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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> I-Remit Incorporated v Far East Express Remittance Ltd [2006] EWHC 2051 (Ch) (01 August 2006)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2006/2051.html
Cite as: [2006] EWHC 2051 (Ch)
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| I-Remit Incorporated |
Claimant |
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| - and - |
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| Far East Express Remittance Ltd |
Defendant |
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Philip Galway-Cooper (instructed by Lee & Tallamy) for the Defendant
Hearing dates: 20, 21, 22, 23, 24, 27 February 2006 and 10, 21, 22, 23, 28, 29 March and 2, 3 May 2006
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Crown Copyright ©
- Many citizens of the Philippines work abroad and remit sums from their earnings to family members and others in the Philippines. Businesses operate in the countries where they work for the collection of these sums and their remittance to the Philippines, where businesses operate for their receipt and distribution.
- The claimant, I-Remit Inc (I-Remit), is a company incorporated in the Philippines which carries on business as a collector, processor and distributor of remittances from outside the Philippines to payees in the Philippines and elsewhere. The defendant, Far East Express Remittance Limited (Feer), is an English-incorporated company which carries on the business of collecting and transferring remittances from Filipino clients, mainly nurses, working in the United Kingdom. From July 2001 to mid – 2003, Feer remitted sums collected by it in the UK to I-Remit for distribution in the Philippines. In the period of July 2001 to November 2002, which is the period relevant to this case, over £13 million was transferred by Feer to I-Remit.
- This case concerns a dispute as to the amount due between I-Remit and Feer. The issue was first raised towards the end of 2002 when I-Remit provided schedules to Feer showing that Feer owed £458,861 in respect of payments made in the Philippines on Feer's instructions for which the funds had not been remitted. Feer disputed that it owed any sum and in July 2003 the parties agreed to instruct a firm of accountants to prepare a reconciliation of the account between them. They agreed that the accountants' determination of the amount due (if any) would be final and binding on them, save in the case of manifest error. It was agreed that the accountants would rely on a database of transactions in respect of which I-Remit had received instructions from Feer, taken from I-Remit's computer records. I-Remit warranted that it was accurate. In July 2004 the accountants produced their report, showing a sum of £416,820.61 as due from Feer to I-Remit.
- Feer disputed this conclusion on a number of bases, but principally on the grounds that the database was inaccurate and included transactions for which it had not given instructions.
- In this action I-Remit claims a sum of £379,462.52 which is the figure certified by the accountants, less certain adjustments which are not in issue. Feer contends that none of this sum is due and counterclaims for a total of £348,923.81, principally comprising unrelated payments of just over £237,000 made in error to I-Remit and a sum of over £102,000 in respect of service charges. I-Remit denies the counterclaim in its entirety.
- I-Remit was established in March 2001 by individuals who had previously worked in similar businesses. In July 2002 it was acquired by new owners who installed a new management team. The new management undertook an audit of transactions with overseas remittance companies (foreign tie-ups) which resulted in the claim against Feer.
- Feer is owned by Lalaine Ubando and her husband Adan Ubando, but it is managed by Mrs Ubando, with her husband playing little part in the business. The business was started by them in 1999 and Feer was incorporated to continue it from February 2001. Mr and Mrs Ubando are themselves from the Philippines. For some years she worked in Hong Kong for Peter Kemp, a senior partner of a firm of solicitors there, looking after his children and home. When he moved back to England in 1995, Mr and Mrs Ubando came with him and lived at his house in Sevenoaks. She continued to look after the children and the house, while Mr Ubando worked as his driver and odd-job man.
- As the children grew older and were at school full-time, Mrs Ubando had more time to do other things. She started the remittance business and her husband started a business selling phonecards, for cheap overseas calls, to ex-patriate Filipinos in the UK. They also at some point started a travel agency and a courier business, although the details of these in the evidence are scant. These various businesses were carried on by them from home. They continued to live at Mr Kemp's property until June 2003 when they moved to Orpington. Feer now also has its own remittance business in the Philippines, with agents in the UK, Ireland and Sweden and a branch in Hong Kong, but it did not have them during the period relevant to this case.
- The remittance business continued in a relatively small way until shortly after the tie-up with I-Remit in July 2001 when it began to expand rapidly. By way of illustration, there were 724 transactions with a value of nearly £480,000 in November 2001, but over 2,000 transactions with a value of over £1 million in April 2002. These figures are taken from I-Remit's disputed records, but there is no issue as to the trend and general volume of transactions. Although Mrs Ubando's evidence was somewhat vague on this, it appears that she stopped full-time work for Mr Kemp and his family in about May 2001, but continued on a part-time basis until some time in 2002. From about December 2001, Mrs Ubando employed one or more people on a part-time basis to help in the business.
- Feer's original contact with I-Remit came through Mr Ocampo. He had previously worked for a distributor used by Feer, and one of his responsibilities for I-Remit was to establish its business in the UK. In July 2001 Mrs Ubando and Mr Ocampo had telephone discussions about establishing a distribution arrangement between Feer and I-Remit.
- Mr Ocampo visited Mrs Ubando in Sevenoaks in July 2001. She signed, on behalf of Feer, the distribution agreement which governed the arrangement with I-Remit. It was subsequently notarised in the Philippines. It is written in English, but is governed by the laws of the Philippines. The parties submitted to the non-exclusive jurisdiction of the courts of the Philippines. No issue of jurisdiction or Philippine law arises. Although the agreement is expressly non-exclusive, Feer did not use any other distribution company in the Philippines during the period relevant to this case.
- Clause 1 of the agreement provided:
- Clause 2 provided that remittance details could be transmitted by, among other methods, e-mail or internet online access to the I-Remit system. Clause 3.2 provided that, unless Feer maintained a US dollar or Philippines peso account with an iBank branch, it should deposit "the day's collection and applicable delivery charges" to I-Remit's account in the UK. In fact, for a period from July 2001, I-Remit had no account in the UK and payments by Feer were made to Mr Ocampo's account with Barclays Bank. In due course an account was opened with Barclays Bank in the UK in the name of an English subsidiary of I-Remit. Nothing turns on this. Transfers were made by on-line transfer from Feer's account with Barclays Bank and by CHAPS transfer from its accounts with National Westminster Bank and HSBC.
- Clause 3.3 provided:
- The agreement sets out the various modes of delivery of remittances in the Philippines and the times allowed for delivery, ranging from on-line bank transfer to physical delivery to the beneficiary's address. I shall in passing mention clause 4.7, although in the light of the way in which the dispute has developed and the agreement for the accountants' reconciliation, it has not been relied on by I-Remit:
- Mr Galway-Cooper, for Feer, submitted that by the agreement I-Remit became Feer's agent for the distribution of remittances in the Philippines. Conversely, in correspondence, I-Remit had from time to time asserted that Feer was its agent. Even if either were correct, it would have no impact on the issues in this case and none was suggested. In my judgment, the agreement created no principal/agent relationship either way, as clause 14 of the agreement appears to confirm.
- It is convenient here to deal with a submission made on behalf of Feer as to the effect of clauses 3.3 and 4 of the agreement. Clause 3.3 provided that unless the remittance amount and delivery charge were paid to I-Remit, the latter "shall not be under any obligation to distribute any amounts, notwithstanding any instructions by [Feer]." Clause 4 imposed an obligation on I-Remit to distribute remittances upon the fulfilment of the stated conditions, including payment to I-Remit of the remittance amounts and its charges. It was submitted that on the true construction of clauses 3.3 and 4, I-Remit was not entitled to distribute any sums until the conditions, including payment by Feer to it, had been fulfilled. On this basis, even if I-Remit was right that it had received instructions, but it had not received the funds, for the relevant remittances, its claim against Feer would fail. This is not in my view sustainable. It re-writes the provisions of the agreement. I-Remit contracted to protect its position by providing that it was under no obligation to distribute a remittance, despite receiving instructions from Feer, unless it had received the remittance. A provision that I-Remit was not obliged to distribute without prior receipt of the remittance is not the same as a provision that it is not entitled to do so. If I-Remit distributed a remittance without instructions, it would not of course normally have a claim against Feer, but in my view the agreement does not prohibit I-Remit from making a distribution, if it has been instructed to do so by Feer, without first receiving the funds. It may be noted that this was not a point made on Feer's behalf when it agreed to a final and binding reconciliation of the accounts.
- I have earlier mentioned that the issue of sums due to I-Remit in respect of remittances said to have been distributed on Feer's instructions but without the receipt of matching funds was raised towards the end of 2002. I-Remit prepared a document entitled Accounts Receivable (the accounts receivable) covering the period from 17 July 2001 to 25 November 2002. It showed that over the period there had been a total of 30,743 transactions with an aggregate value of £13,735,636.75 and, in addition, I-Remit's service charges totalling £36,951.68. Taking account of exchange differences it showed a sum due to I-Remit of £458,861.66, calculated as the difference between the amount which should have been paid in respect of instructions given to I-Remit and processed by it and the total amount paid over by Feer.
- The accounts receivable, which ran to over 900 pages including its supporting schedules of daily transaction reports, was provided to Feer in November 2002. Feer disputed that any amount was due. Discussions and correspondence between the parties, and from March 2003 between their solicitors, continued in the months that followed.
- A meeting was held on 13 July 2003 with a view to reaching some agreement. It was attended, amongst others, by Mr and Mrs Ubando, Mr Choa and the parties' solicitors. It was agreed, as recorded in a minute prepared by Mr Choa, that the data on Feer's transactions held on I-Remit's computer system would be uploaded onto a CD-Rom under the supervision of an IT expert appointed by Feer and acceptable to I-Remit, who would witness and confirm the veracity of the data. The CD-Rom would be provided to Feer and its solicitor. The CD-Rom, together with copies of both parties' bank statements, all Feer's official receipts and anti-money laundering reports and the accounts receivable, were to be submitted to an accountant agreed by the parties. It should be noted that the transactions included in the CD-Rom and in the accounts receivable would not be identical, because the former would record all transactions which, according to I-Remit's electronic records, had been released to it, while the accounts receivable excluded transactions which had been released but subsequently cancelled before they had been processed by I-Remit for payment.
- Shortly after the meeting, the parties agreed to appoint Whitmarsh Sterland, a firm of chartered accountants suggested by Feer's solicitor. Whitmarsh Sterland's terms of appointment were set out in their letter dated 29 July 2003 and counter-signed by the parties' solicitors. The letter recorded their engagement as being to provide a reconciliation of the transactions between Feer and I-Remit for the period 15 July 2001 to 25 November 2002, with the purpose being to confirm the net balance owed between them.
- Feer initially nominated two representatives to attend the uploading. As they were ex-employees of I-Remit, I-Remit objected and in their place Feer appointed Ryan Mercado and John Paul Ferrer. Mr Mercado had just joined Feer's Manila office as an IT technical support officer. They attended I-Remit's offices on 19 September 2003. Sonia Lescano was responsible for the arrangements for I-Remit and she had in fact uploaded the data onto a CD-Rom, of which she had made two copies, before the arrival of Mr Mercado and Mr Ferrer. The process had taken over one and a half hours. Feer filed a witness statement of Mr Mercado for these proceedings in which he stated:
- Mr Mercado was not made available for cross examination either in court or by videolink.
- Miss Lescano provided a witness statement and gave oral evidence. Although she was for a long time reluctant to accept in oral evidence that she had known that Mr Mercado and Mr Ferrer were to witness the uploading, despite her written evidence to that effect, I found her overall to be a reliable witness who gave straightforward and credible evidence. Her evidence, which I accept, is that Feer's representatives were able to test the data on the CD-Rom. This involved opening it on one screen and opening I-Remit's database on another screen. Feer's representatives selected transactions at random from the CD-Rom and she searched for them on the database. In each case the transactions matched. Each copy of the CD-Rom was tested in the same way. The process took about 20 minutes. Feer's representatives raised no issues or objections and they appeared to be satisfied with the process.
- Miss Lescano's clear evidence was that, after Mr Mercado had signed each of the CD-Roms, he was given one of them and took it away with him. This was confirmed by Mrs Ubando in one of her statements and Mr Mercado does not say otherwise in his statement. The letter dated 10 September 2003 quoted below confirms that the data was provided to Feer. However, in her oral evidence, Mrs Ubando repeatedly insisted that Mr Mercado was not given a copy of the CD-Rom. Her basis for this evidence was that, if he had, he would have sent it to her. I have no hesitation in preferring the evidence of Miss Lescano.
- Feer, if not Mrs Ubando herself, therefore had in its possession a copy of the CD-Rom from 23 September 2003. Moreover, according to Mrs Ubando's own oral evidence, Whitmarsh Sterland e-mailed to her the contents of the CD-Rom. Nonetheless, Feer raised no objection to its contents until nearly a year later, after Whitmarsh Sterland had produced its report. Although, contrary to the agreement, Feer's representatives did not witness the uploading, no objection was raised with I-Remit at any time until these proceedings. It was not put to Miss Lescano that she had done anything but upload the data from I-Remit's system and counsel for Feer disclaimed any suggestion that she had in any way interfered with the data.
- I-Remit provided a letter to Feer dated 10 September 2003 as regards the data on the CD-Rom. It read:
- One of the CD-Roms was sent directly to Whitmarsh Sterland. By an exchange of e-mails between solicitors on 23 and 24 September 2003, the parties agreed that Whitmarsh Sterland's report would be final and binding, subject to manifest error. Whitmarsh Sterland's work progressed slowly, principally because, as they explained at a meeting with I-Remit's representatives on 24 February 2004, of the significant gaps in the records supplied by Feer.
- Whitmarsh Sterland produced their report on 30 July 2004. Their conclusion was that a balance of £416,820.16 was owed by Feer to I-Remit as at 25 November 2002. This was expressed to be subject to seven assumptions and factors affecting the conclusion, as follows:
- Feer refused to accept the conclusion of Whitmarsh Sterland and on 18 August 2004 I-Remit commenced the present proceedings. Feer served its defence on 23 September 2004. Apart from the point of construction of clauses 3.3 and 4.1 of the agreement which I have already addressed, there were two positive defences pleaded. First, Whitmarsh Sterland's report was not "capable of being considered final and is therefore not binding upon the parties", on the basis that the conclusion was stated to be affected by the assumptions and factors listed in paragraph 7.2 of the report. This did not feature in counsel's written or oral submissions at trial and is not in my judgment well-founded. The report was clearly intended by Whitmarsh Sterland to contain its final conclusion. The factors and assumptions are not such as to mean that the report is not in a form contemplated by the parties and agreed by them to be final and binding. In fact, by the time of the trial, there was no controversy about any of the factors with the exception of the first (the CD-Rom contained a complete and accurate record of the transactions between the parties) which was not an assumption but was separately the subject of the warranty and representation given by I-Remit in its letter dated 10 September 2003.
- Secondly, it was pleaded that the conclusion of the report was based on manifest error, by reason of the matters listed in paragraph 7.2. Only the "assumption" that the data on the CD-Rom was accurate was relied on at the trial, as to which the original pleading was simply that Feer did not accept that the data was a complete and accurate record. By an amendment to the defence made in March 2005, it was further alleged that the CD-Rom contained cancelled or duplicated transactions in a total sum of £77,305.70 as particularised in an annex to the defence. The annex was later replaced by a new annex which alleged a total of £23,235 of cancelled transactions and £56,377 of duplicated transactions (with a further £4,418 where no details of a duplicate were given). The other amendment made in March 2005 alleged that Feer had not underpaid I-Remit but had overpaid it, by paying gross service charges and, in error, payments received for phonecard sales. It alleged that there had been some 27,857 transactions with a value of £13,180,674.72 and that Feer had paid £13,417,732.83 to I-Remit. It claimed repayment of the difference (the phonecard money) and payment of its net service charges.
- The claim that alleged errors in the data on the CD-Rom constituted a manifest error in the Whitmarsh Sterland report is not in my judgment sustainable. As an exception to an agreement that an expert's determination should be final and binding, a manifest error is one which is plain and which has been made in the determination, though this need not be the expert's fault (for example, the parties might have submitted the wrong set of figures). In this case, the parties' agreement was that the experts should proceed on the basis of the data on the CD-Rom. A manifest error would have been a plain failure by them to do so. Any inaccuracy in the data on the CD-Rom was the subject of I-Remit's representation and warranty in its letter dated 10 September 2003.
- Surprisingly, no claim was based on the representation and warranty contained in I-Remit's letter dated 10 September 2003, until amendments to the defence were proposed in the course of the trial. They were not opposed by I-Remit and I gave permission for the defence to be amended. It was now alleged that the database on the CD-Rom was wrong because it contained details of 2,886 transactions for which Feer did not give instructions for distribution. I-Remit accepts that, if well-founded, this would constitute a breach of the representation and warranty.
- Counsel for Feer accepted that the onus lay on Feer to establish that the database on the CD-Rom was inaccurate, in order to establish either manifest error in Whitmarsh Sterland's report or a breach of the warranty. The accuracy of the database was the principal issue at the trial.
- A subsidiary issue between the parties was the total amount paid by Feer to I-Remit during the relevant period. I-Remit's case is that it received £13,330,631, while Feer alleges that it paid £13,418,462, a difference of £87,831. Feer's schedule included a payment stated in error to be £44,500 when in fact it was only £4,455. A further five payments totalling £40,500 which were in Feer's schedule were in fact not payments to I-Remit. These errors in Feer's schedule largely explain the difference. No errors were suggested in I-Remit's schedule and I find that the payments made by Feer to I-Remit totalled the sum of £13,330,631.
- Before dealing with the principal issue of the database's accuracy, it is necessary to describe the procedures whereby instructions were given, and remittances paid, by Feer to I-Remit and the various records of transactions which were in evidence. I will also comment generally on the witnesses.
- For the first few weeks of the tie-up between Feer and I-Remit, details of the transactions and instructions were sent by e-mail in Excel spreadsheets. No issue arises during that short period and it is unnecessary to consider it further.
- From 23 August 2001 I-Remit introduced an on-line, web-based system. A tie-up, such as Feer, would log in, using its user name and password. The main menu would offer a number of options, including a new remittance transaction. If that option were selected, a remittance application form (RAF) appeared on screen, in which the Feer operator would encode details of the remitter, the beneficiary, the amount to be remitted in both sterling and pesos, and the mode of delivery. Once completed, the operator would click the save button. This would automatically generate a unique RAF number. RAF numbers had a prefix which identified the foreign remittance company ("FEERL" in this case) and were a separate sequence for each remittance company. Each transaction encoded by Feer was given a sequential number in the order in which it was saved. Feer accepted that any possibility of later inserting a transaction at an earlier point in the sequence could be discounted for all practical purposes. At this point, although the details had been entered on I-Remit's system, it was not accessible by I-Remit on its local system in Manila and no instruction for distribution had been given. Two further steps were required. Each transaction had to be approved and then released, again by clicking on the appropriate buttons. "Release" was the instruction to distribute. Transactions were normally released in batches. Each released batch would automatically be given a unique release transmitted report number (RTN). RTN's were generated sequentially in respect of releases from all foreign tie-ups. Unlike RAF numbers there was not a unique sequence for each tie-up. Again, Feer accepted that there was no realistic possibility of later inserting released transactions into an earlier part of the sequence.
- Once released, the transactions could no longer be changed or edited by the tie-up. If a tie-up wished to amend or cancel a transaction, it had to e-mail the details to I-Remit. If by then the remittance had been distributed, it would of course be too late, but I-Remit would act on a request if it was received in time.
- A transaction might well be encoded, and given its RAF number, on one day but not released until the following or a later day. As an additional complication, the 8 hour time difference between GMT and Manila meant that transactions released after 4pm in England (5pm during British summer time) were therefore received in Manila on the following day.
- I-Remit's computer system was divided into a foreign and a local system. The foreign system was accessible by each foreign tie-up, limited to its own transactions. The local system was accessible only by I-Remit. Transactions appeared on the local system only once they were released by the tie-up. Released transactions from all tie-ups were therefore accessible to I-Remit on the local system. The operations department printed off a transmittal report and instructions were given for delivery in the mode specified by the tie-up. When the operations department received confirmation of delivery, the transaction was recorded as completed in the local system by reference to the RAF number. This automatically generated the transaction's delivery status in the foreign system, which could be seen by the tie-up. Confirmation of delivery was received by I-Remit by means of a fax report from the couriers in the case of door to door deliveries, with a cash acknowledgment receipt signed by the beneficiary following later and, in the case of bank deposits, by validated deposit slips received by fax on the same day and followed within a day or two by the original.
- It was a matter for the foreign tie-up to carry out its own checks as to whether it had received funds from the remitter before releasing a transaction. Feer's system in this regard is one of the central issues, to which I shall return. I shall first describe briefly the various types of record which were in evidence.
- Once a transaction was encoded and saved by the tie-up, the system would automatically generate an official receipt for that transaction, which could be printed off by the tie-up and provided to the client. Each receipt would have printed on it the RAF number, the remitter's name and address, the remittance amount in sterling, Feer's service charge in sterling, the net remittance proceeds in pesos, the beneficiary's name and the details of his bank or address depending on the delivery mode, which was also printed on the receipt. There was a field for remarks. There are in evidence a large number of official receipts of Feer's transactions which were printed off by Feer, but they are not a complete set.
- Other records in evidence are anti-money laundering reports and daily settlement reports. The anti-money laundering reports, known formally as the remittance transaction register, were generated by the system for the tie-up. They were introduced with effect from 1 March 2002 and could be sent to, or made available for inspection by, HM Customs and Excise or similar authorities in other countries. They recorded in respect of each released transaction, the date of release, the RAF number, the name and address of the remitters, the amount of the remittance and Feer's service charge in sterling and pesos and the name of the beneficiary and, if applicable, the bank to which payment was made. The reports disclosed by Feer were not complete. In particular, the reports for 6 July to 25 July 2002 and for 7 August to 1 October 2002 are missing. Daily settlement reports were introduced by I-Remit in late August or early September 2002 as a check on released transactions. Feer, like other tie-ups, was required each day to complete the details of released transactions on a standard form report available on the system, print it off and fax it to I-Remit in Manila. There is a complete set of daily settlement reports in evidence from 30 August to 25 November 2002, except only for 7 October.
- There are some spiral-bound notebooks disclosed by Feer which contain handwritten details of transactions. They are by no means complete. I refer later to these in more detail.
- There are also in evidence the accounts receivable produced by I-Remit in November 2002. There are back-up schedules, running to over 900 pages, which give a daily breakdown of each transaction included in the accounts receivable. Finally, there is a print-out of the data on the CD-Rom. In respect of each transaction, it gives the RAF number, the date it was encoded, the RTN, the amount (in sterling and pesos), the remitter's name, address and telephone number, the beneficiary's name and, in most cases, their address or bank details.
- I-Remit's witnesses were Bansan Choa, who is a certified public accountant in the Philippines and who was appointed vice-chairman of I-Remit in July 2002, Sonia Lescano, who is head of IT at I-Remit and has worked there since September 2002, and Roderick Ocampo, who was part of the original management team as head of marketing until he left in October 2002. Each gave oral evidence, Mr Ocampo by video-link from Manila. In addition, hearsay notices were given in respect of the statements of three witnesses: Joey Chua, who has worked in various capacities at I-Remit since May 2001, Ben Tiu, chairman of I-Remit from July 2002 to August 2004, and Elizabeth Yao, head of the service and operations division of I-Remit since August 2002. They all live in the Philippines and their statements were largely uncontroversial. Hearsay notices were given in respect of them and Feer did not request their attendance for cross-examination.
- I have already commented on Miss Lescano and I will comment in detail on the evidence of the other witnesses as and when necessary. Mr Choa had no personal knowledge of the dealings between the parties until August 2002. He had analysed much of the historical records and data and I found him to be a conscientious and careful witness. Mr Ocampo gave his evidence without much recent consideration of the relevant events and period. Although he was employed by I-Remit until October 2002, he had assisted Mrs Ubando during 2003 in her dealings with I-Remit. Although there was some confusion in his evidence, particularly on whether specific sets of records were prepared according to English or Manila time, I was generally satisfied as to the reliability of his evidence.
- Mrs Ubando was Feer's principal witness. Her husband also gave oral evidence. One further witness was to have given evidence by video-link from Manila, but in the event did not do so. There were statements from three further witnesses, but they did not attend for cross-examination.
- Mrs Ubando gave evidence over a number of days, separated on occasions by several weeks. She was a resilient and resourceful witness, but not in my judgment a reliable one. On many important issues, her evidence would change to meet difficulties when confronted with documents or her own earlier evidence. As will appear, I found her evidence implausible on some central questions. It was urged on me that English is not her first language, which may have affected her understanding of questions and the way in which she expressed her answers, and that she was of limited education and had no previous business experience. I have made what I hope is full allowance for these factors. However, my clear impression was that she generally had an acute understanding of the questions put to her and her resourcefulness was in part shown by her returning with further evidence to questions, large and small, put to her on previous days. Whatever her formal education, she appeared to be intelligent, with a clear grasp of the issues important to Feer's case and an ability to attend closely to detail. I will comment on particular aspects of her evidence as they arise. However, I will mention now one point arising at the end of her evidence. She had mentioned that she had been given, by I-Remit, a CD-Rom containing e-mails sent by her to I-Remit. I asked her to produce it. A day or two later, she produced six floppy disks, five yellow and one blue. She repeatedly confirmed that she had been given three of the yellow floppy disks by I-Remit. On examination of the disks, it became apparent that the three which she said had come from I-Remit were part of the same batch as the other two yellow disks which were hers. It became in my view clear that they were not disks given to her by I-Remit and ultimately she accepted that she could not in fact remember.
- Mr Ubando's evidence was of peripheral relevance, in view of his small role in the remittance business. Nonetheless, it is clear from documents in evidence that he did encode and release some transactions from time to time and he should have been able to give a clear account of the process involved.
- There were, broadly speaking, three ways in which Feer sought to establish that the data contained on the CD-Rom was not an accurate record of the transactions which were released by it. First, it sought to establish particular errors in the data and inconsistencies with other records. Secondly, it sought to show the improbability that I-Remit would have allowed a situation to develop in which it was paying out before the receipt of funds to the extent that it was due over £400,000 from Feer. Thirdly, it sought to establish that it never, or only rarely, released instructions to I-Remit without first ensuring that it had received the funds from its clients. It submitted that, as all or most of the funds which it received from its clients were paid over to I-Remit, it must follow that I-Remit's records and the data on the CD-Rom (the CD database) are wrong.
- As I have already mentioned, many of Feer's own records are missing or incomplete. It has sought to establish from its bank statements the number of remittances received from clients over the relevant period, which total about 27,857. On the basis of its position that it never or rarely released instructions to I-Remit without first receiving the relevant funds, its case is that the CD database therefore contains 2,886 transactions which it never authorised or which, if authorised, were cancelled by it. In response to a request for further information, it agreed to provide a schedule showing those transactions which it did not authorise. Although initially promised in June 2005 within a couple of weeks, it proved to be a long and complex task requiring, as Feer's solicitors recorded, four paralegals working full time for two months to produce schedules covering October to December 2001 and March, May and September 2002, with those for September 2001 and July, October and November 2002 supplied a month later. Schedules covering the other months were supplied later. These so-called Scott schedules list the transactions shown in the CD database, with a column headed "date remittance received by [Feer]". If a date is included in the column, it has been possible to match the receipt of funds from the remitter in Feer's bank statements. Feer has been unable to do this in respect of some 11,000 transactions. It does not, however, allege that all those transactions were unauthorised. Its allegation is that 2,886 of those transactions were not authorised, but it cannot identify them. It is therefore of no assistance in demonstrating that the CD database is wrong.
- The only part of Feer's case aimed at particular transactions in the CD database related to those alleged to be cancelled or erroneously duplicated transactions. The pleaded allegation is that the CD database contained cancelled or erroneously duplicated transactions in a total sum of £77,305.70. The original annex to the amended defence, containing the details of this allegation, had to be withdrawn when shown to be wrong and was replaced in late 2005 by the new schedules of transactions to which I have earlier referred.
- So far as the alleged duplicate transactions were concerned, it was Mrs Ubando's evidence that on many occasions when encoding or releasing a transaction the system would "hang" and she would be instructed to try again. Instead of recording one transaction, the suggestion was that this resulted in two transactions. However, each of the alleged duplicates had its own unique RAF number and a relevant RTN, indicating that either they were separately encoded or, if automatically duplicated at the encoding stage, they were subsequently approved and released by Feer. In some cases, the alleged duplicates had non-sequential RAF numbers and were released in different batches and therefore had separate RTNs. Moreover, in a number of cases the alleged duplicates have separate dates or were for different amounts.
- Miss Lescano accepted that the system could hang, but said that a duplicate transaction could not occur at the release stage. Releasing a transaction just updated the status of a transaction already encoded. Miss Lescano demonstrated a thorough understanding of the system and I accept her evidence. I am satisfied that, even if some of the scheduled transactions had been automatically duplicated, each of them was released by Mrs Ubando or a member of her staff. In some cases the duplicates were noticed by Mrs Ubando and she gave instructions by e-mail to cancel the duplicate. If told in time, I-Remit cancelled the duplicate transaction. This applies to some of the transactions in Feer's schedule and they appeared in the accounts receivable as cancelled transactions not giving rise to a claim.
- Cancelled transactions are those which Feer accepts were released by it but which it subsequently requested I-Remit to cancel. The schedule produced by Feer lists 92 transactions with a total value of £23,192 although 41 transactions are for negative or nominal amounts. Some of the transactions are duplicated in the schedule, reducing the number of unique transactions to about 80. I am satisfied on the evidence that if a cancellation request was made to I-Remit in time to prevent distribution of the remittance I-Remit would cancel it. The evidence establishes that 64 transactions with a total value of £11,286 were successfully cancelled and are not included in the amount claimed from Feer. They are correctly included in the CD database as encoded and released transactions but, because they were successfully cancelled, they were not included in the accounts receivable. The remaining 16 transactions with a total value of £7,796 were paid to beneficiaries. I am satisfied that Feer's instructions to cancel them were given too late and that therefore they are properly included not only in the CD database, but also in the accounts receivable as giving rise to a claim.
- Accordingly, I reject Feer's case that duplicated or cancelled transactions are wrongly included in the CD database, or have been wrongly included in the claim made against Feer. A suggestion by Mrs Ubando in evidence, but not pleaded, was that on occasion a batch of transactions would be released by Feer simultaneously, and coincidentally, with the release of a batch of transactions from another remittance company and would become merged, all of them showing as transactions authorised by Feer. I am satisfied by the evidence of Miss Lescano that this was impossible. The unique RAF number of each transaction showed the remittance company by which it had been encoded. Although Mrs Ubando suggested that there were a variety of faults with the system which could lead to transactions being wrongly shown as authorised by Feer, I am satisfied on Miss Lescano's evidence that there were no such faults. Various theories were put to Miss Lescano and other witnesses in cross-examination as to how I-Remit's records could have been corrupted, by hackers or in other ways. There was no evidential basis for these suggestions. I reject any suggestion that there was any fraudulent manipulation of I-Remit's records.
- Feer sought to demonstrate that there were discrepancies between, on the one hand, the accounts receivable and, on the other hand, the anti-money laundering reports and the daily settlement reports. On the basis of these discrepancies, it was suggested that the accounts receivable and the CD database were unreliable.
- There are discrepancies on a day by day basis between the accounts receivable and the anti-money laundering reports. However, every transaction appearing in the anti-money laundering reports disclosed by Feer are to be found in the schedules served with the accounts receivable and in the CD database. This was accepted by Feer. It is clear from the evidence that the anti-money laundering reports contain only released transactions. The daily discrepancies do not therefore provide any support for the case that the CD database includes transactions which were not released by Feer.
- The evidence establishes that the daily discrepancies are due to time differences between the UK and Manila. The anti-money laundering reports were prepared on UK time, whereas the accounts receivable was prepared on Manila time. Accordingly, any transactions released by Feer between 4pm (5pm during BST) and midnight on one day will appear for the following day in the accounts receivable. This was acknowledged by Feer in a letter dated 20 May 2003 to I-Remit, which was in fact drafted for Feer by Mr Ocampo. It was confirmed by Mr Choa in his second witness statement and not challenged in cross-examination. While assisting Feer in 2003, Mr Ocampo drew attention to transactions which appeared under later dates in the anti-money laundering reports than the dates given for them in the schedules supporting the accounts receivable and the CD database. This would appear to be the wrong way round. The explanation is, however, that the dates in the schedules and the CD database are the dates on which transactions were encoded, not the dates on which they were released. This can be demonstrated by an examination of the schedules organised by RTNs. Quite commonly, there was a delay of a day or more between encoding and releasing a transaction. In his oral evidence, Mr Ocampo was clear that these daily discrepancies were due to time zone differences. He also gave evidence as to which report was prepared according to which time zone. He thought that the anti-money laundering reports were prepared on Manila time and believed that the accounts receivable were prepared on UK time, although he had left I-Remit by the time they were prepared and had no direct knowledge on that point. I am satisfied that this part of his evidence was the result of confusion on his part.
- Feer relied also on discrepancies between the accounts receivable and the daily settlement reports. As previously mentioned, these were a daily record of released transactions which Feer was required to fax to I-Remit. It was a control system introduced by the new management of I-Remit with effect from late August 2002. The earliest report in evidence was for 30 August 2002 and there is a complete set of reports up to 26 November 2002, with only one omission. The discrepancies are in fact very minor, except for the first few days. Even for those days, the total transactions by number and value are similar.
- The daily settlement reports gave rise to one issue of primary fact. Mrs Ubando claimed that she did not have, and had not sent, the reports for 1 and 8 September 2002. Both were Sundays. In her written evidence she stated that it would be unusual for her to send instructions to I-Remit on a Sunday and in cross-examination she was adamant that she never did any business on a Sunday. There are, however, a number of daily settlement reports for Sundays to which no objection was taken and which appeared in Feer's disclosure. In particular, the report for Sunday 29 September 2002, showing transactions with a value of over £36,000 was, as shown by the header, faxed by Mrs Ubando at 11:29 pm on that day. Mrs Ubando accepted that this was her document and that it was her signature on it. It was pointed out for Feer that while the dates on the reports are generally typed, the dates for 1 and 8 September are handwritten. However, the dates on some other reports are handwritten (see, in particular, 5 September). It was also pointed out that the original printed date on the report for 8 September, which was altered in manuscript to 8 September, was a date in January 2000. However, changes from rogue dates are again not unique: see 5 September and 9 November. In the light of the reports for other Sundays and the fact that all other records disclosed by Feer are incomplete, the overwhelming likelihood is that the reports dated 1 and 8 September were prepared and sent by Feer. Feer did not give inspection of its daily settlement reports until a week before the start of the trial, when they were supplied not in a bundle but loose. The likelihood is that the relevant reports had been lost by Feer.
- There are in evidence a small number of release print-outs made by Feer showing the transactions as released. All those transactions appear in the CD database.
- Overall, I am satisfied that Feer cannot demonstrate, simply by reference to the CD database and these other records, that the database is wrong.
- Feer also sought to demonstrate by reference to the anti-money laundering reports that the CD database was wrong and included transactions which had not been released by Feer. Surprisingly, no attempt had been made by Feer to check the CD database or its Scott schedule against the reports in its possession. If a transaction appeared in a report, it had been released by Feer. The set of reports is not complete, so they could not provide a complete check but they could have been used to eliminate many of the 12,000 – odd transactions indicated in the Scott schedule as potentially unauthorised. In the course of the trial Mrs Ubando undertook that exercise and produced a 9 page schedule identifying about 380 disputed transactions as not appearing in the reports. One of the amendments to the defence for which permission was sought was to attach this schedule as an annex to the defence, by way of particulars of some of the disputed transactions. As a result of observations made as to the contents of the schedule by Mr Knight, Mrs Ubando revised the schedule, producing a one-page list of 37 disputed transactions. In cross-examination of Mrs Ubando, Mr Knight demonstrated that 3 of the scheduled transactions appeared in the reports and that the reports relevant to the remaining 34 transactions were missing or incomplete. The result is that Feer is unable to prove by reference to the anti-money laundering reports that the CD database contained any transactions which Feer had not released.
- Feer's second approach was to contend that it was impossible or unlikely that I-Remit would pay out on transactions without itself being in funds, at any rate to the extent of so large a figure as £400,000. One aspect to this argument was that as I-Remit was a remittance distribution company, not a bank, it had no power to lend money which (it was said) it was in effect doing by paying out before receipt of the funds. No evidence was adduced of any restriction under Philippine law on the power of I-Remit to make payments in those circumstances and I see no other basis for this submission. It was suggested to Mr Choa that the articles of association of I-Remit conferred no power to give credit in this way. Mr Choa referred to the ancillary powers contained in the articles; in my view, if governed by English law, paragraph 6 on page 3 would give the necessary power.
- More broadly the argument was put that, as a matter of commercial common sense, I-Remit would not expose itself to the risk involved. Mr Choa gave some evidence on this, suggesting in his witness statement that there was a lack of internal monitoring procedures. He agreed in cross examination that it was important to prevent exposure to these risks, and it was indeed one of his first acts when he became involved with I-Remit in July 2002 to instigate the audit and the daily settlement reports, designed to investigate the scale of the existing problem and to reduce future risks. Equally, he suggested that I-Remit used its working capital to make distributions, where banking hours and time differences might otherwise delay distributions. A speedy response to payment instructions was beneficial in terms of competition and marketing. Mr Choa was not with I-Remit during the main part of the relevant period, but Mr Ocampo was and he gave evidence to the same effect. I-Remit plainly ran a risk if it allowed a debt on this scale to build up, but there were commercial reasons for accelerating payments and it is likely that I-Remit's own monitoring procedures were inadequate.
- An important and more specific part of Feer's case was that during the relevant period, I-Remit operated a strict policy of no funds, no release. The evidence in support was to have been provided by Mr Erwin Olazo who was employed by I-Remit and who became head of its operations department. He is now employed by Feer in Manila. A very late statement was provided by him. I-Remit opposed its admission at such a late stage but, although no good reason was given for not providing it much earlier, I allowed it to be adduced. I did so on the footing that Mr Olazo would give evidence by video-link and that I-Remit was able to adduce oral evidence from Mr Ocampo. In the event, Mr Ocampo did give oral evidence by video-link but Mr Olazo did not. No reason was given for Mr Olazo's non-appearance, which was all the more surprising in view of his employment with Feer. There is no evidence of substance to support the allegation of a policy of no funds, no release, and it was denied by Mr Ocampo. I reject the allegation.
- I conclude that this second approach, that it was improbable that I-Remit would have paid out without being in funds, provides little or no support for Feer's case.
- The third limb of Feer's case focuses not on I-Remit, but on Mrs Ubando's conduct of the business of Feer. Feer's case is that its invariable practice was not to release any transaction without first ensuring that the relevant remittance monies had been deposited in one of its bank accounts. It says further that it transferred all funds out of its accounts to I-Remit. Therefore, it must have transferred funds for all the transactions which it released.
- This part of Feer's case depends very largely on the evidence of Mrs Ubando. She conducted the day to day business, with the assistance of a couple of part-time staff. None of the staff gave evidence. Mr Ubando gave evidence, but he said in his witness statement that he did not carry out the day to day reconciliations but left it to Mrs Ubando. She ran the money remittance business while he ran the phone card sales. In his oral evidence, he was not able to provide any evidence on this aspect of the case.
- The absence of most of Feer's contemporary records makes it impossible to test Feer's case against those records. As discussed earlier in this judgment, there are e-mails from Mrs Ubando to I-Remit requesting the cancellation of duplicated and other transactions previously released by Feer. 157 such e-mails were produced by I-Remit. Mrs Ubando's evidence was that her copies had been destroyed by a virus on her PC. These e-mails tell against Feer's case. Each duplicate of a transaction had its own RAF number and each must have been separately released by Feer. By definition, there would not be funds in Feer's accounts for a duplicate transaction. In other cases, Mrs Ubando requested I-Remit to cancel released transactions because, as she stated in the e-mails, there were no funds for them.
- Initially, in cross-examination, Mrs Ubando asserted that there could not be any instance where she did not go through a checking procedure and released a transaction without funds. When faced with the e-mails, she accepted that this could not always have been the case. Her case remained that almost invariably, subject only to the mistakes evidenced by the e-mails, she and her staff followed a procedure which ensured that Feer received the remittance money before it released a transaction.
- In examining this case, it is necessary to look carefully at various matters covered by Mrs Ubando's evidence. They are: the steps in the procedure, the means by which details of the banks and branches at which remittance monies were deposited by clients were recorded, the time at which transactions were checked against bank statements, and any record of such checks.
- As to the steps in the procedure adopted by Feer, its own evidence was contradictory in important respects. In his statement, Mr Ubando gave this account:
- The reports to which he refers are the anti-money laundering reports. Although not usually involved in the daily operations of the remittance business, Mr Ubando worked with Mrs Ubando and he relied, in his evidence, on conversations with her. The evidence establishes that he encoded some transactions. He confirmed orally the account given in his witness statement. However, Mrs Ubando denied his evidence that the anti-money laundering reports were used for reconciliation purposes and said that they were kept only for inspection by HM Customs & Excise.
- In her first witness statement dated 5 February 2005, she described the process as follows:
- Mrs Ubando elaborated on this explanation in cross-examination. When checking the official receipts against the on-line bank statements, she would tick or cross out (her evidence varied) the entry and write against it the client's name or the transaction RAF number. If deposit of the funds was shown on the bank statement, she would sign the official receipt. She then used the signed official receipts to approve those transactions. For the separate and final stage of releasing transactions, her evidence was that she again checked each transaction individually against the signed official receipt, unless she was busy in which case she relied on her earlier approval of the transaction.
- In order to check the receipt of funds against bank statements, she would need to know the bank and branch where the deposit was made. The statements gave the name of the depositor if the deposit was made by bank transfer but not if made in cash. In the case of cash deposits, of which there were a substantial number, only the bank and branch was stated. Mrs Ubando said that, when making their calls, the clients would tell her the bank and branch at which they had deposited the remittances. When first asked in cross examination where she made a record of that information she replied:
- When asked the same question a little later she replied:
- These answers suggested two methods of recording this essential information. The first was that the details were recorded in the spiral-bound notebooks, while the second was that they were encoded with other details of the transaction. Both explanations raised significant difficulties.
- As to the spiral-bound notebooks, only a little earlier in her evidence, Mrs Ubando had explained that these books, most of which are missing, were kept for her staff, but not for her or her husband, to record details, in case later there was any complaint or query by a remitter about a transaction. The books in evidence contain handwritten details of clients' transactions (generally, the remitter's name, the remittance amount, the bank and branch where the deposit was made in the UK and the beneficiary's name and bank in the Philippines). There are generally no dates. Some of the entries are crossed through, others have serial numbers written against them. Mrs Ubando's evidence was that all the entries in these books were made by members of staff. Her initial explanation of the crossing out was that it "means to say we had checked that one from the statement", but she soon contradicted that evidence and said that she had no idea why they were crossed out. Bundle D2 contains nearly 300 pages from notebooks, and many of the entries have a serial number. Comparing the serial numbers of those transactions with either the RAF or RTN numbers of transactions with I-Remit shows no connection between the transactions. I am not satisfied that any of the pages in D2 relate to transactions between Feer and I-Remit, at any rate during the relevant period. It is symptomatic of the state of Feer's records that entirely irrelevant books, unconnected with the transactions in issue, were disclosed by Feer. However, bundle J2 contains "Book 8", which starts on 4 November 2002, contains handwritten details of transactions, including in each case a RAF number which does tally with transactions with I-Remit. Many of the transactions are crossed through. Obviously there were seven earlier books, but they were not disclosed by Feer because, according to Mrs Ubando, they were thrown away when they moved from Sevenoaks to Orpington in June 2003 because they did not think they needed them.
- The fact that many of the entries in the notebooks are crossed out is inconsistent with Mrs Ubando's somewhat implausible explanation. The explanation is the more implausible because the encoder's details appear on the official receipts. If a complaint was received from a client, Mrs Ubando could therefore identify the member of staff who had encoded the transaction in that way. It would be an unnecessary duplication for the member of staff to write down the details in a book. In the face of this point, Mrs Ubando's explanation changed again and she said that it was necessary to have this cross-check in case the member of staff forgot to click the save button after encoding the transaction or encountered a problem on the system which prevented them from saving it. If this was the true purpose of the books, it is difficult to understand why Mr or Mrs Ubando did not also write down details of transactions in them. The likely explanation is that the notebooks were used as part of the process for encoding transactions and checking the receipt of funds, but the failure to cross all transactions that were released indicates that the system did not operate consistently.
- Mrs Ubando's second explanation, that the bank and branch details were encoded with other details of the transaction, faced an immediate difficulty. In the vast majority of official receipts in evidence, no such details were entered. Later in her evidence, Mrs Ubando explained that at an early stage with the on-line system she had tried to encode the details of the bank and branch of the deposit in the "remarks" field on the remittance application form, but was told by I-Remit in Manila not to do so. Sometime later she asked again if they could encode these details. In the large number of early official receipts in evidence, starting on 5 August 2001, none has with any such details encoded. However, there are a number among the official receipts produced in February and March 2002. There are three on 11 February 2002, about seven between 22 February and 28 February 2002 and about 130 between 4 March and 15 March 2002. This represents a small number compared with the total number of receipts: there were over 500 receipts between 4 March and 15 March. Mrs Ubando was unsure why some receipts had remarks but others did not, but she thought it might have been a period of testing. It is clear that these details were not regularly encoded.
- Faced with the lack of encoded details on the official receipts, Mrs Ubando gave a further and different explanation. She said that when a client called, she would encode the details of the transaction (remitter's name and address, remittance amount, details of beneficiary and mode of delivery), print out two copies of the official receipt, write on one of them the bank and branch at which the remitter had deposited the funds and read back to the client all those details for confirmation. The two copies of the official receipts were then put in separate piles. When the on-line bank statements were printed out at the end of the day, the deposits shown in the statements were checked against the official receipt on which the remitter's bank details were written. If they matched, that copy of the official receipt was signed and sent to the remitter and Feer retained the other copy on its files. The obvious course would have been for Feer to retain the copy recording the remitter's bank details and send the clean copy to the remitter. Mrs Ubando had no explanation for doing the opposite. She said that the practice of printing out a second copy stopped in March 2002 with the introduction of anti-money laundering reports which were used as Feer's record of transactions.
- Mrs Ubando's evidence was that she only filed official receipts once she had approved and released the transaction, and threw away any official receipts for transactions where funds were not in due course deposited. Yet when Feer came to prepare its Scott schedule of disputed transactions, no attempt was made to check the transactions in the CD database against the official receipts. Random checks suggest that all the transactions recorded in the official receipts are included in the CD database, including those which are shown as potentially disputed in the Scott schedule. Feer was unable to point to a single transaction in the official receipts which is not included in the CD database. The converse cannot be shown, because the official receipts are incomplete. Mrs Ubando's evidence was that they were filed in lever arch files, arranged by RAF number, and they should have been a complete set. They were kept in the loft of Mr Kemp's property. They were not moved to Orpington and they were still in the loft when they were required for these proceedings. Mrs Ubando had no explanation for the missing official receipts, except a suggestion that they went missing in the rush to photocopy them for the purposes of inspection by I-Remit. There is no evidence to support this suggestion, which I reject. The most likely explanation is that the missing official receipts were never filed in the first place.
- As regards checking transactions against the on-line bank statements, Mrs Ubando's evidence in examination in chief was that "at the end of the day we print out an on-line balance statement" and check the official receipts against it. She twice repeated this evidence in answer to questions from me. She later explained that they normally printed out the bank statement between 5 and 6:30pm. The cut-off time for on-line transfers was 6:30 pm so that was the last print-out. In contrast to this evidence, Feer had stated in further information given of the defence that the bank statements were usually printed out and checked three or four times a day. Mrs Ubando's explanation for this inconsistency was that on most days they printed out statements only once a day, but on busy days, for example at the end of the month, they would print out statements at least three or four times a day.
- Disclosure of the print-outs of Feer's bank statement, against which Mrs Ubando said that she had checked daily transactions, would have established the extent of such checks. Apart from a small number to which I shall refer, none was disclosed. Mrs Ubando's evidence was that the statements had been stored in the loft at Sevenoaks. Her evidence at first was that she and her husband threw them out when they moved from Sevenoaks to Orpington, because they did not realise that they were going to need them. The move was in June 2003 and, by then, she had been in dispute with I-Remit since late 2002. These bank statements were therefore highly relevant. Her evidence changed and she said that the bank statements were cleared out and thrown away on the instructions of Mr Kemp some time after they had left. She said that some of their files were delivered to Orpington but were left outside their property and got so wet that they had to be thrown away.
- A small number of contemporaneous print-outs of bank statements were disclosed one week before the start of the trial. They run from July to September 2001 and they are interleaved on a daily basis with print-outs of the Excel spreadsheet of remittances until 23 August 2001 and with print-outs of approval lists from the web-based system thereafter. Mrs Ubando said in evidence that these bank statements had been printed out to enable Mr Ubando to check the receipt of payments for phone cards but it is, in my judgment, clear that they were statements used for the purpose of checking remittances. Remittances, but not phonecards receipts, were checked every day. There are print-outs of Barclays bank statements (but not HSBC or NatWest statements, because these accounts were not opened until later) for almost every day and it is apparent from handwritten notes and ticks that they have been used for checking remittances. However, they do not show the consistent approach which Mrs Ubando claimed to have applied. In the case of deposits by bank transfer, names are printed on the statements, but there are many instances where they have not been ticked or crossed out. Where cash deposits were made, there is no consistency of approach to writing down the depositor's name: in many cases it is written down, but in many cases it is not. Significantly also, the bank statements are interleaved with print-outs of approval forms, not official receipts, suggesting that Mrs Ubando was checking the bank statements against the approval forms.
- This mass of inconsistent, and frequently implausible, evidence, combined with the lack of relevant records, makes it impossible to know the system or systems which Mrs Ubando sought to implement for checking the receipt of funds before the release of transactions. The fact that, where available, Feer's official receipts and anti-money laundering reports are consistent with the CD database and accounts receivable, combined with the quality of Mrs Ubando's evidence and the e-mails cancelling released transactions, leads me to the firm conclusion that Feer did release transactions on a significant scale without first checking the receipt of funds. I reject Feer's case that the CD database was inaccurate and that I-Remit was in breach of the representation and warranty as to its accuracy. Feer is bound by Whitmarsh Sterland's determination and I-Remit is entitled to judgment for the sum claimed by it.
- In support of its case, Feer relied on a reconciliation undertaken at its offices in August 2002 by Mr Ocampo. It showed that a balance of £41,453 was due from Feer to I-Remit as a result of released transactions exceeding payments by that amount. Even this reconciliation is contrary to Feer's basic case that it never released transactions without checking that it had funds and that it transferred all its funds. Mr Ocampo's evidence in his witness statement, confirmed in the course of cross-examination, was that it was based on woefully incomplete records. I do not consider that this reconciliation is of any assistance to Feer's case.
- Feer's case is not only that it remitted all the funds for the transactions which it authorised, but also that it overpaid by a sum of over £339,000 which it counterclaims from I-Remit in these proceedings. My conclusion that Feer is unable to challenge the CD database or the determination of Whitmarsh Sterland means that there is overall a net sum due to I-Remit, and that this counterclaim must fail. Nonetheless it is right that I should deal with it.
- There are two principal bases for the counterclaims. First, Feer alleges that it reached agreement with I-Remit whereby it would pay over the entire amount received from its remittance clients, including its service charge, and that I-Remit would calculate and repay to it the net amount of service charge to which it was entitled on each transaction. No such calculation or accounting was ever undertaken and Feer claims that over £102,000 is due to it. Secondly, Feer alleges that in error it paid over to I-Remit funds which it had received for the sale of phonecards. This claim is for £237,061.
- A service charge was made by Feer to its clients. The case, as it appeared from Mrs Ubando's second witness statements and counsel's opening, was that it was a flat fee of £5 for every transaction. However, in its response to a request for further information, Feer stated that it was a variable charge which depended on the mode of delivery in the Philippines. Mrs Ubando made an unconvincing attempt to reconcile her witness statement with Feer's pleaded case, asserting that she was referring only to bank to bank transfers before accepting that her witness statement was wrong. As set out in the distribution agreement, I-Remit charged Feer a variable fee which depended on the mode of delivery. Each fee for any particular transaction was known to Mrs Ubando and in an efficient operation there would be no difficulty for her to remit only the amount due to I-Remit.
- The explanation given by Mrs Ubando for the service charge agreement alleged by Feer was that Mr Ocampo understood the pressure which she was under in processing all the transactions and suggested the arrangement for service charges to assist her. Feer's pleaded case was that the agreement was made orally in a telephone conversation in June 2001. Mrs Ubando's witness statements did not mention any date, but paragraph 16 of her first statement dealt with it as follows:
- It is not clear what Mrs Ubando meant by the daily report, and her statement does not support the alleged agreement. Paragraph 2 of her second statement does so, albeit without any date for the arrangement:
- In her oral evidence Mrs Ubando was unable to remember when the suggested agreement was made with Mr Ocampo. She was unable to explain why it had been stated to have been made in June 2001, a month before the distribution agreement was made. She appeared to suggest that the reason for transferring all the funds in the accounts was to cover remittances paid after the cut-off time of 2:30 pm into the HSBC and Natwest accounts which could be not transferred until the next day, rather than because of the agreement as to service charges. When the apparent inconsistency was pointed out, Mrs Ubando said that both were reasons for transferring the service charge. She had no adequate explanation as to why she had never referred to the alleged agreement (except orally to Mr Ocampo) or demanded payment of Feer's service charges from I-Remit while the arrangement was said to be in place or at any time afterwards until pleaded in March 2005. An outstanding balance of service charges was not mentioned to Whitmarsh Sterland. She accepted, as was obviously the case, that at any stage she could have looked at the official receipts or anti-money laundering reports and calculated the amount owed. In fact, from the end of August 2002 when the system of daily settlement reports was introduced, she notified I-Remit of each remittance amount and the service charge payable to I-Remit for each transaction. The daily settlement reports make no reference to Feer's own service charge. When the reports were put to Mrs Ubando, she said that the service charge agreement came to an end with their introduction and Feer no longer paid the full amount of the service charge to I-Remit.
- The only communication in evidence referring to service charges was an e-mail from Mrs Ubando dated 7 September 2002, which was disclosed by Feer a week before the start of the trial. It was addressed to a number of people at I-Remit, including Mr Ocampo. In it she stated:
- If Mrs Ubando's evidence was correct, it would mean that Feer carried on its remittance business with I-Remit for over a year on a basis which meant that it received no income from it, apart from the exchange gains. It would also mean that there was a debt due from I-Remit for the net service charges, but no such debt was shown as an asset or even noted in Feer's accounts for the year ended 31 March 2003, approved by Mr and Mrs Ubando as directors on 5 July 2004.
- Mr Ocampo denied in his first witness statement and in cross examination that the alleged oral agreement had been made. I accept Mr Ocampo's evidence and I reject Mrs Ubando's evidence. I find that no agreement was made as alleged with regard to service charges.
- The claim in respect of telephone monies is differently put. It is not said that there was any agreement with I-Remit. It is alleged that the payments were made by mistake. The amount claimed for the period from August 2001 to November 2002 is £237,061, although a schedule served by Feer identifies only £126,640 of such payments. The amount of the claim would seem to have been calculated simply by reference to the difference between the transactions which Feer accepts were released by it and the amount which it claims to have paid to I-Remit, taking account also of the alleged service charge payments. At least some of the payments alleged to be telephone monies can be shown by other documents in evidence to be remittance monies, while others are impossible to reconcile with any disclosed records.
- Mrs Ubando's explanation in her witness statement is that, although the sale of phonecards was a separate business, it was not possible to keep all the receipts from that business separate from remittance monies. The same client might make a remittance and buy phonecards, paying a single amount for both into Feer's account. She goes on to state:
- She states in paragraph 16 that it is "something which I have only grown to understand during the course of this litigation." I reject her explanation that she was referring only to the precise total amount of the payments. In contrast to this statement and to the pleaded case of mistake, her oral evidence was that she knew that phonecard payments were going through the accounts and being paid to I-Remit, and that she was doing so to cover the same timing differences to which she referred in relation to service charges. The contradictory character of Mrs Ubando's evidence on this topic, as on many others, is well illustrated by the following exchange:
- If, as Mrs Ubando maintained, she carefully went through bank statements to check the receipt of funds for each remittance transaction and if phonecard payments were being made into the same account, she would have known exactly how much were phonecard payments and how much were remittances for payment to I-Remit. However, no request for repayment of these sums was ever made nor was it even mentioned to I-Remit. If monies derived from phonecard sales were paid to I-Remit, the highly probable explanation is that Feer's reconciliation and accounting procedures were in a chaotic state, and that Mrs Ubando had little control or knowledge of the amounts being received from clients and the amounts due to I-Remit. I reject Mrs Ubando's evidence that she deliberately transferred telephone monies to cover timing differences.
- It was of no concern to I-Remit whether the payments to it derived from remittance deposits, phonecard sales, service charges or other sources, provided that the payments to it equalled the value of the transactions released by Feer. As I have found that Whitmarsh Sterland's determination of the shortfall (as adjusted) must stand, there is no basis for a claim in respect of telephone monies. I should also add that, on the evidence before the court, Feer cannot establish whether any payments to I-Remit derived from telephone monies and, if so, how much.
- Feer had a further small claim, amounting to £9,528.60, in respect of three "reverse transactions", where I-Remit asked Feer to distribute remittances from the Philippines to individuals in the UK and Feer did so. It is alleged that in each case I-Remit failed to pay the requisite funds to Feer. However, as Mr Choa's evidence shows and as Mrs Ubando agreed in cross-examination, credit has been given for these sums in I-Remit's claim.
- Accordingly, I dismiss Feer's counterclaims against I-Remit and give judgment for I-Remit on its claim against Feer.
- There is one final matter to mention. A few days before the start of the trial, Feer's solicitors served several witness statements making allegations that I-Remit had engaged in the wholesale fabrication of bank deposit slips issued in the Philippines on the deposit of remittance funds. In his skeleton argument, counsel for Feer gave notice that he intended to apply to adduce these statements and would in due course apply to strike out I-Remit's claim on the grounds that its conduct amounted to such an abuse of the process of the court as to prevent a fair trial (see Arrow Nominees Inc v Blackledge [2002] 2 BCLC 167). I heard extensive submissions from counsel on this issue and I refused permission for the admission of the statements. I gave permission to admit other witness statements which went directly to the underlying issues in the case.
- I gave brief reasons at the time and will now set out a little of the background. Suggestions of fraud had been made by Feer in June 2005. In a draft list of issues for trial, counsel for Feer had included "whether the data on the CD Rom produced by [I-Remit] mistakenly or fraudulently includes an additional 2,886 transactions…". It was never, however, pleaded that there had been fraud in the recording of the data. Counsel for Feer made clear that there did not exist an evidential basis for any such allegation.
- The allegation of forgery put forward at the start of the trial did not depend on there having been fraud, as opposed to mistakes, in the recording of the data. What was said was that many thousands of deposit slips had been forged in the summer of 2005 and that they covered not only the alleged non-existent transactions but a large number of other transactions accepted by Feer to be genuine. In answer to the obvious question as to why I-Remit should forge deposit slips for genuine transactions, counsel's answer, which I never really understood, was that I-Remit needed to do so to provide cover for the deposit slips relating to the non-existent transactions.
- This was not a new allegation. Inspection of the deposit slips, of which there were about 30,000 in total, had taken place in Manila in July and August 2005. Inspection on behalf of Feer was undertaken by a Philippines lawyer and by three employees of a Philippines bank (PNB), who were privately engaged by Feer's solicitors to carry out the inspection and were not acting on behalf of their employer. Certified copies of the deposit slips were proved by I-Remit to Feer. In a letter dated 11 October 2005, Feer's solicitors stated that "about two thirds of the deposit slips appear on their face to have been fabricated". They drew attention to the absence of a bank stamp and teller's signature and to a variation in the font of the machine validation code. They said they would report in detail their findings as soon as they were in a position to do so; in fact, they never did so. Some examples were specified. I-Remit's solicitors responded, rejecting the allegation and enclosing scanned copies of the deposit slips relating to the examples, clearly showing the imprint of the stamp and teller's signature (in fact, the signature was also clear on the photocopies supplied by Feer's solicitors). It was the submission of counsel for Feer that these scanned copies were evidence of a second round of fabrication in which stamps and signatures were added to the previously fabricated slips.
- Feer's solicitors repeated their allegation in a letter dated 1 November 2005 and stated that they proposed to substantiate the allegation by submitting an agreed bundle of documents to the Philippines Central Bank. In their reply on 11 November 2005, I-Remit's solicitors invited Feer's representatives to re-inspect as many documents as they wished, as soon as possible. They continued that "only if after you make these enquires you have prima facie evidence from the original document, or from the banks concerned, is there any justification for the course you propose." In a letter dated 6 December 2005, Feer's solicitors repeated their intention to submit agreed bundles to the Philippines Central Bank. In reply, I-Remit's solicitors stated that, if the allegations were not withdrawn, they would arrange for the 30,000 odd deposit slips to be brought to England. This offer was withdrawn on 18 January 2006 when nothing further had been heard from Feer or its solicitors. Nothing further was heard until service of the witness statements, without warning, on 14 and 16 February 2006.
- The witness statements which Feer sought to adduce were statements by each of the bank employees who had inspected the documents, and by the lawyer who accompanied them, and a statement from Mrs Ubando exhibiting a print-out of a chatline conversation which, she alleged, she had with an I-Remit employee in July 2005 in which, she further alleged, she was told that deposit slips were being fabricated.
- Further statements were made by Feer's lawyers in the Philippines detailing attempts to obtain evidence from the 14 banks apparently issuing the deposit slips. These were largely unsuccessful. However, the evidence was that one bank (Maybank) orally, and another bank (Banco Filipino) in writing, had stated that the photocopies of deposit slips supplied to them were not of authentic slips. Enquiries to a third bank (BPI) produced a more equivocal response.
- Further evidence by the lawyers in the Philippines showed that Maybank did not go so far as to say that the deposit slips were not genuine and was not willing to provide written evidence. Banco Filipino would not provide evidence until completion of an examination of its records, as had been requested by I-Remit.
- In addition to the witness statements, counsel for Feer applied to adduce the oral evidence, without a prior witness statement, of an officer of BPI. The following day, counsel informed me that Feer had received a call from the officer's secretary in Manila to say that he was not willing to give evidence. On the same day, in answer to a question from me, counsel told me that he was seeking permission to adduce oral evidence from officers of PNB, in addition to the three employees who had inspected the deposit slips in July and August, but he was unable to say who they were.
- The position was therefore that Feer had been able to adduce evidence of the inspection of the deposit slips for several months, but had failed to do so until the week before the trial. They had not acted on I-Remit's offers to re-inspect the documents or to bring them to England. They had apparently obtained some information from three banks at a later stage, but they could provide no evidence from officers of those banks to support the allegations of forgeries. The hearsay evidence of the lawyers in the Philippines as to their conversations with bank officials provided no substantial basis for the allegations, nor did the letters from BPI and PNB in view of their refusal to give evidence.
- I very much doubted whether the evidence of the bank employees who inspected the deposit slips could support the allegations, but it was in my judgment far too late to seek to introduce their evidence when it had been available since August or September. If this was a serious issue, it should have been developed and appropriate directions sought in the period from October 2005. I accordingly refused the application to admit their statements and those of the Philippine lawyers.
The Honourable Mr Justice David Richards :
Introduction
Distribution agreement
"iRemit hereby grants Far East Express Remittance Ltd the authority to offer the Service for sale in the United Kingdom (UK) for and on iREMIT's behalf and of its subsidiaries and affiliates. Accordingly, Far East Express Remittance Ltd shall collect UK remittances from Filipino as well as non-Filipino customer-remitters (the Customers) within the United Kingdom for the account of their designated beneficiaries in the Philippines (the "Beneficiaries"). On the Philippine-side of the operation, these remittances will be processed and delivered to the beneficiaries exclusively through the facilities of iRemit."
The agreement defined the Service as the business of collecting, processing and distributing money remittances from sources outside the Philippines to their designated beneficiaries in the Philippines.
"Unless the remittance amount to be distributed and the total delivery charges due are funded by the Far East Express Remittance Ltd under Item 3.1 above or are remitted by the Far East Express Remittance Ltd into the deposit account of the iRemit, INC. under Item 3.2 above, the iREMIT, INC shall not be under any obligation to distribute any amounts, notwithstanding any instructions by Far East Express Remittance Ltd. Far East Express Remittance Ltd shall indemnify and hold the iREMIT, INC free and harmless from any claim, suit or action arising from iREMIT INC's failure to process any remittance instruction by reason of Far East Express Remittance Ltd's failure to remit the required amount to the above mentioned accounts."
Clause 4.1 provided:
"The iREMIT INC. shall distribute the remittances upon fulfillment of the following conditions:
4.1.1 Transmission of details between Far East Express Remittance Ltd and iREMIT INC. are made using tested and agreed means. Transmission of details shall be made by the Far East Express Remittance Ltd to the iREMIT, INC every hour by the hour up to 7:00 p.m. (Manila Time).
4.1.2 Remittance by Far East Express Remittance Ltd of the amounts to be distributed by the iREMIT, INC. to the deposit account referred to in Section 3 above.
4.1.3 Receipt by the iREMIT, INC. of the verified and complete list of beneficiaries of the amounts remitted, together with the details for the distribution of the amounts remitted.
4.1.4 Receipt by the iREMIT, INC. of its service fees and other charges, as specified in Section 5 hereof."
Clause 4.4 provided:
"Upon fulfillment of the foregoing conditions, the iREMIT, INC. shall process and distribute the remittance in accordance with the following procedures and periods."
"The records of the iREMIT, INC. in connection with this Agreement, including but not limited to its records of remittance receipts from Far East Express Remittance Ltd and the credit of amounts to beneficiaries' account and/or delivery of remittances to the beneficiaries shall be conclusive and binding on Far East Express Remittance Ltd, provided there are no manifest errors."
Clause 5 set out the fees to be charged by I-Remit to Feer, which varied according to the mode of delivery and ranged from £1 for online bank transfers to £3 for door to door deliveries.
Events: November 2002 - July 2004
"There was no uploading and copying process that took place on that date. Instead, we were just presented and given three copies of the CD Rom which they had already uploaded and copied all the system data. They simply put the CD Rom on their computer and asked us to look at the data already stored on the CD Rom. There was no time for questions. The whole process was done in a matter of few minutes. At the end of her showing us the data on their computer, Ms Sonia made us to sign the three copies of the CD Rom. The meeting ended and we were ushered out of their premises.
I do not know where the data was uploaded and copied from. There was no opportunity given to me or John Paul Ferrer to question the original source from the Claimant's original system."
"This is in regard to the data that we have transmitted to and duly received by your client, Far East Express Remittance Ltd. (FEER), which, as have been mutually agreed, will be the basis for the reconciliation of the transactions between FEER and IRemit, Inc.
We represent and warrant to FEER that the data referred to above which has been archived by ourselves has not been amended, altered or tampered with by us, save that during the archiving process the data have been transferred from the original data tables to history tables, the structure and format of which are exactly as the original.
Upon your client's request and through your representation, IRemit, Inc is giving you its assurance on the integrity and veracity of the said data.
For the avoidance of doubt, this letter shall be governed by and construed in accordance with English law."
Although headed "comfort letter", I-Remit accepts that it was legally binding.
Whitmarsh Sterland report
"a. This conclusion assumes that both parties are happy to accept the disc as being a complete and accurate record of the transactions between FEER and IREMIT.
b. missing FEER statements.
c. both parties to accept the use of photocopied bank statements from IREMIT.
d. We have assumed that all monies transferred between FEER and IREMIT have been by way of transfers with the name of the transferee/transferor appearing on the bank statements. Both parties to agree that this is the case because monies were paid/received by cheque for example we would not be able to identify these from the bank statements.
e. It has been brought to our attention that on some occasions the client of FEER paid directly to IREMIT (i.e. it did not go through the FEER bank statements). IREMIT have identified where this has happened but we are not able to independently verify this. If a significant number of clients paid direct then this would affect our conclusion.
f. That the bank accounts listed above are the only bank accounts where transactions between FEER and IREMIT were affected [sic].
g. We have ignored all bank charges and other funds transfer fees."
Feer's case
Total payments by Feer to I-Remit
Remittance procedures
Records in evidence
Witnesses
Accuracy of CD-Rom database: summary of issues
CD database: alleged errors and inconsistencies
I-Remit's practice
Feer's practice
"Sometimes late in 2002, we accidentally discovered that the Claimant had archived all the data generated from their Money Transfer system. There was no prior warning or notification of the Claimant's proposed archiving of all the data contained in their Money Transfer system. We were totally reliant and dependant upon the reports generated by their Money Transfer system. Without that report, we could not carry out our reconciliation which we did at the end of each working day. However, on many occasions, we could not print off the reports from their Money transfer system until the weekend when we were less busy."
"12. Our clients deposited their remittance money into one of the Company's bank accounts. They would then telephone our office to confirm that they had deposited the payments and advised us as to which bank account they deposited the funds (often in cash) or transferred the moneys via online banking. They usually telephoned us between 9.30 am and 7pm Monday to Saturday.
13. Once they had deposited the money into our bank accounts and once we had checked to ensure that the money was in our account, we would encode the payment transactions through the Claimant's internet system which generated a specific number for that transaction. We would then identify the transactions by the specific transaction number at the end of the day, usually after 9 pm on the day of encoding the transactions. Accordingly, the Claimant would not receive our payment instructions until the next day. The instructions and confirmation thereof were governed by the Distribution Agreement."
This account was not qualified in her second witness statement dated 14 February 2006, but she changed it in her oral examination-in-chief, consistently in most respects with an account given in further information of the amended defence provided in about June 2005. She described the process as follows. A client would ring with details of the transaction, which Feer would immediately encode while the caller was still on the line. Mrs Ubando or another Feer operator would then print out an official receipt. At the end of the day, they would print out an on-line bank statement and they would check the statement for receipt of the funds against the official receipt. If the funds had been received, the transaction would be released.
"On our first year we write down the names of the - you know, after we have encoded the transactions we write down in a book the client's name and telephone…" (Day 6 p.41)
"A. Normally that information will show on the remarks of the I-Remit system. I-Remit system, there is a remarks where you can put, you know, your information as your basis.
Q. Does that appear on the official receipts?
A. Well, lately on the first year we have some books. Hang on, second year we are using books. We can look at the books. They were D2 bundles. The staff also is writing down which branch the clients deposited the funds besides from the system that they put the remarks there as well." (Day 6 p.50)
Conclusion on I-Remit's claim
Feer's counterclaim
"As we could not transfer the full payment on the same day when we encoded the transaction, we transferred the payment that we received from our clients including our service charges to the Claimant, to ensure that the Claimant had more than sufficient funds to deliver the payments to the beneficiaries in the Philippines. I transferred the funds including our service charges at close of business everyday. Mr Ocampo who was an employee of the Claimant realised that I was far too busy to do the daily report, he suggested the use of one of the Claimant's staff to do the report for me. I did not question as I did business on the basis of trust. I therefore agreed to a member of their staff to do the daily report for me and believed that all would be done properly and correctly. We never received any queries from their account department and would not know the position of our account with them. We relied totally on the data we input into their system and if their system were down, then we would not be able to check at all."
"Mr Ocampo was aware of the pressure I was under and told me simply to send to the Claimant all the funds from the Defendant's remitter clients and to leave everything to him. He said that the Claimants computer system could work the apportionment of the service charge between the parties and print out any reports that were required."
"I would like Arlene to concentrate and update as well in sorting out the service charge we earned for the past 13 months which I managed to transfer all this earning to I-Remit."
The e-mail makes no reference to any agreement and its terms are inconsistent with the agreement alleged by Feer. At most it suggests a mistake on Feer's part.
"This is something that I did not take into account when sending the funds to the Claimant everyday. I was just very anxious to make the transfer on time in order to ensure that the Defendant's clients' beneficiaries would receive their remittance without any delay. As a result, in addition to all of the remittance funds, including service charges for both Claimant and Defendant, I transferred a substantial amount of telephone funds to the Claimant and, therefore, the Defendant made a very substantial overpayment to the Claimant."
"A…We use that funds to cover up the remittance of the client who's phoned that day.
Mr Knight: So, Mrs Ubando, what you are saying is that you deliberately paid that money to I-Remit?
A. Yes.
Q So it was not by mistake at all?
A. Well, we just realise at the very end that, you know, there are some funds we have done – you know, when we received that letter from Mr Bansan and we'd be doing the reconciliation, then we realised that there are some telephone money that we managed to transfer to I-Remit." (Day 9 p.66)
Feer's application to adduce further evidence