NEUTRAL CITATION [2002] EWHC 2380 (QB)
IN THE SUPREME COURT OF JUDICATURE
QUEEN’S BENCH DIVISION
MR JUSTICE BUCKLEY
Wednesday, 13 November 2002
Between:
-and-
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Timothy Sisley (instructed by Goldkorn
Matthias) for the claimant.
Andrew Lenon (instructed by Raja & Partners) for the first defendant.
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1. In this action the Claimant, Mr. Cunningham, claims £200,000, alternatively damages and interest.
2. In the Re-Amended Particulars of Claim it is alleged that the Claimant “wished to send £200,000 to a bank in the Far East for his future use” and that the 1st Defendant, Mr. Aryal, “offered his services to remit overseas and to hold the money, in return for a commission of £450.” It is further alleged that orally and in writing Mr. Cunningham instructed Mr. Aryal to hold the money, which was in fact sent to Mr. Aryal’s bank account in Hong Kong, until further order, but contrary to those instructions Mr. Aryal sent the money to Nepal and there paid it out in instalments to the 2nd Defendant, Mr. Rupak, who has not accounted for it to Mr. Cunningham.
3. Mr. Aryal, who carries on a business arranging for money to be transferred from the United Kingdom to Nepal via Hong Kong and there paid out to Nepalese nationals in Rupees, denies the alleged instructions. His case is that he transferred the £200,000 to Nepal in the usual course of his business and paid it to Mr. Rupak who instructed him at all times and who had actual or ostensible authority to do so.
4. Behind those simple averments lies a somewhat unusual and sad story. Mr. Cunningham is now retired and in his sixties. As a single man he has more money than he requires for his own purposes. In 2000 he met Mr. Rupak, who is very much younger and was then working as a waiter in a local Nepalese restaurant. In early June Mr. Rupak moved in to live with Mr. Cunningham at his house in Acton. It is not agreed precisely what their relationship was, but it is agreed that Mr. Rupak did some housework, shopping and other general chores and errands. It is also agreed that Mr. Cunningham gave Mr. Rupak several thousands of pounds. Mr. Cunningham told me that while some of the money was by way of gift, some was for specific purposes, for example, £5,000 was sent to Nepal by the same means as the £200,000, for an operation that Mr. Rupak’s father apparently required and £20,000 was sent to buy some land. Mr. Cunningham also obtained a MasterCard for Mr. Rupak’s use; it had a credit limit of £9,500. The accounts appear to have been sent to Mr. Cunningham who paid them.
5. Since Mr. Rupak has not yet been served the trial proceeded against Mr. Aryal. That was probably sensible but inconvenient in that Mr. Rupak did not attend and Mr. Cunningham’s allegations against him remain outstanding. I permitted two witness statements from Mr. Rupak to be put in evidence on behalf of Mr. Aryal. Mr. Sisley, for Mr. Cunningham, objected only to the second. I indicated at the time that I would, in the circumstances, approach these statements with caution and be unlikely to accept the contents save where they fitted in with other acceptable evidence or were otherwise obviously credible. That I shall do. The effect of Mr. Rupak’s statements is that the £200,000 was to be remitted to Nepal through Mr. Aryal in order to buy a house in which Mr. Cunningham and he would live; that Mr. Cunningham changed his mind during a second visit to Nepal in May 2001, but the money was always intended to “set up” Mr. Rupak and was, in effect, a gift; Mr. Cunningham returned to England and Mr. Rupak proceeded to buy a house and motor vehicle with the money.
6. It is agreed that Mr. Cunningham permitted Mr. Rupak to make the arrangements with Mr. Aryal for the transfer of the money to Hong Kong and that Mr. Cunningham effected the transfer through his own bank (Lloyd’s) by what is called an International Money Mover Payment dated 4th May 2001. It is also agreed that Mr. Cunningham sold his house in Acton on 30th April 2001 and that on 5th May 2001 he and Mr. Rupak set off for Nepal. Mr. Cunningham denies, however, that he ever intended more than a visit and, as I have mentioned, maintains that the money was not a gift to Mr. Rupak but was to be held by Mr. Aryal in Hong Kong to his order.
7. To assess the credibility of these competing accounts, particularly the issue of Mr. Rupak’s actual authority, it is obviously relevant to consider the nature of the relationship between Mr. Cunningham and Mr. Rupak in addition to such direct evidence as was given. In his witness statement Mr. Cunningham accepts that he is homosexual but denies that he had any physical relationship with Mr. Rupak. He says that his long term partner died many years ago and that he is and was, at the material time, celibate. He denies the suggestion, in Mr. Rupak’s statements, that he made advances to him which Mr. Rupak rejected. Several letters Mr. Cunningham wrote to Mr. Rupak were put in evidence. Mr. Cunningham said that they were never given to Mr. Rupak; they were written late at night, thrown into the wastepaper basket and they did not necessarily reflect what he would have thought, less still said, the following morning. The letters were neither torn, folded not screwed up and if indeed they were placed in the wastepaper basket, I can only and do conclude that Mr. Cunningham was not particularly concerned should Mr. Rupak see and read them. Even if, contrary to Mr. Rupak’s statement, they were not given to him but were written as Mr. Cunningham suggests, they give some significant insight into Mr. Cunningham’s feelings. My conclusion in a nutshell is that he was at that time utterly infatuated with Mr. Rupak. That conclusion is based on all the circumstances but illustrated by the letters. A few brief citations will suffice:
My Dear Rupak,
I must tell you that I’m very lucky to have not only made your friendship but to have you as my very own son, who I know loves me beyond mere words In time I’m sure you will find it and experience of a gift from my heart. Please feel free to come and tell me any problems that worry you for to really appreciate our very special relationship, we must always be as one ...
I shall always need you to be around. So don’t ever get out of sight. Your Edward.
Dear Rupak,
I find it very difficult at times to express in words just how much you mean to me! Even writing appears inadequate, yet I hope you know in your heart, that it is there that I am present. Never should you be without that knowledge, as whatever may pass in our lives I shall always abide within you! It is not possible to pretend to love as it so often turns quickly to hate. An expectation is often asking a person to give you his complete trust, and that we all hold back from one another out of fear. I have never had such doubts with you, for I know that somehow I have your trust and feel from our first real meeting you have given me yours. And no person or persons will ever destroy our relationship ... Always your special father and protector Edward ...
My Dear Rupak,
Your letter to me is very special, to have you as my own son makes me proud! ...
When I talk to you about how much I love you, I do so to remind my inner self, that you are a very necessary part of my whole being, a spiritual yet human and essential part of my happiness and sometimes, like last night, my anxiety, anger and kindness. Part of me is weakness, fear, and that is all linked to my utter dependence upon you, it's my free will to love you. I can assure you the Edward you write about to me, is the true, and only the real perfect love that you will experience.
Of course, extracts from any document can be misleading, but I have read the letters as a whole and considered them carefully.
8. This was in October 2000. Mr. Cunningham disagreed with some of the details set out in Mr. Rupak’s witness statement, including who suggested the trip, but that it took place and that it was a successful week’s holiday, is agreed. On arrival, Mr. Cunningham was met by a large number of Mr. Rupak’s family. He was garlanded and treated with great kindness. He and Mr. Rupak toured the country together and spent two nights at a flat belonging to Mr. Rupak’s family. One strange incident is related by both of them but again with a different emphasis. Mr. Cunningham wrote out a cheque in Mr. Rupak’s favour for £100,000. Mr. Cunningham said that Mr. Rupak asked for it to show his family that he was doing well in England. Mr. Rupak’s witness statement says that it was Mr. Cunningham’s idea because he wanted to impress the family with how well he was looking after Mr. Rupak and that he was committed to do so. The cheque was in evidence. It had not been presented and was stopped by Mr. Cunningham some months later. I need not give further details of the respective accounts nor make any findings about it. The fact that the incident occurred lends some support to another conclusion that I have reached, namely, that Mr. Cunningham was given to somewhat extravagant and careless gestures concerning money. In fact, Mr. Rupak’s account is closer to the evidence given by Mrs. Elliott (called on behalf of Mr. Cunningham) that Mr. Cunningham gave her a cheque for £112,000 in October 2000; it was to be a gift provided he received an anticipated payment from British Aerospace; that payment was not forthcoming and the cheque was thus not presented. Cheque stubs were also disclosed which recorded cheques from Mr. Cunningham for £200,000 and £150,000 to Chris and Derek at this time. Mr. Cunningham brushed these aside as “something of a joke”. But that was not how Mrs. Elliott described them. She also said that Mr. Cunningham had taken her on two cruises and bought her a new car for £15,000. She described him as a lonely and generous man.
9. Mr. Rupak continued to live at Bowes Road, Acton with Mr. Cunningham until 30th April 2001 when the house was sold. It is agreed that Mr. Cunningham and Mr. Rupak then spent some four days at the Jarvis Hotel, Ealing, before flying out to Nepal for the second time on 5th May 2001. Mr. Cunningham’s evidence was that he wanted to return to Nepal to sort out the land purchase for £20,000 and “to find answers in relation to the money I had sent to Rupak’s father for medical treatment but that he had never acknowledged.” Mr. Rupak’s witness statements give a very different account. His version is that Mr. Cunningham had decided after their first visit, to retire to Nepal; that Mr. Cunningham had always said that from the proceeds of the sale of Bowes Road he would buy a house in Nepal in Mr. Rupak’s name to set him up for life and that they would live there together. His witness statements also deny that the £20,000 was for land purchase and the £5,000 for medical treatment; the £20,000 was a gift to his family as was the £5,000; his father was well able to pay for his own medical treatment.
10. At all events, the second Nepal visit was not a success. The political situation was unstable, Mr. Cunningham was accommodated in a hotel and according to his evidence, Mr. Rupak behaved in a domineering way. He said he was shown the piece of land and it looked like a playing field occupied by gypsies; he felt humiliated, uncomfortable and only wanted to return home, which he did on 12th May 2001. Mr. Rupak’s theory as to why he returned so quickly to England, is that he did not receive the same attention as on their first visit and was not staying with his family but, perhaps more importantly, that Mr. Cunningham learned that Mr. Rupak’s family was arranging a marriage for him. It seems that Mr. Rupak was married some time later. Mr. Aryal, subsequently produced a record of payments to Mr. Rupak in Nepal, which I accept as accurate. It shows that the first three instalments, out of ten, were paid on 10th, 11th and 12th May 2001. Mr. Rupak’s witness statements say that despite Mr. Cunningham’s decision to return home, it did not change their plan for him to buy a house; indeed Mr. Cunningham asked him to send photos and said that if he liked it he might return. Mr. Cunningham said he would never have dreamed of retiring to Nepal; the transfer to Aryal’s bank in Hong King “was intended to be the first part of my investment overseas for a rainy day.”
11. Mr. Rupak’s account is that he and Mr. Cunningham had already decided to live in Nepal; that he had told Mr. Cunningham about Mr. Aryal and had spoken to him on the telephone about the proposed transfer of money a few days earlier; Mr. Cunningham was with him when he spoke to Mr. Aryal and he asked him whether he wanted to speak to him, but Mr. Cunningham said “No”; they went to Lloyd’s Bank together and Mr. Cunningham made the transfer. He agreed that he spoke to Mr. Aryal on Mr. Cunningham’s mobile whilst they were at the Bank. He denies that Mr. Cunningham spoke to Mr. Aryal on that occasion and denies that a letter dated 4th May, a copy of which was put in evidence, was dictated and typed at Mrs. Elliott’s office. He says he was with Mr. Cunningham all day.
12. Mr. Cunningham’s account was to the effect that on selling the house he had decided to live abroad, but had not decided where. He said in evidence that Nepal had not figured in his mind but Thailand was a possibility. His witness statement says that he and Mr. Rupak “decided to go to Nepal very soon after the sale, so I booked us both temporarily into the Jarvis Hotel in Ealing.” It continues that he had not made any specific plans to transfer the money through Mr. Aryal, but was inclined to think it a good idea; in the event it happened at the last minute; Mr. Rupak suggested it on the 4th May and was insistent, saying he had spoken to Mr. Aryal who was expecting the transfer before they went to Nepal; they went to the Bank from where he spoke to Mr. Aryal on the telephone, received his Hong Kong bank details and effected the transfer. The witness statement continues “I said in due course I would give him (Mr. Aryal) my instructions as to my requirements and I would also confirm in writing that the transfer had been made ... My decision to use Mr. Aryal came about during these events. It just happened ...” The witness statement denies that he said that Mr. Rupak or anyone else had any authority in connection with his money (this was not alleged) and states that he expressly indicated he would give his instructions subsequently. Mr. Cunningham confirmed all this in evidence and that he had dictated the 4th May letter at Mrs. Elliott’s office.
13. Mrs. Elliott runs a Passport and Visa service and was obtaining replacements for Mr. Cunningham as his passport had apparently gone missing from the Jarvis Hotel. It is worth quoting the copy letter dated 4th May:
Dear Mr. Aryal,
I am writing to confirm that I have today transferred the sum of £200,000 sterling from my Lloyds TSB account to your account No. 004-491-233432-833 at the Hong Kong Bank, Hong Kong, as agreed with our mutual acquaintance Rupak KC.
Will you please await my written instructions prior to any further action on my behalf I agree that you may be entitled to the interest on that money in the mean time.
Yours sincerely
and it was signed by Mr. Edward Cunningham. Mrs. Elliott’s evidence was to the effect that she typed the letter, that it would have gone into the postal system and probably been posted by her daughter. Mr. Aryal, of course, can give no real evidence about the relationship between Mr. Cunningham and Mr. Rupak, nor the events described above save that he confirmed speaking to Mr. Rupak a few days before the 4th May. He said in evidence that he asked whether he needed to speak to Mr. Rupak’s friend concerning the £200,000 and heard someone in the background say “No, you deal with it”. He denied receiving the letter dated 4th May and that Mr. Cunningham gave him any oral instructions; he did not speak to Mr. Cunningham.
14. I am afraid that I found Mr. Cunningham an unsatisfactory witness. Even allowing for the fact that he may not have done himself justice in the witness box, I did not consider his evidence reliable. I shall mention later certain respects in which it did not correspond with other evidence, including witnesses called on his behalf and aspects of it that I found inherently improbable.
15. I have already stated the very cautious approach which I adopt to Mr. Rupak’s witness statements.
16. Mr. Aryal gave evidence about his business which his father and grandfather carried on before him. He said he is registered with Customs and Excise and the Inland Revenue. He explained how the business works and that he only transfers money to Nepal for Nepalese citizens and complies with money laundering regulations. I am not called upon to judge the latter but am not questioning it. I formed a very favourable view of Mr. Aryal. He gave careful evidence, was obviously proud of his good reputation which, incidentally, Mr. Cunningham said he had enquired into before the transfer in question. Mr. Aryal, was in my judgment, genuinely distressed by the whole sorry affair. He said he had suggested the method of transferring the money by bank transfer. He pointed out that such a transfer would be recorded by the banks in question and thus could be checked if necessary by any interested authorities. He did not consider it strange at the time but would be more careful in future. He had been told by Mr. Rupak that he and a friend were selling a house and planning to settle in Nepal; he had only dealt with Mr. Rupak concerning this transfer and the earlier ones which were ostensibly to Mr. Rupak’s parents in Nepal and comprised one of £20,000 and two of £5,000. He had some, albeit not clear, recollection that Mr. Rupak had said that the £20,000 was from a Mr. Cunningham; there had been no problem with those transfers. He had seen Mr. Cunningham’s name on the bank transfer form in respect of the £200,000.
17. It was put to Mr. Aryal in cross-examination, quite fairly, that he had not mentioned in his witness statement that during the earlier conversation with Mr. Rupak, he had asked whether he needed to speak to his friend nor mentioned the background reply, nor that there was a reference to “English friend” as the source of the earlier transfers nor that Mr. Rupak had at first suggested a banker’s draft as the means of giving him the £200.000. In his witness statement he did, however, say that he had asked Mr. Rupak to transfer the money directly to his Hong Kong account, rather than into his United Kingdom account and he did mention the fact of the earlier conversation with Mr. Rupak. Notwithstanding these points, I accept Mr. Aryal’s evidence. I am satisfied that he was not told by Mr. Cunningham to hold the money and to await further instructions nor did he receive the letter dated 4th May. To find otherwise would mean that Mr. Aryal had deliberately and almost immediately, acted contrary to express instructions, written and oral from Mr. Cunningham. Not only would that be extremely risky for a businessman in his position and likely to ruin his reputation upon which he largely depended, but would be conduct wholly inconsistent with the picture I formed of him and his business. It was not suggested at trial that he was in league with Mr. Rupak and thus dishonest. It was suggested that he decided to deny the instructions when Mr. Cunningham made his claim, which he denied and I accept his denial. I shall say more about the letter of 4th May in due course.
18. Mrs. Elliott has known Mr. Cunningham for 20 years. They are old friends and, as I have mentioned, he has been very generous to her. In her witness statement she said that Mr. Cunningham phoned her within a couple of days of arriving in Nepal on the second visit; he seemed unhappy, did not like the environment and had not seen much of Mr. Rupak; she pressed him to return. On his return on 12th May, Mr. Cunningham went to stay with her at her flat. She said he was very unhappy and then went to stay with his brother in Widnes. The last sentence of her witness statement is as follows:
He said Rupak was arranging for the return of the money to him that he had transferred to Hong Kong.
Mr. Cunningham, in cross-examination, said that last sentence was incorrect. It is manifestly inconsistent with Mr. Cunningham’s assertion that the transfer to Hong Kong was intended to be “the first part of my investment overseas for a rainy day.”
19. On Mr. Cunningham’s return two other friends of his, Mr. Tyndall and Mr. Bromley, became involved, ostensibly to find out where his £200,000 was and to procure its return. Before briefly referring to their evidence I will return to the letter dated 4th May. I have related Mr. Cunningham’s and Mrs. Elliott’s evidence that it was typed by Mrs. Elliott in her office and at Mr. Cunningham’s dictation on 4th May. Mrs. Elliott’s witness statement also said that it would probably have been posted by her daughter (Wendy) who worked in her office and dealt with the post generally. It was put to Mr. Cunningham and Mrs. Elliott bluntly that the letter was a fake and that it was typed after Mr. Cunningham’s return; probably at about the same time as another letter to Mr. Aryal dated 2nd July. This letter addressed to Mr. Aryal from Mr. Cunningham, referred to the money transfer with “... instructions that you await my personnel (sic) instruction pending any further action ...”. It calls for the return of the money which it alleges was handed over to a third party contrary to the express instructions. Only photocopies were produced in evidence and they appear to be copies faxed from Bridge Engineering, which is Mr. Cunningham’s brother-in-law’s business, to Mr. Tyndall, presumably to help in his enquiry. The general appearance and layout of these letters strongly suggests they were typed by the same person. Mrs. Elliott accepted that she did not type the 2nd July letter but suggested one (presumably hers) could have been scanned into a word processor and the necessary alterations made. No expert evidence was called. Also placed in evidence was a document apparently on The Visa And Passport Service headed notepaper and addressed “To whom it may concern”. It is typed out and signed by Mrs. Elliott. It is a reference for Mr. Rupak and “certifies” that:
Mr. Rupak KC a citizen of Nepal, has been working for this company since 1st May 1999 up to April 30th 2001
His salary has been £20,000 per annum plus bonuses earned.
...
20. Its contents were agreed to be untrue. Mrs. Elliott accepted in cross-examination that she knew the contents were untrue and that its purpose was for production to the Customs authorities in Nepal. Her explanation for producing it was that Mr. Rupak seemed a nice guy and she was just helping him in Nepal. She said, and my impression at the time was that she was not convincing, that Mr. Cunningham had not asked her to prepare it. I find that he probably did and at the very least knew about it and went along with it. The various relationships between the parties that I have described strongly indicate that to be so.
21. Clearly the onus is on Mr. Cunningham to satisfy me that the letter of 4th May was written and sent on 4th May. All I need say is that having considered the documents to which I have referred and the evidence about them, I was not so satisfied. I find that it was probably produced at the same time as the letter dated 2nd July and a copy of both letters faxed to Mr. Tyndall. Given that Mr. Tyndall and Mr. Bromley were enlisted specifically to help recover Mr. Cunningham’s money I consider it extraordinary that neither was given the letter dated 4th May at the outset, if it then existed. Mr. Tyndall received it on the 2nd July, Mr. Bromley not at all, as their evidence relates.
22. Mr. Tyndall’s and Mr. Bromley’s evidence also throws some further light on Mr. Cunningham’s beliefs and state of mind at the material time. They both relied on what he told them and tried to help in their own way.
23. Mr. Tyndall is another old friend of Mr. Cunningham’s. He first met Mr. Cunningham some 15 years ago in a betting shop. He has had an up-and-down career including owning a newspaper stand, managing a supermarket and running a small convenience store. He was made bankrupt but discharged from bankruptcy in 1978. Mr. Tyndall has been married and divorced. He has been with his present partner for some 22 years and has two sons from his marriage and a daughter from his present relationship. Apparently he has been a close friend of Mr. Cunningham’s and has helped him in many ways. For example, by driving clients of Mr. Cunningham’s and, as he described in evidence, obtaining all sorts of items which he was able to obtain on more favourable terms than Mr. Cunningham himself would have been able to achieve. None of this is intended to sound disparaging of Mr. Tyndall. Indeed, I formed the impression that he was endeavouring to assist the court. His first relevant involvement was when Mr. Cunningham telephoned him from Nepal during the second visit and said how upset he was. In his witness statement Mr. Tyndall says that he “sounded low and on the edge of a nervous breakdown.”
24. On Mr. Cunningham’s return it was Mr. Tyndall who picked him up from the airport. Mr. Tyndall’s information, of course, came from Mr. Cunningham. He had heard that Mr. Cunningham had sent a large sum of money to a bank in Hong Kong to somebody recommended by Mr. Rupak. He described an incident at Mrs. Elliott’s flat on either the 12th or 13th May when Mr. Cunningham opened a letter and discovered a credit card bill in respect of Mr. Rupak’s card. It included amounts due to Selfridges totalling some £5,500. As far as Mr. Tyndall was concerned that was “the very start of everything.” Mr. Tyndall’s witness statement is not entirely in accord with his evidence in court concerning this incident. I preferred his evidence in court which was to the effect that someone and it could even have been him, commented that they hoped Mr. Cunningham’s money was O.K. That was a reference to the large sum apparently transferred to Hong Kong. Mr. Tyndall also said that they discussed it and Mr. Cunningham was concerned what else might have happened to his money. It was decided that Mr. Rupak would be contacted and both Mr. Cunningham and Mr. Tyndall attempted to telephone him. Mr. Tyndall’s witness statement details a longish list of dates, taken from his telephone records, upon which lie attempted to phone Mr. Rupak, beginning on the 15th May and continuing to the 31st July. He spoke twice to Mr. Rupak and on other occasions to his brother or a little girl who answered the phone but spoke no English.
25. Mr. Tyndall also spoke to Mr. Aryal. By this time it had been discovered that the money had been paid out to Mr. Rupak. It appears that Mr. Aryal was initially reluctant to speak to Mr. Tyndall without authority from Mr. Cunningham or Mr. Rupak. However, when asked by Mr. Tyndall what authority he had to release the money he replied that he had authority. It was subsequently discovered at least in part with Mr. Aryal’s assistance and through his contacts in Nepal that the money had been spent on a house and a motor vehicle. Mr. Tyndall’s witness statement records that before going to Nepal for the second time Mr. Cunningham had told him that money had been sent to Mr. Aryal for him to hold until he gave him instructions. However, in cross-examination Mr. Tyndall said that he could not say when Mr. Cunningham told him that he’d given Mr. Aryal instructions not to release the money. When shown the two letters dated 4th May and 2nd July he agreed that they appeared to have been faxed to him on the 2nd July and said he had not seen them before that date but he couldn’t really now remember. They were sent to him because he had known and helped Mr. Cunningham for a long time.
26. One of Mr. Tyndall’s later telephone conversations with Mr. Aryal was recorded by Mr. Aryal. Mr. Aryal said that this telephone conversation was on the 22nd or 23rd June. It is clear from this conversation that Mr. Aryal, through his contacts in Nepal, had discovered that the money had been spent on a house and vehicle and that contact had been made with Mr. Rupak’s family. It appears that Mr. Aryal believed that there should be no problem in getting the money back, albeit the house would have to be sold. All this, of course, was on the basis of Mr. Cunningham’s assertions that it was his money. Mr. Tyndall confirmed in evidence that at the time he felt he could trust Mr. Aryal, as is recorded in the conversation. Some brief exchanges later in the conversation are relevant: A. = Mr. Aryal. I. = Mr. Tyndall (Irwin).
A.: Yes well I think these things, I don’t know how, how Mr. Cunningham trusted Mr. Rupak KC and did these things anyway.
I.:I, I really don’t know, all I know is that he was going out to buy a house.
A.: Going out to buy a house in Nepal he wanted to live there maybe.
L: Yes he did want to live there but he’s been there before.
...
I.: And they showed him er one house and he didn’t like it then there was another for sale and he did not like that and regarding building they were going to have one built.
A.: Yes.
L Then, then he decided that it wasn’t going to be his life to be there.
A.: Yes.
L So he came back and that was just 4 days.
A.: Yes, at least they should buy it with his agreement not just buying it themselves anyway.
L: Yes they didn’t, he didn’t know I told you he did not know, anyway look you have a good weekend.
27. In his witness statement Mr. Tyndall expressly did not disagree with paragraph 16 and 17 of Mr. Aryal’s witness statement concerning their telephone conversations. In those paragraphs Mr. Aryal states that he told Mr. Tyndall in one of their early telephone conversations that he had paid the money to Mr. Rupak in Nepal to which Mr. Tyndall replied that Mr. Rupak was a criminal and that Rupak was supposed to be sending the money back. Mr. Aryal confirms that they had numerous telephone conversations during which he asked Mr. Tyndall if he had heard anything further from Mr. Rupak. He quotes Mr. Tyndall as making comments such as “Mr. Cunningham trusted Rupak like a son and lie betrayed that trust.”
28. Mr. Cunningham appeared to have enlisted Mr. Bromley’s assistance around the beginning of June. According to Mr. Bromley’s witness statement he received a telephone call from Mr. Cunningham who was “in a state” and said that “Rupak and a man called Aryal had stolen his money.” There followed according to Mr. Bromley, a meeting at Mrs. Elliott’s at which Mr. Cunningham said that “Rupak had told him that the only way that he could act money to Nepal was to use the services of a man called Aryal who would transfer it for him.” Mr. Cunningham apparently showed him a copy of a money transfer request showing that he had transferred the money to a bank account in Hong, Kong in Mr. Aryal’s name. The witness statement continues that Mr. Cunningham told Mr. Bromley that the arrangement was that he would set up a bank account in Nepal and then contact Mr. Aryal to transfer the money from Hong Kong to Nepal. After returning home Mr. Cunningham had attempted to get his money back but had been informed by Mr. Aryal that the money had gone to Mr. Rupak in Nepal. Mr. Bromley then proceeded to contact Mr. Aryal in an attempt to find out for himself what had happened. In due course Mr. Bromley was told by Mr. Aryal and his accountant that the money had been collected by Mr. Rupak in Nepal and documentary evidence of this was produced. Initially Mr. Bromley’s discussions with Mr. Aryal and his accountant were cordial but later, according to Mr. Bromley’s witness statement and presumably on instructions from Mr. Cunningham, he explained in a telephone conversation with Mr. Aryal that Mr. Cunningham had deposited the money with him and told him to hold it until given further instructions. Mr. Bromley told Mr. Aryal that he had heard nothing to indicate that Mr. Aryal had any authority to part with the money, whereupon Mr. Aryal became rather excited and said “He was only trying to help people.” Mr. Bromley told Mr. Aryal that if he did not return the money within a week he would advise Mr. Cunningham to inform the authorities.
29. Mr. Bromley is another who has from time to time been paid by Mr. Cunningham to help him. In cross-examination Mr. Bromley agreed that he had not heard about the letter dated 4th May at the material time. He said that he had some difficulty understanding from Mr. Cunningham what had gone on but he agreed to help and contacted Mr. Aryal to try and sort it out; Mr. Cunningham displayed a sense of betrayal.
30. Finally, paragraph 10 of Mr. Bromley’s witness statement which refers to a time before the second visit to Nepal says this:
From the various conversations about that time I had with Edward Cunningham, I gained the impression that he was then thinking of building a house in Nepal on land which he had bought. I also gained the impression that he would share the house there with Rupak. I’ve never had any discussions with Rupak about going and living permanently in Nepal, either with or without Mr. Cunningham.
Mr. Cunningham was asked about this in cross-examination. His answer was that the paragraph was fair comment but not after the second visit.
31. I am grateful to both Mr. Sisley and Mr. Lenon, who appeared for Mr. Aryal, for their assistance and in particular their detailed and helpful written submissions.
32. The real claim here, as Mr. Lenon pointed out by reference to the pleadings and the evidence, is that Mr. Aryal agreed to accept the £200,000 and hold it in Hong Kong until he received further instructions from Mr. Cunningham. That case depends very largely on the assertion that Mr. Cunningham gave oral instructions to Mr. Aryal to that effect and confirmed them in the letter dated 4th May. Since I have found that there were no oral instructions to hold the money in Hong Kong and that the letter of 4th May was not sent, the claim faces obvious difficulties. This is not a case in which one party deposits money with another, perhaps a bank, only for that other party to pay it away without instructions. Mr. Aryal plainly had instructions from Mr. Rupak to pay it to his order in Nepal. That immediately introduces the question of Mr. Rupak’s authority. Mr. Cunningham’s intention and state of mind generally and his relationship with Mr. Rupak are all matters highly relevant to the question whether he gave Mr. Rupak authority to instruct Mr. Aryal as he did. Mr. Cunningham’s evidence that the transfer to Hong Kong was the first step in an overseas investment for a rainy day is contradicted by Mr. Bromley’s witness statement and is inconsistent with some parts of Mr. Tyndall’s evidence to which I have referred. I also regard it as in-improbable. If that was Mr. Cunningham’s intention, why use Mr. Aryal and/or Mr. Rupak at all? I have no hesitation in finding that Mr. Cunningham’s intention was to transfer the money to Nepal. I also find that is what he agreed Mr. Rupak would arrange with Mr. Aryal and Mr. Aryal carried out those instructions. Mr. Tyndall’s remarks to Mr. Aryal that I have quoted, indicating that Mr. Cunningham trusted Mr. Rupak but had been betrayed and that he was a criminal, also clearly indicate where Mr. Cunningham placed the blame initially. He did not immediately look to Mr. Aryal. The passages quoted from Mr. Tyndall’s telephone conversation with Aryal also indicate Mr. Tyndall’s understanding that Mr. Cunningham, at the very least, entertained the idea of living in Nepal with Mr. Rupak up to the time of the second visit. Those notions could only have come from Mr. Cunningham and fit in with the intention of transferring the money to Nepal. On the evidence as a whole I am entirely satisfied that Mr. Cunningham’s arrangement with Mr. Rupak was as I have found. I am also satisfied that Mr. Cunningham was content for the money to be received in Nepal by Mr. Rupak or his family. That is what had happened on the previous occasions, including the transfer of £20,000 which Mr. Cunningham insisted was to buy some land. He left that transaction entirely in the hands of Mr. Rupak and/or his family. Those findings are sufficient to defeat the claim because, if Mr. Cunningham, as I find, authorised Mr. Rupak to arrange the transfer to himself in Nepal, Mr. Aryal acted in accordance with those instructions. It is to be noted that does not involve any findings as to what precisely Mr. Rupak was to do with the money in Nepal, whether it was a gift to him, to be used for the joint benefit or simply to be held for Mr. Cunningham. If as Mr. Cunningham now maintains Mr. Rupak has, in effect, stolen the money by refusing to account for it now that their relationship has broken down, that is a matter between Mr. Cunningham and Mr. Rupak. It cannot be laid at Mr. Aryal’s door.
33. Even if I were wrong, on this, I would be prepared to hold that in allowing Mr. Rupak to deal with Mr. Aryal and in sending the money to Mr. Aryal, pursuant to whatever arrangements Mr. Rupak was trusted to make, Mr. Cunningham held out Mr. Rupak as having his authority. In this context it is also relevant to bear in mind that Mr. Aryal’s only business was transferring money to Nepal. He was not an investment banker. Mr. Bromley’s witness statement virtually confirms that Mr. Cunningham knew this and it is an aspect of the matter upon which I am satisfied Mr. Rupak is correct. Mr. Cunningham himself said that he made enquiries about Mr. Aryal and in all, I am satisfied that he knew that Mr. Aryal was someone who specialised in transferring money to Nepal. He specifically declined to speak to Mr. Aryal himself and, in effect, put the money at Mr. Rupak’s disposal, at least so far as it would have appeared to Mr. Aryal. Mr. Rupak was left to make all the arrangements and Mr. Cunningham did not communicate any limit to his apparent authority to deal with the matter. The fact that having left Mr. Rupak to deal with Mr. Aryal, Mr. Cunningham then transferred the money, would seem to Mr. Aryal to confirm Mr. Rupak’s authority. On the special facts of this case, I find that Mr. Rupak had ostensible authority to give the directions he gave to Mr. Aryal. Those directions were in accordance with Mr. Aryal’s normal business transactions as Mr. Cunningham knew.
34. For all these reasons, the claim against Mr. Aryal fails. The outcome of any claim Mr. Cunningham may pursue against Mr. Rupak will have to await another day.