IN THE HULL CROWN COURT R -v- WILLIAM FLANNIGAN
IN THE HULL CROWN COURTR -v- WILLIAM FLANNIGANRULING ON SUBMISSIONS OF ‘NO CASE TO ANSWEROUTLINE1.The defendant is facing ten counts of fraud by false representation.Submissions have been made to me in relation to each count that there isno case to answer against him. I have heard submissions on behalf of thedefendant and the prosecution over two days and I indicated that I wouldprepare a written judgement in support of my ruling.2.The defendant was a successful businessman who owned a number ofmobile home parks across the country. His business is based in Cheshirein the corporate form of Mossways Park Limited of which he had his wifewere directors. In 2005 he became aware of a caravan site (LakeminsterPark) in Beverley east Yorkshire which was in a run-down condition andwas in need of renovation and modernisation. He clearly saw it as anambitious business opportunity. Enquiries were made with the localauthority (ERYC) as to the likelihood of planning permission to upgradethe site being granted (‘pre-app’ enquiries) and in the light of the positiveresponses he received he purchased the site and made application forplanning permission. Permission for redevelopment was granted in 2006.It was clear from the planning consent granted that the site was to be usedfor holiday occupation and not for full time residential use.3.The essence of the prosecution case is that the defendant falselyrepresented to various purchasers of homes on the site that they couldreside there permanently and that the homes could be occupied on a fulltime residential basis. The prosecution allege that in 2011, some threeyears after the first occupants moved in, ERYC began enforcementproceedings on the ground that the homes were being occupied in breachof the ‘holiday’ condition and that the result has been that the purchasershave been evicted from the homes they thought they would be able tooccupy for the rest of their lives.4. The defence case centres around the suggestion that each of thepurchasers did in fact know of the existence of the ‘holiday’ provisionand that what was said to them as to the nature of the permitted1
occupancy was not false and was entirely in keeping with the permissiongranted by ERYC.5.In the case of each count on the indictment the allegation against thedefendant is that he made false oral representations to the purchasers inthe terms set out in each individual count. The wording of the count isdrawn in such a way as to reflect the contents of the witness statements ofthe purchasers. For example, count 1 alleges that the defendant madefalse representations to Alan and Karen Roberts ‘namely that LakeminsterPark was a development for retired and semi-retired people who wouldhave 12 months occupancy rights and that a home in the Park couldlawfully be occupied by the buyer as a sole permanent residence’. Theitalicised words being taken directly from the statements given to thepolice.6.The case has always been put on the basis that the representations madeto the purchasers by the defendant were verbal. At the outset ofsubmissions I asked Mr Gordon to confirm that:a) The prosecution case was based on the oral representations made bythe defendant and that,b) There were no instances of misrepresentations having been made inwriting to any of the purchasers.He confirmed both of those things, subject to the qualification that thequestion of the ‘misleading’ nature of the oral representations had to bejudged in the light of the circumstances in which it was made, including,he contends, the silence of the defendant on the ‘holiday’ restriction. Iwill return to this qualification later.THE BACKGROUND7.To understand something of the nature of the defence submissions it isnecessary to consider the case in some more detail. The planningpermission which was granted in 2006 was unusual, and possibly uniqueat the time in that, prior to 2005 it had been conventional in the ERYCarea to grant planning permission for holiday parks subject to a conditionthat they closed down for a period (usually 4 weeks, but in some cases2
less) during the winter season. Partly the reason for this was to ensurethat people did not use the homes as permanent residences (although theevidence was that, as means of enforcement this enjoyed only limitedsuccess), and partly because, historically, the build quality of typical parkhomes was not of sufficient standard to render them suitable for winteroccupation.8. However with the increase in the build quality of park home units, andthe market for all year round tourism (something ERYC were clearlyseeking to encourage) the planning permission granted to the defendantdid not require the occupants to vacate the homes for a fixed period, or atall. It simply approved ‘a change of use of land from the siting of staticand touring caravans to the siting of 169 park homes for holiday use(my italics) together with associated landscaping etc’. By conditions 9,10 and 11 of the consent (pros bundle 1 p. 72) the park was to be used forholiday purposes only, not as a main residence, and the proprietor (thedefendant) was required to keep a register of addresses of the principalresidence of the occupants of the park homes, which had to be keptavailable for inspection at any time by ERYC.9.In November 2008 a site licence was issued by the council. The sitelicence (Caravan Sites and Development act 1960) specified that the parkhomes ‘shall be used for human habitation All Year Round and forHoliday use only’ - the capitals and bold type are as they appear in thesite licence. It was a further requirement that the site licence should beprominently displayed in the site office and the evidence is that it was at least there is no evidence that it was not.10.As well as the site licence, each purchaser was required to enter into alicence agreement which regulated the occupation of the park home onsite. It was common ground that the licence agreement used by thedefendant was modelled on a standard form produced by the BritishHoliday and Home Parks Association. It was also common ground thatthe terms of the licence agreement made it clear that LMP was a site forholiday use.11. It was at the heart of the prosecution case that the defendant sought tokeep the terms of the licence agreement hidden from the prospectivepurchasers until after they had moved in or, at least, it was too late toback out of the purchase. Mr. Ryan (count 2), for example, said (in chief)that he was only given the licence agreement on the day they actually3
moved in to their park home, at a time when it was too late to do anythingabout it. Mr and Mrs Roberts (Count 1) said it was weeks or monthsafter they moved in that they received it.12. It was also the prosecution case that in each (except one) of thetransactions between the purchasers and the defendant the purchasersentered into a part exchange or ‘assisted sale’ arrangement with thedefendant in relation to their existing homes. In the case of a partexchange, the arrangement was that the purchaser would sell their hometo Mr Flannigan at an agreed price and that would be used to fund thepurchase of the home on LMP. If the house was worth more than thepark home, the defendant would remit the balance to the purchaser. If thehouse was worth less than the park home the balance would usually befunded by an interest free loan made by D to the purchaser.13. In the case of an assisted sale agreement Mr. Flannigan would agreewith the purchaser a notional value of their house. Once agreed he wouldthen take over the marketing of the property. If it sold for less than theagreed amount, the defendant would ‘take’ the loss. If it sold for morethat the notional value, the balance would be split (usually 80/20 in thepurchasers favour) between D and the purchasers.14. In each case (p-ex or assisted sale) the purchaser would, of course, beselling real property which would need conveyancing. The defendantroutinely suggested to the purchasers that they use a solicitor, MikeAdams, who worked for a well-known and reputable firm in Hull knownas Cooper Wilkin Chapman. It is clear from the evidence that therecommendation to use this solicitor was just that; a recommendation.There was no obligation to use this solicitor and the purchasers were atliberty to use their own solicitors if they chose. There was no element ofcoercion or inducement in the recommendation. The defendant did agreeto pay the legal fees of the purchasers but there was no evidence that thiswas dependent on the purchaser using Mr. Adams’ services. It iscommonplace that builders and developers routinely offer to pay forprofessional fees as an incentive to a prospective purchaser.15. All of the purchasers, save one, named on the indictment did use Mr.Adams but in evidence it emerged that not all of the LMP purchasers did4
do so1. I will return to deal with the situation of Mr. Adams later in thisjudgement.16. The defendant, in the case of the part-exchange transactions had hisown solicitor, Mr. James Hickey of Messrs Hacking Ashton. Mr Hickeywas a prosecution witness, though primarily only to deal with theproduction of a document - PEA/21. However, what he said in crossexamination about the material which was sent to the purchaser’ssolicitors was revealing and I will return to this point later. We will alsoreturn to PEA/21.17.In 2007 when the site was very much in its infancy in terms ofdevelopment (no-one had moved in to any of the homes at this time), thetrading standards department of ERYC became aware (through ananonymous communication) that the signage at the entrance to the sitewas potentially misleading. They visited the site and were concerned thatthe wording of the signs was capable of giving the impression that the sitewas available for residential occupation, which it was clearly not. Theyraised their concerns with the defendant who, through his professionalplanning advisor, Mr. Carl Copestake – also a prosecution witness –negotiated a compromise solution which was to impose onto the signagethe words ‘for holiday living’. This was acceptable to the tradingstandards department. Thereafter the evidence is that the signs – verylarge signs - one at each side of the entrance – contained the words ‘forholiday living’ in the same text and size as the words ’12 monthoccupancy’ and were there throughout the entirety of the marketingperiod for homes on LMP.18. It should also be noted that the marketing of LMP was not beingundertaken by the defendant himself but by a well-known estate agents inBeverley known as Beercocks. The principal partner, Mr. RobertBeercock was also a prosecution witness. Beercocks produced anothersign which was placed on the main Hull road about 150m from theentrance to LMP. It can be seen in draft on the document at Defencebundle 2A – p. 12. This sign stated clearly that the site was for‘HOLIDAY LIVING – 12 MONTH OCCUPANCY’. Given the terms ofthe planning permission that had been granted – together with the site1See the very telling email exchange between Alan Thomas, a retired solicitor and Anne Prendergast, D’ssecretary in which Mr. Thomas is specifically asking about the ‘holiday’ restrictions and received an entirelytruthful and accurate answer. DB2 Tab 1 - p. 12-14.5
licence which the council had issued – this was neither false normisleading. It reflected the true position. Indeed, the defendant’splanning consultant, Mr. Copestake (another prosecution witness) hadobserved, in February 2007, that in his professional view the words ’12month occupancy’ did not invite contravention of the planningpermission.19. After their involvement in 2007, which resulted in the signage at theentrance to the Park being changed, the Trading Standards department ofERYC did not become involved with LMP again until enforcementproceedings began in 2011.20. In May 2008 the first of the LMP purchasers, Mrs Fay Bell, moved into her park home. She was followed by others, in particular Mr and MrsRoberts (the first of the named purchasers on the indictment) who movedin to their home in July of that year. They had been living on site, then,for nearly three years when ERYC began enforcement proceedings.Though not strictly relevant to the submissions which have been made tome at this stage, it is instructive to note that from an early stage theoccupants of these ‘holiday’ homes were paying council tax to ERYC.Indeed, in June 2008 (not long after Mrs Bell had moved in), anemployee in the Billing and Collection section of ERYC council taxdepartment emailed the principal enforcement officer, Mr. Simmonds toadvise him that Mrs Bell had advised the council that she was occupyingher park home as a main residence, and so had been reported to thevaluation office for council tax to be assessed. Mr Simmonds passed thaton to one of his enforcement officers (Mr. Gibson) but thereafter the trailgoes cold. What is clear though is that the council were clearly on noticethat park homes on LMP were being occupied on a residential basis inbreach of the planning consent from the middle of 2008 2 but did notbring enforcement proceedings until 2011.21. Between 2008 and the early part of 2011 the purchasers of homes onLMP occupied their homes without hindrance. The developmentblossomed into a well organised and well run park home site. Substantialinvestment was made by the defendant into the development, roads andlandscaping on site. A communal clubhouse was built and was a popular2See also the 12 November 2008 email from Claire walker (an employee of D working at LMP) in which shetells ERYC in plain terms that ‘the following people are living full time on site’ and sets out a list of namedoccupants DJB T1 p. 116
feature of life on the site. It was described by one of the eventualpurchasers as ‘beautiful’. The residents were charged a ‘ground rent’ byD, but when they fell liable to pay council tax, the defendant paid a rebateto each occupant to account for any council tax paid by them. He in turnwas paid a rebate by ERYC for the proportion of business tax which hehad paid which was accounted for by the council tax paid by theoccupants.22. In late 2010 the defendant (who, if the Crown are right, hadsuccessfully swindled the purchasers of, by now, several millions ofpounds) made application to ERYC to extend the operation at LMP toinclude tourers and non-static homes. This caused a degree ofconsternation amongst the existing park home occupants who believedthat such an extension would have an adverse effect on their lifestyle andwould damage the residential nature of the site. There is no doubt butthat this was the trigger for the debacle which followed. In short, ERYCbegan enforcement proceedings to prevent permanent occupation. Thattriggered an application by D for retrospective planning permission forresidential use. That application was refused. D appealed to a planninginspector who upheld the planning authority’s decision. That decisionwas, itself, overturned on review and another planning appeal was heardresulting in the confirmation, again, of the planning authority’s decision.However, in the course of the appeal it emerged that one of the preconditions of the grant of the planning permission had not been compliedwith (this was the subject of much consideration in the course of the trial)which meant that the permission itself was void ab initio and so there wasno planning permission at all. The site, in planning terms, was no morethan a field.23.Of critical importance, in my view, is the fact that before the counciltook the enforcement action they did in May 2011 no purchaser – not asingle one – had taken any steps to complain about having been mis-soldtheir home on LMP. No complaints to the police. No complaints toTrading Standards. No complaints to any consumer protectionorganisations. Nothing at all. Yet in the case of every single complainanton the indictment, they had been given their copy of the licenceagreement – even on their own account – no more than weeks after theyhad moved on to the site. Each of them said in chorus from the witnessbox that they had been ‘surprised’, ‘shocked’, ‘horrified’, or ‘devastated’when they received their copy of the licence agreement which limited7
their right of occupation in the home which they had invested their lifesavings to buy to holiday use only. Yet not one of them took any positivesteps to remedy the situation.24. What happened in 2011, when ERYC began enforcement proceedings,was that many of the residents gathered together and instructed a localfirm of solicitors (Gosschalks) to act on their behalf in an attempt toobtain compensation for the plight in which they found themselves. Agroup action was begun against the solicitors (Cooper Wilkin Chapman)who had acted for the purchasers and the developer, Mr. Flannigan. Theaction was funded on a ‘no win-no fee’ basis. It is clear from theevidence3 that the solicitors decided, from an early stage, that theprospects of successfully proceeding against ERYC were remote and thusa cordial working relationship began between Gosschalks and ERYCwhich, understandably, the Council were eager to promote4.25. Each of the complainants named on the indictment was a client ofGosschalks.26. In 2011, after the enforcement proceedings had begun, the TradingStandards department became involved again. ERYC, it seems, werebeing substantially blamed, in the early stages after enforcement hadbegun, by the residents. Trading Standards sought, with varying degreesof success to take statements from the purchasers in an effort, no doubt tosee whether a prosecution for either trading standards offences or FraudAct offences should be considered. They did not bring any charges.Perhaps realising the potential scale of an investigation, they sought torefer the matter on to the City of London Police, the SFO and eventuallyto the Humberside police who took up the investigation into thedefendant’s activities.27. It is impossible not to feel some sympathy for the situation in which theHumberside Officers found themselves in investigating this matter. Onthe one hand they were anxious, for obvious reasons, to take statements3I have in mind the email from Mr. Blake Barnard (ERYC Legal) dated 26/10/11 in which he reports aconversation with Mr Dillon of Gosschalks to the effect that Mr Dillon has assured him that they do not seeERYC as the ‘villain of the piece’ and instead will focus attention on Flannigan and legal advisers (ie Mr Adamsof CWC). DB 2 T3 p. 20. This email also speaks of the level of ‘mistrust’ of ERYC4In the same email, Mr. Blake Barnard speaks of Mr Dillon asking that if ERYC were considering enforcementaction ‘could Gosschalks be instructed to assist in softening the blow’. I don’t know what this means. Is heasking for ERYC to instruct Gosschalks?8
from the ‘victims’ of the defendants allegedly fraudulent activities and toinvestigate their allegations and uncover, where possible, evidence whichwould support ( or refute) their allegations. But there was a difficultywhich the OIC, DS Abbott, acknowledged was unique in his experience.Gosschalks solicitors had adopted an aggressive ‘driving seat’ position inrelation to the police investigation. They plainly did not want materialfalling into the hands of the police (which would then fall to be eitherserved upon or disclosed to the defendant in any criminal proceedings)which might undermine the position of their clients in the civilproceedings which were being brought against D.28. That this was the position of Gosschalks is beyond doubt. There arecommunications between that firm and the police to the effect that wherestatements were taken by the police those statements should be submittedin draft form to Gosschalks who would then ‘vet’ them and return them tothe police in a form which they were content was acceptable beforeallowing their clients to sign them. There are several illustrations ofoccasions in which statements were re-submitted to the police foralteration Indeed, in at least one case we had an example of Gosschalksadvising their clients to, in effect, pull out of the criminal investigationbecause to have continued further could have compromised theirprospects in the civil case against Mr. Flannigan.29. I will return to the position of Gosschalks and their aggressiveinvolvement in this police investigation at a later point.30.The defendant was arrested in May 2013 and interviewed in thepresence of a solicitor. He exercised his right to silence in the course ofthat interview. However, in a pre-prepared statement made in May 2014he made it clear that he had acted in good faith and that the purchaserswere aware that they were buying a holiday home. He suggested that theinvolvement of Gosschalks in the ‘no win-no fee’ litigation in which hewas a defendant provided a financial motivation on the part of thecomplainants to ‘distort’ the representations, which they were nowalleging had been made, but which had not been mentioned prior to theenforcement proceeding being commenced by ERYC.THE EVIDENCE OF THE PURCHASERS9
31.Mr and Mrs Roberts (count 1) gave evidence of the background of theirpurchase of the park home, including the fact that they needed to borrowmoney in order to fund the purchase of the park home. They said that Dhad said he would take their ‘bricks and mortar’ home in part exchange.The equity would be used to fund the purchase and any shortfall could befunded by an interest free loan. They moved in in June 2008. Onlysome time after they had moved in (Mr. Roberts said 3-4 months) didthey receive any paperwork including the licence agreement. Mr Robertssaid ‘it was a shock. Not what we thought we had bought into’.However, he said, he was mollified by the defendants assurances verbalassurances that he would ‘sort the matter out’.32. Mr Roberts said that he had asked the defendant if they could live there‘even though they were not of retirement age’ whereas Mrs Roberts saidthat ‘we were concerned that this was a place we could live permanentlyand he (D) said ‘yes’. Neither recalled seeing the signage (‘for holidayliving’) referred to above. Nor had they seen the copy of the site licencein the site office. Mr Roberts had produced to the police a copy of thesite licence (‘All Year Round and for Holiday use only’) but he did notrecall where he got it from or when. When he was shown a copy of alicence agreement purportedly bearing his signature he would only saythat the signature ‘looks like mine’. When asked about a letter from LMPto his new home on the Park thanking him for the return of the ‘signedlicence agreement’ he said he had no recollection of receiving it.33. Mr and Mrs Ryan (count 2): they had been to other sites but those siteswere restricted by the ‘closure’ provisions – see above. In the summer of2009 (so after the license agreements had been sent out to the purchaserswho had moved in in 2008) they visited the site and spoke to people wholived there. Mr Ryan said ‘we asked D if we could live here all yearround and he said ‘yes’. He said the homes had 12 months occupancy’.34. They were part exchanging their home and asked Mr Adams forassistance but ‘he said we didn’t need legal advice. It was like buying aboat or a caravan’. They were asked to sign the licence agreement on theday they moved in. They did so but only because of the reassurancesthey received from D that everything would be ‘sorted’. “We took him athis word”. Mr Ryan refuted the suggestion that a document, purportingto be signed by him and acknowledging receipt of the licence agreementhad in fact been signed by him and returned to LMP, even though he hadnot been asked to do so. It was suggested to him that his signature on the10
document showed conclusively that he had prior knowledge of the‘holiday’ conditions, but he maintained that he would not have purchasedthe home if he had known of them.35. Mr and Mrs Long (count 3) first looked around the site in the autumnof 2008. They were interested in a particular plot and the defendant toldthem when they asked about living in the property all year round thatthey could live there all year round ‘just like your house now’. Thepurchase was to be funded by part exchange on their house and theyinstructed Mr. Adams to act on their behalf. They moved in to their parkhome on 12th March 2009. That, of course would have been 6 monthsafter the Roberts’ (on their account) received the licence agreement whichhad so alarmed them.36. The Longs said that they first became aware of the holiday condition inApril 2009 when they received a letter through the post. According toMrs Long she ‘went ballistic’ when she discovered that their occupationof the home was limited to holiday use. She and her husband refused tosign the form sent to them requesting details of an alternative address.They continued to live on the site, however, until May 2011 when theenforcement process was begun.37. The Longs had signed a deposit agreement5 when they paid the depositto secure their purchase of the Park Home on 29th November 2008. Theyagreed that they would have been given a copy at the time. The depositagreement contained the words ‘for holiday use’. But Mrs. Long said thatthey had not seen that. They were not concerned when in February 2009they had received a letter from Mr. Adams advising them that the unitthey were purchasing would be occupied on a ‘caravan licence’ basis.They had seen the signage at the entrance to the park but had not seen thewords ‘holiday living’ (even though those words were added in 2007),and had not seen the site licence on the wall in the office.38. Mr. and Mrs Hurst (count 4) bought their park home in July 2009. Theyhad met the defendant on site when they made their first visit and hadasked him if the ‘could live there full time’ to which D had relied ‘yes’.They entered into an assisted sale agreement to sell their home in Hull.In order to do so they instructed Mr. Adams to do the conveyancing for5DB1 - T3 p111
them. Several days after moving onto the site at LMP they received thesite licence in which they said they were, for the first time, informed thatthe site was for holiday use. Mr. Hurst said he was ‘stunned’. However,he said, he was reassured by the defendant that he was in contact withERYC and that everything was in hand. Because of this reassurance, hehad signed the licence agreement.39.Mr Hurst believed that the signage outside the park had used the words‘residential’ but when he was shown the signs he agreed that they did not.It was possible, he said that he had interpreted the use of the words ’12month occupancy’ as ‘residential’ He also denied that he had ever seen acopy of a blank licence agreement which was (or would have been)attached to the assisted sale agreement sent by D’s solicitor to Mr.Adams.40. In the case of the Hurst’s it is worthwhile to bear in mind that theirhome was not sold until December 2009 and so remained in their name(this was an assisted sale agreement, not a part ex arrangement) for somesix months after they had received the documents which had ‘stunned’him in July 2009. Yet he had not sought to disengage from the purchase.41. It should also be noted, in relation to the Hursts that on 14 th April 2009,Messrs Hacking Ashton had sent to Mr Adams a copy of the site licenceas an attachment to the assisted sale agreement. Three days later, Mr.Adams wrote back to say that he had discussed the papers with his client‘and they are broadly acceptable’. In evidence Mr. Hurst said that thiswas not true. Mr. Adams had not discussed the terms of the licenceagreement with him, either in April 2009 or at all.42. Graham Jefferson (count 5) said that he and his wife became interestedin buying a park home in June 2009. He had written to Beercocks (estateagents) in an email dated 16th June 2009 with a series of questions. Hesaid in evidence that he had enquired as to ‘365 day occupation’ but it isclear from the email that there was no mention of that. What he did ask12
was whether the site had a licence ‘under the 1983 Act’6. He alsoenquired as to liability for council tax. In reply, on the same day, ClareWalker (employed by D as a sales assistant on LMP) advised him that the‘site has a 12 month licence under the Caravan Sites and Control ofDevelopment Act 19607, section 3’ and that ‘All homes are currentlyvalued [for council tax] Band A. That reply, of course was entirely trueand accurate. The Jeffersons moved in to the park home in December2009.43.The Jeffersons did not enter into a part exchange or assisted saleagreement but sold their house privately to fund the purchase of a parkhome on LMP. They did, though, use Mr. Adams as their solicitor. Inhis evidence in chief Mr. Jefferson said nothing about any specific falserepresentations being made to him by D. However, the prosecution relyin relation to this count on his evidence in cross examination in which heconfirmed the truth of the contents of the statement he made toGosschalks (he was the first Gosschalks client). He had stated there thathe and his wife were assured by D that if they purchased a park homethey would be ‘purchasing a property on a site that had permission for 12months occupation (ie. Where we would be able to live for 12 months andthat it was not a property that could only be used as a holiday home for arestricted period of the year’.44.Significantly, in an email dated 1/6/2011 to Alan Menzies, Director ofPlanning, complaining of the conduct of ERYC enforcement officers isserving the PCN’s in May, Mr. Jefferson said as follows:“ Every single person on here looked at the licence agreement (sic) and itclearly stated that it was 12 months occupancy otherwise why would wehave sold our previous homes”Later in the same email he said:“LMP is something that you as a planning department should be proud ofas a development which is positive for this are and a great improvementon what was here previously”6A reference to t
Adams, who worked for a well-known and reputable firm in Hull known as Cooper Wilkin Chapman. It is clear from the evidence that the recommendation to use this solicitor was just that; a recommendation. There was no obligation to use this solicitor and the purchasers were at liberty to use th
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