Mr. Parker that he could not act for him and that he should obtain independent legal advice. But in my opinion Mr. Walker did enough in his letters to get that particular message across to Mr. Parker. 139. Strictly speaking that is probably all I need to say to deal with the claim of breach of a common law duty of care. However, lest Mr. Parker be left with the feeling that a differently pleaded case might have yielded him more joy, and despite the concerns raised by Mr. Crystal about the process, I shall address the (unpleaded) case to which Mr. Higgins 140. That case appears to be that Mr. Walker voluntarily assumed responsibility towards Mr. Parker or was in a relationship with Mr. Parker which was sufficiently proximate to justify the imposition of a duty of care; and that Mr. Walker acted in breach of that duty in 4 particular ways, viz. (1) In advising Mr. Parker that his interest in the King (2) In failing, despite the Law Society (3) In failing to make available to Mr. Parker the knowledge of relevant aspects of the transactions which he had discovered when undertaking the conveyancing aspects of the transactions. (4) In failing to advise Mr. Parker that he, Mr. Walker, had a conflict of interest and that Mr. Parker should seek advice from another solicitor. 141. I have already addressed point (4) in paragraph 138 above. I do not think there could be anything in the complaints I have set out in (1) and (2), even if a relevant duty of care were owed by Mr. Walker. The King 142. There may, however, be more substance to complaint (3). I have already held that if Mr. Walker had been retained by Mr. Parker, he would have been obliged as part of his contractual duties to take step (3); indeed he would have also had to go on to advise Mr. Parker in respect of the significance of the information he provided. The question is, since Mr. Walker was not retained by Mr. Parker, and since the sharing of his knowledge would be against the interests of TPP who had retained him, was Mr. Walker nonetheless obliged to share it? 143. Mr. Crystal says that the answer to that question is clearly no, and refers me to the decision of the House of Lords in Customs and Excise Commissioners v. Barclays Bank plc [2007] 1 AC 181. 144. The issue in the Customs and Excise Commissioners case was whether a bank owed a duty of care to a claimant in litigation to abide by the terms of freezing orders which the claimant had obtained against defendants and served on the bank. The bank had failed to prevent payments out of the companies 145. The decision is important for its analysis of the circumstances in which a court may impose liability in respect of economic loss through the tort of negligence. The opinions distill three tests for such liability from previously decided cases. These are succinctly set out in paragraph 4 of the opinion of Lord Bingham of Cornhill: foreseeable consequence of what the defendant did or failed to do; whether the relationship between the parties was one of sufficient proximity; and whether in all the circumstances it is fair, just and reasonable to impose a duty of care on the defendant towards the claimantapproved by Lord Bridge of Harwich in Caparo Industries v. Dickman [1990] 2 AC 605, 618 146. Lord Bingham proceeded to make five general observations on nine leading authorities to which detailed reference had been made at the hearing, which ranged from Hedley Byrne & Co Ltd v. Heller & Partners Ltd [1964] AC 465 to Phelps v. Hillingdon London Borough Council [2001] 2 AC 619. His first observation was that the assumption of responsibility test was a sufficient but not a necessary condition of liabilityprovides no straightforward answer to the vexed question whether or not, in a novel situation, a party owes a duty of carethe incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation. 147. Lord Bingham ny law of tort must propound if it is not to become a morass of single instances. But it does in my opinion concentrate attention on the detailed circumstances of the particular case and the particular relationship between the parties in the context of their legal and factual situation as a whole. 148. In his opinion, in paragraph 36, Lord Hoffmann said: decision and it may be more useful to try to identify these questions than simply to bandy terms like 149. Lord Hoffmann went on to refer to the general principle that Stovin v. Wise [1996] AC 923. In that case the House of Lords by a majority overturned a decision of the Court of Appeal which had found a highway authority liable in respect of injuries suffered in a road traffic accident. The highway authority had known of the dangers at the junction where the accident had occurred, but had done nothing to remove them. At pp. 943-4, Lord Hoffmann said this: y in Lord Atkin revent another from suffering harm from the acts of third parties der the safety of others in his actions than to impose upon him a duty to rescue or protect. A moral version of this point may be called the ess may apply to a large and indeterminate class of people who happen to be able to do something. Why should one be held liable rather than another? In economic terms, the efficient allocation of resources usually requires an activity should bear its own costs. f one has undertaken to do so or induced a person to rely upon one doing so. 150. Mr. Parker seeks to make Mr. Walker liable for the latter 151. There is, however, a further substantial reason why Mr. Parker 152. I apprehend that most parties to commercial deals would be very surprised to learn that, after the deal had been struck in principle, their own lawyers would be obliged to disclose information to the counterparty which had not been solicited, but which would be material to the decision of the counterparty whether he should proceed with the transaction. I also apprehend that most lawyers acting for such parties would be very concerned at the prospect of having to discharge such a duty, in respect of which presumably they would have to look to their own client for payment of fees for the time spent on the task. 153. That the law will not usually impose a duty of care on someone who owes a conflicting duty to somebody else, is recognized by Lord Hoffmann in the Customs and Excise Commissioners case at paragraph 40 and by Lord Mance in the same case at paragraphs 103-104. 154. Finally in this connection, I point out that Mr. Parker does not allege that Mr. Walker owed him a duty to correct a misapprehension that Mr. Walker knew (or ought to have known) Mr. Parker was proceeding under. My decision in this case is therefore not a decision that a solicitor who is or becomes aware that his client has (whether innocently or otherwise) misled a counterparty, is not under a duty to correct the misapprehension before a transaction is concluded (or to ensure that it is corrected); that question will have to be addressed in another case. 155. Thus I agree with Mr. Crystal that the Customs and Excise Commissioners case provides a clear unfavourable answer to Mr. Parker 156. It is thus not necessary for me to deal with all the other authorities cited by Mr. Higgins. I should, however, for completeness mention two of those (and one other). 157. Al-Kandari v. J R Brown & Co [1988] 1 QB 665 was a case involving a dispute over the custody of children to a marriage which had broken down. Access to the children was granted to the husband, a Kuwaiti national, on his undertaking to allow his passport to be held by his solicitors pending the determination of his wife 158. The wifehad stepped outside their role as solicitors and accepted responsibilities towards both their client and the plaintiff and the children 134. This is not to say that, if the solicitor is guilty of professional misconduct and someone other than his client is damnified thereby, that person is without a remedy, for the court exercises a supervisory jurisdiction over solicitors as officers of the court and, in an appropriate case, will order the solicitor to pay compensation: Myers v. Elman [1940] AC 282. 159. I need hardly say that no similar special factor arises in this case, and no allegation of professional misconduct has been pleaded against Mr. Walker. 160. The second case I mention in this context is the decision in Dean v. Allin & Watts (loc cit) which I have already considered in the context of the implied retainer argument. The alternative way in which the claim against the solicitor was put in that case was for breach of a common law duty of care, and that claim succeeded. However, the Court of Appeal recognized that this was an exceptional conclusion. At paragraph 33 of his judgment, Lightman J said: o the other party to the transaction, for such an assumption is ordinarily improbable. But the special circumstances of a particular case may require a different conclusion to be reached. 161. In that case the special circumstances were that the defendant solicitor knew that the benefit of security for the loan was intended by his clients to be conferred on the claimant lender, and that security was fundamental to the loan transaction, see paragraph 40 of the judgment of Lightman J. There are no similar special circumstances in this case. 162. The Court of AppealAl Kandari and Dean cases were specifically approved by Lord Bingham in the Customs and Excise Commissioners case. At paragraph 21 of his opinion, Lord Bingham observed of the former case that, There was in that case a very clear and entirely voluntary assumption of responsibility by the solicitor towards the wifeDean: ed. 163. Finally in this connection I refer to the decision of Sir Donald Nicholls V-C in Gran Gelato Ltd v. Richcliff (Group) Ltd [1992] Ch 560. This decision was not cited to me by either party but is relied upon by the Court of Appeal in the Dean case, and since it is entirely in line with the way in which I would have decided this case anyway, I saw no reason to call for further submissions upon it. 164. In Gran Gelato the complaint made by a purchaser of a long lease of commercial premises was that the vendor had made negligent misrepresentations when answering his enquiries before contract. The purchaser sued the vendor for misrepresentation and negligent misstatement, and the solicitors for negligence. The claim succeeded against the vendor, but it failed against the solicitors on the ground that the solicitors did not owe the purchaser a duty of care. At p. 570 the Vice-Chancellor said this: 165. The Vice-Chancellor said that in reaching the conclusion that the law should not generally import a duty of care in such circumstances, three factors had weighed with him. The first was the context in which the answers were given, viz. a contract for the sale of land where the buyer is seeking information from the seller. He said: s is that there ought also to be a remedy against the other party 166. The second point was that the law did indeed provide a remedy against the seller. The third point was that whilst he was not persuaded that to impose a duty of care on the solicitors in that case would create a conflict of interest for the solicitors (because both the client and the solicitors would be keen to ensure that the answers were accurate), it was not fair, just and reasonable to impose a duty on the solicitors: self owes a duty of care to the third party, the existence of a further duty of care, owed by the agent to the third party, is not necessary for the reasonable protection of the latter. Good reason, therefore, should exist before the law imposes a duty when the agent already owes to his principal a duty which covers the same ground and the principal is responsible to the third party for his agent 167. Whilst at a commercial level one might hesitate before describing a sale of a small landlocked plot for a very high price as a transaction, as a conveyancing transaction it does not seem to me to be wrong to view it as such. And it is undeniable that the relevant TPP company was responsible to Mr Parker for the shortcomings of its agents (and Mr. Walker was responsible to the relevant company for any shortcomings in the service he provided to it). 168. Thus for all the above reasons I hold that the second way in which Mr. Parker Issue 3: Were any torts committed against Mr. Parker by the vendor companies (through TPP)? 169. The third way in which Mr. Parker puts his case is by alleging that Mr. Walker was a joint tortfeasor with the relevant TPP companies, and therefore jointly and severally liable with them for the losses he suffered which were caused by those torts. I shall consider first the allegations that the TPP companies committed torts against Mr. Parker, before turning to the question of whether Mr. Walker is jointly liable for their commission, if established. None of the TPP companies is a party to the proceedings, which means that the way in which the question of their liability to Mr. Parker has been raised is not entirely satisfactory: not only have I heard no evidence or submissions on behalf of those companies, none has given disclosure of documents (or been required to do so), though some material has been made available by Mr. Michael as liquidator of Ultraclass Limited. 170. As I indicated in paragraph 11 above, the torts which Mr. Parker alleges the telesales agents of TPP, and therefore their principals, the relevant vendor companies, committed against him, are the statutory tort of misrepresentation and the common law tort of negligent misstatement. 171. The statutory tort arises under Section 2 of the Misrepresentation Act 1967. Essentially that section provides that a liability to pay damages will arise where a party: (i) has entered into a contract; (ii) after a misrepresentation was made to him; (iii) which has resulted in loss to that party; and (iv) the misrepresenting party is unable to prove that he had reasonable grounds to believe and did believe up to the time of the contract, that the facts misrepresented were true. 172. The common law tort arises under the line of authority commencing with the Hedley Byrne decision (loc cit). The constituent elements of that tort are: (i) a (ii) a misstatement made by or on behalf of the defendant which amounts to a breach of the duty of care; (iii) reliance by the claimant on the misstatement, in circumstances where it was reasonable for him to rely upon it; (iv) financial loss suffered by the claimant by reason of his reliance on the misstatement. 173. The existence of several of these elements is incontrovertible as regards the relationship between the relevant companies and Mr. Parker (and to be fair to Mr. Crystal, he did not attempt to contest them). Thus Mr. Parker clearly entered into contracts, after, and in reliance upon, the statements which he identifies were made to him by or on behalf of the counterparties under those contracts, and he has suffered losses by reason of his entry into those contracts. Mr. Crystal also did not seek to persuade me that the relationship between the various vendors and Mr. Parker was not sufficiently proximate to give rise to a duty of care on the part of the vendors (nor that the vendors had not assumed responsibility towards Mr. Parker when making the statements which were made). 174. That therefore means that what remains for me to decide in respect of this part of Mr. Parker 175. Point (iii) might be thought not to arise for decision on the statutory claim, because the vendors have not attended court to discharge the burden which lies on them under the 1967 Act on such a claim to show that they had reasonable grounds to believe that the facts represented were true and that they did believe that they were true. However, in these proceedings the burden falls on Mr. Parker to establish that he has a good claim against Mr. Walker and it therefore falls to Mr. Parker to establish that no reasonable grounds existed for any such belief on the part of TPP, if held. 176. For the record, it is necessary at this juncture for me to refer to three related points which I have not so far mentioned. Each of the contracts for the sale of plots to Mr. Parker contained the following special conditions: And: And the generic brochure itself contained at the every end (albeit in very feint, small print) the following: 177. None of those clauses is relied upon in Mr. Walker Were the statements incorrect? 178. Three categories of misrepresentations are pleaded in Mr. Parker (a) the statement by Mr. Lord in respect of the King (b) the statements in the generic brochure regarding the way in which the TPP companies selected sites for investment (see paragraph 23 above); (c) an implied representation, based on the brochure as reinforcedprime investment opportunity ssion. The Lord statements 179. There are two respects in which Mr. Lord 180. The second, and more significant, untruthful aspect was the suggestion that the sale to the Council would inevitably go ahead. Whilst it may have appeared at the time that it was unlikely that the Council would lose interest in carrying through with its plans, it was not obliged to proceed with them, and as history shows, it did not. This was not the copper-bottomed investment which Mr. Parker was led to believe it was. By the time of Mr. Parker 181. It may be said that Mr. Lord The brochure 182. I do not regard the fifth statement from the brochure which I set out in paragraph 23 above as a misrepresentation: there was the potential for high returns to the plotholders if the sites were sold or developed. 183. The first three statements, however, did in my judgment clearly contain material misrepresentations as regards the North Marston and Slough sites: (i) There is no evidence that the sites were carefully selected against strict criteria for potential re-zoning. Indeed, on the evidence of Mr. O (ii) There is no reliable evidence that anybody had evaluated either site for development potential. If they had, as Mr. Okthat Mr. Shipton (or anybody else) produced one. Mr. Walker (iii) The likelihood of a future grant of planning permission cannot have been a factor, still less a major factor, in the selection criteria. There was no such likelihood as regards either site. 184. The fourth statement, viz. that greenbelt land would not be considered unless it looks 185. As regards the King 186. The position had, however, changed very significantly by the time of Mr. Parker 187. I therefore find that the first three allegations of misrepresentation by reference to the statements in the brochure are made out as regards Mr. Parker The implied representations 188. The key alleged implied representation is that TPP had reasonable grounds to believe that each plot offered to Mr. Parker had the potential to obtain planning permission. I consider that that representation was implicit in the statements made in the brochure. I also consider that the statement was not correct as regards either site and amounted to a further actionable misrepresentation as regards the North Marston and Slough sites (but not the King 189. The alleged implied representations about TPP 190. I therefore find that three express misrepresentations (four in the case of Slough) and one implied misrepresentation were made to Mr. Parker in connection with the North Marston and Slough sites, and two express misrepresentations were made to Mr. Parker in connection with the King Was Mr. Parker 191. Mr. Crystal did not seriously challenge either the fact of reliance by Mr. Parker on the statements I have found to be misrepresentations, or the reasonableness of that reliance. I think he was prudent not to challenge either of those points. I have no hesitation in finding that somebody in the position of Mr. Parker was reasonably entitled to rely on the accuracy of information with which he was supplied on behalf of the relevant TPP companies when they were seeking to induce him to purchase plots of land from them. Were the misrepresentations made in breach of the duty of care/without reasonable grounds for believing that they were true? 192. Again, Mr. Crystal did not challenge either of these elements of the causes of action, and again I consider that he was prudent not to do so. 193. The representations concerning the likelihood of planning permission being obtained in respect of the North Marston and Slough side were hopelessly wrong as anyone who had carried out the usual searches and enquiries regarding those sites would have known. Mr. Walker did carry out those searches and enquiries on behalf of TPP. It is clear that he did pass at least some of the information relating to the difficulty of any development at the Slough site back to TPP, and it seems highly probable that he will have reported on planning issues in connection with the North Marston site. 194. Even if Mr. Walker did not report back to the relevant companies in connection with the planning difficulties, it was negligent of TPP to make the statements it did without first having investigated and evaluated the prospects for development at the North Marston and Slough sites, which would in all probability have caused TPP to reach the same conclusion as Mr. O 195. Similarly, it seems to me that it was obviously negligent of Mr. Lord to make the misrepresentations he did about the effect of the compulsory purchase order in respect of the King Conclusion 196. I therefore find that Mr. Parker Issue 4: Does Mr. Walker bear any responsibility for TPP 197. It is not said that Mr. Walker himself made any of the misrepresentations which I have found established. This is certainly not surprising as regards the misrepresentations made by Mr. Lord regarding the King 198. The way the case is put against Mr. Walker is that he is liable to Mr, Parker because: In other words, Mr. Walker is alleged to be liable to Mr. Parker irrespective of whether he was aware of any misrepresentations being made by the telesales agents (or anybody else on behalf of the TPP companies) during the course of the scheme: his liability arises, so it is alleged, because he was party to a joint enterprise and during the course of that joint enterprise, it transpires, torts were committed against Mr. Parker. 199. The principal authority on which Mr. Parker relies in this connection is the decision of the Court of Appeal in Fish & Fish Ltd v. Sea Shepherd UK [2013] 1 WLR 3700. That case arose out of an incident offshore of Malta in which a vessel owned by an English conservation charity rammed a vessel owned by the claimant, causing a loss of half of a catch of fish. The claimant sued the commander of the assailant vessel, a US conservation society which the commander had founded, and the English charity, of which the commander was a director, for damages for trespass and conversion. There was a trial of a preliminary issue whether the English charity was capable of being liable as a joint tortfeasor. The judge held that the charity could not be liable on the facts he found. The Court of Appeal allowed the appeal, finding that there had been a common design. The principal judgment was given by Beatson LJ, with which McCombe and Mummery LJJ agreed. 200. It was common ground between the parties in the Sea Shepherd case that there are two requirements for joint responsibility (also referred to as common design. There is, however, no need for the participator to commit an independent tort. 201. As Beatson LJ acknowledged two paragraphs later: 202. As regards the requirement for the participator to do acts in furtherance of the common design, Beatson LJ said this at paragraph 58: or of scrutinized to see whether it is possible to infer a common design. 203. Beatson LJ also gave the following further guidance: (a) knowing facilitation of a tort does not in itself suffice to justify the inference of a common design (paragraph 50); (b) a common design will not be inferred merely because a person sells a product to another which he knows is going to be used to commit a tort (loc cit); (c) a common design will not necessarily be inferred where one person or entity looks on with approval at what another person or entity is planning or doing (loc cit); (d) there is, however, nothing which requires the participator to be physically present at the scene of the tort (paragraph 54). 204. In the Sea Shepherd case, the Court of Appeal was able to infer a common design direct action and international activitymade the wrongful act their own 205. There are four earlier decisions of appellate courts to which I should also briefly refer in this connection, viz. The Koursk [1924] P 140; Brooke v. Bool [1928] 2KB 578; Unilever v. Gillette (UK) Ltd [1989] RPC 583; and Credit Lyonnais v. Export Credit Guarantee Department [1998] 1 Lloyd 206. The Koursk was also a case about a collision at sea, this time involving three ships. The owners of the vessel which sank because of the collision sued to judgment the owners of one of the vessels which had caused the collision, and then sought to recover their remaining losses in an action against the owners of the other vessel which had caused the collision. The question arose whether the second claim was barred by the old rule that judgment against one joint tortfeasor precluded suit against another. The Court of Appeal held that the owners of the colliding vessels were not joint tortfeasors, they were both independent tortfeasors, so the rule did not apply. 207. In his judgment, at p. 155, Scrutton LJ referred to joint tortfeasors as including: 208. In Brooke v. Bool the defendant entered the claimantThe Koursk. The cause of the explosion, according to Salter J, was . 209. Brooke v. Bool was thus a case where a participator was found to be liable in respect of the negligence of somebody else during the execution of a common design. In his judgment in the Unilever case Mustill LJ observed at p. 603: Whilst this is of course correct, it was actually quite fortuitous that it was B rather than A who caused the explosion 210. In the Unilever case, the question was whether it was arguable that the American parent of an English company was jointly liable for the infringement of a patent by the English company. The Court of Appeal held that it was arguable, and that the case had to go to trial. At p. 609 Mustill LJ observed: of a statute. They all convey the same idea. This idea does not, as it seems to me, call for any finding that the secondary party has explicitly mapped out a plan with the primary offender. Their tacit agreement will be sufficient. Nor, as it seems to me, is there any need for a common design to infringe. It is enough if the parties combine to secure the doing of acts which in the event prove to be infringements. 211. In the Credit Lyonnais case it was held that a Government official was jointly liable in deceit with an individual who had defrauded a bank of substantial funds. One of the bases in which it was said that the official was jointly liable was because he had aided and abetted the commission of the fraud. This basis was rejected by the Court of Appeal (the case went on appeal to the House of Lords, but on the point of whether the Government department was vicariously liable to the bank for its employee ; or he must have joined in the common design pursuant to which the tort was committed 212. There was no suggestion in the Credit Lyonnais case that a participator could not have been held liable as a joint tortfeasor in respect of the (in that case deceitful) misrepresentations made by somebody else during the course of the execution of the common design. Application to this case 213. If there was a common design in this case, I have no doubt that Mr. Walker carried out acts which would amount to actions in furtherance of that design. Indeed, I would be inclined to describe some of Mr. Walker of the torts committed by the TPP companies, even though it is not necessary for the acts done in furtherance to be of such importance. For instance, but for Mr. Walker 214. The key question, therefore, is whether I infer that Mr. Walker was party to a common design (or, what amounts to the same thing, a concerted purpose or action). 215. In his supplemental submissions, Mr. Higgins asserted: (a) that the specific acts which there was a common design should be done by TPP ; (b) that from March 2009 at the latest demonstrate he was, in effect, participating in TPP; (c) that Mr. Walker lent Slough Ultraclass Ltd (d) that Mr. Walker . 216. In his supplemental submissions, Mr. Crystal complained that these points were additional to the points pleaded against Mr. Walker. Save as regards point (d), which does feature in the pleadings, I agree with Mr. Crystal. I shall therefore not pay any attention to them when reaching my conclusion. However, lest Mr. Parker should think that if the other points had been pleaded, I would have been impressed by them, my preliminary view of each is as follows: (a) The common design pleaded is the venture to sell the plots, not to make misrepresentations: it is not necessary for Mr. Parker to establish a common design to commit a tort; a common design to do something which, in the event, involved the commission of a tort, is sufficient. (A common design to commit a tort would either be an a fortiori case, or amount to an actionable conspiracy.) (b) Even if it is correct that Mr. Walker was supplying services not generally undertaken by a solicitor, it does not follow that when doing so he was participating in TPPs offices, whether it should set up separate departments, and what sort of people it should recruit and how. DRW is in law a separate person from Mr. Walker, and the (rare) circumstances in which it may be possible for a court to lift the corporate veil, as explained in Prest v. Petrodel Resources Ltd [2013] 2 AC 415 do not appertain in this case: DRW may have been Mr. Walker (c) Mr. Walker denied that he had lent Slough Ultraclass 217. Nonetheless, having regard to the matters which have been pleaded (and established) by Mr. Parker or are common ground, to which I refer below, I do infer that Mr. Walker was party to the common design of TPP/the respective vendor companies to sell parcels of land to investors through a land banking scheme. 218. Those matters are as follows (in no particular order of importance): (1) The fact that no retainer letter between any TPP company and Mr. Walker has been located. As I have already observed, it seems probable that none ever existed. This tends to suggest that the position was that Mr.Walkerthought it was necessary for him to do to make the venture a success: he was certainly not engaged to carry out just the various conveyancing functions. The episode concerning the concealment of the purchase price for the North Marston site by interposing a transfer for no consideration, and then ensuring that the plan was carried through by rectification of the title at the Land Registry, is consistent with this notion. The steps taken to ensure that TPPFinancial Markets and Services Act 2000 are another example. (2) The fact that Mr. Walker was involved in the acquisition of each of the sites. It was Mr. Walker, therefore, and only Mr. Walker, who investigated (and presumably vouched for) the title to each site and (more significantly) carried out and reported on the conveyancing searches, which would inevitably have contained up to date information on the planning history and position of each site. (3) The fact that Mr. Walker was instrumental (as described in (1)) in ensuring that the price paid by the TPP companies for the sites was not visible to the purchasers of sub-plots. It seems undeniable that the motivation for the concealment was to ensure that the individuals who were interested in becoming purchasers of plots were not dissuaded from investing by the discovery of how comparatively cheap was the price recently paid for the whole of the site. (4) The fact that Mr. Walker was involved in the plotting of each site, with a view to sub-sales to investors. The very assets sold, it might be said, were designed by Mr. Walker. Importantly, the more plots that were created and sold on each site, the more Mr. Walker stood to benefit in fees from sub-sales. (5) The fact that Mr. Walker was involved in the preparation of, and/or approved the terms of, the generic brochure on more than one occasion. The brochure was the key document sent out to investors to induce them to get involved in land banking, and as I have found it contained several serious misrepresentations. (6) The fact that Mr. Walker was instrumental in ensuring that the schemes did not fall within the purview of regulation under the 2000 Act. This concern suggests a sensitivity that the authorities, if they had jurisdiction to do so, would close down the schemes in the public interest. (7) The fact that Mr. Walker was familiar with the way in which sales were arranged, viz. through telephone conversations with telesales agents, who were remunerated, at least in part, through commission calculated on sales achieved. It is obvious that agents employed on a commission basis (even if only in part) to achieve sales over the telephone, have a strong incentive to say whatever they consider needs to be said in order to achieve a sale. (8) The fact that Mr. Walker did not explain at the outset of the King (9) The fact that, despite the Law Society (10) The fact that Mr. Walker agreed to and did carry out the conveyancing services which had been offered by TPP to purchasers. Mr. Walker estimates that he acted on sub-sales of about 1326 plots by Ultraclass companies. (11) The fact that Mr. Walker received substantial fees for the work he carried out for the TPP companies. Those fees related to work Mr. Walker did at all the stages of the transactions which I have mentioned, but importantly included fees for the provision of the conveyancing services to each of the purchasers of plots (initially at least at the rate of ntial sums by way of fees coming Mr. Walkerthe process. (12) The fact that the Walkersue to be engaged in this way (13) Finally, there are the unexplained substantial payments from the likes of European Fine Wines. Whilst it has not been possible to discover the purpose of those transfers, they did occur, they were substantial, and they would have emanated from one or other (or both) of the protagonists at TPP, viz. Mr. Assemakis and Mr. Evans. For as long as Mr. Walker was instrumental in the success of the TPP schemes, he could expect to continue to be favoured in this way by Messrs. Assemakis and Evans. 219. Viewed in isolation several of these points would not justify the inference that Mr. Walker was party to the common design pleaded. Viewed alongside others, however, they take on a different complexion and in my judgment compel the conclusion that he was party to that design. The fact and nature of Mr. Walker 220. I test the matter in this way. Mr. Walker is a clever man and a very experienced conveyancer. There were a number of occasions in the various schemes when Mr. Walker 221. But there is no evidence that Mr. Walker did any of these things. Why is that? It seems to me that there can really only be one answer: like TPP, he was eager to ensure the success of each scheme because he and DRW would be likely to benefit substantially from such success in the ways I have described. It was certainly not in Mr. Walker 222. In the light of the authorities to which I have referred, it follows from my conclusions (a) that Mr. Walker was party to the common design, and (b) that torts were committed against Mr. Parker during the execution of the design, that Mr. Walker is a joint tortfeasor with the TPP companies. The third way in which Mr. Parker puts his case therefore succeeds. Issue 5: What recoverable losses has Mr. Parker suffered? 223. Mr. Parker 224. As regards the second set of payments made by Mr. Walker in respect of (false) promises that a buyer or buyers had been found for his plots, viz. the payments totaling 225. Mr. Parker does seek to recover the first set of payments totaling 226. In my judgment, those losses are not recoverable from Mr. Walker. The common design which Mr. Walker took part in was a common design to sell plots of land to investors. The Issue 6: Was Mr. Parker guilty of contributory negligence? 227. Mr. Walker asserts that any losses Mr. Parker suffered were caused or contributed to by his own negligence. He particularizes this assertion in essentially three ways, viz.: (1) that Mr. Parker spent very substantial sums in land banking schemes without first obtaining any professional advice about the merits or otherwise of the schemes, the risks associated with such schemes or the value of any of the plots of land he was purchasing; (2) that Mr. Parker decided not to instruct solicitors of his own, notwithstanding Mr. Walker repeatedly informing Mr. Parker that he acted for the vendors, that Mr. Parker was entitled to seek independent legal advice, and that if Mr. Parker had any queries he should consult his own solicitors; (3) that Mr. Parker paid almost 228. The third point is not material, since I have held that Mr. Parker 229. In the Gran Gelato case (loc cit), the Vice-Chancellor held that the defence of contributory negligence is available as a defence to a claim for damages under the Misrepresentation Act as well as to a claim for damages for negligent misstatement (at pp. 573-4). He went on to hold, however: representation, [the representor] intended should happen, viz. that [the representee] should rely on the representation. And he found that that case was not a special case. 230. In my judgment, this case also is not the sort of special case which the Vice-Chancellor was contemplating. TPP intended Mr. Parker to rely on the representations on which he did rely and it was reasonable for him to have done so. 231. TPP expressly discouraged Mr. Parker from instructing his own solicitor, because it said it offered a free legal service 232. Whilst TPP did not discourage Mr. Parker from taking other professional advice, it nowhere suggested that Mr. Parker might do so, and in reality that was one of the last things TPP wanted any potential purchaser to do. 4. Conclusion 233. I therefore find that Mr. Walker is liable to pay damages to Mr. Parker in the principal amount of 234. Finally, I record my gratitude to all three counsel for the efficient way in which the trial was conducted and the considerable assistance they gave me throughout.