compensation for their ancestors’ wrongly confiscated assets. It was also put to him
that he was not telling the truth when he said that he did not appreciate the
significance of the BADV until just before the Contract was signed, the inference
(unpleaded) being that he deliberately omitted the reference as he didn’t want any
point to be taken before the contract was signed and was somehow tricking the
Defendants. I reject this suggestion. The Claimant said that he had had experience
with the JCC but, unlike the First Defendant, not the BADV whom he hadn’t
appreciated handled claims. It was only late in the day, when Mr. Chudson explained
in his email of 12th November 2014, that the penny dropped. If he had understood the
BADV before, then there is no reason why he would have drafted the first version of
the contract as he did. It was also suggested that he was not acting in a straightforward
manner in referring to the Bundesamt, and not the BADV when he amended to draft,
a suggestion which I reject. In any case, the First Defendant well understood the
distinction.
40.
I did not find the First Defendant a reliable and straightforward witness. He was
plainly evasive when asked straightforward questions and went into long answers,
which avoided the question. He jumps to conclusions about the motives of others,
such as Mr. Chudson and the Claimant, and when faced with emails – written to or by
him – which appeared in the context to make it clear that Mr. Chudson and Mr. Surner
were exploring a potential claim to the Bandesamt in November 2014, he said that he
did not know that this was a reference to the BADV. This suggestion was completely
untenable on the documents and against the background that the First Defendant says
that he is very experienced at dealing with the BADV. It is also contrary to paragraph
12 of his first witness statement. He doggedly stuck to his answer that Bundesamt
simple meant a government office. The numerous references to Bundesamt in emails
from Mr. Chudson, the Claimant and from Dr. Surner cannot be read as references
simply to an office or archive or to claims only through the JCC. For example, the
email from Mr. Chudson dated 20th November 2014 at 7.57 shortly before the contract
was signed. In the end Mr. Darton did not argue that the reference to Bundesamt in
the contract was not a reference to BADV, but I find that the First Defendant’s refusal
to accept that he had not understood it to mean that, was designed to improve his case
in these proceedings and not because it was true. Furthermore, it is not credible for
him to have allowed Mr. Chudson and Dr. Surner to pursue researches and claims at
the BADV (once he accepts that by that time he appreciated the meaning) without
sending them an email asking them why they were doing this, since it was not part of
the contract and telling them to stop.
The construction of the contract
41.
The starting point is the contract, the relevant terms of which I now set out. The
following recitals are relevant. Words in square brackets are my explanations and not
part of the contract:
WHEREAS, Tony [Claimant] has engaged ….. “Lee”
[Chudson] of ….., to research German and US archives for
documentation (“Claim Documents”) needed to support claims
(“Claims”) to be made to the Conference on Jewish Material
Claims Against Germany (“JCC”) and/or the German courts
for award of compensation (“Awards”) for German property