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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> FCL (London) Ltd v Voice [2012] EWHC 3684 (QB) (21 December 2012) URL: http://www.bailii.org/ew/cases/EWHC/QB/2012/3684.html Cite as: [2012] EWHC 3684 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Judge of the High Court)
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FCL (LONDON) LIMITED |
Claimant |
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- and - |
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LISA VOICE |
Defendant |
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David Matthias Q.C. (instructed by Davenport Lyons) for the defendant
Hearing dates: 10, 11, 12, 13 and 14 December 2012
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Crown Copyright ©
His Honour Judge Richard Seymour Q.C. :
Introduction
"1. Based on a valid gift having been made by C K Rosen (deceased) to Lisa Voice in September 1985 and the assumptions previously outlined, it is estimated that the total tax, interest and penalty would be in the region of £5,000,000 - £6,000,000. This assumes that the Revenue will agree that the penalty should be restricted to 10% as provided for per the 'amnesty' which expires on June 22nd [which was in fact the date by which an application under the ODF had to be made, not the date by which the actual disclosure had to be made].
2. There will also be a liability on the Executors of C K Rosen (deceased).
i) CTT liability on the gift made in 1985. The tax, interest and 10% penalty net of IHT saving could be in the region of £6,000,000. However, the amnesty provisions specifically provide for only bringing into account liabilities for the past 20 years and it is possible the Revenue will not therefore seek this.
ii) The gift inter vivos made in September 1985 would increase the IHT payable on the later gifts made before death. This liability is estimated to be in the region of £120-£130,000 including a 10% penalty.
3. In the event that there was not a valid gift in 1985, the Executors of C K Rosen would be liable to additional IHT at May 1993. Against this the tax liabilities for L Voice in respect of 1987/8 to 1992/3 inclusive would drop out. We estimate the net additional tax and interest again including a 10% penalty, would be in the region of £2,000,000. However in this instance there would be no possibility of the CTT liability referred to in 2 (i) above crystallising."
"By an oral agreement made on or about 3 July 2007 ("the Agreement") the Defendant engaged the Claimant to provide tax advice services with regard to the Disclosure made by the Defendant to HM Revenue & [Customs] and to assist her and her other advisers in reducing, so far as possible, her total liability for taxes, penalties and interest payable by her consequent on the Disclosure."
"9. There were express terms of the Agreement that:
9.1 the Defendant would pay to the Claimant a fee amounting to 10% of the difference between the Defendant's liabilities for capital taxes on the gift, income taxes, penalties and interest as estimated by Wilson Wright and the amount of such capital taxes, income taxes, penalties and interest as finally assessed by HMRC.
9.2 the Defendant would make a payment of £30,000 on account of such fees to the Claimant.
9.3 The Defendant would make further interim payments as agreed between the Claimant and the Defendant from time to time.
10. The relevant estimate was that prepared by Wilson Wright on 12 June 2007, that being the only, alternatively the most recent estimate that they had prepared as at 3 July 2007.
11. Accordingly, the Claimant was entitled to be paid by the Defendant 10% of the difference between £6,000,000 and such liability to tax, penalties and interest as was finally agreed with HMRC in respect of her liability to tax on the gift by her father of the fund, the subject of the Disclosure, plus 10% of the difference between £6,000,000 and such liability to taxes, penalties and interest as was finally agreed with HMRC in respect of undisclosed investment income the subject of the Disclosure."
"8. Paragraphs 9 and 10 are denied. It was an express term of the Agreement that the Defendant would pay the Claimant fees equivalent to 10% of the savings achieved by Mr. Farrukh's intervention, such savings calculated as being the difference between (a) a considered calculation of the likely liability to HMRC for tax, penalties and interest and (b) the actual amount paid. It was further agreed that the Defendant would pay the Claimant the sum of £30,000 plus VAT on account of such fees but it is denied that it was agreed that the Defendant would pay any further sums on account to the Claimant. The Claimant rendered an invoice for such fee on 9 July 2007, which the Defendant duly paid.
9. The Defendant avers that the relevant considered calculation was contained in the letter dated 6 November 2007 written by Wilson Wright to Mr. Silverman estimating the Defendant's potential liability to HMRC for tax on undisclosed investment income, interest and penalties as being £3.8 million and that, on a correct legal analysis, the Defendant was never a[t] risk of being liable to HMRC for inheritance tax (other than as referred to at paragraph 14 below).
10. On proper construction of the Agreement, the Claimant was only entitled to a fee in the event that his intervention was the effective cause of a saving to the Defendant of tax. By letter dated 26 October 2007 the Claimant wrote to Mr. Silverman stating "I am relieved to note that you still agree to my 10% fee of the overall savings achieved due to my intervention on the current Swiss tax affairs."
"20. In or about July 2008 the [sic] Mr. Farrukh and the Defendant discussed the Claimant's fees relating to his work in respect of the Defendant's potential inheritance tax liability and agreed the following:
20.1 The Claimant would reduce its fees for the advice and assistance provided to the Defendant in relation to inheritance tax to £453,000 plus VAT.
20.2 The Claimant would defer £93,000 (plus VAT) of his fees.
21. On 31 July 2008 the Claimant submitted an invoice to the Defendant in the sum of £329,000 (£280,000 plus VAT), being the agreed reduced fee of £453,000 plus VAT less the sum of £93,000 plus VAT which the Claimant had agreed to defer, less £80,000 already received by the Claimant.
22. At or about the end of August 2008 Mr. Farrukh met with the Defendant in the presence of one Ricci Burns. At the meeting the Defendant acknowledged her liability for the Claimant's fees as set out in the invoice dated 31 July 2008 and agreed to pay to the Claimant £100,000 on account of those fees. Such payment was not, in fact, made.
23. The Claimant's [sic] liability for income and capital gains taxes was finally settled in the sum of £3,335,106.
24. In the premises, and but for the agreement pleaded below, the Claimant would have been entitled to be paid by the Defendant, in addition to the sum referred to in paragraph 21 above [presumably a reference to £329,000], the further sum of £334,489, being £266,489 (10% of £6,000,000 - £3,335,106), less the further £25,000 treated by agreement as received on account, plus the sum of £93,000 deferred from the invoice dated 31 July 2008, plus VAT of £66,897.80, a total of £401,386.80."
"25. On 8 July 2009 the Claimant wrote to the Defendant proposing a revised fee structure based on estimates of liability of £4.2 million for inheritance tax, penalties and interest and £5.7 million for income tax, penalties and interest. This was a reduction from the fees to which he was contractually entitled calculated by reference to Wilson Wright's estimate of 12 June 2007.
26. In early August 2009 Mr. Farrukh and the Defendant met at the Defendant's home. A meeting had been scheduled for 6.00 pm for the Claimant and Davenport Lyons to help the Defendant prepare for a forthcoming meeting with HMRC. Mr. Farrukh arrived early to discuss the Claimant's letter of 8 July 2009. The Defendant did not agree to make monthly payments on account of £16,000, as stated in the letter of 8 July 2009, but otherwise agreed in principle the revised fee structure set out in that letter. The Claimant offered to fix his fees at £690,000 plus VAT which, after deducting payments already made which the Claimant had agreed to credit against his fees, left a balance payable of £585,000. The Defendant accepted that offer and agreed that she would pay the Claimant £585,000 plus VAT in settlement of the balance of his fees, such sum to be paid following the final agreement by HMRC as to the liabilities of the Defendant arising out of the Disclosure, with interim payments to be made by agreement from time to time.
27. Following that meeting the Claimant wrote to the Defendant on 6 August 2011 [sic] intending to confirm the agreement that had been reached but by error omitted from that letter the agreement as to a fixed balance of fees of £585,000 plus VAT and to pay interim payments from time to time as agreed.
28. Accordingly, the Defendant is indebted to the Claimant in the sum of £585,000."
"29. Alternatively, in the event that the Defendant successfully disputes the existence, validity or enforceability of the agreement pleaded in paragraph 25 above, then the Claimant is entitled to recover the sum of £730,386.80, being the sum of the fees and VAT referred to in paragraphs 21 and 24 above."
Yet in the prayer to the Amended Particulars of Claim there was a further alternative claim, for the sum of £329,000, the amount of the invoice pleaded at paragraph 21.
The law
"82. However, such a view is inconsistent with the illuminating analysis in the opinion of my noble and learned friend, Lord Hoffmann, in Carmichael v. National Power plc [1999] I WLR 2042, 2048E 2015C. This shows that (a) the interpretation of a purely written contract is a matter of law, and depends on a relatively objective contextual assessment, which almost always excludes evidence of the parties' subjective understanding of what they were agreeing, but (b) the interpretation of an oral contract is a matter of fact (I suggest inference from primary fact), rather than one of law, on which the parties' subjective understanding of what they were agreeing is admissible."
"23. When the terms of a contract have to be ascertained from oral exchanges and conduct that is a question of fact: see Carmichael v. National Power plc [1999] 1 WLR 2042 at 2049C per Lord Hoffmann; Thorner v. Major [2009] 1 WLR 776 at [82] per Lord Neuberger of Abbotsbury. Moreover, in the case of a contract which is entirely oral or partly oral, evidence of things said or done after the contract was concluded are admissible to help decide what the parties actually agreed: Maggs v. March [2006] BLR 395 at 400 per Smith LJ; Crema v. Cenkos Services plc [2011] 1 WLR 2066 at [34] per Aikens LJ. Many cases have emphasised that an appellate court should not readily hold [that the finding of a judge as to the terms of an oral contract is erroneous (?)], particularly in a case where the finding is dependent upon oral evidence, unless the judge's finding is obviously wrong, is an unreasonable finding on the evidence or the finding produces a result unsustainable in law. All this means that we must be very slow to reverse the judge's evaluation of the facts."
The evidence
"21. Some time in June 2007 Mr. Burns contacted me on behalf of Mrs. Voice. He said that Mrs. Voice had problems that he felt I might be able to help with, and that her accountants were "shafting" her. He asked if we could meet and I agreed. He then arranged a meeting between himself, Mrs. Voice, Mr. Silverman and me which took place on 3rd July 2007 at a hotel close to Lowndes Square. In her Defence in this case Mrs. Voice alleges that the meeting was on 5th July. I am confident that it was the 3rd.
22. Mrs. Voice, Mr. Burns and Mr. Silverman did not bring any papers with them. Mrs. Voice explained the situation to me in as much detail as she was able. There was a gift from her late father at the time she was married to Stephen Voice in September 1985 of over £6 million, which he held in an account in Switzerland. This gift had not been declared to the Inland Revenue and she had been advised that disclosure of it triggered very heavy potential liabilities in respect of Income Tax and CTT/IHT.
23. Mrs. Voice did not differentiate between her personal liabilities and her liabilities as sole beneficiary of her father's Will, since she was solely responsible for payment in both instances. She said that estimates of up to £20 million had been given for the total tax liability. Mr. Burns said that the accountants were telling her that she was going to be liable for at least £12 million, between income tax and CTT/IHT, and that it could be as much as £20 million. Mr. Burns suggested that the accountants were simply estimating large numbers to maximise their fees and get free trips to Switzerland.
24. I responded that estimates of £12 million sounded reasonable based on the fact that a capital sum of that amount would have generated enough income to produce (cumulatively) at least £6 million in income tax, penalties and interest if income tax had not been declared and paid over a 22 year period since 1985. Similarly the estimate of £6 million for capital taxes seemed reasonable, taking into consideration the unpaid Capital Transfer Tax of 30%, together with penalties and interest. I agreed that £20 million was a worst case scenario. Mrs. Voice responded that she would not be able to afford a £20 million liability and it would simply bankrupt her. Mr. Silverman then explained that to pay £20 million if treated as a drawdown of income would cost Mrs. Voice a further £23 million, taking into account PAYE/NIC. Mrs. Voice said that at a meeting with Wilson Wright she had been advised to set about raising £12 million. She said that there was " no chance in hell " of her being able to do that.
25. It was clear that Mrs. Voice was very anxious indeed about the prospect she was facing. She asked me if I could do anything to help her.
26. I said that in my view £20 million was a figure mentioned by an accountant trying to frighten her, but a tax liability of £12 million was possible, taking into consideration Income Tax and Inheritance Tax. I said that I could investigate and advise her on the approach that the Inland Revenue would take. I could analyse the facts and the applicable tax law, so as to investigate any possible avenue by which savings on the estimated liability could be achieved. I explained that sometimes complex investigations by the Inland Revenue could go on for 3 or 4 years.
27. We discussed how I might be paid for anything I did. I suggested an hourly rate for the time I spent. Mr. Silverman and Mrs. Voice rejected that. Mr. Silverman said that if I thought savings could be achieved, why didn't I invest the time? Mrs. Voice concurred with that view. She said that she could not have two sets of accountants working on the same assignment both being paid an hourly rate. She did not want to take the risk of me spending a lot of time on the matter and rendering a large bill if at the end of it no saving could be achieved.
28. I acknowledged Mrs. Voice's concern. I suggested that my fee should be 20% of the difference between the estimates already given to her by Wilson Wright and the amount which HMRC finally settled for. Mr. Burns said that 20% was too much, and I should make the fee 10% of the savings. Mrs. Voice said she would agree 10% and I accepted that. Then either Mr. Silverman or Mr. Burns, I cannot remember which of them, said that we would be working from £12 million, the lower end of the estimates, as the basis upon which the fee would be calculated. I agreed to that.
29. I then said that mine was a small firm and we could not do without revenue for the whole of the time that the assignment or any subsequent tax investigation was likely to take. I suggested an initial interim payment of £40,000. Mrs. Voice readily agreed, but Mr. Silverman interrupted and suggested £30,000, which I agreed to. I said that in addition to the initial fee, if the disclosure or any subsequent investigation was to drag on I would be seeking further interim payments. Mrs. Voice said that she would review any request as and when it was made.
30. The agreement was, therefore, a £30,000 initial payment, further interim payments if and when agreed, and 10% of the savings achieved from the tax liability estimates of £12 million that Mrs. Voice had been given, payable, less any interim payments, once any settlement had been reached with HMRC. Mr. Silverman said that I would be given full access to the papers."
"28. Mr. Farrukh had kept contacting me even before this draft note [that is, the Draft Note] in connection with the disclosure and I found his words comforting as he was so positive that he was an expert and able to handle the whole matter for me. He continued offering suggestions and thoughts on the way in which HMRC should be approached, especially his view that the gift was a gift "with reservation". For example, he prepared a letter of instruction to Wilson Wright on 12 February 2007 setting out his thoughts and reasons why he considered the gift to be made with reservation I was extremely comforted by Mr. Farrukh's attention as he said he was an expert in the field and could settle the matter at a minimal cost.
29. I had asked Mr. Silverman to keep Mr. Farrukh advised of matters concerning the disclosure as he clearly wanted to become involved, and Mr. Burns suggested that we should formally meet up to see how Mr. Farrukh could help. Having known Mr. Farrukh (and Mr. Burns) for some time, I agreed.
30. This meeting took place at the Hotel Sheraton Belgravia on 5 July 2007 (I don't specifically recall the date, but Mr. Silverman has checked his diary and tells me that's his best information). Mr. Burns was there with Mr. Farrukh, and Mr. Silverman came with me.
31. As I have said, I found the whole HMRC matter distressing, and was in truth becoming quite scared given the lack of information we had been able to obtain. I had never been in this sort of situation before.
32. However, Mr. Farrukh reassured me a lot at the meeting. He said he had dealt successfully with these things before, and could definitely help reduce any liabilities to HMRC. I really took a lot of comfort from that and Mr. Burns confirmed that Mr. Farrukh was an expert and very good at what he did and had helped in similar matters. Mr. Farrukh already knew about Wilson Wright's "draft note" because I remember him commenting that there was lots left for them to do on it but he said he wasn't going to get involved in that for now. He said he would try and reduce whatever figures Wilson Wright came up with, and his fees for any "saving" he made from them would be ten per cent, since he would be making sure I paid the "minimum" to HMRC. He was so confident that he would save me a lot of money that he said that he would do this on a no win no fee basis. He also said that he would need a £30,000 payment on account. Overall, what he was proposing seemed acceptable, as he had been kept in the 'loop' and offering advice since last November, so I agreed.
33. Mr. Farrukh did not bring any engagement letter to the meeting, or send one afterwards, although he did issue an invoice for his £30,000 on account which I instructed Mr. Silverman to pay, and having discussed this with Mr. Silverman he tells me it was paid promptly later than month. I didn't particularly think about the lack of an engagement letter at the time, as I did not know it was necessary and only now do I realise how important this sort of documentation is. So far as I was concerned, I had just had a very clear and comforting meeting with Mr. Farrukh and had reached an agreement. Mr. Farrukh seemed comfortable with leaving it that way, too."
"26. Mrs. Voice and I met Mr. Farrukh at the Hotel Sheraton in Belgravia on 5 July 2007. Mr. Burns was also there. I know that there has been a question mark over the date of the meeting, but I am sure that it was 5 July 2007 as I have checked my old diary.
27. Although I don't specifically remember who called the meeting, I do remember that Mr. Burns chose the location as it is one of the nearest hotels to his business premises and he was busy at the time, so it would be easy for him to get to. We were due to meet at 12:30 p.m. [which Mr. Silverman corrected orally to 3:00 to 3:30 p.m.]. However Mrs. Voice and I got caught in terrible traffic between our offices and the hotel and we were a bit late.
28. Despite it being some time ago, I do recall the meeting. Mr. Burns and Mr. Farrukh were waiting when we arrived and we all sat round a small round table in the hotel bar. We ordered a bottle of wine first. It was a screw-top, and as people will with these things Mrs. Voice and Mr. Burns joked about what that might mean for the quality of the wine. This and other light hearted conversation relaxed the table and with the "niceties" over after a few minutes we started to discuss the disclosures to HMRC.
29. As I have said, at Mrs. Voice's instruction I had been keeping in touch with Mr. Farrukh on the matter, so he was generally up to speed regarding the stage we had reached. As I have also said, Mrs. Voice was very concerned about the whole process, but at this meeting she seemed to me to feel "amongst friends". Mr. Farrukh helped her a lot in this regard, being quite charismatic and persuasive in conversation. Mr. Burns bolstered this impression by saying that Mr. Farrukh was, " Fantastic ." and that he could " Sort everything out " for Mrs. Voice. Mr. Farrukh spoke at length to Mrs. Voice in very soothing terms, mentioning that he had " Dealt with many such cases " So the net effect was that I sat listening to a very persuasive man comforting a concerned client. At the time, and based on what he was saying, I believed Mr. Farrukh to be a real tax expert. For example, he said that he was obtaining counsel's opinion in connection with disclosure. The general impression he gave to the table was that he was the expert and knew what he was doing.
30. Mr. Farrukh was already aware of Mr. Carmel's "draft note" of 12 June 2007 via my office. He said that the figures from Mr. Carmel were, " Suggestive " but that once Wilson Wright were able to prepare more detailed calculations, he would carefully scrutinise them. I specifically recall that he said, " At this stage, Wilson Wright are some way away from completing their calculations, these are estimates at best " Indeed Mr. Farrukh was very dismissive of Wilson Wright and the work they had un[der]taken to that point. He was clear because I remember him saying it that, " He would not get involved " in calculating the figures until Wilson Wright had completed their work. This made complete sense to me because he knew they were already working on this. He didn't say anything like, " Wilson Wright have now done their estimate, so I will take over from here "
31. Mr. Farrukh was very persuasive and specific about his fee structure. He said that he was, " Only willing to take a fee where he was able to effect a saving " and repeated again and again that Mrs. Voice was, " His friend " and that his fee would be " Ten per cent of the savings I can achieve for you " As he was saying these things Mr. Burns interjected at various points to say to Mrs. Voice and the table things like, " Don't worry he will look after you " and " He is fantastic, didn't I tell you ?" Mrs. Voice agreed to his proposal of ten per cent of the fees he could save, and since he had been saying how Wilson Wright's draft note was only an estimate and he would only look at their calculations once these were complete, it was clear that this meant he would get ten per cent of the difference from those final Wilson Wright figures and whatever Mrs. Voice's final liabilities to HMRC were. Looking back, I have to say the mood of the meeting was rather spirited and uplifting. Mr. Farrukh had presented himself as somebody who could help Mrs. Voice. I saw his proposed ten per cent fee as fair Wilson Wright were to continue with their work on the figures and he would then use his expertise to reduce the figures further.
32. Mr. Farrukh went on to say that Mrs. Voice should pay him an advance fee of £30,000 on account for all the work that he would be doing, since he was confident he would make substantial savings for her (he was incredibly confident that he could do that) and Mrs. Voice agreed to this. Nothing at all was discussed about further payments "on account".
33. Overall, the meeting lasted about an hour from start to finish. Mrs. Voice and I took a taxi back to the office and Mr. Burns and Mr. Farrukh saw us off. On the way back, Mrs. Voice seemed incredibly comforted by what we had all discussed and something of a weight seemed lifted from her shoulders after what Mr. Farrukh had said.
34. Mr. Farrukh issued an invoice for his £30,000 on account (plus VAT) shortly after the meeting, on 9 July 2007 and this was paid on 20 July 2007 by cheque."
"It is my belief that you will not be liable to pay any Inheritance Tax and thus save £3 million. In terms of income tax, penalties and interest it is my belief that your liability should not exceed £2 million at the very worst and could be as little as £500,000. I have, very subtly, guided your lawyers and accountants to the relevant legal provisions applicable to you and hopefully they will achieve maximum benefits on your behalf. To summarise it is my belief that you would have saved a minimum amount of £4 million and a maximum of £5.5 million once this offshore disclosure matter is closed in November this year. As per our agreement I am entitled to 10% of the saving achieved as my fees and I propose to render my fee note once you have settled your liability with HMRC next month. May I please have your kind approval to this and may I please have these fees settled on presentation."
"Even then I reduced my fees regarding the Swiss affair from a standard 20% to 10% and the upfront element from £40,000 to £30,000 as I have a huge amount of respect for you and I wanted to demonstrate my abilities to you."
"In the first instance, I would refer to your letter addressed to Lisa of the 12th inst. the contents of which I note, however, they differ from what was agreed in terms of the timing of when your fees would be payable.
Although there are no minutes of the meeting held, I clearly recall the way in which you required your fees to be structured.
Lisa agreed to pay you 10% of the savings achieved. You will of course agree that there is no way of addressing at this stage or on November 22nd exactly what level of saving will be made.
The Inland Revenue will assess the submission and only once the Revenue have confirmed to Lisa that they are satisfied with their findings will we be able to crystallise the position or liability, if any. It would therefore be inappropriate for you to render your fee note until such time as the Revenue have confirmed their position.
To sum up Shehzad, you have on more than one occasion advised Lisa and I, that you only wish to take a fee where you are able to satisfactorily effect a saving on behalf of your client. You have gone on to say that although your fees are high, you have a 100% success rate, so for this and other reasons I do not wish to jeopardise either our relationship or your relationship with Lisa and I write this letter to you, without prejudice, in the hope that you will receive it in the vain [sic] that it is being written.
To pay a £50,000.00 fee for inheritance tax advice prior to even having discussed the possibilities with your client, Counsel or HMRC seems truly exorbitant.
Lisa has already paid you a £30,000.00 fee in advance of a successful submission to the Revenue. You have by your own experience knowledge of Lisa's willingness to pay fees as and when they are due . but only when they are due and not before.
If you choose not to act in this instance as a result of this communication, then you will have misread my good intentions, however in the meantime I am preparing answers to your email of the 15th inst."
"I refer to your letter of today which I find outrageously offensive. I would like to clarify the matter of my fees once and for all.
1. I always operate with the full knowledge and blessing of my client and always state my responsibilities and my fee structure including terms of payments. Once I have received such approval I move ahead according to the agreement reached. This is exactly what happened in this instance. Under any circumstances I find it disingenuous that a client wishes to vary the terms after the agreement has been reached and when the payment falls overdue. My agreement was reached with Lisa and I can only assume that this letter of yours is written with her authority. Consequently, as far as I am concerned, this agreement in relation to Inheritance Tax Planning and restructuring issues is now null and void. Please do not bother supplying me with any information or documentation in this regard. I agreed a very low fee with Lisa for this work as a gesture of goodwill and fully explained this aspect of the fee as she was seeking a further discount from me. Should you wish to engage me for this work again my fee will now be £400,000 plus VAT and I will require a 30% deposit up front. This matter is no longer negotiable.
2. I am relieved to note that you still agree to my 10% fee of the overall savings achieved due to my intervention on the current Swiss tax affairs. What you have failed to mention is that my fee note will be payable immediately upon presentation. I agree that my fee note will be rendered to Lisa once settlement has been reached with HM Revenue & Customs. Those were the agreed terms and I will not accept any alteration to those terms under any circumstances.
Please confirm by return that you fully understand the contents and implications of this letter and that you have Lisa's full authority in this regard. I will not be meeting Lisa today until I receive such written confirmation.
Whether or not I continue to act for Lisa I reserve my position with regard to my unbilled and unpaid fees. I would like to draw your attention to the terms relating to Constructive Dismissal. In a nutshell, I will not allow any client to evade their fees due to me after they have taken advantage of my knowledge and expertise. If you are in any doubt with regard to my position in this matter please seek immediate independent legal advice."
"On behalf of Mr. Cecil Kullman Rosen
On behalf of the Commissioners for HMRC I accept the payment submitted pursuant to your offer submitted under the disclosure reference number stated above."
"As you are no doubt aware, the Inheritance Tax matters have now been completed and a formal notification has been received from HMRC. In accordance with our agreement, the balance of my firm's fees is now payable and to that end I am pleased to enclose my firm's fee note for your kind attention. You will no doubt note that I have credited your account with payments received on account totalling £80,000 (£30,000 and £50,000).
Income tax and Capital Gains tax matters are still under review by HMRC. I propose to render my fee [sic] firm's fee note in that respect once that assignment, which was passed on to me by Wilson Wright, has also been concluded.
You mentioned that you have paid my firm a sum of £50,000 for your tax planning. For the avoidance of any doubt, your account has been credited above. Secondly, tax planning was done on your behalf and was not implemented as you were very nervous at that time. Even though the plans met with your approval these were finally abandoned and the window in this respect was formally closed on 5th April this year. Furthermore, Peter made it very clear that the £50,000 paid to my firm was to be treated as a payment on account in respect of IHT matters. It has been treated accordingly.
Finally, I am shocked and appalled to hear you say that I threatened you. I have always held you in very high regard and simply can not comprehend your unwarranted comments and I am deeply hurt by these. I merely requested the settlement of my firm's fee account in the politest of manners possible. Once again, as per our agreement, may I please have my firm's account settled.
Since I did this letter you have called me again. As discussed, you, me and Ricci will meet tomorrow."
"I capped the saving on Inheritance Tax at £4.53 million, as against the Wilson Wright estimate of £6m in June 2007. Of that capped fee of £453,000 (being 10% of the £4.53m) I deferred £93,000 until the Income Tax matters were also agreed with HMRC, deducted the £80,000 already paid, and billed Mrs. Voice the net figure of £280,000 plus VAT on account of Inheritance Tax matters. This was clearly explained in my letters to Mrs. Voice and I was confident that the eventual liability would be at least £3.6 million less than Wilson Wright had estimated including penalties and interest."
"Mrs. Voice responded by telephoning me again on the same day and asked that I attend a meeting at her house with Mr. Ricci Burns. The meeting took place on 1 August 2008. Mrs. Voice apologised for what she had said. She said the bill was fine, and she asked that I gave her time to pay. I agreed. She said she would contact me in the near future with her proposals, and that was the end of the conversation on the matter of fees."
"I write further to my letter dated 31st July and our subsequent meeting on Friday 1st August. At this meeting you accepted our bill of charges (Fee Note 201) regarding my assignment on Inheritance Tax (IHT) matters which have formally been concluded by HMRC. You promised to revert back to me last week in respect of your proposals towards settlement of our fee account. Taking into consideration the fact that I have already deferred £93,000 of billing regarding IHT matters to allow you more time I feel very disappointed that I have not heard from you.
In addition to this it is important to remember there will be a further bill in respect of Income Tax matters which I hope will be concluded satisfactorily this month. According to Leslie HMRC are ready to meet with us some time this month, this will require more time input and work from me if we are to resolve this favourably with HMRC.
I am afraid Peter is wrong in his assumption that the IHT matters and Income Tax matters are one and the same. I was commissioned initially on IHT matters as evidenced in the letter of 26 October 2007 and it was not until the 15 November that I was instructed with regards to the Income Tax assignment. These are two very separate assignments and should therefore be treated as such. The outcome of negotiations with HMRC regarding Income Tax matters has nothing to do with IHT matters which are now concluded and you accepted the fees are due in this respect. I have and will always continue to give you my full support but it is unfair to expect me to carry on working for you without having my account settled.
Under the circumstances I must ask for an immediate meeting to obtain a payment on account and to hear your proposals for the balance of the fee account which I expect to be settled in full as soon as possible. I would really like to get this matter cleared up so I can concentrate on the Income Tax negotiations with a clear head to ensure the most positive outcome. I severely detest arguments over fees which is why I always pre-agree fees before commencing work. I would like to re-iterate my full support to you as a client; by the same token I expect the full respect for my work and loyalty and the honouring of my fee notes."
"In fact Mrs. Voice did not call me but Mr. Burns did, and a further meeting on 19 August was arranged, attended by me, Mrs. Voice and Mr. Burns. I said that the inheritance tax submission has been completed satisfactorily, and I would welcome payment of my fees. I commented that I was confident that the Income Tax disclosure would similarly be accepted. Mrs. Voice was pleasant and hospitable. She said that she was sorry about her reactions. She asked if I could give her some time to arrange payment. She said that she would probably have to sell something, and I believe that she had in mind a house in Florida. She said she would pay £100,000 and make more payments of a similar amount at intervals of two to three months. Mrs. Voice also informed me she was going on holiday and would instruct Mr. Silverman to effect payment. It was clear that Mrs. Voice had fully accepted the Claimants [sic] invoice 0201, and that a further £93,000 was billable on the Inheritance Tax matter and was only being deferred until HMRC had agreed the Income Tax position. The meeting ended and we all parted on good terms."
"Further to my meeting with Lisa today she has agreed to make a payment in the sum of £100,000 on account of my firm's fee note. I understand from Lisa that she has instructed you to transfer the funds to my firm's account by the end of this month and requested me to provide you with our bank details which are as follows."
"I am very disappointed with your reply. As I understand from Lisa the money is on deposit.
I strongly suggest that you make arrangements for payment tomorrow.
It is not my concern if you have to withdraw money from the deposit or sell some shares in Emerald Energy.
I have been far too generous with my terms and I will not allow any abuse in this respect.
If I do not receive £100,000 in cleared funds by close of business tomorrow, I will instruct solicitors to issue a statutory demand for the whole amount on my firms [sic] outstanding account. Which will include the deferred items that I have not billed for as stated in my earlier letter.
It is extremely disingenuous of you not to make arrangements when you knew very well that these monies were due. My patience has been exhausted and I will be obliged if you save me the embarrassment of commencing legal proceedings.
Finally, please ensure that Lisa is fully aware of what is going on between you and me."
"I refer to our most recent e-mail communication, and more importantly, the letters that were sent out to HMRC by Davenport Lyons yesterday.
I appreciate that you yourself do not believe that the current situation has altered in any way and that an interim payment is still due to you. We started crossing swords over this issue back in October of last year, as you will recall your letter of 12 October 2007 stated, and I quote "I propose to render my fee note once you have settled your liability with HMRC next month". I responded to you on 26 October last stating, and I quote "it would be inappropriate to render your fee note until such time as the Revenue had confirmed their position". Your response of the same date confirmed my understanding.
At no time during this communication did we differentiate between IHT matters of Lisa's father's Estate and Lisa's own personal declarations.
I am of course aware that you and Ricci have met with Lisa, explained your understanding and agreed that she should part with a further £100,000 on account. It is your prerogative to request the money. However it is my view that your fees are payable (and I quote from your letter of 26th October last) "once settlement has been reached with HMRC". These were your terms which you were not prepared to alter. (indeed you have already received £80,000, so the agreement has already been altered.)
This whole matter has not been settled.
Finally, please note that this communication is my personal view based on evidence before me."
"I regret my position here but have to reiterate the contents of my email of the 4th inst, of which your reply of the same date makes no mention of [sic].
You need to re address the specific point of when payment is due to you.
This was set and I would repeat your email communication of 26th Oct 2007
"once settlement has been reached with HMRC"
SETTLEMENT HAS NOT BEEN REACHED.
It will be.
If Ricci contacts me today, I will forward to him the email communication to which I continue to refer to [sic].
That is all I will be able to offer him, as his involvement has been limited to a verbal dialogue only.
I am finding your communication quite threatening, almost bullying, please be more understanding of my position.
I am unable to arrange the transfer of funds to your designated account today.
Finally would you refer me to the communication relating to the point that there was a distinction between IHT & IT matter. It would help resolve a number of points for me."
"With all due respect my assignment was to assist Lisa in respect of IHT disclosure. My second assignment was to assist Lisa with Income Tax/CGT disclosure since your illustrious Barrie made a few mistakes in respect of drawings. My assignment was not to be the lead accountant in a full fledge [sic] HMRC investigation. This fee note sent to you was fully explained to you and is nothing to do with disclosure matter assignments. If it is not getting paid please do not expect me to do work on this. I already have spent 42 hours on this matter and I will not work for free. I will be billing Lisa on regular intervals based upon my time spent and once again these bills relate to HMRC investigation."
"My assignment with Lisa is two folds [sic]. One relates to Inheritance tax and the other relates to income tax.
Inheritance tax liability would have been £4.2 million and she settled for £100,000. My fee on conclusion of this matter would be £410,000 plus VAT. As far as I am concerned I have proved this matter and Leslie should be able to fight this all the way. HMRC have no alternative but to accept the facts as they stand.
Income tax liability has been assessed by HMRC to the tune of £9 million and estimated by Wilson Wright at £5.7 million plus when they threw in the towel and I took over. We have settled this at £3 million and I believe that this is very defendable. My fees are based on the lower figure of £5.7 million and thus amount to £270,000 plus VAT.
I will deduct all payments made on account in respect of these fees. What I want to achieve is a confirmation from Lisa about the outstanding fee notes subject to HMRC agreement of overall liabilities. I also require monthly payments on account of £16000 plus VAT as we discussed. This reflects about 50 hours that I am averaging on Lisa's affairs every month and works out at less than £350 per hour. On contingency basis I normally charge 250% of my normal rates which I am not doing here."
"I am writing to confirm that we are continuing to act for you in connection with the above matters. The purpose of this letter is to reconfirm our original agreement.
Prior to our involvement in this matter it was estimated by your prior accountants, Wilson Wright, that your potential liability to HMRC was £4.2m in relation to IHT liability and £5.7m in relation to IT liability, giving rise to total potential liability of £9.9m.
At the outset of this firm's engagement on this matter in July 2007 we agreed that this firm, in consideration for our involvement in this matter, would be entitled to a payment representing 10% of any saving from £9.9m, payable on acceptance by HMRC of any offer any conclusion [sic] of this matter (Final payment), plus VAT at the applicable rate and disbursements ."
"I hope that you and your family are well.
Why has the original agreement between us altered?
You have already received numerous payments from me.
I am confused by your letter.
We already have an agreement between us, that you shall receive your payment upon HMRC being finalised."
"Leslie requires me to attend the meeting with HMRC which has yet to be fixed. It is imperative that I attend all future meetings in relation to your tax affairs to ensure that I am up to speed on everything. My attendance at these meetings is in your best interest.
I draw your attention to my letter of 8 July to which I have not yet received a reply. I cannot see what issues you may have with it as it simply re-iterates previous agreements, given that time had moved on so much since then without any formal resolution. However, if you do have any issue with the contents of the letter then please bring it to my attention. I would be happy to meet with you at the earliest opportunity to discuss them."
"I hope that you and your family are well.
In reply to your letter I found it most presumptuous and intimidating. We had an agreement between us on my situation being finalised and completed by the Inland Revenue.
I hope this is now resolved and I look forward to seeing you and JJ [that is, Mr. Julian Burns] next week."
"176. The meeting did take place in the following week as scheduled. I attended about 30 minutes early and spoke to Mrs. Voice about payment of my fees. She said that a payment on account of £16,000 monthly was like another mortgage and she was not having it. She asked how I had come up with the figures and I explained my calculations, as I have set out above. The £4.2 million value was covered quite quickly. The £5.7 million took more time to explain. After going through it Mrs. Voice understood and accepted what I said. She then struck through the paragraph on the draft that we were looking at that related to the fee on account of £16,000 which she had referred to as another mortgage. I said that I would be giving credit against the baseline value of £4.2 million for the payment of £105,000 that she had paid to the Claimant so far.
177. I also said that the payment for Inheritance Tax of £100,638 had been at the request of Wilson Wright & Co. My firm view was that no IHT payment was necessary because the gift had been conditional in 1985. The original disclosure by Wilson Wright & Co. on 19 February 2007 had referred to the gift being unconditional, and they had thought that the IHT payment was necessary to ensure consistency with the original disclosure.
178. For those reasons I said that for the purposes of calculating my fee account the IHT payment of £100,638 should be disregarded.
179. I then addressed the question of the payment for Income Tax. I said that I proposed for the purposes of thinking about my fee to round down the payment made to HMRC to £3 million. I said that I wanted to keep life simple and I thought that was justified considering that I had given her a credit for £25,000 relating to the fee that she had agreed to be payable for work done relating to the HMRC enquiry (outside the scope of work on the HMRC disclosure). That had been the fee that had been agreed in November 2008, which had been subsequently invoiced and paid in two instalments.
180. I said that the purpose of all this was to try to reach agreement on where we stood and what should be paid. In June 2007 the estimate from Wilson Wright & Co. which had caused her to approach me in the first place referred to possible liabilities in the region of £12 million, and at the time I had been told that she had been advised to start raising £12 million. The proposal that I was making to her therefore offered her a substantial discount from a calculation of fees due to the Claimant based on 10% of savings achieved between the estimates given by Wilson Wright & Co. in June 2007 against tax actually paid.
181. I was trying to draw a line in the sand. I did not want to have any more discussions about discounts. What I was offering was a substantial discount against calculation based upon Wilson Wright & Co.'s estimate given to Mrs. Voice in June 2007. I therefore proposed that we agree on a fee to be paid to the Claimant in the sum of £585,000 plus VAT which I had explained, and Mrs. Voice understood as:
- Baseline £9.9 million
- deduct tax paid £3 million
- deduct payment already made to the Claimant £105,000
- result £5.85 million
- 10% £585,000
182. As we had been speaking Mrs. Voice had been annotating her copy of the draft engagement letter, and then she signed it. But it had so many annotations I said that I would prepare a clean copy, and bike it over the following day. Mrs. Voice kept the annotated copy. I have not seen this copy in the Defendants [sic] disclosure documents. With hindsight I very much regret not just accepting the signed copy with all its annotations.
183. Accordingly on 6 August 2009 an amended version of the engagement letter was sent out. I had requested my colleague, Melissa Wells, to send the amendment letter out but I failed to ask Melissa to change the reference from £4.2 million to £4.1 million to take account of the settlement payment of £100,000, and I omitted to ask Melissa to record the fee value that I had agreed with Mrs. Voice of £585,000. For the record, I am not in the habit of sending out amended letters just for the sake of it. The letter was sent after my meeting with Mrs. Voice and with the mutually agreed amendments which were effectively discounts on my originally agreed fees."
"It was a pleasure meeting with you the other day.
In reference to our discussions, please find enclosed two copies of the amended letter of engagement, one copy for you to sign and send back to me, the other copy for you to keep for your records.
Regarding the question of interim payments, as discussed, I am considering the level of payment on account required and intend to render a fee note in early September when you hope to be in funds.
I trust everything is now to your satisfaction regarding these matters and look forward to a swift and successful outcome."
"When I did not sign this letter [that dated 8 July 2009], on 6 August 2009 Mr. Farrukh had a second version of his engagement letter delivered to my house in virtually identical terms . That letter which was very similar to the previous one but since it contained a completely untrue version of our agreement I had no intention of signing and forwarded it to Mr. Silverman at my office in Lisson Grove."
"I refer to my letter of 6 August and am surprised that you have not yet returned a signed copy of the letter of engagement. I understood it to be all verbally agreed after our meeting and now require your written confirmation by return.
I have given the question of interim payments much thought and now enclose a fee note in the sum of £25,000 plus VAT. This is payable immediately in accordance with our agreement of November 2008 (copy enclosed). The amount will of course be deducted from the overall amount owed by you to my firm which currently stands at £585,000 plus VAT."
"Thank you for your letter of the 21st August.
I cannot see that I owe you any further monies and I consider that I have overpaid you so far."
"I write further to my letter of 21 August. It is patently obvious that you have no intention to sign our letter of engagement which has been verbally agreed several times. It is also patently obvious that you have no intentions of making any payments on account.
Your lawyers, Davenport Lyons, have contacted me in respect of your case however, without a signed contract and a payment on account of £50,000 plus VAT I will not conduct any further work on your behalf.
I also require your written confirmation that you have taken independent legal advice in respect of my letter of engagement.
Finally, I will notify your lawyers that I intend to exercise a lien on all my work and intellectual property."
"Thank you for your email, the contents of which have been noted. It's with regret that I have to inform you that, at present, I am not conducting any further work for Mrs. Voice. My position is very awkward due to compliance matters, as Mrs. Voice has not returned my signed letter of engagement. The letter of engagement effectively puts all matters in relation to my firm's fees beyond doubt.
Consequently, until this matter is resolved, please be advised that I will not be attending any meeting with HMRC and no one will be making any representations on behalf of my firm and me. Furthermore, I am exercising a lien on all work and intellectual property subject to rules and guidance by ICAEW and in accordance with law in England and Wales. Please take notice accordingly and ensure that HMRC are aware of this change. All rights of my firm and myself are fully reserved."
"Please find attached herewith a copy of my email to Leslie which is self explanatory.
My firm and I continue to hold you responsible for our unpaid fees as per our original agreement. Please take notice accordingly."
"I have looked at the correspondence over the past 3 years and find that you first became involved in the matter after Lisa, through her accountants, had made a disclosure to HMRC in connection with funds given to her by her father from a Swiss Bank account on the occasion of her marriage.
Lisa's accountants, Wilson Wright & Co., had investigated the information she had supplied to them and had prepared a guestimate of the amount of tax and penalty that should be paid, both by her and the executors of her late father's estate. At a meeting with Lisa, Ricci Burns and yourself you offered to look into the matter and make recommendations which you were certain would result in a settlement with a substantial saving of tax.
You advised that your fee would be 10% of the saving of the difference between that estimated by Wilson Wright & Co. and that effected by yourself. You advised that this was a 'No win no fee' deal as you were confident of success. I believe, one other condition was that you wanted the solicitors involved to be Davenport Lyons.
You then had a series of meetings with Lisa and after consideration and Counsel's opinion presented a history of events which, in your opinion, gave rise to the gift on Lisa's marriage to be 'a gift with reservation', which would reduce the overall liability. At the present moment although HMRC have written to say that the enquiry with regard to the executors of the late C K Rosen has been closed, they are now saying that the letter was written in error.
At the present moment despite your original offer of a 'no win no fee' charge you have been paid (including VAT) £146,250.
HMRC are now conducting an in depth investigation in this matter and have subjected Lisa to a Code 9 interview with a lot of follow up questions.
This matter is far from finished and your constant requests for payment of supposed fees is quite unprofessional and irritating. Any fees due to you will be paid when HMRC have completed their investigation and a settlement is reached. The fee will be computed on the basis mentioned above and paid on receipt of an agreed account and the amount already paid deducted.
Lisa and I think that this sets out the position herein and see no reason to have any further meetings concerning fees or otherwise unless any further information is required concerning the HMRC investigation."
"2. You also fail to mention the level of estimates of tax liability calculated by Wilson Wright. These ranged from some £6 million to £20 million. The average potential liability would be exactly £13 million which suggests that my intervention has saved Lisa, subject to HMRC agreement, some £10 million giving rise to fees chargeable of £1 million plus VAT. I would like to remind you of Barrie's remarks that if Lisa paid £20 million and did not get prosecuted, it will be a very good result. These remarks were made in your presence at Lisa's home. You have not quantified these amounts of estimates as by doing so; you confirm the level of my firms' [sic] fees.
7. It was agreed with Lisa that we should formalise our agreement. This resulted in the letter of engagement which she agreed to sign upon her return from holiday in Las Vegas last summer.
8. The fact that Lisa has refused to communicate with me of late, coupled with the convenient misrepresentations of the facts in your email cause me great alarm as they appear to be the actions of someone preparing to evade payment of their liabilities. If Lisa can go to the extent of acting in such a manner with my firm's outstanding fees of £585,000 plus VAT one has to consider the extent that she could have gone to in respect of her disclosure to HMRC where liabilities were estimated at £20 million. It is habitual of me to review my work and opinions arising there from. I originally allowed a benefit of doubt I had based on Lisa's credibility in my eyes. You, however, have done all you can to destroy her credibility. There are matters that require further, better particulars from Lisa in respect of her disclosure and I would like to sort that out before her credibility is completely destroyed in the eyes of HMRC too.
"
"Thank you for your various emails and I think that I should point out the fallaciousness of your statements in regard to the potential commission/fee account due to you.
Wilson Wright & Co. produced work which calculated the amount of the original gift to Lisa and then the amount of interest earned and capital gains over the period resulting in a proposed payment to HMRC of £3.9m (including the Exors of C Rosen deceased payment) following disclosure.
Lisa then discussed this with yourself and you obviously told her that you could negotiate a lower settlement with HMRC and would prefer to use Davenport Lyons instead of Blake Lapthorn Tarlo Lyons as you considered there to be a conflict of interest. Using the figures already provided by Blake Lapthorn Tarlo Lyons and Wilson Wright & Co. you reworked those figures and advised Lisa that the amount to submit was the sum of £3,260,000 (including the Exors of C Rosen deceased payment) and this was the sum submitted to HMRC.
Therefore as I see it, the saving, if HMRC agree the figures, is £640,000 and your 10% fee would amount to £64,000, of which you have been substantially overpaid.
You mentioned that Wilson Wright's calculations were in the region of £6 to £20 million they were not, as shown by their own proposed calculations mentioned above. There are no calculations issued by Wilson Wright & Co. in excess of £3,800,000 plus the payment for C Rosen decd. If you say calculations exist, Lisa and I and Barry Carmel would like to see a copy.
The original agreement herein was 10% of the saving you achieved between Wilson Wright's figures and your own. As evidenced by your statement in your email of 26 October 2007. There was also a "No Win No Fee" proviso. This proposal and agreement were in the presence of Lisa, Ricci Burns, You and I.
I really do not think that we have anything further to discuss until the final settlement of this matter."
Conclusions
"7. He was, in short, evasive and mendacious in his evidence and throughout his evidence.
8. [Mr. Farrukh] is a man who lies without compunction, who makes up as he goes along any version of events that he considers will best suit his purposes at the time. nothing he says or writes can be taken as true unless it [is] supported by independent corroboration. "
"However she has no knowledge of tax matters. It is a matter which is simply beyond her. She discharges her responsibility by employing the best and most trustworthy without any consideration for cost. In this capacity one can relate her to a person with no particular financial ability who finds it very difficult to understand the legislation or the work being done for her by her advisers. . The slightest pressure, irrespective of its nature, triggers some kind of mental block which is very debilitating and disabling. Every time I met her at her home where she could light up her cigarette and have her diet coke I made good progress in my interview. However when I met her in an office environment where she was not at ease I found it difficult to get coherent information from her."