Diana McFadzean v Ricardo Cacho Martinez & Anor

1. The Applicant, Mrs McFadzean, was made bankrupt on 25 July 2018. On 6 September 2018, the First Respondent (known as Mr Cacho rather than Mr Martinez) was appointed as her trustee in bankruptcy; the Second Respondent, Mr Waghorn, was appointed as a joint trustee on 9 November 2018. Together, I shall refer to Messrs Cacho and Waghorn as “the Trustees”.

2. The main asset of Mrs McFadzean’s estate was a plot of land at 132, Boulevard Francis Meilland, Cap D’Antibes, France (“the French Plot” or “the Plot”), which had the benefit of planning permission for the construction of a large villa, granted on 5 December 2014; that permission (“the Existing Permission” or “the Permission”) had been due to lapse on 5 December 2017, before the bankruptcy, but had been extended to 10 December 2018; it was common ground that although no further extension was possible, its benefit could nonetheless be preserved by beginning and undertaking construction works of some substance at the Plot, before its expiry, and possibly, by committing to continue them; there was however a dispute about the scale and cost of those necessary works, and about the likelihood of the Permission’s preservation in any event; it was also common ground that there was a significant difference (about €6 million) between the value of the French Plot with the benefit of the Existing Permission and its value without, and that once expired, no similarly extensive permission could be sought or would be available, as a result of restrictive changes made to the applicable planning regime since 2014; in effect therefore, when the bankruptcy began, the Existing Permission, an asset of the estate, was worth about €6 million, but would soon be lost, if not preserved or in the meantime realised.

3. On 26 October 2018 – before Mr Waghorn’s appointment on 9 November 2018 – Mr Cacho accepted an unconditional cash offer from Mr Dermot Mayes (“Mr Mayes”) and various of his associates, to purchase the French Plot (ultimately through an entity called “Aurum 33”) for €3.5 million (inclusive of taxes and legal fees, and thus a net sum of €3.3 million); a binding Offre d’Achat was signed, and completion took place on 21 February 2019; Mr Mayes was known to Mrs McFadzean, and was familiar with the French Plot, which Mrs McFadzean had been seeking to sell, for some time, before she was made bankrupt.

4. In the meantime, Mr Mayes had been given access to the French Plot and allowed to begin work, intended, if possible, to preserve for himself (and ultimately, Aurum 33) the benefit of the Existing Permission before its imminent expiry; in the event, those efforts (whatever they were – which was a matter in dispute) were successful, and the Permission was preserved; in due course, a luxurious villa was built; it was sold by Aurum 33 in July 2020 for €11,633,583, at a considerable profit.

5. Shortly before then, on 27 May 2020, under section 299 of the Insolvency Act 1986 (“the IA 1986”), the Trustees had their release; on 7 October 2021, Mrs McFadzean’s bankruptcy order was annulled under section 282(1)(b), on the basis that her bankruptcy debts and expenses had all been paid; she received a small surplus.

6. By her Application dated 26 July 2024, Mrs McFadzean now seeks the court’s leave to make a claim for compensation against the Trustees under section 304 of the IA 1986, in respect of the sale of the French Plot, on grounds that as a result of their negligence, it was sold at an undervalue. She has retained solicitors, Seladore Legal, acting since about the end of 2021, on the terms of a damages based agreement; on 11 February 2022, about four months after the annulment, Seladore sent the Trustees preliminary notice of her proposed claim against them. In summary terms, her case (stated in draft Particulars of Claim, and explained in greater detail below, at paragraph [65]): 6.1. as against Mr Cacho, is that he negligently failed to seek French planning law advice in order to understand (which in the event, as a result, he did not) what exactly was required to preserve the Existing Permission, and what were the prospects of doing so; 6.2. that as a result (and perhaps in any event) he failed adequately to market the French Plot and to negotiate its sale – instead proceeding on the basis (shown by subsequent events in fact to have been mistaken, and false) that there was little real chance of preserving the Existing Permission, which therefore held little value; 6.3. and that had he done so, had he properly informed himself, he would have secured a sale at a higher price, on better terms (for example, by inclusion of an overage provision) and that Mrs McFadzean has therefore suffered loss; 6.4. as against Mr Waghorn – appointed on 9 November 2018, after the Offre d’Achat had been made – that he negligently failed to discover that the sale to Mr Mayes was susceptible to challenge under “theseven-twelfths rule” (a rule of law, according to which, apparently, a sale of land in France can be challenged if the price is at a discount of more than seven-twelfths of its true market value), because he failed to seek or secure proper valuation advice; and, 6.5. had he done so, it is said that he (and of course, Mr Cacho) would have discovered that the French Plot was in fact worth at least about €7.92 (of which €3.3 million is five-twelfths) and so would have refused (if necessary, by means of litigation) or perhaps threatened to refuse, to complete the sale to Mr Mayes/Aurum 33, and would instead have sold the French Plot for its full market value, or at least negotiated better terms with Mr Mayes.

7. Mrs McFadzean did not adduce any expert evidence of French planning law; nor did she adduce any such evidence as to either the true value of the French Plot as at 26 October 2018 (to the effect that it was worth at least €7.92 million) or the content of the seven-twelfths rule, or the prospects or costs of seeking to litigate the issue in France, or the likely outcome or effect of any such litigation (including in respect of the Existing Permission, which was, as I have said, due to expire on 10 December 2018). The Law The Statutory Provisions

8. Mrs McFadzean’s Application is made under section 304 of the IA 1986, which provides, in relevant part, under the heading “Liability of trustee”: (1) Where on an application under this section the court is satisfied— (a) that the trustee of a bankrupt’s estate has misapplied or retained, or become accountable for, any money or other property comprised in the bankrupt’s estate, or (b) that a bankrupt’s estate has suffered any loss in consequence of any misfeasance or breach of fiduciary or other duty by a trustee of the estate in the carrying out of his functions, the court may order the trustee, for the benefit of the estate, to repay, restore or account for money or other property (together with interest at such rate as the court thinks just) or, as the case may require, to pay such sum by way of compensation in respect of the misfeasance or breach of fiduciary or other duty as the court thinks just. This is without prejudice to any liability arising apart from this section. (2) An application under this section may be made by the official receiver, the Secretary of State, a creditor of the bankrupt or (whether or not there is, or is likely to be, a surplus for the purposes of section 330(5) (final distribution)) the bankrupt himself. But the leave of the court is required for the making of an application if it is to be made by the bankrupt or if it is to be made after the trustee has had his release under section

299. (3) ….

9. Accordingly, in the present case, the court’s leave is required, both because the Applicant is/was “the bankrupt”, and because in any event, the Trustees have had their release under section 299 (the effect of which, under section 299(5), is that they were “discharged from all liability both in respect of acts or omissions of [theirs] in the administration of the estate and otherwise in relation to [their] conduct as trustee[s]”, subject to the proviso that “nothing in this section prevents the exercise, in relation to a person who has had his release under this section, of the court’s powers under section 304”). Leave to Proceed

10. The requirement to obtain leave under section 304 acts as a filter. The proper approach to giving such leave, and its purpose (in part at any rate), was explained by Hart J in Brown v Beat [2002] BPIR 421, and confirmed by the Court of Appeal in McGuire v Rose [2014] BPIR

650.

11. In Brown, a bankrupt sought leave to bring a claim against his trustee (in the context of a bankruptcy in which there was not, on the evidence, “any possibility of a surplus”, unlike the present case, in which Mrs McFadzean has a direct financial interest) on the basis, principally, that various pieces and items of his property, including land, had been sold, allegedly, at an undervalue. Hart J refused the bankrupt’s appeal against the refusal of leave. He explained, at [2002] BPIR 421, 424: “… it seems to me that the requirement of leave under section 304(2) in the case of an application by the bankrupt, has almost certainly been included by Parliament in recognition of the fact that applications by bankrupts against their trustees may well have a tendency to be vexatious and therefore it is appropriate for there to be a filter in the form of permission by the court before the bankrupt is permitted to launch upon them; that also being particularly necessary given the fact that the bankrupt is accorded locus standi notwithstanding the absence of any financial interest to himself in the application being made. … The factors which the court must bear in mind in deciding whether or not to grant permission, are first, whether or not a reasonably meritorious cause of action has been shown, and secondly whether giving permission for its prosecution is reasonably likely to result in a benefit to the estate. Of course, in considering whether or not to authorise any litigation, except in the rarest of cases, it is impossible to be certain of what the outcome of litigation will be. Litigation always, to a greater or lesser extent involves a degree of speculation, and regard must therefore be had to the costs and potential benefits of litigation before authorising its institution. A test has been described by Blackburne J in Re Hellier [1998] BPIR 695 as being whether the application is one which a reasonable litigant would make. That criterion of reasonableness has, of course, to be stretched to include the factors which I have mentioned, that is to say, the likelihood of success, and the risks as to costs of the estate in the event of failure.”

12. Amongst other things, the judge’s decision was based in particular on the absence of any relevant supporting expert evidence. He said, at [2002] BPIR 421, 424-425: “In the present case, what strikes me as fundamentally unsatisfactory about the application which is being made in relation to the sale at an under value is the complete absence of any expert evidence that the property was sold at an under value. If one were a lawyer advising a private client as to whether to risk his money on the pursuit of agents for negligence in having sold this property for this sum, it seems to me that one would be a negligent lawyer if one allowed the client to proceed to risk costs without the benefit of expert advice as to (a) the value of the property which ought to have been realised on a sale at that time; and (b) the skill and competence and appropriateness of the particular marketing strategy adopted by the agents concerned. In the absence of expert evidence supportive of the client's case, it seems to me that to embark on litigation would simply be foolhardy.”

13. In McGuire, again, a bankrupt sought unsuccessfully to appeal against the refusal of permission to bring a claim against his trustee on the basis that various properties had been sold, allegedly, at an undervalue. Amongst other things, for the bankrupt, it was submitted that Lewison J (on appeal from the District Judge) had misapplied the test in Brown, by taking into account factors in addition to those relevant simply and narrowly to the question whether or not there was a reasonably meritorious cause of action, reasonably likely to result in benefit to the estate.

14. The Court of Appeal rejected that submission, Laws LJ said, at [23]: “23. … Hart J cannot be taken as having laid down any particular test. It would not be appropriate for the court to lay down exclusive criteria by reference to which an application by the bankrupt under section 304(2) had, in all cases, to be judged. He was doing no more than identifying two central factors which have to be taken into account (and obviously so). That is quite apparent from the context of his judgment. In the immediately preceding paragraph to that in which the words cited appear he referred to the policy behind the leave requirement in section 304(2), namely to apply a filter because of the risk of vexatious applications. The risk of vexation in the proceedings is therefore obviously another matter which can, and in our view should, be taken into account, though a favourable answer to Hart J's two questions may well be sufficient in many cases to demonstrate that the particular course of action proposed by the bankrupt is worthwhile and not driven by vexation.”

15. He continued, that “as a sort of umbrella test”, it was “unobjectionable” to ask whether the application was one which a reasonable litigant would make, but that in any event, the test was wider and more flexible than one based only on a consideration of the two central factors.

16. In his consideration of Lewison J’s decision, Laws LJ commented, at [32], that the judge had “observed that the claim that the properties had been sold at an undervalue came down to an allegation that the valuations on which the trustee in bankruptcy relied were negligent, as counsel for Mr McGuire below had accepted. That meant showing not only that the valuations were wrong, but that they were ones that no competent valuer would have made. He observed that any such case was fatally wounded by the absence of any expert evidence produced by Mr McGuire. We agree with that conclusion. Any claim that a property has been sold at an undervalue must be established by more than the mere assertion of the claimant to that effect. Before the district judge and before Lewison J Mr McGuire had no such evidence, despite the fact that he had been warned many times that he would need such evidence in order to support his application. His failure to remedy that omission was always going to be fatal.”

17. The court’s approach to giving leave under section 304 is in some respects similar to that taken under paragraph 75(6) of Schedule B1 to the 1986 Act (in respect of proceedings against a discharged administrator) and under section 212(5) (in respect of proceedings against a liquidator after he has had his release).

18. Thus, in Re One Blackfriars Ltd [2018] EWHC 901 (Ch), Mr William Trower QC (as he then was) sitting as a Deputy Judge of the High Court, gave permission to a company’s liquidators under paragraph 75(6) to make a claim against its former administrators on the basis that they had negligently sold a development site at an undervalue. The judge set out the court’s approach at [22]-[30], in essence, adopting the test explained in McGuire, whilst acknowledging that different circumstances (for example, the identity of the claimant – in that case, a successor, professional office-holder, acting on advice) will inevitably mean differences of emphasis: the test is not a rigid one. He made certain other points which, respectfully, I have found it useful to keep in mind: 18.1. first, at [28], that whilst it might be appropriate in some cases to take into account the question whether a claim would survive an application to strike out or for reverse summary judgment, that “does not supply an alternative” test; the reason is that the burden of striking out or showing no real prospect of success would lie with the respondent, whereas under paragraph 75(6), the burden of showing a reasonably meritorious claim lies with the applicant; the applicant is not required to demonstrate that no application to strike out, or for summary judgment, would succeed – that is simply not the test (although plainly, if the court were to conclude that the claim would inevitably or very likely be struck out, it would be most unlikely to give permission); 18.2. second, at [29], that it is not correct to say that there is, in every case, a “high hurdle” to overcome to obtain permission. That submission was repeated before me (said to be based on comments in, for example, Cassanova v Cockerton [2021] EWHC 1688 and Re Borodzicz [2016] BPIR 24) and I too disagree with it. As the judge said, the real question concerns the nature of the complaint: if it concerns discretionary conduct, the hurdle is high, not because of some inherent feature of the test itself (in other words, the test for giving leave), but because in respect of such conduct, the court affords office-holders broad scope within which to exercise their own professional and commercial judgement, and indeed, expects them to do so (see for example, In re a Debtor, ex p The Debtor v Dodwell [1949] 1 Ch. 236, per Harman J (as he then was) at 241, and in a slightly different context, Re Edennote Ltd [1996] 2 BCLC 389); 18.3. third, at [38]-[49], there is no absolute obligation in cases of this sort to obtain expert valuation evidence in support of the alleged undervalue, although a failure to do so might well be relevant, and might even be fatal to the application; plainly, it was a factor of great weight in both Brown and McGuire; but ultimately, by reference to evidence, and without engaging in a mini-trial, the court must decide whether the case has a proper foundation – the nature of that evidence may differ from case to case; 18.4. fourth – a point also made elsewhere, for example, in Re Borodzicz at [43] – that after an office-holder has had his release, he no longer has access to the estate’s assets from which to indemnify himself against the costs of unmeritorious claims: see [23]; moreover, such claims may concern decisions taken some years previously, so that delay may be a relevant factor.

19. In summary, the court’s approach to the exercise of its discretion under section 304, including in cases where the trustee has had his release, is to consider – reflecting both the substantive purpose of section 304 (which is to compensate or give recompense to an estate or bankrupt where a trustee has misconducted himself) and the rationale of the leave requirement (to filter, for example, the vexatious, disproportionate and ill advised) – both whether or not the applicant has shown a reasonably meritorious cause of action, reasonably likely to result in a benefit to the estate, and if so, any other relevant circumstances, which may include questions of delay, vexation and costs. The Substantive Claim

20. As to the alleged substantive claim, section 305(2) of the IA 1986, provides that the “function of the trustee is to get in, realise and distribute the bankrupt’s estate in accordance with the following provisions of this Chapter; and in the carrying out of that function and in the management of the bankrupt’s estate the trustee is entitled, subject to those provisions, to use his own discretion”.

21. It was common ground that a trustee owes a duty to take reasonable steps, to the standard of an ordinary, reasonably skilled and careful insolvency practitioner, to obtain a proper price for assets within the estate: see for example, Chapper v Jackson [2012] BPIR 257, and Re Charnley Davies Limited (No.2) [1990] BCLC

760. As I have said, allegations of that nature were raised in Brown, McGuire and Re One Blackfriars, considered above.

22. But it must also be held firmly in mind, that where, as he must, a trustee has used his discretion, for example, in the exercise of his commercial judgment, or in the conduct of negotiations, acting as a “prudent businessman” (see Re Edennote [1996] BCC 718, at 722F-G), then short of bad faith, fraud or perversity, the court will afford him generous latitude: this is the “high hurdle” referred to above. The Background

23. The evidence was comprised in two witness statements made (on behalf of Mrs McFadzean) by Mr Simon Bushell, a partner at Seladore, on 26 July 2024 and 6 June 2025, and in response, those of Mr Cacho and Mr Waghorn, both made on 29 January 2025; there was no oral evidence (and there has not, of course, been any formally conducted process of disclosure).

24. At the time of Mrs McFadzean’s bankruptcy, which began on 25 July 2018, the French Plot had enjoyed the benefit of the Existing Permission for well over three years, since 5 December 2014, but had nonetheless not been sold, despite Mrs McFadzean’s efforts; nor had Mrs McFadzean started any works so as to preserve the Permission, despite her knowledge that it was soon to expire, and be lost; it was common ground that there were no (or if any, very few) liquid assets in the estate – essentially, that was the cause of Mrs McFadzean’s insolvency and bankruptcy; accordingly, there was no money readily available to pay for necessary works, whatever they might have been; moreover, secured borrowing on the Plot was attracting interest at a rate of about £4,000 per week.

25. By letter dated 3 September 2018 (obtained during the bankruptcy but shortly before the appointment of Mr Cacho, and not pursuant to instructions given by him) a valuer named M. Franck Achach had provided an opinion, that “the free market value” of “the property” (at that time, an “undeveloped wasteland”) was €9.2m, excluding taxes. His valuation (“Achach 1”) (addressed to M. Antoine Sacerdoti, the French architect who had been assisting Mrs McFadzean) was based on the prospect of certain “high-end” work being done “with care” in accordance with the Permission, described as “the construction of a neoclassical mansion with roofs of two and four-sided tiles. The villa is located in the middle and will be composed of 4 levels including a basement level. Eventually, the property will have 6 suites including a master bedroom. The field will include a heated pool of 90 m² and a clubhouse with a footprint of about 19 m² and will be built and landscaped in the French garden planted in large terraces with Mediterranean trees (Aleppo pines, Cedars of Lebanon, olive trees…) ….”; the letter stated, that “if it turned out the opposite, my conclusion would be reviewed”. Although there were not in evidence any written instructions to M. Achach, his valuation was therefore (or appears to have been) based on the preservation of the Existing Permission, and its exploitation.

26. On 17 September 2018, shortly after his appointment on 6 September 2018 (and after having met Mrs McFadzean and her husband, and discussed the French Plot with them) Mr Cacho travelled to France, to inspect the property and to meet investors and local agents (including M. Sacerdoti, who, he said, had been “highly recommended by” Mrs McFadzean and her husband, and had been assisting them before the bankruptcy).

27. Mr Cacho’s uncontradicted evidence was that he was told by Mrs McFadzean and her husband (quite understandably) that they did not want him to advertise the French Plot for sale for two reasons – first, because the market was unique and there would be no benefit in doing so, and second (and “they were very adamant about this”) because of the risk that the bankruptcy would come to light, and its value would be adversely affected; local agents, said Mr Cacho, gave the same advice, and he agreed; in any event, time was short, the Permission was due to expire on 10 December 2018, and already there were numerous interested parties as a result of Mrs McFadzean’s own efforts to secure a sale before her bankruptcy. Mr Cacho’s evidence, again uncontradicted in this respect, was that one of the initial offers had been from Mr Mayes, in the sum of €7.5 million (but had been rejected) and also that an offer had been made by Achille Estates SAS (“Achille”), and “remained on the table as at the date of the bankruptcy”.

28. There was no evidence that despite her efforts to sell the Plot during the several years before her bankruptcy, Mrs McFadzean had succeeded in attracting an offer for anything “in the region of €9.2 million” (the sale price which she now says Mr Cacho was negligent in having failed to achieve in the short period available to him before the final expiry of the Permission), and neither was there evidence that she herself had used “international property agents” (despite now asserting that Mr Cacho was negligent in having failed to do so) or that she had complained at the time about Mr Cacho’s failure to do so.

29. As I have said, it was common ground that the Existing Permission could be maintained were certain works to be commenced and undertaken before 10 December 2018.

30. In this respect, Mr Cacho’s evidence was that he was told by M. Sacerdoti that “in order to try to preserve the planning permission, it would be necessary to start initial building works with a view to constructing the entire concrete basement but, even then, there was no guarantee that that would be sufficient. It would still be for the planning authorities to determine if they considered the works were sufficient; there was therefore serious risk in undertaking the works. He also told me that the initial works could cost as much as €200,000 to complete” and that he could recall M. Sacerdoti “mentioning €200,000 to €300,000 to me on a number of occasions”.

31. M. Sacerdoti was (or had been) Mrs McFadzean’s architect, and had been responsible for securing (and in 2017 extending) the Existing Permission. Mr Cacho’s evidence was that he had been impressed by M. Sacerdoti’s knowledge and professionalism; Mrs McFadzean’s case is that Mr Cacho was negligent in having relied on him; again, there was no evidence that she had complained about his continuing involvement at the time.

32. Mr Cacho said that he was told by M. Sacerdoti “many times that such works would have to be commenced by 31 October 2018 at the latest to have any realistic prospect of being completed in time”, and that “even allowing for obtaining a building permit, sourcing materials, machinery and contractors to do the work at short notice and complete the ground works and entire basement level in less than six weeks was a near impossibility”; in addition, he was told that “it was not just a case of carrying out those initial building works; he said it would be necessary to demonstrate that building work would not be stopped for more than a year and potentially one might be required to complete the whole build (at a cost which he estimated to be in the region of €8 million). This meant that one could commit to trying to secure the planning permission but then still lose it and therefore also effectively lose the money expended in trying to secure it”.

33. On this basis, and having, he said, no reason to doubt M. Sacerdoti’s advice, Mr Cacho’s evidence was that he had reached the conclusion that there was a real risk of losing the Existing Permission, and that anyone buying the French Plot could not guarantee its preservation. In addition, Mr Cacho said that he recalled that “the Mairie had pre-emptive rights to acquire the land” in some circumstances (that were not greatly developed in the evidence, although they were subsequently referred to by an interested party, FSH, as described below at paragraph [50]) and that this too represented a further risk in connection with the Plot’s value.

34. In respect of the works or steps necessary to preserve permission, Mrs McFadzean adduced no expert evidence, whether of French planning law, or practice, or otherwise; neither did she make a witness statement herself, or produce a statement from M. Sacerdoti, containing the views and recollections of either. Instead, amongst other things, she relied on a letter dated 11 May 2018 from M. Sacerdoti to herself and her husband, in which he said, amongst other things, “Today the planning permission was valid up to 10th of December 2017, and we asked to extend it for one year so up to 10th of December 2018. Please find hereby the official approval of the prolongation. Which means we have up to 10th of December 2018 to officially open the site work and then we just have to be able to prove that the works will never be stopped during a period of more than one year. For example, we open the site work on 10th of December 2018, then we have up to 10th of December 2019 to do some substantial works amount of 50,000 € for example, then we will have up to the 10th of December 2022 to do again some works, etc …” It was not said that Mr Cacho had seen or been shown that letter; in any event, his evidence was as I have described it.

35. On his return from France, Mr Cacho instructed English solicitors, Wilkin Chapman LLP, and they instructed French lawyers and notaries (in fact, on the suggestion of Mrs McFadzean, her former notary, M. Clement Jacquier).

36. In those circumstances, Mr Cacho raised the possibility of contacting Achille to discover whether they remained interested. As a result, he was told by M. Sacerdoti that they were; according to his decision not unnecessarily to reveal Mrs McFadzean’s bankruptcy to prospective buyers, he allowed Mrs McFadzean and her advisors to conduct the negotiations directly; he remained, as he put it, “off the record”.

37. The upshot was that on 3 October 2018, M. Sacerdoti emailed Mr Cacho, attaching an offer from Achille, and on the same day, Mr Cacho agreed a conditional contract of sale with Achille to purchase the Plot for the sum of €8,370,000 (€7,950,000 net) (“the Achille Offer”). Certainly in respect of price, there was no complaint about that agreement – and more than that, the “offer and acceptance” (the contract) was signed by Achille (still unaware of the bankruptcy) and by Mrs McFadzean herself (acting on behalf of Mr Cacho, with his authority). The proposed date of completion was 31 October 2018, self-imposed by Achille, to allow them sufficient time – so they hoped – to open the site and preserve the Permission before its expiry in December.

38. Unfortunately, by letter dated 17 October 2018, Achille withdrew. Its withdrawal letter explained, in some detail, that their architect had advised them that the “due diligence to be performed before the start of work in accordance with the standard practice is too significant to be carried out in a timely manner”, and that “Subject to slight provision of concessionaire services (electricity/water), our architect does not think that the site opening can be possible before February 2019. The seller cannot be unaware of this state of affairs since the quote dated 16 February 2017, provided by Mr Sacerdoti, from the company that was to manage the site (MCI) indicates a provisional schedule of studies prior to the work of 3.5 months.” (The emphasis was in the original.)

39. They quoted their own architect’s conclusion: “As the project currently stands, and within the timeframe set by this deadline, we feel that we are not able to properly carry out our mission. The situation, as we perceive it, exposes you to the risk of an outright cancellation of the building permit. This opinion is also shared by the anticipated members of the team we contacted and to whom we presented the current situation regarding the project. I therefore confirm to you that, without being able to carry out our mission in full, or making you take an unnecessary risk, we are refusing the mission that you wish to entrust to us.”

40. Achille’s letter continued, “contrary to the statements by your representatives, the simple start of works by casting a concrete layer before 10 December 2018 cannot be sufficient to legally prevent the expiry” of the Existing Permission, and that “In established case law, judges consider building permits expired when the beginning of works is visibly carried out with the sole purpose of avoiding the expiry of the permit” (again, the emphasis was in the original). They concluded that, “on the basis of the elements that we have covered above, the successful opening of the site in accordance with standard practice is highly unlikely and especially in compliance with the legal requirements in terms of construction and insurance within the given timeframes”.

41. In his submissions, Mr Donny Surtani of counsel, who appeared for Mrs McFadzean, suggested that M. Sacerdoti might have played some secret, improper part in causing Achille to withdraw (“Mrs McFadzean will likely never know what caused its architect to take this view, and what role M. Sacerdoti might have played in that”); more generally, it was Mrs McFadzean’s case that M. Sacerdoti, as an “associate” of Mr Mayes, was a person who ought not to have been trusted, and whose involvement ought now to be viewed with some suspicion. However, there was no evidence to support an allegation of wrongdoing against M. Sacerdoti, and nothing to suggest that Mrs McFadzean had raised any such concerns or objections to him at the time; furthermore, M. Sacerdoti appears to have been involved, with Mrs McFadzean, in the successful negotiation with Achille.

42. In her draft Particulars of Claim, in respect of the agreement with Achille, and Achille’s withdrawal, Mrs McFadzean’s complaint is that its offer “was conditional on the transfer of the [Existing Permission]”, and that it was negligent of Mr Cacho not to take advice “as to how to meet this condition, or otherwise how to deal with this issue”, and that in the “absence of any progress on the issue of the transfer”, Achille had withdrawn. The documentary evidence however – and what was understood by Mr Cacho at the time – was that Achille withdrew, as I have said, not because of some failure in respect of transfer, but simply because it had decided (on professional advice) that in the available time, it could not in fact do the work required to preserve the benefit of the Permission (or that the risks of failure were simply too great).

43. Having withdrawn, Achille made no effort to renegotiate a lower price. At that point, only about seven weeks remained before the (formal) expiry of the Permission, although M. Sacerdoti had indicated that if works were not started by about 1 November 2018 – in about a fortnight – it would, in effect, be too late (and Achille’s opinion was that it was already too late); Mr Cacho said that, “it was clear to me that there was now a very serious risk that any proposed purchaser might not be of the view that they could readily secure planning permission and that this was bound to impact on the purchase price”. In those circumstances, he decided himself to consult local agents and to undertake a short marketing process with a bid deadline of 23 October 2018, hoping to secure at least some additional value by virtue of the Permission, and wary of the consequences of its actual expiry.

44. On 22 October 2018, Mr Cacho’s colleague, Mr Stephen Ridley, spoke to Mr Daryl Thorpe of RDT, the secured charge holder, who said that they had a “contact” (Mr Dylan Mitchell) who would offer €2 million for the French Plot, and might be persuaded to increase his offer to €3 million, although (according to a file note of the conversation) “definitely no more”. Mr Ridley telephoned Mr Mitchell and left a message, but the possibility came to nothing. Since it was said to be relevant to the effect of Mrs McFadzean’s alleged delay in seeking to advance this claim, I should note that Mr Ridley is now deceased (and so no longer available to contribute his recollections or evidence of events).

45. In addition, by email dated 22 October 2018, Mr Mayes – who already knew of the Plot and the Permission, and had previously sought to buy it – made an unconditional cash offer of €3 million. Mr Cacho’s evidence was that he spoke to Mr Mayes and made a counter-offer, at the same price but with an “anti-embarrassment/overage clause”, but that “Mr Mayes would simply not entertain such a clause”, because of the “huge risk” that he said he would face were he to buy the Plot and invest in it in the hope of preserving the Permission. Nonetheless, as a result of the negotiations, Mr Mayes agreed to increase his offer to €3.5 million inclusive of taxes and legal fees (and thus to a net figure of €3.3 million, €200,000 more than the value stated in Achach 2, described below at paragraph [48]).

46. Also on 23 October 2018, “W Estate” (acting by Mr Steven van Wouwe) offered €2.75 million on behalf of a client. That offer came following communications in the course of which (by an email on 18 October 2018) Mr Van Wouwe told Mr Cacho that his client “says it’s too risky (hence why the other client left the deal), knowing the very short time frame he has ahead, to consider building permit as “granted” and will most probably consider a purchase of the land, with the transfer of the building permit, and will do his best to meet the town hall’s deadline to save the permit, but he cannot consider to pay for something that is almost impossible to reach.” Later that day, Mr Van Wouwe emailed to say that the offer could be increased by €50,000, but said to “keep in mind he has to invest the extra 180k euros worth of works to this deal with all risks we all know and have experienced with my previous client”. In the event, on 25 October 2018, the offer was increased to €2.85million. That offer was unconditional, but the offeror wanted access in order to begin the necessary building work “within the next 24 hours”.

47. On 26 October 2018, a number of things happened.

48. First, M. Achach provided a revised valuation, again formally addressed to Mr Sacerdoti (“Achach 2”). He said that in his opinion, the “free market value” of “the property” was €3.1 million. Although he referred to the extant planning permission, he based his opinion (“conformal to your request in our exchanges”) on the possibility of a “new project less ambitious”, considering the short time remaining before expiry of the Permission, and changes in planning rules since it had been granted in 2014 (but nonetheless, a 360 sqm, three floor villa, with heated pool and club house).

49. Second, also on 26 October 2018, Mr Cacho concluded a written Offre d’Achat with Mr Mayes (and his associates) agreeing to sell the French Plot for €3.5 million inclusive of taxes and legal fees. The agreement was unconditional, and “specifically is not dependent on the existence of any planning permission”; it provided that “as soon as this agreement is signed by both parties the buyers will be allowed to do any works they want on the land at their expense and under their responsibility”. It therefore permitted the buyers to enter the land, begin work, and hope thereby to preserve the Existing Permission.

50. Third, later that day (at 3.27pm, following various previous communications between Mr Cacho and an agent, Mr Djina Seba, in which Mr Cacho had told Mr Djina that there were already two unconditional offers, and that he would make a final decision on the morning of 26 October) Foncière Saint Honoré (“FSH”) offered €4 million net, but conditionally, requiring a meeting on 10 November 2018 to execute a pre-sale agreement, “necessary because a number of legal conditions are imposed on the transfer of land, i.e. particularly the pre-emption right of the town hall”. However, by that time, Mr Cacho had accepted Mr Mayes’ offer (an acceptance which was, according to the advice of his notary, binding). It was therefore too late to be considered. In any event, the offer was conditional, and depended on the outcome of a proposed meeting on 10 November 2018, by which time Mr Cacho considered that the Mayes offer would itself very likely be lost, or at serious risk, because it would almost certainly then be too late even to attempt to preserve the Permission by commencing work.

51. It follows that the offer accepted by Mr Cacho was the highest unconditional offer which he received in the period following Achille’s withdrawal.

52. At about the same time, on 29 October 2018, Mrs McFadzean made an application to remove Mr Cacho from office as her trustee in bankruptcy. Her application was supported by a witness statement made on 26 October 2018, and was advanced, certainly at that point, on the basis that his proposed remuneration (equal to 10% of realisations) was excessive. It was only on receipt of Mr Cacho’s responsive evidence (a statement made on 7 November 2018) that Mrs McFadzean came to know of the agreed sale to Mr Mayes.

53. Mrs McFadzean’s application was heard by Deputy ICC Judge Schaffer on 9 November 2018. According to a note of the hearing produced by Mr Cacho’s counsel, Ms Susan Brown, the judge expressed some doubt about the merits of removal, but suggested the possibility of an additional joint trustee. Following a short adjournment, Mrs McFadzean’s counsel adopted that course, and despite opposition on behalf of Mr Cacho, the court appointed Mr Waghorn, with immediate effect. At that point, just over 4 weeks remained until the expiry of the Existing Permission.

54. At the hearing, on behalf of Mrs McFadzean, complaint was made that the sale to Mr Mayes was proceeding at an undervalue.

55. On the day after his appointment, Saturday 10 November 2018, Mr Waghorn spoke to Mrs McFadzean; on Monday 12 November, he spoke to Mr Cacho. He received copies of some of the offers that had been received, and of various valuations, and was told of the Offre d’Achat. Also on 12 November, Mr Waghorn instructed Moon Beever solicitors, and in particular, Ms Frances Coulson (the Managing Partner) to assist and advise him; on 13 November, he instructed French lawyers, Hoche Avocats (“Hoche”); Moon Beever liaised with Hoche. Mr Waghorn’s evidence was that he was advised: 55.1. that the relevant valuation date for the purposes of the seven-twelfths rule (of which he was aware) was 26 October 2018 – a point which was not in issue; 55.2. that in order to preserve the Existing Permission, works of sufficient importance would have to be carried out (not adequately reflected in the expression “pouring of concrete”); that moreover, once the extension was secured, work had to continue, subject to temporary interruptions only, or the Permission would lapse; that the works thus required were very significant, the total cost being at least €4 million; there were no funds in the estate available to carry out that work; on the contrary, Mrs McFadzean had borrowed a substantial sum, secured on the Plot, which was accruing interest at a rate of about £4,000 per week; 55.3. (in writing by Hoche, on 16 November 2018) that amongst other things, the Offre d’Achat was an enforceable, binding contract; that advice was to the same effect as advice received by Mr Cacho on 8 November 2018 from his French notary, Caroline Dockerill; again, the accuracy of that advice was not in issue.

56. One of Mrs McFadzean’s complaints was that Hoche appear (from their written advice of 16 November 2018) to have been shown evidence of the offers made on or about 22-26 October 2018, and of the Offre D’Achat and Achach 2, but not to have been given copies of Achach 1, or of the Achille Offer (which stated higher values); Mr Waghorn was not able to say that those documents had been provided – he had no recollection or record of Hoche having seen them (although possibly they did); but having said that, neither Hoche nor Moon Beever at any point changed their advice (including after having received the Lamy Valuation, referred to below at paragraph [64]) that the sale to Mr Mayes/Aurum 33 was beneficial to the estate, that it was not (or was highly unlikely to be) in breach of the seven-twelfths rule, and that it ought to proceed (since otherwise, there would be real risk of loss to the estate).

57. Having therefore been appointed, on Mrs McFadzean’s application, in order, in effect, to review Mr Cacho’s conduct of the sale process and the resultant agreement with Mr Mayes, Mr Waghorn reached the conclusion, on advice from French and English lawyers, that the agreed sale was beneficial to the estate, and realistically incapable of challenge; in effect, he endorsed the steps taken by Mr Cacho.

58. In addition, on about 14 November 2018, Mr Cacho and Mr Waghorn communicated by email (having met in London on 13 November). Amongst other things, Mr Waghorn suggested that “the valuer be approached for a further valuation based on the position as at 28 October 2018, i.e. with 6 weeks to preserve the planning permission on the project. …. Would it also be sensible to obtain a further valuation from an alternate valuer to support the valuations received to date.” Mr Cacho replied that the “most recent revised valuation from Franck Achach [this being a reference to the valuation of 26 October 2018, Achach 2] takes account of the fact that the planning permission for the construction of a substantial dwelling is all but lost following the failure of the 8.4 million euro sale. He does however recognise that I (sic) may be possible for a much smaller construction to be allowed in the future. This is my understanding of his valuation. Nonetheless, I have approached an additional valuer on the basis you suggest and will keep you informed of progress.” (The emphasis is added.)

59. Mr Waghorn wrote to Ms Coulson on 15 November 2018. Amongst other things, he said that Mrs McFadzean’s solicitors, Pitmans, “have constantly advised that they expect the Trustees to break the sale contract” because it is at an undervalue, but his concern was that there was no alternative viable offer, the buyer could sue for damages, there was no guarantee that a sum of more than €3.5 million could be achieved, and that the costs of the bankruptcy would inevitably rise. He wrote, “I have asked Pitmans to provide a fully funded alternate offer if they believe that there is an undervalue. I have also asked Pitmans to provide alternate valuation of the land if they believe there is an undervalue. No formal offer or valuation have been received.”

60. In the circumstances, as discussed by Messrs Cacho and Waghorn, a further valuation was subsequently obtained, on 21 November 2018, from another valuer, M. Jérome Berthier. That valuation (“the Berthier Valuation”) referred to the Permission due to expire on 10 December, “that is, in 13 working days”, and to the more restrictive planning regulations more recently introduced (which allowed for premises with no more than two upper floors, and comprising 360 sqm). Following a site visit on 20 November 2018, M. Berthier proceeded, on the basis of those regulations, to value the Plot at €3 million, which he described as the “current market value” (and thus, €300,000 less than had been agreed with Mr Mayes). He noted, in his report, that on the inspection date, “there was construction work underway. More precisely, it was excavation work for a future villa; it seemed almost finalised.” I accept that the Berthier Valuation appears not (or not necessarily at any rate) to have been a valuation as at 26 October 2018 (rather than 21 November 2018) and that it was not therefore in accordance with the Trustees’ own discussions.

61. In the meantime, as agreed, Mr Mayes had entered the Plot and started work, apparently on about 5 November 2018 (albeit in that respect, the evidence was not clear). The suggestion at one point made on behalf of Mrs McFadzean (by reference to an email written by Mr Cacho to a Mr Stephen Galvin, on 30 October 2018) that Mr Cacho himself (at the expense of the estate) had made arrangements to begin work, was plainly wrong; it was based on a misunderstanding of the email, which referred to the work planned by Mr Mayes.

62. Mr Galvin, at various points, sought to involve himself in the sale of the Plot. However, Mr Cacho formed a distinctly poor impression of Mr Galvin (recording for example, in an attendance note of a telephone conversation on 7 September 2018, in the presence of Mrs McFadzean and her husband, his “incoherent bluster” when asked about a potential purchaser which he said he had identified – but which never materialised). In his evidence, Mr Cacho described having subsequently discovered that Mr Galvin had been made bankrupt three times, had been imprisoned twice, including for fraudulent trading, and was a person “of … no financial means, and no pertinent experience in high end, luxury property developments nor project management”; he had been described by a judge sentencing him in 2009 as a “career fraudster”. Amongst various other matters which caused him serious concern, Mr Cacho’s evidence was that Mrs McFadzean had “initially suggested that Mr Galvin was a legitimate creditor”, following which he had “submitted a claim in the bankruptcy for £700,000”, but that after apparently realising the effect its admission would have on any surplus, Mrs McFadzean had subsequently denied that he was a creditor, and his claim was ultimately rejected. Such were Mr Cacho’s concerns that Mr Galvin was seeking to defraud Mrs McFadzean (over whom he “appeared to have some hold …, which to my mind defies explanation”) that he eventually reported Mr Galvin to the Police. In any event, in those circumstances, for those reasons, he decided not to deal with Mr Galvin.

63. By about 5 December 2018, it appears that enough work had in fact been done by Mr Mayes and his associates at the Plot to secure the preservation of the Existing Permission, although there was no real evidence of what was done, or at what cost, or on what terms (or of what communications had passed between Mr Mayes and the relevant planning authority).

64. On 8 January 2019, the local council’s rights of pre-emption expired, enabling completion of the sale to take place. However, by letter dated 28 January 2019, Mrs McFadzean’s French lawyer, M. Pascale Dieudonne, wrote to the Trustees’ notary, referring to a “new valuation” obtained by Mrs McFadzean, “which puts the value of the land at Euros 9,000,000” meaning that it could not be sold at the agreed price, because of the seven-twelfths rule. On 1 February 2019, M. Dieudonne wrote again, enclosing a valuation from Mr Lamy dated 27 January 2019 (“the Lamy Valuation”). The Lamy Valuation was prepared on the basis that Existing Permission had been preserved, adopting the benefit of the works by then carried out by Mr Mayes. Nonetheless, the result was that the Trustees’ notary, M. Jacquier, declined to continue to act; a replacement was found, and the sale completed on 21 February 2019; the Existing Permission was transferred on 14 May 2019. Also on 21 February 2019, Mr Cacho (for himself and Mr Waghorn) and the buyer, signed a “Recognition of Advice” that notwithstanding the seven-twelfths rule, and the valuation of Mr Lamy, the parties were content to proceed with the agreed sale. Mrs McFadzean’s Stated Claim

65. Against that background, Mrs McFadzean’s stated claim, by reference to her draft Particulars of Claim, was that the French Plot had been negligently sold at an undervalue, in that Mr Cacho: 65.1. failed to seek planning law advice in order to understand what was required and how to preserve the Existing Permission, and if possible, to develop plans to do so; 65.2. failed (armed with that advice) to market the French Plot adequately, in particular, by appointing international property agents with sufficient experience to sell a property of that value; 65.3. lost the benefit of the Achille Offer, by failing to deal with the transfer of the benefit of the Existing Permission; 65.4. failed to negotiate with Mr Mayes a higher price, or more advantageous terms, in return for granting early access to him in order that he might carry out works sufficient to preserve the Existing Permission, and thus secure for himself the value associated with it; 65.5. failed to seek to persuade FSH to contract on the same terms as those offered to Mr Mayes (who was allowed access to carry out work to preserve the value of the Existing Permission).

66. As against Mr Waghorn, Mrs McFadzean’s case is that he negligently: 66.1. failed to discover that the sale to Mr Mayes was for a sum susceptible to challenge under the seven-twelfths rule, and failed to seek or secure proper, accurate valuation advice; 66.2. obtained advice from Hoche on 16 November 2018 that the agreement with Mr Mayes was binding without reference to the valuation in Achach 1 (in the sum of €9.2 million) and without reference to the Achille Offer (in the sum of €8.37 million); 66.3. obtained the Berthier Valuation on and as at 21 November 2018, on the assumption that the Permission had been lost, but not by reference to the position as at 26 October 2018, at which point about six weeks remained in which to preserve it, notwithstanding that he had agreed with Mr Cacho to proceed on that (correct) basis; 66.4. failed to obtain advice that once the works had been carried out by Mr Mayes, and the Permission preserved, the seven-twelfths rule at that point applied, and that the transaction was then (“at least now”) capable of being set aside.

67. As to causation and loss, as against Mr Cacho, it was said: 67.1. that had he been properly advised how to preserve the Permission, and properly marketed the French Plot, he would have achieved a sale in line with market value in the region of €9.2 million; 67.2. alternatively, that he would not have executed the Offre d’Achat with Mr Mayes, but would instead have negotiated better terms by way of deferred consideration equal to at least 50% of any incremental value derived by Mr Mayes from the preservation of the Permission; 67.3. and that again alternatively, at the very least, Mr Cacho would have executed an agreement with FSH for a sale at no less than €4 million.

68. As against Mr Waghorn, it was said: 68.1. that he would have been properly advised that the sale to Mr Mayes could be set aside under the seven-twelfths rule and would have refused to complete the sale; 68.2. that he would then have been able to sell the Plot for its “full market value” or at least negotiate better terms by way of deferred consideration equal to at least 50% of any incremental value derived by Mr Mayes from the preservation of the Permission.

69. Alternatively, as against both, it was said that as a result of their negligence Mrs McFadzean suffered the loss of a chance to achieve a better price, and that in each pleaded case, the chance of the better alternative was at least 90%. Discussion

70. As explained above, the first, indeed the central question, is whether, as against Mr Cacho and/or Mr Waghorn, Mrs McFadzean has established a reasonably meritorious cause of action, reasonably likely to result in a benefit to the estate (in this case, to herself, given the solvency of the estate). In my judgment, for the reasons I shall explain, she has not done so.

71. There are two overarching points: first, that ultimately, Mrs McFadzean’s case is that the Trustees were negligent in having failed to achieve, in the comparatively short time available to them, that which she herself had signally failed to achieve in the several years before her bankruptcy, amply before the Permission was under imminent threat of expiry; and second, that despite various complaints based on the Trustees’ alleged failure to understand the true position in respect of the Permission and its preservation, and in respect of the true value of the Plot, and the application of the seven-twelfths rule, Mrs McFadzean has produced no expert evidence of any variety, whether of French law or litigation, or planning procedure or practice, or simply of the Plot’s value at the relevant time. As in Brown and McGuire, that failure, in my view, was significantly damaging to her application, if not indeed fatal. The Case Against Mr Cacho

72. At the root of Mrs McFadzean’s complaint is that Mr Cacho failed to take appropriate advice about the Permission and its preservation. I accept that a failure to take advice where required can render an office-holder’s conduct unreasonable – the point (in my view, Mrs McFadzean’s best point) was made, for example, in Re Edennote, at [1996] BCLC 389, 396c-f: “a reasonable liquidator must be taken to be one who is properly advised”, and one “who has such advice where he needs it”, per Nourse LJ.

73. However, in the present case, in effect, Mr Cacho did take and act on advice, and there was nothing to suggest that it was not correct; on the contrary, it was confirmed by events as they unfolded.

74. As I have explained, he was given advice by M. Sacerdoti, said by Mr Cacho to have been recommended to him by Mrs McFadzean: it was not said that no such advice was given, and it was not said that Mr Cacho was told, at the time, that there was some good reason to disregard it, or to doubt M. Sacerdoti’s professionalism or reliability. Having been closely involved for a number of years, M. Sacerdoti was an obvious source of information and advice – I reject the wholly unevidenced suggestion that by some concealed means he was or may have been acting against Mrs McFadzean’s interests, in concert with Mr Mayes; indeed, that suggestion is contrary to his apparent involvement in securing the agreement with Achille (acknowledged to have been satisfactory).

75. His advice, in effect, was that in order to preserve the Permission, work would have to begin by about the end of October 2018, and would have to be substantial and expensive (possibly costing €200,000 – €300,000, and possibly also entailing a commitment to continue). That advice has not been contradicted by any expert or other evidence adduced by Mrs McFadzean. Moreover, that it was correct (and that Mr Cacho acted reasonably in believing it to be correct) is strongly suggested by its consistency with: 75.1. the fact and basis of Achille’s withdrawal on 17 October 2018, explained in some detail in their letter, and based on professional advice which they themselves had received; I note also that Achille cited the view of M. Sacerdoti provided in February 2017, that a “provisional schedule of studies prior to the work of 3.5 months” would be necessary; 75.2. the advice subsequently given by Hoche to Mr Waghorn; and, 75.3. the offers made (at about the end of October 2018) by RDT, and through W Estate, and with their views expressed in correspondence.

76. Neither was M. Sacerdoti’s advice inconsistent with events as in fact they unfolded, insofar as they are known: Mr Mayes had access to the Plot from about the end of October 2018; importantly, he was in a privileged position – he had prior knowledge of the Plot, and of the Permission – he had negotiated and sought to buy it several years beforehand; he had made a substantial offer; in the event, work was done, and the Permission was preserved, but it cannot be said that the work was not substantial and costly, or that it could have been commenced at some materially later time (certainly not by some other person, previously a stranger to the Plot); it cannot be said that Mr Mayes did not take a significant financial risk in carrying it out. Although it is understandable that having herself failed to exploit the Plot’s value with the benefit of the Permission, Mrs McFadzean should be now unhappy that Mr Mayes was able to do so, that is not the foundation of a case against the Trustees.

77. In those circumstances, were Mrs McFadzean to have any prospect at all of showing that Mr Cacho would have been told something quite different had he taken different advice, it was plainly for her to adduce some expert evidence of that; the mere reference to M. Sacerdoti’s letter of 11 May 2018 was not enough to satisfy that burden – first, because it was directed at a different point (work to be done in the first year, rather than beforehand); second, because it was not said that it had been seen by Mr Cacho; and third, because, as I have said, it was overtaken by the advice and events that I have described.

78. Neither was there any substance in the suggestion that Mr Cacho was negligent in having failed himself to begin and carry out works to preserve the Permission: 78.1. there were no (or if any, very few) liquid assets in the estate, and no readily available means of funding necessary works; secured borrowing on the Plot was attracting interest at a rate of about £4,000 per week, and the risks of borrowing money to do so, and of causing loss to the estate as a result (if for example, the Permission were nonetheless to be lost, as to which there was plainly a real risk) were manifest; 78.2. any suggestion that Mr Cacho was negligent in having failed to exploit any offers made by Mr Galvin either to lend or assist was hopeless; Mr Cacho was amply justified in his decision not to engage with him; 78.3. Mr Cacho’s decision to sell rather than borrow and conduct work himself was therefore well within the broad scope of his discretion, reasonably exercised.

79. Similarly, on his appointment, having been to France and having spoken with Mrs McFadzean and others, including M. Sacerdoti, Mr Cacho decided to conduct negotiations for the sale of the Plot without first engaging in a broad and public marketing exercise, and without drawing attention to Mrs McFadzean’s insolvency. Again, his decision to do so was prudent and rational, and well within the scope of his own professional, commercial judgment; in any event, time was short, and Mrs McFadzean had herself been seeking to sell the property, such that there already existed a group of potential purchasers, including Achille (which she described, in her evidence in support of her application to remove Mr Cacho, as “a purchaser already lined up to purchase” the Plot) such that it is readily understandable that she would not have wished to publicise her bankruptcy, or have her trustee in bankruptcy conduct an international sales process.

80. Negotiations having been conducted, the agreement was made with Achille, on 3 October 2018, to purchase the Plot for €8,370,000 (€7,950,000 net). In respect of price, there was no complaint about that agreement – but more than that, the contract was signed by Achille and by Mrs McFadzean herself; she is in no position to complain about it. The proposed date of completion was 31 October 2018, self-imposed by Achille, to allow them sufficient time, so they hoped, to open the site and preserve the Permission before its expiry in December – again, a feature consistent with the advice said by Mr Cacho to have been given by M. Sacerdoti.

81. Achille withdrew on 17 October 2018. Their withdrawal was not caused by Mr Cacho, and he cannot be blamed for it: it was no more or less than a most unfortunate outcome. On any view, there was nothing in the allegation that Mr Cacho was negligent in having failed to transfer the benefit of the Permission – that was not the reason for Achille’s withdrawal.

82. At that point, there was very little time – until about the end of October – in which to negotiate an alternative sale with the potential benefit of the Existing Permission; of the offers received, only one – that of FSH – was higher than that which was accepted.

83. Mrs McFadzean sought to criticise Mr Cacho’s conduct of negotiations with Mr Mayes. However, that criticism was hopeless: 83.1. first, because the conduct of negotiations is a matter of commercial judgment – it can almost always be said (but is not relevant) that a different person, negotiating differently, might have secured a better deal; it was rational and reasonable to ask for offers within a short time, because everything suggested, as I have explained, that the Permission would soon, in effect, be lost; 83.2. second, because Mr Cacho’s evidence was that he did in fact raise, but without success, the possibility of an overage clause; 83.3. third, because in fact he succeeded in negotiating a higher offer (indeed, higher than the value stated in Achach 2, and the Berthier Valuation); 83.4. and fourth, because in any event, Mr Mayes’ offer was the highest unconditional offer; essentially, Mr Cacho had no relevant bargaining position, and no viable alternative; no other person was willing to commit to paying more; Mr Mayes was in pole position; Mrs McFadzean has produced no evidence, and produced nothing at the time (despite invitations to do so) to suggest that the Plot was genuinely and realistically worth more than €3.3 million, or that there was a realistic alternative prospective purchaser.

84. Whilst FSH offered the possibility of buying the Plot for €4 million net, their offer was conditional (and too late); it depended on the outcome of a meeting proposed to be held on 10 November 2018 – it was wholly uncertain. Again, it was (at least) reasonable to decide to accept the unconditional offer from Mr Mayes, rather than risk its loss in pursuit of a better offer that might never eventuate; Mr Cacho cannot be criticised for doing so.

85. In the circumstances, in these respects, the case against Mr Cacho is not reasonably meritorious or reasonably likely to result in a benefit to Mrs McFadzean. The Case Against Mr Waghorn

86. The case alleged against Mr Waghorn was different, and in fact (even) more difficult: by the time of his appointment, on 9 November 2018, the Offre D’Achat had been executed; subject to the operation of the seven-twelfths rule (about which Mr Waghorn received legal advice, which confirmed that given previously to Mr Cacho) it was enforceable (meaning that its breach would or could have had very costly legal consequences for the estate) and in order for that rule to apply, it would have to have been shown that the true or market value of the Plot as at 26 October 2018 was no less than (about) €7.92 million.

87. However, there was no expert or other evidence to support such a valuation, and Mr Waghorn was throughout advised by his lawyers, French and English, that the agreed sale ought to proceed, and was beneficial to the estate.

88. Moreover, the circumstances strongly suggested that the Plot’s true value at the point of sale was very much closer to €3 million than €9 million, and in any event, a good deal less than €7.92 million, a sum only marginally exceeded by the Achille Offer which Mrs McFadzean accepted; even the whole of the profit eventually made by Aurum 33 (having bought at a cost of €3.5 million) appears only to have been about €5.4 million.

89. As to the Plot’s value: 89.1. with the benefit of the Existing Permission, the Plot was worth about €9 million: it was valued at €9.2 million by Achach 1 as at 3 September 2018 (despite no offer ever having been received in that amount), and on 3 October 2018, the Achille Offer was made and accepted in the sum of €8,370,000; the Lamy Valuation was also on the basis that the Permission had been preserved; 89.2. without the benefit of that Permission, the Plot was worth about €3 million: Achach 2, dated 26 October 2018 (based “conformal to your [Mr Cacho’s] request in our exchanges” on a “new project less ambitious”), valued it at €3.1 million, and the Berthier Valuation, as at 21 November 2018, valued it at €3 million; 89.3. Achille withdrew their €8,370,000 offer on 17 October 2018: they said that they (and their advisors) did not believe it to be possible, by 10 December 2018, to carry out the work necessary to preserve the Permission; accordingly, by that time, in effect, they considered the Permission to have expired, or to have been at very serious risk of expiry; that was consistent with M. Sacerdoti’s advice; 89.4. although Aurum 33 was in fact able to do enough, by about 5 December 2018, having commenced work at some point after 26 October 2018 to preserve the Permission, it was not possible, on the evidence in its present state, to know exactly what they did, or what it cost, or what degree of commitment to the complete construction was required; in any event, Mr Mayes had some particular, prior knowledge of the Plot; as I have said, the evidence strongly suggested that M. Sacerdoti’s advice that work would have to begin by about the end of October 2018, and would have to be significant and expensive, was substantially correct; 89.5. the offers in fact made or suggested by Mr Mitchell (€2-3 million), W Estate (€2.85 million) and (with various pre-conditions) FSH (€4 million) suggest that at the time, the market valued the Plot in a sum far closer to €3 million than €9 million (in effect, without the benefit of the Existing Permission); any assessment of “value” depends of course on the existence of a person willing to pay.

90. In the circumstances, certainly unsupported by evidence, it was fanciful to suggest that the Plot’s true market value, as at 26 October 2018, in the circumstances which then prevailed (including in particular the imminent expiry of the Permission) was c. €7.92 million or more. The agreed sale was the product of a genuine, good faith and arm’s length negotiation (not negligently conducted) and the offer accepted was the best in fact available.

91. In any event, even if advice had been received that the Plot’s value was arguably greater than €7.92 million, the Trustees would not have been in a strong position to take action: the Offre D’Achat was binding, and the purchaser’s position was secure; legal proceedings would have been required, and would, presumably, have been costly, speculative and time-consuming; there was no cash available in the estate to fund proceedings; Mrs McFadzean had no expert evidence about what would have been required, and how proceedings might have unfolded. In any event, success would (presumably) have entailed setting aside the contract, and regaining ownership, but without the benefit of the Existing (or indeed, any other) Permission, which would very likely by then have lapsed. In those circumstances, it is impossible to show that Mr Waghorn (and also Mr Cacho) would have been negligent not to seek to have the agreement with Mr Mayes set aside, and impossible to show that there would have been any benefit in doing so.

92. Whilst I accept, as explained above, that the Berthier Valuation ought to have been, but was not (or was not obviously) stated to be correct as at 26 October 2018, that failure is of no consequence to these conclusions; the same is true of the possibility that Hoche were not given Achach 1 or the Achille Offer, for the reasons explained above at paragraph [56].

93. Again, in the circumstances, in these respects, the case against Mr Waghorn and Mr Cacho is not reasonably meritorious or reasonably likely to result in a benefit to Mrs McFadzean. Other Discretionary Factors

94. Finally, the Trustees relied upon various additional factors, including Mrs McFadzean’s failure to take formal steps to stop the sale at the time (despite having standing to do so), her prejudicial delay (in failing to make the present Application until 26 July 2024, after the Trustees’ release, and several years after the material events), and her conduct during the bankruptcy itself, said to have been vexatious (including for example, by her informal attempts to thwart the sale, her persistent involvement of Mr Galvin, and her failure more generally to co-operate, which ultimately led to the interim suspension of her discharge). In the circumstances, it is not necessary to consider those matters in any detail (to some extent, they are reflected in the account of the background that is set out above). Suffice to say that had I been sufficiently persuaded of the merits and substance of the claims, I would have given permission to proceed: in those circumstances, the claim would have been brought inside the limitation period; notified relatively promptly after the annulment; ex hypothesi, of some real potential economic value, and so not vexatious. I would not have refused permission on grounds of alleged vexatiousness unrelated to the claims themselves.

95. In the circumstances however, for the reasons explained, the Application is dismissed. Dated: 27 February 2026