Khetani v Kanbi [2006] EWCA Civ 1621

[2006] EWCA Civ 1621Case No B2/2005/2787
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
HIS HONOUR JUDGE LEVY
Lower Court No. CHY04360
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 th November 2006
Before
LORD JUSTICE CHADWICKLORD JUSTICE THOMASMR JUSTICE LINDSAY
Between
SAVITABEN SHAMJI KHETANIClaimant/HARISH SHAMJI KANBIDefendant/
James Pickering (instructed by Blaser Mills) for ClaimantCarlton Christensen (instructed by Law Partnership) for DefendantHearing Hearing date : 16 th October 2006
Judgment
[1]In this matter the court has before it two applications. The first is an application by the claimant – Mrs Khetani, who is represented by Mr Pickering - by way of an appeal against a decision of HHJ Levy of the 24th November 2005. That decision, in the Central London County Court, was that her claim should be dismissed. The second application is by the defendant – Mr Harish Shamji Kanbi, the claimant’s brother, who is represented by Mr Christensen. That is an application that this court should set aside the Order made ex parte on a “paper” application to Jacob LJ whereby he gave the claimant leave to adduce further evidence on the appeal. Consideration of these two applications requires something to be said as to the background.[2]The claimant’s and defendant’s parents had seven children. The parents had begun life in India but had moved to England long ago and had acquired a home here. On selling the home they were left with money which they were in a position to invest. By then they and some of their children, including the claimant and defendant, were ordinarily resident in England but, when the parents came to invest, they were attracted by investment in bonds issued in India by an Indian bank, the Indian Overseas Bank (“IOB”). The bonds were such, it seems, that interest was, in effect, rolled up and led to a redemption at the end of the fixed term at a sum respectably higher than had been invested. Redemption ahead of maturity was also possible.[3]At first the bonds were taken out in the joint names of the mother and father. It is said that on the father’s death in 1990 the then deposits became owned by the mother. Whether there was a due administration of the father’s estate is not shown. At all events, the claimant’s case is that, for some years before her mother’s death, the mother had procured that bonds, as they matured, were, in a number of cases, reinvested in the joint names of, inter alios, the mother and the claimant. That was not the invariable practice as some bonds were in other names but it was a practice. The claimant says that that was done not merely, for example, as it could have been, so that she, the daughter, was to be a surviving trustee of such bonds if the mother should die before the bonds’ maturity but so that she, the daughter, should in such event be the beneficial owner of the bonds. Thought might have needed to have been given to the efficacy of such an arrangement, never put in writing and intended to take effect on death but which was not pursuant to a Will nor, I apprehend, effected by putting the bonds into joint ownership during the mother’s lifetime. The terms of the bonds were such, in all cases, that any one or more of the persons named on the bond could give a good receipt to the IOB for its proceeds on or before the maturity of the bond.[4]It has to be borne in mind that the mere fact that a person was named to the bank as a name to be put on the bond would not necessarily of itself lead to a conclusion that such a person was beneficially to take on the death of the mother during the currency of the bond or, indeed, to take beneficially at all.[5]There was, over the years, a long sequence of bonds maturing and of their proceeds being immediately reinvested but it was the claimant’s case that on the 26th November 2001 her brother, the defendant, had procured that some bonds previously in the names only of the mother and the claimant were switched on maturity into new bonds in three names, namely the mother, the daughter and the defendant. This change, when, much later, the claimant learned of it, after her mother’s death, attracted the claimant’s suspicions as not only was it, in the claimant’s view, contrary to her mother’s intentions but also because in August 2000 the mother had had a severe stroke after which she had lived with the defendant, having earlier lived at a flat which she had shared with the claimant. Just how far the mother could, after her stroke, have signified wishes or have entered into a document was likely to be a subject, one might have thought, of expert medical evidence in the proceedings which the claimant had on the 25th May 2004 begun against her brother in the Chancery Division in England and in which she claimed for herself, beneficially and absolutely, the fruits of the relevant bonds. But even more necessary, in the course of those proceedings, one might think, would be a careful scrutiny of the IOB’s records to establish how changes generally were made on the maturity and reinvestment of the bonds and, in particular, how it had come about that the name of the defendant was added to the bonds in question in November 2001. By that date the sum being dealt with in the material bonds was a little over £50,000. Given that, under the terms of the bonds, any person named in the bonds could legitimately, so far as the IOB was concerned, gain access, independent of the consent of the other bondholders, to the sums represented by the bond, once the defendant’s name was on the relevant bonds the reinvestment of sums in fresh bonds in names excluding the claimant’s (or, indeed, his mother’s) could, so far as the IOB was concerned, unless notice of some trust or other clear arrangement could be proved to have been given to it, have been entirely unobjectionable.[6]The mother died in February 2004 before which time, on the maturity that had occurred in November 2003, the sum under the material bonds, then over £55,000, had been reinvested in the names of only the mother and the defendant. Again, it would be important to see what the bank’s records were as to that. After his mother’s death and as the only surviving name on the bond the defendant applied to the IOB to receive what was due on a premature redemption. However, the bank, by then on notice of a family dispute, declined to pay. That led to proceedings in India taken by the defendant against the IOB. Although those proceedings have not been shown to us, we understand that, inter alios, the claimant here, Mrs Khetani, is a party to them.[7]In her proceedings in England the claimant, as I have mentioned, claims the fruits of the material bonds for herself beneficially. In his defence, the defendant claims them, he says, “upon trust for the estate of the deceased” – meaning the estate of his mother. We are not told of any Letters of Administration to the mother’s estate as having been granted nor even of an Inland Revenue affidavit relating to it being completed, as would be required if there were to be a grant in the mother’s estate.[8]In her Amended Particulars of Claim, the claimant asserted that the transfer of the material bonds into the three names – of the mother, the daughter and the brother – with effect from the 26th November 2001 had been without the authority, consent, knowledge or approval of either her mother or herself. In his defence, as originally drafted, the defendant had asserted that there had been a letter signed by the claimant and the defendant and to which the deceased had affixed her thumbprint; the letter, he asserted had been sent to the bank in 1998 but effect was given to it only upon the maturity and reinvestment of the proceeds in or around – he said – late 1999. He said that that letter had been prepared by both the claimant and himself. He asserted that it had reflected the wishes of the deceased at the time.[9]Plainly, one might think, not only the bank’s records but possibly also evidence of bank employees was likely to be important to the outcome of the case, particularly, as was unclear, if the mother’s intentions as to the names on the bonds were to be asserted to be also her intentions as to the beneficial ownership of the bonds on her death. What did the IOB’s papers say? Were there employees of the bank to whom the letter asserted to exist by the defendant had been produced and, if so, what did they say? Who had produced the letter, to whom and what instructions had then been given? If trusts had been declared by or between bondholders one might reasonably expect the IOB to have been told of them if only so that it might not become involved in their breach; evidence as to the presence or absence of some form of notice of the terms and existence of trusts in the IOB’s records thus would or might also be of materiality at the trial.[10]On or about the 23rd June 2005 the trial date was fixed for 14th November 2005. I shall need later to refer to correspondence and events in the interim between those dates but the hearing began on that day in the Central London County Court, to which it had been transferred. There had, by then, been no papers produced by or from the IOB. However, on day 2 a witness produced a bundle of two documents amounting in all to some 4 pages. They had not come direct from the IOB; a Mr Patel, a witness for the claimant, said that he had obtained them not from the bank but indirectly from the claimant’s brother-in-law, who, he had asserted to Mr Patel, had got them from the bank. Indeed, Mr Patel, it turned out, had had the documents in his hands for something like a fortnight without telling the claimant’s solicitor that he had them. Nor had he told the defendant’s solicitors that he had them. This bundle was on day 2, 15th November, admitted into evidence against the defendant’s opposition. When the judge admitted the documents, he had expressly stated that he reserved his position as to how much weight he would give them in due course. The new material included a photocopy document which, without intending thereby to beg any questions, I shall call a letter of authority. It seemed on its face to justify the addition of the defendant’s name onto the bonds. It is a short document and it will be convenient to set it out in full. It is headed as if coming from the mother, Dhanbai Shamji Kanbi, of 6A Layfield Road, Hendon, London NW4. That is the address of the claimant. The letter of authority is addressed to the Manager, Indian Overseas Bank, Bhuj. It reads as follows: “Sub – add name Harish Shamji Kanbi in FCNRCB)RDP13/96” 13/96 is a description of a bond. Alongside the reference to “13/96” there appears to be in handwriting the following: “&7/99”, another bond. The letter continues in typescript: “Respected Sir, My FCNR RDP 13/96 for GBP40,000 with your bank in the [the word “name” is omitted but was presumably intended] of Mrs Dhanbai Shamji Kanbi also Miss Savita Shamji Kanbi. Please include one name – Harish Shamji Kanbi in this deposit payable by any one of saviour” [sic]. Beneath that there is under, the words ‘left hand of Dhanbai Shamji Kanbi’, what appears to be a finger or thumb print and, beneath that, the words ‘signature of Savita Shamji Kanbi’ [the claimant] and what appears to be a signature which might or might not be the signature of the claimant. Someone has written on to the letter of authority in handwriting the word “complied” and the date “2nd June 2001”.[11]This letter of authority did not fit the defendant’s description of the letter which, he claimed, had authorised his name to be added to the bonds in that it did not bear his signature but, of course, the defendant had no reason to challenge it; it appeared to supply a reason, known to both his mother and the claimant, for his name being put on the bonds in question on renewal. However, the claimant asserted in oral evidence that she had never previously seen and had not signed the letter of authority. The case continued.[12]It seems that the court did not hear this matter on Monday 21st November and it was not until the 22nd November that Mr Pickering (appearing then also, as he does now, for the claimant) asked for an adjournment. On 22nd November he asked for an adjournment of up to 7 days in order that the documents produced by Mr Patel could be verified as being documents that had come from the IOB or had been held by the IOB. Before that date and, indeed, before the hearing had begun, the question of whether there should be an adjournment of the trial in order to give the parties the opportunity to receive documents from the IOB had been the subject, as I shall later show, of considerable correspondence. The latest position of the claimant’s solicitors, on 9th November, only two working days before the hearing began on Monday the 14th, had been that:
“… we are not prepared to drag out an already long-standing dispute which has taken its toll on our client”
. HHJ Levy gave a short judgment on Tuesday 22nd November dismissing the application for the adjournment which the claimant had sought. By the time the application was made, as the judge put it, “we have just finished evidence”. The adjournment sought was for up to 7 days before closing speeches should begin and on the footing that two witnesses had apparently gone to India to obtain further evidence to verify the authenticity or otherwise of the documents which Mr Patel had produced and which, apart from the letter of authority, consisted of what appeared to be a detailed summary of the long history of the investment in, maturing of and reinvestment in bonds in various family names at the IOB.[13]Mr Christensen, then, as now, appearing for the defendant had opposed the application for an adjournment. He pointed out that the IOB had been reluctant to disclose documents and hence, in effect, that an adjournment for up to 7 days might not lead to a position materially better than the position as it was on 22nd November. The Learned Judge thought it was disproportionate to adjourn and that it would not necessarily be helpful to him or to the parties were there to be one. Mr Pickering’s application was accordingly dismissed by the judge. It cannot be held that the Judge was wrong in doing so on the arguments and materials before him. The remaining hearing, by then consisting only of speeches, continued.[14]On the next day, the 23rd November, and at a time when Mr Christensen had completed his closing speech, a fax addressed to the firms of solicitors acting respectively for the claimant and defendant was received from India but addressed to the court. It was received at close to noon on Wednesday 23rd November. Mr Pickering, on the strength of this fax, again asked for an adjournment, this time for a week. The fax had said that the IOB at Amadebad had confirmed that it was going to make available all details of the deposits required by the court in order to clarify the details of “your court case”. It continued: “These documents will be available to you within a couple [of] days specified in the letter from the bank”.[15]Mr Christensen’s resistance to the application for an adjournment included that it was unknowable what would transpire in a week’s time; in effect, the situation could well be no better then than it was at the time. The Learned Judge indicated that it could be that a great deal of further evidence would be necessary if the adjournment were to be granted and, in a case that did not involve a great amount of money, that would be quite disproportionate. Again, for my part, I could not hold that to have been wrong. The following day, 24th November 2005, the judge, in a judgment of some twelve and a half pages of typescript, dismissed the claimant’s claim. He refused permission to appeal.[16]On 21st February 2006 Jacob LJ had before him, ex parte, two “paper” applications made by the claimant; the first was for permission to appeal against the Order of HHJ Levy dismissing her claim and the second was for permission to adduce on the appeal material which had come in by then from the IOB in circumstances I shall need later to describe. The documents received from the IOB included a copy of the letter of authority, the body of which was identical to that earlier produced by Mr Patel (but not any document similar to the detailed summary I referred to in para 12 above). Jacob LJ had before him on the application a witness statement of Mr Prakash Vekaria of the 20th January 2006. Nothing in it suggests that a copy of it or of its exhibits had by then been served on the defendant or the defendant’s solicitors. As Mr Christensen told us, without comment from Mr Pickering, that Jacob LJ’s Order, which I shall come on to, came, so to speak, “out of the blue” when it was received, it could only be that the Vekaria witness statement and its exhibits had not been served on the defendant or the defendant’s solicitors, although Mr Christensen tells us that they had been told that an application had been made. Mr Vekaria’s witness statement explained that as a result of steps taken in India by him, to whom the claimant had turned for assistance, documents held by the IOB were first of all made available to a police inspector in India and were then, in turn, passed to Mr Vekaria. They consisted of deposit receipts and ledgers, a further copy of the authority letter, a copy of the plaint form issued in India by the defendant in his proceedings against the IOB and other documents in those proceedings and two witness statements prepared by employees of the IOB (neither of whom was the bank employee who had received the letter of authority from whoever supplied it to the bank nor who gave instructions as to how the bank should act upon its receipt). Mr Vekaria’s witness statement in support of leave being given for the reception on this appeal of the new evidence included an assertion that the late documents showed, inter alia, that the letter of authority which, said Mr Vekaria, the trial judge had disregarded and to which, he said, the judge had given no weight, was authentic. That being the case, asserted Mr Vekaria, the document showed that the defendant’s positive case was manifestly wrong. Mr Vekaria’s evidence was the only evidence that was before Jacob LJ when he made his Order.[17]The Order made by Jacob LJ begins:
“On consideration of the appellant’s notice and accompanying documents, but without an oral hearing, in respect of an application for permission to appeal and to adduce further evidence”
. And in the box marked “Decision” it reads:
“Permission granted. Application for permission to adduce further evidence granted, subject to right of respondent to apply to the court to have it set aside”
. As “Reasons”, Jacob LJ writes:
“1. Although the issues are purely of fact, there is sufficient material here to suggest that the judge was wrong, even by the high standard required. 2. The proposed further evidence appears to be compelling, is strongly suggestive of a fraud, and it appears there are good reasons why it was not adduced earlier.”
The Order continued with a provision such that if the defendant-respondent wished to set aside the permission to adduce further evidence that was to be done at the hearing of the appeal itself and that if evidence was to be relied upon in that application then it should be served in specified good time before the hearing of the appeal. That was done. There is a comprehensive witness statement from Mr M.R. Patel, the defendant’s solicitor, that includes as an exhibit all or most of the long correspondence that had passed between the solicitors in the run-up to the hearing.[18]So much for the background to the matters before us. I shall need to refer later to parts of it in more detail but, subject to one point, that should suffice before I turn to the main headings under which further consideration is necessary. The only outstanding point is this. Although we have not seen the Indian proceedings, we were told that they include the very issue raised in these English proceedings. Concern was therefore expressed by this court that such wasteful process should be in place in a matter which, in a less disunited family, should not have called for one set of proceedings, let alone two. We were told, though, that the Indian proceedings had been “effectively” stayed to await the action here. We continued with the hearing before us on that basis.

Admission or Not of the New Evidence

[19]It is common ground that the test for the admission of new evidence is the well-known three-fold test laid down in Ladd v Marshall [1954] 1 WLR 1489 CA which has survived all changes since 1954. It is to that test that I shall turn; I do so out of respect for the evidence adduced as to the satisfaction or otherwise of the test although, for a reason which will appear, for my part I would, in the circumstances I shall explain, hold it to be not enough for the claimant to do no more than pass it.[20]The first part of the three-fold test requires a court to ask whether the new material could not have been obtained for use at the trial had reasonable diligence been deployed by the person seeking to introduce it, namely, in this case, the claimant. When one says for use at the trial, in context, one has to add that that was a trial listed to begin on or shortly after the 14th November 2005. The question thus raised introduces a long history. The IOB had been naturally chary as to disclosure of documents. It was being sued in India by the defendant for not paying out to him. It had long known that there was a family dispute. Both sides had from the earliest dates seen that documents would be needed from the IOB, although they had differed as to which side would derive advantage from them. Letters to the IOB had been written but had led nowhere. Indeed, some had not even been answered. It came to be seen to be desirable, indeed necessary, that an advocate should be instructed in India to apply to the Indian court for an order of the Indian court that the IOB should produce documents to the parties. At an oral hearing on the 11th May 2005 in the Central London County Court before District Judge Lightman it was ordered that the claimant and defendant were jointly to instruct an Indian lawyer to make an application to the Indian courts for disclosure by the IOB of all relevant documentation. The parties were to agree on the identity of the Indian lawyer and to submit joint instructions by the 25th May 2005.[21]At a further hearing before the District Judge on 7th June 2005 (not one which the parties had attended but which sprang from a telephone call to the claimant’s solicitors) Mahendra D. Thacker was appointed as the Indian lawyer to make the appropriate application in India; the appointment was to be effective forthwith and the application to the Indian court was required to be made as soon as practically possible. The claimant’s solicitors, Messrs Blaser Mills, were ordered to report to the court in writing and to the defendant as to the progress of the application not later than 22nd July 2005 whereupon, said the order, “the file shall be referred back to District Judge Lightman for consideration”. It was not until the 14th June 2005 that the claimant’s solicitors wrote to Mr Thacker. They gave him a summary of the English proceedings and said that they had been authorised by the English court to instruct an Indian lawyer to make the appropriate application within the Indian proceedings for disclosure of the account documentation. There had been a brief hiatus during which the defendant had not been represented but certainly by 7th August 2005 the defendant’s solicitors were aware that Mr Thacker had been instructed and they raised with Blaser Mills the question of whether there should not have been a report back to the court by no later than the 22nd July 2005 in accordance with the District Judge’s Order. The defendant’s solicitors were concerned that Mr Thacker had not acknowledged correspondence and they themselves wrote to him asking what steps he had taken. Although the defendant’s solicitors had been given Mr Thacker’s telephone numbers by the claimant’s solicitors, they had been unable to make contact with him.[22]However, on 20th October 2005contact was made by the defendant’s solicitors with Mr Thacker and he indicated that he would obtain an order for disclosure within a week “and disclosure from the [IOB] within a month”. That, of course, would be too late for a hearing beginning on 14th November 2005. The defendant’s solicitors asked for a report from him on the progress of his application and asked that his response should be treated as a matter of urgency. The defendant’s solicitors wrote to the claimant’s solicitors indicating concern that disclosure would not take place in time for the hearing.[23]On 25th October 2005 the claimant’s solicitors wrote that they hoped that disclosure of documents would be made before the trial, presumably on the basis, notwithstanding Mr Thacker’s reference to actual disclosure taking a month from the obtaining of an order for disclosure, that if pressure was put upon him matters might be accelerated. On the same day, 25th October 2005, the defendant’s solicitors suggested an adjournment of the trial for a further week “bearing in mind the relevancy and the importance of such disclosure of the issues to be decided by the court”. On 7th November 2005, a week before the trial was due to start, the defendant’s solicitors asked the claimant’s what pressure they had been able to put upon Mr Thacker. They, the defendant’s solicitors, had not heard anything from him. On 8th November 2005 the defendant’s solicitors expressed surprise to the claimant’s solicitors that the claimant wished to proceed without disclosure from the IOB. The defendant’s solicitors still had heard nothing from Mr Thacker. It transpired, though, that on 7th November 2005 Mr Thacker had faxed to the claimant’s solicitors a brief note that did not in terms indicate whether an application had been made to the courts in India but which concluded “necessary information will be available within a day or two”. That left it unclear whether the “necessary information” was to be the documents sought from the bank or just information as to the making of an application to the Indian courts in order to obtain such disclosure. The claimant’s solicitors provided a copy of Mr Thacker’s note to the defendant’s solicitors, who suggested that the parties should give serious consideration as to whether the matter should be adjourned until after disclosure from the IOB. They said: “…failing which, justice might not be done to both parties and would be contrary to the overriding objective of the CPR”.[24]On 9th November 2005, however, the claimant’s solicitors said that they were not prepared to consent to an adjournment. The final position on 9th November 2005 as taken by the claimant’s solicitors was that, whilst they were not reluctant to obtain disclosure from the IOB and, indeed, would welcome it, they were not prepared, as I have mentioned, “to drag out an already long outstanding dispute which has taken its toll on our client”. A fax from Mr Thacker on 11th November 2005 indicated that he had given some notice to the IOB, Bhuj branch, but had received no reply nor any documents. On 12th November the defendant’s solicitors indicated to the claimant’s that they reserved their client’s position to seek an adjournment. On Monday 14th November 2005 the trial began, as I have already mentioned. The trial was completed without any documents having come directly from the IOB. What seems later to have galvanised the IOB is that on 28th November 2005, (4 days after the hearing in England had been completed and judgment given) the claimant’s husband had made a private criminal complaint to the police in India against the defendant alleging that the defendant had committed forgery – presumably the letter of authority was included within that which was said to be forged – and that he had procured improper dealings by the IOB at the relevant branch in India. That private criminal complaint had produced an interim report by an Indian police inspector and, in turn, a request by the Indian police to the IOB for documents, a request seemingly endorsed by the magistrates in India. In time the documents which had been disclosed to the police in India came into the hands of the claimant’s solicitors in England and were exhibited to Mr Vekaria’s witness statement as laid before Jacob LJ.[25]This history discloses, in my view, that the claimant, and, indeed, both parties, deployed reasonable diligence in the task of obtaining documents from the IOB. They began to seek documents in what could have been regarded as good time before the hearing and took sensible steps, guided in part by the court, yet the documents had not come to hand. Both sides can be criticised for not restoring the matter to District Judge Lightman at an earlier stage when doubts about the ability to procure the documents in good time for the trial had emerged but neither side impeded the production of documents or took steps to delay it and it cannot be said that the claimant’s solicitors’ hope - that if pressure was put upon Mr Thacker, documents might well arrive in time - was obviously misplaced. For my part, I would conclude that until a very late stage the claimant’s solicitors did indeed expect that documents would arrive in time for the trial. It would not be just, as it seems to me, to require, as part of reasonable diligence on the claimant’s part, that the eventual catalyst – the claimant’s husband’s private criminal complaint to the Gujarati police – should have been launched sooner as it is unclear whether he had reasonable grounds for doing as he did and it is equally unclear whether his wife had any reasonable grounds for doing as her husband had done. Unlike him, she could have attracted very adverse comment during the course of proceedings in England if it was found that she had laid criminal allegations of forgery of or fraudulent conduct against the defendant without having had sufficient grounds. She could thus have harmed her case in England by precipitate or unsubstantiated allegations in India and, to that extent, it would have been beyond reasonable diligence on her part to have done as her husband had done. In my judgment, the first limb of Ladd v Marshall is satisfied.[26]The second limb of the Ladd v Marshall test requires the court to look into whether the new evidence would have been likely to have had an important influence on the outcome of the case. HHJ Levy had had doubts as to the documents which Mr Patel had produced for a number of reasons including that he could not be sure that what was produced to him was material that was or had been in the bank’s hands. The new evidence did, albeit at some removes, come from the bank and included a copy of the letter of authority so that it would have established that it had, indeed, got to the bank. The new evidence made some headway into establishing how the authority letter had been acted on and who had given instructions that had led to the defendant’s name being added to the relevant bonds. The new evidence would have led to very many other questions having to be looked into. Quite what the result of the trial might have been had the new material been available and had it led to a resolution of the very many issues which it suggested needed to be inquired into it is impossible to say but the case would certainly have taken a different course and the reasoning of the judge would have been quite different. I am content to proceed as if the second limb of Ladd v Marshall were satisfied.[27]As for the third part of the Ladd v Marshall test – whether the body of new evidence was likely to be credible – it would have been believed as being what it purported to be, namely accurate copies of documents received by or created by the IOB and held on the relevant file at the bank. That, as it seems to me, would satisfy the third part of the test.[28]Had there been no further considerations to be taken into account other than the Ladd v Marshall test, for my part I would have seen Jacob LJ’s conclusion that the new evidence should be admitted to be invulnerable but, in the course of the hearing before us, it became clear that there was a highly material feature which had not been drawn to his attention. In the course of his address, Mr Christensen, moving to overturn Jacob LJ’s decision, argued that, whilst the claimant’s solicitors had hoped that there would be an IOB disclosure in time for the trial, they were prepared to go ahead without that taking place if it did not take place in time and had resisted any adjournment. That, he said, had remained the claimant’s position until after Mr Patel had produced, inter alia, the letter of authority and after the judge had heard evidence from both Mr Patel and the claimant and had indicated difficulties in attaching weight to the documentation produced to him on the basis that it could be seen not to have come directly from the bank. Mr Christensen’s argument was that the claimant had elected that the trial should take place without documents coming from the bank and that Jacob LJ had not been told that that had been the case. When Mr Pickering was questioned as to whether there had been such an election, he was constrained to accept that until Day 2 of the trial the claimant had, indeed, resisted adjournment and had taken the risk that if the documents did not arrive from the IOB in time then the court would have to decide and would decide the case without them. He accepted that Jacob LJ had not been told that that had been the case.[29]For my part, I accept Mr Christensen’s description of the approach taken by the claimant as being one of her making an election. The claimant had elected, in the days immediately before the trial began and as it began and throughout the early oral evidence, not only to proceed without the documents (at first, should they not arrive in time but then, despite their not having arrived) and did so conscious that that represented a risk, one which the claimant was content to run, that if the documents did not arrive then the judge would necessarily be constrained to decide the case without them. Moreover, that election had been coupled with a refusal to agree an adjournment in order to get the documents until the complete tactical change on day 2 when the claimant then herself sought that which she had previously opposed. In the absence, as here, of a convincing explanation on evidence to the contrary, I would categorise as an abuse of process conduct by which a party, deliberately and conscious of the risk involved, elects to proceed without certain evidence and, moreover, resists adjournment in order that that evidence should be got in yet then, after losing the case, seeks to have access to that evidence on appeal. The satisfaction of Ladd v Marshall is a necessary but not a sufficient condition for the reception of new evidence; it does nothing to licence abuse of process and thus, even on the assumption that, for the reasons I have given, the Ladd v Marshall test is satisfied, I would, for my part, here set aside Jacob LJ’s ruling which, it cannot be over-emphasised, was a ruling made without notice of the application for it being given to the defendant’s solicitors and without any counter-argument or evidence being put by the defendant to the Lord Justice. For my part, I would decline to receive the new evidence which the claimant wishes to adduce.

The Appeal Proper

[30]If other members of this court are also of that view then the appeal, of course, has to be considered in the absence of the new evidence. I shall proceed on that basis. The claimant’s own witness, Mr Patel, had produced in the course of his evidence a copy of the letter of authority and explained its provenance, as I have mentioned, as being that he had obtained it from the claimant’s brother-in-law who had, in turn, he understood, obtained it from the bank. If the letter of authority produced had been the only cause of the bank’s addition of the name of the defendant to the relevant bonds then the form the letter took was in conflict in relatively minor respects with the defendant’s case. The defendant had originally pleaded that he had signed the letter whereas the letter of authority did not bear his signature. There were possible further inconsistencies as to timing; the defendant had pleaded that the letter had been sent to the bank in 1998 whereas the letter of authority itself is undated but seems not to have been acted upon until 2001. But, such minor inconsistencies apart, the production by the claimant’s own witness of a document purporting to be signed by her and which, on its face, authorised the addition of the defendant’s name on bonds was a substantial blow against the claimant’s case that the addition of the defendant’s name was without her or her mother’s authority, consent, knowledge or approval. If, as the word “complied” in the margin of the letter and the events which happen suggested, as they seem to do, that the IOB had acted on the letter, then there might be some modest grounds for an inference that the purported signature thereon of the claimant was at least not manifestly unlike the bank’s record (if it had one) of what it should have looked like. As for inconsistencies with the defendant’s case, the judge was not dealing with the type of case where inconsistency in the assertions of one side necessarily assisted in the verification of the other’s. How, then, did the claimant respond to the bombshell which her own witness had introduced?[31]In oral evidence she denied that she had signed the letter of authority. There is no question of the judge having forgotten that that was so; he expressly refers to it and to her alleging that her claim against her brother lay, inter alia, in fraud. The judge, who heard and saw her giving evidence, was, of course, not obliged to accept her assertion that the letter (of which the original was not produced) had not been signed by her. As the judge observed, the onus of proof on the claimant in proving the type of claim which she put forward was a heavy one. Leaving aside the inconsistencies between the defendant’s case and the form that the document took, inconsistencies which, of themselves, did not oblige a conclusion that the document was a forgery, it was only the claimant’s assertion that she had not signed the document and the possibility (despite Mr Patel’s understanding of its provenance) that the IOB, not having produced it, had neither received it nor acted upon it, which put the propriety of the document and its role in justifying the addition of the defendant’s name to the relevant bonds in any material jeopardy. The papers put before us do not show any comparison being made in the evidence put before the judge between what purported, in the letter of authority, to be the claimant’s signature and what appeared to be her signature on any other documents. There was no suggestion in evidence that what purported to be the mother’s thumbprint or fingerprint was not hers save for disputed and partisan assertions that, after her stroke, the mother could not even have made a fingerprint. There had been no independent expert evidence as to that. Nor, either, was there any expert evidence – perhaps there could be none based merely on a photocopy – that the original, of which the letter of authority was a copy, was necessarily or even likely to have been a forgery. According to Mr Vekaria’s evidence on behalf of the claimant put before Jacob LJ, the judge had, during the hearing, several times mentioned that he was not in a position to know whether or not, inter alia, the letter of authority was accurate; put the other way round, he was thus not in a position to say that it was a forgery; in his judgment, too, speaking of, inter alia, the letter of authority, the judge says that it might or might not be accurate and that he could not be sure of that. Put the other way round, he was saying in his judgment that he was thus not in a position to say that it was a forgery.[32]In argument before us Mr Pickering accepted that a stage arrived below at which he had had to show that the document was a forgery. I leave aside the irony that, in his witness statement on the claimant’s behalf put before Jacob LJ, Mr Vekaria asserted that the new evidence (which, for my part, I would exclude) shows that the letter of authority was authentic. Reverting to HHJ Levy, he was plainly left unconvinced by the claimant’s assertion that she had not signed the document and we are in no position to regard that view as wrong; he had no sufficient evidence as to the falsity of the document and, accordingly, was in a position in which he could fairly take the view, as he did, that the heavy onus on the claimant was not satisfied. On that basis, for my part, I would dismiss the appeal. However, I would not leave the case without expressing a hope that it will not become necessary for the claimant to remind the defendant that, included in his defence, supported by a statement of truth, was his assertion that the fruits of the relevant bonds, over £61,000 even as at February 2005, were to be held in trust for and to fall into the estate of their intestate mother. The claimant should be able to expect a timely application for a grant to her mother’s estate which will presumably lead to an Inland Revenue affidavit as to its components and their respective values.[33]I agree with both judgments which I have had the opportunity of reading in draft.[34]I agree that this appeal must be dismissed. There is little that I wish to add to the judgment which has been delivered by Mr Justice Lindsay.[35]As Mr Justice Lindsay has pointed out, it must have been obvious to the parties, from an early stage in these proceedings, that the claimant, Mrs Savitaben Khetani, would need to establish that the name of the defendant, her brother Mr Harish Kanbi, had been added to those of her mother and herself as holders of the relevant bonds without her consent; and that, for that purpose, it would be necessary to have sight of the internal records of the Indian Overseas Bank. By 11 May 2005 (if not before) it had become apparent that the Bank was unlikely to disclose its internal records without an order of a court in India. The object of the orders made on 25 May and 7 June 2005 by the district judge in these proceedings was to require the parties to co-operate in an application for an order for disclosure in India. An important feature of the order of 7 June 2005 was the direction that the claimant’s solicitors report to the county court no later than 22 July 2005 as to the progress of that application.[36]The date for trial of these proceedings (14 November 2005) was fixed on 23 June 2005. Had the claimant’s solicitors complied with the direction given on 7 June 2005, the county court would have had the opportunity to consider, well in advance of 14 November 2005, whether it would be sensible for the trial to commence without disclosure having been obtained from the bank; and, if not, whether the trial date should be vacated.[37]The claimant’s solicitors did not comply with the direction given by the district judge on 7 July 2005. By 20 October 2005 it was reasonably clear that there was (at the least) a serious risk that disclosure would not be obtained from the bank before the date (14 November 2005) on which the trial was fixed to commence. But the court was not told of the problem. Further, in the circumstances which Mr Justice Lindsay has described, the claimant’s solicitors resisted suggestions from the defendant’s solicitors that the court should be asked to postpone the trial for a short time in the light of the progress which was then being made towards obtaining disclosure in India. In my view it is impossible to avoid the conclusion that the claimant (through her solicitors) elected to proceed with the trial without sight of the bank’s internal records and in the knowledge that (if disclosure had not been obtained before the end of the trial) the judge would have to decide the issues – and, in particular, the issue whether the defendant’s name was added as one of the holders of the bonds without the claimant’s consent – without the evidence which the bank’s internal records might be expected to provide.[38]In the events which happened, the trial had been completed – and the judge had given judgment – before the bank disclosed its internal records. The claim failed on the material which was before the judge.[39]The claimant persuaded Lord Justice Jacob to give permission to appeal on the basis that she should be allowed to rely before this Court on documents from the bank’s internal records which had been disclosed since the conclusion of the trial. The application for permission to appeal and the application to adduce further evidence (so as to rely on those documents) were made without notice to the defendant or his solicitors. For my part, I have no doubt that, had Lord Justice Jacob been told by counsel for the claimant/applicant (as he should have been) of the circumstances in which the claimant had elected to proceed to trial, he would not have granted permission to adduce further evidence without, first, inviting submissions from the defendant. As it was, Lord Justice Jacob granted the permission sought; but gave the defendant/respondent liberty to apply to have that permission set aside.[40]Application to set aside the permission to adduce further evidence was made to this Court at the outset of the appeal. I have no doubt that we should accede to that application. I agree with Mr Justice Lindsay’s observation that a party who, having deliberately and with knowledge of the risk involved elected to proceed without evidence which he (or she) knew was likely to exist and could probably be obtained, seeks to adduce that evidence in an appellate court, can properly be said to be seeking to abuse the litigation process: a fortiori, in circumstances where that party has resisted an adjournment to enable the evidence to be made available at the trial.[41]In the present case, however, I am not persuaded that admission of the further evidence would have had any effect on the result of the appeal. A copy of the critical document – described by Mr Justice Lindsay as “the letter of authority” – had been admitted as evidence before the judge. The claimant had the opportunity – which she took – to tell the judge in evidence that the signature on that document was not hers. It is clear that the judge was not persuaded by that evidence. He made no finding that the document was false – in the sense that it bore a false signature.[42]As I have said, it was for the claimant to establish that her brother’s name had been added to those of her mother and herself as holders of the relevant bonds without authority. She could not do that without satisfying the judge that the letter of authority did not bear her signature. She did not satisfy the judge on that point. It was not enough for her to show (as she did) that the letter of authority was not wholly consistent with the account of the transaction given by the defendant. By commencing these proceedings she had assumed the burden of establishing lack of authority. She failed to discharge that burden.

Cited in 6 later judgments