Mr W. H., as Barnaby’s sole director, signed the Irrevocable Undertaking Deed on 31 August 2007 (see pages 1101 – 1106 of AC 1). I understand that Mr W H had not, in any event, viewed the Offer Document (defined therein), and that Mr W H could not therefore have been unaware at the time of signing the Deed of Irrevocable Undertaking that the total consideration Barnaby would receive was no longer £2,500,000 (less £199,000 which was to be paid to W). There is no evidence in the Defendants’ statement as to whether the Offer Document was shared with T. & F. and/or the directors of Barnaby or W.

At the time the Barnaby Irrevocable Undertaking Deed was signed, T. & F. was clearly not aware that Barnaby would not receive £2,500,000 in consideration. This is evident from the documents that T. & F. faxed to me on 31 August 2007 (see pages 1107 – 1110 of AC 1). The fax that T. & F. sent to me referred only to a change in connection with the payment of the amounts in M.’s customer account.
On the cover of the fax (which was in Italian) it was written: ‘……M. de R. has again modified the terms of the contract by proposing to use their customer account to receive the funds generated by the Transaction. Therefore, these funds will then be transferred directly to the account indicated in the attached letters. Accordingly, we have prepared new letters of instruction which you will find attached and which we kindly ask you to sign and forward the one relating to Barnaby to D., who should sign it…’
The letter of instruction for Barnaby (and erroneously for W.) which T. & F. enclosed with that fax and for which he wanted my signature stated that:

• Barnaby could sign all the documents received from M., including, inter alia, the Share Purchase Agreement;
• M. could be appointed by Barnaby to receive the sums in his client account which, to the best of T. & F.’s knowledge, amounted to £276,488.36 (i.e. 1 penny per share for Barnaby’s shares), “plus an outstanding balance of approximately £2,024,511.64 (i.e. £2,500,000 less £199,000 less £276,488.36), once the sale of the shares had been completed” [italics mine];
• M. was to be instructed to release the funds, less any bank charges, to a B. Bank in Munich.
  It is therefore clear from the fax and the enclosed letters of instruction that T. & F., Barnaby, W. and myself as at 31 August 2007 were still convinced that we would still receive the initial consideration for the shares (£2,500,000) upon completion. I also remained convinced (and was not told otherwise under any circumstances) that I would receive the balance of the consideration due to me as set out in B. M.’s Offer, plus the Three Debts.

The last line of these instructions requested my confirmation that I had received independent legal advice on the Transaction. I have always believed that M was advising me (among others) on the Transaction. A copy of Barnaby’s instructions which I signed is on page 1111 of AC 1. At no stage did M. inform me, Barnaby, or W. (or their agents T. & F.) that the consideration for the Transaction had changed.
Ms T. sent Mr S. a signed Power of Attorney for W. and a signed Power of Attorney for Barnaby together with directions regarding the transfer of funds from M.’s client account to the requested bank accounts contained therein, at 2.06 p.m. on 31 August 2007 (see pages 1112 – 1123 of AC 1).

Barnaby’s irrevocable Deed of Undertaking signed by Mr W. H., as Barnaby’s sole director, was forwarded by Ms T. to Mr S. at 3.21pm on 31 August 2007 (see pages 1124 – 1131 of AC 1). At 3.23 p.m. she subsequently forwarded to M. a letter of instruction signed by Barnaby and one for W. regarding both M.’s client account and the receipt of the proceeds of the Transaction; a Deed of Waiver signed by W.; a Deed of Waiver signed by Barnaby; and Resolutions signed for both Barnaby and W. (see pages 1132 – 1143 of AC 1).
While the Barnaby Waiver Deed was signed by Mr W. H. on 31 August 2007, I note that Mr S. signed another copy of the Waiver Deed under the Barnaby Power of Attorney on 1 September 2007 (see p. 1739). I do not understand why it was necessary for Mr S. to sign the document the next day under the Barnaby Power of Attorney, when it had already been signed by a director of Barnaby the day before.
As can be seen from Barnaby’s Letter of Instruction, sent at 3.21 p.m. on 31 August 2007, T. & F., Barnaby, W. and the undersigned believed that £ 2,301,000 would be paid into the client account M. on behalf of Barnaby. The balance of £ 199,000 would be received by M. in his client account on behalf of W.

Consequently, quite clearly, Mr W. H. signed Barnaby’s Deed of Irrevocable Undertaking only on the basis that the total consideration for the shares themselves would be £2,500,000.
A complaint was lodged with Scotland Yard about the matter.