BUSINESS AND PROPERTY COURTS IN MANCHESTER
BUSINESS LIST (Ch D)
1 Bridge Street West
Manchester M60 9DJ
B e f o r e :
(sitting as a Judge of the High Court)
| RONALD DAVID WALKER
2) CLARION WEALTH PLANNING LIMITED
3) CLARION INVESTMENT MANAGEMENT LIMITED
|- and -
|MARK RICHARD MILLS
2) INSURANCE & LEGAL SERVICES LIMITED
David Casement QC (instructed by DWF LLP) for the Defendants
Hearing dates: 9th, 10th, 11th, 12th, 13th, and 16th April 2018
Crown Copyright ©
HH Judge Eyre QC:
The Background History.
Further to our discussion, if you provide me with a lead for a Comerga client, I will share with you, upon receipt of funds, 25% of any fees I generate plus 33% of any lump sums fees earned in the event of the sale of that company.
I suggest when you have one, such as the micro camera people, you email me and I confirm these terms back and that I do not know them nor have been introduced to me before. Thank you and here's to a successful set of sales.
Kind regards Mark"
I don't think we need to worry about potential scenarios in which you already know the client in some way; it should be evident if our introduction/re-introduction and endorsement is the thing that makes it happen and I'm sure we will both recognize if that is the case.
I am sure we are going to have some successes and also enjoy the journey.
"Hope to be in work tomorrow and will call you.
In the meantime google Mark Mills Cardpoint. Mark is our non exec chairman and I think it would be good for you to meet him."
Assessment of the Central Witnesses.
i) As I have already explained Mr. Walker was not prepared to accept that his account of the strength of the friendship with Mr. Mills might have been overstated. This was an attitude which he manifested in other parts of his evidence in that he was not prepared to countenance any deviation from the account put forward in his witness statement even when confronted with material inconsistent with that account. I formed the firm impression that Mr. Walker was unwilling to give an answer which he thought might weaken his case or which might mark a departure from the account set out in his witness statement. Even if that unwillingness is not seen as being a conscious stance it did demonstrate an inability to consider matters objectively in that having persuaded himself of a matter Mr. Walker maintained that position even when it was demonstrably unrealistic.
ii) On 3rd August 2015 the Second Claimant rendered an invoice to the Second Defendant in the sum of £606,250. This related to the 33% share of £1.8m due under the Introduction Agreement following the sale of Mr. Wilson's interest in Mini-Cam Ltd. This invoice was raised by the Second Claimant following instructions from Mr. Walker to Matthew Sherratt who was the Second Claimant's finance manager. If Mr. Walker's case is right then he was personally entitled to that payment and it was Mr. Mills rather than the Second Defendant who was liable to pay it. Mr. Walker was unable to provide a credible explanation for why the invoice was rendered by the Second Claimant or rendered to the Second Defendant. In his witness statement he had said that in his eyes he was Techline and the Second Claimant and that it made little difference to him where the monies were received. In that statement he also said that he was "just keen to get the money in" and that the Second Claimant "provided the easiest and most visible means of doing so." He said that it was easier to arrange an invoice from the Second Claimant. The Techline partnership did not have online banking but the Second Claimant did and so by using the Second Claimant it would be possible to see when the payment had cleared. I found the suggestion that it was somehow quicker for an invoice to be rendered by the Second Claimant and for payment to be made to that company than for Mr. Walker raise an invoice and for payment to be made to his own bank account unrealistic. Indeed, in cross-examination he was markedly reluctant to engage with this matter. In part Mr. Walker's explanation came down to saying that he thought this would be more tax efficient because Corporation Tax would be paid by the Second Claimant at a lower rate than he would pay income tax if he had received the funds personally. He went on to say that the money was paid out shortly after as a dividend and so would have been liable to income tax in his hands. In that regard I note that although dividend payments were made by the Second Claimant there did not appear to be a payment which could be seen as coming shortly after the payment of the £606,250 and as corresponding to that amount. The invoice in its terms is inconsistent with Mr. Walker having a personal entitlement to payment and Mr. Walker's unconvincing attempts to explain why he directed it to be rendered if he believed that he was the person entitled to payment detract from his credibility. At its best for Mr. Walker the arrangements made for payment of this sum and his explanations for those show that he failed to distinguish between sums owed to him personally and those owed to the various companies.
iii) During the course of the engagements with Mini-Cam Ltd and Catalloy consultancy payments had been made by those companies to the Second Defendant. The Introduction Agreement provided for 25% of these sums to be paid to the other party to that agreement. In satisfaction of that obligation sums totalling £88,125 had been made in the period from March 2013 to July 2015. At the request of Mr. Walker those payments were made to Techline. In the Reply the Claimants said that Mr. Walker had done this "as he considered, after taking advice, that this would be a tax efficient method of receiving the monies due to him." In a reply (confirmed by Mr. Walker's signature of a statement of truth) to a request for further information it was said that the advice had been given by Rachel Murphy of Hurst. In that reply Mr. Walker set out the advice which he alleged had been received saying that this was to the effect that it would be more tax efficient for him to receive money through Techline rather than to him directly and that it would be beneficial if Techline received payments from other sources in addition to from Clarion Plc. Miss. Murphy provided a witness statement in which she said she "did not specifically provide" that advice. In his witness statement Mr. Walker explained that he had not received advice about the particular payments under the Introduction Agreement but maintained that he had received the advice as to the tax efficiency of payments being made to Techline. In his oral evidence Mr. Walker said that the advice had been given in general terms. In her oral evidence Miss. Murphy accepted that there had been general conversations about the existence of Techline and about the reason for its existence and accepted that these might have given the impression that it would be better for Techline to receive income from sources other than Clarion Plc. However, Miss. Murphy did not recall discussions about the tax efficiency of the arrangement. I am satisfied that in this regard Mr. Walker sought in the Reply and in the Further Information to give the impression that he was acting upon advice and that he sought to portray that advice as being more closely related to the making of these payments to Techline than was in fact the case. This reflects on the credibility of Mr. Walker's evidence. However, I must and do take account of the fact that in his witness statement and his oral evidence Mr. Walker accepted that the advice was not as directly focused as he had indicated in the pleadings.
iv) Mr. Walker asserted that he had told Mr. Mills of the liquidation of Clarion Plc and went so far as to say that this had been mentioned several times. However, he was wholly unable to give any details of when or in what circumstances Mr. Mills had been told nor was he able to give any details of the way in which Mr. Mills reacted to this news. This evidence was unpersuasive. Mr. Mills denied that he had been told of the liquidation and I prefer his evidence on this question to that of Mr. Walker. It may be that Mr. Walker had come to believe that he had told Mr. Mills of the liquidation but I cannot accept that he had actually done so. In that regard it is of note that although Clarion Plc had gone into Creditors' Voluntary Liquidation by the time of his witness statement Mr. Walker made no reference to that fact in that statement although there were at least two references to the date when the company had gone into Members' Voluntary Liquidation.
v) In September 2012 insolvency practitioners, Duff & Phelps, were engaged to provide advice to Clarion Plc. That advice was given in the context that the company was considering a move into liquidation. A report dated 26th September 2012 was provided and there was to be a meeting attended by Mr. Walker, representatives of Duff & Phelps, and staff from Hurst on 1st October 2012. In preparation for that meeting Hurst prepared a document setting out questions arising from the Duff & Phelps report. The significance of this document is that it states that Miss Murphy of Hurst and Mr. Walker recalled Duff & Phelps having given contradictory advice in an earlier meeting. It is said that the earlier meeting or meetings "took place between September 2009 and February 2010 and related to both Clarion Plc and Catalloy Ltd". It goes on to say "Notes of these meetings show…". The Defendants say that this shows that Mr. Walker had been aware of the potential insolvency of Clarion Plc from early 2010 and had concealed that knowledge throughout. I have already explained that I do not accept that Mr. Walker had been deliberately concealing knowledge of insolvency. However, what is relevant for present purposes is that when asked about this document Mr. Walker gave answers which were unconvincing. Miss. Murphy said that she believed that the document had been prepared by her colleague Miss. Gallagher. She could not at this stage recall the dates of the first occasion when the advice of Duff & Phelps had been sought in respect of the affairs of Clarion Plc. However, she believed that the document would have been compiled by reference to Hurst's records. In the light of that evidence and by reference to the terms of the document it is my conclusion on the balance of probabilities that the document was referring to meetings which had taken place in late 2009 or early 2010 with Duff & Phelps; that the advice which had been given then related in part to Clarion Plc; and that the compiler of the document had referred to notes of those meetings in preparing it. Mr. Walker was not prepared to accept that there had been consideration of the position of Clarion Plc at that stage and contended that the compiler of the note must have made a mistake. He said that the earlier conversations had related to a client or clients of Clarion Plc and not to that company. In my judgment this was an instance where Mr. Walker sought to explain away inconvenient material and where he strove to avoid giving an answer which he thought might be harmful to his case rather than reflecting on the true position.
vi) As I will explain below the terms of the e-mail exchanges in December 2012 have compelled me to reject Mr. Walker's assertions that he told Mr. Mills of the Wilsons' name at the meeting on 7th December 2012 and that he had told the Wilsons about Mr. Mills before his e-mail of 20th December 2012. Mr. Walker's account of these matters could not be accepted once the contemporaneous documents had been considered. As with other matters Mr. Walker failed to engage with the documents when he was asked about them but instead persisted in assertions which could not be accepted.
vii) There were a number of matters in respect of which Mr. Walker's answers in cross-examination were evasive. In assessing Mr. Walker's oral evidence I have reflected on the stress of giving evidence (and Mr. Walker did appear a nervous witness certainly at times) and warned myself again of the danger of placing excessive weight on the demeanour of a witness. Nonetheless, I was compelled to conclude that Mr. Walker failed to engage with or respond directly to questioning about his knowledge of Clarion Plc's potential tax liability; his knowledge of Comerga; about what he meant when he said to Mr. Mills in an e-mail dated 19th March 2013 that he had spoken to another potential client about the "Comerga offering"; and about what he meant by saying that he understood that Comerga and Mr. Mills were separate entities. In these respects Mr. Walker sought to avoid giving answers which might have an adverse effect on his case.
The Making of the Introduction Agreement.
The Discussion of "Comerga" at Piccolino.
The Parties to the Introduction Agreement.
i) It is said that the relationship between Mr. Walker and the persons to be introduced was a personal one based on the dealings which Mr. Walker had had with those persons over a number of years. The force of the introduction and the benefit of it to Mr. Mills or the Second Defendant was that it was an introduction being made by Mr. Walker himself.
ii) Neither Mr. Mills nor the Second Defendant would be concerned as to whether the person being introduced was a client of Clarion Plc or a person known to Mr. Walker in some other capacity. The benefit of the introduction to the Defendants was that it gave an opportunity to receive payment for providing company grooming services. It follows that the Defendants would, the Claimants say, have been willing to contract with Mr. Walker in his personal capacity. Indeed, if the Introduction Agreement had been confined to Clarion Plc the Defendants would have been restricting the range of potential introductions.
iii) The Claimants rely on the wording of the 10th December 2012 e-mail from Mills which was addressed to "Ron" and which repeatedly said "you" – thus "… if you provide me with a lead … I will share with you…". The Claimants say that this shows the intention was that it would be Mr. Walker who would provide the leads and he who would receive the fees.
iv) Mr. Walker said that he had discussed with Mr. Mills the introduction of persons whom he knew but who were not clients of Clarion Plc. He says in particular he had mentioned Rob Noble of a business called Great Fridays; Tim Crutchley and his business called Hot Drops; and other persons who were his contacts rather than contacts of Clarion Plc. He referred to the notes of a Board Meeting of 23rd October 2012 on which Mr. Mills had written "GreatFridays.com – Rob Noble". Mr Mills did not accept that there had been discussion of introductions to these people. He accepted that the names Rob Noble, Great Fridays, and Tim Crutchley had been mentioned to him but he said that they had been raised in the context of services which they could provide to Clarion Plc rather than in that of them being potential recipients of his company grooming services. On this issue I prefer Mr. Mills's explanation of the context in which those names had been mentioned. If an introduction to Mr. Mills for company grooming work had been contemplated one would have expected there to have been exchanges akin to those about the Wilsons and Mini-Cam Ltd and there were no such exchanges. I am reinforced in coming to this conclusion by the contrast between Mr. Walker's oral evidence about these matters and the impression given by his witness statement. In his oral evidence Mr. Walker listed a number of individuals and their businesses saying that he had mentioned them to Mr. Mills as persons to whom he could introduce Mr. Mills for company grooming purposes. However, in the witness statement Mr. Walker said, at , that he and Mr. Mills "had discussed on several occasions the possibility of me introducing potential clients to him" but he did not say that any persons had been mentioned by name and did not refer to any of the persons whom he told me he had mentioned by name to Mr. Mills. That contrast is noteworthy. If there had been discussions in which Mr. Walker had spoken to Mr. Mills about Mr. Noble or the others by name I would have expected reference to this to have been in the witness statement rather than the very much more generalised discussion to which reference was made. In any event in my judgment the possibility that Mr. Walker might in his personal capacity introduce persons who were not clients of Clarion Plc and receive payment in respect of them provides only very limited assistance in determining who were the parties to the Introduction Agreement because as I will explain below it was in my reading clear that the focus of that agreement was on Clarion Plc clients.
v) William Handley is an accountant who provided tax advice to Mr. Walker in respect of the latter's personal tax position. He provided a witness statement in which he said that Mr. Walker had spoken to him in early 2014 seeking advice about dealing with a potential tax liability arising from an agreement between him and Mr. Mills. In his oral evidence Mr. Handley explained that this was the impression he had formed at the time but that he could not say that Mr. Walker had actually spelt out that the agreement was a personal one. Mr. Handley also explained that his focus at that stage had been on advising as to potential arrangements for the future and for the receipt of funds in the future. This evidence does not advance matters greatly save to indicate that in early 2014 Mr. Walker was giving the impression that the Introduction Agreement had been a personal matter between himself and Mr. Mills.
vi) The introduction of Mr. and Mrs. Wilson and Mini-Cam Ltd led to the agreement dated 21st February 2013 signed by Mr. Mills and Mr. Wilson. As I will explain below I have concluded that this was an agreement between Mr. Wilson and the Second Defendant. However, what is relevant at this stage is that in the section of that letter detailing fee proposals Mr. Mills wrote "I suggest this level [sc of fees] as Ron Walker kindly introduced us…". The Claimants say that this is to be seen as an acknowledgement that the introduction came from Mr. Walker and not from Clarion Plc.
vii) Mr. Maynard-Connor laid stress on the fact that as at December 2012 the restructuring of the business of Clarion Plc was being arranged. He says that both Mr. Walker and Mr. Mills knew that there was to be a transfer of Clarion Plc's clients to the Second and Third Claimants. In those circumstances, Mr. Maynard-Connor says, it would not have made sense for the agreement to have been made with Clarion Plc as it would no longer have clients to introduce after the restructuring. I do not believe that this factor can bear the weight which Mr. Maynard-Connor placed on it. The restructuring had not yet taken place and as at December 2012 the connexion with the clients was that of Clarion Plc. In this regard it is noteworthy in my assessment that an imminent introduction was expected. Both sides are agreed that there was mention on 7th December 2012 of a potential contact. There is disagreement as to whether the Wilsons and their company were mentioned by name or just by reference to the kind of business but there was mention of a potential lead. Moreover, the introduction to the Wilsons took place in January 2013. It follows that the fact that a future potential transfer of the clients of Clarion Plc was in contemplation does not mean that there was no point in the Introduction Agreement being made on behalf of that company in December 2012.
viii) On 22nd October 2015 Mr. Mills sent the e-mail headed "resignation and termination". This concluded with the words "…I have decided to bring any and all agreements with you and Clarion to an end now and you should accept this e-mail as my immediate resignation and termination." On behalf of Mr. Walker it is said that this demonstrates a belief on the part of Mr. Mills that there was at least one agreement with Mr. Walker in addition to any agreement with "Clarion". Otherwise why would Mr. Mills have referred to ending agreements with "you and Clarion"? In that regard it is to be noted that the reason for the termination was Mr. Mills's concern about the consequences of his involvement with Mr. Welsby and Catalloy an involvement resulting from an introduction under the Introduction Agreement and in respect of which payment would have been due under that agreement. The wording of the e-mail is, indeed, a factor to be taken into account but in doing so I must take note of the context in which the e-mail was sent. It was sent at a time when Mr. Mills believed that he had been let down by Mr. Walker in his dealings with Mr. Welsby and Catalloy and it was expressed in angry terms. On behalf of the Defendants it is said that the e-mail should be regarded as having been a "belt and braces" exercise in which Mr. Mills was seeking to make it clear that all dealings with Mr. Walker were now at an end rather than the result of a careful consideration of the identity of the parties to the agreement or agreements he had.
i) The e-mail of 21st December 2012 which I have found was the acceptance of the offer contained in Mr. Mills's e-mail of 10th December 2012 had a number of features indicative of the acceptance being made on behalf of Clarion Plc. There were in fact two e-mails but both were from "Clarion" e-mail addresses – one from firstname.lastname@example.org and the other from email@example.com. Mr. Walker said that this was because he did not have a personal or non-Clarion e-mail account and that he used those addresses for all e-mails whether sent in his personal capacity or on Clarion Plc business. The fact of the matter, however, is that he was writing from a Clarion e-mail account. Not only was the e-mail address a Clarion address but the e-mail bore the name and address of Clarion Plc with links to that company's website and Clarion Plc's confidentiality notice as I have set out above. The position is equivalent to that which would appertain if this had been an agreement reached by an exchange of letters with the response from Mr. Walker being sent on the headed notepaper of Clarion Plc. This is a powerful indication as to the party on whose behalf the acceptance was being made.
ii) In the body of the e-mail Mr. Walker refers to "our introduction/reintroduction". He could have written "my introduction" and that fact that he did not do so is an indication that he was talking of an introduction made by Clarion Plc.
iii) The business of providing wealth planning and/or investment management services was operated by Clarion Plc. Mr. Walker was not a sole trader engaging in personal contracts with the sundry clients. The clients were clients of Clarion Plc and had their contracts with that company. A number of consequences flow from this. The first is that all involved would have known that the clients were clients of Clarion Plc and would have anticipated that the introductions were being made on behalf of that company. Also Mr. Walker had chosen to engage in the provision of wealth planning and investment management services to the clients with whom he dealt by way of a limited company (and had done so for a number of years). For the Introduction Agreement in respect of those clients to be made by that company would be consistent with that approach whereas for it to have been made by Mr. Walker personally would not have been. Finally, in this regard Mr. Walker was a director of Clarion Plc and owed that company fiduciary duties. The opportunity to receive payment for making introductions to the clients of Clarion Plc had come to Mr. Walker in his capacity as a director of that company. This is because his knowledge of the clients had come to him by reason of that capacity and also because his dealings with Mr. Mills had been as director of Clarion Plc. It follows that Mr. Walker would have to account to Clarion Plc for the benefits derived by him from the Introduction Agreement (at least so far as he made introductions of Clarion Plc clients) if he made that agreement in his personal capacity – Industrial Development Consultants Ltd v Cooley  1 WLR 443. This would not necessarily preclude a finding that Mr. Walker had entered the agreement in his personal capacity but it is a factor indicating that he is unlikely to have done so.
iv) It is apparent that Mr. Walker was not the only person who had contact with clients in the Clarion Plc operation and there were others, such as Mr. Walker's co-director Steven Walker, Kevin Neill, and Michael Brooke, who dealt with clients and who had clients whom they "looked after" (in Mr. Walker's words) under the umbrella of Clarion Plc. It is inherently more likely that Mr. Mills or the Second Defendant would have entered an agreement covering introductions to all such clients and not just to those clients for whom Mr. Walker was the point of contact.
v) One of the ways in which Mr. Mills sought to persuade financial advisers to provide him with introductions was to emphasise that there would be a benefit to them if the company grooming was successful. This was not only because a share of the fees or lump sums would be paid but because if there was a sale of the client's business at a good price then the client would have a substantial fund available. The client would then be in need of further financial advice and would have funds to place for investment. It is clear that Mr. Mills emphasised the potential for funds to be realised which would be placed with the financial adviser and which would increase the latter's "funds under management". Such matters would have been a benefit to Clarion Plc but not, or at least not directly, to Mr. Walker in his personal capacity.
vi) The preceding factors relate to the wording of the documents constituting the Introduction Agreement and to the context at the time the agreement was made. They are powerful factors in themselves but are supported by the subsequent actions implementing the agreement which indicate the parties' understanding of the agreement. The first of these factors is the language of Mr. Walker's 20th December 2012 e-mail to Mr. and Mrs. Wilson. In this he refers to Mr. Mills as "our non exec chairman". This is a clear indication that the introduction is being made by Clarion Plc. The terms of that e-mail are also inconsistent with Mr. Walker's contention that he had already mentioned Mr. Mills by name to the Wilsons. If he had done so he would not have been suggesting that they google Mr. Mills or explaining who he was. The language used in that e-mail is on any sensible reading most compatible with the e-mail having been the first mention of Mr. Mills to Mr. and Mrs. Wilson. As explained above this is one of the factors which has caused me to regard Mr. Walker's evidence as unreliable.
vii) On 27th December 2012 Mr. Walker e-mailed the Wilsons to confirm the meeting fixed for 22nd January 2013 at which Mr. Mills was to be introduced. That e-mail was copied to Carole Loynd. Miss. Loynd was an administrator employed by Clarion Plc. Mr. Walker said that he copied Miss. Loynd in so that the matter would be "appropriately recorded on the client file." He went on to say that all contact with clients was recorded as part of the "contact history" and that "anything I wanted recorded, whether it was personal or to do with Clarion Plc, it would go into what's called contact history". I found this explanation unpersuasive. The position was that Mr. Walker was copying a Clarion Plc employee into an e-mail relating to the making of an introduction and was doing so to enable that employee to record that contact on the file which Clarion Plc held in relation to the client in question. In short the arrangements for the introduction of Mr. Mills to the Wilsons were being treated as if the matter was Clarion Plc business.
viii) Various of the documents relating to the Introduction Agreement and disclosed by the Defendants had "Clarion" written on them in Mr. Mills's handwriting. This is of particular note in respect of Mr. Walker's e-mail of 21st December 2012 but there a number of others. In his witness statement Mr. Mills said that he had written the word "Clarion" on these documents because he had separate files for separate ventures and he wrote on various documents the name corresponding to the file so that his personal assistant would know in which file to place the document. Mr. Mills says that he wrote "Clarion" rather than "Ron Walker" on these documents because he believed that the agreement was with Clarion Plc and not with Mr. Walker. I accept Mr. Mills's account of his practice and the writing of "Clarion" on these documents is a strong indication that Mr. Mills regarded the Introduction Agreement as a part of the continuing relationship with Clarion Plc and not a new and separate arrangement with Mr. Walker personally (the latter being the Claimants' case).
ix) A similar point can be made in relation to the note which Mr. Mills wrote on the copy he obtained of Catalloy Ltd's accounts. This said "recommended by Clarion". Again this is an indication of Mr. Mills's understanding of the arrangement.
x) I have already referred to the rendering by the Second Claimant to the Second Defendant of an invoice for £606,250 and to Mr. Walker's failure to explain why this was done. The rendering of this invoice by the Second Claimant is not compatible with a belief on the part of Mr. Walker that he was personally entitled to this payment.
xi) A further factor, albeit one of limited weight, is that Mr. Wilson said that he regarded himself as having been a client of Clarion Plc and that he regarded the introduction of Mr. Mills or the Second Defendant as having been made by Clarion Plc. Mr. Wilson also said that as far as he was concerned "Ron Walker [was] Clarion Plc". This is an indication of Mr. Wilson's understanding of the body providing him with financial advice but it carries little weight because it was apparent that Mr. Wilson had not been concerned about the distinction between Mr. Walker and Clarion Plc and that it was of no concern to him at the time whether the introduction was being made on behalf of the company or by Mr. Walker in his personal capacity.
i) The e-mail of 10th December 2012 was sent from the e-mail address "firstname.lastname@example.org". It was signed "Kind Regards Mark" above the words "Mark Mills" and there is a link to a website which was a personal website promoting Mr. Mills.
ii) That e-mail says "… if you provide me with a lead" and "I will share with you…". The Claimants say that this is most naturally read as a reference to Mr. Mills personally rather than to a limited company. There is considerable force in this point.
iii) Mr. Maynard-Connor relied on the You Tube video and on Mr. Mills's promotion of himself as indicating that Mr. Mills was trading in his personal capacity or was regarded as doing so. I have already explained at  that I accept that Mr. Mills was intending to operate his company grooming activities through the Second Defendant trading as Comerga. The argument for the Claimants is that even if that was what Mr. Mills intended it is possible (and the Claimants say it was the case) that particular dealings viewed objectively gave rise to an agreement to which Mr. Mills was a party personally.
iv) The Claimants rely on the wording of the agreements which were entered with Mr. Wilson and Mr. Welsby. That with Mr. Wilson was on Comerga headed paper. The final version in the papers had the Comerga name and logo at the top of the page together with the Second Defendant's business address. It was said to be "from the office of Mark Mills, Chairman". That version did not bear at the foot of the page the words "Comerga is the trading name of Insurance and Legal Services Ltd" followed by the Second Defendant's registered number. This did appear on an earlier version and it may be that those words were lost in scanning of the papers. That with Mr. Welsby was not on this paperwork and bore Mr. Mills's home address. Each of the agreements bore at the foot of each page the name "Mark Mills" and was signed by Mr. Mills. The agreements each make reference to "my fee"; contain a table setting out the "success fee" payable on sales at different values and describe this as being "Mark Mills Payment"; and talk of that fee being "still payable to Mark Mills" in certain circumstances. Each also repeatedly uses the words "I" and "me" or "my". However, each also is in the form of a letter signed in the following form.
[there is then a manuscript signature "Mark" by Mr. Mills]
Insurance and Legal Services Limited trading as Comerga"
Mr. Mills says that the bulk of the format of the letter was copied over from the engagement letters he had been using before he decided to conduct his company grooming operation through the Second Defendant and that he did not get round to revising the references to "my" and "I" nor to altering the references to a "Mark Mills payment" to his fee. I accept that this is how the documents came to have the form which they did. However, the Claimants say that considered objectively the documents show that the agreements with Mr. Wilson and Mr. Welsby were being made by Mr. Mills personally. They go on to argue that this should be regarded as indicating that the Introduction Agreement was also made by Mr. Mills in his personal capacity. I do not find this argument persuasive. The letters are not well-drafted for the purpose of demonstrating an agreement with the Second Defendant but they do achieve that effect. Regardless of the presence or absence of the headed paper each concludes with a signature from Mr. Mills above the Second Defendant's name and a description of the Second Defendant trading as Comerga. In my judgment they are to be seen as offers from the Second Defendant which were accepted by Mr. Wilson and Mr. Welsby.
v) The Claimants also rely on the fact that the Mills-Wilson agreement was undoubtedly an agreement between Mr. Mills and Mr. Wilson in their personal capacities. They say that this shows Mr. Mills entering agreements personally despite having said that he was operating his company grooming business through the Second Defendant. There is force in this argument but it does have to be seen against the context in which the Mills-Wilson agreement was made. The Defendants say that the arrangements at that stage were focused on Mr. Mills's continuing personal involvement in Mini-Cam Enterprises Ltd and so it was more natural for this to be a personal agreement.
i) The starting point must be the language of the e-mails which constituted the Introduction Agreement. The e-mail of 7th December 2012 is headed "our agreement – Comerga" and makes reference to "a lead for a Comerga client". This is significant in the light of my finding that Mr. Mills had explained at lunch on 7th December 2012 that he was going to be operating his company grooming business through a limited company and that this was going to be trading as Comerga. In those circumstances the references to Comerga are powerful indications that a proposal was being made on behalf of that company.
ii) I have already set out some parts of the agreements which were entered with Mr. Wilson and Mr. Welsby and my conclusion that those documents effected agreements to which the Second Defendant was party. The conclusion as to the identities of the parties to those agreements is of only limited assistance in determining whether Mr. Mills or the Second Defendant was the party to the Introduction Agreement. It does, however, provide some support for the view that the latter agreement was with the Second Defendant.
iii) On 19th March 2013 Mr. Walker e-mailed Mr. Mills. The e-mail referred to Mr. Welsby but also mentioned a further client to whom Mr. Walker had spoken "regarding the Comerga offering". In the light of my finding as to Mr. Walker's knowledge that Comerga was the trading style of the Second Defendant this indicates that Mr. Walker knew that the company grooming activities were being undertaken by the Second Defendant.
iv) I have already explained that Mr. Walker caused the Second Claimant to invoice the Second Defendant in August 2015 for the sum of £606,250 due in relation to the Introduction Agreement. This is a potent indication that the Second Defendant was regarded as the party liable to make payment under that agreement.
The Terms of the Introduction Agreement.
Was there an Assignment of the Benefit of the Introduction Agreement?
At recital B: "The Seller has agreed to sell and the Buyer has agreed to purchase the Business (together with the Assets) as a going concern subject to and on the terms of this agreement."
At clause 1 various terms were defined including:
"Assets: the property, rights and assets of the Business to be sold and purchased pursuant to clause 2.1 excluding the Excluded Assets."
"Business: the business of the provision of advice and services relating to wealth planning carried on by the Seller at the Effective Time."
"Business Claims: all of the Seller's rights, entitlements and claims against third parties arising directly or indirectly out of or in connection with the operation of the Business or relating to the Assets."
"Contracts: all contracts, arrangements, licences and other commitments relating to the Business entered into, on or before, and which remain to be performed by any party to them in whole or in part at, the Effective Time."
"Excluded Assets: the property, rights, and assets of the Business set out in clause 4.1"
Clause 2.1 provided that "the Seller shall sell … and the Buyer shall buy …the Business as a going concern together with the assets listed below …
i) All other property, rights and assets owned by the Seller and used, enjoyed or exercised or intended to be used, enjoyed, or exercised exclusively in the Business … save for the Excluded Assets".
Clause 4 provided that certain assets were to be excluded from the sale and these included, at 4.1 (c) "all assets of the Seller not specifically transferred to the Buyer pursuant to this agreement."
"it's essentially building a close relationship with a client, finding out the client's aspirations and hopes and goals in life, mainly … linked to finance but not all about finance, just generally what are clients trying to achieve in life and then formulating a plan that helps the client to achieve those goals and then staying with them throughout their life, hopefully, to help that plan come to fruition."
The Parties' Dealings from July to October 2015.
The Legal Effect of those Dealings and of the Events thereafter.