England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)

		Royal Courts of Justice Strand London, WC2
		9th November 2005

Wednesday, 9th November 2005

1. LORD JUSTICE WARD: The appellant is a lap dancer. I would not, of course, begin to know exactly what that involves. One can guess at it, but could not faithfully describe it. The Judge tantalisingly tells us, at paragraph 21 of his judgment, that the purpose is "to tease but not to satisfy".
2. By about the end of 2002, or early in 2003, the appellant seems to have begun to tease the respondent. He, being a rich businessman, sought, no doubt, to enliven his lonely evenings in London by seeking entertainment at the Spearmint Rhino club in Tottenham Court Road where the appellant was then employed. Having been tempted, he managed to obtain her telephone number and invited her to dinner. It was not exactly the traditional boy meets girl, "Let's have dinner, darling" kind of invitation. It was an invitation which she accepted, but entirely on the basis that she would be there as his escort and, as his escort, she would provide the services of companionship and amusement, but for a consideration. That consideration would amount, according to the judgment, to perhaps about £700 or £800 a night for the pleasure of her company at dinner. But the arrangement was made on a number of occasions and, as they went on, the relationship changed and at some time early in 2003 it is common ground that the services included sexual services, for which even more money was paid as a consideration. Whether or not rule 2 of the Spearmint Rhino club had been breached, requiring that you could get no satisfaction, we do not know and fortunately do not have to decide.
3. As the Judge indicated at paragraph 4:

"There is a dispute between them as to how much was paid for services. On Mr Sutton's account it was a sum well in excess of £100,000. On Miss Hutchinson's side it was a sum which did not fall much below £100,000. This case is not about how much was paid for services. This case is about whether any money at all was paid by way of loan.

5. His case is that he loaned her various sums of money, on the amended case amounting to some £74,327, but he is content to limit his claim to the sum originally pleaded of £73,000."

4. Her case, in a nutshell, was essentially this: that insofar as cheques can be traceable into her account, these were payment for her escort services of the compendious kind I have described. Insofar as it was alleged that she was paid in cash, she effectively denied the receipt of the money. Thus it was that in May 2004 Mr Sutton began proceedings in the Central London County Court for recovery of £73,000. HHJ Harris entered judgment in his favour on 28th January 2005, after a trial that lasted about four days.
5. One may ask, how on earth does a case like this see the light of day? By March 2003 the respondent was paying the appellant enough money for her to be able to cease work at the Spearmint Rhino club. They must have seen a good deal of each other during the months that followed. The relationship they had, of whatever kind it may have been, began to break down towards the end of the year. She went back to work in December 2003. Matters got worse in the New Year. He became angry and, I suppose, the flavour of the case is captured in a few passages of his cross-examination which I pick up at page 225 of the bundle. Mr Noble, counsel who appears for the appellant here, as he did below, put this question:

"Q. The anger was because you felt, as you quite rightly pointed out, Miss Hutchinson had made a fool of you.

A. Yes.

Q. She had been pretending. There you are -- 'Handsome, kind Mr Sutton, I am having a relationship with you because you are so lovely.' But in reality the only reason why she was having a relationship with you, as you now realise, is nothing to do with your good looks and humour, is it? It is because you have got loads of money.

A. Exactly.

Q. You were very angry about that.

A. I was angry when I found out that Miss Hutchinson had a boyfriend. I was angry because Miss Hutchinson has pretended to have a relationship, had told me on countless occasions that she actually loved me. Yes, I was angry. I reacted badly and I sent a number of text messages and letters through her door in relation to trying to get my loans back.

Q. I suggest that is a lie.

A. You suggesting things does not make things incorrect or a lie."

6. Those text messages and communications became sufficiently threatening, the appellant felt, for her to complain eventually to the police that she was being harassed by Mr Sutton. He, realising that this affair, if one may call it that, was over, had consulted solicitors and, perhaps unusually, had given evidence about the advice he had received. The evidence from the solicitor was, as he explained to the Judge on page 227:

"'All I would say to you' -- and these were his words -- 'is to forget about it.' I sent the e-mail to Kay Hutchinson and I was prepared to forget about it, I was prepared to say I was an idiot and that was it, leave it at that and just cut my losses and walk away. However, when you get a call from a policeman, I think it was a day or two days later, informing you that you have to appear at a police station and have a statement read out to you about harassing a witness, and somebody saying, 'No, she never had sex with you', 'no, there was no relationship', 'I am frightened out of my wits', I said, no way was I letting this go."

7. No doubt in that frame of mind, the statement to the police officer from Miss Hutchinson being in the bundle dated 19th March 2004, he began the proceedings shortly thereafter. Incidentally, one should not pass from referring to that statement, made in the usual way, acknowledging that if it was tendered in evidence, she would be liable to prosecution if she wilfully stated in it anything she knew to be false or did not believe to be true. Towards the end of that statement, she says this:

"He clearly cannot accept that I do not wish to have any further contact with him, coupled with the fact we were never involved in an intimate relationship."

8. On the face of it, that would appear to be a lie. The general ground of the appeal was:

"The learned Judge failed to give a reasoned judgment on the defence and/or deal adequately or at all with the grounds raised by the defence, the judgment was not supported by the evidence and was perverse",

9. In his oral submissions before us this morning, Mr Noble advanced, essentially, two arguments to challenge the Judge's conclusions. He submitted that detailed examination of the numerous accounts and numerous schedules of money moving here and moving there would reveal two fundamental flaws in the claimant's case. The first can be summarised in this way, that an analysis of his income and expenditure over the 15 month period of this association would demonstrate that there was no surplus available from which to advance £73,000 by way of loan to her. Having regard to the income which he said was received entirely from his company, Shardow Ltd, the amount alleged to have been paid in consideration of her escort services, coupled with the inevitable expense of living in hotels in an expensive part of London and the other gifts lavished upon this lady, would have revealed that he could not possibly have paid her anything more.
10. The second essential submission was that he must have been lying when he explained that he drew monies in cash from his accounts and paid them over to the appellant because the analysis of the accounts reveal that if he drew cash from the company he paid the identical, or nearly identical, sum of money back into the joint account he operated with his wife, from which it was almost immediately transferred back again into the company, so the money went round in a circle and there was nothing left, by way of cash, with which to support the allegation that he had lent those cash monies to her.
11. To deal with the first point, Mr Noble has the difficulty that this point, which I hope, from my summary of it, is a simple point, was never put to the witness, Mr Sutton, throughout the two days of his cross-examination, nor was it put to the Judge. It is a point, the devastating effect of which seems to have occurred later. It would be a little unfair, perhaps, therefore, to hold it against either the witness, who was roundly challenged as being both a liar and the forger of documents, to find against him in those circumstances.
12. So far as the Judge is concerned, the point did not occur to him as being as plain as I have tried to annunciate it. It is plain, both from his judgment and his interventions during the course of cross-examination. To mention but a few, I notice, for example, at page 112 of our bundle that the Judge, in the midst of cross-examination about movements of money from the account, says, "I am sorry, I am a little lost here." At page 118, he is saying, "I am not quite following this." If we turn to page 158, we find the Judge asking:

"Am I deducing anything from this?

MR NOBLE: You have paid out substantially more than you have taken in in that account. I have not actually added up the total amount paid out."

13. So the point appears to have been ill-formulated at that stage. As the cross-examination continued, there are these passages at page 164, when figures were being put to the Judge.

"JUDGE HARRIS: I am quite surprised at those figures.

MR NOBLE: Your Honour, I had better add them up again.

JUDGE HARRIS: 13,000 goes in. In addition to that, there is a drop in the balance from 42212, which means that more than 15,000 or so must have gone out.

MR NOBLE: I will add them up tonight.

JUDGE HARRIS: It looks as though your addition is not as it might be."

14. I cannot pretend to have read every word of two days of the transcript with a fine-tooth comb, but nowhere in the cross-examination as followed, and the passages I have read came at the end of the first day, nowhere in the second day does Mr Noble appear to have added up these figures and concisely put the precise point to the witness, or indeed to the Judge.
15. The second point can be exemplified by these passages perhaps quite lengthy passages, from the cross-examination at page 117. This, I think, is one occasion, but there were others, when Mr Noble was cross-examining about the roundabout transfer of money. He says:

"Q. Let us just make this plain. I am saying that you are lying, that you are dishonest, that what you are saying is a pack of lies.

A. I am saying you are incorrect.

Q. How do you explain that at precisely the time you take money out of Peterborough, 8,000 on 6th January, there is a corresponding credit at the same branch, paid in at the same branch and probably at the same time? No doubt you did not actually go into that bank twice on that day. Simultaneous payment into your own account. How is that a payment to Miss Hutchinson?

A. Because I took the money out of the Shardow account and I transferred the money from my NatWest account back to Shardow Limited. In the meantime Miss Hutchinson was given the cash.

Q. You are saying when you took £7,000 out of the bank, you had 6,000 in your back pocket which you immediately paid into the bank?

A. I always had cash on me, yes.

Q. Why did you not explain that in your statement?

A. I did explain that in my statement.

Q. No; what you explained is that you took the cash out of the bank and paid it to Miss Hutchinson. You did not say there was a system of double book-keeping whereby every time you paid a cash sum to Miss Hutchinson, you took an identical cash sum out of your pocket and lodged it in ----

A. I said in my statement that I made withdrawals from the Shardow credit card and I reimbursed Shardow Limited. There is a schedule of payments and repayments in relation to it.

Q. But you do not say that you make the repayment at precisely the same time ----

A. It was not always precisely the same time.

Q. We will see."

16. Then the Judge interrupts, as I have already indicated:

JUDGE HARRIS: I am not quite following this. You will have to forgive me. Let me take the first transaction on 8th January. You take £7,000 out of the Shardow account.

A. Yes.

Q. On the following day you are putting £6,000 into a joint account.

A. Yes.

Q. But you are saying that the money that you took out of Shardow, you gave to the defendant?

A. Yes.

Q. And the money that you put into the joint account was other money that you happened to have.

A. I could not take the money out of the joint account because I was afraid my wife would see exactly where the money was going. So I used Shardow to basically hide the payments but refunded Shardow any monies that I withdrew.

Q. If you had £6,000 in your pocket anyhow, so that you could put the money into the joint account, why did you not give that money to the defendant?

A. Because I was giving monies to the defendant in relation to her services. I was paying things for her and, to be quite honest with you, I was losing track as regards to what was going out in relation to everything. I wanted a system whereby I would formally record the actual loans to the defendant, so I used Shardow as a sort of ledger to actually do that.

Q. It was quite unnecessary to use any of these accounts ----

A. Yes.

Q. ---- because you are saying that you had the money in cash in your pocket anyhow in order to put them into the joint account.

A. Yes, but I was giving so much money over to Kay that I needed some mechanism for actually recording it, so I used Shardow as that mechanism.

Q. So that is ----

A. It also, I hid things from my wife then.

Q. Sorry?

A. It also hid any payments from my wife because she ultimately saw lodgements basically going into the joint account and then transfers going from the joint account to Shardow."

17. That passage is an indication, as I read it, that there was, quite regularly, money in his back pocket. Where it came from is perhaps not entirely clear. It is plain from the transcript in several passages that although the witness was saying he had cash monies, he was also, quite clearly, indicating that the sole source of his money was his company, Shardow, and, as I say, he made that quite plain on a number of occasions. For example, our attention was drawn to page 162. An answer given was this: "There is no other source of earnings."
18. How, then, did the Judge deal with that? He decided in paragraph 54 of his judgment, this:

"The second criticism" -- that is to say criticism by Mr Noble -- "is that the payments which are alleged to have been made by way of service, the cash payments, could not have come from his accounts and it is true that in some of the pleaded documents he attributes the source of these payments rather more directly than he now says is the case. He had, I am quite satisfied, very significant amounts of cash floating around in one shape or another. In the year that we are talking about the receipts from his business, which are essentially his earnings before taking off expenditures, amounted to 420,672.43 Euros. That is a not inconsiderable sum of money. He clearly had cash available at various points and stages throughout this time and I am bound to say that I am not at all surprised that he was able to find cash to make the payments that he says that he made."

19. The criticism of that passage is that the Judge, as Mr Noble says, simply dreamed that up. As I have understood the evidence, there was a great deal of uncertainty about precisely what the witness was saying and it is quite clear that at times he had money in his pocket, surplus to that which he was drawing from the company. I will turn to this in a moment.
20. As to the second point urged upon us this morning, the Judge's view of that in paragraph 55 is this:

"The final criticism is that there is some very odd double accounting transactions and I agree, there are. Money comes out of one account, goes into another account and yet at the same time he is asserting that he is able to pay that money to Miss Hutchinson. His explanation for that was that he needed to do that in order to be able to identify the loans that he was making. Bizarre, I accept, but I regret to say that there is an aspect of this case that I think I can only reasonably categorise as somewhat murky, murky on the side of both parties.

56. When it comes to this issue, this is not sufficient to persuade me that the documents to which I have referred are false, that the documents do not fairly reflect the loans that he was making and are not sufficient to persuade me that I ought to start looking at the individual loans and removing some of them rather than others. I accept his evidence, I reject the evidence of Miss Hutchinson and therefore I give judgment for the sum that he claims."

21. In the light of that conclusion, which we must examine in a little more detail, it seems to me to be quite hopeless to submit that this is a perverse judgment, that it is a judgment which no reasonable judge, having heard the case, could possibly have arrived at. It is far from that. Even if the points urged upon the Judge, or urged upon us, are taken at their highest, they are but two factors in a complicated case, well justifying a description of murkiness.
22. The other matters in the case which bear hugely upon the credibility of these witnesses, both of whom emerge from this case hardly smelling of roses, each of whom the Judge properly treats as meriting a great deal of caution before he could arrive at a conclusion, one factor in a system would be the documents. There were a number of written documents that could throw some light on what was happening between them. For example, documents, the genuineness of which were not in dispute, included a number of acknowledgments written by Mr Sutton that he had made a number of payments both in cash and by cheque and credit transfer to him, was saying they were gifts paid of his own volition and in appreciation of her friendship. There are no other reasons for these gifts. In not dissimilar terms, there are typed documents, the objective of which was to explain the nature of the gifts that had been made, whether or not this might have been used for the purpose of presenting to the Inland Revenue, lest it be suggested that the sum of money, and I remind myself, it was in excess of £100,000, was a form of income on which tax would be paid, I do not quite know, but in those documents Mr Sutton was acknowledging that he "decided at frequent intervals to bestow certain gifts on Miss Hutchinson, usually jewellery, holidays, or money." In another document, almost identical, the gifts were said to be a Honda CBR, which I think is a motorcycle, and an Audi TT motor car. There were other documents in which he was referring to loans, and they are documents which were the subject of challenge.
23. The Judge said this in paragraph 25:

"What is Miss Hutchinson's reaction to these documents? She does not seek to argue that the use of the word 'loan' is a euphemism for services in the same way as the word 'gift' was a euphemism for services. I have not investigated these documents in depth to see whether that would have been an approach to the documents. She does not do that. What she says is that these documents are a complete fabrication."

24. That passage is useful insofar as it deals with an observation made by Longmore LJ when giving permission to appeal. He had granted permission, explaining in his reasons that:

"The appeal is arguable even though the appellant has an uphill battle to reverse the judge on the facts. The court may need assistance on the question whether, even if the judge was right to hold that the relevant sums were monies lent to the appellant, recovery may be precluded since the loans were made for a sexual consideration or in the context of a sexual relationship."

25. Mr Noble referred to that and sought to rely upon it insofar as he could. I think he had to concede, and it certainly appears to me to be the case, that if these were loans, distinct from the other payments for the immoral services he received, then the consideration for the loans was the promise to repay them, not the promise to perform sexual acts for remuneration.
26. Secondly, and with respect to my Lord, I am not sure that the mere payment of a true loan paid at a time when other monies were passing hands as payment to the prostitute that that background renders the loans invalid. In this case there is no pleading in which the claimant has to rely on the immorality or the illegality to support his claim. His claim is straight forward: these were monies lent and the issue was joined on that basis. I see no prospect of success for the contention that the loans were so tainted with illegality that the court ought to refuse judgment on that basis. The real issue was, as the defendant said, that these documents are a complete fabrication. What were these documents? One was a receipt. It is written on the note paper of the Metropolitan Hotel in Old Park Lane in London at page 78 and it says:

"Received from Ms Kay Hutchinson £2,500 stg as part payment against loans advanced."

27. He signs it on 9th September 2003 and below his signature is another signature, acknowledged to be a signature of the appellant, but nonetheless a forged document, as I shall explain. To like effect, a document dated 5th November in which Mr Sutton acknowledged receipt of £8,500 cash from Miss Kay Hutchinson as part payment of loan amounts outstanding, signed again by him, with a signature, again acknowledged to be a correct likeness of her signature, though it is different from that on the first receipt. Then there is a document which is undated. It reads:

"I the undersigned paid Ms Kay Hutchinson amounts of money for her time and companionship. In addition I have recently loaned her some money to support her purchase/refurbishment of an apartment at Long Lane in London.

If a tax liability becomes due on any of these monies, I the undersigned agree to reimburse Ms Hutchinson an as yet to be agreed amount, in a mutually acceptable manner for any financial loss suffered."

28. Curiously, there is another photocopy of that document on which her signature does not appear. Her case was not that the signatures, and this one is again different from the other two, do not look like hers, but they were not placed by her on any appropriate piece of paper. Indeed, she denies, as I understand it, that these documents are true documents altogether. The difficulty with that argument was that there was, as the Judge observed, absolutely no forensic evidence to suggest how this forgery could have been perpetrated. It was simple, says Mr Noble, you just put a signature onto a photocopy and photocopy the resultant compilation, but the Judge rejected that in paragraph 32 of his judgment. He says:

"Three of these documents bear signatures from Miss Hutchinson. She accepts that they are hers in the sense that she would have written a signature like those. She says that he had access to documents which contained her signature and by some clever device or other could have transferred them to these three documents. It is obvious looking at the signatures that they are different signatures. I suppose if you are being clever you would want to have them different but not too different. I have received no evidence from any quarter, but certainly not from the defendant's quarter, to help me forensically as to how feasible it would have been to create, falsify if you like, documents of this kind.

33. Another feature of importance is that the only receipts that are in the documentation are receipts for repayments of the loan. Once again, I think it fair to say that that is devilishly clever. It is not beyond the bounds of what a clever forger might want to do, but it is quite clever. It means, for example, that instead of being able to claim £83,000 or £84,000 he was instantly knocking £10,000 off his claim to bring it down to £73,000. I have to balance these factors as best I can."

29. His conclusion at the end of that balance, in paragraph 37, was that the documents were genuine.

"I do not believe that Mr Sutton could not conceivably have had the ingenuity and the subtlety to create documents of this kind. It is beyond my comprehension that he would do so. I must decide this case on a balance of probabilities and on the balance of probabilities these documents are genuine. It follows that Miss Hutchinson has deliberately and falsely said that they are not genuine. It also helps me in deciding who has been telling the truth."

30. The Judge dealt with the difficulty about the documents at C23 and C23A, namely to those where her signature appears on one version but his does not appear on the other. He again dismissed that point on the basis, essentially:

"... that if Mr Sutton is the amazingly subtle and clever forger that he would have to have been in order to create these documents, it was the most appalling mistake for him to provide his solicitors with two versions of this document for onward submission to the defendant." (See paragraph 34.)

31. Another crucial document was an e-mail sent, apparently, by Mr Sutton to the defendant on 22nd November, being the date on that e-mail. This was subject to an enormous amount of challenge as to how that document came to be produced. There are pages of cross-examination about it. Once again, there was no forensic evidence to support the essential challenge to its veracity, the challenge being that the message on the document was completely fabricated. There was some expert in court. No permission had been obtained to produce expert evidence. Mr Noble acknowledged his difficulty in the teeth of objection from the claimant's counsel, appearing before him in the court below, where Mr Sutton appears in person today. So the Judge had no great help on that. The important point is this. The message reads to this effect:

"I don't know why you are going off on one but as you won't take my calls I'll try writing to you. I left the note at the Sanderson because that is all you talk about these days, 'My money', what about mine. If offsetting the 10k you gave me against the money you owe me is a problem well then ok, I'm sorry, I'll give it back to you this week.

Whatever you do about the car is going to be a problem, you said at the time parking was not going to be an issue. If you sell it you are still going to have to lodge the chq somewhere, then it will be liable to tax. Why don't you want to give it back to me? We can agree a price (opportunity for negotiating top!) I'll still give you the 10k back separately. Why don't we sort out 10k, agree price for BMW and go from there. That will square everything except loans, but I don't need this money right away.

Let me know what you think. Please call."

32. In addition to the technical implausibilities alleged to have created that message, there was a challenge as to the factual matrix of the message and the reference to leaving a note at the Sanderson. That note is accepted to be a genuine one, though it is undated and the date of it was the subject of challenge. That note reads to this effect, written by Mr Sutton, at page 65:

"K,

If you are reading this then I can only say I am both saddened and disappointed as I will only have left it as you have not contacted me.

There were ways out of our situation, you have chosen to ignore them and to focus on getting your money back.

I honestly don't know how you feel about me in light of this, but I am not leaving you the money. My reason is quite simple, if you had thought anything of me you would have given up on this. Indeed you know there were numerous options but I can't condone the one you have chosen.

I don't expect to hear from you again. I do love you and would do almost anything for you. I wish you well."

33. Miss Hutchinson's case was that in about December that letter was sent to her, though it was in an envelope bearing the date, I think 5th December. The dispute was whether the envelope contained that document or a brochure of some property Mr Sutton was going to buy for her. Her case was that she had e-mailed him on that day (page 64), explaining:

"I wrote a chq last week for the bungalow which I told you about last weekend etc. etc. I don't have a problem living off my savings at all but the reason I got upset this morning was because I knew I couldn't afford 7k right now from what I've got to go for the bungalow, so basically when you said you wouldn't give me the money I knew I'd have to pull out of the deal. I have some money to live on but thought when you said you wouldn't mind giving me it on Monday I could still go for it.

Sorry to annoy you, everything I do annoys you at the moment."

34. She was saying that he had given her cheques for some £15,000 or £16,000 and had countermanded payment. That was the money that she was asking for. His case was that she had come back from Hull in November with £10,000 in cash. She had given him £10,000 to keep in the hotel safe, and that money he withheld from her. Looking at his e-mail, "I left the note at the Sanderson" seems to me to refer only to the note which I have read in which he was saying, "You have chosen to ignore them and to focus on getting your money back." To what does "getting your money back" refer? The Judge found, and I am inclined to agree with him, that that more naturally referred to getting the £10,000 back rather than in some way getting back money she never had because she never got it because he stopped the payment of it. So it seems to me the Judge's construction is the more probable one. His assertion, "I am not leaving you the money", is an assertion, as he said in the e-mail, "I am not letting you off the loans I have made." The e-mail refers to "offsetting the 10k you gave me against the money you owe me." Once again, I agree with the Judge's analysis of this. That would be the most extraordinary document to concoct with a tale of £10,000, wholly fictitious, with a note at the Sanderson which relates to a document actually delivered a month later.
35. All in all, it points to the conclusion that the Judge arrived at, that the documents were supportive of Mr Sutton's case. It did not end there. The Judge thought that she had lied to him about her bungalow in Hull. That is an adverse finding of fact against her. He thought that she was lying about her own e-mail in which, in asking for money, she attempted to suggest she was asking for money for payment of services and not asking for a further loan which the Judge felt, in paragraph 39, was the explanation which made the most sense.
36. The Judge, moreover, had evidence from a Miss Banks who, in the context of this case, has the most unfortunate nickname of Lolly. She, too, works at the Spearmint Rhino club, and so knew both of these parties. She gave evidence to the Judge that on two occasions during the year, in conversation with Miss Hutchinson, Miss Hutchinson acknowledged that she was obtaining loans from Mr Sutton. The Judge believed her and that supported his finding.
37. The Judge therefore had, it seems to me, ample evidence from which to reach the conclusion I have read from paragraph 56 of his judgment, that the documents were supportive of Mr Sutton's case. They were, in my view, overwhelmingly supportive of his case and they were more than sufficient to outweigh any challenges about the murky payments of the monies in and out of accounts designed to act as some kind of ledger for the financial transactions between these parties but, at the same time, provide some kind of cover, obscure though it may be, for his conducting the shenanigans with her, as a married man which his wife would not like to know about.
38. In conclusion, therefore, I am not at all persuaded that this was a perverse judgment. Indeed, it seems to me more likely than not that this money was indeed lent and therefore I would dismiss this appeal.
39. LORD JUSTICE KEENE: I agree.
40. LORD JUSTICE GAGE: I also agree.
41. LORD JUSTICE WARD: So the appeal is dismissed.