John O’Driscoll v Vincent Raymond Clayton (Junior)

INTRODUCTION

1. This is my judgment on the trial of a claim brought by the claimant under CPR Part 7 for specific performance of an oral agreement said to have been made between him and the defendant for the sale and purchase of the entire share capital of a private, unquoted company known as Caddicks Ltd (“the company”). The company has only one asset of any value, which is certain land in the Cheshire countryside near Lymm (“the land”). Essentially, this case is in substance about the land, and not about the company. The defence to the claim is that there was no such agreement between the parties as that alleged. Instead, there was an oral agreement under which the claimant was to become a director of the company and to seek to obtain planning permission to develop the land, at the same time undertaking obligations of clearance of the land and paying certain costs incurred in enforcement proceedings brought by the local council. If planning permission was obtained, the parties were then to negotiate how best to exploit the development opportunity and share the benefit. Procedure

2. The events with which this claim is concerned took place largely in the first half of 2023. The claim form in this matter was filed on 21 March 2024. The defence was filed on 15 May 2024. There was no reply filed. Directions to trial were given, and costs budgets approved, by DJ Gibson on 5 December 2024. In particular, no permission was given to call expert evidence. On 5 February 2025 the court issued a notice of trial to take place before me between 5 August 2025 and 8 August 2025. At the trial, both sides were fully represented by counsel and solicitors. The claimant was represented by Michael Clarke of counsel, and the defendant by Philip Williams and Daniel Jeremy of counsel. I had the benefit of written skeleton arguments from both sides before the trial started, a speaking note from the defendant at the outset of the trial and a written closing submission from the defendant at the end. I have read them all. Apart from the pre-trial skeleton argument, the claimant’s submissions were made orally, and the defendant also made oral submissions. Plans

3. In order to assist readers of this judgment better to understand the layout of the land, I reproduce below part of a plan of the site of the land. This is taken from the schedule to an order made in February 2023 in the High Court by consent in enforcement proceedings brought by Warrington Borough Council (the relevant local authority) against both the defendant in these proceedings and the company. Under that order, the buildings marked “A”, “B” and “C” on the plan were to be removed by 30 June 2023, and the defendant and the company were to pay a sum towards the council’s legal costs. According to the terms of the order, “A” denoted the “Retail Building”, “B” denoted the “Cabin Building” and “C” denoted the “Yard Building”. I will return to the significance of the order in due course. The thick black land represents the boundary of the land.

4. Secondly, I reproduce below part of an aerial photograph of the site of the land. This was downloaded by me from Apple Maps at the time of the trial. I assume that it is a more recent photograph than the 2023 plan above, because some of the features are different. For example, the pond shown in the plan above (and which I also saw in contemporaneous video evidence played at the trial), has been filled in, and hence has disappeared from the photograph. For present purposes, however, nothing turns on any such differences. Traveller culture

5. The claimant and the defendant both come from traveller backgrounds. Some reference was made during the trial to elements of traveller culture. I will deal with these at the appropriate point. But I mention now that there was no expert evidence called on traveller culture. The only evidence about this was what the parties themselves told me. THE PARTIES’ CASES

6. In this section of the judgment, I draw on the filed statements of case in order to summarise the case of each party, as well as the matters which were common ground. But this summary does not replace those statements of case, which of course I have read. It is simply that, in the interests of clarity, I have covered the main points rather than descending into too much detail. Common ground

7. It was common ground between the parties that the company was incorporated on 19 September 2005, and that, by the time of the events with which we are concerned, there were 102 shares in issue, all held by the defendant. The land with which we are concerned appears to have been acquired by the company in May 2006 for £120,000, and the title registered at HM Land Registry. By the time of the events giving rise to this claim, the registered office of the company was in fact at the same address as the land, and the sole director was the defendant. The defendant lived, and continues to live, with his family in buildings constructed on the land

8. It is also common ground that certain filings at Companies House were made electronically by David Fletcher, an accountant acting for the defendant, on 17 February 2023. The apparent consequences of these filings were that the defendant ceased to be, and the claimant became, a director on that date, and confirmation was given that the 102 shares previously held by the defendant had been transferred to the claimant on that day. Further filings gave notice that the defendant had ceased to be a person with significant control of the company on that day and that the registered office of the company had been changed to the claimant’s address. A yet further filing on 24 February 2023 gave notice that, as from 17 February 2023, the claimant had become a person with significant control of the company, the nature of the control being that the claimant held at least 75% of the shares of the company. What is in dispute between the parties is why these various filings were made.

9. It is further common ground that subsequently (1) the supplier to the claimant of a new Elddis Crusader Storm caravan procured its registration with the Central Registration and Identification Scheme in the name of a relative of the defendant, and (2) a new Ford Ranger pickup truck was transferred from the name of the claimant into the name of the defendant or another person at his instigation. Again, the dispute between the parties is about why that happened.

10. Additionally, it is common ground that the defendant’s solicitors by letter dated 20 March 2023 sent to the claimant a copy of an order made in proceedings between Warrington Borough Council and both the defendant and the company, referred to in paragraph [3] above. This order was made by consent on a date which is not stated, but must have been before 17 February 2023 (because that is the date on which a final hearing was listed). The draft order was lodged at court on 8 February 2023, but sealed only on 22 February 2023. The proceedings were brought by the council in relation to breaches of planning control on the land. The order related to the use of the land and structures erected on it. The solicitors noted that the claimant had recently been appointed as a director of the company. The claimant

11. The claimant’s claim in this case, as set out in the particulars of claim, is that in about February 2023 there was a meeting between the claimant and the defendant on the land about the possibility of the claimant acquiring it. At that stage, the claimant says, the defendant told him in broad terms that there were planning issues which required him to vacate the land, that he wished to move from the area and was looking to sell the land. But there was no mention of the company. The claimant says that there was an agreement in principle for the sale of the land for a consideration consisting of a new Ford Ranger pickup truck and a new Elddis Crusader Storm caravan, together worth more than £60,000.

12. The claimant thereafter instructed a solicitor, who told him that the land was owned by the company rather than the defendant, and that the company had given a charge over the land. Further discussions took place between the claimant and the defendant, leading to an agreement that the charge would be redeemed and that the claimant would buy and the defendant would sell the entire issued share capital of the company for the same consideration as previously agreed. On about 9 February 2023 the defendant executed and delivered a Form MR04, stating that the defendant was the beneficiary of the charge which had been redeemed in full. On 16 or 17 February 2023, the claimant provided the truck and the caravan to the defendant, but did not release the logbook for the truck until the defendant had made the appropriate filings at Companies House concerning his resignation as a director, the appointment of the claimant as a director and the transfer of shares. As stated above, these filings were made by David Fletcher, an accountant acting for the defendant on 17 February 2023. As also stated above, the truck and the caravan were also transferred out of the claimant’s name into that of the defendant or someone nominated by him.

13. The claimant says that it was agreed that the defendant would have 6 to 8 weeks to vacate the land. During that time he engaged labourers to start clearing the land, a security company to install CCTV cameras at the land and a planning consultant to investigate the planning issues. He then received the letter from the defendant’s solicitors dated 20 March 2023, referred to above.

14. The claimant further says that on about 22 May 2023 David Fletcher on behalf of the defendant (and without the claimant’s authority) made further electronic filings at Companies House. These purported to appoint the defendant (or possibly his father), and remove the claimant, as a director of the company as from 22 May 2023. They also purported, as from the same date, to change the registered office of the company back to the address of the land and to give notice that the defendant had become, and the claimant had ceased to be, a person with significant control in that the defendant purportedly held 75% or more of the shares of the company. The claimant discovered these further filings on about 18 June 2023 and contacted David Fletcher by telephone. Mr Fletcher explained that the defendant had instructed him to make those filings. The claimant contacted the defendant by telephone, when the defendant explained that he had procured the filings so as to assist the claimant, on the basis that the claimant was under investigation by the authorities.

15. The claimant further says that, following communications between the parties, he believed that the defendant would reverse the filings of 22 May 2023 and that the land would be vacated by the defendant within 4 to 6 weeks of 16 July 2023. However, in August 2023 when the claimant visited the land, the defendant made threats to him and indicated that he would not leave the land. The filings of 22 May 2023 have not been reversed, and the claimant has not been given possession of the land. The defendant

16. The defendant denies that he contracted with the claimant in the terms alleged. He says he first met the claimant on the land in February 2023. At the meeting, the defendant made the claimant aware of the planning enforcement issues, “the need for all the outbuildings on the land to be taken down and for various legal costs of [the council] to be paid pursuant to the [court] order”. He said he was worried and that he would welcome a sale at the right price so that he could move away with his family. The claimant offered to help him by introducing a good planning consultant, and assisting in having the land cleared.

17. The defendant says that the parties reached the following agreement. The defendant’s accountant would file relevant forms with Companies House in order to give temporary control of the company to the claimant (so that he could negotiate with the local authority about the planning issues). The defendant would find somewhere else to live and vacate the land. The claimant would remove the outbuildings in accordance with the terms of the court order, and the parties would pay an equal share of the council’s costs in accordance with that order. Once the land was cleared, the claimant would try to obtain planning permission, which would make the land more valuable. At that point the parties would have the land revalued and agree on what price it should be sold to the claimant, taking into account the claimant’s efforts and costs incurred.

18. The defendant agrees that the claimant gave the truck and the caravan to the defendant, but says that at the same time the defendant gave to the claimant a Rolex watch that he owned and a horse-drawn carriage, worth approximately £30,000. This was done not as part of the parties’ agreement but as an exchange carried out as a sign of good faith between members of the travelling community who were entering into a business transaction. The exchange took place about a week after their agreement had been reached, and the claimant took away the carriage on a trailer from the land. The defendant further agrees that he attended his accountant’s office with the claimant to carry out the filings which are common ground. However he says he did not know what was the meaning and effect of the forms he authorised to be filed. If he had known that the effect might be to transfer ownership of the land he would not have authorised them. He had no intention to transfer the ownership of the shares in the company to the claimant.

19. The claimant did not comply with the agreement, doing only minimal work in relation to the land. He did not pay the council’s costs, and made no attempts either to clear the land or help take down the outbuildings. The defendant took the view that the claimant was not going to honour his obligations, and instructed his accountant to reverse the filings previously made in respect of the company at Companies House. He says the form MR04 was filled out incorrectly because the defendant believed that a “bounceback” loan had been repaid which was not in fact a charge. The defendant has subsequently spent money and effort in having the buildings at the land taken down. The defendant accepts that the claimant engaged a security company to install CCTV cameras at the land, and labourers to start clearing the land, but says that the labourers did only “some tidying work” and did not remove the outbuildings. The defendant accepts that the claimant visited the land in August 2023 but denies that he threatened the claimant.

20. The defendant accepts that the reversed filings at Companies House remain unchanged, and that he has not given up possession of the land to the claimant. The defendant says that the land was marketed in 2019 for £1 million and that the defendant received an offer of that sum for the land at this time, although it did not complete. He says the land is still worth that sum, and that he would not have sold the land or the company for just £60,000. HOW CIVIL JUDGES DECIDE CASES General

21. For the benefit of the lay parties concerned in this case I will say something about how English judges decide civil cases like this one. I borrow the following words largely from other judgments of mine in which I have made similar comments. First of all, judges are human. They do not possess supernatural powers that enable them to divine when someone is mistaken, or not telling the truth. Instead, they take note of the witnesses giving live evidence before them, look carefully at all the material presented (witness statements and all the other documents), listen to the arguments made to them, and then make up their minds. The point is that there are a number of important procedural rules which govern the decision-making of judges, and which are not as well-known as they might be. I shall briefly mention some of them here, because non-lawyer readers of this judgment may not be aware of them. Burden of proof

22. The first is the question of the burden of proof. Where there is an issue in dispute between the parties in a civil case (like this one), one party or the other will bear the burden of proving it. In general, the person who asserts something bears the burden of proving it. Here the claimant bears the burden of proving his case. The defendant does not have to prove his. It is sufficient to defeat that of the claimant. On the other hand, where the defendant goes beyond denying the claimant’s assertions, and himself asserts something new in answer to the claimant’s case (for example the value of the land, or the customs of Travellers) then the defendant must prove that assertion.

23. The importance of the burden of proof is that, if the person who bears that burden satisfies the court, after considering the material that has been placed before the court, that something happened, then, for the purposes of deciding the case, it did happen. But if that person does not so satisfy the court, then for those purposes it did not happen. The decision is binary. Either something happened, or it did not, and there is no room for maybe. That may mean that, in some cases, the result depends on who has the burden of proof. Standard of proof

24. Secondly, the standard of proof in a civil case is very different from that in a criminal case. In a civil case like this, it is merelythe balance of probabilities. This means that, if the judge considers that something in issue in the case is more likely to have happened than not, then for the purposes of the decision it did happen. If on the other hand the judge does not consider that that thing is more likely than not to have happened, then for the purposes of the decision it did not happen. It is not necessary for the court to go further than this. There is certainly no need for any scientific certainty, such as (say) medical or scientific experts might be used to. The role of judges

25. Thirdly, in our system, judges are not investigators. They do not go looking for evidence. Instead, they decide cases on the basis of the material and arguments put before them by the parties. They are umpires, or referees, and not detectives. So, it is the responsibility of each party to find and put before the court the evidence and other material which each wishes to adduce, and formulate their legal arguments, in order to convince the judge to find in that party’s favour. There are a few limited exceptions to this, but I need not deal with those here.

26. Accordingly, it is no good a party or a witness telling the judge during the trial that he or she has evidence, or more evidence, of a fact in issue at home (or elsewhere) and can go and fetch it. That is not fair, and it is not how the system works. The parties generally have to disclose relevant material in advance to each other, and then place before the court (in the bundle) the material they intend to rely on. It is a “cards on the table” approach. Trial by ambush has no place here. By way of example, after the evidence had closed, and before we began the closing submissions, I was asked to admit further documents into evidence. After hearing both sides, I refused to do so. The documents were not recent and could have been disclosed earlier. The benefit of admission to one side was outweighed by the unfairness to the other in admitting them. The fallibility of memory

27. Fourthly, more is understood today than previously about the fallibility of memory. In commercial cases, at least, where there are many documents available, and witnesses give evidence as to what happened based on their memories, which may be faulty, civil judges nowadays often prefer to rely on the documents in the case, as being more objective: see Gestmin SGPS SPA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), [22], restated recently in Kinled Investments Ltd v Zopa Group Ltd [2022] EWHC 1194 (Comm), [131]-[134]. As the judge said in that case, “a trial judge should test a witness's assertions against the contemporaneous documents and probabilities and, when weighing all the evidence, should give real weight to those documents and probabilities”.

28. In the present case, there are a number of useful documents available. This is important in particular where, as here, some time has elapsed since the relevant events took place. It is even more so in a case where, as the defendant said in answer to a huge number of the questions put to him in cross-examination, he simply could not remember. These documents often enable dates and times of various events to be fixed with accuracy.

29. In deciding the facts of this case, I have therefore had regard to the more objective contents of the documents in the case. In addition to this, and as usual, in the present case I have heard the parties (who made witness statements in advance) give oral evidence while they were subject to questioning. This process enables the court to reach a decision on questions such as who is telling the truth, who is trying to tell the truth but is mistaken, and (in an appropriate case) who is deliberately not telling the truth. I will therefore give appropriate weight to both the documentary evidence and the witness evidence, both oral and written, bearing in mind both the fallibility of memory and the relative objectivity of the documentary evidence available. Reasons for judgment

30. Fifthly, a court must give reasons for its decisions. That is what I am doing now. But judges are not obliged to deal in their judgments with every single point that is argued, or every piece of evidence tendered. Judges deal with the points which matter most. Put shortly, judgments do not explain all aspects of a judge’s reasoning, and are always capable of being better expressed. But they should at least express the main points, and enable the parties to see how and why the judge reached the decision given. Failure to call a witness or put in relevant evidence

31. Lastly, there is the question whether a party’s failure to call a relevant witness or put in relevant evidence which is available has any effect on a party’s case. The former question arose in Royal Mail Group Ltd v Efobi [2021] 1 WLR 3893, SC. In his judgment, Lord Leggatt (with whom all the other members of the court agreed) said: “41. The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”

32. But the principle goes further, in that there may be things or documents, for example, which are (or were) available to a party and would be, or contain, evidence relevant to an issue before the court, but are never produced to the court by that party. Thus, in Armory v Delamirie (1722) Str 505, the plaintiff was held entitled as against the defendant to a jewel that he had found, but the defendant refused to produce the jewel in order to be valued. The judge directed the jury “that unless the defendant did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages: which they accordingly did.”

33. Thus, if a party fails to disclose relevant documents in accordance with a disclosure obligation, the court may draw an appropriate inference against the party on the issue to which it was relevant. Steyn J applied the principle not long ago in the case of Vardy v Rooney[2022] EWHC 2017 (QB), where an order was made for the inspection of the mobile telephone of the claimant’s witness, but the phone was allegedly “lost overboard” whilst on a boat trip a few days later. WITNESSES

34. In the present case I heard only from the two parties themselves as witnesses of fact. (As I have already said, there was no expert evidence.) The claimant had in addition obtained witness statements from three other witnesses, which they signed, in each case supported by a statement of truth. However, none of those three witnesses in the end came to court to be cross-examined. That means that the defendant is entitled to rely on anything in those statements as hearsay evidence (CPR rule 32.5(3)), but the claimant may rely on those statements only with the permission of the court (CPR rule 32.5(1)). In fact, at the trial both parties referred to parts of the witness statements without objection at the time from the other, though the defendant in closing raised the issue. Because it has been raised, I make clear that, in these particular circumstances, I see no good reason not to permit reliance so far as the claimant is concerned. I bear in mind, however, that the statements, though supported by a statement of truth, are not as good evidence as that of witnesses in court, who take an oath to tell the truth, who can be cross-examined on their statements, and whose demeanour can be observed.

35. As I have said, the parties gave evidence, and each was cross-examined for about a day. I give here my impressions of them. The claimant was a fluent and intelligent witness, although a little on edge, who gave credible answers to questions put. Cross-examination made no impression on him. There were a number of attacks on the claimant’s credibility, based on the fact that he had changed his name in the past, on allegations that he lived abroad in the United States of America, and that he wanted the land for commercial rather than personal purposes. However, in my opinion, so far as his evidence in this case went, he was telling what he thought to be the truth.

36. The defendant was a slower, more laconic witness, evidently unused to reading. But he is also used to being listened to, and indeed to getting his own way. At several points in his evidence he became very argumentative with counsel. He also deflected or did not answer questions that he did not like. He answered a very high proportion of questions with “I don’t remember” or “I don’t know.” Having observed him closely, I think he remembered or knew much more than he was prepared to admit, but was deliberately choosing not to answer. As for the evidence that he did choose to give, I thought he was making up much of it on the hoof. Indeed, he maintained patently untrue answers to questions even in the light of being taken to convincing evidence to the contrary. As a result, I thought I could not rely on many of the things he said which were not corroborated by an objective source. That does not mean that I disbelieved everything he said. For example, he told me that the property adjacent to his home had recently obtained planning permission. No-one suggested that that was not true.

37. All that said, I record that I do not think that the parties told me everything that they knew about this matter. There was a background to the case which was occasionally hinted at, but without any detail. As I have said, however, it is for the parties to place before me the material on which they ask me to decide this case. They have placed before me what they wish me to see, and I must and will decide the case on that basis. In this jurisdiction, at least, it is not the judge’s function to go inquiring into the state of events independently of the parties. The judge is not an inquisitor, much less a detective. Instead, the judge adjudicates on the basis of the admissible evidence put in by the parties themselves, though as tested by any cross-examination. FACTS FOUND

38. On the basis of the material before me, including the common ground, I find the following facts. The claimant is a building contractor and a member of the Traveller community. He was brought up in the wider Bristol area, and the majority of his friends and family are located there. He used to live in Cheshire with his then partner and their children, but moved to Gloucestershire after the relationship broke down. In January 2023 he was approached by the defendant’s father (also called Vincent Clayton) when he was in the garden of his former partner’s house. They began talking, and the claimant said he was trying to find land locally to buy, in order to keep ponies and horses for his children. Mr Clayton senior said his son had land that he was trying to sell, and an arrangement was made for the claimant to see the land the next day. The January 2023 meeting

39. At the land, the claimant met the defendant, who appeared to be living there with his family in a cabin. The land had the appearance of being used to dump waste and scrap metal. It did include horse shelters and a paddock, but the latter seemed to be very wet. The defendant said he had bought the land for £120,000. He explained that he had no planning permission to enable him to live there, and the local council were trying to get him to leave. He also had personal reasons for wanting to leave the area. He said he was prepared to remove trucks and trailers, and also a large fuel tank, that were on the land, but nothing else. It would be for the claimant to clear the scrap metal and waste if he wanted to. The claimant thought that this would be an expensive business, although he had contacts that would enable him undertake it if he wanted.

40. The defendant and his father were pressing the claimant to make an offer. The defendant said he wanted money to buy a new 4×4 motor vehicle (like the Ford Ranger which the claimant had) and a caravan. The claimant said he could supply the defendant with both. The Ford Ranger had recently cost £29,416.67 and the caravan had been recently purchased for £31,000. The defendant said that was exactly what he wanted, but he tried to negotiate a cash payment on top. The claimant wanted time to think about it, and in particular the cost of clearing the land, but the defendant pressed him to agree there and then. He said, “You know what, there is no time like the present, if I can take the 4×4 and caravan we have a deal”. The claimant said he was happy with that, and he and the defendant shook hands. I find as a fact that they had agreed a deal: the defendant would sell the land to the claimant in exchange for the 4×4 and the caravan.

41. The defendant however says that there was no agreement by him to sell the land to the claimant in exchange for the 4×4 and the caravan. Instead, he says that the 4×4 and the caravan were simply gifts from the claimant to the defendant to show good faith, in accordance with traveller custom. He also says that he gave a Rolex watch and an old horse-drawn traveller caravan to the claimant as signs of his good faith. He says the agreement made between them on that day was one whereby the claimant would remove the three buildings from the land in compliance with the consent order at his own cost, and would pay half the costs payable under the consent order. The defendant would appoint the claimant a director of the company, and the claimant would then at his own cost seek to obtain planning permission on the land. Once that was obtained, the parties would negotiate a price for the sale of the land, which would take into account the time and costs spent by the claimant in complying with the agreement.

42. I do not believe any of this. First of all, the defendant was an unsatisfactory witness, in the ways that I have already described, in contrast to the claimant, whose evidence was far more credible. Secondly, except for two generic photographs, the defendant was unable to produce any documentary evidence of either the Rolex or the horse-drawn carriage, or (and more importantly) of his ownership of either. Thirdly the claimant said he knew nothing of any such traveller custom as the defendant was alleging, and there was no other evidence (let alone expert evidence, if that were available) to show that there was such a custom. On the evidence, I find there was no such custom. Even if there were such a custom, it seems implausible that the gifts given would be of such significant value. Fourthly, at the time of this meeting, the claimant thought he was buying the land from the claimant. He knew nothing of the company. There was therefore no reason for him to agree to become a director of it, for any purpose. Fifthly, there was an exchange of emails between the claimant’s solicitor and the defendant’s accountant which is consistent with the claimant’s case, but inconsistent with the defendant’s. I will deal with this shortly, at the chronological point in the story.

43. Sixthly, I do not think it at all plausible that the claimant, who sought land for the purpose of keeping ponies and horses, would agree to a binding commitment to clear the land at his own expense and contribute half the costs owed by the company to the local authority, as well as negotiate, again at his own cost, the grant of such planning permission as could be obtained with the local authority, without any guarantee whatever of being able to buy the land at the end of the day. The defendant at that stage believed that there was no value in the land, and that he was better off taking what he could get for it and moving on. In my judgment, the agreement between the parties was as I have set out, a simple sale of the land in exchange for the 4×4 and the caravan.

44. In his evidence, the defendant said that the land was worth at least £1 million, and that he would never have agreed to sell it for goods worth £60,000. There was however no evidence of its having that value in its present condition. The defendant had marketed the land in 2019. The sales brochure invited offers on the region of £1 million. The defendant’s evidence is that there was one person interested.

45. That person sent an email saying in part: “As mentioned, I'd be happy to pay £lm for the site on the provision that I have some clarity from the local authority as to what I can do with it. On this basis would your client be agreeable to a 4 week exclusivity period to allow us to have some discussions with the local authority and our planning consultant as to what would be acceptable on site? If so I will get an exclusivity agreement sent across to you and we can move forward with this as quickly as possible. Once we have an idea and we're comfortable with what we can do on site, we would look to progress the exclusivity to an option with a purchase subject to planning. Again we would engage with our architects and look to submit a planning application as quickly as possible.”

46. However, this is a long way from a firm offer to pay £1 million, even conditionally, for the land. It was first and foremost a request for a 4-week exclusivity period. That is not an offer to pay anything. It might perhaps then lead to an option to purchase. That is not an offer either. In any event, it would be subject to planning permission being obtained. But the interest expressed went nowhere. The defendant’s planning expert had advised him that he would not obtain such permission. Moreover, by the time of the meeting with the claimant, some four years later, the land was covered with dumped waste and scrap metal, and subject to enforcement proceedings which would lead to the court-imposed obligation to remove the buildings unlawfully erected upon it, and to pay costs. The defendant wanted to cut and run in the meantime, with whatever he could get for it.

47. There is a second point. In the company’s filed accounts, the balance sheet for 30 September 2022 shows that the company’s tangible assets in 2021 were £61,013, but in 2022 were zero. The balance sheet for 30 September 2023 shows that the assets for 2022 were still zero, but also zero for 30 September 2023. The same pattern is shown in the balance sheet for 20 September 2024. Indeed, the company appears to have been balance sheet insolvent. It is not plausible to suggest that the defendant instructed his accountant to draw up these accounts for him to sign, and then did not notice that a £1 million asset was missing from the balance sheet. In my judgment, on the material before me, the land could not have been worth anything like £1 million in 2023, and the defendant’s point falls away. Events after the meeting

48. The deal once done, the claimant instructed a solicitor, who investigated, and found out that the defendant did not own the land himself. Instead it was owned by the company (Caddicks Ltd). Moreover the land had a charge on it. The claimant asked the defendant about these matters. The defendant told him that he had intentionally left the land in the company, and subject to the charge, so that it would be more difficult for creditors to execute any judgments against him. He told the claimant that by buying the company he would effectively be buying the land. So the claimant agreed to buy the company on the same basis.

49. The claimant’s solicitor (Michael Levy) wrote to David Fletcher on 2 February 2023 as follows: “Good morning David. Further to our conversation earlier this week I confirm that I act for John O'Driscoll, who is proposing to purchase the company Caddicks Ltd from your client Vincent Clayton. I am informed that Vincent's solicitor is arranging the discharge/ removal of the of the charge registered at HMLR and companies house in favour of Commercial First Business Ltd. Once you are in possession of proof that the charge has been removed both at HMLR and Companies House will you be in a position to confirm that there are no other outstanding liabilities and be able to draw up an up-to-date set of accounts/balance sheet.”

50. David Fletcher replied on 13 February 2023 as follows: “Hi Michael, just to keep you in the loop I'm currently working on the accounts to 30th September 2022 which I can forward once approved. I will need to review the period 1st October 2022 to date and should have these sorted shortly. I note in your email, you have asked about no other outstanding liabilities and I understand that the Bounce Back Loan will be cleared by Vincent when the deal is done so currently this balance is showing as outstanding. Also there's a current corporation tax liability of £1,032.65 which is due on or before the 1stJuly 2023. This is shown in the accounts to September 2022. I will assume that the outstanding directors loan (money owed to Vincent) will be "written off'' as part of the transaction – assuming no monies are being exchanged as part of this deal? Please let me know if this is not the case.”

51. It will be seen that these emails are consistent with the claimant’s case, and inconsistent with that of the defendant. In particular, the company’s accounts were made up to 30 September in each year, but the defendant’s accountant told the claimant’s solicitor, in the email of 13 February 2023, that he would draw up accounts “to date”. That indicates a sale of the company. Moreover, there was no mention in the correspondence of the enforcement proceedings, although other liabilities of the company were referred to. Indeed, Michael Levy expressly asked for confirmation that “there are no other outstanding liabilities.”

52. When Mr Levy subsequently checked the land register, it was reported that the charge had been removed from the land on 9 February 2023. A statement of satisfaction of charge (MR04) was filed. The defendant accepted that he had signed it, as chargee, confirming its discharge. Again, this is consistent with the sale of the company. If the company was not being sold, it was unnecessary, and (on the defendant’s account) would make him more of a target for creditors, which he was anxious to avoid. The enforcement proceedings

53. The defendant had been right at the January meeting with the claimant to say that he was having problems with the local authority. He had lived on the land for many years in breach of planning regulations and had built three buildings upon it without residential planning permission. He had sought, but been refused, such permission in 2013 and 2014, and in various appeals therefrom. He had been advised by a planning expert (Matthew Green) that there was no possibility of obtaining planning permission in the future. On 1 December 2022, the local authority began enforcement proceedings against him. These proceedings were settled between him, the company and the authority, by a consent order which was filed at court on 9 February 2023, and sealed on 22 February 2023.

54. This order contained a penal notice, and granted injunctive relief prohibiting the use of the buildings and requiring them to be removed by 30 June 2023. Moreover, the defendant and the company were to pay the authority’s costs of £12,396.40 within four months, with £5000 of that to be paid by 31 March 2023. As I have said, I accept that the defendant told the claimant at their meeting that he was having problems with the council. However, despite the defendant’s evidence to the contrary, I find that he did not tell the claimant about the enforcement proceedings, and that the claimant knew nothing about them, or about the consent order, until the letter of 20 March 2023 from the defendant’s solicitor, referred to below. “Completion”

55. Returning to the transaction itself, the claimant’s solicitor Michael Levy appears not to have been further involved. Instead, the claimant and the defendant went together to the defendant’s accountant (David Fletcher) on 17 February 2023. The accountant went online and logged into the Companies House website for Caddicks Ltd. The accountant then added the claimant as a director, removed the defendant as a director, printed out the change and gave the printout to the claimant. He told the claimant that he was now the owner of the company and would receive a letter from Companies House to confirm. (The claimant duly received that letter, dated 18 February 2023. But it confirmed only that he was now a director of the company.) The defendant told the claimant that he would vacate the land within 6 to 8 weeks (ie by mid-April) as he had a lot of skips to move, belonging to his brother’s skip hire business, plus about 20 containers, together with old trucks and other vehicles belonging to his father, and also the diesel fuel tank. The claimant delivered both the Ford Ranger and the caravan to the defendant at about 7 o’clock that evening. The defendant’s wife was subsequently registered as the owner of the caravan.

56. The claimant then arranged for a local contractor to supply and fit a CCTV system at the property so that he could monitor who entered and left and also whether anyone was attempting to tip more waste. The cameras were installed on 21 and 22 February 2023. The system was connected to the internet, so that it could be viewed remotely by the claimant. This is consistent with the claimant’s purchase of the company (and its land). However, if he is merely becoming a director of the company with a view to negotiating planning permission, it is an unnecessary expense for him. Further company filings

57. Shortly afterwards, the claimant was told by a friend that, in order to own the company, he had to be the only shareholder. But the changes that had been made had been only to add the claimant as a director of the company, and remove the defendant. There had been no change to the shareholding. The claimant contacted the defendant and explained this. The defendant said it must have been a mistake by the accountant, and that he would have the accountant rectify it. Later the claimant telephoned the accountant, who said he had been told by the defendant to make the claimant the sole shareholder. He had now made that change, which is recorded at Companies House as having taken place on 24 February 2023. This is strongly indicative of the sale by the defendant to the claimant.

58. The claimant asked the defendant’s accountant for evidence of the change, and he sent the claimant a photograph of the screen in front of him, showing what he had changed. This photograph records that the claimant had been notified to Companies House as a “Person with Significant Control” of the company, as from 17 February 2023. The document as filed at Companies House (in Form PSC01) states that the nature of the control was that with effect from 17 February 2023 the claimant was a person holding 75% or more of the company’s shares. There is also a document filed showing that the defendant ceased to be a “Person with Significant Control” on the same date. Finally, there is a further Companies House document stating that the shareholding of the company had been altered in that the 102 shares in issue had been “transferred on 2023-02-17” so as to leave the defendant “0 ORDINARY shares held at the date of this confirmation statement”, but the claimant “102 ORDINARY shares held as at the date of this confirmation statement”. The accountant also told the claimant that he (the accountant) could no longer make any changes as he was no longer the company’s accountant, and in future it would be the claimant’s own accountant that would have to make changes. The clearance contract

59. The claimant subsequently discussed and negotiated a contract with his own contractor (Liviu Bostin) for the clearing of the site after mid-April (by which time the defendant would have vacated the site). This agreement, which was in writing, was signed on 18 March 2023. The price agreed for the work was £25,000. Notice of the court order

60. On 20 March 2023, the defendant’s solicitors. Horwich Farrelly Ltd, sent a letter to the claimant, enclosing a copy of the court order filed on 9 February 2023, but sealed only on 22 February 2023. The letter said (in part): “We are aware that you have recently been appointed as Director of Caddicks Limited, and so this Order has been sent to you for your attention and records. Please note that the Order includes important obligations on Caddicks Limited relating to ceasing to use and removal of the Land with a penal notice for failure to comply by 30 June 2023.” This was the first time that the claimant had been made aware of this order (which had not been made at the time of the agreement between the parties). Planning

61. In April 2023, the claimant contacted the firm of Matthew Green, planning expert, and asked for him to come and appraise the planning potential of the land that he thought he had bought with the company. A site visit was arranged for 3 May 2023. The claimant could see from the CCTV cameras that the defendant had moved most of the containers, and all of the skips, off the land, but he telephoned the defendant to make sure that he stayed no longer than the 6 to 8 weeks he had said. He told him of the attendance of Mr Green on 3 May 2023. The defendant told him that he was moving as fast as he could, and that he would be off the land by then.

62. As it happened, the claimant could not be there on 3 May 2023, but he arranged for a friend of his called Brian Hannifin to attend on his behalf. As it also happened, the defendant had not left the land by then. While Mr Green and Mr Hannifin walked around, the defendant was observing and listening to them (as he accepted in cross-examination). Indeed, he was introduced to the defendant. Mr Hannifin subsequently telephoned the claimant from the site and put Mr Green on the line. Mr Green said that he had told Mr Hannifin that there was no chance of anyone living on the property, because it was on a flood plain, but that, in his opinion, once everyone was off it, it could be put back to its previous use as a garden nursery, thus making it possible to apply for a change to light industrial use. The defendant accepted in cross-examination that he thought he heard Mr Green say that. This would make the land more valuable than it was at the moment, even though it would not be as valuable as residential development land. Site clearance

63. The claimant’s contractor attended the site within a couple of weeks after that, and with his team began clearing the land in accordance with the agreement which the claimant had made with him dated 18 March 2023. The defendant was still there. The contractor and his team attended the site over eight days, carrying out significant ground clearance. Subsequently, in one part of the yard they scraped out waste material, crushed concrete and stone rubble. The claimant’s concerns

64. In early June the claimant became aware, via online monitoring, that the CCTV cameras at the site had been shut down. The security company concerned told the claimant that the camera power had been disconnected about a week before. The claimant attempted to speak to the defendant by telephone, without success, and then checked online at Companies House. There he saw that he had been removed as a director and as a shareholder. The documents filed at Companies House showed that these reversing transactions were received for filing on 22 May 2023. That was about 2½ weeks after the visit of Mr Green to the site.

65. The claimant contacted his own accountant, who told him that only the defendant’s accountant had the necessary login details to make the changes. So, he telephoned the defendant’s accountant on 18 June 2023, when he was told by David Fletcher that he had been instructed by the defendant to replace the claimant as shareholder and director. (This was confirmed by the defendant in cross-examination.) When the claimant remonstrated with Mr Fletcher for not having the authority to do this, he said he was not going to deal with this, and that the claimant should contact the defendant, before hanging up the phone. Contact with the defendant

66. The claimant did attempt to contact the defendant by telephone, but the defendant did not take his calls. Later the same day Mr Hannifin telephoned the claimant to say that the defendant had turned up at his home unexpectedly. The defendant was speaking to other people who lived on the same site. The defendant was telling them that he had heard that the claimant was being investigated by the authorities. Mr Hannifin offered his phone to the defendant to speak to the claimant. The defendant took it, and told the claimant that he was being investigated, and that his accountant had told him to make the changes in order to protect the claimant.

67. I find that this claim by the defendant is untrue. Apart from the defendant himself (whom I disbelieve) there is no evidence that the defendant’s accountant had told him that he should make the changes in order to protect the claimant. The accountant has not given any evidence. No reason was suggested why making these changes would protect the claimant, and I can see none. Moreover, there is no substantive evidence whatever that the claimant was then being investigated by the police or other authorities. If there were then any such investigations on foot, and if the defendant had known of them (so they were not secret), objective evidence of them would have surfaced by now. But none has.

68. In fact, to the contrary, I am satisfied on the evidence before me that the persons who were being investigated by the police at that time were the defendant and his father. Indeed, on 7 September 2023, they were arrested by Manchester police, on suspicion of money laundering and possession of firearms. There were also issues relating to a number of neglected animals who were found at the property and rescued by the RSPCA. However, and in fairness to the defendant, I also record that no criminal charges were ever brought in respect of these matters against him (or his father).

69. In the same telephone conversation, the defendant told the claimant that he would reverse the online changes he had caused to be made at Companies House. He also admitted to the claimant that he had switched off the cameras, though in cross-examination he said it was his wife and not him (whereas in his witness statement he said it was damaged by flooding). And he told the claimant that one of the three buildings on the land had gone, but that the others had not. The claimant offered to send his own men to help with the removal, but the defendant said that he would see how things were in a couple of weeks. Nevertheless, the claimant was concerned that time was running out before the deadline in the order of 30 June 2023.

70. On 16 July 2023 the defendant told the claimant (in a telephone conversation which he recorded) that he would be off the land in 4 to 6 weeks. That statement is consistent with the defendant’s having sold the company (and the land) to the claimant. On 12 August 2023, in another telephone conversation (which he also recorded) the defendant told the claimant that he would have completed the clearance work by the time the claimant returned from the USA to the UK on 20 August 2023.

71. On 20 August 2023, the claimant arrived back in the UK, and drove to the land from the airport. There he met the defendant, who had with him his son and another man, both over 6 feet tall, and well-built. There were discussions between the claimant and the defendant, during the course of which they drove to the local shop and back again. The defendant told the claimant that the claimant had “embarrassed his name” and that “his family was very upset with [the claimant] about it”. The defendant said he was owed money for clearing the land. The claimant denied it. The defendant said his family were “fuming” and that they wanted to “chop [the claimant] up” and take over the land, but he (the defendant) would not let them do that. The claimant was frightened, and left the site shortly afterwards.

72. On 22 August 2023, the claimant telephoned the defendant. Once again, he recorded the call. The defendant said that he would be finished and that he would leave as soon as possible. Again, this is consistent with the sale. However, he did not leave, and was still occupying the land at the time of the trial in 2025. It is plain that he simply has no intention of leaving. I also note that, in none of these telephone calls which the claimant recorded, and which were played at the trial, did he once allege that there was any agreement of the kind he has put forward in his defence to this claim, let alone that the claimant had then breached it. But this simply confirms the view to which I had already and independently come.

73. The defendant criticised the claimant for recording the calls without warning, and also for faulty transcription of the recordings. Thirdly he criticised the claimant for cutting off portions of the recording. There was, however, no suggestion that the recordings had been tampered with or created by artificial intelligence or anything of that kind. The court is entitled to take them into account. I accept that some of the transcriptions are inaccurate, but I have heard the recordings myself and I am not surprised at the inaccuracies, because both men have distinctive accents and the telephone lines are not always clear. I also accept the claimant’s explanation that sometimes he did not manage to start recording as soon as the call was answered by the defendant. Nevertheless, I have exercised appropriate caution in relation to these recordings. LAW

74. I do not need to say much about the law applicable to this case. The relevant contract law principles are all well-known. Nevertheless I think it would be useful to set out the following.

75. A contract to negotiate a contract is not legally enforceable. It is simply an agreement to agree. In Walford v Miles [1992] 2 AC 128, HL, Lord Ackner, with whom all the rest of their lordships agreed, said (at 136G): “ … as the law now stands and has stood for approaching 20 years, an agreement to negotiate is not recognised as an enforceable contract … ” The House of Lords refused to accept that there could be an enforceable contract to negotiate in good faith. Lord Ackner said (at 138G): “A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of a negotiating party. It is here that the uncertainty lies.”

76. If there is a contract, of course, the terms of that contract must still be sufficiently certain. In Blue v Ashley [2017] EWHC 1928 (Comm), the judge had to decide whether an oral contract had been made between the parties, then drinking together in a public house, resulting in a £14 million liability for the defendant. It was argued that the terms agreed between the parties were not sufficiently certain.

77. Leggatt J said this: “61. Vagueness in what is said or omission of important terms may be a ground for concluding that no agreement has been reached at all or for concluding that, although an agreement has been reached, it is not intended to be legally binding. But certainty and completeness of terms is also an independent requirement of a contract. Thus, even where it is apparent that the parties have made an agreement which is intended to be legally binding, the court may conclude that the agreement is too uncertain or incomplete to be enforceable – for example, because it lacks an essential term which the court cannot supply for the parties. The courts are, however, reluctant to conclude that what the parties intended to be a legally binding agreement is too uncertain to be of contractual effect and such a conclusion is very much a last resort. As Toulson LJ observed in Durham Tees Valley Airport v bmibaby [2010] EWCA Civ 485, [2011] 1 Lloyd's Rep 68, at para 88: ‘Where parties intend to create a contractual obligation, the court will try to give it legal effect. The court will only hold that the contract, or some part of it, is void for uncertainty if it is legally or practically impossible to give to the agreement (or that part of it) any sensible content." (citing Scammell v Dicker [2005] EWCA Civ 405, para 30, Rix LJ)’.”

78. But a contract of sale may be sufficiently certain even though no more than the bare essentials have been agreed. Thus in Perry v Stannards Ltd [1916] 2 Ch 187, the defendant company wrote to the plaintiff about the public house which he owned in Rugby, known as Stannards’, “Dear Sir,—Stannards', Rugby. At a meeting of directors held to-day I was instructed to write and offer you seven thousand pounds for freehold premises, goodwill and possession.” Eight days later the landowner wrote back: “Dear Sir,—Re Stannards'. I am obliged for your offer of seven thousand pounds for above in your letter of February 23rd last. Please note I now accept same … ”

79. The Court of Appeal held that this was not a case where the parties had agreed only the price but left all other terms to be agreed. As Lord Cozens-Hardy MR, with whom Pickford LJ and Neville J agreed, put it (at 198), “The parties' rights were for all purposes sufficiently settled by the two letters of offer and acceptance. In my opinion the appeal fails … ”

80. I should also mention the question of formalities. A contract for the sale of land is required to be made in writing (Law of Property (Miscellaneous Provisions) Act 1989, section 2), and a transfer of land is required to be made by deed (Law of Property Act 1925, section 52). On the other hand, a contract for the sale of shares in a company is not required to be made in writing. Instead, it can be made orally, without any formalities at all. On the other hand, a transfer of the ownership of shares in the company must generally be made by a duly executed stock transfer form, which is then registered by the company (Stock Transfer Act 1963, Companies Act 2006, sections 112(2), 770, 772).

81. In the case where the existence of a contract between the parties is established, and it is breached, the usual remedy for the breach is damages at common law for the loss suffered. The equitable remedy of specific performance is generally available only where such damages would be an inadequate remedy: Beswick v Beswick [1968] AC 58, HL. In Gaetano Ltd v Obertor Ltd [2009] EWHC 2653 (Ch), Roth J observed that: “48. … It is well-established that an obligation to transfer shares in an unquoted company is an obligation for breach of which damages are generally not an adequate remedy. See, eg, Jones and Goodhart, Specific Performance (2nd edn 1996), p 161; Spry, The Principles of Equitable Remedies (7th edn 2007), p 64 … ”

82. Lastly, there is the long-established doctrine of equity, under which, equity regarding as done that which ought to be done, a specifically enforceable contract for the sale of property gives rise to a constructive trust of the property for the benefit of the transferee. In Shaw v Foster (1872) LR 5 HL 321, for example, Lord Cairns said, at 338: “ … there cannot be the slightest doubt of the relation subsisting in the eye of a Court of Equity between the vendor and the purchaser. The vendor was a trustee of the property for the purchaser; the purchaser was the real beneficial owner in the eye of a Court of Equity of the property, subject only to this observation, that the vendor, whom I have called the trustee, was not a mere dormant trustee, he was a trustee having a personal and substantial interest in the property, a right to protect that interest, and an active right to assert that interest if anything should be done in derogation of it.”

83. It is clear that this doctrine is not confined to contracts for the sale of land, but extends to any contract of sale for breach of which specific performance is available. It can thus apply to contracts for the sale of unquoted company shares. In Neville v Wilson [1997] Ch 144, for example, there was such an agreement for sale. Nourse LJ, giving the judgment of the Court of Appeal, said (at 157G-H), “We do not think that there is anything in the speeches in the House of Lords [in Oughtred v IRC [1960] AC 206] which prevents us from holding that the effect of each individual agreement was to constitute the shareholder an implied or constructive trustee for the other shareholders. In this respect we are of the opinion that the analysis of Lord Radcliffe, based on the proposition that a specifically enforceable agreement to assign an interest in property creates an equitable interest in the assignee, was unquestionably correct …” APPLICATION OF LAW TO FACTS

84. At their meeting in January 2023, the claimant and the defendant orally agreed to buy and sell the land, and they shook hands on the deal. Not being in writing, however, that agreement was and is not valid as a legal contract. However, subsequently, but before 2 February 2023, the claimant and the defendant had orally changed their agreement from one to buy and sell the land to one to buy and sell the shares in the company which owned the land. That later contract does not require to be in writing. And I am satisfied that it was made. The defendant agreed to transfer the shares to the claimant, and the claimant agreed to transfer his 4×4 and caravan to the defendant.

85. In my judgment, it is not necessary to agree any more than the sale of the shares in return for the 4×4 and the caravan. It is a straightforward contract of exchange. The claimant has since performed his side of the bargain, by transferring the 4×4 and the caravan. He originally thought that the defendant had performed his side of the bargain, by means of the online filing by his accountant. But he was wrong. The changes recorded at Companies House would not be sufficient to alter the legal ownership of the shares from the defendant to the claimant.

86. The claimant has called upon the defendant to perform his contract, but the defendant has failed to do so, without lawful excuse, and is accordingly in breach of contract. The claimant now claims specific performance of that contract. In my judgment, damages would be an inadequate remedy, and the court has power to grant the remedy of specific performance of that contract to sell the shares in the (unquoted) company. I consider it appropriate in the circumstances to exercise that power in this case. I will therefore order the defendant specifically to perform the contract which I have found to exist. It is also the case that, once the claimant had performed his side of the bargain, and the whole consideration had thus been paid, the defendant had no further beneficial interest in the company shares, which therefore have been held in the meantime by him as bare trustee for the claimant. CONCLUSION

87. In my judgment, the claimant succeeds in his claim, and I will order specific performance of the defendant’s obligation to transfer the entire share capital in the company to the claimant. I invite the parties to agree and lodge a minute of order giving effect to this judgment.