England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/06/2013

His Honour Judge Seymour QC :

Introduction

1. The first claimant in this action, Mr. Stephen Harris, is, by trade, a builder and property developer. The second claimant, Mr. Alec Symeoudis, is the brother-in-law of Mr. Harris. Mr. Symeoudis has had a varied career. At one point he ran a minibus company providing a service to a school. That ceased in about 2002, when Mr. Symeoudis began work as a builder, principally for a company called Epon Ltd. ("Epon"), which was incorporated on 13 November 1997 and in which he, Mr. Harris, and Mr. Harris's wife, Dominique, Mr. Symeoudis's sister, were the shareholders. However, at the end of 2012 Mr. Symeoudis gave up work as a builder and returned to driving, this time as a courier.
2. The defendant, Mr. Charles Charalambous, has described himself in the past, falsely, as an architect. He is not, and never has been, registered as an architect, and he has no architectural qualifications. These matters notwithstanding, at the times relevant to the background to this action Mr. Charalambous undertook the design of the construction of new buildings, or of the conversion of existing buildings, and seemed to have a degree of facility in obtaining planning permission for proposed developments.
3. Mr. Harris and Mr. Symeoudis came to know Mr. Charalambous through a common interest in football. All three played football at Muswell Hill in London. It seems that towards the end of 1996 they discussed a proposal first raised by Mr. Charalambous that they jointly undertake the redevelopment of a property known as and situate at 26, Barnsbury Road, London N1. That property was purchased by a company called Hermes Real Estate Ltd. ("Hermes") which was controlled by Mr. Harris and Mr. Symeoudis. The redevelopment of the property at 26, Barnsbury Road was successful. In due course a number of other properties were acquired and redeveloped. The purchasing entity for these other properties was Epon. The properties which were purchased by Epon and then redeveloped were respectively known as and situate at 154, Tottenham Road, London N1; 55A, Barnsbury Street, London N1 ("the Barnsbury Property"); 65 A and B, Northchurch Road, London N1 ("the Northchurch Property"); and 3, Ardleigh Road, London N1. The redevelopment of these various properties took place between about 1996 and about 2000. The terms upon which the parties participated in the redevelopment of the relevant properties seem to have been somewhat vague. It was common ground that it was agreed that the net profit resulting from any redevelopment of a particular property was to be split 50:50 between Mr. Harris and Mr. Symeoudis, on the one hand, and Mr. Charalambous, on the other. However, by the time of the trial before me there was a disagreement as to whether, as he contended, Mr. Charalambous was entitled to charge fees for the work which he did in connection with any particular development, such fees to be deducted before calculating the net profit of which he was also to receive 50%, or whether, as was contended by Mr. Harris and Mr. Symeoudis, what entitled Mr. Charalambous to 50% of net profits was the work which he did, and he was not entitled in addition to charge fees for his work.
4. In about 2001 Mr. Harris and Mr. Charalambous agreed to undertake the development of the property known as and situate at 394, Camden Road, London N1. A company, Aegis Fine Homes Ltd. ("Aegis") was formed to undertake the development. Mr. Harris and Mr. Charalambous were both issued shares in Aegis, 49% of the shares issued being allocated to Mr. Harris and the balance to Mr. Charalambous. In the first instance both Mr. Harris and Mr. Charalambous were appointed directors of Aegis. Mr. Charalambous procured the dismissal of Mr. Harris as a director of Aegis sometime, I think, in February 2011.
5. From, it appeared, sometime in 2006 relations between Mr. Harris and Mr. Symeoudis, on the one hand, and Mr. Charalambous, on the other, cooled. Attention, at least on the side of Mr. Harris and Mr. Symeoudis, was then focused on the state of accounts as between them and Mr. Charalambous. For the purposes of this judgment it is not necessary to go into any detail, but during the period in which the claimants and Mr. Charalambous had been working together on the development of the properties which I have mentioned the freehold interest in the Barnsbury Property and the freehold interest in the Northchurch Property had been transferred to Ms Annette Bergen, Mr. Charalambous's partner of the time, and there had been other dealings the result of which was that Mr. Harris and Mr. Symeoudis contended that Mr. Charalambous owed them money consequent upon the division of the net proceeds of the various developments. It was common ground that the development undertaken by Aegis was separate from the other developments from the point of view of assessing any entitlement of the claimants to be paid any sum by Mr. Charalambous.
6. It was also common ground that on 21 February 2008 a meeting took place at the offices of a company of accountants called Evans Mockler Ltd. ("the Accountants"). The meeting was attended by Mr. Harris, Mr. Symeoudis, Mr. Charalambous and Mr. Michael Evans of the Accountants. Following the meeting Mr. Evans wrote a letter dated 11 March 2008 ("the Accountants' Letter") to the other participants in the meeting. In his letter Mr. Evans said:-

"Dear Gentlemen,

Further to the meeting held in my office on Thursday 21 February, I note that the following figures were agreed by all parties:

The sum of £562,000 owed by Charles to Alex and Stephen jointly. This was to be paid by an up front payment of £100,000 the balance being shares in the new hotel business in Crete."

7. Very shortly after the date of that letter Mr. Symeoudis travelled to Crete, where Mr. Charalambous was then living, to see him. It appeared that Mr. Symeoudis had taken with him a typed document ("the Promissory Note"), as well as a copy of the Accountants' Letter. Mr. Charalambous contended that the first time he had seen the Accountants' Letter was when Mr. Symeoudis produced a copy of it in Crete, and that may well be correct. In the typed form what the Promissory Note said was:-

"Promissory Note

I, Charles Charalambous of 79A Highbury New Park,

London N5 2EU

passport number

agree to repay the total sum of

£562,000.00 (five hundred and sixty two thousand pounds)

To

Stephen Ronald Harris of 101 Derwent Road, London N13 4QA

&

Alec Louis Symeoudis of 39 The Limes Avenue London N11

Signed Witness

Dated"

8. It was not in dispute before me that Mr. Symeoudis and Mr. Charalambous went with the Promissory Note on 15 March 2008 to see a lawyer in Chania, Crete, where Mr. Charalambous signed it in the presence of the lawyer, who witnessed the signature and applied a stamp recording his own details. Both the signature of Mr. Charalambous and the signature of the lawyer were dated 15 March 2008, in English. Before signing Mr. Charalambous inserted the number of his passport beside the words "passport number" on the Promissory Note. Mr. Charalambous also added, between the line in which the sum of £562,000 was set out and the line in which Mr. Harris's name and address appeared, these words:-

"This is to be paid by an up front payment of £100,000 the balance being shares in the new hotel business in Crete, or, otherwise in the case of my death as direct payment in the execution of my will."

9. The addition of the latter words had the effect that the Promissory Note as signed by Mr. Charalambous largely coincided in its effect with what Mr. Evans had written in the Accountants' Letter.
10. Mr. Charalambous never responded to the Accountants' Letter or, prior to the commencement of this action, sought to challenge the accuracy of what it appeared to record.
11. The anticipated "new hotel business in Crete" was never undertaken, no company was ever formed with a view to undertaking such business, and no shares in any such business were ever allocated to Mr. Harris or to Mr. Symeoudis.
12. No sum was paid by Mr. Charalambous to Mr. Harris or to Mr. Symeoudis in consequence of the Accountants' Letter or the Promissory Note, although Annette Bergen did pay an amount, to which I shall come, in cash to Mr. Harris and Mr. Symeoudis in respect of which it was accepted by the end of the trial credit should be given. On any view the amount handed over was well short of £100,000.
13. In the result this action was commenced by a claim form issued on 25 January 2012.
14. By the commencement of the trial it had been accepted on behalf of Mr. Harris and Mr. Symeoudis that the Promissory Note was not a document which fell within the definition of a promissory note contained in Bills of Exchange Act 1882 s.83(1). Initially the principal claim advanced on behalf of Mr. Harris and Mr. Symeoudis in the Particulars of Claim had been upon the Promissory Note on the basis that it in fact was a promissory note falling within the statutory definition. However, the Particulars of Claim included alternative claims put in this way:-

"5. Alternatively, in an account stated, contained in and evidenced by a letter dated 11 March 2008 drawn up and signed by Michael Evans (appended as Document 2) [that is, the Accountants' Letter] and the Promissory Note [meaning by that the document so called in this judgment] dated 15 March 2008 it was agreed that the Defendant then owed the Claimants the sum of £562,000.

6. Alternatively, by accounts stated in writing by the Claimants and agreed to orally by the Defendant on or about 15 March 2008 the sum of £562,000 was found and shown to be due from the Defendant to the Claimants."

15. As Lord Atkin, delivering the advice of the Privy Council, explained in Siqueira v. Noronha [1934] AC 332, the expression "account stated" is, from the point of view of English law, ambiguous. It could mean a mere acknowledgment of a debt, in which case its value was as evidence only. However, it could also describe what was in reality an accord and satisfaction, supported by consideration, and thus giving rise to a contractual right, on the part of the person identified as to be paid, to payment of the amount stated. At page 337 – 338 of the report Lord Atkin said:-

"In the opinion of their Lordships this question does not arise because it appears to them reasonably plain that, in this particular case, the account stated is in fact an account from which there arises a promise made for good consideration to pay the balance shown in the account. Their Lordships think that what has been forgotten is that there are two forms of account stated. An account stated may only take the form of a mere acknowledgment of a debt, and in those circumstances, though it is quite true it amounts to a promise and the existence of a debt may be inferred, that can be rebutted, and it may very well turn out that there is no real debt at all, and in those circumstances there would be no consideration and no binding promise. But on the other hand, there is another form of account stated which is a very usual form as between merchants in business in which the account stated is an account which contains entries on both sides, and in which the parties who have stated the account between them have agreed that the items on one side should be set against the items upon the other side and the balance only should be paid; the items on the smaller side are set off and deemed to be paid by the items on the larger side, and there is a promise for good consideration to pay the balance arising from the fact that the items have been so set off and paid in the way described. Probably the best authority for that definition on an account stated is that which was selected by Viscount Cave in the case of Camillo Tank Steamship Co., Ld. v. Alexandria Engineering Works, which was in the year 1921, although the account in that case was not an account of the nature described, because it was merely a repairer's account with the items probably only on one side. Viscount Cave, in dealing with the various descriptions in law of an account stated, said: "There is a second kind of account stated where the account contains items both of credit and debit, and the figures on both sides are adjusted between the parties and a balance struck. This is called by Blackburn J., in Laycock v. Pickles, a 'real account stated,' and he describes it as follows: 'There is a real account stated, called in old law an insimul computassent, that is to say, when several items of claim are brought into account on either side, and, being set against one another, a balance is struck, and the consideration for the payment of the balance is the discharge of the items on each side. It is then the same as if each item was paid and a discharge given for each, and in consideration of that discharge the balance was agreed to be due. It is not necessary, in order to make out a real account stated, that the debts should be debts in praesenti, or that they should be legal debts. I think equitable claims might be brought into account, and I am not certain that a moral obligation is not sufficient. It is to be taken as if the sums had been really paid down on each side; and the balance is recoverable as if money had been really taken in satisfaction; subject to this, that where some of the items are such that, if they had been actually paid, the party paying them would have been able to recover them back as on a failure of consideration, the account stated would be invalidated."

16. In his written skeleton argument Mr. Nicholas Yell, who appeared on behalf of the claimants, made plain that the sense in which the expression "account stated" was used in the Particulars of Claim was that second sense mentioned by Lord Atkin, that, in effect, of an accord and satisfaction.
17. At the start of the trial it appeared that it was actually common ground between the claimants and Mr. Charalambous that the outcome of the meeting on 21 February 2008 attended by Mr. Harris, Mr. Symeoudis, Mr. Charalambous and Mr. Evans had been the making of an agreement between Mr. Harris, Mr. Symeoudis and Mr. Charalambous, but that Mr. Charalambous contended for a completely different agreement. At paragraphs 18 and 19 of the Amended Defence and Counterclaim his case as to the agreement he alleged was put in this way:-

"18. On or about 21 February 2008 the parties met at the offices of Mr. Michael Evans of Evans Mockler, the claimants' accountant, in order to discuss the state of the accounts between the parties in respect of the joint venture.

19. On or about 21 February 2008 the parties orally entered into a settlement agreement ("the settlement agreement") in which they agreed, amongst other things, that:

19.1 in consideration of, and conditional upon, Mr. Harris resigning as a director of Aegis and transferring his shares in Aegis to, or to the order of the defendant.

19.2 the defendant would pay to the claimants the sum of £100,000 and would issue shares to the claimants in a company in Greece which did not then exist but was intended to be the vehicle for a hotel development in Crete ("the shares").

19.3 For the avoidance of doubt, it is the defendant's case that the Promissory Note records that part of the settlement agreement which is set out in paragraph 19.2 above."

18. It thus appeared at the commencement of the trial that it was not in dispute that a meeting had been held on 21 February 2008 at the offices of Mr. Evans to discuss the state of accounts between Mr. Harris, Mr. Symeoudis and Mr. Charalambous in relation to the joint venture between the three; that an agreement had been made at that meeting; that the agreement made on 21 February 2008 provided for Mr. Charalambous to pay to Mr. Harris and Mr. Symeoudis an amount of £562,000; and that what had been envisaged, at least, at that time was that, of that sum, £100,000 would be paid in cash, whilst the balance would be discharged by the issue of shares in "the new hotel business in Crete". The issue in dispute seemed to be whether the sum of £562,000 was to be paid to resolve outstanding entitlements under the joint venture in which Mr. Harris, Mr. Symeoudis and Mr. Charalambous had been engaged, or whether it was to be paid in return for Mr. Harris resigning as a director of Aegis and transferring his shares in Aegis to Mr. Charalambous. If Mr. Charalambous was correct as to what the £562,000 was supposed to relate to, there was no obvious reason for Mr. Symeoudis to be a party to the agreement, yet Mr. Charalambous seemed to accept that Mr. Symeoudis had been a party to it.
19. The pleaded Counterclaim of Mr. Charalambous, as explained by his Counsel, Mr. Simon Brilliant, was advanced pursuant to the original joint venture agreement made between Mr. Harris, Mr. Symeoudis and Mr. Charalambous and sought, essentially, an account of the various transactions in which the three had engaged and payment of what was found to be due to Mr. Charalambous. It was in the context of this counterclaim that the contention of Mr. Charalambous that he was entitled to charge fees for his work in connection with the various projects was identified. The need to consider the counterclaim only arose if the claim of Mr. Harris and Mr. Symeoudis failed. If the claim succeeded, all claims for accounts, and so forth, had been compromised by the agreement made on 21 February 2008.
20. Quite apart from the counterclaim of Mr. Charalambous a number of points were raised on his behalf in the Amended Defence and Counterclaim upon which it is convenient to comment before turning to the evidence on the central questions which I had to decide. The material pleas were these:-

"20. Further or alternatively, in order to induce the defendant to enter into the settlement agreement and sign the Promissory Note, Mr. Harris represented that he intended to and would:

20.1 resign as a director of Aegis; and

20.2 transfer his shares in Aegis to, or to the order of, the defendant

("the representation").

21. The defendant entered into the settlement agreement and signed the Promissory Note in reliance on the representation and not otherwise.

22. In breach of the settlement agreement Mr. Harris wrongly failed and/or refused to resign as a director of Aegis and/or to transfer his shares in Aegis to, or to the order of, the defendant.

23. Accordingly, by reason of Mr. Harris' failure and/or refusal to perform his obligations under the settlement agreement the defendant became discharged from performing his obligations under the settlement agreement.

24. Further, or alternatively, Mr. Harris made the representation recklessly, not caring whether it was true or false, and the defendant is entitled to have the settlement agreement and, if necessary, the Promissory Note set aside, as sought in paragraph 38 of the counterclaim below."

21. Those pleas were very difficult to understand. What was alleged in paragraphs 20, 21 and 24 amounted to the contention that those which were pleaded in paragraph 19 of the Amended Particulars of Claim as express terms of the agreement pleaded were also representations, and, in particular, fraudulent representations. Whilst, if Mr. Charalambous had pleaded an alternative case based on the proposition that the agreement contended for on behalf of Mr. Harris and Mr. Symeoudis had been made, conceptually, at least, that agreement might have been induced by representations, it simply makes no sense, as a matter of law, to contend that an oral agreement alleged to contain express terms was induced by the agreement of those terms. I think that Mr. Brilliant accepted that actually the allegations contained in paragraphs 20, 21 and 24 added nothing of value to the issues raised by the pleas in paragraph 19 of the Amended Defence and Counterclaim.
22. What was pleaded in paragraphs 22 and 23 of the Amended Defence and Counterclaim gave rise to a different problem. It is trite law that a contract is not discharged by mere breach of one of its terms, despite what the allegations in paragraphs 22 and 23 of the Amended Defence and Counterclaim might appear to suggest. If a breach of a term of a contract was such as to indicate that the party in breach was not prepared to perform its obligations under the contract, it would amount to what is usually called a repudiatory breach. Where there is a repudiatory breach of a contract the innocent party has an option: it can either affirm the contract and seek to enforce it against the party in breach, or it can accept the repudiation and treat the contract as having come to an end. The innocent party is not normally bound to exercise its option in any particular way. In order to exercise the option of accepting the repudiation, the innocent party must indicate that that is its choice. Failure to do so, at least within a reasonable time, is likely to lead to the conclusion that the innocent party has affirmed the contract. Mr. Brilliant, I think, accepted that the critical question in this action was what were the terms of the agreement which the parties actually made, rather than whether, whatever were the terms of that agreement, the contract had been repudiated. It was not alleged in the Amended Defence and Counterclaim that Mr. Charalambous had in fact accepted an alleged repudiation of any agreement made with Mr. Harris and Mr. Symeoudis.

The evidence in witness statements concerning the meeting on 21 February 2008

23. It is convenient next to consider what account those present at the meeting on 21 February 2008, all of whom were called to give evidence, gave in their respective witness statements concerning that meeting.
24. Mr. Harris made a witness statement dated 14 April 2013. In it he explained that he had produced a manuscript document ("the Account"), principally for the benefit of Mr. Symeoudis, in which Mr. Harris had set out, in a summary form, an analysis of the profits earned from the joint venture of Mr. Harris, Mr. Symeoudis and Mr. Charalambous and how those profits had been calculated. The Account also set out the drawings said to have been made by each of the participants and the other benefits each had received. A copy of the Account was produced in evidence. It showed a balance due to Mr. Harris and Mr. Symeoudis of £562,702.59. Mr. Harris said in his witness statement that there had been predecessors of the Account which had been discussed with Mr. Charalambous, but that the actual Account was discussed with Mr. Charalambous at a meeting in Crete in 2007. The circumstances giving rise to the meeting of 21 February 2008, and what happened at the meeting itself, Mr. Harris described in this way:-

"23. This trip [in 2007] was amicable. Charlie went through the Account with Alec and myself. Although he wasn't happy about it he didn't query any figures and said that we should all sit down with an independent accountant acting as mediator and go through it.

24. We therefore all agreed that a further meeting would take place in England when Charlie was next there.

25. It was Charlie that suggested Evans Mockler as an independent accountant since Michael Evans had dealt with all three of us collectively and independently.

26. I arranged the meeting to take place at Evans Mockler's offices on 21^st February 2008. The purpose of the meeting was to verify any problems with the Account. Mr. Evans was in possession not only of Hermes Real Estates and Epon Limited accounts but he was also in possession of the accounts of Charlie and Annette Bergen, i.e., the entire accounts of all parties.

27. Mr. Evans [sic] role was to act as a chair and deal with any issues that Charlie had with the Account and if necessary to go through any disagreements/queries.

28. At this meeting, (21^st February 2008), Charlie went through the Account carefully. He annotated it. He did not amend any figures by way of querying them but merely added in a word here or there.

29. Charlie did not ask for any further information at the meeting, after the meeting or in fact at any time.

30. We all agreed at the meeting that the figures were acceptable and the sum due was £562,000.

31. Given the large amount that was due, Charlie suggested that he would make an upfront payment of £100,000 and the balance would be paid by way of shares in a Hotel in Crete. Alec and I would have preferred the cash but accepted that this might not be possible and agreed that if there was a Hotel built in Crete then we would accept the balance of £462,000 by way of an interest in a hotel in Crete but only if it so materialised. It never did."

25. In his witness statement dated 17 April 2013 Mr. Symeoudis gave an account very similar to that given by Mr. Harris in his witness statement:-

"21. In Crete, we went through the said handwritten account and it was agreed that the figure of £562,000 was owing to us but Charlie said he required verification. We went over the account several times. We were still on good terms and Charlie said that when he returned to England he wanted to go over any queries he had with the account. We all agreed.

22. I remember during this visit, Charlie said that he was planning to develop and build a hotel in Crete. He even showed us some land whilst we were out there. It was at this point that he said he would include us in the deal if it happened. We both said that although it might be a good idea we didn't know enough about Crete and the economy and therefore couldn't say.

23. Following the Crete trip, we returned to the U.K. and it was agreed when Charlie was next in the UK we would visit an accountant of his choice. He chose Evans Mockler.

24. Eventually Charlie returned to the UK in February 2008. He did in fact keep his word and agreed to meet with Evans Mockler accountants where he confirmed in front of Michael Evans that our claims were indeed all correct and above board. Charlie even agreed to pay some money up front. The same handwritten account was again produced at the meeting and we went through it all. All was ok we thought. Charlie had written and annotated the account at this meeting verifying that a) he had seen it and b) he had not disputed it since if he had he would have changed the figures within it.

25. Charlie asked for no further detail and was happy with it. After this meeting, the three of us went to Chez Gerard in High Street Barnet and had lunch."

26. Mr. Evans was called as a witness on behalf of Mr. Harris and Mr. Symeoudis. In his witness statement dated 18 April 2013 Mr. Evans dealt with the meeting on 21 February 2008 succinctly:-

"4. I held a meeting at my offices on the 21^st February 2008.

5. At the meeting I recollect that the parties went through the figures using a handwritten account which I believe was prepared by Stephen Harris. I also recollect Mr. Charalambous looking at the account and annotating the said handwritten account. There is now produced and shown to me marked "ME1" a true copy of the said account.

6. At the meeting Charles Charalambous agreed that he owed Stephen Harris and Alec Symeoudis £562,000 jointly. Mr. Charalambous agreed to make an initial payment of £100,000 and the balance being shares in a new hotel venture.

7. I confirmed the Agreement to them by way of a letter on 11^th March 2008. There is now produced and shown to me marked "ME2" a true copy of my correspondence confirming that Agreement [what was produced was a copy of the Accountants' Letter].

8. None of the gentlemen ever queried that Agreement with me subsequently."

27. The account of Mr. Evans thus supported the accounts of Mr. Harris and Mr. Symeoudis concerning what occurred at the meeting on 21 February 2008.
28. Mr. Charalambous dealt with the meeting of 21 February 2008 at paragraph 27 of his witness statement dated 19 April 2013:-

"I was next in London a week later on 21 February 2008, I was asked to attend a meeting at SH [Mr. Harris]'s long standing accountant Mike Evans. AS [Mr. Symeoudis] and SH informed me that their accountant had reviewed the figures presented to me in Crete and had reconciled the figures in the format that I had requested. Most unfortunately this was not the case, nor did I regard Mike Evans [as] an independent professional. The figures were presented in a similarly complicated fashion as previously presented and they still failed to specify costs/sales/profits or overheads for each project. The document disclosed by the Claimants upon which they rely, allude to mistaken assumptions and markedly warped logic, I was shocked and in disagreement with most of the contents, for example it shows that I was due £147,000 and they were due £562,000. If I had agreed such an account then surely the amount that would have been agreed would have been approximately £420,000. I did not agree any figures, whatsoever. It is unintelligable [sic] and defies sound business logic that I would have agreed to pay £562,000 for no other consideration, other than the cessation of SH in Aegis. I made it clear that any money would be in consideration of SH's shares. Mike Evans was rather embarrassed by the proceedings – and quickly suggested that I should be given free access to all costs/sales records so that I may approach another (truly independent) accountant, which was reasonable and equitable. Once out of the meeting I made it clear to the [sic] SH and AS that I would buy SH out of Aegis regardless of whether I was allowed full access to the books or not, I just wanted SH out of Aegis. SH confirmed that he also, was absolutely in agreement – and that he appreciated that the present situation was untenable – he asked whether I could raise funds, and how quickly I would be able to do so."

29. Mr. Charalambous said nothing more in his witness statement concerning the events which he alleged had occurred on 21 February 2008.
30. What was quite striking about paragraph 27 of Mr. Charalambous's witness statement was that he said nothing which could sensibly be interpreted as supporting the case pleaded at paragraphs 18 and 19 of the Amended Defence and Counterclaim. Although in his witness statement Mr. Charalambous accepted that at the meeting attended with Mr. Evans there had been discussion about the Account, the thrust of what he said in his witness statement seemed to be that he had not agreed to anything, rather than that Mr. Harris and Mr. Symeoudis had agreed that Mr. Harris would transfer his shares in Aegis to Mr. Charalambous in return for an upfront payment of £100,000 and shares worth £462,000 "in a company in Greece which did not then exist but which was intended to be the vehicle for a hotel development in Crete". The closest Mr. Charalambous got in paragraph 27 of his witness statement to any alleged agreement in the terms of paragraph 19 of the Amended Defence and Counterclaim was to assert that, "I made it clear that any money would be in consideration of SH's shares". Mr. Charalambous did not identify any sum which he contended had been agreed to be paid and accepted for the transfer of Mr. Harris's shares in Aegis, still less did he contend that part of an agreed price was to be paid by an allocation of shares "in a company in Greece which did not then exist but which was intended to be the vehicle for a hotel development in Crete".
31. During the course of the trial the plot thickened in relation to the agreement for which Mr. Charalambous contended. It was noted by Mr. Yell that Mr. Charalambous appeared not to have signed the statement of truth at the end of the Amended Defence and Counterclaim, although he had signed a statement of truth at the end of the original Defence. The question arose whether Mr. Charalambous had in fact signed a copy of the Amended Defence and Counterclaim, or, if not, whether he was prepared to sign it. What in fact happened on the second day of the trial was that a version of what was entitled "Amended Defence and Counterclaim" was produced which Mr. Charalambous had signed. However, this version of the Amended Defence and Counterclaim differed from that served initially in that there were two additions to the text. One of those additions was not really material to any issue which I had to decide. However, the other appeared very significant. It was the addition, in paragraph 19 of the Amended Defence and Counterclaim of the words, "after leaving Mr. Michael Evans' offices" between the date "21 February 2008" and the words "the parties". I indicated that in fact what was put forward as a version of the Amended Defence and Counterclaim with a statement of truth signed by Mr. Charalambous was actually a Re-Amended Defence and Counterclaim. Mr. Yell was content – perhaps, for reasons which might seem obvious, anxious – for permission to be given for the re-amendment of the Amended Defence and Counterclaim to incorporate the new wording, and I gave permission accordingly.
32. On the Re-Amended Defence and Counterclaim the agreement for which Mr. Charalambous contended was said to have been made after the meeting with Mr. Evans. Not only was that a wholly new contention, leaving unclear on Mr. Charalambous's statement of case what his position was on the outcome, if any, of the meeting with Mr. Evans, but the new case was without any support from the evidence in the witness statement of Mr. Charalambous.

The evidence in witness statements concerning the signature of the Promissory Note

33. Before considering further the events of 21 February 2008 it is appropriate to set out what those involved in the signature of the Promissory Note on 15 March 2008 said in their respective witness statements about the circumstances in which that happened.
34. It was, I think, common ground that Mr. Symeoudis went to Crete to see Mr. Charalambous, accompanied by Mr. Charalambous's cousin, Mr. Charalambous Christodolou.
35. In his witness statement Mr. Symeoudis dealt with the circumstances in which he went to Crete and obtained the signature of Mr. Charalambous to the Promissory Note in this way:-

"27. Time went by and we continued to chase him. Nothing happened as regards to any kind of payment from Charlie. I decided to fly back to Crete in March 2008 accompanied by Charlie's first cousin who also had some issues regarding money owed by Charlie. I had a private meeting with Charlie. I explained that I was extremely concerned about this outstanding money owed. It was eventually agreed that he would sign the Promissory Note to the tune of £562,000 in front of a local solicitor in order to clarify its authenticity.

28. I found a local solicitor in Crete and just as he was about to sign, Charlie wrote his own condition on the Promissory Note referring to money in a hotel deal in Crete. Having exhausted all my persuasive skills to get to this point, I felt it most difficult to resist from letting him write this on to the Promissory Note at the last second. The hotel deal in Crete never materialised and I suspect it was part of his plan not to pay monies owing to us.

29. Even after signing the Promissory Note we were on friendly terms and went out that night in Crete."

36. Mr. Symeoudis was only really cross-examined on that part of this account which related the circumstances in which Mr. Charalambous came to add words in manuscript to the Promissory Note. That was, perhaps, a little surprising because in his witness statement Mr. Charalambous placed a completely different complexion on the signature of the Promissory Note. What he said was:-

"30. Sometime after the agreement of SH to leave Aegis, it was arranged that AS come and visit me in Crete and asked if I would be prepared to pay a sum of money that would satisfy SH leaving Aegis and relinquish all talk of previous JV involvement. I said that I was not happy to pay any money until I had a signed written agreement from SH absolving his shares and directorship. I further qualified that any payment would be part in cash and part in shares of a new hotel venture that I was undertaking. My cousin was in attendance during these sometimes heated conversations, and it was resoundingly clear hat [sic] the sole basis of any payment to the claimants would be conditional on the resignation of SH as a director of Aegis and his transfer of shares.

31. As AS was leaving the next day, it was arranged to meet in a lawyer's office in Central Chania on the morning of 15 March 2008, so that we may put together the appropriate terms of an agreement – with the assistance of the lawyer.

32. On arrival at the lawyer's office I was shocked to see a pre prepared promissory note and a letter from Mike Evans. It was as if AS and SH had foreseen this meeting and were now trying to put me in a corner. The lawyer himself was looking to close his office as it was a Saturday morning and we had delayed him, somewhat. I refused to sign saying that this is not what was agreed. AS was suitably disappointed and went to some length to assure me that there would be no continuing relationship once the document was signed, that SH was absolutely committed to leaving Aegis – and that this would be ratified with solicitors in the UK as soon as I was back in the UK. I therefore without thinking scribbled some terms on the note, those terms being payment split by cash and shares, there was no further room for additional terms on the page – and each of us seemed to be in some hurry – and so I felt under some considerable duress. I then signed it there and then without thought or legal advice. I thought that AS and SH would stick to their word. I made it clear that I did not agree the figures in Mike Evans's letter but to get rid of SH I was prepared to sign it, I did not think anything further of it. AS and me were good friends and the three of us had been partners for over a decade, despite mine and SH's considerable differences I did not expect to be engaged in litigation. It should be noted that this document although flawed, was the first piece of formal written documentation between us."

37. It was correct that the words which Mr. Charalambous wrote on the Promissory Note occupied all of the space between the line specifying the figure £562,000 and the line setting out the name and address of Mr. Harris. However, before signature by Mr. Charalambous and witnessing by the Cretan lawyer there was considerable space beneath the line setting out the name and address of Mr. Symeoudis and the line for signature and witnessing which could have been used to insert further observations of Mr. Charalambous.
38. Mr. Christodolou was called to give evidence on behalf of Mr. Charalambous. In his witness statement dated 19 April 2013 Mr. Christodolou gave a rather less colourful account of the circumstances in which Mr. Charalambous came to sign the Promissory Note than Mr. Charalambous himself gave:-

"14. In 2008 I travelled to Crete with AS, we remained on friendly terms. The trip was for formal discussions with Charles in relation to a commitment for payment of a sum. Charles made it clear that he would not pay any money whilst SH remained in Aegis Fine Homes Limited. We met in a series of locations in Crete. Charles made it clear to AS that he would only commit to a payment of a sum on the condition that SH would leave Aegis. Whilst I had sympathy with their position, I wanted this matter resolved as soon as possible so that I could take up my position as a project manager. I therefore arranged for a solicitor in Chania to attend the meeting."

Documentary evidence

39. In support of their case the claimants relied upon a number of documents. In relation to some of these, such as the Accountants' Letter and the Promissory Note, the point relied upon was that what was asserted was inconsistent with the case of Mr. Charalambous at the trial, yet contemporaneously Mr. Charalambous had not challenged the accuracy of what was contained in the document. However, there were other documents which it was contended on behalf of the claimants were in terms inconsistent with the agreement for which Mr. Charalambous contended in paragraph 19 of the Amended Defence and Counterclaim, or that for which he contended in paragraph 19 of the Re-Amended Defence and Counterclaim, having been made. The contents of this class of document were somewhat miscellaneous.
40. At 6.27 p.m on the very same day as the meeting in the offices of Mr. Evans Annette Bergen sent Mr. Harris an e-mail in these terms:-

"Could you please confirm bank account details for transfer of your share of profits from the sale of Northchurch Road."

41. That e-mail appeared to indicate a desire on the part of Mr. Charalambous, or at least on the part of Annette Bergen, to split profits as agreed on the particular project. The e-mail as such was not obviously consistent with the case of either party. However, rather strangely, Mr. Brilliant suggested to Mr. Harris in cross-examination that in fact the e-mail indicated that Mr. Charalambous was taking steps to be able to perform the agreement for which Mr. Charalambous contended. Just as a matter of the ordinary use of the English language it was obvious, as it seemed to me, that it was not evidence of any such thing.
42. A later e-mail was sent by Annette Bergen at 5.11 p.m. on 28 October 2008. Mr. Brilliant again suggested to Mr. Harris that it evidenced a further attempt on the part of Mr. Charalambous to raise funds to pay what was due under the agreement for which Mr. Charalambous contended. However, on behalf of the claimants it was suggested that the terms of the e-mail indicated that Mr. Charalambous accepted that he owed money to Mr. Harris and Mr. Symeoudis which he would have to pay, which circumstance was evidence in support of their case. As between the two alternative contentions it appeared to me that that on behalf of the claimants was correct. The e-mail was in these terms:-

"As discussed during our telephone conversation of today I propose to sell Barnsbury Street to you at a highly reduced rate, which would leave considerable equity in the property and thus clear all existing liabilities and put an end to our business dealings.

My proposition is to sell the property to you for £330k of which the mortgage is just over £300k and the remainder to fund tax liabilities.

At an estimated value of £450k+, this leaves equity of approx. £120k+ in the property.

Please let me have your thoughts."

43. Either on the claimants' version of the agreement made with Mr. Charalambous on 21 February 2008 or on the version for which Mr. Charalambous contended Mr. Charalambous was to pay an amount of £100,000 "up front", meaning, one imagines, more or less immediately after the making of the agreement. He did not do so. As a result of his failure a meeting was arranged at the offices of Mr. Chris Theo, a solicitor acting on behalf of Mr. Charalambous, on 3 April 2009. Those who attended were Mr. Theo, Mr. Harris, Mr. Symeoudis and Mr. Charalambous. Mr. Theo made brief manuscript notes of the meeting which each of Mr. Harris, Mr. Symeoudis and Mr. Charalambous signed. A copy of the signed notes was adduced in evidence. Part of the notes related to the circumstances of Mr. Christodolou, who seems to have been known by the unusual name "Bambi". The part of the notes which related to dealings between Mr. Harris and Mr. Symeoudis, on the one hand, and Mr. Charalambous, on the other, read as follows:-

"- Camden go as united front to obtain finance

CX [Mr. Charalambous] to email HOTS [Heads of Terms] etc to SH [Mr. Harris] re Camden re-finance

2 plots in greece [sic] to be signed over to SH & AS & 55A Barnsbury (subject to AB [Annette Bergen] agreeing) over Highbury New Pk

further meets to occur later today"

44. The reference in the notes to "Camden" was to the project being undertaken by Aegis. Consequently the suggestions that the parties should "go as united front to obtain finance" and that Mr. Charalambous should e-mail Heads of Terms to Mr. Harris concerning re-financing of the project were inconsistent with Mr. Harris having agreed, prior to the meeting, to resign as a director of Aegis and to transfer his shares in Aegis to Mr. Charalambous. The references to properties being signed over to Mr. Harris and to Mr. Symeoudis clearly indicated that Mr. Charalambous accepted that he owed money to them. "Highbury New Pk" seems to have been a reference to the property which Mr. Charalambous occupied at 79A, Highbury New Park, London N5.
45. Following the meeting with Mr. Theo Mr. Harris wrote an e-mail to him at 12.36 p.m. on 4 April 2009. The e-mail was in these terms:-

"As you are aware Charles has agreed to transfer property into mine and Alec's names.

The outstanding amount owed is £560 k, the properties discussed at our meeting were,

55a Barnsbury St N1, Highbury New Park and property in Crete, which has yet to be determined.

Alec and I would have of course preferred cash, however, we are aware that this is very difficult in the present economic climate.

Therefore property to the value of monies owed is the only option.

Therefore we have accepted this arrangement, and would ask you to initiate the transfers, we are aware that the said properties are burdened with mortgages.

Therefore the value to us is the remaining equity.

The properties concerned would need to be valued, I suggest using 3 local agents, and the mean values accepted.

With the property of Highbury New Park, we are aware that Charles wishes to build out this project at a later stage, we are happy to enter into a legal agreement to sell back this property, within a two year period, and have no interest in building it out ourselves.

I am aware that these movement [sic] of property is not ideal, because we incur stamp duty and other costs, however we feel that this is the only way to secure, and rectify this in balance.

I know you will be acting for Charles, therefore we would ask you to contact, him and start the process off, this coming week.

I shall for my part ask the local agents to value the properties, so that we can establish values.

Alec and I keen not to waste any further time, and would appreciate your speedy action.

Any further information you require from us will be dealt with immediately, by either Alec or myself.

We wish to thank you Chris for your help so far in dealing with this matter.

Please get back to me with your thoughts."

46. In that e-mail Mr. Harris stated plainly that Mr. Charalambous owed him and Mr. Symeoudis £562,000, and he made no reference to Aegis, his directorship of Aegis, or his shares in Aegis. At 1.42 p.m. on 16 April 2009 Mr. Theo sent an e-mail to Mr. Harris. The e-mail re-produced Mr. Harris's e-mail of 4 April 2009 and then set out the comments of Mr. Theo. Those comments related solely to the matters which had arisen between Mr. Christodolou and Mr. Charalambous. What was, however, notable, was that Mr. Theo's instructions from Mr. Charalambous did not seem to include contesting the assertion of Mr. Harris that Mr. Charalambous owed him and Mr. Symeoudis £562,000, or asserting that, in order to be entitled to payment of that sum, Mr. Harris had to do something, specifically resign as a director of Aegis and transfer his shareholding in Aegis to Mr. Charalambous. The material part of Mr. Theo's e-mail was:-

"Having spoken to both Charles and Bambi at length both parties have come to an agreement.

Charles has agreed to provide Bambi with a legal document confirming Bambi's 16% share in the Elwood St project.

Bambi will receive his share from Charles's portion.

Secondly both parties have agreed to share the proceeds of Jack Walker Court project and any monies owed on other outstanding issues.

This of course can only be agreed by the production of proper accounts, which both parties have agreed to produce.

I feel this should be judged by Mike Evans accountants and their judgement to be accepted as final.

Both parties have ample time to produce, proper and accurate details for said accountants.

Please provide two separate agreements, not dependent on each other to minimise the confusion, in an effort to resolve this issue.

This will help to concentrate their minds to resolve, this issue speedily.

I feel that this is a way forward, Alec and I make every effort to keep Bambi happy, however he needs to see this asap."

47. In the event no progress seemed to be made. In an e-mail sent to Mr. Theo at 14.16 hours on 7 May 2009 Mr. Harris wrote:-

"I am aware that some weeks have passed and as far as I can see nothing at all has been done.

I have been asked by Bambi in very strong terms to chase up his two agreements, as you are aware Alec and I have worked very hard to keep this matter under control, I feel that enough time has passed to have this matter concluded.

I would therefore ask you to contact Charles and complete this matter immediately.

Bambi's patience is becoming very short.

Regards our property transfers, I shall have 55a Barnsbury valued this week coming.

We need to know what mortgage is on this property, also need a list of other properties on offer

I wish to conclude this as a matter of urgency."

48. The response from Mr. Theo in an e-mail sent at 2.43 p.m. on 7 May 2009 was depressing – "I've had nothing from Charles".
49. Another document relied upon on behalf of the claimants as indicating that the agreement for which Mr. Charalambous contended had not been made on 21 February 2008 was an e-mail sent at 11.36 a.m. on 13 August 2008 by Mr. Harris to Mr. Charalambous. The heading was "Options on Camden". The text was in these terms:-

"Following my meeting with Israel Gross, it appears that we have 3 options,

1/ I accept the offer and allow you to continue with the build with no further involvement from me.

2/ I buy you out, no further involvement from you.

3/ We continue the build together, and share the profits equally.

As you are aware Israel's offer leaves me with a considerable loss of profit.

However with luck the market will recover in a couple of years or so, and the loss minimised for the build out sales.

I am aware that all parties would prefer option 1, me for my part due to other projects, and you because it releases monies and still you retain profit share.

I will accept £1.2m for my shares, which includes my personal initial input to the purchase £500k this however, leaves me facing a very poor return, after I pay back the loans, pay Marcus, pay Alec and of course pay tax.

I shall receive around £300k profit, this as you can see is no great deal, however, is it what is, and I will accept it on the following basis.

1/ As previously agreed we share the costs of paying Marcus.

2/ It is a clean and speedy transaction, Israel assured me that this is possible.

3/ Lastly we have an outstanding loan with Wintrust for Northchurch project, your share is £40k I would like that settled.

Option 2

Quite simple I buy you out, this would be on the same basis ie 50% of the profit based on £4m.

I would arrange a third party to buy your shares.

This can be done fairly quickly, the advantage for you is quick cash, no strings.

Option 3

We get on with it, the advantage is simple, we do not have high borrowings based on value, therefore finance would be easier to arrange.

One of these options needs to be exercised asap, as the building will attract costs rapidly now.

I await your reply."

50. As it seemed to me, it was quite plain on the face of that e-mail that Mr. Harris was asserting to Mr. Charalambous that he, Mr. Harris, was free to keep or to dispose of his shares in Aegis as he saw fit, albeit he was inviting comment from Mr. Charalambous as to what he should actually do. The e-mail seemed totally inconsistent with Mr. Harris having previously committed himself to selling his shares in Aegis to Mr. Charalambous at a price of £562,000,not least because Mr. Harris said that he wanted £1.2 million for those shares.
51. In a letter dated 10 February 2011 to the Board of Directors of Aegis Mr. Charalambous set out, in a letter which he accepted in cross-examination had been written for him by solicitors, his reasons for requisitioning a general meeting of Aegis with a view to removing Mr. Harris as a director. One of the matters complained of was:-

"6. In November 2009, Stephen Harris refused to accept an offer of £600,000 for his shares, and instead made physical threats against me."

52. The assertion that Mr. Charalambous had made an offer to buy Mr. Harris's shares in Aegis in November 2009 for the sum of £600,000 was obviously inconsistent with Mr. Harris having agreed on 21 February 2008 to resign as a director of Aegis and to transfer his shares in Aegis to Mr. Charalambous in consideration of a sum of £562,000 to be paid as to £100,000 in cash and as to the balance by way of an issue of shares "in the new hotel business in Crete".
53. A further document of which a copy was adduced in evidence which was clearly at odds with the agreement alleged by Mr. Charalambous was an e-mail sent by Mr. Harris to Mr. Charalambous at 7.33 p.m. on 8 March 2010:-

"I have waited for your offer for my shares, which you requested to purchase from me.

I feel enough time has passed for you to make you [sic] position clear, I have paid my share of the interest to Nat West.

I see today that they have requested the balance, which you have not paid.

Kindly make your offer, or your position clear this week, as I am not prepared to let this matter drift, the Bank with [sic] become unsettled and demand action."

54. It should not be forgotten that in the original Defence, which bore a statement of truth signed by Mr. Charalambous, it was not alleged that the agreement pleaded at paragraph 19 of the Amended Defence and Counterclaim had been made. It was also not alleged in the original Defence that it was a term of the joint venture between Mr. Harris, Mr. Symeoudis and Mr. Charalambous that Mr. Charalambous was entitled to charge fees for his work in connection with sourcing and obtaining planning permission in respect of the various projects undertaken, in addition to receiving 50% of the net profits of each development.

Cross-examination

55. Mr. Harris was cross-examined closely over an extended period of almost a day on his evidence in his witness statement. He did not modify to any significant extent the account which he had given in his witness statement. He did, however, accept that he and Mr. Symeoudis had visited Annette Bergen following the making of the agreement for which they contended and had been paid by her in cash an amount of £30,000. It was accepted at the end of the trial that credit should be given against the amount of the claim in this action in respect of that receipt of £30,000.
56. Mr. Evans told me in cross-examination that what had actually been agreed at the meeting on 21 February 2008 was that Mr. Charalambous would pay Mr. Harris and Mr. Symeoudis an amount of £562,702.59, and that that sum was to be paid as to £100,000 in cash and as to the balance by the issue of shares "in the new hotel business in Crete". Mr. Evans explained that when he wrote the Accountants' Letter he rounded that sum down to £562,000, and that he had made a similar rounding down in his witness statement, but that the amount which Mr. Charalambous had agreed was due was £562,702.59.
57. In the course of his cross-examination Mr. Symeoudis agreed that what had been agreed was that Mr. Charalambous owed him and Mr. Harris £562,000 and that that liability would be discharged by means of a payment in cash of £100,000, the balance being discharged by the issue of shares "in the new hotel business in Crete".
58. I have already noted that Mr. Charalambous has described himself, falsely, in the past as an architect. In cross-examination he accepted that that was not the only dishonest statement which he had ever made. The statement that Mr. Charalambous was an architect was contained in a curriculum vitae which he produced dated August 2003. Other statements which he accepted in cross-examination were untrue in that document were the assertions that he had attended Christ's College, Cambridge and that he had attended Princeton University in the United States of America. When asked to explain these false representations, Mr. Charalambous was unable to do so. All he said was that the representation that he was an architect was an unnecessary embellishment which he wholly regretted. Unhappily these were not the only false statements which Mr. Charalambous admitted in cross-examination that he had made. He was challenged by the contradiction between his contentions in a document entitled "Summary of Assets and Liabilities" also dated August 2003 that he was the sole beneficial owner of the Northchurch Property and the Barnsbury Property, each of which was declared to be registered in the name of Annette Bergen, on the one hand, and him listing those same properties in a schedule of assets which he prepared for submission to Investec Bank (UK) Ltd. ("Investec"), and dated 16 February 2004, as properties in which he had an interest of 50%. His position in cross-examination actually was that each of the relevant properties was, at the material time, beneficially the property of Annette Bergen only. He opted to accept that the allegations made to Investec of having a 50% interest in each of the properties was untrue. He accepted that there was no justification for attempting to deceive Investec, but put his attempt to do so down to "a lazy application of language".
59. Moving from straightforward admissions of lying, in cross-examination Mr. Charalambous came up with a yet further version of the agreement for which he contended. On this version, refined from the account pleaded as recently as the previous day in the Re-Amended Defence and Counterclaim in respect of which he had signed a statement of truth, he did not contend that a figure of £562,000 had been agreed on 21 February 2008 to be paid in return for Mr. Harris resigning as a director of Aegis and transferring his shares to Mr. Charalambous. The further revised version was to the effect that all that had been agreed on 21 February 2008 was that, in principle, Mr. Harris would resign as a director of Aegis and transfer his shares in Aegis to Mr. Charalambous, and that Mr. Charalambous would purchase those shares. The fixing of the actual price was not done until the Promissory Note was produced in the office of the Cretan lawyer in Chania on 15 March 2008.
60. When he came to be cross-examined Mr. Christodolou was careful to explain that all he was asserting was that, whilst he was in Crete with Mr. Symeoudis, Mr. Charalambous stated that he was not prepared to pay anything to Mr. Harris and Mr. Symeoudis unless Mr. Harris resigned and left Aegis. Mr. Christodolou told me that Mr. Charalambous did not contend to Mr. Christodolou that any agreement had been made that Mr. Harris would resign as a director of Aegis or would sell his shares in Aegis to Mr. Charalambous. Mr. Christodolou accepted that he had not himself attended the meeting in the office of the Cretan lawyer at which the Promissory Note had been signed.

Consideration of the evidence as to liability and conclusions as to the agreement made on 21 February 2008

61. I was impressed by Mr. Harris as a witness. He seemed to me to be fair-minded and trying to be careful in his evidence, but I formed the view that his recollection of the detail of dates and figures was, understandably, given the lapse of time since the relevant events, somewhat hazy.
62. I was also impressed by Mr. Evans as a witness. Again he was careful in his evidence in cross-examination to assist the court to the extent that he could. He is, of course, a professional man, and, moreover, someone with no personal interest in the outcome of this litigation.
63. Perhaps the most impressive of all of the witnesses called before me in this trial was Mr. Symeoudis. Even Mr. Brilliant commended Mr. Symeoudis to me as transparently honest and anxious to tell me what had actually transpired relevant to the issues which I had to determine, so far as he could recollect. I have no hesitation in accepting the accuracy of the evidence of Mr. Symeoudis where he felt able to be definite. He did not feel able to be definite about exactly how much Annette Bergen had paid him and Mr. Harris in cash.
64. I recognise that Mr. Christodolou was to some extent in a difficult position in coming to give evidence. He was called on behalf of his cousin, Mr. Charalambous, but he was a friend of Mr. Symeoudis, and he had himself fallen out with his cousin over money and over the treatment of Annette Bergen and his children by Mr. Charalambous. I am confident that Mr. Christodolou was endeavouring, in his evidence, to assist the court and I accept his evidence, as clarified in cross-examination, as to the visit which he made to Crete with Mr. Symeoudis to see Mr. Charalambous.
65. It will be obvious to the reader by this stage of the judgment that I was not at all impressed by Mr. Charalambous as a witness. Quite apart from his record as a liar, the inconsistencies between the cases pleaded in the original Defence, the Amended Defence and Counterclaim and the Re-Amended Defence and Counterclaim; the divergences between those pleaded cases and what he said in his witness statement; the fact that no version of his case was consistent with such documents as were adduced in evidence which appeared to bear upon the issue what was agreed on 21 February 2008; and the mobile quality of his evidence in cross-examination, his demeanour did not encourage me to place any faith in anything which he said. I reject the evidence of Mr. Charalambous on any contested issue.
66. I find that on 21 February 2008 at the office of Mr. Evans during the meeting attended by Mr. Harris, Mr. Symeoudis, Mr. Charalambous and Mr. Evans Mr. Charalambous agreed that he owed Mr. Harris and Mr. Symeoudis the sum of £562,702.59 and that he agreed to pay that sum, rounded down to £562,000, by a payment of £100,000 in cash at once and by the issue of "shares in the new hotel business in Crete" to the value of £462,000.
67. Anticipating that I might reach the conclusion concerning the agreement on 21 February 2008 which I have reached, in his closing submissions Mr. Brilliant argued that the effect of such an agreement was that Mr. Harris and Mr. Symeoudis were entitled only to judgment for £100,000, less the admitted credit of £30,000, or such larger credit as I might find was appropriate on the evidence. I shall come to the issue of the amount of the appropriate credit shortly. For the moment the important point was that Mr. Brilliant was contending that what Mr. Charalambous agreed to pay, by the agreement which I have found proved, and what Mr. Harris and Mr. Symeoudis agreed to accept, was not £562,000, but £100,000 and "shares in the new hotel business in Crete". Consequently, submitted Mr. Brilliant, in effect, the risk of there being no shares was, under the agreement, that of Mr. Harris and Mr. Symeoudis. In my judgment that bold submission had no substance. The agreement made was as to an amount to be paid, £562,000, and as to how that sum should be paid, by £100,000 in cash and the issue of the shares "in the new hotel business in Crete" as to the balance. It was not an agreement only to accept £100,000 and some unspecified amount of shares of uncertain value. To perform the agreement Mr. Charalambous had both to provide £100,000 and shares to the value of £462,000. While it might be said that strictly the failure to deliver the promised shares sounded in damages, rather than gave rise to a liquidated claim, the substance of the matter was that the damages for failure to deliver the promised shares could only be the value which they had to have at the point of issue, £462,000. Subject to the issue of credit to which I am about to come, it was, I think, plain that the sum due to Mr. Harris and Mr. Symeoudis from Mr. Charalambous pursuant to the agreement which I have found proved was £562,000.

Credit against £562,000

68. Annette Bergen was called to give evidence on behalf of Mr. Charalambous. She made a witness statement dated 19 April 2013. At paragraph 10 she said:-

"Between March and June 2008 I handed over £39,900 in cash to Stephen and Alec on two or three occasions when they came to see me in Winchester. I also received instructions from Stephen and Alec to give some money to a business friend. I transferred the total sum of £30,937 into the named account of Sonia Hills in 5 separate transactions during March to May 2008, all these payments were made out of the profits realised from Northchurch Road."

69. Mr. Yell did not cross-examine Annette Bergen specifically upon that paragraph of her witness statement. Mr. Brilliant submitted that, in consequence, Mr. Charalambous was entitled to credit against the amount which I found to be due under the agreement which I have found proved in the sum of £70,837.
70. What Annette Bergen said at paragraph 10 of her witness statement actually gave rise to two different issues. One was, in effect, whether Mr. Harris was correct in recollecting the total amount which he and Mr. Symeoudis had received in cash from Annette Bergen at £30,000, rather than the £39,900 of which Annette Bergen spoke. The second was whether the total sum of £30,937 which Annette Bergen said she had transferred into a bank account of Sonia Hillis should be treated as having been paid for the benefit of Mr. Harris and Mr. Symeoudis. Sonia Hillis is the mother-in-law of Mr. Christodolou.
71. On the first of these issues I prefer the recollection of Annette Bergen to that of Mr. Harris. She impressed me as a very careful witness. She told me in cross-examination, and I accept, that she always keeps records, and I have no doubt that the figure of £39,900 came from her records. Mr. Harris, I am confident, was not in any way seeking to mislead by mentioning the figure of £30,000. He volunteered that figure in cross-examination. However, he seemed to me less focused in detailed precision than Annette Bergen, and so was less likely, after the passing of some five years, to recollect exactly how much he had received from Annette Bergen.
72. In cross-examination Annette Bergen explained that she had separated from Mr. Charalambous in October 2007, when they had been living in Crete with their two children, and she had returned to England with the children. She had sought legal advice as to her position after returning to England and had been told that she had acted unlawfully in removing her children from Crete without the consent of their father. She was also told that, for a period of one year from her departure from Crete, it would be open to Mr. Charalambous to apply to a court for the return forthwith of the children to Crete. Mr. Charalambous was also, it seemed, aware of this vulnerability in the position of Annette Bergen in relation to their children, and had made a complaint about the removal of his children to the police in Crete. Annette Bergen had been advised by her solicitor in England, she told me, not to do anything to upset Mr. Charalambous until the period within which he could seek the immediate return of his children to Crete had expired. Consequently, she said, whenever Mr. Charalambous requested her to make any payment out of the proceeds of sale of a property which she considered belonged to her, she did so.
73. Notwithstanding that at paragraph 10 of her witness statement Annette Bergen appeared to say that she made payments into an account in the name of Sonia Hillis on instructions from Mr. Harris and Mr. Symeoudis, in the light of her evidence in cross-examination it seemed to me inconceivable that those payments would have been made without instructions from Mr. Charalambous to do so. Whether or not Mr. Harris and/or Mr. Symeoudis also asked Annette Bergen to make the payments in question, I am not satisfied that those payments were in fact for the benefit of Mr. Harris and Mr. Symeoudis and therefore should be credited against the sum to which Mr. Harris and Mr. Symeoudis are entitled to be paid by Mr. Charalambous.

Judgment

74. There will be judgment in favour of Mr. Harris and Mr. Symeoudis in the sum of £522,100, calculated as £562,000 less the £39,900 which I am satisfied Mr. Harris and Mr. Symeoudis received from Annette Bergen. I will hear Counsel as to interest on the sum of £522,100.
75. The Counterclaim fails and is dismissed.