Berwin Leighton Paisner and Gaby Kaiser cannot have it BOTH ways – Breach of fiduciary duty

Anyone who has read my blog will know that I am in a battle with a number of parties, including:

  1. Berwin Leighton Paisner
  2. Paicolex Trust Management AG

The main reason that I complained to the above was because Thomas Meier, a representative and signatory of Paicolex Trust Management AG, had breached his fiduciary duty, as a trustee, to protect the assets of the trust.

He failed to do this by not seeking adequate security on a loan to my brother, Martin Hender, for the purchase of a new home. This was compared to the loan that I took from the trust, which had more than 100% security.

I complained to the Chairman of Paicolex Trust Management AG,Andrew Lugg copying in the Managing Partner of Berwin Leighton Paisner,Lisa Mayhew, as Paicolex is a wholly owned subsidiary of Berwin Leighton.

Shortly after this email was sent, Thomas Meier announced his retirement and I have always suggested that it was not really a retirement at all but he was forced out.

Gaby Kaiser, in her email to me of 5th October 2018 (below) stated “For the avoidance of doubt, your assertion that Mr Meier was “forcibly retired” is incorrect.”

She cannot have it both ways as:

  1. Either he was sacked due to the breach of his fiduciary duty, which she strenuously denied or
  2. The breach of fiduciary duty, due to the lack of security provided on the loan to Martin Hender, was ignored. In which case, not only is the chairman of Paicolex Trust Management AG, Andrew Lugg, culpable as is Gaby Kaiser, the head of professional risk and compliance but also Lisa Mayhew, the Managing Partner, who takes ultimate responsibility for the actions of all partners and staff of the firm and its subsidiary.

The concept of fiduciary duty is at the bedrock of all law firms and trustees, whether individuals or corporate trustees and if such a breach of fiduciary duty has been  ignored by all parties, then not only should Andrew LuggGaby Kaiser AND LISA MAYHEW be sacked for GROSS MISCONDUCT but Paicolex should be closed down and the Berwin Leighton Paisner should be broken up such is the seriousness of IGNORING SUCH A BREACH OF THE FUNDAMENTAL FIDUCIARY DUTY OF TRUSTEES

Gaby Kaiser, Lisa Mayhew and Andrew Lugg CANNOT HAVE IT BOTH WAYS

Improper conduct of Thomas Meier

You forwarded this message on Sat 28/10/2017 08:31
David Hender
Sat 28/10/2017 05:09
andrew.lugg@paicolex.ch;
karin.kaufmann@satc.ch;
Thomas Meier;
Lisa Mayhew Managing Partner Berwin Leighton

+1 other

Dear Sir,

I am a beneficiary of a trust of which the trustee is Paicolex Trust Management AG. The name of the trust is the Hender Family Settlement, which was settled by Michael Harold Cobb, a South African national but of whom the real settlor is my father, William Thomas Hender. I was the company secretary of Vendcrown Ltd, from the sale of which the original trust proceeds arose and also the finance director of Premium Credit Limited, the underlying trading company. I have a significant amount of documentation proving that my father was indeed the settlor.

I have borrowed from the trust’s underlying BVI subsidiary, Adriatic Sea Corporation, on a number of occasions. I have always repaid the loans (or the majority thereof) and have paid interest well above the market rate for such a loan and at least 1% above the average UK mortgage rate offered from UK banks. All loans from Adriatic Sea Corporation have been secured with at a least 100% fixed charge on some of my assets.

My father and I have sadly an acrimonious relationship and he is not only old now (87) but is suffering from quite advanced Alzheimer’s, which causes him to be even more irrational than normal. Furthermore, his lack of mental capacity causes me great concern as to his lack of balanced judgement.

I will give just two simple examples of his irrational behaviour.

  1. He continues to drive, which is contrary to the Road Traffic Act. I contacted the DVLA, who removed his license, but he managed to persuade his general practitioner to write a letter to the DVLA, stating that in his opinion, he was fine to drive. Although my brother, who is the other beneficiary, banned his children from being in a car that my father was driving, due to the control that my father has over my brother, he will not seek to support me in having my father taken off the road to protect not only himself but the general public.
  2. My cousin, Lori Cameron, lives in a house in Wales that my father owns. She is continuously scared as to his behaviour and is always worried that if she upsets him in any way, he will have her removed from the house. Ironically, on the day, years ago, that my father told me that he had early onset Alzheimer’s, I raised the subject of the ownership of the house that my cousin lives in, suggesting that he gifted it to her and on her death, it would then pass back to the family. His immediate reply was quite shocking; he said and I quote “I want to control her”. Due to the acrimony between my father and I, this has led to the position that she is forbidden from being in contact with me and this has been going on now for at least three years. I ask you, Mr Lugg, is this the action of a sane, rational man? My cousin is 71 years old.
Due to personal issues surrounding my life over the last two years, I now feel that I have to leave what was going to be my final home on the Isle of Wight following my second divorce.
I therefore applied to the trust for a £200,000 loan to purchase a new home. Once the purchase had taken place, I would have sold my £450,000 home and repaid the trust or rather the BVI company, all of the monies that I had borrowed from them, leaving me with a small capital sum. This request was rejected out of hand, as due to the influence that my father has over Thomas Meier, he prevented Thomas from agreeing such a loan, which would have been secured on my current home, with all interest being paid monthly.
I was aware that in 2016, the BVI company lent my brother an amount of £1.25m, in order for him to purchase an industrial property to let to the current tenant, all effected through a new company formed for that purpose. I had assumed that as for me, full security would have been insisted on. However, I recently discovered that my brother had moved, with his old house being sold for £750,000. There were insufficient assets to secure the loan and, in an unpleasant telephone conversation with my father last year, he advised me that the trust had taken a “personal guarantee from my brother”.
It is the fiduciary duty of the trustee (or their representative) to safeguard the trust’s assets and in this case, the trust was exposed to £275,000. That may not seem a lot of money but the trust ensured that all of my loans were fully secured and it was only due to the fact that my father has a good relationship with my brother, did he influence Thomas Meier to agree to the substantial, effectively unsecured, loan. In this respect, whatever the reason, Thomas Meier breached his fiduciary duty to the trust.
I wish the following to take place
  1. Thomas Meier is fully reprimanded as to his conduct otherwise I will contact the Swiss Prosecutor’s office to escalate the matter.
  2. My father, William Thomas Hender, is removed from being the “UK advisor” to the trust, due to the undue influence that he exerts and due to his lack of mental capacity that I have illustrated above
I am fully aware that Paicolex trust Management AG is a wholly owned subsidiary of Berwin Leighton Paisner LLP and I have copied this email to the managing partner. The Swiss Association of Trust Companies have also been copied in on this email, so that they can take the appropriate action.
When you consult Thomas, he will merely say that I am a “thorn in his side” but all of this unpleasantness derives from my father’s complete lack of balanced and rational mental judgement.
With kind regards

Email to Ron Downhill only

3rd October 2018

Dear Ron,

You may find this letter to you unexpected but I want to right the wrongs of the past.

By the time that you get this, Natalie would have handed you a copy of an email that I sent to my father. I did send it to you also but because of your distrust of me you would delete it without reading it and so I sent it to her too to be personally handed to you.

I know that you hate me for getting Thomas forcibly retired but I want to right that wrong, if I can. I have known for many years that my father has controlled the trust and, as a major client, has also controlled Thomas too.

My father uses people, he always has and never cares about the outcome. He used Thomas to get that money for Martin without any security. Because I was so angry and had been so unfairly treated, I fought back and sent numerous complaints to Lisa Mayhew.

In the end, Ms Mayhew had no choice but to let Thomas, your good friend, go and it was an injustice because my father, suffering from Alzheimer’s and old age, forced him to do what he did; Thomas had no choice.

I like and respect Thomas and I do you but because I got your friend removed, you now hate me and refuse to respond to my emails; that is understandable. I wish to put that right.

I am prepared to sign an affidavit stating that although Thomas broke the basic principal of trusteeship, in not having security for a loan, I will state that Thomas was forced into that by my father and that Thomas had no choice but to accede to my father’s demand.

BLP can prepare the document and if Thomas wants to return, all the better because I liked working with him.

There are, however, a few conditions, which should return what has happened to a state of fairness, for which I have strived  for so long.

These are as follows:

    1. That due to his Alzheimer’s and age, the trustees have now decided that it is appropriate that he, my father, should no longer be the UK representative of the trust and that it is not particularly necessary for there to be any UK representative, certainly not John Marriott, who would carry out my father’s sadly delusional instructions without question. As you know, I am an experienced Chartered Accountant and if the trustees wish me to take up this task, I will accept
    1. I will prepare the accounts of the trust and Adriatic Sea Corporation at no cost to the trust. There will be a learning process but I am up for the challenge. For your edification, it was actually me who designed and prepared all of the accounts until I was sacked by my father
    1. My sibling is charged interest for the loan that was made to him at the same rate that my loan is charged at i.e. 2% above base
    1. I will give a sworn undertaking that I will not, in any way, attack the trust or the tax arrangements of my daughter or her cousins
    1. I will sign a confidentiality agreement that binds me to not disclose any information regarding Project Vendcrown or what was really behind the transaction with regard to the diversion of funds to Michael Cobb
    1. This is the most important condition of them all. My father will have absolutely no influence on monies expended to his grandchildren and the decision of the trustees will be absolute. They may seek opinions from either my sibling or myself but the decision of the trustees is final.
    1. I have no clue as to what is in my father’s letter of wishes but money expended to any beneficiary will be on the basis of justifiable need and not on demand, subject to dividends paid to my sibling and I being based on my current level of dividend but is up for review every three years and will be amended subject to the change of RPI from February to February.
    1. My loan is with Adriatic Sea Corporation and not a mortgage provider, all of whom have refused me a mortgage, even my very own bank, with whom I have been since I was 13.
    1. My father promised to Rosanna that on the occasion of our divorce, either he or the trust would provide her with a home. He renaged on this promise. The amount that I borrowed from the trust amounted to £180,000, as stated in the loan interest calculation spreadsheets. The trustees will accept that this amount was their responsibility, regardless of the judgement. I will then repay the capital balance and interest, at which point Adriatic Sea Corporation will file that the charge has been fully satisfied.

    All conditions are to be agreed in their entirety.

    Ron, I have tried to be fair, both to you and Thomas. I do not want my daughter to have that guilt around her neck for the rest of her life. My life has been destroyed and whether it can be partly rebuilt is going to be down to time and will. I do not want her to suffer the same fate as me. Indeed, my health has significantly deteriorated as a result.

    Ron, the ball is in your, the trustees and Lisa Mayhew’s court.

    With my best wishes

    David

You replied on Fri 05/10/2018 19:54
Gaby Kaiser <gaby.kaiser@bclplaw.com>
Fri 05/10/2018 16:28
You

Dear Mr Hender

I refer to your letter dated 3 October 2018 addressed to Ron Downhill and copied to Lisa Mayhew.  The contents of your letter are noted but not agreed.  Any proposals for the trustees should be made to them directly.

For the avoidance of doubt, your assertion that Mr Meier was “forcibly retired” is incorrect.

Yours sincerely

Gaby Kaiser

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