Colliers CRE plc v Pandya and others

    His Honour Judge Richard Seymour Q.C. : Introduction 1.                  The claimant, Colliers CRE Plc (“Colliers”) carries on business as estate agents, surveyors and property managers. The part of its business which is relevant to the issues in this action is that of property management. For the purposes of that activity Colliers is accustomed to engage the services of a variety of suppliers of goods and services in order to seek to ensure that properties the management of which is entrusted to it are properly maintained and repaired. 2.                  The management of a particular property entrusted to Colliers is assigned within the company to a property manager. In the case of the larger properties a person called a facilities manager may also be involved as an assistant to the property manager. The facilities manager or the property manager will, from time to time, order appropriate goods or services for a particular property. Once the relevant goods or services have been provided, the system within Colliers at the material time envisaged that the provider of the goods or services would render an invoice. That invoice would be received, in the first instance, by Colliers Purchase Ledger team (“the Team”). At that stage the details of the invoice would be entered onto the computer system used by Colliers, called TRAMPS (“the System”). For that to happen, there had first to have been entered on the System details of the supplier. As long as supplier details were on the System, once details of an invoice received had been logged on the System the original invoice was despatched to the relevant facilities manager or property manager for authorisation, as a preliminary to the invoice being paid. To facilitate the giving of an indication of approval, a form of stamp (“the Stamp”) was used within Colliers. The Stamp included blanks for completion by signatures of a facilities manager and/or a property manager to indicate approval to payment. Once such approval had been indicated, the original invoice was returned to the Team for details of the approval to be entered on the System so that the invoice could be paid. After that had been done, the invoice was paid in the next payment run. 3.                  Some of the properties managed by Colliers in the period 2005 to 2007, inclusive, were large, and the costs of maintenance and repair could be high. In a number of cases the service charges incurred in connection with the management of a property were in excess of £1,000,000. On average, at that period, something like 1000 invoices per week were processed by the Team. 4.                  In the period 2005 to 2007 the members of the Team operating the System on a regular basis were three, the Purchase Ledger Supervisor and two clerks. From 13 July 2005 until she resigned on 19 April 2007 the Purchase Ledger Supervisor was the first defendant in this action, Miss Shelley Pandya. The two clerks were Miss Beverley Geddes and Mr. Ben Kamara. 5.                  In this action it was the case for Colliers that between about November 2005 and the termination of her employment Miss Pandya caused false invoices to be entered on the System and payment of those false invoices to be made, in one case, to Mr. Winston Harvey, the fifth defendant, in eight cases to Mr. Peter Modeste, the fourth defendant, and, in thirteen cases, to the second defendant, Secure Property Services UK Ltd. (“Secure”). In three other cases the evidence did not indicate clearly who was the payee. The third defendant, Mr. Eric Jonas, was, at the material time, the boyfriend of Miss Pandya and lived with her. The case for Colliers was that all of the first, second, third, fourth and fifth defendants conspired to defraud it and that each was liable for the total of the sums which it had lost as a result of the activities to which I have referred. In addition, or as an alternative, it was contended on behalf of Colliers that Miss Pandya was liable to it for the totality of its losses as a result of her breach of the term that she serve Colliers in good faith and with fidelity implied into her contract of employment, and/or as money had and received, that Mr. Jonas was also liable for the totality of its losses as a result of inducing, so it was contended, the breaches of contract on the part of Miss Pandya, and each of Secure, Mr. Harvey and Mr. Modeste was liable for the total face value of the cheques drawn in its or his name as money had and received. The total of the losses which it was contended Colliers had sustained amounted to £158,925.87. 6.                  Secure, Mr. Jonas and Mr. Harvey took no positive role in this action and did not appear and were not represented at the trial. 7.                  The sixth, seventh and eighth defendants were all banks. They were joined in this action simply to obtain disclosure of relevant records respectively in their possession. After disclosure had been ordered and had taken place, none of them took any role in the action. 8.                  Both Miss Pandya and Mr. Modeste disputed the claims respectively against them. Each, moreover, sought to blame Mr. Jonas for the predicament in which she or he found herself or himself. 9.                  Before coming to the detail of the defences of Miss Pandya and Mr. Modeste, and the allegations which each made against Mr. Jonas, it is convenient to consider the documentary evidence, including that incorporated in the System, as to what monies claimed in this action had actually been disbursed by Colliers, to whom, when, and what had happened to such monies, so far as could be ascertained. The documents relied upon in support of the claims 10.              Prior to the making of payment of the invoices which it was contended in this action on behalf of Colliers were fictitious, two supplier accounts which it was asserted were bogus were entered on the System. Those accounts were respectively in the names of N.J. Hills Roofing (“Hills”) and Reliable Telecommunications Consultants (“Reliable”). It is convenient in this judgment to refer to the account in the name of Hills as “the Hills Account” and to the account in the name of Reliable as “the Reliable Account”. Neither Hills nor Reliable purported to be a limited liability company. It was not contended by anyone at the trial that either of these names was that of a genuine business. However, Miss Pandya did not accept in cross-examination that she did not know during her employment by Colliers that they were not genuine businesses. 11.              Screen prints from the System in relation to each of the Hills Account and the Reliable Account were put in evidence. 12.              For the purposes of the System, the user identity of Miss Pandya during her employment was “SXP”. It is convenient in this judgment to refer to that user identity as “the ID”. 13.              The screen prints put in evidence concerning each of the Hills Account and the Reliable Account indicated, by the record of the ID beside each of the opening entries, that Miss Pandya herself had opened each of the Hills Account and the Reliable Account. She accepted in cross-examination that she had done so. With one exception, that of the last entry made in relation to the Reliable Account, on 28 February 2007, the user identity of the maker of which was noted as Miss Geddes, all of the entries made in relation to each of the Hills Account and the Reliable Account were made by Miss Pandya. Again, I think that she accepted that. 14.              What appeared in relation to the Hills Account, the earlier in time to have been opened, was that it was opened at 16:59:01 on 3 November 2005. The name of the person to be paid sums due to Hills was changed on 8 May 2006 at 15:41:41 to that of Mr. Modeste. At 09:28:26 on 30 August 2006 the name of the payee was changed to Secure. It was changed back to Mr. Modeste on the same day at 11:06:40. The reason for these changes is obscure. The name of the payee was changed again to Secure on 3 October 2006 at 11:02:59. On 17 October 2006 at 11:00:52 the address of Hills was changed from number 74 of the relevant road to number 64. 15.              The Reliable Account was opened at 09:50:57 on 16 January 2006. The name of the payee of any sums due to Reliable was changed at 08:57:21 on 30 January 2006 from that of Mr. Harvey to that of Mr. Modeste. The telephone number of Reliable was changed on 9 May 2006 at 16:37:07 from 0208 861 0485, a number which was plausible on its face as a London number, to 00208 61 0485, a number which, if valid at all, was a number overseas from the United Kingdom. At 09:02:49 on 18 September 2006 the payee of sums due to Reliable was changed from Mr. Modeste to Secure. On 17 October 2006 at 10:59:53 the address of Reliable was changed from number 23 of the relevant road to number 46. 16.              With the benefit of hindsight, and with the opportunity of comparing the entries on the Hills Account with those on the Reliable Account it seems striking that the conduct of the accounts appears to move in concert. First, neither account seemed to exist for much of the relevant period in a form in which the payee of any sums due was that in which the name of the account was recorded. For most of the period the payee on each account was someone else. Second, that someone else was Mr. Modeste for the Hills Account for the period 8 May 2006 to 3 October 2006, bar the mysterious hour and a half on 30 August 2006, and Mr. Modeste for the Reliable Account for the period 30 January 2006 to 18 September 2006. The named payee was Secure for the Hills Account for the period 3 October 2006 onwards, and for the Reliable Account for the period 18 September 2006 onwards. That each of Mr. Modeste and Secure should be the named payee for two different accounts for similar periods, namely Mr. Modeste until the autumn of 2006 and Secure thereafter, is remarkable. However, even more noticeable was the change of the number of the address of each of Hills and Reliable within just over one minute on 17 October 2006. Miss Pandya was asked about that in cross-examination. She accepted that she had made the relevant changes, but she said, initially, that it would have been during the course of going through a batch of changes of address. I shall return to how this issue developed. Miss Pandya was also asked about the change in the telephone number of Reliable on 9 May 2006. At first she thought that the numbers shown in the screen print were in fact the same. Once she appreciated that they were not, she said that she must have mistyped the intended correct number. It seems unusual that the intended correct number appears to have had essentially the same digits in the same order as the original number, with simply, as typed, the addition of a 0 at the front and the loss of one of the 8s originally the fourth or fifth digit. 17.              The payments made ostensibly to Hills were, so far as traceable, made by cheques made out to Mr. Modeste or Secure. In four instances the researches undertaken on behalf of Colliers did not indicate the name of the payee. In four instances it was demonstrated that the payee of the cheque was Mr. Modeste. In seven cases it was demonstrated that the payee of the cheque was Secure. The cheques made payable to Mr. Modeste were, respectively, dated 10 May 2006 in the sum of £5,154.23, dated 31 May 2005 in the sum of £3,762.00, dated 2 August 2006 in the sum of £2,472.71 and dated 30 August 2006 in the sum of £2,461.29. The seven cheques made payable to Secure were, respectively, dated 11 October 2006 in the sum of £4,182.90, dated 29 November 2006 in the sum of £4,000.00, dated 13 December 2006 in the sum of £4,550.87, dated 4 January 2007 in the sum of £5,087.75, dated 14 March 2007 in the sum of £12,085.56, dated 4 April 2007 in the sum of £6,337.22 and dated 16 May 2007 in the sum of £9,650.00. One of the cheques the payee of which was not known to Colliers before the commencement of this action was dated 19 July 2006 and in the sum of £5,135.00. The latter cheque I shall call in this judgment “the Unnamed Cheque”. 18.              The first recipient of a cheque ostensibly to Reliable was in fact Mr. Harvey. The cheque in his favour was in the sum of £6,000 and was dated 16 January 2006. This was the only cheque traceable to Mr. Harvey. Mr. Modeste was named as the payee of three cheques ostensibly to Reliable, namely that dated 30 January 2006 in the sum of £7,250.00, that dated 13 February 2006 again in the sum of £7,250.00, and that dated 20 March 2006 in the sum of £5,320.00. Secure was named as payee in respect of six cheques ostensibly for Reliable, those dated 18 September 2006 in the sum of £2,169.19, dated 6 November 2006 in the sum of £4,214.96, dated 22 January 2007 in the sum of £9,613.79, dated 5 March 2007 in the sum of £4,010.78, dated 4 April 2007 in the sum of £18,343.66 and dated 16 April 2007 in the sum of £18,343.66. 19.              Screen prints from the System indicated that the vast majority of the cheques to which I have referred were made as a result of Miss Pandya, using the ID, entering onto the System that the relevant payment was to be made. In two instances payments were made through the use of the user identity of a temporary employee, in three instances payments were made through the use of the user identity of Miss Geddes, and in two instances payments were made through the use of the user identity of Mr. Kamara. Miss Pandya ultimately accepted in cross-examination that she was aware of the user identities and System passwords of the staff whom she supervised. 20.              Miss Geddes was called to give evidence at the trial. In an affidavit sworn on 16 August 2007, in response to an affidavit sworn by Miss Pandya on 7 August 2007, Miss Geddes said, at paragraph 5:- “I recall a particular occasion a few months before the Defendant left the Claimant. I had entered a batch of invoices on my computer system and left the room momentarily. When I returned I was surprised to see that the batch of invoices that I had entered appeared to have been closed. I approached the Defendant and asked her what had happened. She said that she had gone on to my computer and closed down the batch. I could see no reason why she should need to do that other than possibly to add fictitious invoices as referred to by Claire Thomas in her Affidavits. By doing that she would have created the impression that any fictitious invoices may have been created by me but I confirm that this was most certainly not the case.” 21.              Miss Pandya was asked about that passage in cross-examination. She did not dispute the accuracy of what Miss Geddes said, but she contended that using Miss Geddes’s computer to close batches was a legitimate action on her part. 22.              Disclosure obtained from the banks to which I have referred showed that Mr. Harvey paid into his account with The Woolwich numbered 39761216 (“the Woolwich Account”) an amount of £6,000 on 18 January 2006. That raised the balance in his favour on that account to £6,607.85. The most significant diminution in the balance on the Woolwich Account until it became overdrawn in the amount of £9.73 on 1 February 2006 was the withdrawal of £4,700 in cash on 25 January 2006. 23.              Disclosure of the details of Mr. Modeste’s account numbered K06319152 with Abbey National Plc (“the Abbey Account”) showed him paying in cheques as follows: £7,250 on 31 January 2006, £7,250 on 16 February 2006, £5,320 on 24 March 2006, £6,154.23 on 13 May 2006, £3,762 on 6 June 2006, £5,135 on 24 July 2006, £2,472.71 on 7 August 2006 and £2,487.40 on 6 September 2006. Save that the sum deposited on 6 September 2006 was £26.11 greater than the cheque drawn on Colliers bank account (“the Colliers Account”) dated 30 August 2006, the cheques deposited in the Abbey Account seemed to correspond precisely with the cheques which it was contended on behalf of Colliers had been drawn in favour of Mr. Modeste in relation to sums ostensibly due to Hills and Reliable, plus the Unnamed Cheque. Mr. Modeste in his witness statement dated 22 July 2008 accepted that he had received the Unnamed Cheque. 24.              The deposit of the various cheques which I have mentioned in the Abbey Account were followed, so it seemed from the statements of the account obtained on disclosure, by fairly substantial withdrawals in cash within a matter of a few days of most of the deposits. The sums withdrawn were, on 8 February 2006 £6,250, on 24 February 2006 £6,200, on 31 March 2006 £5,200, on 19 May 2006 £5,000, on 9 June 2006 £1,000, on 19 June 2006 £2,400, on 27 July 2006 £4,030, on 11 August 2006 £2,000 and on 8 September 2006 again £2,000. The total value of the cheques paid in, £39,805.23 (taking the value of the cheque paid in on 6 September 2006 as £2,461.29), exceeded the total value of the sums paid out by £5,725.23. It was, perhaps, also notable that in each case the amount withdrawn in cash following a deposit was less, sometimes considerably less, than the amount of the deposit. 25.              There were put in evidence two paying in slips in relation to deposits of cheques at the Notting Hill Gate branch of National Westminster Bank plc. The slips related to the cheque in the sum of £2,169.19 drawn in favour of Secure on 18 September 2006 and the cheque in the sum of £4,214.96 drawn in favour of Secure on 6 November 2006. Each slip appeared to have been signed by Mr. Jonas as the person making the deposit. 26.              A search of the Register of Companies undertaken in respect of Secure revealed that the sole director of the company was Mr. Jonas and the company secretary was Miss Pandya. Each was recorded as having been appointed on 3 April 2006. Miss Pandya was cross-examined about that record. She said that she had not herself signed any document accepting the position of company secretary of Secure and that any document which purported to bear her signature accepting that position was a forgery. It appeared that Miss Pandya was also named as company secretary of a company called Reliable Copying Solutions Ltd., having been appointed on 22 March 2007. When asked about that Miss Pandya again said that she had not signed any document relating to any such appointment. She was not able to suggest any reason why any third person might have put her forward for appointment as company secretary of either of these companies. 27.              The system within Colliers during the period of her employment, as Miss Pandya accepted in cross-examination, was that, after an invoice had been entered as approved for payment on the System, the original invoice was placed in an appropriate file. The evidence on behalf of Colliers given by Miss Claire Thomas, a director and Head of Property Management Accounts, was that only one document purporting to be an invoice produced by either Hills or Reliable had been found. The suggestion was that the others had either never existed or had been destroyed by Miss Pandya after the relevant cheques had been drawn. The invoice which was found bore at the top the legend, “N J Hills Roofing/Secure Property Princess Gardens Rochford Essex 07931508985”. Thus the invoice contained no precise address, both a number of the road and a post code being omitted. The telephone number given, if valid, appeared to be that of a mobile telephone. The invoice was dated 31 March 2007 and in the sum of £9,650. The copy put in evidence bore upon it the Stamp, apparently completed so as to authorise payment. It was common ground between Colliers and Miss Pandya that only an employee of Colliers should have had access to the Stamp. 28.              The invoice dated 31 March 2007 was the subject of a passage in an affidavit of Mr. Kamara sworn on 16 August 2007 in response to the affidavit of Miss Pandya sworn on 7 August 2007. So far as is presently material what Mr. Kamara said about the invoice was:- “4. I refer to statements made by the Defendant with regard to missing invoices. There were occasions when invoices went missing but I would not say that happened very regularly. I remember a particular occasion in or about May 2007 when I received a number of telephone calls from someone who said he was a representative of NJ Hills Roofing. I recalled that he had a rather marked West Indian accent. He was pressing me to make payment of an invoice. I found an invoice on the file from NJ Hills Roofing but it was not authorised for payment by a Property Manager as is the requirement. I told the caller that I needed to have signed authority before it could be paid. The caller told me that he had spoken with the Property Manager and had received authority and that he would fax through to me a copy of the invoice with the authority stamped on it and he did so. 5. On seeing the authorisation stamp I assumed it was in order to make payment. The invoice was paid on 16 May 2007. Rather unusually it was collected in person by a man who was not known to me. I noted that he parked his car outside the building, came in to collect the cheque from me and immediately left.” 29.              That account of Mr. Kamara was not challenged. 30.              The last documentary evidence to which it is appropriate to refer is screen prints of the System showing apparent credits to the Hills Account and to the Reliable Account. All of these credits were entered on the System, as she accepted, by Miss Pandya. The source of the credit in each case was a refund to Colliers from a utility company, a local authority, or the like. Miss Pandya was asked about these various credits. She said that each of them had been posted to the Hills Account or to the Reliable Account, as the case might be, in error. The total value of the credits was £57,551.81. It was suggested on behalf of Colliers that the purpose of the credits was to reduce the amounts ostensibly paid to Hills and Reliable, and thereby to conceal, or to make more difficult to identify, the misapplication of monies ostensibly to pay invoices rendered by Hills and Reliable. The case for Miss Pandya 31.              Miss Pandya’s position was, in short, that she had not knowingly entered on the System any invoices which were not genuine and had not knowingly caused any such invoices to be paid. She contended in cross-examination that she would not have opened accounts for Hills or Reliable if she had not been asked to do so, although she said that she could not now remember who had asked her, or by what means, whether by presentation of an authorised invoice, a request by letter, a request by e-mail or an oral request. Each of the invoices paid, she said, would have been properly authorised, or would have appeared to have been properly authorised, for payment before being noted on the System as approved. 32.              Miss Pandya did not make a witness statement for the purposes of the trial, but, as I have already noted, she did make an affidavit on 7 August 2007. In that affidavit she said, amongst other things:- “Unlawful Activities of the Defendant 6. As to paragraph 7 and 8 of the First Affidavit of Claire Thomas, I did not set up fictitious suppliers. Every invoice I dealt with would have been filed by my clerks or by myself. We had a great problem with missing invoices. Any member of staff could take invoices from files even surveyors from another building. We had to spend hours each day looking for missing invoices. In the end we would have to call up the suppliers to obtain copies. I did not destroy or remove any invoices. I was not involved in sending the fax and do not now [sic] that sent it. However I am aware prior to my departure 30 approval stamps were sent out by the company to sites and other offices. The fax could have come from any of them. To my knowledge it was customary to receive invoices by fax that the company managed [sic]. If the site receives invoices they would stamp and sign them and send them into the company. The fax could not have come from a supplier. I have not intercepted incoming cheques as indicated. The cheques would have either been given to me or arrived in the post. They would be handed to me coded and placed on the system. As I have said before the clerks could do this job as well. I knew of no fictitious suppliers. Fictitious suppliers 7. If the record had my Tramps ID on it then it is genuine and was set up in good faith. It would have been set up from an invoice. If we had an invoice we would place it on the system. I would not know whether an invoice was false or not. This was not my job. The clerks could use my ID when the system was not working and when temps came and they had no ID they could use the system. There were large errors made in the company. There was a time when a cheque was sent out to a supplier and it turned up in the bank in the name [sic]. I did create the supplier records but from invoices. I would only change the record if I had an instruction from the surveyor, facility manager or the supplier to do so. My clerks and myself had to change a great number of these whilst working. As I have said before I had no knowledge of being a company secretary of Secure Property Service UK Limited. I have never signed any documents relating to this document [sic] relating to this company. My Christian name is spelled wrongly on the document relating to this company. My name is spelt as “Shelley” and not “Shelly”. I would not have changed the telephone number unless instructed by a supplier, surveyor or facility manager. Anyone could tell us to change information on the system. If I had to change the details I would do so. I never did anything to cover my tracks. I have no connection whatsoever with WA Harvey, P. Modeste and Secure Properties Services or any other company or person whom Miss Thomas alleged that I was involved with. Payments of False Invoices 8. As to paragraph 10, 11 and 12 of the First Affidavit of Claire Thomas, when I joined the company I recommended that invoices be matched to cheques when paid. I was refused authority to set up an unpaid file, as it would inconvenience other accountants. Accordingly, we had to pay them without matching them. I have never done this before in my experience with other companies. I did not cause the money to be paid as indicated. Any invoice I did put on the system was approved. I had no reason to question any invoice. The other members of staff and myself share duties. I had put on [sic] numerous invoices on the system. The clerk did everything as myself [sic]. The invoices were coded to those properties and therefore would not be questioned. There was a high turnover of facilitates [sic] managers and site staff. Often we did not know whether they had left. If we saw something with their signature on it we would pay it. I did not create these fictitious suppliers wilfully knowing that they were not genuine.” 33.              Earlier in her affidavit, at paragraph 2 j), Miss Pandya said:- “I will confess that at times when we were under pressure at work that I took work home. It may be that my partner Eric Jonas saw these documents and utilised the information therein. If he did I was not aware of this. My relationship with Mr. Jonas is as [sic] such that he does his own business, which he does not discuss with me. I do not discuss my employment with him.” 34.              Miss Pandya was asked in cross-examination about that passage. She agreed that nothing that Mr. Jonas may have seen among papers which Miss Pandya had brought home would have permitted him to have gained access to the System at Colliers. The case for Mr. Modeste 35.              The eventual evidence of Mr. Modeste was to the effect that he had received the cheques which it was contended on behalf of Colliers had been drawn in his favour, and the Unnamed Cheque, but that he had received them, and paid them into the Abbey Account, as a favour to Mr. Jonas, who was a friend of some fifteen years standing. Mr. Jonas did not have a bank account, but was entitled to receive money from a property transaction, or a number of property transactions. To facilitate Mr. Jonas receiving the money which he said was due to him, Mr. Modeste agreed to pay cheques intended for the benefit of Mr. Jonas into his own bank account and then withdraw cash to give to Mr. Jonas. 36.              Mr. Modeste made two affidavits and a number of witness statements for the purposes of this action. For present purposes I think that it is enough to refer in detail only to the last three witness statements, dated, respectively 22 July 2008, 18 January 2009 and 21 January 2009. 37.              In his witness statement dated 22 July 2008 Mr. Modeste gave this account of his involvement:- “10. The facts were that the defendant [meaning Mr. Jonas] approached me after his release from open prison and said he had sold his properties through an agent because whilst he was in custody, the person entrusted to collect the rent failed to do so which resulted in them being re-possessed. He told me he was due payment from the net proceeds which he was unable to deposit himself because he did not have a bank account, and pleaded with me to pay them into my account and repay him the whole sum. I was aware that the defendant had properties which he had rented out in the past and agreed as he seemed anxious to be able to access his funds. The cheques were subsequently made in my name which I cashed and re-paid to the defendant in full as requested. 11. I agreed to deposit the sums because I had known him for some time and because the payments were cheque deposits which could be traced. If at the time the 3rd defendant had suggested anything untoward, I would have refused outright. I have no criminal record and this is requirement [sic] for both my employment and for me holding a gun licence for my firearms club. In any event, I would not enter into any wrongdoing and have never been in trouble with the Police. 12. The sum total of the cheques given to me by the third defendant was £34,789; the last cheque was dated 24th July 2007. The repayments were all made at the specific request of the third defendant totalling £34,080. These were all cash withdrawals made at the Marylebone Street branch of the Abbey National which is located close to my place of employment with London Transport. Each time I made a withdrawal, I was either accompanied by my work colleague or at times when he was not available, would agree to meet the third defendant at the branch. This arrangement was necessary as I was carrying cash and did not want to lose that money and be held accountable to the third defendant for any such loses [sic], even though I now know that the monies did not belong to him. I had to draw cash because the third defendant had told me that he did not have a bank account. 13. There is now produced and shown to me and marked and [sic] exhibit as “PM1” which contains a summary of the deposits and withdrawals from my Abbey account number K06319152 (pages 1) and corresponding bank statements (pages 2-7). This document is also in the trial bundle produced by the Claimant at reference [sic]. I have marked the deposit of the cheques made out to me from the Claimant and the corresponding withdrawals of cash which I handed over to the third defendant. 14. As can be seen from the documents referred to above, of the £34,789 that was deposited into my account; I handed £34,084 back to the third defendant within a short space of time. At no time did I suspect or was there any indication from the third defendant that the monies had been procured from the Claimant in a fraudulent or illegal way; as set out above my belief was that the third defendant was owed the money. I genuinely believed that all I was doing was cashing the cheques in respect of sums to which the third defendant was entitled, and paying the money back to him at his request.” 38.              The summary of deposits and withdrawals exhibited to that witness statement included the Unnamed Cheque, but not the cheques dated 2 August 2006 and 30 August 2006 which I have noted were drawn in favour of Mr. Modeste. Rather puzzlingly, at paragraph 4 of the Defence served on behalf of Mr. Modeste it had been admitted that Mr. Modeste had received those cheques. The total shown on the summary of amounts received was stated, correctly arithmetically, as £34,871, leaving out any pence included in the value of any cheque, and not as £34,789, the figure set out at paragraph 12 of the witness statement. All of the cash withdrawals from the Abbey Account which I have already noted were included in the summary, and correctly totalled at £34,080, rather than the figure of £34,084 set out at paragraph 14 of the witness statement. It was plain on those figures that what Mr. Modeste asserted at paragraph 11 of the witness statement, that he had re-paid Mr. Jonas in full, was not correct. However, he asserted at paragraph 22 of the witness statement dated 22 July 2008 that:- “I have re-paid £34,080 of the monies handed to me by the third defendant under false pretences and misrepresentation and therefore, have not withheld or kept or dissipated for my own use any of the monies that have been claimed from me, save for a minor residual sum (which was simply the result of rounding the figures before I made the withdrawals).” 39.              In his witness statement dated 18 January 2009 Mr. Modeste expanded somewhat on how he became involved in receiving cheques drawn by Colliers. He said:- “10. Eric came to my workplace soon after in the morning. He said again that he had lost his flat, and he had to sell it. He said that because he had been in prison and he did not have any bank account. I thought that bank accounts get shut down if you do not use them. He said he had some money coming in from the sale and would I mind changing the cheques for him. He said that he would have the cheques made out in my name. I said that, as long as it wasn’t dodgy, I’d do it. He said it wasn’t dodgy and that the cheque wouldn’t be big but would be just a little one. “The Company” could not give him the money at once but would give it to him in stages, bit-by-bit. I understood “the Company” to be a property company of some sort that were selling the property, like an estate agent. I said, no problem, bring me the cheque and I’ll change it for you. He said he would call me and let me know when it would happen. 11. A couple of weeks later, Eric called me and then he brought me the cheque early in the morning. I told him that I was going to wait for the cheque to clear to make sure everything was kosher. By this I meant that the cheque wasn’t stolen and that it wasn’t going to bounce. He said keep it as long as you want and you’ll see it’s ok. 12. The cheque was made out in my name and I remember the name of the account included the words “Property Services”. This made sense because I thought the cheques were coming from a company that had sold Eric’s properties. I lodged the cheque and Eric phoned some days later after the cheque had cleared. I said I wanted to hold it longer to make sure it was ok. He said to call him up when he could come and get it. 13. I thought it was ok, because there was no comeback. The cheque had not bounced and no-one had written saying it was a dodgy cheque. With subsequent cheques, I just waited for them to clear because I thought everything was ok. 14. I know that Eric had been in prison and I know what it was for. But I had known him for 15 years. He never scammed me and I did not suspect that he would do anything against me. I believed what he said. He used to take me to the airport, he had visited my mum and dad and come to my daughter’s christening. He had borrowed money off me in the past and had always paid it back. Because of our relationship together, I did not think he would do anything to me. I do not know what he was like with other people but we were good friends. Everyone that knows us is really shocked at what he has done to me.” 40.              A new matter raised for the first time in the witness statement dated 18 January 2009 was a tape recording of what Mr. Modeste said was a conversation between him and Mr. Jonas on 20 September 2007. In his witness statement Mr. Modeste explained how the tape recording had come to be made:- “16. The first time I heard about any of this business was when Eric phoned me up and asked me if I had had a visit from the police. I said no, why? He replied that the cheques weren’t kosher. I was not actually involved with the police until late 2008. 17. It was only when I received a letter about the freezing order that I knew that I was involved. I phoned Eric to ask about the freezing order and I wanted him to explain what had happened. I said we needed to talk about it. He said he would come over to my place in the afternoon. I thought that he should come to see me because it was his fault so I was not going to go to Hammersmith. 18. I had told my friend Brian Payton about the phone calls with Eric. I told him that Eric had said that he would get me out of it. Brian suggested that I use a tape recorder when Eric came over because he didn’t trust him. He said that if Eric has given me dodgy cheques then he could do anything to me. Brian had a Dictaphone anyway and said that he would be at my house too. 19. Eric came over on the afternoon of 20th September 2007. Brian was there. The three of us stood in the hall and started talking. Brian said to Eric, “How could you do that to Peter?” Eric said that it was ok because I did not know about the cheques and that he would get out of this mess. Eric said he wanted to go out to his car and for me to come outside. I said I would meet him out there. 20. Brian said he could not record the conversation and I would have to do it. I put the Dictaphone in the left hand pocket of my track-suit top. I turned it on and went outside with the letters and documents that I had been sent. Eric had parked four or five houses down from me. He was sitting in the driver seat of his car. I got into the passenger side. I showed him the documents that I had been sent. 21. We had a conversation as is recorded in the tape and transcribed in a transcript and which will be put before the court. 22. We were in the car for over an hour. Eric said that he would pay back the money to wherever it came from and I believed him. I got out of the car and we said goodbye as friends as usual. He drove off.” 41.              The tape recording was played in court. The tape lasted something like fifteen minutes before some static noise obliterated any remaining conversation. A transcript had previously been made by a friend of Mr. Modeste. That transcript appeared to be only a partial record, so a professional transcription was obtained during the course of the trial. Subject to some modifications to the transcript agreed between Counsel, the professional transcript was accepted on all sides as an accurate a rendering as was possible of what was on the tape. The professional transcript, with agreed modifications (to which transcript, with such modifications, I shall refer in this judgment as “the Transcript”), included these passages spoken by Mr. Modeste and by a person identified by Mr. Modeste as Mr. Jonas:- “(Page 3 lines 13 – 15) Jonas: Listen, Peter, yeah? Just read it anyway, right? What we have to do is go to the lawyer. I’ll say that I was the one that [inaudible] sign whatever you was going to sign, and then [inaudible] off your case, yeah? (Page 4 lines 2 – 13) Jonas: A friend of yours from years ago, which is me – Modeste: Yeah. Jonas: Said to you that you were owed some money from somebody and they asked me to put it in the account for you. Modeste: Yeah. Jonas: [Inaudible] you gave it to me. Modeste: Yeah. Jonas: So therefore, once that’s done and I sign this affidavit for the lawyer – Modeste: Yeah. Jonas: This is the offer you – Modeste: Okay, okay. Jonas: Get out of it. (Page 6 lines 7 – 8) Jonas: So, Peter, I’m telling you Peter, I will admit there’s me and blah, blah, blah involved in it, so that way Peter, you’ll get out of it. (Page 13 lines 5 – 10) Jonas: You know Peter? Shelley has told me what she done, right? [Inaudible] What it was with Shelley, her father was done for VAT fraud, right? Modeste: Yeah. Jonas: And he owed some money. Modeste: Yeah. Jonas: So she done cheques, right, and I didn’t know what she was doing. (Page 14 lines 19 – 21) Jonas: [Inaudible] probably get done for it. But I told you [inaudible] How can my girl do this and think I’m not aware of it? [Inaudible] cheques as well from my own company, Peter. These are close friends and so forth … Harvey and me myself got cheques as well. My own company, Peter, as well, my own company. There’s a company on there called Secure Property Services. (Page 15 lines 18 – 23) Jonas: See, Peter, I’ve got money coming from overseas, but [inaudible] what I’ll do is [inaudible] I’m going to take like a hundred grand [inaudible] and I want me out of it [inaudible] me out of it, everybody out of it, and I said [inaudible]. Modeste: Yeah, it said so in the letter. It says that the five … the five people, all they want is their money back, and it says so in the letter. Jonas: Just leave it, Peter. This is a scam that’s been done, yeah?” 42.              Immediately before he was called to give evidence a yet further witness statement, that dated 21 January 2009, was signed by Mr. Modeste. That witness statement was made after it had been emphasised during the trial that the evidence suggested that Mr. Modeste had in fact received cheques to a total value of £39,805.23 from Colliers and that, on his own case, he had only passed on to Mr. Jonas sums amounting to £34,080. The latest witness statement included:- “2. These points relate to the payments in and out of my account. It is clear that the schedule that I exhibited with my First Witness Statement, at page 1 of PM1, is incorrect in that it fails to note two payments that were lodged into my account: £2472.71 on 7th August 2006; and £2487.40 on 6th September 2006. The total payment of £34,871.00 is therefore also wrong. 3. I confirm that there were eight cheques lodged into my account amounting to £39,831.34. I agree that the “Cheque paid in” column in the Claimant’s schedule produced in court today is correct. 4. … 5. The fact that two payments were missing in the schedule that I exhibited in my First Witness Statement was just an oversight. This is shown by the fact that my solicitor had, in an earlier letter of 22nd January 2008, listed the eight cheques that are now agreed to be correct, giving a total of £39,831.11. … 8. At the time of the payments, I knew that the amounts that I was paying out to the Third Defendant resulted in me ending up with no substantial loss or gain, as was arranged. The Third Defendant would sometimes ask me for advances of smaller sums on the cheques that he had given to me to cash and I would lend him the money. This would then be set off on a later payment to him. We were casual about this, we dealt in round figures and did not keep a record at the time but the agreement was that I would pay him over all the money. 9. I cannot say now how much was advanced and later set off. I cannot say which of the smaller cash withdrawals from the Marylebone and Edgware branches was withdrawn for the Third Defendant and what was withdrawn for other purposes. All I can say is that the arrangement was that I would pay him over what he paid to me and that we kept account accordingly at the time and that the payments in and out roughly achieved that.” 43.              Apart from containing the assertion that Mr. Modeste acted in good faith in those transactions which he admitted at the time of the Amended Defence, which were not all of  those which he ultimately admitted, his Amended Defence included these paragraphs:- “8. In the premises, as a result of the misrepresentations made to him by the Third Defendant, and as a result of the payments made to him by the Claimant, the Fourth Defendant in good faith changed his position. PARTICULARS OF CHANGE OF POSITION 8.1 The Third Defendant represented to the Fourth Defendant that the sums in question were owed to the Third Defendant. 8.2 The Third Defendant asked the Fourth Defendant to accept cheques made out to the Fourth Defendant in respect of money owed to the Third Defendant since the Third Defendant did not have, and was unable to obtain, banking facilities. 8.3 On the strength of the representations made by the Third Defendant, the Fourth Defendant duly accepted the cheques made out to him from the Claimant and banked them. 8.4 At the Third Defendant’s request, the Fourth Defendant, as a consequence of the payments made to him by the Claimant, made cash withdrawals of the money equivalent (save for a £705 difference, explicable by the rounding of the relevant figures) to the balance of the cheques paid to him by the Claimant. The Fourth Defendant immediately gave the cash to the Third Defendant. 8.5 At the time that he changed his position by making the cash withdrawals and giving the money to the Third Defendant, the Fourth Defendant acted in the honest and genuinely held belief that the money belonged to the Third Defendant and that his receipt of it was therefore valid. The Fourth Defendant had no knowledge of the Claimant’s claim and acted in good faith. 8.6 In the premises, the Fourth Defendant has in good faith changed his position as a consequence of the monies transferred to him by the Claimant, to the value of £34,789. 9. In respect of the sums claimed against the 4th defendant by the Claimant in paragraph 16 of the Particulars of Claim, the 4th defendant seeks an indemnity for the same amount from the 1st and 3rd defendant if an order is made against him. This indemnity is sought in the Part 20 notice filed under separate cover.” 44.              During the course of her closing submissions Miss K.G. Parke, who appeared on behalf of Mr. Modeste, sought permission to re-amend the Defence of Mr. Modeste to include the allegations contained in paragraphs 8 and 9 of his witness statement dated 21 January 2009, that is to say allegations that, in addition to the payments of the amounts specifically alleged as having been paid in cash to Mr. Jonas, totalling £34,080, the balance of the sums ultimately admitted as having been received from Colliers had been paid over to Mr. Jonas either as advances or in smaller sums which could not now be identified. 45.              Mr. Adam Solomon, who appeared on behalf of Colliers, resisted the application for permission to re-amend the Defence on the grounds that the new allegations were bound to fail. 46.              It seems to me that the appropriate course in the circumstances is to give permission for the re-amendment of the Defence and to consider the new allegations on the merits in the light of the evidence. 47.              There have in fact been no statements of case served in the Part 20 proceedings mentioned. This action first came on for trial before Mr. Guy Mansfield Q.C., sitting as a Deputy Judge of this Court, on 23 July 2008. On that occasion the trial was adjourned. However, Mr. Mansfield gave a number of directions. In relation to the Part 20 claim he ordered that after service of the Part 20 claim:- “3. There be no further pleadings in the Part 20 proceedings; 4. Upon service, the First and Third Defendants as the First and Second Defendants to the Part 20 claim shall be deemed to be denying liability and the Fourth Defendant as Claimant in the Part 20 claim must prove his case; 5. The issue of liability in the Part 20 proceedings shall be determined between the Fourth Defendant as Claimant in those proceedings immediately following determination of the main action by the trial judge; 6. The evidence and findings of fact in the main action shall stand as evidence and findings of fact in the Part 20 proceedings and shall bind the parties thereto;” 48.              A freezing order was made in this action initially only against Miss Pandya on 30 July 2007. On 28 August 2007 the other defendants in this action were joined by order of Ramsey J, who also granted freezing orders against the second, third, fourth and fifth defendants. The orders, in the usual way, required the second, third, fourth and fifth defendants to disclose their assets. Mr. Modeste swore an affidavit on 15 October 2007 purportedly in compliance with the requirement to disclose his assets. As subsequently appeared, that affidavit was defective because it failed to disclose that he had an account with Barclays Bank Plc and failed to disclose that he had, shortly before the swearing of the affidavit, in fact on 11 October 2007, received a loan from Abbey National Plc. An application to commit Mr. Modeste for contempt of court was made to Dobbs J on 15 May 2008. She found that he had been in contempt, not only for failing to disclose the existence of the account with Barclays Bank Plc which I have mentioned, but also for drawing some £51,000 out of that account in breach of the freezing order. Dobbs J committed Mr. Modeste to prison for 28 days, suspended so long as he complied with an undertaking to the Court to pay the amount of £28,500, anticipated to be received in respect of a loan, into the Abbey Account by 4.30 pm on 20 June 2008. For present purposes the material terms of the order of Dobbs J were:- “1. The Freezing Order of King J dated 3rd October 2007 is varied only to the limited extent as follows: (a) of allowing the 6th Defendant to advance a personal loan to the 4th Defendant on or before 4.30 pm on Friday 20th June 2008; (b) such personal loan must be immediately paid in full into the 4th Defendant’s Abbey National Bank account (number K06319152); … 3. The 4th Defendant is committed to HM Prison Pentonville for a period of 28 days from the date of his apprehension. 4. The warrant of committal remain in the Court office at the Royal Courts of Justice and that execution of it be suspended so long as the 4th Defendant complies with his undertaking that he has given to the court to transfer monies into his Abbey National Account and so long as he complies with the order of King J dated 3rd October 2007 (as varied by this order), after which the sentence and warrant of committal be discharged.” 49.              The money which Mr. Modeste undertook to transfer into the Abbey Account was transferred, but rather later than the specified date because of the reluctance of the bank to permit the transfer. 50.              Application was made on behalf of Mr. Modeste to Mr. Mansfield on 23 July 2008 to purge his contempt and for the suspended warrant of committal to be discharged. About those applications Mr. Mansfield ordered:- “1. The Fourth Defendant’s applications to purge his contempt and have the suspended warrant for his committal discharged, be stood over, to be determined at the end of proceedings by the trial judge; 2. The Fourth Defendant shall not by reason of his contempt be debarred from fully defending the claims brought against him in the Claimant’s action, from making applications in relation to those claims and from bringing a Part 20 claim against the First and Second Defendants;” 51.              In the circumstances this judgment is concerned not only with the claims of Colliers against the first, second, third, fourth and fifth defendants, but also with the Part 20 claim of Mr. Modeste against Miss Pandya and Mr. Jonas, and with the application on behalf of Mr. Modeste to purge his contempt and for discharge of the suspended warrant of committal. 52.              Plainly, as it seems to me, Mr. Modeste’s failure to comply with the disclosure order made by Ramsey J, involving concealment of assets, and his breach of the freezing order by withdrawing funds from his account with Barclays Bank Plc, are relevant to my assessment of his credibility. The law 53.              Bearing in mind the alleged causes of action of Colliers against the first, second, third, fourth and fifth defendants, it is convenient, before indicating my findings of fact, to consider the law applicable to each of the causes of action upon which reliance was placed on behalf of Colliers. It is appropriate to consider first the law applicable to conspiracy to cause damage by unlawful means. Conspiracy to cause damage by unlawful means 54.              The law in relation to a conspiracy to cause damage by unlawful means has recently been considered by the House of Lords in Revenue and Customs Commissioners v. Total Network SL [2008] 2 WLR 711. A convenient statement of the role of motive is to be found in this passage included in paragraph 56 of the speech of Lord Scott of Foscote at pages 733 – 734:- “Where, however, unlawful means are employed by the conspirators to achieve their object and their object involves causing harm to the victim, the intent to cause that harm does not have to be the predominant purpose of the conspiracy. This difference between the torts of lawful means conspiracy and unlawful means conspiracy is sometimes described as anomalous. In my opinion it is not. The difference reflects and demonstrates the essential flexibility of the action on the case. It is not all conduct foreseeably likely to cause, and that does cause, economic harm to another that is tortious. Nor should it be. The circumstances must be such as to make the conduct sufficiently reprehensible to justify imposing on those who have brought about the harm liability in damages for having done so. Bearing that in mind, the proposition that a combination of two or more people to carry out a scheme that is criminal in its nature and is intended to cause economic harm to some person does not, when carried out with that result, constitute a tort actionable by that person is, in my  opinion, unacceptable. Such a proposition is not only inconsistent with the jurisprudence of tortious conspiracy, as Lord Walker has demonstrated and explained, but is inconsistent also with the historic role of the action on the case.” 55.              The accuracy of that statement was not in dispute before me. 56.              My attention was also drawn by both Mr. Solomon and Mr. Seeboruth, who appeared  on behalf of Miss Pandya, to the decision of Newman J in The Mayor and Burgesses of the London Borough of Tower Hamlets v. Chavda [2005] EWHC 2183 (QB). At paragraphs 18 and 19 of his judgment Newman J said:- “18. It has been common ground that the case of Kuwait Oil Tanker Company SAK & Anor v. Al Barder & Others [2000] 2 All ER (Comm) 271 sets out the principles governing this case. Of the two types of actionable conspiracy referred to by the Court of Appeal, Tower Hamlets allege a conspiracy to injure by unlawful means. As a result, before finding the claim proved, the court must be satisfied that the defendants intended to injure the claimant, but injury to the claimant need not have been the predominant purpose. The claimant must prove that it has suffered loss or damage as a result of the unlawful action taken pursuant to the conspiracy. It is not necessary to show that there is anything in the nature of an express agreement, whether formal or informal. It is sufficient if two or more persons combine, albeit tacitly, to achieve a common end. The task of the court is to scrutinise the acts which are relied upon to see what inferences can be drawn as to the existence or otherwise of the alleged conspiracy. 19. I remind myself that the burden of proof rests on Tower Hamlets and that, although the standard of proof in this case is the same as that which applies in all civil proceedings, namely proof on the balance of probabilities, the court should require cogent evidence commensurate with the seriousness of the allegation before it considers itself justified in finding the case proved.” 57.              Again, there was no dispute between the parties as to the principles summarised by Newman J. 58.              However, Miss Parke adopted the written submissions prepared by her predecessor, Mr. Robin Rathmell, for the anticipated trial before Mr. Mansfield and drew to my attention, in the context of conspiracy, this passage:- “16. In a claim for conspiracy, it is “necessary that [each conspirator] should know all the facts and entertain the same object”: Huntley v. Thornton [1957] 1 WLR 321, 343, per Harman J. Further, a passage of Viscount Dilhorne on the knowledge required for criminal conspiracy in R v. Churchill (No.2) [1967] 2 AC 224 has been adopted by the Court of Appeal for civil cases of conspiracy (see Belmont Finance Corp v. Williams Furniture Ltd. (No. 2) [1979] Ch 250, 271 and Prichard v. Briggs [1980] Ch 338, 414). In Churchill, Viscount Dilhorne said that: “The question is, “What did they agree to do?” If what they agreed to do was, on the facts known to them, an unlawful act, they are guilty of conspiracy and cannot excuse themselves by saying that, owing to their ignorance of the law, they did not realise that such an act was a crime. If, on the fact’s [sic] known to them, what they agreed to do was lawful, they are not rendered artificially guilty by the existence of other facts, not known to them, giving a different and criminal quality to the act agreed upon.”” 59.              I think that that submission was accepted as accurate by Mr. Solomon. Certainly I accept it as a correct statement of the law. 60.              The material part of the passage from the judgment of Harman J in Huntley v. Thornton [1957] 1 WLR 321 at page 343 referred to in the submission of Mr. Rathmell was, in full:- “No doubt it is not necessary that all the conspirators should join at the same time, but it is, I think, necessary that they should know all the facts and entertain the same object.” 61.              I shall come to how, on the facts, Mr. Solomon put the case for Colliers in relation to conspiracy, but it is next useful to consider the allegations that Miss Pandya was in breach of her contract of employment and that Mr. Jonas was guilty of inducing the relevant breaches. Breach of contract and inducing a breach of contract 62.              There was no dispute before me that, in the absence of an express term to the same effect, it was, as a matter of law, an implied term of a contract of employment that the employee should act in good faith and with fidelity towards the employer. That was decided as long ago as 1895, in the very well-known decision of the Court of Appeal in Robb v. Green [1895] QB 315. 63.              However, the elements of the tort of inducing a breach of contract have been considered recently by the House of Lords in OBG Ltd. v. Allan [2007] 2 WLR 920. The leading speech in that case was that of Lord Hoffmann. At paragraphs 39 to 44 of his speech he said:- “39. To be liable for inducing breach of contract, you must know that you are inducing a breach of contract. It is not enough that you know that you are procuring an act which, as a matter of law or construction of the contract, is a breach. You must actually realize that it will have this effect. Nor does it matter that you ought reasonably to have done so. This proposition is most strikingly illustrated by the decision of this House in British Industrial Plastics Ltd. v. Ferguson [1940] 1 All ER 479, in which the plaintiff’s former employee offered the defendant information about one of the plaintiff’s secret processes which he, as an employee, had invented. The defendant knew that the employee had a contractual obligation not to reveal trade secrets but held the eccentric opinion that if the process was patentable, it would be the exclusive property of the employee. He took the information in the honest belief that the employee would not be in breach of contract. In the Court of Appeal MacKinnon LJ observed tartly [1938] 4 All ER 504, 513 that in accepting this evidence the judge had “vindicated his honesty … at the expense of his intelligence” but he and the House of Lords agreed that he could not be held liable for inducing a breach of contract. 40. The question of what counts as knowledge for the purposes of liability for inducing a breach of contract has also been the subject of a consistent line of decisions. In Emerald Construction Co. Ltd. v. Lowthian [1966] 1 WLR 691, union officials threatened a building contractor with a strike unless he terminated a subcontract for the supply of labour. The defendants obviously knew that there was a contract – they wanted it terminated – but the court found that they did not know its terms and, in particular, how soon it could be terminated. Lord Denning MR said, at pp 700 – 701: “Even if they did not know the actual terms of the contract, but had the means of knowledge – which they deliberately disregarded – that would be enough. Like the man who turns a blind eye. So  here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong. For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not”. 41. This statement of the law has since been followed in many cases and, so far as I am aware, has not given rise to any difficulty. It is in accordance with the general principle of law that a conscious decision not to inquire into the existence of a fact is in many cases treated as equivalent to knowledge of that fact: see Manifest Shipping Co. Ltd. v. Uni-Polaris Insurance Co. Ltd. [2003] 1 AC 469. It is not the same as negligence or even gross negligence: in British Industrial Plastics Ltd. v. Ferguson [1940] 1 All ER 479, for example, Mr. Ferguson did not deliberately abstain from inquiry into whether disclosure of the secret process would be a breach of contract. He negligently made the wrong inquiry, but that is an altogether different state of mind. 42. The next question is what counts as an intention to procure a breach of contract. It is necessary for this purpose to distinguish between ends, means and consequences. If someone knowingly causes a breach of contract, it does not normally matter that it is the means by which he intends to achieve some further end or even that he would rather have been able to achieve that end without causing a breach. Mr. Gye would very likely have preferred to be able to obtain Miss Wagner’s services without her having to break her contract. But that did not matter. Again, people seldom knowingly cause loss by unlawful means out of simple disinterested malice. It is usually to achieve the further end of securing an economic advantage to themselves. As I said earlier, the Dunlop employees who took off the tyres in GWK Ltd. v. Dunlop Rubber Co. Ltd. 42 TLR 376 intended to advance the interests of the Dunlop company. 43. On the other hand, if the breach of contract is neither an end in itself nor a means to an end, but merely a foreseeable consequence, then in my opinion it cannot for this purpose be said to have been intended. That, I think, is what judges and writers mean when they say that the claimant must have been “targeted” or “aimed at”. In my opinion the majority of the Court of Appeal was wrong to have allowed the action in Millar v. Bassey [1994] EMLR 44 to proceed. Miss Bassey had broken her contract to perform for the recording company and it was a foreseeable consequence that the recording company would have to break its contracts with the accompanying musicians, but those breaches of contract were neither an end desired by Miss Bassey nor a means of achieving that end. 44. Finally, what counts as a breach of contract? In Torquay Hotel Co. Ltd. v. Cousins [1969] 2 Ch 106, 138 Lord Denning said that there could be liability for preventing or hindering performance of the contract on the same principle as liability for procuring a breach. This dictum was approved by Lord Diplock in Merkur Island Shipping Corpn v. Laughton [1983] 2 AC 570, 607 – 608. One could therefore have liability for interference with contractual relations even though the contracting party committed no breach. But these remarks were made in the context of the unified theory which treated procuring a breach as part of the same tort as causing loss by unlawful means. If the torts are to be separated, then I think that one cannot be liable for inducing a breach unless there has been a breach. No secondary liability without primary liability. Cases in which interference with contractual relations have been treated as coming within the Lumley v. Gye tort (like Dimbleby & Sons Ltd. v. National Union of Journalists [1984] 1 WLR 67 and [1984] 1 WLR 427) are really cases of causing loss by unlawful means.” 64.              The correctness of these principles was of concern, if to anyone, only to Mr. Jonas, who did not participate at the trial. However, I am satisfied that the law was accurately set out in the passage from the speech of Lord Hoffmann which I have quoted. Money had and received 65.              The only issue which arose as to the principles applicable to a claim for money had and received concerned the claim against Miss Pandya pleaded at paragraph 11 of the Particulars of Claim:- “Further or alternatively, by reason of the aforesaid facts and matters the Claimant claims the said sum of £158,925.87 as money had and received by the First Defendant.” 66.              The “aforesaid facts and matters” did not include any allegation that Miss Pandya herself had received any money from Colliers. 67.              In his closing submissions Mr. Solomon submitted that Miss Pandya was liable on the basis of money had and received if she had caused a third party to receive money from Colliers, or at least in respect of the monies paid to Secure, of which she was the company secretary and an effective owner. 68.              In support of his submissions Mr. Solomon relied only on a passage in Goff and Jones, The Law of Restitution, 7th edition,2007 at paragraph 1 – 002, in a section entitled “The history of quasi-contract: the common courts”:- “Quasi-contract is that part of restitution which stems from the common indebitatus counts for money had and received and for money paid, and from quantum meruit and quantum valebat claims. The action for money had and received lay to recover money which the claimant had paid to the defendant, on the ground that it had been paid by a mistake or compulsion, or for a consideration which had wholly failed. By this action the claimant could also recover money which the defendant had received from a third party, as when he was accountable or had attorned to the claimant in respect of the money, or the money formed part of the fruits of an office of the claimant which the defendant had usurped. The action also lay to recover money which the  defendant had acquired from the claimant by a tortious act; and, in rare cases, where the defendant had received money which the claimant could identify as his own at the time of receipt and for which the defendant had not given consideration, the claimant could assert his claim by means of this action. The action for money paid was the appropriate action when the claimant’s claim was in respect of money paid, not to the defendant, but to a third party, from which the defendant had derived a benefit. Historically, the claimant had to show that the payment was made at the defendant’s request; but we shall see that the law was prepared to “imply” such a request on certain occasions, in particular where the payment was made under compulsion of law or, in limited circumstances, in the course of intervention in an emergency on the defendant’s behalf, which in this book we shall call necessitous intervention.” 69.              Mr. Solomon did not refer me to any decided case in support of his submissions. 70.              It is plain, in my judgment, that the passage from Goff and Jones upon which Mr. Solomon relied was simply an historical introduction to the subject of the work, and not intended as a statement of the present law. Moreover, as Mr. Solomon recognised, the passage did not support the proposition that the matters identified by Mr. Solomon rendered Miss Pandya liable to Colliers for money had and received, but at best liable on the basis of money paid, which was not the pleaded cause of action. A cause of action for money paid, if it survives in the form of the historic action described by Goff and Jones, only involves liability on the part of a defendant if that defendant derived a benefit from the making of the payment and, it would seem, the payment was made at the actual or implied request of the defendant. The circumstances in which a request would be implied appeared to be limited to a payment made under compulsion of law or in the course of intervention in an emergency. Defence of change of position 71.              It was accepted by Miss Parke on behalf of Mr. Modeste that, subject to his defence of change of position, he was liable to account to Colliers for the money which he had received from it. 72.              Miss Parke adopted the submissions of Mr. Rathmell on the question of change of position. Those submissions were:- “19. The Fourth Defendant admits that £34,789 of money belonging to the Claimant was paid into his bank account. It is submitted, however, that as a consequence of those payments the Fourth Defendant in good faith changed his position to the extent of £34,080 of the total sums he received. At various times, and at the Third Defendant’s request, the Fourth Defendant made cash withdrawals from the Marylebone Street branch of the Sixth Defendant and gave those sums to the Third Defendant in the good faith belief that they belonged to the Third Defendant. 20. That a defence of change of position is available in claims of this nature is clear from the seminal case in which the change of position defence was recognised, Lipkin Gorman (a firm) v. Karpnale Ltd. [1991] 2 AC 548. 21. It is submitted that there are two fundamental requirements for the operation of the defence: 21.1 A causal link between the receipt of the benefit by the defendant and the change of position relied upon, so that, but for the receipt of the benefit, the defendant’s position would not have changed: Scottish Equitable Plc v. Derby [2001] 3 All ER 818; Goff and Jones, The Law of Restitution, 7th Ed 2007, at 40 – 008. 21.2 The change of position occurred in circumstances where it would be inequitable to order the defendant to make restitution to the claimant: Lipkin Gorman at 579 – 80. This requirement for the defence includes, of course, a requirement that the defendant acted in good faith. While there have been a number of decisions on what constitutes inequitability for the purposes of the change of position defence, it is clear, it is submitted, that a degree of subjective fault or dishonesty is required (see, eg Goff and Jones, 40 – 013, fn.4).” 73.              Mr. Solomon accepted that, if the facts supported such a finding, which he contended they did not, a change of position defence was available to Mr. Modeste. Findings concerning breach of contract on the part of Miss Pandya 74.              The case of Colliers against Miss Pandya based on alleged breach by her of the implied term in her contract of employment that she would serve Colliers in good faith and with fidelity depended, essentially, upon whether I concluded from the documentary evidence to which I have referred that Miss Pandya set up on the System accounts for bogus businesses, Hills and Reliable, and thereafter processed fictitious invoices purportedly rendered by those businesses so as to procure the issuing of cheques in the names of Mr. Harvey, Mr. Modeste and Secure, she knowing that the whole scheme was false and dishonest, or whether I accepted her evidence that what she did she did innocently. 75.              In my judgment the conclusion to which the documentary evidence led was overwhelming. The explanations offered by Miss Pandya were unconvincing. She was not, as it seemed to me, at all a satisfactory witness. 76.              During the course of her cross-examination, as I have noted, Miss Pandya was asked about the changes in the addresses of Hills and Reliable being made within just over a minute on 17 October 2006. Her initial explanation for these changes being made on the same day, and so quickly as between the two changes, was that she was working on a batch of changes of address and it just so happened that those changes came close together in the batch. She was told, when she said that, that it would be possible to check from the System what changes had been made by her to details of suppliers on 17 October 2006, and she agreed that that was indeed so. Overnight that check was undertaken and what it showed was that only the changes to the details on the Hills Account and those on the Reliable Account were made at about 11.00 am on 17 October 2006. No other accounts details were changed by her at that time, although an unrelated change to a genuine supplier’s details was made rather later in the day. Miss Pandya was recalled to have a chance to deal with this evidence. She then changed her story to being that she had been processing a batch of invoices for payment and noticed that the details of Hills’s address and those of the address of Reliable were in error and needed to be corrected. She said that those corrections could be done whilst processing the material invoices, and that she must have done so. Unhappily for that account, the documents put in evidence did not show any invoice purportedly in favour of Hills or in favour of Reliable being processed on 17 October 2006. 77.              A relatively minor issue, but one in relation to which the evidence shed some light on the credibility of Miss Pandya, concerned the document produced by Colliers in relation to purchase ledger procedures called “Procedure for Purchase Ledger Process” (“the PLP Document”). Exhibited to the first affidavit of Miss Thomas was the PLP Document current at the date of the commencement of this action, which was identified on its face as having the date 14 August 2006 and being “Revision 3”. That document ran to some 7 pages. Miss Pandya was asked about that document during her cross-examination because in her affidavit she had asserted that at the date when she commenced her employment there was no procedure in place for setting up new suppliers on the System. She contended that when she took up her employment the PLP Document only took up one page and that she revised it, in conjunction with Miss Thomas. The day after Miss Pandya gave that evidence there was put in evidence the “Revision 2” version of the PLP Document. That was dated 26 July 2005, a matter of days after Miss Pandya’s employment with Colliers commenced. That version of the document not only contained provision for the setting up of new suppliers on the System, but was in fact longer than the subsequent version. Miss Pandya was asked, when recalled to give evidence, about the “Revision 2” document. She said that she did not remember that document, although she accepted that she should have been aware of the procedures contained within it and have followed them. In my judgment it is simply inconceivable that the Purchase Ledger Supervisor was not aware of the existence and content of the “Revision 2” document. The date of the “Revision 2” document meant that it was, to say the least, highly misleading for Miss Pandya to have asserted that the procedures document in existence when she commenced her employment was a one page document and that it contained no reference to a procedure for setting up new suppliers. 78.              A matter which was of some significance to the issues in this action was whether Miss Pandya knew the user identities and System passwords of Miss Geddes, Mr. Kamara and any temporary clerks employed in relation to purchase ledgers by Colliers. Her initial position was that she did not. In the course of cross-examination she accepted that in fact she did. That does not seem to me to be the sort of matter that one could forget about and then remember. What seemed to prompt the change of position of Miss Pandya on the point was the clear evidence of Miss Geddes. 79.              In the result I am satisfied that Miss Pandya did set up Hills and Reliable on the System as new suppliers, knowing that they were not genuine suppliers. The purpose of setting up those new suppliers, I find, was to facilitate the theft of money from Colliers by the mechanism of causing the System to accept invoices purportedly from Hills and Reliable and to produce cheques ostensibly in payment of such invoices, but in fact expressed to be payable to Mr. Harvey (in the one case I have identified), to Mr. Modeste (in the eight cases which I have identified), and to Secure (in the thirteen case I have identified). As, it seems, the addresses recorded on the System for Hills and Reliable were not genuine addresses, yet the various cheques with which this action was concerned were all presented and cleared, it is obvious that Miss Pandya also intercepted these various cheques at the point of despatch and passed them to someone who was in a position to deliver them into the banking cheque clearance system. These findings amount to breaches of the implied term of Miss Pandya’s contract of employment that she would serve Colliers in good faith and with fidelity. 80.              On the evidence the loss which Colliers suffered as a result of the breaches of her contract of employment on the part of Miss Pandya totalled £158,925.87. There will be judgment in favour of Colliers against Miss Pandya in that sum for breach of her contract of employment. Findings as to money had and received by Miss Pandya 81.              There was no evidence that Miss Pandya herself received any of the money which was the proceeds of any of the cheques drawn on the Colliers Account ostensibly in settlement of invoices raised by Hills or Reliable. The evidence rather suggested that she personally had not received any money, for she told me that she had two outstanding county court judgments against her, one in the sum of £17,323 given on 1 October 2001 and one in the sum of £883 given on 1 March 2004. There was no evidence that Miss Pandya derived any benefit from any of the sums paid out of the Colliers Account purportedly in settlement of invoices raised by Hills or Reliable. There was no evidence that Miss Pandya had, in any meaningful sense, requested Colliers to pay the various sums which were the subject of this action. Consequently the claim against Miss Pandya based on money had and received, or money paid, fails. Findings concerning inducing by Mr. Jonas of breaches of contract on the part of Miss Pandya 82.              The documentary evidence against Miss Pandya was, as I have explained, compelling. As she gave evidence at the trial I was able to form a view of her as a witness and to conclude that her evidence was not reliable. The documentary evidence in relation to the involvement of Mr. Jonas was less substantial. He did not give evidence at the trial, so no assessment of his credibility could be made. Notwithstanding those considerations, it seems to me that the evidence before me, as a whole, justifies the conclusion that Mr. Jonas did induce Miss Pandya to do all of those things which amounted to breaches on her part of her contract of employment, and that he must have known, because it was obvious and the acts in question were dishonest, that they did amount to breaches of her contract of employment. 83.              I have already noted that Miss Pandya must have intercepted cheques drawn in favour of Mr. Harvey, Mr. Modeste and Secure and delivered them to someone who could put the cheques into the banking clearance system. The evidence of Mr. Modeste, which on this point I accept, was that it was Mr. Jonas who gave to him the cheques expressed to be payable to Mr. Modeste. In addition, the paying in slips in relation to two cheques expressed to be payable to Secure to which I have referred were signed in the name of Mr. Jonas. On Miss Pandya’s evidence, which I accept on this issue, she and Mr. Jonas were living together at the time of the breaches which I have found of her contract of employment. In her affidavit she at least suggested wrongdoing on the part of Mr. Jonas, a rather curious comment to make. Moreover, Mr. Jonas, according to the Register of Companies, was the director of Secure. 84.              Consequently there will be judgment in favour of Colliers against Mr. Jonas for the sum of £158,925.87 as damages for inducing breaches of contract by Miss Pandya. Findings concerning receipt of money by Mr. Harvey 85.              The evidence showed clearly that a cheque in the sum of £6,000 had been drawn on Colliers’ bank account expressed to be payable to Mr. Harvey, that he had received that cheque, that he had paid that cheque into the Woolwich Account, and that the cheque had been cleared. Thus Mr. Harvey had received £6,000 from Colliers. No attempt was made on behalf of Mr. Harvey to justify receipt of that amount. It follows that he is liable to repay that sum to Colliers as money had and received to its use. Findings concerning receipt of money by Mr. Modeste 86.              By the end of the trial there was no dispute that Mr. Modeste had received the sum of £39,831.34 from Colliers. Insofar as that sum was claimed from him as monies had and received, the issue was whether Mr. Modeste had changed his position following receipt of the various amounts which made up that total, such that it would be inequitable for him to be required to repay the whole or some part of the sum. In fact I think that it was accepted by Miss Parke, on behalf of Mr. Modeste, that he was liable to repay so much of what he received as he did not pay over to Mr. Jonas, although she submitted that on the evidence it was demonstrated that all sums received had been paid over. The submission depended upon whether I accepted the evidence of Mr. Modeste himself to that effect. 87.              The issue whether it would be inequitable for Mr. Modeste to be held bound to repay to Colliers the whole of what he had actually received turned on the nature of Mr. Modeste’s involvement. The case for Colliers was, in effect, that Mr. Modeste knowingly laundered sums stolen from Colliers by paying cheques drawn in his name into the Abbey Account and then paying a proportion of the face value of each cheque to Mr. Jonas, keeping a proportion of the face value of each cheque for himself as his reward for his services. The case for Mr. Modeste was that he acted in good faith and in ignorance of the dishonest means by which the various cheques had been procured, simply to assist a friend of long-standing. I think that it was accepted by Miss Parke that, if the analysis for which Mr. Solomon contended on behalf of Colliers was correct, it was not open to Mr. Modeste to rely on the defence of change of position, while Mr. Solomon accepted that, if the version for which Mr. Modeste contended were correct, he was entitled to rely on that defence. 88.              The nature of Mr. Modeste’s defence of change of position meant that whether that defence succeeded or not depended upon whether I accepted his account of his involvement with Mr. Jonas. I do not. Mr. Modeste had, in my judgment, demonstrated throughout this action a flagrant disregard of truth and a willingness both to lie and to flout the orders of the Court in pursuance of what he conceived to be his own interests. 89.              I have already remarked that the matters giving rise to the findings by Dobbs J  were relevant to the assessment of the credibility of Mr. Modeste. The material which was before Dobbs J was also put before me, and, with very great respect, that material amply justified, as it seemed to me, the conclusions to which Dobbs J came. Mr. Modeste deliberately swore in his affidavit of 15 October 2007 that he had no assets, other than an interest in a property jointly owned with his parents, which property was subject to a mortgage with Abbey National Plc, when in fact he had the account with Barclays Bank Plc which I have mentioned. That could only have been a deliberate lie, not least because sums totalling £51,000 were withdrawn from that account after the making of the freezing order against him. 90.              I have also noted earlier in this judgment that, when Mr. Modeste came to address, apparently in detail in his witness statement dated 22 July 2008, the sums which he had received from Colliers, he omitted the payment of the sum of £2,472.71 by cheque dated 2 August 2006 and the sum of £2,461.29 by cheque dated 30 August 2006. It seems that those cheques were omitted in the purported reconciliation of receipts and payments in order to try to bring them as close to balance as possible. I do not accept that the details of those cheques were omitted by oversight, although it is correct that in a letter dated 22 January 2008 written by Mr. Modeste’s solicitors to Colliers’ solicitors it was accepted that Mr. Modeste had received all of the cheques which he ultimately admitted, and also that the two cheques not mentioned in the witness statement dated 22 July 2008 were admitted at paragraph 4 of Mr. Modeste’s Defence. The contention that the omission of the two cheques from the witness statement dated 22 July 2008 was an oversight was inconsistent with Mr. Modeste’s subsequent attempt to introduce new assertions of making advances to Mr. Jonas and paying him other small sums in cash to try to make the revised admitted total of receipts balance with payments to Mr. Jonas. The allegations of the making of advances and of the payment of other small sums to Mr. Jonas were the subject of close cross-examination by Mr. Solomon. The responses of Mr. Modeste in cross-examination were completely unsatisfactory. First, he said that any money withdrawn by him in cash from the Marylebone High Street branch of Abbey National Plc had been given to Mr. Jonas. When it was pointed out to him that the statements of the Abbey Account showed that, between 8 February 2006, when he received the first cheque drawn by Colliers, and the end of 2006 only two withdrawals of cash, each of £500, had been made from that branch in addition to the sums totalling £34,080, he said that the cash withdrawn from the Edgware Road branch had also been for Mr. Jonas. When it was pointed out to him that those cash withdrawals, which in fact totalled £5,615 over the period from 8 February 2006 until the end of November 2006, taken with the additional withdrawals totalling £1000 from the Marylebone High Street branch, meant that he had paid Mr. Jonas too much, he said that not all of the cash withdrawals from the two branches had been for Mr. Jonas. However, he then complicated things by suggesting that some sums had been paid by him to Mr. Jonas from amounts which Mr. Modeste kept at his home. He also said that he paid money to Mr. Jonas on receiving cheques, in advance of them clearing. He contended that he had paid Mr. Jonas £1,000 in cash on the occasion of receiving the first cheque drawn on the Colliers Account. That assertion, of course, was at total variance from what he had said at paragraphs 11 – 13 inclusive of his witness statement dated 18 January 2009, but three days earlier than his oral evidence, and the substance of which he had repeated earlier in his cross-examination, about how he had felt about receiving the first cheque and how he had acted after receiving it. Mr. Modeste told me in cross-examination that he had not kept any records of what amounts he received from Mr. Jonas by way of cheques drawn on the Colliers Account, and what amounts he had paid him, or when. In answer to me he said that it was possible that in fact he had retained as much as £700 out of the proceeds of the cheques drawn on the Colliers Account, but he did not think that he could have retained as much as £5,000. I came to the firm conclusion that Mr. Modeste was simply making up his evidence in the witness box as each difficulty with what he said was pointed out to him. 91.              Possibly the most bizarre point in Mr. Modeste’s cross-examination occurred when he was asked the reason Mr. Jonas had been in prison. His first answer was that he did not know. When he was reminded that he had said in the first line of paragraph 14 of his witness statement dated 18 January 2009 that he did know, he maintained that he had answered the question when first asked by saying, “Drugs”. He repeated that assertion when challenged, even when I pointed out to him that I had noted that he had said that he did not know what Mr. Jonas had been in prison for. 92.              Understandably Miss Parke relied heavily, in support of Mr. Modeste’s case that he was an innocent dupe of Mr. Jonas, upon some of those passages from the Transcript which I have set out, specifically those from pages 3, 11, 13, 14 and 15. I have concerns about the tape recording which was transcribed in the Transcript on account of its late surfacing in the history of this action. Although the original tape was produced in Court from police custody, it did not seem to have been delivered to the police until shortly before the trial. On the evidence of Mr. Modeste the tape had been in his possession for over a year after being made, yet its existence had not been communicated to any other party to this action until the service of Mr. Modeste’s witness statement dated 18 January 2009, that is to say, at the start of the trial. The steps which the voice identified by Mr. Modeste as that of Mr. Jonas said that he was going to take to make an affidavit accepting the blame for the theft of the money from Colliers, and to repay that money, had never been taken. However, no steps, or at any rate no effective steps, had been taken on behalf of Mr. Modeste to remedy those deficiencies. Mr. Modeste said in cross-examination that he had been trying to find Mr. Jonas for something like a year. 93.              Even taking what was said in the passages relied on by Miss Parke at face value, it seemed to me that they were ambiguous. While it appeared that Mr. Modeste was complaining about being caused trouble by Mr. Jonas, the precise nature of the complaint was unclear. One could not tell from the tape whether Mr. Modeste’s complaint was that Mr. Jonas had given him the account set out in paragraph 10 of Mr. Modeste’s witness statement dated 18 January 2009, that Mr. Modeste had believed him and had helped him, but what Mr. Jonas had told him had turned out to be untrue, or whether his complaint was only that Mr. Jonas had said that, if Mr. Modeste participated in the scheme which I am satisfied the two of them implemented of him laundering cheques for Mr. Jonas for a fee, he would never be found out. Some passages seemed to be consistent with Mr. Modeste’s evidence in paragraph 10 of his witness statement dated 18 January 2009, but others, for example at page 4 lines 2 – 13, seemed more consistent with Mr. Jonas telling Mr. Modeste what tale to tell to exculpate himself. 94.              At all events, given the very poor performance of Mr. Modeste in the witness box and his obvious lies on other occasions, I am satisfied, notwithstanding the contents of the Transcript, that he knew perfectly well that receiving the cheques drawn on the Colliers Account, paying them in to the Abbey Account, and giving the bulk of the proceeds to Mr. Jonas were dishonest. 95.              Notwithstanding my overall view of Mr. Modeste as a witness, I do accept that, of the sums which he received from Colliers, he did pay to Mr. Jonas in cash those amounts listed in the summary attached to his witness statement dated 22 July 2008 totalling £34,080. 96.              When all of the payments which I find Mr. Modeste made to Mr. Jonas and all of the amounts of Colliers’ cheques which Mr. Modeste ultimately accepted he had received were brought into account it was clear that Mr. Modeste retained for himself £5,725.23. The retention of that amount, which constituted 14.38% of the total face value of the cheques, and the pattern of retention, by which I mean how much was retained of each cheque when cash was withdrawn to pay to Mr. Jonas, demonstrated, in my judgment, that Mr. Modeste understood perfectly well that each cheque given to him had not been obtained honestly. The nature of Mr. Modeste’s involvement was clearly that he, in effect, cashed each cheque for Mr. Jonas in return for a payment. In relation to the cashing of the first cheque the payment was £1,000 (13.79%). In respect of the second cheque the payment was £1,050 (14.48%). Thereafter there was no consistency in percentage terms in how much Mr. Modeste retained, but on average it continued at the same order of magnitude. No one involved in an honest transaction would expect to be paid fees of that sort of size just for cashing a cheque. 97.              In the result the defence of change of position fails because Mr. Modeste was not acting in good faith. He did not change his position in reliance upon any supposed statement on the part of Mr. Jonas that the cheques each represented a sum actually due to Mr. Jonas from Colliers but which Mr. Jonas could not receive himself by cheque because he did not have a bank account. I find that Mr. Modeste was aware that the cheques were, in effect, stolen, and that his role was to assist in the realisation of the monies stolen in return for a payment on each occasion. Thus, there will be judgment for Colliers against Mr. Modeste in the sum of £39,805.23 as monies had and received. 98.              My conclusion that Mr. Modeste was a knowing participant in the theft of money from Colliers means, as Miss Parke accepted in her closing submissions, that he is not entitled to any indemnity or contribution in respect of his liability from Miss Pandya or Mr. Jonas. Indeed, as I understood it, Miss Parke did not seek to pursue the Part 20 claim against Miss Pandya in any event. Findings concerning receipt of money by Secure 99.              The evidence put before me demonstrated that cheques to a total value of £102,590.33 were drawn on the Colliers Account in favour of Secure. No evidence was put before me which suggested that Secure had any legitimate entitlement to be paid that sum, or any part of it. Consequently there will be judgment in favour of Colliers against Secure for £102,590.33 as monies had and received. Findings concerning conspiracy 100.          No direct evidence was led before me in support of the case of Colliers that each of Miss Pandya, Mr. Jonas, Secure, Mr. Harvey and Mr. Modeste had conspired together to cause it harm by unlawful means. Mr. Solomon submitted that the conspiracy should be inferred from the totality of the evidence put before me. 101.          It is, as it seems to me, obvious from the findings which I have already recorded that Miss Pandya and Mr. Jonas conspired together to put into operation the theft of the money from Colliers which I have found proved. The inducement by Mr. Jonas of the breaches of contract on the part of Miss Pandya, which breaches she willingly committed as a result of that inducement, in fact amount to a conspiracy to cause harm to Colliers by unlawful means. The evidence indicated, and I find, that each of them was involved from the outset of the scheme, and thus that the conspiracy between them ante-dated the putting of the scheme into operation. 102.          No additional damages are due from either Miss Pandya or Mr. Jonas to Colliers as a result of that finding of conspiracy. 103.          From the perspective of conspiracy, the roles of each of Secure, Mr. Modeste and Mr. Harvey need to be considered carefully. Each of them was in fact but a conduit by which monies extracted from Colliers became realisable in the hands of, on the evidence, Mr. Jonas. It was not, therefore, necessary for any of them to have been aware of the precise mechanism by which the cheques which were given to each had been obtained or of the respective roles of Miss Pandya and Mr. Jonas. 104.          So far as Mr. Harvey is concerned, he was the recipient of but one cheque. Miss Pandya and Mr. Jonas obviously thought that he could be used on the one occasion and then discarded. That that seems to have happened suggests, in my judgment, that he was not a party to some overarching conspiracy, but just someone who was content to be of service on one occasion. In my view the evidence did not justify the conclusion that Mr. Harvey was party to a conspiracy to harm Colliers by unlawful means. Mr. Solomon relied heavily, in support of Colliers’ case against Mr. Harvey in conspiracy, upon the fact that Mr. Harvey had taken no part whatsoever in this action and had not sought to challenge the freezing order made against him. While, factually, what Mr. Solomon submitted was correct, it does not seem to me that it can or should be inferred from those circumstances that Mr. Harvey was a party to a conspiracy. 105.          Mr. Modeste was not the first person used as a mechanism for cashing cheques stolen from Colliers. The first person of whom there was evidence of use for that purpose was Mr. Harvey. That fact suggests, in my judgment, that he was not involved in the initial agreement between Miss Pandya and Mr. Jonas which constituted the conspiracy which I have found. Thus, if Mr. Modeste was a party to a conspiracy, it was a conspiracy later in time than that which preceded the putting into operation of the scheme to steal money from Colliers. It is obviously possible, as a matter of law, for a party to join a conspiracy after it has been formed, but in principle, as it seems to me, the mechanism for so doing must in theory be the making of a fresh conspiracy, for it cannot be right that a person joining a conspiracy already in operation should thereby be rendered liable for the operation of the conspiracy prior to joining it. 106.          There was no evidence to support the inference of any such later conspiracy including Mr. Modeste. The fact that Miss Pandya and Mr. Jonas decided in the autumn of 2006 no longer to use the services of Mr. Modeste, but to steer cheques via Secure, without him complaining or, so far as the evidence went, continuing to receive any part of the proceeds of the thefts, seems to be inconsistent with him being a party to a conspiracy, as opposed to an abetter of the dishonest scheme. Mr. Solomon submitted that Mr. Modeste’s lies during the course of this action, and in particular during his cross-examination, supported the inference that he was a party to the conspiracy. In my judgment it does not. His lies seem to me to be entirely explicable on the basis that he was seeking to absolve himself from his involvement in receiving and realising cheques obtained dishonestly. They are no evidence that he knew, or was a participant in, the details of the underlying scheme. 107.          In the result I am not satisfied that the evidence justified the conclusion that Mr. Modeste was liable to Colliers for damages for conspiracy. 108.          The position of Secure was somewhat more complicated. As it was, on the evidence, the creature of Miss Pandya and Mr. Jonas, it knew what they knew. However, they only became respectively the company secretary and director of Secure on 3 April 2006 and the earliest cheque drawn payable to Secure was that dated 18 September 2006 in the sum of £2,169.19. The chronology thus demonstrated that Secure could not have been a party to the initial agreement between Miss Pandya and Mr. Jonas. It may well be appropriate to conclude that Secure, Miss Pandya and Mr. Jonas made an agreement to cause harm to Colliers by unlawful means at a date after the initial conspiracy – probably at about the time cheques ceased to be drawn payable to Mr. Modeste and started to be drawn payable to Secure, so in the autumn of 2006. However, no such second conspiracy was pleaded on behalf of Colliers and, even if it had been, it does not appear that, in practical terms, there would have been any benefit to Colliers, for the sums for which Secure would have been liable would almost certainly have been those for which I have found Secure was liable as money had and received.  The purging of Mr. Modeste’s contempt and the discharge of the suspended warrant of committal 109.          The order of Dobbs J, at paragraph 4, provided for the discharge of the suspended warrant of committal if Mr. Modeste performed his undertaking to transfer £28,500 to the Abbey Account by 4.30 on 20 June 2008 and complied with the order of King J made on 3 October 2007. Save that the transfer of the money, for reasons outside the control of Mr. Modeste, did not take place by the date specified in the undertaking, as I understand it it is not in dispute that Mr. Modeste has satisfied the conditions for the discharge of the suspended warrant of committal. In the circumstances it is appropriate for me to declare that Mr. Modeste has purged his contempt and to discharge the warrant of committal. Conclusions 110.          Mr. Modeste is given permission to re-amend his Defence in accordance with the draft submitted by Miss Parke during her closing submissions. 111.          There will be judgment for Colliers against:- (i)      Miss Pandya in the sum of £158,925.87; (ii)    Secure in the sum of £102,590.33; (iii)   Mr. Jonas in the sum of £158,925.87; (iv)         Mr. Modeste in the sum of £39,805.23; (v)    Mr. Harvey in the sum of £6,000.00. Each of those sums will bear interest at a rate or rates and for a period or periods as to which I will hear Counsel. 112.          The Part 20 claims of Mr. Modeste against Miss Pandya and Mr. Jonas are dismissed. 113.          I declare that Mr. Modeste has purged his contempt and the suspended warrant of committal in respect of him is discharged.