Nigel Mather & Anor v Balvinder Singh Rattan

This appeal raises questions of limitation, reliance and causation in the context of a claim for deceit.

The background to the case was set out extensively by HHJ Hodge KC in his reserved judgment: [2025] EWHC 438 (Ch). For the purposes of this appeal the facts as found by the judge can be more shortly stated.

Between December 2012 and November 2014, the claimants (“the Mathers”) invested a total of £1 million to acquire shares in a biotech company, Yagna Limited (“Yagna” or “the Company”). The defendant, Mr Rattan, was a director and the majority shareholder of Yagna. Yagna went into administration some years later on 26 April 2016, with the result that the Mathers’s shares were rendered worthless and they lost their investment.

The Mathers brought a claim for fraudulent misrepresentation against Mr Rattan on 20 August 2021.

In his judgment after a four day trial, the judge found as a fact that the Mathers made their investment in reliance on statements made to them by Mr Rattan in an email dated 5 December 2012. The email contained Mr Rattan’s responses to various questions posed by the Mathers’ legal advisers in relation to a draft shareholders’ agreement intended to govern the relations between investors in Yagna and the Company. The draft agreement had been prepared earlier in November 2012 and contained a provision that Mr Lak Basran MBE (“Mr Basran”), who was known to the Mathers and to Mr Rattan, would be appointed as a director of Yagna on 1 December 2012.

The relevant questions, as sent to the Mathers by their lawyers and forwarded by them to Mr Rattan, together with Mr Rattan’s answers in bold text, were as follows,

“4.

Reserved matters - can there be a list of reserved matters which the company cannot do without your consent? For example, issuing more shares (which would water down your shareholding), changing the nature of the business, selling any assets, licensing any intellectual property, taking any loan, making any loan, making capital expenditure above a certain financial limit etc. These last few examples ensure that value is not taken out of the business.

The matters referred to are normally the responsibility of the directors and to restrict the running of the business can be disruptive in that they have to ask for permission.

For this reason I have allowed Lak Basran MBE to become a company director as the shareholders he has introduced as investors are close associates of his.

However any material change in policy would be informed to the shareholders and they will be consulted where appropriate …

…

6.

Right to appoint a director - can you have the right to appoint a director to the board. This gives you a say in the day to day running of the company.

The same question was raised by Lak Basran MBE and I allowed him to become a company director as mentioned in point 4 reply. Also he has the depth of experience in the food industry to cover the bio degradable sector which is by far the most valuable technology that Yagna owns.”

The judge found that these representations were intended by Mr Rattan to induce the Mathers to invest in Yagna. He further found that they were untrue and were known by Mr Rattan to be untrue, because at the time he sent the email, Mr Rattan knew that he had not appointed Mr. Basran to be a director of Yagna. In fact, Mr Basran was not appointed as a director of Yagna until almost three years’ later on 12 September 2015, when he replaced Mr Rattan on the board.

The judge also rejected Mr Rattan’s arguments on reliance and causation. In essence, Mr Rattan contended that even though Mr. Basran had not been legally appointed as a director (de jure) by 5 December 2012, he had acted as a director in fact (de facto) at all material times, and he was regarded as a director by the Mathers. Mr Rattan argued that this meant that it would have made no difference to the Mathers’ decision to invest if they had been told that Mr Basran had not been appointed as a de jure director on 5 December 2012; and that this made no difference to the reasons for the failure of the Company which caused the Mathers’ loss.

The Judge dealt shortly with these arguments in [117]-[119] as follows,

“117.

I find that both Mr and Mrs Mather did rely upon this false representation when they invested £1 million in Yagna, in three separate tranches. I accept Mr Mather's evidence (at the end of paragraph 25 of his third witness statement) that:

“Had it not been for Mr Rattan’s assurance that Mr Basran, who I trusted and had confidence in, had been appointed as a director to protect my investment, I would not have felt comfortable investing in Yagna. Indeed, my wife and I would not have handed over our money had Mr Rattan not represented that Mr Basran had been made a director of the company.”

The judge held that this was reinforced by answers given by Mr Mather at the end of his oral evidence, which the judge summarised at [63] as follows,

“63.

At the conclusion of Mr Mather’s evidence, I referred him to the last two sentences of paragraph 25 of his third witness statement; and I asked him how important it had been that Mr Basran should have been a director of Yagna. My note of his evidence reads:

“We knew him as a personal friend. We trusted him – that he would have control of the company’s money and would be able to look after our investment.”

I pointed out that Mr Basran would only have been one of a number of Yagna's directors. Mr Mather replied:

“He would still be on the board. He would have an influence and a say in the company. How it would move forward.”

I then asked Mr Mather what he would have done had he not been told that Mr Basran was to be one of Yagna's directors. Mr Mather’s response was:

“We would probably not have invested.”

There were no questions from either Mr Rattan or Mr Vickers directly arising out of my questions.”

The judge then continued,

“118.

In my judgment, Mr Rattan can derive no comfort from the facts that Mr Basran may have acted as though he were a director of Yagna, or that it may have made no difference to the loss of Mr and Mrs Mather’s investment had Mr Basran been appointed as a director of Yagna. Having represented to Mr and Mrs Mather that he had allowed Mr Basran to become a director of Yagna, the onus lay on Mr Rattan to correct that misstatement by pointing out that Mr Basran was merely acting a de facto or shadow director. There was no duty on any of the claimants to check the true position by making a search against the entries for Yagna at Companies House. The claimants were entitled to take Mr Rattan at his word. There was nothing to put any of the claimants on inquiry. Since it was the making of this false representation that in fact influenced Mr and Mrs Mather to invest in Yagna, it is not open to Mr Rattan to argue that they would have suffered the same loss of their investment had the misrepresentation been true.

119.

I find that the loss suffered by Mr and Mrs Mather as a direct result of their reliance upon Mr Rattan's misrepresentation is the total amount (£1 million) that they invested in Yagna. Ultimately, they retained no shares in Yagna; (Footnote: ¹) and, in any event, that company has proved to be worthless.”

The Judge also rejected Mr Rattan’s limitation defence pursuant to section 32 of the Limitation Act 1980 (“section 32”). He held that the Mathers had trusted and had no reason to doubt what they had been told by Mr Rattan, or to take any steps to investigate the true position as to the appointment of Mr Basran, until September 2015, which was less than six years prior to the commencement of the claim. The Judge explained his reasoning at [120],

“120.

I am satisfied that Mr Rattan cannot raise any valid limitation defence to this claim for damages for fraudulent misrepresentation. Mr Mather’s second witness statement, and paragraphs 54 (and following) of Mr Mather’s third witness statement, afford a complete answer to any plea that this claim is statute-barred. On the facts, there was nothing to put any of the claimants on inquiry as to the true position concerning their investments in Yagna until September 2015, less than six years before this claim was commenced. I find that the claimants could not, with reasonable diligence, have discovered that the representations made to them had been made fraudulently until less than six years before the commencement of this action. I accept as compelling Mr Vickers’s submissions on this aspect of the case, as set out at paragraph 74 of this judgment. Of course, any of the claimants could have discovered that Mr Basran had not in fact been appointed a director of Yagna simply by making a search against that company’s records at Companies House. But they had no reason to do so. They relied entirely on what they had been told by Mr Rattan (and Mr Basran). They had no reason to doubt their veracity, or to investigate the truth of what they had been told. The law is clear that it is no answer to a claim for fraudulent misrepresentation that the claimant might have discovered its falsity by the exercise of ordinary care: it does not lie in the mouth of a liar to argue that the claimant was foolish to take him at his word.”

The judge’s reference in [120] to Mr Mathers’ second witness statement was to a passage that included the following evidence,

“… the first indication I had regarding the investment not transpiring as I was informed it would was the call from [Mr Basran] on 14 September 2015 in which indicated that the money had ‘gone’. Not much further detail was given on this call but I was reassured by [Mr Basran] that all my monies would be recovered and so I had faith that [Mr Basran] would ensure my investment was still safe.”

The relevant parts of Mr Mather’s third witness statement included a statement that after the Mathers had made the final tranche of their investment in November 2014,

“53.

… there were no material events that occurred and no further investors meetings with Mr Basran or Mr Rattan took place following our final investment into the Company. This was in itself not concerning, as I expected the investment to take some time to start to show returns.

54.

Around September 2015, we started to have serious misgivings concerning our investments in the Company. Samuel Mikail, the investor who had put £2,000,000 into the Company, was the first person to smell a rat. Like us, Mr Mikail had been provided with a share certificate by Mr Rattan following his investment, and he had passed this on to his financial advisers. Apparently, they questioned the validity of the share certificate and started to look into the situation. It seems it did not take them long to work out that the whole thing was not as it seemed. As a result of this discovery, Mr Mikail started to become more involved in the management of the Company.

55.

On 14 September 2015, I received a call from Mr Basran in which he stated that Mr Rattan had “been a naughty boy” and all our investment funds had been taken by him.”

The judge’s reference in [120] to Mr Vickers’ submissions included the following propositions, based upon the evidence which I have set out,

“(6)

The claimants understood that, in the ordinary way, their investments would take some time to come to fruition, given the nature of the investments they thought they were making. Therefore, they were not immediately concerned that their investments did not result in returns right away: they understood that they had invested in a growing company and that was why their investments would increase in value as Yagna became more established and its several projects and products came to market and made a profit. It would only be in the fullness of time that they expected to see a return on their investments.

(7)

In fact, the claimants had no concerns about the security of their money, which was invested in a company in which (so they were told) their longstanding and trusted friend had been installed as a director. They had no reason to doubt the truth of the representations that Mr Basran and Mr Rattan had made about the excellent potential of Yagna’s products, nor any reason whatsoever to feel any concern about their investments until the call from Mr Basran to Mr Mather, on 14 September 2015 (less than six years before this action was commenced), in which he indicated that their money had “gone”.”

Having found that the claim in fraudulent misrepresentation was made out and was not barred by limitation, the judge awarded the Mathers £1 million in damages, representing the full value of their investment, together with interest and costs.

Mr Rattan was granted permission to appeal by Arnold LJ on three grounds.

The first is that the judge wrongly placed the burden of raising a limitation defence on Mr Rattan, when the burden of satisfying the test in section 32 was on the Mathers. Mr Rattan contends that if he had asked himself the right question, the judge would have appreciated that the Mathers had not discharged that burden because their evidence only dealt with when they first had concerns about the safety of their investment. Mr Rattan contends that because the misrepresentation concerned the status of Mr Basran, the relevant question for the judge was whether the Mathers could not, with reasonable diligence, have discovered that Mr Basran was not a director of Yagna. He contends that the judge correctly identified that they could have done so simply by making a search at the Companies Registry, but wrongly failed to appreciate that their evidence did not address why they had not done that.

Secondly, Mr Rattan contends that the judge was wrong to find that the Mathers relied upon the misrepresentation that Mr Basran was a director of Yagna. This argument is based on an assertion that it was accepted by both sides at the trial that Mr Basran was a de facto director of the company at the time of the investment. It is said that the judge should have found that because the intention of the Mathers was that Mr Basran would protect their investment, they would have regarded his status as a de facto director as giving him sufficient influence over the Company’s affairs, with the consequence that the misrepresentation as to his status as a de jure director was immaterial to their decision to invest.

Thirdly, Mr Rattan contends that when assessing damages, the judge failed to address the issue of whether the misrepresentation caused the Mathers’ loss. It is said that the judge wrongly stopped his inquiry at the reliance stage and should have gone on to ask what would have happened if the 5 December 2012 email had been sent in different terms which did not misrepresent that Mr Basran was a de jure director. It is suggested that in such a counterfactual, the Mathers would still have invested, and so the cause of their loss was not the misrepresentation, but the failure of the Company’s business.

For the reasons that follow, I would dismiss the appeal on all three grounds.

Section 32 provides, in material part,

“(1)

… where in the case of any action for which a period of limitation is prescribed by this Act … -

(a)

the action is based upon the fraud of the defendant; …

the period of limitation shall not begin to run until the plaintiff has discovered the fraud … or could with reasonable diligence have discovered it.”

The classic explanation of the test and of the burden of proof under section 32 was given by Millett LJ in Paragon Finance plc v DB Thakerar [1999] 1 All ER 400 at 418,

“The question is not whether the plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take….”

The correct approach was further explained by Males LJ in OT Computers Ltd v Infineon Technologies [2021] QB 1183. At [34], Males LJ referred to the statement of Henderson LJ in Gresport Finance v Battaglia [2018] EWCA Civ 450 at [49], that “the concept of reasonable diligence only makes sense if there is something to put the claimant on notice of the need to investigate whether there has been a fraud…” Males LJ then continued, at [47]-[48],

“47.

… although the question what reasonable diligence requires may have to be asked at two distinct stages, (1) whether there is anything to put the claimant on notice of a need to investigate and (2) what a reasonably diligent investigation would then reveal, there is a single statutory issue, which is whether the claimant could with reasonable diligence have discovered (in this case) the concealment. Although some of the cases have spoken in terms of reasonable diligence only being required once the claimant is on notice that there is something to investigate (the “trigger”), it is more accurate to say that the requirement of reasonable diligence applies throughout. At the first stage the claimant must be reasonably attentive so that he becomes aware (or is treated as becoming aware) of the things which a reasonably attentive person in his position would learn. At the second stage, he is taken to know those things which a reasonably diligent investigation would then reveal. Both questions are questions of fact and will depend on the evidence. To that extent, an element of uncertainty is inherent in the section.

48.

… while the use of the words “could with reasonable diligence” make clear that the question is objective, in the sense that the section is concerned with what the claimant could have learned and not merely with what he did in fact learn, the question remains what the claimant (or in the terminology of the section, “the plaintiff”) could have learned if he had exercised such reasonable diligence. That must refer to the actual claimant … and not to some hypothetical claimant.”

The first aspect of Mr Rattan’s criticism of the judge’s decision as regards the burden of proof relates to the first sentence of [120], in which the judge stated that,

“I am satisfied that Mr Rattan cannot raise any valid limitation defence to this claim for damages for fraudulent misrepresentation.”

(my emphasis)

It is said that this is plainly wrong, because Mr Rattan had raised a primary limitation defence under section 2 of the 1980 Act, namely that the claim was brought more than 6 years after the Mathers made their investment. It is said that the judge failed to appreciate that this placed the burden on the Mathers to show that the primary limitation defence did not apply because section 32 applied to prevent time from running.

I accept that the first sentence of [120] of the judgment would have been better expressed if it had not referred to Mr Rattan raising a limitation defence. However, taking the paragraph as a whole, I do not think that the judge misunderstood or misapplied the test under section 32. In the very next sentence of [120], the judge held that the various parts of Mr Mather’s evidence to which he referred “afford a complete answer to any plea that this claim is statute-barred”. That made it clear that the judge had well in mind that the Mathers had the burden of providing an answer to Mr Rattan’s plea of the expiry of a primary limitation period under section 2 of the 1980 Act.

I also do not accept Mr Rattan’s arguments on the second limb of this Ground of appeal – namely that the Mathers’ evidence wrongly focussed on when they first became concerned about the continuing safety of their investment, rather than the issue of whether they could not, with reasonable diligence, have made a search at Companies House which would have revealed that Mr Basran was not a director.

In my view, the judge applied the approach in Gresport Finance and OT Computers correctly when he concluded that the Mathers had no reason to carry out such a search at the Companies Registry because there was nothing to put them on inquiry until they became concerned about their investment. Although the judge did not say so in terms, I consider that this is because the evidence was clear that the appointment of Mr Basran as a director was offered by Mr Rattan, and was regarded by the Mathers, as a means of protecting their investment, and not as an end in itself.

That was clear from Mr Rattan’s answers in the email of 5 December 2012. He resisted the inclusion of a clause requiring the permission of the Mathers for certain “reserved matters”, stating that it would cause disruption to the running of the business and “for this reason” he had allowed Mr Basran to become a director. Mr Rattan’s comment that Mr Basran was a “close associate” of the investors carried the clear implication that Mr Basran would be able to protect their interests as shareholders. That was also apparent from the judge’s acceptance of the written and oral evidence of Mr Mathers to the effect that Mr Basran was a personal friend who “would be able to look after our investment”: see paragraph 10 above.

In short, the judge was in my view right to approach the question of whether the Mathers could with reasonable diligence have inquired into the formal status of Mr Basran as being part and parcel of the question of whether they had any reason to make such an inquiry because they were concerned about the performance or security of their investment.

Mr Rattan contends that the judge was wrong to find that the Mathers relied upon his representation that Mr Basran had been appointed a director. It is contended that Mr Mather’s evidence was that they were looking for Mr. Basran to have “an influence and a say in the company”, and that the judge should have found that this was satisfied by their knowledge that that he was a de facto director. I do not accept that argument for two reasons.

The first reason is that it takes Mr Mather’s evidence out of context. As set out in [63] of the judgment (see paragraph 10 above), Mr Mather’s statement about “an influence and a say” was made in the context of Mr. Basran being on the board – i.e. a de jure director. Mr Mather said,

“He would still be on the board. He would have an influence and a say in the company. How it would move forward.”

(my emphasis)

The evidence of Mr Mather thus gave no support to the proposition that the Mathers would have been satisfied with any less than a formal appointment of Mr Basran to the board. It is also self-evident that a de jure director has greater powers to call for information about his company, and greater rights to be involved in the management of a company than a de facto director, who is simply permitted by the de jure directors to act as if he were a director.

The second reason is that Mr Rattan’s argument is based upon a factual assumption that Mr Basran was acting as a de facto director at the time that the Mathers made their investment. But that was not common ground between the parties on the pleadings or at trial, and was not the subject of any factual finding by the judge.

Mr Rattan’s defence pleaded, in response to the allegations about the email of 5 December 2012, that,

“There was an agreement in place that [Mr Basran] would be appointed as a director and in any event [Mr Basran] was acting as though he was already a director and he was carrying on the business as such. Emails show [Mr Basran] was claiming to be the chairman of Yagna (and also Biosafe).”

That allegation was not admitted by the Mathers.

Although, as recorded in [107(2)] of the judgment, Mr Rattan did raise in his closing argument that Mr Basran had acted as a de facto director of Yagna, the judge did not record at [109] that Mr Vickers accepted that proposition in his reply.

The only evidence given at trial that might have supported the proposition that Mr Basran was already acting as a director by 5 December 2012 was contained in a witness statement of one of the other claimants in the case, Mr Charles Ledigo. His claim was dismissed by the judge on the basis that he had invested before Mr Rattan sent his email of 5 December 2012. Mr Ledigo’s witness statement did contain an assertion in very general terms that Mr Basran “always assured me that he was a director of Yagna and would look after our investments”. But we were not taken to any part of the transcript in which that statement was put to Mr Mather, or explored in cross-examination, and the judge made no findings about it.

Moreover, the only email to which we were referred which showed Mr. Basran describing himself as the “Chairman” of Yagna was dated 29 January 2014. That was some time after the Mathers had paid over the first two tranches of their investment totalling £750,000, but was ten months before the Mathers made their final investment of £250,000. Again, however, the possible implications of that were not explored in cross-examination of Mr Mather at the trial, and the judge made no findings about it.

As such, I do not consider that there is any basis upon which this Court should interfere with the judge’s clear finding of fact that the Mathers relied upon the representations as to the appointment of Mr Basran as a director contained in Mr Rattan’s email of 5 December 2012, and that this was so in respect of all of their investment of £1 million. As has been said many times, the Court of Appeal will guard against the dangers of “island-hopping” through selected pieces of evidence on appeal, and will not interfere with a trial judge’s findings of primary fact unless satisfied that they were plainly wrong: see e.g. Volpi v Volpi [2022] 4 WLR 48 at [2]-[5]. This is not such a case.

The third ground of appeal is that even if the Mathers did rely upon the misrepresentation in the email of 5 December 2012 when making their investment in Yagna, the judge failed to go on to consider whether this was actually the cause of their loss. It is said that to determine whether the misrepresentation caused the Mathers’ loss, the judge should have asked what would have happened if the 5 December 2012 email had been sent in different terms that did not misrepresent that Mr Basran was a de jure director. It is suggested that in such a case, the likelihood is that the Mathers would still have invested, and so the cause of their loss was not the misrepresentation, but the failure of the Company’s business.

I do not accept these arguments. In simple terms, the law of causation in relation to the tort of deceit is that a claimant who relies upon a fraudulent misrepresentation is entitled to recover as damages a sum representing the financial loss flowing directly from changing his position under such inducement: see Smith New Court Securities v Citibank [1997] AC 254 at 284 per Lord Steyn. This does not require the court to speculate about what the claimant might have done if the representation that was made to him was true, but it is in theory possible for a defendant to seek to show that if the misrepresentation had not been made, the claimant would have entered into an alternative transaction and lost his money in any event: see MDW Holdings v Norvill [2023] 4 WLR 33 at [75].

However, I consider that this is an impossible argument on the facts as found by the judge. As indicated above, the judge accepted the evidence of Mr Mather that the Mathers would not have invested in Yagna had Mr Rattan not represented that Mr Basran had been made a director of the company. As the judge said at [63] (see paragraph 10 above), Mr Rattan did not seek to investigate that evidence further at trial and he did not invite the judge to make any factual findings as to whether the Mathers would still have invested, or invested on different terms, had Mr Rattan made some other representation concerning Mr Basran. Nor, contrary to Mr Rattan’s submissions, would it have been appropriate for the judge to descend into the fray and pursue an inquisitorial approach in relation to such matters on Mr Rattan’s behalf: see the discussion of the proper role of a judge in relation to asking questions on behalf of unrepresented litigants under CPR 3.1A in Rea v Rea [2022] EWCA Civ 195 at [75]-[83].

In short, in awarding damages, I consider that the judge correctly applied the law as set out by Lord Browne-Wilkinson in Smith New Court at 266-267. Lord Browne-Wilkinson explained that in a case in which a claimant has been induced to buy property by a fraudulent misrepresentation,

“(1)

the defendant is bound to make reparation for all the damage directly flowing from the transaction; (2) although such damage need not have been foreseeable, it must have been directly caused by the transaction; (3) in assessing such damage, the plaintiff is entitled to recover by way of damages the full price paid by him, but he must give credit for any benefits which he has received as a result of the transaction; (4) as a general rule, the benefits received by him include the market value of the property acquired as at the date of acquisition; but such general rule is not to be inflexibly applied where to do so would prevent him obtaining full compensation for the wrong suffered; (5) although the circumstances in which the general rule should not apply cannot be comprehensively stated, it will normally not apply where either (a) the misrepresentation has continued to operate after the date of the acquisition of the asset so as to induce the plaintiff to retain the asset or (b) the circumstances of the case are such that the plaintiff is, by reason of the fraud, locked into the property. (6) In addition, the plaintiff is entitled to recover consequential losses caused by the transaction; (7) the plaintiff must take all reasonable steps to mitigate his loss once he has discovered the fraud.”

In the instant case, as the judge held, there was no evidence or finding by the judge that shares in Yagna had any immediately realisable value at the date that the Mathers made their investment, or at any stage thereafter. Instead, picking up Lord Browne-Wilkinson’s point (5) in Smith New Court, it is clear both that Mr Rattan’s misrepresentation continued to operate, and that the Mathers were effectively locked into their investment in the Company until they were put on alert in mid-September 2015, by which time it was clear that their shares had no value.

For these reasons, I would dismiss the appeal on all grounds.

I agree.

I also agree.