At 3.10 p.m. on 29 August 2007, Mr S. sent an e-mail to Ms T. stating that:
‘The documents cannot be signed by proxy, they have to be signed by the directors. Please forward me your bank details and I will transfer the funds to pay the dues based on the following:

• deeds of sale executed by the administrators. These will be transferred tomorrow. They are not for comment and are subject to the Takeover Rules;
• proof of good conduct and capacity of the companies. Upon receipt of the same I request an undertaking from YOUR ATTORNEYS that the share certificates will be issued to’.
  In this e-mail, Mr. S. made it clear to T&F that the documents were non-negotiable. He also had the documents signed on the condition that T&F’s invoice would be paid.
  
• Fladgate Fielder & Tax & Finance

The reference in Mr S.’s e-mail to “YOUR ADVOCATES” was to T&F’s lawyers, Fladgate Fielder. I consider that T&F was concerned about its responsibilities and role in the Transaction and therefore sought advice from M. B., a partner of Fladgate Fielder at the end of August 2007.
Despite M.’s representations, M. was always aware that Fladgate Fielder was acting for T&F and not for me or B. or W. or Z. This is evident from Mr B.’s e-mail to Mr S. sent at 11.49 a.m. on 30 August 2007, in which Mr B. of Fladgate Fielder states:
‘K., I confirm that I have received instructions from T&F.’
It is also clear from Fladgate Fielder’s invoice addressed to T&F that T&F is their customer.
T&F also confirms the same in Ms T’s email sent at 9.15 a.m. on 30 August 2007, in which T&F informs Mr S.:
‘Please note that our lawyers, Fladgate Fielders, will be contacting you shortly regarding yesterday’s e-mails.’
As I made clear earlier, I had not seen the various versions of the drafts of the Settlement documents.

I note from the documents I have seen that Mr. S. forwarded the ‘updated’ documents of ‘Draft T.’ to Ms. T. at 4.21 p.m. on 29 August 2007 following receipt by W. at 10.35 p.m. the night before. The Share Purchase Agreement that seems to have been attached to that e-mail was Draft W. 6. I know from my lawyers that the defendants did not, however, disclose the main e-mail sent by Mr C. to W. at 10.35 p.m. on 28 August 2007 in their list of documents disclosed on 22 December 2007.
Accordingly, I cannot be clear as to whether it was Draft W. 6 attached to Mr C.’s e-mail.
In any event, I was informed by my solicitors that in Draft W. 6, Draft 5 Waiver remained the same, but Draft 5 Indemnification had been amended again so that paragraph 2.1 of Schedule 2 ‘Deed of Waiver C.’ read:
‘Pursuant to clause 3.3, the Borrower shall indemnify the Purchaser and Mr E. for the amount by which the Completion Net Assets determined in accordance with the Schedule to this Deed is less than £[ ], such amount to be paid 85% to the Purchaser and 15% to Mr E.’
The words highlighted above are the additional words that were added to this provision by Draft 5.

It is interesting to have seen the documents attached to this e-mail in the defendants’ declaration and in particular to note the long “List of Documents – Project T.” entitled “Draft (4) 28 August 07”, as I had never seen a number of these before nor had I been informed of their existence or potential existence. In particular, documents such as the verification notes were never mentioned to me.
Indeed, I note from Mr S.’s e-mail to Ms T. sent at 4.28 p.m. on 29 August 2007 that Mr S. was very aggressive in his approach to T&F. I did not appreciate this at the time. In this e-mail, Mr S. referred to a ‘confidential document’ which ‘is not for your eyes’ and stated that ‘you appear to be unaware of the Takeover Panel which does not allow indiscriminate disclosure of documentation.’ He further threatens that he is ‘instructed that this conduct is seriously threatening to undermine this Transaction. I urge you to review your position very carefully and respond in a timely manner.’
I have now seen a copy of Ms. T.’s Draft Response, which she sent to her boss, A. P., to review and get his comments. From the handwritten note at the top right of this email, it would appear that this Draft was never finalised and:
‘Never sent to K. S. since Mr B. was involved’.

As explained above, T&F sought advice from Mr. B. of Fladgate Fielder as to its position and liability in the Transaction, in order to protect itself professionally in respect of its duty of care as directors, not advisers or lawyers, to the major shareholders (i.e. B. and W.) of Q.
T&F was clearly concerned about the Transaction, as Ms T. points out in her draft e-mail:
‘Finally, we will review the documents attached to your e-mail entitled ‘Updated T. Project Documents’ and return them shortly in a separate packet. Neither L. nor T&F ever received these documents before today and therefore they have not been approved by the Board of Directors of the Company.’
A complaint has been lodged with Scotland Yard on the matter.