Bassi v Anas

This is an adjourned hearing of an application under CPR 52.17. The applicant, Mr Saria Anas, seeks an order reopening the final determination of his application for permission to appeal from an order made on 21 December 2006 by HHJ Collins CBE sitting in the Central London County Court in possession proceedings brought by his landlord, Mr Sameer Bassi. Permission to appeal from that order of 21 December 2006 was refused by Jacob LJ after an oral hearing on 14 February 2007. On 15 February Jacob LJ refused leave to petition the House of Lords as he was bound to do; having in mind the provisions of Section 54(4) of the Access to Justice Act 1999.

The present application was made by notice dated 2 March 2007. On 7 March 2007 Jacob LJ ordered that the application to reopen his earlier order of 14 February 2007 be listed for oral hearing on notice to the landlord. In directing an oral hearing, Jacob LJ indicated that that would enable this court to consider whether the jurisdiction identified in its judgment in Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528, extended to an order said to have been obtained by fraud. He stayed execution of the possession order until the application had been heard.

In order to set the present application in context, it is necessary to describe the issues which were before the judge in the possession proceedings. The principal claim was for possession of residential property comprising a two bedroomed flat at 605 Park West Place, London W2. There were, in addition, claims by each party against the other for harassment. And there was a claim by the tenant for damages for breach of the repairing covenants and a claim by the landlord for arrears of rent.

Possession had been claimed in proceedings commenced on 2 March 2006 (under reference 6CL 50805) on the basis that the property had been let to the tenant, Mr Anas, under an assured shorthold tenancy commencing on 26 October 2004. In those proceedings the landlord had relied on a notice under section 21 of the Housing Act 1988 which, it was said, had been served on 19 August 2005 and had brought the tenancy to an end on 25 October 2005. By his defence to that claim the tenant alleged that the original tenancy had been granted (rather than in October 2004) on 27 October 2003 and had been superseded by a tenancy agreement dated 10 July 2004. The tenancy granted on 10 July 2004 has been for 12 months; but has been extended by an amended agreement dated 1 November 2004 to a term of 36 months, less one day, from 26 October 2004. On that basis, it was said, the contractual term would not end until 24 October 2007.

In his reply to that defence the landlord admitted and averred the grant of a 12-month tenancy from 26 October 2004, under the agreement dated 10 July 2004; but denied that the 12-month term had been extended to 36 months by an amended agreement of 1 November 2004. It is, I think, pertinent to note the terms of that denial, pleaded at paragraph 5 of the reply in the first proceedings:

On 17 August 2006 the landlord commenced further proceedings (under reference 6CL 53063). In those proceedings the landlord relied on a notice served on 28 June 2006 under section 8 of the Housing Act 1988. The purpose of those further proceedings, no doubt, was to avoid the need to determine whether the operative tenancy was for 12 months or for 36 months. If the tenancy was for 36 months, it had been brought to an end by notice under section 8 of the 1988 Act; which relied on the alleged failure by the tenant to pay rent as it fell due. By defence to that claim filed on 8 December 2006 the tenant denied service of the section 8 notice and denied that he was in arrears with his rent.

The two actions were consolidated. The judge referred to the issues which he had to decide at paragraph 3 of his judgment on 21 December 2006:

The judge did not find it convenient to address the issues which he had identified in the order set out in paragraph 3. For reasons which he explained at paragraph 32 of his judgment, he found it more convenient to approach the issues in a different order. At paragraphs 33 to 48 the judge addressed the claims for harassment. He dismissed the tenant’s cross claim; and he found against the tenant on the landlord’s claim. He awarded £1,000 against the tenant by way of damages for harassment. At paragraphs 49 to 55 the judge addressed the tenant’s cross claim for breach of repair. He dismissed that claim on the ground that the tenant had refused to allow access for inspection of the alleged state of disrepair. At paragraphs 56 to 68 the judge addressed the question whether the notices on which the landlord had relied had in fact been served. His conclusion, expressed at paragraph 68 of his judgment, was that both the section 21 and the section 8 notices were properly served on the defendant. He went on, at paragraph 69, to say this:

The “question of the receipt”, or receipts, had been identified by the judge earlier in his judgment, at paragraphs 26 and 27:

The judge addressed the evidence on that question at paragraphs 70 to 82 of his judgment. He expressed his conclusion in these terms:

The conclusions which the judge had reached on the questions (i) whether there had been arrears of rent and (ii) whether the section 8 notice had been served on 28 June 2006 made it unnecessary for him to decide whether the operative tenancy was for 12 months or for 36 months. He explained why it was unnecessary to answer that question at paragraph 85 of his judgment:

The judge addressed that issue at paragraphs 86 to 97 of his judgment. For the reasons which he gave he accepted the landlord’s account that he did not sign the amended agreement dated 1 November 2004 at a meeting on 3 November 2004 as the tenant had alleged. The judge was satisfied that there was no such meeting, because he accepted the claimant’s evidence that he had recently returned from the United States in a state of ill health and would have been unable to travel to a meeting on 3 November, let alone prepare the documents which were said to have been signed on that day.

The appellant’s notice was filed on 11 January 2007. The application for permission to appeal came before Jacob LJ on 14 February 2007. He refused permission to appeal for the reasons which he gave in a short judgment; three paragraphs of which are material in the present context:

Jacob LJ was correct, if I may say so, to note that the judge had found that the section 21 notice was served. His reference to rent arrears in the same sentence must, I think, be taken to indicate that he had in mind, also, the fact that the judge had also found that a section 8 notice had been served. It was of course the section 8 notice which was the operative notice in connection with the tenancy for 36 months; if there were such a tenancy.

Following the refusal of permission to appeal the tenant, Mr Anas, consulted a handwriting expert. He did so, as appears from her report, on 22 February 2007. The documents on which she was asked to express an opinion were (1) amended tenancy agreement dated 01/11/04 signed by the Landlord Mr Samnir Bassi and his tenant Mr Saria Anas -- original; (2) Receipt dated 18/04/2005 for the sum of £1320 as rent for 605 Park West, London W2 2RB and signed by Mr Sameer Bassi -- original. She was asked to compare the signatures on those two questioned documents with the signature on two other documents to which she refers; one of which, document (3), was the tenancy agreement dated 10 July 2004 which the landlord acknowledged he had signed. The expert’s conclusion was expressed in confident and unequivocal terms:

On the basis of that report - which he received on or about 26 February 2007 - the tenant made his application on 2 March 2007 for Jacob LJ’s order of 14 February 2007 to be reopened and for a rehearing of the application for permission to appeal. The reasons which he gave were (i) the expert’s report constituted new evidence that was not available to him for the court to consider; and (ii) that he occupied the flat with his wife and three young children. The application to re-open was supported by a written argument extending over some 25 pages filed on 13 March 2007. In a section headed, “The reason why the appellant did not obtain the new evidence before submitting this application for reopening the appeal”, the tenant said this:

The first of those two paragraphs is in the same, or substantially the same, terms as paragraph 2 of a document headed, “The appellant’s additional evidence in support of his grounds for appeal”, which was received by the court on 13 February 2007: that is, a day before the hearing before Jacob LJ of the oral application for permission to appeal.

In preparing his written argument filed with the Civil Appeals Office on 13 March 2007 the tenant clearly had in mind the requirements imposed by CPR 52.17 (1). That sub-rule is in these terms:

The written argument addresses those requirements under the three heads corresponding to (a), (b) and (c) in the sub-rule.

Under the first of those heads is - the necessity for reopening the appeal in order to avoid real injustice - the tenant criticises Jacob LJ’s reference to the section 21 notice. He points out that it did not matter whether the section 21 notice was served or not if the tenant in fact had a 36-month tenancy, because that tenancy would not come to an end until 25 October 2007. Of course if the true position was that the tenancy was a 12-month tenancy, then the section 21 notice determined it. But in any event, as I have said, Jacob LJ must have had the section 8 notice in mind also, which would have brought a 36-month tenancy to an end under one of the grounds in the Housing Act.

Paragraphs 3 and 4 of the written argument - also under the head, “The necessity for reopening the appeal in order to avoid real injustice” - are in these terms:

The written argument filed on 13 March 2007 has been supplemented – and, perhaps superseded - by a skeleton argument dated 23 July 2007 prepared for the present hearing. That itself extends over some 28 pages. In Section 5, under the heading “My application to admit the fresh evidence”, the tenant refers to the three 1965 requirements established by this court under the Supreme Court Rules in Ladd v Marshall [1954] 1 WLR 1489, 1491. In relation to the first requirement he contends that the expert’s evidence could not have been obtained with reasonable diligence for use in the County Court. He asserts that the landlord had made allegations of fraud to the housing benefit service; that that service had referred the matter to the EPC-ACIT agency, who, acting on behalf of the service, had conducted an investigation; and that in the result the service had decided the point in his favour. He refers to two passages from the transcript of his interview on 1 June 2005 by an Investigating Officer of ACIT. Those passages indicate that what that officer then had in mind, at least, was that he was going to have to try to resolve the dispute based on examination of the handwriting. There is nothing there which suggests that a handwriting report had been obtained by that date; but some indication that a report might be obtained in the future.

The skeleton argument goes on to refer to a hearing before “HHJ Fine” (I think that is probably a reference to District Judge Fine) at which the question was raised whether an expert report in relation to the landlord’s handwriting and signature should be obtained. The tenant says this:

The tenant then addresses the second requirement: that is to say the requirement that the evidence would have an important influence on the outcome of the case. He points out that, if there had been evidence before HHJ Collins that it was indeed the Landlord’s signature on the amended tenancy agreement of 1 November 2004 and on the rent receipts, HHJ Collins would have made different findings of fact from those which he did make on those issues. Then he makes the point - which, as it seems to me, is plainly correct - that the expert’s evidence was apparently credible. The expert is a properly qualified expert and her conclusions are firm.

In approaching the question whether the requirements - and in particular requirements (a) and (b) - in CPR 52.17 are satisfied it is plainly of importance to consider whether this is a case in which the evidence of the handwriting expert ought to be admitted on an appeal, notwithstanding that that evidence was not before the judge at the trial and was not before Jacob LJ on 14 February 2007. That turns, first, on the question whether the evidence could have been obtained with reasonable diligence for use at the trial. It is important to have the following factors in mind.

First, the tenant has known throughout these proceedings that the landlord’s signature on the amended agreement of 1 November was in issue. It was put in issue by the paragraph of the reply to which I just referred.

Second, this is not a case in which the document came into the tenant’s possession at a late stage. The original of the document on which the tenant relies - the amended agreement of 1 November 2004 - has been in the tenant’s possession throughout (see the judge’s observations at paragraph 90 of his judgment). It was always open to him to carry out whatever tests or investigation in relation to that document as he thought fit.

Third, the tenant had sought an adjournment before HHJ Collins on 21 December 2006 for the purpose of obtaining an expert report. An adjournment was refused for the reasons which the judge gave.

The possibility of obtaining a handwriting report from an expert had been raised at an early stage. As I have indicated, there had been an appeal in June 2005 to an appeal tribunal in respect of the tenant’s dispute with the local authority in relation to the tenant’s entitlement to housing benefit. The judge referred to that dispute at paragraph 89 of his judgment. It appears that the question whether the amended agreement of 1 November 2004 was an authentic document had been raised in the course of that dispute; as was the question whether the landlord had given receipts. The ACIT appears to have been satisfied of the authenticity of those documents as the judge noted. The tenant took the view that in the course of the investigations, ACIT had obtained a handwriting analysis. He took that view from the interchange in the course of his interview in June 2005. There seems to have been no other basis for that view, and in particular there is no evidence as to whether in fact the ACIT or housing benefit service did obtain a handwriting expert’s report.

The tenant had referred to the need for an expert report in the course of a draft statement which he had prepared in conjunction with the County Court proceedings. At paragraph 36 of that draft statement he had said this:

As I have said, at a hearing in August 2006, the question of an expert report was raised in front of District Judge Fine. HHJ Collins referred to that at paragraph 9 of his judgment. He refused, also, to the further directions hearing before HHJ Ryland on 9 October 2006, in the course of which that judge made an order that:

The position following those directions made by HHJ Ryland are referred to in the letter of 24 April 2007 from the solicitors then acting for the tenant; written, of course, after this application had been made:

I have referred to the application for an adjournment made to HHJ Collins on 21 December 2006. In dismissing that application, the judge said this at paragraphs 7, 8 and 9:

The applicant’s former solicitor comments on the failed application fpr an adjournment in the letter of 24 April 2007:

But analysis of the passages in the judgment to which I have referred does not support the proposition that the refusal was of an application to adjourn in order that the Housing Benefit Agency’s file to be produced but rather that there would be further handwriting expert evidence produced. The judge thought that the point of time for that application was long since past having regard to the history which he set out.

Fourth, there was, as it seems to me, no appeal from the judge’s refusal of an adjournment: whether to obtain the ACIT documents or to obtain a further handwriting report. The tenant raised that matter before Jacob LJ in the paragraph in his additional evidence in support of his grounds of appeal, to which I have referred. But Jacob LJ did not refer to it in the course of his judgment. It may be that he was left in the position that there was no evidence of what either the handwriting report in the ACIT file would show (if, indeed, there were such a report) or what any report obtained pursuant to adjournment would show. The obvious need, on 14 February 2007, was for the applicant to put before Jacob LJ an expert’s report which would justify the conclusion that the judge’s refusal to grant an adjournment was wrong and has a material effect on the outcome of the trial. Without such a report, Jacob LJ was in the position that he could not know whether what the effect of an adjournment would have been. It is clear that, if the applicant had wanted to take the point, that was the opportunity to do so and that is what he could have done.

Fifth, the only explanation as to why the expert report which, eventually, was obtained was not obtained earlier is that found in paragraph (vi) of section 5 of the skeleton argument for this hearing and paragraph 10 under the first section in 13 March 2007 document. That is the applicant’s assertion that he was unable to pay for the report; but was able to borrow money from a friend to obtain it. There is nothing to suggest that the applicant had sought a loan from the friend before 14 February 2007; nothing to indicate why he had not done so (if he had not done so) and nothing to indicate why the loan would not have been obtained before 14 February 2007, if it had been sought given that (when the loan was sought) it plainly was obtained in time for the applicant to instruct the expert on 22 February 2007. In other words there is nothing to show why the report which was obtained by means of (as the applicant says) a loan could not have been obtained earlier.

Sixth, the authenticity of the document of 1 November 2004 is questionable on any view: in that both parties assert that it is a forgery (at least in part). Both parties assert that the signature of the witness, Mr Ravinder Ruprah, was not on that document on 1 November 2004. The applicant contends that there was another person present as a witness at the meeting on 3 November. That was a Mr Faraji. Mr Faraji was called at the trial; but the judge did not accept his evidence see paragraphs 94 and 65 of the judgment.

In all those circumstances it seems to me that this is a case in which the application to rely on fresh evidence does not being to meet the hurdle posed by the first of the requirements in Ladd v Marshall. I am wholly unpersuaded that the expert’s report could not have been obtained either in time for it to be put in front of HHJ Collins; but, perhaps more importantly in the present context. I am wholly unpersuaded that it would not have been obtained in time for it to be put in front of Jacob LJ on 14 February 2007.

Nor does it seem to me is this a case in which it can be said with confidence that the evidence would have had an important influence on the result of the case. As I have explained, the judge had decided the case, before he had decided the question which was the operative agreement. He decided that the 12-month agreement was the operative agreement on the evidence of those who were said to have been present on 3 November 2004 at the signing of the 36-month agreement. He plainly did not accept that however his signature came to be there, the landlord had signed the document on 3 November 2004. Evidence that the signature was indeed the signature of Mr Sameer would not have answered the question how that signature came to be on the document; in the circumstances that the judge did not accept the tenant’s account of the meeting on 3 November 2004.

It is important, in the context of an applicant under CPR 52.17, to keep in mind that there is no suggestion that the landlord succeeded at trial on the basis of his own forgery. This is not a case in which the landlord was relying on a false document. The landlord’s case has always been that the document was not his document. His case has always been that he did not sign the amended agreement on 3 November 2004 in the circumstances described by the tenant. I have already referred to paragraph 5 of the reply in the first proceedings in which it is noted that the Landlord takes the position first, that the signature of the witness to the agreement is a forgery, and secondly, that the signature of the claimant, if indeed his signature, has either obtained by deception or from one of the other earlier draft agreements. So establishing that this signature is the Landlord’s signature does not, of itself, lead to the conclusion that he has been party to a fraud.

For those reasons as it seems to me this cannot be said to be a case which satisfies the first of the sub-paragraphs in CPR 52.17. It is not necessary to reopen the application for permission to appeal in order to avoid real injustice. These parties have had a trial at which the question of signatures was plainly in issue. The parties adduced before the trial judge the evidence which they wanted to rely on. The judge made his findings on the basis of that evidence. The judge refused an adjournment to obtain expert evidence in the circumstances and for the reasons which he gave which, as it seems to me, are reasons which the Court of Appeal would have been slow to go behind. The Court of Appeal would have been particularly slow to go behind those reasons in the circumstances that no evidence was put before Jacob LJ on 14 February 2007 as to what an expert report would actually show. It cannot be said that it is necessary to reopen the order of 14 February 2007 in order to avoid real injustice. The opportunity to avoid the injustice which the tenant asserts has taken place was available to him on 14 February 2007 and he did not choose to take it. I am not persuaded that condition (a) is satisfied.

Nor am I persuaded that the condition (b) in CPR 52.17 (1) are satisfied. The circumstances are not exceptional in this case. The circumstances in this case are that there was a dispute about signatures. Both parties knew that. They called the evidence which they thought would serve their purpose at the trial of that issue. It is – sadly – by no means unusual that, having lost on an issue, a party then seeks to bring further evidence in order to re-run the trial which he could have had; had he acted with diligence and brought the evidence on which he seeks to rely at the proper time.

In those circumstances I would take the view that this is not a case which satisfies the requirements of CPR 52.17. It is not necessary to determine the question whether the jurisdiction identified by this court in Taylor v Lawrence is exercisable in a case where fraud is alleged. The fraud alleged against Mr Bassi was that of denying that he signed the agreement on 3 November 2004; and that he signed the receipts. If it were necessary to try that issue, it would be necessary to decide whether he was dishonest when he gave evidence that the signatures were not his. If that was a matter which had to be tried, it seems to me that it would be much more aptly tried in a fresh action to set aside the order of 21 December 2006 as having been obtained by fraud.

The issue which Jacob LJ identified for consideration by the full court at this hearing arises from doubt as to whether the Taylor v Lawrence jurisdiction was ever intended to be available in a case where there was an alternative remedy: in the sense that the order complained of could be challenged by a fresh action to set aside an order obtained by fraud (see the observations of Lord Buckmaster in Jonesco v Beard [1930} AC 298 at 300). For my part, it seems to me that issue is probably put to rest, in this court at least, by the decision in Couwenbergh v Valkova [2004] EWCA Civ 676. It would be, I think, wrong to fetter the jurisdiction identified in Taylor v Lawrence by ruling that there were no circumstances in which it could be invoked in a case where it was said that the order complained of had been obtained by fraud. But in every case it becomes necessary to ask whether the circumstances are such that the more sensible way forward is an appeal which would be likely to lead to a retrial or whether it is better simply to allow the allegations of fraud to be properly pleaded and to form the subject matter of a separate action in which those issues are properly defined. For my part, I would have thought that this was the sort of case in which a separate action was the more appropriate remedy, but in the circumstances that is not an issue which, as it seems to me, we need to decide.

I would refuse to reopen the order of 14 February 2007.

My Lord, Lord Justice Chadwick, does cover the ground in great detail. I find myself in complete agreement with his analysis both as to the facts and as to the law. There is nothing that I can usefully add, save to say like him that I would refuse this application.

I also agree.