Kuppusamy v Mathankanna & Anor

This is an appeal against a decision of the Deputy Adjudicator to HM Land Registry (namely, Ms Ann McAllister) dated 11 November 2011 (“the Decision”). I gave the Appellant permission to appeal by my order dated 21 November 2012, Ms McAllister having refused it by her order dated 11 January 2012.

The Appellant, Mr Nithiananthan Kuppusamy (“Mr Kuppusamy”) and the First Respondent, Mr Thillaiampalam Mathankanna (“Mr Mathankanna”), are the former joint registered proprietors of Ladybrook Service Station, Ladybrook Lane, Mansfield, Nottinghamshire (“the Property”). The Property is a petrol station. Mr Kuppusamy and Mr Mathankanna were business partners.

The Second Respondent, Barclays Bank PLC (“Barclays”) hold a charge over the Property. However, its only interest being to preserve its security whatever the decision, Barclays played no part in the proceedings: and see paragraph 14 below.

The essence of the dispute is set out with admirable economy and clarity in paragraphs 1 to 7 of the Decision. The description below is derived from those paragraphs.

By a transfer dated 21 December 2006 (“the Transfer”) the Property was transferred from the joint names of Mr Mathankanna and Mr Kuppusamy into Mr Kuppusamy’s sole name. The Transfer appears to be for nil consideration.

Pursuant to the Transfer, on 15 January 2007, Mr Kuppusamy was registered as sole proprietor, and Barclays as chargees. Barclays had advanced £325,000 to Mr Kuppusamy secured over the Property. Mr Kuppusamy used that advance to redeem an earlier charge held by the Bank of Scotland, to which Mr Mathankanna was also a party.

Mr Mathankanna’s case is that his signature on the Transfer is a forgery. That is the issue in these proceedings.

By an application dated 8 March 2010 Mr Mathankanna applied to rectify the register by being reinstated as joint proprietor and by removing Barclays’ charge, pursuant to paragraph 2(1)(a) of Schedule 4 to the Land Registration Act 2002. This provision confers jurisdiction on the court to alter the register to correct a mistake.

Where the alteration affects the title of the proprietor of the registered estate no order will be made in relation to land in his possession (as defined by section 131) unless he has by fraud or lack of proper care caused or substantially contributed to the mistake. In the event that Mr Mathankanna can show that his signature on the Transfer was forged, it is accepted (or at least not contended otherwise) that the alteration of the register should be made.

The direct evidence as to the authenticity of that signature is weak. The person said to have witnessed the signature cannot remember having done so. Thus the determination of that factual issue requires and depends upon consideration of the context.

Mr Kuppusamy’s case, in essence, is that Mr Mathankanna signed the Transfer in the presence of a witness (Mr Iruthayathasan) and his father, Vijay Kuppusamy (“Vijay”). Mr Mathankanna, it is said, signed the Transfer because he owed Mr Kuppusamy £43,000. The effect of the Transfer was also, of course, to relieve him of any ongoing liability to the Bank of Scotland.

It is said that the sum of £43,000 was paid by (or on behalf of) Mr Kuppusamy to a Nihal Pancious (“Mr Pancious”) who had contributed that amount to the purchase of the Property on Mr Mathankanna’s behalf. Mr Mathankanna did not have the entirety of the amount he was to pay towards the purchase of the Property and the business (£60,000) so he borrowed this money from Mr Pancious. To avoid any claim by Mr Pancious that he had a beneficial interest in the Property, Vijay Kuppusamy repaid the money.

The allegation that Mr Pancious paid £43,000 and that this sum was repaid to him by Mr Kuppusamy or members of his family is central to Mr Kuppusamy’s case.

As mentioned previously, Barclays’ position is that they will be bound by the outcome of the reference. If the signature was genuine, then the charge is valid, and the claim for rectification falls away. If the signature was a forgery then, in any event, they are entitled to be subrogated to the rights of the Bank of Scotland (and to be registered as proprietors of the Bank of Scotland charge), and to enter a restriction on the register to protect their equitable charge over Mr Kuppusamy’s beneficial interest in the Property. They have protected their position by making an application for two restrictions.

The Deputy Adjudicator found in favour of Mr Mathankanna. She accepted his evidence that he did not execute the Transfer. She rejected the evidence and version of events given by Mr Kuppusamy and his father, Vijay. She concluded that the Transfer was thus a forgery. She directed that Mr Mathankanna’s application to be restored to the register be given effect. She subsequently made further orders to protect the position of Barclays.

In refusing permission to appeal from the Decision the Deputy Adjudicator emphasised that the case turned essentially on an assessment of (incomplete) documentary evidence and her assessment as to the credibility of the various witnesses. No misdirection being alleged, an appeal court, which would not have her advantage of seeing the witnesses, should only intervene if she had exceeded the “generous ambit within which disagreement is possible” (see G v G (minors: Custody Appeal) [1985] 1 WLR 647 at 652). She concluded that the test set out in CPR 52.3(6) was not met.

Naturally, these considerations made me hesitate considerably before myself giving permission to appeal. In eventually deciding to do so I was influenced by four considerations in particular.

The first arose out of the circumstances in which a file kept by the solicitor, a Dr Vera Pailram Ailoo (“Dr Vera”), who acted for Mr Kuppusamy in the context of the questioned transaction, was produced.

It is apparent from paragraphs 34 to 37 and 47 of the Decision that the Deputy Adjudicator was persuaded that Vijay, who produced the file in the course of his cross-examination, had lied about its whereabouts, had falsely denied that he had ever had it, and was only constrained to produce it when Dr Vera revealed that he had sent it to Vijay for safe-keeping. She regarded the evidence in this regard as unequivocal; and she made clear, in paragraph 47 of the Decision, that what she concluded was Vijay’s lack of truthfulness in this regard “seriously undermined” Vijay’s credibility.

I considered that the evidence in this regard was far from unequivocal; and that Vijay may have laboured under a misunderstanding that was mistaken for evasiveness and disingenuousness.

The second point arose out of the curiosity that although the alleged fraud to be accomplished by the forged letter required secrecy for its efficacy, it was not disputed that the letter had not only been prepared by Dr Vera at Mr Kuppusamy’s request, but also that Mr Kuppusamy had instructed Dr Vera to send it to Mr Mathankanna.

Although (so it was held) Mr Mathankanna had not received the letter (which the Deputy Adjudicator relied on as supporting the plea that it was a forgery), the point raised on behalf of Mr Kuppusamy was not whether the letter had been received, but whether it was or was intended to be sent. Mr Kuppusamy’s point was that the unchallenged evidence of Dr Vera was that he was instructed to, and did, draft and send the letter; and that if the letter was or was intended to be sent, that would negate secrecy and thereby fraud.

But the Deputy Adjudicator focused in the Decision only on the question of whether the letter had been received, and did not consider this further point at all. It seemed to me that this also merited giving permission to appeal.

The third point which I considered to merit further consideration was that there seemed to be some documentary evidence that payments had been made to Mr Pancious in amounts at least consistent with Mr Kuppusamy’s case that Mr Mathankanna had agreed to the Transfer in recognition of the benefit to him of Mr Pancious having been repaid monies which otherwise Mr Mathankanna would have continued to owe to him in connection with the original acquisition of the Property.

The Decision did not explain the Deputy Adjudicator’s approach to this evidence, despite her recognition of the importance to Mr Kuppusamy’s case of showing that Mr Pancious had contributed to the purchase of the Property and that Mr Kuppusamy or members of his family had repaid him some £43,000 by February 2005.

The fourth point was that I considered that the issue as to the evidence of attestation merited further exploration, it being unclear to me whether the Deputy Adjudicator was correct in treating Mr Iruthayathasan’s evidence that he could not recall witnessing any document as such as to justify the conclusion that there was no evidence of attestation despite his (admitted) signature as a witness on the Transfer.

I discuss these points, and others relied upon by the Appellant (and especially as to (a) attestation and (b) whether there was evidence of consideration for the Transfer), in greater detail below; but before that I need to elaborate a little on some of the issues on which the case turned so as to set these points in context.

The factual issues on which the case turned can, I think, be summarised as follows:

As to (1) and the issue whether Mr Mathankanna borrowed money from Mr Pancious, the Deputy Adjudicator, in the absence of both (a) any documentary support for the alleged borrowing and (b) any evidence from Mr Pancious himself, appears to have accepted Mr Mathankanna’s evidence that he did not borrow money from Mr Pancious.

As to (2) and the issue as to whether Mr Kuppusamy or Vijay made payments to Mr Pancious by way of repayment of the alleged loan to Mr Mathankanna, the Deputy Adjudicator (unsurprisingly in light of her conclusion that Mr Mathankanna had not borrowed the money in the first place) concluded in the absence of both (a) direct documentary evidence and (b) Mr Pancious himself that no such repayment had been established. She described the oral evidence of Vijay on the point as “vague, hesitant and uncertain”. She considered the evidence relied on by Mr Kuppusamy of payments to Mr Pancious aggregating to some £22,000 from the partnership account; but she concluded that these did not take the matter very much further since (she considered) they were likely to relate to remuneration of Mr Pancious for his (admitted) work in running the garage.

The Deputy Adjudicator took into account in this context that in the course of the evidence Mr Mathankanna was caught out in a lie as regards another transaction relating to property called Saxon Wood Close. Mr Mathankanna was adamant that he had never been lent any money by Vijay, “never mind the amount of £24,678.13 in July 2004”. This was demonstrated to be untrue: Mr Farooq (who was acting for Mr Kuppusamy at the time) produced ledger entries and a completion statement in support of his oral evidence that Vijay had indeed paid that sum into Mr Mathankanna’s property account. Nevertheless the Deputy Adjudicator, whilst accepting entirely (see paragraph 46 of the Decision) that “in some respects Mr Mathankanna’s evidence was not wholly truthful (in particular, in relation to the purchase of Saxon Wood Close)”, concluded that there was no sufficient evidence that £43,000 was ever paid to Mr Pancious by Vijay or any other member of his family.

In the round as to both issue (1) and (2), the Deputy Adjudicator concluded (see paragraph 46 of the Decision) that

“crucially, there is no satisfactory evidence to make good the central plank of the [Appellant’s] case, namely that Mr Pancious contributed to the purchase of the Property and that the [Appellant] (or members of his family) repaid Mr Pancious £43,000 by February 2005. Without this, it is difficult to see why Mr Mathankanna would have transferred his interest in the Property for nil consideration (even allowing for the fact, of course, that the effect of the Transfer was to relieve him of liability under the Bank of Scotland charge).”

That was indeed the lynch-pin of the case in the assessment of the Deputy Adjudicator’s view: it was this that led to the Deputy Adjudicator’s ultimate conclusion (in paragraph 53 of the Decision):

“I accept Mr Mathankanna’s evidence that he did not execute the Transfer. The central explanation given by the Respondent for the Transfer is not one I accept.”

In light of the centrality of the issue, it is notable that nowhere in the Decision is there any detailed analysis of the accounting evidence put forward by the Appellant.

To a considerable extent, as it seems to me, the other issues were subsidiary: they were marshalled in support, but they did not provide the basis for the Deputy Adjudicator’s decision.

The real relevance of issue (3) as adumbrated in paragraph [28] above, which focuses on Dr Vera’s evidence as to the letter, is whether that evidence negates fraud on the basis (to quote paragraph 71 of the Grounds of Appeal) that “Vijay intending that Mr Mathankanna should receive the letter is inconsistent with an intention to perform a secret and covert fraudulent transaction”.

Although the transcript of Counsel for the Appellant’s closing submissions (which were provided to me shortly before the hearing) indicate that the Deputy Adjudicator did appreciate the point when made (saying “Yes. I take your point. If your clients gave instructions to send it that presupposes that they were prepared or willing for Mr Mathankanna to receive it” [T/S day 4/page 5]), and the point is also briefly alluded to in paragraph 48 of the Decision, it appears that the Deputy Adjudicator ultimately regarded the real issue in this regard to be whether Mr Mathankanna had received the letter. She accepted his evidence that he had not. The Decision does not address further the real point made by the Appellant: and see further paragraph [88] below.

With regard to issue (4), it was not disputed that Mr Iruthayathasan had indeed signed the Transfer; the dispute was as to whether he had in fact witnessed Mr Mathankanna’s signature. Mr Iruthayathasan did not make a witness statement; but he did attend the hearing and was examined in chief on behalf of Mr Kuppusamy and then cross-examined on behalf of Mr Mathankanna.

The transcript confirms that Mr Iruthayathasan was not an easy witness for the Appellant (who had called him): it is obvious that he did not come up to proof, so that his examination in chief was in danger of veering into cross-examination. He was certain the signature on the Transfer was his own; but rather than confirming that he had indeed witnessed Mr Mathankanna’s signature, he admitted to having been drunk for much of the time in the period in question, and to not being able to recall having witnessed the signature of the Transfer, or even having ever been a witness at all. In those circumstances, the Deputy Adjudicator determined that there was nothing that qualified as evidence of attestation (see paragraph 50 of the Decision).

The dispute as to the role of Mr Iruthayathasan was also relevant on an issue as to Mr Mathankanna’s credibility. Mr Mathankanna, by way of further support for his case that the Transfer was not attested, claimed that he did not know Mr Iruthayathasan, and had never met him; whereas Mr Iruthayathasan said that they did know each other and had met once or twice when he (Mr Iruthayathasan) was living with a friend at 83A Brownshill Green Road, Coventry. Although Mr Mathankanna disclaimed any knowledge of the address, it emerged that in fact he had represented his brother at a hearing of an application for the supply of alcohol at the house.

It was contended for Mr Kuppusamy that Mr Mathankanna knew about the address and had sought to disguise that, and knew Mr Iruthayathasan better than he had let on. The Deputy Adjudicator rejected the suggestion, on the basis that Mr Iruthayathasan’s evidence pointed to having seen Mr Mathankanna no more than once or twice, adding (somewhat delphically perhaps) that the point was further “weakened by the fact that Mr Iruthayathasan knew Vijay as well”. The Deputy Adjudicator regarded all this as further evidence that the Transfer was not attested.

Turning to issue (5), the evidence of Mr Farooq to the effect that Mr Mathankanna had acknowledged in conversations his acceptance that he had surrendered his interest in the Property, had it been believed, was of obvious importance.

However, the Deputy Adjudicator did not believe Mr Farooq. She noted that he “was not able to produce any documentary evidence that Mr Mathankanna agreed to transfer his interest in the Property” and indicated that she “did not find Mr Farooq a wholly convincing witness” (which smacks of studied understatement). Mr Kuppusamy complains that the Decision does not sufficiently explain the conclusion the Deputy Adjudicator reached that though Mr Farooq had provided evidence to demonstrate a lie on the part of Mr Mathankanna in the context of the Saxon Wood Close matter, it was Mr Mathankanna whom she should believe as regards the evidence of their conversations about the Property, which entailed disbelieving Mr Farooq on the point. Again, I return to this later.

The last of the issues adumbrated in paragraph [28] above, Issue (6), relates to the expert handwriting evidence of Dr Giles. The Deputy Adjudicator states at paragraph 51 of the Decision that she also placed some weight on that evidence. She summarised Dr Giles’s conclusions as being that

“the signature is not genuine, albeit that she [Dr Giles] accepted that, given the absence of the original TR1 and the simplicity of the signature, the evidence supporting this conclusion is weak.”

One of the criticisms of the Decision put forward by the Appellant is that any weight was attached to this evidence at all. I will come back to that in the context of discussing in more detail the Appellant’s Grounds of Appeal, to which I now turn.

The Appellant’s Grounds of Appeal are contained in an Appellant’s Notice which spans some 24 pages. The grounds are advanced under four headings:

The first three headings are self-explanatory. The last needs a brief explanation. It refers to the fact that the Deputy Adjudicator excluded Vijay from the Tribunal room during portions of the evidence: Mr Kuppusamy says that in circumstances where Vijay was in substance the person at interest this was a material procedural irregularity which had a substantive repercussion, as I shall later explain.

The gravamen of this first ground is that (so the Appellant submits) the Deputy Adjudicator failed properly to identify and take into account various instances in which it was clear that Mr Mathankanna had given untruthful evidence, and that this skewed her whole approach in determining whom to believe as between Mr Mathankanna on the one hand, and Mr Kuppusamy and his father on the other.

Mr Kuppusamy’s grounds of appeal focused on four areas in the context of which it was said that Mr Mathankanna had lied.

The first ‘lie’ was the evidence Mr Mathankanna gave in respect of the purchase of Saxon Wood Close, which was demonstrated to be false by documentary evidence provided by Mr Farooq. I have already mentioned this previously. The Deputy Adjudicator undoubtedly took this ‘lie’ into account (see paragraphs 23, 24 and 46 of the Decision). The Appellant contends, nevertheless, that the Deputy Adjudicator failed to “identify the significance of the fact that Mr Mathankanna, on her finding, had lied about financial dealings between himself and Vijay”.

The second was Mr Mathankanna’s apparently untruthful evidence as to the extent of his financial contribution to the original acquisition of the Property, his cash withdrawals for the business after its purchase, and his borrowings from Vijay. Thus:

The third area in which it is contended that Mr Mathankanna lied is as to the position of Mr Iruthayasathan. Before trial, Mr Mathankanna claimed never to have met Mr Iruthayasathan, and to have no acquaintance with his address at 83 Brownshill Green Road. As I have indicated above, Mr Iruthayasathan stated when cross-examined that he did know Mr Mathankanna and had met him at 83 Brownshill Green Road in Coventry. Mr Mathankanna himself insisted they had never met; but accepted that he knew the owners of the flat at 83 Brownshill Green Road, and had presented a licensing application for it on behalf of his brother. To quote the Grounds of Appeal he “accepted the association with the address that he had previously cloaked”.

The fourth area of allegedly dishonest evidence related to the issue of payments in respect of Mr Pancious. I have referred previously to the importance of the dispute relating to Mr Pancious. The Deputy Adjudicator described as crucial what she perceived to be the lack of any satisfactory evidence to support Mr Kuppusamy’s case that Mr Mathankanna agreed to the Transfer in the context of (and as consideration for) Mr Kuppusamy (or Vijay) having discharged the debt owed by Mr Mathankanna to Mr Pancious. The Deputy Adjudicator acknowledged that there was evidence of payments to Mr Pancious from the business account; but she accepted the case for Mr Mathankanna that these were payments for running the garage business.

It is contended on behalf of Mr Kuppusamy that (a) the Deputy Adjudicator failed to address the simple submission that it is unsurprising that Mr Kuppusamy should have no evidence of money flowing between Mr Pancious and Mr Mathankanna but (b) the Deputy Adjudicator overlooked important evidence that was available which appeared to demonstrate payments to Mr Pancious which (contrary to the Deputy Adjudicator’s apparent view) were not (or were unlikely to be) referable to payments for running the garage business.

As to (a), Counsel for Mr Mathankanna made the point, which I rather think may have weighed with the Deputy Adjudicator though she does not expressly say so, that one might expect some third party such as Mr Mandalia, the former accountant to the partnership, to know if Mr Mathankanna did owe £43,000 (which is not an inconsiderable sum) to Mr Pancious: but there was no such evidence, nor any documentary record either.

As to (b), however, Counsel for Mr Kuppusamy relied especially on a handwritten list of payments (“the Manuscript List”) made to Mr (Nihal) Pancious, not all of which (it was submitted) could be referable to salary or reward for running the garage business. Counsel placed particular reliance on a cheque payment of £7,000, and more generally put forward in paragraph 59 of the Grounds of Appeal that “Whilst the manuscript list is difficult to decipher, nonetheless it might be read in a way which reaches £43,000”. Counsel made the further point that there was other documentary evidence to support and vouch for entries in the Manuscript List: for example, the two largest entries, in the sums of £15,000 and £7,000, were cross-confirmed by a bank statement in the case of one and a cheque stub found in the plastic bag produced by Mr Mandalia. Further listed payments of £10,000 and £200, with a side annotation ‘Raju’, seemed to be corroborated by a Customer Receipt Deposit with annotations suggesting payment on to Mr Pancious of such amounts. Counsel made the point that the more the cross-confirmation the greater the reliability of the Manuscript List; and the greater the excess over £15,000 the more likely that not all the payments related to salary or other form of recompense for Mr Pancious, especially since Mr Pancious worked only for 7 months and cannot have earned more than £14,000.

Counsel for Mr Kuppusamy relied also on evidence of substantial capital contributions (in aggregate of some £87,000) made into the business account at Bank of Scotland in Nottingham by Mr Kuppusamy and/or Vijay immediately prior to payments out to Mr Pancious. This, it was said, indicated a nexus between Mr Pancious and Mr Kuppusamy and/or Vijay such as to support the case that the Transfer was indeed agreed to by Mr Mathankanna in lieu of his repaying Mr Kuppusamy and/or Vijay for having paid Mr Pancious. No reason, however, was advanced on behalf of Mr Kuppusamy as to why any repayment was routed through the business account.

Counsel for Mr Mathankanna dismissed each of these points, characterising all but the points relating to the Manuscript List and the issue of payments to Mr Pancious as “jury points”, going to credibility but not substance.

Thus, as to the ‘lies’ in respect of Saxon Wood Close, and the purchase of the Property and business, his retort was, in effect, that these matters had been considered and taken into account already by the Deputy Adjudicator and should not be revisited.

As to the ‘lie’ with respect to whether Mr Mathankanna knew Mr Iruthayathasan and of the flat at 83 Brownshill Green Road where the Transfer is said to have been signed and attested, Counsel for Mr Mathankanna emphasised that what was really material was that Mr Iruthayathasan’s (probably unexpected but unequivocal) evidence was that he did not recall Mr Mathankanna signing the Transfer.

As to the issue with respect to payments to Mr Pancious, Counsel for Mr Mathankanna made the short point that monies were indeed paid over to Mr Pancious, but it was impossible to say whether these were payments of wages, or for sundry items, or indeed to buy off a claim to a beneficial interest by Mr Pancious that had been anticipated by Mr Kuppusamy. Counsel also emphasised that it had been conceded on behalf of Mr Kuppusamy when applying to the Deputy Adjudicator for permission to appeal that there is no evidence of any payments by Mr Pancious towards the purchase of the Property, and that lack of proof was fatal.

The focus of this second ground is on the Deputy Adjudicator’s approach to the evidence on behalf of Mr Kuppusamy. Three particular failures on the part of the Deputy Adjudicator are suggested.

The first particular failure relates to a matter briefly alluded to earlier in this judgment: the light that the Deputy Adjudicator considered was shed on the reliability and credibility of Vijay by his revelation that he had in his possession or power a previously undisclosed file (“the Missing Conveyancing File”).

The Deputy Adjudicator seems (from the transcript) to have taken a close interest in this in the course of the cross-examination of Vijay; and it is plain from paragraph 47 of the Decision that the Deputy Adjudicator did attach considerable importance to this issue in her assessment of Vijay’s credibility. That paragraph reads as follows:

“Moreover it seems to me that Vijay’s credibility was additionally seriously undermined by his lack of truthfulness regarding the whereabouts of Rajah’s file relating to the Transfer. It is not an answer to say that when it was produced it revealed very little (indeed, it could be said that the very fact that it revealed so little is of concern). Vijay had been pressed to produce the file throughout the proceedings. He was clear that he did not have it. This was his unequivocal response to being asked in court whether he had the file. It was only when he was told that Dr Vera had said that the file had gone to him that he changed his evidence, and duly produced the file.”

It was not disputed that Vijay’s evidence was apparently contradictory and such as to excite the close interest of the Deputy Adjudicator. When initially asked about the Missing Conveyancing File at the commencement of his cross-examination Vijay (who had not been permitted to be in Court during the cross-examination of the preceding witness, Dr Vera) answered “I do not have the file with me”. This was in line with correspondence between the parties’ solicitors to the effect that the file was not in the possession of the Kuppusamy side. When confronted with the fact that Dr Vera had stated under cross-examination that he had given Vijay the file when Dr Vera’s firm closed down, Vijay first suggested he was confused as to which file was in issue and then that he did have the file: “It is in my house I guess”. He said he had not disclosed it because nobody asked him for it. Asked whether he thought it might help his case he said: “Yes, why not?” Pressed to admit a lie he said: “It is not a lie, it is a misunderstanding. It is not a lie. Why should we don’t want to give the file to the person who needs it. I have nothing there to hide, basically”.

The case for Mr Kuppusamy is that the significance accorded to this episode by the Deputy Adjudicator was too great, and was based in a misunderstanding of the oral evidence given by Vijay, whose primary language is not English. Further, when inspected there was nothing of substance to harm Mr Kuppusamy’s case: indeed, it is submitted on his behalf that on balance the contents assisted that case, especially since the position of the December letter was consistent with it being a genuine letter. In summary, close analysis suggested misunderstanding rather than deceit; and the Deputy Adjudicator’s approach in treating the episode as signifying dishonesty was misplaced.

That leads on to a related failure attributed to the Deputy Adjudicator under Ground Two of the Grounds of Appeal: the failure to identify and address the point raised on behalf of Mr Kuppusamy at trial that whether or not the December letter was actually received by Mr Mathankanna, Vijay had (as Dr Vera confirmed) intended that it be sent and thus received. The point put forward is that, there being no allegation of dishonesty on the part of Dr Vera, “Vijay intending Mr Mathankanna should receive the letter is inconsistent with an intention to perform a secret and covert fraudulent transaction” (I would interpolate, by means of a forged Transfer).

It is submitted on behalf of Mr Kuppusamy that the Deputy Adjudicator further erred in dealing with the corollary, which would be that if Vijay did not intend the letter to be received, he must have hatched and executed a plan to create a false letter, never actually send it, have it inserted in the right place in the Missing Conveyancing File to lend fraudulent support to the false signature he was to apply to the Transfer, and having done all that, fail to produce the file until (after denying its whereabouts) at trial. This, it was suggested for Mr Kuppusamy, was simply incredible.

A second particular criticism of the Deputy Adjudicator’s approach (advanced as Ground Two, Particular Two) relates to the issue regarding payments by and to Mr Pancious. I have already addressed this in relation to Ground One.

The third particular error suggested under Ground Two as having undermined the Deputy Adjudicator’s approach relates to the evidence of Mr Farooq. Again, I have dealt with some aspects of this previously. The special focus now is on the Deputy Adjudicator’s implicit rejection (in paragraph 49 of the Decision) of Mr Farooq’s evidence that Mr Mathankanna had confirmed to him at a meeting between them that he had surrendered his interest in the petrol station.

The Deputy Adjudicator was critical of the fact that Mr Farooq was only contacted by Vijay a few days before the hearing. She remarked upon the fact that he had ceased to practise “because he was investigated by the Law Society for not having a certificate and not being insured” (paragraph 27 of the Decision). In rejecting his evidence on the point in issue she simply said that she “did not find Mr Farooq a wholly convincing witness” (paragraph 49 of the Decision).

On behalf of Mr Kuppusamy it is said that the reason why Mr Farooq was called late was that there were strained relations between him and Vijay because of an outstanding debt; and that in any event this should not have influenced the Deputy Adjudicator in her assessment. Further, it is submitted that “a simple finding that the [Deputy] Adjudicator ‘did not find Mr Farooq a wholly convincing witness’ is insufficient to support what must have been the finding to reject the evidence of the meeting, namely that Farooq had lied about it”. That was especially so given that the Deputy Adjudicator had been constrained to accept Mr Farooq’s evidence on the Saxon Wood Close issue, which involved finding that Mr Mathankanna had lied.

Once again, all these points under Ground Two of the Grounds of Appeal are rejected by Mr Mathankanna.

As to the first particular and the Missing Conveyancing File, Vijay’s inconsistent evidence on the point, and the Deputy Adjudicator’s assessment of it and her conclusion that it seriously undermined Vijay’s credibility, Counsel for Mr Mathankanna simply dismissed the points made on behalf of Mr Kuppusamy as not amounting to any basis for appeal: the Deputy Adjudicator was entitled to proceed as she did and “the ground seeks to find prejudice where none exists”. In submissions, Counsel for Mr Kuppusamy had himself recognised the episode as “the low point”: it was hardly surprising that the Deputy Adjudicator had taken it into account as she did.

On the issues relating to the December letter, Counsel for Mr Mathankanna was equally dismissive: there was, it was submitted, no gainsaying that Mr Mathankanna had not received the letter, and so it could not really impact on the issue whether the Transfer was in fact signed and witnessed.

Further, Counsel suggested that the case for Mr Kuppusamy that the intention to send the letter was inconsistent with fraud was simplistic. Counsel for Mr Mathankanna depicted the instructions given to Dr Vera as calculated to be shown to the Bank of Scotland and to enable remortgage of the Property, and emphasised particularly the curiosity that the December letter did not enclose the Transfer (which was common ground) and Dr Vera never sent any such document to Mr Mathankanna, leaving all that to Mr Kuppusamy. All in all, it did not follow from the fact that Dr Vera was instructed to send the letter that the Transfer was in fact more likely to have been signed by Mr Mathankanna (which Counsel emphasised was the ultimate issue); and the Deputy Adjudicator could not be said to be wrong.

Thirdly under Ground Two, as to Mr Farooq, Mr Mathankanna’s case was simple: “the [Deputy] Adjudicator accepted some aspects of Mr Farooq’s evidence but not all of it. She was critical of the lack of a contemporaneous note of conversations, central to [Mr Kuppusamy’s] case. Having heard his evidence, she was entitled to come to this view and cannot be said to have misdirected herself”.

The third raft of criticisms of the Deputy Adjudicator’s decision comprises three particular complaints.

The first ‘Ground Three’ criticism relates to Mr Farooq’s file, which contained (a) a letter from the Bank of Scotland dated 11 October 2004 recording receipt of a fax from Mr Kuppusamy’s then solicitors regarding the transfer of the business into his sole name “following the removal of Mr Mathankanna” and indicating the bank’s agreement subject to compliance with legal formalities and (b) a document prepared by Murco Petroleum Limited stated to have effect from 1 October 2004 confirming its willingness to permit the transfer of the relevant supply agreement into the sole name of Mr Kuppusamy.

The Deputy Adjudicator considered these documents, and the submission on behalf of Mr Kuppusamy that the open discussion with third parties of an intention to procure the transfer of Mr Mathankanna’s share pursuant to arrangements with the Bank of Scotland was inconsistent with his case of fraud and forgery: but it seems that she was not persuaded that these documents and arrangements, to which it does not appear that Mr Mathankanna was a party and which ultimately did not proceed, invalidated her doubts as to the validity of the Transfer. Mr Kuppusamy criticises her approach as failing to recognise and take into account the unlikelihood that Mr Kuppusamy would have broadcast his intentions to third parties over the course of years if those intentions were to dispossess Mr Mathankanna of his share without his knowledge or against his will.

Ground Three, Particular Two criticises the Deputy Adjudicator for giving any weight at all to the handwriting evidence, alleging that the variations in the questioned signature, when compared with the control signature on which the expert relied when concluding that there was weak evidence that the questioned signature was not valid, appeared also in an undoubtedly authentic signature of Mr Mathankanna on a cheque drawn by him.

Ground Three, Particular Three comprises a complaint that the Deputy Adjudicator took into account “interesting features in the evidence” in a manner implying an inference adverse to Mr Kuppusamy’s case without explaining the inference to be drawn. Thus:

To these particulars of criticism Counsel for Mr Mathankanna simply answers that it was open to the Deputy Adjudicator to highlight these gaps and inconsistencies as part of the background and in light of the gaps in Mr Kuppusamy’s own disclosure. There was no error or impropriety in not labelling them.

Lastly, the Grounds of Appeal complain about the exclusion of Vijay from the hearing during the cross-examination of his son and certain parts of the cross-examination of Mr Mathankanna and Dr Vera. Counsel submits that Vijay was in substance a party to the proceedings and that it is contrary to the fundamental requirements of a fair trial that a litigant be barred in this way. In particular, it is suggested that had Vijay been permitted to remain during the cross-examination of Dr Vera he “would have had an opportunity to marshal his thoughts in respect of the file, and the misunderstandings that had occurred might have been resolved. Instead the cross-examination of Vijay took the course that it did, and worked, it is submitted, a considerable unfairness on [Mr Kuppusamy] as a result”.

Counsel for Mr Mathankanna rejected this fourth ground as misconceived.

The caution required of an appeal court when invited to reverse a decision which turns on the facts has repeatedly been emphasised at the highest level. The trial judge will have seen and heard the witnesses and will have had before him or her all the material agreed to be admissible and relevant: an appeal court will not have the former and is unlikely to have the latter.

Lacking those advantages, an appeal court should not come to a different conclusion on the evidence where there is no question of misdirection unless it is unequivocally satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses could not be sufficient to explain and justify his conclusions: see Thomas v Thomas [1947] AC 484 at 487-488.

In Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd [1997] AC 254 at 274H – 265A Lord Steyn said:

“The principle is well settled that where there has been no misdirection from the issue of fact by the trial judge the presumption is that his conclusion on the issue of fact is correct. The Court of Appeal will only reverse the trial judge on an issue of fact when it is convinced that his view is wrong. In such a case if the Court of Appeal is left in doubt as to the correctness of the conclusion it will not disturb it.”

The presumption is especially difficult to dislodge where the finding is one of primary fact and based on an assessment of the credibility of witnesses: indeed, such a finding is virtually unassailable: see Benmax v Austin Motor Co Ltd [1955] AC 370 at 372.

In Biogen Inc v Medeva plc [1997] RPC 1 Lord Hoffmann said:

“The need for Appellate caution in reversing the Judge’s evaluation of the facts is based upon more solid grounds than professional courtesy. It is because specific findings of fact even by the most meticulous judge are inherently only an incomplete statement of impression which was made upon him by primary evidence. His expressed findings are always surrounded by penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance…of which time and language do not permit exact expression but which play an important part in the Judge’s overall evaluation.”

There are, of course, examples in the cases where the Court of Appeal has intervened to substitute its own findings: but these are very rare indeed.

In this case, the Deputy Adjudicator heard evidence over the course of some three days. Both parties were represented. Each witness was subject to detailed cross-examination. The key issues turned on credibility. The evidence ranged over the parties’ extended course of dealings. The essential decision to be made at the end of the day was as to which party should be believed on the factual question whether or not the Transfer was actually signed by Mr Mathankanna.

In short, this court should only intervene if convinced that the Deputy Adjudicator was obviously wrong in concluding on the balance of probabilities that Mr Mathankanna had not signed the Transfer. If so convinced, then the appeal court is bound to intervene; but if in doubt the deference due to the primary finder of fact should prevail.

In my judgment, and despite the care and vigour with which each was advanced, none of the grounds of appeal establishes a basis for this court’s intervention. None is such as to convince me that Deputy Adjudicator was obviously wrong in her ultimate conclusion that the Transfer was not executed by Mr Mathankanna.

Having set out above the factual issues and the competing submissions I can more briefly set out my conclusions on each and conclude by my assessment in the round.

In my judgment:

As I have previously emphasised, and as is apparent from paragraph 46 of the Decision, the Deputy Adjudicator considered the really crucial point to be the lack of any satisfactory evidence to make good the central plank of Mr Kuppusamy’s case that Mr Pancious had contributed to the purchase of the Property for the benefit of Mr Mathankanna, and that Mr Kuppusamy or his father, Vijay (or others in their family), had repaid him, in effect on Mr Mathankanna’s behalf. Such evidence, if established, would have provided a rationale for Mr Mathankanna agreeing to the Transfer, which she considered otherwise to be lacking (though I need also to consider whether she was right in so thinking).

The difficulty of determining whether Mr Pancious had in fact made a contribution to the purchase price for the benefit of Mr Mathankanna, and then whether he had been repaid, was greatly increased by the fact that Mr Pancious was not produced as a witness. Mr Kuppusamy’s evidence in that regard was that he had made strenuous efforts to track him down, but all these had failed.

The difficulty is compounded on appeal because the Deputy Adjudicator has not stated in the Decision whether she accepted this; but it does seem clear at least that she drew no adverse inference from the fact that no evidence from Mr Pancious was made available.

Having read the transcripts, which I accept may be an uncertain basis for determining such matters, I have been left with the impression that Mr Kuppusammy and Vijay did indeed make real efforts to contact Mr Pancious, which failed. At all events, as it seems to me, the Deputy Adjudicator was right to draw no adverse inference; but that of course leaves the difficulty inherent in what is plainly a yawning gap in the available direct evidence.

More particularly, there was an almost complete lack of any evidence to support the first limb of Mr Kuppusamy’s case in this regard, that Mr Pancious advanced some £43,000 to Mr Mathankanna for the purpose of funding his share of the initial purchase of the Property. Counsel for Mr Kuppusamy sought to finesse this on the basis that it is unsurprising that Mr Kuppusamy should be able to produce none, because (to quote the Grounds of Appeal) “this was a money flow from Nihal [Pancious] to the Respondent [Mr Mathankanna], to which the Appellant was not party.”

Counsel suggested that the Deputy Adjudicator erred in failing to address this “simple submission”; and it is true that the submission is not expressly addressed in the Decision. However, the Deputy Adjudicator did draw attention (in paragraphs 16 and 17 of the Decision) to an apparent inconsistency in Mr Kuppusamy’s case in this regard. Put shortly, this was that (a) on the one hand, it was Vijay’s case that in the event, he paid more than 50% of the initial purchase price because the cheques that Mr Mathankanna provided bounced and neither he nor Mr Pancious could find the money to fund Mr Mathankanna’s share; but (b) on the other hand, Mr Kuppusamy’s case depended on the contention that Mr Pancious had indeed paid, before 12 March 2004 (in time for completion on 24 March 2004), the full £43,000.

Further, the Deputy Adjudicator pointed out, in paragraph 14 of the Decision, that Mr Farooq of Caffery & Co, who had acted in the original purchase, produced an undated, handwritten document (written by Vijay) showing a contribution by Mr Mathankanna of £57,000; but it was clear that of that some £35,000 was not paid (since the cheques making up that amount bounced), and there is no record (such as one might expect in such circumstances) of any further payment by Mr Mathankanna.

Vijay’s own evidence was frail: the best he could do was to say that he was told by Mr Mathankanna that some amount, he thought £40,000 (but he was not really clear), was involved.

Ultimately, it was for the Deputy Adjudicator, on the basis of her assessment of the credibility of the parties, to determine whether or not she accepted that Mr Pancious had lent Mr Mathankanna the money; and she did not. That was a conclusion plainly available, in light of the dearth of any direct evidence, and plainly dependent on a necessarily subjective assessment of credibility, informed by the Deputy Adjudicator’s unrepeatable experience of the way the evidence unfolded at trial.

I cannot accept that the Deputy Adjudicator overlooked the “simple submission”; it is so obvious a point that the fact that it is not expressly mentioned is likely to indicate no more than that it went without saying.

In my judgment, there is no basis for second-guessing, still less overruling, the Deputy Adjudicator’s conclusion as to this limb of the factual case advanced by Mr Kuppusamy.

Turning to the second limb, again the absence of Mr Pancious himself, and the equivocal nature of such documentary material as there is, compounded the difficulty of determining whether there were any payments to Mr Pancious referable to the repayment of a loan made by him. This was further exacerbated by the undisputed evidence that Mr Pancious worked at the petrol station for about eight months and was intended to be paid a salary of some £2,000 per month: this added to the difficulty of determining the purpose of payments to him.

Counsel for Mr Kuppusamy placed special reliance in the Grounds of Appeal (especially paragraphs 57 to 60) and before me on (a) a manuscript list headed “NIHAL”, which might suggest payment of what Counsel described as a “clutch of payments” in November 2004 to Mr Pancious and (b) some correspondence between those alleged payments and a paying in slip bearing the endorsement “Nihal/Raju” (Raju being Vijay’s brother) upon which the three November payments (if that is what they were) are bracketed as “Nihal Payout”.

Counsel submitted that the apparent confirmation of certain payments as listed should be treated not only as corroborating the three matched payments but also as according greater weight to the remaining entries, which, furthermore, could be read in a way as to amount in aggregate to £43,000. He criticised the lack of any detailed analysis in the Decision of the Manuscript List, its possible correspondence with other documentary material, the fact that there were plainly payments made to Mr Pancious in excess of the £15,000 or so that might represent earnings from running the petrol station, and the fact that the items listed did in total correspond to the sum alleged to have been advanced (of some £43,000).

There was also evidence of other payments to Mr Pancious, including (a) £15,015 made from the business account (not the personal accounts of Mr Kuppusamy or Vijay) and a further £7,000 apparently paid on 7 October 2004: these themselves exceeded, and could not therefore be entirely referable to, salary agreed to be paid to Mr Pancious for running the petrol station.

These points have given me considerable pause for thought. Again I have to say, with respect, that I do consider the Deputy Adjudicator’s analysis of these points to be rather sparse; and her assessment that there was nothing in the evidence to take the matter much further because “it was clear that Mr Pancious was to be paid for running the garage” (see paragraph 18 of the Decision) did cause me some concern and not a little hesitation.

Nevertheless, the question for me, in the end, is whether I am convinced that the Deputy Adjudicator was wrong in her conclusion that there was simply no sufficient evidence to make good the case advanced in this regard by Mr Kuppusamy. I must take into account the fact that the adumbration of reasons may be incomplete but the ultimate overall assessment, informed by the trial process and the impressions formed in seeing the evidence being opened and given, nevertheless unassailable. Ultimately, the connected questions whether Mr Pancious had advanced part of the purchase price to fund Mr Mathankanna’s share and whether the payments made to Mr Pancious were to repay Mr Pancious and by doing so acquire Mr Mathankanna’s share depend for their answer, in the absence of Mr Pancious, on an assessment of the credibility of Mr Mathankanna and Vijay. That is, once again, a matter pre-eminently for the trial judge.

In my judgment there is no sufficient basis for a conclusion that the Deputy Adjudicator was, as regards this crucial element of the case, not only somewhat too dismissive or cursory in her approach, but also wrong.

In so concluding I have also taken into account the remaining principal objection to the Deputy Adjudicator’s Decision: that is, her apparent failure to address the point that, even if not received, what really matters is Vijay’s apparent intention that Dr Vera should correspond with Mr Mathankanna about the Transfer.

This too gave me real pause for thought, and caused me further hesitation. The Decision might usefully have expressly addressed this point. Once more, however, I have concluded that the omission is one of expression, not of actual consideration: it is quite clear from the transcript of the closing submissions that the Deputy Adjudicator focused on the point, and I think I should take it that she took it into account in forming her conclusions accordingly.

The Deputy Adjudicator also took into account in this regard the unexplained delay of some 22 months between the time when on Mr Kuppusamy’s case Mr Mathankanna had evinced contentment to make the Transfer, and the time when the Transfer is said actually to have been signed: see paragraph 24 of the Decision. Although the Conveyancing File contained a copy of the letter as supposedly sent in the right sequence, proof that it was really intended to be and actually was sent was lacking. Further, although perhaps not wishing to say so, it seems clear to me that the Deputy Adjudicator was somewhat sceptical about Dr Vera’s evidence on the point; and my reading of the transcript enables me to understand why that might have been so.

All in all, put shortly, I do not think that this point would justify me in allowing the appeal, either on its own or in combination with the other points that I have sought to address. Neither that point nor the others I have mentioned is such as unequivocally to suggest that the Deputy Adjudicator came to the wrong conclusion on the ultimate issue in the case.

It follows that, in my judgment, this appeal must be dismissed.

Ordinarily, of course, costs would follow that event. It may be that it will be possible to draw up an agreed minute for my consideration without the need for further attendances. But I shall leave it to Counsel to decide whether a further hearing is required.

Since circulating a draft of this judgment, my attention has been drawn to the very recently published decision of the Privy Council in Mutual Holdings (Bermuda) Limited and others v Diane Hendricks and others [2013] UKPC 13, allowing an appeal from a decision of the Court of Appeal of Bermuda. This once more emphasises the dangers of overturning findings of fact by a trial judge which turn on the credibility of witnesses, especially in the context of an allegation of fraud. Although in the present case analysis of the surrounding circumstances informed and may more significantly have affected the Deputy Adjudicator’s assessment of credibility than in that appeal to the Privy Council, the further emphasis of the dangers of reconstruction on the basis of documents, without the benefit of hearing the witnesses and watching them being cross-examined, has reinforced me in my conclusion that there is no sufficient basis for intervening in this case. On the ultimate issue, the Deputy Adjudicator believed Mr Mathankanna and disbelieved Mr Kuppusamy and Vijay. Her assessment and conclusions should not be disturbed.

Also since circulating that draft, Counsel have agreed a form of Order in respect of all matters, except costs. Counsel for Mr Kuppusamy has invited me to indicate whether I would entertain submissions to the effect that the Court should in this case exercise its general discretion in respect of costs by disallowing a percentage of Mr Mathankanna’s costs on the basis that (a) he was found by the Deputy Adjudicator to have lied on certain issues, (b) that finding was untouched on appeal and (c) it is apparent that the appeal, although ultimately unsuccessful, was finely balanced. Counsel for Mr Mathankanna’s answer is that (i) there was no appeal against the costs order made against Mr Kuppusamy below, (ii) I have not criticised in this judgment the way the appeal was conducted and (iii) there is no sufficient reason to depart from the usual order that costs follow the event. My preliminary view is that for the reasons stated by Counsel for Mr Mathankanna costs should indeed follow the event, and so Mr Kuppusamy must pay the costs of the appeal, such costs to be the subject of detailed assessment if not agreed. I shall leave it to Counsel for Mr Kuppusamy whether he wishes to persuade me otherwise in oral submissions. I do not understand any order for payment on account to be sought: if that is incorrect, then the matter should be addressed after formal delivery of this judgment.

Finally, I take it that Barclays has not incurred any costs in connection with the appeal. If that is or may be incorrect, Barclays may apply to me for such order as it is advised is appropriate: Barclays should be sent a copy of this judgment as soon as possible.