Shaw v Finnimore & Anor, Court of Appeal - Chancery Division, March 02, 2009, [2009] EWHC 367 (Ch)

Resolution Date:March 02, 2009
Issuing Organization:Chancery Division
Actores:Shaw v Finnimore & Anor
 
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Neutral Citation Number: [2009] EWHC 367 (Ch)Case No: HC08C00296IN THE HIGH COURT OF JUSTICECHANCERY DIVISIONRoyal Courts of JusticeStrand, London, WC2A 2LLDate: 2nd March 2009Before :SIR JOHN LINDSAY(SITTING AS A JUDGE OF THE HIGH COURT)- - - - - - - - - - - - - - - - - - - - -Between :- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Mr Jeremy Callman (instructed by Wiseman Lee LLP) for the ClaimantMr Simon Lillington (instructed by Garner & Hancock LLP) for the DefendantsHearing dates: 10th, 11th, 12th 15th, 16th, 17th, 18th & 19th December 2008 and 15th & 21stJanuary and 9th, 10th & 11th February 2009- - - - - - - - - - - - - - - - - - - - -JudgmentSir John LINDSAY : A. Introduction1. In this action Mr Royston Henry Shaw, known to many as Roy ``Pretty Boy'' Shaw, claims that, by way of the provisions, sometimes of law, sometimes of equity, the defendants are liable to pay or repay large sums to him. The defendants are, firstly, Miss Linda Sheila Finnimore, an erstwhile close friend and associate of Mr Shaw, and, secondly, her son, Mo Frederick Watts. Mr Watts has taken no active part in the action and is content to abide by my judgment. Miss Finnimore, by contrast, has very actively resisted Mr Shaw's claims for recovery, which are put several ways, including recovery for misappropriation, deceit, misrepresentation, for mistake of fact, for money had and received and in respect of undue influence and unconscionable bargain.2. Outstandingly the largest single sum claimed by Mr Shaw is one of £643,000 paid on 30th October 2007 by a bank transfer, signed by him, from his bank account at HSBC's Brentwood branch to Miss Finnimore's account 00011711 at HBOS. £100,000 of the £643,000 were promptly transferred on by Miss Finnimore to her son and it is accepted that the 2nd Defendant's case stands or falls with Miss Finnimore's case as to the £643,000. Mr Lillington, counsel for Miss Finnimore, rightly describes as the single most important issue that of why it was that the £643,000 found its way from Mr Shaw's account to Miss Finnimore's at the end of October 2007. I shall later deal with that issue ahead of all others but I should first say a little as to the procedural history and rather more as to the parties. B. Procedural history3. On 29th January 2008 Mr Shaw moved ex parte and obtained from Evans-Lombe J a freezing order over, inter alia, Miss Finnimore's Halifax account 00011711. Also ``frozen'' was a house in Miss Finnimore's name (but subject to a substantial mortgage) at Newton Abbot in Devon. The order made provision by way of exception from the freezing order for £500 per week for Miss Finnimore's living expenses and for reasonable sums for her legal expenses. After evidence or further evidence was filed by both sides, on 4th March 2008 David Richards J continued the Order of 29th January until final judgment or earlier further order. On 27th June 2008 the exceptions to the freezing order were enlarged by order of Patten J so as to permit the payment from the frozen account of £13,478.62 of Miss Finnimore's then mortgage arrears on her Newton Abbot home and of monthly mortgage payments thereafter of £1,514.94 until the conclusion of the trial. Before the freezing order took effect Miss Finnimore had already substantially reduced the £643,000 that had passed into her Halifax account and the exceptions to the freezer which I have described, with other agreed exceptions, have led, I am told, to over £200,000 having been allowed out of the frozen account in favour of Miss Finnimore's living, mortgage or legal expenses. At the conclusion of the hearing of the action on 11th February I put an immediate end to the exceptions to the freezing order. However, given that Miss Finnimore's evidence was that her only present resources are the Newton Abbot house and (on the assumption that it is hers) the balance for the time being remaining in the frozen account, one can see why Mr Lillington described the single most important issue in the action as he did. Before I turn to it, though, I must, as I have said, say something of the main parties, Roy Shaw and Linda Finnimore, and the relationship or connection between them.The principal parties: Mr Shaw4. Mr Shaw was born on 11th March 1936 and accordingly is very nearly 73 years of age (although Miss Finnimore repeatedly referred to him as being 77). He has a history of criminal violence and dishonesty and by 1974 had spent some 18 years in prison, some of that period having been spent in Broadmoor. I do not understand him to have been in prison or to have received custodial convictions since 1974 although that is not to say that it can be assumed that his life has been free from violence and other crime since then. Once out of prison he became a champion unlicensed bare-knuckle prize fighter under the soubriquet Roy ``Pretty Boy'' Shaw. He became and (although no longer fighting) is still well-known in the raffish worlds of ``villains'' and of bare-knuckle fighting, so much so that his life has been the subject of a published biography by Kate Kray, widow of the widely known gangland figure. Mr Shaw was a well-known figure in the criminal milieu which grew around the Kray brothers. He was a pall-bearer at the funeral of one of them. His circle still contains figures from that milieu; he numbers infamous names amongst his friends and acquaintances and is celebrated in such circles as a man who, as it would be put, has not let ``the system grind him down'' but rather has so risen above it as to have become both well-known and wealthy enough to be able to sustain a lifestyle which is occasionally flamboyant or extravagant.5. Even leaving aside, for want of any detail either pleaded or proven, the question of whether Mr Shaw is still responsible for violence or for credible threats of violence to those who have crossed him or who may cross him (as to which there is no evidence save Miss Finnimore's repeated but entirely unspecific evidence) there are other attributes of Mr Shaw which require particular mention.6. Mr Callman, counsel for Mr Shaw, called Professor Robert Howard, MB., BS., MD., MRCPsych, the distinguished Professor of Old Age Psychiatry and Psychopathology at the Institute of Psychiatry at The Maudsley. Professor Howard had examined Mr Shaw in March and September 2008 and had also examined his medical records. His written report refers to Mr Shaw accepting that, as a boxer, he had taken a large number of blows to the head during his fighting career; the Professor refers to episodes of disorientation, of acute confusion, of Mr Shaw's particular difficulties with tests (by another doctor, a Specialist Registrar in Old Age Psychiatry) of his remote and recent memory and of likely diagnoses (by other medical specialists) of Mr Shaw having a mixture of Alzheimer's disease and vascular or cerebrovascular disease or impairment. Professor Howard's own view was that Mr Shaw clearly has impairment in his memory and attentional functions and significant impairments in some of the higher order frontal lobe functions, those that are often referred to as executive functioning. The Professor records also a significant possibility that the sedatives habitually taken by Mr Shaw contributed to his confusion.7. Although, inevitably, the Professor's examinations of Mr Shaw were after the most material time down to late October 2007, there is nothing in his report which suggests that the disadvantages from which Mr Shaw suffered were of only more recent cause or origin or of their being, for example, steeply progressive, in such a way that they would have been significantly less marked in October 2007. The medical records of others of which the Professor writes and with which he does not quarrel include records relating to times in 2007 before October. I have no reason to suppose that the deficits in short-term memory and attentional function of which the Professor writes were any materially less in late October 2007 than when the Professor examined him. Professor Howard reports that between April 2006 and October 2007 it would have been apparent to anyone who had an opportunity to observe Mr Shaw at close quarters that he was suffering from memory problems and had episodes when he would become disorientated.8. As for whether Mr Shaw had a suggestible disposition or a dependant personality, the word ``personality'', explained the Professor in oral evidence, had, in technical psychiatric terms, perhaps a more restricted or different ambit than in laymen's ordinary speech but that in his view Mr Shaw was not unusually vulnerable to undue influence by reason of an usually dependant personality or, indeed, was otherwise unusually so vulnerable. He was, though, unusually vulnerable to abuse (if their intentions were less than honest) by anyone whose abilities he respected and whom he believed he could trust to look after his best interests. Mr Shaw, said the Professor in oral evidence, was always (meaning always at least) a little bit disorientated and his memory defect was more particularly as to his recent memory and it made him vulnerable to ``something different'', meaning, as I understood it, to something outside his routine. He would be less likely to suffer from poor memory with respect to a particular action only a few days before if he had seen it to be of importance to him or if he had had his memory recently jogged in relation to it. In such circumstances he might remember it but if there were several transactions going on at or about the same time then each would have been likely to have been less memorable as a separate event and he could credibly not have regarded as important, and hence have been likely to remember, a movement from one bank account of his to another also of his.9. Miss Finnimore said in oral evidence that she did not accept the Professor's conclusions but no expert evidence was called...

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