Mohamed Razeem v Vibhutiben Desai

“… the lease of newsline 115 Week Street, Maidstone, Kent ME14 1RB to the Tenant be cancelled and returned to the Landlord.” [sic]

“No further steps were taken towards completion of a new Lease until September 2014 when the Defendant’s Solicitors sent the Claimant a draft lease for a term of five years. The Claimant reminded the Defendant of his agreement to grant a 15 year term but the defendant said that the Claimant could have a five year term or give up occupation of the Property. The Claimant agreed to give up occupation and the parties entered into a written agreement on the 1st December 2014.”

“Around October, 2014 Claimant’s husband was charged for child sex offence and then the Claimant gave up occupation on November 2014. [sic]

Shortly after the written lease had been signed by the Parties, [Mrs Desai] acting by her husband approached [Mr Razeem] in November 2014 with the news that due to her husband being charged with a criminal offence she wished to sell the “Newsline” business and give premature notice under the written lease she had signed.”

On 16 May 2017 HHJ Simpkiss refused permission to appeal against the orders dated 13 September and 31 October 2016. Both applications were declared to be totally without merit.

Mr Razeem then brought proceedings for judicial review against the County Court at Maidstone challenging HHJ Simpkiss’ decision. On 16 October 2017 permission to apply for judicial review was refused by Nicholas Vineall QC sitting as a Deputy High Court Judge. On 23 November 2017 the renewed application for permission to apply for judicial review was refused by Mr Jonathan Swift QC sitting as a Deputy High Court Judge.

On 5 December 2017 DJ Venn made an order dismissing Mr Razeem’s application to set aside a bankruptcy demand based upon three judgments obtained by Mrs Desai. He was refused permission to appeal by Henry Carr J on 12 April 2018.

On 12 September 2017 Mr Razeem issued proceedings in the County Court at Medway (claim number D46YM113) against Mrs Desai claiming rent of £15,725 for the period between November 2012 and November 2014 and £88,000 for the unpaid leasehold price. That claim was struck out by DJ Eyley on 16 April 2018.

On 2 July 2018 HHJ Simpkiss made a civil restraint order against Mr Razeem preventing him from issuing claims or making applications in any County Court relating to the subject matter of the proceedings before the court. The order remained in effect until 7 June 2020.

On 12 April 2019 HHJ Sullivan made an order, the terms of which are uncertain. However, on 2 May 2019 Mr Razeem applied to set aside the order. The application relied upon evidence from Forensic Services India to suggest that Mrs Desai had forged documents in the claim that was tried by DJ Sullivan in 2016. Mr Razeem asserted that the judgment was unfounded.

On 11 July 2019 HHJ Simpkiss struck out the application dated 2 May 2019 declaring it to be totally without merit. The judge recorded in the order that the report from Forensic Services India did not comply with the CPR and was inadmissible. He also noted that the report merely referred to the similarity between samples of Mrs Desai’s signature and the signature on the documents said to have been forged.

On the same date HHJ Simpkiss dismissed an application by Mr Razeem dated 15 June 2019 and declared it to be totally without merit.

On 15 July 2019 Mr Razeem applied to set aside the orders made by HHJ Simkiss on 11 July 2019. The application was supported by a witness statement made by him. In the witness statement he made numerous allegations against Mrs Desai of forgery and falsehoods relating to the trial before DJ Sullivan in September and October 2016. He relied upon four reports from Forensic Services India seeking to demonstrate his case that Mrs Desai had forged documents. He also alleged that Mr Desai had given perjured evidence to the court. At some stage the application dated 15 July 2019 was struck out.

On 4 February 2020 HHJ Simpkiss made a further civil restraint order for a period until 3 February 2022. The order was made of the court’s own volition and was based upon Mr Razeem having made applications on 2 May 2019 and 15 July 2019 that were struck out as being totally without merit and that the applications had been made without permission. (There is an error in the order which cannot be resolved. It refers to an order striking out on 2 July 2019 an application made on 15 July 2019)).

On 17 February 2020 Mr Razeem applied to set aside the order dated 4 February 2020. On this occasion Mr Razeem had instructed solicitors and a witness statement from Kumarlo Menns was filed in support of the application. Again, evidence from Forensic Services India was relied upon together with a report from Mr Paul Craddock, a handwriting examiner. Mr Razeem was seeking to establish that Mrs Desai had signed the five year lease of the shop, that documents had been forged and that there were discrepancies in some of the ledgers relied upon by Mrs Desai. It is not clear whether this application has been dealt with.

On an unknown date the application was dismissed by DJ Johns QC on the basis that it lacked any merit. The order records his reasons for dismissal as including that “b) the material now relied upon is insufficient to show that the judgments were obtained by and,”. [sic] From the context and the background to the application, the missing word is almost certainly “fraud”.

On 7 July 2020 DJ Whitfield entered judgment against Mr Razeem in favour of Mrs Desai for £76,000 plus interest. It appears that the court was aware of the bankruptcy.

On 1 March 2022 Mr Razeem applied to set aside the judgment entered by DJ Sullivan on 31 October 2016 on the ground that it was obtained by fraud.

On 2 February 2023 HHJ Parker sitting in the County Court at Maidstone made an order of the court’s own volition. The order sets out a review of the various claims affecting Mr Razeem and Mrs Desai. It required the parties to state the position in relation to a number of applications. Importantly, the parties were required to (a) explain how a claim against Mr Razeem could be pursued following his bankruptcy and (b) to state in relation to Mr Razeem’s application dated 1 March 2022:

HHJ Parker provided a note to all the relevant parties dated 24 April 2023 and on the same date, having considered Mr Razeem’s response, the application dated 1 March 2022 was struck out.

The main target of these proceedings is the judgment of 31 October 2016 … although if that judgment is set aside on the ground that it was obtained by fraud it would have a knock-on effect on the other judgments …”.

What C did not know at the time and what was not disclosed to the court was the true reason why D sold back “Newsline” and that made the sale price of £88,000.00 exclusive of stock highly improbable.

It was not because the parties fell out for the reasons set out in paragraphs 1 and 2 of D’s particulars of claim dated 13 February 2015 ….

The falling out was not because D was offered a 5-year lease instead of a supposed 15-year lease that had been promised in 2012 and for which D claimed she had paid £88,000. In fact, D had signed the 5-year lease … on 20 October 2014.

D and her husband were not given the choice of the 5-year lease or to give up occupation and chose to give up occupation as D claimed in her particulars of claim but rather gave up the business because in about the middle of November 2014 the husband was convicted of a serious sexual offence on a child on the premises of “Newsline” that made operating it as a corner shop untenable.

C discovered the true reason on 11 April 2018 when his attention was drawn to an old newspaper report from the Kent Messenger that in about the middle of November 2014, after they had signed the 5-year lease, D’s husband was convicted of a sexual offence against a minor committed on the “Newsline” premises … for which he was sentenced 14 months imprisonment suspended for two years with supervision, 200hrs unpaid work and for his name to appear on the Sex Offenders Register.

D failed to disclose that her husband who ran the shop had been convicted of a sexual offence on a child on the shop’s premises which was adverse documentary evidence that should have been disclosed because it was relevant and admissible to show inter alia that D and her husband could no longer operate the shop as the true reason for the sale-back rather than the false claim that they had paid £88,000 on the promise of a 15-year lease as they claimed.

C is also now in a position to prove by expert evidence and by the production of a chronology attached to statement of truth made by D on 4 October 2020 … that her denial, that she had agreed a 5-year lease was a forgery, as was her pleaded case, and that she had paid £88,000 pursuant to an earlier agreement for a 15-year lease, was untrue.

D failed to disclose her husband’s conviction the effect of which was highly material to the court’s evaluation of the probability of a sale-back as high as £88,000.

The high cost of the sale back was dealt with by the judge at paragraph 74 as follows “it seems odd that the sale price exclusive of stock was so much higher than the previous sale price, but here may be very many reasons for that and, as I say, it was not explored in evidence, and it is not for this court to speculate.”

That was a conclusion the judge would not have reached had she known of the conviction of the husband for a sexual assault on a child on the shop’s premises a month prior to the sale-back, given the nature of the offence and the local publicity. Such knowledge would also have given much credence to C’s claim that the £88,000 was inclusive of £78,468.38 for stock.

Furthermore, D fraudulently failed to inform C of the conviction which must have taken place around the middle of November 2018 [sic], contrary to the obligation contained in paragraph 7.7.7 of the 5-yeear lease which had been signed by D and was at the time in effect.” [the year is clearly intended to be 2014]

Mrs Desai had signed the 5-year lease, despite her alleged assertion to the contrary and that was the lease she was returning, not a 15-year lease. [Paragraphs 24 and 37]

Mrs Desai misled the court when saying that her signature on the 5-year lease was a forgery. [Paragraph 35,36,37,39,40 and 41]

Mrs Desai lied to the court when she said she paid £88,000 for the business including a 15-year lease. [Paragraph 26,32,39,40,42 and 47]

Mrs Desai denied that she had signed the Memorandum of Sale in 2012. [Paragraphs 44,45 and 46]

A handwritten record of payments submitted by Mrs Desai’s husband comprising £51,099 paid to MR Multibusiness Limited to support the claim for £88,000 was fraudulently tampered with by him. [Paragraph 27]

The stock taking notes that formed the basis of the agreed price for stock were fraudulent and Mr Desai gave false evidence about them. [Paragraphs 61 and 62]

Although it is right that Mrs Desai’s particulars of claim in claim no B37YJ287, tried by DJ Sullivan in 2016 assert that under the 2012 agreement she was to receive a 15 year lease, the failure to grant such a lease it not a matter of any significance in the judgment. All the District Judge says is:

Following on from November 2012, the parties entered into further negotiations in relation to a lease of the premises at Week Street but they were unable to agree on the terms of a formal lease of the premises and, at some stage during the latter part of 2014, further negotiations took place between the parties and in December 2014 in effect [Mrs Desai] sold the business back to [Mr Razeem].” The District Judge does not make any finding about whether Mrs Desai signed a lease for five years. And there is no mention of Mrs Desai denying that she had signed a lease. As I have mentioned already, there was no dispute about there being a lease in some form, hence paragraph 1 of the agreement made in 2014.

The District Judge observes that the terms of the 2012 agreement were not material to her decision. She did not make any findings of fact about the 2012 agreement because it was not necessary for her to do so. The issue she tried concerned solely the terms of the 2014 agreement: did the price agreed include or exclude stock.

The key assertion upon which the 2023 claim is based, that Mrs Desai failed to reveal her husband’s conviction, is impossible to reconcile with the case previously put forward by Mr Razeem. Mr Razeem was able to say in his counterclaim that Mr Desai told him in October 2014 that he had been charged with a child sex offence. The date is put at November 2014 in the amended counterclaim and the charge is merely stated to be “a criminal offence”. The difference between being charged and being convicted is clearly significant but on any view Mr Razeem’s case as it pleaded in paragraph 16 of his particulars of claim in the 2023 claim is unsustainable. Mr Razeem was aware as a minimum of Mr Desai being charged well before the 2014 agreement was entered into, let alone before the trial at which it is said that Mrs Desai deceived Mr Razeem.

“The cause of action to set aside a judgment in earlier proceedings for fraud is independent of the cause of action asserted in the earlier proceedings. It relates to the conduct of the earlier proceedings, and not to the underlying dispute. There can therefore be no question of cause of action estoppel. Nor can there be any question of issue estoppel, because the basis of the action is that the decision of the issue in the earlier proceedings is vitiated by the fraud and cannot bind the parties: Director of Public Prosecutions v Humphrys [1977] AC 1, 21 (Viscount Dilhorne). If the claimant establishes his right to have the earlier judgment set aside, it will be of no further legal relevance qua judgment. It follows that res judicata cannot therefore arise in either of its classic forms.”

"The principles are, briefly: first, there has to be a 'conscious and deliberate dishonesty' in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be 'material'. 'Material' means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court's decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence."

“In modern terms, we can perhaps regard the action to set aside a judgment for fraud as akin to an action for deceit. The only significant differences are that the court, rather than the opposing party to the first action, has to be shown to have been deceived, deliberate dishonesty is required, and materiality rather than simple reliance must be shown. If the elements are made out (misrepresentation or misleading conduct, made or undertaken fraudulently, with reliance for deceit and materiality for an action to set aside a judgment), the contract or the judgment can be rescinded or set aside.”

“However, the requirement of materiality does not extend to the second court having to re-try the question of the liability of the parties or to see whether the fresh evidence or new facts are material to the final result in the sense of influencing what the decision would be if the matter were to be retried with honest evidence; indeed the second court should not undertake such an exercise. The purpose of a second action to set aside an earlier judgment is to take the parties back to the position as it was before the trial so that a new trial on honest evidence can then take place. Nonetheless, in practice it will be difficult for a judge in deciding the question of materiality not to trespass at least to some extent on to such matters.”

“the claimant has taken steps in relation to his assets that would make it difficult to enforce an order for costs against him.”

Mr Razeem asserts that the Kent Messenger Maidstone reported the conviction and sentence on 14 November 2014 and Mr Razeem relies upon an extract from the newspaper bearing that date. It is reasonable to infer that the conviction occurred shortly before that date. Mr Razeem’s case in his counterclaim in claim C1Q23Y2Q is that he was told about the charge in either October or November 2014.

The fact that Mr Desai told Mr Razeem about the charge takes the sting out of the allegation of fraud. Even if it were assumed in favour of Mr Razeem that he only knew of the charge and not the conviction, he knew about it well before reaching agreement with Mrs Desai for the sale-back and nearly two years prior to the trial before DJ Sullivan in 2016. It would have been easy for him to have enquired information about a conviction, which is a matter of public record. It is impossible for Mr Razeem to show conscious and deliberate dishonesty.

Mr Razeem alleges that Mrs Desai signed a five year lease, that she was wrong to claim she was entitled under the 2012 agreement to a 15 year lease. At the trial, nothing turned on whether Mrs Desai signed a lease for five years. They agreed in writing to surrender the lease and there was no material dispute at the trial about this term of the 2014 agreement. It does not form part of the judge’s review of the evidence or her decision making process.

Mr Razeem says Mrs Desai asserted that her signature on the lease was a forgery. This point is not mentioned in the judgment and was irrelevant to the decision the judge had to make which concerned only whether the agreed figure of £88,000 included or excluded stock.

Mr Razeem asserts that Mrs Desai was wrong to say that the original agreement made in 2012 included an entitlement to a 15 year lease. The judge made it clear that she did not consider the terms of the 2012 agreement to be relevant to the issue she had to decide (paragraph 62 of the judgment). Furthermore, the main terms of the 2014 agreement were not in dispute and they included the surrender of whatever lease was in place. Mrs Desai did not pursue a claim for breach of the 2012 agreement. It is therefore unsurprising that her entitlement or otherwise to a 15 year lease does not feature in the judgment.

Mr Razeem says that Mrs Desai denied that she signed the memorandum of sale. This was not a pleaded issue and moreover the judge referred to the memorandum of sale at paragraph 7 of her judgment which was in the trial bundle. If it were the case that there was a dispute about signature of the memorandum, a point that is not mentioned in the judgment, nothing turned on it.

Mr Razeem alleges that a handwritten record of payments comprising £51,099 paid to MR Multibusiness Limited was tampered with to support the claim of payment of £88,000 for a 15 year lease. This allegation lacks basic coherence. It is not disputed that the 2012 Memorandum recorded the purchase price at £51,099 and that the sale back price in 2014 is recorded in the written agreement as being £88,000. The allegation, such as it is, does not go to any part of the dispute before the court in 2014.

The stock taking note were fraudulent. This was an allegation expressly made at the trial in 2014 and dealt with in paragraphs 32 to 35. The judge records that Mr Razeem asserted the stock notes dated 15 and 17 December 2014 were fabricated. This contradicted what Mr Razeem said in his statement. He then provided further new evidence at the trial saying the stock notes which he had prepared had been removed by Mrs Desai. Mr Razeem’s willingness to change his case at the trial, and the fact that the judge gave his allegations careful consideration, renders the case he now wishes to put forward to be hopeless. He is unable to make out for the purpose of his pleaded case the three essential elements of the cause of action.