Avoid litigation like the plague is always good advice, especially when the plague consists of moths. Otherwise, you may end up like William Woodward-Fisher, a champion rower turned property developer with an argument full of holes.
It seemed a good idea in 2011 to buy a London townhouse for £10.4m, spending another £10m digging out the basement and doing the place up so that he could sell it in 2019 for £32.5m. And surely he was more likely to get planning permission from the environmentally sensitive Royal Borough of Kensington and Chelsea if he used as much natural wool as possible when he insulated the walls and ceilings? Who was to know that wool is a breeding ground for moths?
Little wonder that the purchasers of 85 Ladbroke Road wanted their money back, saying said they would never have bought the property if they had been told it had a moth infestation. But how could Woodward-Fisher be expected to know that Mr Justice Fancourt would find some of his oral evidence “incredible”?
In this extract from the judgment Fancourt delivered yesterday, he refers to the defendant as WWF — “for convenience, and meaning no disrespect”:
Under skilful cross-examination from [John McGhee KC], WWF often found himself with nowhere to go in terms of a credible explanation of what he and his wife were doing to attempt to deal with a moth problem that he did not accept existed, and how it was that, having not read any of the Environ [pest control] reports, as he said, he was able to form the view that they were not reports concerning the fabric of the house that needed to be disclosed.
Faced with an unanswerable question, WWF tended to abandon one shaky pillar of his defence and reach for another. Inevitably, at times, he was forced into making admissions, including that if what Environ’s reports were saying was true he had a serious problem in terms of selling the house because the infestation would have to be disclosed to a purchaser.
Apparent salvation was then found in his assertion that Environ were not a credible company in light of the experience that he and his wife had had, so they did not believe Environ were right.
While feeling a degree of sympathy for WWF in his predicament, I found a substantial part of his evidence unpersuasive. I will address the most pertinent parts in detail when considering the issue of his knowledge that the important three replies [to pre-contract enquiries from the purchasers’ solicitors] were or might have been untrue. In general terms, I did not feel that I could safely rely on much of the evidence that he gave me. Some of it was incredible, for reasons that I will explain…
The judgment runs to 73 pages and Fancourt’s detailed findings are less entertaining than the passages I have quoted. In summary though, the judge found that three replies to the purchasers’ pre-contract enquiries were false. These were that Woodward-Fisher
-
did not know of any vermin infestation in the house,
-
that had not received any report on vermin infestation or on the fabric of the property other than what had already been disclosed by him, and
-
that he did not know of any hidden defect in the property.
In each case, the judge found that Woodward-Fisher did not honestly believe the truth of his replies.
The couple who had bought the property, Iya Patarkatsishvili and Yevhen Hunyak, were therefore entitled to recision of the contact. That meant they would get most of their money back, plus substantial damages to cover their costs.
And Woodward-Fisher will be left with a very large house in a very fine location that may still — or may not — be home to some very unwelcome flying guests.