Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 59
CA91/08 & CA30/09	OPINION OF LORD MENZIES in the causes MARGARET SNEDDON AND ANOTHER Pursuers; against STEWART MacCALLUM AND OTHERS Defenders; and STEWART MacCALLUM AND ANOTHER Pursuers; Against MARGARET SNEDDON AND OTHERS Defenders; ­­­­­­­­­­­­­­­­­________________

For Mr & Mrs Sneddon: Richards, Q.C. et Gianni; Cassidy Advice & Solicitor Services

For Mr & Mrs MacCallum; Sandison, Q.C., Simpson & Marwick

For Mr Kirkham: Sandison, Q.C.; Brodies WS

25 March 2011

Introduction

[1] Mr Stewart MacCallum operates his own business as a Road Haulage Contractor from premises at Fort William. For many years, since before 2000, he has experienced financial problems as a result of bad debtors. He was under pressure from his bankers to reduce his indebtedness to them. The only realizable asset to which he could have access was a piece of rough ground extending to about 22 acres at Onich, which was the last part of a croft which had been in his family for generations. This land belonged to Mr MacCallum's mother, but she was content that it should be developed with a view to easing or eliminating Mr MacCallum's financial problems.

[2] Mr MacCallum contemplated building a couple of houses on the site and selling them at a profit in order to reduce his indebtedness. However, having spoken to a Planning Officer with the Local Authority, he discovered that part of the land was included for housing in the local plan, and that the local authority were interested in a rather more intensive residential development. Mr MacCallum could not finance such a development, and had no experience or relevant qualifications to enable him to obtain the necessary consents and take the development forward.

[3] Mr MacCallum had met Mrs Margaret Sneddon in about 2000, having been introduced to her with regard to the possible remortgaging of another property. Mrs Sneddon had experience in obtaining and arranging loan finance for purchases and developments of residential property. She operated her own business as an independent mortgage adviser from premises in Bathgate, but her business covered much of Scotland. She also operated an estate agency business, and was the landlord of some let residential properties. In 2004, Mr MacCallum discussed with Mrs Sneddon the possibility of their co-operating in the development of the property at Onich, with Mr MacCallum procuring the land from his mother for this purpose and Mrs Sneddon providing expertise and funding. Agreement broadly along these lines was reached - the terms of that agreement form one of the matters in dispute in these actions, to which I return below.

[4] Glencoe Developments Limited ("GDL") was a company incorporated for the purpose of carrying forward the development proposals for the land. It was incorporated on 26 October 2004. Stewart MacCallum and Margaret Sneddon each held one half of the issued share capital of the company, namely two shares each. On incorporation there were four Directors of GDL, namely Margaret Sneddon and her husband Andrew, and Stewart MacCallum and his wife Fiona. Margaret Sneddon was appointed as Company Secretary. Margaret Sneddon provided funds (£20,000) for the purchase of the land from Mr MacCallum's mother, and title to the land was taken in the name of GDL.

[5] Both Stewart MacCallum and Margaret Sneddon were interested in seeing that development proposals acceptable to the authorities were prepared on behalf of GDL, with a view to the land being sold to developers at a profit. However, because of his financial difficulties, Stewart MacCallum was also anxious to obtain money in the short term to enable him to repay or reduce his indebtedness; it was envisaged that this might be achieved by means of a loan to GDL secured over the land. Margaret Sneddon indicated to Stewart MacCallum that she was amenable to this being done, and she stated that she would use her connections in the mortgage and property financing business to see if this could be arranged.

[6] In the period from 2005 to 2008 several proposals for the development of the land were prepared on behalf of GDL, and negotiations took place with interested parties with a view to selling the land at a profit. However, these negotiations have not come to fruition, largely because the relationship between Mr & Mrs Sneddon and Mr & Mrs MacCallum has broken down. Mr & Mrs MacCallum lost confidence in Mrs Sneddon's interest in, or ability to obtain, funding to resolve Mr MacCallum's financial difficulties. They sought advice from Mr David Kirkham, a former accountant and retired businessman who had experience as a Company Secretary and Director of over 100 companies. Mr Kirkham's business life had been based in Yorkshire, but he retired to build a house in Glenuig in about 2005. A mutual friend introduced Mr MacCallum to Mr Kirkham, and Mr Kirkham agreed to help Mr MacCallum. Mr Kirkham attended several meetings with Mrs Sneddon and Mr & Mrs MacCallum.

[7] For her part, Mrs Sneddon became irritated and resentful at Mr Kirkham's involvement with the business of GDL. She had explained to Mr & Mrs MacCallum that her efforts to obtain funding for GDL to enable a loan to be made to Stewart MacCallum to ease his financial difficulties had been fruitless because potential lenders were not prepared to lend money to the company because of Mr & Mrs MacCallum's poor credit rating. There is a copy document lodged as a production which is dated 21 February 2008 which purports to be signed by Mr & Mrs MacCallum and which is in the following terms:

"I Fiona MacCallum and I Stewart MacCallum give permission to M Sneddon, to resign us as Directors of Glencoe Developments Limited due to adverse credit causing problems in raising finance on the land owned by the Company. No shares may be transferred".

The authenticity of that document is in dispute. On or about 18 March 2008 Margaret Sneddon electronically filed two Forms 288b(e)(f) with Companies House in respect of Stewart MacCallum and Fiona MacCallum giving notice of the termination of their appointments as Directors of GDL.

[8] In March, April and May 2008, several meetings took place between variously Mrs Sneddon, Mr & Mrs MacCallum and Mr Kirkham. Notes and minutes of these meetings were taken by Mr Kirkham. It appears from these that in the course of these meetings he was appointed Alternate Director of GDL by both Stewart and Fiona MacCallum; that he was appointed Chairman of GDL; and that he was appointed as a Director of GDL in his own right.

[9] On 31 May 2008, a form 288(b) terminating Margaret Sneddon's appointment as Company Secretary of GDL was lodged with Companies House. On the same date, forms 288(a) appointing Stewart MacCallum, Fiona MacCallum and David Kirkham as Directors of GDL and Malcolm Smith as Company Secretary were lodged with Companies House, and form 287 was also lodged changing the registered office of the Company.

[10] In about December 2009 Mr David Kirkham acquired the whole of Stewart MacCallum's interest in GDL.

The Proceedings in Court
[11] The first action to be raised was that at the instance of Mr & Mrs Stewart MacCallum, which was raised in July 2008. In this action, Mr & Mrs Sneddon are convened as defenders, together with David Kirkham, Malcolm Smith, GDL and the Registrar of Companies. By their first conclusion, the pursuers seek declarator that each of Mr & Mrs MacCallum is a Director of GDL and has been since 26 October 2004, that David Kirkham is a Director of GDL, that Malcolm Smith is Company Secretary of GDL and has been since 20 May 2008, and that the Registered Office of GDL is care of Murnin McCluskey, the firm of solicitors acting for Mr & Mrs MacCallum. By their second conclusion the pursuers seek production and reduction of the purported letter dated 21 February 2008 in terms of which Mr & Mrs MacCallum purportedly gave permission to Mrs Sneddon to resign them as Directors of GDL. By their third conclusion the pursuers seek production and reduction of forms received for filing by Companies House on 18 March 2008 showing Mr MacCallum's purported resignation as a Director of GDL on the 17 March 2008, and Mrs MacCallum's purported resignation as a Director of GDL on 18 March 2008. They also seek reduction of forms received for filing by Companies House on 12 June 2008 recording both Mr & Mrs MacCallum's purported resignation as Directors of GDL on 17 March 2008, and forms lodged with Companies House on the same day recording David Kirkham's purported resignation as a Director of GDL on 8 May 2008, Malcolm Smith's purported resignation as the Company Secretary of GDL on 20 May 2008 and Mrs Sneddon's purported appointment as GDL's Company Secretary on 20 May 2008. By their fourth conclusion, the pursuers seek interim interdict against Mr & Mrs Sneddon from dealing with GDL's heritable property and from appointing any new Directors or Company Secretary of GDL and from allotting or issuing any shares in GDL and from registering in GDL's register of members any shares in GDL allotted or issued after 9 June 2008 and from holding themselves out as Directors of GDL. By their fifth conclusion (as amended at the end of the proof) they seek interdict against Mrs Sneddon from acting or purporting to act as GDL's Company Secretary without further valid appointment to that office by the Board of GDL; and by their sixth conclusion they seek declarator that Mrs Sneddon has not made a Director's Loan to GDL, and that in terms of the agreement reached between Mr MacCallum and Mrs Sneddon the expenses and outlays incurred by Mrs Sneddon in purchasing the subjects in the name of GDL and in taking steps to obtain planning permission in relating to the subjects are not expenses incurred by her on behalf of GDL.

[12] Shortly after the above action was raised, Mr & Mrs Sneddon raised their action. In this action Mr & Mrs MacCallum are convened as defenders, together with David Kirkham, Malcolm Smith, GDL and the Registrar of Companies. By their first conclusion in this action, the pursuers seek declarator that Mr & Mrs MacCallum are not Directors of GDL and have not been since 18 March 2008, that David Kirkham is not a Director of GDL, and that Malcolm Smith is not Company Secretary of GDL. By their second conclusion, they seek reduction of forms dated 29 May 2008 purporting to appoint Stewart MacCallum and Fiona MacCallum as Directors of GDL; reduction of a form dated 8 and 29 May 2008 purporting to appoint David Kirkham as a Director of GDL; reduction of a form dated 20 and 29 May 2008 purporting to appoint Malcolm Smith as Company Secretary of GDL; reduction of a form dated 29 May 2008 purporting to terminate the appointment of Mrs Sneddon as Company Secretary of GDL; and reduction of a form dated 29 May 2008 purporting to change the address of the Registered Office of GDL. By their third conclusion the pursuers seek interdict against Mr & Mrs MacCallum and David Kirkham from dealing with or burdening the subjects belonging to GDL, from appointing any new Directors or Company Secretary of GDL, from allotting or issuing any shares in GDL, from registering in GDL's register of members any shares allotted or issued after 9 June 2008, and from holding themselves out as, acting as or purporting to act as Directors of GDL. By their fourth conclusion they seek interdict against Malcolm Smith from acting as Company Secretary of GDL.

[13] David Kirkham has lodged a counterclaim in the second of these actions. In this he seeks declarator that Mr & Mrs MacCallum are and have been Directors of GDL since 26 October 2004, that at the Board Meeting of GDL on 21 April 2008, Mr Kirkham was validly appointed by Mr & Mrs MacCallum to attend, participate and vote at that and subsequent Board Meetings as an Alternate Director of GDL for each of them, and that Mr Kirkham is the Chairman of the Board of GDL. By his second conclusion he seeks reduction of the purported letter dated 21 February 2008 which bears to authorise Mrs Sneddon to treat the first and second defenders as having resigned as Directors of GDL. By his third conclusion he seeks interdict against Mr & Mrs Sneddon from holding themselves out as, acting as or purporting to act as or on behalf of the Board of Directors of GDL pending final determination of the action.

The evidence
[14] Evidence was led over a two week period in January 2010, and a further two week period in November 2010. Mr & Mrs Sneddon gave evidence and four further witnesses were called on their behalf; Mr & Mrs MacCallum and Mr Kirkham each gave evidence, and four further witnesses were called on their behalf (one of whom gave evidence on commission). In addition, a joint minute of admissions was lodged in the action at the instance of Mr & Mrs Sneddon and the counterclaim thereto (no 32 of process), which narrated matters of agreement in both actions.

[15] Margaret Sneddon lived at an address in Lanark and had been married to her husband Andrew for some 23 years. After previous business experience, she went into business on her own account in about 2000 or 2001 as an independent mortgage adviser based in Bathgate. At first she was a sole practitioner, but thereafter Douglas Davidson joined her as a business partner. Mrs Sneddon arranged mortgage finance for a property at Greengairs, Airdrie for friends of Stewart MacCallum, and met him in about 2001. She arranged for the re-mortgaging of Stewart MacCallum's house at Onich and his mother's house nearby. After this, Stewart MacCallum asked her to meet him to discuss the possible development of a piece of land that belonged to his mother. She had two meetings with him, and he asked her to look at the land because he thought that it had development potential but local developers were not interested in it. She visited the land with Mr MacCallum and then contacted a corporate manager at her bank named Brian Henderson. He met Mr MacCallum and walked over the ground with Mrs Sneddon and Mr MacCallum in about 2003; he was encouraging about the development of the land and indicated that his bank would like to fund the development. Stewart MacCallum's attitude was that it was just a place to walk the dog, but that if something came out of it, it would be great. He left everything to Mrs Sneddon to orchestrate. She contacted an architect, Paul Moss, who drew up plans for houses, log cabins and a leisure facility.

[16] Mrs Sneddon stated that she agreed with Stewart MacCallum that because he had no money, she would fund all professional fees and expenses involved in progressing the development provided that she would get her money back when the land was sold or developed. She would get her money back before the parties took any profit from the venture. This agreement was reached in Mr MacCallum's house at Fort William; only the two of them were present, and their spouses were told subsequently what they had agreed. At this time the land still belonged to Mr MacCallum's mother, who wanted to be paid £20,000 for it. Mrs Sneddon had asked surveyors what crofting ground went for, and had been told between £500 and £800 per acre. The land was about 23 acres in extent, so the asking price was not too extravagant.

[17] Mr MacCallum and Mrs Sneddon agreed to set up a Company, and Mrs Sneddon chose the name Glencoe Developments because her maiden name was Campbell. They agreed that they would each take two shares in the Company, and that neither of their spouses would become shareholders. There would be four Directors, Mr & Mrs Sneddon and Mr & Mrs MacCallum. Mrs Sneddon would be the Company Secretary. The Company was incorporated on 26 October 2004.

[18] On 16 November 2004, Mr James Morrison of Sneddon Morrison, Solicitors, submitted an offer on behalf of GDL to purchase the land from Mrs Catherine MacCallum. Prior to this, Mrs Sneddon had asked Stewart MacCallum if he was happy to use Sneddon Morrison as the Company's Solicitors and he agreed to this. The instructions to Sneddon Morrison were on behalf of GDL. The purchase price of £20,000 was paid by Mr Sneddon; Mrs Sneddon gave Mrs Catherine MacCallum £2,000 in cash as Mrs MacCallum needed money, and the balance of £18,000 was paid to MacArthur Stewart who were Mrs Catherine MacCallum's Solicitors. It was common knowledge that Sneddon Morrison acted on behalf of GDL. On 23 January 2006, solicitors acting on behalf of Clyde & Forth Homes Limited wrote to Sneddon Morrison offering to purchase the whole issued shared capital in GDL at a price of £3.5 million. On 22 August 2007, solicitors acting on behalf of the Highland Housing Alliance ("HHA") wrote to Sneddon Morrison offering to purchase the land (or a portion of it) for £1.5 million. The first of these offers was unacceptable. The second resulted in lengthy negotiations which came to an end when the present proceedings were raised.

[19] Throughout her dealings with Stewart MacCallum, Mrs Sneddon was aware that he needed money. On occasions she lent him money for holidays, for Christmas, for a computer and for other expenses. At Mr MacCallum's behest, Mrs Sneddon attended a meeting at the Marriott Hotel in Glasgow in July 2007 with Mr MacCallum and a man called Ted Black to see if money could be made available to Mr MacCallum. Mr MacCallum had previously assured Mrs Sneddon that this meeting was nothing to do with his shareholding in GDL; however, it soon became apparent that Mr Black was interested in purchasing or otherwise controlling Mr MacCallum's shareholding in GDL. This was not what Mrs Sneddon had understood from Mr MacCallum would be the subject of the meeting, and she walked out. She did not wish a third party to become involved in GDL by that stage. In November 2007, Stewart MacCallum telephoned Margaret Sneddon and told her that he was at the end of his tether. He was being pursued for money by his creditors, the bank, HM Revenue & Customs, and was being sued in relation to financing of his car. He owed Mrs Sneddon £20,000 by that time. He could not see any solution to his financial problems and asked for her advice. She suggested that he should speak to her partner Douglas Davidson and they would arrange for a valuation of the ground belonging to GDL. Mr MacCallum said that he had already obtained a valuation (although he had not told Mr or Mrs Sneddon that he was doing so) which valued the ground at about £400,000. A valuation from J & E Shepherd, Chartered Surveyors, dated 20 June 2007 and addressed to Stewart MacCallum, gave a current market value of the land "without planning consent but including an element of hope value" at £425,000, and with outline planning permission for 26 plots, at £1,280,000. Mrs Sneddon observed that the offer on behalf of HHA, dated 22 August 2007, was for £1.5 million in respect of only a portion of the land.

[20] In an effort to assist Mr MacCallum with his financial problems, Mrs Sneddon asked Mr Davidson to speak to various commercial lenders with a view to their making a loan to GDL secured over the land, which would enable funds to be advanced to Mr MacCallum. Mrs Sneddon had meetings with Jennifer Mailey who worked in property related commercial funding with the Royal Bank of Scotland ("RBS"). An approach was also made to the Clydesdale Bank, but the manager of the branch at Fort William expressed the view that the loan should not proceed, and Mr Davidson was of the view that this could only have been because of Mr MacCallum's poor credit rating. An approach was also made to the Allied Irish Bank, who would not lend. At some stage (Mrs Sneddon could not remember when) Mr Davidson had to obtain authorisation from Mr & Mrs MacCallum to obtain a credit search on them to proceed with the funding proposals.

[21] The negotiations with RBS appeared to be progressing well. The application for funding went ahead, and was passed by the underwriter but was ultimately not sanctioned. A further valuation of the land was obtained on behalf of GDL from DM Hall, Chartered Surveyors, which valued the land as at 30 January 2008 "as existing with hope value for a 26 plot scheme" in the order of £600,000, and "on the assumption of planning consent granted for a 26 unit scheme on straightforward non-contentious terms" in the order of £1.3 million. Again, this valuation was obtained to assist Stewart MacCallum with his financial difficulties. A further attempt was made to obtain funding from the Lancashire Building Society. Mrs Sneddon understood that the reason that the applications for funding were not being successful was largely Stewart MacCallum's credit history. Her own credit rating was very high. RBS required a credit search in relation to each of the four Directors of GDL. When the application to that bank was unsuccessful, Mrs Sneddon spoke to Mr MacCallum and he said that it looked as if he would have to resign as a Director of GDL. She sent him two forms to sign to give effect to his resignation. She realised why the banks would not lend to GDL, and she spoke to both Bridget Heaney and Jennifer Mailey at RBS. They told her that there was no point in proceeding with the application for funding if Mr & Mrs MacCallum were still Directors of GDL, but that the application would be successful if they were not Directors. She explained this to Stewart MacCallum (but not Fiona MacCallum), and his response was that if that was what he had to do he would do it, but nothing was to happen to his shares. He agreed to resign as a Director of GDL, but that this would have no effect on his shareholding. Mrs Sneddon had no difficulty with this proposal.

[22] Mrs Sneddon was shown the letter dated 21 February 2008 (no 20 in the joint bundle) the terms of which are set out at paragraph [7] above. This letter bears to be signed by Stewart MacCallum and Fiona MacCallum. Mrs Sneddon stated that she typed this letter, and she included the passage about no transfer of shares because Stewart MacCallum had told her that he wished this. She typed two of these letters herself, and sent them to Stewart MacCallum at his address at Onich, enclosing two stamped addressed envelopes, one addressed to her and one addressed to Companies House. She received a copy back in the post, and knew what it was because her handwriting was on the envelope. She then telephoned Stewart MacCallum and told him that she could go ahead. She understood from Companies House that it would take 24 or 48 hours before the resignation became apparent on line, and after this period she telephoned Stewart MacCallum again to say that the Directors were now only herself and her husband and she would make a further application for funding to the bank.

[23] Mrs Sneddon stated that she was in no way party to forging the signatures on this document; she knew that the MacCallums contend that they did not sign the document, but if it was a forgery, she had nothing to do with this. She received one copy of it and Companies House received another. Although the form 288(b)(e)(f) in relation to Stewart MacCallum showed his date of resignation as 17 March 2008 and that in relation to Fiona MacCallum showed her date of resignation as 18 March 2008, Mrs Sneddon told Stewart MacCallum that there would be a 24 to 48 hour delay in the resignation being effective.

[24] In March 2008, Stewart MacCallum telephoned Mrs Sneddon and asked her to have a meeting with him and David Kirkham, who was just a friend who was going to give him financial advice. Mrs Sneddon agreed to this meeting on condition that Douglas Davidson attended. The meeting took place at Mrs Sneddon's office in Bathgate on 20 March 2008; she and Mr MacCallum were there together with Mr Davidson and Mr Kirkham. Mrs Sneddon was not told that Mr Kirkham had any particular financial training or experience. GDL was close to concluding the transaction with HHA; agreement had been reached as to which building plots would be retained, and once Mrs Sneddon had been paid back her outlays the balance of the price could be split between Mr MacCallum and herself. By the time of this meeting the status of Mr & Mrs MacCallum had changed in that they were no longer Directors of GDL, and they were aware of this fact. This was discussed at the meeting and Mrs Sneddon remembered Stewart MacCallum saying to Mr Davidson that he and Fiona had already resigned. She regarded this merely as a paper exercise, to the extent that once funds had been obtained, Mr & Mrs MacCallum would be reinstated as Directors and nothing would have changed. Mrs Sneddon denied asking whether Stewart MacCallum would be prepared to transfer his shares to his elder daughter (see paragraph 13.4 of the notes of the meeting, no 25 of the joint bundle) - this was a suggestion made by Stewart MacCallum himself, which in the course of a later telephone conversation with Mrs Sneddon he abandoned.

[25] Mr Morrison was aware of Stewart MacCallum's financial difficulties, and had required to give a "letter of comfort" to the bank regarding the missives. Mrs Sneddon was sure that he had suggested to the MacCallums that they might want to resign to help matters. It was put to Mrs Sneddon, under reference to the e-mail dated 19 March 2008 (no 26 of the joint bundle) that Mr Morrison did not appear to know at that date that Mr MacCallum had resigned as a Director, but she observed that she had asked him to send this e-mail about a fortnight earlier. By the time it was sent, Stewart MacCallum had already resigned.

[26] Mrs Sneddon attended a meeting in Shotts on 3 April 2008 with Stewart MacCallum and David Kirkham. Under reference to notes of this meeting taken by Mr Kirkham (no 27 of the joint bundle), Mrs Sneddon was asked what her reaction was to references to the issues which Stewart MacCallum faced as Director of GDL; her response was that she still saw Mr & Mrs MacCallum as Directors - they resigned for a purpose, and in her eyes they were still Directors. That was why she did not make a "song and dance" about it. By the time of this meeting, Mrs Sneddon was getting fed up with being dictated to by Mr Kirkham - he seemed to be taking over the proceedings, and she did not think that he was helping. By this time he had already met Grant Levett and Colin Rowley and was looking at other means of funding for Stewart MacCallum. Despite what was said in paragraph 3.6 of the notes of the meeting, the last thing that Mrs Sneddon wanted was for Stewart MacCallum to go bankrupt - this would have left her dealing with an insolvency practitioner.

[27] After the meeting on 3 April 2008, Margaret Sneddon continued to do everything possible to obtain funding to help Stewart MacCallum. She discussed a revaluation of the land with Julia Robertson at DM Hall and she attended a meeting at Stewart MacCallum's accountants. She was unaware that Mr MacCallum and Mr Kirkham and another friend of Mr MacCallum had attended a meeting with Susan Torrance of HHA on 10 April 2008 until much later.

[28] Mrs Sneddon was annoyed to receive the e-mail dated 14 April 2008 from David Kirkham (no 29 of the joint bundle). She had known Stewart MacCallum since 2001; she regarded him as a nice guy which is why she had lent him money. She felt that he was being taken advantage of and brainwashed by Mr Kirkham. She understood that the meeting which was being suggested in the third paragraph of this e-mail was a meeting to discuss Stewart MacCallum's financial problems - there was no suggestion that she, as Company Secretary, should convene a Board Meeting of GDL. Her husband had not been told of the meeting, and she did not believe that it was concerned with GDL. Mr Kirkham had no power to require a Board Meeting of GDL to be convened, nor was he entitled to attend or chair such a meeting. Neither Stewart MacCallum nor Fiona MacCallum asked her to convene a Board Meeting of GDL at this time.

[29] Mrs Sneddon attended a meeting at the offices of Active Corporate in West George Street, Glasgow on 21 April 2008, but in the belief that it was an informal meeting to discuss solutions to Stewart MacCallum's financial problems, and not believing it to be a Board Meeting of GDL. Her husband was unaware of the meeting. When Mrs Sneddon arrived, Mr & Mrs MacCallum and Mr Kirkham were already there, seated at a Board table with Mr Kirkham at the head of the table. Mr Kirkham stated that he would be the voice of Mr & Mrs MacCallum, who would not be speaking; Mrs MacCallum asked if she could ask questions and Mr Kirkham told her that she could not and that Mr & Mrs MacCallum should say nothing. There was never any suggestion that Mr Kirkham should be appointed as Alternate Director for each of Mr & Mrs MacCallum; Mrs Sneddon had never heard of the term "Alternate Director", neither Mr nor Mrs MacCallum proposed that Mr Kirkham should be their Alternate Director, and Mrs Sneddon never agreed to any such proposal. There was no proposal that Mr Kirkham should be Chairman of the Board, and Mrs Sneddon did not agree to this. She was only asked if she had any problem, for this meeting only, with Mr Kirkham speaking for Mr & Mrs MacCallum; as the meeting was informal, she said that if they had no problem with this, she did not. Despite the terms of the notes taken by Mr Kirkham (no 33 of the joint bundle), there was no discussion about any additional shares being issued to Mr Sneddon and Mrs MacCallum, and Mrs Sneddon never agreed to such a proposal. This was something she would have had to discuss with her husband.

[30] There was some discussion at the meeting about the progress of the missives with HHA and about the proposals from Colin Rowley and Grant Levett to invest in the Company in order to provide funding for a loan to Stewart MacCallum, but Mrs Sneddon felt uncomfortable about this because she had received a phone call from Grant Levett warning her that Mr & Mrs MacCallum and Mr Kirkham were going to "stitch her up" and get rid of her. Mrs Sneddon did indicate that she was in a position to raise about £150,000 to finance the purchase of part of Mr MacCallum's shareholding in order to assist him with his present financial difficulties. Mrs Sneddon never agreed to a dilution of her shareholding in GDL from 50% to 25%, as suggested at paragraph 2.1.5 of the "minutes".

[31] Mrs Sneddon attended another meeting at the Marriott Hotel, Glasgow on 28 April 2008. Before this meeting she had received an e-mail from Mr Kirkham, but she could not remember if an agenda was attached to this. Only she and Mr Kirkham were present at this meeting, which was held at a coffee table in the lounge of the hotel. She understood the purpose of the meeting was again to discuss raising finance for Stewart MacCallum. She made a revised proposal to buy the whole of Mr MacCallum's shareholding in GDL on terms which were more than reasonable. When she received the "draft minutes" of this meeting she responded to Mr Kirkham by e-mail on 1 May 2008 (no 40 of the joint bundle), in which she stated that "under no circumstances did I agree to appoint you as a Director".

[32] Mrs Sneddon stated that she did not remember when she opened the e-mail from Mr Kirkham to her dated 1 May 2008 (part of no 41 of the joint bundle). Although this e-mail contained the statement that "the MacCallums and I are calling a further Board Meeting to be held at the Marriott Hotel, Glasgow at 12.30 on Thursday 8 May 2008...", Mrs Sneddon had not realised that a meeting had been called for that date and time, and was not prepared for it. At around lunchtime on 8 May 2008 she received a telephone call from Stewart MacCallum asking where she was; she was looking after her horses at the time, but returned to her house and Mr Kirkham telephoned her there. He asked her if her husband was available. Her husband was in the house; he had never met or spoken to Mr Kirkham before. She handed the telephone to him and heard him say "I am" and "indeed I do not", and then he returned the telephone to her. She understood him to be stating that he did not recognise Mr Kirkham as a Director of GDL. There had never been any suggestion until then that Mr Kirkham should be appointed as a Director of GDL in his own right. In the course of one of the telephone conversations on the afternoon of 8 May 2008, Mrs Sneddon stated that she categorically refused to accept that Mr Kirkham was Chairman or a Director of GDL. Mrs Sneddon's participation by telephone only lasted for 5 or 10 minutes; none of the matters listed under paragraph 4.5 of the "first draft minutes" were discussed at all, and there would not have been time to do so in the course of her telephone conversation. Mrs Sneddon had never approved any of the minutes prepared by Mr Kirkham, nor was she party to any discussion about the possible termination of Mr Morrison's appointment as Company Solicitor. There was no discussion about Mrs Sneddon exhibiting the Company's Statutory Books to the Board. However, Mrs Sneddon did ask whether the offer she had previously made to purchase Mr MacCallum's shares was going to be accepted; no indication was given as to whether this would be accepted or not, and no counter proposal was made.

[33] Mr Kirkham sent a copy of the draft minutes of the meeting of 8 May 2008 to Mrs Sneddon later that evening, and on 12 May Mrs Sneddon e-mailed Mr Kirkham stating that "for the avoidance of doubt under no circumstances will I agree to or did agree to you becoming a Director of Glencoe Developments Limited. Furthermore I have never or will ever agree to you representing the Company in anyway. I agreed to meet with you as you maintained you were a friend of Stewart's...". On the same day, Mr Kirkham e-mailed Mrs Sneddon stating that unless she delivered the complete GDL statutory books to the offices of Mr MacCallum's solicitors by 16 May he would take steps to convene a Board Meeting to remove her as Company Secretary. Mrs Sneddon observed in evidence that she had never received any requests from Stewart MacCallum for these books, and Mr Kirkham had no locus or authority to ask for them. However, in due course, forms were sent to Companies House stating that she had ceased to be Company Secretary of GDL. These forms were signed by Malcolm Smith; Mrs Sneddon did not know who he was.

[34] A meeting was held at the Hire Centre, Fort William on 20 May 2008 attended by Mr & Mrs MacCallum and Mr Kirkham. Mrs Sneddon was not told when this meeting was to happen; the only intimation she received was an e-mail sent by Stewart MacCallum to her on 16 May 2008 (no 67 of the joint bundle) stating "David, Fiona and I are convening a Board Meeting next week. You said you were happy to come to Fort William so we will hold it at my Hire Centre, by Travis Perkins on the Industrial Estate at 12.30...". No date for the meeting was specified. Mrs Sneddon replied asking when the meeting was going to be held, and telling Mr MacCallum that neither she nor her husband would be able to attend because they were travelling to Dubai that week and their arrangements could not be changed. In the course of a telephone conversation with her, Stewart MacCallum asked if he had resigned as a Director; she said "You know you have, for loan purposes", and Mr MacCallum replied "That's why I got David Kirkham involved - I forget what I have done".

[35] Mrs Sneddon did not consider any of these meetings to be Board Meetings of GDL. The first meeting she described as "cake and buns in a hotel lounge"; she was lured to the meeting on a false pretext, she was given no agenda, and there had been no suggestion of any change of Directors. No intimation had been given to her husband, and she would have insisted on her husband being present, and on legal representation, if she had known what would happen. The "minutes" prepared by Mr Kirkham did not reflect accurately what had happened. The suggestion in the minutes of the meeting of 20 May 2008 that Mrs Sneddon was deliberately concealing unauthorised and unlawful action from the Board was quite untrue; the question of the MacCallums' resignation as Directors was discussed at the meeting at the office in Bathgate, and after the resignation letter was returned from the MacCallums to Mrs Sneddon, Stewart MacCallum asked her how long it would be before the resignation could be intimated to the bank so that financing could be made available. There was no question of concealment. Mrs Sneddon derived no benefit from the resignation of Mr & Mrs MacCallum - the only benefit accrued to Mr MacCallum because it made it easier for finance to be raised in order to resolve his financial difficulties.

[36] With regard to who was to pay for the costs of planning permission and other expenses before the land was sold, Mrs Sneddon stated that it was always agreed that she would get her total outlays back before profits were split. It was ridiculous to suggest that she would pay all the costs of buying the ground, obtaining planning permission and other necessary consents and meeting the running expenses of the Company out of her share of the profits - such expenses were an unknown quantity and might exceed her share of the profits, and nobody in their right mind would agree to such a scheme. Although there was no written agreement, she and Mr MacCallum shook hands on a deal whereby she would receive repayment of her outlays and expenses before profits were divided. She would never have agreed to a deal whereby Stewart MacCallum would get half of the proceeds of the sale price of the land, and she would have to meet the costs of the purchase of the land, planning permission and running costs.

[37] Asked if she accepted that Stewart MacCallum is still a Director of the Company, Mrs Sneddon replied that he did resign, but that she still saw him in effect as a Director.

[38] In cross-examination Mrs Sneddon denied that she pretended to the MacCallums that she had experience in getting planning permission for residential developments - she had no such experience, and she did not pretend that she had. She did not tell them that money would be forthcoming in five or six months after incorporating the Company - such a time scale was quite impossible, given the issues of planning permission, decrofting, roads and overhead power lines. Not all of the land was included for housing in the relevant 1999 local plan. She denied that the original agreement was that she would put in her expertise and meet the costs of obtaining permissions and working up a development and that Stewart MacCallum would provide the land; he did not provide the land, his mother sold it to the Company and Mrs Sneddon paid the purchase price. Stewart MacCallum had spent no money at all on this project. Mrs Sneddon's expenditure on the project, including the price which she paid for the land and the expenses incurred in professional fees, were a loan to the Company, although the Company does not have a bank account and there were no documents recording that this was a loan - it was dealt with on an old fashioned handshake.

[39] Mrs Sneddon agreed that GDL was set up with four Directors, and that the Company's annual returns, which were signed by her as true, showed that Stewart MacCallum was a Director of GDL in each of the years 2005, 2006 and 2007. She was then shown a Minute of Amendment drafted on her behalf, and associated motion intimated on 20 October 2009, and she confirmed that this Minute had been drafted on her instructions. Paragraph 4(a) of that Minute of Amendment contained detailed averments to the effect that on 26 October 2004 Stewart MacCallum phoned Margaret Sneddon at her office and instructed her that, contrary to their earlier agreement, he was not to be appointed as a Director of GDL. It was also averred that the provision of those instructions was directly witnessed by Margaret Sneddon's assistant, Michelle Kennedy. It was averred that Mrs Sneddon accepted these instructions, and accordingly, as a result of his own deliberate decision to keep his shareholding out of his creditors' sight, Mr MacCallum was not appointed a Director of the Company. At no stage thereafter was he ever so appointed. Mrs Sneddon accepted in her evidence that none of this was true, that she had indeed arranged for Stewart MacCallum to be appointed a Director of GDL, and that he had been a Director of GDL since its incorporation. She explained that she had not been well and in about July 2009 she went to Companies House with her son, and an employee at Companies House told her that Stewart MacCallum was not a Director of GDL from the outset. She was told that the paperwork had been checked and there were only three Directors of the Company. Mrs Sneddon stated that she looked at the paperwork and then telephoned her assistant Michelle and told her that she thought that Stewart MacCallum was not a Director. She now accepted that this was wrong.

[40] Mrs Sneddon agreed that the only shareholders in GDL were Stewart MacCallum and herself - the reference in the offer from Clyde & Forth Homes dated 23 January 2006 to Frank Keenan being a shareholder was simply wrong, and must have arisen from Frank Keenan giving the impression that he was something to do with the Company. Paul Moss was instructed on behalf of the Company to prepare plans before the Company had bought the land from Stewart MacCallum's mother; Mrs Sneddon arranged for Mr Moss to send his fee note to her, and she paid it, on the basis of her agreement with Mr MacCallum that she would be paid back her expenses before any profits arising from the sale of the land were divided. She was therefore paying bills on behalf of the Company and lending money to the Company in 2005 and 2006, although she lodged forms with Companies House which indicated that the only transaction was the issue of subscriber shares and that no accounts had been prepared. There was a folder which she had shown to Mr Kirkham which contained the Memorandum and Articles of Association of GDL and the Register of Members, but there were no records of any Board Meetings and none had been held, and there were no accounts. She could not explain why Mr Morrison had written to Mr Kirkham's solicitors stating that the Statutory Books of the Company did not exist.

[41] Turning to the negotiations for the sale of the land to HHA, although HHA wanted to buy the whole of the ground, GDL were only selling part of it - there was further land left for GDL to develop. By late 2007 or early 2008 the only outstanding issue was the identification of the plots of land to be retained by GDL - Mrs Sneddon wanted to reserve plots which would give GDL access to the remainder of the ground which was not being sold to HHA. There was then a delay when HHA moved offices. Mrs Sneddon was aware that the financial pressures on Mr MacCallum were severe at this time, although he had been on the verge of bankruptcy since her involvement with him began. Mrs Sneddon had never been in favour of Mr MacCallum transferring his shares to anyone - she did not want a third party stranger such as Ted Black involved with her in the company. However, she was trying hard to help Mr MacCallum with his financial problems, and made approaches to various potential lenders. She had no paperwork in relation to her approaches to the Clydesdale Bank or RBS, but she met with Jennifer Mailey and with Bridget Heaney in order to discuss a loan which would assist Mr MacCallum. Both they and Mr Davidson indicated that it would be easier to obtain a loan for GDL if Mr & Mrs MacCallum were not directors. Bridget Heaney definitely told Mrs Sneddon that it would be advantageous for the MacCallums to resign as Directors. Bridget Heaney told Mrs Sneddon that the bank would require an updated Companies House form showing that the MacCallums were not Directors of GDL. The loan application was put to the Coatbridge branch of RBS and approved by underwriters, but then either Mr Davidson or Trevor Thompson told her that the bank would not sanction the loan because Stewart MacCallum was still a shareholder in the company and had a casting vote. Mrs Sneddon had also approached Allied Irish Bank in December 2007 and brokers had approached the Clydesdale Bank, but neither institution would lend to GDL because of Stewart MacCallum's poor credit rating. Although in his e-mail to Mr Murnin dated 19 March 2008 Mr Morrison stated "I appreciate your client should not resign as a Director or cease to be a shareholder without some formal agreement to safeguard his interest and share in the future profits from the development", Mr MacCallum had made it clear to Mrs Sneddon that he did not want to transfer his shares, so she would not have mentioned to Mr Morrison his ceasing to be a shareholder. Mrs Sneddon was adamant, at several points in her evidence, that Bridget Heaney did tell her that the problem with GDL's loan application was Stewart MacCallum's poor credit rating, and that the prospects of obtaining a loan would be improved if both MacCallums resigned as Directors. After their resignation, a further application was submitted, but this was refused; both Mr Davidson and Trevor Thompson told Mrs Sneddon that this was because the bank had changed its lending policy.

[42] Mrs Sneddon confirmed that she had typed the content of the MacCallums' resignation letter dated 21 February 2008 (numbers 20 and 21 of the joint bundle); when she received it returned in the post, she contacted Mr MacCallum to tell him that she had got it. She did not realise that it was a copy, but she never received a document with ink on it. Later she gave the copy which she received to her solicitor. She intimated the resignation details to Companies House online, and could not explain the difference between the dates of resignation of Stewart MacCallum and Fiona MacCallum. She was 100% sure that she had not typed the letters dated 11 December 2007 and apparently signed by Stewart MacCallum and Fiona MacCallum which form letters (A) and (B) attached to Mr Macrae's report (number 91 of the joint bundle), although she knew that Mr Davidson needed to obtain a credit rating for the MacCallums and would have required authorisation from them to obtain this. Michelle, her secretary, also acted as secretary to Mr Davidson. It was put to Mrs Sneddon that she, or somebody under her direction, was responsible for attaching the apparent signatures of Stewart MacCallum and Fiona MacCallum to the resignation letter (number 20 of the joint bundle), but she denied this. She pointed out that she did not need the credit, and she had no interest in procuring the MacCallums' resignation as Directors. Not only did Stewart MacCallum return the letter of resignation to her, she spoke to him by telephone after she received it and told him that it would take a couple of days to show up on the internet. When he spoke to her later, after he had received a flyer from a third party noting that he had resigned as a Director of GDL, he telephoned her and asked if he had resigned, and observed "That's why I got David involved, sometimes I forget what I have done, then I regret what I have done and that's why I've got David here". He did not deny resigning as a Director.

[43] The minutes of the meeting of 20 May 2008, which recorded that the MacCallums denied having resigned as Directors of GDL, were e-mailed to Mrs Sneddon immediately, so she was aware that there was a dispute over this matter within 48 hours of that meeting. On 9 June 2008 she wrote to the MacCallums (number 68 of the joint bundle) asking the MacCallums to pay £75,000 to Sneddon Morrison on behalf of GDL. She accepted that she was aware at the time of writing that letter that Mr MacCallum did not have £75,000, but perhaps someone would have given him the money. She wrote this letter on the advice of the solicitors who were then acting on her behalf.

[44] Mrs Sneddon was sure that it was bank policy not to lend to companies the Directors of which have poor credit ratings, but one would have to ask a banker or broker why two Directors with a poor credit history should taint the credit of a company which had two other Directors with a good credit history. Although she regarded the resignation of the MacCallums as only a paper exercise, and that they could be restored as Directors at any time, she did not consider it to be dishonest for the Company to make a loan application to the bank and not to disclose this situation to the bank.

[45] Douglas Davidson attended the meeting at King Street, Bathgate on 20 March 2008 at Mrs Sneddon's request, to act as a witness because after her experience of the meeting with Ted Black she was concerned that this might be another meeting at which unexpected proposals were made. She did not take any notes of the meeting, but Mr Kirkham took notes and these (number 25 of the joint bundle) were e-mailed to her. Although some of the topics covered in these notes were the subject of discussion at the meeting, there were important inaccuracies in the notes. For example, in the heading of Part 7 and in paragraph 7.1 it appears that Mrs Sneddon and Mr MacCallum were transposed. In paragraph 13 any discussion about change in status could only have related to Mr MacCallum's status as a shareholder, because the change of status regarding Directors had already occurred. Mrs Sneddon could not remember Mr MacCallum's exact words, but he said something like "We have already resigned, lets see if this works" or words to that effect. Mrs Sneddon did not suggest that Mr MacCallum might transfer his shares to his daughter; Mr MacCallum was worried about his creditors, and it was he who asked what he should do with his shares.

[46] Thereafter it was agreed that Mrs Sneddon would meet with Mr MacCallum and Mr Kirkham at a supermarket car park in Shotts on 3 April 2008; from there they went to have coffee at the Royal Hotel. Mrs Sneddon felt frustrated and angry at these meetings taking place when they were so close to concluding missives for the sale of the land. Moreover, Mr Kirkham was a complete stranger to her yet he behaved as if he owned GDL. She was trying to help Mr MacCallum, and she considered that it was reasonable for her to ask for repayment of her outlays at that point, with the balance of any subsequent profit being split equally. She had reached no deal with Grant Levett and Colin Rowley, but after the meeting Mr Levett telephoned her and told her to watch what she was doing as she was going to get "stitched up"; he told her that David Kirkham had asked them if they bought into the company would they enter a share alliance against her. She had no recollection of either Mr Kirkham or Mr MacCallum asking for accounts or a balance sheet; she had already provided them with a schedule of costs incurred.

[47] Mrs Sneddon was not aware that Mr MacCallum, Mr Kirkham and Mr Phillipson were going to meet Susan Torrance of HHA on 10 April 2008, and she did not attend that meeting, but the notes of that meeting were e-mailed to her some days later. She then received an e-mail dated 14 April 2008 from Mr Kirkham in which he suggested that there should be an early meeting. She did not receive any request for a meeting from Stewart MacCallum, although he sent her a copy of the same e-mail from David Kirkham. She did not regard this as a request for a Board Meeting, but rather a meeting over coffee and sandwiches to discuss Stewart MacCallum's finances. She spoke to Mr MacCallum by telephone and agreed to attend the meeting but made it clear that it was to discuss Mr MacCallum's financial problems and that she would not discuss company matters with Mr Kirkham. Mr MacCallum did not demur from this and did not indicate that he wished to have a Board Meeting called. If Mr or Mrs MacCallum had requested that a Board Meeting be called (and particularly if it was suggested that an alternate Director and Chairman of the company might be appointed) Mrs Sneddon would have made sure that her husband was there and would have insisted on legal representation. It was suggested to her that Mr MacCallum specifically told her to make sure that her husband Drew would come, but she denied this emphatically. She received a subsequent e-mail to confirm that this was only coffee and sandwiches.

[48] Mrs Sneddon attended the meeting in Glasgow on 21 April 2008, believing that it was to discuss Mr MacCallum's financial problems. When she arrived, nobody asked where her husband was and she did not say that he could not come but sent his apologies. Mr Kirkham asked her if she had any problem with him, for the purposes of this meeting, speaking on behalf of Stewart and Fiona, to which she replied "No". Fiona asked if she could ask any questions, and Mr Kirkham abruptly told her that she could not. To the best of Mrs Sneddon's recollection the words "Alternate Director" were never mentioned, and she did not agree to Mr Kirkham being the MacCallums' Alternate Director. Neither of the MacCallums was allowed to speak. It was never suggested (and Mrs Sneddon certainly never agreed) that Mr Kirkham should be Chairman - he made it quite clear that he was speaking for the MacCallums for the purpose of that meeting alone. She had no recollection of it being agreed that Mr Kirkham should prepare draft minutes and circulate them for approval, nor any discussion about approved minutes being exhibited to Mr MacCallum's bankers. There was some discussion about increasing the issued share capital from 8 to 200, but she had already told Stewart MacCallum that she was not prepared to discuss company matters with Mr Kirkham and she felt uncomfortable and unhappy and was not interested in what Mr Kirkham was saying.

[49] Another meeting was arranged for 28 April 2008, at which only Mrs Sneddon and Mr Kirkham attended. Mr Kirkham had not asked Mr Drew Sneddon to attend this meeting, nor had Mrs Sneddon, and no apologies were presented on his behalf. She did not approve the minutes of the meeting of 21 April, nor was she asked to do so - if she had been asked, she would have stated that she had problems with them and she would not have approved them. There was no discussion about this. With regard to Mr Morrison's legal fees, she had negotiated these down to 0.5% of the cash consideration; she could not remember when this agreement was reached. Mr Reilly's fees and expenses were to be a debt of the company. Mrs Sneddon received a copy of the draft minutes by e-mail on the following day. On 1 May 2008 Mr Kirkham sent an e-mail to Mrs Sneddon stating that "The MacCallums and I are now calling a further Board Meeting to be held at the Marriott Hotel, Glasgow at 12.30 on Thursday 8 May 2008". Mrs Sneddon made the point that Mr Kirkham had no authority to call a Board Meeting, and she never received any request from either of the MacCallums to arrange a Board Meeting. In any event, she had not read this e-mail before Stewart MacCallum telephoned her on 8 May to ask her where she was; she had no idea what he was talking about. She received this telephone call at about 12.30/1pm, when she was with her horses. Her husband Drew was definitely not with her at that time, because he would have been out at work. Mrs Sneddon could not remember much about what was said in this telephone call as she was working with her horses. She did not remember Fiona MacCallum proposing anything, nor hearing her voice on the telephone, and she observed that if Mr Kirkham was acting as Alternate Director for Fiona MacCallum, Fiona MacCallum surely could not propose anything. Mrs Sneddon had to collect the daughter of a friend from school and take her to hospital. She received another telephone call at about 5pm that day, when she indicated that she would engage in a telephone conversation in ten minutes time. When the telephone rang, Mr Kirkham asked to speak to Mr Drew Sneddon; by this time, her husband had arrived home, and she handed the telephone to him. Mrs Sneddon understood that Mr Kirkham asked him if he was Mrs Sneddon's husband, and she heard him reply "I am". She understood that Mr Kirkham asked if he recognised Mr Kirkham as a Director and Chairman of the Company and she heard her husband reply "I certainly do not" and handed the telephone back to her. The conversation did not last long, and immediately afterwards Mr Sneddon told Mrs Sneddon what had been said to him on the telephone. Mrs Sneddon's involvement in the telephone conversation was only with Mr Kirkham, and was not a conference call or on loudspeaker. Although there was some discussion about some of the events mentioned in paragraphs 4.5 to 4.5.8 of the minutes, not all of these subjects were covered in the conversation, nor could they have been in the relatively short timescale involved.

[50] Mr Kirkham emailed a copy of the draft minutes of that meeting to Mrs Sneddon at about 11pm that evening, and her reply of 12 May made it clear that she did not agree to his becoming a Director of GDL. She was asked why, if the draft minutes of the meeting of 8 May contained a narrative of events which did not take place, she did not reply immediately to this effect; her response was that she was a busy person, she had horses to look after and she did not sit in front of her computer all the time. By this time she had had enough, and she made it quite clear in her response that she did not recognise Mr Kirkham. She did not see any point in going through his purported minutes in detail. She copied her response to Mr Morrison and discussed the situation with him; his view was the same as hers, namely that Mr Kirkham was not a Director of GDL, that what was happening was ridiculous, so why bother to respond? However, Mr Kirkham responded to her e-mail within about 15 minutes, and she remembered receiving both his e-mail of 12 May and his letter of the same date (numbers 49 and 50 of the joint bundle). On 16 May 2008 she received an e-mail from Stewart MacCallum stating that "David, Fiona and I are convening a Board Meeting next week", but this did not specify a date. She was travelling to Dubai that week, and replied asking what date it was proposed to hold the meeting but that she and her husband would not be able to attend. She did speak to Stewart MacCallum by telephone, but did not remember if she was told a date. She did not ask for the proposed meeting to be adjourned, nor was there any suggestion that it should be adjourned. Neither Mrs Sneddon nor her husband were present at a meeting on 20 May 2008 . On the same day, Mr Morrison issued an amended qualified acceptance of HHA's offer of 22 August 2007. Two days after this meeting, Mr Kirkham e-mailed Mrs Sneddon alerting her to the fact that Messrs Murnin McCluskey would be writing to Sneddon Morrison (see numbers 55 and 56 of the joint bundle). At this time Mrs Sneddon was still happy to deal with Stewart MacCallum, but was not prepared to deal with David Kirkham.

[51] Mrs Sneddon was asked whether she arranged for the electronic filing on 12 June 2008 of Stewart MacCallum's resignation as Director on 17 March 2008. Initially she denied this, but then accepted that she had caused this to be done, despite her view that the earlier notification of his resignation was merely a paper exercise. She also procured the electronic filing on 12 June 2008 of her own appointment as Company Secretary of GDL with effect from 20 May 2008, and the change of address of the registered office of the company. She took these steps on the advice of the solicitors then acting for her, and to put things back in the state in which they were before Malcolm Smith changed things. On the same date she procured the electronic filing of a form indicating that Malcolm Smith had resigned as Secretary of GDL on 20 May 2008 and that David Kirkham had resigned as a Director of GDL on 8 May 2008. She stated that Mr Smith should never have been Company Secretary, because an existing Director or Secretary had to sign the forms, and she was merely correcting the register. She also procured the electronic filing on the same date of a form stating that Fiona MacCallum had resigned as a Director on 17 March 2008. In none of these matters did she take any steps to ascertain the views of the MacCallums; she was merely changing the status back to what it was. The MacCallums did resign in March 2008.

[52] In re-examination, Mrs Sneddon explained that she was taking medication, but she did not think that this had influenced the way in which she had given evidence. With regard to the Minute of Amendment and Motion made in October 2009, Mrs Sneddon confirmed that the averments were drafted on her instructions, on the basis of her belief that Stewart MacCallum had never been a Director of the Company; however, this was at a time when she was being represented by different solicitors and different counsel, and she had never instructed her present counsel to advance the position contained in the Minute of Amendment.

[53] Douglas John Davidson was aged 53 and a Director of three companies involved in arranging mortgages, commercial lending and tax strategies. Between 1978 and 2000 he worked in a variety of Banks and Building Societies, including the Bradford & Bingley, Bristol & West, Northwest Building Society and Northern Rock. Since 2000 he has carried on business as an independent mortgage broker; there are three other Directors of his business, including Trevor Thompson who worked as a Development Director for Commercial Business for RBS. He met Margaret Sneddon in early 2000, and before she went into estate agency Mrs Sneddon and he were co-Directors of the mortgage advisory business BIMA.

[54] Mrs Sneddon told Mr Davidson about GDL towards the end of 2004, and he recommended that she should contact Andrew Reilly to advise and assist GDL in obtaining planning permission. He was aware that the Directors of GDL were Mr & Mrs Sneddon and Mr & Mrs MacCallum, and that a housing association was interested in purchasing GDL's land. Towards the end of 2007 Mrs Sneddon told him that Mr MacCallum thought that the procedure for selling the land was moving too slowly and wanted to obtain funding secured over the Company's land. Mr Davidson spoke to Mr MacCallum a few times over the phone about his need for finance, and having seen the Shepherd valuation of 20 June 2007, he decided that it might be possible to obtain a loan secured over the land. He discussed the matter with Trevor Thompson who suggested that Clydesdale Bank would be keen to consider lending, and information was provided to Mr Thompson to enable him to determine with the bank the possibility of a loan to GDL. This information included (a) a curriculum vitae of each of the Directors, (b) information as to the ability of the Company to service the debt and a possible exit clause, (c) a statement of assets and liabilities, and the trading positions of the individual Directors, and (d) the value of the security. His recollection was that GDL hoped to borrow £300,000; £100,000 of this related to costs incurred by Margaret Sneddon. The request was for a short term loan, to be repaid when the land was sold. Mrs Sneddon provided him with details of assets and liabilities, and Mr MacCallum gave him his credit history by telephone. Mr Davidson then passed this information to Mr Thompson, who discussed the proposed loan with a Mr Innes who was Development Director of the Clydesdale Bank. Mr Innes said that he was prepared to recommend the loan to his business lending unit, and he produced heads of terms which were issued in January 2008 having been approved by the business bending unit. However, at this stage, the local relationship manager with the Clydesdale Bank in Fort William decided that the loan should not be made.

[55] After this setback, Mr Thompson approached a contact with RBS's office in St Andrew Square, Edinburgh; he had a meeting with Jennifer Mailey there, and Mr Davidson was told that the bank was prepared to consider the merits of a loan, but was disinclined to lend to a company if one of its Directors had an adverse credit file. Some of the details which Mr MacCallum had given to Mr Davidson caused Mr Davidson to think that this might be a problem, so he told Mr MacCallum that he needed his authority to obtain his credit file (Mrs Sneddon had already provided Mr Davidson with her credit file). Mr Davidson explained that he needed a letter of authority from both Stewart MacCallum and Fiona MacCallum to allow him to obtain their credit files, and Stewart MacCallum agreed to provide this. On 10 or 11 December 2007 in the course of a telephone conversation with Stewart MacCallum, Mr Davidson told Mr MacCallum roughly what to say in these letters of authority, and on the same day, within about an hour of this telephone conversation, he received two separate faxes of authorities signed by each individual. On this basis he was able to carry out a credit search for both Mr and Mrs MacCallum.

[56] Having carried out these searches Mr Davidson telephoned Mr MacCallum and told him that there was a possible problem because of some of the information on his credit file; Mr MacCallum tried to be helpful but he had difficulty in remembering dates and amounts. Mr Davidson passed the information to Mr Thompson, and also spoke to a contact at the bank and was told that it would be unlikely that the bank would lend to GDL if one of the Directors of the company had a problem with his credit history. Mr Davidson asked the bank if that person remained a shareholder but ceased to be a Director whether this would influence the decision to lend, and he was told that this would improve the prospect of a loan being approved. When Mr Davidson met Mr MacCallum, Mrs Sneddon and Mr Kirkham at Bathgate on 20 March 2008 Mr MacCallum told Mr Davidson that he had resigned as a Director. Mr MacCallum asked whether he should put his shareholding in his daughter's name, and Mr Davidson told him that this was beyond his remit and he could not advise him about this. Mr MacCallum having told Mr Davidson that he had resigned as a Director, Mr Davidson asked if they wanted him to proceed further to explore a loan from RBS, and thereafter a loan application was submitted by Mr Thompson to Jennifer Mailey of RBS, who recommended it to her sanctioners. However, this was in about late March or early April 2008, at a time that the "credit crunch" was changing RBS's position in the market place; the bank's lending policy changed, and it would no longer lend in the field of property development. The loan was therefore refused, not on personal grounds but on a change in the bank's lending policy.

[57] Thereafter Mr Davidson approached Lancashire Mortgage Company for bridging finance; he received heads of terms from them, but he was not impressed by the terms being offered and told both Mrs Sneddon and Mr MacCallum of his views about these terms by telephone. At about the same time Jennifer Mailey suggested that it might be worthwhile approaching Mrs Sneddon's local branch manager with RBS because the bank operated different lending policies in retail banking. However, this approach did not result in success. Mr Davidson was also aware of GDL's application for a loan from Allied Irish Bank; this happened after RBS refused to offer a loan for the first time, and the local Development Director of Allied Irish Bank had a meeting with Mr Davidson. Mr Davidson gave him all the information available, but after a period of between two and three weeks Allied Irish Bank declined to offer a loan.

[58] Mr Davidson could not say how many hours he spent on attempting to obtain a loan for GDL, "but it was not a 10 minute job". It was in his own interest to obtain a loan, because that was how he was paid. He was absolutely sure that Stewart MacCallum told him at the meeting at Bathgate that he had resigned as a Director; indeed, he said "we have resigned as Directors" and asked Mr Davidson what he should do with his shareholding.

[59] After receiving the letters of authority from Mr & Mrs MacCallum by fax, Mr Davidson put these in a file and kept it under lock and key, because the law requires that this information must be kept securely. It would not have been open to Mrs Sneddon to obtain a copy of these; she never asked to do so, and if she had asked Mr Davidson would not have let her do so. In due course he faxed the faxes which he had received from Mr & Mrs MacCallum to Sneddon Morrison at their request; the actual faxes were still in the file in his briefcase and nobody had had access to that. He was shown Mr McCrae's report (no 91 of the joint bundle) and confirmed that letter A and letter B annexed to that report had been faxed from his office at BIMA on 15 July 2008; the fax number at the top of each letter was his. These were copies of what he was sent, and he sent these copies to Sneddon Morrison. He did not create or type these - they were sent to him.

[60] Between 2001 and 2008 Mr Davidson had dealt with a number of lenders, who used a variety of application forms. In the earlier part of that period the application form would be completed together with a direct debit mandate and would be placed in the file; the principal would then be sent to the lender, and a copy retained on file. The file would have copies of the applicant's signature, but not the original.

[61] In cross-examination Mr Davidson accepted that he had been in a business relationship with Mrs Sneddon in BIMA; they were both Directors of the business and they each owned one third of it. By about mid-2005, Mr Davidson knew that Stewart MacCallum was involved with Mrs Sneddon as a Director of GDL, but he probably did not know that Mr MacCallum was a shareholder in the Company until 2007. It was put to Mr Davidson that at a Christmas party in 2006 he offered to buy Mr MacCallum's shares in GDL for £50,000, but he denied this completely and stated that never at any time did he offer to buy any shares from any individual. He confirmed that no 103 of the joint bundle was an affidavit sworn by him. His client when he was seeking to obtain the loans referred to in the affidavit was GDL. He was sure that the letters of authorisation from Mr & Mrs MacCallum were faxed to him in mid-to late morning of 11 December 2007; any time stamp on letters A and B annexed to Mr McCrae's report suggesting that they were sent on the evening of 10 December 2007 was wrong, and he assumed that the fax machine timer must be wrong or had been turned off. As soon as he received them he placed them in his file and put the file under lock and key - not in a safe as indicated in paragraph 5 of his affidavit, but in a locked filing cabinet. His secretary, Michelle Kennedy did have access to this cabinet during working hours, because it was unlocked at that time and locked when Mr Davidson left the office. Nobody else would be aware of the existence of these documents (apart from the MacCallums) until he faxed them to Sneddon Morrison, who had asked him what procedures he used for applications for loans to GDL. It was only when he told Sneddon Morrison about these procedures that they learned of the existence of these documents. It was possible that Mrs Sneddon might guess that they existed. It was only on the Friday before the proof began that he became aware as a result of being precognosed on behalf of the MacCallums that they maintained that they did not provide these two letters. He was quite clear that he received the faxed letters of authorisation shortly after his telephone conversation with Mr MacCallum, and his recollection about this was clear; he was quite positive about this.

[62] Mr Davidson did not know why the application for a loan from the Clydesdale Bank failed at the level of the local branch manager; it might have been because he had concerns about planning permission, but standing the valuations, this was not a good reason. Mr Davidson thereafter spoke to Jennifer Mailey at RBS who told him (as Mr Thompson had told him) that for an application for a loan to be successful, all parties would have to have a clear credit history. The sequence of events described in paragraph 15 of his affidavit was wrong, because the credit search in respect of Mr & Mrs MacCallum was obtained in December 2007. In the course of a second conversation with Jennifer Mailey at RBS, she reiterated to Mr Davidson that an application for a loan would be unlikely to succeed if one of the Directors had a bad credit history, but that matters would be different if that person was not a Director but only a shareholder.

[63] Before the meeting at Bathgate on 20 March 2008, Mr Davidson was aware that there was a possibility that Mr MacCallum had resigned as a Director, but he could not remember who told him this - it was certainly not Stewart MacCallum or Margaret Sneddon, but might have been Mr Thompson. Mr Davidson had a very clear and vivid recollection that at the meeting, when Mr Kirkham was asked how long he had been a friend of the MacCallum family, he winked at Stewart MacCallum and said "oh, a long time". He was also quite clear in his recollection that about 10 or 15 minutes after they sat down for the meeting, Stewart MacCallum told him that he had resigned as a Director. He was shown Mr Kirkham's notes of that meeting, and he observed that there were material inaccuracies in these. He did not remember any discussion about an option of selling shares and obtaining a parallel loan from an outside party. No application had been made at that time. Although a quotation in general terms had been received from Lancashire Mortgage Corporation two days previously (no 138 of the joint bundle) this was not a formal offer, and no application for funding had been made to them. It was Mr MacCallum who asked Mr Davidson if it would be possible or advisable for him to transfer his shareholding to his daughter; Mr Davidson said that it was nothing to do with him. There were aspects of Fiona MacCallum's credit record that caused problems, but Mr Davidson accepted that he never had any discussions with her about these. He confirmed that as at March 2008 he was still a co-owner and co-Director with Margaret Sneddon of BIMA; this relationship came to an end later in 2008. He had come across Mr James Morrison before, as a solicitor who had carried out conveyancing work for a client. Very occasionally Mr Davidson would refer cases to Mr Morrison. He had met Grant Levett on at least six occasions, and had occasionally done business for people acquainted with him, but he had not discussed this case with either Mr Levett or Mr Rowley. He thought that the reference in paragraph 23 of his affidavit to "private investigators" should probably relate to "private investors".

[64] In re-examination Mr Davidson explained that the quotation from Lancashire Mortgage Corporation was obtained through an intermediary, Frostwood Commercial; it was not for an amount that he had requested, and unlike an offer of loan, it was not signed by the lender. A lot of work would be required before this could be turned into an offer, including a valuation report and assessment of the individuals involved.

[65] Mr Davidson was in attendance at the meeting on 20 March 2008 for less than half of the meeting; although Mr Kirkham took notes, he was never shown these notes and was not given the opportunity to correct them. He saw the notes for the first time shortly before the proof, and they contained many inaccuracies.

[66] Andrew Reilly was aged 53 and a self employed Chartered Surveyor. He had been principal of Andrew Reilly Associates since 2004, and before that had been Scottish Regional Director of Chestertons. Prior to 2005 he had some experience of preparing plans to obtain planning permission for development of land and obtain the maximum value for that land; he had been involved in eight significant cases until that date, the highest value of which was about £8 million and the lowest value of which was about £1 million. He was a close personal friend of Douglas Davidson, who introduced Margaret Sneddon to him as someone needing professional assistance with developing a site. Mr Reilly became actively involved in the site in about early 2006, and visited the site on at least three occasions. Mrs Sneddon told him that it was owned by GDL, and from the outset explained that she and Mr MacCallum each owned half the company. Mr Reilly had meetings with HHA; Mr MacCallum was present at most of these, and at meetings at the local council offices. Mr Reilly's remit was to try to unlock the value of the site and accelerate the planning process; he was advising GDL, but most of his instructions came from Mrs Sneddon. Mr MacCallum attended several meetings at the council offices and HHA's offices, and also met once on site with Mrs Sneddon and Mr Reilly.

[67] Mr MacCallum telephoned Mr Reilly and explained that he was in financial difficulties and needed his support by progress updates to his bank. Between November 2006 and about April 2007 Mr Reilly wrote to Mr MacCallum's bank manager on four occasions.

[68] There were several problems with the site, involving road access, electricity lines, crafting, its conservation area status, infrastructure, and density of housing development. Standing these problems, there was never any prospect of the site being sold with planning permission within a few months of the ground being bought from Mr MacCallum's mother. After the negotiations with HHA had been ongoing for some time, both Mrs Sneddon and Mr MacCallum asked him for his estimate as to when money might be paid for the site; this was discussed at a meeting attended by Mr and Mrs Sneddon and Mr MacCallum, and he told them that he estimated that this would take at least a year from that time. The cost of installing the necessary infrastructure was always a major problem, particularly given the planners' preference for a development of six to eight houses.

[69] Mr Reilly agreed that his fee would be payable as a percentage of the eventual sale price of the land, but if the project failed he would charge a fee based on the time spent by him on it. He always regarded his client as GDL, and stated this in all his correspondence with HHA and the local council. Mr MacCallum was always very complimentary to him about the progress being made, and accepted that his fee would be paid from the capital proceeds of the sale of the land.

[70] Mr Reilly stated that developers would normally receive their payment as a percentage deduction from the end value of a site. He estimated the development costs for this site as being at least 20% to 30% of the end value. He assessed Mrs Sneddon's market awareness of the site as being very knowledgeable, and he regarded her as having a very good level of business acumen.

[71] Susan Torrance told Mr Reilly on two or three occasions that Mr MacCallum had spoken directly to her, and Mr MacCallum confirmed this to him. This concerned Mr Reilly, because it indicated some desperation on Mr MacCallum's part to conclude the deal early. If GDL had been negotiating with a private developer, and not a public body such as HHA, this would have been prejudicial to the deal and would have caused the purchasing developer to review their negotiating position.

[72] Mr Reilly did not submit his interim fee note (no.108) to GDL until 28 February 2009, because he had always hoped to be paid on the basis of a percentage of the capital proceeds. He had still not received any payment in respect of the work which he had carried out for GDL.

[73] In cross examination Mr Reilly stated that he was aware that Mr Moss had been involved in development proposals for the site before he himself had become involved; his own remit was to maximise the value of the site, and HHA had already become interested in the site by the time of his involvement. He was aware that Shepherds and DM Hall had valued the site, but he had never seen their reports nor was he aware of their valuations. He knew that Mr and Mrs MacCallum and Mr and Mrs Sneddon were directors of GDL; Mr MacCallum never told him that he had resigned as a director. He was asked what the value of the land was when it was purchased by GDL, and he stated that in its present form the land was of only nominal value. Until giving evidence he was not aware how much had been paid to enable GDL to obtain title to the land. There was no written record of his terms of engagement - he agreed these verbally with Mrs Sneddon on behalf of GDL. He regarded himself as acting for GDL, and expected that his fee would be paid from the proceeds of sale of the land. The only way in which HHA could obtain access to their site was to buy the whole site, and reconvey nine plots; some delay was caused in identifying the appropriate plots, because HHA's initial proposals were not appropriate. Most areas in issue had been agreed by about March or April 2008, and the only outstanding issue was plot allocation, which was resolved in March/April 2008. The only remaining issue was decrofting, which could only be dealt with after planning permission had been granted. Mr Reilly anticipated that his involvement would have concluded in about May 2008.

[74] Mr Reilly remembered a meeting in Fort William in about the autumn of 2007, which was held in the hotel opposite the local authority office. Mr and Mrs Sneddon and Mr MacCallum were there with him; they had left a meeting with HHA, and had lunch together to recap. Mr Reilly stated at the meeting that his fee would be paid out of the proceeds of the sale of the land; that was the normal basis in a speculative arrangement such as this. Mr MacCallum did not attempt to challenge this or try to negotiate his fee. He appeared quite happy that it would be paid from the free proceeds of sale, and he never queried or challenged the amount suggested.

[75] Grant Anthony Levett was aged 34 and carried on business as a mortgage broker. He had diversified into developing residential properties for let. He had formed an informal partnership with Colin Rowley, and they traded under the name MMH Properties. He had met Margaret Sneddon professionally, and she had introduced Douglas Davidson to him.

[76] Mr Davidson told Mr Levett that Margaret Sneddon had someone who wanted finance regarding GDL, so Mr Levett telephoned her to discuss this. They agreed that they would meet, together with Mr Rowley, at a restaurant in Glasgow. Mrs Sneddon explained that GDL owned some land, and that Mr MacCallum (whom Mr Levett had not met) who owned the other half of GDL was desperate for money and the company could not raise a loan because of his poor credit rating. No proposals were put forward at the meeting, nor was any agreement reached, but Mr Levett and Mr Rowley agreed to consider whether they might be able to help. Mrs Sneddon suggested that they should meet up with Mr and Mrs MacCallum and Mr Kirkham, and Mr Levett suggested that they might meet them by themselves; Mrs Sneddon had no problems with this.

[77] Thereafter a meeting was arranged between Mr MacCallum, Mr Kirkham, Mr Levett and Mr Rowley at the same restaurant in Glasgow. Mr Kirkham took the lead at this meeting and explained that he was there as a friend of Mr MacCallum, solely to advise him and to achieve the best possible result for him. Mr MacCallum had his head in his hands throughout most of the meeting; he spoke little and took little part in the meeting.

[78] Mr Levett and Mr Rowley said they might invest by buying shares in GDL, and might also provide a loan to the company. Mr Levett was surprised by the attitude which Mr Kirkham and Mr MacCallum showed towards Mrs Sneddon, who had at the previous meeting been very supportive of Mr MacCallum and sung his praises. At this second meeting Mr Kirkham and Mr MacCallum had a very different agenda; Mr Kirkham told them that Mr MacCallum had resigned as a director of GDL in order to obtain finance, and that they would be looking to form a share alliance with Mr Levett and Mr Rowley to get rid of Mrs Sneddon. This proposal was put by Mr Kirkham, but Mr MacCallum was present throughout the meeting.

[79] It was quite early in the meeting that Mr Kirkham stated that Mr MacCallum had resigned as a director; this was to do with his credit background, and purely to enable finance to be raised. Mr Kirkham proposed that Mr Levett and Mr Rowley should buy 25% of the existing shares of the company, 15% of which would come from Mr MacCallum's shareholding and 10% from Mrs Sneddon's; the price suggested was about £150,000 and in return one of them would become a director of GDL. It was Mr Kirkham who suggested a share alliance to get rid of Margaret Sneddon; he said this in front of Mr MacCallum, and Mr MacCallum agreed to it. They did not trust Margaret Sneddon and wanted control of the company. Mr Levett understood that if one of them joined the board and Mrs Sneddon's shareholding was reduced, they would have a majority on the board and could make decisions with which Mrs Sneddon did not agree, and could take control of the company. At the end of this meeting, Mr Levett and Mr Rowley said that they would discuss the proposals and get back to Mr Kirkham and Mr MacCallum. Mr Levett was quite sure that he was told at this meeting that Mr MacCallum had resigned as a director of GDL, and why he had done so, and also that Mr Kirkham proposed a share alliance. The strategy of a share alliance was confirmed to him later by Ian Morgan, Mr MacCallum's accountant.

[80] Mr Levett and Mr Rowley had a second meeting with Mr Kirkham at the Marriott Hotel; Mr MacCallum was not present at this meeting, but Mr Kirkham assured them that he had full control of Mr MacCallum's affairs. Mr Rowley saw that Mr Kirkham was recording the meeting without their permission, and raised this with Mr Kirkham, who claimed that he had forgotten that he had switched the recording device on, and promptly switched it off. Much of the meeting was spent in discussing an allegation that Mr Kirkham had made that Mr Levett had been seen paying £75,000 in cash in a brown paper bag to Mrs Sneddon. Mr Kirkham initially denied making this allegation, but when Mr Levett arranged for a private investigator called Mike Brown to attend the meeting, Mr Kirkham admitted that he had said this but claimed that the information had come from Mr MacCallum's accountant. Mr Levett stated that it was clear that they could not do business with Mr Kirkham, and the meeting came to an end. He later told Margaret Sneddon what had happened.

[81] Under cross examination Mr Levett stated that he had never been a director of a property company, and until 2010 had never been a director of any company. MMH was a company owned by his wife and Mr Rowley's partner, who were also the only shareholders of it. Mr Levett and Mr Rowley acted on behalf of the company but were not employees of it. It was set up in about 2006 and ceased to exist in 2009.

[82] Mr Levett thought that the meeting that was held between Mr Rowley, himself, Stewart MacCallum and Mr Kirkham in a Glasgow restaurant was at the end of March 2008, but it might have been 3 April 2008. He had not met Mr MacCallum before that meeting. He accepted that he was confused, and that he had met Mr MacCallum with Mrs Sneddon. However, he remembered the meeting on 3 April clearly, because it shocked him. At that meeting Stewart MacCallum told him that he had resigned as a director of the company. Mr Kirkham did most of the talking. The suggestion was that they would invest £150,000 in the company, but Mr MacCallum would borrow most of this back to ease his financial burden. If Colin Rowley or he became a director, they would have a majority on the board; he assumed that Mrs MacCallum was still a director, because nobody had said that she had resigned. It was anticipated that if the deal with Mr Levett and Mr Rowley went ahead, Mr MacCallum would become a director again, as no further financing would be required. He was perceived as a director by everybody, and if no lending was required from a "mainstream" funder, he would again be appointed as a director.

[83] Mr Levett then remembered that he had an earlier meeting with Mr MacCallum and Ian Morgan, Mr MacCallum's accountant, some days before his meeting with Mr Kirkham and Mr MacCallum. However, it was only at the second meeting which Mr Kirkham attended that it was clear that what was being suggested was a share alliance to get rid of Mrs Sneddon and take control of GDL. He accepted that there was no mention in his affidavit about the second meeting at which Mr Kirkham attended, but this was not a "big deal" for him, and he insisted that his evidence was truthful. Margaret Sneddon told him at their meeting about Mr MacCallum's financial predicament and the difficulties they were having in obtaining finance. After this meeting but before his meeting with Mr MacCallum she told Mr Levett that Stewart MacCallum had resigned as a Director of GDL. He formed the view that Mr Kirkham and Mr MacCallum had an agenda against Mrs Sneddon, and they wanted the balance of power within GDL changed. After the meeting they spoke to Mr Brown, who said that he knew Stewart MacCallum who was a "good guy". Mr Levett then telephoned Mrs Sneddon and told her that Mr Kirkham and Mr MacCallum were going to try to get rid of her as a director; he did not think that she believed what he was telling her.

[84] Mr Levett could not remember the date of his next meeting with Mr Kirkham at which they discussed the allegation about his giving cash to Mrs Sneddon, but it might have been 30 August 2008. He denied that he had behaved in a threatening manner towards Mr Kirkham at this meeting, but he was anxious to ensure that Mr Kirkham did not repeat slanderous allegations about him. Mr Kirkham tried to deny having made the allegation, but when Mr Brown arrived at the meeting, Mr Kirkham accepted that he had said this but claimed that he had received the information from Mr Morgan.

[85] Colin Rowley was aged 42 and was a self employed property developer. He was Grant Levett's business partner for more than 5 years. Mr Levett introduced him to Douglas Davidson and Margaret Sneddon, and told him about a possible land deal at Fort William. He had a meeting with Mr Levett, Mr MacCallum and Mr Kirkham at a Glasgow restaurant, although this was more Mr Levett's project than his own. Before the meeting he was aware that Mr MacCallum needed money. Mr Kirkham did nearly all of the talking at the meeting; he described himself as a friend of Mr MacCallum's. At the meeting Mr Rowley was told that Mr MacCallum was not a director of the company any more, as part of a paper exercise to obtain funding, but this funding had fallen through. Mr Rowley remembered asking Stewart MacCallum whether he was a director or not, and Mr MacCallum said "I am, but I am not". Mr Rowley remarked that this sounded like being a little bit pregnant, and asked whether he was involved in the company, to which Mr MacCallum replied that he was involved, but he was not a director because of difficulties in obtaining funding.

[86] Mr Rowley understood that what was being suggested was that he and Mr Levett should pay £150,000 for 25% of the issued share capital of the company, and a further £150,000 loan to the company which would be paid back. They would have been looking for representation on the board. Although he could not remember the precise remark, he remembered that they were asked if they would be interested in investing in GDL if Mrs Sneddon was no longer involved. He understood that what was being suggested was "skullduggery", namely that someone was trying to steal someone's company. Every time Stewart MacCallum tried to say something, Mr Kirkham gave him a look to shut him up. Mrs Sneddon was definitely not to know anything about this suggestion; they were being asked to assist in taking over the control of the company. Although Mr Rowley thought the project looked very interesting, what was being suggested by Mr Kirkham did not "smell right".

[87] Mr Rowley had a further meeting with Mr Levett and Mr Kirkham sometime later, having been told by Mike Brown that Mr Kirkham had been saying that Grant Levett had handed Mrs Sneddon a bag of cash. This was not something that Mr Rowley wanted to become involved in, he did not believe that Mr Levett had done this, and the suggestion was very damaging to their business. At the meeting Mr Kirkham was recording their conversation without their permission. Mr Rowley spotted that he had a recording machine in his pocket, which was recording, and he asked what it was; Mr Kirkham took it out of his pocket, said that he must have left it on, and switched it off. He denied that he had made any allegation about Mr Levett giving cash to Mrs Sneddon. They then telephoned Mr Brown, whereupon Mr Kirkham said that it was Ian Morgan who had given this information to him. When Mr Brown arrived at the meeting, Mr Kirkham became very nervous; Mr Rowley formed the impression that Mr Kirkham was lying. Mr Rowley put it quite strongly to Mr Kirkham that he should not repeat this allegation. He also asked where Mr MacCallum was, because both Mr Levett and Mr Rowley had expected him to be at this meeting; Mr Kirkham told them not to worry about Mr MacCallum, because he would do as he was told. Mr Rowley was not prepared to proceed with the suggested deal, because as he put it "all sorts of jiggery pokery was going on".

[88] In cross examination Mr Rowley accepted that MMH was incorporated in August 2005 and that he had been a director of it since then (although he was not sure whether he was still a director). Not all the property projects in which he was involved were put through this company - some were done in his name or in the name of Mrs Levett, because neither he nor Mr Levett had a good credit rating, and Mr Rowley was getting separated.

[89] Before his first meeting with Mr Kirkham and Mr MacCallum in the restaurant in Glasgow he knew that Mrs Sneddon was involved in the company and where the land was. He had not met Mr MacCallum or Mr Kirkham before this meeting. He denied that he had telephoned Mr MacCallum and told him not to tell Mr Kirkham that there was a large cash element in the offer. At the meeting Stewart MacCallum said he was not a director of GDL because he had been trying to raise finance through the company and this had been refused, so that was why they were turning to Mr Rowley and Mr Levett. He said that he had resigned as a director because of his credit rating; this seemed entirely plausible to Mr Rowley. He could not remember any discussion about a shareholder agreement in order to protect their interest as minority shareholders. He was fairly sure that Mr MacCallum said something along the lines of "I am a director but I am not", to which Mr Rowley said "It's like being a little bit pregnant - either you are or you are not". At this point Mr MacCallum confirmed that he was no longer a director.

[90] Their second meeting with Mr Kirkham was held at the Marriott Hotel, and he could not dispute that this might have been on 30 August 2008. They had decided shortly after the first meeting on 3 April 2008 that they were not interested in this deal because of the undercurrents and share alliance being suggested. This second meeting was arranged to discuss with Mr Kirkham his allegation that Mr Levett gave Mrs Sneddon £75,000 in a bag. This had made Mr Rowley angry. After the meeting started, he was disappointed by Mr Kirkham's behaviour in having a recording machine switched on in his top pocket; however, he denied acting in a threatening manner towards Mr Kirkham or raising his voice at him. Initially Mr Kirkham denied that he had made this allegation to Mr Brown; however, when Mr Levett and Mr Rowley telephoned Mr Brown and he was en route to the meeting, Mr Kirkham changed his position and said that he had heard this information from Mr Morgan. Mr Rowley did not accept that after this meeting he had telephoned Mr Kirkham on several occasions, and he certainly did not threaten him. He did not have his telephone number. Mr Rowley did go to Mr Kirkham's house in Glenuig on one occasion later; he did this because he had been told that Mr Kirkham was again putting about the story that Mr Levett had paid £75,000 in cash to Mrs Sneddon. Mr Rowley was fishing in the Glenuig area and decided to visit Mr Kirkham to ask him to stop telling lies about them or they would sue him. He did not go there to threaten Mr Kirkham but to tell him to stop spreading lies. Mr Kirkham did not come to the door, and Mr Rowley decided to let the matter drop, and returned to his fishing. He had never taken any further steps in relation to this matter.

[91] Mr Rowley said that he was enthusiastic to become involved in the GDL project, and if Mr Kirkham and Mr MacCallum had not been involved and only Mrs Sneddon had been involved, he would have been happy to do so. It was Mr Kirkham that was the stumbling block.

[92] Andrew Alexander Sneddon was aged 46, a self employed general builder, and husband of Margaret Sneddon. He knew that his wife had helped Stewart MacCallum with remortgaging his house in late 2001, and he had done some building work for Mr MacCallum. He remembered his wife telling him that Mr MacCallum had some land to be developed, and she went to look at the land. He and his wife spent a weekend at Glencoe Caravan Park and met Mr and Mrs MacCallum at the MacCallums' house. He had met Stewart MacCallum on about twelve occasions, some of which were social occasions. When his wife decided to go ahead with the GDL project, he knew that she and he were to be directors, as well as Stewart and Fiona MacCallum. He was not involved in any discussions before the land was bought in the name of GDL, and he had no input in the setting up of the company - his wife dealt with that. He did however attend several meetings regarding the development project, at some of which Andrew Reilly was present. He remembered attending one meeting at the offices of the council in Inverness and one or two at the council offices in Fort William. Stewart MacCallum was certainly present at two of these meetings, including the one at Fort William, when he and his wife had lunch with Stewart MacCallum and Andrew Reilly in a hotel opposite the council offices. He remembered that Stewart MacCallum asked Mr Reilly about his fees, and Mr Reilly said that his fee would be about 1% or 11/2% of the value of the land, which would be payable from the proceeds of sale.

[93] Mr Sneddon learned from his wife that Stewart MacCallum was in financial difficulties; he was quite happy about her lending money to him. Later, she mentioned Mr Kirkham's involvement, which initially caused her some confusion, but as time passed her attitude towards him changed to anger and unhappiness with his activities. This had an adverse effect on her mental and physical health. Although he could not remember the date, he remembered that his wife told him that because Stewart MacCallum needed funds, they would have to resign him as a director to raise funds. He told her that she should do what she had to do, as long as Stewart MacCallum was OK with it. Stewart MacCallum ceased to be a director, but after his resignation his wife did not treat Stewart MacCallum any differently. Mr Sneddon was shown the copy letter dated 21 February 2008 (no.21 of the joint bundle, and the "questioned letter" attached to Mr McRae's report, no.91 of the bundle"), which he had never seen before. He did not forge this, he had never asked anybody to forge this and he was not aware of any circumstances which might have resulted in such a forgery. He had also never seen letters A and B attached to Mr McRae's report and had nothing to do with the manufacture of these letters, nor did he knew who might have done this.

[94] Mr Sneddon was not aware of any board meetings of GDL in the course of April 2008; he was never asked to attend a board meeting of GDL, and if he had been asked, he would have attended. In May 2008 he was at home with his wife when he received a telephone call from Mr Kirkham. He had just returned from work in the late afternoon and had taken a shower, when his wife asked him to speak to Mr Kirkham on the telephone. He took the phone from his wife, and the man at the other end of the phone identified himself as David Kirkham and asked Mr Sneddon to identify himself. Mr Kirkham asked Mr Sneddon if he recognised him as an alternate director of GDL, and Mr Sneddon replied "I certainly do not". This was the only time that he spoke to Mr Kirkham that day; he had not spoken to either Stewart or Fiona MacCallum that day. He was indifferent to this conversation, which made no sense to him. As at the date of his evidence he was still a director of GDL. He had never been given any intimation of a purported board meeting of GDL in Lochaber; he did not know Malcolm Smith, and did not approve his appointment as secretary of GDL, nor had he ever been asked to approve any purported board meeting minutes of GDL. He had never sent any apologies for non-attendance at board meetings of GDL.

[95] He was aware that his wife was trying to raise funds to help Stewart MacCallum, and he understood that one of the banks who had been asked to lend to GDL had required personal guarantees from the directors; he would not have been happy about personal guarantees being provided by either his wife or himself. He did not accept that Malcolm Smith was company secretary of GDL, nor did he accept Mr Kirkham as a director of GDL. He was aware that Stewart and Fiona MacCallum had resigned as directors of GDL, but this was simply a paper exercise to enable the company to raise funds. He was aware that Mr Levett and Mr Rowley had venture capital which might possibly have been invested in GDL, but he had really had no social or business contact with either of them (although he had occasionally done building work for Mr Levett).

[96] Mr Sneddon described the suggestion that he and his wife had planned to gain control of GDL and get rid of the MacCallums as ludicrous; his wife had spent a great deal of time trying to help them, and he knew that she had paid their mortgage payments, given them cash and presents such as a computer, and had bought a car for Stewart MacCallum and had received no repayment.

[97] Under cross examination Mr Sneddon stated that he had been a company director on three or four occasions in the past; on two of these occasions, namely a decorating company and a property development company, his wife was involved with him. He became a director of GDL because his wife was funding the purchase of the land on behalf of the company; initially, he saw no role for himself in GDL. He became a director of the company simply to support his wife - he viewed this as a partnership of husband and wife. He had never attended any board meetings of GDL, nor had he ever been shown any accounts for GDL. He spoke to Stewart MacCallum socially, but he had never discussed the affairs of the company with other directors without his wife being present. He regarded his role as being passive, as long as there was nothing important to be discussed, and he was aware that in early 2008 his wife was the company secretary of GDL. He was aware that there were meetings taking place between his wife, Stewart MacCallum and Mr Kirkham but he knew nothing about these except what his wife told him. She told him that there was going to be a meeting on 21 April 2008 in Glasgow, and she said that the meeting was to discuss Stewart MacCallum's difficulties. She did not tell him the details of what was going to be discussed, nor did she ask him to attend, nor did he authorise her to give his apologies for non-attendance. He was not aware that minutes were ever taken of this meeting, although when he was shown no.33 of the joint bundle he thought that he had seen this with his solicitors in about the last 18 months - he did not see this at the time.

[98] Mr Sneddon thought that his wife had told him that she was going to another meeting on about 28 April 2008, but he did not remember where this was going to be held, he was not asked to attend, no agenda was circulated before this meeting, and he had never seen any minutes of this meeting (he had never seen either no.37 or no.38 of the bundle before). He did not remember his wife discussing what had happened at this meeting after the event.

[99] He was not aware that any meeting had been called for 8 May 2008 at the Marriott Hotel in Glasgow, and when it was put to him that he took part in a telephone conversation with Mr Kirkham around 12.30/1pm on that date he did not accept this. He was never asked to take part in a vote on whether Mr Kirkham should be a director of GDL in his own right; when he was handed the telephone by his wife after getting home from work that evening he was asked whether he recognised Mr Kirkham as an alternate director, and he said that he definitely did not. He then handed the phone back to his wife; he observed that this was not a pleasant telephone call - he had never met Mr Kirkham, and it appeared to Mr Sneddon that Mr Kirkham was trying to take control of the affairs of the company and was interfering. Mr Sneddon stated that he never came from work in the middle of the day, that he was sure that this telephone conversation happened in the early evening, and that he had not discussed his evidence with his wife at all. He had never seen the purported minutes of 8 May 2008 (no.46 of the bundle), and what was contained in the first one and a half pages of the document was all lies. His only involvement in a telephone call with David Kirkham that day was very brief, and happened in the early evening; Mr Kirkham asked him if he recognised him as an alternate director, and he stated that he did not. He did not discuss the rest of the call with his wife.

[100] Mr Sneddon was aware that a meeting had been arranged in the Hire Centre in Fort William, but this was not a board meeting of GDL, it was simply a meeting to discuss Stewart MacCallum's problems, and he could not attend in any event. He did not recognise this as a board meeting.

[101] Mr Sneddon confirmed that he had signed a letter containing terms of engagement for Sneddon Morrison, although he had not sought the views of the other directors of GDL on this matter. He was aware that his wife was trying to obtain finance for the company, and that there were difficulties because Stewart MacCallum remained a director.

[102] Mr Sneddon thought that his wife was going to attend the meeting in Glasgow on 21 April 2008 in order to discuss Stewart MacCallum's finances, and to make progress with the development project. GDL had to be involved in the raising of the finance to help Stewart MacCallum, because he was financially out on a limb.

[103] Bridget Heaney was employed as a relationship manager with RBS. She had worked in banking since leaving school, for 8 years with the Clydesdale Bank and then for about 7 years with RBS, first as a business adviser and then as a business manager. She was responsible for about 250 customers, including Margaret Sneddon and GDL.

[104] In about 2008 an application was made on behalf of GDL for funding from RBS for the release of equity on land owned by GDL. This application was made to Jennifer Mailey, who was a manager in the bank's commercial department in Edinburgh. Miss Mailey telephoned Miss Heaney because Margaret Sneddon was Miss Heaney's customer, to tell her that GDL had applied for about £300,000 of funding and that this would be dealt with by the commercial department. Miss Heaney was aware at this time that the directors of GDL were Mr and Mrs Sneddon and Mr and Mrs MacCallum. She later learned that the application was refused by the commercial lending unit because it was a speculative deal with no planning permission having been granted yet, and because of the credit history of Mr and Mrs MacCallum. It was standard practice for the bank to look at the credit history of the directors of a company before deciding to lend to that company.

[105] After this loan application was refused, Margaret Sneddon approached Miss Heaney to see if another application for a loan to GDL could be made through Miss Heaney, but naming only Mr and Mrs Sneddon as directors of GDL. Miss Heaney did not make this suggestion, but she observed that of course it would make a difference to the prospects of being offered a loan. She herself would not have suggested that it would be better if Mr and Mrs MacCallum resigned, and she did not remember the suggestion being made to her. This second application did not contain Mr and Mrs MacCallum's financial details, but it was again refused as being too speculative, there being no grant of planning permission for the land. Miss Heaney remembered that Mrs Sneddon told her about the MacCallums' bad credit rating, but Miss Heaney denied that she herself had suggested that the MacCallums should resign as directors of GDL to resolve this problem; however, she agreed that their resignation would have had that effect, and would have improved the prospect of an offer of loan. She knew of nothing to support the suggestion that RBS had withdrawn their offer of a loan and would reinstate the offer only if Mr MacCallum resigned as director and ceased to be a shareholder (contained in Mr Morrison's email of 19 March 2008, No.26 of the bundle). There were always changes in the bank's lending policy.

[106] In cross examination Miss Heaney accepted that the application form for a loan from RBS to a company would require the names of directors, and the bank would always carry out checks. If a loan application was refused, the customer would be told the reason, but not necessarily in writing - this information could be given by telephone. She could not remember whether it was Jennifer Mailey or Margaret Sneddon who told her why the first application failed.

[107] When Margaret Sneddon approached her for the second loan application, she filled in the application form in front of Miss Heaney. Miss Heaney did not remember her giving any details of the MacCallums' income and expenditure at that time; this is information which would have been required if they were shown as directors of GDL.

[108] Jennifer Mailey gave her evidence on commission, the report of which is no.33 of process, and I need not rehearse the terms of her evidence in detail. Between August 2006 and February 2010 she worked with RBS as a specialist property relationship director; she also assisted the commercial unit in providing specialist property advice. She remembered a funding application from GDL which was referred to RBS from a broker. She thought this broker may have been Trevor Thompson; she did not recognise the name Doug Davidson. She remembered discussing the proposal at a meeting with Mrs Sneddon, and she also spoke to Bridget Heaney. Miss Mailey felt there was some merit in the proposal and reported this to the bank's credit department. They stated that the amount sought was below their threshold and it would need to be dealt with by the business banking department but they noted concerns about the creditworthiness of the MacCallums, the speculative nature of the transaction and the experience of the principals in relation to residential development.

[109] Miss Mailey informed Margaret Sneddon that the application had failed and that it should be addressed to business banking. Although the credit department's concerns had included the existence of County Court judgments against the MacCallums, and although this presented a serious obstacle for obtaining funding, Miss Mailey was positive that she would not have given advice that the MacCallums should resign as directors of GDL. Their resignation would not have improved the prospects for another funding application from RBS. She knew that Bridget Heaney was intending to progress an application through business banking, but she did not know if this happened. She had no knowledge of RBS being supplied with a report from Companies House showing that the MacCallums had resigned as directors of GDL.

[110] Miss Mailey was referred to the email from Mr Morrison dated 19 March 2008 (no.26 of the bundle) and was not aware of RBS having withdrawn any offer of loan, because no such offer was made as far as she was aware, and there was no suggestion from RBS that they would reinstate the offer if Mr MacCallum resigned as director and ceased to be a shareholder. Miss Mailey was quite clear that when she considered the application there were four directors of GDL. Although the application for the loan was for GDL itself, the bank would be interested to know the credit history of the directors.

[111] Miss Mailey accepted that she told Mrs Sneddon that the first application had failed, and that she would have told her that the credit history of the MacCallums was going to be problematic in future. So far as RBS were concerned, the decision not to lend to GDL would have been unlikely to have been reversed even if the MacCallums resigned as directors, but if GDL applied to another bank the resignation of the MacCallums would have improved the prospects of a loan being granted. An application on behalf of GDL when only the Sneddons were directors, if presented through the retail lending division, was something that RBS might have looked at.

[112] John McIntyre McCrae was aged 71 and a consultant forensic document examiner. He spoke to the terms of his report dated 3 December 2008 (no.91 of the joint bundle, 6/31 of process) which included details of his qualifications and experience. He prepared this report in response to a joint approach from the agents acting for Mr and Mrs Sneddon and those acting for Mr and Mrs MacCallum. He stated that he had compared the letter dated 21 February 2008 which apparently bore the signatures of Mr and Mrs MacCallum (no.21 of process) with the signatures on letters A and B dated 11 December 2007 attached to his report, and concluded that these were exact copies. They were a perfect match and originated from the same source document. It is not possible for the same identical signature to be appended to documents having completely different content. The signatures on the letter dated 21 February 2008 could have been photocopied from the two letters dated 11 December 2007, or they could all have been photocopied from another source. They were a perfect match and fitted in every way. The signatures on the letter dated 21 February 2008 could not be genuine; it was accepted by forensic document examiners that it was not possible to have two identical signatures with exactly the same pattern of movements on two documents. No two genuine signatures will be exactly the same. The signatures on the letter dated 21 February 2008 appeared to have originated from genuine signatures from the hands of Stewart MacCallum and Fiona MacCallum, but they came from a common source to that of letters A and B. It was possible that none of the documents examined were signed by the persons bearing to be the signatories, or that the document dated 21 February 2008 was signed by them in which case the dates on all the other documents are wrong. Mr McCrae preferred the explanation that the document bearing the two signatures dated 21 February 2008 was not genuine, because the other documents bore earlier dates.

[113] David John Kirkham was aged 63; he was retired and lived at an address in Glenuig. He qualified as an accountant in about 1970, and had spent about half of his working life in practice as an accountant, specialising in corporate and property business in Yorkshire. He had been a company director, finance director or company secretary of well over 100 companies, including property companies, house building companies, development companies, insurance, quarries and the full spectrum of commercial interests; in about half of these companies he had a shareholding interest. He ceased to be a practising accountant in about 1990 to concentrate on other activities; he retired to Scotland in about 2005.

[114] Chris Philipson was a neighbour of Mr Kirkham; on 15 March 2008 he telephoned Mr Kirkham and asked him if he would help a friend, Stewart MacCallum, who was having difficulties with a company. Mr Kirkham wished to remain retired, but agreed to see him. Mr Philipson and Stewart MacCallum came to see Mr Kirkham that afternoon and told him of Stewart MacCallum's financial difficulties. Mr MacCallum explained what GDL's assets were and that he saw the realisation of his shareholding in the company as a route to his solvency. Efforts were being made by Margaret Sneddon to raise money by means of a loan to GDL, but Mr MacCallum said he was not confident about going on, and did not have a grasp of the facts. Mr Kirkham said that he would not give advice to Stewart MacCallum, but he would work with him over a very short period of time and prepare a report which could be placed before independent advisers. He agreed to do this as a favour for Mr Philipson; he was going to charge no fee and did not intend to get involved in the affairs of GDL. However, Mr Kirkham explained that he now (i.e. at the date of his giving evidence) had a financial interest in the company, having bought Stewart MacCallum's shareholding in GDL from him. He intended to recoup his costs from this, and share any surplus with Mr MacCallum's creditors.

[115] By the day following his meeting with Mr MacCallum and Mr Philipson he had concluded that Mr MacCallum had no hope of protecting his interests, and that his interest in the company was valueless. However, he agreed to meet Margaret Sneddon in Bathgate on 20 March. He prepared a short statement of his objectives and took it with him to the meeting. He also took rough notes of the meeting but not an accurate record. No.25 of the joint bundle was prepared over a period of two to three weeks and included matters that were not stated at the meeting; it was intended to be the basis of the report which he was preparing. The objectives were Mr Kirkham's objectives, not Mrs Sneddon's. Although Mr Davidson was present throughout, he was not participating throughout, but dealing with something else. Mr Kirkham was sure that nobody mentioned Stewart MacCallum having resigned as a director of GDL - if he had been told this, he would have considered that Mr MacCallum was wasting his time. Mr MacCallum had told Mr Kirkham on the previous Saturday that he was a director of GDL, and if Mr Kirkham had been told at the meeting on 20 March that Mr MacCallum had resigned as a director he would have remembered this and it would have ended his involvement. Mr Davidson did not ask Mr Kirkham how long he had been a friend of Mr MacCallum's; if he had asked this, Mr Kirkham would have told him that he first met Mr MacCallum on the previous Saturday. He denied indicating that he had known Mr MacCallum for a long time, or winking at him.

[116] Mr Kirkham asked for paperwork relating to the various loan applications but had never been shown any. At his meeting with Mr MacCallum and Mr Philipson on the previous Saturday they had said that the applications for loans were not genuine and that they thought they were a strategy by Margaret Sneddon to procure Mr MacCallum's sequestration and thereby have him removed as a director. The lack of any paperwork, and Mrs Sneddon's lack of interest in a deal with MMH, gave credence to this belief. Margaret Sneddon was clearly of the view that she was entitled to recover her outlays from the sale proceeds of the land. Although the possibility of the MacCallums resigning as directors of GDL was raised, there was no suggestion from anyone that they had already resigned by that time. Mr Kirkham did not think that the email from Mr Morrison to Mr Murnin dated 19 March 2008 (no.26 of the bundle) had been seen at the date of this meeting, and it was not discussed.

[117] Mr Kirkham had not learned much from the meeting on 20 March and so he asked Mr MacCallum to set up a meeting with Mr Rowley and Mr Levett to ascertain from them the terms of their offer. Mr MacCallum arranged this, and the meeting took place in a Glasgow restaurant. Mr Rowley and Mr Levett explained that they were prepared to pay £150,000 for 25% of the issued share capital of GDL, one-half of which would come from Mrs Sneddon's shareholding and one-half from Mr MacCallum's shareholding, and that they would pay a further £150,000 in cash as a loan secured over the company's assets. They would be entitled to appoint one director to the board. Mr Kirkham took it from the tone of voice adopted that this was a deal which had already been done with Mrs Sneddon, and that Messrs Rowley and Levett came to the meeting believing that he was just a rubber stamp.

[118] Mr Kirkham made no new proposals to Levett or Rowley; he knew that a total of £150,000 would not be sufficient for Mr MacCallum to pay his creditors. There was no discussion about his position as a director, and he did not hear Mr MacCallum say to Mr Levett that he had had to resign as a director, nor any comment such as "I am and I am not a director". Nothing was said that could have been understood as a suggestion that they should form an alliance against Mrs Sneddon. After this meeting Mr Kirkham told Mr MacCallum that he wanted nothing further to do with Levett or Rowley.

[119] Thereafter Mr Kirkham and Mr MacCallum met Mrs Sneddon briefly in a car park opposite Mr Morrison's office, but she did not accompany them into Mr Morrison's office. After a short meeting with Mr Morrison they met Mrs Sneddon again in the car park and they then went to a pub for a coffee. Later that evening Mr Kirkham prepared notes of the meeting in the pub, which formed no.27 of the bundle. At some time after this meeting Mr Kirkham met Fiona MacCallum, who confirmed that she was a director of GDL.

[120] At Mr Kirkham's request, Mr MacCallum then arranged a meeting with Susan Torrance of HHA dated 10 April 2008; no.28 of the bundle was notes of that meeting which Mr Kirkham prepared immediately afterwards. These notes show Mr MacCallum as representing GDL, and Mr Kirkham and Mr Philipson as assisting Mr MacCallum. They deliberately did not tell Mr or Mrs Sneddon that this meeting was being arranged. Mr Kirkham accepted that he was not representing GDL, and that the decision to exclude the Sneddons from the meeting was quite deliberate. He took the view that the loan applications were dragging out and were a chimera; he advised Mr and Mrs MacCallum that they should convene formal board meetings of GDL, and Mr MacCallum agreed to contact Mrs Sneddon to arrange this. Mr Sneddon then contacted him and told him that he had set up a meeting with Margaret Sneddon, whereupon Mr Kirkham sent the email of 14 April 2008 to her (no.29 of the bundle). He knew that if he did not chair the meeting, nothing would get discussed; he prepared the agenda. He accepted that between 3 and 14 April 2008 his role had changed from not being Mr MacCallum's adviser, to being his representative, proposing an agenda and proposing that he should chair the meeting. However, this was all to ascertain the facts and to get things on a proper footing. His wife had persuaded him that he should help Stewart MacCallum, as a family obligation; he had finished building his house, he had the time, the skill and the experience to do so. After he sent the emails of 14 April to Mrs Sneddon, she spoke to him and said that she was looking forward to the meeting, and gave him no hint that she had a problem with what was being proposed.

[121] The meeting took place on 21 April 2008; Mr Kirkham took notes and prepared the minutes which form no.33 of the bundle that evening. Mrs Sneddon arrived about half an hour late for the meeting because of traffic; Mr Sneddon did not attend, Mr Kirkham asked if he was coming, and Mrs Sneddon said "put him down as apologies". Mr Kirkham explained to Mrs Sneddon that before the director's meeting started, Mr and Mrs MacCallum would appoint him as an alternate director and then withdraw. Mrs Sneddon said that she had no problem with that - she only had Mr MacCallum's best interests at heart. The meeting agreed that Mr Kirkham should be appointed as an alternate director. Mr and Mrs MacCallum then moved back from the table - they could see and hear what was going on, but would not participate. Mr Kirkham then proposed, in his capacity as alternate director, that he should be chairman. Mrs Sneddon was perfectly happy with this. He proposed that he should take notes, prepare minutes and circulate these for approval, and this was agreed. Mr Kirkham then suggested increasing the issued share capital to 200 shares, in order to make it easier for Mr MacCallum to obtain finance. At this time Mr Kirkham believed (erroneously) that there were eight issued shares, and that Mr and Mrs Sneddon and Mr and Mrs MacCallum each held a 25% shareholding. The minutes accurately reflected what was discussed at the meeting; Mr Kirkham emailed draft minutes to Mrs Sneddon, and he imagined that he would have sent an agenda to her for the next meeting to be held on 28 April 2008.

[122] The meeting on 28 April 2008 was held at the Marriott Hotel, Glasgow and attended only by Mrs Sneddon and Mr Kirkham. The draft minutes of that meeting were emailed to Mrs Sneddon and resulted in the exchange of emails dated 29 April and 1 May which form no.41 of the joint bundle. Mr Kirkham had the authority of Mr and Mrs MacCallum to call the next meeting on 8 May 2008.

[123] At the meeting at the Marriott Hotel on 8 May Mr and Mrs MacCallum and Mr Kirkham were present - Mr and Mrs MacCallum as directors, and Mr Kirkham as their alternate director and chairman. Contact was made with Mr and Mrs Sneddon by telephone. This was not in the late afternoon but in the middle of the day. When Mr Sneddon spoke on the phone, he said "I vote against" and put the phone down. Mr Kirkham rang him back and made sure that he understood the proposal, and again Mr Sneddon voted against it. Mr Kirkham stated that the intention was that if he was appointed as a director in his own right, Stewart MacCallum would withdraw, but that was not the motion which was put. By the time that the meeting reconvened after 5pm, Mr Kirkham's position had changed; he was by then chairman of the company and an alternate director and director in his own right. He pointed out that he had been director of very many companies and he knew precisely what his responsibilities were. Mr Kirkham had become extremely concerned about the relationship between Margaret Sneddon and Mr Morrison; he had made inquiries into their background, their business relationships and other activities. Mr Kirkham confirmed that the contents of the minutes, and the timings, were accurate. After the meeting a draft of the minutes was sent to Mrs Sneddon. Her response was the email dated 12 May 2008 which forms part of no.47 of the bundle. On the same day Mr Kirkham emailed Mrs Sneddon his letter which is no.50 of the joint bundle; he could not remember if this was discussed with Mr and Mrs MacCallum, but he was confident that they would be content with the thrust of it.

[124] Another board meeting of GDL was fixed to take place at Fort William. He could not remember how the Sneddons were informed about this, but they clearly had notification because they responded on 19 May saying that they would be unable to attend (no.67 of the bundle). The meeting took place on 20 May 2008, and the minutes (no.53 of the bundle) were accurate. Just before the meeting Mr MacCallum passed a letter to Mr Kirkham suggesting that he (Mr MacCallum) was no longer a director of GDL; they carried out a quick company search and found that this was correct. This came as a bombshell to Mr Kirkham, and implied that he had been deceived throughout by the MacCallums. He was absolutely certain that the MacCallums had no knowledge of this. The resolutions taken at that meeting to change the registered office of GDL, to remove Mrs Sneddon as company secretary and to appoint Mr Smith in her stead and to suspend Mrs Sneddon from all executive roles within or representing GDL were taken to protect the interests of the company. Regarding the granting of authority to terminate Sneddon Morrison's appointment as solicitors to the company, Mr Kirkham considered that a wholly independent set of lawyers would be preferable. Mr Kirkham proposed each of these motions, which were passed nem con. He had previously given notice to Mrs Sneddon, in his letter dated 12 May, that these steps might be taken, and he was pleased that he had given this notice.

[125] With regard to his relationship with Mr Levett and Mr Rowley, Mr Kirkham stated that he had met a private investigator called Mike Brown who stated that he was acting for a friend of Mrs Sneddon, and told Mr Brown that the MacCallums had not resigned as directors of GDL. He discussed with Mr Brown the apparent offer from Messrs Rowley and Levett, and Mr Brown indicated that Rowley and Levett were at arm's length and not involved in GDL. Mr Kirkham said that he had previously been told by Mr MacCallum's accountant that Rowley and Levett had given £75,000 in cash to Mrs Sneddon, and Mr Brown should inquire carefully whether Mrs Sneddon did in fact own her shareholding. When Mr Kirkham was in Yorkshire on business he received a telephone call from either Mr Rowley or Mr Levett asking for a meeting. He met with them in the Marriott Hotel, and they expressed unhappiness that he knew about the £75,000 being paid to Mrs Sneddon. They were very threatening to Mr Kirkham and wanted to know who told him about this, and asked if it was a Mr Ian Morgan, a chartered accountant in Glasgow. They were anxious that Mr Kirkham should meet Mr Brown and tell him that the payment had not been made. Mr Kirkham refused to do so, but did agree to tell Mr Brown that he had no direct knowledge of the payment being made but had received information from a third party. Mr Kirkham then telephoned Mr Brown, who then attended at the Marriott Hotel surprisingly quickly. Before Rowley and Levett left, there was some discussion about whether or not the MacCallums had resigned as directors of GDL, and Mr Rowley had said theatrically that he remembered that Stewart MacCallum said at the meeting that he had resigned, and Levett said "I remember that as well". Mr Kirkham felt that this was stage managed, but the atmosphere of the meeting was very intimidating. As they left, Mr Rowley looked him in the eye and said how much they wanted to be involved in GDL.

[126] Thereafter Mr Kirkham received a threatening telephone call from Mr Rowley saying that if they had trouble, he had trouble, and that they were on their way up to see him. Mr Kirkham reported this to the police. He then received a series of telephone calls on his mobile phone seeking to speak to him; each of these calls was reported to the police. Mr Kirkham then received a telephone call from a lady purporting to be from Murnin McCluskey, Mr MacCallum's solicitors; when he answered, the phone went dead. Shortly afterwards his wife dialled the caller and the telephone was answered by a woman at MMH Properties. The police were informed, and Mr Kirkham immediately left for Yorkshire. When he was in Yorkshire Mr Rowley came to his house.

[127] Mr Kirkham also spoke to his discussions and email correspondence with Companies House regarding the various apparent appointments and terminations of Mr MacCallum's directorship of GDL, as contained in nos.125 and 126 of the joint bundle.

[128] In cross examination Mr Kirkham stated that when he first met Mr MacCallum he thought the story was so fantastic that he would have to check it out. Mr MacCallum was unable to articulate to him the agreement between himself and Mrs Sneddon before GDL was incorporated, and was unable to answer Mr Kirkham's questions. Mr Philipson himself had been "thrown out" of his family company, and it was Mr Philipson who presented the story to Mr Kirkham that Margaret Sneddon was seeking to usurp Mr MacCallum's position in the company; this may have been because of Mr Philipson's own experiences.

[129] The way that Mr MacCallum had described his prior agreement with Mrs Sneddon was that he would persuade his mother to sell her land to GDL at below value, and his doing so would amount to his contribution to the project, while Mrs Sneddon would contribute her expertise and would finance the development costs. Mr Kirkham did not remember Mr MacCallum telling him anything about taking people from Tulloch Homes and Macleod Homes around the site; he was not aware of Mr MacCallum having tried to raise finance through a Mr Ferguson, and he did not know the details of Mr Alan Love's involvement. Mr MacCallum had shown Mr Kirkham Mrs Sneddon's schedule of outlays and told him that she wanted these as a first tranche out of any sale proceeds of the land, but she was not entitled to that. He understood that Mrs Sneddon had been involved in numerous sequestration proceedings. Mr Kirkham accepted that when he sent his email of 14 April 2008 to Mrs Sneddon he had no standing to convene a board meeting; that was why he asked Mr MacCallum to do so, and Mr MacCallum told him that he had done so. Similarly, he was not in a position to set the agenda for that meeting, which is why he set out what he considered the agenda should cover.

[130] Mr Kirkham stated that he understood that the MacCallums had never heard of the concept of an Alternate Director before; he explained to them that the Articles of GDL enabled a Director to nominate another person to act as his or her Alternate, with all the same responsibilities and duties as a Director. This explanation was given at the meeting on 21 April 2008, in the presence of Mrs Sneddon, and she agreed that Mr Kirkham should be Alternate Director for each of the MacCallums. The minutes were accurate, as were the minutes of the following meeting on 28 April. With regard to the meeting on 8 May, Mr Kirkham stated that Margaret Sneddon was present for part of the meeting by telephone, but at his end there were people going in and out of the room, and in preparing the Minutes "he took his eye off the ball". He was asked to explain what was recorded at paragraph 4.2.1 of the minutes (no 46 of the joint bundle), and he accepted that when he was there acting as Alternate Director for Mrs MacCallum she could not propose that Mr Kirkham be appointed a Director in his own right. He also accepted that the e-mail of 16 May 2008 telling Mrs Sneddon that it was intended to convene a board meeting the following week did not specify a date for that meeting.

[131] Mr Kirkham stated that at about Christmas 2009 he bought all of Stewart MacCallum's shareholding in GDL, "reserving an interest to Stewart MacCallum". He was not conscious that he had breached any interim interdict in doing so. Stewart MacCallum and he also became Directors of two other companies, of which Malcolm Smith became Company Secretary, one of which was called Kingsley 2008 Ltd and the other Lochaber Transport Services; Mr Kirkham owned 80% of the issued shareholding in these Companies and Mr MacCallum owned 20%. Mr Kirkham had a floating charge over Lochaber Transport Services, which was created on 23 January 2009. He stated that Mr MacCallum's financial position has now stabilized but is not materially different from what it previously was; there were sequestration proceedings against Mr MacCallum in Fort William Sheriff Court which were ongoing and Mr MacCallum had registered a debt arrangement scheme.

[132] Mr Kirkham did not accept that the meeting on 21 April 2008 was not a properly constituted board meeting of GDL, but he had no standing in the Company until he was appointed an Alternate Director at that meeting. This happened after an informal discussion between all present, after which Mrs Sneddon agreed to it. It was not Mr Kirkham who called the meeting - he asked Mr MacCallum to telephone Mrs Sneddon and arrange a board meeting, and Mr MacCallum told him that he had done this. The averments at page 19(a) of the closed record in the action at the instance of Mr & Mrs MacCallum were put to him, where it is averred that the meeting was called by e-mail dated 14 April 2008 which included a proposed agenda, and he agreed that this did not reflect his understanding. Mr Kirkham was quite clear that he himself did not call the meeting. It was suggested to him that if Mr MacCallum had indeed telephoned Mrs Sneddon and told her that he was calling a board meeting, she would have answered that he could not do so as he was no longer a Director, and Mr Kirkham accepted that this was a theoretical explanation which was for the court to assess.

[133] Mr Kirkham was asked why the e-mail from Mr Morrison to Mr Murnin of 19 March 2008 was not mentioned in any of the minutes, and he replied that it was not mentioned in the minutes of the meeting of 20 March 2008 because he was not aware of it. He had no reason to mention it until his meeting with Mrs Sneddon and Mr MacCallum on 3 April. Mr MacCallum was prepared to resign as a Director of GDL, but Mr Kirkham advised him not to do so as this would create a situation in which Mrs Sneddon could dictate the shareholding and running of the Company. It was suggested to him that Mr & Mrs MacCallum had in fact resigned by that date, but Mr Morrison was unaware of this fact; Mr Kirkham again agreed that this was a possible explanation, which it was for the court to assess.

[134] In re-examination Mr Kirkham remembered that there were discussions at the meeting on 20 March 2008 about the possibility of Mr & Mrs MacCallum resigning as Directors of GDL, and that Mrs Sneddon and Mr Davidson suggested that at least one of the loan proposals might require them to resign and possibly transfer their shareholdings. However, Mr MacCallum never said that he had already resigned. His understanding of the procedures leading to the meeting on 21 April 2008 coincided with the pleadings on his behalf in statement 4 of the counterclaim to the action at the instance of Mr & Mrs Sneddon; he was given to believe by Stewart MacCallum that Mr MacCallum had called a meeting by telephone. Thereafter he e-mailed his proposed agenda to Mrs Sneddon on 14 April 2008, and sent a further e-mail to her on 19 April 2008. He was aware as at the date of the meeting on 20 March 2008 that there was a difference of view between Mr MacCallum and Mrs Sneddon as to the repayment of Mrs Sneddon's costs and outlays.

[135] James Morrison was aged 55 and a partner in Sneddon Morrison, Solicitors, Shotts. He had been a practicing solicitor since August 1978. He had acted as solicitor for Margaret Sneddon for some time when, in early 2004, she asked him if he would act on behalf of GDL in a property transaction. He agreed to do so but insisted that he must meet the other Directors first. In about March or April 2004 he went to Fort William and met Stewart, Fiona and Katie MacCallum, and it was agreed that he should act in the purchase of the ground from Katie MacCallum. In September 2004, he submitted an offer to purchase the land on behalf of GDL, having been told by Stewart MacCallum that the company was incorporated; however, he then discovered that the company was not incorporated, and the offer had to be withdrawn and resubmitted after GDL's incorporation in October 2004. Mr Morrison had nothing to do with the incorporation of the Company. Before the end of 2005 he attended a meeting on behalf of GDL with Lochaber Housing. In late January 2006, he received the offer from Burnett and Reid dated 23 January 2006, which he sent to Margaret Sneddon as a Director of GDL; she telephoned him and told him that the offer was not to be accepted, as the number of houses contemplated was unobtainable.

[136] Mr Morrison never saw the principal of the letter apparently signed by Mr & Mrs MacCallum and dated 21 February 2008 (no 21 of the joint bundle), although he received a copy of this from Margaret Sneddon who told him that it had been faxed to her Bathgate office. He never saw the actual fax. He first became aware of this towards the end of March 2008. He was shown his e-mail to Mr Murnin dated 19 March 2008, (no 26 of the joint bundle) and asked if the information in the first two sentences was on instructions from his clients; he replied that it was partly so, and partly from Bridget Heaney, whom he had known for years at RBS. She telephoned him because she was trying to raise funds for GDL to help Mr MacCallum, and she said that his credit scoring was so bad that the bank would not lend. She sounded quite exasperated on the telephone and stated that unless Mr MacCallum was no longer a Director of the company, there was nothing the bank could do. Basically she said that they could not make the advance because of Stewart MacCallum's bad credit history, and as long as he was a Director that would remain a problem. Mr Morrison did not think that Fiona MacCallum was mentioned, nor was there any mention of Stewart MacCallum ceasing to be a shareholder. When Mr Morrison sent the e-mail he knew that no actual offer had been made, but that the bank was looking at it. Bridget Heaney had made no mention of Mrs MacCallum's bad credit scoring, nor did she suggest that Mr MacCallum might have to cease to be a shareholder - this must have come from Mrs Sneddon. He had discussed this matter with Mrs Sneddon at least two weeks before 19 March 2008, and she had instructed him to send this e-mail at least two weeks before 19 March 2008, but because of pressure of business he had not managed to send it until then. Shortly after he sent the reminder e-mail dated 26 March 2008 Mrs Sneddon telephoned him and told him that she had received the MacCallums' resignation as Directors of GDL.

[137] He received the e-mail dated 29 April 2008 from David Kirkham; Margaret Sneddon had never told him that Mr Kirkham was an Alternate Director for the MacCallums, and indeed he did not know what an Alternate Director was. He telephoned Mrs Sneddon on receipt of this e-mail, and she told him that Mr Kirkham was not an Alternate Director and that he should send no documentation to Mr Kirkham. Mr Morrison did not contact the MacCallums to ask if Mr Kirkham was an Alternate Director, because when he met them in Fort William his instructions were to deal with Margaret Sneddon. Mrs Sneddon's instructions were clearly to the effect that Mr Kirkham was not an Alternate Director, which is why he replied to Mr Kirkham on 1 May stating that "as it is now clear you are not a Director of the company, for me to write to you about my clients' business would be a clear breach of confidence". He wanted as little as possible to do with Mr Kirkham, and he was certain that Mrs Sneddon had told him at the end of March that the MacCallums had resigned as Director of GDL. From the outset the MacCallums had agreed that Mr Morrison should take his instructions from Margaret Sneddon on behalf of GDL, and he did not consider that Mr Kirkham had anything to do with the Company nor that he had any part in reviewing the missives with HHA. His letter of engagement, incorporating terms and conditions, was returned signed by Margaret Sneddon in February 2008; she had suggested that he might be prepared to accept a fee on the basis of a percentage of the sale price of the land, but he declined and it was agreed that he should be paid an hourly rate.

[138] When Murnin McCluskey called for delivery of the company books in their letter dated 29 May 2008, Mr Morrison said that the company books did not exist. This was still his position in December 2009, but when he said this he meant that there were no up to date accounts relating to the Company; when Mr Kirkham had attended at Mr Morrison's office in Bathgate in April 2008 he had seen the folder containing the statutory books of the Company. Mr Morrison had not spoken to Companies House, and he made this clear to Mr Kirkham's solicitors.

[139] In cross-examination Mr Morrison explained that he had experienced several difficulties in the purchase of the land from Katie McCallum. None of the land had been decrofted, plans had to be drawn up, and Scottish Natural Heritage objected to the local authority. The purchase price was £20,000; Mr Morrison paid £14,000 on Margaret Sneddon's behalf, and the balance was paid direct to Katie MacCallum. He was quite definite about this.

[140] Mr Morrison had a clear recollection of visiting the site and meeting the MacCallums for the first time in April 2004. He and his wife stayed in a local hotel. He had a long walk around the grounds, and the question of the agreement between Stewart MacCallum and Margaret Sneddon was discussed. It was stated that Mrs Sneddon would put up the money for the ground and the costs of progressing development on it, and when the land was sold or developed she would get her money back and then the proceeds would be split equally. Mr Morrison noticed the pylons crossing the site, and there were discussions as to whether housing and/or leisure development were most appropriate, and Mr MacCallum observed that he had previously sited caravans on land. Mr Morrison suggested to Mrs Sneddon that this agreement should be reduced to writing, but she never instructed him to do this, probably because the parties were so friendly at the time. It was clearly agreed by everyone present, including the MacCallums, that Mr Morrison was to act on behalf of GDL in conveyancing matters, including the initial purchase of the land and its subsequent sale.

[141] Mr Morrison also received information regarding attempts to obtain a loan for GDL which could be used to ease Stewart MacCallum's financial difficulties. He received a letter from the Clydesdale Bank in about January 2008 but he did not reply because he was told that the Clydesdale were not proceeding with an offer of loan. He spoke by telephone to Bridget Heaney, who told him that as long as Stewart MacCallum was a Director a loan from RBS was a non-starter. After this Mr Davidson and Mr Thompson looked into the possibility of a loan from the Lancashire Mortgage Corporation, but they wanted a guarantee signed by Mr & Mrs Sneddon; he wrote to the Sneddons pointing out the risks of granting such a guarantee, and Mrs Sneddon told him that she was nonetheless considering granting such a guarantee, but the matter did not proceed further.

[142] The meeting in Mr Morrison's office on 3 April 2008 was arranged by Mrs Sneddon, to enable him to meet Mr Kirkham and to show him documentation in the negotiations with HHA; Mrs Sneddon placed no limits on what Mr Morrison could show Mr Kirkham or discuss with him.

[143] In the latter part of 2009 Mr Morrison became concerned about Mrs Sneddon's health. She would telephone him at least 8 times each day, at all hours, and even on Sundays. She became quite "manic" and was clearly not well. Mr Morrison became worried about these calls.

[144] In re-examination Mr Morrison stated that he remembered the discussion which took place on his first meeting at the site in about April 2004. There was dialogue between Mrs Sneddon and Stewart MacCallum in his presence regarding who would recover the outlays on the project and when these would be recovered. This discussion took place at a bottle dump at the far end of the site; he remembered that Mrs Sneddon stated that the agreement was that she would put the money up to buy the ground and meet the costs, and when the land was sold off she would get that money back and there would then be an even split of the profits. She then said to Stewart MacCallum "is that right?", and he said "yes". Mr Morrison remembered this quite clearly. This was in accordance with what Mrs Sneddon had told him when she first spoke to him about the project, but at that time he did not know whether this was with Mr MacCallum's agreement. This was one of the purposes of Mr Morrison meeting the parties at the site; he wanted to know what the agreement was, because it would affect the ultimate profits of the project.

[145] Mrs Fiona MacCallum was aged 45 and had been married to Stewart MacCallum for 25 years. She lived with him at Onich. She was aware of the piece of rough unworked land which had been owned by her husband's parents there, although she did not know the acreage, not did she have any idea of its value. She met Margaret Sneddon when they were re-mortgaging their house, but she could not put a date on this. Later Stewart involved Mrs Sneddon in a plan to develop the land at Onich; this was when he was working in the Central Belt and Mrs MacCallum was not involved. Her husband was in financial trouble, and his mother suggested that they should do something with the land. Stewart MacCallum explained that he would persuade his mother to put up the ground, and Mrs Sneddon would bring her expertise to the project. Mrs MacCallum could not remember when this was. Stewart told her that Margaret Sneddon was to bear the costs of the development - this was going to be her contribution, and the MacCallums' contribution was the ground. The profits at the end would be split 50-50. Mrs MacCallum was aware that there was going to be a Company formed to carry the project forward, but she didn't realise that she would be involved until her husband told her that she was a Director. She did not involve herself in the matter at all, and did not attend any meetings - well, there were a couple of times when she and her husband and the Sneddons met in her house, but these were not really meetings but discussions. She knew from her husband that other meetings took place. She did remember meeting Jim Morrison, and she heard of others including Andrew Reilly although she did not meet them.

[146] By 2007 the MacCallums' finances were awful, and they owed everyone money. She was aware that Stewart was trying to raise money on his shares in GDL, but she did not know how nor any details of this. Stewart told her that he went to Ted Black to do a deal, but this fell through because Margaret Sneddon was not interested. She had heard of HHA, but she could not remember when; she was in the house when meetings were going on, and she overheard Stewart speaking on the telephone, but she did not involve herself in the project. She had never spoken to Mr Davidson - the first time she ever saw him was when he gave evidence in court. She was shown Mr Davidson's affidavit (no 103 of the joint bundle) and denied signing or typing the letter B dated 11/12/07 appended thereto. Her husband did not type letters, and at that time he had no secretary; Mrs MacCallum was positive that she neither typed nor signed this letter. However, she had signed insurance documents in the presence of Mrs Sneddon, and so Mrs Sneddon would have had examples of her signature. She was aware of efforts being made by Margaret Sneddon and Doug Davidson in late 2007/early 2008 to help Stewart's finances, although she did not know any details.

[147] Mrs MacCallum denied that Stewart and she resigned as Directors of GDL in about March 2008. She did not remember receiving two copies of a letter of resignation and two stamped addressed envelopes, nor sending one of these back to Mrs Sneddon and one to Companies House. She definitely did not sign the letter dated 21/02/2008 (no 21 of the bundle); although this looked like her signature, she would have made it bigger - she only signed her signature in such a small size when she was signing credit cards or signing within a box on a form. She would not have signed this documents at that time, because "we really didn't trust Margaret Sneddon by that time". Although she didn't take anything to do with the applications for loans, Stewart repeatedly complained to her that he could not get in touch with Margaret Sneddon, nothing seemed to be happening, and everything he tried to do was blocked by her. Their situation seemed to be getting worse and worse. She was not aware if Stewart signed this document, but she didn't think that he would have, as they would have talked about it.

[148] Stewart told her that Chris Philipson had introduced him to Mr Kirkham, and Stewart thought that perhaps Mr Kirkham could help them. She did not attend Stewart's first meeting with Mr Kirkham, but she met him less than a month after this. She went to the meeting in Glasgow on 21 April 2008, because Stewart told her that she had to be there. She had seen Mr Kirkham's e-mails to Margaret Sneddon dated 14 April 2008 (numbers 29 and 30) and she sent a copy to Margaret Sneddon (no 31). She also sent another e-mail to tell Mrs Sneddon about the meeting, but this had not been referred to in evidence and was apparently not a production.

[149] Mrs Sneddon arrived about 30 minutes late for the meeting. She was on her own, although they had been expecting her husband to be with her - she said that he was away on his motorbike. Mrs MacCallum saw Mr Kirkham taking notes at the meeting. When Mrs Sneddon arrived, she sat down and Mr Kirkham said something about his being an Alternate Director, and they all took a vote. Mrs MacCallum knew beforehand about the question of Mr Kirkham being an Alternate Director, because it was discussed between her, Stewart and Mr Kirkham. She had said that she did not know why she was attending the meeting, and knew nothing about what was going on. Mr Kirkham told her that he would be her Alternate - she would still be a Director, but he could speak on her behalf, and he could advise her and make decisions. After the vote on Mr Kirkham being made an Alternate Director, Stewart and she sat back and the meeting went on. It was agreed that Mr Kirkham would chair the meeting. It was put to her that the note of the meeting states that it was unanimously agreed that he be Chairman of the Board, and she replied that she just thought it was the same thing - she took it to relate to all meetings, but she did not remember exactly what was said. It was agreed that he should take notes and prepare minutes, that these should be shown to Stewart's bankers, and that the current issued shared capital of 8 shares should be increased to 200, with 4 equal 25% shareholdings.

[150] Mrs MacCallum was shown the agenda for the meeting to be held on 28 April (no 37 of the bundle) and she was asked if this was circulated before the meeting. Her initial answer was that it would have been, but then she replied that she did not remember it. She did not attend that meeting, but she did attend the meeting at the Marriott Hotel in Glasgow on 8 May 2008, because Stewart asked her to do so. Mrs Sneddon was not there. They waited until about 12.45 and then Stewart telephoned Mrs Sneddon, who said that she knew nothing about the meeting. Mrs MacCallum did not speak to Mrs Sneddon. She was asked if she remembered if Drew Sneddon joined in during the telephone conversation and she replied that she could not remember exactly what happened that day. She was then shown paragraph 4.2.1 of the minutes (no 46 of the bundle) and she said that she remembered that happening. She wanted Mr Kirkham to be a Director in his own right, and there was a vote. "They voted against", but she never heard Drew Sneddon on the end of the phone. She was asked if it was a loudspeaker phone which would have allowed her to hear the other end of the conversation and she could not remember. She was quite clear that she herself voted in favour of Mr Kirkham's appointment as a Director, although she had already appointed him as her Alternate Director. Mr Kirkham told her that Mrs Sneddon was not prepared to accept his appointment as Chairman.

[151] Mrs MacCallum could not remember what happened between the first part of the meeting and the second part of the meeting at 5pm. At about 5pm she and Stewart and Mr Kirkham met in Mr Kirkham's bedroom in the Marriott Hotel. She remembered that the phone was on speakerphone on this occasion. She did not remember the discussion. However, she did remember that Drew Sneddon did not take part in this later part of the meeting - it was only Mrs Sneddon's voice on the phone. There was no mention that day of Stewart or her not being Directors of GDL.

[152] Mr Kirkham would let the MacCallums know of every step he took. She was shown his letter dated 12 May 2008 to Mrs Sneddon (no 50 of the bundle) and she said that she was probably told about this in advance.

[153] At the meeting at Fort William on 20 May 2008, both she and Stewart proposed Mr Kirkham as a Director of GDL, and both voted in support of this. Similarly both proposed that Mr Kirkham be appointed Chairman of the Company and both voted for this. She did not know why. It was pointed out to her that the minutes recorded her as proposing these resolutions, and it was put to her that it was her idea to do this, but she could not remember. There was never any time at which either Stewart or she revoked Mr Kirkham's appointment as their Alternate Director. She remembered receiving a "flyer" indicating that she was no longer a Director of GDL, but she treated this as rubbish, and she was not aware of any resignations having been intimated to Companies House. She attended part of the meeting at Fort William on 20 May 2008. The terms of paragraphs 5.3.8 and 5.3.9 of the minutes (No.53 of the Joint Bundle) were put to her; she did not remember anything about this, but it must have happened because it was in the minutes. She remembered the resolution that the Registered Office of the Company should be changed. She could not remember who suggested that Malcolm Smith should be appointed as Company Secretary in place of Margaret Sneddon, but she observed that they did not trust Margaret Sneddon. She then said that she did not think that she was present for the whole meeting, only part of it. She could not say which parts she attended and which parts she missed, but there were some bits that she remembered. She was asked if she remembered a discussion at the meeting as narrated in paragraph 5.3.15 of the Minutes to suspend Margaret Sneddon from all executive roles within or representing GDL; she could not remember if this was discussed at the meeting, but she did remember a discussion along these lines at some time, whether during the meeting or at another time. Similarly she remembered a discussion about the possible termination of the appointment of Sneddon Morrison as GDL's lawyers, but she did not remember if this happened at the meeting. She was there at the beginning of the meeting for definite, but she could not remember events after this. She remembered receiving the letter from Andrew and Margaret Sneddon dated 9 June 2008; at that time, neither she nor Stewart had any money, and Margaret Sneddon was aware of this fact.

[154] In cross-examination Mrs MacCallum accepted that she knew that Stewart and her brother had bought a house together, but she only knew what Stewart had told her about this. She was aware that Alan Love was interested in developing the land at Onich, but again all she knew about this was what Stewart told her. She could not remember or did not know if Tulloch Homes or MacLeod Homes had spoken to Stewart expressing interest in the land. She could not remember how Stewart told her that Margaret Sneddon was going to be involved in the development. Stewart would have told her about the possible deals, but not in any great detail. She agreed that he probably made his mind up on his own. She could not remember if Margaret Sneddon came up to talk about the development along with Mr & Mrs Morrison. At that time Mrs MacCallum did not know what the details of the proposal were, but she knew that it was intended to develop the land in some way. She was aware that Mrs Sneddon had plans drawn up for houses, a leisure centre, a swimming pool and log cabins, but Mrs MacCallum thought this was "pie in the sky". She never met Paul Moss, although she had heard his name from Stewart, who liked him.

[155] She first met Jim Morrison when he and his wife were staying at the Ballachulish Hotel; this was not really a business meeting, but was to let people get to know each other. She heard that Mr & Mrs Morrison and the Sneddons and Stewart had walked the ground, and she knew that Mrs Sneddon had suggested that there should be a company formed. She was aware of the offer from Forth & Clyde Homes (no 11 of the bundle) but she was only told about the money being offered.

[156] Stewart told her that she had been made a Director of GDL at some time after the company was incorporated in October 2004. In November 2004, she and Stewart signed a separation agreement, although Stewart never moved out of the house; title to the house was placed in her name to take it out of the reach of his creditors.

[157] She knew that Stewart met Ted Black, but she could not remember when nor if she was told about this at the time; she did not know how much money Stewart needed, nor how bad things were. She did not know Chris Philipson, who was supposed to get them around a table talking to each other. She never met Andrew Reilly, and did not know what he did, although Stewart may have told her. She was however aware of the offer from HHA, and Stewart told her the basics of what was being talked about with them. Margaret Sneddon told them that it would take four to six months to get their money from HHA, but both Stewart and she knew from their own experience that this was hopelessly optimistic.

[158] During 2007 and 2008 Stewart told her about several attempts to raise money for him through GDL, but these kept falling through. By then both Stewart's and her credit rating was very poor, and they were receiving demand letters for payment of debts. She was aware about applications being made for funding from RBS and the Clydesdale Bank; she knew the manager of the Clydesdale Bank to speak to, but she could not remember if Stewart had an account with them.

[159] Mrs MacCallum thought that relations with Margaret Sneddon broke down because Mrs Sneddon kept on making decisions, and it was difficult to contact her because she kept on changing her telephone number. The potential deal with Ted Black fell through because Mrs MacCallum didn't think that Mrs Sneddon waited long enough in the meeting with him to know what was being proposed; however, she accepted that she herself was not at the meeting. There was a whole catalogue of other problems with Mrs Sneddon, although Mrs MacCallum could not think what they were. She accepted that Margaret Sneddon attended the meeting at Bathgate on 20 March 2008; she did not know why she herself did not go to this meeting. She was probably asked to attend, but she probably chose not to do so. She did know that Stewart was going to meet Susan Torrance of HHA without telling Mrs Sneddon. Stewart did not tell her what advice Mr Kirkham gave him regarding the raising of finance. The meeting on 21 April 2008 in Glasgow arose following a discussion between Stewart, Mr Kirkham and herself; during this discussion Mr Kirkham told Stewart and her that he wanted them to appoint him as Alternate Director for each of them, and he explained what this meant. She was present when Stewart phoned Margaret Sneddon to arrange this meeting, but she could not remember what he said on the phone. She did not know if Stewart mentioned that it was to be a Board Meeting, or just another meeting. She did e-mail Margaret Sneddon in advance of this meeting, but the e-mail dated 16 April 2008 (no 31 of the bundle) was not sent by her; she did not know what had happened to the e-mail which she sent.

[160] The e-mail dated 16 May 2008 to Mrs Sneddon (which is part of no 67 of the bundle) was not sent by her but by Stewart. She agreed that no date was given for the meeting in that e-mail, and she did not know whether the words used were Stewart's or suggested by someone. She attended the meeting on 20 May 2008 at Fort William, although she was not there for the whole meeting. She agreed that the question of Mr Kirkham's position as a Director and as Chairman of the Board was one of the first items discussed at the meeting, although it was not mentioned anywhere in the letter to Mrs Sneddon dated 12 May 2008 (no 50 of the joint bundle).

[161] Mrs MacCallum reiterated that she did not sign the letter dated 21 February 2008, although by that time she knew that the adverse credit ratings for Stewart and herself were causing problems in raising finance on the land. She agreed that the signature on this letter would look like hers to anyone else.

[162] In re-examination Mrs MacCallum stated that nobody else would have had access to store cards or bank cards with her signature on them. She believed that Margaret Sneddon had forged her signature on the letter dated 21 February 2008; she had Mrs MacCallum's signature in boxes on forms which Mrs MacCallum had filled in previously. Mrs MacCallum did not want to resign as a Director, nor did Stewart. If they resigned, they would not have had any say in what happened to the company, and relations with the Sneddons were not good. Stewart was more prepared to forgive Mrs Sneddon than she was - he tends to look for the good in people, whereas she does not. The collapse of the deal with Ted Black confirmed to Mrs MacCallum all the bad feelings about Margaret Sneddon which she had harboured from quite early on.

[163] The final witness was Stewart MacCallum, who was a haulage contractor, aged 49 and living with his wife at Onich. After leaving school aged 16, he worked as a chef for about 5 years, and then worked felling trees in the timber industry. After this he worked as a coalman, and then in the haulage industry. He set up his own haulage business in 1992 or 1993.

[164] The land at Onich had been in his family for generations, at least since his great grandfather's time. Latterly it had belonged to his mother, who always wanted him to do something with it. He told the head of planning at the local authority that he was hoping to build a couple of houses on the land, and he received the response that the local authority were looking for a bigger development.

[165] Mr MacCallum met Margaret Sneddon in early 2000 in connection with re-mortgaging a property. He contacted her again in 2004 and arranged a mortgage over a property in Harthill. They had discussions about the land at Onich, and Mr & Mrs Sneddon came up with a builder to visit the site. GDL was set up to develop the land. Mr MacCallum understood that money would be needed to make the land suitable for development and obtain the necessary consents. The agreement was that Mrs Sneddon would finance these costs and bring her expertise, and Mr MacCallum would get the assets. Mrs Sneddon said that she had experience in developing flats, and she would put in the money to get the project through the planning process. She said that this would take four to five months, but Mr MacCallum knew from living in the area that this was unrealistic and that it might take 14 months. The agreement was that the profits of the project would be split 50/50 between him and Margaret Sneddon - there was no question of her receiving her expenses back before this was done. Although this agreement was not put into writing, it was discussed more than once.

[166] Margaret Sneddon paid Mr MacCallum's mother for the land - he thought that the sum paid was more like £17,000 than £20,000. This was not a loan to GDL, and he never agreed that GDL should take this loan. He never regarded this as a loan, and he had never seen any accounts of GDL.

[167] Mr MacCallum remembered walking round the land with Mr & Mrs Sneddon and Jim Morrison when Mr & Mrs Morrison were staying at the Ballachulish Hotel. He understood that Mr Morrison was helping with the formation of GDL. He remembered having a discussion in the rain beside the bottle dump on the site, although he did not remember what was discussed. If Margaret Sneddon had suggested during this discussion that she would be repaid her expenditure before the profits of the project were split equally between them, he would have remembered this because he would not have agreed to it. The costs were not really his concern - his part was to secure the land.

[168] Mr MacCallum remembered getting a telephone call from Mrs Sneddon just before Christmas one year, although he could not remember which year. Mrs Sneddon told him that the deal had been done and that he should tell Fiona that her worries were over because the land had been bought for £3.5 million. Some time after this telephone call, he remembered seeing the letter dated 23 January 2006 (no 11 of the joint bundle). He remembered meeting Frank Keenan, and showing the land to people with him; he also remembered showing people from RBS and also an Irishman around the land. He then made a point to attending all the meetings with HHA. There were long negotiations with HHA, because GDL were aiming at an upmarket development and HHA were aiming at affordable housing; neither HHA's site nor GDL's site was capable of development without the other. These negotiations lasted for about two years.

[169] Mr MacCallum's financial troubles began in about 1998. By 2007 his financial situation was grim, and had been bad for several years. He took advice from a mortgage broker called John Ferguson, who instructed J & E Shepherd to value the land - their valuation of 20 June 2007 was no 14 of the joint bundle. When he received this valuation he telephoned Margaret Sneddon, who was not very happy that he had done this without telling her. Mr Ferguson was confident that he could raise a loan of about £200,000 secured over the land on the strength of this valuation, which sum would be split equally between Mr MacCallum and Mrs Sneddon. However, after Mr Ferguson sent papers to Mrs Sneddon to sign, she declined to do so because she was not prepared to give details of the rest of her assets and properties.

[170] Mr MacCallum then explored the possibility of obtaining loans from other parties which would be secured over the land. He spoke to Ken Slater, but Margaret Sneddon was not prepared to do business with him. Mr MacCallum was then introduced to Ted Black, whom he described as a rather unusual character. Mr MacCallum understood that Mr Black would not just lend money secured over the land, but wanted a share in the Company and backup letters as security. He persuaded Margaret Sneddon to attend a meeting with him and Mr Black in the foyer of the Marriott Hotel in Glasgow. He had told her that Ted Black wanted to take his shareholding in GDL, however, Margaret Sneddon had her hackles up at the start, and shortly after the meeting began she took off out of the hotel shouting at Ted Black and Mr MacCallum. Although Mr Black sent an e-mail to Mrs Sneddon on the following day, and although there were some discussions after Mr Black returned from Mongolia in August 2007 (see numbers 15 and 112 of the joint bundle), Mr MacCallum regarded this deal as dead after the Marriott meeting. He did not remember telling Ted Black that Margaret Sneddon was okay with Ted Black buying Mr MacCallum's 50% shareholding in GDL, despite Mr Black's reference to this in his e-mail of 13 August 2007. By this time Mr MacCallum was having doubts about Mrs Sneddon, who did not seem to be taking on board his opinions or the seriousness of his predicament.

[171] At some time after 13 August 2007, Mrs Sneddon sent Mr MacCallum a text telling him that DM Hall had valued the land at £625,000, and she would try to arrange a loan to GDL on the basis of this valuation. By this time Mr MacCallum had met Doug Davidson; this was at a Christmas party at a restaurant in Airdrie, but he could not remember which year. At this party both Mr Davidson and Mr MacCallum had had a drink, and Mr Davidson offered him £50,000 for his shares in GDL there and then. Some months later he spoke to Mr Davidson in relation to a loan, but he did not remember Mr Davidson ever asking him or Fiona to give him a letter authorising a credit search. He never faxed any letter to Mr Davidson authorising such a search, nor, so far as he was aware, did Fiona. Mr MacCallum was shown letter A dated 11/12/07 appended to Mr Davidson's affidavit (no 103 of the joint bundle); he did not type this (he cannot type), he did not know who typed it, he did not sign it, and he did not fax it to Mr Davidson. He was shown letter B attached to that affidavit and he observed that it did look like his wife's signature, but he knew nothing about the circumstances of this document. He did not provide Mr Davidson with a statement of his assets and liabilities, and he was not aware of his wife doing so either.

[172] Mr MacCallum had heard that RBS, Clydesdale and a Building Society were being approached for loans, although he did not know how much. He was aware of the name Trevor Thompson as someone who could help broker the deal and move it forward. He also knew Grant Levett, having been introduced to him by his former accountant Ian Morgan. Mr Morgan told him that one of his clients had just invested £75,000 in a deal involving land near Fort William owned by GDL. Mr Morgan arranged a meeting at a restaurant in Glasgow attended by Mr Levett, Mr MacCallum and Mr Morgan; Mr MacCallum could not remember when this was, but if Mr Kirkham said that this was mid-March 2008 that might be correct. Mr Levett told Mr MacCallum that he and Mr Rowley had invested in the company and it was virtually a done deal. If he was not already involved, he would become involved. Mr MacCallum did not understand the whole scenario, but basically they were aware of his situation and were going to buy into the company. After this meeting, there was another meeting on the same day at the Marriott Hotel attended by Mr MacCallum, Mrs Sneddon and Mr Levett. They talked about a loan to the company and how this would be structured. Mr MacCallum attended this meeting because he was told to do so by Mr Levett; when asked why it was that Mr Levett was telling him to do so, he did not know.

[173] It was at about this time that he first met Mr Kirkham. He had told his friend Chris Philipson that he was trying to obtain a loan to GDL secured over the land, and told him about the applications to RBS, Clydesdale Bank and the Building Society and the difficulties they were having in raising money because of his credit rating. Mr Philipson said that he did not think that any loan would be forthcoming, and arranged for him to meet Mr Kirkham. By this time Mr MacCallum described himself as "completely fried" - he did not know what was happening nor where he was going, and needed help and guidance. He was getting through the day, but not thinking clearly because of the pressure on him.

[174] However, he had no recollection of having a discussion with Margaret Sneddon that it might be easier to obtain a loan if he and his wife resigned as Directors, nor did he remember sending her a letter authorising her to resign them as Directors. He did not remember receiving a letter from Margaret Sneddon typed by her and being asked to return a copy to her and send another copy to Companies House. He was shown the letter dated 21 February 2008 and he was positive that he did not sign this and was not aware that his wife had done so. The document was not created by him, and they had not obtained copies of their own signatures and applied them to the document.

[175] Mr MacCallum was shown the e-mails dated 19 and 26 March 2008 (no 26 of the joint bundle) and was asked if he was aware that these had been sent. He said yes, he would have been aware - Mr Murnin would probably have phoned him. He then said that he did not remember. He then accepted that he was assuming that he would have known about these. By this time he was aware that his finances were causing a problem, and that his connection with the Company was making the loan applications more difficult.

[176] Mr Kirkham told Mr MacCallum that he wanted to meet Margaret Sneddon, so he got in touch with her, probably by phone, and arranged the meeting for 20 March 2008. Doug Davidson was in and out of the meeting. Mr MacCallum introduced Mr Kirkham to Margaret Sneddon as a friend, and he remembered being asked for how long he had been a friend, although he could not remember who asked this. Margaret Sneddon and Mr Kirkham did most of the talking - Stewart MacCallum just listened, because he was preoccupied with raising money. The discussions regarding loan applications were much more general than paragraph 3 of the notes (no 25 of the joint bundle) suggested. Mr MacCallum did not remember any discussions as noted in paragraph 5 of those notes, but he did remember Mr Kirkham floating the idea of Mrs Sneddon buying part of Mr MacCallum's shareholding. He remembered this because it was the last thing that he had, and he was not very keen on the idea, but he was willing to consider any suggestion. He remembered the subject matter recorded in paragraph 7 being discussed, but only in its generality. He also remembered the material recorded at 12.3 to 12.6 being mentioned, but he did not remember this in great detail. His understanding was that Margaret Sneddon wanted to get her expenses from any loan funds, which would then be split 50/50 but this did not lead on to any discussion about the original terms of the agreement. Under reference to paragraph 13, he thought that there was discussion about the possibility of his having to resign as a Director of GDL in order that a loan could be obtained, but he did not remember specific details. He did not want his daughter involved in GDL in any capacity, whether as shareholder or Director.

[177] On 3 April 2008 Mr MacCallum met first with Mr Levett and Mr Rowley in a Glasgow restaurant; he could not remember who set the meeting up, he might have spoken to Mr Levett or Margaret Sneddon might have arranged it. Mr Kirkham met him at the restaurant. On his way to the restaurant Mr Rowley telephoned Mr MacCallum and told him not to mention the cash element of the offer to Mr Kirkham; this was the first time that Mr MacCallum had spoken to Mr Rowley. As soon as he met Mr Kirkham he reported this conversation to him. Mr MacCallum did not remember anything particular about this meeting - it was just another meeting. Levett and Rowley would buy into GDL and would release monies to him and Mrs Sneddon. They would buy a 12.5% shareholding from Mrs Sneddon and a 12.5% shareholding from him, he thought in return for a price of £300,000 in total; he was not sure whether there was any loan included in this. He thought there was a loan to be made to the Company, partly in cash, but he did not know how it was to be structured. He did not tell them that he had resigned as a Director of GDL, nor did he say anything such as "I am a Director and I am not a Director". Nobody said anything at this meeting which was derogatory of Margaret Sneddon, and he did not remember any discussion about a deal or alliance to cut out Margaret Sneddon's interest in GDL.

[178] After this meeting Mr Kirkham observed that he was not impressed with them and the deal did not sound right. He then accompanied Mr Kirkham to Shotts, where they met Margaret Sneddon in a car park briefly, and then went into Mr Morrison's office. Margaret Sneddon did not accompany them. Having gone into Mr Morrison's office, Mr MacCallum went in and out because he had to make several telephone calls on his mobile phone about the factoring agreement for his finances, so he did not hear everything that was discussed. He heard Mr Morrison telling Mr Kirkham about the setting up of GDL, and the likely timescale before the negotiations with HHA might be concluded. After this meeting Mr Kirkham and he met Margaret Sneddon at a hotel down the road. Mr MacCallum did not take notes of the meeting, but he saw Mr Kirkham doing so. He remembered Margaret Sneddon making the remark recorded at paragraph 3.6 of the notes (no 27 of the joint bundle) that if he was to be forced into bankruptcy she would have the opportunity to buy his shares at a knock down price and make a killing; he had heard this before, but he did not think that Margaret Sneddon had made this remark to him herself.

[179] Mr MacCallum was asked when he stopped trusting Mrs Sneddon, and he replied that things were not moving quickly enough; he was in dire straights, and when he tried to take an active part, Mrs Sneddon was not interested in his opinion. They had a big row after she was not interested in Mr Slater's proposal, and their relationship gradually disintegrated after that. His wife had ceased to trust Mrs Sneddon three or four months before he did. By early April 2008 he needed someone with a fresh direction, to be impartial. He had a meeting with Mr Kirkham who suggested they should put GDL on a proper footing and that he should become Mr MacCallum's Alternate Director. He explained that this would mean that Mr Kirkham could speak on his behalf, but Mr MacCallum would remain a Director - Mr Kirkham would act for him vocally. He also explained that it would have to be agreed at a Board Meeting when all the parties to do with GDL were present. Mr MacCallum therefore called Margaret Sneddon and arranged a full Board Meeting, at which Fiona would attend. He followed this telephone call with an e-mail. He was sure that he told Mrs Sneddon on the phone that it was to be a Board Meeting. He explained that Fiona would be there, and he told Mrs Sneddon to bring her husband because it was a Board Meeting. There was no doubt in his mind about this. In the course of this telephone call he confirmed to Mrs Sneddon that Mr Kirkham was acting with his full authority, and as shown in no 31 of the joint bundle he forwarded Mr Kirkham's e-mail to Mrs Sneddon at 8.43am on 16 April 2008. He did not remember any other e-mail about this meeting.

[180] At the meeting on 21 April 2008, Margaret Sneddon arrived late. In general Mr MacCallum's recollection was that the minutes (no 33 of the joint bundle) were accurate. It was proposed that Mr Kirkham be an Alternate Director, and Fiona and he agreed. He could not remember 100% who proposed this. It was something that was discussed right at the start of the meeting, namely that Mr Kirkham would be speaking on his behalf, and Fiona and he were happy with that. On reflection it must have been proposed by Mr Kirkham and he and Fiona agreed to it. He remembered the words "Alternate Director" being used, and Margaret Sneddon was content with this. After this was decided, he and Fiona stayed in the room but he supposed that they sat back from the table. He could not remember who proposed that Mr Kirkham be Chairman, but he remembered that he and Fiona and Margaret agreed to this. He did remember the words "Chairman of the Board" being used, and it must have been Mr Kirkham that used them. It was Mr Kirkham who proposed that he should take notes, prepare draft minutes and circulate them for approval, and everyone agreed to this. After they sat back from the table, he and Fiona only said something if asked. If asked something, they would say that they agreed. This meeting ended on a fairly cordial note, and everyone was happy.

[181] Mr MacCallum did not attend the meeting on 28 April 2008, but he would have seen the minutes of that meeting because Mr Kirkham e-mailed documents to them. However, he could not say with his hand on his heart that he had seen them.

[182] Mr MacCallum did attend a meeting at the Marriott Hotel on 8 May 2008. He thought that this was arranged by Mr Kirkham. It was held in Mr Kirkham's room in the Marriott Hotel in Glasgow. When Margaret Sneddon did not arrive, Mr MacCallum got in touch with her on Mr Kirkham's mobile phone. She took part in the meeting by telephone. He could not remember whether Drew Sneddon spoke on the telephone at the earlier part of the meeting or at about 5pm, but he definitely spoke, shortly and briefly, by phone. He could hear what Drew Sneddon was saying, because the telephone was on speaker phone, but he could not remember what he was talking about. He remembered the question of Mr Kirkham being appointed a Director in his own right being discussed, but he could not remember Drew Sneddon saying anything about this proposal. He remembered Fiona proposing that Mr Kirkham should be a Director in his own right, and he knew that she was going to do this. Both the Sneddons were against this. He did not remember any discussion about David Kirkham ceasing to be an Alternate Director for Fiona during this meeting. There was then a break, and they reconvened later that afternoon. At no time during either part of this meeting, nor at any previous time, did Margaret Sneddon ever say to Fiona or him that they were no longer Directors of the Company.

[183] Mr MacCallum agreed with the sentiments expressed in the letter dated 12 May 2008 (no 50 of the joint bundle). After this, Mr MacCallum remembered speaking to Margaret Sneddon by telephone and telling her that there was going to be a meeting at Fort William. He sent her the e-mail dated 16 May 2008 which is no 67 of the joint bundle, which stated that "David, Fiona and I are convening a Board Meeting next week", and he accepted that no date was given in the e-mail. He could not recall whether any date had been talked about. After this e-mail was sent he did remember speaking to Margaret Sneddon on 19 May, although he could not remember what was said in that conversation and in particular could not remember if the date had been clarified with Mrs Sneddon. He and Fiona and David Kirkham went ahead with the meeting at Fort William on 20 May 2008; they were not expecting either of the Sneddons to attend, because of Mrs Sneddon's e-mail dated 19 May. He and Fiona attended as Directors; David Kirkham attended as Director, Alternate Director for them and Chairman. He remembered the discussion recorded at paragraph 5.2.1 of the minutes (no 53 of the joint bundle); he and Fiona suggested this, and the proposition was passed. He also remembered the proposition mentioned in paragraph 5.2.2 relating to Mr Kirkham's Chairmanship of the Board was discussed and passed, although without the minutes he would not have a distinct recollection. He wanted Mr Kirkham to guide them and be on the Board - everything was always deadlocked. The deal with Ted Black was "blown out of the water" by Margaret Sneddon.

[184] With regard to the letter from a third party implying that he was no longer a Director of GDL, narrated in paragraph 5.3.4, Mr MacCallum could not remember whether he phoned Margaret Sneddon before the meeting or in the middle of the meeting. He showed the letter to Mr Kirkham who contacted his office in Yorkshire. He remembered the resolution that Margaret Sneddon be asked to explain and justify her actions, recorded at paragraph 5.3.8, although he did not remember anything about Sneddon Morrison being put on specific notice in relation to this matter. He remembered all the other resolutions referred to in the minutes; Malcolm Smith was a business associate of David Kirkham's, and it was Mr Kirkham's suggestion that he should be appointed Company Secretary in place of Margaret Sneddon.

[185] Mr MacCallum was shown the letter from Mr & Mrs Sneddon dated 9 June 2008 (no 68 of the joint bundle) and said that he was aware that creditors of GDL were pressing for payment of debts due to them. He stated that he never agreed to a loan being made to the company to enable the land to be bought from his mother; the money for the purchase of the land came from Mrs Sneddon through the Company. The whole idea was that Margaret Sneddon would bring it to the stage of planning consent, and he would contribute the land. In June 2008 Margaret Sneddon knew that his financial position was such that he could not afford to invest money into the Company.

[186] In cross-examination Mr MacCallum stated that it was he who told Margaret Sneddon what price his mother wanted for the land. Margaret Sneddon suggested that £20,000 would be a fair price; he suggested £20,000 and in addition a bungalow for his mother's retirement. Negotiations took about four months to be concluded; the agreement reached was that Margaret Sneddon would bring the project to planning and provide the financing and expertise, and pay Mr MacCallum's mother, and he would make sure that this mother was happy and put the land into the Company. He was shown the averments at page 11c to 12a/b of the Closed Record in his own action against Mrs Sneddon and others, but he had never seen these. It was a very basic agreement, he said - Margaret Sneddon would finance it, and he would provide the asset. At the time that the agreement was reached, there was no definite proposal as to what the development would be - it might be recreational, or residential; as long as there was a development, Margaret Sneddon would fund it.

[187] Mr MacCallum remembered walking the land with Mr Morrison, and Mr & Mrs Sneddon. He remembered a conversation in the rain beside the bottle dump. It was put to him that Margaret Sneddon said words to the effect of "Stewart, I'll get it to planning and get my money off the top, and then we'll split it 50/50", but he never heard that. It was not said (although he was not calling Mr Morrison a liar).

[188] Mr MacCallum was shown the minutes of the meeting with HHA on 10 April 2008; under reference to paragraph 3.1 of those minutes he stated that his understanding was different. He understood that in order for the development proposal to be viable there had to be more than 26 houses on the land owned by GDL alone.

[189] He did not dispute that GDL was formed within days of his signing a separation agreement with his wife. The separation agreement was signed because they had had their troubles, and he wanted to protect his home and children; it was put to him that his wife had denied in her evidence that there were any marital difficulties at that time, and he observed that she was entitled to her view and he was entitled to his. It was suggested to him that the truth was they did not separate, and he replied that it was not great, but..."well, we're still here today".

[190] It was part of the verbal agreement about the purchase of the land from his mother that Margaret Sneddon would pay his mother's legal fees, and his mother's solicitors were told this, but he did not think that there was anything in the missives about this, and Margaret Sneddon did not pay his mother's legal fees. With regard to advisors on the development project, Mr MacCallum preferred Mr Moss to Mr Reilly; he was not overly impressed with Mr Reilly, and Mr Reilly was wrong to state that he had been very complimentary about him. Mr MacCallum denied being at a meeting over lunch at a hotel with Mr Reilly at which the latter's fee was discussed; he never heard any discussion about Reilly's fee.

[191] From the outset Mr MacCallum asked Mrs Sneddon if he could borrow money from GDL and she said that this would not be a problem. He therefore approached several people to lend money to the Company, secured over the land. First he introduced Mr Slater to Mrs Sneddon, but her reaction was that unless he had £3.5 million in the bank, he should go away. Next he approached Mr Ferguson, and thereafter Ted Black. He accepted that while he was discussing possible loans or sales of shares with these individuals, HHA was interested in purchasing the land; although their formal offer was dated 22 August 2007, they had expressed positive interest. He accepted that he had said that by August 2007 he was not happy to continue in business with Margaret Sneddon, but he was not good at times or dates. Margaret Sneddon was aware of his financial difficulties from day one and three or four months into the project he told her that he needed between £125,000 and £150,000. He accepted that he told Ted Black in July 2007 that "£100K/£125K would sort everything out".

[192] Around this time Mr MacCallum spoke with Doug Davidson. Mr MacCallum had had credit searches done on him before, but Mr Davidson never asked him for details of his finances or his wife's finances, and he never asked for authority to undertake a credit search. Mr Davidson told him about his approach to the Clydesdale Bank, and that this was successful at the initial stages but failed at the final stage of the local lending level, but Mr MacCallum had never had an account with the Clydesdale Bank. He did not believe that this application foundered at the local level. He did not know that RBS applications were being progressed - he only heard one lady from the Bank. He was asked if he was suggesting that these applications were not being processed, and he replied "yes, I possibly am". There never seemed to be any progress on this front.

[193] Mr MacCallum could not remember Doug Davidson ever saying that a credit search would be necessary, although he would have had no objection to a credit search being carried out. His evidence was that letter A attached to Mr McCrae's report, dated 11 December 2007, was not signed by him. He did not know who had signed it. Mr Davidson's evidence that Mr MacCallum agreed by telephone to a credit search being carried out, and that this letter was faxed to Mr Davidson within a matter of minutes, was wrong. Mr MacCallum was also asked about the timing of a text from Margaret Sneddon to him, when she texted "Yippee" and said that the land had been valued at about £600,000, and it was suggested that this could not have been sent when he stated it was sent, because the valuation from DM Hall had not been prepared at that time; Mr MacCallum's response was that times and dates were not his strong point.

[194] Mr MacCallum agreed that Mrs Sneddon had explained to him that his poor credit rating was causing a difficulty in obtaining a loan from RBS and it might have been at that time that she suggested that he might want to resign as a Director, although he could not remember. He certainly never saw the letter dated 21/02/2008 before these court proceedings were commenced; he did not sign it, nor did he procure that his signature and his wife's signature were attached to it. He never told anybody that he had resigned as a Director of GDL; Margaret Sneddon, Doug Davidson, Grant Levett and Colin Rowley were all lying when they gave evidence to the contrary. He did not know where the letters came from but they did not come from him. He thought that Margaret Sneddon had forged these letters.

[195] Mr MacCallum was referred to Mr Morrison's e-mail dated 19 March 2008 to Mr Murnin (no 26 of the joint bundle); Mr Murnin would have told him about this e-mail and would have sent him a letter and would have spoken to him on the phone. He agreed that Mr Murnin would have discussed this with him because it was important. By this time he had already met Mr Kirkham, but he did not know why he did not tell him about this e-mail - he did not know if he told him or not. He accepted that it did not look as if Mr Murnin had replied to this e-mail, but he imagined that he would have done so. He was asked if he had instructed Mr Murnin to reply, and he said "yes, I possibly did"; in answer to a question from the court, he stated that he could not remember clearly.

[196] Mr MacCallum could not remember if he had met Grant Levett before he attended the meeting at Bathgate on 20 March 2008. The terms of paragraph 4.1 of the project notes (no 25 of the bundle) did not really assist his recollection. His general memories of the meeting were quite vague, but it must have been the case that Mr Kirkham's impression was that Margaret Sneddon was not very keen on the proposals from MMH.

[197] There were several meetings on 3 April 2008. The first was set up by his accountant Mr Morgan with Mr Levett and Mr Rowley and Mr Kirkham in a Glasgow restaurant. Mr MacCallum did not tell them that he was not really a Director, nor that he was not a Director of GDL. He had never met Colin Rowley before, but Mr Rowley phoned him just before the meeting and told him not to mention the cash element of the offer to Mr Kirkham. Mr MacCallum did not want to defeat Margaret Sneddon or enter into an alliance against her, he just wanted progress. At the next meeting in Mr Morrison's office, Mr Morrison simply answered Mr Kirkham's questions. The third meeting was at the hotel in Shotts which was recorded in Mr Kirkham's notes (no 27 of the joint bundle). He described Margaret Sneddon's suggestion that she might put her shares into a family trust, recorded at paragraph 2.2 of those notes, as "just a bit of a spat, that's all". At that time it was expected that binding missives with HHA would be completed in two to three weeks. With regard to the MMH proposal, neither Mr Kirkham nor Mrs Sneddon found this attractive.

[198] On 10 April 2008 Mr MacCallum, Mr Kirkham and Mr Phillipson met Susan Torrance of HHA. It was Mr Kirkham's idea that Margaret Sneddon should not be told about this meeting, and Mr MacCallum went along with this. Mr MacCallum was not dismayed by the timescale of the development discussed at that meeting, because he always knew that it would be a lengthy process.

[199] Mr Kirkham then asked Mr MacCallum to call a Board Meeting, and so Mr MacCallum telephoned Mrs Sneddon, and thereafter told Mr Kirkham that he had done so. He was referred to the pleadings in the action at his instance against the Sneddons at page 19A of the Closed Record, where it is averred that the meeting was called by e-mail, and there is no mention of it being called by phone. Mr MacCallum said that he must have told his solicitors that the meeting was called by phone, and it has always been his position that it was called by phone. The minutes of the meeting (no 33 of the joint bundle) were accurate, and Margaret Sneddon had not told the truth about this. Mr MacCallum did not attend the meeting at the Marriott Hotel on 28 April 2008, but Mr Kirkham did discuss with him the offer made by Margaret Sneddon and referred to in paragraph 3.5.2 of the minutes (no 38 of the joint bundle). Mr MacCallum agreed that the total value of this offer was about £400,000. Mr MacCallum was not interested in this, and did not discuss it with Mrs Sneddon nor tried to negotiate with her on it. He could not remember why this was; he imagined that at that time he was still hoping to retain the asset, and there were other proposals in the air such as a loan from RBS or others. It was probably because he did not think it was sufficient. He never got back to Margaret Sneddon with any counter proposal. When asked why not, he could not remember; he did not know. He agreed that now Mr Kirkham had his shares in GDL. Mr MacCallum did not get these shares independently valued, and he could not remember when Mr Kirkham got them. His problems with HM Revenue & Customs were still not resolved, and he had no other assets or sums due to him which might satisfy them. He was no longer a shareholder of GDL.

[200] The next meeting, at the Marriott Hotel on 8 May 2008, took place over some hours, with an adjournment in the middle. The only thing that Drew Sneddon said over the telephone, when asked if he recognised David Kirkham as a Director, was "indeed I do not". Mr MacCallum's evidence about this meeting was correct, and Mrs Sneddon's was not.

[201] The e-mail dated 12 May 2008 from Mr Kirkham to Mrs Sneddon, which was copied to him, stated in the first paragraph that Stewart "has alternative strategies that are considered to be perfectly viable", but Mr MacCallum could not remember what these were. He could only imagine that he did not want to say that he had no other options available to him. On 16 May 2008 he sent the e-mail to Mrs Sneddon about a Board Meeting in Fort William (no 67 of the joint bundle). This meeting took place on the same day that he received a letter from a third party suggesting that he was no longer a Director of GDL. Fiona did not mention anything to him about her having received a similar letter. He usually opened his mail about 10 am. The meeting began at 12.30; he could not remember whether he opened this letter before the meeting or during it. He then stated that he opened it during the course of the morning, he did not remember when, and passed it straight to Mr Kirkham. Mr Kirkham would not have been there for long before the start of the meeting at 12.30, but he could not remember whether it was shortly before 12.30 that he opened the letter. He did not remember whether Fiona was there at the beginning of the meeting or if she came in later. Mr Kirkham suggested that he should contact Margaret Sneddon about this letter, so he telephoned her. She responded that he had asked her to resign him. He denied that he had then said words such as "oh, that's why I got David Kirkham involved - I forget what I have done".

[202] The offer which was made by Margaret Sneddon was not acceptable because she was the person making it - it was not really a question of the figures involved. Whatever she offered him, he would not have accepted it.

[203] In re-examination he said that Mrs Sneddon's "yippee" text to him came before DM Hall's valuation report. It was put to him that the report was dated 6 March 2008 and the inspection was carried out on 30 January 2008, and he was asked if he could recollect when the text was received, but he could not remember this. He reiterated that he had never signed the letter dated 21/02/2008, nor did he apply his signature or his wife's signature to it. With regard to the e-mail from Mr Morrison to Mr Murnin dated 19 March 2008, he did not remember if Mr Murnin did contact him about this. He was 99% certain he would have done so, but he could not remember when it happened. He would have told Mr Kirkham everything, including any information which had come from Mr Murnin.

Submissions for Mr & Mrs Sneddon
[204] In support of parts (i) and (ii) of the first conclusion in the action at the instance of Mr & Mrs Sneddon, senior counsel for the Sneddons referred me to the evidence from several of the witnesses as to the steps which were being taken to obtain a loan for GDL to assist Mr MacCallum with his financial difficulties. Margaret Sneddon was not primarily involved in these efforts to raise funds, but passed this to Doug Davidson and Trevor Thompson. Despite Mr MacCallum's belief that these applications were not being progressed, and despite Mr & Mrs MacCallum's lack of trust in Mrs Sneddon, the evidence supported the view that efforts were being made to obtain this funding for Mr MacCallum's benefit. Although Mr Kirkham was concerned at the lack of paperwork, this was explained by Mr Davidson (and Mrs Sneddon) that this would leave a "footprint" which would further adversely effect Stewart MacCallum's credit rating. The evidence of Messrs Levett & Rowley, and of Jennifer Mailey and Bridget Heaney, all supported the view that efforts were being made on behalf of Stewart MacCallum to obtain finance by means of a loan to GDL secured over the land, and that the main difficulty facing these efforts was Stewart MacCallum's (and to a lesser extent Fiona MacCallum's) bad credit rating. Jennifer Mailey was of the view that the development was too speculative, and RBS had concerns about the relative inexperience of the parties for such a development, but County Court judgments against the MacCallums were a serious obstacle, and it would make no difference if they stepped down as Directors, as these judgments were on the bank's file. Bridget Heaney was clear that the application she dealt with was only in the names of Mr & Mrs Sneddon; although she denied making any suggestion about the application being looked on more favourably if the MacCallums were not Directors of GDL, she went on to say that "of course this was going to make a difference". Her evidence was to the effect that the MacCallums were not Directors of GDL when she was concerned with the loan application. A valuation from DM Hall was obtained, and the court should be satisfied that reasonable efforts were being made to obtain a loan, and that the MacCallums' credit rating was an obstacle to this.

[205] Against this background, the court should accept the evidence of Mrs Sneddon, who took the view that adverse credit searches against the MacCallums would be a problem. Although both Jennifer Mailey and Bridget Heaney stated that they did not tell Mrs Sneddon that Mr & Mrs MacCallum would have to resign as Directors before an application for a loan would be granted, the court might have to consider whether they were simply not prepared to admit that they had made this suggestion outwith their remit. Margaret Sneddon's evidence that she typed and sent the two letters and two envelopes (one to be returned to her and one to Companies House) and that she received one of these with a copy of the signed letter should be accepted, as should her evidence that she then telephoned Mr MacCallum and explained that it would take 48 hours for the resignation to show on the Companies House system after which she would take the revised form to the bank.

[206] Mr McCrae's evidence that nobody can sign their signature identically on two or more occasions was not challenged, but his opinion was to the effect that the signatures on the "resignation" letter were not traced or copied, and it was highly probable that they had come from an original signature. Senior Counsel withdrew the objection which she had earlier made to the competency and relevancy of Mr McCrae's report and evidence. However, she pointed out that letters A and B appended to Mr McCrae's report were sent to him by the solicitors acting on behalf of Mr & Mrs Sneddon, after the court proceedings had been initiated. There was no need for any documents to be sent; it was stretching credibility to suggest that the Sneddons would have instructed their solicitors to send these documents if Margaret Sneddon had had anything to do with forging the letters.

[207] However, senior counsel conceded that if the court accepted Mr McCrae's evidence, parts (i) and (ii) of the first conclusion would fall to be refused. Mrs Sneddon's good faith was not relevant - she was entitled to accept this letter as genuine and to rely on it. As she observed, it was only a paper exercise to enable funding to be obtained to assist with Mr MacCallum's financial difficulties.

[208] As senior counsel for the Sneddons was about to make her submissions in relation to part (iii) of her first conclusion, senior counsel for the MacCallums and Mr Kirkham intervened to intimate that he would not be submitting that Mr Kirkham was appointed as a Director of GDL in his own right, but that this position was without prejudice to the arguments he would make regarding Mr Kirkham's position as an Alternate Director. In light of this, senior counsel for the Sneddons turned to consider the purported Board Meeting on 21 April 2008. She accepted that no 33 of the joint bundle bears to be minute of a Board of the Directors of GDL authenticated by Mr Kirkham, and that as a result of sections 248 and 249 of the Companies Act 2006 the onus rested on the Sneddons to displace the terms of the minutes. The first matter which fell to be considered was how the meeting was called. Mr Kirkham conceded that he had no standing in the company to entitle him to call a meeting, which would have to have been done by a Director. If the court found that Stewart MacCallum was a Director of GDL at the time, it was accepted that he was in a position to call a Board Meeting. However, the question remains whether he asked Margaret Sneddon to convene a Board Meeting or simply a meeting as had previously occurred to explore possible solutions to his financial difficulties. In evidence, Mr Kirkham stated that he had asked Stewart to telephone Margaret Sneddon and convene a Board Meeting, and that Stewart had told him that he had done this. Stewart MacCallum's position on Record was that the meeting was called by e-mail dated 14 April 2008 (ie that sent by David Kirkham to Margaret Sneddon, no 29 of the joint bundle, not the e-mail sent on 16 April 2008, no 31 of the joint bundle). However, he was present in court when Mr Kirkham gave evidence that he (Kirkham) was not in a position to call a Board Meeting; Mr MacCallum's evidence was not consistent with his case on Record, and he was not truthful when he said that he had telephoned Margaret Sneddon, that he had specifically told her that this would be a Board Meeting, and that he had told his solicitors that this was how the meeting was called. The court should prefer Margaret Sneddon's version of events, namely that Stewart MacCallum telephoned her to ask her for a meeting but made no reference to this being a Board Meeting of GDL nor for the need for her husband to be present. Moreover, there was nothing in the e-mails (no 29 and 31 of the joint bundle) to suggest that this was going to be a Board Meeting. Fiona MacCallum stated that she was present when the telephone call was made, but could not be sure that she heard the words "Board Meeting", nor could she be sure whether this call was made before or after either of the e-mails. She stated that she sent another e-mail to Margaret Sneddon about the meeting, and to make sure that Drew Sneddon would come; it was surprising, given Mr Kirkham's desire to obtain as much documentary evidence as possible, that this e-mail was not lodged as a production and there was no credible evidence to explain its absence. Standing the evidence from all sides about Mrs Sneddon's antipathy towards Mr Kirkham, it was inconceivable that she would not have ensured that her husband was present if she believed this was going to be a Board Meeting. There was nothing in either of Mr Kirkham's other e-mails sent at about this time (on 14 and 19 April, nos 30 and 32 of the joint bundle) to suggest that the meeting which he was planning to attend was to be a Board Meeting. The court should find that this was not a meeting of the Directors of GDL.

[209] If, contrary to the above submission, the court found that the meeting of 21 April 2008 was a meeting of the Company, both Stewart and Fiona MacCallum stated in their evidence that it was Mr Kirkham who proposed that he should be approved as the Alternate Director for each of them. Again, standing Mrs Sneddon's antipathy towards Mr Kirkham, the court should accept Mrs Sneddon's evidence that she would never have agreed to his being appointed as Chairman of the Board, and that she did not do so, her understanding being that he was simply going to chair that meeting. Mr & Mrs Sneddon have therefore discharged the onus placed on them by section 249 of the 2006 Act.

[210] The meeting on 28 April 2008 was only attended by Mrs Sneddon and Mr Kirkham, and again Mrs Sneddon did not understand that this was to be a Board Meeting, nor was it properly constituted as such. At that meeting there was no agreement that there should be another meeting. Mrs Sneddon made her position clear to Mr Kirkham at the meeting, and in her subsequent e-mail of 1 May 2008, that she did not agree to appoint him as a Director. The next meeting was called by Mr Kirkham in his e-mail of 1 May 2008; the minutes of that meeting describe those present as Mr & Mrs MacCallum as Directors and Mr Kirkham as Alternate Director and Chairman. Despite what is recorded at paragraph 4.2.1 of the minutes, it is now accepted on behalf of the MacCallums and Mr Kirkham that he was not appointed a Director in his own right. The flaw in the first meeting continued through to the minutes of this adjourned meeting. There was a dispute as to when Drew Sneddon attended the meeting (if he attended at all), and whether the call was a conference call or on speaker phone at the Marriott Hotel or not. In any event, Drew Sneddon's evidence that he was asked by Mr Kirkham "do you recognise me as a Director" to which he replied "indeed I do not" was supported by both Margaret Sneddon and Stewart MacCallum. There was no suggestion by Mr Kirkham in his evidence that the first part of the meeting was on a conference call or similar form of communication equipment. Senior counsel did not accept that this was a Board Meeting, and on the evidence it was not compliant with article 14 of GDL's articles of association. Moreover, Fiona MacCallum's evidence was that she had never revoked Mr Kirkham's authority to be her Alternate Director; it was therefore not open to her to make a resolution such as was noted at paragraph 4.10.8 of the minutes.

[211] The notice purporting to convene a Board Meeting in Fort William thereafter was deficient in several respects. First, the e-mail giving notice of the Board Meeting did not specify a date. Second, it was clearly sent at a time when Mr Kirkham considered himself to be a Director in his own right - the e-mail begins with the sentence "David, Fiona and I are convening a Board Meeting next week", but that could not be correct - it must have been either Stewart and Fiona MacCallum, or David Kirkham on their behalf, but it could not have been all three of them. The same difficulty arises throughout the meeting on 20 May 2008 at Fort William. Although senior counsel for the MacCallums and Mr Kirkham no longer relied on paragraph 5.2.1 of the minutes (no 53 of the joint bundle) to maintain that Mr Kirkham was a Director of the Company in his own right, he continued to rely on paragraph 5.2.2 regarding Mr Kirkham's appointment as Chairman of the Board. Fiona MacCallum proposed this, but she had not revoked Mr Kirkham's appointment at Alternate Director, and nowhere in the Minutes was it explained when either of the MacCallums was acting as a Director, or when Mr Kirkham was acting as his or her Alternate Director. There was a discrepancy between Fiona MacCallum's evidence and the resolutions purportedly passed. Senior counsel had doubts as to the status of the MacCallums when they were making the remarks and were party to the resolutions noted at paragraphs 5.3.12 to 5.3.14 of the minutes, particularly standing the fact that the only notice that these matters might be raised was the letter dated 12 May 2008 from Mr Kirkham to Mrs Sneddon.

[212] Senior counsel summarised her position as follows: the meeting on 21 April 2008 was not a Board Meeting, because Stewart MacCallum did not ask Margaret Sneddon to call a Board Meeting. Moreover, Margaret Sneddon never agreed to the appointment of Mr Kirkham as Alternate Director or as Chairman of the Board. These defects coloured everything that happened in relation to the following meetings, which were themselves not "adjourned meetings of the Board". Fiona MacCallum's evidence that she never revoked her appointment of David Kirkham as her Alternate Director further underminds the propriety of the following meetings.

[213] Article 1 of the Articles of Association of GDL incorporated the regulations contained in Table A. Paragraphs 65 to 68 of Table A were relevant. Paragraph 65 required the appointment of someone other than another Director as Alternate Director to be approved by resolution of the Directors. Paragraph 66 provided that an Alternate Director shall be entitled to received notice of all meetings of Directors...to attend and vote at any such meeting at which the Director appointing him is not personally present, and generally to perform all the functions of his appointer as a Director in his absence. Paragraph 68 provides that any appointment or removal of an Alternate Director shall be by notice to the company signed by the Director making or revoking the appointment or in any other manner approved by the Directors. It was clear from these provisions that an Alternate Director cannot vote at a meeting at which the Director appointing him is personally present. Moreover there was no evidence that notice to the company signed by either Stewart or Fiona MacCallum was given appointing him or removing him as Alternate Director, nor any record that a different manner of appointment or removal was approved by the Directors.

[214] Returning to the various remedies sought in the action at the instance of Mr & Mrs Sneddon, senior counsel accepted that if the resignation letter dated 21/02/2008 was found to be a forgery, this gave her a difficulty in relation to parts (i) and (ii) of the first conclusion. Part (iii) of the first conclusion was no longer opposed and she insisted on it. If she was correct in her submissions about the way in which the various meetings had proceeded, then the meeting on 20 May 2008 did not have power to remove Mrs Sneddon as Company Secretary and to appoint Malcolm Smith in her place, so part (iv) of the first conclusion should be granted. With regard to the second conclusion, senior counsel did not move for decree in terms of parts (i) or (ii). However, for the reasons outlined above, decree should be granted in terms of parts (iii) - (vi) of the second conclusion. Senior counsel made no submission in support of the third or fourth conclusions, nor in respect of her fourth plea-in-law.

[215] Turning to the counterclaim for Mr Kirkham in the same action, if the court took the view that the letter of 21/02/2008 was a forgery, senior counsel would not oppose parts (i) or (ii) of the first conclusion, but she opposed parts (iii) and (iv) on the same reasoning as outlined above. Again, if the court took the view that the letter was a forgery, she did not oppose decree in terms of the second conclusion. The third conclusion was no longer relevant.

[216] With regard to the action at the instance of Mr & Mrs MacCallum, senior counsel's position rested on the same reasoning as in the other action. It followed that if the court was satisfied that the letter of 21 February 2008 was a forgery, the first two branches of the first conclusion should be granted, but the remaining three branches should be refused. On the same basis, if the letter was a forgery, senior counsel did not opposed decree in terms of the second conclusion. With regard to the third conclusion, senior counsel did not oppose the granting of decree in terms of the first four heads, but she did oppose the fifth head in relation to the resignation of Mr Kirkham.

Submissions for Mr & Mrs MacCallum
[217] Senior counsel tendered outline submissions which form no 36 of process; I do not seek to repeat these at length here, but have taken them into account together with the submissions made at the bar.

[218] Senior counsel began by considering the relevant rules and principles of company law. It was the duty of Margaret Sneddon as the Secretary of GDL, at the request of a Director, to call a meeting of the Directors, and that notice need not be in writing (Table A, articles 88 and 111). He accepted that it was prima facie necessary to give notice to each Director in order to convene a Board Meeting, but the requirement to give notice is not the same as a requirement that such notice has to be received by every Director in order to make the meeting valid. Furthermore, no Director has a right to veto the holding of a Board Meeting because he declines to attend - Colin Gwyer & Associates Ltd v London Wharf (Limehouse) Ltd [2002] EWHC 2748 (Ch), [2003] 2 BCLC 153, particularly at paragraphs [60] to [62]. The notice of a Directors Meeting need not contain notice of the business to be discussed at the meeting, even if that business can properly be called "extraordinary" - La Compagnie de Mayville v Whitley [1896] 1 Ch 788. A Director cannot invalidate a properly summoned Board Meeting by declaring that he does not recognise it as such, or by refusing to attend - Smith v Paringa Mines Limited [1906] 2 Ch 193. Any Director claiming that he has not received adequate notice of a Board Meeting must state his objection as soon as reasonably possible after he discovers that a meeting to which he objects has been held - Browne v La Trinidad (1887) 37 ChD 1.

[219] Sections 248 and 249 of the Companies Act 2006 were important in the present case. Where it is suggested in relation to any of the Board Meetings that the meeting was not duly held and convened, it is for the person arguing that to prove it; if it is suggested that the minutes are inaccurate in recording the proceedings at the meeting, again the onus lies on the person claiming the inaccuracy to prove it; and where any appointment was made at the meeting, the onus lies on the person disputing its validity to prove this. There is therefore a heavy onus on the Sneddons. Section 161 of the 2006 Act and Article 92 of Table A are also relevant regarding the validity of acts of Directors. These provisions apply not only as between the company and third parties, but also in relation to the internal affairs of the company - Dawson v African Consolidated Land and Trading Company [1898] 1 Ch 6; British Asbestos Co Ltd v Boyd [1903] 2 Ch 439; Channel Collieries Trust Ltd v Dover, St Margaret's and Martin Mill Light Railway Co [1914] 2 Ch 506. Of course there must be limits to the application of these provisions, which are designed to "deal with slips or irregularities in appointment, not with a total absence of appointment, and still less with a fraudulent usurpation of authority" - Morris v Kanssen [1946] AC 459, per Lord Simonds at 472.

[220] Even where proceedings at a Board Meeting are invalid and not otherwise saved by the provisions of the 2006 Act or the articles, the approval by the Board at a subsequent validly called meeting of the minutes of the invalid proceedings operates as an implicit ratification of the business transacted at the earlier meeting and is not merely to be regarded as an acceptance that those event took place - In Re Portuguese Consolidated Copper Mines Ltd (1890) LR 45 Ch.D 16; Municipal Mutual Insurance Ltd v Harrop [1998] 2 BCLC 540. In the present case it was wrong to view each meeting as an adjournment of the previous meeting; although there was one adjourned meeting, the rest were simply meetings of the Board. Otherwise, the entire transactions of the Board after a technically invalid meeting would be invalid. It was necessary to look at each meeting individually, and if that meeting was valid, the approval of the minutes of a previous meeting is an implied ratification of the business transacted at the earlier meeting, on the basis of Portuguese Consolidated Copper Mines.

[221] The appropriate way of approaching questions as to the effectiveness of acts carried out at any Board Meeting of GDL is to ask the following questions:-

(i) In relation to each Board Meeting, do there exist minutes recorded in accordance with section 248 of the 2006 Act? There are such minutes (nos 33, 38, 46 and 53 of the joint bundle). Section 249 of the 2006 Act therefore applies, and the onus rests on Mr & Mrs Sneddon to prove that any such meeting was not duly convened and held, that any proceedings at the meeting did not take place, or that any appointment at the meeting was invalid.

(ii) If there is a claim that a meeting was invalidly convened or held because of a defect in the notice, does that defect relate to a failure to send the notice to someone entitled to be sent it, rather than to the content of the notice (La Compagnie de Mayville)? Further, did any person claiming that he was entitled to be sent a notice but was not take that objection timeously (La Trinidad)? In the present case there is no evidence that any objection was taken to the manner of calling any Board Meeting at or around the time of the meeting or once it became known to the person to whom notice was not sent that the meeting had in fact occurred. The objection arises for the first time in these proceedings, which is too late.

(iii) If any meeting was invalidly called, was there subsequent approval of the minutes of that meeting at a properly called meeting? In this case, the minutes of each of the meetings of 21^st and 28^th April and 8^th May were approved by the subsequent meeting. The result is that the business at the previous meeting was impliedly ratified.

(iv) If the act of any person acting as a Director is criticised on the ground that there was a defect in his appointment or a lack of entitlement to vote, has it been shown that the act in question is not validated by section 161 of the 2006 Act or article 92 of Table A?

[222] Senior counsel then turned to consider the evidence in relation to each of the conclusions sought by the various parties in these proceedings. His submissions in this respect are set out clearly at pages 6 - 20 of his outline submissions, all of which I have taken into account; I seek at this point only to give a flavour of what is contained in those submissions.

[223] The court should accept the evidence that neither of the MacCallums signed the letter dated 21/02/2008. Mr McCrae's evidence was uncontradicted by cross-examination or contrary evidence, and was to the effect that each of the signatures were copies. The similarity between the earlier credit authorisation letters and this letter is striking. Mrs Sneddon admitted having typed the resignation letter but not the credit authorisation letters. Mrs Sneddon stated that she received the signed letter from the MacCallums in the post and only noticed later that the document was a copy. By contrast, Mr Morrison stated that the document which Mrs Sneddon gave to him was a fax, not a letter, and that he was told by Mrs Sneddon that it was received by fax. (There were doubts about Mr Davidson's evidence as to the receipt of the credit authorisation letters as well). Mrs Sneddon could not explain why she made returns showing Stewart MacCallum as having resigned on 17 March and Fiona MacCallum as having resigned on 18 March.

[224] Mrs Sneddon's position was that she had no motive to see the MacCallums resign as Directors, except to assist Stewart MacCallum in obtaining money by means of a loan to GDL. However, there was a lack of evidence to support the view that the loan applications were refused as a result of Stewart MacCallum's credit standing. There was no evidence as to why the applications to Clydesdale Bank, Allied Irish or the Building Society failed. Both Mailey and Heaney denied suggesting that an application might go better if the MacCallums were to resign, and the applications failed for completely different reasons. Mrs Sneddon's suggestion that the resignations were a "paper exercise" is inconsistent with the fact that when the MacCallums made it clear to Mrs Sneddon after 20 May that they did not agree that they had resigned, rather than reinstating them as Directors, Mrs Sneddon "resigned" them again on 12 June 2008. Moreover, Mrs Sneddon's letter of 9 June 2008 was an attempt to dilute Mr MacCallum's shareholding, which could not have been carried out if the MacCallums remained on the Board. Once Mrs Sneddon had control of the Board, Mr MacCallum's £2 shareholding could be diluted into worthlessness. The amount of new issue shares proposed was £75,000 - the sum which it was suggested was paid by Rowley and Levett to Mrs Sneddon. Mrs Sneddon said that she had no idea where the new money was to come from.

[225] Little or no weight should be attached to the evidence of those witnesses who claimed to have heard Stewart MacCallum state that he had resigned his Directorship. Davidson, Levett and Rowley were all members of Margaret Sneddon's circle. Mr Davidson had already fallen out with Mr MacCallum at the Christmas party. Mr Morrison did not have any direct knowledge about this, having heard about it only from Mrs Sneddon, but his independence and truthfulness was far from beyond criticism. Messrs Rowley and Levett were neither credible nor reliable - their business operated from an accommodation address, with their domestic partners the nominal Directors, and with no explanation as to how they earn their claimed personal income. They were not people upon whom the court could place reliance. Neither Mailey nor Heaney supported the Sneddon position; only the "Sneddon inner circle" supports Mrs Sneddon's version.

[226] Moreover, Mrs Sneddon's version of events has changed radically in the course of these proceedings. In October 2009 she sought to amend her pleadings to aver that she had been asked by Stewart MacCallum at the date of the incorporation of GDL not to name him as a Director, and she agreed to do this, with the result that he was never a Director of GDL. In evidence, she accepted that this was entirely untrue, and this was attributed to "some sort of false memory syndrome". The witness who might have shed light on this, namely the secretary whom Mrs Sneddon shared with Mr Davidson, was never called as a witness. This episode sheds light on Mrs Sneddon's lack of credibility. Taking all of the above factors into account, the court should not be satisfied that either Stewart or Fiona MacCallum resigned as a Director of GDL.

[227] As indicated above, senior counsel did not oppose the granting of decree in terms of the third branch of the first conclusion in the action at the instance of the Sneddons; it was accepted that Mr Kirkham was not a Director of the company in his own right, but this was without prejudice to arguments as to the validity of acts which he did as a Director before that defect was appreciated, and also with regard to his status as an Alternate Director.

[228] The fourth branch of the first conclusion turns on the validity of the resolution to appoint Malcolm Smith as Company Secretary of GDL at the meeting on 20 May 2008. Signed minutes of that meeting exist, so the presumption contained in section 249 of the 2006 Act applies. Notice was given to every Director - Stewart MacCallum sent an e-mail (no 67 of the joint bundle) to Mrs Sneddon telling her that a Board Meeting was being convened next week. Although that e-mail did not specify the exact date, she replied confirming that neither she nor her husband would be able to attend. She made no claim at that time that she did not know the date, and her e-mail made it clear that neither she nor her husband would attend whatever the exact date might be. Neither made any request for an adjournment. There was no objection to lack of notice. Decree in terms of this branch of the first conclusions should be refused.

[229] Turning to the second conclusion in the action at the instance of Mr & Mrs Sneddon, senior counsel referred to section 288 of the Companies Act 1985, which was in force at the relevant time. The making of a return to the registrar does not in itself alter the status of any person as an officer of the Company, which can only be achieved by some underlying valid substantive action - POW Services Ltd v Clare [1995] 2 BCLC 435 (particularly at 440 H - 441 B). If the court took the view that the resignation letter dated 21/02/2008 was not genuine and should be reduced, it was accepted on behalf of the Sneddons that both Mr & Mrs MacCallum remained Directors. That being so, the forms referred to in heads (i) and (ii) are irrelevant and do not change anything. However, as senior counsel for the Sneddons did not move for decree in terms of these heads, decree therefor should be refused. For the reasons already given, senior counsel did not oppose the granting of decree in terms of head (iii) of the second conclusion. He did however oppose the granting of decree in terms of heads (iv), (v) and (vi) of the second conclusion on the basis that these forms reported the results of valid resolutions of the Board at its meeting on 20 May 2008. The submissions made in relations to head (iv) of the first conclusion are equally applicable to these heads.

[230] The third and fourth conclusions for the pursuers in the action at the instance of Mr & Mrs Sneddon were not insisted upon, so they should be refused, and the fourth and fifth pleas-in-law for the pursuers repelled.

[231] Senior counsel next addressed the conclusions in the counterclaim for Mr Kirkham. Heads (i) and (ii) of the first conclusion were mirror images of the conclusions in the principal action and no separate submissions were required in this regard. Head (iii) of the first conclusion was directed to the validity of Mr Kirkham's appointment as an Alternate Director on 21 April 2008. In this context, I was referred to Strathmore Group Ltd v Fraser, a decision of the High Court in New Zealand reported at (1991) 5 NZCLC 67, 163. Senior counsel submitted that this case should be treated with caution in so far as it suggests that the mere presence of the Appointing Director at a meeting will disable his Alternate from validly acting at the meeting as an Alternate Director; he submitted that the correct test is not whether the Appointing Director was present, but whether he was present and acting as a Director. Senior counsel accepted, under reference to regulation 65 of Table A, that the court would need to be satisfied that there was a valid resolution of the Directors that Mr Kirkham should be appointed as an Alternate Director for Mr & Mrs MacCallum, otherwise he would not be an Alternate Director. However, minutes of the meeting of 21 April 2008 exist and the presumption arising from section 249 of the 2006 Act applies. The e-mails sent by Mr Kirkham and Mr MacCallum (no 29 and 31 of the joint bundle) make it clear that what was being summoned was a Board Meeting. Mrs Sneddon knew that what was going to be discussed was, at least in part, company business. She attended the meeting and no complaint is recorded about it not being a Board Meeting. There was no timeous objection to the lack of notice of the meeting by Drew Sneddon. As the minutes were approved at the next Meeting, there was an implied ratification of the business at the Meeting of 21 April 2008 even if it was originally invalid. Margaret Sneddon accepted that the words "Alternate Director" were used at the meeting of 21 April, and Mr Sneddon accepted that she told him that those words were used.

[232] The criticisms on behalf of Mr & Mrs Sneddon about the validity of the meeting of 21 April 2008 should not be accepted, for several reasons. First, Stewart MacCallum stated that he told Mrs Sneddon that it was going to be a Board Meeting, and his evidence in this regard should be preferred to that of Mrs Sneddon. Moreover, it is clear from the terms of the e-mail from Mr Kirkham dated 14 April 2008 (no 29 of the joint bundle) that what was going to be discussed was the business of the company. Mrs Sneddon made no complaint, either at the meeting or later, that she did not regard it as a Board Meeting. Moreover, her subjective view that this was not a Board Meeting but simply a meeting "over tea and buns" is irrelevant, if, measured objectively, it was indeed a Board Meeting. The further criticism that, on the basis of Stewart MacCallum's evidence, Mr Kirkham had proposed himself as an Alternate Director, was without foundation, because when Stewart MacCallum stated this he was really talking about whose idea it was that Mr Kirkham should become Alternate Director for both Mr & Mrs MacCallum. He could not remember who actually proposed the resolution at the meeting, and in any event the section 249 presumption still applies, so the minute of the meeting is presumed to be correct. In any event, both the MacCallums voted for the resolution, so it did not matter who proposed it - this is just the sort of irregularity which the court in Browne v La Trinidad envisaged would not invalidate a decision. Moreover, the minutes of the meeting of 21 April were approved on 28 April, so there was implied ratification of the earlier appointment. Section 161 of the 2006 Act and article 92 of Table A were additional reasons for holding the appointment to be valid.

[233] Broadly similar considerations apply to head (iv) of the first conclusion in the counterclaim to the effect that Mr Kirkham is the Chairman of the Board of GDL. Provision for the appointment of a Chairman is made in article 91 of Table A, and his casting vote is provided by article 88. The same considerations as discussed above apply to the appointment of Mr Kirkham as Chairman at the meeting on 21 April 2008. His appointment was reaffirmed at the meeting of 20 May 2008. Declarator should therefore be granted in terms of all four heads of the first conclusion of the counterclaim. Senior counsel reiterated his position with regard to the letter dated 21 February 2008, which would result in decree of reduction in terms of the second conclusion. The third conclusion was no longer relevant.

[234] Turning to the action at the instance of Mr & Mrs MacCallum, much of the material had already been discussed. Decree of declarator should be granted in terms of the first conclusion, with the exception of head (iii) which was not insisted upon. As already discussed, reduction of the letter of 21 February 2008 should be granted in terms of the second conclusion. Decree of reduction in terms of the whole of the third conclusion should be granted; heads (i) to (iv) were conceded on behalf of Mr & Mrs Sneddon, and with regard to Heads (v) to (vii) Mrs Sneddon accepted in cross-examination that these events did not in fact occur, so reduction should follow.

[235] The fourth conclusion was not insisted upon, but the fifth conclusion was. This depended on the validity of the resolution terminating Mrs Sneddon's appointment as Company Secretary at the meeting on 20 May 2008, as discussed previously. There were grounds for reasonable apprehension that she would continue to purport to be the Company Secretary of GDL, as she had previously done so by returning the forms referred to in the third conclusion to Companies House in June 2008. It was not the intention to seek a perpetual ban in all time coming, and to that end senior counsel sought to amend the conclusion at the bar by adding the words "without further valid appointment to that office by the Board of the fifth defender". (This motion was not opposed, and I granted it).

[236] The sixth conclusion related to Mrs Sneddon not having made a Director's loan to GDL, and to the terms of the agreement between her and Mr MacCallum as to the expenses and outlays incurred in purchasing the land and taking steps to obtain planning permission. In this regard senior counsel drew a distinction between the case made on record on behalf of the Sneddons, and the position adopted in evidence. There is no basis in the averments for Mr Morrison's evidence about a discussion near the bottle dump on the site, and neither Mr nor Mrs Sneddon was asked about this event. It cannot be argued that the agreement described by Mr MacCallum was commercial nonsense or ran contrary to business sense - without Mr MacCallum's involvement the land would simply not have been available. All of the appointments which resulted in the incurring of costs or fees (eg. those of Mr Morrison and Mr Reilly) were made by Mrs Sneddon without reference to the MacCallums, which suggests that these arrangements where not perceived to be of concern to the MacCallums. Moreover, although Mrs Sneddon had legal and accountancy advice, there are no records of the Company which show any loan to it from her. Mrs Sneddon as a Director of GDL had a duty, in terms of section 221 of the 1985 Act (and thereafter section 386 of the 2006 Act) to keep accounting records for GDL, yet it appears that no paperwork exists in relation to any loan from her to the Company. Not only was there an absence of such paperwork, Mrs Sneddon signed and returned DCA forms to Companies House for the years 2005 and 2006 (nos 10 and 13 of the joint bundle) stating that the Company had engaged in no transaction other than the issue of subscriber shares. Either these certificates were correct, in which case there was no loan, or they were incorrect, which should cause further doubt to be cast on Mrs Sneddon's credibility. In the whole circumstances senior counsel submitted that decree should be pronounced in terms of the sixth conclusion. He noted that there was no plea-in-law to support this, and sought to remedy this by lodging at the bar a Minute of Amendment (no 35 of process) adding a seventh plea-in-law for Mr & Mrs MacCallum. This was not opposed and I allowed it.

Reply on behalf of Mr & Mrs Sneddon
[237] Senior counsel for the Sneddons accepted that it was for her to overcome the presumption contained in sections 248 and 249 of the Companies Act 2006. Nonetheless, looking to the minutes of the meeting of 20 May 2008 (no 53 of the joint bundle) it should be remembered that Fiona MacCallum stated that she never revoked Mr Kirkham's appointment as her Alternate Director, and there was no evidence of revocation of that appointment in terms of article 68 of Table A. It was Stewart MacCallum's evidence that it was Mr Kirkham himself who proposed that he should be appointed as Chairman of the company. The best that could be said about the proceedings on 20 May 2008 was that they were such as might possibly be ratified by a further meeting of the company, which might cure the errors. There was no such meeting.

[238] The meeting on 21 April 2008 was never a properly constituted Board Meeting of GDL, and the Sneddons have overcome the presumption in section 249 in that regard. The averments on behalf of the MacCallums were to the effect that the meeting was called by e-mail (and specifically that dated 14 April 2008, which must have been the one sent by Mr Kirkham). By contrast, Mr MacCallum's evidence was that he called the meeting by telephone. Mrs MacCallum stated that she heard the phone call but she could not say that she heard the words "Board Meeting". The court should prefer the evidence of Mrs Sneddon and find that this was not a meeting of the Board. There was nothing in the rest of the e-mail correspondence at that time (eg nos. 30 and 32 of the joint bundle) to suggest that this would be a Board Meeting. [239] On the question of the pre-existing agreement between Mrs Sneddon and Mr MacCallum as to how the expenses of the purchase of the land and the obtaining of permissions would be dealt with, this was noted by Mr Kirkham in his project notes (no. 25 of the joint bundle) as a point of difference between the parties. This issue turned entirely on the credibility of the witnesses. The averments on behalf of the MacCallums suggested that the agreement extended not only to Mrs Sneddon paying for the purchase of the land and for the costs of obtaining planning permission, but meeting the running expenses of the company; these words are not reflected in the conclusion. At the time that the agreement was made, the form of the development proposal had not been finalised - Mr MacCallum stated that he hoped it would be residential, but plans were being discussed for a Leisure Centre and Log Cabins. It was beyond belief that an experienced businesswoman such as Margaret Sneddon would have entered into a project where she would be liable for the running expenses of the company, whatever these might be, with no end point. The court should accept Margaret Sneddon's position that Stewart MacCallum was not in a strong bargaining position, he could procure the transfer of the land (which was not in his name) and she would fund this and the cost of obtaining planning permission so long as she was recompensed for this before the profits were divided. It would be unlikely in the extreme that Mrs Sneddon would agree to enter an undefined development project and pay for the ground and all costs involved in attempting to get planning permission, and would never receive her money back if planning permission was not granted. To do so would be to open herself to unknown and unascertainable personal expenses. She might bear all the losses and this risk would not be reflected in the agreement contended for by the MacCallums. Her position was supported by Mr Morrison's evidence about the discussions near the bottle dump on the site, which he stated were in accordance with the agreement that Mrs Sneddon had previously described to him. Both Mr Morrison and Mr Reilly believed that they were instructed on behalf of GDL; Mr Reilly had a clear recollection about discussing his fee in front of Mr MacCallum, but Mr MacCallum denied that this happened. The agreement contended for by Mrs Sneddon was not only consistent with commercial logic, but supported by the evidence of Mr Morrison and Mr Reilly.

Discussion
[240] I have set out the evidence in this case in much greater detail than would normally be my practice because issues of credibility and reliability are of particular importance in relation to many of the questions raised in these actions. I shall therefore address these issues at the outset.

[241] I found Mr John McCrae to be an entirely credible and reliable witness, and I accepted the conclusions contained in his report. His evidence was uncontradicted, and was not seriously challenged in cross-examination. It follows from this that the signatures on the letter dated 21 February 2008 are not genuine, and that this document falls to be reduced. This is a factor to be borne in mind when assessing the credibility of other witnesses.

[242] I also considered Bridget Heaney to be both credible and reliable. Although I did not have the benefit of hearing the evidence of Jennifer Mailey in court, and could not therefore form an impression of her demeanour, there is nothing in the report of her evidence given on commission which causes me to regard it as anything other than credible and reliable. I also regarded Mr Andrew Sneddon as entirely credible and reliable; although he was very nervous at the outset, and his evidence was somewhat vague on occasions, he gave his evidence in a restrained and impressive manner and I formed the impression that he was truthful. Andrew Reilly also gave his evidence in a very professional manner. I was impressed by his demeanour, he was a sensible witness, and I found him entirely credible and reliable.

[243] I also found Mr Doug Davidson to be a credible and reliable witness. He gave his evidence in a straightforward and open manner, without exaggeration or prevarication. He had previously sworn an affidavit, dated February 2009 (103 of the joint bundle); not surprisingly, there were a few minor discrepancies between this affidavit and the evidence which he gave in court almost one year later, but these all related to minor details which he was able to explain. There was no material difference between his evidence in court and the terms of his affidavit; I formed the view that he was being truthful and doing his best to assist the court. In particular I accepted his evidence that he did not offer to purchase Mr MacCallum's shareholding in GDL when both of them were attending a Christmas party in 2006. I accepted his evidence that at the meeting at Bathgate Mr MacCallum told him that he had resigned as a Director of GDL, and that it was on the basis of his understanding that this had happened that Mr Davidson and Mr Thompson proceeded with a loan application to RBS. I also accepted his evidence that he had a telephone conversation with Stewart MacCallum on 10^th or 11^th December 2007 and told him that he needed authority from both Mr & Mrs MacCallum for credit searches to be made on them for the purpose of commercial lending to GDL, and that he received two separate faxes apparently containing such authority from them within about 1 hour of this telephone conversation. Copies of these faxed letters form letter A (copy "e") and letter B (copy "f") appended to Mr McCrae's report. The point made by senior counsel for the MacCallums regarding the time at which these faxes bear to have been sent and the absence of sender identification number does not cause me to doubt Mr Davidson's evidence - this point was put to him in cross-examination and he was quite open and honest in replying that he could not explain this, but that an explanation could be sought from the originator of the documents. They did not shake his recollection that he received these faxes within about 1 hour of his telephone conversation with Mr MacCallum, and I believed this.

[244] Senior counsel for the MacCallums and Mr Kirkham criticised the evidence of Messrs Levett & Rowley, describing them (and others) as members of "Margaret Sneddon's inner circle". I am not inclined to accept the proposition that there was such an "inner circle", although there were witnesses whose evidence supported that of Mrs Sneddon. Senior counsel made trenchant criticisms of the evidence of Mr Levett and Mr Rowley and suggested that "it was perfectly plain just what kind of 'businessmen' these witnesses were". I accept that the way in which Mr Levett and Mr Rowley organised their business affairs might be described as unconventional, and that this should cause me to assess their credibility with a critical eye. However, in their favour they did not attempt to pretend that they were organising their business affairs in a more conventional manner. There are no doubt many businessmen that conduct their business affairs in a similar manner, possibly with a view to avoiding (legitimately or otherwise) liability for taxation, or to protect their assets from creditors (again whether legitimately or otherwise), or perhaps for other reasons. It does not necessarily follow that such witnesses are incapable of telling the truth, or that their evidence should be regarded as incredible or unreliable in all respects. Assessing their evidence as a whole, with a suitably critical eye, I reached the conclusion that, at least in relation to their evidence about their meeting with Mr MacCallum and Mr Kirkham at a restaurant in Glasgow, and their subsequent meeting with Mr Kirkham, they were being truthful and I should accept their evidence. In particular, I accepted their evidence that at the first of these meetings Mr MacCallum indicated to them that he had resigned as a Director of GDL, although this was a paper exercise to enable the application for a loan to succeed and that Mr MacCallum's explanation was somewhat confused, but was to the effect that he was still involved in GDL but was not a Director. I also accepted their evidence that Mr MacCallum and Mr Kirkham suggested (with Mr Kirkham taking the lead on this point) some form of share alliance to prejudice Margaret Sneddon's position in GLD - what Mr Rowley described as a "ruse" or "skullduggery". I also accepted their evidence that at their later meeting with Mr Kirkham he made a covert attempt to tape record their conversation, and initially denied making any allegation that they had been involved in paying a significant amount of cash to Mrs Sneddon, but then changed his position when they arranged for the private investigator Mr Brown to attend.

[245] Senior counsel for the MacCallums and Mr Kirkham suggested that Mr Morrison's independence and truthfulness were far from beyond criticism. He described Mr Morrison as "a Sneddon associate of many years standing". I do not accept these criticisms. Whilst it is correct that Mr Morrison acted as Mrs Sneddon's solicitor throughout much of the preparation for the proof and during the course of the proof, he was careful to leave court whenever there was evidence which might touch on his own involvement in the matters in dispute. He gave his evidence in an open and honest manner, and I considered him to be truthful. His recollection of the precise sequence of events was not always reliable, but he did not shrink from accepting this. He also accepted that, being in sole charge of the office from which he practised, on occasions he did not attend to items of business as expeditiously as he might have done. However, he was a solicitor of 32 years standing, and he impressed me as being aware of the duties he owed to the court. The challenges to his integrity, independence and truthfulness are in my view without foundation. In particular I accepted his evidence about the conversation which occurred near the bottle dump on the site, and that this discussion was consistent with the understanding which he had previously gleaned from Mrs Sneddon as to the agreement about repayment of costs before division of profits. I accepted his evidence that he was instructed to act on behalf of GDL and considered himself as doing so, and also that Bridget Heaney telephoned him and explained the difficulty which Stewart MacCallum's poor credit rating was causing for the loan application. I also accepted his evidence that shortly after 26 March 2008 Mrs Sneddon telephoned him and told him that Mr & Mrs MacCallum had resigned as Directors of GDL.

[246] Margaret Sneddon gave her evidence generally in an open and forthright manner, although she was nervous to begin with, and she struck me as being under considerable strain. (She was in the witness box for four complete court days). In general I formed the impression that she was being truthful, and her evidence was substantially consistent with that of the witnesses considered thus far. There were however four aspects of the evidence which caused me to assess Mrs Sneddon's credibility and reliability with particular care. First, although she claimed to have purchased the land with her own money on behalf of GDL, and had paid various costs and outlays on behalf of GDL, she signed and returned to Companies House forms (nos 10 and 13 of the joint bundle) for the years to October 2005 and 2006 certifying that the Company's only transaction was the issue of subscriber shares. Second, as I have already indicated, I accept that the signatures bearing to be those of Mr & Mrs MacCallum on the letter dated 21 February 2008 are not genuine. The question arises as to who caused these signatures to be applied to that document, and whether Mrs Sneddon was aware that they were not genuine when she intimated Mr & Mrs MacCallums' resignations to Companies House (and why these resignations appeared to be recorded as having been effective on different days). Third, her intimation to Companies House on about 12 June 2008 that Stewart MacCallum had resigned as a Director of GDL (see no 71 of the joint bundle) at a time when she was aware that he was denying that he had in fact resigned, and when she had already accepted that any earlier resignation by Mr MacCallum as a Director of GDL was "merely a paper exercise". Fourth, the Minute of Amendment lodged on behalf of Mr & Mrs Sneddon in October 2009 (no 117 of the joint bundle) sought to make very significant changes to the basis of the Sneddons' case. It sought to introduce averments to the effect that when GDL was incorporated Mr MacCallum told Mrs Sneddon that he did not want to be appointed as a Director of the company, and that he was not appointed as a Director of the company. Mrs Sneddon accepted that these averments were untrue, and that they had been drafted on her instructions. Her evidence in this regard is summarised at paragraph [39] above.

[247] I consider that little weight should be attached to the first of these areas of concern. Technically, no doubt, if the land had been bought using funds provided by Mrs Sneddon on behalf of GDL, and if expenses had been incurred on behalf of GDL in progressing the project, the use of these forms was inappropriate. I do not suggest for a moment that, if the use of these forms was inappropriate (as it would appear to be if the land was purchased on behalf of GDL and expenses paid on behalf of the company), that this is an action which should be condoned or shrugged off. However, in the context of an assessment of Mrs Sneddon's credibility, I am not persuaded that it counts for much, if anything. No accounts had in fact been prepared on behalf of the company in these years, and the project for the development of the land was at a very early stage. I do not believe that Mrs Sneddon (nor indeed any of the other Directors) gave detailed consideration to the requirements for preparing accounts and for lodging forms with Companies House. Even when the point was put to her in cross-examination I do not think that Mrs Sneddon fully understood what was being put to her. Her signature on these forms was neither a correct certification nor appropriate; in many cases that would have a detrimental result on the credibility of the signatory, but I do not consider in this case that this undermines Mrs Sneddon's general credibility.

[248] The letter dated 21 February 2008 is more important. It was put to Mrs Sneddon that she caused the signatures appended to this document to be placed there, and she denied this vehemently. I paid particularly close attention to her demeanour in this passage of her evidence, and I believe that she was being truthful in this regard. I accept that there had been several discussions about the effect of Stewart MacCallum's bad credit rating on loan applications, and that Stewart MacCallum had indicated that he would be prepared to resign as a Director if this would assist matters. Indeed, I accept that he stated to some witnesses that he had resigned. The question of Mr MacCallum's resignation as a Director arose in the context of loan applications which were for his benefit - as Mrs Sneddon pointed out, she did not need the money, nor did GDL. It is neither necessary nor appropriate for me to speculate as to who procured these false signatures on the letter of 21 February 2008; the important point for the purpose of assessing Mrs Sneddon's credibility is that I do not consider that Mrs Sneddon or somebody under her direction was responsible for this, and she was unaware that these signatures were not genuine.

[249] By June 2008, Mrs Sneddon was aware that Mr & Mrs MacCallum were denying that they had resigned as Directors of GDL. Standing her position that their resignation was only a paper exercise in order to facilitate the obtaining of a loan, and that she always regarded them as being "de facto" Directors even though they were not formally such, it is surprising that she took the action which she did in June 2008 by intimating again to Companies House that Mr MacCallum was no longer a Director of GDL. However, by this time the relationship between Mrs Sneddon and Mr & Mrs MacCallum had deteriorated. I accept Mrs Sneddon's evidence that she resented the involvement of Mr Kirkham, and that she had become exasperated by the attitude of Mr & Mrs MacCallum in the face of a potential deal with HHA which was close to being concluded. After she learned of the decisions taken by Mr & Mrs MacCallum and Mr Kirkham at the meeting on 20 May 2008 at Fort William, and the lodging of forms with Companies House indicating that she was no longer Company Secretary and that the registered office of the Company had been changed, Mrs Sneddon's attitude towards the MacCallums and Mr Kirkham hardened. She did not consider that these resolutions had been effectively or validly made, and it is against this background that her action in contacting Companies House in June 2008 needs to be considered. It may be that by this time none of the parties was behaving with much restraint or consideration to the others - relationships had broken down entirely, and these court proceedings were about to be raised. I do not consider that Mrs Sneddon's actings at this time were such as to render her evidence as a whole either unreliable or incredible.

[250] The fourth factor relied on against Mrs Sneddon's credibility is the lodging of the Minute of Amendment in October 2009, with the averments which it contained. These averments are so completely contradictory of the averments previously made on behalf of Mrs Sneddon, and so different from her evidence in court, that this has caused me to have some doubts as to whether I can properly place reliance on her evidence. Ultimately the motion to allow the Minute of Amendment to be received and for summary decree, which came before the court on 30 October 2009, was dropped at the bar. However, Mrs Sneddon accepted in cross-examination that the averments were drafted on her instructions, and that the information was not true - she accepted that she had arranged for Mr MacCallum to be a Director of GDL, and that he had been a Director since the Company's incorporation.

[251] Mrs Sneddon's explanation, that she had attended Companies House in the summer of 2009 before this Minute of Amendment was drafted, and was assured by an official at Companies House that Stewart MacCallum was not a Director and never had been a Director of GDL, and that this appeared to be confirmed by the paperwork, does appear to have some basis in fact. There was indeed paperwork placed before the court which did not have any record of Stewart MacCallum having been made a Director of GDL at the date of the Company's incorporation or since that date. Mrs Sneddon stated that she simply placed this information before her solicitors, and it was their decision to incorporate it into a Minute of Amendment.

[252] This suggests that Mrs Sneddon was not inclined to look a gift horse in the mouth, but, it does not strengthen her credibility. She gave evidence in January 2010 to the effect that Stewart MacCallum was made a Director of GDL at the date of its incorporation, and that he remained a Director at least until March 2008. This was consistent with her original pleadings but wholly at odds with the position which she sought to advance only three months before the proof. The fact that she was represented by different solicitors and different counsel at that time is not an adequate explanation. However, as noted earlier, it appeared to me that Mrs Sneddon was under considerable strain when she was giving her evidence, and she stated she was taking medication (see paragraph [52] above). Mr Morrison gave evidence (at paragraph [143] above) that in the latter part of 2009 he became concerned about Mrs Sneddon's health - she would telephone him at all hours, and was clearly not well. Drew Sneddon also stated (at paragraph [93] above) that his wife's mental and physical health had been adversely affected. I am prepared to give Mrs Sneddon the benefit of the doubt on this point and to take the view that her change of position in the latter part of 2009 does not fatally undermine her credibility on matters as a whole. However, this has caused me to look at her evidence with a particularly critical eye.

[253] I did not find Mr David Kirkham to be a satisfactory witness. At times he gave his evidence in a very abrasive, almost aggressive, way, and would not accept that he could be wrong; at other times his answers were evasive and reluctant. For example, he stated confidently that he was accustomed to taking minutes of meetings, and that he had done so throughout his long and wide commercial experience; however, when faced with his minute of the meeting of 8 May 2008 (no 46 of the joint bundle) and in particular paragraphs 4.2.1 and 4.2.2 and 4.10.8, he asserted that he was aware of the applicable law, but went on to observe that in preparing the minute he "took his eye off the ball". His demeanour when giving evidence was overtly confident but he was unable to explain or support his position on several occasions. I did not consider that his motive in this whole matter was as altruistic as he suggested. He stated that he first met Stewart MacCallum on 15 March 2008, as a friend of a neighbour. He agreed, as a favour for the neighbour, to prepare a report for Stewart MacCallum but he would not give advice to him, he would charge no fee and he would not get involved in the affairs of GDL. He first met Margaret Sneddon some five days later in Bathgate. He then had a meeting in Glasgow with Messrs Levett and Rowley, then met Mr Morrison, and then met Margaret Sneddon again. On 10 April 2008 he arranged a meeting with Susan Torrance of HHA, and deliberately excluded Mrs Sneddon from this meeting. On 14 April 2008 (about four weeks after his first meeting with Mr MacCallum) he sent an e-mail to Mrs Sneddon with a proposed agenda for a meeting, and this meeting was held on 21 April 2008, some five weeks after his first involvement. On Mr Kirkham's evidence, this was a Board Meeting of GDL, and he was appointed an Alternate Director of the company on behalf of both Stewart and Fiona MacCallum, and appointed Chairman of the Board. He then sought to run the affairs of the company, when necessary using his casting vote as Chairman. By December 2009 he had bought all of Mr MacCallum's shareholding in GDL. I regard this as a surprising sequence of events for someone who was merely doing a favour for a friend of a neighbour, for no fee and without getting involved in the affairs of GDL.

[254] I did not feel able to place reliance on the evidence of Mr Kirkham. I did not regard him as a credible witness. His account of events differs in significant respects from the evidence of Margaret Sneddon, Drew Sneddon, Grant Levett, Colin Rowley and Doug Davidson. I preferred their evidence.

[255] Mr Kirkham's evidence did find some support in the evidence of Fiona MacCallum and Stewart MacCallum, but I found neither of these witnesses to be impressive. Fiona MacCallum gave her evidence in a curious manner, answering questions nonchalantly and without any apparent interest in the proceedings. Although she was present in court throughout the preceding ten days of evidence, when she gave evidence she seemed to distance herself from the issues; she frequently answered questions with a shrug of her shoulders and an offhand reply. Her recollection of many matters was vague, and she did not appear to me to have a full understanding of what was happening. She was not as closely involved in matters as her husband, but she frequently agreed with questions which were put to her, and subsequent questioning would then show that she was answering on the basis of assumption or surmise rather than from knowledge of the facts. Time and again her position was that she could not remember precisely what happened or what was said. She could not remember whether she proposed resolutions at meetings, nor why. She could not remember whether she was present throughout the whole of a meeting, nor which parts of a meeting she attended and at which parts she was absent. I found her to be neither credible nor reliable.

[256] Stewart MacCallum's recollection of events was not materially better than his wife's. He repeatedly stated that he had no recollection of events, and that times and dates were not his strong point. He could not remember having telephone conversations about the problems that his bad credit rating was causing in obtaining a loan, although he was prepared to accept that these must have happened. This may have been because, throughout the period before and after Mr Kirkham's involvement, Mr MacCallum described himself as "completely fried", and did not know what was happening nor was he thinking clearly because of the financial pressures on him. It struck me that throughout 2007 and the first half of 2008 Mr MacCallum was totally preoccupied with the urgent need to find money in the short term to hold off his creditors. Indeed, throughout his involvement with GDL, he impressed me as being more concerned with his own desperate financial plight than he was with the longer term prospects of GDL's development project. His evidence was internally contradictory, and on several occasions he stated that something would have happened, then he accepted that he could not remember, and his evidence was often clearly assumption or surmise rather than recollection. He struck me as being completely out of his depth throughout the period from the formation of GDL until the raising of these proceedings, and in particular throughout the first six months of 2008. I did not find him to be a credible or reliable witness, and I did not feel able to attach weight to his evidence.

[257] Summarising my assessment of the witnesses, I found the evidence adduced on behalf of Mr & Mrs Sneddon to be preferable, in terms of both credibility and reliability, to the evidence adduced on behalf of Mr & Mrs MacCallum and Mr Kirkham.

[258] Against that background, I now turn to consider the various issues raised in these proceedings. First, I consider the terms of the agreement between Mrs Sneddon and Mr MacCallum as to how the expenses and outlays incurred by Mrs Sneddon in the project should be dealt with. Mrs Sneddon's evidence on this was clear, and is summarised at paragraph [16] above. She reiterated this position in cross-examination at paragraph [38] above, and observed that the suggestion that the agreement was that Stewart MacCallum should provide the land and she would provide her expertise and meet the costs of obtaining permissions was not in fact what happened, because Stewart MacCallum did not provide the land - his mother sold it to the Company, and Mrs Sneddon paid a full purchase price. Mrs Sneddon's evidence is supported by that of Mr Morrison, who spoke to the conversation at the bottle dump at the site in about April 2004 and to the fact that this was in accordance with what Mrs Sneddon had told him when she first spoke to him about the project (see paragraph [140] and [144] above). Mr Reilly's evidence (at paragraphs [73] and [74] above) provides some support for Mrs Sneddon; the land when purchased by GDL from Katie MacCallum was only of nominal value, Mr Reilly regarded himself as acting for GDL, and the question of his fees was discussed at a meeting over lunch in a hotel in Fort William at which Mr & Mrs Sneddon and Mr MacCallum were with him. Drew Sneddon remembered this meeting, and this discussion (paragraph [92] above). Mr MacCallum denied being at any such meeting or ever hearing any discussion about Mr Reilly's fee (paragraph [190] above), although neither Mr Reilly nor Mr Sneddon was challenged on this in cross examination.

[259] By contrast, the only source of evidence to support the terms of the agreement contended for by Mr & Mrs MacCallum was that of Stewart MacCallum himself - Fiona MacCallum was present neither when the agreement was made nor at the discussion at the bottle dump. She could shed no independent light on this matter. Stewart MacCallum's evidence in examination in chief is summarised at paragraphs [165] and [166] above, when he stated that the agreement was that Mrs Sneddon would finance the costs of making the land suitable for development and obtaining the necessary consents, and would bring her expertise, and Mr MacCallum would get the assets. Later he stated (at paragraphs [185] to [186] above) that "the whole idea was that Margaret Sneddon would bring it to the stage of planning consent, and he would contribute the land" and "Margaret Sneddon would finance it, and he would provide the asset". Although he remembered a conversation in the rain beside the bottle dump, he never heard the remark by Mrs Sneddon spoken to by Mr Morrison, which was not said (although he was not calling Mr Morrison a liar). It is worthy of note that although Mr MacCallum was able to articulate his understanding of the agreement to the Court, he was unable to do so when he first met Mr Kirkham - see Mr Kirkham's evidence at paragraph [128] above.

[260] On this matter I prefer the evidence of Mrs Sneddon, which was clear and unequivocal, and was supported by the evidence of Mr Morrison and (at least to some extent) by that of Mr Reilly and Mr Sneddon, to the evidence of Mr MacCallum. I believe that the agreement was as stated by Mrs Sneddon.

[261] I am reinforced in that view by the consideration that it seems unlikely that Mrs Sneddon would have been prepared to reach an agreement along the lines argued for by Mr MacCallum. She struck me as having a shrewd interest in the profit which she might make from this project, and to have a sound grasp of commercial commonsense. As she observed, the terms of agreement argued for by Mr MacCallum would have resulted in his taking 50% of the profits of any development, with no contribution towards any of the costs and with no risk. He brought nothing to the table, except some influence over his mother to persuade her to sell the land. On the evidence of both Mrs Sneddon and Mr Reilly, the price which Mrs Sneddon paid for the land represented at least market value for the land in its current state. It seems unlikely that Mrs Sneddon would agree to pay this, and all the costs of obtaining the several consents and permissions required for a development which was at that time undefined in its scope, nature or extent, with an unspecified timescale and a possible risk of failure, without at least being able to recoup these expenses before profits were divided. Such an agreement might result in Mr MacCallum making significant profits for no risk or outlays, and Mrs Sneddon making a loss because the total expenditure might exceed her share of the profits. It is of course conceivable that she would be prepared to reach such an agreement, and the court will not rewrite a bad bargain for a contracting party. However, the improbability that Mrs Sneddon would agree to such terms provides an additional support for my assessment that the evidence of Mrs Sneddon and Mr Morrison (and Mr Reilly) is to be preferred to that of Mr MacCallum.

[262] I have considered the third possibility, namely that there was no consensus between the parties on this matter, and there was therefore no agreement. However, neither party invited me to take this route, and standing my decision on the evidence, it is not appropriate. I am satisfied that the agreement was as stated by Mrs Sneddon. The expenditure incurred by her was incurred by way of a loan to GDL. This ought to have been reflected in the company's accounts, but no accounts were prepared - a situation for which all the Directors must bear responsibility. In the result, I am not prepared to grant declarator in terms of either branch of the sixth conclusion in the action at the instance of Mr & Mrs MacCallum.

[263] I now turn to the four meetings dated 21 and 28 April and 8 and 20 May 2008. These occurred against a background of numerous meetings between Mrs Sneddon, Mr MacCallum, Mr Kirkham and various third parties, or some of these. Some of these meetings were in connection with GDL's project for the development of the land - eg meetings between Mrs Sneddon, Mr MacCallum, Mr Reilly and HHA, and the meeting on 10 April between Mr MacCallum, Mr Kirkham, Susan Torrance and Mr Phillipson. Many more were concerned with the attempts to obtain funding to stave off Mr MacCallum's financial crisis - e.g. those between Mrs Sneddon, Mr MacCallum and Mr Black, between Mr Kirkham, Mr MacCallum, Mr Levett and Mr Rowley, the meeting between Mrs Sneddon, Mr MacCallum, Mr Davidson and Mr Kirkham on 20 March 2008 at Bathgate, and the three separate meetings held on 3 April 2008. There is no suggestion that any of these meetings were Board Meetings of the Directors of GDL. However, the MacCallums and Mr Kirkham claim that the four meetings first mentioned were indeed Board Meetings of the Directors of GDL; there are what bear to be minutes of those meetings (nos 33, 38, 46 and 53 of the joint bundle); on the face of it therefore, the provisions of sections 248 and 249 of the Companies Act 2006 apply to these. Senior counsel for the Sneddons accepted that the onus of proof rested on her to displace the presumptions set out in section 249(2) of the 2006 Act. I consider each of these meetings in turn.

[264] Three questions arise in relation to the meeting of 21 April 2008 -

(a) Was it a Board Meeting?

(b) If it was, did Mr & Mrs MacCallum validly appoint Mr Kirkham as their Alternate Director? and

(c) Was Mr Kirkham validly appointed as Chairman of the Board of GDL?

Mrs Sneddon's evidence was clearly to the effect that each of these questions should be answered in the negative. On the first, neither Stewart nor Fiona MacCallum had called for a Board Meeting, and Mr Kirkham had no authority to do so. She attended the meeting in the belief that it was another informal meeting to discuss solutions to Stewart MacCallum's financial problems. Because of this, Drew Sneddon had not been given notice of the meeting, and did not attend. Mr Kirkham's evidence was that he accepted that he did not have the capacity to call a Board Meeting at this time, and he asked Mr MacCallum to telephone Mrs Sneddon to convene a Board Meeting; Mr MacCallum later told him that he had done so. Stewart MacCallum's evidence in examination in chief (at paragraph [179] above) was that he was sure that he told Mrs Sneddon on the phone that it was to be a Board Meeting, that Fiona would be there, and that he told Mrs Sneddon to bring her husband because it was a Board Meeting. There was no doubt in his mind about this. However, he could not explain the averment on his behalf at page 19A of the Closed Record in his own action to the effect that the meeting "was called by e-mail dated 14 April 2008 which included a proposed agenda" - it had always been his position that it was called by phone and he must have told his solicitors that it was called by phone. Fiona MacCallum's evidence was that she went to the meeting on 21 April 2008 because Stewart told her that she had to be there; she also said that she sent a copy of Mr Kirkham's e-mail of 14 April 2008 to Mrs Sneddon, and another e-mail about the meeting which had not been referred to in evidence (see paragraph [148] above). In cross-examination (at paragraph [159] above) she stated that she was present when Stewart phoned Margaret Sneddon to arrange the meeting, but she could not remember what he said on the phone. She did not know if Stewart mentioned that it was to be a Board Meeting, or just another meeting.

[265] I prefer the evidence of Margaret Sneddon to Stewart MacCallum on this point. I accept Mrs Sneddon's evidence that by about the middle of April 2008 she was becoming increasingly irritated by Mr Kirkham's involvement in the whole matter. I do not believe that if she had been told that this was to be a Board Meeting (and the first Board Meeting since the incorporation of GDL), at which both Stewart and Fiona MacCallum and Mr Kirkham would be attending, she would have failed to intimate the meeting to her husband or to ensure that he attended it. I accept her evidence that she thought that she was attending another informal meeting to discuss possible solutions to Stewart MacCallum's financial problems. I answer question (a) above in the negative.

[266] Mrs Sneddon was clear in her evidence that there was never any suggestion that Mr Kirkham should be appointed as Alternate Director for each of Mr & Mrs MacCallum, that neither of them proposed this, and that she never agreed to any such proposal (see paragraphs [29] and [48] above). Mr Kirkham stated in evidence that he explained to Mrs Sneddon before the meeting started that Mr & Mrs MacCallum would appoint him as an Alternate Director and then withdraw, and that the meeting agreed that Mr Kirkham should be appointed as an Alternate Director after an informal discussion (see paragraphs [121] and [132] above), although he did not state by whom or how this was proposed. Fiona MacCallum stated that she did not know why she was attending the meeting, and knew nothing about what was going on. Mr Kirkham told her that he would be her Alternate; there was then a vote on Mr Kirkham being made an Alternate Director. It was Mr Kirkham that told Stewart and her that he wanted them to appoint him as Alternate Director for each of them (see paragraphs [149] and [159] above). Mr MacCallum's evidence was that "it was proposed that Mr Kirkham be an Alternate Director, and Fiona and he agreed. He could not remember 100% who proposed this...on reflection it must have been proposed by Mr Kirkham and he and Fiona agreed to it. He remembered the words 'Alternate Director' being used and Margaret Sneddon was content with this" (see paragraph [180] above).

[267] It is clear from the above that there are discrepancies between the positions in evidence of Mr Kirkham, Mr MacCallum and Mrs MacCallum. None of them speaks to a proposal being made by either Stewart or Fiona MacCallum that Mr Kirkham should be their Alternate Director. Mr MacCallum thought the proposal came from Mr Kirkham. Mrs MacCallum did not appear to understand much about what was going on, but there was a vote, and the suggestion that he should be an Alternate Director came from Mr Kirkham. Mr Kirkham stated that there was agreement after an informal discussion. Standing Mrs Sneddon's attitude towards Mr Kirkham by this time, it strikes me as unlikely that she would have agreed to a proposal that he should be appointed as Alternate Director to each of the MacCallums. Mr Kirkham clearly wanted to become Alternate Director for each of the MacCallums, but I am not satisfied that there was any discussion, far less agreement, on this point at the meeting.

[268] In any event, even if there was some informal discussion as to Mr Kirkham acting as Alternate Director for each of the MacCallums, it is not clear to me that he was in fact appointed as an Alternate Director to either of them. Clearly only Mr MacCallum could appoint an Alternate Director to act on his behalf and only Mrs MacCallum could appoint an Alternate Director to act on her behalf. Neither of them stated in evidence that they appointed Mr Kirkham; Mr MacCallum thought that Mr Kirkham proposed his own appointment, and there is nothing in Mrs MacCallum's evidence to suggest that she proposed Mr Kirkham's appointment as her Alternate Director - the idea came from him. The provisions relating to Alternate Directors of GDL are to be found in regulations 65 to 69 of Table A to the Companies (Tables A to F) Regulations 1985. Read short, Regulation 65 provides that:

"Any Director (other than an Alternate Director) may appoint any other Director, or any other person approved by resolution of the Directors and willing to act, to be an Alternate Director...".

Regulation 66 provides that:

"An Alternate Director shall be entitled...to attend and vote at any such meeting at which the Director appointing him is not personally present...".

Regulation 68 provides that:

"Any appointment or removal of an Alternate Director shall be by notice to the company signed by the Director making or revoking the appointment or in any other manner approved by the Directors".

[269] In the present case neither Stewart nor Fiona MacCallum stated in evidence that they appointed Mr Kirkham as their Alternate Director. He was not already a Director of the company, and there was no evidence of any resolution of the Directors approving him to be appointed as an Alternate Director. There was no evidence that notice in writing by Stewart or Fiona MacCallum of Mr Kirkham's appointment as Alternate Director was given to the Company, nor was there any evidence to suggest that this requirement was considered and waived by the Directors and another manner of notification approved. After the informal discussion about the matter, or (as the case maybe) the "vote" on it, Mr Kirkham appears from the Minutes to have spoken on behalf of his alleged appointers, notwithstanding that they were personally present throughout. Taking all of these considerations into account, I am not persuaded on the basis of the evidence before me that Mr Kirkham was validly appointed as an Alternate Director for either Stewart or Fiona MacCallum at this meeting, and I answer question (b) in the negative.

[270] I also answer question (c) in the negative. Mrs Sneddon's position was that there was no proposal that Mr Kirkham should be Chairman of the Board, and she did not agree to this (see paragraphs [29] and [48] above). Mrs MacCallum did not remember exactly what was said - she started by stating that it was agreed that Mr Kirkham would chair the meeting, and when the note of the meeting stating that it was unanimously agreed that he be Chairman of the Board was put to her, she replied that she just thought it was the same thing (see paragraph [149] above). Stewart MacCallum could not remember who proposed that Mr Kirkham be Chairman, but he remembered that he and Fiona and Margaret agreed to this. He did remember the words "Chairman of the Board" being used, and it must have been Mr Kirkham that used them (see paragraph [180] above). Mr Kirkham's evidence was that he proposed, in his capacity as Alternate Director, that he should be Chairman, and Mrs Sneddon was perfectly happy with this (see paragraph [121] above).

[271] I accept Mrs Sneddon's evidence that there was no proposal that Mr Kirkham should be Chairman of the Board, and that she never agreed to this. As with the question of his appointment as an Alternate Director, standing her attitude towards Mr Kirkham by this time it seems almost inconceivable that she would have agreed to such a proposal. I do not accept that there was any such discussion. Even if there was, the question arises who proposed Mr Kirkham to be Chairman of the Board, and who voted in favour of it. Stewart MacCallum stated that both Fiona and he agreed to this, but if they had just appointed Mr Kirkham as Alternate Director for each of them, they had no locus to do so (or Mr Kirkham had no capacity to propose himself, as his appointers were present and taking part in the proceedings). If, as I have held, he was not validly appointed as an Alternate Director, he could not be appointed as Chairman of the Board.

[272] To summarise my conclusions with regard to the meeting on 21 April 2008, I am satisfied that Mr & Mrs Sneddon have discharged the onus placed on them by Section 249 of the Companies Act 2006. I do not consider that this was a Board Meeting of the Directors of GDL, and I am not satisfied on the evidence that Mr Kirkham was appointed as an Alternate Director for either Stewart or Fiona MacCallum, or that he was appointed as Chairman of the Board of GDL.

[273] The meeting of 28 April 2008 at the Marriott Hotel in Glasgow was attended only by Margaret Sneddon and David Kirkham. (I note in passing that paragraph 18 of the Joint Minute of Admissions (no 32 of process in the action at the instance of Mr & Mrs Sneddon) states that this meeting was attended by the first pursuer and second and third defenders. I proceed on the basis that this is an error - none of the witnesses suggested that Fiona MacCallum was present at the meeting, and the minutes (no 38 of the joint bundle) do not suggest that she was there). On the basis of the conclusions reached above, this cannot have been a meeting of the Board of Directors of GDL as the only Director there was Margaret Sneddon. David Kirkham was not a Director, nor an Alternate Director, nor Chairman. There were however four Directors of the company at the time, so article 13 of the Articles of Association did not apply. There was no evidence that the quorum for the transaction of the business of the Directors was ever fixed at any other number than two, and accordingly as a result of article 89 of Table A the quorum was two. What happened on 28 April 2008 was not a meeting of the Board of Directors. Section 161 of the 2006 Act cannot render this valid, because as I have held above there was no genuine attempt at the meeting of 21 April to appoint Mr Kirkham as an Alternate Director - see Morris v Kanssen.

[274] The only person who requested a Board Meeting on 8 May 2008 at the Marriott Hotel in Glasgow was Mr Kirkham. Before he did this, he received Mrs Sneddon's e-mail dated 1 May 2008 (no 40 of the joint bundle), in which she stated inter alia "I am happy for you to act in your words as a buffer between Stuart and his creditors but under no circumstances did I agree to appoint you as a Director". Mr Kirkham responded by e-mail later that morning, in which he stated that "as a backstop to all of this the MacCallums and I are now calling a further Board Meeting to be held at the Marriott Hotel, Glasgow at 12.30 on Thursday 8 May 2008". There is no suggestion that there was any separate request for a Board Meeting from either Stewart or Fiona MacCallum. Margaret Sneddon stated that neither of the MacCallums had requested a Board Meeting (see paragraphs [32] and [49] above), and Stewart MacCallum stated that this meeting was arranged by Mr Kirkham (see paragraph [182] above). Although the minutes (no 46 of the joint bundle) make reference to Margaret Sneddon and Drew Sneddon claiming to have received none of the numerous e-mails sent by David Kirkham and Stewart MacCallum, there was no evidence that Stewart MacCallum had sent any e-mails to either of them about this. The only request for this meeting came from David Kirkham, who, as I have held above, was not a Director or Alternate Director of GDL and did not have capacity to request a Board Meeting.

[275] The proceedings at the meeting were also highly irregular. The minutes record that both Margaret and Drew Sneddon were present for part of the meeting by telephone. Article 14 of the Articles of Association of GDL provides inter alia that

"Any Director or his Alternate may validly participate in a meeting of the Directors...through the medium of conference telephone or similar form of communication equipment provided that all persons participating in the meeting are able to hear and speak to each other throughout the meeting".

It is clear from the evidence of Mr & Mrs Sneddon that they were not on a speaker phone or conference telephone in their house - Margaret Sneddon spoke on the telephone first, then handed it to her husband, who then returned it to her, and neither could hear the other end of the conversation when they were not holding the telephone. The evidence as to whether the equipment at the Marriott Hotel was a conference telephone or speaker phone or not was confused and contradictory. Stewart MacCallum stated that it was on speaker phone when Mr Sneddon was on the other end because he could hear what Drew Sneddon was saying although he could not remember what he was talking about (see paragraph [182] above), whereas Fiona MacCallum could not remember if it was a loud speaker phone or not, but she never heard Drew Sneddon on the end of the phone, and she relied on Mr Kirkham telling her that Mrs Sneddon was not prepared to accept his appointment as Chairman (see paragraph [150] above). There was also confusion as to whether Drew Sneddon took part in a telephone call in the middle of the day or in the early evening. Moreover, what is recorded as having happened at paragraphs 4.2.1 to 4.2.3 could not possibly have happened, even if David Kirkham had been validly appointed as an Alternate Director for Stewart and Fiona MacCallum.

[276] I am satisfied that Mr & Mrs Sneddon have discharged the onus of proof on them in terms of section 249 of the Companies Act 2006 with regard to this meeting. I do not consider that it was a properly constituted meeting of the Board of Directors of GDL, nor am I satisfied that the provisions of Article 14 of the company's Articles of Association were complied with. Both Mr & Mrs Sneddon made their opposition to Mr Kirkham's involvement in GDL abundantly clear even if this was a validly constituted Board Meeting, there was an equality of votes for and against Mr Kirkham and there was no question of Mr Kirkham having a casting vote.

[277] The final meeting was that held at Fort William on 20 May 2008. There had been no arrangement made for this meeting at the meeting of 8 May 2008. After that meeting, Mrs Sneddon sent an e-mail to Mr Kirkham dated 12 May 2008 reiterating her position that she had not agreed, and would not agree, to his becoming a Director of GDL, and that she agreed to meet with him as he maintained that he was a friend of Stewart's. Thereafter Stewart MacCallum sent an e-mail to Margaret Sneddon dated 16 May 2008 stating that "David, Fiona and I are convening a Board Meeting next week". It was of course competent for Mr MacCallum, as a Director of GDL, to request a Board Meeting. The e-mail specifies the place and time, but makes no mention of the date. Mrs Sneddon stated that this was the only intimation which she received of this meeting, and she was not told when it was to happen. In cross-examination she accepted that she spoke to Stewart MacCallum by telephone, but did not remember if she was told a date. Drew Sneddon stated that he had never been given any intimation of a purported Board Meeting of GDL in Lochaber, and that although he was aware that a meeting had been arranged in the Hire Centre in Fort William, this was not a Board Meeting of GDL but simply a meeting to discuss Stewart MacCallum's problems. Mr Kirkham could not remember how the Sneddons were informed about this meeting (see paragraph [124] above), and Mrs MacCallum's recollection did not extend this far (and indeed her recollection and understanding of this meeting was extremely vague and confused, as appears from paragraph [150] above). Mr MacCallum stated that he remembered speaking to Margaret Sneddon on 19 May although he could not remember if the date had been clarified with her.

[278] I am not satisfied on the basis of this evidence that Mr & Mrs Sneddon were given notice of the intention to hold a Board Meeting on 20 May 2008. If they had been given notice that there was to be a Board Meeting at the specified time and place on 20 May 2008, and they had chosen not to attend, they could not veto the holding of a Board Meeting because they were not prepared to attend - Colin Gwyer & Associates v London Wharf (Limehouse) Ltd. In that event, Stewart and Fiona MacCallum would have been able to conduct the company's business at a properly constituted Board Meeting (although the problems of Mr Kirkham's status, discussed in relation to the earlier meetings, would persist). It would, for example, have been open to them to appoint Mr Kirkham as an Alternate Director, resolve that he should be approved for the purposes of regulation 65 of Table A, and approve that such a verbal appointment was acceptable to the Board without written notice for the purpose of regulation 68. They did not of course do so. However, they did resolve to remove Margaret Sneddon as Company Secretary and appoint Malcolm Smith in her stead, and to change the registered office of the Company. On the basis of La Compagnie de Mayville v Whitley notice of the proposed subject matter of a meeting does not require to be given. Accordingly, if I was satisfied that Mr & Mrs Sneddon were given proper notice of the calling of this meeting, and that it was a Board Meeting of GDL, on 20 May 2008, much (but not all) of the business conducted at that meeting would have been validly and properly conducted. However, I am not satisfied that such notice was given. For this reason I do not consider that the meeting held at the Hire Centre, Fort William on 20 May 2008 was a properly constituted meeting of the Directors of GDL. Again, I am satisfied that Mr & Mrs Sneddon have discharged the onus of proof placed on them by section 249 of the 2006 Act.

[279] It cannot be argued on the basis of Browne v La Trinidad that Mr & Mrs Sneddon were required to state their objections as to lack of notice of this meeting as soon as reasonably possible after discovering that the meeting had been held, because this was the last meeting of the Company before these various proceedings were raised. Very shortly after the intimation of the minutes of this meeting, matters were placed in the hands of parties' solicitors, and these actions were raised. It cannot be argued that the Sneddons let the matter drift on, silently reserving to themselves the option to state their objection on the ground of lack of notice - they stated their objections to these proceedings, and Mrs Sneddon made her position abundantly clear by the lodging of the various forms with Companies House in June 2008.

[280] I am not persuaded by the argument advanced by senior counsel for Mr & Mrs MacCallum and Mr Kirkham that the approval of the previous minutes in this case operates as an implicit ratification of business transacted at an earlier meeting, even if the proceedings were invalid, on the basis of Municipal Mutual Insurance Ltd v Harrop and In Re Portuguese Consolidated Copper Mines Ltd. I accept that this may happen in some cases, but I am not satisfied that this rule applies in the present case. The minutes of the meeting of 21 April 2008 bore to be approved at the meeting of 28 April 2008 (although, unlike later minutes, they do not appear to have been signed). However, I have held that the meeting of 28 April 2008 was not a Board Meeting of the Directors of GDL, because the only Director present was Mrs Sneddon, Mr Kirkham being neither Alternate Director nor Chairman. Whatever was done at that meeting cannot ratify the proceedings of 21 April 2008, nor convert them into a meeting of the Board of Directors when they were not. This is not the sort of situation covered by section 161 of the 2006 Act. The minutes of the next meeting, on 8 May 2008, state that the meeting approved the minutes of the meeting of 28 April 2008, and the minutes of the meeting of 28 April 2008 were signed by Mr Kirkham. However, for the reasons given above, I have held that the meeting of 8 May 2008 was not validly constituted, and moreover Mr Kirkham was not Chairman of the Board. The minutes of the meeting of 20 May 2008 state that the minutes of the meeting of 8 May 2008 were approved, and again the minutes of 8 May 2008 were signed by Mr Kirkham as Chairman. However, for the reasons given above I have held that the meeting of 20 May 2008 was not properly constituted, and yet again Mr Kirkham was not Chairman. Finally, I note that the minutes of the meeting of 20 May 2008 themselves were signed by Mr Kirkham as Chairman, but they have not been approved by any subsequent meeting of the Board. There are a variety of defects in the procedures, but the result is that there has never been an approval by the Board at any subsequent validly called meeting of the minutes of the earlier invalid proceedings. There has been no implicit ratification of the business transacted at these earlier meetings. None of these meetings amounts to a validly called meeting of the Board of GDL.

[281] The suggestion was made in submissions by senior counsel for Mr & Mrs MacCallum and Mr Kirkham that there was no evidence at all that any objection was taken to the validity of the proceedings, and that Mrs Sneddon cannot now be heard to raise arguments which were not raised at the time. I do not accept this submission. Mrs Sneddon repeatedly (and forcefully) raised objections to Mr Kirkham's presence, appointment and assumption of power within GDL, although this is not always reflected in the minutes which he prepared. She sent a strongly worded e-mail indicating her opposition to his involvement with GDL on 1 May 2008, but her objections are not accurately reflected in the minutes of the meeting of 8 May 2008. When contacted by telephone on 8 May 2008 she indicated that she did not accept the validity of Mr Kirkham's appointment as Board Chairman and she did not approve this. She sent an equally strongly worded e-mail to Mr Kirkham on 12 May 2008 and she reiterated her position that she and her husband had never agreed to David Kirkham acting on behalf of the Company in her e-mail dated 19 May 2008.

[282] I have considered the effect of section 161 of the Companies Act 2006, but it does not appear to me that this is directly relevant in the present case. Although I have held that Mr Kirkham was not validly appointed as an Alternate Director and as Chairman of the Board of GDL, it does not appear to me that any of the issues in this case turn on whether he was or was not entitled to vote on a matter, nor are the acts of Mr Kirkham acting as a Director really an issue. It is no longer maintained that he was appointed as a Director in his own right, and there are no specific acts to which senior counsel for Mr & Mrs MacCallum and Mr Kirkham could point which fell to be validated by reason of section 161. Because there was no genuine attempt to appoint him as Alternate Director or Chairman of GDL (see Morris v Kanssen) the deeming provisions of the section do not apply.

Result
[283] For the foregoing reasons I propose to dispose of the conclusions in the action at the instance of Mr & Mrs Sneddon as follows. Because I accept that the letter dated 21 February 2008 was not genuinely signed by Mr & Mrs MacCallum, I shall refuse declarator in terms of parts (i) and (ii) of the first conclusion. Part (iii) of the first conclusion is no longer opposed and I shall grant declarator in terms thereof. Because of the absence of adequate notice of a Board Meeting on 20 May 2008 I shall also grant the declarator in terms of part (iv) of the first conclusion. Parts (i) and (ii) of the second conclusion were not insisted upon, and I refuse them. Part (iii) was not opposed, and I grant decree of reduction in terms thereof. Because the underlying resolutions were made at the meeting of 20 May 2008, I shall also grant decree in terms of parts (iv), (v) and (vi). Conclusions three and four were not insisted upon, and I shall refuse them.

[284] Turning to the counterclaim for Mr Kirkham in the action at the instance of Mr & Mrs Sneddon, for the same reason that I refused the first two parts of the first conclusion in the principal action, I shall grant declarator in terms of the first two parts of the first conclusion in the counterclaim. For the reasons given above, I shall refuse declarator in terms of the third and fourth parts of that conclusion. I shall grant reduction of the letter dated 21 February 2008 in terms of the second conclusion. The third conclusion is no longer relevant, and I shall refuse it.

[285] Turning to the remedies sought in the action at the instance of Mr & Mrs MacCallum, I shall grant declarator in terms of the first two parts of the first conclusion, and refuse the remaining parts of that conclusion. I shall grant reduction in terms of the second conclusion. The first four parts of the third conclusion were not opposed, but the fifth part was opposed, and no position was adopted on behalf of Mr & Mrs Sneddon with regard to the sixth and seventh parts. However, Mrs Sneddon accepted in evidence that the events which purported to be recorded in the various forms referred to in parts five, six and seven of the third conclusion did not in fact occur. I shall grant reduction in terms of the third conclusion.

[286] The fourth conclusion was not insisted upon, and I shall refuse it. The fifth conclusion, as amended, was insisted upon; however, as a result of my views as to the validity of the meeting of 20 May 2008, I shall refuse it. For the reasons given above with regard to the agreement between Mrs Sneddon and Mr MacCallum, I shall also refuse to grant decree of declarator in terms of the sixth conclusion.