Byrne v Mullan

These are two appeals from decisions of HHJ Madge, one delivered on 9 December 2016 with reasons given on 12 December 2016 and the other of 14 December 2016. In the first of those decisions the judge refused to allow in late witness statements. In the second decision, after the trial, he rejected the claim of the claimant Mr Byrne to a beneficial interest (or a larger than acknowledged beneficial interest) in land at Sandhills Lane, Thorpe, Egham, Surrey (“the land”). At the heart of the claimant’s claim was a claim that a transfer dated 5 August 1997, which purported to convey the land from the claimant and the defendant Mr Mullan (in whom it was vested) to a company called Acorn Construction Ltd ("Acorn") was, so far as his signature was concerned, a forgery. He claimed that a beneficial interest which he claimed to be entitled to immediately prior the transfer was not defeated by that document and that he can still maintain it. The judge decided that his signature was not forged and was genuine, so other questions which he would otherwise have had to decide about equitable entitlement did not arise and were not decided. Mr Byrne challenges the forgery finding.

The relevant facts fall within a narrow compass. Mr Byrne and Mr Mullan worked in the construction trade and knew each other in that context. Together they formed a company, Acorn, so that they could use it for trading. This was in 1994. Mr Mullan was the sole shareholder though he acknowledged that Mr Byrne was entitled to 50% of profits. That seems to have been implemented.

Mr Byrne claimed to have identified the land, which lies in the green belt between the M3 motorway and a railway line, as having some then present use for storage and future development potential and he and Mr Mullan decided to purchase it. The original intention was that the land should be purchased in the name of Acorn, but the purchase was switched to a purchase in the name of Mr Byrne and Mr Mullan. There was a dispute on the evidence, unresolved by the judge, as to the reason for that. Mr Byrne said it arose when he pointed out the development potential of the land and said that it would be better, in the light of that, to hold it as individuals. Mr Mullan said that the reason was that the company could not find the funds to complete so personal borrowings had to be raised (by him) from a relative who insisted that the purchase be in the individuals’ names. Whatever the reason, that is what happened. There is also a dispute over the funding. Mr Byrne maintains that the property was owned beneficially, and equally, by him and Mr Mullan. Mr Mullan maintained that it was held on trust for the company. Again, the judge did not resolve that dispute even though it might have had some relevance to deciding the forgery point because it might have been relevant in assessing the explanation of the defendant for the relevant transaction.

In the spring of 1997 Mr Byrne decided he wished to withdraw from Acorn, and it is common ground that he did so. Having done so the claimant says he then checked the books of the company and found some unaccounted for and large transactions in which moneys of the company were paid to Mr Mullan or his company. Mr Byrne said he was given no explanation. He then went his separate way and had nothing more to do with the land until he was alerted to the possibility that Mr Mullan had acquired it, made enquiries at the Land Registry and discovered the conveyancing history.

What the documents show is that by the transfer dated 5 June 1997 the land was transferred by Mr Byrne and Mr Mullan to Acorn for no consideration. The transfer on Land Registry Form 19 certifies that the value of the property transferred did not exceed £50,000. The transfer bore what purported to be the signatures of Mr Mullan and Mr Byrne. Both purported signatures were witnessed by Mr George Walker, then company secretary of Acorn. Mr Byrne’s signature is the one that he alleges was forged.

Two years later the property was transferred again. By a transfer dated 14 July 1999 the land was transferred by Acorn to Mr Mullan in consideration of the payment of £30,000. Not long after that Acorn was wound up and dissolved.

Mr Mullan’s case on the 1997 transfer was that it was genuine and was done in order to give effect to the original intention that the land was to be owned by the company. His witness statement, as recited by the judge in his judgement, stated that Mr Byrne had said he wished to sell his share of the land as he no longer had any need for it. They agreed it was worth about £64,000 and that Mr Byrne’s share was worth £32,000. The bulk of that money was to be paid in the form of £25,000 due from a contractor and which Mr Byrne had been trying to recover. He claimed that as a result of some other balancing payments (which are not easy to understand) Mr Byrne was paid, or largely paid. Once the land was in the hands of the company it could be used as security for bank borrowing (it appears that that transaction occurred).

On this version of events it appears that Mr Byrne and Mr Mullan had no real regard to the distinction between the company and themselves and treated the land, and indeed the company assets, as if they were owned by them personally. Mr Mullan’s evidence was that the transfer was drawn up by a solicitor (Mr Betts), and since Mr Byrne was largely based in the company’s office he would more likely than not have seen it when it came in in the post. He reviewed it and signed it, and Mr Walker, who happened to be in the office on the day they signed, witnessed it. Both Mr Byrne and Mr Walker were present when the former signed it. The deed was then returned to the solicitor who completed the transaction on 5^th June, the date appearing on the transfer. The handwriting of the dating on the transfer is agreed to be Mr Betts’.

Mr Byrne’s evidence was that, having discovered what had happened to the land, he took the point up with Mr Mullan at the beginning of 2010. However, he did not pursue it thereafter for a while because he became housebound as a result of a car accident. In 2012 he reported the matter to the police, but it was not until March 2016 that he issued proceedings to enforce what he said were his rights and in the course of which he raised his forgery allegation, saying that he never signed the June 1997 transfer. At the trial and on the appeal Mr Mullan relied on the delay in asserting these rights in support of his case that Mr Byrne’s case was wrong.

After a couple of agreed extensions, witness statements were eventually exchanged on 25 October 2016. On the defendant's part one of those witness statements was one from Mr Walker, the witness to the document. Mr Walker’s evidence in his witness statement, as in the witness box, was to the effect that he had no recollection of witnessing the document but he confirmed that the signature was his. He said that he would not have signed the transfer as a witness without having seen Mr Byrne sign the document in front of him. Apparently in order to meet that evidence, Mr Byrne sought to produce some further witness statement evidence. There were three statements, from three people who claimed to be in a position to give details of financial dealings involving Mr Walker in which they were left out of pocket, in some cases with an unsatisfied judgement. In one case there was evidence of an outstanding claim against Mr Walker in which it was said that he had misapplied money. That claim was waiting for trial. Permission was also sought to adduce the evidence of one further witness who had not provided a witness statement but the gist of what it was intended or hoped she should say appeared in one of the new witness statements.

It was apparently not possible to get that application on for hearing much before the trial and in fact it came on for hearing on Friday 9^th December with the trial due to start the following Monday. It was heard at 2pm by Judge Madge. The judge dismissed the application in a short judgement in which he acknowledged the need to apply established Denton principles. His judgement expressed himself as accepting in their entirety the submissions of Mr Warner, who appeared for the defendant (as he did on this appeal) but went on to give short reasons. He said he was satisfied that the breach was serious in that the application was made four weeks after the extended date for service and just three weeks before the trial, and was heard on the last working day before trial. He was not satisfied that there was a good reason for the late service of the witness statements because it should have been anticipated that the credibility of Mr Walker, to which the statements went, would be in issue. Enquiries about Mr Walker had been made in June 2016 and there was no satisfactory explanation for the delay between June and October. So far as concerns the overall assessment required at the third stage, he concluded that to allow the evidence in would extend the trial beyond its allotted time (three days) and the trial date would therefore have to be vacated because Mr Warner would not have been available after the third day. He said nothing about whether the court could have accommodated an extra day. He went on to point out that much of the evidence was hearsay or double hearsay, going to the credibility of a witness. He took the view that the additional evidence went almost entirely to a collateral issue and not directly to the signing of the transfer. He acknowledged the “considerable force” in the defendant’s submissions that the evidence would have been inadmissible in any event, though he did not seem to rule on that point. In the circumstances he refused permission to serve the additional witness statements and to call the extra witness.

That decision gives rise to the first of the two appeals in this case. Mr Kokelaar, for the claimant/appellant, acknowledged that this was a case management decision of a kind which an appellate court will be very slow to review (see eg Walbrook Trustee (Jersey) Ltd v Fattal [2008] EWCA Civ 427 at para 33), but said that nonetheless he could demonstrate that the judge had erred. He disputed the proposition that the default was serious simply because the additional evidence had been served four weeks late and just three weeks before the trial was due to start, because the length of delay is not necessarily determinative of the Court's assessment of the seriousness or significance of a breach. He acknowledged that, in many circumstance, the most useful measure of whether a default was serious would be whether it disrupted the conduct of the litigation, but Judge failed to ask himself the right question about that. While it is correct that he acknowledged that the trial would have to be adjourned, that would still have been the case had the witness statements been in on time – the trial would still have taken more than three days, so trial length would have become insufficient. He went on to dispute the proposition that the credibility of Mr Walker had been known to be an issue for some time. It was not until after exchange of witness statements that it became sufficiently apparent to the claimant that Mr Walker was going to be called and give his evidence, so it was only at that point that it became appropriate to seek to put in evidence going to the point. At the third stage of the analysis he said that the judge gave too much emphasis to the need to adjourn the trial. While that was something which had to be taken into account, the potential significance of Mr Walker’s evidence, and the need to be able to test it properly, the existence of a fraud allegation and the potentially substantial amount at stake needed to be put into the balance and should have outweighed the need, where possible, to preserve the trial date. He disputed the proposition that the evidence would have been inadmissible and said that the court would have had a discretion to admit it – see Phipson on Evidence 18^th Edn at para 12-14.

Despite Mr Kokelaar’s interesting arguments, this appeal fails. In my view the judge carried out no misassessment and reached a decision which was well within the realms of decisions which he was entitled to reach. He demonstrated no errors of principle. He was right, in my view, to hold that the application was late, and seriously late, bearing in mind the proximity of the trial. Although technically the application was made as long as three weeks before the trial, it did take four weeks after the service of witness statements before the application was made in the sense of submitting a formal application document. That is a significant time in the circumstances. To make an application which can only be heard the day before the trial is, on any footing, very late and very serious. The potential threat to the trial date makes it all the more serious. Nor do I consider that the judge erred in finding that there was not a good reason for the late service of the statements. While it could not be said with certainty that Mr Walker would be called by the defendant, as Mr Warner pointed out in submissions the claimant must have anticipated it because the claimant had disclosed two judgments against Mr Walker whose only relevance can have been an attack on his credibility. So the claimant saw the point coming. The claimant’s solicitors could have contacted Mr Walker and asked him what evidence he could give on the issues; their subsequent evidence demonstrated that they could ascertain his whereabouts when they needed to. They could then have prepared themselves accordingly.

At the third stage of the relevant test the need to vacate the trial date was a compelling factor. While I personally wonder whether the material would really have taken as long to deal with as was said, it seems to have been common ground at the time that there was a great risk, if not a certainty, of the trial overrunning if the material was allowed in. The judge cannot be blamed for having accepted the parties’ assessment on that. It is no answer to say that the length of the trial would have had to have been extended anyway had the witness statements been put in on time. Had that been done it would become apparent that the trial would have taken longer, and it might have been possible to make arrangements for an extra day to be made available, and if an adjournment of the trial was contemplated, it would have taken place much earlier without such things as the incurring of brief fees and an extra set of anxiety for parties who must, on any footing, find trials a difficult process. It is one thing to decide to vacate a trial date two months in advance; it is another to vacate it on the day before it starts. This was therefore a powerful point.

So far as admissibility is concerned, the judge did not actually base his decision on a positive ruling that the material would not be admissible and it is not necessary therefore for me to deal with that. I agree that there was a prima facie strong case for saying that it was inadmissible as being collateral material going only to the credibility of a witness. However, in this particular case there might have been another analysis which would have allowed it in (where sufficiently probative) in circumstances in which the court is assessing not merely a witness’s credibility, but also the reliability of his business practices. But I do not need to develop that. What can be said in relation to one of the deponents is that on any footing her evidence would have been irrelevant and inadmissible because she merely gave evidence of an as yet unresolved claim against Mr Walker (albeit one going to his probity, to a degree), and her evidence could not be taken to prove anything useful at all.

In the light of the following I find that the judge’s decision did not contain an error of principle, he did not err in his assessment of the significance of the factors which he correctly took into account, and did not omit relevant considerations. I therefore dismiss this appeal.

I would add one additional point under this head, although it is not something that the judge took into account. Even if the evidence would have been inadmissible as positively adduced evidence, it could nonetheless have been put to Mr Walker in the witness box in order to test his credibility. In fact, to a degree, Mr Kokelaar did that at the trial, because he put a couple of judgments to Mr Walker. Mr Walker’s reaction to that cross examination was something that the judge doubtless took into account, as he was entitled to. The existence of the judgments spoke for itself and was not challenged. Mr Kokelaar could have, but did not, put to Mr Walker the context of the judgements, and the fact (which one of his potential witnesses would have said was the case) that Mr Walker had failed to comply with an agreement to pay in instalments. The non-availability of the primary evidence would have meant that he could not have mounted a significant challenge to a response on the part of Mr Walker which did not accord with the evidence which Mr Kokelaar would have wanted to adduce, but the exclusion of the evidence did not deprive Mr Kokelaar of any opportunity to use its thrust in the case. That factor, as well, would have gone into the balance against introducing the evidence which would have led to the vacation of the trial date. At one point in the transcript of the evidence below it looked as though the judge was thinking that such cross-examination should be prevented because he had excluded the late evidence. If he had held that he would probably have been wrong, but the argument seemed to take a different turn and he did not actually so rule.

At the end of the trial, in an unreserved judgment, the judge decided the first main point in the case, namely whether Mr Byrne executed the June 1997 transfer, in favour of Mr Mullan, and held that he had. He did so principally on the basis of accepting Mr Walker’s evidence that he witnessed it. Mr Kokelaar takes the point that the judge's approach to the evidence of the three main witnesses demonstrates that he fell into error in his process of reasoning, so it is necessary to consider the structure and content of the judgment below. The way the judge went about his consideration of the evidence and other material was as follows.

Having set out some background procedural material, the judge set out extracts from the pleadings. At paragraph 13 he concluded that the principal issue which he had to decide was whether Mr Byrne’s signature on the 1997 transfer was forged. Then he set out the claimant’s evidence, partly by way of quoting from his witness statement and correspondence, and partly by way of summary. Then he did the same for Mr Mullan’s evidence. In the course of that he set out and summarised Mr Mullan’s case on the reasons for the transfer, which I have summarised above. Having set out a couple of paragraphs of Mr Mullan’s cross-examination the judge then applied the same technique of quotation and summary to the evidence of Mr Walker. As part of that he referred to Mr Walker’s cross-examination on the prior judgments against him.

There was a joint handwriting expert’s report available to the court. It was inconclusive, as the judge recorded (again by way of quotation) in paragraphs 41 and 42.

At paragraph 43 he turned to his “Findings of fact”. He started by correctly identifying the overall burden of proof as being on the claimant, who bore the burden of proving the central allegation of forgery. Then he set out the enhanced standard of proof applicable to cases of dishonesty, with reference to well-known authorities on the point. Then he embarked on his key findings. It is necessary to quote from his judgment at this point:

“46.

The claimant, Gerald Byrne, gave evidence well. He answered questions in what appears to be a straightforward way. His memory appeared good. There were minor inconsistencies in his evidence, but none which was inconsistent with the passage of time since events. The defendant, Robert Mullan, was less impressive. On occasions he needed time before answering relatively simple questions. He asked for several straightforward questions to be repeated. The inconsistencies in his evidence were greater and potentially of significance when assessing his credibility. On occasions he appeared to hide behind the excuse that he knew nothing about the company’s accounts, although his witness, Mr Walker, described him as ‘the man in the office’. There were also some aspects of his evidence which appeared relatively implausible. For example, Mr Kokelaar submitted that it was improbable that Mr Byrne would agree to give up his share of the land for a debt which was old and unpaid, with no guarantee that it would ever be paid.

47.

However, in this case I am not simply evaluating the evidence of the claimant and the defendant. I must put the evidence of the George Walker into the balance. Although he cannot recall witnessing the disputed transfer, he is adamant that (1) he completed the witness attestation; and (2) he would not have done so, had Gerald Byrne not been present and signed the transfer. It is true that he was company secretary of Acorn Ltd but that company was dissolved many years ago. On the face of it, he is now an independent witness with no interest in this litigation. Mr Kokelaar is right to submit that there is no rule that the evidence of an attesting witness is conclusive…

48.

For me to disbelieve Mr Walker’s evidence, I would have to be satisfied that he is either mistaken or lying. Mr Kokelaar, during cross-examination, but not in his closing speech, inferred that I could not rely on Mr Walker’s evidence because of the two unsatisfied County Court judgements registered against him. Rightly, Mr Kokelaar did not pursue that line in his closing speech. The evidence about the judgment that is, in my judgment, insufficient for me to form the conclusion that Mr Walker’s evidence is unreliable. There is a huge difference between impecuniosity on the one hand and behaviour which would match to the criminal offences of forgery, perjury and perverting the course of justice on the other hand.”

At paragraph 49 the judge set out a submission advanced by Mr Kokelaar in which he suggested that Mr Walker might have persuaded himself 20 years down the line that he would not have attested to the signature of the claimant had the claimant not in fact signed the document. Mr Kokelaar suggested that he might have done so not being as appreciative as a lawyer would be of the reasons why that should not be done, having been assured by the defendant that the signature was Mr Byrne’s. He rejected that submission in paragraph 50:

“50.

Mr Kokelaar may be right in saying that these are possibilities but given the burden of proof, it is for the claimant to satisfy me that it is more likely than not that one of those scenarios actually occurred. The claimant has not discharged that burden. They are mere possibilities or speculation. There is no evidence to support that speculation. Despite the submissions of Mr Kokelaar, I come to the conclusion that I should accept Mr Walker’s evidence. He was adamant that he would not have purported to witness the transfer without Mr Byrne being there.”

He then dealt with a particular submission of Mr Kokelaar in relation to one of the few contemporaneous documents that survives, namely a letter from Mr Betts, and rejected the submission. I refer to the point below. He then dealt with a point that Mr Kokelaar relies on as a separate ground of appeal. It appears that the judge decided to read the witness statements that he had not allowed in, which he said he had done “out of fairness to Mr Byrne”. He said he was satisfied that even if the evidence in those statements been admitted it would not have made any difference to his finding that Mr Byrne signed the transfer. They merely put flesh on the evidence about the unsatisfied money judgements and Mr Walker’s defaults.

For all those reasons he therefore rejected Mr Byrne’s attempt to establish a continuing interest in the land. He did not go on to consider whether Mr Byrne ever had a beneficial interest because he did not consider that it was necessary after his finding that Mr Byrne did sign the transfer.

Mr Kokelaar’s first ground of appeal is essentially that the judge misused his opportunity to assess the credibility of the witnesses and, bearing in mind his approach to the evidence of the principal protagonists and the judge's summing up of it, he reached a conclusion that should not have been reached. Mr Kokelaar starts with the apparent finding that the claimant was a good and reliable witness. He then moves to the finding that the defendant was not. That, logically, is said to mean that the claimant’s evidence ought to have been preferred if there were no further witnesses to the execution of the transfer. However, what the judge did not do was weigh that evidence in any particularly significant way. He basically put it on one side and then decided the case by reference to the evidence of Mr Walker. When it came to Mr Walker the judge was faced with a witness who had no actual recollection of events but could only reconstruct from his general practice. Evidence of that nature ought not to have been treated as sufficient to outweigh the evidence of a witness whom he found apparently credible and reliable, who had a recollection from the time, and was able to say that the events did not happen. Mr Kokelaar accepted the well-established proposition that an appellate court would not interfere with the assessment of the witnesses by a trial judge who had the opportunity of seeing witnesses give evidence, but the judge's logical approach in this case was flawed because he did not properly use his opportunity. He pointed to the duty of a judge to give reasons (English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at paras 15-16) and said that the judge did not explain why he rejected Mr Byrne’s primary evidence in favour of someone who could not remember the actual events. He particularly emphasised the part of the judgement where the judge seemed to find that Mr Mullan’s rationale for the transaction was apparently implausible. If that was the case then the whole basis of the underlying transaction fell away and the judge ought not to have accepted Mr Walker’s evidence.

There are many formulations of the function of an appellate court in relation to a consideration of findings of primary fact. I find the most useful to be the judgement of Ward LJ in Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) 2003 1 WLR 577.

“197.

Bearing these matters in mind, the Appeal Court conducting a review of the trial judge’s decision will not conclude that the decision was wrong simply because it is not the decision the appeal judge would have made had he or she been called upon to make it in the court below. Something more is required than personal unease and something less than perversity has to be established. The best formulation for the ground in between where a range of adverbs may be used – "clearly", "plainly", "blatantly", "palpably" wrong, is an adaptation of what Lord Fraser of Tullybelton said in G v G (Minors: Custody Appeal)   [1985] 1 W.L.R. 642, 652, admittedly dealing with the different task of exercising a discretion. Adopting his approach, I would pose the test for deciding whether a finding of fact was against the evidence to be whether that finding by the trial judge exceeded the generous ambit within which reasonable disagreement about the conclusion to be drawn from the evidence is possible. The difficulty or ease with which that test can be satisfied will depend on the nature of the finding under attack. If the challenge is to the finding of a primary fact, particularly if founded upon an assessment of the credibility of witnesses, then it will be a hard task to overthrow. Where the primary facts are not challenged and the judgment is made from the inferences drawn by the judge from the evidence before him, then the Court of Appeal, which has the power to draw any inference of fact it considers to be justified, may more readily interfere with an evaluation of those facts.”

The main decision in this case involved a decision of primary fact. It depended on the credibility of witnesses. That applied to Mr Walker as a witness as well as the principal protagonists. So far as his credibility is concerned the judge had to assess not whether he was giving accurate evidence about the primary fact from his recollection, but his credibility as a man who told the judge what his general practice was and also gave evidence about the likelihood of his departing from it. That is still a credibility point as to which the trial judge is entitled to form a view, and it is a view which an appellate court will respect. The judge reached a decision in which he found Mr Walker to be credible on the point. He accepted his evidence. He was entitled to do that.

Mr Kokelaar’s complaint is that the judge did not weigh that evidence along with the evidence of the other protagonists and the probabilities of their stories. I think that in essence his submission is that the judge put those on one side and turned to Mr Walker as the sole arbiter of the dispute, not weighing his evidence against that of Mr Byrne and Mr Mullan. I do not think that that is a correct analysis. It is true that the judge did not engage in overtly expressed weighing, but it is clear enough what he considered to be the case. He did not simply put the two protagonists on one side. He must have had their evidence in mind when he turned to that of Mr Walker. All he did in paragraph 46 was express his view as to the respective apparent credibilities of Mr Byrne and Mr Mullan. The fact that he found the former to be a better witness does not necessarily mean that he should accept his evidence on the crucial point, especially since there was an allegation of dishonest conduct on the part of Mr Mullan. Nor did he have to accept the evidence of Mr Byrne because Mr Mullan’s explanation of events had a degree of implausibility. The judge must have found that the implausibility that he referred to was not sufficient to require him to believe the evidence of Mr Byrne, particularly bearing in mind what is required to prove dishonesty allegations. If he did not accept the evidence of one or the other he was entitled to turn to the evidence of Mr Walker and conclude that he did accept his evidence. He was aware of the enhanced burden of proof in a fraud case and doubtless wanted to be able to decide the case on something more than his assessment of the main protagonists if he could, and he did. He expressly discounted the idea that Mr Walker might be lying or mistaken. He was entitled to do that having heard Mr Walker. Mr Byrne is not entitled to say that his evidence of actual recollection trumps the non-recollection evidence of Mr Walker. It could have been that it had greater weight, but the judge discounted that.

It follows that Mr Byrne’s first ground of appeal, founded in a complaint that the judge approached the witness evidence in a flawed way, is not made out.

The second ground of appeal is about burden of proof. Mr Kokelaar accepted that Mr Byrne he bore the burden of proof of establishing the forgery, but said that the trial judge erred in not accepting that Mr Mullan bore the burden of establishing that the Mr Walker witnessed Mr Byrne’s signature. That latter allegation, being a positive averment, was one in respect of which Mr Mullan had the burden of proof. If Mr Mullan had that burden then the trial judge ought to have addressed it and found it was not fulfilled. He complained that the judge had in effect wrongly reversed the burden of proof on that point.

It is true that the judge recognised the main burden of proof lay with Mr Byrne. It is also true that he did not refer to a burden of proof that lay on Mr Mullan to prove that Mr Walker witnessed Mr Byrne's signature. However, in my view he did not have to. While the maxim that “he who asserts must prove” may generally hold good, it does not justify a micro- or fractal approach to each and every fact which each of the parties adduces in evidence in order to get to the big point in the case. In the present case a question-mark arose over the execution of a document. In one sense Mr Mullan bore the first burden in asserting the validity of the document but that initial burden was discharged by his producing a prima facie validly executed document. The burden then shifted to Mr Byrne to demonstrate that the signature was not his. The fact that Mr Mullan chose to defend the claim by relying on the witnessing of Mr Walker does not, in any meaningful way, shift the burden back on to Mr Mullan. If Mr Walker had not been available to give evidence Mr Mullan would still be entitled to rely on evidence of apparent due execution without it being said he had to prove it further. That position is not changed by the fact that Mr Walker gave evidence. Mr Byrne retained the burden of demonstrating a forgery in the circumstances, and he does not escape that burden by the fact that Mr Mullan met his case by seeking to say that he had a witness who would say there was no forgery. I do not think that Mr Kokelaar could make his submission if the evidence came from a non-attesting person present who says that he or she physically witnessed the signature even though they did not formally attest the signature. It makes no difference that the witness is actually an attesting witness.

This second ground of appeal therefore fails.

The third ground turns on the judge’s rejection of part of the detailed case of Mr Kokelaar at trial based on the contents of a letter from Mr Betts. On 2^nd June 1997 Mr Betts wrote to Mr Mullan saying:

“Thank you for returning the forms enclosed with my letter of 21^st May, and for letting me have a cheque for £40 in respect of the Land Registry fee. I believe you did not find time to make an appointment with Carol Montano to sign the deeds that need to be signed here, and I look forward therefore to hearing from you and George Walker to make an appointment for this.”

It is known that two documents which can be described as “forms” were signed at around this time. One was the disputed transfer which was on a Land Registry form 19. The other was a Companies Registry form 395 giving particulars of a mortgage or charge. Both got themselves dated (by Mr Betts) on 5^th June 1997 (or at least that is the date he wrote on them). The latter form was doubtless in connection with a charge over the land given by Acorn Construction in favour of Midland Bank. Mr Kokelaar’s ingenious case, made at trial, was that the “forms” referred to in the letter must have been the Form 19 and the Form 395. If that is right then they must have been sent to Mr Betts prior to June 2^nd for him to be able to write his letter. That means Mr Byrne’s signature must have been placed there before 2^nd June. But Mr Byrne’s evidence was that he in was Ireland from May and until June 2^nd. On that day he picked up a new van that he had just bought in Ireland and drove to the company’s offices in Surrey, arriving in the evening of 2^nd June. He picked up some things there and drove back to Ireland on the 3^rd June. On that chronology he could not have applied his signature to the transfer at the time it must have been applied (before 2^nd June) because he was not there to do it.

This submission was rejected by the judge for various reasons. First, it was dependent on Mr Byrne’s being right about when he arrived at the company’s offices. It is implicit in what he said that he was not minded to accept that evidence. Second, it would have been possible for the transfer to be executed on 2^nd June (when Mr Byrne was, on his own evidence, there) and delivered by hand to Mr Betts who might have been working late on that day and able to respond immediately. Third, the judge was not satisfied that one of the forms in that letter was indeed the Form 19, which it would have to be for Mr Kokelaar’s point to work. Mr Kokelaar submitted that these were not good reasons for rejecting his analysis.

Mr Kokelaar has a point, to a degree. The idea that the forms would have been delivered to Mr Betts by hand and that Mr Betts would have been working late, and used that opportunity to reply immediately, is not a very appealing one in the circumstances. The timescale is too compressed. The judge’s reluctance to accept that the Form 19 was one of the forms might also be questionable. It is not clear what other forms (in the plural) might have been with that letter. More than one form was returned with it, and others had to be executed at the solicitors’ office later. The Form 19 and Form 395 were not forms which fell into that category; it may be that other documents (such as the pending mortgage to Midland Bank) did. The idea that one of the forms was an executed Form 19 is enhanced by the fact that the fee referred to (£40) would be the land registration fee applicable to the registration of the transfer (a fact which only emerged on the appeal after I raised the point – it did not emerge at the trial). One factor detracting from the possible force of that is that the same fee would have applied to the grant of the mortgage, which makes it possible that the fee was mortgage-related and not transfer-related, though for my part I would tend to doubt that (for what that is worth). However, that leaves the fact that in the end the point is dependent on the accuracy of Mr Byrne’s evidence that he was in Ireland until 2^nd June, and did not get to the company’s offices until the evening. No reason is given as to why Mr Byrne was able to be so clear about that date almost 20 years later. He says it was the date when he picked up a new van, but that still does not explain how he was able to remember the date. That is an odd recollection to have. The judge apparently did not necessarily accept that detailed piece of evidence, and he was entitled to reach that view. Without it the point does not work.

In the circumstances, although parts of the judge’s rationale for not accepting the point do not stand close scrutiny, and other points can be made in favour of the point, it still fails at a crucial point which depends on a witness’s credibility and which the judge apparently did not accept. In my view this means that the judge’s rejection of the point can still stand, and should do so.

The third ground of appeal therefore fails.

The fourth ground is a curious one. It turns on the judge’s indication that despite having disallowed the evidence about Mr Walker’s financial background, he nonetheless revisited it and concluded that it did not cause him to change his mind. Mr Kokelaar said that this was a procedural irregularity which vitiated the overall decision. If the judge was going to consider this material then he should have invited submissions on it, during the course of which Mr Kokelaar could have made various points supporting his reliance on it. The judge’s summary of the evidence contained a mischaracterisation of it, and it was wrong for the judge to take it into account without Mr Kokelaar’s having had an opportunity to cross-examine Mr Walker on it.

This ground fails at a number of points. First, it is right that the judge ought not to have taken the course he did. Having excluded the evidence he ought not to have considered it. However, that is hardly a point for the claimant to take. What the judge did would be likely to work to the claimant’s advantage, not disadvantage. It was untested by cross-examination, and would therefore have had greater force, and one would have thought that it would have been the defendant who would have complained about that (though since he won he did not have to). Mr Kokelaar was not deprived of the opportunity to put the material to witnesses in cross-examination. As observed above, he could have put it all to Mr Walker even though it was not admitted as evidence, albeit without being able to deploy it as rebutting evidence. In fact, again as observed above, he did put some of it to Mr Walker, though not all aspects of it. I wondered whether Mr Kokelaar could complain that he was not allowed by the judge to put all of it, but having considered the transcript carefully I consider that, although the judge was discouraging, it does not appear that Mr Kokelaar pursued his right to put all the material to a degree which generated a ruling which might have been challenged.

Accordingly, Mr Kokelaar’s complaint is that the judge considered evidence which Mr Kokelaar had wanted him to consider, and considered it in circumstances in which it was apparently taken at face value by the judge. That is an odd complaint for Mr Kokelaar to make, and it is not a good ground of appeal because it could only have enhanced, not diminished, his chances of success.

This fourth ground of appeal therefore also fails.

All grounds of appeal having failed, it follows that both appeals must be dismissed.