CHARLES NICHOLAS v. INTERBREW UK LIMITED
OUTER HOUSE, COURT OF SESSION [2005] CSOH 158 |
A1283/03 | OPINION OF LORD MENZIES in the cause CHARLES NICHOLAS Pursuer; against INTERBREW UK LIMITED Defenders: ________________ |
Pursuer: Currie, Q.C., Kinroy, Q.C.; Brodies
Defenders: P Davies; Harper MacLeod
23 November 2005
Introduction
[1]The pursuer is a television presenter and sports journalist. He was formerly a professional footballer. In this action he seeks reduction of two documents, each of which bears to be a guarantee granted by him in favour of Bass Brewers Limited. The ground on which the pursuer seeks reduction of these documents is that he did not sign them, the signature which bears to be his being in each case a forgery. These documents are largely in standard form. The first, which bears to have been executed on 20 January 1999 and registered in the Books of Council and Session for preservation and execution on 4 April 2002 had as its principal intended effect a guarantee by the pursuer to pay to Bass Brewers Limited on demand all sums of money which then were or would thereafter become due to them from a company named Jimmy Nick's Properties Limited, having its address at 149A Balgrayhill Road, Glasgow. This was a company in which the pursuer had invested some of his money. The second document also bears to be a guarantee, executed on 17 May 2000 and registered in the Book of Council and Session for preservation and execution on 19 February 2001, the principal intended effect of which was to bind the pursuer to pay on demand all sums of money which then were or would thereafter become due to Bass Brewers Limited from Jimmy Nick's (Properties) Limited, of the same address. In addition to reduction of these two deeds, the pursuer has ancillary conclusions for interdict against the defenders from doing diligence on the guarantee purportedly granted on 20 January 1999, for interdict against the defenders from doing any diligence on a charge for payment dated 15 May 2003, and for suspension of a warrant for diligence and a charge for payment. The defenders are the assignees in two assignations by Bass Brewers Limited of the creditors' interest in these purported guarantees. The defenders' position, on record and at proof, was that the signatures on these guarantees were truly the signatures of the pursuer, and that decree of reduction, interdict and suspension should be refused. In any event, the defenders maintained that the pursuer was personally barred from pursuing this action by virtue of having adopted the guarantees, and further by mora, taciturnity and acquiescence.
The Evidence
[2]Both parties were agreed that this case turns in large part upon the credibility and reliability of the various witnesses. It is therefore appropriate that I should set out in rather more detail than normal the evidence before me.
(i) The Pursuer
[3]As at the date of the proof the pursuer was aged 43 and worked as a television presenter and sports journalist. His career as a professional footballer began with Celtic in 1979, after which he played for clubs in London and Aberdeen before returning to Celtic between 1990 and 1995. Thereafter he had a short period of coaching football, after which he concentrated on his career in the media. He was a friend of a man named Jim Milligan. Mr Milligan stayed with the pursuer's mother and father for about three years, and he was treated as a member of the Nicholas family and as a brother to the pursuer. During the 1980s and 1990s Mr Milligan ran a business known as Jimmy Nick's, which owned and operated a number of public houses in the West of Scotland. In the late 1980s, when the pursuer was still involved full-time as a professional footballer, he invested a sum of money (about £60,000 or £70,000) in Mr Milligan's business, at about the time when the business bought its first pub. The pursuer stated he was simply an investor in the business - he was not a director, and he denied being a shareholder in the company. By the late 1990s the business had acquired more public houses, but the pursuer stated that he was not interested in becoming involved in the business - his investment had already been made, and his eye was on other matters. Although the pursuer helped out with bills occasionally if he had some spare cash, he was not interested or involved in the running of the business. Mr Milligan ran the business, with help from Frank Boyle who was the secretary and Richard Cleary who was the in-house accountant. The business had an office in Balgrayhill, Springburn. As a well known personality, the pursuer would occasionally assist the business in its public relations with the media, but he took no other involvement. When he had spare time in the afternoon he would spend some time with Mr Milligan in the office, but this was purely on a social basis. They would have lunch and Mr Milligan would tell the pursuer how things were going, but the pursuer was more interested in the property of the business.
[4]During the 1990s the pursuer had a problem with Mr Milligan, because Mr Milligan forged the pursuer's signature on personal guarantees in favour of Alloa Breweries, when Mr Milligan was negotiating deals with the brewers. The pursuer discovered personal guarantees in his name which he had not signed. He raised an action in the Court of Session to reduce these guarantees, which action was eventually settled before proof. The pursuer found this action a very unpleasant experience, and after it he felt difficulty in staying as an investor in Mr Milligan's business. He was asked if he was a 50% shareholder in the business, and he replied he did not know - as far as he was concerned he was simply an investor, and it was up to Jim Milligan to structure this investment as he wanted it. Eventually Mr Milligan disappeared; as at the date of the proof the pursuer had had no recent contact with him, and did not know where he was. Frank Boyle, the secretary of the business, had also disappeared and similarly the pursuer had no knowledge of his whereabouts. After Mr Milligan disappeared, Richard Cleary spoke to the pursuer and told him that the business had a problem. The pursuer had a meeting with representatives of the defenders who told him that they had a personal guarantee signed by him guaranteeing the debts of the business. The pursuer consulted a solicitor, Mr Frank Collins, who told the pursuer that it looked as if the same thing had happened again - i.e. that Mr Milligan had forged the pursuer's signature on a personal guarantee. (Mr Collins has since also disappeared; the pursuer has no knowledge of his whereabouts and it appears that he has ceased to practice as a solicitor.) The pursuer was shown the document which bears to be a personal guarantee signed by him on 20 January 1999 (a copy of which is No.7/52 of Process and the principal of which is No.20/1 of Process); he denied that the signature on that document was his and he denied that he had signed any document on 20 January 1999 witnessed by Gillian Toner. He was then shown the document bearing to be a personal guarantee signed by him on 17 May 2000 (a copy of which is No.6/1 of Process and the principal of which is No.20/2 of Process); again he denied that the signature on that document was his, and he denied he had signed any document witnessed by Jim Milligan on 17 May 2000.
[5]The pursuer stated he knew Alistair Bowie, who was a solicitor and a partner in the firm of Hennessy Bowie. He agreed that Mr Bowie was probably the solicitor for the business of Jimmy Nick's - Mr Milligan and Mr Bowie had a relationship going back some years, but the pursuer did not know Mr Bowie well. He was not aware of having been at Mr Bowie's office at 2 Kenmure Lane, Bishopbriggs before February 1999 - if he had been there it would have been on a social basis. He had no recollection of being there on 20 January 1999. He did not know at that time that Mr Milligan wanted to increase the borrowings of the business, although Mr Milligan told the pursuer of this at a later stage. Before 20 January 1999 the pursuer was not aware of having had any direct contact with Mr Bowie, either by phone, letter or otherwise, and no one had told him that he needed to give a personal guarantee. He was not interested in the structure of the business and he would not have been prepared to put anything else at risk.
[6]The pursuer was shown certain documentary productions regarding the events surrounding 20 January 1999. Production No.7/100 was a file note compiled by Mr Bowie recording that "in the next couple of days he will need to see Jim, probably Frank and Charlie Nicholas is to sign some stuff as well, so could he phone FB tomorrow". It went on to record that "Frank phoned back. He will check when Jim and Charlie Nicholas will be available and phone back". The pursuer explained that Frank Boyle was a very old friend of Jim Milligan, but that he would not phone the pursuer. Jim Milligan did not mention that the pursuer needed to see Mr Bowie and sign anything. No.7/105 of Process was a fax message from Wright Johnston and MacKenzie on behalf of the brewers to Hennessy Bowie & Co dated 20 January 1999, referring to Hennessy Bowie's phone call earlier that date and stating that their clients confirm that they require a personal guarantee from Mr Nicholas. The pursuer said that he was not told about this. No.7/106 of Process was a fax transmission dated 21 January 1999 from Mr Bowie to Mr Milligan enclosing a copy of the previous fax (No.7/105 of Process) stating inter alia "You will see they do want Charlie's guarantee, so I am assuming it is in order to deliver this to them to ensure that matters proceed. If that is not the case, please phone today". The pursuer denied having had any discussion with Jim Milligan on 21 January 1999 regarding the provision by him of a personal guarantee, and observed that he would not have had any chat about a personal guarantee. No.7/120 of Process is a file copy of a letter apparently written by Mr Bowie to the pursuer and dated 25 January 1999. This file copy letter is in the following terms:
"Dear Charlie
TCB
Further to the meeting here on 20 January when various documents were signed in relation to borrowings by Jimmy Nick's Properties Limited, I am enclosing a copy of the guarantee you signed. As you know, we did try to suggest to TCB's lawyers that as you were neither a director nor secretary, you should not be asked to provide a guarantee but as you are aware from the brewers' terms of agreement letter, they did wish this".
The pursuer stated that he was not aware of ever receiving a letter in these terms. He stated that it was possible that it was sent but that he was never aware of it, because he was "not great with mail". At that time he was receiving over 100 letters per week, including fan mail, confirmation of appearances, promotions, bills and the like. His wife opened most of the post, as he was not very quick in responding to mail. When he was asked how clear he was that he was not aware of this letter he said that he was very clear: he was unaware of any suggestion by Mr Bowie that he might not require to sign a personal guarantee, he was not aware of the brewers' terms of agreement letter, and no question of a personal guarantee being signed by him was ever raised. Mr Bowie was not in the habit of contacting him directly about the affairs of Jimmy Nick's.
[7]The pursuer was again shown No.7/52 of Process and confirmed that he lived at 14 Islay Drive, Newton Mearns and had never lived at 12 Eccles Street, Springburn. He had no recollection of ever having met the office junior at Messrs Hennessy Bowie. He had no recollection of her ever having witnessed his signature on a document or of his confirming that a signature on a document was his. Although he could not remember the date, he did remember being in Mr Bowie's office when Jim Milligan and Frank Boyle were signing some documents. He was there in a social capacity - he was in the company of Mr Milligan and Mr Boyle and was going to stay outside but they told him to come into the office. His mobile phone rang while he was in Mr Bowie's office; the caller was from one of the newspapers for whom he wrote a column. At that time he wrote a column for the Daily Record or the Daily Express; the column was "ghost-written" by a journalist on the basis of information given by the pursuer over the telephone. The pursuer would answer questions put to him by the journalist over the phone; this was a lengthy process which could involve him being on the telephone for up to 40 minutes. The pursuer spent most of his time in Mr Bowie's office on this occasion on his mobile telephone. He remembered a girl coming into the room. He did not know who she was and he did not speak to her. He signed no document in Mr Bowie's office.
[8]With regard to the events surrounding 17 May 2000, the pursuer said that Mr Milligan had told him that he had a problem over a VAT bill, but he was not aware that Mr Milligan required further funds for the business by means of a loan from the brewers. Mr Milligan did not ask the pursuer to sign a personal guarantee in May 2000. The pursuer was shown No.7/258 of Process, which was a file note from Hennessy Bowie's files dated 16 May 2000, in which it was indicated that Jim Murphy was having a meeting with the pursuer at 11.30 that morning regarding a loan from the brewers and the need to pay monies to Customs and Excise. The pursuer was not aware of any of this, and did not recollect any meeting with Mr Murphy on about 16 or 17 May 2000. Mr Murphy was the pursuer's personal accountant, and he may have met him regarding his own affairs, but he had no recollection of Mr Murphy mentioning anything about the pursuer having to sign a personal guarantee. The pursuer had no recollection of a meeting on 17 May 2000 at the offices of Jimmy Nick's attended by Mr Bowie, and when shown No. 7/267 of Process had no recollection of being at Kenmure House on 16 or 17 May 2000. Again the pursuer observed that he had never lived in Springburn and at no time was 12 Eccles Street, Springburn his address - in May 2000 he was still living in Islay Drive in Newton Mearns. He was shown No.6/1 of Process and recognised Mr Milligan's signature, with which he was fairly familiar. He observed that Mr Milligan would sign other people's names on footballs or football shirts for charity when he could not get the people themselves to put their signatures on these items. The pursuer denied signing any document in the presence of Jim Milligan on 17 May 2000 and denied acknowledging his signature. When asked if he had signed any personal guarantees on behalf of the business of Jimmy Nick's between 1990 and 2000 he replied "absolutely not".
[9]With regard to the various signatures on copy documents appended to Kathryn Thorndycraft's report (No.6/6 of Process) the pursuer stated that none of documents 1 to 5 bore his signature, and that documents 3 to 5 appeared to be taken from the documents which were the subject of his action in the Court of Session against Mr Milligan referred to earlier. Documents 6 to 13 inclusive bore his signature. Documents 14 and 15 bore signatures that he recognised as Jim Milligan's signature. None of the signatures on either of these documents was the pursuer's. With regard to item 16, the pursuer stated that he wrote this for the handwriting expert. Frank Collins told him to use the spelling which was used. Sheet C of this document comprised six of his own genuine signatures and some attempts by him to sign "Jim Milligan". The whole of document 16 was written by the pursuer.
[10]In cross-examination the pursuer accepted that he was a director of a company called SN Properties Limited. He agreed that he had signed football contracts and sponsorship deals over the years and was familiar with signing personal contracts, although his agent would explain what he was signing. When he signed a document he expected it to be explained to him what he was signing. He had also signed many autographs and memorabilia, and had always signed these as Charlie Nicholas. He denied having different signatures for different occasions, and stated that if he was asked to sign Charles he would do so, but his normal signature was Charlie Nicholas. He was not sure whether he and Jim Milligan were each 50% shareholders in the company called Millnich Property Company - he remembered that name, but he regarded the money which he had given to Mr Milligan just as an investment, which he expected to get back in the long term. It was suggested to him that it was normal in such a situation to receive shares or some other acknowledgement of a loan, but he denied this and observed that he had just put in some money and it was a matter of trust - it was just an investment between friends, and he trusted Mr Milligan as a friend. He agreed that his earlier Court of Session action related to personal guarantees purportedly signed by him guaranteeing the debts of Millnich Property Company Limited, and that items 3, 4 and 5 attached to Mr McCrae's report (No.7/58 of Process) were the three documents which were the subject of his earlier Court of Session action, in which his signature was forged by Mr Milligan. He agreed that this action was an unpleasant experience and he was angry with Mr Milligan about it and regarded it as a breach of trust. He had never received his investment of about £60,000 to £70,000 back, but it was still an investment and it was still on trust. He stated that he was investing in the pubs. When it was pointed out to him that the pubs business had gone into liquidation he replied that that may be so, but the pubs were there. He had heard of the name Jimmy Nick's Properties Limited but did not know if he was a shareholder in that company and had no interest in the paperwork. He had never signed any annual return for that company and had no recollection of being a shareholder. He did not know what being a shareholder in a company involved. He accepted that he was probably young and naïve at that time.
[11]The pursuer was faced with the Closed Record in the present action and reiterated that he had never lived at 12 Eccles Street, Springburn. He denied having told his solicitors that he had invested over £100,000 in Jimmy Nick's Properties Limited - he maintained that his investment was about £100,000 overall, but it was to Jim Milligan not to a company, and it was in the late 1980s. He would attend the company's offices on a few days each week, doing nothing in particular, but merely socialising with Mr Milligan. He visited Mr Milligan in his office in Balgrayhill often, but did not visit his office in Bishopbriggs regularly. He had visited Mr Bowie's office in Bishopbriggs socially on three or four times in total, but this was with Mr Milligan on a social basis, and he had never had any professional relationship with Mr Bowie. He never consulted Mr Bowie about the business, and Mr Bowie never discussed the business with him. The only time that he ever consulted Mr Bowie professionally was when he was trying to re-mortgage his house. On this occasion he never talked to Mr Bowie about the business, and in fact he did not proceed with the re-mortgaging of house and did not instruct Mr Bowie. He was never in Mr Bowie's office to sign anything, and he stated that Mr Bowie would be wrong to say that he regularly came into his office to sign documents. He never consulted Mr Bowie on matters concerning Jimmy Nick's. He recalled being in Mr Bowie's office with Mr Milligan and Mr Boyle, but did not remember the date and would not dispute that it might have been 20 January 1999. He was sure that Mr Boyle was present on that occasion. As far as he could recollect, the first occasion on which the pursuer became aware of the existence of these alleged personal guarantees was just after a meeting with the Brewers, in about 2001. The personal guarantee was not mentioned at this meeting, and it was only when a charge was served on him that he became aware of it. He then consulted Frank Collins, and told him that he had not signed a personal guarantee. He knew nothing about any arrangements between Tennent Caledonian Breweries and Jimmy Nick's, nor any loan passing between the two. Although he saw Jim Milligan socially at this time, no such loan was ever discussed between them, nor was the pursuer ever asked to sign a personal guarantee.
[12]Regarding the meeting at Mr Bowie's office on 20 January 1999, the pursuer's position was that Mr Milligan did not drive very much, so the pursuer had probably driven him to the meeting. The pursuer had no interest in the meeting but had nothing better to do. When faced with No.7/100 of Process the pursuer re-iterated that neither Mr Boyle nor Mr Milligan ever contacted him asking him to attend at this meeting, nor was he asked to sign anything. His recollection was that he picked up Mr Milligan from his office at Balgrayhill and drove him to the solicitor's office in Bishopbriggs. Mr Boyle would have driven himself, because he always had other things to do. All three of them went into a room upstairs, when the pursuer's mobile phone rang. It was, he thought, the Daily Record and he was on the phone to them for about 40 to 45 minutes. This call began while he was in a little private room, but thereafter he was invited into Mr Bowie's office. He wasn't aware that there was a meeting in the office - he was not planning to be at any meeting and he thought that Mr Boyle and Mr Milligan had business to conduct with Mr Bowie. This was Mr Bowie's personal office, with his desk in it, and a table beside the window. The pursuer conducted his telephone conversation standing at the side of the window, as far from the desk as possible, while Mr Bowie was behind his desk and Mr Milligan sat at Mr Bowie's desk. Mr Bowie, Mr Milligan and Mr Boyle were talking but the pursuer could not hear what they were saying and took no interest in the discussion. He was not asked to sign anything, and if Mr Bowie suggested that he specifically told the pursuer to sign a guarantee Mr Bowie would be wrong. The pursuer heard no discussion about him and any personal guarantee. When he was asked if he regarded Mr Bowie as acting on his behalf he replied "Absolutely not". He remembered a girl coming into the room, but he did not notice either Mr Boyle or Mr Milligan signing documents, and he was not interested in what was going on at the desk. He saw the girl come into the room and then go out again - he did not see what she did. If she said that she witnessed his signature she would be wrong. The pursuer did not remember receiving a letter in the terms of No.7/120 of Process, and although he was not particularly good at dealing with mail, he would be surprised if Mr Bowie had sent him mail.
[13]Regarding the second personal guarantee, the pursuer did not know that the company had been put into provisional liquidation; he was aware that Mr Milligan had a problem with a VAT bill, but he thought that the pubs were going o.k. Regarding No.7/258 of Process, the pursuer re-iterated that he knew Jim Murphy who was his personal accountant. Although he could not remember dates, it might have been the case that he had a meeting with Mr Murphy on 16 May 2000, but Mr Murphy did not discuss with him any problems of Jimmy Nick's Properties and mentioned nothing about any loan from the Brewers. He was not often in the office at Kenmure Gardens and agreed that it was unusual for him to visit there. He did not remember signing any documents there and he re-iterated that Mr Bowie never acted on his behalf or gave him any professional advice. The pursuer was shown No.7/344 of Process, which was a letter from Hennessy Bowie and Co dated 9 August 2001 to Messrs Harper MacLeod, solicitors acting on behalf of Bass Brewers Limited. In this letter Mr Bowie stated:
"As you are most likely aware, we do not act for Mr Nicholas in this matter and his is represented by Messrs Collins & Co, who we believe are in correspondence with you. On Mr Nicholas' specific instructions that he does not wish any breach of his client confidentiality and as such we, of course, have to observe that wish".
The pursuer denied that he gave any specific instructions to Mr Bowie to respect client confidentiality - he said that Mr Bowie was not his solicitor and so no question of client confidentiality arose, and he never gave Mr Bowie any instructions on anything.
[14]With regard to the documents appended to No.6/6 of Process, the pursuer stated that document 14 was not received by him, it was received by Frank Collins who asked the pursuer to come to his office. The pursuer was not present when document 14 was written nor when the signatures appended were written. It was not in his handwriting. With regard to document 16, Mr Collins dictated this and spelled certain words to the pursuer. The pursuer stated that he felt a bit unnatural when writing this. In answer to a question from the Court, the pursuer said that the investment which he made with Mr Milligan was his only investment, except for contributions to his pension scheme. In re-examination he stated that this was self-invested pension scheme which was run on the basis of advice from a friend who worked with Rothschilds.
(ii) Mrs Claire Nicholas
[15]Mrs Nicholas was aged 40 at the date of the proof and had been married to the pursuer for 16 years. She confirmed that they lived at 14 Islay Drive, Newton Mearns. She said that in the period 1999/2000 about five or six letters per day would arrive at the house, comprising bills, letters for the pursuer's appearances, fan mail etc. She was aware that the pursuer had an investment with Jim Milligan in pubs, but he did not take any part in that business and she was not aware of any correspondence about that business having come to the house. Jim Milligan and an accountant took responsibility for the day to day running of the pubs, and the pursuer's involvement was confined to social involvement with Mr Milligan, probably for lunch. She agreed that the pursuer was not very good at opening letters, and that he tended to leave mail unopened and piling up. When she married him, his mail was "absolutely awful" - he had a boot full of fan mail, either opened and not replied or unopened, and there were cheques in his favour which he had not banked in the boot as well. She was asked how likely it was that if mail was sent from a solicitor regarding Jim Milligan's business to the pursuer in about 1999 or 2000 that it would remain unopened, and she replied very likely. Quite often if the pursuer was away she would open the mail. She was shown No.7/120 of Process, but she did not open or read this letter. If she had read it, she would certainly have question the pursuer, as he had always told her that he would never sign anything which would jeopardise their family home or anything like that. She did not remember any mail regarding the pursuer's dealings with Mr Milligan coming to the house, because the pursuer really didn't have anything to do with that business. In cross-examination she was asked whether the pursuer would sometimes open mail without her seeing it, and she replied that this was not the case - normally the pursuer left mail in a corner of the kitchen; he did not file things away immediately, and she would have to tidy it away or bin it. If an official looking letter arrived, if he had left it for a couple of days she would have opened it. If he had opened it, it would be left lying about and she would see it. She said that she would sometimes meet the pursuer after his training and have lunch with him, sometimes with Mr Milligan. They would be out together in the afternoon three or four times per week or less. In re-examination she was asked to mark the pursuer for efficiency in looking after his mail, on a score of 1 to 10. She gave him nought.
(iii) Robin MacPherson
[16]Mr MacPherson was a solicitor aged 45 and a partner of Brodies LLP, who act on behalf of the pursuer in this action. Mr MacPherson had acted for the pursuer since about the middle of 2003, prior to which date another partner had dealt with this litigation. Initially the firm's instruction came from Mr Frank Collins of Collins & Co, Solicitors, but gradually it became more and more difficult to communicate with Mr Collins and Brodies started acting directly for the pursuer from about the end of 2003. Mr MacPherson said that as time passed, Mr Collins became more and more difficult to contact. Mr MacPherson would write to him asking him to contact Brodies, with no response. Eventually Mr Collins ceased to be listed in the directory of Solicitors. Mr MacPherson attempted to contact Mr Collins through the Law Society of Scotland, who refused to divulge his home address. Private Investigators were instructed to find him, with no success. Mr MacPherson also confirmed that Jim Milligan disappeared for a while; Brodies instructed Sheriff Officers and Private Investigators to try to find him and cite him as a witness, without success. Eventually Mr MacPherson learned through Jim Murphy, who was the pursuer's accountant and also acted for Mr Milligan, that Mr Milligan was prepared to meet Mr MacPherson.
[17]Mr MacPherson held a meeting with Jim Milligan at the Mariott Hotel near Edinburgh Airport on 3 September 2004. No.6/10 of Process comprised Mr MacPherson's handwritten notes in preparation for that meeting, and No.6/11 of Process were his handwritten notes recording what was said at that meeting. No.6/15 of Process was an affidavit sworn by Mr Milligan on 21 February 2005 in front of a Notary Public also with Brodies; Mr MacPherson stated that this affidavit was prepared on the basis of his notes of the meeting of 3 September 2004, but he himself did not prepare the affidavit, and he had not read it until the day on which he gave evidence.
[18]Mr MacPherson stated that his notes of the meeting (No.6/11 of Process) were a mixture of his own words and Mr Milligan's words; he was concerned to obtain Mr Milligan's version of events, and what he was recording was Mr Milligan's responses to Mr MacPherson's questions. He said that Mr Milligan's position, as stated to him at the meeting on 3 September 2004, was that the pursuer would probably not have known of the need for a personal guarantee before or during the meeting on 20 January 1999. Moreover, he did not think that Alistair Bowie knew that the pursuer had stated that he would not sign another personal guarantee, nor did he think that Mr Bowie was aware of the previous Court action involving Mr Milligan forging the pursuer's signatures on personal guarantees. Mr MacPherson's understanding from Mr Milligan of the events surrounding the signing of the first guarantee was that Gillian Toner, who purportedly witnessed the pursuer's signature on the first personal guarantee, did not have a clue what was going on. Mr Bowie went out of the room, Gillian Toner came into the room, Mr Milligan signed the personal guarantee as if he were the pursuer, and Miss Toner witnessed this signature outwith the presence of Mr Bowie. Mr Milligan did not remember Mr Bowie speaking to the pursuer about the personal guarantee nor explaining to him the possible consequences of his signing this. Mr MacPherson was asked for his impression of Mr Milligan's truthfulness at the meeting on 3 September 2004, and he replied that Mr Milligan was quite straightforward and spoke in an open, friendly way - nothing in his manner led Mr MacPherson to believe that he was not telling the truth. Mr MacPherson had been a Court Solicitor since 1983; he had taken statements from potential witnesses on a considerable number of occasions, and the assessment of the potential witnesses' credibility and reliability was part of his job. However, he observed that he was interested in what Mr Milligan was telling him, and was not testing Mr Milligan. Mr Milligan was well aware that he was admitting to having committed a criminal offence, and he declined to give Mr MacPherson an address or telephone number and said that he would not be willing to attend Court.
[19]Mr MacPherson was aware that there was some confusion in the instruction of Kathryn Thorndycraft, the handwriting expert instructed on behalf of the pursuer. She had originally been told that documents 3, 4 and 5 appended to her report (No.6/6 of Process) were not in issue, from which it was inferred that these were the pursuer's signatures. This was incorrect - the pursuer's position had never been that these were his signatures, and Mr Milligan admitted that he was the author of them. In cross-examination Mr MacPherson stated that he understood that the pursuer was a sleeping partner in the public house business; he got the impression that the pursuer and Jim Milligan were close friends and that the pursuer would drop in and out of the office, as much to see Mr Milligan as for any other reason. With regard to the letter of 25 January 1999 from Mr Bowie to the pursuer, Mr MacPherson said that it was Mr Milligan's position that he had had discussions with Mr Bowie, but that the pursuer was never involved in any discussions with Mr Bowie, nor did Mr Milligan discuss a personal guarantee with the pursuer. Mr MacPherson was asked if he had tried to contact Frank Boyle, but he stated that Mr Milligan had told him that he had no idea where Mr Boyle was, and he received the same response from Mr Murphy and Mr Cleary.
(iv) Affidavit from Jim Milligan
[20]As indicated above, this affidavit was sworn on 21 February 2005 at Glasgow and I allowed it to be received as a late production on the first day of the proof. It forms No.6/15 of Process and its terms are self evident and unnecessary for me to rehearse in detail here. In it Mr Milligan admits that he signed the two guarantees in question by signing the pursuer's signature. He states that Alistair Bowie had acted for the company and for Mr Milligan for years but he never acted for the pursuer as an individual. Mr Milligan remembers the pursuer being on the phone by the window while Mr Milligan was at the desk, that Mr Bowie left the room for a short period and a girl came into the room who did not have a clue about what was going on. Mr Milligan immediately signed the pursuer's name. With regard to the letter of 25 January 1999 (No.7/120 of Process), all discussions and instructions regarding this transaction came from Mr Milligan, and the pursuer would not have given Mr Bowie instructions to try to negotiate away the need for a personal guarantee from the pursuer. Mr Milligan confirmed that the pursuer was not sophisticated in business matters and bad at attending to mail. With regard to the second guarantee dated 17 May 2000, Mr Milligan's recollection was not good, but he thought that Mr Bowie was talking to either Mr Boyle or Mr Cleary in one room of the office, and Mr Milligan took the personal guarantee away, signed it himself and returned.
(v) Gillian Toner
[21]Miss Toner was aged 24 at the date of the proof and employed as a receptionist. As at 20 January 1999 she had recently celebrated her 18th birthday and was working as an office junior with Hennessy Bowie & Co. Before that job she had worked at a hairdressers, and she thought that she had worked at Hennessy Bowie for about 1 year before 20 January 1999. She had been asked to witness signatures on documents quite often, but she had never been given any training on what to do, and no one had explained to her what she should do. She confirmed that her signature appeared next to the word "witness" on the last page of No.7/52 of Process, but she had no recollection of witnessing the pursuer's signature on that date nor could she recollect seeing him in the office that day. She did not know him by sight at that time. In cross-examination she agreed that when Mr Bowie wanted her to witness a signature, he would ask her to come into the office and introduce her to the clients and ask her to witness their signature and sign her own name. She would therefore see the person whose signature Mr Bowie wanted her to witness. On occasions the person would have signed before she entered the room, but if they confirmed that the signature was theirs, she would sign as a witness. There was never an occasion where she signed without the document being signed in front of her or the signature being acknowledged as correct. She agreed that she had heard of the pursuer but she did not remember seeing him around Hennessy Bowie's offices, and she thinks that she would have recognised him if she had seen him. She did not remember witnessing a document being signed by Mr Milligan, and she agreed that she knew Mr Milligan at that time. She did not remember ever being asked to sign something which looked odd, such as a name which did not match up to the person signing it. In re-examination she confirmed that when she was asked to witness a signature by Mr Bowie, Mr Bowie would be in the room with her.
(vi) Alistair Bowie
[22]Mr Bowie was a solicitor aged 53 at the date of the proof and a partner in Hennessy Bowie, 2 Kenmure Lane, Bishopbriggs. By 1999 Jim Milligan had been a client of his for some years, as had certain of Mr Milligan's companies including Jimmy Nick's Properties Limited. In the period up to May 2000, Mr Bowie could not be certain whether the pursuer had ever been a client of his. The pursuer did consult him regarding re-mortgaging his house, but this was within the last 5 years and he could not say with certainty whether it was before or after May 2000. The pursuer was not one of the firm's best clients at dealing with correspondence from the firm. Mr Bowie accepted that the defenders were suing him for damages for professional negligence on the basis of an allegation that he was negligent in the handling of these two personal guarantees; this action was sisted at the date of the proof before me. He stated that in the years 1999 to 2000 if he needed to contact somebody regarding Jimmy Nick's, he would contact either Jim Milligan or Frank Boyle, and if not them, Richard Cleary - it was Mr Milligan who was in charge of the day to day running of the business.
[23]Mr Bowie was shown numerous items of correspondence, faxes and file notes surrounding the loans from the brewery to Jimmy Nick's, and he stated that although he could not remember the details of the correspondence, he could remember the meeting in his office when the first guarantee was signed. He was shown No.7/100 of Process, a copy of his file note of 19 January 1999, and he confirmed that he would normally phone Frank Boyle or Jim Milligan or Richard Cleary and they would speak to the others. He was shown a fax message to him from Wright Johnston and MacKenzie dated 20 January 1999 which was No.7/105 of Process and was asked whether the meeting at which the personal guarantee was signed had finished before he received this; he said no, he would not have proceeded with the meeting without this confirmation. It was pointed out to him that this fax appeared to bear the time 17.13 on 20 January 1999, and he accepted that if that was the date of the meeting, it would have concluded some time before this fax was sent. The meeting finished in the early afternoon; he could not remember at what time on that date he telephoned Wright Johnston and MacKenzie, and indeed he did not remember making that telephone call. He sent the fax to Jim Milligan on the following day (No.7/106 of Process) because he had received the fax from Wright Johnston and MacKenzie. By that time, the personal guarantee by the pursuer had been signed and was ready to be sent to the brewers. It was quite likely that there was no file note recording his telephoning Mr Black of Wright Johnston and MacKenzie - Mr Bowie accepted that he had no consistent practice regarding keeping file notes, and sometimes he kept them and sometimes he did not. No.7/109 of Process was a file copy of his letter dated 21 January 1999 to Wright Johnston and MacKenzie enclosing all the documents required by the brewers, including a guarantee by the pursuer. These would probably have been sent out on Mr Milligan's instructions, although there was no file note confirming that Mr Milligan had instructed this. Mr Bowie would have spoken to Mr Milligan; he did not recall doing so, but he assumed that he would have done so. He confirmed that up to and including 21 January 1999 he had written no letter or fax to the pursuer regarding the question of the loan from the brewers to Jimmy Nick's, and there was no note of any phone call to the pursuer. Mr Bowie did not witness the pursuer's signature to the personal guarantee (No.7/52 of Process) and he kept no note of what happened at the meeting. He agreed that it was likely that the pursuer's wrong address (i.e. 12 Eccles Street, Springburn) was on the personal guarantee before the signature of the subscriber was written above it, so whoever signed the document would be able to see that address.
[24]With regard to the circumstances of the meeting of 20 January 1999, Mr Bowie confirmed that No.7/336 was a photocopy of his desk diary for the relevant date, which showed "Milligan & Co" against 2pm, and "Donata McCulloch" at 2.30pm; (he was certain this was not 3.30pm). Although he could not be certain, he suspected that Mr Milligan & Co were late for their appointment because they were habitually late - it would have been memorable if they had been on time. He was asked where they were when he first saw them and he said that they were at the waiting area - although he then qualified this by saying that this was an assumption, because they would not be invited to go anywhere else. He did not remember what they were doing. He thought that they all came to his room together, although he could not say if they all came at once. It was not possible that one of them was doing something and came into the room, although he was not sure if they all entered the room at the same time. Apart from the pursuer's personal guarantee, all other documents were to be signed by Mr Milligan. At one point after the meeting had started, he left the room briefly to see Mrs McCulloch. He estimated that the meeting lasted for at least 45 minutes, and he went out to see Mrs McCulloch nearer the end of the meeting than the beginning of it - it was at least 2.40pm before he left the room. From time to time during the meeting, each of the three men there took mobile telephone calls - at any one time there might have been only one of them at the table with the documents. He remembered that the pursuer was on his mobile telephone although he could not remember for how long. There would have been a discussion before the documents were signed. When asked why he did not witness the pursuer's signature on the personal guarantee, he replied that he was out of the room, presumably to speak to Mrs McCulloch - as he went out he asked Gillian Toner to come through to act as a witness. He phoned her on the internal line, and they passed at the door. He had told her on the phone why she was coming through, and there was no need to say anymore - she knew what was expected of her. All he said was "could you come through and witness a document". She had done this before. She knew that she had to see the person sign or acknowledge the signature. This knowledge was imparted to her when she joined the firm and she was instructed as to what should happen. Those instructions had been given to her as clearly as was necessary. Mr Bowie said that he would have done this, and he would do it in the first month of her employment, when she would be 17 or 18. He had no recollection of what was happening in the office after he returned from speaking to Mrs McCulloch. He was asked if he looked at each and every document; his first reply was that he would, but when asked if he recollected doing this, he replied "Under oath, no."
[25]With regard to the letter dated 25 January 1999 addressed to the pursuer (No.7/120 of Process), Mr Bowie was quite sure that he dictated this. He assumed that Jim Milligan or Frank Boyle would have explained to the pursuer why he was required at the office, and possibly assumed that they would have told the pursuer that steps were being taken to try and get the brewers not to insist on a personal guarantee from him (although there was no file note or letter to this effect); he could not remember if he had spoken to the pursuer about this. He knew from his normal practice that he would have had a discussion with the pursuer before he signed the personal guarantee, although he had no actual recollection of doing so because of the passage of time. He could say with confidence that he would have advised the pursuer that he could take separate advice, although he could not recollect actually doing so and there was no file note to this effect, because he was not good at file recording. He stated that the pursuer would have known that Mr Bowie had tried unsuccessfully to persuade the brewers not to insist on a personal guarantee from him, because he would have told the pursuer this at the meeting (although he then accepted that the fax from Wright Johnston and MacKenzie, No.7/105 of Process, arrived after the meeting had concluded and the personal guarantee had been signed). He was as confident as he could be that the telephone call to Wright Johnston and MacKenzie was before the meeting. Under reference to No.7/120 of Process he was asked if he had any reason to think that the pursuer was aware of the brewers' terms of agreement letter, and he replied that the pursuer would be aware because of the meeting. He should have been aware, because Mr Bowie would have told him (although he had no specific recollection of doing so).
[26]Turning to the second personal guarantee dated 17 May 2000, Mr Bowie accepted that he had no file note recording any communication with the pursuer regarding a personal guarantee, and no record on file of the pursuer being present at any meeting on 17 May 2000. Mr Bowie would have taken the unsigned document to the offices at Kenmure Gardens on 17 May 2000, and again the wrong address for the pursuer was probably on the document. Mr Bowie had no recollection as to why he did not witness the pursuer's signature, and he did not remember at what time of day he went to the office. He said that he would not have left the office if he had had any doubts about the validity of the personal guarantee, but he had no recollection of the circumstances of its signing. He did not remember Mr Milligan doing anything with the personal guarantee, and he said that he could not help more about how this personal guarantee came to be signed and witnessed. Mr Bowie was shown No.7/344 of Process (quoted above) and stated absolutely categorically that the pursuer was incorrect if he said that he did not instruct Mr Bowie to write in these terms. He would not have written this letter without having spoken to the pursuer. He was asked if the pursuer was his client and he said that he was, because he had signed these personal guarantees; he was therefore Mr Bowie's client in relation to the guarantees.
[27]In cross-examination Mr Bowie confirmed that he had practised as a solicitor since 1975 and had been a partner with Hennessy Bowie since 1984. His practice comprised principally domestic and commercial conveyancing, leasing and security work, and he would arrange for the execution of documents almost daily - perhaps twenty-five times per month. He regarded the duty which he owed to a client signing a deed as being to explain the nature of the deed and make sure they understood the consequences of their signature. It would be standard practice for a person signing a personal guarantee for him to explain to that person the obligation that they were undertaking on behalf of a company, and that the guarantee could be called up. Quite often he would be acting for more than one party at one time, e.g. for a company and for individuals connected with the company; there was a potential conflict of interest, but if there was no conflict it was not improper to act for more than one party. He had acted for Jimmy Nick's Properties and had acted for Mr Milligan personally although he could not remember when. He was shown No.7/221 of Process, which was an engrossment of the personal guarantee to be signed by the pursuer. The wrong address for the pursuer (i.e. 12 Eccles Street, Springburn) was already on this document. Mr Bowie could not explain why this address, which he knew to be wrong, had not been corrected, nor could he explained why no revised drafts were on his file, nor was there any covering letter returning these. He considered that it was unimaginable that he did not send revised drafts back to Wright Johnston and MacKenzie and he was very surprised to learn that there was no covering letter.
[28]Under reference to No.7/100 of Process, Mr Bowie was asked if Frank Boyle would know why the pursuer would be needed at the meeting, and he replied that he would know that this was to enable him to sign a personal guarantee. Mr Bowie was almost certain that he would say to Frank Boyle that the pursuer needed to sign a personal guarantee, not just "some documents", but the message would be passed through Frank Boyle - Mr Bowie never said this directly to the pursuer. Regarding the meeting in his office on 20 January 1999, he said that Mr Milligan and his associates were particularly guilty of using mobile telephones during meetings, despite requests not to do so. However, he had never had experience of a meeting where someone had spent the entire time on a mobile telephone, and he would have remembered that. He was asked about possible conflict of interest in advising the pursuer regarding a personal guarantee, and he observed that the Law Society of Scotland allows a solicitor to act for two parties if there is a conflict where both parties agree to this and both are existing clients. He considered that the pursuer and Mr Milligan were each in that category. He was asked who he considered he was acting for in these circumstances, and he said that he was acting for the company, and also on behalf of the pursuer in relation to the personal guarantee. He would not allow a client to sign a document before it was explained to him. He said that he would have explained what documents required to be signed, who was to sign them and the import of these documents, and that it would be his practice to explain this to all those who had to sign documents. He was asked if it was likely that he left the room without explaining anything to the pursuer, and when he returned to the room the pursuer's personal guarantee was signed, to which he replied "absolutely not".
[29]Mr Bowie was shown an attendance note by Mr Black of Wright Johnston and MacKenzie dated 20 January 1999 (No.7/26 of Process) in which it is noted that the pursuer is not a director and will not be granting a personal guarantee; he did not believe that he would have said this, but thought that he would have said that the pursuer would not be granting a personal guarantee in that capacity. He did not consider that he was in a position to say to the brewers that the pursuer would not grant a personal guarantee, as this was a condition of the loan; however, he could not recollect. Under reference to the letter to the pursuer dated 25 January 1999 (No.7/120 of Process), he agreed that he would not have written such a letter if he had any reason to doubt that the pursuer knew about the personal guarantee and the discussions with the brewers' lawyers.
[30]Turning to the second personal guarantee in May 2000, he could not recall from whom he received instructions on behalf of the company to act in this matter, although he thought that it would be Jim Milligan or Richard Cleary. He could not remember what time of the day the meeting in the offices in Kenmure Gardens occurred nor how long he was there, although he said that it was pure speculation that he was there between 45 minutes and 1 hour. He agreed that there were similar obligations to explain the consequences of signing documents as he had mentioned relating to the earlier meeting. He did not remember the meeting at Kenmure Gardens distinctly, although he remembered meeting Jim Milligan, and Richard Cleary came in shortly afterwards. He was asked who was necessary to begin this meeting, and he said Jim Milligan and the pursuer certainly, and Richard Cleary, although it was possible that they might have started the meeting without the pursuer if he was not in the building. His recollection of this meeting was much poorer than for the earlier meeting.
[31]In re-examination Mr Bowie's professional relationship with the pursuer was again examined. He was asked when the pursuer entered his office on 20 January 1999, was the pursuer his client, to which he replied that he was a client but he had not instructed Mr Bowie in that piece of business. He was however an existing client - otherwise Mr Bowie would not have been able to act for him. In the case of an existing client in such a situation, Mr Bowie would explain that he was entitled to seek separate legal advice and explain where a conflict of interest might arise. This explanation would normally take between 5 and 10 minutes. It would be abnormal to send out a copy of the personal guarantee before the meeting - the client would get an opportunity to read the personal guarantee when he sat down with Mr Bowie. This would take 5 or 10 minutes or longer - it might take longer for someone who was not quick on the uptake. He was asked if he would give a general explanation to everyone at the beginning of the meeting or to each person before signing, and he said that probably the former of these; he would therefore not give an explanation one to one sitting down with the pursuer alone. In answer to questions from the Court, Mr Bowie said that his normal procedure in such a situation was to explain the possible conflict of interest and tell the individual (who was an existing client) that he could seek separate representation before signing the document. If the individual did not wish to have separate representation, Mr Bowie would then ask him if he wanted to instruct Mr Bowie. If the individual replied in the affirmative, the solicitor/client relationship would arise, and Mr Bowie would then explain the terms of the document to the individual and advise him as to the possible consequences of signing it.
[32]Finally, Mr Bowie was asked in re-examination if he could be sure that he used the words personal guarantee when telling Frank Boyle that the pursuer would need to sign something; Mr Bowie replied that after such a time he could not be certain; he was fairly confident, but he could not say under oath that he said this.
(vii) Richard Cleary
[33]Mr Cleary was aged 33 at the date of the proof and was a self employed accountant/book keeper; he had no professional qualifications. He was employed by Jimmy Nick's Properties in August 1998, and before that he had worked for a firm of accountants in Glasgow for about 10 years. Mr Milligan ran the business on a day to day basis; the pursuer's involvement was purely as a shareholder. Mr Cleary never saw him, and although Mr Cleary knew of the pursuer, the pursuer was rarely in the office. On average he came into the office once each quarter, normally just for a social chat with Mr Milligan. Mr Cleary could not remember seeing the pursuer much, if at all, in the Kenmure offices. He remembered that in 2001 things went badly wrong with the business, and Mr Milligan disappeared; Mr Cleary's main concern was with his own safety, and he observed that there was "a lot of scary stuff going on". In January 2001, when Mr Milligan disappeared, he discussed matters with the pursuer; at that time he was unaware of any personal guarantees purportedly signed by the pursuer, and the pursuer never mentioned these. In about the summer of 2001, he had a conversation with the pursuer in which the pursuer told him that he had been told of some personal guarantees, of which he was unaware. Perhaps 2 years later (Mr Cleary's could not remember the precise date) Mr Milligan told him about these personal guarantees. Milligan said they (i.e. creditors) would be chasing both him and the pursuer for these personal guarantees, but the pursuer should be alright because Mr Milligan signed his personal guarantee. This remark was made in the course of a telephone conversation with Mr Cleary.
[34]Mr Cleary was shown the terms of agreement for the brewers' loan to the company in November 1998 (No.7/57 of Process); Mr Cleary said that this looked vaguely familiar and he may have seen it, but he had only started in the company in August 1998. He was surprised that it was addressed to Frank Boyle and not to Jim Milligan, but Archie Johnston who was the brewers' representative had a long term relationship with Frank Boyle so that would be why it was addressed to him. Mr Cleary observed that administration was not Frank Boyle's forte, and Mr Boyle would not always copy letters to others concerned. In May 2000 Mr Cleary did not recall being involved in discussing the terms of another loan from the brewers - this would be something which Jim Milligan did. Jim Milligan dealt with loans and everything to do with them. He was shown No.7/236 of Process, which was the loan agreement between the brewers and Jimmy Nick's Properties Limited, dated 17 and 18 May 2000, and he recognised Jim Milligan's signature and his own signature below it; he agreed that he had signed this document but he did not recall it, nor did he have any recollection of a meeting at Kenmure Gardens on 17 May 2000. He knew that the company was trying to get additional loan funds from the brewers. He did not recall that the document was explained to him before he signed it, and he stated that he may have signed it even if it was not explained to him. He was shown No.7/258 of Process, which was a fax from Mr Bowie apparently addressed to him and Jim Milligan, but he did not remember receiving or seeing this. He did not remember being involved in arranging the meeting referred to in that fax (and in No.7/267 of Process), nor did he remember attending that meeting.
(viii) Mrs Kathryn Thorndycraft
[35]Mrs Thorndycraft was the final witness for the pursuer. She was aged 58 and was an independent forensic document examiner. She had been practising independently in this capacity for about 61/2 years and before that she had worked for about 9 years in the same capacity with Grampian Police. Before that she had worked with a major bank. She had been trained in the Metropolitan Police methods, enlarging handwriting samples and comparing angles, slopes, heights and proportions. She was a member of the National Association of Document Examiners and had attended all their conferences and had spoken at conferences in the USA. She was authorised as a forensic document examiner by the Secretary of State for the purposes of the Criminal Procedure (Scotland) Act 1995 and had experience of working in a wide variety of different types of cases, in the High Court of Justiciary, the Court of Session and elsewhere.
[36]Originally Mrs Thorndycraft was instructed by Collins & Co in December 2002 to compare the signatures on the two questioned personal guarantees with other signatures from the pursuer to ascertain whether they were of common authorship. (No.6/16 of Process is a copy of her letter of instruction). In response to those instructions, she produced a report dated 21 January 2003 (No.7/339 of Process). At that time, she proceeded on the assumption (apparently shared by others) that documents 3, 4 and 5 listed in her report were known signatures of the pursuer. In her original report, she observed that these documents "have been constructed in a different handwriting style to all the others to be examined". In fact, documents 3, 4 and 5 appear to have been examples of Mr Milligan forging the pursuer's signature on earlier documents, and were the subject of the earlier Court of Session litigation. The misunderstanding about the authorship of these signatures was subsequently corrected by Brodies, and Mrs Thorndycraft provided an updated report dated 18 January 2005 and an addendum dated 12 February 2005 (Nos.6/6 and 6/14 of Process). Mrs Thorndycraft's evidence-in chief was substantially similar (although more detailed) than her report and addendum and accordingly I do not rehearse it in every detail. It was given under reference to certain late productions which were enlargements of various signatures, which formed No.6/18 of Process. She drew attention to a hesitation at the bottom of the letter "c" of the 1999 guarantee, and the hesitant construction of the letters "ar" in the 2000 guarantee. Both the signatures on the questioned guarantees commenced with a lower case "c", which in each case was relatively small by comparison to the next letter "h". The formation of the third letter "a" was similar in each, and was unusual in starting at the left, moving across to the right at the top and then continuing. In the 2000 guarantee, there was an extra stroke to the letter "l" in the surname. The formation and style of the pursuer's known signatures, on page E of No.6/18 of Process, was quite different from the questioned signatures at page A. The underlining style on the questioned signatures on page A was very similar to that on Jim Milligan's known signatures at page C; a comparison between the questioned signatures and those written by Jim Milligan (G and H of No.6/18 of Process) showed numerous similarities, such as the "ie" of Charlie being squashed in, and the capital "N" being very similar. Moreover, the final two letters on each of the signatures on page H are "os", as are both the questioned signatures on page G.
[37]Mrs Thorndycraft was subject to very detailed cross-examination for a full Court day. She accepted that a style of signature could change over time, but maintained that if someone was trying to write a signature in a different style from their normal style, she would expect a lot of hesitation or tremor. Most writing is executed subconsciously and it is very difficult to write things differently which one writes every day. A signature is quite unique and often quite different from a person's every day writing: it is often more flamboyant that the construction of every day writing. She maintained that one cannot compare two different styles of writing such as block writing and cursive writing. She would normally be able to detect if someone were trying to alter their signature; it is very difficult to execute one's own signature in a different style unless writing very slowly and deliberately. In answer to a question from the Court, she expressed the opinion that if one was trying to alter one's own signature, the result would be much more precisely and slowly drawn - it is very difficult to disguise one's own signature. Cases in which a person attempted to disguise his own signature were relatively rare; she had experienced a few such cases and also discussed the issue with other document examiners and at conferences. She considered that she had quite a lot of experience of this problem. She accepted that the best practice when comparing sample signatures was that the sample signature should be witnessed and the author should not have the original document in front of them; if the samples were unwitnessed, they should be treated with some care when comparing them. However, she observed that she had at least twelve signatures of Jim Milligan before her, and there was no doubt that these were all by the same author. She was also quite happy with the samples she had of the pursuer's signature; these were all from formal documents signed by the pursuer when he was not thinking about the formation of his signature, in contrast to Mr McCrae's methodology in which he asked the pursuer to write handwriting in different styles and then compared these with the questioned signatures. Mrs Thorndycraft's comparators were, in her opinion, better than Mr McCrae's "test samples" compiled on demand.
[38]Mrs Thorndycraft was of the opinion that one author wrote both the questioned signatures - there were sufficient similarities in letter formation to indicate common authorship. She also concluded that Jim Milligan was the author of both. She was also of the opinion that documents 3, 4 and 5 appended to her report were signed by the same person as the two questioned documents.
[39]Mrs Thorndycraft was of the opinion that one cannot usually compare two different signatures, and that it was not possible to compare individual letters in two different signatures because different names were being formed. However, it was possible to compare underlining and the placing of a full stop, as between No.6/18 of Process pages A and C. She observed that Jim Milligan always underlined his signature and placed a dot to the right of the underlining, and one found this style on the two questioned signatures. She attached significance to this underlining and dot because it was a subconscious movement. She was shown No.7/385 of Process and agreed that there were normal variations in Jim Milligan's underlining, but he still started his underlining from right to left and then moved from this direction to left to right, thereafter placing a full stop to the right of the line. By comparison (and under reference to No.6/18 of Process page E) the pursuer usually started his underline higher up, at the end of his name. She identified a full stop at the end of Jim Milligan's signatures and a similar full stop or dot at the end of the questioned signatures. She was in no doubt in her conclusion that the questioned signatures were written by Jim Milligan. Despite thorough cross-examination, she adhered to this conclusion, having regard to the overall mixture of height, proportion, underlining, punctuation and the formation of the different letters. Although she accepted that Mr McCrae obtained more writing from the pursuer, for comparison purposes she considered that it was best to compare signatures (as she did) rather than to compare signatures with other writings. For example, in No.7/374 of Process Mr McCrae looked at writings by the pursuer in which the pursuer had been asked to adopt a particular writing style, such as separated letters or greater legibility; these were not signatures, and were completely different styles of writing which were not of assistance for purposes of comparison. It was put to her that when one looks at E13, E25 and E26 (all of which were reproduced at No.7/374 of Process) it was clear that the pursuer was capable of writing the letters "ch" in the same formation as in the questioned signatures; she observed that the pursuer could write it in lower case if requested to do, but not in his signature. His signature was formed in a very ornate style, and of all his signatures which Mrs Thorndycraft had seen, he never signed with a lower case "c". She accepted that he could sign documents in different styles, but the differences were nothing like the questioned signatures. These questioned signatures had major differences of letter formation, height, formation, layout and underscoring as compared with the pursuer's normal signatures. She did not believe that the pursuer wrote the questioned signatures - there were so many differences between the questioned signatures and his own signatures that she did not consider that the pursuer wrote them. She observed that by comparison with Jim Milligan's signatures, there were so many similarities between the questioned signatures and Mr Milligan's signatures.
(ix) Roderick McKenzie
[40]Mr MacKenzie was the first witness for the defenders. He was aged 46 and practised as a solicitor. He had been a partner of Harper MacLeod since 1984. He had been instructed by Tennent Caledonian Breweries to proceed to enforcement of the personal guarantee granted by the pursuer on 17 May 2000. After he began steps to enforce recovery of sums due under this guarantee, Messrs Collins & Co took objection on behalf of the pursuer on the basis that the pursuer's signature on this guarantee (and later his signature on the guarantee dated January 1999) was forged. Mr McKenzie had never seen the principal of document 14 attached to No.6/6 of Process, and first saw a photocopy of this on or shortly after 6 January 2005. He could not say for certain if someone in his firm saw this document before that date, although if it had been sent to his office, he would have expected it to be passed to him.
(x) John McCrae
[41]Mr McCrae was aged 66 at the date of the proof and was a self-employed consultant forensic document examiner. He had spent 17 years with Strathclyde Police Identification Bureau until 1994, since which date he had been self-employed as a consultant document and handwriting examiner. He spoke to his report (No.7/58 of Process), and had Mrs Thorndycraft's original report before him when he prepared this (No.7/339 of Process). He explained that on 25 January 2005 he obtained samples of the pursuer's writing, in the presence of Mr Robin McPherson; these formed documents E1-26 attached to his report. He did this in order to obtain as wide a range as possible of variations in style which the pursuer might use. Documents E1-6 were the pursuer's normal signature; E7-12 were written by the pursuer when Mr McCrae asked him for a more legible signature; E13-18 were written by the pursuer on Mr McCrae's instructions in a separated letter style (i.e. disconnected script), and E19-24 were written by the pursuer on Mr McCrae's instructions in block letters. Each of these sheets was signed by the pursuer on the reverse in the same style as on the face. Mr McCrae stated that this gave him about forty-eight signatures from the pursuer which were quite natural and genuine. When asked by the Court whether he really regarded all of these as natural and genuine signatures of the pursuer - particular those written in block letters - Mr McCrae replied that the pursuer did write his name, albeit not in his normal customary style, but some people do this and one sees people using block letters - all of these were means of appending his signature to a document.
[42]Mr McCrae confirmed that when he referred to "all signatures" in the third sentence of page 3 of No.7/58 of Process, this included the questioned signatures. He was of the opinion that one person can write a signature in different styles - i.e. the signature of a person aged 18 may be different from the signature of the same person aged 55. Quite often signatures deteriorate with age; they may also vary depending on circumstances - e.g. a signature on a letter written to the Queen would be more likely to be legible than a signature used to sign in at work in the morning. People often deny their handwriting, but one can normally tell from the hidden features and their characteristic letter formations. He agreed that in order to form an opinion as to whether a signature was written by a particular person, the best comparator was a signature of the same person. He observed that there was quite a difference between documents 3, 4 and 5 and documents 3-13, although this did not necessarily indicate two different authors. (Mr McCrae later accepted that the comparison should be between 3, 4 and 5 and 6-13, not 3-13). He was of the view that even if 3, 4 and 5 were not the pursuer's signatures, there was still some span of variation between his known signatures.
[43]He expressed the opinion that if a signature was a forgery, he would expect to find an unnatural hesitation. In the first questioned signature the underline was slower and less fluent than the signature itself; there was a similar lack of fluency in the second underline. In the second signature he also considered that the letters "l" and "e" of the first name had been written first, and the letter "i" had then been inserted. Looking at the three known signatures of the pursuer on document 13 (which formed the last three signatures on No.7/372 of Process) he commented that there was no "r" in the top signature - the pen lifted or flew above the surface of the paper. In the middle signature the pen did not leave the paper, but there was no clear evidence of an "r" in any of these signatures. When pressed on this by the Court, he rejected the possibility of the existence of an "r". The last "e" of the first signature was not recognisable and the letter "c" in the bottom signature could be an open "a". With regard to the letter "h", he thought there was little difference between the apex of the "h" in the pursuer's known signatures and the questioned signatures - he expressed the view that there was so little difference between the sharpness of the apex of the letter "h" in all the signatures on No.7/372 of Process that they would be acceptable as being of common authorship in some cases. With regard to the relationship between the letters "c" and "h" he observed that the letter "c" was higher than the letter "h" in the top and bottom signatures of document 13, but lower in the middle signature. Mr McCrae placed significant weight on the examples of the pursuer's writing which he obtained on documents E13 to E26, which indicated that the pursuer has adopted a different relationship of size between the letters "c" and "h". He observed that E25 and E26 appeared to be an accustomed style and there were very obvious similarities between that style and the two questioned signatures. He also observed (under reference to No.7/371 of Process) that the pursuer habitually started letter "c" below the guideline. He observed a similar pattern between the two questioned signatures and the disjointed style which he required the pursuer to use in documents E13-E18.
[44]Mr McCrae expressed concerns about the use of unwitnessed documents such as document 14 attached to Mrs Thorndycraft's report - it was preferable to use documents the authorship of which was clearly known and the arrangements and method of obtaining of which were clearly known. He regarded their usefulness as samples as limited - he would have preferred to obtain samples in front of credible witnesses, preferably witnesses who were experienced document examiners. He observed that the letters in 14A were wider than the questioned signatures, which tended to be taller and more upright. The main similarity between the questioned signatures and document 14 was the formation of the "N", which was similar. There was also a similarity between the half circle dot above the letter "o", and the other dots. However, he was of the opinion that the underlining underneath Jim Milligan's own signatures did not display a similar pattern to the questioned signatures. Although there was a broad similarity of movement, he considered that there was quite a difference in the pattern and method of construction of the underlining, which was apparent from No.7/385 of Process. He observed that one cannot compare Jim Milligan's signature with the pursuer's signature - this would be to compare x with y. He remained of the view that the pursuer was probably the author of the questioned signatures, because there were enough similarities between the questioned signatures and "signatures" which the pursuer can produce. He did not agree with Mrs Thorndycraft's conclusion - it was not possible to say with certainty that Jim Milligan is the author of the questioned signatures. In his view there were several differences between Jim Milligan's writings and the questioned signatures, and there were many similarities between the pursuer's writings and the questioned signatures.
[45]In cross-examination Mr McCrae accepted that handwriting analysis was simply observation and the reporting of results of observation; it involved large amounts of judgement, and judgements by professionals might differ from each other. He accepted that the reasoning in his report was, at the time of the report, heavily influenced by the belief that documents 3, 4 and 5 were known versions of the pursuer's signature, and he agreed that the reference in the penultimate paragraph of his report to "such wide variations of known signatures" included those on documents 3, 4 and 5; however, he remained of the view that even leaving aside documents 3, 4 and 5, there was still a wide variation in the pursuer's signatures. He had known Mrs Thorndycraft since she became a document examiner; they had on occasions worked together, and he had never found her thus far to be incorrect in things that she said. She was a professional whose work he respected and he often recommended her.
[46]Mr McCrae agreed that there was no evidence of the pursuer making his signature in the form of the questioned signatures on any other occasion, and there was no document apart from the two questioned ones where one could see a signature like these which the pursuer is said to have made. He agreed that the questioned signatures and the pursuer's normal signatures were in different styles, but he reached the conclusion that the pursuer had deliberately altered his signature. He agreed that the best material as a comparator of a signature is a known signature of the author in the same style, and that it was normally the case when writing a signature one was doing something quite different from writing a passage of text. He maintained his evidence that the pursuer had given him forty-eight signatures, and stated that although documents E13-18 had been written by the pursuer in response to Mr McCrae's instruction to write in a separated style, he would say that these were the pursuer's signatures. He disagreed that documents E7-E12 amounted to an artificial restraint on the way in which the pursuer would write - he regarded them as different forms of signature, and Mr McCrae was only introducing some thought in the way in which the pursuer wrote. He agreed that the pursuer normally has a spontaneous flowing signature, as exampled in documents E1-E6, and eventually conceded that by requiring legible signatures, he was in some way imposing an inhibition on the way that the pursuer would normally write his signature. He agreed that E25 and E26 were just pieces of text, not just the pursuer's signatures, and that E13 was an example of the pursuer writing his name at Mr McCrae's request in a separated letter style. However, when it was put to him that this methodology was inferior in principle to the comparison of genuine signatures he maintained that E13 was a genuine signature and was a version of his signature. He insisted that it was the pursuer's known signature, or at least his known writing. Under reference to No.7/372 of Process he accepted that the last three signatures were clearly recognisable as those of the same person, but they contained variations which do not usually occur in three signatures written one after the other. Mr McCrae was faced with his own signatures on documents E13 to E15 and acknowledged that there was some variation, but he insisted that the tendency was for peoples' signatures all to be similar. He conceded that the first line of page 5 of his report, which stated under reference to the three known signatures of the pursuer on document 13 that "all these signatures display a wide range of variation" was overstated - the variation was perhaps not wide, but there was some variation and he still considered it to be wider that he would have expected. Again under reference to No.7/372 of Process he did not agree with the proposition that the formation of the letter "c" was in lower case in the two questioned signatures and in upper case in the three specimens, nor did he consider that the letter "h" was significantly different between the questioned signatures and the three specimen signatures. He maintained that there was a consistent picture of the pursuer's genuine signatures rising from left to right, which was repeated in the questioned signatures. He accepted that the two questioned signatures have very different endings from the three genuine signatures.
[47]With regard to document 14, which contained signatures apparently by Jim Milligan, he accepted that the signature on the first page of the document appeared to be by the same author as the other Jim Milligan signatures, and there was no evidence that he did not also write the pursuer's signatures. He also accepted that in some ways there was a similarity between the two questioned signatures and Jim Milligan's signatures, although only in pictorial effect, not in detail. He accepted that the conclusion stated in the last paragraph of his report relied substantially on the samples which he took, and that this included documents E7-E26, along with all the pursuer's known signatures, but he remained of the opinion expressed in his report.
[48]In re-examination Mr McCrae accepted that initially his reasoning was heavily influenced by the signatures on documents 3, 4 and 5, but even if they were excluded, this would not cause him to alter his final conclusion to any extent. There was a greater variation in the three signatures of the pursuer on document 13 that he would normally expect to see; this opinion was based partly on the endings of the signatures and partly on the pen lift after the letter "a" in the first signatures without such a pen lift on the second or third signatures.
(xi) Campbell Black
[49]Mr Black was aged 60 at the date of the proof and employed as a solicitor with East Ayrshire Council. Before this, he had practised as a solicitor with Wright Johnston and MacKenzie from 1969 to 1999, being a partner of that firm from 1974 to 1999. He rejoined the firm in 2001 and left it in 2004. He was a partner in 1998 and early 1999; his principal area of work was dealing with secured and unsecured lending for Tennent Caledonian Breweries. He confirmed that Nos.7/1 to 7/30 of Process were extracted from his files at Wright Johnston and MacKenzie. The brewers' instructions stated that personal guarantees were required from the pursuer and Jim Milligan, and he would have assumed from this that they were directors of the company. He said that normal practice was that the solicitors acting for the company would also look after the interests of its directors. He confirmed that No.7/26 of Process was a file note written by him. The phone call was with Alistair Bowie on the other side - Mr Black did not think he dealt with anyone else in Hennessy Bowie. That file note was accurate. He was shown No.7/18 of Process and confirmed that the handwritten note on the first page was written by him and that this stated "handed to me by Colin Brass at 3.25pm today 21/1". He ticked the various items to show that they were received. He did not remember anything out of the ordinary in this transaction.
(xii) Graham Murray
[50]Mr Murray was aged 44 at the date of the proof and practised as a solicitor with Wright Johnston and MacKenzie, having started with them in 1998. He was not involved in loan transactions for Tennent Caledonian Breweries until 1999. He confirmed that Nos.7/31 to 7/44 of Process were extracts from his file relating to a loan transaction between the brewery and Jimmy Nick's Properties in May and June 2000. He understood from the brewers that Hennessy Bowie acted for the company and also the two directors, the pursuer and Jim Milligan. He confirmed that No.7/36 of Process showed that the documents, including the pursuer's personal guarantee, were returned executed, and the balance of the loan was then released. In cross-examination he agreed that a personal guarantee from the pursuer was a condition of the brewers releasing monies to the company, and if no personal guarantee bearing to be signed by the pursuer was provided, the loan would not have been forthcoming.
(xiii) Archie Johnston
[51]Mr Johnston was the last witness; between 1998 and 2000 he was employed as an accounts manager with Tennent Caledonian Breweries and was involved in negotiating loan transactions including those with Jimmy Nick's Properties. The people who acted for Jimmy Nick's Properties in the 1999 transaction were Jim Milligan, Richard Cleary and sometimes Frank Boyle - not the pursuer. He confirmed that personal guarantees were required from Jim Milligan and the pursuer, and no objections were raised to this requirement by those acting for Jimmy Nick's Properties. He thought that the pursuer was a director of Jimmy Nick's Properties, but he was never involved on a day to day basis with the company - all Mr Johnston's negotiations were done with Jim Milligan. He was also involved in the discussions regarding the loan transaction in 2000. On that occasion Jim Milligan and Richard Cleary were involved in behalf of Jimmy Nick's Properties, but again the pursuer was not involved. Personal guarantees from both the pursuer and Jim Milligan were once more required by the brewery before any funds were released, and no difficulties were encountered in that nor was any objection raised by Mr Milligan or Mr Cleary.
Submissions for the pursuer
[52]In moving me to sustain the pursuers first plea-in-law and to grant decree of reduction in terms of the first and second conclusions of the summons, Mr Currie began by going through the documentary productions to provide a chronological sequence of events. I do not list all of these productions, but senior counsel attached importance to some of them. With regard to No.7/100, which was Mr Bowie's file note dated 19 January 1999, there was no evidence that anyone brought this to the pursuer's attention, and the pursuer's evidence was that he was not invited to a meeting to sign a personal guarantee, and neither Mr Milligan nor Mr Boyle said anything about this to him. There was no file note from Mr Bowie recording the meeting of 20 January 1999; the inference to be drawn from No.7/26 was that the telephone call must have been made late in the afternoon of that date, after the meeting had finished. The pursuer said that he knew nothing about discussions between Mr Bowie and Wright Johnston and MacKenzie regarding the need for a personal guarantee from him. Regarding No.7/106, which was a fax from Mr Bowie to Mr Milligan dated 21 January 1999, it was of importance that Mr Bowie was seeking Mr Millligan's authority to send the pursuer's personal guarantee - there was no communication between Mr Bowie and the pursuer regarding this. No.7/120, which was a file copy of a letter sent by Mr Bowie to the pursuer dated 25 January 1999, was the only document in all the productions apparently sent by Mr Bowie to the pursuer. There was no evidence that the pursuer was ever shown the brewers' terms of agreements by Mr Bowie or by anyone else, and the pursuer denied ever seeing this letter. He was clear that he did not participate in any discussion as to whether or not a personal guarantee should be provided by him. Turning to the documents surrounding the second guarantee, senior counsel pointed out that in No.7/267, which was Mr Bowie's file note, there was no reference to Mr Bowie having met the pursuer that day. He submitted that this was important, as Mr Bowie could not remember any details of either meeting but claimed that he would have given details to the pursuer and given him the opportunity to consult another solicitor.
[53]Next, senior counsel considered the evidence surrounding the events of 20 January 1999 and 17 May 2000. By way of background, he emphasised that the pursuer had no experience of investing in the stock market and no idea of company law, and accepted that the pursuer was extremely naïve in his business dealings. He was very close to Mr Milligan and visited him socially in his office frequently. He was quite unaware of the structure of the business and was not interested in its running - a fact which was corroborated by Mr Johnston and Mr Cleary and Mrs Nicholas. He had been involved in a previous litigation relating to personal guarantees on which Mr Milligan had forged the pursuer's signature; the pursuer found this an unpleasant experience and told Mr Milligan that he would never sign another personal guarantee. His wife supported this - she said that the pursuer would never put their home at risk. The pursuer's position was that he had made his investment with Mr Milligan, and he still kept this money with Mr Milligan, but he would commit no more. He did not regard himself as a client of Mr Bowie, in any capacity, whether personal or to do with the company. He was unaware of any suggestion that he had signed a personal guarantee until the "papers" came from the brewers in late 2001.
[54]With regard to the meeting in January 1999, the pursuer's position was that he went to the office because he was with Mr Milligan socially - he had no interest in what was going on and had received no telephone call to go there. He did not participate in the meeting but was on his mobile phone beside the window; he was not asked to sign anything and Mr Bowie did not explain anything to him. He had been asked in cross-examination for his reaction if Gillian Toner gave evidence that she saw him sign the document, and his answer was that she would be wrong; senior counsel pointed out that Gillian Toner's evidence was not in fact to this effect. Moreover, he pointed out that the defenders' thesis that the pursuer deliberately adopted a style of signature different to his usual signature when signing this document, in order to be able to deny at a later date that it was his signature, was never put to the pursuer in cross-examination. Had this been put to the pursuer he would doubtless have given convincing reasons why he would not have done so - having already been involved in unpleasant litigation regarding forged signatures on personal guarantees, it is most unlikely that the pursuer would do such a thing. However, counsel submitted that if the defenders were making such a specific case, they should have put it to the pursuer to enable him to comment and rebut it.
[55]With regard to No.7/120 of Process, the file copy letter dated 25 January 1999, the pursuer said that he had never seen this, and both he and his wife spoke to his careless attitude towards to the opening of mail. Counsel invited me to find, on the balance of probabilities, that the pursuer did not see this letter. Particularly on the hypothesis that the pursuer had signed the document with a disguised signature, one would have expected him to have immediately responded by pointing to the signature and denying that it was his. Moreover, the personal guarantee bore the wrong address immediately below the signature bearing to be that of the pursuer; taking these factors into account the probability was that the pursuer did not see this letter and the enclosed guarantee.
[56]Although Alistair Bowie said that Gillian Toner had received training in witnessing documents, her evidence was that she had received no training at all. She had no recollection of witnessing the pursuer signing a document and did not remember him at Mr Bowie's office and would have recognised him if she had seen him. She provided no support for the defenders proposition that the pursuer did sign the document.
[57]Senior counsel submitted that Alistair Bowie was a very unsatisfactory witness, who was being sued by the present defenders. His evidence was that he could remember none of the details of either meeting - not one single important thing which was done or said; this was not a credible position to adopt. All that he was able to do was to speak to what he would have done, not what he actually did. He claimed to be acting for the pursuer, but could give no coherent explanation as to how the pursuer became his client (and the pursuer denied that Mr Bowie ever acted for him). If the pursuer was Mr Bowie's client it seemed extraordinary that there was only one communication with him, which was not received. It appeared that Mr Bowie sometimes did file notes and sometimes did not, and that he did not notice that the personal guarantee bore the wrong address for the pursuer. Counsel submitted that his evidence should be treated with caution and, if it conflicted with the pursuer, the pursuer's evidence should be preferred. Mr Bowie said that he had no recollection of any discussion before the documents were signed and he did not check the signature (although in cross-examination he said that it was his practice to do so). The Court should not accept his evidence that it was not possible that he did not speak to the pursuer to explain the effect of his signing the personal guarantee before the pursuer signed it: it was clear that Mr Bowie was far from perfect and punctilious in these matters, his evidence was vague and self-contradictory and it should not be accepted. Despite the terms of No.7/120 of Process, there was no evidence that the pursuer had ever seen the brewers' terms of agreement letter. It was odd that on neither of the occasions that these personal guarantees were signed did Mr Bowie witness the pursuer's signature, nor was he even present when the document was signed; this showed a somewhat relaxed attitude towards these matters. The inference to be drawn was that Mr Bowie did not always adhere to what he described as his normal practice; that this was reinforced by Richard Cleary's evidence regarding No.7/236 of Process, which Mr Cleary accepted that that he had signed but had no recollection of Mr Bowie explaining the effect of the document to him before he signed.
[58]With regard to Mr MacPherson's evidence and Mr Milligan's affidavit, senior counsel accepted that Mr Milligan's evidence could not be tested, but it was clear that Brodies took all possible steps to secure Mr Milligan's attendance. The tenor of this evidence was that when Alistair Bowie left the room, Mr Milligan saw his opportunity, knew that pursuer would not sign a personal guarantee, and saw that Gillian Toner did not fully understand what was going on. Senior counsel accepted that this was not enough on its own to enable the pursuer to succeed, but he submitted that it fitted well with the evidence of the pursuer and supported it.
[59]Turning to the meeting on 17 May 2000, the pursuer's evidence was that he was not aware of this meeting and was never told of the need for him to sign a personal guarantee; this evidence was not contradicted by any witness, nor by any piece of documentary evidence. Mr Bowie stated that he attended at the company's office at about this time and took a personal guarantee with him, but he had no actual recollection of anything to do with the signing of documents and no idea why he did not witness the pursuer's signature. Any suggestion by Mr Bowie that he would have spoken to the pursuer and given him advice before allowing him to sign this guarantee should be discounted as improbable, because if he had done so it would have been normal and natural for him to have witnessed the pursuer's signature himself. Again, Mr Milligan's affidavit tied in with the pursuer's evidence; Mr Milligan stated that although he could hardly remember the circumstances, he took the guarantee outside the room in which Mr Bowie was sitting, and signed it himself outwith Mr Bowie's presence, the pursuer being in a meeting room at the far end of the corridor. Senior counsel invited me to accept the pursuer's evidence and reiterated that the pursuer was not contradicted by any direct evidence from any other witness: the only evidence against him was Mr Bowie's vague and inconsistent evidence relating to what he would have done if he followed his normal practice. Senior counsel invited me to prefer the pursuer to Mr Bowie. It was unlikely that Mr Bowie had in fact given a detailed explanation of the consequences of signing these documents on each occasion and invited the pursuer to take separate advice before doing so; Jim Milligan needed the money from the brewers and knew that the pursuer would not agree to sign a personal guarantee, so he had a good reason to forge his signatures.
[60]Turning to the competing expert evidence on handwriting, senior counsel pointed out that both experts agreed that the questioned signatures on these two personal guarantees were quite different in their style from the pursuer's known signature. He attacked Mr McCrae's evidence that the signatures were probably written by the pursuer, and suggested that Mr McCrae was an unimpressive witness. He prevaricated on simple matters, such as whether documents E13-E18 attached to his report (which were examples which he obtained of the pursuer writing his name in a separated style) were examples of the pursuer's known signature or not. His methodology was suspect; he accepted that the best comparison was to compare the questioned signatures with known signatures of the pursuer, yet his thesis was substantially dependent on a comparison with samples which were not the pursuer's known signature. Counsel invited me to prefer the evidence of Mrs Thorndycraft; it was obvious even to the untrained eye that the "c" at the beginning of the signature in the questioned documents was in lower case, and was in upper case in the pursuer's known signatures. Similarly the letter "h" was rounded in the questioned signatures and had a sharper apex in the pursuer's known signatures. He suggested that Mr McCrae set himself too difficult a task in seeking to show that the pursuer was capable of forming letters in a particular way, and so capable of executing the forged signatures, and then going on to say that he probably did do the forged signatures. The Court should find that the questioned signatures are not the known signatures of the pursuer, and the Court should not hold that they were probably written by the pursuer. Mr McCrae's evidence that there was a wider than usual range of variation even excluding documents 3, 4 and 5 was weak and should not be accepted. The pursuer did not need to go as far as to persuade the Court that the questioned signatures were written by Jim Milligan, but in light of all the evidence the Court could reach the view that Jim Milligan did write these.
[61]Senior counsel reserved his position on personal bar or adoption until after the submissions for the defenders, although by way of preliminary points he submitted that in order for the defenders to establish personal bar or adoption they would need to prove actual knowledge of the documents on the part of the pursuer himself - constructive knowledge was not enough. The pursuer's evidence was that he was not aware that personal guarantees in his name had been executed, and this was not contradicted by any evidence to the contrary.
Submissions for the defenders
[62]Counsel for the defenders invited me to sustain the first, second and third pleas-in-law for the defenders, or alternatively their seventh plea-in-law, to repel the pursuer's pleas-in-law and to grant decree of absolvitor. He submitted that there is a statutory presumption that these guarantees were validly signed and the onus is on the pursuer to prove that he did not sign them - see the Requirements of Writing (Scotland) Act 1995, Section 3. (This was not disputed on behalf of the pursuer).
[63]By way of background comments, counsel pointed out that the pursuer had a successful career in football, then as a television commentator and author of a number of newspaper columns; he had a successful career in the public eye, which did not suggest that he was particularly naïve in the ways of the world nor disinterested when it came to his own business affairs. He had his own self invested pension scheme - a fact which did not sit easily with the picture of someone unaware of business matters. He denied being a director of Millnich Property Company Limited, although the records show him as a director and shareholder. The pursuer's position was based on his naïvety and his disinterest in his investment with Mr Milligan, but the Court should be slow to accept this. It was incredible that the pursuer had invested an initial investment of between £60,000 and £70,000, and other smaller payments later, with Mr Milligan simply on the basis of trust. This became even more remarkable after the earlier litigation in which the pursuer was involved in reducing signatures apparently forged by Mr Milligan (although that action appears to have been settled without any formal decision, and no details were before the Court). The pursuer's conduct after that action was remarkable - instead of having nothing to do with Mr Milligan, he continued his personal and business association with him as if nothing had happened, and the pursuer still had not removed his money from Millnich when that company went into liquidation. The strangest aspect of the whole matter was that the pursuer had anything at all to do with Mr Milligan at this stage, and that he took no steps to check what Mr Milligan was doing with his money. It beggared belief that the pursuer was as naïve as he claimed, especially after his experience of Mr Milligan forging his signature on other personal guarantees. His explanation for being in the company's offices - namely that he was visiting Mr Milligan socially and did not discuss business matters - was not credible. The pursuer had many other commitments; he spent two or three days per week in London, he trained every morning and he had to contribute newspaper columns. The pursuer's wife said that he would spend a lot of time with her in the afternoon, and Mr Cleary said that he saw the pursuer in the office only once every few months. Counsel suggested that Mr Cleary was an obviously honest and credible witness, and his evidence should be preferred to that of the pursuer. The pursuer was simply attempting to provide an excuse for his being in the office on 20 January 1999.
[64]In considering the events surrounding the first guarantee dated 20 January 1999, counsel pointed out that both the pursuer and Alistair Bowie said that Frank Boyle was at the meeting, but Mr Milligan in his affidavit said that Frank Boyle was not present. The documents were returned to the brewers on 21 January 1999, so it could be inferred that the personal guarantee must have been signed at the meeting, either by the pursuer or by Jim Milligan - if not one, the other. Counsel submitted that the pursuer's evidence lacked credibility for a number of reasons. The first oddity was that Jim Milligan agreed that the pursuer would provide a personal guarantee, if the pursuer had made it absolutely clear that he would never have signed such a document - why did Mr Milligan create a difficulty for himself? Moreover, Mr Milligan must have expected that the solicitors would contact the pursuer to arrange for him to sign the document. How did the meeting on 20 January 1999 come about? According to his file note (No.7/100) Mr Bowie asked Frank Boyle to arrange for Jim Milligan and the pursuer to attend, and they did attend. Nobody told Mr Bowie that the pursuer could not attend, and in his affidavit Mr Milligan just states that the meeting was set up by Mr Bowie - he does not state that Mr Bowie contacted him but not the pursuer. If the pursuer's evidence is to be believed, Mr Boyle would have had to have been a co-conspirator. Then there was the coincidence of the pursuer being in Jimmy Nicks' offices at the appropriate moment to accompany Mr Milligan and Mr Boyle to Mr Bowie's office. This would have been a coincidence even if the pursuer was a regular attender at the office, but if (as Mr Cleary stated in his evidence) the pursuer rarely attended the office it became an astonishing coincidence. If Mr Milligan was intending to forge the pursuer's signature on a personal guarantee it was surely reckless of him to invite the pursuer along to the meeting. Counsel submitted that Mr Milligan's affidavit did not sit with the pursuer's version of events, and that the pursuer's version was incredible. At the meeting itself, it was a remarkable coincidence that the pursuer's mobile telephone rang and he then had a conversation for about 40 minutes throughout the whole of the meeting. Although the pursuer stated that this was how he wrote articles for the newspapers, by giving his views to a journalist who would write up a column, no evidence was led to support this from any journalist, nor were any telephone records lodged to vouch the time and length of this telephone call. While on his mobile phone the pursuer was invited into the meeting - why did he go in? It was surely more sensible to conduct his phone call in the waiting room rather than in Mr Bowie's own office where a meeting was happening. Mr Bowie's evidence was that the pursuer was not on his telephone throughout the meeting, and Mr Milligan in his affidavit stated that the pursuer was on his telephone for some of the time, but not at the outset. Counsel invited me not to accept the pursuer's evidence, which was entirely self-serving and aimed at providing an explanation for his being in the room without receiving any explanation or advice from Mr Bowie. It was not surprising that Mr Bowie conceded that he did not have a clear recollection of the meeting, because he was a busy conveyancing practitioner who arranged for many documents to be signed. It would be astonishing for a solicitor to have someone in his office to sign a document, and to conduct the whole business of the meeting without reference to that individual, and not even to proffer the document to them. It was difficult to understand the subsequent exchange of information with Mr Black of Wright Johnston and MacKenzie (the file note No.7/26 and the fax message No.7/19) unless Mr Bowie had discussed with the pursuer the requirement for him to sign a personal guarantee. Again, it would not make sense for Mr Bowie to write to the pursuer a few days later (No.7/120) if he had not spoken to the pursuer about this. There was also Miss Toner's evidence. She knew what was expected of her when witnessing a document; Mr Milligan's evidence does not explain how he convinced her to sign as a witness. She stated that she knew Mr Milligan, and thought that she knew the pursuer; the signature on the document was clearly legible as the pursuer's name, and it was surely unlikely that Miss Toner would have signed as a witness if she had seen Mr Milligan write this. It surprising that Mr Milligan would even attempt to do this in the presence of the pursuer, and incredible that he was able to dupe Miss Toner in this way. Counsel submitted that such matters as were strange and pointing the other way, such as the wrong address for the pursuer on the personal guarantee, were quite incidental by comparison.
[65]Turning to the events surrounding the second guarantee in May 2000, counsel asked why Jim Milligan would put himself in the position again of forging the pursuer's signature, with all the consequent risks? Again there were remarkable coincidences surrounding the pursuer's attendance at the office that day; Mr Bowie sent a fax (No.7/258) to Jim Milligan and Richard Cleary asking them to arrange for the pursuer to sign a guarantee. The pursuer stated that nobody told him anything about this, but nonetheless he was in the office at the appropriate time. Mr Milligan in his affidavit stated that the pursuer was meeting someone else in another room, but Mr Cleary's evidence was that the pursuer never used these office premises for his own meetings. It was therefore a remarkable coincidence that the pursuer was there at the crucial time. Mr Bowie said that all those who were required to be present were present at the meeting. Mr Milligan's affidavit was at odds with this evidence, but it was clear from what Mr Milligan was describing that he thought that this meeting occurred at the Balgrayhill office and not in the Kenmure Gardens office; Mr Bowie's version of the meeting, to the effect that the documents were all properly executed, should be preferred.
[66]In summary, counsel invited me to reject most of the pursuer's evidence as improbable, and contradicted on important matters of detail by Mr Cleary, by Mrs Nicholas and by Mr Bowie. He invited me to treat Jim Milligan's affidavit with great suspicion. He pointed out that Mr Milligan's evidence was not subject to cross-examination and the statement which he gave to Mr MacPherson left many important matters unexplained. There were contradictions between Mr Milligan's evidence and that of the pursuer. Mr Bowie's evidence on the other hand should be accepted as being generally credible and reliable; even if his record keeping was poor, at least Mr Bowie was honest enough to state that he could not remember events, and his evidence of what he would have said and what he would have done was reasonable and probable. It is true that Mr Bowie is being sued by the present defenders depending on the outcome of this litigation, but that would not have affected the manner in which he gave evidence. Counsel also pointed out that there were several witnesses who had not given evidence and who might have provided material on which to challenge the pursuer's evidence but who had mysteriously disappeared, notably Mr Boyle, Mr Murphy and Mr Collins.
[67]Counsel then turned to an assessment of the competing handwriting evidence and invited me to prefer Mr McCrae's evidence and conclusions to those of Mrs Thorndycraft. Counsel attacked Mrs Thorndycraft's evidence in a number of respects. He submitted that the way in which she dealt with the misinformation as to the authorship of documents 3, 4 and 5 in her first report was not satisfactory. She tended to be dogmatic and asserted that a person could only sign documents in one style; it was therefore surprising that she proceeded in her first report on the basis that the pursuer had two different styles of signature. Counsel submitted that it was one thing to assert that a person has a unique manner of writing, and another to say that one can only write in one style. He suggested that Mrs Thorndycraft's evidence did not stand up to close examination. She proceeded on the assumption that Mr Milligan was a skilled or experienced forger, but there was no evidence to support that assumption - he stated in his affidavit that he had not practised the pursuer's signature, although he had forged it in the past and had signed the pursuer's name on autographs. Mrs Thorndycraft relied on three aspects of what she described as the known writings of Mr Milligan. First were the forged signatures of 1990; these cast no light on the signatures questioned in the present action. Second were Mr Milligan's own signatures, but both experts agreed that there was little purpose in comparing different people's signatures because of the different formation of different letters in different names. She also placed considerable reliance on the underlining of Mr Milligan's signatures and the alleged similarities with the underlining of the questioned signatures. Counsel suggested that this was an extremely weak piece of evidence, and that Mr McCrae's evidence in this regard should be preferred. Moreover, it was unsafe to draw any conclusions from the signatures bearing to be of the pursuer which were said to have been executed by Jim Milligan; the document was prepared without supervision and in the course of this litigation, so was done for a purpose. Even if one did look at these writings, they were quite different from the questioned signatures; the formation of the letter "c" was quite different and Jim Milligan's signatures were largely joined up, whereas the questioned signatures were separate letters. This was a very weak basis for Mrs Thorndycraft's certainty that Jim Milligan had signed the two questioned documents. By contrast, Mr McCrae was a more impressive witness than Mrs Thorndycraft; he recognised the limitations of handwriting analysis and expressed his conclusions more as probabilities than certainties. He had taken the trouble to obtain further material, and it was a sensible approach to consider other types of handwriting apart from normal signatures. Counsel submitted that there was no satisfactory evidence that Mr Milligan signed the questioned documents. They were written in a manner of writing of which the pursuer was capable, and so it was probable that the pursuer did sign them. It was clearly either the pursuer or Mr Milligan who signed these documents, and on the balance of probabilities the Court should hold that it was the pursuer who signed them. Counsel concluded that none of the evidence formed a sound basis for reaching the view that these signatures were forged. The pursuer's case was unlikely, whereas the defenders case was that these were routine transactions. The Court should prefer the defenders' case.
[68]Turning to the defence of adoption/personal bar, counsel confined his submission to the first guarantee. In the event that the Court accepted on the basis of the handwriting evidence that the pursuer did not sign this guarantee, the Court could still accept the remaining evidence that Mr Bowie advised the pursuer of the need to sign this guarantee on 20 January 1999, and had discussed with the pursuer whether or not the guarantee would be required by the brewers. Thereafter there was the exchange between Mr Bowie and Mr Black, and Mr Bowie's letter to the pursuer of 25 January 1999. The brewers acted on delivery of the executed personal guarantee by paying the monies due in terms of the agreement, £59,824 being paid on 26 January 1999 and the balance of £60,000 being paid on 4 February 1999. Counsel submitted that it was recognised in Scots Law that where someone is aware that their signature has been forged on a document, if they allow it to be treated as genuine and allow someone else to act on it to their prejudice they will be treated as having adopted it and thereby become barred from challenging it. In support of this proposition he relied on McKenzie v British Linen Co (1881) 8R (HL) 8, and Muir's Executors v Craig's Trustees 1913 SC349. He accepted that in order for this defence to succeed he would have to establish (1) that the pursuer had actual knowledge that his signature had been forged on this document, and (2) that it was his duty to bring this forgery to the attention of the brewers before the second tranche of monies was paid over on 4 February 1999. He submitted that the pursuer must have been aware that the personal guarantee was required by the brewers as a result of his meeting with Mr Bowie. When he received Mr Bowie's letter of 25 January 1999 the pursuer must have been aware that the someone else had signed the guarantee and that it was being forwarded to the brewers. He did not act on this until actual enforcement of the personal guarantee in 2001. On the evidence of Mr Bowie, the letter of 25 January 1999 would have been sent in the normal course of business; this raised the presumption that it was received by the pursuer. The only question remaining was whether the pursuer opened it. Counsel invited me to infer that the pursuer would have opened it and seen the contents - even if he was dilatory in dealing with his mail, he would surely get around to it eventually. He accepted that the duty on the pursuer to inform the brewers was not a duty to act instantaneously but "one might have thought it would be dealt with fairly promptly", and a week or so without any contact either with the solicitors or the brewers was in counsel's submission too long.
[69]Counsel accepted that he had to show actual knowledge on the part of the pursuer of the forgery, but this could be inferred from the surrounding circumstances - the pursuer's attendance at the meeting on 20 January 1999, Mr Bowie telling him that the brewers required the document, Mr Bowie's advice regarding the document, and the letter sent to him on 25 January confirming that the guarantee had been forwarded to the brewers. This amounted to a relevant case of personal bar by adoption. For the avoidance of doubt counsel was no longer relying on mora taciturnity and acquiescence.
Response for the pursuer on personal bar
[70]Mr Kinroy invited me to reject the defence of personal bar and repel the seventh plea-in-law for the defenders. The onus of proof in this respect rests with the defenders, and although actual knowledge may be inferred, it can only be inferred from relevant evidence. The presumption that a letter is dispatched and received is a rebuttable presumption; there was no evidence that the pursuer received and read the letter of 25 January 1999 ever, and certainly no evidence that he read it before 4 February 1999. That date is important for two reasons - (a) because if the pursuer did not open the letter until after that date, it was too late for the defenders to found upon his lack of action, because they had already paid over the second tranche of monies, and (b) because adoption of a forged signature is a question of fact and in extreme cases a long delay in the certain knowledge that it will cause prejudice to another may tend to support adoption more easily. In the present case, the time scale was very short. Even if the Court could infer that the pursuer read the letter before 4 February 1999 (and there is no evidence that he did so) it would be very hard to say that the lapse of time between his reading it and 4 February 1999 supported a case of adoption, particularly when there was no evidence to suggest that the pursuer must have realised what the effect of delay in alerting the brewers might be. He may have believed that it was already too late and that the monies had already been paid over to the company - this was never put to him, and as the onus was on the defenders, this was a crucial omission. There was a distinction to be drawn between deciding to refrain from doing something on the one hand, and simply delaying for a few days on the other hand. The evidence on this aspect of the case was so nebulous and vague that the Court should reject the defence of personal bar.
Discussion
[71]In considering the question whether the pursuer has discharged the onus on him of proving, on the balance of probabilities, that he did not sign these two personal guarantees, and leaving aside at present the conflicting opinions of the handwriting experts, there are several factors which suggest that the pursuer did not execute these documents, and some factors which suggest that he did. The starting point must be an assessment of the evidence of the pursuer himself. He impressed me with his demeanour when giving evidence; he resisted the temptation to exaggerate, he made it clear when he was unable to remember details, but he had a clear recollection of the events in Mr Bowie's office in January 1999. He had no recollection of any meeting with Mr Milligan and Mr Bowie in the company's offices on 17 May 2000, but that was because his position was that he never attended any such meeting. Counsel for the defenders properly made the point that in order to accept the pursuers evidence, the pursuer himself must have been remarkably naïve in his business affairs, and that Mr Milligan must have shown a reckless opportunism in forging the pursuer's signature while the pursuer was on one occasion in the same building and on the other in the same room. These are proper points to raise, but on considering them I am satisfied on the evidence that, at least in the period 1999/2000, the pursuer was naïve and somewhat chaotic in his approach to business affairs. (I comment on Mr Milligan's evidence below). I found the pursuer to be generally both a credible and reliable witness. He gave evidence about his previous litigation in this Court concerning forged signatures on guarantees by Mr Milligan, which evidence was not challenged on behalf of the defenders. Against this background I consider that it is unlikely that the pursuer would choose to provide additional security to the business operated by Mr Milligan by signing further personal guarantees. His position in evidence was that he would never grant a personal guarantee again, and I accept this evidence. This position was supported by the evidence of the pursuer's wife, who stated that he told her that he would never sign anything which would jeopardise the family home, or anything like that.
[72]The pursuer stated that he took no active part in the running of the business, and in this evidence he was supported by the evidence of his wife, of Richard Cleary, of Alistair Bowie and by the affidavit of Jim Milligan. In particular, it is clear that the pursuer was not involved to any extent in negotiating or agreeing the terms of the loans from the brewers to the business in 1999 or 2000. The pursuer stated as much, as did Mr Cleary, Mr Bowie and Mr Johnston. Moreover, there was no correspondence from Mr Bowie, nor apparently from anyone else, to the pursuer in the months, weeks or days preceding 20 January 1999 or 17 May 2000, nor any memo, file note or other record of any telephone call to him or conversation with him alerting him to the need for him to sign a personal guarantee on these dates. Standing the fact that the pursuer was not a director of the company and took no active part in its management, it seems surprising that if it was the intention of Mr Milligan and those managing the company to ask the pursuer to sign these guarantees, and if they did ask him to do this, no evidence of such a request was before the Court. Standing the pursuer's bad experiences relating to Mr Milligan and personal guarantees in the past, I should have expected him to remember if such a suggestion was made to him. I accepted his evidence that no such suggestion was ever made to him.
[73]When the signature bearing to be the pursuer's signature was adhibited to each of these documents, it appears that the address "12 Eccles Street, Springburn" was already typed on the document immediately below where the grantor of the guarantee was to sign. This was not the pursuer's correct address, and was an address at which he had never lived nor had any connection with. (Mr Milligan in his affidavit states that it was Mr Milligan's mother's address). The evidence was to the effect that this address was on each document before it was signed. If the pursuer had signed these documents he could not have failed to have noticed that the wrong address was given for him, and it is surprising that he did not draw attention to this fact. (I note in passing that in his letter to Wright Johnston & MacKenzie dated 17 May 2000, No. 7/36 of process, Mr Bowie states that "Mr Nicholas' address is incorrectly stated as he now resides at 14 Islay Drive, Newton Mearns and you have used a previous address". This is not accurate, as there is no evidence that the pursuer ever lived at 12 Eccles Street, Springburn). The fact that on neither 20 January 1999 nor 17 May 2000 the pursuer drew attention to Mr Bowie that the incorrect address had been given lends some support to his evidence that he never saw these documents at the time.
[74]Senior counsel for the pursuer made the point that it was never put to the pursuer in cross-examination that he had deliberately adopted a style of signature different to his usual signature when signing these documents. I consider that there is some force in this point. This is really the crux of the defender's case, namely that these signatures have been placed on these documents by the pursuer, but disguised to enable him to claim that they were forgeries. It is fair to say that the pursuer's evidence throughout was to the effect that he did not sign these documents, but he should have been given the opportunity to comment on the defenders' thesis that he signed the documents but not with his usual signature.
[75]There is also the affidavit of Jim Milligan (No. 6/15 of process), and the evidence of Mr MacPherson relating to his meeting near Edinburgh Airport with Mr Milligan. Although there are some discrepancies in matters of detail, in general this affidavit supports the evidence of the pursuer; in it Mr Milligan admits that he signed the two guarantees in question by signing the pursuer's signature. I should make it clear immediately that I attach little evidential weight to this affidavit, because Mr Milligan has not been subject to cross-examination nor the rigorous testing which the other witnesses underwent in Court. However, I consider that it would be wrong to attach no evidential weight to it at all. It provides support for the pursuer's evidence not only in generality but also in many specific details. If Mr Milligan was not the person who forged these signatures, I find it surprising that he would perjure himself by swearing an affidavit admitting that he was a forger. It may be suggested that he did so simply out of friendship with the pursuer, and to assist him in this litigation. However, he travelled to Edinburgh from The Republic of Ireland to meet Mr MacPherson, and travelled again to Glasgow from The Republic of Ireland to swear this affidavit, which might be said to provide powerful ammunition against him in any future proceedings. On the face of it, it seems unlikely that he would admit to committing the serious crime of forgery simply to help out a friend. I have therefore had some regard to this affidavit, while treating it with caution and attaching less weight to it than if Mr Milligan had given evidence in Court. It does provide a further element of support for the pursuer's case.
[76]There are two major, and other less important, aspects of the evidence which might be said to go against the pursuer's evidence. The first of these was Mr Bowie's evidence that it was his normal - indeed his invariable - practice to explain the effects of a personal guarantee to a client and take specific instructions from him and give clear advice before obtaining his signature to a personal guarantee. If he followed this practice with the pursuer on 20 January 1999 and 17 May 2000, the pursuer must at least have been aware that he was being asked to sign personal guarantees on these dates. There are however several aspects of Mr Bowie's evidence which I found unsatisfactory. He was unable to remember most of the important details of the meeting on 20 January 1999, except that he was out of the room when the personal guarantee was signed, and he remembered none of the circumstances of the personal guarantee being signed in May 2000. His evidence was confined essentially to what his normal practice would have been. Moreover, there was no written record of what went on at either of these meetings, not any record of Mr Bowie having complied with his normal practice on these occasions. His evidence of his normal practice regarding training a receptionist in witnessing documents was at odds with Gillian Toner's recollection of what actually happened in her case. His evidence was that he would have given Miss Toner instructions as to what should be done when she was witnessing a signature to a document in the first month of her employment. Her evidence was that she had never been given any training on what to do, and no one had explained to her what she should do (and she had no recollection of witnessing the pursuer's signature on 20 January 1999 nor could she recollect seeing him in the office that day.) Mr Bowie's evidence of what he would have done also conflicted (in regard to the terms of No. 7/26 of process) with the evidence of Mr Black of Wright Johnston and MacKenzie. In each case I preferred the evidence of the actual recollections of Miss Toner and Mr Black to Mr Bowie's assertion of what his normal practice would have been.
[77]Mr Bowie also gave evidence that the Law Society of Scotland allowed a solicitor to act for two parties if there is a conflict or potential conflict of interest, where both parties agree to this and both are existing clients. There was no satisfactory evidence that the pursuer was an existing client of Mr Bowie, either at 20 January 1999 or at 17 May 2000. The pursuer denied ever being a client of Mr Bowie, and no documentary evidence was before the Court to support the view that he was a client of Mr Bowie. Mr Bowie gave evidence that the pursuer had been a personal client of his when he consulted him regarding re-mortgaging his house, but this was "within the last five years" and he could not say with certainty whether it was before or after May 2000. This appears to support the pursuer's evidence at least to the extent that he was probably not an existing client of Mr Bowie as at 20 January 1999. Mr Bowie's evidence with regard to his normal practice about explaining matters to an existing client also varied. In answer to a question from the Court, he said that his normal procedure was to explain the possible conflict of interest and tell the individual (who was an existing client) that he could seek separate representation before signing the document, and if the individual did not wish this, Mr Bowie would ask him if he wanted to instruct Mr Bowie. If the individual replied in the affirmative, the solicitor/client relationship would arise, and Mr Bowie would then explain the terms of the document to the individual and advise him as to the possible consequences of signing it. This evidence does not sit comfortably with other evidence he gave, when he was asked if he would give a general explanation to everyone at the beginning of the meeting or to each person before signing a document, and he replied probably the former of these; he would therefore not give an explanation one to one sitting down with the pursuer alone. (Incidentally, Mr Cleary had no recollection that the terms of the loan agreement (No. 7/236) were explained to him by Mr Bowie before he signed that document, and he stated that he may have signed the document even if it was not explained to him).
[78]Mr Bowie is being sued for damages for professional negligence in respect of the execution of these personal guarantees, so he cannot be regarded as a wholly disinterested party in this action (although, of course, nor can the pursuer). However, I was not impressed by his demeanour in giving evidence; he was evasive in many of his replies to questions, and on occasions he gave answers which appeared to be inconsistent with other answers. For example, at one point he stated that he would look at each and every document when he returned to his office having spoken to Mrs McCulloch on 20 January 1999, but when asked if he recollected doing this, he replied "Under oath, no." Throughout his evidence he appears to have proceeded on the basis of assumptions rather than on actual recollection. He assumed that he had done things, even when there was no file record to indicate that he had done them; he assumed that he complied with his normal practice; and he assumed that other people (such as Mr Milligan or Mr Boyle) would have told the pursuer what was happening, why he was to attend these two meetings, and that attempts had been made to persuade the brewers not to require a personal guarantee from him. There was frequently no hard evidence to support these assumptions, nor to suggest that they were reasonably made. Looking at the evidence as a whole, I preferred the evidence of the pursuer to that of Mr Bowie.
[79]Another adminicle of evidence which might be said to count against the pursuer was the file copy of Mr Bowie's letter to him dated 25 January 1999 (No 7/120) which is set out in full above. If the pursuer read this letter, he must have appreciated that it was being suggested that he had signed a personal guarantee at the meeting on 20 January 1999. The defenders argue that his silence after this letter, and his failure to point out that he never signed any guarantee on that date, indicates that he did indeed sign the document. However, I accept the evidence of the pursuer and his wife that the pursuer's practice with regard to opening and dealing with mail was erratic and chaotic, and I am satisfied that the terms of this letter did not come to the attention of the pursuer. Again, there was no direct evidence that the letter was posted, but Mr Bowie stated that he was quite sure that he dictated this, and I accept his evidence on this point. There was no evidence relating to the procedures of Hennessy Bowie regarding the posting of letters, and I retain some doubts as to whether it is proper to proceed on the basis that No. 7/120 of process is a copy of a letter that was actually posted. However, I do not proceed on the basis of these doubts, but rather on the basis that I accept the evidence of the pursuer and his wife that he did not see this letter. I am re-enforced in this view by the point made by senior counsel for the pursuer that if the pursuer had deliberately signed this personal guarantee using a disguised signature one might have expected him to point out that this was not his signature when a copy of the guarantee was sent to him by Mr Bowie, just as one would expect him to point out a forgery by someone else. I note that there was no history of any other correspondence - nor any suggestion of the existence of other correspondence - from Mr Bowie to the pursuer; all the correspondence and discussions which Mr Bowie had regarding the company appeared to have been with Mr Milligan, Mr Boyle or Mr Cleary, and never with the pursuer himself. Moreover, Mr Cleary gave evidence that the pursuer never mentioned any personal guarantee when Mr Milligan disappeared, and his subsequent reference in about the summer of 2001 that he had been told of some personal guarantees of which he was unaware supports the pursuer's contention that he never received this letter.
[80]There are other points relied on by counsel for the defenders, which may be thought to undermine the pursuer's position. Counsel relied on what he described as the extraordinary coincidence that the pursuer attended both of these meetings without anyone telling him that he was required to attend them nor the purpose for his attendance. On the face of it this does seem curious; however, I accept that the pursuer was naïve and capable of being manipulated by Mr Milligan, and that it was his practice to visit Mr Milligan in the company's offices on a social basis during the afternoon quite frequently. Against this background, it does not appear such a coincidence that the pursuer was with Mr Milligan (or, in the case of the second guarantee in May 2000, the same building as Mr Milligan) when these documents were signed. It may be that if the pursuer had not been present at, or in the vicinity of, these meetings Mr Milligan would have required to use a different plan to procure the apparent execution of these guarantees.
[81]Another factor pointed to by counsel for the defenders was the surprising disappearance - or at least non availability - of several witnesses who might shed light on the circumstances surrounding the signing of these guarantees, including Mr Boyle, Mr Collins, Mr Murphy and (apart from his affidavit) Mr Milligan. However, I am satisfied from the evidence of Mr MacPherson that the pursuer, through his agents, has made all reasonable efforts to locate relevant witnesses, without success.
[82]Turning to the evidence of the two handwriting experts, it is often invidious to have to make a choice between two experts who were clearly doing their best to assist the Court. I have no doubt that both Mrs Thorndycraft and Mr McCrae fell into this category, and I am obliged to each of them for their assistance. However, when considering and assessing their evidence I prefer the evidence of Mrs Thorndycraft to that of Mr McCrae. In terms of methodology, observation, reasoning, attitude when giving evidence and conclusions I found myself persuaded by Mrs Thorndycraft in preference to Mr McCrae.
[83]With regard to methodology, both experts expressed the view that it was preferable to compare known signatures with other known signatures. This was Mrs Thorndycraft's methodology; she based her conclusions on a comparison of signatures, rather than on a comparison of signatures with general writings. Although Mr McCrae agreed that a person who is writing a signature is doing something quite different from what he is doing when writing a passage of hand-written text, he based his conclusions to a significant extent on passages of hand-written text and on the pursuer writing his name in a variety of styles dictated to him by Mr McCrae. Mr McCrae eventually accepted in cross-examination that documents E13-E24 attached to his report were not the pursuer' known signatures, but maintained that they were examples of writing of which the pursuer was capable. I do not consider that it necessarily follows that because a person is capable of writing in a particular style, that a signature in that style was written by that person. Mr McCrae's methodology depended to a significant extent on his examination of documents E13-E26 attached to his report (No. 7/58 of process). I am not persuaded by the soundness of this methodology.
[84]It also appeared to me that Mrs Thorndycraft's observations as to the particular characteristics and relationships of the various components in these signatures were more persuasive than those of Mr McCrae. I found her evidence with regard to the formation and relationship in terms of height of the first letter of the signature "C" with the second letter "h" to be more persuasive than that of Mr McCrae - the pursuer's normal signature appears to have begun with an upper case letter "C" which was normally taller than the letter "h", in contrast to the two questioned signatures in which the letter C was clearly smaller than the letter H. The letter H itself was in my view obviously differently formed in the two questioned signatures, having a more rounded apex, unlike the more sharply pointed apex in the pursuer's normal signature. Mrs Thorndycraft noticed this difference and relied upon it to some extent; Mr McCrae on the other hand expressed the view that there was little difference between the two styles, and that they would both be acceptable as being of common authorship. With regard to the lines below Mr Milligan's signatures and on the questioned signatures, and also with regard to the formation of the letter "A" in the questioned signatures by comparison to the pursuer's normal signatures, I found myself preferring Mrs Thorndycraft to Mr McCrae. The two questioned signatures had a quite different ending from the genuine signatures of the pursuer, and the relationship of the height of the letter "l" to the height of the capital "N" in the pursuer's genuine signatures is quite different from that in the two questioned signatures. The questioned signatures appeared to end with the letters "OS" unlike the pursuer's normal signatures; the pursuer's normal signatures also contain a stylised "tail", which extends below the line, to the letters "e" of Charlie and "l" of Nicholas; these are features quite missing from the questioned signatures. With regard to the second questioned signature, on the document dated 17 May 2000, it does appear clear that the pursuer's surname has been misspelt with two letters "l". On each of these aspects of the evidence, where there was a difference between Mr McCrae and Mrs Thorndycraft I preferred the observations of Mrs Thorndycraft.
[85]Turning to the attitude of each of these expert witnesses when giving evidence, I do not consider that it is fair to categorise Mrs Thorndycraft's evidence as unduly dogmatic, nor do I think that she can be criticised fairly for her attitude to the signatures on documents 3, 4 and 5 in the first report which she prepared. At that time the information which she had been given was that these documents bore the known signatures of the pursuer. This information was incorrect, but Mrs Thorndycraft was not in a position to contradict the information given to her. What she did do was to point out that these three signatures were written in a quite different style from the rest of the pursuer's known signatures. I do not regard her treatment of these signatures at that stage as undermining her evidence. I found the manner in which she gave evidence in Court both measured and persuasive. I did not find the way in which Mr McCrae gave his evidence so persuasive. He was extremely reluctant to accept that the examples which the pursuer wrote of his name in documents E13-E18 attached to his report, which were in a separated letter style, and E19-E24 which were written in block letters, were not examples of his normal signature. Initially he maintained that these were a "version" of his signature, and that they were his known signatures; ultimately he accepted in cross-examination that they might not be his known signatures but were his known writings. He was not prepared to depart from the view expressed in the penultimate paragraph of his report (No.7/58 of process) that "with such wide variations of known signatures, it is very possible that Mr Nicholas could produce another variation such as the questioned signatures". He accepted that this view was expressed at a time when he believed that the pursuer's known signatures included those on documents 3, 4 and 5, but he remained of this view even excluding those signatures. He maintained this view even with regard to the three signatures to be found at the bottom of No. 7/372 of process, and he maintained that these contained an unusual extent of variation. When faced with his own signatures on the back of the documents attached to his report he accepted that there was a variation, and ultimately he accepted that the statement at the top of page 5 of his report that "all these signatures display a wide range of variation within the writing of one person" was perhaps exaggerated and that the variation was perhaps not wide, but still wider than he would expect. I formed the impression that Mr McCrae was reluctant to accept any criticism of his methodology, observations or conclusions.
[86]Mr McCrae reached the conclusion that there were enough similarities between the features of the pursuer's known signatures and the questioned signatures to enable him to express the view that the pursuer probably was the author of the questioned signatures. Mrs Thorndycraft formed the opposite conclusion, namely that the pursuer was not the author of the questioned signatures. Having regard to the overall mixture of the height of the letters, the proportion of the letters to each other, the underlining, the punctuation and the formation of the different letters she was satisfied that Jim Milligan was the author of the questioned signatures. Looking at the handwriting evidence in isolation, I prefer the conclusions of Mrs Thorndycraft to those of Mr McCrae.
[87]Taking all of the evidence together, I am satisfied on the balance of probabilities that the pursuer was not the author of the two questioned signatures on the personal guarantees dated 20 January 1999 and 17 May 2000, and that these signatures are forgeries. Although strictly it is not necessary for me to express a view as to who was the author of these signatures, taking all the evidence together I am of the view that it is probable that Mr Jim Milligan forged these signatures.
[88]The only matter that remains is the defence of adoption/personal bar. This defence was confined to the guarantee signed on 20 January 1999, and was advanced on the basis that the Court held that the pursuer did not sign this guarantee but accepted the remaining evidence that Mr Bowie advised the pursuer of the need to sign this guarantee, discussed with the pursuer whether or not the guarantee would be required by the brewers, and thereafter the pursuer received the letter from Mr Bowie dated 25 January 1999. As indicated above, I do not accept the factual basis on which this defence is advanced. I am not persuaded that the pursuer was told by anybody of the brewers' requirement that he should sign a personal guarantee, before 20 January, on that date, or at any date before 4 February 1999. I am not persuaded that any explicit advice was given to the pursuer about the need for such a guarantee or the effect of granting such a guarantee in Mr Bowie's office on 20 January 1999; and I am not persuaded that the terms of Mr Bowie's letter dated 25 January 1999 came to the attention of the pursuer. In light of these determinations on the facts, I do not consider that the defence of adoption/personal bar is arguable. Even if I am wrong in my determination on these factual matters, I am not persuaded that the pursuer could be treated as having adopted the personal guarantee as genuine and thereby having become barred from challenging it by 4 February 1999. Not only was the evidence to the effect that the pursuer was dilatory and chaotic in his opening of mail, it was clearly also to the effect that in January and February 1999 the pursuer spent part of each week working in London; I have also held that he was naïve in his business dealings. There was no evidence before me as to where the pursuer was between 26 January and 4 February 1999 - he was never asked if he was at home during this period, or part of it. Moreover, he was never asked whether he knew about the details of the payment of monies by the brewers to the company - he was never asked if he knew that only £59,824 was paid over on 26 January 1999, with the balance of £60,000 being paid on 4 February 1999. Counsel for the defenders accepted that the duty on the pursuer to inform the brewers was not a duty to act instantaneously, but "one might have thought it would be dealt with fairly promptly". Even if there had been evidence that the pursuer was at home for the whole or part of the period 25 January to 4 February 1999, and if I had been prepared to infer that the terms of the letter of 25 January 1999 were made known to him at some stage during this period, I should not have been prepared to sustain the defence of adoption on the basis of such vague evidence and on the basis of such a short period. Even assuming that the pursuer became aware of the contents of the letter of 25 January 1999 on the following day, and was aware that only about half of the loan monies had been paid over, I do not consider that the defence of adoption would apply in such a short timescale. When one looks at the vagueness of the evidence in relation to this aspect of the case, including the absence of any evidence as to the pursuer's whereabouts during the relevant period, the absence of any evidence pointing to his knowledge that only part of the sums had been paid over, and the absence of any evidence to indicate that he was aware that the balance might be paid over on 4 February 1999, even if I had been satisfied as to the factual hypothesis that the pursuer was aware that a personal guarantee must have been signed in his name, I would not have sustained the defence of adoption.
Decision
[89]For the reasons given above, I am satisfied that the pursuer did not sign the guarantees dated 20 January 1999 and 17 May 2000 referred to in the first and second conclusions. I do not consider that the defence of personal bar by adoption has been made out. Accordingly, I shall sustain the first plea-in-law for the pursuer, repel the first, second, third and seventh pleas-in-law for the defenders, and grant reduction of the two guarantees dated 20 January 1999 and 17 May 2000 in terms of the first and second conclusions.