Papiss Demba Cissé v Sandra Diene & Anor

On 4 July 2024, I gave judgment for the Claimant, Mr Cissé. In doing so, I determined that he was entitled to an order for the taking of an account in respect of the transactions listed in the three schedules to his Amended Particulars of Claim. By an order dated 15 July 2024, I made directions for the taking of accounts.

At a hearing before HHJ Pearce on 14 February this year, the accounts were separately denoted as the First, Second and Third accounts. At the end of the hearing, HHJ Pearce made an order recording that the Second Defendant, Mr Diene, has admitted liability in the sums of £172,161.10, £96,646.44 and £65,639 on each account respectively. He then gave judgment for Mr Cissé in the sum of £334,496.54 and, in doing so, confirmed that no further account was required in respect of the Second and Third Accounts.

There has been no appeal from HHJ Pearce's order. However, the case was listed for trial in respect of the amounts which remained in dispute in relation to the First Account only. This is before me now. I shall now give judgment.

Mr Richard Stubbs of counsel appears for Mr Cissé, Mr Ahmed of counsel appears for Mr Diene. None of the parties have given oral evidence in court. At this stage of the proceedings, Mr Diene does not attend court. Mr Cissé is in attendance but there has been no cross examination.

To understand the issues properly, it is necessary to start with my original judgment. In Paragraphs 6 to 32 of the Judgment, I made some observations about the factual background. Counsel have each made submissions in relation to Paragraph 10. It is as follows.

In Paragraph 152, I summarised the essential elements of Mr Cissé's claim for an account in respect of the transactions on his bank accounts. Mr Cissé appointed Mr Diene to act as his non-exclusive agent in early 2012 with responsibility for managing his financial affairs in the UK and Senegal, and gave Mr Diene access to and control of all his bank accounts. Mr Diene was provided with access via online banking or a debit card to Mr Cissé's bank accounts with Barclays (a/c no. 80510165), Coutts (a/c 09201988) and Investec (a/c no. 9399503). It is alleged that, without Mr Cissé's knowledge or approval, Mr Diene opened in Mr Cissé's name an additional bank account with Coutts (a/c no 03546942), which was designated in the Amended Particulars of Claim as "the Secret Coutts Account", and Mr Diene exploited his office as agent to apply or transfer for his own personal benefit substantial sums of money credited to each of the bank accounts. This included the sum of £489,986 in respect of monies transferred from Mr Cissé's Barclays account, the sum of £1,189,118 in respect of withdrawals from Mr Cissé's Barclays Bank account and the sum of £316,281.50 paid or applied from Mr Cissé's Coutts account (a/c no 09201988). It was also part of Mr Cissé's case that he asked Mr Diene to render an account but Mr Diene declined to do so.

Mr Diene denied that he was ever appointed to act as Mr Cissé's non-exclusive agent but accepted that he was appointed more generally to act as his agent and to do so for remuneration. He also accepted that he was provided with access to some of Mr Diene's bank accounts, including the Barclays account (a/c no. 80510165), Coutts (a/c no. 09201988) and Investec (a/c no. 9399503), but he put Mr Cissé to proof in relation to the so-called secret account (a/c no. 0354692).

At paragraphs 157 to 158 of my judgment I said this:

For the record, Mr Diene still has not provided disclosure of his bank statements.

I then said as follows.

At paragraph 162 I referred to the nature of Mr Diene's obligations as a fiduciary and the guidance of Bristol and West Building Society v Mothew [1996] EWCA Civ 533. I observed that, if a fiduciary does hold assets on trust for his principal and mixes the trust assets with his own, the onus is on the trustee to distinguish the separate assets and, to the extent he fails to do so, they belong to the trust. I also referred to the proposition that an agent is under a duty to keep accurate accounts and to be ready to produce them to the principal at any time. If he fails to do so, everything is presumed against him, and for that proposition I referred to Bowstead and Reynolds on Agency, citing the well-established historic judgments in Chedworth v Edwards (1802) 8 Ves 46, Pearse v Green (1819) 1 J&W 135 and Gray v Haig (1855) 20 Beav 219.

At paragraph 164, I reached the following conclusion.

I concluded by observing that:

When giving judgment, I thus determined that the essential elements of Mr Cissé's accounts claim had been properly established, including his appointment as an agent and in that capacity, his access to Mr Cissé's bank accounts and control of the transactions on such accounts. I also concluded that, through his appointment as Mr Cissé's agent, that Mr Diene had been afforded the opportunity to set up the so-called secret account. I was satisfied that, as Mr Cissé's agent, Mr Diene owed him the duties of a fiduciary including a duty to hold Mr Cissé's assets, including the proceeds of the bank accounts, on trust for him, to keep accurate accounts and to produce them to Mr Cissé at any time and indeed to handle the trust assets for Mr Cissé's benefit. I was also satisfied that, in breach of his duties to Mr Cissé, Mr Diene had failed to provide him with accounts when requested, failed to provide a proper explanation for the transactions on his bank accounts when they were under his (Mr Diene's) control, and I concluded that there was reason to suggest he had entered into the transactions without Mr Cissé's authority. However, in directing the taking of accounts, I observed that it remained open to Mr Diene, when such accounts were taken, to advance a case - it would have to be an evidence-based case - that the transactions were made for Mr Cissé's benefit or with his knowledge and approval.

Mr Cissé has identified the bank accounts and demonstrated with reference to the bank statements a series of transactions for which Mr Diene has not until now provided a proper explanation. These are itemised in the Scott schedule from pages 40 to 52. Mr Cissé's claim in respect of some of the transactions is no longer pursued. This includes items 33, 38, 40 to 45, 99 to 102, 268, 271, 432, 727, 942 and 1048 to 1050, for which Mr Diene has been given the benefit of the doubt. Mr Cissé's claim in respect of items 1418 and 149 is no longer pursued on the basis that - perhaps fortuitously from Mr Diene's perspective - they are not comprehended by the claim.

Consistently with the judgment of the Master of the Rolls, Sir John Romilly, in Gray v Haig (supra), the editors of Bowstead and Reynolds on Agency observe that, if an agent fails to keep and preserve proper accounts, everything is presumed against the agent. No doubt, the scope and application of this proposition depends, in part, on the overall context. However, there can be few, if any, qualifying features in the present case based on the overall circumstances and the conclusions I have already reached in my original judgment. It is for Mr Diene to show that the relevant transactions were made with Mr Cissé's knowledge, approval or benefit or more generally to show that he has a defence to the essential elements of Mr Cissé's case. At the very least he was and is under a duty to adduce evidence to show that there is reason to suggest that he has such a defence. He has not done so.

To understand this properly, it is necessary to start with my directions on 15 July 2024, to which I was taken by counsel.

Paragraph 4 required Mr Cissé to serve on Mr Diene by 4pm on 5 August a Scott Schedule in Excel format by 4.00 pm. The Scott Schedule provided for him to list a series of itemised transactions to enable for Mr Diene "to provide accounts in relation to (1) the three schedules to the Amended Particulars of Claim, (2) all the sums paid from the following bank accounts in the name of Mr Cissé between July 2013 and March 2019, namely the Barclays a/c no. 80510165, Coutts a/c nos. 09201988 and 03546942, Investec a/c no. 9399503, and (3) an account of the income, rents and profits received by the defendants from Apartment 3, Riverside Lodge, 208 Palatine Road, Manchester.

Mr Diene was required to respond by serving on Mr Cissé by 4.00 pm on 14 October 2024 an updated version of the Scott Schedule with his response to each itemised together with supporting documentation (if so available) and a witness statement verifying his responses. He was to specify in respect of each transaction in the First Account the recipient of the payment, the purpose for which the payment was made, whether it was alleged that the payment was made for the benefit of Mr Cissé and whether it is alleged Mr Cissé's consent to the payment was obtained and, if so, the date upon which consent was sought, the method by which it was sought, the date on which consent was given and the method by which consent was given. It was then provided for Mr Cissé to provide a witness statement in response to the Scott schedule and an electronic bundle of documents.

Mr Diene, failed to comply, within the time provided, for him to serve an updated version of the Scott schedule. However, on his behalf, there was an application for relief from sanction. By an order on 31 October 2024, I gave Mr Diene relief subject to an unless order providing that in the absence of compliance, he would be barred from making further submissions. He was required to comply with the original directions on or before 4.00 pm on 16 December.

Mr Diene then filed a witness statement in response. He also sought to make entries on the Scott Schedule. However, these were uninformative and lacking in detail. In the column requiring him to describe the evidence in support of his case, his entry for each transaction was “no evidence” and, in the column requiring him to state the date consent was requested and method of request, date of consent and method, oral consent was provided, his entry was generally limited to two words only, namely "oral instruction".

The witness statement itself was laconic. Under the heading, "First Account" under Paragraph 4, he confirmed that that he had served on the Claimant a completed Excel spreadsheet and stated as follows.

There are similar observations in relation to the Second and Third Accounts.

On its face, Mr Diene made entries in the columns required for completion in the Scott Schedule, but he has not provided detailed particulars of his case in sufficient detail to enable Mr Cissé or indeed the Court, to understand his case properly and he has not provided any substantial documentation.

On Mr Diene’s behalf, there was a belated attempt yesterday to file some additional evidence but, again, this was limited. It was also provided well outside the timescale originally required. For the most part, I dismissed Mr Diene’s application to put in such evidence in. As matters stand, Mr Diene has made two short statements which do not provide detailed particulars nor provide a satisfactory explanation for each of the transactions. He has not attended to give evidence at the hearing.

In my judgment, Mr Diene bears the persuasive burden and, if not, there is at the very least an initial evidential burden on him to show or suggest that the transactions were made or might have been made with Mr Cissé's knowledge, approval or benefit or that for some other reason he has a good defence to the claim. He has failed to do any such thing.

In his submissions for Mr Diene, Mr Ahmed has identified, from the bank statements, a series of transactions in which Mr Diene himself and third parties made payments into Mr Cissé's account. These include payments for Mr Thompson or the company of which he is a director, Mr Mané, Mr Hadji, Mr Jibouli and Mr Hamble. However, without explanatory evidence, I cannot infer that Mr Diene should be credited with such payments nor indeed can I infer that any payments that might have been made via Mr Diene were with his monies, not Mr Cissé's, nor indeed that Mr Diene might otherwise be entitled to credit for those transactions. On his case, Mr Diene has caused or allowed his monies to be mixed with Mr Cissé's monies but he has failed to adduce evidence to show that he was the original source of the funds or that he is entitled to credit for any quantifiable amount that may have been introduced to the bank accounts. Nor indeed has Mr Diene put in any explanatory evidence to support the case ingeniously advanced by Mr Ahmed in relation to cash payments or withdrawals or card payments and the putative payments to Mr Cissé's brother. More generally, as matters stand, no proper or satisfactory explanation for the disputed transactions has been given at a time in which Mr Diene had full access to the bank accounts and they were effectively under Mr Diene's control.

In these circumstances I shall allow Mr Cissé's residual claim on the accounts in full. He is entitled to judgment in the sum of £1,283,786 after discounting the transactions to which I referred earlier, which are no longer pursued. I shall give judgment in this amount.