Choudary v Nawaz & Ors

On 23^rd November 2006 His Honour Judge Mayor QC gave judgment on a preliminary issue which had taken some four days to try. The issue was whether the claimant had ever become a partner with the first to fourth defendants in a firm named Northern Accommodation Agency and, if so, in what share. The judge ruled that the claimant had failed to establish membership of the partnership. In so ruling the judge formed an unfavourable view of all the parties concerned and indeed made certain very adverse findings as to the credibility of the claimant, including a finding that he had forged a document or documents. Application for permission to appeal should have been made to the judge and, if refused, within 21 days of the judgment to the Court of Appeal. Only on or about 16 April 2007 did the claimant file an Appellant’s Notice. As he was bound to do, the claimant sought an extension of time for appealing. The first ground of appeal sought a retrial “because there is new evidence available to the claimant (which was not before the learned judge) and which would have an important influence upon the result of the trial.” Thus, at the same time as applying for an extension of time, the appellant was seeking to file fresh evidence. Part of the fresh evidence he wished to file was a handwriting expert’s report but that report was, at the moment of drafting the grounds of appeal, unavailable.

Sir Henry Brooke considered the matter on paper and adjourned the applications to a full court with appeal to follow, if an extension of time and permission to appeal were granted, by which time he directed the handwriting expert’s report “must be disclosed and filed”.

The matter came before us on 5^th December 2007. The handwriting expert’s report was available, but only just, it having been disclosed to those representing the claimant only on 29^th November 2007. We had detailed skeleton arguments. We also heard argument over a full day, that argument being addressed in the main to the question whether the evidence was truly fresh evidence and what its impact would in any event have been on the merits if any appeal were to take place. Only if an appeal had a real prospect of success could the court even consider extending time of the length required in this instance.

This is described by the judge in some detail from paragraphs 1 – 5 of his judgment, demonstrating a state of affairs giving cause for serious concern. I will use some of his words just to give a flavour:-

It was the claimant’s case that he had partaken in this so-called trade on his own, under the name Yorkshire Property Investment and Management. His case was that he then entered into a partnership with the third and fourth defendants (to whom I shall refer hereafter as Ilyas and Younis) in April 1999 (although in evidence this may have become July 1999). That partnership, according to the claimant, traded under the name West Yorkshire Properties, although his evidence was that it in fact it also traded as “T.B. Younis”, a fact, according to the claimant, he did not discover until later. The dispute as to the existence of this tripartite partnership was the sub-plot to the actual issue which the judge had to try, relating to a partnership said to have been formed later.

The claimant’s case was that at a meeting at the Spinney Hill public house at the end of October 1999 between the first defendant (Nawaz) and the second defendant (Riaz) and himself there was a discussion about the claimant and the first four defendants going into partnership together under the name Northern Accommodation Agency. His case was that he left that meeting saying he agreed the proposals to go into partnership but that he would have to consult with his then suggested partners, Ilyas and Younis. His case was that he obtained the agreement of Ilyas and Younis to the new partnership. Then, according to the claimant, at a further meeting at the Cock public house in Northampton, between the claimant, Nawaz and Riaz, the claimant reported the agreement of Ilyas and Younis. He said that an agreement was made on that day to form a partnership, Northern Accommodation Agency. Some time later at a further meeting between the claimant Nawaz, Riaz, Ilyas and Younis, the share in the partnership was agreed (he said) at 20% each.

Even on his case that partnership only lasted a very short time. His case was that at a meeting in January 2000 Nawaz, in the presence of the other defendants, terminated the partnership and excluded him. They replaced him with the fifth defendant. Thereafter on the claimant’s case there was what the judge described as a twilight period during which the claimant and Riaz, Ilyas and Younis continued to do business.

It would seem that at the trial there was no issue that a meeting took place at the Spinney public house and that there was discussion of a partnership. All the defendants however denied that the claimant was present at any meeting at the Cock. Ilyas and Younis denied there ever was the tripartite subplot partnership, either formed in April or in July 1999. It was accepted that a partnership trading under the name Northern Accommodation Agency was at some stage formed. In December 1999 Riaz and Nawaz evidently signed a bank mandate opening a bank account (as I understand it) in the name of the new partnership. There was then, again it was common ground, a meeting in January 2000. At that meeting any relationship which the claimant had involving Nawaz was brought to an end.

In March 2000 a further bank mandate was signed by all defendants in the name of the partnership, Northern Accommodation Agency. Furthermore a written partnership agreement was entered into between all the defendants. That partnership agreement provided for the partnership commencing as at 1 December 1999 and provided for termination on six months’ notice (see trial bundle 3 page 412).

There was, it seems, a dispute between Nawaz and his co-defendants as to whether Nawaz ever was a partner, resolved only after Nawaz commenced proceedings.

When the claimant made his claim against the defendants to the effect that he was a partner, as he ultimately did by letter dated 6 May 2004, (see page 185 in trial bundle 1), he may have been under some misapprehension as to the effect of partnership law. If he could establish some form of partnership, it was certainly not, so far as he was concerned, of any defined length. It was not as the written agreement ultimately provided for, terminable on only six months’ notice. It was thus a partnership at will. Such a partnership is terminable simply on notice being given (see s.32 of the Partnership act 1890). His claim letter seems to contemplate a claim for profits from December 1999 up to the date of the letter. The reality is, however, that any claim for profits, if he could establish a partnership, would be for profits over the very short period December 1999 to January 2000.

Furthermore, on the evidence before the judge and leaving on one side for the moment the finding that the judge did make as to the fabrication of documents, the claimant’s case to establish some partnership was a very difficult one. Firstly, there was no written agreement evidencing any partnership either between the claimant and Ilyas and Younis (the sub-plot) or between the claimant and the first four defendants (the issue before the judge). Secondly, there were no accounts or books of any partnership for the relevant period from which some evidence of the sharing of profits or losses could be inferred or from which the relationship of partners could be itself inferred.

In addition, there were some inconsistencies which the claimant had to explain; for example it seems that he commenced an action against Leeds Council in his own name, seeking to claim from them sums on the basis that there had been, during 1999, asylum seekers lodging in properties of which the claimant was the tenant. If his claim to be in partnership with Ilyas and Younis was accurate, that claim should have been brought in the firm name or at the very least for the benefit of all three partners. The pleadings and letters from solicitors, as is pointed out in the judge’s judgment, were inconsistent with that position. What is more, Leeds Council produced evidence that there were in fact no asylum seekers in the houses. It seems that Ilyas and Younis ultimately supported the Leeds’ case. In the result the claim had to be dropped and this is dealt with at paragraph 4 of the judge’s judgment in the following words:-

When the claimant sought to show that Younis was carrying on West Yorkshire business from the offices which he said were Northern Accommodation Offices, what he relied on was a letter dated 23 November 1999 headed West Yorkshire Properties. This is a letter which the judge held to be a forgery, and I will return to it, but even if not a forgery it hardly supported the claimant’s case of a partnership operating from October/ November 1999 in the name of Northern Accommodation.

The nub of the claimant’s case was that 17 properties had been brought into the business by him. He identified those in his statement which stood as his evidence in chief. His case was that these properties were brought into the sub-plot partnership and then became part of the assets of Northern Accommodation. To establish the fact that the properties were part of the sub-plot partnership, the claimant sought to rely on documents which seemed to implicate Younis in the business. The judge however found that the fact that Younis could be shown to have had something to do with these properties, or some of them, was properly explained in Younis’ witness statement where he said:-

That led the judge to make the following finding:-

Without regard to the judge’s finding of forgery, as far as I can see, the evidence before the judge did not support any final agreement or formation of a partnership of which the claimant was a member. In so far as there were seventeen properties in which it could be said Younis was implicated, that did not support the existence of any partnership, even with Younis, never mind a partnership involving the other defendants. Such evidence as was before the judge supported discussions about the formation of a partnership but not any agreement that there was one. There was simply no evidence from which he could conclude that there was a sharing of profits or losses during the very short period December to January 2000. His findings in paragraph 27 were as follows and hardly depend on the finding that he had made as to fabrication of documents:-

Thus, on the evidence before the judge and on the judge’s findings at the trial, this would not be an appeal which had any real prospect of success.

I remind myself of the proper approach to the admission of fresh evidence on an appeal. The position is now governed by CPR 52.11(2). This was explained by Hale LJ (as she then was) in Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318 where she said this:-

The rules in Ladd v Marshall to which she refers are well known and in summary are (1) that the evidence could not have been obtained with reasonable diligence for use at the trial, (2) if given it would probably have had an important influence on the result of the case; and (3) it is apparently credible, although not incontrovertible.

Thus it is relevant whether the documents now sought to be put in before the Court of Appeal were actually available at the trial and if not whether they could with reasonable diligence have been available. It is also relevant whether if they had been available they would have had an important influence on the result of the trial.

Mr Dingemans QC who argued the application for the claimant submitted that if the documentary evidence that he wished to place before us plus the report of the handwriting expert were admitted the evidence of the claimant and the evidence of the defendants would be viewed in a new light. The documents would support the view that the claimant had not forged any document and would support a case that the defendants had lied at the trial.

The first ground of appeal is worth quoting since it identifies the documents with which the application is concerned and the basis on which it is suggested that they would have had an impact on the trial.

There ought to be a retrial of the action because there is new evidence available to the Claimant (which was not before the Learned Judge) and which would have had an important influence upon the result of the trial. The evidence is:

A letter from Wakefield Metropolitan District Council dated 19 December 2006 confirming that it has made payments to the Claimant trading as Yorkshire Properties, 97 Kettering Road, Northampton;

A tenancy agreement dated 1 July 1999 in respect of 41 Dorset Mount Road, Leeds showing Ilyas Bhatti’s address as 75 Ether Street, Northampton; and

A tenancy agreement dated 18 October 1999 in respect of 59 Knox Road, Wellingborough signed by Ilyas Bhatti on behalf of Yorkshire Properties as tenant.

This new evidence would have had an important influence upon the result of the trial for the following reasons:

The Claimant’s case that he carried out business from 97 Kettering Road is supported by the letter from Wakefield Metropolitan District Council referred to above.

Ilyas Bhatti denied any knowledge of 75 Ether Street, Northampton. The tenancy agreement dated 1 July 1999 showing his address as 75 Ether Street is prima facie evidence that his evidence in this respect was false.

Ilyas Bhatti denied any dealings in respect of 59 Knox Road, Wellingborough and any dealings with Yorkshire Properties. The tenancy agreement dated 18 October 1999 is prima facie evidence that this evidence was false.

Further, the Claimant is in the process of obtaining expert evidence from a handwriting expert to establish that signatures on the cheque dated 30 March 2001 and the tenancy agreement dated 18 October 1999 were signed by Ilyas Bhatti who denied that both of these signatures were his during the trial. This evidence would have had an important influence upon the Learned Judge’s assessment of Ilyas Bhatti’s evidence. Had the learned Judge had the benefit of the anticipated handwriting expert evidence, he is less likely to have made his finding that the Claimant tried to deliberately deceive the court. On the contrary, the Learned Judge is likely to have found that the Claimant was telling the truth and that Ilyas Bhatti’s evidence was discredited.

The Claimant is also in the process of obtaining expert evidence from a handwriting expert to establish that the letter dated 23 November 1999 at page 146 of the trial bundle was signed by Tariq Bin Younis on behalf of West Yorkshire Properties. This was denied by Tariq Bin Younis.”

It is right to say at the outset that the judge had in fact taken a poor view of all witnesses except possibly the first defendant. Furthermore his view of the claimant’s credibility was not entirely dictated by his view that the claimant had forged a document or documents. As already indicated he had found that the claimant in suing the Leeds City Council had acted dishonestly since he accepted the likelihood that the City Council’s evidence, that there were in fact no asylum seekers lodging in the properties, was likely to be true.

Furthermore so far as the handwriting report of Robert Radley is concerned it has one major weakness as any support for the claimant’s case in so far as Robert Radley was in all but one instance examining copy documents. Having opined in relation to the documents which he was asked to consider that the signatures were genuine he added a note at the end of his report that said this:

Since if there was any fabrication of documents so far as copy documents were concerned, the most likely way that the documents would have been fabricated was by use of the photocopying machine, this report could in fact be of very little assistance in relation to such documents.

I turn however to the individual documents identified in the grounds of appeal.

The letter from Wakefield MDC dated 19 December 2006. This was produced to support a case that payments were made to Yorkshire Properties. Wakefield MDC have, however, produced a letter, signed by the claimant, headed Yorkshire Property and Investment and Management, dated 30 September 1999, asking for payments to be made into his personal account. At one time, Mrs Kennedy McGregor, was going to assert that a deliberate attempt was being made to mislead the court, but Mr Dingemans took the wind out of her sails by accepting the letter did not show trading by Yorkshire Properties at 97 Kettering Road, but did show the claimant was trading there through his own business. Whether or not at some stage an attempt was going to be made to lead the court to think that West Yorkshire Properties were trading there matters not. I simply do not see how the letter adds anything to the claimant’s case for establishing membership of a partnership in November/ December 1999.

The Tenancy Agreement bearing a date 1 July 1999 showed Oaklands Investments as Landlord and Ilyas as tenant with an address at 75 Ether Street Northampton, the subject of the tenancy being 41 Dorset Mount which was a Leeds property. At the trial in the bundle were simply two pages of this document and it was being put to Ilyas as relevant to the question whether he was in partnership with the claimant in July 1999 (the sub-plot). When cross examining Ilyas counsel was handed a further document which we were told was in fact the complete original tenancy agreement bearing Ilyas’ signature. But counsel on his feet thought what he was being handed was the original of the copy document in the bundle but seeing that it was in fact in slightly different form decided not to put it in evidence or to the witness. Mrs Kennedy McGregor representing Ilyas offered herself to put the document in because she did not want to mislead the judge about the fact that this original document did contain Ilyas’ signature but counsel for the claimant objected. The document cannot as it seems to me even be described as fresh evidence, and in the light of the way it was dealt with at the trial it should not be admissible on an appeal. I should add that since it relates if anything to the subplot and not to the main issue its impact would have been slight indeed. Furthermore it provides no excuse whatever for a late application for permission to appeal.

At page 125 of our bundle is what is suggested to be a shorthold tenancy agreement signed by Younis where the tenant is Yorkshire Properties commencing on 18 October 1999 relating to 59 Knox Road Wellingborough. This document was evidently obtained from the files of a Mr Bill Wych before the trial and an attempt was made to put it in evidence on the first day of the trial. The judge was strict with both parties in relation to producing as he put it “rabbits out of the hat” and ruled that he would not allow documents simply to be put in without a proper application to do so. That is where this matter was left. Thus once again this document is simply not fresh evidence obtained since the trial. It furthermore once again provides no excuse for delaying applying for permission to appeal.

The cheque a copy of which is at page 124 of our bundle was said to be what was available at the trial. Actually if one goes to the main trial bundles the document available was in slightly different form – it is at page 242. The relevance of that is that what is now sought to be put in evidence is the cheque as recovered from the bank after the trial in December 2006 which has on it the signature of Ilyas. When he was being cross examined by reference to the document in the trial bundle he did not accept that it was established that he had signed the cheque. His signature was not apparent on the copy shown to him. It is now accepted that he did sign the cheque. Was there any excuse for the claimant not having the original cheque available at the trial? It seems to me there was none. The claimant had no difficulty getting the cheque after the trial and the cheque had been with the bank all the time. I would add that it may even be possible that at one point in time the claimant had the original cheque before the trial because the document in the trial bundle seems to be that cheque with a piece of paper almost covering the signature on the cheque with the claimant’s writing on it. Once again this document on any view provides no excuse for delaying applying for permission to appeal.

Next I deal with the document at page 126 of volume 2 of our bundles about which there was considerable debate at the trial as to its authenticity. The document is apparently signed by Younis with a date 23-11-99 underneath the signature. It is headed W. Yorkshire Properties 97 Kettering Road Northampton with various telephone numbers one of which was the claimant’s mobile number. It was addressed Dear Sir/Madum. Robert Radley in his report states that the signature is authentic but the question is whether the signature has been placed there by use of a photocopying machine. Since the document was available at the trial it is not itself fresh evidence in that way. The only fresh evidence could be the report of Robert Radley but he does not deal (because he cannot) with the allegation that the signature was placed there. The points made at the trial related to the idiosyncratic placing of the date below the signature which was a habit of the claimant. During the hearing before us a further point became available. On behalf of the claimant there were produced some documents one of which was signed by the claimant and it began Dear Sir/Madum. Odd it was said that the same way of spelling Madum should appear in both letters. Since the claimant was not giving evidence before us and thus had no chance to deal with the point it would be wrong to make too much of this last point. The fact remains that in relation to this document there was no fresh evidence of any value as compared to the evidence available at the trial. Once again it also provides absolutely no excuse for any delay in bringing an appeal.

In summary, so far as the above documents sought to be put in and the Robert Radley report are concerned: (1) The Robert Radley report adds very little to the position as it was before the judge; (2) documents (b) to (e) above were available at the trial or certainly could have been with reasonable diligence. Even document (a) it is difficult to say why it should not have been available at the trial. (3) None of the documents, in my view, has any impact on the judge’s findings as to the claimant’s membership of a partnership with the defendants during December 1999 to January 2000 nor, I should add, on the judge’s finding that the claimant had forged a document, a matter with which I should finally deal.

The document the judge did expressly find to be a forgery was page 177 of the trial bundle (page 115 of our bundle). This was a document addressed to Mintridge Investments, headed Yorkshire Properties, bearing a typed “signature” of Ilyas. It was marked “office copy”, the indication being that an original had been sent to Mintridge Investments, signed by Ilyas. At the trial the point was made that a manuscript draft of this letter, in the claimant’s writing, existed (page 234 of the trial bundle). That draft included the signature “Ilyas” in the claimant’s writing. The mobile phone number on the letter was the claimant’s. The claimant said he had left the draft for the office to type up and put his own mobile number on it because he (the claimant) was dealing with it. Why, if the claimant was dealing with it, did the claimant have “Ilyas’” signature put on it? The answer is not obvious. Furthermore, if the letter was an office copy, Mintridge Investments would have had the original. If that had been produced it would have shown whether Ilyas did sign the letter for Yorkshire Properties. That document was never produced. None of the evidence sought to put in on this appeal could support an appeal against the judge’s finding in relation to this document.

I should finally mention CPR 32.19 on which at one stage Mr Dingemans placed some reliance. He suggested that since there was a deemed admission of authenticity under CPR 31.19 the claimant was taken by surprise by the allegation of forgery made to him in cross-examination. The point was rightly not ultimately pursued. The claimant was put on notice of a challenge by Ilyas’ statement paragraphs 11,12 and 17, and no protest having been made at the trial it was too late to take the point on appeal.

In the circumstances, even if the application for permission had been brought in time, I would have refused permission to appeal and the admission of any fresh evidence, and it thus goes without saying that the application for an extension of time must be refused.

I agree.

I also agree.