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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AW Group Ltd v Taylor Walton (a firm) [2014] EWCA Civ 592 (07 May 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/592.html Cite as: [2014] EWCA Civ 592

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
His Honour Judge Hodge QC
HC11CO3360

		Royal Courts of Justice Strand, London, WC2A 2LL
		07/05/2014

Lord Justice Briggs :

Introduction

1. This is an appeal from the Order of HH Judge Hodge QC sitting as a deputy judge of the Chancery Division, made on 29^th July 2013, following the trial of a professional negligence action between AW Group Limited and Taylor Walton, a firm of solicitors.
2. The judge dismissed the action because, although he found that the defendant solicitors had indeed been negligent, in failing to give appropriate planning advice in connection with the claimant's acquisition of property for business purposes, he concluded that the claimant had failed to prove that the negligence caused it any loss. The claimant obtained permission to appeal from Vos LJ on 17^th October 2013, but only on one ground, namely that the judge reached the wrong decision on causation due to his failure to consider two specific issues raised by the claimant, namely the likely attitude of its bankers had proper planning advice been given, and the financial circumstances of two associated companies, AW Transport Limited ("AWT") and AW Commercial Repairs Limited ("AWCR").
3. The claimant's Grounds of Appeal raise a number of complaints of procedural unfairness arising from the judge's handling of the trial. Permission to pursue these matters on appeal was granted by Vos LJ, but only to the extent that they support the causation argument which I have just summarised. The procedural matters arise from the fact that, just over two weeks before the date set for the commencement of the trial, the claimant and its then legal team parted company (to use a neutral phrase) so that the trial was, in the event, conducted on the claimant's behalf by Mr. Geraint Martyn Jones of counsel, on a direct access basis, with the help of a junior member of his chambers (at Mr. Martyn Jones' expense), Miss Laura McGinty. In short, it is said that the judge made insufficient allowances for the disadvantages suffered by the claimant from losing the services of its previous legal team so soon before the trial, with the consequence that its evidence and submissions were presented less fully than would otherwise have been the case, had fair allowances been made. Further, it is said that the judge wrongly admitted into evidence the published accounts of AWT and AWCR, thereby putting the claimant at an unfair disadvantage.
4. There is also a cross-appeal which arises only if the appeal is allowed. It relates to an aspect of the judge's legal analysis of the basis upon which, had he decided in the claimant's favour, he would have directed an inquiry as to damages.

The facts

5. The relatively narrow focus of the appeal (leaving aside procedural matters) makes it possible for me to provide a very brief summary of the facts. I take them with gratitude from the careful and comprehensive findings of the judge, delivered orally from notes six days after the conclusion of the seven day trial. Hardly any of his findings of primary fact are in issue on this appeal, which relates to the counter-factual analysis of what the judge concluded would have happened if, contrary to the fact, the defendants had given appropriate advice about planning matters.
6. For some twelve years prior to the events in issue, the claimant (previously known as Luton Truck Stop Limited) had been the owner of business premises at Chaul End Lane, east of Luton, very close to the M1 motorway. It ran a 'truck stop' from the site, providing parking places for about a hundred heavy goods vehicles, a restaurant and bar, and overnight accommodation for the trunk drivers. There were various buildings on the site, both offices and warehouse buildings. Some were used by the claimant and its associated companies AWT and AWCR, while others were let out to third parties. AWT carried on a haulage business while AWCR had (as its name implies) a business repairing commercial vehicles.
7. At about the turn of the century it became apparent to the claimant that the Chaul End site had potential for retail development. In November 2002 the claimant accepted an offer from Real Estate Properties Limited to take a development option, that is an option to purchase the site for £6.2 million, if planning permission could be obtained for retail development. Permission was indeed obtained and the option was exercised in April 2005, on terms which obliged the claimant to vacate the site by 31^st October 2005, although in the event it negotiated an extended licence to continue in occupation until 21^st November 2005.
8. Sale of the Chaul End site for £6.2 million would secure for the claimant a very large capital gain, for which it was understandably anxious to obtain roll-over relief. This required that it continue its business activities on an alternative site or sites following departure from Chaul End. In fact the claimant decided to use only part of the proceeds of the sale of Chaul End in the acquisition of an alternative site for its business activities. The other part (some £3.5 million) was used for the purchase of an office block in the centre of Luton, known as Dominion House.
9. The transaction in issue in these proceedings arose from the claimant's identification of a site at Packhorse Place, Watling Street, Kensworth, Beds as suitable for its transferred business activities. On 15^th July 2005 the claimant agreed subject to contract to buy the Packhorse Place for £2.8 million, and paid a £140,000 deposit ("the Deposit"), upon terms that it would only be refundable if the vendor pulled out of the transaction. The Deposit was paid before the defendants embarked upon any enquiries in relation to the property. The defendants were in no respect at fault in connection with the claimant's commitment of the Deposit in advance of any legal or other investigation as to the suitability of the property. On the contrary, they advised against doing so on those terms.
10. Packhorse Place is an industrial estate situated behind a petrol station on the A5 southwest of Luton. It had various industrial units on the site, some of which were occupied and some vacant. The claimant planned to re-locate some of its Chaul End tenants on the site, as well as AWT and AWCR. It does not appear that the claimant intended to continue its truckstop business at Packhorse Place, but it did wish to use a then vacant area at the rear of the site for parking up to twenty HGVs. For that purpose it obtained a licence from the vendor pending completion to begin clearing that area and laying hard standing. Soon after completion, which was simultaneous with exchange and occurred on 2^nd or 3^rd November 2005, the rear part of the site ("the Parking Area") was used for the parking of HGVs, either by the claimant itself or by its associated companies. All but one of the units on the Packhorse Place site had B1 planning permission. One unit had a permission for B2 and B8 use, albeit personal to the relevant occupier. The parking area had no planning permission for any kind of use, nor indeed for development by the laying of hard standing. Furthermore, it was subject to a planning condition, imposed as part of the planning consent for the erection of one of the units at the site, in the following terms:

"No part of the land shown hatched blue on Plan 3795/P7 shall be used for open storage, deposit of material or parking of vehicles except as may be essential for the duration of construction works for the development hereby permitted."

11. The defendants' investigation of title and planning matters relating to the Packhorse Place site began in late July, after the payment of the deposit, and continued through August and September. The claimant needed to borrow from National Westminster Bank ("NatWest") in order to pay the combined purchase prices of Dominion House and Packhorse Place. There was an issue about precisely how much needed to be borrowed. The judge said that it was £922,000.
12. NatWest instructed its own solicitors, Machins, to act in relation to the proposed mortgage security to be offered over both Dominion House and Packhorse Place. They began work on 4^th October 2005. The claimant and NatWest also instructed a firm of valuers, Kirkby & Diamond, to value Packhorse Place, and that valuation was provided on 29^th September 2005.
13. Following completion, the claimant soon ran into difficulties with the local planning authority, due to its construction of the hard standing, and parking of HGVs in the Parking Area. Retrospective planning permission was refused and, although the claimant was advised that it had a 50/50 prospect of success, its appeal also failed. In the end, it was obliged to cease using the Parking Area for that, or any other, business purpose.
14. The existing planning consents for the Packhorse Place site were also unsuitable for AWCR's repair business and, arguably at least, AWT's haulage business. In the event however, no planning enforcement action was taken other than in relation to the Parking Area. In due course, AWT and AWCR both closed their businesses and went into liquidation, but not until sufficient business continuity had been established at Packhorse Place to enable the claimant successfully to claim roll-over relief as planned.
15. The claimant's case at trial was that, had the defendants given adequate advice about the existing planning consents at the site, the condition affecting the Parking Area, and the prospects of getting satisfactory planning permission thereafter, the claimant would have decided not to proceed with the purchase of Packhorse Place and would, if necessary, have resigned itself to the loss of the Deposit and sought alternative premises elsewhere. In Chapter 6 of his judgment, headed "Loss and damage", the judge assessed the open market value of Packhorse Place on 2^nd November 2005 with the benefit of its actual planning consents at £2.07 million, so that the claimant paid some £730,000 more for it than it was worth at the time.

Fresh evidence

16. Mr. Martyn Jones sought permission to adduce fresh evidence on the appeal, in the form of witness statements from a Mr. Grant Franklin, the Managing Partner of the firm of accountants which provided accountancy services for the claimant and its associated companies AWT and AWCR at the material time. Mr. Franklin had given evidence and been cross-examined at the trial. The first of the two additional witness statements seeks to provide evidence about the amount lent by NatWest to the claimant in connection with the acquisition of Dominion House and Packhorse Place. The second additional witness statement seeks to provide evidence about the financial position of the group which included the claimant, AWT and AWCR, partly by reference to the published accounts of the latter two companies, which had been used in cross-examination and in evidence by the defendants at the trial in a bundle which has acquired the name "Bundle R".
17. Having heard submissions from Mr. Martyn Jones as to why it might be appropriate for this court to admit that fresh evidence, we decided to refuse his application, stating that reasons for doing so would be included in our judgments on this appeal. I now set out my own reasons for that refusal.
18. The principles upon which this court's power to admit fresh evidence under Part 52.11(2) is exercised are well settled. In summary, the court will seek to give effect to the overriding objective of doing justice, but in that respect the pre-CPR cases, including Ladd v Marshall [1954] 1 WLR 1489 remain of relevance and indeed of powerful persuasive authority: see Sharab v Al-Saud [2009] EWCA Civ 353 at paragraph 52, per Richards LJ. Since that decision the overriding objective has of course been supplemented so that dealing with a case justly and proportionate costs includes, as far as is practicable:

"(f) Enforcing compliance with rules, practice directions and orders."

19. The obvious problem facing Mr. Martyn Jones' application was that nothing in the proposed fresh evidence was unavailable either to the claimant (upon reasonable enquiry) or indeed to the deponent Mr. Franklin by the time of the trial, and Mr. Franklin was himself a witness at trial, from whom this evidence could, on the face of it, have been deployed, had he been asked to consider those matters in advance. The evidence related entirely to aspects of the claimant's and its associated companies' financial position, including their banking relationships, in 2005.
20. Mr. Martyn Jones sought to deal with this fundamental difficulty by concentrating his submissions upon the difficulties which he and his client faced following the departure of the claimant's previous legal team two weeks before the trial. In summary, he said that he was instructed only a week before the trial, but no trial bundle was then available, that the judge only permitted a single day's adjournment to assist him and that he had in effect been ambushed by the deployment of Bundle R during the cross-examination of Mr. Russell Allen, the claimant's managing director at the material time, on the second day of the trial, and disabled from asking Mr. Franklin to assist with evidence about it when he later gave evidence about it, because of an assumption on his part that Mr. Franklin would be fully cross-examined about it.
21. In my judgment none of these submissions came near to surmounting the obstacle presented by the availability to the claimant of this supposedly fresh evidence, well in advance of the trial. As Mr. Martyn Jones acknowledged when asked about it, the time for exchange of witness statements of fact had long since passed when the claimant and its previous legal team parted company. The defendants had by their solicitors been asserting in correspondence well before trial that disclosure of documents relevant to the claimant's banking relationship was inadequate. The claimant's pleaded case as to causation asserted, in paragraph 42 of the Particulars of the Claim, that the bank would only have been prepared to lend £2 million to the claimant if informed about the planning difficulties at the Packhorse Place site, an assertion which plainly brought into play both the claimant's financial position and its relationship with NatWest. In short the time for deciding whether to adduce the evidence now sought to be introduced through Mr. Franklin had long passed before Mr. Martyn Jones began preparing for trial at very short notice.
22. Furthermore, it became evident when, at the court's request, Mr. Martyn Jones helpfully took us through the transcript of the early stages of the trial that he had had the time between the second day's hearing and the beginning of the afternoon of the third day's hearing to take instructions from both Russell Allen (by then no longer on oath) and, if necessary, to discuss the matter with Mr. Franklin, before Mr. Franklin was called to give evidence on the afternoon of the third day. Bundle R had in fact been deployed by the defendant on the first day of the trial, and made available both to the judge and to Mr. Martyn Jones. A brief perusal of the bundle would have revealed an apparently very poor financial state of affairs for both AWT and AWCR. It was apparent by the end of Russell Allen's cross-examination on the second day that a main purpose of the deployment of Bundle R was indeed to demonstrate the poor financial position of those two companies, a matter which the fresh evidence of Mr. Franklin is in part intended to challenge, by reference to the group accounts.
23. It is not necessary now for me to form a view whether the non-deployment at the trial of the additional evidence of Mr. Franklin was the result of a deliberate decision, or of an omission on the part of the claimant and (mainly) its previous legal team. It is sufficient that the material could have been but was not deployed. To permit its admission for the first time on appeal would to my mind be a paradigm case of giving an unsuccessful claimant a second bite of the cherry.
24. It is not clear that this material would have been permitted to be adduced even by the trial judge, if application had been made to him. Disclosure of documents about the matters to which Mr. Franklin's additional evidence goes had been either non-existent or incomplete. Mr. Franklin's evidence would have to have been the subject of an application to adduce it long out of time, and it appears likely, to put it no higher, that a submission at that stage that the additional evidence be disallowed, on the grounds that, if allowed, fairness would have required further specific disclosure and an adjournment of the trial, to enable the defendants to consider it, would have had real force.
25. Those are the reasons why I concluded that the fresh evidence should not be permitted to be introduced.

Bundle R

26. One of the two limbs of the claimant's appeal on causation is that the judge formed a jaundiced view about the financial circumstances of AWT and AWCR:

"on partial information that had not been put to the Claimant's accountant when he gave evidence as ought in fairness to have been done." (paragraph 8 of the Grounds of Appeal)

The "partial information" referred to consisted entirely of the published accounts of AWT and AWCR, which did indeed show that both of them were loss making and that they both had large balance sheet deficits which were getting worse at a significant rate.

27. Mr. Martyn Jones' main point on appeal was that Bundle R should not have been admitted into evidence at all. The transcript shows that when, on day two, Mr. Hext, counsel for the defendants, sought to put Bundle R to Russell Allen in cross-examination, Mr. Martyn Jones opposed its introduction on three grounds. The first was that Bundle R had not been in the trial bundle index. In fact, as Mr. Martyn Jones acknowledged to us, it had been. The second was that its contents were irrelevant, since an earlier pleaded claim for loss of profit by AWT and AWCR had by then been abandoned. The third was that he was disabled from taking instructions from Mr. Allen about it, for the purposes of re-examination.
28. The judge rejected Mr. Jones' submissions and permitted a brief cross-examination of Mr. Allen on the basis of Bundle R, noting that any difficulties of re-examination could be solved when Mr. Franklin came to give evidence in due course. When that occurred on day three, the judge did not (despite Mr. Hext's intervention) restrain Mr. Martyn Jones in his oral examination in chief of Mr. Franklin, but that did not extend to any questions about Bundle R. Mr. Allen had himself during cross-examination about Bundle R suggested that Mr. Hext cross-examine Mr. Franklin about the detail, professing to be no mathematician or expert in accounts. In fact, Mr. Hext did not cross-examine Mr. Franklin about Bundle R, since he had given no evidence in chief about it, and (probably) because by then Mr. Hext had obtained what he needed while cross-examining Mr. Allen.
29. In my view the judge cannot sensibly be criticised for admitting Bundle R both for use in cross-examination of Mr. Allen, and for relying upon its contents when forming views about the financial condition of AWT and AWCR. The contents of Bundle R ought to have been, but had not been, disclosed by the claimant long before trial. Its relatively late arrival on the first day of the trial was hardly a matter for criticism of the defendants. The question whether either of those companies had any real business future, beyond the purpose of assisting in the obtaining of roll-over relief, was plainly relevant to the question what the claimant would have done if properly advised about the planning difficulties affecting the Packhorse Place site, for reasons which I will explain in due course. There could be no possible unfairness to the claimant in having the published accounts of its two associated companies deployed at trial. Even if the managing director was no expert at accounts, he might be supposed to have, in his head, a working understanding of the financial position of companies for the management of which he was ultimately responsible and, in any event, the accountant Mr. Franklin was due to give evidence on the following day. It was then for the claimant to deploy, in Mr. Franklin's evidence in chief, anything which he could say to rebut the prima facie appearance, from those companies' own accounts, of a poor and worsening financial condition. There was in my view no obligation on the defendants to put it again to Mr. Franklin in cross-examination, still less on the judge to see that this was done. For those reasons this limb of the appeal on causation must fail.

The attitude of NatWest

30. The other limb of the claimant's appeal on causation is that the judge did not properly consider, as one of the issues raised by the claimant, the attitude of NatWest as mortgagee. The claimant had indeed raised and precisely pleaded an issue about NatWest's attitude, at paragraph 42 of the (by then) Amended Particulars of Claim. The allegation was as follows:

"If the Defendant had informed Kirkby & Diamond and/or Machins and/or the Claimant as it ought to have done that there was no planning permission for the parking of HGVs to the rear of the site and that such planning permission was needed and/or that the description of the planning permission at paragraph 8.4 of the Kirkby & Diamond Report was wrong, then the matter would have been referred back to Kirkby & Diamond and Kirkby & Diamond would have reduced its valuation downwards to about £2 million to reflect the true planning position. This would in turn have limited the amount that the Bank was prepared to lend in respect of the purchase to £2 million. If, contrary to its primary case, to which the Claimant adheres, the Court holds that the Claimant would not have immediately withdrawn from the purchase, the Claimant would have in any event sought to reduce the purchase price to £2 million in line with the revised Kirkby & Diamond valuation. Unicorn would not have been prepared to reduce the price to such a figure and the Claimant would have withdrawn from the purchase thereafter and the refundable deposit would have been repaid. Alternatively the Claimant would have sought to re-negotiate on the basis of the revised valuation."

This paragraph needs a little unpicking to make it comprehensible. Kirkby & Diamond were the valuers instructed by the claimant and the Bank to value both Packhorse Place and Dominion House. Machins were the solicitors retained by NatWest in connection with the offer of the Packhorse Place and Dominion House properties as security for lending to the claimant. Paragraph 8.4 of Kirkby & Diamond's Report suggested that all the units at Packhorse Place had B1, B2 and B8 planning permission whereas in truth all except one only had B1 permission and unit 7 alone had B2 and B8 permission. The value of the Packhorse Place site had been reported by Kirkby & Diamond at £2.8 million. The pleading said nothing about what the Bank had in fact been prepared to lend in respect of the purchase. Unicorn was the vendor of the Packhorse Place site. Paragraph 42 formed part of the Particulars of Claim in its original form, and was unaffected by the amendments made at the beginning of the trial.

31. It might have been thought that, having pleaded a case of that kind, the claimant would have given full disclosure of documents relevant to its banking relationship with NatWest, and then deployed at trial evidence from NatWest as to what its attitude would have been if informed of the true position as to planning, or at least documents showing what the bank's lending guidelines were, so as to enable the court to form an evidence-based view rather than speculate, about the effect of that information upon the bank's readiness to lend. Nothing of that kind was done. On the contrary, requests for disclosure of that material were rebuffed on the grounds of irrelevance by the claimant's former solicitors. No witness was called from NatWest, nor were any of Nat West's lending guidelines produced or proved. The only evidence about what the bank might have done was to be found in the witness statement of Russell Allen which, at paragraph 93, asserted in round terms that, if the Bank had been duly informed about the planning issues, it would not have contemplated lending any money, and would:

"have run a mile and the transaction would not have proceeded."

When Mr. Allen was cross-examined about this paragraph at the trial, Mr. Martyn Jones intervened with this observation:

"… I do not suppose any of us knows exactly why the bank did what they did. Nobody has asked them. One can argue that it might be, that might have been their approach, but that is all one can say… I do not really see how it can be suggested that we know what the bank's precise requirements."

32. It is in those circumstances hardly surprising that the judge dealt with this part of the claimant's case very briefly. At paragraph 210 he referred to Mr. Allen's evidence about the bank's attitude, and simply rejected it. The judge had not, in any event, found Mr. Allen's evidence particularly reliable but he was on any view entitled to treat the only evidence at trial about the Bank's attitude as no better than speculation.
33. The claimant's difficulties in relation to proving what might have been the Bank's attitude do not end there. It was incumbent upon the claimant to show that, if the defendants had advised the claimant about the relevant planning difficulties, this information would have found its way to the Bank. In relation to the absence of planning permission for the Parking Area, this was sufficiently proved, and indeed pleaded. The defendants had undertaken to the Bank's solicitors Machins to put right any earlier misrepresentation made by them during the process of enquiries and requisitions, and had stated to Machins that the construction of a hard standing in the Parking Area, and its use by HGVs, gave rise to no planning difficulties. Thus it was a fair inference that the Bank would have learned of the planning difficulties in relation to the Parking Area had the defendants given appropriate advice. The evidence about the Kirkby & Diamond valuation report showed that this probably would have led to a reduction in that firm's valuation opinion of about £250,000.
34. But there was no evidence that any representation had been made by the claimant or by the defendants to NatWest about the precise permitted users within the Units at Packhorse Place, such that the provision of correct advice would have required the putting right of any earlier misrepresentation to the bank. Machins had been sent the relevant planning materials and could form their own view.
35. More seriously, the claimant made no real attempt at trial to show what the bank had been prepared to lend, or indeed did lend to assist the claimant in its acquisition of the two properties. The judge concluded that the sum lent was £922,000. In both his oral openings and closings at trial, Mr. Martyn Jones asserted that the bank lending was £900,000 (or nearly a million), and Russell Allen's own written evidence said the same, at paragraph 56. Although there were documents in the bundle (namely correspondence between the defendants and Machins) which suggested that the bank was lending up to £2.4 million, the judge can hardly be criticised for having adopted in his judgment an amount within the bracket being put to him by the claimant's principal witness and by counsel. In fact, with the benefit of hindsight, it is probable that the difference of some £1.4 million represents the amount of the bank's underlying business lending to the claimant and its associated companies, and that the £922,000 was the new money being advanced specifically for the purposes of the two property purchases.
36. Finally, the claimant's pleaded case on causation contained within it an assumption that the claimant would, in withdrawing from the transaction on the basis of advice about the planning difficulties, have been able to recover the Deposit from the vendor. The judge decided otherwise, and this factual conclusion was not challenged on appeal.
37. In his submissions to us, Mr. Martyn Jones advanced the much bolder proposition that, if appraised of the full planning difficulties relating to the Packhorse Place site, NatWest would not have been prepared to lend at all. That seems to me, with respect, an even more speculative assertion than the pleaded one, which the judge properly rejected at trial. On any view, regardless whether the Packhorse Place site was worth £2.8 million (as valued by Kirkby & Diamond) or £2.07 million (as the judge concluded after hearing expert evidence), the combined values of Packhorse Place and Dominion House was still in excess of £5.5 million, so that even a lending of £2.4 million represented a loan to value of less than 50%, even ignoring the additional value represented by the equity in Mr. Allen's home, which was also available to NatWest by way of security via his personal guarantee of the claimant's indebtedness. True it is, as Mr. Martyn Jones submitted, that banks lend with a view to receiving prompt payment of interest, rather than having to enforce their security, but there is simply no evidence of any kind to justify his bald assertion that the planning difficulties at the Packhorse Place site would have had any real impact upon NatWest's perception of the strength of the claimant's covenant, not least since the evidence showed that it had acquired Dominion House as an investment, at a very favourable price and that, although unoccupied at the time, it might be supposed in due course to generate rental income on its own easily sufficient to fund the underlying borrowing.
38. The result of this perhaps unnecessarily long analysis is that the remaining limb of the claimant's appeal on causation is also without foundation.

Causation generally

39. The particular points raised by the claimant on its appeal in relation to causation are predicated upon a general assertion, set out at the beginning of Ground 8 that:

"The decision on the issue of causation was, on the evidence before the Judge, finely balanced…"

The thinking behind the appeal presumably was that if one or more planks of the judge's analysis could be knocked away, the correct decision on causation might be perceived to be the opposite of that arrived at by the judge.

40. In my view, the judge's decision on causation was not finely balanced. At paragraphs 207 to 213 of his judgment, the judge set out five main reasons for his conclusion that the claimant was already too committed to the purchase of Packhorse Place by the time (in late September) when the defendants ought to have warned of the planning difficulties, to be able to back out. First, it would have been too late to find and purchase an alternative site. At the most, a temporary alternative might have been rented. Second, the Deposit of £140,000 would have been lost. Third, the claimant faced a penalty of up to £500,000 if it did not vacate Chaul End by late November or, at the very latest, by 5^th December 2005. Fourth, Russell Allen would, as the result of previous experience, have taken the view that enforcement action at Packhorse Place was unlikely, and nothing seriously to worry about, even after receiving competent advice from the defendants. Fifth, the claimant could take the risk of enforcement action, because it would be unlikely to have become effective in sufficient time to prevent the claimant achieving full roll-over relief from Capital Gains Tax by moving to Packhorse Place in the meantime, as indeed it did. It was in that context that the judge's perception, from Bundle R, that the businesses of AWT and AWCR were loss-making led to his conclusion, after hearing all the evidence, that the main reason for relocating them at Packhorse Place was the obtaining of roll-over relief, rather than ensuring their long-term survival. In the event, both companies went into an insolvency process before effective enforcement action was taken against them.
41. In my judgment those reasons, taken together, amount to a compelling basis for the judge's conclusion that the claim failed on causation grounds. Even if, contrary to the foregoing analysis of the specific points taken on this appeal, one or more of them had succeeded, they would have been insufficient to persuade me that the judge's overall conclusion was incorrect.
42. For those reasons I would dismiss this appeal. In that event, the matters raised by the cross-appeal do not arise for decision.

Sir Stanley Burnton:

43. I agree.

Lord Justice Jackson:

44. I also agree.