Buwule v Nationwide Building Society

This matter comes before the Court on the appellant’s application for an oral renewal of his application for permission to appeal and his application for a stay of execution, both of which were refused on the papers by Steyn J in her order dated 28 February 2025. The appellant was the claimant below, and the respondent to the appeal was the defendant. Following a trial which took place in Central London County Court before HHJ Roberts over two days on 9 and 10 April 2024, the appellant’s claim against the respondent was dismissed, and the appellant was ordered to pay £60,000 on account of costs by 5pm on 21 June 2024, pending a detailed assessment.

The judgment was handed down on 17 May 2024 and the order sealed on 4 June 2024. After the conclusion of the hearing, but before the judgment was handed down, on 19 April 2024, the appellant applied to admit fresh evidence. The application was considered at a hearing on 17 May 2024 and was refused for the reasons set out in the judgment, and declared to be totally without merit. The appellant was ordered to pay the respondent’s costs of defending the fresh evidence application, which was summarily assessed in the sum of £15,000 payable by 5pm on 21 June 2024.

A stay of execution was sought on grounds that the appellant could not afford to pay costs of £75,000 without taking out a loan, which would cost him additional money in terms of interest payments and charges.If his appeal is successful he will have incurred unnecessary additional costs and on the basis of his confidence in the outcome of his appeal, he considered a stay of execution should be granted so that he will not be out of pocket ultimately, following the conclusion of the appeal.

The appeal grounds are wide-ranging and discursive and somewhat overlapping, but fall under three convenient headings. The first is that the judge lacked competence. It is said that the case concerned grave allegations of fraud which were legally complex and that the judge had insufficient knowledge of the Data Protection Act 1988 and GDPR data control obligations. The judge had demonstrated his lack of grasp of the material law and the facts by some of his questions during the course of the hearing. He relied too on the changes that the judge made in the judgment from the draft sent to the parties for corrections to the final judgment which also demonstrated his lack of competence. Three matters were relied on in this regard: that adverse inferences about Yahoo were removed when the respondent to the appeal had abandoned the allegations of deliberate name misspelling, the extensive corrections required in the judgment, and significant factual and legal errors. It was also said that the judge, in asking of both counsel questions concerning the law and the facts,during the course of the hearing, demonstrated insufficient expertise on the part of the judge.

The second broad heading in the of grounds of appeal concerns an allegation of bias, insufficient reasoning and unfair conduct against the judge. Here, the central thrust of the criticism is the interventions of the judge during the course of the hearing. It was said that he took over cross-examination and he interrupted counsel. He mirrored the respondent’s arguments and went beyond mere clarification, but instead, advanced the respondent’s case and descended into the arena. He is accused of having pre-judged the applicant and repeatedly questioned his honesty and he is accused of dismissing key evidence without scrutiny and selectively citing the evidence to reach biased findings of fact.

The third area of criticism is of the respondent, who is said to have made misrepresentations, failed to have provided admissible evidence, advanced evidence that was not admissible and had misused the court procedure.

At the trial, the respondent’s case centred on an allegation that the appellant had committed mortgage fraud by failing to declare a County Court judgment when making a mortgage application in April 2016. At the end of the hearing the judge had reserved his judgment, but before he had completed his judgment the appellant applied to admit fresh evidence from his mortgage broker, to the effect that there was no question about County Court judgments contained in the mortgage application, and the procedure was that the respondent would, instead, rely on its own credit checks. The appellant was concerned that his original mortgage application had not been produced by the respondent, which, he said, breached the respondent’s own obligations under the National SIRA rules, which required retention of evidence of supporting fraud markers. Instead, the respondent relied on fourth-generation duplication documents of mortgage applications three weeks before trial. This hindered the appellant, and the judge failed to scrutinise the documents’ reliability, and it was therefore necessary for the appellant to be able to rely on the mortgage broker evidence, which he sought to do.

For the reasons set out in the judgment on the fresh evidence application, the judge rejected the submissions. The reasons for refusing the appellant’s application to admit fresh evidence were set out in the judgment. The appellant’s counsel at the hearing before HHJ Roberts accepted that the evidence was available and would be available before the trial, which is the central and crucial factor in determining whether or not to allow fresh evidence. It would substantially impact on the proceedings, and for the reasons that he set out, he exercised his discretion to refuse the application.

He concluded that it the documents were admitted it could not be dealt with on written submissions but would require an entire rehearing. The trial would have to be reopened. He was satisfied that he had sufficient evidence and had been able to reach correct findings of fact on the evidence before him at the trial, and he had grave concerns about the accuracy and reliability of the documents now sought to be relied on. He noted that there was no witness statement with the statement of truth from the broker said to have made the application on behalf of the claimant, Mr Alex Main, and, for the other evidence sought to be adduced, that of Phil Clarkson, again, there was no CPR compliant witness statement from the proposed witness and there was no hearsay notice either, and he found the statement to be brief and did not purport to be a statement about the position when the mortgage application was made in 2016. It would be neither just nor proportionate to grant relief from sanction and admit the application for fresh evidence. They were cogent and convincing reasons that fully explain why the judge concluded that the application must not only fail but was an application that was totally without merit.

It is worth going back to the outline chronology, the findings of fact and the issues in the case, better to understand if there have been the errors of law and fact, procedural impropriety and bias as alleged by the appellant. The background to the claim is that on 1 April 2016, an application was made for a mortgage agreement with TMW, which is a subsidiary of the Nationwide Building Society, which specialises in buy-to-let mortgages. The appellant was a buy-to-let landlord who had obtained a number of mortgages and remortgages for a number of properties over the years.

The application of 1 April 2016 was made in the name of a Mr David Buwule in respect of a property in Egret Heights in N17, North London. It was made via a mortgage broker’s portal and named a solicitor. The mortgage broker was Clover Financial Solutions, and the solicitor was Mr Stephen Friday of Percy Short & Cuthbert LLP. The screenshots from Activate of the stored data from the mortgage application included the following question: “Have you ever had a County Court judgment registered against you?” and the answer given was “No”. That was a finding of fact by the judge based on page 484 of the hearing bundle. The respondent to this appeal, the defendant below, rejected the mortgage application and made a referral to the National SIRA database in accordance with its rules.

The National SIRA database is operated by a fraud prevention agency. Its purpose is not to record details of fraud that is committed, but to allow the effective and timely sharing of information with other members of National SIRA, with the ultimate aim of preventing fraud. The information contained on the National SIRA database does not identify or accuse any individual of committing fraud; it simply highlights where certain data has been used in a potential fraud attempt or irregular manner.

We can fast-forward to 2 June 2020, when the appellant sent the respondent a data subject access request, “DSAR”, which also included a complaint. The respondent stated it did not receive the letter, and a further letter was sent on 23 June 2020, which refers back to the 2 June letter, which copied the contents of the earlier letter. The respondent provided a response dated 30 July of that year, rejecting the complaint related to the fraud marker. However, the respondent acknowledged there had been a delay in communicating this to the appellant and sent him a cheque for £75 in compensation. The appellant says he never received this because it was sent to the wrong address.

The respondent sent a further letter on 14 August 2020 in response to the DSAR, saying it could not progress the DSAR because it had been unable to authenticate the appellant and confirm his identity. He was asked to contact the respondent by email or visit a branch with two forms of identification. Two weeks later, the appellant sent a third DSAR to the respondent on 26 August 2020, to which the respondent replied in writing on 14 September 2020 reiterating it had been unable to authenticate the appellant and unable, therefore, to progress his DSAR as a consequence and, once again, asked him to contact them by email or visit a Nationwide branch with two forms of identification.

The issues of liability and dispute between the parties were agreed and set out clearly by the judge as amounting to three issues: firstly, did the respondent breach the first, third and fourth principles of the Data Protection Act 1998 in making the SIRA fraud marker referral in April 2016? Secondly, did the respondent breach Article 5(1)(d) of the GDPR by not erasing or rectifying its fraud marker with SIRA following the claimant’s letters of complaint in June and August 2020? The third issue for determination was whether the respondent failed to respond to requests for access to personal data made by the claimant on those two dates in June and one in August 2020, in breach of Article 15(1) of the GDPR.

There is no dispute that the judge correctly set out the accurate legal provisions concerning the burden and standard of proof in paragraphs 42 to 44 of his judgment. He also accurately set out the law relating to the drawing of adverse inferences from an absent witness in paragraphs 45 to 46. It is also not in dispute that, in relation to the specifics of the Data Protection Act 1988 and the GDPR, he accurately set out the law in the paragraphs of the judgment dealing with each of those specific issues.

The case essentially turned on findings of fact. The Court found that the appellant was not a credible witness in many respects. The Court set out its findings in paragraphs 62 to 80 of its judgment and found that in three material respects, the appellant’s evidence could not be believed. The first matter that the judge considered was the different spellings of the appellant’s names on the various mortgage applications and remortgage applications that had been made, and the judge found, on the balance of probabilities, that the appellant had deliberately misspelt his name when making the financial applications, including mortgage applications, and he set out the six reasons why he reached that finding of fact, which is set out in that paragraph of the judgment. In summary, they engaged, in detail, with the evidence and showed a pattern of mortgage applications in slightly variously spelt surnames over the years. Those findings are sufficient for the judge to have concluded the deliberate misspelling on those various documents. He also noted that there were at least four fraud markers placed against the appellant’s names by CIFAS and another by National SIRA, which had also been placed on a further fraud data or potential fraud data flagging and collection agency, National Hunter.

The second aspect of the judge’s concern about the credibility of the appellant was his failure to disclose mortgage refusals, which was a requirement of loan request documentation on various other documents. These findings are set out in paragraphs 63 to 66, and, again, provide specific and detailed examples of when the appellant had been refused mortgages and how the respondent had not been informed of those refusals, which the judge found meant that, for example, the appellant’s answer to 3MC (UK) Ltd was untrue and dishonest and reflected adversely on his credibility.

The third area of great concern identified by the judge were inconsistencies in the appellant’s mortgage applications, and these are set out in paragraphs 67 to 70 of the judgment. The judge went on to explain that when the discrepancies were put to the claimant, his answers were unconvincing, provided new explanations that had not previously been given, and the judge concluded that the appellant was making up that there had been three assured shorthold tenancies and one tenant having left to explain the rent collections that had been put forward in one of those documents.

These were all powerful findings which impact very detrimentally on the credibility of the appellant and the ability of the judge to take at face value much of his evidence. By contrast, the judge found that the credibility of the fraud investigator of the respondent, Ms Bradshaw [0:39:39], was an honest witness who was trying her best to assist the Court. He identified some matters that he was anxious about, but concluded that these did not impact on her overall credibility. She was not seeking to conceal anything, and the reason why her name had been redacted in some emails when they were disclosed, for example, was because many names were redacted, and she was not seeking to conceal her involvement. In one area that had particularly troubled the appellant the judge found that Ms Bradshaw had been mistaken, but she was not seeking to mislead the Court.

The judge then went on to tackle each of the issues as discrete issues in his careful judgment and findings of fact. He explains why he has reached his findings in relation to each issue, and he sets out the conclusions that he has reached after summarising and addressing both counsels’ submissions. For example, at paragraph 125, he explains why he rejects Mr Goss’ submission that the error in the spelling of the claimant’s name should have put the respondent on notice that the mortgage application may not have been made by the appellant. The argument appears to have developed in the trial that, because the surname was misspelt, perhaps it was not the appellant who had made the application but some other person. The judge sets out why that was a wholly implausible submission, given all the other details that were correct and consistent with it being the appellant’s mortgage application on the documentation. He also noted that there would be no benefit for some fraudster pretending to be the appellant but using the wrong name when the only person likely to benefit would be the appellant himself. I take that as just one example.

The overall conclusion reached by the judge on this issue was that the respondent had proved, on the balance of probabilities, that it did not breach the first, third and fourth principles of the Data Protection Act 1998 (“DPA 1998”) in making the referral and that the referral was lawful pursuant to the DPA 1998, and that the fraud marker was strictly necessary for the legitimate purpose of fraud prevention, and provided SIRA with the appropriate amount of information. In relation to issues two and three the judge made cogent and clear findings based on the evidence, explaining why he rejected the arguments of the appellant and his counsel, to conclude that, on issue two, no breaches had been identified. These are set out in paragraphs 155 to 160. The judge concluded that there was no breach of Article 5 or 16 of the GDPR or Rule 7 of the SIRA operating rules, and these allegations were dismissed for the reasons set out in the judgment.

The judge applied the same approach to issue three and his summary of the findings, and overall conclusion are set out at paragraph 186 for the reasons contained therein.

In each conclusion in relation to each issue, the judge has demonstrably applied the law correctly, in accordance with his self-direction set out in the earlier parts of the judgment, and applied it to the facts that he had found.

Accordingly, looking back at and considering each of the three overarching grounds relied on, this is a case where the appellant has not been able to identify any legal misdirection by the judge of this particular area of law. He has identified one or two matters which have concerned him, which are not material to the overall conclusions of the case, and has not been able to demonstrate the relevance of particular very minor concerns in relation to the general findings of credibility and the central finding that the respondent was entitled to make the fraud marker referral as it was contractually required to do under the terms of its relationship with National SIRA.

Let me next turn to the allegations of bias and impropriety and misbehaviour by the judge at the hearing. Like Steyn J, I too, have read the entire transcript of both days of the hearing of 9 and 10 April 2024. I can see that this was a judge who was fully engaged in the case and asked questions appropriately in order better to understand the issues and the arguments put forward. There is nothing that he has said that suggests bias or impropriety or prejudgment, but he was merely seeking to explore and understand the issues better and to test out certain possible conclusions in order to give both counsel the opportunity to address him on possible concerns that he might have had. He picked up matters concerning both the defence counsel and the claimant’s counsel and was even-handed insofar as it is possible to be when the merits are, perhaps, not evenly balanced. There is nothing in the suggestion that a properly informed and fair-minded observer would consider that there was any bias on the part of the judge, and by reference to the well-known [Porter v Magill [2002] 2 AC 357]test, and there is no merit in the criticism advanced.

It is perfectly normal and proper that a judge will ask for assistance from the parties in matters of law when necessary. That is the role of counsel to assist the Court and to ensure that the Court is fully appraised of all the relevant legal material, and this judge, quite sensibly, asked for assistance from both counsel. There is no appearance of bias in the way that he conducted that important role that a judge will perform. Similarly, there is nothing whatsoever in the criticism that the judge sent his draft judgment to counsel for corrections. This is entirely standard practice and in accordance with the Civil Procedure Rules. The responses that the judge received back, and I have seen only the claimant’s, but it is only the claimant’s that are relevant for the purposes of this appeal, point out one or two typing errors, make some other comments, and the judge took on board those comments that he felt he could, and corrections were made to the final judgment. Again, there is nothing to suggest that by the standard process being followed of consulting with counsel for any corrections in a draft judgment in accordance with the rules could lead to a bias allegation. There is nothing improper in the draft judgment that would suggest otherwise.

There is nothing in third criticism relied on by the appellant of misrepresentations by the respondent and lack of admissible evidence which led to false findings of fact. The judge made a very careful analysis of the evidence in order to reach his clear findings of fact. It is the job of the judge at first instance to make findings of fact, and these will not be interfered with absent some glaring irregularity or lack of information on which a finding of fact can be based to establish a perverse finding. In this case, the judge has clearly explained why he has made the findings that he has. He has based them on the evidence. He has drawn inferences where he is entitled to in the absence of documents, and he has explained why he has drawn the inferences that he has drawn. There is no evidence of any unfairness, legal error or findings of fact not being based on the material properly before the judge.

For those reasons, I refuse permission for the appellant to appeal the case and the application is dismissed.