Royal Courts of Justice
The Rolls Building
Fetter Lane
EC4A 1NL
Before :
MR JUSTICE NORRIS
Between :
Ghassemian | Appellant |
- and - | |
Tigris Industries Inc | Respondent |
Jonathan Upton (instructed by Housing and Property Law Partnership Solicitors) for the Appellant
Kevin Leigh (instructed by Ashfords Solicitors) for the Respondent
Hearing dates: 26 June 2013
Judgment Subject to Editorial Corrections
Mr Justice Norris :
Sharooz Langroody (“Mr Langroody”) is the son of Hamila Sartipy (“Mrs Sartipy”) who (it is alleged) is also known as Hamila Ghassemian. Mrs Sartipy applied to register title by adverse possession to some land at 26-30 Earls Court Road. Proceedings were directed by Her Majesty’s Land Registry. In those proceedings the Adjudicator dismissed the application and found that Mr Langroody had laid an “elaborate and false paper trail to support the case”.
On the 25 November 2010 the Adjudicator made an order for costs in favour of Tigris Industries Inc (“Tigris”). She directed a detailed assessment and also made an interim order for £60,000 to be paid. Tigris was misdescribed in the order.
The interim costs order was not obeyed. On 16 December 2010 an interim charging order was granted over a flat registered in Mrs Sartipy’s name at 56 Chatsworth Court in respect of that costs order.
When the interim charging order came back before the court to be made final, Mrs Sartipy sought to avoid that result by saying that she was not the person who had applied to the Land Registry, participated in the Adjudication proceedings and become subject to the costs order. She was ordered to attend court so that she could be cross-examined on that case. She did not do so: but at the hearing Deputy Master Bard admitted her witness statements (subject to considerations as to the weight that should be attached to them). He also heard evidence from two people who said they were directors of Tigris (Mr Ozbuluter and Mr Mustafa). They gave evidence (a) that they had in 2011 seen passport photographs of Mrs Sartipy whom they recognised as the person they had observed at a hearing before the Adjudicator on 28 September 2009 the date of the relevant hearing before the Adjudicators: and (b) that in October 2009 they had seen a photograph of Mrs Sartipy in a file belonging to the Royal Borough of Kensington and Chelsea and had identified her on that occasion. Before the Deputy Master it was accepted that Mrs Sartipy has been in England on 28 September 2009: and taking that into account the Deputy Master accepted the identification evidence. Quite separately, he found that the evidence before him supported the contention that Mrs Sartipy had authorised Mr Langroody to act for her in applying to HMLR and in the adjudication proceedings. He held that Mrs Sartipy had not made good her case that the claim was pursued by Mr Langroody as a frolic of his own without her knowledge and authority. So on the basis of the documentation the Deputy Master decided that Mr Langroody acted with Mrs Sartipy’s actual authority in HMLR and in the adjudication proceedings; and he regarded the identification evidence as supporting that conclusion. A note of his judgment records
“The Defendant did authorise her son to take proceedings for her which resulted in the adjudication. Accordingly I conclude the Claimants entitlement to a final charging order is made out”.
There is one further point worthy of note. Before Deputy Master Bard the case appears to have been advanced by Mr Langroody that Mrs Sartipy had transferred the beneficial ownership in 56 Chatsworth Court to a Delaware company which had then transferred that interest to Mr Langroody: and some documents were produced which it was said demonstrated this. The Deputy Master regarded that case as lacking any credibility.
The Order resulting from his decision was dated 4 July 2011. On 3 July 2011 Mrs Sartipy appealed that decision, on the grounds that the Deputy Master (a) ought not to have held that she had given Mr Langroody authority to represent her and (b) should have not accepted the evidence of Mr Ozbuluter and Mr Mustafa that they could identify her from a passport photograph. Spencer J refused permission to appeal. In paragraphs 31 and 32 of his judgment he records that it had been conceded by Leading Counsel before him that Mrs Sartipy had been in the United Kingdom on 28 September 2009.
On 30 January 2012 Mrs Sartipy applied to reopen that appeal under CPR 52.17. She now sought to rely on evidence that she could not have attended the hearing before the Adjudicator on 28 September 2009 because she was not in the country (producing a medical certificate and some banking documents). This was surprising in view of the basis on which the original hearing and the appeal had been conducted.
In support of her application to reopen the appeal Mrs Sartipy also sought to undermine the credibility of Mr Ozbuluter in relation to his evidence that he had seen a photograph of her in a local authority file in October 2009.
On 2 February 2012 Mr Justice Nicol rejected the application to reopen the appeal under CPR 52.17, concluding his judgment with the words
“There is no right of appeal from this decision which is final”.
By an Appellant’s Notice issued on the 27 March 2013 in CH/2013/0173 Mrs Sartipy again seeks to appeal the making of the final charging order: but this time she refers not to the Order dated 4 July 2011 but to an Order dated 30 September 2011. The order dated 4 July 2011 had continued the interim charging order, pending rectification of the costs order made by the Adjudicator to HMLR (which had misdescribed Tigris); when the costs order was rectified then the interim order would become final. The title to the Adjudicator’s order was corrected and the final charging order was sealed on the 30 September 2011. It is against this version of the order that the appeal dated 27 March 2013 is brought (18 months out of time).
On 16 April 2013 I directed
That Mrs Sartipy’s application for permission to bring this appeal out of time, for permission to adduce fresh evidence and (subject to such permissions being granted) for permission to appeal should be made at a hearing: and
That at that hearing the Court would consider whether there was jurisdiction to entertain the appeal having regarded to the order of Spencer J of the 16 September 2011 and the order of Nicol J of the 2 February 2012.
Although this is technically an appeal against a different order consequent upon the same judgment of Deputy Master Bard, everybody knows that (and has approached the hearing on the footing that) this is really an attempt to revisit the issue of whether Mrs Sartipy was the person who applied to be registered as the proprietor of some valuable land in Earls Court, and who lost the hearing before the Adjudicator to HMLR. The ground on which this is said to be permissible is that the final charging order granted by Deputy Master Bard was procured by fraud. Mrs Sartipy’s case is that on the material now available to her she can show that the Mr Mustafa who purported to give evidence before Deputy Master Bard was not who he said he was: and that Mr Ozbuluter must have known this to be so. She also wishes to challenge (again) the photograph identification alleged to have been made in October 2009: and to assert (again) that she was not in the United Kingdom on the 28 September 2009.
I refuse to extend time for the bringing of the appeal in CH/2013/0173: and in any event I would refuse permission to appeal on the merits. In my judgment the principle of finality in litigation (whilst not absolute) has a real and independent value. It is a key part of the complex organism that is “justice”. It has been decided in this case that Mrs Sartipy was the applicant for a registered title at HMLR and the applicant in the Adjudication proceedings. Permission to appeal that decision has been refused. Permission to re-open the appeal has been refused. What is effectively an application for permission to re-open the refusal of permission to re-open the refusal of permission to appeal should also be refused.
As to the extension sought, no explanation is offered as to why this appeal is being brought out of time. There is no reason apparent from the papers why an appeal against the order dated 30 September 2011 could not have been commenced earlier and joined with that against the Order dated 4 July 2011. This appeal is simply a technical device to bring back before the court the same issues that were before the court in the appeal with which Spencer J and Nichol J respectively dealt.
As to the grant of permission, having reminded myself of the low threshold that has to be crossed I nonetheless take the view that Nichol J has already declined to reopen the appeal, and I see no reason to go behind his final order.
Three reasons were suggested why a different view should be taken:-
First, the court has an inherent jurisdiction to re-visit any order it makes (even one which it says is final and cannot be re-visited). In Taylor v Lawrence [2002] EWCA Civ 90 the Court of Appeal referred to the inherent power conferred on a court (whether appellate or not) to control its own procedure so as to prevent it being used to achieve injustice. In paragraph [54] the court continued
“It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in the Court of Appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables to court to confine the use of that jurisdiction to cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation”
Mrs Sartipy says that she now has evidence that one of the people who said he identified her at the hearing of the 28 September 2009 and who the following month identified her from the photograph in the files of the Royal Borough of Kensington and Chelsea is an imposter; that the judgment of Deputy Master Bard was procured by fraud; and that this is an exceptional circumstance which warrants the exercise of the residual jurisdiction. I disagree for two reasons. First, the residual jurisdiction to which court in Taylor v Lawrence referred is now embodied in CPR 52.17: that rule is now available in the exceptional case to which the Court of Appeal was referring, and it has been adjudicated upon in this case. Whilst as a matter of jurisprudence the residual jurisdiction continues to exist, it must now be reserved for only the most extraordinary cases for which CPR 52.17 itself is insufficient. Second, Mrs Sartipy is not without her remedy: the principle of “finality” is not absolute. If Tigris obtained its final charging order by fraud then Mrs Sartipy can commence an action to set aside the judgment on the grounds that it was obtained by fraud and the precise issue can be examined in a carefully structured way according to well settled rules as to the particularisation of the case being made, the documents to be disclosed and the evidence to be adduced.
Second, it is said that if an appeal were to be permitted then within the appeal the issue of fraud could be examined, without the necessity to commence separate proceedings. This was the course taken in Noble v Owens [2010] EWCA Civ 224. At paragraph [29] Smith LJ held:-
“Although the old cases say that where there is an issue of fraud to be tried that must be done by commencing a fresh action, I do not think that in this day and age that should always be necessary. All that is needed is that the issue of fraud should be determined. That could be done just as well (if not better) by this court referring the trial of the fraud issue to a High Court Judge pursuant to CPR 52.10(2)(b)”
As the citation itself makes clear that is not guidance suitable for adoption in every case: and it is quite clearly not an appropriate course in this case. The issue before the Deputy Master was whether Mrs Sartipy was the person who claimed the land at Earl’s Court, and pursued the claim before the Adjudicator. One indicator that she was that person was that she had attended one of the hearings. As to that case matter, if she was present in the country it is likely that she was the person who attended the hearing of the proceedings brought in her name and was the person to whom Mr Langroody referred as “mother”. The identification evidence supported that conclusion but was not essential to it. The identification evidence may be shown to be false. But that does not put in issue again the documentary material on which the Deputy Master relied for his principal conclusion: nor does it put in issue what Mrs Sartipy conceded (but now wishes to escape from) namely her presence in the country on the relevant hearing date. So this is plainly a case for Mrs Sartipy being required to start proceedings to set aside the judgment because it has independent foundations.
Third, it is said that CPR 3.1(7) provides a route which may be used to revoke the orders made by Spencer J and Nichol J. I agree that this is probably the mechanism that would have to be used to go behind the order of Nicol J. It is, perhaps, another embodiment of the residual jurisdiction that was referred to in Taylor v Lawrence (supra). I have considered the decision of the Court of Appeal in Hackney London Borough Council v Findlay [2011] EWCA Civ 8 and Kojima v HSB Bank [2011] EWHC 611. It does not seem to me that an application of the principles there set out involves any different weighing of the factors relevant to the other routes already considered: and in my judgment it is clear that the outcome under CPR 3.7 would be no different.
For these reasons I would refuse permission to appeal: there is no real prospect of achieving (what is in effect) the setting aside of Nicol J’s order within the existing proceedings.
Whilst Mrs Sartipy was seeking to persuade the Court that she was not the person who was subject to the costs order made in the Adjudication proceedings, Tigris commenced proceedings to enforce the final charging order. Five days before the date of the disposal hearing Mrs Sartipy asserted in correspondence that although she was the legal owner of 56 Chatsworth Court it belonged beneficially to somebody else. It may be recalled that in the course of the hearing before Deputy Master Bard it had been suggested that 56 Chatsworth Court had passed through the hands of a Delaware corporation. But Mrs Sartipy now asserted “by way of continuing disclosure” that it was subject to a Declaration of Trust dated the 13 June 1986 and/or the will of Hadi Ghassemian dated the 8 March 2001. In the light of this material no final order was made at the disposal hearing but Mrs Sartipy was ordered to make a further witness statement explaining how and in what circumstances these documents had come into her possession and why these matters had not been raised or relied on at any earlier stage of the enforcement proceedings. This latter point seems to me to be crucial. She was also ordered to produce the original documents, or explain why she was unable to do so. It was ordered that unless she attended to be cross-examined on this evidence then she could not rely on the “continuing disclosure” which she had provided.
Mrs Sartipy provided no dates on which she would be available for cross-examination, and she did not attend the relisted hearing. Faced with that failure to obey the court orders, Master Teverson decided to continue with the hearing, to allow Mrs Sartipy to rely on her written evidence (but to take into the account the inability of Tigris to cross-examine her on it) and to decide whether to make an order for sale. In fact, further issues were raised at the hearing and Mr Langroody was able to drip feed a volume of extra material (generally in circumstances in which Tigris had very little opportunity to examine it or to respond to it). All this material Master Teverson considered in a careful judgment delivered on the 11 January 2013. In essence he decided that he had not been satisfied that Mrs Sartipy was the bare legal owner of 56 Chatsworth Court. He thought there was real doubt as to whether the Declaration of Trust had been executed on the date when it purported to have been made. He came to the clear conclusion that whenever the Declaration of Trust was made it was “a sham document” i.e. was not genuinely intended to create a trust but was intended to be “put in the safe for a rainy day”. Nor was the Master satisfied that the Will was a genuine document.
Against this conclusion Mrs Sartipy seeks permission to appeal out of time, and permission to appeal. This is the subject matter of appeal CH/2013/0147.
There was no opposition to an extension of time for the filing of the appellants notice in this case. I extend time. The only issue for decision is whether permission to appeal can be granted.
The order made on the 28 January 2013 (following upon Master Teverson’s judgment) records the court as:
“Not being satisfied that the Declaration of Trust and Will relied on by the Defendant are genuine documents”.
The appeal proceeds on the footing that the Court found that the Declaration of Trust and the Will were forgeries or shams. The Grounds of Appeal relied on are:
That the court placed the burden of proof upon Mrs Sartipy:
That the court “erred in finding fraud” because it must have applied the wrong standard of proof, given that the more serious the allegation the stronger the evidence required to sustain it:
The court erred in finding that the declaration of trust had been made in 1995:
That the court erred in determining that the Declaration of Trust was a sham because that was not an issue raised and argued before the court:
That the court erred in finding that the will was not genuine.
Two of those grounds are properly framed: the allegation that there is an error of law in relation to the application of the burden of proof, and the allegation that there is a serious procedural irregularity in the determination of the issue of “sham”. The rest are challenges to findings of fact made by the judge. But two legal points were argued on behalf of Mrs Sartipy.
First, it was said that when you look at the quality of the evidence that was available and the nature of the conclusions that were reached it is apparent that Master Teverson cannot correctly have directed himself as to the strength of the evidence required to sustain the conclusion. That would be an error of law.
Second, it was said that whilst it is true that ultimately the challenge is to the facts found by the Master, this is a challenge that an appeal court will take on in limited circumstances (which apply in the instant case). The Master heard no live witnesses: at the request of the parties he decided the matter wholly on written material. In Manning v Stylianou [2006] EWCA Civ 1655 at paragraph 19 Waller LJ (with whom Carnwarth LJ agreed):-
“I would emphasise that an appeal on fact is not concerned with reviewing the exercise of a judges discretion. It is not because there is room for two views of the facts that the Court of Appeal is less inclined to interfere with the judges conclusion as compared, for example, to his or her views on points of law. The finding of fact is a finding that, on the balance of probability, something actually existed or in event actually occurred. The deference that a court pays to a judges findings of fact stems from the advantage that the judge may have had in the trial process, have seen the witnesses, of having a greater feel for the atmosphere of the trial and matters such as that. We have interfered in this case because we were in as gooder position as the judge in relation to the photographs on which he found it in his judgment. But what I urge practitioners to do is not to confuse the approach to reviewing an exercise of discretion with the approach to reviewing a judges findings of fact”.
That was a case in which the Court of Appeal had been invited to consider “a crucial finding in the case” which the court decided it was “in no worser position to assess, having before [it] all the material that the judge had before him and which was so influential upon his decision”.
Whatever my initial impressions on reading the papers and the skeleton arguments, I have reminded myself that all Mrs Sartipy has to show at this stage is that her grounds of appeal are not “fanciful” but have “a real prospect of success”. At the conclusion of argument (and without expressing any view as to the likely outcome of this appeal) I have concluded that that is a threshold which she has crossed.
In the circumstances I will extend the stay on the enforcement of the order dated 28 January 2013 until the disposal of the appeal “0147” provided that the appeal is prosecuted with due diligence. Tigris has permission to apply to lift the stay in the event that this appeal is not so prosecuted.
There was before me a third appeal. This bears the reference CH/2013/288. Whilst Mrs Sartipy was seeking to avoid the final charging order and to resist an order for sale Tigris proceeded with the assessment of its costs. As is the pattern in this case, no sooner had the order been made that Mr Langroody appealed it. I directed that the appeal should be joined with the two other appeals and the question of permission should be addressed at the same hearing. My order having been made, Mr Langroody immediately applied to vary it. I accept that by the time my order dated 13 June 2013 had been received by Mr Langroody he had insufficient time to prepare an appeal bundle (and in particular had not obtained a transcript of the assessment hearing). I have therefore extended the time for the filing of the appeal bundle until 4pm 12 July 2013 and directed the hearing of his application (if he makes one) to extend time for the filing of the appellants notice and for permission to appeal to the first date thereafter. I remain of the view (despite Mr Langroodys protest) that it is highly desirable that if possible this appeal should be heard together with that in “0147”.