“It is denied that there was any genuine and proper transfer (i) on8 May 2000 or at all to Mr Chaudhary or (ii) thereafter from Mr Chaudhary to the claimant. The first defendant puts the claimant to strict proof of these matters, including the fact that the car was stolen.”
“He, Ali and Mumtaz had been looking for a new car for some time. He had made the telephone call to Din from the office [at Hoe Street] and Din came to see them. He thought Din had arrived about 3-4 pm. He, Ali and Mumtaz had all looked at the car. Mumtaz, he said, was more critical than he was and had taken it around the block. He said Din told him he was a dealer and had recently bought the car but he had not asked him whom he had bought it from. He was shown part of the log book. He said he checked with the AA on the ownership of the Mercedes who answered the same day for an extra charge (an AA document records the check as being at 19.57 hours on6 May 2000 ). His suspicions had not been aroused. Din had the keys and service books. He had not asked for a receipt, maybe Mumtaz had. He thought they had raised the question of a deposit but he had not asked for a receipt for the deposit as he did not consider it necessary. He said Din said he was from up North somewhere: he assumed Mumtaz obtained the address. A£1,000 discount on the asking price had been negotiated by Mumtaz and Ali.”
“Mr Leech [counsel for the claimant] has no option but to accept that the documents on their face pin down the transfer of the car to Sunday 7 May. But he argues that things are not always what they seem and that what has happened here, in the light of Mr Chaudhary’s evidence, is that the car must have been released earlier thereby enabling Din to bring it to London and offer it for sale to Mr Chaudhary on 6 May.”
“Mr Leech put Mr Chaudhary forward as a successful businessman. He may be. But I did not find him a satisfactory witness. He said as little as possible. Yet sometimes was capable of easy fluency and making fine points…. His telephoning the AA on 6 May contradicts naivety on his part and his refuge in generalities in answers was, I consider, not the result of any failure to follow the detail, rather a desire not to tie himself down. In short I consider he was well up to the issues that present (sic) me in this case and was willing to tailor his evidence accordingly. In the result I am not prepared to accept what he says in the absence of reliable independent evidence in support.”
“Mr Leech accepted at an early stage that a central issue was whether or not the Mercedes had been seen in London on 6 May [2000], as Mr Chaudhary asserted. Accepting, as I do, the evidence of Mr Webster and Mr Bennett, I am satisfied that the Mercedes was in Leeds on 6 May and therefore could not have been in London being shown to Mr Chaudhary. I am satisfied that Mr Chaudhary has not told me the truth about that. Documentary evidence such as the receipt must therefore be false so far as it refers to 6 May. I am forced to conclude that the call to the AA on that day was to provide evidence to support a story that is false. Given that the conditional sale agreement had not been completed at that stage a call to the AA would not reveal that the Mercedes was the subject of such an agreement. I am quite satisfied that Mr Chaudhary knew far more about the Mercedes than he has stated.”
“How he came into possession of the motor car, if ever he did so, I do not know.”
“46. I am not satisfied, even on the balance of probabilities, that if Mr Chaudhary ever acquired the Mercedes, he did so in good faith. Nor am I satisfied that it was ever the subject of that splendid oxymoron a genuine theft. Nor am I satisfied that ownership of the Mercedes was ever transferred to the claimants or that they ever acquired an insurable interest in the same. I do not accept the evidence of Mr Chaudhary 47. Accordingly there must be judgment for the defendants.”
“Is there not an inference to be drawn here given the black and white conflict over the 6th, and the fact that the 6th is backed up by documentary evidence? The pleading was on or about the 6th, but then it all becomes tailored to the 6th and everything is there. Given that I have really shot a huge bolt through that in my conclusion, there is only one realistic inference to draw. That has been something that the claimants could have considered as soon as they had the witness statements from the other side, but they persisted in what seems to me, at the end of the day, to be an out and out lie. Now that is something that ought to be visited in costs, is it not?”
“I did not know and had no reason to believe that the conduct of the defence or the judge’s approach to his decision would involve such allegations against me personally. Had I known this I would have approached the claim in a different way, and I would have wanted to call evidence as to my good character and my financial means. I should like the opportunity to appeal against the decision and produce character witnesses to clear my name.”
“I did not accept the claimant’s evidence on how he acquired the vehicle and was satisfied he had not told me the truth about that. I was not satisfied with the integrity of the claimant’s case. The case turned on issues of fact which in turn depended largely on assessment of the witnesses.”
“The fact that the claim would be vigorously tested for proof of the genuineness of the theft and the knowledge/good faith of the claimant in circumstances amounting to allegations of fraud was apparent before trial: see the pre-trial skeleton arguments. The judge cannot be criticised for making findings on the issues directly raised before him. His findings were open to him, having heard the evidence and formed his judgment on Mr Chaudhary as a witness.”
“I am forced to conclude that the call to the AA on that day was to provide evidence to support a story that is false.”
“But when you went on to say, ‘ Possibly the car never went through your hands’, for example, I ask myself what is being asserted here, is this being asserted that this is part of some grand conspiracy, in which case I would have thought that sort of thing ought to be pleaded. There are plenty of scams running around the world. I do not want to have to consider any of those if they are not covered by the pleadings. There are all sorts of possibilities that I can be invited to think of, but I have got to keep my feet on the ground, I have got to look at what the evidence is in the case.”
“This was not ICL’s case. It was not put to the witnesses. Mr Melmoth did not even give evidence because it was not thought he had anything relevant to say. The judge gave no indication that he was proposing to make such findings. Put bluntly the judge’s findings are obviously unfair. CWS never had an opportunity of considering, (with the assistance of its legal advisers) or answering a case of dishonesty which had never been put. It is however not only unfair because of that. It is an essential safeguard of our judicial process that the judge should ‘hear the other side’ (audi alteram partem). Where a judge acts, without warning, on his own view of an extended case of bad faith as providing a critical explanation of events (in this judge’s own words ‘two important considerations which conditioned the course of the negotiations and the aims and objectives of CWS in them’) it is a matter of fundamental fairness that the judge’s concern should be broached to the parties, above all to the party prejudiced by his view of things. Without that safeguard, the judge is likely to fall into error not only on the matter which is causing him particular concern, but also on other ramifications of the case. He simply has not heard what the party most affected has to say about what concerns him.”
“It must often be the melancholy duty of a judge to conclude that the truth, and the legal merits too, lie on only one side of the dispute; and to say so in necessarily clear and strong terms. In the present case, however, what is so troubling is that the judge has made findings of bad faith and false evidence, against CWS and its principal witness, Mr Brydon, and against Mr Melmoth who was not even a witness when no bad faith had been pleaded or suggested, and then has inevitably been drawn, consciously or unconsciously, into utilising his conclusions about CWS’ or its employees’ bad faith for the purpose of deciding other disputed issues of fact and law. In this way the focus of the judge’s objective vision was distorted.”
“Indeed, it may be fair to stigmatise the claim as a dishonest claim.”
“It was never the defendants’ case that Vogon were opportunistic, let alone dishonest. There was no cross-examination to this effect. We are told that the judge gave no indication to Vogon’s witnesses or to their counsel that he was thinking of making findings of this kind. It is submitted that the findings, and in particular the finding of dishonesty, were unfair.”
“It is, I regret to say, elementary common fairness that neither parties to litigation, their counsel, nor judges should make serious implications or findings in any litigation when the person against whom such implications or findings are made have not been given a proper opportunity of dealing with the implications and defending themselves. In the absence of such an opportunity, it is of little consequence to examine details of the evidence to see whether the judge’s findings might have been justified.”