Sohal v Suri & Anor [2012] EWCA Civ 1064

Case No B2/2011/1054

[2012] EWCA Civ 1064

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SLOUGH COUNTY COURT

HIS HONOUR JUDGE ELLY

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 03/08/2012

Before

LADY JUSTICE ARDEN

LORD JUSTICE AIKENS

LADY JUSTICE BLACK

Between

KANWAL SOHAL (as Personal Representative ofAppellant/

SANDY PYARA SINGH ("TONY") SURI (deceased),Defendant

for the use and benefit of NAMITA SURI andAppellant

GUY SPENCER ELMS)Appellant

Mr Thomas Graham (instructed by Blackstones Solicitors) for Appellant

Mr John Robson (instructed by Cliffton Ingram LLP) for Respondent

Hearing Hearing dates : 24-25 April 2012

Judgment

What this appeal is about

[1]The principal issue on this appeal is whether the judgment of HHJ Elly deciding that an oral agreement was made for the exchange of properties in Kenya in early 2000 is wrong and should be set aside so that a new trial can be ordered. This judgment will have to look at the judge’s judgment in fine detail. However, a bird’s eye view of the key conclusions to which he came can be found in a supplemental judgment which the judge wrote. I have inserted the most important paragraphs of that judgment into the appendix to this judgment. They give a very good insight into the process of reasoning which underlay the judge’s judgment.

[2]The events concerned the descendants of one Sarder Inder Singh Suri. As the judge did so, I will refer to the descendants of Sarder Suri by their first names. In 1900 Sarder Suri left his home in the Punjab and settled in Kenya. Sarder Suri became prosperous. He had five sons, one of whom was Patwant Singh Suri (“Patwant”), the respondent to this appeal, and one of whom was Pyara Singh Suri. The five sons together acquired a site and built on it a substantial residence, which I shall call Nakuru after the name of the place where it is situate, in a prestigious location in Kenya. Pyara died in 2001. He was the father of Sandy Pyara Singh (“Tony”), also now deceased. Tony’s executor is the appellant. At the start of the new millennium in 2000, the descendants of Sarder Suri celebrated the centenary of Sarder Suri’s arrival in Kenya with a party at Nakuru, then primarily the home of Tony and his wife Namita. In the course of these celebrations, which I will call “the centenary celebrations”, Patwant alleged that he and Tony orally agreed to swop Patwant’s half-share of Nakuru for Tony’s interest as sole owner of a property in England, known as 9 Rectory Gardens, Wollaton, Nottingham (“Rectory Gardens”) for KS 5,000.

[3]Patwant executed a transfer of his interest in Nakuru in favour of Tony in early 2001 in Kenya. He contended that he did so in reliance on his arrangement with Tony. At no stage was there a transfer of Rectory Gardens by Tony to Patwant. It is common ground that, if Patwant and Tony made an agreement as alleged by Patwant and Patwant transferred his share in Nakuru pursuant to that agreement, there was a sufficient foundation for the conclusion in law that Rectory Gardens is now held on a constructive trust for Patwant.

[4]Tony died suddenly in Kenya on 17 March 2007. He left a will but this did not refer to any specific property. Namita, his widow, did not then know of the agreement between Patwant and Tony and denied that it could have been made. There was a somewhat heated meeting between Patwant, Namita and two of Patwant’s children at Patwant’s house in Nottingham in July 2007 when the matter was inconclusively discussed, and, on Namita’s case, an important admission made. Patwant accordingly brought these proceedings against Tony’s executor, now the appellant, to establish his ownership of Rectory Gardens. The executors counterclaimed against Patwant and Makinder, his daughter (who was joined to the proceedings for this purpose), for an account of the rental income from Rectory Gardens which they had received.

[5]Namita’s challenge to the judge’s judgment on this appeal has taken the form of a root and branch attack on the judge’s reasoning in his judgment. I will, therefore, instead of just summarising the judgment of the judge in the order in which it is written, and without intending any disrespect to the judge, dissect the various strands of evidence in his judgment. I have grouped the facts under headings and I accept that it is arguable that the same facts should be included under different headings or more than one heading but that does not alter the core points that I wish to demonstrate. My approach will enable me to deal with the numerous detailed submissions made on this appeal more succinctly than I might otherwise have been able to do. Before I do so I should explain a little about the process of fact-finding and the limited nature of the appellate function.

MAKING FINDINGS OF FACT

[6]The position is that judgments on questions of fact can be expressed in different ways. Consistently with the independence of the judiciary, it is left to the judge to decide how to express his conclusions, subject to review on appeal in accordance with what are for the most part well-established principles. It is not for this court to retry the case: our task is to review the judgment of the judge for error. The judge does not have to make a finding on every disputed item of evidence. It is enough if he makes findings on matters which he needs to resolve before coming to his conclusion. Likewise, there is no obligation on the judge to make findings if, after having considered the matter conscientiously, he forms the view that it is not possible to make a particular finding.

[7]Returning to the judgment of the judge in this case, since he had to adjudicate upon the existence of an oral agreement made between two family members, one of whom had passed away, in the presence of one of the daughters of the survivor, he analysed all the circumstantial evidence to ascertain where the weight of the evidence lay.

[8]There is nothing improper or unusual about this methodology. It was described thus by Pollock MR in Re Exall (1866) 176 ER 850, 4 F & F 922 when considering whether a crime had been committed:

“…all the circumstances must be considered together. It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence - there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.”

[9]It would follow from this that, if the judge drew some inferences from the evidence that are liable to be set aside on appeal, that would not necessarily mean that the whole of the judgment should be set aside. It would only be set aside if either that inference was an essential link in the chain of reasoning or if the inference was so intertwined into the “rope” of the judge’s finding viewed collectively that it could no longer bear the weight of the conclusion.

[10]The obverse of this principle is that, while appellate courts are reluctant to intervene where a trial judge has decided the case on the basis of a witness’ demeanour (because the judge had the advantage of seeing the witness which they do not), they will do so if the trial judge’s decision cannot stand when reviewed by reference to the objective evidence. Thus in Armogas v Mundogas (The Ocean Frost)

[1985] 1 Lloyd’s Rep 1

, Robert Goff LJ , with whom Stephenson and Dunn LJJ agreed, held:

“Much argument was directed to the circumstances in which this court could and should reverse the findings of fact of a trial judge who had based himself upon his view of the credibility of witnesses which this court had not had the advantage of seeing and hearing give evidence. The principles are well established in authoritative cases including Montgomerie & Co. Ltd. v. Wallace-James [1904] A.C. 73 , Powell v. Streatham Manor Nursing Home [1935] A.C. 243 , Watt (or Thomas) v. Thomas [1947] A.C. 484, especially per Lord Thankerton, at pp. 487–488, and Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370 . I have found particularly helpful the statement made by Lord Macmillan in Powell v. Streatham Manor Nursing Home, when he said, [1935] A.C. 243 , 256: “Where, however, as in the present instance, the question is one of credibility, where either story told in the witness box may be true, where the probabilities and possibilities are evenly balanced and where the personal motives and interests of the parties cannot but affect their testimony, this House has always been reluctant to differ from the judge who has seen and heard the witnesses, unless it can be clearly shown that he has fallen into error.”

I respectfully agree with Browne L.J. when he said in In re F. (A Minor) (Wardship: Appeal) [1976] Fam. 238 , 259, that in his experience it was difficult to decide from seeing and hearing witnesses whether or not they are speaking the truth at the moment. That has been my own experience as a judge of first instance. And especially if both principal witnesses show themselves to be unreliable, it is safer for a judge, before forming a view as to the truth of a particular fact, to look carefully at the probabilities as they emerge from the surrounding circumstances, and to consider the personal motives and interests of the witnesses. As Lord Wright said in Powell v. Streatham Manor Nursing Home [1935] A.C. 243, 267–268:

“Yet even where the judge decides on conflicting evidence, it must not be forgotten that there may be cases in which his findings may be falsified, as for instance by some objective fact;…” and he referred in particular to some conclusive document or documents which constitute positive evidence refuting the oral evidence of the witnesses.” “Where, however, as in the present instance, the question is one of credibility, where either story told in the witness box may be true, where the probabilities and possibilities are evenly balanced and where the personal motives and interests of the parties cannot but affect their testimony, this House has always been reluctant to differ from the judge who has seen and heard the witnesses, unless it can be clearly shown that he has fallen into error.” “Yet even where the judge decides on conflicting evidence, it must not be forgotten that there may be cases in which his findings may be falsified, as for instance by some objective fact;…”

[11]In this case, the judge directed himself not to rely on demeanour alone. After concluding that Patwant was a credible witness, he held: “My impression of him is that he is an honest witness but of course before coming to any conclusions I do need to look at all the other evidence in the case and particularly the documentary evidence. To that extent I am recording here my initial observations of him in the course of him giving his evidence to the court.” (J 23)

[12]The judge made the same point in relation to the credibility of Patwant’s two daughters, Dr Niki Suri (“Niki”) and Makinder: “So far as demeanour is concerned, neither Makinder and Niki led me to believe that they were lying. I accept that is not conclusive. They were not shown in the course of cross-examination to be liars but nevertheless one does have to look at the whole of the evidence and in particular contemporaneous documentary evidence before reaching a final conclusion.” (J 26)

[13]However, what may be unusual is this: the judge essentially held that the objective criteria were inconclusive. Having gone through the evidence, including such documentary evidence as there was, and the probabilities, the judge held that there were still three unexplained issues in the case and that he was therefore constrained to consider whether he could determine the issues on the basis of his findings as to demeanour and credibility. He held:

“32. I acknowledge that this is a case where there are great difficulties with regard to the differences in values between the two properties. … 34. The second issue which concerns me is the rent. I do not understand why a bank account was kept going in the name of Tony and Namita. … 35. In the end the conclusion I have reached is that I do accept the credibility – in the sense of truthfulness – of the evidence which has been given by the claimant and his daughters. There are some oddities, for example these bank accounts that I have just referred to, and I do bear in mind of course, as I have said before, the Indian culture in respect of property being owned by the family as opposed to the individual. I do understand of course that within this family and particularly between Pat and Tony that there was a close bond which one would not have expected it to be necessary to put everything in writing as to what has happened. I accept that in this case. I can see, although it may be speculative to say so, that Tony may have had reasons for not being open with his wife about some of his financial transactions in order to preserve his own personal prestige towards her. It is very unfortunate that this was not cleared up before he died but I do understand that there is a level of trust. 36. Having accepted the truthfulness of that evidence then it seems to me that at least at the beginning of the year 2000 and at the celebrations in Nakuru there was an agreement between Tony on the one hand and Patwant on the other that the Rectory Gardens property would be owned by Patwant and the Nakuru property would be owned by Tony as soon as the necessary documents were signed. Indeed, the document required for Nakuru was signed before Patwant left Kenya that time. Therefore there is detriment to him as a result of the agreement being partially carried into effect and I think he is entitled to a declaration that he is the owner of number 9, Rectory Gardens, Wollaton. ”

[14]So, while the judge directed himself that he should not rely on credibility alone, but should cross-check what was said against other more objective evidence, he ultimately found himself unable to do that. He used his findings on demeanour and credibility to decide the case. We have not been taken to any authority which prevents the judge from taking this course and requires him to hold that the case was not proved, which would in this case mean that Patwant’s claim failed as he had the burden of proof. A person’s behaviour as a witness is undoubtedly evidence of a particular kind. In the absence of any relevant authority to the contrary, in my judgment, it must follow that in the circumstances which I have just described the demeanour of a witness can be probative and resolve an uncertainty or conflict in the evidence. There is no reason why, as here, this should not apply to the central issue in the case.

[15]I now turn to my analysis of the judgment, which begins with a short introduction to the factual context and the parties’ cases, and then a dissection and classification of the various strands of evidence. ANALYSIS OF THE JUDGE’S JUDGMENT (I use the prefix J before a number below to denote the paragraph of the judge’s judgment to which I am referring). Factual context of the dispute

ANALYSIS OF THE JUDGE’S JUDGMENT

[16]The key elements of the relatively uncontentious background will be examined under the following headings: ◦ Prestigious family ◦ Indian tradition of extended family ◦ Family relationships ◦ Political instability in Kenya ◦ Original purchase of Rectory Gardens ◦ Title deeds ◦ Loan of £30,000 from Patwant to Tony ◦ Pyara’s testamentary intentions

The judge made a number of findings about the factual context:

[17]i) Prestigious family: the judge found that there was great respect for the Suri family in Kenya and that they were “a prestigious family living in a prestigious property” (J13). Nakuru had at least two wings, one of which was allocated for Patwant’s use before 2000. ii) Indian tradition of the extended family: the judge considered that there was a tradition in Indian families whereby monies and properties owned by individual members of the family would be used for the benefit of other members of the family (J35). Patwant’s evidence had spoken of the closeness of the extended family in times past, and the informality with which they dealt with each other. The supplementary pension paid to Patwant was an example of what this family would do to support family members. iii) Family relationships: the relations between the sons of Sarder Singh were close but that had not been maintained in the next generation (J8). Tony had good relations with Patwant but not with Pyara (J8). The judge saw Patwant as being an honest broker as between Tony and other members of his immediate family (J8). iv) Political instability in Kenya: the judge held that Pyara was always aware of this even though he was settled in Kenya. That possibility was in Pyara’s mind when Rectory Gardens was purchased in 1985. v) Original purchase of Rectory Gardens: The judge held that, although it was common ground that Pyara paid for Rectory Gardens out of monies allocated to him, it was not clear who had what monies or where the money had come from (J7). It was a building plot and Pyara had a house built on it. It was let from about 1987 (J6). vi) Use of Rectory Gardens: at all material times Rectory Gardens was let and the rents were paid into an account in the name first of Pyara and then after his death into an account in the name of Tony (or Tony and Namita). The balances on these accounts were used to pay outgoings on Rectory Gardens, tax on the rents and a supplementary pension to Patwant.Patwant had had responsibility for looking after the property and paid all the outgoings. Patwant’s evidence was that: “I initially paid these monies from my own resources and did not really expect to be repaid as I was caring for family property and it was part of the understanding and agreement with family members.” vii) Title deeds: The title deeds to Rectory Gardens were always kept in the UK, viii) Loan of £30,000 from Patwant to Tony: the judge found that in 1997 Patwant had made a loan of £30,000 to Tony (J9). Tony was in the import business in Kenya and wanted funds to build warehouses at Embakasi Airport. Patwant contended he had made a further loan of £30,000. The judge did not resolve that dispute but held(1) (by implication) that the first loan of £30,000 had not been repaid;

(2) that Patwant sought the recovery of only £30,000, and

(3) that Tony had repatriated to Kenya funds to which he was entitled outside Kenya in order to pay for a development project concerning warehouses (J9). Patwant’s evidence was that the transfer of Rectory Gardens was in part in consideration of the discharge of the first loan of £30,000. ix) Pyara’s testamentary intentions: by the time of the centenary celebrations Tony knew that Pyara intended to leave his share in Nakuru to one of his brothers and that that might mean that he and his family would have to leave Nakuru. He was also concerned that Pyara might ask him to leave (J14). He and Tony did not always enjoy a good relationship. Pyara’s testamentary intentions are confirmed by a document dated 30 October 2000, in which Pyara had placed a value of £150,000 on Rectory Gardens for the purpose of recording the portion of his assets allocated to Tony. These assets did not include his share of Nakuru. Pyara therefore did not know about any transfer to Patwant.

Parties’ cases

[18]Patwant’s case was that an oral agreement had been made, in the presence of his daughter, Niki, in the margins of the centenary celebrations in Kenya, that Tony would transfer his interest in Rectory Gardens to Patwant in exchange for Patwant’s half share of Nakuru and discharge of the loan of £30,000 made by Patwant. Patwant contended that it was pursuant to that agreement that he transferred his share in Nakuru to Tony shortly thereafter. Both Niki and Patwant gave evidence that this agreement had been made in the course of conversations at Nakuru.

[19]The executors accepted that Patwant had transferred his half interest in Nakuru to Tony but their case was that this was a pure gift since Patwant treated Tony as a son. Accordingly they denied that Tony had agreed to transfer Rectory Gardens to Patwant.

[20]Namita’s case before the judge was that there was a conspiracy against her of whom the prime movers were Patwant’s children. The judge noted this (J 31). Namita’s case was that Patwant’s children were essentially manipulating Patwant. She did not put forward any other explanation for the claim. As counsel submitted in his closing submissions:

“… at no time prior to Tony's death was any assertion ever made of title to Rectory Gardens property by the claimant. In my submission what we have is a story cobbled together from scraps of evidence within [Patwant’s] family. I suspect strongly, hearing what we have heard, that he would not have been the prime mover in all that at all, given his standing and his past reputation. Sometimes things happen to people in old age and he had in fact had a nasty fall and the fracture recently so that may possibly have affected him slightly. He certainly must have been very frail. However, it is much more likely that the prime movers would have been his children. We know what Bud was capable of as we have seen a clear account of it from Namita and her almost contemporaneous record of it. He is not here to give evidence. Perhaps he is a loose cannon which Pat's family did not want to see released on a court. We have of course the evidence of Makinder and she was clearly very closely involved in her father's affairs throughout the period; that is perfectly obvious. We also had the evidence of Makinder whose evidence, I suggest, is one long fabrication for the detailed reasons I have given. I suggest it is much more likely that they are prime movers behind this as a property available to them is probably worth £1/2m [is] not be dispensed with likely. There are various possibilities as to what happened. One possibility, based on Makinder’s statement at paragraph 15, is that it may have been but what really worried them was the fact that Namita was asking for an account of the rent for the property for the whole period that the property had been owned by Tony back to 1985. They knew it would be impossible to give such an account. All sorts of things would be revealed by that…”

Demeanour and credibility of Patwant and his daughters

The judge made findings as to the demeanour and credibility of the witnesses:

[21]i) The judge accepted Patwant as a truthful witness. At the date of the trial he was 87 years old. (He had also had a broken femur and may, therefore, have appeared physically a little frail at the trial). He had to have help giving his evidence from one of his two daughters (see J 20), who repeated the questions for him. Some of the questions had to be repeated to him. The judge took into account that Patwant was an elderly man, and also that his first language was Punjabi. There was a dispute about whether Patwant was deaf but the judge held that he thought the deafness was genuine. He held that Patwant was acute and that he was a witness on whom the judge could rely. The judge held that his view as to Patwant’s credibility was confirmed by the respect in which Namita held him. The judge held: “…taking his evidence as a whole and accepting that he was being cross-examined for a considerable length of time it did not appear to me that this man was wavering from the essential evidence that he was giving.” (J 21) ii) The judge accepted that Makinder and Niki were witnesses of truth.

Circumstantial evidence which the judge considered tended to suggest that the agreement had been made:

[22]This is considered under the following headings: ◦ Close bond between Patwant and Tony ◦ Niki’s evidence about Tony’s lack of security at Nakuru ◦ The circumstances in which the agreement was alleged to be made ◦ Transfer by Patwant of his interest in Nakuru to Tony in January 2001 ◦ Tony’s acquisition of the other half-share in Nakuru and his feelings towards it ◦ Agreement raised by Patwant with Namita shortly after Tony’s death ◦ Unlikelihood of gift by Patwant of his half-share in Nakuru to Tony i) Close bond between Tony and Patwant: the judge considered that this made it less likely that if there was an agreement the parties would have expected it to be recorded in writing (J35). ii) Niki’s evidence about Tony’s lack of security at Nakuru: she was present in Nakuru in the course of the millennium celebrations. She said that Tony was keen to ensure his continued occupation of Nakuru and that he was concerned that he might be asked to leave by his father. Tony told her that he was willing to swop his interest in Rectory Gardens for Patwant’s share in Nakuru. In a second, much fuller statement, she gave evidence of a conversation between Patwant and Tony when Tony raised concerns about his insecurity at Nakuru (J 24). iii) The circumstances in which the agreement was alleged to be made: Patwant’s case was that the agreement had been made in the course of conversations over the period of Patwant’s extended stay in Kenya for the centenary celebrations at the start of the new milennium. Since Namita would have been the hostess, the judge considered that these conversations could have taken place without her being present. iv) Transfer by Patwant of his interest in Nakuru to Tony in January 2001: this was consistent with the agreement which Patwant alleged (J16, 36). Patwant treated Rectory Gardens as his own after January 2000 (J 30). v) Tony’s acquisition of the other share in Nakuru and his feelings towards it: a) Tony was keen to keep Nakuru. It was a prestigious property (J32). He acquired the share of his brother, Puti, to whom Pyara had left his share (J32). He knew of Pyara’s testamentary intentions. b) Namita gave evidence that by 1999 she and Tony had decided to stay in Kenya. There was no evidence that they intended to move to the UK. It was clear that Tony was willing to sell Rectory Gardens. vi) Agreement raised by Patwant with Namita shortly after Tony’s death: Patwant’s evidence was that he had discussed the agreement with Namita in Nakuru immediately after Tony’s funeral (J16). vii) Unlikelihood of gift by Patwant of his half-share in Nakuru to Tony: Tony was not Patwant’s son and so there was no real reason why he should make a gift of his share in Nakuru to Tony. So there was no reason for believing that Patwant would simply have given Nakuru to Tony. Circumstantial evidence which

the judge considered tended to suggest that the agreement had not been made:

[23]I shall consider these points under the following headings: ◦ Disparity in property values ◦ Rents ◦ Namita’s lack of knowledge about the alleged agreement despite her evidence as to her close knowledge of Tony’s business activities ◦ Evidence of Makinder ◦ Patwant’s particulars of claim (“PoC”) ◦ No transfer by Tony ◦ Tony’s other resources for repaying loans. i) Disparity in property values: Rectory Gardens was conservatively valued at £150,000 at the time of the alleged agreement. Patwant’s half share in Nakuru was by contrast only worth about £20,000. Even if he was relinquishing his right to recover both of the loans he said he made to Tony, the value of what he was giving to Tony was only some £80,000. ii) Rents: even after the date of the transfer the rents were paid into an account in Pyara’s name and then into an account for Tony (or an account for Tony and Namita). As against that Patwant had blank cheques signed by Tony for the monies in the account. iii) Namita’s lack of knowledge about the alleged agreement despite her evidence as to her close knowledge of Tony’s business activities a) The judge was clearly troubled by this point (see, for instance, J35). b) The judge also found that Namita was a witness of truth. Indeed the judge regarded her as an impressive person (J 27). However, the judge was surprised that Namita denied that the loan of £30,000 from Patwant to Tony was made in the early months of 1998 given the documentary evidence for this in two communications between Patwant and Tony (J 28). These two communications to Patwant about the loan of £30,000 in early 1998 were handwritten and the judge noted had therefore not been typed by Namita. c) Namita did not know about the agreement that Patwant said had been made with Tony at the millennium celebrations until after Tony’s death. She had known of the blank cheques signed by Tony (J28). d) Her evidence was that Tony led her to believe that Patwant had given Tony his share in Nakuru (J15). The judge did not reject her evidence that she and Tony were open with one another and that she was conversant with his financial dealings (J15). e) The judge found that there was a level of trust between Namita and Tony (J35). f) The judge could see, although it might be speculative to say so, that Tony might have had reasons for not being open with his wife (J35). g) The judge considered that Tony might have thought that she would have been angry to learn that he had swopped Rectory Gardens for a share in Nakuru (J 32). iv) Evidence of Makinder: Makinder held a power of attorney for Tony. Her evidence was that this had been given to her to enable policies of insurance to be set up for Tony’s children’s education. She gave evidence that she had sent tax returns for the rents from Rectory Gardens signed by Tony to the accountants. She knew of the transfer by Patwant of his interest in Nakuru to Tony before his death but this had not troubled her. It was a matter for Patwant. She did not know about any agreement for the transfer of Rectory Gardens. v) Patwant’s PoC: Patwant’s PoC set out a wholly different history of dealings in Rectory Gardens from those alleged at trial. a) When Patwant served his PoC, he alleged that there was a common understanding and agreement between Tony and himself from about 1996 that he could take Rectory Gardens in repayment of a loan of £30,000 which he made to Tony and on terms that he paid the further sum of £120,000 in due course. He alleged that, by a letter dated 1 February 1999, Tony set out the agreement and understanding reached between them and allowed Patwant to take full possession of the property. b) At trial his evidence was that there was simply an offer made to him by the letter of 1 February 1999 and that he did not communicate any acceptance to Tony or Namita. c) Patwant further alleged in his PoC that at the millennium celebrations there was a further agreement between Tony and himself that Patwant would relinquish his share in Nakuru in exchange for the whole of the beneficial interest of Tony in Rectory Gardens. It was in pursuance of that agreement that he and Tony attended before solicitors in early 2000 for the purpose of transferring his interest in Nakuru to Tony. The defence denied that any such agreement had been made before 2000, that any payment of £120,000 had been made or that any further agreement had been made at the millennium celebrations. vi) No transfer by Tony: Tony had not transferred Rectory Gardens to Patwant by the date of his death even though seven years had elapsed. Niki, however gave evidence that Patwant had tried to persuade him to come to England in 2003 to sign the transfer. (It seems to have been assumed all round that Tony would have to come to England to execute the transfer and he had not made a trip to the UK by the time of his death.) vii) Tony’s other resources for repaying loans: the judge found that Tony had other assets which could have been used for repaying the loans which he had incurred and indeed that Namita’s parents could have assisted him (J32) Circumstantial evidence which the judge did not consider that he could take into account or did not consider:

[24]The headings here are: ◦ Gift issue ◦ Namita’s knowledge of Tony’s business affairs ◦ Tony’s approach to financial dealings ◦ Rent retained by Pyara ◦ Parties’ previous negotiations in 1999 ◦ The 2002 emails from Tony to Bud after the centenary celebrations ◦ Makinder’s evidence ◦ Two letters from Patwant in 2007 asserting an understanding ◦ Meeting in Patwant’s home on 1 July 2007 in Nottingham between Patwant, Makinder, Niki, Bud (Patwant’s son) and Namita ◦ Admission by Bud ◦ Namita’s perception of a conspiracy ◦ Namita’s letter of complaint of 15 July 2007 ◦ The fact that Bud was not called as a witness ◦ Narinder’s evidence i) Gift issue: The judge thought that on both parties’ cases a substantial gift was being made either by Patwant to Tony or vice-versa (J32). ii) Namita’s knowledge of Tony’s business affairs: Namita was certain in her evidence that Tony had raised only one loan from Patwant and that this had been in 1997. Documents showed that the loan had been in 1998. This could simply be a mistake about dates, or it could throw doubt on whether Namita did have knowledge of all Tony’s financial affairs. The judge did not resolve this query (J33). iii) Tony’s approach to financial dealings: The judge specifically left open the question whether Tony was always transparent in his financial dealings (“As to whether her understanding of her husband’s openness is complete or not is not something which is capable of being judged on the evidence” J 33). He did not reject various suggestions which Patwant made in evidence that he was not wholly to be trusted. iv) Rent retained by Pyara: the evidence was that after the purchase by Pyara of Rectory Gardens and its registration in Tony’s name, Pyara continued to receive the rental income. Pyara died in 2001. After this date the rental income was paid into an account in the names of Namita and/or Tony. This was not remitted to them in Kenya. It was applied in paying outgoings related to Rectory Gardens using blank cheques which were signed by Tony and which Tony sent to Patwant in England from Kenya. The judge did not draw any inferences from this (J34). v) Parties’ previous negotiations in 1999: The judge did not draw any inference from this sequence as to the inherent probabilities of the agreement at the centenary celebrations. a) In a letter dated 1 February 1999, Tony had made it clear to Patwant that he intended to sell Rectory Gardens. On the same date he sent a letter to Patwant offering to sell Rectory Gardens to him for £150,000 less the £30,000 which Tony owed. Namita typed this letter (J11). b) Patwant visited Nakuru in September 1999 and there was a conflict of evidence as to whether in the course of that visit Patwant had agreed to Tony’s offer. Namita’s case was that he had not done so. Patwant’s evidence was that he considered that he had purchased the property and had to pay £120,000 for it. The judge held that the offer must have been left open for acceptance until September 1999 (J 30) but the judge was not satisfied that he had ever communicated his acceptance of the offer (J12). Subsequently the judge found that Namita had said that Patwant refused the offer in September 1999 saying that she and Tony should keep Rectory Gardens for their children (J28). vi) The 2002 emails from Tony to Bud after the centenary celebrations: while the judgment is opaque on this issue, I read the judge as not giving much weight to these emails for the reasons connected with the way in which the Suri family operated: a) Email of 19 June 2002: this was an e-mail from Tony to "my dear brother Bud," who was Patwant's son, recording that his mother had told Tony that he was planning to move out of his office. It goes on to say "why don't you move in to Rectory Gardens and use it as you wish. It's all yours.” The judge considered that this was a surprising statement if Tony had disposed of his interest in Rectory Gardens (J31). b) E-mail of 19 July 2002 from Tony to Bud. Tony asked Bud in this e-mail to pass a message to Patwant to the effect that he had asked Bud to find out from him how much cash he could use by using Rectory Gardens as collateral. This again was a surprising thing for Tony to have done if he was no longer the owner of Rectory Gardens (J31). c) Indian heritage: However, the judge refers to the argument on behalf of Patwant that this was the way in which the family would regard property. The judge accepted that in the context of the Indian family heritage and usage that one had to interpret some of the things which had been said and written. Patwant said that the second message had not been sent to him. vii) Makinder’s evidence: The judge noted that counsel for Namita suggested that it “beggars belief” that Makinder did not know of this transaction when Niki did and when she must have raised the matter with Patwant. The judge held that he could not say more than what Makinder had said (J 23, 31). viii) Two letters from Patwant in 2007 asserting an understanding: Patwant wrote or caused to be written two letters to Namita about Rectory Gardens. One was a letter of 25 May 2007, written by Bud, which sets out a list prepared by Patwant of matters for Namita’s attention arising out of his dealings with Tony. Item 2 cryptically reads:

“[Rectory Gardens]: Power of Attorney with Maki and the understanding with me in lieu of [Nakuru]”

. Later he wrote the letter of 5 July 2007 set out below. Neither letter asserts the existence of a contractually binding agreement. ix) Meeting in Patwant’s home on 1 July 2007 in Nottingham between Patwant, Makinder, Niki, Bud and Namita: Namita’s case was that at this meeting (1) Patwant admitted that Rectory Gardens belonged to Tony; (2) Patwant, Niki and Makinder denied that they knew where the title deeds were and (3) Bud said that Patwant, Makinder and Niki were lying and admitted that he had the title deeds in his safe. Makinder said in evidence that Bud’s behaviour was disrespectful of his aunt (J 23). An attendance note of 18 July 2007 shows that Bud’s solicitor took the view that Bud wanted to cause stress and trouble for Namita (presumably because of the dispute over Rectory Gardens). Bud had been closely involved with Tony in his lifetime. x) Admission by Bud: the judge does not refer to the admission which Bud made at this meeting that Patwant, Makinder and Niki were lying. He held that there was no matter on which Bud could usefully give evidence. Accordingly he did not draw any adverse inference from Patwant’s failure to call him as a witness at the trial. xi) Namita’s perception of a conspiracy: Namita’s case is that Patwant gave his interest in Nakuru to Tony and that he was in consequence under pressure from his children to make a claim to Rectory Gardens. Makinder denied that Patwant’s claim was a bogus claim to avoid inquiries into the rent account. xii) Namita’s letter of complaint of 15 July 2007: in consequence of the meeting on 5 July 2007, Namita wrote to Bud complaining about his attempts: “to intimidate me using extortionists tactics, claiming my late husband's assets [Rectory Gardens] on false pretexts and promises. You verbally abused and insulted me and would not let me talk to your family members or yourself." She asked him to step down as executor, failing which she would start proceedings for his removal. xiii) The fact that Bud was not called to give evidence: the judge did not consider that there was any useful evidence that Bud could give (J 19). He could have given evidence about what the judge called “the disgraceful incident” at Patwant’s home in July 2007, but the judge did not consider that he could draw an adverse inference from this. xiv) Narinder’s evidence: Narinder was Tony’s sister. She was not called as a witness but the judge saw a statement from her in which she said that she was not aware of the agreement with Patwant. The judge did not consider that her evidence took the matter any further. Judge’s conclusions

[25]The judge was satisfied that Patwant had proved his claim. The crux of his reasoning is set out in the paragraphs of his judgment quoted in paragraph 12 above.

[26]After he made his draft judgment available, counsel for the executors made submissions that the judge had omitted to address a number of points in his judgment. The judge directed written submissions. He then gave a further judgment in which he held effectively that it was unnecessary to resolve any further issues and he maintained the view which he had formed in his judgment: see paragraph 13 of the supplemental judgment set out in the Appendix to this judgment.

[27]The judge also rejected Namita’s claim for an account for the period prior to the transfer. He held in his supplemental judgment that: “the lack of evidence that any money was regularly paid to Kenya and any evidence that before the death of Tony any request to do so had been made, led to my rejection of the claim for any period prior to transfer.” (paragraph 15)

Discussion

[28]The appellant’s appeal is essentially against the judge’s conclusions of fact. The appellant submits that the judge’s conclusions were wrong and in addition that the judge(1) failed to resolve key issues

(2) failed to take account of key evidence

(3) failed to take account of key submissions

(4) failed to give adequate reasons for key findings

(5) made findings on key issues which were wrong

(6) gave reasons for key findings which were wrong

(7) failed fairly to balance the material before him such as to lead to the conclusion that he had failed to conduct an adjudication which was adequately or properly addressed, balanced and resolved the key evidence and submissions.

[29]Inevitably the submissions for the appellant fell under more than one head and accordingly I intend to take the submissions factual topic by factual topic. In my judgment, the judge dealt with most, but not all, of the appellant’s points, and to the extent that he did so, the appellant's submissions in the main amount only to a disagreement with the judge as to the weight which he decided to give to various factors. This is not sufficient in law to overturn the judge’s judgment. I will start with the appellate approach to arguments that the judge drew the wrong conclusions from facts or failed to deal with key issues. This is the gravamen of the appellant’s case. The appellant accepted in argument that his case is not directed to the question whether the judge adequately explained his conclusion.

Appellate approach

[30]It is common ground that, on an appeal against a judge’s findings of fact, the appellant has in general to show that the judge was plainly wrong. It is well established that, where a finding turns on the judge’s assessment of the credibility of a witness, an appellate court will take into account that the judge had the advantage of seeing the witnesses give their oral evidence which is not available to the appellate court. It is, therefore, rare for an appellate court to overturn a judge’s finding as to a person’s credibility. Likewise, where any finding involves an evaluation of facts, an appellate court will not interfere with a finding made by the judge unless the judge’s conclusion is “outside the bounds within which reasonable disagreement is possible”. Where, however, the finding turns on matters on which the appellate court is in the same position as the judge, the appellate court in general must make up its own mind as to the correctness of the judge’s finding (see Datec Electronic Holdings v United Parcels Service

[2007] 1 WLR 1325

at [46] per Lord Mance).

[31]In this case, the appellant makes a number of challenges: he contends that the judge failed to draw certain inferences from the primary facts, that, in other respects, he drew the wrong inferences and that in drawing or not drawing inferences the judge attached the wrong weight to various matters. In my judgment, where the challenge is to an inference not drawn, or drawn, by the judge from other facts the principles are as set out above. The appellant has to show that the failure to draw the inference, or as the case may be the making of the inference, was plainly wrong. The respect which, as I have just explained, an appellate court accords to primary facts based on oral evidence, and to an evaluation of facts made by the judge, applies also to inferences drawn from such facts or evaluation. Putting the matter another way, in those circumstances, the appellant will in general have to show that the inference, which he contends should have been drawn, was one that should inevitably have been drawn, so as to entitle the appellate court to interfere. In addition, it follows from the fact that the appellate court must be satisfied that the judge is wrong that it is not enough merely to disagree with the weight which, when drawing or deciding not to draw inferences, the judge has given to some factors over others.

[32]Further, it is in general not enough on an appeal from a judge’s findings of fact to point to the fact that there are additional findings that the judge could have made. The judge is not bound to make findings on every matter in issue in the trial. In general a judge is only obliged to make findings on key matters though in some cases it may also be appropriate to make findings on an alternative basis in case the judgment is overturned on appeal. This principle is relevant because in this case there are factual issues on which the judge did not make findings, such as the issue whether Patwant had made more than one loan of £30,000 to Tony. It is obvious that a judge could be criticised for causing excessive cost if he seeks to investigate every matter that was raised in the trial, even if it is not necessary to do so for the purposes of his decision.

Appellant's criticisms of the judgment, the respondent’s submissions, and my response

[33]I now deal with the principal matters of criticism relied on by the appellant. Mr Thomas Graham appears for the appellant, Tony’s executor, and Mr John Robson for the respondents, Patwant and Makinder. Both counsel appeared below for their respective clients. I deal with these matters under the following headings: ◦ The 1999 letters ◦ Inconsistency with Patwant’s pleaded case ◦ Gift ◦ Demeanour ◦ Namita’s lack of knowledge ◦ Pyara’s ignorance of the agreement ◦ Makinder’s ignorance of the agreement ◦ Lack of a written record of the agreement ◦ No transfer executed ◦ Tax paid on rental income ◦ Payment of rent into an account in Tony’s name after the alleged agreement ◦ The second loan by Patwant ◦ Meeting of 1 July 2007 ◦ Namita’s letter of 15 July 2007 ◦ Failure to call Bud ◦ Documentary evidence

The 1999 letters:

[34]The appellant's case is that these letters were inconsistent with Patwant’s case. In my judgment, that is self-evident. It was not necessary for the judge expressly to state that that was so. He did not suggest that it was otherwise. However, the letters did not mean that Patwant could not make an agreement with Tony on different terms. I will now explain these points.

[35]The February 1999 letter: Mr Graham submits that the judge failed to appreciate a key inconsistency in Patwant’s case. The offer made by Tony in February 1999 and subsequently in September 1999 was inconsistent with the agreement alleged to have been made at the centenary celebrations. On Mr Graham’s submission, the letter dated 1 February 1999 was no more than an offer to enter into an arrangement. He submits that Patwant struggled in his evidence with this fact. He wanted to establish that he had accepted this offer and he said that there had been “acceptance in the head”, which was not communicated. On Mr Graham’s submission, this evidence was nonsensical. It was a telling point against acceptance of the offer two months later. The judge overlooked the point that acceptance was contrary to Patwant's case at trial. The point that the judge made in his judgment was that it indicated that Patwant was not telling lies. He was wrong on that. It indicated that it was unlikely that there was any agreement at the centenary celebrations.

[36]Mr Robson submits that the question was whether there was an understanding or agreement. There was no inconsistency between these letters and the agreement which Patwant said was ultimately made.

[37]September 1999: Mr Graham submits that the judge failed to resolve key issues in dispute. Namita’s case was that Patwant indicated that he did not wish to proceed. The judge failed to rule whether in September 1999 the claimant rejected the offer three months before the alleged agreement.

[38]In my judgment, Mr Robson is correct in his submission that there is no fundamental inconsistency. The fact (if true) that Patwant did not wish to proceed on the basis of the transaction on offer in February 1999 did not mean that he was not made a better offer at the centenary celebrations at the end of 1999/early 2000 or that he would not accept that offer. In my judgment these events do not take the appellant very far and it certainly cannot be said that the judge could only draw the inference from the rejection of Tony’s offer in September 1999 that no agreement was made three months later.

Inconsistency with Patwant’s pleaded case:

[39]In my judgment there was an obvious inconsistency between Patwant’s pleaded case and his case at trial. But it could not be said that Patwant’s case at trial was a recent fabrication. The question of the weight to be given to the discrepancy was a matter for the judge. I will now explain these points.

[40]Mr Graham submits that inconsistencies in Patwant’s case are apparent from his PoC. In his PoC, Patwant alleged that there had been an agreement that preceded the February 1999 letter but there was in fact no such agreement. On his submission, the judge should have drawn adverse inferences from this inconsistency. Likewise, the judge, on Mr Graham’s submission, failed to have regard to the vagueness of the arrangement set out in the PoC. The case on that earlier agreement was abandoned because acceptance was only in his mind. Notwithstanding this, the judge made a finding that there was an agreement for the exchange of properties and a discharge of the sum of £30,000 pursuant to an agreement.

[41]Mr Robson submits that Patwant went on to plead the agreement on which he ultimately relied. The pleadings were not confused. Consideration was pleaded. Witness statements were exchanged some 18 months before the trial. They set out the position in some detail. There were no further particulars because of the witness statements. Mr Graham submits that the particulars were inadequate, but Mr Robson submits that hat point takes one nowhere.

[42]In his oral argument, Mr Graham fairly accepted that neither this point nor the last one on the 1999 letters was a “killer” point. In my judgment, neither is a basis for contending that the judge should have drawn an inevitable inference that Patwant’s case about the agreement at the centenary celebrations was a fabrication. The judge clearly recognised that the agreement was a most unusual one and that he had to look at the circumstantial evidence most carefully. In those circumstances, Mr Graham fails on this point to show that the judge was in error. In my judgment, the judge could have taken a stronger line on the disparity between Patwant’s pleaded case and his evidence at trial. However, that was a matter for the judge. There is nothing to suggest that he has made an error that would entitle this court to interfere.

Gift:

[43]The judge expressly rejected Namita’s case that Patwant gave his share in Nakuru to Tony (J 33). Their relationship was not father and son and there was no historic record of gifts. He also held that a gift in Patwant’s favour was also unlikely as a transfer of value from the younger to the older family member was unusual. This was a question for the judge. I would therefore reject any criticism of the judge’s judgment based on this issue.

Disparity in value between Rectory Gardens and Nakuru:

[44]Mr Graham’s point is that the judge gave no weight to this factor. In my judgment, the judge did have regard to the element of gift in the agreement which Patwant alleged. On the other hand, he downplayed the importance of the disparity in values, holding that there was a substantial gift either way. I would accept that at first sight at least this reasoning is unconvincing. It takes no account of the fact that the transfer of value by Tony was far greater than the transfer of value by Patwant. However, the question is not what the properties were objectively worth but what value the property had to the parties. As Mr Robson submits, there was clear evidence at the trial that Tony was concerned that, when Pyara died, he might lose Nakuru and have to move out. It is clear that Nakuru was such a prestigious place to live that it might have been a terrible loss of face for Tony to have to move elsewhere. In those circumstances I do not consider that the judge was clearly wrong not to attach more weight to this point than he did.

Demeanour:

[45]Mr Graham criticises the judge’s approach to the demeanour of witnesses. In my judgment, the judge was not materially wrong in the way he approached demeanour for the reasons which I shall now amplify.

[46]Mr Graham submits that the judge erred because he started with the assessment of the claimant’s witnesses from their demeanour and then cross-checked his evaluation of them against some only of the other evidence. I have dealt with this aspect of demeanour already. The judge did not fall into error by relying on demeanour in the way that he did, provided that he considered whether his assessment of demeanour was consistent with the objective evidence in this case. The judge relied on the oral testimony given by Patwant. The judge had to ask himself whether the oral evidence was inherently improbable by reference to the documentary and other evidence in the case. The judge performed that task. He made what he described as an initial assessment that Patwant was a truthful witness, then considered the other evidence in the case and then came back in the end to Patwant’s credibility. In other words the judge concluded that the other evidence in the case did not affect his view of Patwant’s credibility.

[47]Mr Graham also criticises the judge for asking whether the witnesses had come to the court to lie. On his submission the judge should have asked what the evidence told him had happened. There is in my judgment force in this submission. In his supplemental judgment, the judge makes the point at least three times that to have accepted the appellant's case he would have to have found that Patwant was lying. He had still to be satisfied that Patwant had made out his case. However, in my judgment he did this by resolving the conflict between the parties’ cases by relying on the respondents’ demeanour and credibility as witnesses. In my judgment, as already explained, he was entitled to do this.

[48]Mr Graham goes so far as to submit that the judge was wrong to hold that answers that Patwant had given in oral evidence which were unfavourable to himself told him that the claimant was not lying. On Mr Graham’s submission, Patwant was incapable of giving a coherent account of the agreement and was a very evasive witness. However, as I have explained, this court is reluctant to intervene where a trial judge has made an assessment of a witness in the witness box because he had the advantage of seeing the witness. I do not consider that this court can interfere with the judge’s assessment in this case. There is no contemporaneous evidence that fundamentally undermines or weakens the judge’s assessment. The same points apply to Mr Graham’s criticism of the judge’s assessment of Niki’s evidence.

Namita’s lack of knowledge:

[49]Mr Graham submits that the judge failed to draw the right inference from the fact that Tony did not disclose the agreement to Namita. On his submission, the judge failed to draw the obvious conclusion, which was that there was no such transaction at all. But the answer to this point is that the judge considered it and he concluded, as he was entitled to do on the evidence, that there were matters which Tony did not disclose to Namita and that Namita was not fully informed about his affairs.

Pyara’s ignorance of the agreement:

[50]Mr Graham relies on the judge’s failure to draw inferences from Pyara’s lack of knowledge about the agreement. Pyara drew up an allocation of assets to Tony, in which Rectory Gardens appeared as Tony’s property. Pyara was oblivious of the transaction. As Patwant’s brother, Tony’s father and the person who had arranged for the purchase of Rectory Gardens, he should have been consulted about the sale of Rectory Gardens.

[51]In my judgment, the fact that Tony did not tell his own father or that Patwant did not tell Pyara about the transfer of Patwant’s half-share to him is a slender piece of evidence given(1) the inharmonious relationship between them from time to time; and

(2) the fact that Pyara would no doubt disapprove of Tony disposing of the home which he as his father had acquired for him to protect him against the risks of political instability in Kenya. Indeed that fact might have been the original reason for keeping the transfer secret and not executing a form of transfer. There was, moreover, clear evidence before the judge from the communications from Tony to Patwant that Tony on occasions told Patwant not to use the fax in Nakuru. This could only be because Tony wanted to keep some things away from other family members’ eyes. Thus, it is not a necessary inference from the fact that Pyara was not informed of the agreement that the agreement was not made and accordingly the judge cannot be criticised for not drawing that inference.

Makinder’s ignorance of the agreement:

[52]Mr Graham’s submits that Makinder’s ignorance of the transaction, even though she was closely involved in Patwant’s affairs, was another indication that there was no agreement for the exchange of properties. On his submission, it beggars belief that she would not have known about the agreement over seven years. I agree that the result is odd but again I do not see how it could be said that the judge was plainly wrong to find that the agreement was made. Makinder’s ignorance of the agreement did not inevitably mean that there could not have been an agreement between Patwant and Tony. Makinder’s evidence was not a central issue in the case. The judge recognised that this was an odd feature of the case but could make no more of this point. In my judgment, it was for him to decide what weight to give to this evidence.

Lack of a written record of the agreement:

[53]Mr Graham submits that there was no documentary evidence recording the alleged agreement in writing, including no reference to it in correspondence, and that the judge wrongly drew no inferences from this fact.

[54]In my judgment, the judge dealt with that point too (J 35). The judge clearly did not accept that the Suri family were always, as suggested, “meticulous record keepers”. In fact, Namita makes this point only about Pyara. But Pyara did not necessarily know about the agreement between Patwant and Tony: it is noticeable that he did not sign the transfer of Patwant’s share in Nakuru to Tony although there was a space for him to do so, which suggests that he was not told about it.

No transfer executed of Rectory Gardens:

[55]Mr Graham submits that the judge should have drawn adverse inferences from the fact that Patwant did not express any concern about the failure to transfer Rectory Gardens. There was some evidence that Tony said he was coming to England. However, the matter was allowed to drift. There was no evidence that any transfer was placed before Tony for signature or explanation as to why that could not be done in Kenya.

[56]Again I do not consider that the judge can be held to be plainly wrong because he failed to draw these inferences. The inferences that Mr Graham seeks to draw are not inevitable. Patwant and Bud always had the title deeds. Patwant thought he had protection as a result of having the deeds. It was therefore open to the judge to draw other inferences, as he did.

Tax paid by Tony on all the rental income from Rectory Gardens:

[57]Mr Graham submits that the judge failed to make the necessary inference from the fact that tax must, on Patwant’s case, have been paid by Tony on rental income that he did not receive. In my judgment, there is no finding to support this. The tax may have been paid out of the rental income in which case the payment of tax does not give rise to a necessary inference at all but is equivocal as to Patwant’s ownership of Rectory Gardens.

Payment of rent into an account in Tony’s name after the alleged agreement:

[58]Mr Graham submits that this point indicates that the agreement relied on by Patwant was not made. The judge considered this point (J 34) but in his judgment it was not determinative. In my judgment the judge was clearly right on this. It was obviously possible that the rent account was maintained in Tony’s name (or that of Tony and Namita) because he was the legal owner of Rectory Gardens. An assurance by Patwant or Makinder that this was happening would moreover not be false. Furthermore, Tony regularly sent signed blank cheques from Kenya to Patwant and Makinder so that they could freely draw on the monies in the account: this was open to the explanation that this was done because of Patwant’s interest in the property.

[59]Mr Graham submits that we should draw adverse inference from the fact that in May 2007 Makinder opened a new account for the rents in her own name. However, Mr Robson informs us that this was a trust account. Mr Graham ripostes there was no evidence as to the setting up of a trust account or as to the accountants’ advice. Namita was not told. Moreover, submits Mr Graham, the judge did not address these points.

[60]In my judgment, there is nothing in this point. As I read the judge’s judgment, he clearly accepted Makinder’s evidence that the new account was set up on the accountant’s advice to ensure that the monies were kept separate, no doubt until the matters of dispute had been resolved (J 23). She did not inform Namita but, as she was acting on advice, her actions throw no light on the question whether the agreement was made.

The 2002 emails:

[61]Mr Graham relies on the 2002 emails to which I referred at paragraph 23(vi) above. Mr Graham submits that, if Patwant’s case were correct, then Tony could use or authorise the use of Rectory Gardens in the way these emails suggested. Mr Graham submits that the judge did not refer to these issues or reach the logical conclusion that there had been no such transaction as Patwant alleged.

[62]While, at first reading, these emails suggest that Tony continued to be the owner of Rectory Gardens after the agreement with Patwant, in my judgment, this criticism of the judge is wholly inadequate as a ground of appeal. As I said above I consider that the correct interpretation of the judge’s judgment is that he considered that he could attach little weight to these documents in the light of the evidence he had heard about the traditions of the Suri family. It cannot be said that it was plainly wrong for the judge to do this.

The second loan by Patwant:

[63]Mr Graham submits that the judge was wrong to find that Namita was in error about this. However, the question whether a second loan was made was a collateral matter, and it is clear from the judge’s concluding paragraphs that it had no great weight. He accepted that there could simply be a mistake about dates. There were various other grounds for concluding that the agreement could have been made without Namita knowing about it. Namita accepted for instance that she was not acquainted in any detail with the arrangements for the management of Rectory Gardens in Tony’s lifetime.

Meeting of 1 July 2007:

[64]The judge made no findings about what Namita contended were important admissions against interest by Patwant and Bud at this meeting. The starting point is to see what the parties said occurred. According to Namita as soon as she arrived at the house, Bud started filming her. Namita’s witness statement describes the material events at this meeting, including the admissions, as follows:

“I asked Uncle Pat for the title deeds to 9 Rectory Gardens and Phoenix life policy documents that Tony had left with him and or Bud. Uncle Pat and Makinder flatly denied all knowledge of the documents. When I reminded Uncle Pat of Tony’s offer to him in l999 to buy the property and which he had declined saying we should keep the property for our children, he became very emotional and kept reassuring me that 9 Rectory Gardens was solely Tony’s asset. He kept saying Tony had been like a son to him. At that point his daughters became very guarded in case he said more than he should have. Uncle Pat was in physical pain having suffered a fall a month after Tony’s death. The fall had caused him to fracture his leg in several places and I believe the fracture had not healed properly. Uncle Pat looked incredibly sad and started lamenting at Bud’s behaviour. Bud, upon having been verbally attacked for his behaviour by his father and sisters and told to pack his bags and leave, suddenly blurted out that Uncle Pat and Makinder were lying and the title deeds relating to 9 Rectory Gardens were safe in his possession. He also said that his family had told him to deliberately behave badly towards me so that our talks would be effectively destroyed and my future contact with Uncle Pat would stop. After sharing a tense meal, the children and I left the house. The meeting left me feeling upset and shocked by what I had witnessed.”

[65]Patwant for his part denied that he had given Namita an assurance that Rectory Gardens belonged to Tony. Bud was not called to give evidence and so could not be asked about what he had said.

[66]The question for this court is whether the judge’s omission to deal with this meeting constituted an omission to deal with key evidence. Mr Graham makes the following submissions. At that meeting there was an admission that ownership of Rectory Gardens was that of the deceased. Bud behaved badly and there was no challenge to that admission. There was evidence of concerted attempts to coerce the defendant into submission and a conspiracy to hide the title deeds. This was inconsistent with Patwant’s case. Namita’s evidence was the subject of cursory cross-examination by the claimant. Namita’s case was that they were trying to bully her and that an admission was made. The judge does not set out the admission or deal with it.

[67]In my judgment, the judge took the view that what happened at the meeting was not a material matter for the purposes of his decision. By this date, Patwant had already made his claim to Rectory Gardens known to Namita: he did that in the week following the funeral at Nakuru and twice more by letter. He caused Bud to write to Namita on 25 May 2007. He himself wrote to her on 5 July 2007 in these terms so far as relevant: “I wish to bring to your attention that: a) … b) … c) Earlier on he needed funds for completion of his Embakasi plot and I loaned him £30,000. As time went by he suggested I takeover the Wollaton Property for £150,000 less £30,000 (the loan) i.e. £120,0000. In the meantime he suggested that the property be taken over and as he anticipated a visit to UK he would regularise the paperwork. Unfortunately his visit did not materialise. The arrangement he had in mind was that it would be a fair exchange in settlement of his indebtedness to me with the Nakuru House and the £30,000 loan repayment. I should therefore be grateful if you will kindly register my claim”. a) … b) … c) Earlier on he needed funds for completion of his Embakasi plot and I loaned him £30,000. As time went by he suggested I takeover the Wollaton Property for £150,000 less £30,000 (the loan) i.e. £120,0000. In the meantime he suggested that the property be taken over and as he anticipated a visit to UK he would regularise the paperwork. Unfortunately his visit did not materialise. The arrangement he had in mind was that it would be a fair exchange in settlement of his indebtedness to me with the Nakuru House and the £30,000 loan repayment.

[68]Mr Graham makes the point that to describe the agreement as an “arrangement which he [Tony] had in mind” differed from the case put by Patwant to the judge, which was of course that there had been an agreement to this effect. If there had been such an agreement, Patwant would, on Mr Graham’s submission, more naturally have said that there was an agreement in 2000. In this letter, on Mr Graham’s submission, Patwant was just talking about a unilateral arrangement. Mr Graham makes a similar submission about the letter of 25 May 2007, which I summarised in paragraph 23(viii) above.

[69]In my judgment, the judge would be in error if he had failed to deal with key evidence at the trial. What is key evidence depends on the case. Clearly it could include evidence that had to be considered in order to form a fair view of the credibility of a witness if that is in issue in these proceedings. In these proceedings, the credibility of Patwant was the key issue in these proceedings as matters turned out. Accordingly the question which has to be asked is whether the events at the meeting on 1 July 2007 were key to determining his credibility.

[70]I am not therefore satisfied that by not making findings on the meeting of 1 July 2007 the judge failed to make key findings. The admission alleged to have been made by Patwant is not wholly clear. If Patwant made the statement attributed to him, it may have been with reference to the period before the agreement was made at the centenary celebrations. It would also have been inconsistent with the claims which he made in his letters of 25 May and 5 July 2007 for Patwant to make any admission against interest at the meeting on 1 July 2007. The difference in the formulation of the claim in those letters and his case at trial does not undermine that point. In each case he made a claim to Rectory Gardens. Moreover, the judge thought it appropriate to take into account that Patwant was not a lawyer and that his first language was Punjabi, which could account for some imprecision in his use of language.

[71]The same applies to the admission attributed to Bud. Patwant was clearly having difficulties with his son Bud. The solicitors’ attendance note of 18 July 2007 states that at that consultation Bud was inebriated. Namita’s evidence also states that Patwant threw Bud out of the house at the meeting on 1 July 2007. What was said about the title deeds is in my judgment of little import since they were bound to be in Tony’s name and that would not of course mean that no one else had a beneficial interest in Rectory Gardens. Bud’s admission of a conspiracy between other members of his family against Namita was a matter that could have been put to the other members of the family when they gave evidence.

[72]It would clearly have been better if the judge had explained explicitly and in terms in his judgment or his supplemental judgment why he was not dealing with the admissions alleged to have been made at this meeting. However, that error is not fundamental to the fairness of the trial and it therefore does not assist Namita to obtain an order for a retrial of this case.

Namita’s letter of 15 July 2007:

[73]I have summarised this letter in paragraph 23(xii) above. Mr Graham submits that the judge should have referred to this because the bullying to which it refers supported her case that there was a conspiracy against her. The judge did not refer to it, but as it merely sets out her evidence as to what happened at the meeting of 1 July 2007, in my judgment it adds nothing to that matter.

Failure to call Bud:

[74]Mr Graham submits that there could only be one conclusion, namely that Namita’s evidence about this meeting was correct. There is an attendance note between Bud and his solicitor. The judge did not refer to this. That, submits Mr Graham, was consistent with an attitude wishing to put pressure on Namita and bullying her into submission. The judge could have found that Bud’s bad behaviour to Namita was motivated by a desire to help Patwant’s claim. The judge simply does not pursue this line of thought.

[75]However, as I have said already, what took place at the meeting could have been sufficiently put to other witnesses for Namita to pursue this aspect of the case. In all the circumstances, the judge’s refusal to draw an adverse inference from the failure to call Bud cannot on these facts be said to be clearly wrong.

Documentary evidence:

[76]Mr Graham made an omnibus submission to the effect that the documentary evidence, that is, the 1999 letters, pleadings, 2002 emails and letters which Patwant wrote or caused to be written after Tony’s death all point one way and the judge should have drawn the inference that Patwant’s case must be wrong. I have dealt with each of these documents separately.

Other issues

[77]I must finally deal with other submissions made by Mr Graham and the judge’s rejection of the appellant's claim for an account.

Mr Graham’s cumulative weight argument

[78]Mr Graham accepted in argument that there was no inevitable inference that the transaction did not take place from any one of the individual factors on which he relied. Rather he submits that it is a question of the cumulative weight of the criticisms which he makes of the judge’s judgment. On his submission, the judge did not address the total effect of his points, which were downplayed. It necessarily follows on his submission that the judge was wrong and did not deal with the evidence in a balanced manner.

[79]I accept that I must look at matters in the aggregate. However, when aggregated these points have to be considered according to their probative weight. I have considered in detail above what I consider their probative weight to be. In my judgment, even when the points made by Mr Graham are all put together their probative weight is not sufficient to displace the judge’s overall conclusion. They are as I said before mostly complaints about the weight which he gave to various items of evidence. It is not the function of an appeal court to disagree with a trial judge on a question of weight. They were conclusions to which he was entitled to come. Before an appeal court can interfere, it must be satisfied that the judge went beyond the latitude that is given in matters of weight. I have dealt separately with the meeting of 1 July 2007, but again, for the reasons which I have explained, in my judgment the judge’s failure to make findings as to the admissions and events at that meeting does not in my judgment amount to an error which leads to the conclusion that his judgment must be set aside.

Mr Graham’s criticisms of the judge’s supplemental judgment

[80]Mr Graham submits in terms that the court should not take the judge’s supplemental judgment at face value. There was on his submission no fair consideration: there was simply a compendious assertion. He submits that the judge was perverse. For the judge merely to say that he had regard to documents is not enough. In any event, he submits that if he had gone back to the documents he would have been driven to the opposite conclusion.

[81]In my judgment these criticisms of the judge’s supplemental judgment are excessive and unfounded. The judge clearly did consider the submissions that had been made to him and he took the trouble to set out a summary of the main points in his judgment. As I have demonstrated the judge was entitled to take the course he did in relying on demeanour cross-checked against the circumstantial evidence and to resolve the conflict of evidence by reference to demeanour if all else failed. In those circumstances the most helpful course he could take was to summarise his reasoning in the way that he did.

Written submissions filed after the hearing

[82]At the end of the hearing the court asked for submissions on what test it should apply if it found that the judge had failed to deal with any significant matter and whether the court would find assistance in the test propounded in Bond v Dunster Properties Ltd

[2011] EWCA Civ 455

in the case of a delayed judgment. The appellant took the opportunity to file very substantial submissions with a file containing no less than 28 new cases. The submissions went far beyond what the court had sought. In those circumstances, while not wishing to appear ungrateful for the assistance intended to be given, I do not consider that it is appropriate in this judgment to deal with them in detail. I have taken from them some elements but I do not consider that I should spend time explaining why I have not used more of this material. In the event it has not been necessary to pursue the point on which the submissions were sought. Appeal against the judge’s refusal of the executor’s claim for an account of the rents and profits prior to the agreement

[83]I do not consider that Namita has discharged the burden, which on this issue is on her, of showing that she is entitled to an account for the period prior to the transfer.

[84]Mr Graham’s argument in respect of Namita’s alternative claim for an account is that the reasons given by the judge ((1) lack of any money paid to Kenya prior to the transfer and (2) lack of any request prior to Tony’s death: see paragraph 27 above) were insufficient in law and against the weight of Namita’s evidence. If he is right about that, then the judge was wrong in law to deny the account she sought.

[85]Namita gave evidence on two points that were particularly relevant to the question of an account:(a) that she and Tony were content for the rents to be accumulated in England for the benefit of their children and

(b) they had both made gentle enquiries to Patwant about the rent and not received satisfactory replies to their enquiries.

[86]I would reject the argument that the judge’s conclusion was contrary to the weight of the evidence. The judge clearly accepted that, with Tony's agreement, the rents were used to pay the expenses of the property, the tax due on the rents and the supplementary pension to Patwant. The two specific matters to which he refers in paragraph 15 of the supplemental judgment are circumstantial matters which confirm this evidence. There was evidence at trial that Tony signed tax returns disclosing the income and presumably claiming a deduction for the expenses of maintaining Rectory Gardens. There is also evidence that he received accounts which would have shown him if there was any surplus to which he was entitled. The judge could in these circumstances properly infer that he agreed to the rents being used as they were used and that, if Patwant and his daughters had not been entitled to use the bank accounts as they had done, there would have been some evidence that Tony had made a request for the money before his death or he would have told Namita about the matter.

[87]Evidence as to a mere “gentle enquiry" was in my judgment simply equivocal and not probative of who was entitled to receive the surplus rents. Namita did not adduce evidence to show that she had asked for an account prior to Tony's death. She said that she was positively assured that the rent was being paid into an account in their names and being accumulated there. The judge does not refer to that point which of course conflicted with the respondents’ evidence as to how the rentals were being used. But the judge must have had this evidence in mind when he came to his conclusion on the question of an account since he gave his judgment immediately after hearing all the evidence.

[88]There was also the evidence which the judge accepted that in the extended family benefits were extended to those in need and did not necessarily therefore follow legal entitlement. This likewise tended to support Patwant and Makinder’s defence to the claim for an account. Summary

[89]For the reasons given above, I would dismiss this appeal. APPENDIX extract from SUPPLEMENTAL JUDGMENT OF HHJ ELLY

[90]I agree.

[91]I also agree.

Cited in 1 later judgment

Khadim Hussain v Allah Hussain & Ors 2023