England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		28 July 2000

1. In this action the claimant, Pratima Amin, claims against the defendant, Norwich Union Life & Pensions Limited, an account to calculate commission payable by the defendant in respect of policies effected through her as an independent or tied agent, and a declaration that she was entitled to commission on all material policies extant as at 3 January 1997. The history of the relationship between the claimant and the defendant is bedevilled by a variety of issues of fact which it is my task to resolve, and which goes back to the early 1980's.
2. In the early 1980's the claimant and her then husband, Mukundroy Chandubhai Amin ("Roy") were both in employment, the claimant with Barclays Bank in the accounts section, and Roy with Taylor Woodrow (on secondment to Lambeth Borough Council) as a civil engineer. During the course of his employment Roy developed contacts and skills which put him in demand as an introducer of business to banks from developers and others who wished to raise finance. The nature of the facilities which he thus helped to arrange frequently required the issue of life policies. The claimant stopped working for Barclays in 1981 about two years after the birth of the first child of the marriage (a son called Jairaj). From about 1981 onwards Roy and the claimant developed an insurance agency business. In practice, as between the two of them, Roy was the introducer of the business, and the claimant conducted the back-office function of obtaining quotations and processing them and of general administration. In the days prior to the implementation of the Finance Act 1986, such a business was, for practical purposes, not subject to any form of statutory regulation. It appears, however, that for tax reasons it was or became convenient to account for the profits of the business as profits made by the claimant as a sole trader. By the time regulations made under the Financial Services Act 1986 came to be implemented (in April 1988), both the claimant and Roy were self-employed. For the insurance agency business to continue it was necessary that one of them should be registered with FIMBRA. The claimant became so registered in July 1988. One of the life offices with whom the insurance agency had done business was the defendant. By late 1988 the defendant had decided to do more of its business through tied agents rather than through independent financial intermediaries registered with FIMBRA. By this time Roy (in the name of the agency "Jairaj Insurance Services") had been introducing substantially increased levels of business to the defendant, and the defendant was keen that the agency should become a tied one. The proposal was put to Roy, who subject to certain reservations, was also keen. Roy had ambitious business plans which at that time included the acquisition and redevelopment of office premises at 203 Station Road, Harrow (203 Station Road). He was planning to acquire and redevelop these premises with the assistance of development finance from Barclays Bank plc, with which he then had a flourishing business relationship. His plan was that after the development had been completed, and the premises occupied by, amongst others, the insurance agency, the defendant would be invited to take out the Barclays loan, with a period of two years grace during which interest would be rolled up. Negotiations and discussions about this proposed arrangement took place at the same time as the negotiations in relation to the tie, continued thereafter, and were never in fact concluded.
3. One of Roys' reservations about becoming a tied agent was that he did not wish to lose the advantages of the claimant being able to continue to act as an independent financial intermediary. He therefore proposed to the defendant that she should continue to trade as an independent financial intermediary ("IFA") (regulated by FIMBRA) under the existing name Jairaj Insurance Services, whereas he would become a tied agent of the defendant (regulated by LAUTRO) under the name 'Jairaj'. Given the possible confusions to which this might give rise, the defendant would not assent to this proposal. I interpose the fact that the existing business was being conducted from Roy and the claimant's domestic residence ("Jalviram"), which would therefore have been the address of both businesses. The possible confusions are obvious, and strikingly illustrated by the fact that in the very letter in which Roy sought to explain to the defendant the proposed relationship between the two businesses, and which was drafted for him by his solicitor Mr Freeman, the names were muddled up. The proposal was manifestly one which the defendant could not entertain. If Roy was to become a tied agent, the IFA business could not continue under the confusingly similar name and from the same premises even if nominally that business was not Roy's but the claimant's. It is the claimant's contention that the upshot was that the defendant agreed, in broad terms, that Roy would immediately sign up as a tied agent under the name Jairaj, that she would continue the business of Jairaj Insurance Services until the expiration of her current period of FIMBRA membership (which was expected to happen very shortly afterwards), and that thereafter she and Roy, trading as partners under the style 'JIS Jairaj' would be the defendant's "appointed representative", i.e. tied agent. "Appointed representative" is a term of art under Section 44 Financial Services Act 1986. What is common ground is that Roy did sign up, in March or April 1989, to be the defendant's appointed representative. The claimant ceased to be a member of FIMBRA in about July 1989. Thereafter the only new business conducted by Roy, or by Roy and the claimant, from Jalviram was that of the Norwich Union's tied agency business. The business was known variously as either Jairaj, Jairaj Insurance Services, or JIS Jairaj. The latter was the description used by the business on its notepaper, and that notepaper at all material times from at least December 1990 to the final severing of the relationship with the defendant described Roy as the proprietor of the business. Earlier notepaper of the business failed to indicate the proprietorship of the business.
4. At various points of time during the subsistence of the tied agency, the fact that Roy and the claimant regarded themselves as partners in the (now tied) agency business was brought to the attention of the defendant. That fact also was reported to the defendant by KPMG, who had been retained by the defendant to report on all their tied agents, by a letter dated 28 February 1991. Later in 1991, apparently as a result of problems which the defendant itself was experiencing from a regulatory point of view, Roy in common with other tied agents was invited formally to re-apply for tied agency status, and in doing so he made it clear that he and the claimant were partners. In response to that application (dated 20 June 1991) the defendant issued a letter dated 31 October 1991 addressed to "The Partners Jairaj" confirming that from 20 June 1991 Roy and the claimant trading as "Jairaj" would be the defendant's appointed representative ("the October 1991 letter"). Again in 1992 and 1993 when the defendant wanted the claimant and Roy (and all its other tied agents) to agree to fresh standard terms, the drafts prepared showed an appointment of both of them trading in partnership as the appointed representative i.e. the tied agency, and as replacing an existing appointment dated 20 June 1991.
5. During 1993 and the early part of 1994 Roy pursued a claim for compensation against the defendant in respect of losses allegedly suffered by the agency business as a result of the defendant's maladministration of policies. The defendant eventually agreed to settle the claim for some £117,000.
6. In August 1994 the defendant decided to determine the agency. It took the same course during this period with most of its tied agents. In the case of JIS Jairaj, it effected the termination by a letter dated 5 August 1994 which sought to terminate the agency with effect from 8 November 1994. The letter was addressed to "Mr R Amin, Jairaj Insurance Services" and purported to be in accordance with Clause 4.1 of the Agency Agreement. In due course a "termination audit" took place as required by LAUTRO rules. Following the effective date of termination (eventually agreed as 8 December 1994) the business ceased to sell policies for the defendant. Whether by accident or design, however, the defendant continued to pay renewal commissions on existing policies into the JIS Jairaj bank account.
7. The termination of the agency added to the considerable financial turbulence into which the affairs of Roy and the claimant had by this time run. From the autumn of 1991 Roy had been in dispute with Barclays Bank over the redevelopment finance for 203 Station Road. By early 1992 the amount outstanding to the Bank was over £3m and the building had not been completed. The contractor employed under the design and build contract to do the redevelopment had run into financial difficulties. Roy believed that the root of the problem lay in a deception which had been practised on him by the Bank in relation to the selection of the contractor at the outset. By 1994 he had become enmeshed in litigation with the Bank in which the latter was suing on the loan, and he had a substantial counterclaim. The litigation was stressful and financially debilitating. So far as the claimant and Roy were concerned, the strain told not only on the family finances but on their relationship as a married couple. Roy's heavy drinking developed into full-blown alcoholism.
8. Against that background, and during a period when in Roy's own words to me his behaviour was becoming increasingly erratic, Roy determined following the termination of the tied agency to sue the defendant. The claimant's case is that Roy asked her to join him in such an action but that she declined to do so being content simply to continue to receive the continuing stream of renewal commissions which the erstwhile business continued to produce.
9. Roy's claim against the defendant was conducted on his behalf by a variety of solicitors and advisors, and stretched over a period from late 1994 until 3 January 1997 when it was settled by a Tomlin Order. The proceedings which were thereby compromised were proceedings by Roy "(trading as JAIRAJ INSURANCE SERVICES)" and in which he based his claim essentially on breach of duties by the defendant of terms, written and oral, alleged to have been agreed between himself and the defendant in 1988 and 1989 or established in the course of trading in 1992, 1993 and 1994. It is clear from the negotiations which led to the eventual compromise under which the defendant agreed to pay him £650,000 that in the latter's mind that figure represented or at least included a compounding of all future renewal commissions to which Jairaj Insurance Services might otherwise have had a claim.
10. Following the compromise of Roy's claim and the payment pursuant thereto of the £650,000, the defendant ceased to pay the renewal commissions which it had until then been continuing to pay into the Jairaj Insurance Services bank account (the last payment of commission appears to have been made in the second week of January 1997). The claimant contends that she is not bound by the settlement into which Roy entered. That is the central issue in this case.
11. The period culminating in the settlement of Roy's claim against the defendant also saw the commencement of his negotiations with the claimant for a divorce. In the autumn of 1996 Roy asked his solicitor Mr Busby of Thomas Eggar Verrall Bowles ("Thomas Eggar"), whether his firm would be prepared to act for the claimant in the divorce, with Roy acting in person. With some hesitation the firm agreed so to act, and did so at least until April 1997, through its matrimonial partner Patricia Woolgar. Mr Busby, however, continued to act for Roy in the finalisation of the settlement of his claim against the defendant, and in assisting him in proposals which, by the end of January 1997, he was putting in train for an individual voluntary arrangement. Thomas Eggar were influenced in their decision to perform this delicate role by the information which they had that the financial terms of the divorce settlement (and the divorce itself) were not the subject of controversy between the parties.
12. It is clear that, at least by 3 February 1997, whether as a result of the proceedings for divorce or otherwise, the claimant was aware of the fact that Roy had received a sum of £650,000 from the defendant in settlement of his claim. She was also aware how the £650,000 had been applied by Roy. It had been paid over at Roy's direction to the New York bank account, of a company (registered in Uganda) called Kayunga Estates Limited ("Kayunga").
13. In early 1992 Kayunga had granted, or purported to grant, to Roy, the claimant, and Roy's brother Shailesh a 99 year lease dated 9 April 1992 of some 650 acres of agricultural land in Uganda. According to the lease it was granted for a premium of £3.875m, liability for which was divided as to £2.35m to Roy, £0.875m to the claimant and £0.45m to Shailesh. The premium was payable within 4 years of the date of the lease, and was thus due on or before 4 April 1996. By letter dated 23 January 1995 Roy's then solicitor Mr Timothy Eppel undertook to Mr Amratal Shah of Kayunga that the proceeds of Roy's claim against the defendant would be transferred to Kayunga as and when received. I interpose that at this date the litigation between Roy and Barclays was still very much alive. The trial of that litigation came on for hearing in June 1995 when issues of liability were settled to Roy's satisfaction with an award of indemnity costs in his favour. Later Roy was to find, in the course of taxation proceedings, that despite that award he remained exposed to substantial liabilities in respect of expenses incurred by him in the litigation.
14. The bona fides of the Kayunga lease was the subject of some controversy before me. That was hardly surprising given certain highly suspicious circumstances surrounding its grant. At the time of its grant Roy had liabilities to Barclays Bank of over £3m and was in dispute with the Bank. His only source of income was that produced by the tied agency with the defendant. There is no documentary evidence that Kayunga ever pressed either Roy the claimant or Shailesh for payment of the sums due from them. Moreover, according to expert evidence tendered before me as to Ugandan law and land values, the property was worth only some £250,000 in 1992, and the lease itself did not (for various reasons) confer a good title. Roy had relied entirely on Kayunga's lawyers (who were Kenyan and not Ugandan) in relation to the grant. Kayunga subsequently in 1997 proved in Roy's IVA for £1.875m. It emerged in evidence that the supervisor of the IVA (which would otherwise be now on the point of expiring) is currently in the process of challenging this proof. At a late stage of his evidence, Roy declined to answer further questions on the subject of the Kayunga lease on the ground that to do so might prejudice his position against the supervisor. Interpreting that as an invocation of the privilege against self-incrimination, I disallowed the further questions directed at the issue. It should also be noted that, on its pleaded case, the only issue to which the Kayunga lease was relevant (apart from questions of general credibility) was whether the claimant had had a benefit from the payment of £650,000 by dint of having her liability under the lease reduced pro tanto.
15. Progress towards the finalisation of the divorce and proposals for Roy's IVA took place during the early months of 1997. In those connections two documents dated in early March were generated. The first was Roy's proposal for an IVA dated 10 March 1997. The second was the Statement of Information for a consent order in the matrimonial proceedings, signed by Roy on 10 and by the claimant on 13 March 1997. The latter in particular provides a useful snapshot of the respective financial positions of Roy and the claimant at that time.
16. The Statement of Information listed amongst the claimant's assets:

"Potential claim in litigation against Norwich Union (similar to recent claim by husband) - value unknown - the petitioner has made no decision as yet as to whether to pursue the same."

By this time (see paragraph 10 above) the defendant had ceased to pay renewal commissions on policies as a result of the Tomlin Order. Strikingly, although the Statement of Information had first been prepared in early February 1997 (if not earlier), it made no reference to the stream of renewal commission income which the claimant had up until then been enjoying uninterruptedly. The document assumed that the claimant's only entitlement as against the defendant was by way of the claim against the defendant which she had not then decided whether or not to pursue. The stream of commission income which she had in fact enjoyed over the previous two years had exceeded £50,000.00. It is a fair inference that the draftsman of the Statement of Information in February 1997 assumed that this stream had dried up, and could be assumed to have done so as a result of the settlement of Roy's claim. Nevertheless, despite this apparent knowledge on the part of her advisors, the claimant wrote to the defendant on 17 February asking for an explanation for the cesser. The defendant, perplexed to receive such a letter following the making of the Tomlin Order, passed it to Mr Lawson-Cruttenden, the solicitor who was on the record for Mr Amin at the time of the Tomlin Order. He passed it to Thomas Eggar, who informed the defendant that they were now instructed by the claimant and would take instructions. Having done so, they wrote again on 3 March 1997 stating that the claimant had instructed that all further correspondence in the matter was to be sent to a company called Sohba Consulting Limited. The defendant declined to do so, making it clear to Thomas Eggar that so far as it was concerned it had concluded an agreement with Roy as sole proprietor of the agency business and that "If there is a dispute it must be between Mr and Mrs Amin". Despite that Thomas Eggar continued to act for the claimant against Roy in the divorce proceedings, in which a consent order approving the financial terms was obtained on 22 April 1997.

17. In the meantime, the defendant received a letter dated 11 March from Sohba Consulting. This turned out not to be a limited company, but the trading name of one Sohale Rahman. Mr Rahman was well known to the defendant since, during a substantial part of Roy's dispute over the previous two years, Mr Rahman had acted on Roy's behalf and as his right hand man in progressing Roy's claims. He had also been one of the agency's "company representatives" during the period of the tie. What Mr Rahman now asserted was, in short, that whatever agreement Roy might have reached, the claimant was entitled to continue to be paid renewal premiums as an erstwhile partner in, and now the proprietor of, Jairaj Insurance Services, and that she also had a claim in that capacity in respect of the defendant's "persistent negligence, incompetence and innumerable and unreasonable administrative burdens". After further exchanges of correspondence (to which I shall have to return), the claimant eventually on 8 April 1997 issued these present proceedings as a small claim in the Watford County Court seeking payment of the relatively small amount of commission outstanding at that date. That claim was made by her "trading as Jairaj Insurances Services".
18. The defendant applied to strike out that claim, in the event unsuccessfully. It is only necessary to refer to the episode because, in the course of it, various documents were produced and affidavits sworn on which reliance has subsequently been placed. On 4 February 1999 the action was transferred to this Division.
19. The claim with which I have to deal is contained in the Re-Amended Particulars of Claim. In summary it was this: First, that the claimant had traded on her own account as Jairaj Insurance Services prior to 18 June 1989 and in that capacity had introduced business to the defendant giving rise to commission entitlement; Secondly, that in March 1989 the claimant and Roy on the one hand and the defendant on the other made an oral agreement containing six terms, namely:

"(1) Roy Amin would become a tied agent of the Defendant immediately

(2) The written terms applicable to that tied agency would be those contained in the 4-page document entitled "Terms of Appointment", a copy of which is annexed hereto and marked 1, as amended in accordance with the 3-page document ("the Amended Terms"), a copy of which is annexed hereto and marked 2

(3) The plaintiff would continue her business as an independent broker until the expiry of her then current FIMBRA membership; then she too would become a tied agent of the Defendant, by joining her husband as a partner with him in the tied agency

(4) Commission would be paid by the Defendant on all business introduced by the Plaintiff as an independent broker since the negotiations leading to the Agreement began, as well as on all business introduced by her as an independent broker between the date of the Agreement and the time she joined the tied agency, at the rates provided for under the Terms of Appointment and the Amended Terms (which provided for rates of commission to be paid at a higher rate than the Defendant's basic rates of commission)

(5) All commission payable by the Defendant in respect of policies effected through her as an independent agent or through the tied agency would be paid and belong to the Plaintiff (and not to her husband)

(6) Renewal commission would continue to be paid by the Defendant to the Plaintiff in respect of all policies effected through her as an independent agent and all policies effected through the tied agency throughout the lifetime of each such policy respectively and the Defendant would never take any step that would tend to jeopardise the Plaintiffs' right to be paid such commission"

Thirdly, that pursuant to the agreement Roy did become a tied agent on 23 March 1989, and the claimant joined him as a partner in that business herself becoming a tied agent of the defendant, which business was carried on in partnership until 5 August 1994; that Roy retired from the partnership on that date; and that the defendant paid all commission payable both in respect of the IFA business and the tied agency to the claimant until 3 January 1997.

20. An essential element of this claim was the allegation at numbered paragraph (5) above that the commissions payable in respect of the IFA business or the tied agency business were to be paid and belong to "the Plaintiff (and not her husband)". Whatever the basis on which this had been pleaded, it quickly became apparent in the course of the oral evidence that no such term had ever been agreed. The true position was that, as from the date at which Roy became a tied agent of the defendant, all commission (whether in respect of the business previously introduced as an IFA or business introduced by the tied agency) was to be paid into the bank account of the tied agency. There was no basis whatsoever for any suggestion that the defendant had agreed that such commission would be paid to her "and not her husband". The claimant made this abundantly clear on more than one occasion during her evidence (see Transcripts 3 May 2000, pp 74-76, 4 May 2000, pp 97, 138, 158, 178-9). The oral agreement relied on in the pleading was alleged to have been made with a Mr Seamus Kehoe, the defendant's Senior Sales Manager at its Watford Branch. In an affidavit sworn in the strike-out application (and drafted in part for him by the ubiquitous Mr Rahman) he had appeared to support this aspect of the pleading. He resiled from it, however, in cross-examination, accepting that assurances which he gave to the claimant to the agency, rather that to her exclusively of Roy (see Transcript 8 May 2000, pp 410, 411). Roy himself was clear that the paragraphs in the pleading were wrong, certainly in relation to all business done from the inception of the negotiations which ultimately led to the tied agency: Transcript 8 May 2000, p 523-525.
21. Given that evidence it appeared to me that the only issues remaining to be resolved were (a) whether the claimant had ever had a right to require the defendant to account to her for commissions and (b) if she had, whether that right had survived Roy's compromise of his claim. If the answer to the second was that the right had not survived, the correct answer to the first of the questions was immaterial. For reasons which I develop below, it seems to me quite clear that Roy's compromise of his claim against the defendant included all claims which he had against the defendant in his capacity as a proprietor of the tied agency business, whether he was in fact the sole proprietor of that business or whether he owned it jointly with the claimant. Before giving my reasons for that conclusion, which is decisive of the case, it is however desirable that I should state my findings on the first of the two issues which I have identified. For that purpose it is necessary to return in more detail to the events which I have so far only sketched in paragraphs 2, 3 and 4 above. For that purpose it is convenient to consider separately the following periods:

(1) The period prior to July 1988, at which point the claimant became a FIMBRA member.

(2) the period from July 1988 to March 1989.

(3) the period from March 1989 to November 1991.

(4) the period from November 1991 onwards.

22. The period prior to July 1988

The claimant and Roy had originally presented themselves to the defendant as a husband and wife partnership, applying (in September 1981) as partners in an agency in the name of "Jairaj". Originally they asked for commissions to be directly credited to Roy's bank account, but later changed this arrangement. For tax purposes it appears that, at least for the year ended 5 April 1986, the business was treated as the claimant's. Accounts for the period ended 5 April 1987 were not available but a notice of election under section 154(1) Taxes Act 1970 suggests that Roy was introduced as a partner with effect from 6 April 1987. However, the accounts for the year ended 5 April 1988 were in fact again drawn up on the basis of the claimant being a sole trader. The way in which the claimant and Roy chose to present their affairs to the Inland Revenue cannot be conclusive of the question with whom the defendant at that stage was contracting. Such evidence as I have suggests that it was contracting with Roy and the claimant as partners. The evidence, in particular the unchallenged evidence of Mr Benson (who dealt with Jairaj Insurance Services as an employee of Clerical Medical during the period from September 1984 until February 1989), also supports the proposition that Roy was the active "face" of the business at this stage, as he was always to remain. It was, for example, to Roy that the general manager of the defendant's asset management subsidiary wrote in January 1988 congratulating "your company" on its performance in the previous year.

23. July 1988 to March 1989

The implementation of the Financial Services Act led the defendant to cancel all its existing agency contracts with effect from April 1988. Thereafter the defendant was precluded from placing business otherwise than through a person authorised by an appropriate SRO. It is common ground that neither Roy nor the claimant were so authorised prior to July 1988 when the claimant became a member of FIMBRA. It is common ground that Roy never became a FIMBRA member. The defendant appears to have issued new business terms to the claimant in September 1988 and she acknowledged them as proprietor of Jairaj Insurance Services. The change of style from "Jairaj" to "Jairaj Insurance Services" had been noted in the defendant's records in June 1988.

The position in strict law therefore appears to be that in relation to policies sold in the period up to April 1988 the defendant had contracted to pay commission to Roy and the claimant as partners, but that in relation to policies sold after April 1988 the defendant's contract was with the claimant. As between themselves, however, (or more accurately as between themselves on the one hand and the Inland Revenue on the other) Roy and the claimant drew up accounts for themselves trading as partners as Jairaj Insurance Services for the whole year ended 5 April 1989. The commissions accounted for as received within those accounts will almost certainly have included commissions earned in respect of policies sold in both the first and second periods, and probably some in the third period.

24. The period March 1989 to November 1991

It is an unassailable fact at some time in March or April 1989 the defendant appointed Roy to be its Appointed Representative, and that Roy accepted that appointment. The letter recording those facts is dated 23 March, and there is a dispute as to when Roy signed it. Quite possibly he signed it (as he says) on 16 March, and it was not signed on behalf of the defendant until April. It is common ground that as between Roy and the defendant the appointment was to run from 23 March 1989. The letter is addressed to "Jairaj Insurance Services", but Roy signed on behalf of "Jairaj". In doing so he described himself as "proprietor", deleting the alternative of "partner" and "director". At the same time he satisfied the defendant as to his qualifications to act as a "company representative" for FSA purposes, i.e. a person who under the aegis of the Appointed Representative would actually be involved in the process of selling the defendant's policies. In a separate application for business terms, Roy (again signing as proprietor of Jairaj) asked for commission to be directly credited to a bank account with Lloyd's Bank in the name of Jairaj Insurance Services. This was the same bank account to which the defendant was already crediting commissions on policies sold during the earlier periods. I interpose that, at a later date, this bank account was changed on more than one occasion: see paragraph 32 below as to the position in 1991, and a letter of 9 October 1992 for the position at that date.

25. It is common ground that no appointment was at this time made of the claimant as an Appointed Representative, and common ground that she never became a company representative. It is, however, the claimant's contention that there was an agreement with the defendant under which she was to become an Appointed Representative, in partnership with Roy, once her FIMBRA membership had expired.
26. No such agreement is anywhere recorded in writing. The assertion that it was made rests on the evidence of the claimant, Roy and Mr Kehoe. The context in which any such agreement was made was one in which the defendant had rejected the proposal that Roy should become tied (in the name of Jairaj) and the claimant would continue to carry on business as an IFA (in the name of Jairaj Insurance Services). Once it had become apparent that neither Roy nor the claimant could become tied agents of the defendant while the claimant continued to be a member of FIMBRA carrying on business at the same address, the decision was made that Roy would become the tied agent, and that the claimant would allow her membership of FIMBRA to lapse. Once it had lapsed there would be no obstacle to her associating herself in the business of the tied agency.
27. I am satisfied that that was the understanding reached between Mr Kehoe the claimant and Roy. I am equally satisfied, however, that that understanding fell short of a contract, binding on the defendant without more, to accept that once the FIMBRA membership had expired the appointment of Roy as an Appointed Representative should be transmuted into an appointment of the claimant and Roy as partners. In the first place Mr Kehoe had no authority to make any such contract on the defendant's behalf. Secondly, it must have been obvious to all concerned that the claimant would have at the least to submit a formal application to the defendant before it could appoint her as an Appointed Representative. Thirdly, such an appointment would have had to be in writing to be effective: see ss.44 Financial Services Act 1986.
28. Accordingly, the parties to the agency contract which had effect as from the 23 March 1989 were simply the defendant and Roy. In the course of negotiating that contract Roy had extracted the promise from Mr Kehoe that commissions on policies which had been sold during the period of the negotiations should be paid at enhanced rates. In extracting that promise, Roy was acting on behalf of both himself and the claimant, since it was the claimant rather than himself who was entitled to them as against the defendant. I am entirely satisfied that he had the claimant's actual authority to make this arrangement. As between themselves it made no difference to which of them individually the commissions were payable. Their accounts formally divided all profits from commissions on a 50:50 basis, but in reality the profits were family assets: as Roy put it in evidence "as long as there was money inside [the bank account] it was spent and it was - to that extent it was a normal domestic household affair".
29. Before leaving the question of what was agreed with Mr Kehoe, I must advert to another area of dispute. This was as to the extent to which in negotiating the terms of the tied agency Roy had been successful in persuading the defendant to vary its standard terms. It was his case, in his proceedings, that various special terms had been agreed, inter alia, as to commission. The dispute survives into the present proceedings inasmuch as the claimant relies on one such special term, namely that the rate of commission payable should be at any given time the highest rate of commission then being paid in respect of the relevant type of policy to any tied or independent agent of the defendant" (see paragraph 4 of the Re-amended Statement of Claim). It is clear that Roy put forward this (and other terms) to the defendant. It is convenient to refer to these terms as "the Amended Terms". It is also clear that he was encouraged to do so by Mr Kehoe. Mr Kehoe did not himself have authority to agree such terms. When he put them to head office, it is clear from the contemporary documents that they fell on stony ground. Despite the evidence of the contemporary documents Mr Kehoe gave evidence that "the majority" of the terms were in the event acceptable to head office. He said that he had argued head office out of its attitude by pointing out that "the majority" of the amendments were in fact harmless given the presence of other terms incorporated into the agreement by reference, or as he put it "working on the principle Norwich Union had them in there but if they weren't in Norwich Union could pick them up from another source". I was not able to accept Mr Kehoe's evidence that he ever had secured authority to agree the amendments. I can well believe that he did not see the amendments as presenting a problem, and that he would have told Roy this. I am not persuaded that he told Roy they had been accepted. It is significant that the only contemporary letter of Mr Kehoe (dated 31 May 1989) dealing with the discussions (and purporting "to confirm the various points we discussed over the last three months regarding your Tied Agency") relates only to the question of commission, and makes clear that apart from the specific agreement as to commission conceded in that letter, Roy's best course would be to get together "with Head Office at some time in the future to see if you can work out a special deal". The letter concluded:

"should you as a consequence of normal business dealings decide that you no longer wished to be tied to Norwich Union you would continue to receive any initial and renewal commission due to you".

30. It follows from my analysis of the arrangements made in March and April 1989 that, following the appointment of Roy (trading as Jairaj) as the defendant's tied agent, it was Roy and Roy alone who thereafter had a direct contractual relationship with the defendant. He, and he alone, had undertaken the duties inherent in that appointment; and he, and he alone, was the person entitled to the benefit of the appointment and entitled to give a receipt for the commissions produced by it. Since he and the claimant had also authorised the defendant to pay all commissions on pre-existing policies to the "new" agency (i.e. to Roy or at his direction) he, and he alone, was thereafter the person entitled to give a receipt for those commissions.
31. The fact that in the post April 1989 period Roy conducted the agency business in partnership with the claimant, and did so to the knowledge of the defendant, does not alter that analysis. The creation of such a partnership would not by itself have created any direct contractual relationship between the claimant and the defendant. It simply gave rise to rights and duties as between the partners. As I have already noted (see paragraph 4) above, a report to the defendant by KPMG in February 1991 did bring to the attention of the defendant the fact that the business was operated by Roy and the claimant in partnership, although the report did at the same time refer to Roy as "the proprietor of Jairaj". One further point in that report may also be noted, namely the record that Jairaj's stationery now did comply with the provisions of the Business Names Act, whereas it had not done so at the time of an earlier compliance inspection in May 1990. This would appear to be a reference to the fact that the Jairaj notepaper had originally contained no identification of the proprietorship of the business. It now showed Roy as proprietor. Despite their finding that the business was managed by Roy and the claimant as partners, this passed muster with KPMG.
32. The KPMG report appears to have been part of a drive by the defendant to ensure that it was "LAUTRO compliant" in respect of all of its tied agents. Its original creation of a tied agency network in 1989 had been done at great speed, and, it can be inferred, with insufficient attention being paid to the requirements of the new regulatory regime. By the beginning of 1991 the defendant had decided to require all its tied agents to re-apply for appointment as Appointed Representatives. This was described to me in evidence as a "re-referencing" exercise. It was a process which was no doubt irritating to those subjected to it, and made the more so by the inefficiency with which it was then handled. Forms were sent to Roy and completed and returned by him on no less than three occasions. A copy of the third such application, sent on 20 June 1991, survives. So far as relevant to these proceedings it contained the following information. The official name of the business was stated to be "Jairaj", but it was said that the business also used the name "Jairaj Insurance Services". Roy was stated not to be the sole proprietor of the business, the explanation given being "(accounts in partnership with wife Pratima Mukundroy Amin)". The claimant's suitability as a partner to manage the business was described in the following terms: "Mrs Amin now in charge of Administration operation but like husband 12 years expertise. She started the business which I joined later on. She had worked in finance and insurance at all levels". The business' bankers were given as Barclays Bank plc 225 High Road, Wood Green.
33. The application, signed only by Roy, was duly considered by the defendant, which made checks on both Roy and the claimant sufficient to satisfy itself. In the course of doing so it sought further information from Roy. An internal note of the defendant recording a telephone call on 23/9/1991 gives the favour of Roy's attitude to the process:

"He is absolutely 'fed-up' with all this back reference and doesn't intend to answer any more questions since he has been appointed for 2½ years. He was very reluctant to give any further info and was quite annoyed"

(It was not the only thing he was fed up with at this period. In the course of her evidence the defendant produced a letter dated 2 October 1991 from Roy to Mr Saker, copied to Mr White, in which he bitterly complained of the defendant's administrative incompetence in relation to premium collection.)

A visit to Jairaj by a compliance team on 21 October 1991 recorded the following:

"For accounting purposes the business is a partnership ... however, Mr Amin confirmed that the business has in fact been registered with himself as sole proprietor".

The maker of this report did not give evidence and Roy denied that he made such a statement.

34. Eventually, on 7 November 1991, the defendant's Senior Agency Controller, Mr Willis, wrote to "The Partners Jairaj" this letter

"Dear Mr and Mrs Amin

To keep our mutual records up to date I attach a revised appointment letter showing both of you as partners.

The enclosed letter was the October 1991 letter (see paragraph 4 above). It was in the following terms:

"Dear Sirs

I am pleased to confirm that from 20 June 1991 Mukundroy Chandubhai Amin and Pratima Mukundroy Amin trading as Jairaj ("the Agent") will be an Appointed Representative of the Companies named below as members of Norwich Union Life Insurance and the Unit Trust Marketing Group ("Norwich Union").

This appointment relates to the Sale by the Agent of long-term insurance and investment products on behalf of Norwich Union ("the Agency Business") and is subject to the terms annexed and such further terms as may apply from time to time.

Please sign and return the copy of this letter of appointment to indicate your acceptance.

Yours faithfully

G WALKER

Administration Manager

National Sales (Appointed Representatives)

I/We accept the terms of my/our engagement as an Appointed Representative of the companies comprised with Norwich Union Life Insurance & Unit Trust Marketing Group.

Signed:.........".

35. Whether the October 1991 letter was ever returned by Roy and the claimant was a matter of acute controversy before me, to which I return below. At this stage, however, it is necessary only to observe that, in my judgment, the mere issue by the defendant of the October 1991 letter did not have the effect of creating a contractual link between the defendant and the claimant where none existed before. Mrs Giret, on behalf of the claimant, submitted that the true interpretation of the October 1991 letter (and that of 7 November) was that the defendant was simply acknowledging its existing contractual relationship. On the contrary it seems to me that the letters were, rather, an acknowledgement that the existing arrangements between the defendant and the agency did not comprise such a link, the emollient tone of the letter dated 7 November 1991 being explicable by reference to Roy's irritation with the whole re-referencing exercise. The October 1991 letter was, in contractual terms, an offer to create that link.

The period following November 1991

36. If Roy and the claimant did accept the offer contained in the October 1991 letter, it is clear that thereafter they together constituted the defendant's Appointed Representative. However, since as partners each would prima facie have authority to bind the other in their dealings with the defendant in relation to the business, this might be thought to have little consequence. The claimant's case, however, is that by the manner in which she did accept her appointment by a letter dated 11 November ("the November letter"), she automatically limited Roy's authority to bind the partnership in its dealings with the defendant. Before examining that issue, I propose to examine the events of the next three years to see what evidence they present either of the defendant recognising that it was in contractual relationship with the claimant or of Roy's authority in relation to the business being in any way limited.
37. Jairaj's stationery continued to show Roy only as the proprietor. A follow-up compliance report dated 21 January 1992 (of which Roy had a copy) confirmed that it complied with requirements, and also that the trading name of the business was Jairaj and not Jairaj Insurance Services. At some point in 1992 the defendant found itself once again wishing to enter into revised agreements with all its tied agents. A draft was prepared for Jairaj showing both Roy and the claimant as partners, and providing, inter alia, that "The terms and conditions set out herein supersede the terms annexed to the original letter of appointment 20 June 1991". Clearly whoever prepared that draft had seen on file at least a copy of the October 1991 letter which had identified that date as the effective date of commencement of Roy and the claimant's current appointment. By June 1993 Roy was being pressed to sign up to this new agency agreement. He was also being invited to lend his name and photograph to a proposed advertising campaign of the defendant in the autumn. At the same time he and the claimant were exasperated by what they perceived to be maladministration by the defendant which was resulting in commission being wrongly calculated and accounted to them, as well as the loss of time spent sorting out what they perceived as an administrative mess created by the defendant's shortcomings. This had been a running sore in the relationship between Roy and the defendant for well over a year. A meeting held on 2 June 1993 attended by Roy on behalf of Jairaj and five representatives of the defendant (Mr White, Ms Gadhia, Mr Russell, Mr Monton and Mr Pritchard) addressed this latter issue. The minutes of that meeting (sent to Roy on the following day) recorded, as to the new Agency Agreement, that "Roy will look into the agreement and by next Tuesday (10.6.1993) we will have the Jairaj reply as to how they wish to proceed and how it affects the current position". Subsequent documents record that Roy telephoned Ms Gadhia on 3 June stating that he chose not to sign the new agreement "until the matter of compensation had been resolved". Ms Gadhia wrote to him on 14 June recording this telephone conversation as stating that he would be "happy to sign" the new agreement once the issue of compensation had been resolved. Roy did not in subsequent correspondence demur to this interpretation of the conversation. In fact the issue of compensation was not finally resolved until June of the following year. All the correspondence relating to the settlement of the compensation claim was conducted by Roy. There is no indication that the defendant supposed him to be subject to any limitation on his authority in this respect. Nor indeed has the claimant in these proceedings suggested that he was.
38. The significance of this episode of the new Agency Agreement is that the claimant's case is that she wrote to Mr White on 7 June 1993 ("the June 1993 letter") giving her own reasons why the new agency agreement was unacceptable to her and Roy. As in the case of the November 1991 letter, the defendant has no trace of ever having received this letter. The defendant asks me to find that both copy letters have been fabricated after the event, their contents having been tailored to fit with the claimant's case in these proceedings.
39. As already recorded (paragraph 6 above) the defendant terminated the agency by letter dated 5 August 1994. Roy immediately challenged it, instructing Eppel & Co. solicitors, to act on his behalf. In the correspondence which ensued between Eppel & Co and the defendant's in-house solicitor Mr Price, an early point taken on behalf of Roy was that he "was under the impression that certain variations were agreed around the time of the 23 March 1989 letter of appointment". In due course Roy located his copy of the Amended Terms, and reliance was placed on them to controvert the validity of the three month notice of termination. The whole correspondence proceeded on the footing that Roy was the person with whom the defendant had contracted and was now in dispute. The question of the claimant's position was at no stage mooted. She was, however, well aware that the agency had been terminated and was involved in the termination audit on 23 January 1995. Indeed it was she who on that day acknowledged the termination of the agency with effect from 8 December 1994 and declared her belief that LAUTRO requirements had been observed by the agency. Either on that day or (as she was inclined to accept) shortly afterwards, she signed a further letter drafted for her in which she wrote, "....I understand that as from 23/1/1995, we were no longer an Appointed Representative of Norwich Union". This letter, hand-written on JIS Jairaj notepaper, is quite incompatible with her subsequent claim to believe that it was only Roy, and not herself, who had been "terminated".
40. The correspondence relative to Roy's claim against the defendant spread from August 1994 until its final resolution in December 1996, and occupies nearly 400 pages in the trial bundle. For much of that period Roy says that he himself was absent from the country, and matters were progressed on his behalf by a variety of representatives. Eppel & Co (in the person of Timothy Eppel) acted for him until 17 February 1995. In December 1994 they issued a generally endorsed writ on his behalf against the defendant and four Norwich Union subsidiaries claiming, inter alia, damages for breach of the contract dated 23 March 1989 as varied by the alleged Amended Terms. They came off the record on 17 February 1995 being replaced by Proctor & Co. By that stage it is clear that Roy had deputed Mr Rahman as the person from whom his solicitors could take instructions. In without prejudice negotiations Mr Rahman put forward the claim as one of £4.5m in respect of renewed commission and £13.48m in respect of business lost as a result of allegedly negligent administration by the defendant. The defendant responded with an offer of £600,000 by letter dated 21 February. It is clear from the terms of that letter that the defendant had calculated £200,000 of this as attributable to the maladministration claim, and the remaining £400,000 as a discounted sum in respect of future renewal commission on all existing business. It was not prepared to contemplate making an offer in respect of lost future business.
41. Roy learned of the offer before it was actually communicated in writing, and by a letter dated 20 February 1995 wrote, in the name of Jairaj, to the defendant's Chief Executive (Mr Bridgewater) rejecting it. This single episode gives the lie to two important strands in his evidence: first his claim to have "resigned" or "retired" from the partnership at some point in the autumn of 1994; and, secondly, his repeated claim in evidence that he had made clear to various of his advisors from Mr Eppel onwards this his claim was in some way a claim personal to him and did not extend to a claim, on behalf of himself and/or the claimant, to future renewal commission. Pressed with this and other like documents in cross-examination he sought to blame either his own alcoholic confusion or his advisors for the fact that his claim had not in fact been presented in that way. His motive for continuing to insist that he had never made a claim on behalf of the business as such was that he had been joined by the defendant as a Part 20 defendant on the basis that, if he had not had authority to make and settle the claim, he had deceived the defendant into believing that he had. He was prepared to accept that action had in fact been taken in his name which was inconsistent with his basic thesis, but "I am only here to defend myself against fraud, that is what I promised Tina and her solicitors". That defence in the final analysis rested on his proposition that at two points in the ensuing saga of his claim he had made it clear to the defendant that the claimant had a separate claim.
42. The first of the occasions relied on by Roy was what he said had happened at a meeting on 27 September 1995. That meeting was attended on Roy's side by Roy, Mr Rahman, Roy's then solicitor Mr Lawson-Cruttenden, and another advisor, a Mr Waterer, who was assisting Roy with his claim. On the defendant's side were Mr Matthews and Mr Price, solicitors in the defendant's legal department. It was Roy's evidence that at this meeting a discussion had taken place about JIS's right to continued payment of renewal commission notwithstanding the termination of its appointment. Roy's witness statement said in relation to this: "Mr Matthews said words to the effect that .... JIS was no longer an appointed representative and was no longer servicing the policies. 98. At that stage I turned to Mr Price and told him that he knew that Tina was servicing the policies and was entitled to renewal commissions and she was being paid accordingly. I told him that he knew I was no longer a part of JIS and that Tina was now the sole proprietor and she had contractual rights to renewal commission. Mr Price acknowledged what I said. At this point Mr Matthews said that he would simply write to the appropriate departments in Norwich Union to stop Tina servicing the policies." (underlining supplied). Mr Waterer (called by the claimant) supported this account in general terms which did not extend to the sentence which I have underlined. Mr Lawson-Cruttenden (called by the defendant) could not remember any reference having been made to the claimant at the meeting. Mr Matthews could not remember any reference to the claimant having been made, and thought it unlikely that he would not have recorded it had it been made.
43. It seems to me quite probable that, in the course of what were undoubtedly heated discussions at the meeting, Roy would have referred to the fact that the claimant was continuing to service policies and that renewal commissions were being paid. The defendant's negotiating stance was that the contract did not entitle JIS to receive renewal commission after its termination as an Appointed Agent, inter alia because the agent in such circumstances would no longer be servicing the policies. But in fact renewal commission was continuing to be paid (albeit not necessarily at the rates at which Roy thought were correct) and there was a limited sense in which the relevant policies continued to be "serviced" by the claimant. I think it quite likely that Roy would have challenged the defendant's stance by reference to these facts, along the lines of "But these things are happening - if you doubt me you have only to ask my wife." That, however, is a far cry from Roy having explained to the meeting that he had assigned all his interest in the agency to the claimant, and no longer had any title or authority to pursue claims in respect of renewal commission at all. In his witness statement Mr Waterer had sought to take a middle course as to the effect of what was said at the meeting, stating that it was clear that both Mr Matthews and Mr Price "were fully aware of Mr Amin's view that both he and his wife were entitled to renewal commissions" and "quite well aware of Pratima Amin's significant role in the JIS Services, and that she was in receipt of renewal commissions in her own name." His oral evidence, however, fell far short of confirming this. He did not himself know or have any understanding of whether the reason why the claimant was receiving the commission was because of her role in the business or whether it was because they were in her own name (Transcript 11 May, p.911). I am quite satisfied that Roy did not at the meeting tell Mr Matthews and Mr Price that, as Mr Waterer put it, he "was no longer part of JIS and that Tina was now the sole proprietor and she had contractual rights to commission."
44. The second of the two incidents relied on by Roy concerns telephone conversations he alleges that he had in November and December 1996 with the defendant's Group Director Mr Scott. Before coming to that, it is necessary briefly to sketch the intervening progress of Roy's claim. By the late autumn of 1995 Roy and his advisors had concluded that the without prejudice negotiations with the defendant were leading nowhere. They decided that proceedings needed to be properly launched. The existing proceedings were discontinued and a fresh specially endorsed writ was issued and served. On the evidence of Mr Lawson-Cruttenden and Mr Waterer much work had gone into the preparation of the Statement of Claim. As Mr Lawson-Cruttenden put it in evidence; "I can tell the Court that several drafts were considered in conference. The conferences included Mr Amin, who was present on several occasions when we were considering the drafting". In his evidence Roy tried to suggest that he had no knowledge of the contents of the document (see e.g. 10 May 2000 p. 710). That was a plainly preposterous claim. The proceedings described Roy as "t/a Jairaj Insurance Services". The Statement of Claim identified the relationship between Roy and the defendant as having commenced in about 1979, and as having been governed by terms derived partly from statute, partly from written agreement, partly from oral agreement, and partly from a course of trading. The principal written terms were identified as being those annexed to the letter dated 23 March 1989 as amended by the Amended Terms. The oral terms were alleged to be the result of discussions between Roy and James Pritchard in August 1988. The course of trading relied on spanned a period from January 1987 to August 1994. The main claims advanced in the document were (1) claims in respect of initial and renewal commission both before and after the termination of the Agency; (2) a claim that the defendant's maladministration had caused Roy loss in the conduct of JIS's business; and (3) a claim that the agreement had been terminated in breach of contract.
45. Progress in the litigation seems to have been hampered, at least initially, by a stay imposed on the proceedings until the costs of the discontinued action were secured. That did not, however, prevent Roy from campaigning by other means to obtain redress from the defendant. Some media coverage of the proceedings was obtained, in the Financial Advisor on 25 January 1996 and in the Daily Express on 17 April 1996. In each case Mr Rahman was quoted as the Jairaj spokesman, in the former case being described as "Manager at Jairaj". Mr Rahman also wrote in the name of Jairaj, to other former tied agents of the defendant inciting them to question the defendant's practices in relation to renewal commission. All this activity was conducted in the name of Jairaj and from the claimant's house Jalviram. Whatever the state of the claimant's marriage during this period it simply passes belief that she, as the sole proprietor of the business (as she claims by this time to have become), was unaware of it.
46. Progress towards a settlement of the claim began to be made when, on 29 August 1996, Mr Matthews wrote a carefully considered 'without prejudice' letter to Mr Lawson-Cruttenden, setting out the terms on which the defendant was prepared to settle. In short these were to offer £448,219 as a lump sum settlement of all the claims for post-termination renewal commission, but nothing in respect of the claim for loss caused by maladminstration. The offer was rejected without explanation by Mr Lawson-Cruttenden on 19 September 1996, although he did inform Mr Matthews that relations between himself and Roy had now broken down to the extent that they were only in communication through the medium of Mr Waterer. Subsequent attempts by Mr Matthews to revive discussions with Mr Lawson-Cruttenden proved abortive.
47. The logjam was eventually broken by Roy himself. On 8 November 1996 he wrote directly to the defendant's Group Director Mr Scott a four page letter, the nub of which was contained in its penultimate paragraph. That was in the following terms:

"You must be aware of the substantial amount of renewal commission Jairaj Insurance Services is owed as a result of normal ongoing business. I am prepared to forgo ALL future renewal commission payments on ALL cases and I am also prepared to set aside my claim for immediate payment of £875,000.00 (eight hundred and seventy-five thousand pounds). I would also hand over all documentation in my possession with regards to the litigation and all documentation on Norwich Union administration problems and all Jairaj's client files. There would be an immediate cessation of all activities between us and you would have my assurance that Jairaj would never become involved in any third party action against Norwich Union."

Although the notepaper on which this was written did not contain a 'Jairaj' letterhead it is crystal clear that Roy was here putting forward an offer to settle all the claims which he, as Jairaj Insurance Services, had against the defendant, these claims being (a) an entitlement to a continuing stream of renewal commission and (b) the claim for loss of business due to maladministration. Roy's assertion to me in the witness box that the reference in the letter to Jairaj Insurances Services was "a mistake" (10 May, pp 730-731) was plainly a nonsense.

48. Further correspondence and telephone conversations between Roy and Mr Scott took place in November and December 1996. As a result, the gap between the parties gradually closed. Eventually on 16 December 1996, a telephone conversation took place between Mr Waterer and Mr Scott in which agreement seemed to have been reached, which Mr Scott set out in a letter dated 17 December 1996 addressed to Mr Amin. In due course these were reduced into an agreed form for inclusion as the Schedule to the Tomlin Order.
49. It is Roy's case that during his conversations with Mr Scott he made it clear that the claim he was trying to compromise was personal to himself. In his witness statement he put it this way

"125. During my many discussions with Phil Scott at around the time of my settlement, I used to say that since he was paying me, he ought to pay Tina as well. I told him that Tina was carrying on the JIS business. I told him that he knew that we alone had a special contract with Norwich Union and that my rights and Tina's rights were protected. He said words to the effect, 'Look, my solicitors advise me that this is your litigation. You have litigated, Tina has not, so I only have to settle with you. Tina can file her own claim'.

50. Therefore, whilst Phil Scott did confirm to me that Tina did have a separate claim he refused to deal with this issue. His concern was that my matter should be settled prior to the impending floatation of Norwich Union in Spring 1997. He would say words to the effect, 'Don't worry, Tina does have a separate claim, but you please settle with me before the floatation."
51. It was therefore understood between Phil Scott and me that the claim that I was pursuing was a personal one."

In his witness statement Mr Scott said this:

"4. As far as the second sentence of paragraph 119 and paragraph 125 are concerned my recollection is that throughout my conversations with Mr Amin I believed he was the business proprietor of Jairaj Insurance Services and as such a person who had power to settle a claim on its behalf and that any interest his wife would have would be as matrimonial partner to the proprietor. I am quite clear in my recollection that when Mrs Amin was mentioned my understanding was that she was mentioned as a marriage partner. Mr Amin mentioned to me in the telephone conversations that there was a separation between him and his wife and that there was potentially a conflict between them. It became apparent in one of the telephone conversations that there was a separation and that their financial affairs had to be dealt with the marriage was in difficulties and there were some matrimonial property arguments emerging. At no stage did Mr Amin say to me that since Norwich Union were paying him we ought to pay Tina as well as she was carrying on the JIS business. Mrs Amin's position arose only insofar as she could have a claim on the settlement monies in any divorce proceedings.

52. As far as the words in italics in paragraph 125 are concerned when he spoke about Mrs Amin he said that she may have an interest in the settlement but only insofar as she was entitled to a share as a divorced wife and not on any other basis. My belief was that Norwich Union were settling with the proprietor of the business and he had represented himself as the proprietor of the business and he had brought a claim against Norwich Union a sole proprietor. The words "Tina can file her own claim" are not correct. I said to Mr Amin that if Mrs Amin wished to make a counterclaim she had a right to do that but she would be making it against Mr Amin as an ex-wife. I had no doubt that all our negotiations were to be in full and final settlement of all the commission on the Jairaj agency. Had Mr Amin claimed that Mrs Amin had a contractual right to any payments we were making to Jairaj then I would have made an enquiry as to what that contractual position was.
53. I do not believe that I made the statement in the second sentence of paragraph 126. The matter could always have gone past floatation but I expected that from a commercial point of view we had an opportunity to settle on appropriate terms. As far as the words in italics are concerned I never accepted or believed that Mrs Amin had a claim against Norwich Union. I did think that she may have a claim against Mr Amin.
54. As far as paragraph 127 is concerned I believed that Mr Amin was the sole proprietor, or as I have mentioned already a person who could settle a claim on its behalf and all our dealings were with him on behalf of Jairaj.
55. I refer to the letter of 20 December 1996 which I cannot now specifically recall but as it is addressed to me there is no doubt that I saw it. To the best of my recollection I sent it down to the Legal Department to deal with. Although in that letter Mr Amin mentions that he was in partnership with his wife in my own mind Mr Amin was the predominant figure in the agency and my view was that he could settle a totality of the claim on Jairaj's behalf."

In his oral evidence, Mr Scott put the nature of Mrs Amin's position somewhat differently. He spoke of his assumption that her claim was as a partner, and that a dispute was emerging as to the distribution of the partnership "which could include both of them or others". The partnership being referred to in that context was clearly not simply the relationship of man and wife. I think it unlikely that the references to the claimant being a partner were references simply to her status as a wife, as a "matrimonial partner".

56. Subject to that qualification, I have no hesitation in accepting Mr Scott's account as preferable to that given by Roy. It really is inconceivable that Roy could have clearly and unambiguously told Mr Scott that he, Roy, had no authority to settle the claim which he was making ostensibly as proprietor of Jairaj Insurance Services, or that the position was that the claimant had a separate contractual claim against the defendant. Quite apart from the inherent improbability that matters would then have taken the course they did if Roy's account is correct, that account sits very oddly with the reply which Roy in fact wrote on 20 December 1996 to the letter of 17 December. That reply included the following:

"As our business was carried out as a partnership between myself and my wife, I am awaiting advice on the precise structure of the payments, which may involve apportioning the payments under separate headings in the formal settlement agreement."

What Roy had in mind in this passage is not entirely clear. Those assisting him at the time (Mr Busby and Mr Waterer) assumed that it related to a desire to structure the anticipated receipt in a tax-efficient way. What the passage was very clearly not saying, however, was that the claim being settled by Roy was a purely personal one, or that, although the business had been carried on as a partnership Roy now had no claim to the assets of that partnership. The passage perhaps implied that Roy would have to account to the partnership for the claim proceeds but no more than that. It is completely inconsistent with any idea that Roy thought he had already brought home to Mr Scott that the claim he was pursuing was purely personal to himself, and that the claimant continued to have a separate claim as proprietor, or co-proprietor, of the partnership business. As it happened nothing further was heard from Roy as to the suggestion made in the letter dated 20 December. There was evidence that he sought, through Mr Lawson-Cruttenden, to have the proposed payment labelled as being for "pain and suffering". Eventually the defendant agreed to label it "ex gratia". It may be that these various attempts to christen the payment are evidence of a desire on Roy's part not only to leave himself room for manoeuvre with the Inland Revenue but also room later to assert the proposition that the settlement was of a purely "personal" claim.

57. On these findings the position appears to me to be a simple one. The only claims Roy ever had (and certainly the only ones he ever made) against the defendant were as the proprietor of the business (i.e. as the party with whom the defendant had contracted). The defendant never did contract with the claimant. But if I am wrong about the latter point, the contract was with Roy and the claimant as partners. In that event both would have been entitled jointly against the defendant. Either would have had authority to compromise the partnership's claims against the defendant. When Roy settled all his claims against the defendant, those claims included his claims as a partner. Indeed he had no other claims. His claims as a partner were the same claims as the claimant's claims as a partner. Settling his claims necessarily involved settling the partnership's claims. Nothing in the terms of the Tomlin Order or its schedule is inconsistent with this analysis. On the contrary the intitulement to the order continued to describe him as "trading as Jairaj Insurance Services". The sum of £650,000 was described as being "in full and final settlement of all the disputes arising" in the action, and in "full and final settlement of all claims ...." arising out of his relationship as an independent financial agent and as a tied agent of the defendant. It acknowledged that he would not be entitled to any further commission "attributable to any products sold by him and his sales representatives on behalf of" the defendant. What were being settled were plainly "Jairaj", rather than purely "personal", claims.
58. I return to the questions, left open in paragraphs 36 and 37 above, whether the claimant did ever return the October 1991 letter and whether, by the terms subject to which she did so, she succeeded in limiting Roy's authority to act on behalf of the partnership. Her case is that both she and Roy signed the October 1991 letter, but that her signature was expressed to be "subject to attached letter". The letter said by her to have been attached was, like her signature on the October 1991 letter, dated 11 November 1991. It was in the following terms:

"Dear Mr Willis

Re: Revised Letter of Appointment

Thank you for your letter dated 7/11/91 together with the two original revised Letters of Appointment, one to be signed and returned to you. Norwich Union were made aware of my position within Jairaj Insurance Services and Jairaj through Roy Amin/his solicitors' written correspondence during his negotiations for the Tied Agency in February/ March 1989.

Norwich Union have now further concluded that I am an equal partner in Jairaj. I accept this position and as requested by you I am enclosing one original Letter of Appointment duly signed by Roy and myself for your safe keeping. IT IS MOST IMPORTANT TO NOTE THAT THIS REVISED LETTER HAS BEEN SIGNED SUBJECT TO THE FOLLOWING:

1. From now on, Norwich Union undertake to protect all my rights as a fifty percent partner in the business and guarantee to always seek my written personal consent before they enter into any agreement with Mukundroy C Amin.

2. The original agreement for a tied agency with Norwich Union was entered into by Mukundroy C Amin on 23rd March '89. This agreement incorporates substantial amendments and additions as specified by our solicitor and agreed by both parties. The acceptance of the revised letter does not in any way impinge upon the original agreement specified in this paragraph. The purpose of the acceptance of the revised letter is to emphasise further my individual and joint rights as a partner in the business and particularly in the agreement with Norwich Union for the Tied Agency.

If you need any further clarification or assistance, please do not hesitate to contact me or I will otherwise conclude that the above is acceptable.

Thank you

Yours sincerely

P M Amin"

59. The defendant asks me to find that this letter was not only never received by the defendant but that it was never sent: indeed that it has been fabricated for the purposes of this present claim. Before examining that question, I should state my conclusion that even if it had been received by the defendant it would not by itself have had the effect of altering the existing contractual position between the claimant and Roy on the one hand and the defendant on the other. On the claimant's case she was already in a direct contractual relationship with the defendant by virtue of the agreement made with Mr Kehoe in February/March 1989. That relationship was, however, only enjoyed in her capacity as a partner with Roy. The existing contractual relationship on this case was therefore with her and Roy jointly, with no qualification of Roy's authority to deal with the defendant on behalf of the partnership. On any view the letter was, in my judgment, an attempt to introduce new terms into that contractual relationship. It sought to impose on the defendant an obligation to "protect all my rights as a fifty per cent partner" and to "guarantee to always seek my written personal consent" before entering into "any agreement" with Roy. Unless agreed to by the defendant, by words or conduct, the proposal in the letter could not bind the defendant. The same applies if (as I have found) the claimant was not already in contractual relationship with the defendant. On that hypothesis the offer by the defendant (by the October 1991 letter) to create one had plainly not been accepted.
60. In any event I am satisfied that it was never received by the defendant. No copy of it has survived in the defendant's files. Mis-filing occurs, of course, even in the best administered of organisations and there was evidence before me which suggested that the defendant did not at this period satisfy that description. Mr Walker, however, who headed the relevant department in the defendant at the time, told me that any letter of this nature from Jairaj would have been dealt with at a high level. Jairaj was well known within the department as one of the defendant's most productive agencies. It was also well known that the relationship was a sensitive one, inasmuch as Roy had many current complaints about the defendant's general administration (see paragraph 33 above). I am satisfied that, had it been received, some action would have been taken with respect to it of which there would now survive some record. It is true that in the absence of the receipt by the defendant of a signed copy of the October 1991 letter one would have expected to see chasing letters from the defendant, and none survive. It may be that the need to chase a response was in the event overtaken by the process (which seems to have started in the following year) of requiring all agents to sign completely fresh agreements. It may also be that the process of chasing was left to be done, orally, by the sales consultants on the ground, and the task was not enthusiastically pursued by them. It is interesting to note the complete absence of any correspondence (either in the defendant's files or Jairaj's) relating to the new agency agreement in 1992 or 1993. However all that may be, I find that neither a signed copy of the October 1991 nor the November 1991 letter was received by the defendant.
61. Was it ever sent? Three facts give rise to grave suspicions that it was not. The first relates to the way in which the relevant documents first surfaced. The opening shot in Mr Rahman's correspondence on the claimant's behalf was contained in his letter dated 11 March 1997. In that letter he made two points: first, that neither he nor the claimant were aware of the terms of any settlement of Roy's claim; and, secondly, that the defendant was "fully aware of the partnership status of Jairaj Insurance Services and our client remembers that this fact was acknowledged by our Mr Mike A Willis and your Mr G Walker." Mr Matthews replied to this by copying to Mr Rahman the 23 March 1989 letter of appointment of Roy, and making the point that if "Jairaj Insurance Services was a partnership one partner has power to bind the firm and third parties are entitled to rely on that." To this Mr Rahman responded (by letter dated 24 March 1997) that "Jairaj Insurance Services was a partnership and this point has been confirmed by Norwich Union. At this stage my client is unable to trace written evidence of the same and in the absence of which my client would call upon the oral evidence of your Mr Mike A Willis and your Mr G Walker as confirmation." He also went on to repeat his denial of any knowledge of the defendant having settled with Roy. With his next letter (1 April 1997) he enclosed a copy of Mr Willis' letter dated 7 November 1991. After further exchanges, Mr Matthews wrote on 8 April 1997, stating inter alia that "there is no evidence on Norwich Union records to suggest that Jairaj Insurance Services confirmed to Norwich Union that with effect from November 1991 it was a partnership". On 18 April 1997 Mr Rahman wrote alleging that the defendant was "concealing or discarding vital evidence." By early May, the defendant had applied to strike out the claimant's claim with a hearing listed for 11 June 1997. On 6 June 1997, in anticipation of that hearing, Mr Rahman produced for the first time the documents whose authenticity is disputed.
62. The claimant's case is that Mr Rahman was lying when he claimed that no written evidence existed to suggest her claim that the defendant had acknowledged the partnership. That both he and she were prepared to lie at this stage seems incontrovertible. It was a lie that the claimant knew nothing of the settlement Roy had reduced with the defendant. It is perfectly clear in relation to this that the claimant knew both the nature of Roy's claim, the amount received in settlement, and the destination of the settlement proceeds (see paragraph 12 and 16 above). The motive for that lie is intelligible. What is unintelligible, however, is why the claimant and Mr Rahman should have been so anxious to keep up their sleeve the fact that Roy and the claimant had not only counter-signed the October 1991 letter but that the claimant had written the November 1991 letter. It was, in many respects, their best point.
63. The course which the correspondence took becomes intelligible if one assumes that the claimant had on file no more than the letter of 7 November 1991 and a copy of the October letter unsigned by herself and Roy, and either knew that she had never counter-signed it or was uncertain as to that fact. If she had counter-signed it, it was potentially dangerous since the reference in it to accompanying standard terms and conditions might well preclude her reliance on the special terms of the earlier oral agreement with Mr Kehoe and the "Amended Terms". Unless and until the claimant and Mr Rahman had ascertained what lay in the defendant's files, it was safer for them simply to rely on the 7 November letter as evidence that the defendant had acknowledged the fact of the partnership. Once they had ascertained that the defendant had nothing on its file indicating that the claimant had accepted an appointment pursuant to the October 1991 letter, they were able to assert not only that she had done so but that she had done so in a qualified manner. For this purpose they set about manufacturing the documents evidencing that acceptance, and that qualification. As I have already stated, it is unintelligible, if those documents already existed, that they were not relied on right from the beginning of the correspondence.
64. The second highly suspicious circumstance lies in the internal content of the November 1991 letter. The two points which it seeks to make are precisely the points on which the claimant now relies, namely (1) the fact that the defendant owed her a duty separate from that which it owed to Roy, and (2) the qualifications allegedly agreed in March 1989. There is, however, absolutely no evidence in the period between March 1989 and October 1991 of those two matters having been in any way in controversy between the parties. In particular there is not a hint in that period of any consideration having been given to the question of whether or not the defendant was prepared to accept that the claimant was "an equal partner in Jairaj." Yet the letter is written as if the defendant had been refusing to accept the position, but had "now" abandoned that stance. Nor had there been any suggestion that the defendant had in some way been in the habit of concluding, or threatening to conclude, agreements with Roy which might be damaging to the claimant. The only agreement with Roy in contemplation at that period was a possible agreement for the re-financing of No. 203 Station Road. That property had, however, been bought in Roy's name. The claimant's evidence was that the point of her letter was to ensure that such re-financing did not take place without her knowledge. However, since the letter did not inform the defendant that the property was in fact a partnership asset, it is difficult to see how the letter was supposed to achieve its desired effect in this respect. Moreover, Roy had by this stage already incurred substantial liabilities to Barclays in respect of the property. It is difficult to see what the claimant had to fear from these being re-financed by the defendant.
65. Furthermore, the letter strongly suggests that there were tensions at that stage between the claimant and Roy, and that the claimant was looking to the defendant to protect her in her personal relationship with Roy. This attitude to Roy is, however, completely belied by the fact that, only a matter of months later, she was prepared, simply on Roy's advice, to undertake a substantial individual liability (£0.875m) in respect of the Kayunga lease. Whether or not that lease was genuine, her willingness to enter into it showed a degree of trust in Roy's judgment at this period which is quite inconsistent with the lack of trust displayed in the November 1991 letter.
66. The third circumstance, related to the first, is the (almost) complete absence of any reference to the documents during the whole intervening period between November 1991 when they were allegedly written and June 1997 when they were first relied on. During the whole of this period they are supposed to have reposed peacefully in the plastic sleeves in the ring binder in which Roy and the claimant kept documents relating to the terms of their agency with the defendant. At least from the date when the notice of termination was served, and Roy began to make his claim, they would have been plainly relevant to be seen by any adviser. They were potentially an obstacle to Roy making his claim in the way he did, but they would also have been a useful piece of corroboration as to the existence of the Amended Terms. For them not to have featured at all, one has to assume that they must have been considered by Roy but then suppressed by him in his communications with his legal advisors because of the difficulties (as to the non-joinder of the claimant) to which they gave rise. Roy claimed that he had shown them to Mr Eppel and to Mr Lawson-Cruttenden, but that they were irrelevant to the "personal" claim he was making. Plainly neither of these two gentlemen can have viewed Roy's claim as anything other than a claim as proprietor of the agency. It is inconceivable that either was shown the documents. Mr Lawson-Cruttenden denied having seen them. Mr Eppel did not give evidence.
67. The only documentary reference to the November letter is to be found in the June 1993 letter. That letter was supposedly written by the claimant in order to explain why she would not sign the new (1992) Agency Agreement (see paragraphs 37 and 38 above). The June 1993 letter was in the following terms:

"7 June 1993

NEW AGENCY AGREEMENT

Regards from Tina. Further to your meeting of 2/6/93 with Roy and his subsequent telephone conversation with Jayne Anne; I enclose as requested by you the FULL original Agency Agreement including ALL the additions and amendments agreed between the two parties - (Seamus/Roy, Feb/March '89).

In your New Agency Agreement that you want us to accept, you refer to "the original letter of appointment 20th June 1991" (Clause 2.5). This is wrong as you would see from the enclosed original Agreement including the addition and amendments, that this agreement was entered into on 23rd March '89. After this the revised Letter of Appointment to incorporate the Partnership was signed by us on 11/11/'91.

Roy has already explained to Jayne that he cannot sign the New Agency Agreement. As you are aware we have a special Agreement with Norwich Union for our Agency. James assures me that this Agreement is unique and no other Tied Agent has such an Agreement. If accepted the New Agency Agreement will adversely affect us in many areas including initial and renewal commission - (Clause 6.3 & 6.4). At the moment we are guaranteed initial commission @ 145% LAUTRO and this same enhanced renewal commission for the life of the policy irrespective of any termination. As you know this is an important issue for me and our children. Renewal commission is our bread and butter in case of any unforeseen happenings to Roy. Enhanced, initial and renewal commission is even more important to me as Jairaj have affected many Life and Investments plans and other such contracts where planholders can affect further annual index linked increased and on which we would receive the additional enhanced initial and renewal commission as paid now.

You will also see that there are many other additional benefits that we will have to sacrifice if we accept this new Agency Agreement. Hence please note I cannot accept this New Agreement and if this is not acceptable to you, please notify me personally in writing immediately.

Thank you

Tina Amin"

68. It will be noted that the letter refers only to an 11 November 1991 acceptance of a revised letter of appointment. It does not in fact refer in terms to the November 1991 letter itself. Whether or not the June 1993 letter is a fabrication, this fact seems odd to me. Whatever the significance of that, the terms of this letter are strange in at least two further respects. The opening paragraph suggests that at the meeting on 2 June 1993 or in the subsequent telephone conversation with Ms Ghadia a request had been made to see the 1989 Amended Terms. The contemporary minutes reveal that the request which had been made related to a specific agreement which Roy relied on as having been reached with Mr Kehoe as to the provision of computer hardware. As at 9 June, when the minutes of the meeting were revised by Roy and Mr Pritchard, Roy had still not provided such a document. The minutes of that review meeting also record the fact of a telephone conversation between Roy and Ms Ghadia on 3 June. The first paragraph of the June 1993 letter therefore strikes a false note in this context. Secondly, the claimant's stance in the June 1993 letter was inconsistent with that being taken by Roy himself. Roy's position was that he would not sign the New Agency Agreement until the question of compensation then under discussion had been resolved. He allowed Ms Ghadia to believe that he would be prepared to sign it once that question had been resolved. This was a comprehensible negotiating stance. It was, however, subverted if the claimant's stated position was that she (or perhaps they) could never sign the new agreement.
69. There is also the oddity of the claimant introducing, at this stage of the relationship, the topic of the importance to her of renewal commission continuing "irrespective of any termination" and "in case of any unforeseen happenings to Roy."
70. Against a background where I have to entertain seriously the proposition that the disputed November 1991 documents were fabricated after the event, I cannot place any reliance on the June 1993 letter as corroborating their authenticity. If the former were fabricated, the latter could equally have been.
71. A fourth circumstance was less telling. The expert forensic evidence pointed to the probability that the examined photocopies of the disputed documents had not been made on the same photocopier as other documents in the chronological sequence of which they formed part. However, one innocent explanation of this fact lay in the possibility that, when first photocopied for use in the present proceedings in June 1997, the June 1997 photocopies had been placed in the claimant's files. The claimant was therefore entirely happy to accept that what had been subjected to expert examination were 1997 photocopies. In those circumstances I was unable to place any weight on this aspect of the expert's report in the scales against the authenticity of the documents.
72. The direct evidence supporting the authenticity both of the November 1991 documents and the June 1993 letter comprised, apart from the direct oral and written evidence of the claimant and Roy, the following:

(1) the typography of the documents; and

(2) evidence from Mr Waterer that he had seen the November 1991 letter on 22 November 1996.

73. As to typography, the expert forensic evidence of Dr Audrey Giles (given on the joint instructions of the defendant and the claimant) was that the typestyle in the documents was produced by the same equipment which had produced other letters from the relevant period. The relevant period for this purpose was the period prior to the removal by the defendant of its supplied equipment from Jairaj following the termination of the agency. Dr Giles was informed that this happened at the end of 1994. In fact it appears to have happened on 23 January 1995 but nothing turns on this. It is the case that no letter subsequent to that date emanating from Jairaj has the same typestyle or (with the exception of the letter referred to at paragraph 40 above) the same header and footer as correspondence from the relevant period. Dr Giles could not tell whether the typestyle had been generated by the computer program or by the printer. She thought that the possibility that another wordprocessor package could be used to produce a similar typestyle

"cannot be excluded, although, in general, creation of a similar typestyle by another combination of word processor and printer would be difficult and would involve an intimate appreciation of such unobtrusive features such as serif length and curvature of the individual character forms. I cannot, on the basis of the copy documents available, be completely certain that the typestyle of the questioned documents is precisely the same as that of the comparison documents."

74. On that evidence it seems to me more probable than not that the questioned documents were produced using the "same equipment" as the comparison documents. All this means, however, is that a fabricator of the questioned documents would have had to avail him or herself of either, or possibly both, of the computer software and printer model which had produced the comparison documents. There was no secret about what these had been. The word processing package used was IBM DisplayWrite 4 (Version 2). The printers supplied by the defendant to its appointed representative had been IBM 4216 or 4019E Laser Printers. I have no reason to suppose that a person who was minded to fabricate the questioned documents in 1997 would not have been able to acquire (if he or she did not already possess) copies of the relevant software or (if that were necessary) access to an appropriate laser printer. I cannot therefore accept the claimant's case that it would have been impossible to fabricate the documents if so minded.
75. The evidence of Mr Waterer was that he had unexpectedly been invited to Jalviram on 22 November 1996, and on that occasion was shown by Roy copies of the October 1991 letter signed by Roy and the claimant and of the November 1991 letter. He told me that he was surprised to have been invited to Jalviram to see both Roy and the claimant. On arrival it emerged that Roy wanted to tell him about the fact that he and the claimant had decided to divorce. The information came as a surprise to Mr Waterer. Roy emphasised to him that, against the background of his impending divorce, he now wished to settle his claim against the defendant. Roy showed him his letter to Mr Scott of 8 November, although Mr Waterer did not read that. He says that Roy also showed him the disputed 1991 documents. Explaining how he could remember this so clearly years later he said "because of the fact that it raised a partnership rather than Mr Amin merely trading in his own right as Jairaj Insurance Services, I do recall it quite clearly." (11 May, p897).
76. I did not find the evidence of Mr Waterer reliable in this respect. I have no doubt that he was an honest witness. Formerly a partner in the firm of MacFarlanes, solicitors, he had left that job in May 1992 in order to spend more time acting as an elder in the church at which he and his family then worshipped. Since that time he has acted as a self-employed consultant. His recollections of other matters were not faultless, and his written evidence contained an unfortunate tendency to gloss what recollections he did have with a conclusion which showed partiality in favour of Roy and the claimant. As I have already indicated (paragraph 44 above) I was unable to accept the conclusions he was later to draw as to the effect of what had been said at the meeting on 27 September 1995. His first witness statement was completely silent on the question of the disputed November 1991 documents. Before making his second he had been copied the disputed documents and (I infer) asked to confirm that he had been shown them by Roy at the meeting on 22 November 1996. It was then (in March 2000) that he proffered a witness statement confirming the recollection. It is not clear whether he was then told that there was a potential issue as to the existence of these documents in November 1996.
77. In my judgment the probabilities are that he was shown documents evidencing a partnership at the meeting, but that the documents he was shown did not include the November 1991 letter. In oral evidence he described the two letters which he was shown as "short". I would not myself so describe the November 1991 letter. M Waterer's evidence was that the knowledge he acquired from reading the letters led him to believe that, if Mr Amin's proceedings were to continue, the pleadings would require amendment (Transcript p.900). He also told me that he was pleased, when he saw a copy of Mr Amin's letter to Mr Scott dated 20 December 1996, to see that "the partnership issue was out in the open and no-one could claim that they hadn't seen it" (Transcript p. 913). His attitude was that, had he been in the defendant's shoes, he as a corporate lawyer would have wanted "to close that one carefully" (Transcript p. 919).
78. All this seems to me much more consistent with Mr Waterer having been shown documents in November that evidenced a simple contract between the defendant on the one hand and the claimant and Roy as partners on the other hand. Such documents (which might have been the letter of 7 November and the unsigned copy of the October 1991 letter) might indeed have led Mr Waterer to have the thoughts he did about amendment of the pleadings, and about the letter of 20 December 1996 giving notice to the defendant of the partnership issue. But the November 1991 letter went much further. It suggested the existence of a separate contract between the defendant and the claimant. It also suggested that there had been a potential conflict between Roy and the claimant (with the added revelation that the relationship of trust between Roy and the claimant had for a long period been quite other than Mr Waterer had supposed it to be). It further cast doubt on Roy's ability (without the claimant's written consent) to come to terms with the defendant. I find it extremely difficult to see how an honest and competent lawyer, with the terms of the November 1991 letter in mind, could have continued to act for Roy in helping him to engineer a settlement with the defendant which did not have the support of the claimant. It was in fact Mr Waterer who made the final telephone call to Mr Scott referred to in Mr Scott's letter of 17 December 1996. If at that time he had the November 1991 letter in mind, he would have known that Mr Scott was acting under the mistaken belief that Roy had authority to conclude the agreement which he, Mr Waterer, was communicating. He would also have known that the effect of that agreement was potentially damaging to the claimant. Since I have no reason to suppose Mr Waterer to be otherwise than honest and competent, the explanation for his having acted as he did is, in my judgment, that he did not then have the terms of the November 1991 letter in mind, for the very simple reason that he had neither read nor been shown it.
79. In support of the authenticity of the disputed documents Mrs Giret for the claimant relied, finally, on the evidence of Roy and the claimant, and what she submitted were the inherent probabilities of the situation. As to the latter, why, she asked rhetorically, would Roy and the claimant not have signed and returned the October letter? From their point of view, however, the better question seems to me, why should they have done. Both prized the special relationship they thought they enjoyed as a result of the initial understandings with Mr Kehoe. Roy, in particular, was exasperated by the whole process of "re-referencing" which led ultimately to the issue of the October 1991 letter. The covering letter of 7 November 1991 sufficiently evidenced for them the defendant's acceptance of their references. No terms and conditions were, it appears, in fact enclosed with the October 1991 letter. In the absence of a chasing letter from the defendant there was no reason not to let sleeping dogs lie. It is entirely consistent with such an attitude that Roy and the claimant subsequently resisted signing up, as requested, to the new (1992) agency agreement in the following years. As to whether the claimant was the type of person to indulge in the fabrication of documentary evidence, Mrs Giret relied on the glowing testimonial to her character given by Mr Freeman (Roy's solicitor in 1989 and during the litigation with Barclays) in his witness statement. Mr Freeman was an excellent witness. I regret to say, however, that in a number of instances I found the claimant to be mendacious. She was clearly not telling the truth when she claimed ever to have had a genuine belief that it was only she, and not Roy, whose appointed representative status had been terminated (see paragraph 39). I could not believe her when she maintained that her understanding had always been that Roy's claim against the defendant had been a "personal" claim and not on behalf of the agency. She prevaricated over when, and how, her partnership with Roy had been determined. She could give no plausible account of why she had never been asked to answer her liability under the Kayunga lease. She was plainly not telling the truth when she allowed Mr Rahman to assert on her behalf (and subsequently made an affidavit herself) that she knew nothing in the spring of 1997 about Roy's settlement of his claim against the defendant. I could not, in short, accept her as a witness of truth. Nor could I accept Roy as such, particularly in his repeated denials that he knew nothing about the way in which his advisers had formulated his claim, his assertions that he had always impressed on them the need to confine it to the "personal" claim so as not to impinge on the partnership's claim, and his assertions that Mr Eppel and Mr Lawson-Cruttenden had been supplied with the disputed November 1991 documentation. In short the evidence of Roy and the claimant that the November 1991 documentation was authentic did not, in my judgment, suffice to outweigh the other evidence which pointed to fabrication. The only other player in the drama whose evidence would have been helpful and plainly relevant on the question, Mr Rahman, was not called. No explanation was ventured by or on behalf of the claimant for his unavailability.
80. My conclusion is that I am not satisfied, on a balance of probabilities, that the disputed November 1991 documents were genuine. That way of putting it assumes that the onus of proving authenticity lies on the claimant. If the onus lies on the defendant to prove fabrication I am equally satisfied that, on the balance of probabilities, the disputed documents were fabricated, and in coming to that conclusion I have kept well in mind the strength of evidence required to support such a serious allegation (see Re H and others (Minors) [1996] AC 563, esp. per Lord Nicholls at pp 586-587).
81. As is plain from above, my conclusion is that this was not only a misguided claim from start to finish (see paragraph 51 above) but also a mischievous one. It is unnecessary on these findings for me to deal with Miss Reed's alternative case that the claimant is estopped from bringing this claim, either as "privy" to Roy's settlement (see Carl Zeiss Stifting v Raynor & Keeler Ltd [1967] 1 AC 853 at pp. 910E and 936C) or under the wider doctrine in Henderson v Henderson (1843) 3 Hare 100).