54. A more likely explanation, and the one I accept, is that he saw the undertakings after speaking to his clients, but did not regard them as satisfactory, because they did not cover interest pending receipt of the funds on Tuesday. The question is, had the defendants drafted the email in such a way as to accept the undertakings, as a matter of law, would such acceptance have been effective upon the sending of the email at 18:00, as the claimants argue by analogy to the "postal rule"? The claimants invite the court to infer that a conversation took place at around 16:00 between Mr Cusack and Mr Ward in which the method of completion was agreed. Hence, it is submitted, the alleged negligence even if proved, did not cause the claimants any loss. It offered an "escape route" from financial constraints and a difficult situation. You can filter on reading intentions from the list, as well as view them within your profile. The defendants say, again in my view rightly, that as matter of fact Mr Ward had not "always said that I believed that completion had occurred". Although this is not wholly satisfactory in some respects, the fact is that neither of them recall making or receiving a phone call from the other at this time. Mr Wilson mentioned that he had also spoken to Mr Elrick who expressed the view that the projected reduction in business would mean that revenues would be inadequate to sustain the transaction which would have to be called off. 14. All was in jeopardy at that moment." Mr Thomas and Mr Gander would not have contemplated leaving Mr Wilson or PDP facing ruin. The defendants submit that none of this provides evidence that such a conversation took place between Mr Ward and Mr Cusack, and in particular provides no evidence that Mr Ward was expecting a "pair of undertakings". (It appears that this percentage had been rising prior to August 2007.) 29. Moreover the defendants submit, if a call had been made making completion, it would be natural for Mr Ward to raise the question of interest which was covered in the subsequent email sent by Mr Dew. To the extent that he did so, I shall have to consider whether his opinion is admissible in this respect. I also accept Mr Hindley's evidence that there is a very significant reduction in the level of multiples paid for small companies as opposed to larger companies. Mr Gander carefully devised the conversation, the defendants submit, to put Mr Ward on the horns of an apparent dilemma how to explain that Mr Elrick was entitled to his arrangement fee if the Bank was not entitled to its arrangement fee. Get 2 points on providing a valid reason for the above change. The facts as I find them to be are as follows. 70. Had the transaction gone forward, the business would have had to carry the cost of the bank lending on much diminished revenue. Mrs Thomas and Mrs Gander provided witness statements, but they were not subject to cross examination, and so were not called. It is convenient to begin by setting out a summary of the claimants' case from their opening. 12. At 08:01 Mr Elrick emailed Mr Cusack and Mr Knight at Rickerbys saying: 59. Commenting on the experts' views as to the expected loss of turnover which was 1m in the view of the claimants' expert and 0.5m in the view of the defendants' expert, the claimants said in closing that, "it is more like one and a half million that is lost, from four and a half million down to about three million". I should say that Mr Dew and Mr Cusack have since moved to new firms. swarb.co.uk is published by David Swarbrick of 10 Halifax Road, Brighouse West Yorkshire HD6 2AG. In order to provide an undertaking on behalf of his firm, Mr Cusack had to obtain approval from a partner, which again he did. It could not go ahead because of the problem that emerged that morning as regards the company's cash flow. 10. I should say at this point of time that Mr Ward, Mr Dew and Mr Cusack gave evidence for the defendants at trial. In short, the court held that the postal rule did not apply to an email, as it had been established by authority that it did not apply to other instantaneous forms of communication, like telexes (Entores [1955] 2 Q.B . In the absence of clear evidence that this conversation took place, I do not feel able to draw an inference that it did. Thomas v BPE Solicitors (A Firm) High Court. At 15.00, Mr Ward says that he still did not know whether completion was likely to take place that day or the following week. The contemporaneous material shows that what was agreed was an undertaking to transfer the funds to the defendants' account on Tuesday, and that thereafter, a call between Mr Cusack and Mr Ward was required to complete the transaction. All Rights Reserved. If the forecast figures for the three years to 31 March 2009 are used, and these may or may not be maintainable profits, the minimum value of the company is 3,455,000 and the maximum value is 5,520,000 using 5 or 8 as a profit multiple respectively. 24. He says at one point, "the deal did complete and therefore whatever is due under that contract with Ken is payable". Bernuth Lines Limited v High Seas Shipping Ltd. This says among other things that, "The aim was to complete on Thursday 23 August but the paperwork was not in place and during the course of the following day, Friday 24 August it was apparent that Rickerbys were working to finalise the documentation with the bank. This is a claim by the claimants, Mr David Thomas and Mr Peter Gander, against their former solicitors, BPE Solicitors, which is a firm with offices in Cheltenham and elsewhere. A Staffordshire firm of solicitors called Knight & Sons acted on behalf of National Westminster Bank Plc (part of the Royal Bank of Scotland group), which provided finance for the transaction and also for RBSIF (Royal Bank of Scotland Invoice Financing Limited) which was to take over the factoring business from Close. (3) If completion did not occur because of the non-acceptance, or rejection of, the purchaser's solicitors' undertaking, was this negligent on the part of the defendants ("the non-acceptance of undertaking issue")?

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