IN THE CARDIFF COUNTY COURT
by JULIAN LEWIS his litigation friend Claimant
PAUL GREY Defendant
Background – matters not in dispute
The Claimant is a gentleman aged 94. Although he enjoys reasonably good physical health he suffers from a condition which has been described as mild to moderate dementia. He has resided in a care home since Easter 2003. His son, Dr Julian Lewis, who is his litigation friend, has been his Court of Protection Receiver since July 2003.
Until Easter 2003 the Claimant lived at 6, Glanmor Road, in the Uplands, Swansea, which had been his home since about 1958. He had lived there alone since the death of his wife in 1987.
The evidence is that from the late-1990s the Claimant began to have short-term memory problems. He was, nevertheless, lucid and quite capable of holding a normal conversation and transacting business. His problem was that he had trouble remembering what he had said or done in the very recent past. He could repeat himself, and ask the same question several times in the same conversation. In cross-examination, Dr Lewis said speaking of the times material to the issues in this case, “I place no reliance upon my father’s memory of an event after it happens, but at the time something happens he is very rational.” I interpreted this to mean that he would understand entirely what he was doing at any one time, but would then have great difficulty in remembering that he had done it. That is not an uncommon feature of advanced age, and is a characteristic which those who have had regular conversations with someone suffering from short-term memory loss will very easily recognise – as some of the testimony in the case demonstrated.
In the instant case, the Claimant at all material times was living on his own with only the occasional services of a part-time carer who came in about twice a week to do washing and ironing for him. Dr Lewis told me that his father was proud of his independence. He has two children: Dr Lewis and his sister. The sister lives in Israel. Dr Lewis lives in Hampshire, and his duties as a Member of Parliament require him to spend much time in London, so that when his father was living in Swansea he kept in contact mainly by telephone. He had invited his father to come to live with him after the death of his mother, but his father wished to carry on living in his own home. There is no suggestion that the Claimant neglected himself, or that he was incapable of leading an independent life until about Easter 2003, following the events with which these proceedings are concerned.
In November 2000 the Defendant, who was at all material times a builder by trade, says that he distributed some advertising leaflets in the Uplands area of Swansea, as a result of which the Claimant made contact with him. By agreement between them the Defendant did some work for the Claimant on the roof and exterior of the house in Glanmor Road. For the main part of the work he charged the Claimant £700: see p. 44 of the trial bundle where an “Enterprise Roofing & Building” invoice appears, on which, Dr Lewis said without challenge in cross-examination, the single word “PAID” appears in the Claimant’s handwriting. (The “Enterprise” business name was one which the defendant admits he was using at that time.)
By paragraph 4 of his Defence the Defendant pleads that in or about November 2001 the Claimant contacted him again “requesting that he carry out some roofing work at the Claimant’s property” although the Defendant was unable to recall the precise nature of the work or the charge he made. By this stage the defendant had changed his business name to “St James’s Building Services” – see paragraph 2 of his witness statement at p. 192. A document dated “16-11-2001” under that name shows that £130 was paid for “roof repair.”
No complaint was or is made by or on behalf of the Claimant about the quality of the work done in 2000 or 2001, nor as to the reasonableness of the charges made by the defendant in respect of such works.
Dr Julian Lewis says in his witness statement (paragraph 12) that some months before 2002 he had visited his father and had noticed that there was dry rot affecting part of the house. This obviously needed attention, so he had engaged Mr Eddie Hoolachan, who trades as HI Construction, to investigate and provide an estimate for remedial works. These works, it is to be noted, were internal works.
On 4 November 2002 Mr Hoolachan provided a written quotation for remedial works in the sum of £4380 plus VAT (p.47 trial bundle,) in which he said that the dry rot had been caused by water penetration through a defective roof. Dr Julian Lewis accepted this quotation by letter dated 11 November 2002 (p. 48 trial bundle) and, after informing his father, authorised Mr Hoolachan to begin work on 25th November 2002.
On some other date in November 2002 the Defendant again attended at the Claimant’s home. His pleaded case (see paragraph 5 (a) of the Defence at p. 8) is that he was contacted by the Claimant in about November 2002 to carry out “roofing work at the back of the Claimant’s property” [emphasis added]. On p.193 of the trial bundle at paragraph 6 of his witness statement, Mr Paul Grey says “In or around November 2002 I was again contacted by the Claimant who telephoned me and asked me to carry out work on the roof at the back of the house.” [ditto.] Whether the Claimant contacted Mr Samuel Lewis or vice-versa, it was undoubtedly agreed that the Defendant would perform some work on the house at that time.
On November 14 2002 Mr Paul Grey was given a cheque for £800 by Mr Samuel Lewis as part-payment for the work. On November 18 2002 he was given a further cheque by Mr Samuel Lewis for £1,000.
This came to the attention of Dr Julian Lewis when he rang his father on the evening of 20 November 2002 to remind him that Mr Hoolachan’s men were coming later that week. Mr Samuel Lewis said “Oh, but Julian the builders [emphasis added] are here already.” He went on to say that he was not happy because the job was turning out to be much bigger than he had expected, and they were making a terrible mess (p. 34 trial bundle, paragraph 13.)
Dr Julian Lewis therefore telephoned and asked his father if he had paid the builders any money, and learned that his father had given “a Mr Grey” the two cheques totalling £1800. His father told him this after referring to his cheque book in which he always recorded his cheque payments “meticulously.” A copy of the cheque-book record sheet (it was not the type of cheque-book with counterfoils) is at p. 64 of the trial bundle, and does show scrupulous attention to detail by Mr Samuel Lewis. “P. Grey” is shown against each of the two cheque payments, with the correct dates, 14 and 18 November 2002 respectively.
In the same call, Dr Julian Lewis asked his father to let him speak to Mr Grey, but he was not at the house at the time. His labourer, whose name was Alan, confirmed he was working for Mr Paul Grey and agreed to ask him to call Dr Julian Lewis. The Defendant did so, and explained that the work, which would be completed soon, included re-rendering walls and that the funds already paid covered the entire cost.
On 21 November 2002 Dr Julian Lewis wrote a letter to his father which is at pp. 53-54 of the trial bundle. Dr Lewis found it later on in his father’s papers. It had been opened and evidently read by his father. In paragraph 9 he expresses his concern over his father’s vulnerability, and presciently, his worry that his father might be persuaded to pay large sums of money inappropriately. “For that reason, I again stress that you should never pay money in future without telling me first and we may need to consider special arrangements for me to be able to protect your interests in future.” (The terms in which that observation was written may well have been regarded with a degree of apprehension by Mr Samuel Lewis as referring to some possible future restriction on his independence, of which on the evidence he was fiercely proud, in his own quiet and dignified way.) Be that as it may, there is then, at paragraph 10, what may be a significant sentence:
“Anyway, the important thing is that you do not write any more cheques for any of these builders.”
Dr Julian Lewis was indeed sufficiently worried over the matter to alert staff at the branch of Lloyds Bank in Glanmor Road and to ask them to let him know if there were any suspicious withdrawals from his father’s account.
On 4th December 2002 the sum of £500 was paid from the account of Mr Samuel Lewis at Lloyds Bank against cheque number 000381: see p. 68 trial bundle. That corresponds precisely with an entry on p.64 – the record of cheques drawn in Mr Samuel Lewis’s chequebook. The entry reads:
Cheque Number 381
Description (payee etc.) Mr Paul Grey Self.
Paid out £500.”
(The inferences to be drawn from this evidence are not agreed, and I shall deal with them separately.)
It is not disputed that on December 6th, 16th, and 20th, the Claimant made entries showing the payee as “self” in his cheque book record, and cashed cheques corresponding to those entries to a total value of £3100. The individual sums in cash were obviously handed over to someone, and there is no evidence of any work or other valuable consideration having been performed in respect of such payments.
Facts in issue
The identity of the person who was given the cash on each of the occasions referred to above, and on the four further occasions in January 2003 is the central issue of primary fact in the case.
On behalf of the Claimant Mr Wynne-Griffiths submits that I should draw the inference that Mr Paul Grey requested a sum of £500 from Mr Samuel Lewis on 4th December and that Mr Lewis first wrote out Mr Grey’s name on the cheque record for that reason. It is, he submits, a document generated by Mr Samuel Lewis at the time of the transaction itself. It seems that the Claimant’s case is that either he was asked by Mr Grey to pay him in cash, and initially wrote “P.Grey” simply because he was writing down the name of the person to whom the cash was going, or that he remembered what Dr Julian Lewis had written in his letter, telling him not to write any more cheques to any builders, and so, having written “P. Grey” initially he crossed it out and altered it to “self.” What is unquestionable is that the Claimant initially wrote “P.Grey” as payee.
Miss Collins for the Defendant submits that whilst the entries on p. 64 appear to show some clarity of mind on the part of Mr Samuel Lewis, that impression is dispelled by the plain fact that he has written cheques to “self” time and again and recorded them one after another without realising either that no work has been done or that he has already paid more than enough. This has an impact, she submits, on the question of how rational Mr Samuel Lewis can really be said to have been at the material time. She points to a number of matters which show that recollections of Mr Lewis senior were plainly incorrect when he was speaking on the phone to Dr Lewis.
In her very thoughtful and careful submissions Miss Collins did not, so far as I could tell, dissent from the proposition that the fraudulent recipient of the cash on the 4th December was also likely to have been the recipient on each of the subsequent occasions, but she submitted (a) that there was no reliable evidence that that was Mr Grey; and (b) that I should accept Mr Paul Grey’s evidence that he did not go to Glanmor Road on the 4th December (or the 5th or 6th) because he was dealing with his van which had broken down. Thus if he were not the recipient (and could not have been) on the 4th December, he was not the recipient on any of the subsequent occasions.
Mr Hoolachan said in his statement (p.164-165) that his men completed their work on Friday 6th December. He gave oral evidence and was cross-examined. In examination-in-chief he said that he was “on site” every day when his men were at the home of Mr Samuel Lewis. When he was not there (which in cross-examination he explained would only be for short periods of time, up to a maximum of two hours) his men were supervised by the foreman, Mr Bowler. There was no question of his men “popping back” to Glanmor Road after completing their work there on 6 December until two men went back at the beginning of March 2003 at the request of Dr Julian Lewis. He said that the only occasion on which he had seen Mr Paul Grey on site was on the very first occasion in November. He conceded that it was quite possible Mr Paul Grey had been there when his men were doing their work in November and December.
I turn next to the evidence of Mr Chris Segar. Mr Segar is a television journalist and broadcaster who is also one of the presenters of an investigative current affairs programme broadcast by ITV Wales and called The Ferret which at various times featured a number of reports on this case. Although Miss Collins did not submit that Mr Segar’s major interest in the case was the newsworthiness of a story involved in exposing a jobbing builder for “fleecing” a 90-year old, any dispassionate observer would plainly have to take that into account in approaching his evidence. It is also necessary to take into account, in my view, the fact that the Defendant was grossly abusive to Mr Segar personally in some of the clips of the film reports which I was invited to watch by both sides, which might have even a subconsciously influential effect upon any witness in his position. Having considered both those matters, I reached the conclusion that Mr Segar was essentially a thorough, careful and methodical researcher into the material for his programme. Whilst he presented a robust and somewhat partisan appearance in challenging the defendant on camera, I am satisfied that that was a presentational device which followed a professionally-conducted investigative journalist’s inquiry into the material which was turned up in the research he and his assistants conducted.
Mr Segar produced the typed notes which he had made with the assistance of his team. These are in the trial bundle at p. 201ff. They begin with a chronology, the accuracy of which was not challenged and which is essentially borne out by much of the first-hand and documentary evidence which was given during the hearing. However, in respect of the period of 4th – 6th December, “double hearsay” reports were adduced in the course of Mr Segar’s evidence. That is the matter referred to in the first paragraph on p. 202:
“At the end of Eddie [Hoolachan’s] contract, Dec 5 or 6 Eddie sees Grey shifting rubbish at the back [i.e. the back of Mr Samuel Lewis’s house]. Eddie’s foreman Barry Bowler sees Grey once leaving the house, and once, when he knocks on Mr Lewis’s back room door, Grey answers and says Sam Lewis is busy, and can he come back another time.”
The source of this information is given as “BARRY TO PF” “Barry” is the foreman, Mr Bowler, and “PF” is Paddy French, one of Mr Segar’s assistants. A further observation, not expressly attributed to any particular source but following immediately upon the above, is as follows:
“The rendering is done before 2nd December and after that only Grey is seen around by H I staff.”
The first point to be made about the hearsay evidence is that, so far as it concerned Mr Hoolachan personally, it was not in accordance with his direct testimony in cross-examination that he only saw Mr Paul Grey on the occasion of his first visit to the site in November 2002: see paragraph 23 above. I therefore take no account of that aspect of the hearsay evidence, and bear in mind the doubt which that inconsistency may cast upon the remainder of it. On the second point, in his own observation of the Defendant Mr Bowler may or may not have been referring to the 5th or the 6th December: the context does not make it clear, and I do not therefore take that into account when assessing the truth or accuracy of the Defendant’s direct testimony that he was not at the premises on any of the days between 4th and 6th December 2002. However, there is my view no reason to doubt Mr Bowler’s hearsay account that he saw Mr Paul Grey once leaving the house, or that once he knocked on the back door and it was answered by Mr Paul Grey who said that Mr Samuel Lewis was busy. Miss Collins submitted that I should ignore the hearsay altogether, as Mr Bowler had been available to give evidence viva voce if required, and there was no good reason for his not being called, merely an oversight on the part of the Claimant’s legal advisers (as Mr Wynne Griffiths candidly admitted.) However, there is clear evidence from the defendant’s own observations during at least one telephone conversation with Dr Julian Lewis that he was familiar with the interior of Mr Samuel Lewis’s home, even to the extent of being able to recall, over a year later, the detail of photographs displayed on top of a television set.
One piece of hearsay evidence might possibly be regarded as helpful to the Defendant: at p. 202 there is a note, the source of which is apparently the diary of Mrs McGairl, the part-time carer for Mr Samuel Lewis, that on 10th December 2002 a man in white overalls and a woollen hat was working “at the back” and this was not Mr Grey. But, the note adds:
“This is the last reference to anyone other than Grey being seen at the house.”
In his witness statement at paragraph 19 (p. 35 trial bundle) Dr Julian Lewis said that,
“Just as Mr Hoolachan’s work was ending in the first week of December, Mr Grey telephoned me and said that, although his work on the roof and walls was complete, he had discovered that some additional work needed to be carried out on the guttering and down-pipes at the rear of the house. He said it would cost an extra £400. I agreed to this. On 8 December 2002, Mr Grey supplied an invoice for £400 for removing and replacing the fascia boards (the boards under the eaves of a house which cover the ends of the rafters), guttering and down-pipes. On 16 December Mr Paul Grey supplied Dr Julian Lewis’s secretary with a break-down of the work already done in a handwritten note dated ‘19-2-02’.”
(It is accepted that this was written in error, in that it omitted a “1” before the “2”, which therefore indicated February, instead of December as intended.) This note is to be found at trial bundle p. 57. It refers, inter alia, to “All building debris removed to tip.” It also states that full payment for the work has already been made in the sum of £1,800.
In cross-examination Mr Paul Grey said that he last worked at Mr Samuel Lewis’s address in 2002 on December 18th. His attention had been invited to a newspaper report at p. 90 of the trial bundle in which he had been quoted as saying that, “That money went missing in January 2003 and I had stopped working there on December 20. 2002.” Asked about the accuracy of that he said,
“A. The thing is that I have always said I finished on the 18th [December].
Q. How clear is your recollection?
A. Very clear.
Q. How do you know the paper didn’t get it wrong?
A. The report is incorrect. I worked up to Wednesday 18th December. I spoke to Julian Lewis – he was at the House of Commons I think – and I said the work was finished and I had a cheque [from him for £400] in the next day’s post. I wouldn’t have been so stupid as to go back two days later.”
He was then asked about the contents of paragraph 16 of his witness statement, in which he had said,
“…throughout the time that the monies were alleged to have gone missing, there were many other workmen at the Claimant’s property carrying out work there; as already stated, H.I. Construction were working at the Claimant’s house as were others who worked for me on a self-employed basis, including roofers, plasterers and two casual labourers. This is in addition to other workmen, such as the unknown plasterer to whose work Dr Julian Lewis had previously referred, thinking I had carried it out.”
In cross-examination, he agreed that there had only been the one plasterer who had worked for him, and that he himself had been there “quite a few times in December. I would have been there [i.e. at the Claimant’s house] on 16th December.” That date was the date of the third of the four December cash withdrawals by Mr Samuel Lewis.
On January 7, 9, 24 & 27, the Claimant cashed cheques to a total value of £5,400, and again the money was handed over to someone, but there is no evidence of any work or other valuable consideration having been performed in respect of such payments.
On 27 January 2003 Dr Julian Lewis received a telephone call from a cashier at the Glanmor Road branch of Lloyds Bank. This was from Mrs Hazel Matthews. She had become concerned “that my father was repeatedly withdrawing large sums of cash.” She later told Mr Segar that Mr Samuel Lewis had said the cash was “for the builders”, and so she had gone around in her lunch hour to look, but saw no sign of builders (see p.203.)
In cross-examination the defendant said that he had not been at the house on 6th-7th January 2003. He agreed that at that date there was still “a little bit” of his work outstanding, but when his attention was drawn to Mr Samuel Lewis’s record of withdrawals at p. 64 and the bank document showing payment out against cheque 000387 (to “self”) on 7 January 2003, he said “I didn’t go there that day or on 9 January and (on the 9th) receive £1,000.” (The records show the withdrawal of £1,000 cash on the 9th.) He said,
“I was never there on any day in January.”
He had made a statement on one of the Ferret films that he had been there on 29th January (but only on that day) to remove the scaffolding. He said in evidence, when asked about that,
“I was wrong about the [scaffolding on] the 29th January. I was wrong on the Ferret. I remembered that I was there later for half an hour on the 29th doing a pipe.”
In fact, Mr Paul Grey was independently proved to have been at the house on the 29th, as Dr Julian Lewis had telephoned his father that day and Mr Grey was actually there at the time, and Dr Lewis spoke to him: see pp. 95-99 for the transcript of their conversation. He said to Dr Lewis, untruthfully, as he accepted in cross-examination, that he had been there “all day” when in fact he had been there only half an hour.
There is a passage of some significance in that conversation at pp. 95-96. Mr Paul Grey said:
PG: …I was surprised Mr Lewis. There was more here to finish off than I bargained for.
JL: Now, Mr Grey, I don’t quite understand this. I thought that you were doing this work. I know you have people working for you, but how can this be?
PG: Well, as you said, I did most of it myself. Then I went off on another job and I was told that everything was finished here.
JL: Can I ask who was doing that work, then?
PG: Who was doing the work?
PG: Well, it’s the roofer I have with me.
JL: Right. But he told you it was finished – and it wasn’t finished?
JL: And what’s his name?
JL: What’s his name?
PG: Um – oh, dear, dear – jud – j – bloody hell – Edwards, Joe Edwards.
JL: And who else has been working on the house? If you remember , when I first rang up you had a labourer called- wasit? – Alan.
PG: young Alan. He used to work with Eddie.
JL: Oh yes, and that was Alan who?
JL: He was Alan who?
PG: Alan Hughes, I think.
JL: Right, I see. So there’s just been the three of you, then?
(Later on Dr Lewis obtained the name of the scaffolder, Steve Collins, from Mr Grey.)
There is really no issue over the question of whether the Claimant was cheated into handing over the total of these sums of cash in December and January by someone. Some individual took advantage of the Claimant’s disability in terms of short-term memory and induced him to part repeatedly with large sums of cash. There is also little doubt, as the Defendant frankly said in evidence (“[the culprit] would not have told Mr Lewis he wanted the money to go to the Caribbean…”) that the Claimant parted with the money because it was represented to him that it was for building work, and no such work was ever done. The only real issue in the case concerns the identity of the culprit.
The identity of the person who obtained the eight sums of money from the Claimant
It is therefore necessary to consider with care the evidence as to those individuals who had the opportunity, the motive and the means to have induced the Claimant to part with the money. The following people are known to have performed building, roofing or other construction, maintenance and repair work at the Claimant’s address during the material period:
The Defendant himself;
One or more workmen employed by the Defendant;
Mr Eddie Hoolachan of HI Construction;
Workmen employed by Mr Hoolachan.
I have also considered the possibility that the Claimant was approached by some other person who was not known to have performed work at his home, and somehow repeatedly induced to part with money time and again during December 2002 and January 2003. There is no real evidence of such an individual going to the Claimant’s home on even one occasion – save for the single instance of the man in white overalls seen by the carer outside, but that could well have been one of Mr Paul Grey’s own men. Miss Collins for the defendant submitted that it was more than mere speculation that such an individual could exist, and that it might be said to be a logical possibility which arises in considering the whole of the evidence, if the various individuals referred to above are excluded.
(1) How he came to be doing work for Mr Samuel Lewis in 2002
The evidence is that the defendant had previously performed work at the Claimant’s home address in the years 2000 and 2001 as outlined in paragraphs 5 and 6 above.
By 2002 the Defendant said in his statement (p. 192ff) he had changed the name of his business to “Paul Grey Building Services” because his name was by then well-known as a builder and “I had a good reputation.” (para. 2.) He said that the Claimant had contacted him in November 2002 and asked him to carry out work on the roof at the back of the house (para 5 - emphasis added.) If that is correct it would of course mean that the Claimant was sufficiently alert in November 2002 (a) to realise that the roof needed work done to it; (b) to remember that the Defendant had previously worked for him; or, at least, (c) that he had kept the Defendant’s contact details in a place where he could readily put his hand upon them. The Defendant was quite firm in his account in his statement that on each occasion that he had worked for the Claimant the Claimant had contacted him, and that he had never been involved in “cold calling” (see paragraph 7.)
The position was not quite so clear-cut in oral evidence. In cross-examination, when asked how he had come to work for Mr Samuel Lewis in 2002, he replied “I was speaking to a friend outside the bank close to his house,” (it is in fact only two doors away from the house) “ and I met him (i.e. Mr Samuel Lewis) there.” When the terms of paragraph 5 – i.e. that the Claimant had contacted him in November 2002 and asked him to carry out work on the roof at the back of the house – were put to him, he said that he had met Mr Samuel Lewis at the front of the house, outside the bank. He said that the damage to the roof had been pointed out “there were slates off” [at the front] and Mr Samuel Lewis, had then contacted him by phone. Those details had simply been “left out of the statement.” However, his attention was then invited to page 139 of the trial bundle which is part of the transcript of a telephone call tape-recorded by Dr Julian Lewis on 23 February 2003. The relevant passage reads as follows:
JL: And how did you come to be doing this work for my father, this time? Did he ring you up?
PG: I was talking to him – there was all slates off the front roof [emphasis added] and I was talking to him on the front doorstep when I …
JL: So you spotted this and you knocked on the door, did you, to tell him?
PG: No, I didn’t knock on the door.
JL: Well, did he ring you up to, to get you to come because there were slates off the front roof? [emphasis added.]
PG: I was talking, I was talking to him outside the house.
JL: And how did you happen to be talking to him outside the house?
PG: I tell you, you can ring back about 40 times,. Do whatever you want to. I have not had that money off your father…..
It will be noted from the words in italics above that there is a significant difference between the site of the damage and the repairs actually performed (at the back of the house) and the damage which the Defendant referred to both in the telephone call (the front roof) and, implicitly, in evidence. It is difficult to see how any damage to the roof at the back could have been visible from the front of the house, whether near the bank or otherwise. There was also no reference in the telephone call to the meeting with the friend at the bank, or any explanation to Dr Julian Lewis of how that came to result in his meeting Mr Samuel Lewis: instead, the Defendant abruptly broke off the telephone conversation without answering the question.
On the balance of probabilities, I consider that it is much more likely that the defendant sought work from Mr Samuel Lewis without any request to do so. The conflict in the evidence between the account given by the Claimant regarding the meeting outside the front of the house, and damage to the front roof, and the performance of work at the back is but one pointer to the unlikelihood of the defendant’s account being accurate. The chance of a meeting outside the front of the house between the defendant (if, as he contended, he had not been touting for work) and Mr Samuel Lewis would have been something of an unlikely coincidence: at paragraph 15 of his witness statement Mr Paul Grey spoke of Mr Samuel Lewis as “never leaving his house” and not wanting to go outside (see also paragraph 46 below.) This is a matter which inevitably affects the defendant’s credibility as a witness.
 Dr Lewis questioned in evidence whether this was true, or whether in fact the Defendant had “cold-called” on his father touting for work. That contact occurred at some point in November 2002 is not in dispute.