Chapter 8 The Tolling Agreement

The letter dated the fourteenth of October 2017 is four pages long and it is on the letterhead of Fairweather Auman, and it is signed by Dominic Fairweather, who is now seventy-one and who was fifty-two, and it is addressed to a person whose name I am not permitted to print. Here is what it says, in the parts that matter. "Further to our discussion of the eleventh of October I confirm the basis on which we have agreed to act in relation to the matters identified in your schedule of 3 October, and I set out below the position so that there is no misunderstanding between us about the effect of this arrangement on any time period. We have for some time advised that the provisions of the 2011 Settlement dealing with pre-emption are of no assistance to you in a disposal of shares, and I must repeat that this is my professional view and I am not able to improve on it. You have asked me to confirm whether the running of any limitation or time period under the 2011 Settlement is suspended in the circumstances described, and whether the parties can agree to suspend it. I have considered this and I am not able to advise you that any such suspension can be achieved by agreement, because a suspension requires the agreement of every person who would benefit from the objection, and there are such persons, and one of them is Mr Dugray. I should therefore repeat the advice I have given you in person and which I have set out in my letter of the third of October, which is that no such agreement is available, that any attempt to document one would be of no effect, and that you should proceed on the footing that every applicable time period continues to run and cannot be stopped by conduct or by correspondence. I am asked to observe that you do not appear to be proceeding on that footing." That is the letter. It is four pages. The rest of it is about fees and about the identity of a defined term and about two dates. Here is why it is the most important document in this case and I want to be absolutely clear that I did not find it and that I did not look for it, and that the judge found it, and that I have thought about that every day for five weeks. My learned friend's skeleton argument of the twentieth of April 2026, at bundle tab 6, contained a complete reproduction of the codicil. It did not contain the 2017 letter. It did not contain the 2011 Settlement. It did not contain, as far as I have established, any document from the 2011 Settlement at all, and the application was being run on the 2011 Settlement and on a 2019 application and on the codicil. On the eleventh of June 2026, in a construction chamber, a judge said the words "a letter dated the fourteenth of October 2017" in a room in which no one had mentioned such a letter. And then she said, "Mr Lowe, does your client hold a copy of that letter?" And Mr Lowe said, "No, my Lady." And she said, "Mr Kestrel, does the executor hold a copy of that letter?" And Mr Kestrel said, "Not that I am aware of, my Lady." And she said, "Then somebody is going to go and look, and I am going to give you until the eighteenth of June." I want to describe what I did in those seven days, because I got it wrong twice and I want both errors on the record. The first thing I did was the right thing. I telephoned Ashcombe Fenn, the executor's solicitors, and asked whether the executor's file contained the 2017 correspondence. Mr Kestrel was in court and his assistant said no, and said that she would ask him, and I said please, and she said she would ask him, and I did not chase her, and I heard nothing for four days. The second thing I did was the wrong thing, and I have thought about it more than the first. On the seventeenth of June I got into a car and went to Ardmore Road. I want to be precise about the ethics of that, because I have been asked about it three times and I have given three answers and I have settled on this one. I did not enter the house. I did not speak to Mrs Dugray, who is alive, and who is the testator's widow, and who has, since about the middle of June, stopped speaking to me, and I have been told why and I accept it. I went to the end of the road. I went to the gate. And I stood there for about four minutes, and I looked at a hedge, and then I went to a café in Hallam Row and I bought a coffee I did not drink and I sat down and I wrote on the back of a receipt the four words: not fair, not safe. And I have since worked out that the four words were about me and not about the case, and that I wrote them because I had driven out to a suburban road to look at a hedge. Then I went back to the office and I did the thing I should have done, which was to look in my own client's file, and I did not have one, because Brannock Vey was not acting for anybody in this matter. That is the position. That is the whole of the difficulty and I have not solved it and I do not know that it can be solved. I am the beneficiary in a codicil and a member of a firm that has just been named in that codicil, and there is no matter on the file, and the firm has not been asked to act, and I have been instructed by a partner to run a construction application in which I am the beneficiary, and he did that on the eighth of April 2026 in a corridor and it took forty seconds and I do not remember a single thing that was said. What I did on the eighteenth of June was drive to Hallam Row, and sit in a car outside a building, and not go in. That is the account of that. And I have spent five weeks since being asked by a man from a newspaper, twice, whether I am frightened, and the answer is yes, and it is not the fear of losing this.