England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Rolls Building, Fetter Lane, London EC4A 1NL
		16/05/2018

Chief Master Marsh:

1. This judgment arises from the hearing of an inquiry ordered by Mr Robert Engelhart QC sitting as a Deputy Judge of the Chancery Division on 4 June 2015. The order was made on the handing down of a judgment following a trial of issues between the parties that principally concerned a dispute about whether a compromise had been reached of four earlier claims. The inquiry was heard on 13 and 14 February 2018. The lapse of time between the order made in June 2015 and the trial of the inquiry is explained by an unsuccessful appeal to the Court of Appeal against certain aspects of the Deputy Judge's order pursued by Mr Aidiniantz and delay in complying with the agreed terms (as they were confirmed by the trial and the appeal to have been). The appeal was dismissed in December 2016.
2. The Deputy Judge ordered that:

"5. There be an inquiry before the Master ("the Inquiry") to establish what amount, if any, is due to the Defendant and Third Party from the Second Claimant in respect of the promises identified in paragraph 47 of the judgment."

3. Directions for taking the inquiry were given by me in an order dated 3 October 2017. Ms Riley and Ms Decoteau (as the effective claimants in the inquiry) were directed to file and serve points of claim and Mr Aidiniantz was directed to serve points of defence. The issues that emerged from the points of claim, defence and the reply have been helpfully summarised by the parties, albeit they were unable to agree a list of issues.
4. Paragraph 47 of the Deputy Judge's judgment provides the bedrock of the inquiry.

"47. As far as the Counterclaim is concerned, I see no reason why Ms Decoteau should not be paid the balance of £700,000 which Mr Aidiniantz undertook would be paid to her. Similarly, Mr Aidiniantz undertook that £1 million would be paid by Rollerteam to Ms Riley. I had no information about other sums payable under the settlement and the parties were agreed that I should direct an inquiry before the Master to establish what, if anything, is due from Mr Aidiniantz on his promises that:

(1) Rollerteam would pay the legal costs borne by Ms Riley in the litigation^[1];

(2) Ms Riley would be reimbursed all mortgage payments for 1 Parkgate Road since September 2012;

(3) Mr Aidiniantz would pay all mortgage payments due for 1 Albion Mews from 11 April 2013 together with any arrears due as at that date;

(4) Ms Decoteau would be reimbursed all mortgage payments on 30 Wimbledon Road London SW17 until she receives the balance of the £1 million;

(5) Ms Riley would be paid £4,000 per month from September 2012 to April 2013 in reimbursement of household expenses and household bills at 1 Parkgate Road."

5. I shall wherever possible adopt the same abbreviations as in the judgment and avoid setting out the text of documents that are set out there. It is necessary to read the judgment to place this judgment in its proper context.
6. The following core facts form the essential background to the litigation and this claim:

(1) Ms Riley was the registered proprietor of 1 Albion Mews. It was occupied by Mr Aidiniantz. It has now been sold.

(2) Ms Riley was the registered proprietor of 1 Parkgate Road. It was occupied by Grace (mother to Mr Aidiniantz, Ms Riley and Ms Decoteau) and her son Stephen Riley.

(3) Ms Riley was the registered proprietor of 30 Wimbledon Road. It was occupied by Ms Decoteau. It has since been sold.

(4) Rollerteam (the first claimant) owns the Sherlock Holmes Museum ("the Museum") in Baker Street. The shares in Rollerteam were held by Mr Aidiniantz but they have been gifted to his wife.

(5) Sherlock Holmes International Society Limited (a company limited by guarantee) was set up to receive receipts from the sale of tickets paid by visitors to the Museum. It was controlled by Grace and Ms Riley. It is referred to either as "SHIS" or "the Society".

(6) In the dispute for control of the Museum between the members of the family, Mr Aidiniantz was on one side of the dispute and Grace, Ms Riley and Ms Decoteau were on the other side.

7. The Deputy Judge concluded that a binding settlement was reached between the parties on 11 April 2013. However, despite the litigation having involved four claims that were pursued with a considerable degree of vigour, and this claim having gone to trial and then to the Court of Appeal, core issues between the parties remain unresolved. In particular, the parties disagree about the conclusions reached by the Deputy Judge concerning the terms of settlement. On the claimants' side it is said that, although the Deputy Judge held a binding settlement was reached on 11 April 2013, he did not make findings about the full terms of the settlement. On the other side, it is said that the Deputy Judge, in addition to deciding there was a binding settlement, also determined what the terms of the settlement were, namely those terms set out in paragraph 47 of the judgment.
8. Before turning to the issues, I was told that Mr Ilyas had been briefed to appear only on behalf of Mr Aidiniantz, despite the fact that his solicitors act for, and are on the court record for, both claimants. No reason for the apparent bifurcation was given. It may be that nothing turns on the limited nature of Mr Ilyas' instructions. However, I made clear during the course of the inquiry that I regarded Rollerteam as being present, and represented, in court and it would not be open to Rollerteam to take issue with my determination of the inquiry. It is a party to the claim and has had every opportunity to address the court. It is bound by my determination. Furthermore, Rollerteam will not be entitled to say that the inquiry took place in its absence.
9. In the course of the trial, I heard evidence from Mr Aidiniantz, Ms Riley, Ms Decoteau and Nicolas Foster who is a solicitor and managing director of Smithfield Partners Limited ("Mr Foster" and "Smithfield"). Smithfield acted for the Riley/Decoteau camp in the litigation. The evidence overall was of limited value because there are few material issues of fact. I will, however, record my impressions of the witnesses.
10. Mr Aidiniantz was a very unsatisfactory witness. His witness statement failed to have any proper regard to the need to limit evidence for a trial to first hand knowledge of the witness. It recites documents, particularly exchanges of emails, and is argumentative. When cross-examined by Mr Hext QC, who appeared for Ms Riley and Ms Decoteau, it rapidly became apparent that much of Mr Aidiniantz's evidence is a construct of his making. At times it was impossible to understand his evidence because he declined to answer the questions that were put to him and was evasive. I reject his evidence where it is at odds with the evidence of other witnesses.
11. I formed the view that Ms Riley has reached a stage of extreme exasperation with Mr Aidiniantz, after believing she had concluded an agreement with him to resolve the litigation five years ago in 2013, only to find that he denied the agreement was binding. More recently, having established by means of the Deputy Judge's judgment that an agreement had been reached, the working through of the inquiry has become mired in legal difficulty. This has coloured her approach to the inquiry and her evidence. Despite some reservations about one aspect of her evidence, broadly I accept her evidence as truthful, albeit she was not an impressive witness. The exception is her evidence about the fourth promise concerning mortgage payments on 30 Wimbledon Road. I will deal with this evidence in due course.
12. Ms Decoteau gave evidence solely about the fourth promise. She said she has lent Ms Riley £130,000 and that sum was being repaid by mortgage payments being made by Ms Riley on her behalf. The evidence of such a loan lacked any substance and I reject it.
13. Mr Foster was a helpful witness. He was careful in giving evidence and I accept his evidence without any reservation.
14. I will deal with liability for each of the issues after dealing with two preliminary points. First, Mr Aidiniantz says that he has no liability in his personal capacity and, if any sum is due, it is due from Rollerteam (which has no money). Secondly, it is necessary to determine what it is that the judgment has decided. Has it, as Mr Hext QC submits, resolved all issues of construction concerning the contractual terms that were agreed leaving the inquiry as a quantum only exercise, or is it, as Mr Ilyas submits, open to me to determine the scope of the contractual promises by reference to the email sent on 8 April 2013 and the associated documents that were signed and, where necessary, executed on 11 April 2013? Put another way, is my role to establish what the Deputy Judge determined in his judgment or is it open to me to make findings of fact about the precise scope of the contractual promises that were made? I will deal with these issues in reverse order.
15. There is no doubt from the judgment what the Deputy Judge considered the central issue for determination to be. In paragraph 16 of his judgment he defined it in the following way:

"(1) Was there a concluded binding compromise of the litigation reached on (a) 8 April 2013 or (b) 11 April 2013 or (c) by 22 May 2013 and, if so, on what terms?" [my emphasis]

16. Mr Ilyas relies on paragraph 38 of the judgment and submits that paragraph 47 must be read in light of what is said there:

"38. Whilst I am not prepared to find that there was a concluded settlement of the litigation on 8 April 2013, I am satisfied that a concluded contract came into existence on 11 April 2013. The terms of the contract were those which had been set out in Mr Aidiniantz's email of 8 April 2013 to his solicitor and copied to Ms Riley as amplified by the provisions of the formal documents signed on 11 April 2013."

17. The short point is that the Deputy Judge appears in that paragraph to be saying that the terms of the agreement are set out in the email dated 8 April 2013 (as amplified by later documents) whereas in paragraph 47 he defines the promises in different terms to those in the email. Moreover, the order approved by the Deputy Judge describes the promises as those "identified" in paragraph 47 of the judgment. It is said that the identification of the promises falls some way short of being a description of them.
18. There is, in reality, very little between the parties on this issue. Mr Hext QC accepted that the court is entitled to have regard to the email of 8 April 2013, and other emails, when considering the scope of the obligations that were agreed. To my mind the position is clear. The Deputy Judge was not intending paragraph 47 of his judgment to be the last word on the scope of the promises. He was, however, making findings of fact that cannot now be disturbed. Each of the promises arises from the agreement. To the extent that there are issues of construction about their scope, it is permissible for me to have regard to the email dated 8 April 2013 and to the documents signed and executed on 11 April 2013 that formed part of the overall settlement terms. I will return later in this judgment to two matters. First, the question of whether the consent orders properly reflect the terms of the agreement as they were found to be by the Deputy Judge. Secondly, the extent to which it is permissible for me to have regard to any documents other than the judgment, the email dated 8 April 2013 and the documents executed on 11 April 2013. Both sides have sought to rely on additional emails as an aid to understanding what was agreed.
19. It is not open to me to go behind the findings of fact made by the Deputy Judge in paragraph 47 of his judgment, but it is permissible to shed light on the scope of the promises that were made where there is ambiguity. In effect, I am able to construe the findings of fact made by the Deputy Judge. It is analogous to a situation where a judge has concluded that the terms of a contract were set out in a document and, at a subsequent hearing, issues of construction about the proper meaning of those terms arises.
20. The remaining preliminary issue is resolved by paragraph 47 of the judgment itself. The Deputy Judge was explicit that the inquiry is to consider the liability that arises on Mr Aidiniantz's promises that certain payments would be made. In the case of the legal costs of the litigation, his promise is that Rollerteam would make the payment. The promise is undoubtedly that of Mr Aidiniantz and a failure by Rollerteam to make the payment is a failure on the part of Mr Aidiniantz to fulfil his promise. The position is equally clear in relation to the third promise where the finding of fact is that Mr Aidiniantz will pay all mortgage payments for 1 Albion Mews. That does not detract from the overarching conclusion that all the promises were made by Mr Aidiniantz and for him to comply with. Possibly the drafting of the judgment could have been clearer, but I can see no good reason to go behind what the Deputy Judge said in terms in the introductory words in paragraph 47, before setting out the promises. The promises are all made by Mr Aidiniantz and he is liable to fulfil them.
21. Mr Hext QC also relies, to the extent necessary, on two further matters. First, at the hand down hearing Mr Sims QC who appeared for Rollerteam and Mr Aidiniantz submitted that the liability was that of Mr Aidiniantz and opposed Mr Hext QC's submission that there should be joint liability on the part of the claimants. It is unnecessary to quote from the transcript because what was said cannot be disputed. Mr Hext QC says, first, that an admission has been made on behalf of the claimants from which they cannot resile and, secondly, that the claimants are now estopped from taking a different position. He invited me to accept that had the claimants put forward their case as they now do, and the Deputy Judge had held that only Rollerteam was liable, a respondent's notice would have been served.
22. It is unnecessary for me to deal with either of these points, but there is considerable force in both of them. The spectre of the claimants taking a contradictory position to that taken earlier is deeply unattractive and blatantly opportunistic. Had it been necessary to do so, I would have held that the claimants are estopped from asserting that only Rollerteam has liability for the promises identified in paragraph 47 of the judgment.

Paragraph 47(1)

23. The principal issues for determination in the inquiry arise under the first promise. The issues have been defined in slightly different ways by the parties but in essence they are:

(1) What is the scope of the promise? Does it include (a) only legal costs Ms Riley was liable to pay before the promise was made or (b) costs she became liable to pay subsequently?

(2) What is the meaning of "borne".

(3) What is the meaning of "the litigation".

(4) What is the effect, if any, of the consent order dated 11 April 2013 that forms part of the settlement agreement?

(5) Did the payment of £172,998.75 which Mr Aidiniantz procured in June 2013 discharge his obligation under the promise?

(6) How much, if anything, is Mr Aidiniantz liable to pay?

24. The starting point is to consider the scope of the promise that was made and, in doing so, I bear in mind that the promise was made informally by one family member to another with a view to bringing to an end all the litigation that was on foot between them. It would not be right to construe the promise as if it were a contractual promise made in a written contract drafted by lawyers in a commercial context. It is also right to have regard to the email from Mr Aidiniantz dated 8 April 2013 because in making findings of fact about the creation of legally binding promises, the Deputy Judge was summarising the contractual obligation by reference to that email. It is not open to the court to have regard to emails that post-date 11 April 2013, being the date when the agreement was concluded (Lewison - The Interpretation of Contracts 6^th Ed. at 3.19) or any evidence from the parties about what they intended.
25. The email sent on 8 April 2013 deals with the question of costs in brief terms. There is one sentence in the last section of the email that provides the terms Mr Aidiniantz was describing for the benefit of his solicitor. He says the text of the email contains "the gist of the agreement reached by myself and [Ms Riley].":

"Legal Fees

Rollerteam Ltd will pay the legal costs of SHIS and Linda Riley in the respective proceedings."

26. The email summarises an agreement that was intended to settle all four claims. The expression "the respective proceedings" plainly refers to the four claims and the passage in the email dealing with legal fees must be seen in the context of a proposed settlement of all the claims. Mr Hext QC referred me to three emails sent on 11 April 2013 on the basis that they shed some light on what Mr Aidiniantz and Ms Riley intended when agreeing that legal costs would be paid. At 15.25 on 11 April 2013 Mr Aidiniantz sent an email to Ms Riley in which he suggested ways in which they could avoid telling Smithfield (and Mr Tariq Siddiqi who assisted Ms Riley with the litigation) about the settlement with a view to avoiding liability to pay what was due. The proposal was to tell Smithfield that Ms Riley had run out of money to continue the proceedings, that Mr Aidiniantz had dug his heels in, or reneged on the deal, and that Ms Riley was trying to work out another deal with him. In short, they were intending to lie to Smithfield. The email goes on:

"Basically you should throw [Smithfield] and Tariq off the scent by saying that there has not been any type of settlement and I have simply done a dirty – and say to them that you can't afford to fund mum's claim anyway.

They obviously shouldn't cotton on that you or Jenny have received any money as it is not their business to know anything and if they knew anything you can be sure that Tariq would know, which would not be a good idea."

27. At 3.53 Ms Riley sent to Mr Aidiniantz a list of what "I have had paid out so far" and asked for payment, inter alia, of the legal fees. Her email then goes on, under the heading "money still owed" to list figures due to Bromptons and Jim Diamond. Smithfield is included in the list with "??" next to the name.
28. At 17.02 that day Mr Aidiniantz replied. After dealing with ways in which their agreement^[2] could be implemented and the mitigation of any tax liability, Mr Aidiniantz deals with the payment of legal costs:

"On the question of payments can you get all the Smithfield bills up to date and indicate on them what bills have been paid by you and leave the unpaid bills separately unmarked so I know those have to be paid. Keep copies for your own interest."

29. In his judgment, the Deputy Judge defines "the litigation" early on as including all four claims. In using that term in paragraph 47(1) he clearly intended to refer to all four claims and this is consistent with the expression used by Mr Aidiniantz in his email where he refers to "the respective proceedings". As a starting point, therefore, the promise can be seen to have a broad scope. It is also right to refer to paragraph 11 of the judgment where the Deputy Judge records that Mr Aidiniantz "… was concerned at the solicitors on the record, Smithfield Partners running up costs which he was going to bear since Ms Riley had been paying their mother's costs and he was agreeing to pay her costs."
30. Ms Riley was a party to two of the claims. Significant fees were also incurred in the claim brought by SHIS against Ms Riley. Evidence was given by Ms Riley at the inquiry about the terms of her retainer with Smithfield and her liability to pay them for legal work undertaken, not just for her in the claims where she was a party but in the other litigation. It is not in doubt that Ms Riley was the only member of her side of the litigation that had the ability to meet significant sums of legal fees. Later, Ms Riley counter-signed as a deed a letter described as an Acknowledgement of Debt and Guarantee from Smithfield to her dated 8 July 2014, the effect of which was to make her liable to pay all the fees that had been incurred and were to be incurred by Smithfield in the litigation and in connection with a winding up petition against her company, Square Peg Limited. Paragraph 2 of the letter provided:

"2. In acting for the Clients in relation to the Court Proceedings, we incurred and are incurring substantial fees which are payable by the Clients but it was acknowledged by you upon commencement of the proceedings (and by course of conduct during proceedings by you paying fees on behalf of the Clients and in various conversations with Nick Foster of this firm) that you, , would underwrite the fees incurred by the Clients." [sic]

31. I am in no doubt that paragraph 2 of the letter accurately records the position. Although there was no written agreement between Ms Riley and Smithfield prior to 11 April 2013 evidencing her agreement to bear all the legal costs in the litigation, such an agreement was made between her and Mr Foster. I accept their evidence on this point. (It was not challenged by Mr Aidiniantz). It follows that Ms Riley had a legal obligation to pay Smithfield for all the costs that had been incurred in the litigation (that is all four claims) at the time the settlement agreement was reached and for future costs incurred in bringing the litigation to a conclusion.
32. Legal costs can fall into a number of categories at any given moment. They may (a) have been billed and paid or (b) have been billed but remain unpaid or (c) be fees that remain unbilled or work in progress or (d) be fees that are yet to arise because the relevant work will be done in the future. In relation to future work, a liability will not normally have been incurred, but this is not invariably such as where an agreement is made to pay a brief fee for a trial that is some time away. But even with a more mundane situation, the client will have a contingent liability for future work that falls within the retainer, subject to the retainer continuing.
33. Mr Aidiniantz invites the court to take a narrow view of his promise to pay the legal costs "borne" by Ms Riley. The notion of an expense being borne would normally entail the expense being carried or paid and looks backward rather than to the future. Clearly the legal costs falling in my category (a) have been borne in that sense. However, it is notable that the words chosen by Mr Aidiniantz for his email sent on 8 April 2013 are rather wider than the words used by the Deputy Judge. An agreement 'to pay the costs of a person' is much wider than an agreement to pay the costs 'borne' by that person.
34. I have doubt about whether it is permissible to refer to the email exchange on 11 April 2013 quoted above. It is necessary to distinguish between documents that form part of the agreement and documents that were created in the course of the agreement being reached (the latter are broadly 'negotiation documents'). The judgment is clear that the agreement is to be found in the email dated 8 April 2013 and the documents executed on 11 April 2013. The emails sent on 11 April 2013 could be seen either as negotiation documents or as documents containing relevant contextual information that was in the minds of the parties at the time the agreement was concluded. It was assumed by counsel that they fall into the latter category and I will have regard to them although I have some doubt about their admissibility.
35. From the email exchange on 11 April 2013 it is possible to discern that both Ms Riley and Mr Aidiniantz had in mind that there were unbilled costs, hence Ms Riley's marking "??" next to Smithfield in her list of further items to be paid. Mr Aidiniantz was proposing a course of action by which Smithfield would not be told the true position with a view to minimising his liability. At that stage, Ms Riley went along with the deception. Her evidence, however, which I accept, is that she did so under pressure from her brother. She expressed her unhappiness with his behaviour both then and in the past in very direct terms when giving evidence.
36. Even without regard to the emails passing on 11 April 2013 it is clear to me that in the context of a settlement agreement of this type, an agreement to pay costs borne by a party imports a degree of futurity. It was intended to include not just costs that had been borne, by having been billed and paid, but also costs relating to the litigation that had yet to be paid, whether or not they had been billed. 'Borne' in this context does not mean that a legal liability to pay has been incurred.
37. The issue of construction is less obvious in relation to the cost of work in the litigation that had not yet been undertaken However, the parties knew that some work would be required by Smithfield to bring the litigation to a conclusion and it would be highly artificial to conclude they intended there was to be a complete cut off for any work that was necessary to implement the agreement as at 11 April 2013. It is possible to envisage situations in which the court would need to construe the obligation in such as way as to put a limit on the liability for future costs, but the point does not arise here.
38. I am satisfied that the agreement, properly construed, created a liability on the part of Mr Aidiniantz to pay the legal costs which Ms Riley was liable to pay to Smithfield in all four of my categories (a) to (d), subject only to the future costs being those that were reasonably necessary to bring the litigation to an end. It matters not that there may have been an entitlement to recover costs from other parties. Indeed, the suggestion that because Smithfield looked to another party to pay part of the costs leads to the conclusion that Ms Riley had no liability is obviously wrong.
39. Mr Aidiniantz says that the payment he procured Rollerteam to make of £172,998.56 discharged his obligation under this promise. There is, however, no evidential basis for this assertion. It is right the payment was made and it was intended to cover fees that had been billed. However, there is nothing to suggest there was a binding agreement to accept the payment in full settlement or any promise to that effect. Subject to the effect of the consent orders, if any, it is purely a question as to whether, as a matter of fact, there are further sums Ms Riley is due to pay, or has paid, to Smithfield. If there are, Mr Aidiniantz is liable to pay them.
40. There are three consent orders, each in the Tomlin form. Any analysis of their effect needs to distinguish between the two elements of the orders, that is the order itself and the contractual agreement that is set out in the order. (The latter is not strictly part of the order).
41. Mr Aidiniantz's case is that the Deputy Judge made no findings in relation to the consent orders and their affect is to cap his liability to pay only those costs which she had paid prior to 11 April 2013. Although it is right that the judgment does not contain an express finding on this subject, it was part of Mr Aidiniantz's pleaded case that the consent orders varied any agreement that had been made. Mr Sims QC submitted at the trial that the orders had the effect of extinguishing any agreement that had been made. The agreements reflected in the order were said to be in substitution for such agreement. The pleaded case on this subject is set out in paragraphs 55 to 57 of the Amended Reply and Defence to Counterclaim. The Deputy Judge held that an agreement was reached on the terms set out in the email dated 8 April 2013 as amplified by the documents signed on 11 April 2013. It is not open to Mr Aidiniantz to disturb that finding. It is strictly unnecessary to consider them in more detail, but I will do so since they were the subject of additional submissions.
42. The Tomlin order in the claim brought by Grace Aidiniantz (Claim HC13B01009) was signed on 11 April 2013 and was therefore part of the settlement concluded on that date. The order itself provides for the Defendants to the claim (Mr Aidiniantz and Rollerteam) to pay Grace Aidiniantz's costs of the claim. The schedule to the order contains a waiver as between the parties to the claim. Neither could have any effect on Mr Aidiniantz's agreement to reimburse the costs paid, and to be paid, by Ms Riley in that claim and the other claims.
43. The other orders do not assist Mr Aidiniantz. Neither Ms Riley nor Ms Decoteau were a party to Claim HC12E004866. The order dated 29 May 2013 requiring SHIS to pay the defendants' costs has no bearing on the agreement I am concerned with and, in any event, Ms Riley and Ms Decoteau were not parties to the release in the schedule to the order.
44. The order dated 29 May 2013 made in claim HC13E01288 has greater potential significance because Ms Riley and Ms Decoteau were parties to the claim. The order provided that there was to be no order for costs in the claim. The order dated 29 May 2013 does no more than state that the court is not making an inter-partes costs order. It is, therefore, neutral. The schedule contains a release drafted in wide terms that touches upon not just claims in the proceedings but also "… all and any other claims howsoever arising and of whatsoever nature…". For the purposes of Mr Aidiniantz's current case, that part of the agreement falls to be construed, with the 11 April 2013 agreement being an important part of the relevant context. Had the parties intended to vary the agreement reached on 11 April 2013, they would have said so. It is easy to see that the schedule to the order was not intended to disturb the status quo concerning the overall settlement agreed on 11 April 2013. Construed objectively, it is inconceivable the parties intended to change that agreement.
45. The final issue under this heading is the amount that is due. I accept Mr Foster's evidence. He had located an error in the calculation and in evidence in chief corrected his witness statement. The sum that is due is £183,849.63.

Paragraph 47(b)

46. The second promise is that Ms Riley would be reimbursed "all mortgage payments for 1 Parkgate Road since September 2012". It follows from the earlier part of this judgment that the promise is one that binds Mr Aidiniantz personally. It matters not whether he pays any sum that is due personally or procures Rollerteam (or any other entity) to pay it. It also does not matter that the party with the obligation to pay under the trust deed executed on 11 April 2013 is Rollerteam or that Ms Riley has demanded payment from Rollerteam, rather than Mr Aidiniantz. The Deputy Judge has determined that Mr Aidiniantz is the party who is liable and it is not open to him to claim now that the deed of trust has the effect of negating any personal liability he may have had.
47. Between September 2012 and September 2017, Ms Riley paid a total of £91,419.92 by way of mortgage payments for 1 Parkgate Road. She either made these payments personally, or by using her director's loan account at Global Diversity Awards Limited. The source of payment is put in issue by Mr Aidiniantz. He says there is only an obligation to reimburse payments she made. Such an assertion is plainly unsustainable. A payment made on behalf of Ms Riley, by her agent or a third party, at her request is a payment made by her for the purposes of the agreement.
48. On 15 April 2013, Rollerteam paid Ms Riley £22,400 leaving a balance claimed of £69,019.92.
49. Mr Aidiniantz's primary case is that the promise was to pay the mortgage up to 11 April 2013, or in the alternative, up to the date of Deputy Judge's judgment.
50. At the hand down hearing before the Deputy Judge, Mr Hext QC sought to persuade the Deputy Judge that the words "to date" should be added to the promise to make clear that the promise was to apply up to the trial of the claim. However, that adjustment to the promise was not accepted. It is not right, however, that by declining to adjust the wording of the order, the Deputy Judge was determining the term during which the promise would run. The point was not fully debated at the hand down hearing. The finding by the Deputy Judge in his judgment must be seen in the context of the email sent by Mr Aidiniantz on 8 April 2013. The email includes the following paragraph after having dealt with the agreement to reimburse:

"Rollerteam Ltd will henceforth take over all mortgage payments on this property and will endeavour to obtain funding via the museum to redeem Linda's mortgage at the earliest opportunity."

51. The Trust Deed executed on 11 April 2013 specifies at Clause 8 (Ms Riley is the "Owner" and Rollerteam is the "Beneficiary"):

"8. Mortgages

Subject to reimbursement by or on behalf of the Beneficiary the Owner shall:

(a) pay all amounts due by way of mortgage interest or mortgage capital or otherwise payable under or in connection with any mortgage secured on the Property (Mortgage); and

(b) comply with the terms and conditions of any Mortgage."

52. Having set out the promises in paragraph 47 of his judgment, the Deputy Judge went on to say in paragraph 48:

"It may be that some declaratory relief could also be appropriate in respect of future payments on 1 Parkgate Road and 1 Albion Mews. I will hear Counsel on this. However, I am conscious that compliance with what was envisaged by the settlement in this respect is not a matter within the sole power of Mr Aidiniantz himself. Possibly, if in future Mr Aidiniantz does not meet his commitments when they fall due, a pecuniary remedy may then become appropriate."

53. I do not consider this aspect of the inquiry gives rise to any difficulty at all and the position taken by Mr Aidiniantz is completely without any merit. First, the finding made by the Deputy Judge is not temporally limited in any way. A beginning date is given but no end date. This accords both with the email sent on 8 April 2013 and the Deed dated 11 April 2013. Secondly, it is clear from paragraph 48 of the judgment that the Deputy Judge considered that Mr Aidiniantz had both a current and a future liability to reimburse Ms Riley for mortgage payments.
54. Ms Riley is the legal owner of the property and the mortgagor. As such she had a contractual liability to pay the mortgage. The idea that Mr Aidiniantz should not be liable to reimburse her during the period in which he denied there was an agreement is one that does not bear closer examination. He has taken a narrow and unmeritorious point based upon the expectation, under the agreement, that he/Rollerteam would take over the mortgage payments immediately. He did not do so because he denied that an agreement had been concluded. The sense of the agreement is clear. Ms Riley would be reimbursed for payments made in relation to a property in which she had no beneficial entitlement. Had the agreement been implemented, the period of reimbursement would have been limited. In the way things have turned out it has become extended. I am satisfied that the focus of the parties' contemplation was on reimbursement to match the declaration of trust, not on whether the period during which reimbursement would be made might extend beyond April 2013.
55. It matters not that the obligation under the Declaration of Trust is placed on Rollerteam. The promises that lie behind the Declaration of Trust were given by Mr Aidiniantz, and Ms Riley is entitled to enforce them against him. Furthermore, both claimants gave an undertaking to the court to comply with the Declarations of Trust. Mr Aidiniantz is in breach of his undertaking but that has not prevented him from trying to contest liability.

Paragraph 47(c)

56. Mr Aidiniantz promised to pay all mortgage payments due for 1 Albion Mews from 11 April 2013 together with any arrears due as at that date. Here the sum at issue is just £5,000 arising from a payment made by Ms Riley on 9 January 2017. There is no dispute now about the payment having been made. The property has recently been sold.
57. Mr Aidiniantz does not plead a defence to this aspect of the claim save for relying on a set off based upon his allegation that Ms Riley was in breach of trust by failing to transfer this property to him on 28 March 2014 when requested to do so. Quite how this could in law, and as a matter of fact, amount to a defence to the claim is unclear and (rightly) this part of Mr Aidiniantz's case was not pressed at the trial. Again, Mr Aidiniantz was in breach of his undertaking to the court.

Paragraph 47(d)

58. Mr Aidiniantz promised that Ms Decoteau would be reimbursed all mortgage payments on 30 Wimbledon Road London SW17 until she receives the balance of the sum of £1 million she was due to be paid.
59. 30 Wimbledon Road was registered in the name of Ms Riley and was subject to a mortgage in her name. The property was occupied by Ms Decoteau until it was sold on 9 September 2016.
60. There is undisputed evidence from the mortgagee that the mortgage on the property was paid between September 2012 and September 2016. The amount paid during this period was £54,636.68 and reimbursement of that sum is sought. If there is liability to repay it, it falls on Mr Aidiniantz for the reasons I have already given. His defence has two strands to it:

(1) He alleges that Ms Decoteau expressed an intention, at the time the settlement was made, to buy the property from Ms Riley when she received the sum due to her and to obtain a mortgage. This is denied by both Ms Decoteau and Ms Riley. Mr Aidiniantz seeks to spell out from the agreement an obligation that is limited in two ways. First, reimbursement is limited to the mortgage payments made by Ms Riley between September 2012 and April 2013. Secondly, after that date, the obligation was to pay Ms Decoteau's mortgage instalments until she received her money.

(2) The obligation is to reimburse Ms Decoteau and no one else. If, in the event, the payment was made by Ms Riley, there is no liability to pay.

61. Ms Riley and Ms Decoteau have given evidence that Ms Riley made the payments because prior to the settlement Ms Decoteau did not have the ability to pay at the time and they were made on behalf of Ms Decoteau. They say that Ms Decoteau made a loan to Ms Riley in June 2013 of £160,000 from the £300,000 she had received from Mr Aidiniantz and the loan was being repaid by Ms Riley making the mortgage payments. The loan is said to be evidenced by three payments totalling £160,000 made from Ms Decoteau's account to Ms Riley's account with Halifax.
62. The evidence provided at the trial by Ms Riley and Ms Decoteau concerning the loan of £160,000 was entirely unsatisfactory and I am unable to accept it. Ms Riley provided in evidence what was said to be a copy of a statement from her account with Halifax showing receipt of the three payments from Ms Decoteau. However, she was unable to recognise the document as such when she was asked about it; this is unsurprising because it has no identifying features such as a reference to Halifax, or her, or her account. Furthermore, a statement made by Ms Decoteau dated 29 April 2015 in the SHIS claim set out payments made by Ms Decoteau out of the sum of £300,000 she received from Mr Aidiniantz, but makes no mention of a loan of £160,000 to Ms Riley. There was no such loan which was a creation designed to assist with this claim, although it is difficult to understand why they felt it was necessary to elaborate what is a simple claim for reimbursement.
63. The core facts are not in dispute. Ms Riley was the legal owner of 30 Wimbledon Road and obliged to pay the mortgage as the mortgagor. She made payments to the mortgagee amounting to £54,636.68. 30 Wimbledon Road was Ms Decoteau's home and it was seen as 'her' property albeit the legal title was not held by her. The issue for the inquiry is whether Mr Aidiniantz is obliged to pay Ms Riley the whole or part of that sum.
64. At the time of the agreement, the parties knew that the legal title and the mortgage were held by Ms Riley. Equally, it must have been clear that Ms Decoteau would not be able to purchase the property and obtain a mortgage in her own name until payment of the full amount of £1 million had been received. When seen in the light of this context, the promise made by Mr Aidiniantz takes on a different complexion. Regardless of whether Ms Decoteau said she intended to purchase the property, and on balance I find that such a statement was not made, it is incontrovertible that the only person who could be reimbursed, in the sense of defraying a legal obligation to pay, up to the date of the agreement was the mortgagor, Ms Riley. If Ms Decoteau had been making payments (which she was not), she could only have been doing so on behalf of Ms Riley. As it was put in the email dated 8 April 2013, Ms Decoteau's mortgage on 30 Wimbledon Road can only be seen as a reference to the mortgage in Ms Riley's name.
65. In my judgment, properly construed, this promise obliged Mr Aidiniantz to reimburse payments under the existing mortgage on 30 Wimbledon Road from September 2012 to the date the payment of £1 million was made in full. It does not matter that the title was not transferred by Ms Riley to Ms Decoteau. The agreement only makes sense if it is construed in this wider way and it was unnecessary for Ms Riley and Ms Decoteau to go through the charade of seeking to prove loans between them.
66. It is not right that the only person to whom Mr Aidiniantz was obliged to make payments was Ms Decoteau. The crucial aspect of the promise was the reimbursement of payments due under the mortgage on the property, not who the payee under the promise might be. Ms Riley and Ms Decoteau can elect, for the purposes of the order that will follow on from this judgment, which of them is the party to whom Mr Aidiniantz must pay £54,636.68.

Paragraph 47(5)

67. Mr Aidiniantz promised to pay £4,000 per month to Ms Riley for the period between September 2012 and April 2013 in reimbursement of household expenses and household bills for 1 Parkgate Road (a period of 8 months). On the face of it, there is a liability to pay £32,000 with credit being given for the payment of £25,000 on about 15 April 2013. There is no defence to the claim for £7,000. The monthly sum was fixed at £4,000. It matters not whether as an estimate of the actual costs to be incurred it was accurate. There was no agreement to accept a lesser sum in full settlement and the balance of £7,000 must be paid. Indeed, the Deputy Judge made a finding about the scope of the promise and made no finding to the effect that it had been varied or satisfied.

Conclusion

68. Mr Aidiniantz is liable to pay the following sums:

(a) £183,849.63

(b) £69,019.92

(c) £5,000

(d) £54,636.88

(e) £7,000

69. I will hear counsel about consequential issues on the handing down of this judgment.

Note 1   At paragraph 6 of the judgment the Deputy Judge noted that as at April 2013, there were four sets of proceedings on foot. They are summarised in that paragraph. He defines them compendiously as “the litigation”.    [Back]

Note 2   At this stage the agreement was on the cusp of being concluded and on one analysis was concluded by the time the exchange of emails was complete.    [Back]