Slater v Stephen Mark St Patrick Condappa [2012] EWCA Civ 598

Case No B2/2011/0632[2012] EWCA Civ 598
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE GERALD
Claim No CHY 09782
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/05/2012
Before
MR JUSTICE WARREN
Between
YVONNE LETITIA SLATERAppellantSTEPHEN MARK ST PATRICK CONDAPPARespondent
Ms Slater the Appellant appeared in Person for in personMr Condappa the Respondent appeared in Person for in personHearing Hearing date : 14th October 2011
JudgmentMr Justice Warren :
[1]This is my decision in relation to Ms Yvonne Slater’s renewed application for permission to appeal from the judgment given on 4 November 2010 of HH Judge Gerald sitting in the Central London Civil Justice Centre. This matter came before me on 14 October 2011. I heard submissions from Ms Slater on that occasion when it became apparent to me that her application could not be dealt with properly without(a) the benefit of a transcript of the hearing before HH Judge Gerald and(b) amended grounds of appeal clearly articulated by reference to the transcript. I made an order for provision of a transcript at public expense and for the filing by Ms Slater of further particulars of her grounds of appeal. The transcript has now been produced and Ms Slater has delivered a document headed Further Particulars of Grounds of Appeal (“the Further Particulars”) in accordance with directions which I gave after the last hearing. It is an unfortunate fact that some of the audio recording is missing and from time to time answers given by a witness could not be transcribed. I have read the entirety of what is available.[2]In making the direction which I did following the hearing on 14 October 2011, I gave fairly lengthy reasons for taking the course which I did. That is unusual on an application of this sort, but I considered that it was right to explain to the parties, both appearing in person, why I was doing so in order that they should understand what it was that Ms Slater should do.[3]For the same reasons, this judgment is unusually long for an application of this sort. As will be seen in due course, I allow, to a very limited extent, Ms Slater’s application for permission to appeal but refuse it in relation to most of her grounds of appeal. Ms Slater is entitled to know why I am granting only limited permission to appeal and needs to understand what it is she is able to raise. It is therefore necessary to deal with her points in some detail. I hope, also, that this judgment, read with my earlier reasons, will be of some assistance to the court which hears the appeal.

Some general points

[4]The case turned largely, if not exclusively, on the credibility of Ms Slater and Mr Condappa, the only witnesses. The Judge formed the lowest opinion of Ms Slater’s credibility on the basis of a plethora of evidence; this included evidence of her lying and perjuring herself in the past.[5]The judge also formed a poor view of Ms Slater while giving evidence. He referred to her suggestion that she had come clean, observing that she had come clean to the court but not to any of the persons or agencies who had suffered as a result of her dishonesty. She had come clean to the court because it suited her to do so but it did not suit her to do so in respect of any other matters. The judge found Ms Slater to be a dishonest person who was not telling the truth in front of him any more than she had told the truth in the past.[6]In contrast, he found Mr Condappa to be honest.[7]Ms Slater now complains that the Judge placed far too much reliance on her admitted dishonesty in relation to matters nothing to do with this action. She suggests that the amount of consideration given by the Judge to these previous matters “seems perverse and as such was unforeseen”. She now makes this submission:
“so as to ensure justice is seen to be done it has become necessary for Ms Slater to request permission to adduce and explain the medical extenuating circumstances. This is likely to reduce the detriment to her credibility and ensure that Mr Condappa’s credibility is reassessed….This would not have been necessary if her past actions were not being relied upon so heavily as being detrimental to her credibility within these proceedings”
. I reject that complaint as forming any basis for a suggestion that an appeal would have any prospect of success and I reject her application to adduce medical evidence as I indicated I would in paragraph 17 of my earlier reasons. The Judge was careful to note that it did not automatically follow from previous dishonesty that she was lying in the action before him and that he had to bear firmly in mind that it does not mean that she was then lying. He observed, obviously correctly, that the history of dishonesty did, however, mean that he should approach her evidence with the utmost caution and special care.[8]Ms Slater asserts in the Further Particulars that her (admitted) lies all related to “the one issue of retaining her council house” as if this diminished the significance of the lies. There are two points to make. First, the lies involved multiple deceptions, of the local authority (both as to occupation of her flat and as to an award of housing benefit), the legal aid board and the court itself. Secondly, to repeat, these lies did not lead the Judge to conclude that she was lying to him; rather, he concluded, as I have said obviously correctly, that he should approach her evidence with the utmost caution and special care. I should add that in making that submission, she refers to the lies as having been told “for the same reasons of retaining the property so that Mr Condappa could utilise her right to buy option”. The Judge, however, rejected the submission that Ms Slater was doing what she did in order to enable Mr Condappa to acquire her flat through the utilisation of her right to buy. She cannot, I consider, rely on the proposition that this was the reason for her lies as in itself a ground of appeal. What she might in theory do is to seek to overturn that finding as part of her appeal: but I do not consider that there is any real prospect of success in her doing so, although if she succeeds in those aspects of the appeal in respect of which I am granting permission, the likely outcome would be an order for a re-trial where this issue would once again become live.[9]Other aspects of the Further Particulars go to Mr Condappa’s own credibility. The Judge found him to be honest. There was, however, one aspect of his evidence which might be said to show him in a bad light. The Judge mentioned it but, although critical of Mr Condappa’s behaviour, did not consider that it showed him to be an unreliable witness: see [61] to [63] of the judgment. When giving evidence in cross-examination, Mr Condappa said that he had no interest in a property owned by his mother, 5 St Dunstan’s Road. He later said in re-examination and admitted that in 1999/2000, his mother had effectively transferred the beneficial ownership of the property to him and that the purpose of that transfer was to hide it from the legal aid authorities so that she could get legal aid to fight a claim against her employer. But Mr Condappa said that he did not, either at the time of the hearing or previously, regard himself as the owner. He was warehousing the property for his mother. What the Judge does not record is that this change of evidence occurred after Mr Condappa had spoken, with the consent of the Judge, to his lawyers and another person during an adjournment although there is, of course, no evidence as to what they actually spoke about.[10]In paragraphs 73 to 79 of the Further Particulars, Ms Slater goes into a great deal of detail about this aspect. It is clear, however, that the Judge appreciated two things; first, that Mr Condappa had been involved in a deceit of the authorities in order to assist his mother to obtain legal aid in relation to a dispute with her employer and that he knew that this was what he was doing at the time and secondly, that he had lied to the Judge in cross-examination in relation to his understanding of the transactions concerned.[11]I do not propose to set out in detail what the Judge said about Mr Condappa’s conduct (see [63] of the judgment). The Judge was, however, critical of Mr Condappa but recognised that his actions had not been to acquire and retain assets for himself. He said that lying to the court or otherwise is to be deprecated. He noted that Mr Condappa had lent his name to a deception of the legal aid authorities, not for his own benefit but for his mother’s benefit. He said that “that, of course is disgraceful and to be deprecated but it does not, in my judgment, cause me to be unduly concerned about the evidence which he has given in relation to the matters in issue in this case”. That approach, in the light of all the evidence received by the Judge, and viewing matters in the round, is one which, in my view, the Judge was entitled to take.[12]Ms Slater has sought permission to adduce further evidence relating to mortgage applications. I indicated in paragraph 19 of my earlier reasons that I would refuse permission to adduce that evidence, making a formal direction when dealing with the current application. I see no reason to depart from my preliminary view. Ms Slater is seeking to reverse factual findings by producing evidence of the most peripheral nature which should have been produced at the trial. It would be wrong in principle to admit this material now.

The Grounds of Appeal

[13]Turning to Ms Slater’s grounds of appeal as set out in the Further Particulars, she makes long and detailed submissions under the headings “The Right to a Fair Hearing before an Impartial Adjudicator” and “Failure to Act as an Impartial Adjudicator”, her amended Grounds 1 and 6. Within this section she raises matters which would really be more appropriate to her Ground 2, but I will deal with them in the current discussion since they are raised in that section. I have read carefully what she has to say and examined what the transcript reveals. It is perhaps unfortunate, but nothing more, that the Judge referred to the use of a wheel-chair but that is more a complaint about inappropriate judicial conduct rather than a matter indicating bias of any sort. There is nothing, I think, in the suggestions that the Judge was not acting in an impartial way because of his interventions in the cross-examination of Ms Slater. I do not accept for a moment that his interventions as revealed by the transcript come anywhere near the boundary over which a judge should not stray, either separately or cumulatively.[14]However, at paragraph 17 she focuses on what the Judge said about inconsistency in her evidence concerning the alleged discussions in 1995 and 1997. This was a matter I mentioned in my earlier reasons at paragraphs 6 to 12. She points out that it was the Judge himself, and not Mr Condappa’s counsel, who raised the issue. She points out, correctly, that she was not questioned at the trial about the 1997 discussion but was questioned only in relation to the 1995 discussion. She says that in her particulars of claim and her witness statement she gave references to different conversations not mentioning the 1997 conversation in the former, but that she had never said that the latter contained an exhaustive list.[15]Nonetheless, the manner in which her case developed was unsatisfactory. Thus, in the original Particulars of Claim, Ms Slater pleaded that on numerous occasions during the relationship there were discussions to the effect that she and Mr Condappa had equal shares, giving as an example “when the parties were discussing purchasing 41 Central Park Avenue in 1995 and 1999”. But in her witness statement, nothing was said about a discussion in 1995 at all; the first discussion referred to was the 1997 discussion mentioned by the Judge in [66] of the judgment. I will come to that in a moment.[16]But what happened at the trial (as appears from the transcript) was this. Counsel cross-examining Ms Slater said that it was not entirely clear when Mr Condappa was first said to have been saying that half the house was hers. Her response was that it was during discussions, in 1995, about what to do with the council property. It was at that point that the Judge intervened to get confirmation that 1995 was the first time the Mr Condappa had stated that the property was held by them jointly. The cross-examination then moved on and the alleged conversation in 1997 was never addressed.[17]So what we have is a pleaded case unsupported by any evidence prior to oral evidence at trial (that there had been discussions leading to an agreement in or by 1995) and a witness statement asserting a discussion in 1997 which had not been pleaded and in respect of which no amendment was ever sought. Seeing how matters progressed at trial, it is unfortunate, although not entirely surprising, that things became muddled.[18]As to the 1997 discussion, the Judge set out in [66] of the judgment Ms Slater’s evidence in her witness statement; and that is all we have save for a denial by Mr Condappa that such a conversation ever took place. I am bound to say that what she said in her witness statement is slightly odd if, as she maintains, it had already been agreed, by 1995, that she had a half share in the house. I will not set out again what she said. But it included the assertion that she questioned Mr Condappa about her status regarding the house and how it would change when they got married. He is alleged to have replied that there would be no changes and that he already considered the home as jointly owned, questioning the need to “pay money needlessly to have documents changed when we know where we stand with each other”. I say that is odd because, if she already believed that she had a half share and if, as seems uncontroversial, she was content to remain with a half share and no more, why would she question how her status would change on marriage. It would make more sense to ask that question if she had held the belief that she did not, prior to that conversation, have any interest. None of this was, however, put to her in cross-examination.[19]Ms Slater sees the Judge’s intervention and his eventual finding as indicating bias. I disagree. The Judge was perfectly entitled to ask the questions which he did. And if he has, in his judgment, made an unjustified assumption, that is, at most, a matter for an appeal on the basis that he has made an error. But insofar as she relies on it as indicating some sort of bias or other impropriety on the part of the Judge, I do not consider that Ms Slater establishes any ground for an appeal which has any, let alone any real, prospect of success.[20]It is also to be noted that counsel for Ms Slater did not refer at all in his oral closing to the alleged 1997 conversation. The focus was entirely on the alleged 1995 and 1999 conversations. Very little was said in the exchange between the Judge and counsel for Mr Condappa. There was one mention by counsel of a 1997 discussion, otherwise the position as identified by the Judge was to focus only on 1995.[21]What the Judge concluded (see [71] of the judgment) was that it was “utterly inconceivable” that Mr Condappa would have gifted half of the house to Ms Slater only one year after seeing off the claim of Ms Birch in circumstances where she, Ms Slater, had only recently moved in, by whom he had no child, who had no money or other assets or means of support and who was not at that stage making any financial contribution even via SMC to any household or other expenses. That reasoning does not apply, at least in its entirety, to a conversation in 1997 if there was one. Of course, the Judge’s reasoning in relation to the 1995 conversation has very considerable force and, if his conclusion about the 1995 conversation is correct, it must cast considerable doubt on Ms Slater’s evidence that there was a later conversation in 1997. Nonetheless, it can be argued that the Judge might well have seen matters differently if he had been addressing a conversation in 1997, a conversation which Ms Slater said took place (although denied by Mr Condappa) and about which she was not cross-examined. It seems to me that this is a matter which she ought to be able to ventilate on an appeal (but subject to what I say about detrimental reliance in paragraphs 56ff below) since it gives rise to an argument, which is not simply a fanciful argument, that the Judge might have reached a different conclusion had he focused on the 1997 conversation too (if there was one).[22]The next complaint which Ms Slater raises relates to the failure of the Judge to note a number of identified alleged inconsistencies in Mr Condappa’s evidence which, according to her, show that the Judge should have regarded him as far less reliable witness than he did. The inconsistencies went to his statements and evidence about the state of his relationship with Ms Slater from time to time. She submits that as the main issue was the credibility of herself and Mr Condappa, those discrepancies were very relevant and should have been mentioned. She says this:
“Mr Condappa’s discrepancies and furtive/evasive answers had direct bearing on his credibility; but were not noted, just ignored. His honour had mentioned in his judgment that he had the benefit of assessing both parties (pt65, p29 of judgment). However, it is clear from that assessment that Ms Slater’s past appeared more important than the Defendant’s current lies and detriment to his credibility in this claim. This showed clear bias against Ms Slater and together with everything else that happened at the trial deprived her of a fair hearing of her claim.”
[23]I reject the allegations of unfairness and bias. If the Judge could not properly have reached the conclusions which he did on the evidence before him, or if he failed to give adequate reasons for his conclusions, that is a different matter which I will deal with in a moment. But having read the transcript I can see nothing at all which would support an allegation of unfairness in the way in which the Judge conducted the trial or bias in his decision-making process. It must be remembered that Ms Slater was represented by counsel and there is not a single instance of counsel being treated unfairly or even of having a disagreement with the Judge. Ms Slater has produced nothing to suggest that her legal team considered that she had been unfairly treated in any way.[24]Next, Ms Slater attacks Mr Condappa’s credibility because of his reliance on an affidavit which she had sworn in relation to her flat at 41 Central Park Avenue. The Judge noted at [53] of the judgment that Ms Slater accepted that she had perjured herself in this affidavit. I have not seen the affidavit and do not know the entirety of its contents. It is true that in his defence Mr Condappa said he would be relying on the affidavit to the extent that Ms Slater had sworn that the relationship between them had deteriorated to such an extent that she was staying at the property on sufferance. And yet, says Ms Slater, Mr Condappa carefully revised his position in his witness statement to imply that some aspects of the affidavit were untrue (as Ms Slater admits they were). This material was all before the Judge, of course. There is no reason to think that he did not have it well in mind when making his assessment of the witnesses. He might well have considered that the discrepancy between Mr Condappa’s pleading and his witness statement, if one really existed at all, was slight compared with the perjury which the affidavit displayed. This was an ex tempore judgment in relation to which the Judge cannot be criticised for not dealing with each and every issue which played its part in his overall assessment of the witnesses.[25]The same goes for her complaint about an alleged discrepancy between what Mr Condappa said in a supplementary statement dated 8 October 2010 about the state of the relationship and the fact, as admitted in a previous witness statement, that they were engaged in 1996. In any case, I do not perceive the discrepancy which Ms Slater purports to identify. The paragraph of the supplementary statement is followed by paragraphs from which it is clear that the parties were engaged to be married but go on to say that it was unlikely that they would in fact marry.[26]Complaints are also made about a suggested disparity of treatment by the Judge of Ms Slater herself and Mr Condappa. The Judge had asked her to provide more statements regarding her TD Waterhouse account but did not give the same instruction to Mr Condappa. But the first reference to this was in response to a request from Mr Condappa’s counsel for production; and later on, it became clear in the course of cross-examination that some pages of the accounts were missing and the Judge quite naturally asked for them to be provided. I expect that the Judge would have done the same in respect of Mr Condappa had it been necessary. But it was not, because Mr Condappa did furnish his account statements to the court. Now, Ms Slater did not know that that had been done because she was late arriving in court when they were handed over. That, however, is totally irrelevant since her counsel was in court and did receive them. There is absolutely no prospect of Ms Slater establishing on an appeal that the Judge was, in this regard, guilty of bias or of unfairness in a disparity of treatment of the parties.[27]Ms Slater complains that the Judge improperly continued to question her about the reason for retaining 41 Central Park as her address, She says that she had already admitted lying in the previous litigation and that her evidence must therefore be treated with care. She asserts that it was therefore unnecessary for him to delve further, especially after cross-examination had finished and during which certain aspects had not been raised. But the Judge’s delving, as she put it, was material because it elicited the fact that she retained the benefit of her lies, namely retention of council accommodation to which she had not been entitled and the fact that she had not informed the council of her lies and misrepresentations. The Judge was entitled to ask the questions which he did. The fact that he did so displays, in my view, no arguable case of bias and does not justify giving permission to appeal.[28]Next, she says that the Judge was wrong in his conclusions in relation to Mr Condappa’s involvement in the possible acquisition of 41 Central Park. In the course of dealing with that issue, the Judge rejected the reasons which she had given for retaining the property which she had said was so that he at some stage could buy it. She makes points in relation to his findings and how no impartial judge could have reached the conclusion which he did on the evidence before him. I disagree and consider that there is no real prospect of her establishing on an appeal that the conclusions which the Judge reached were ones which he could properly have reached on the evidence before him. I should, however, qualify that conclusion by saying this. If Ms Slater were to succeed on the aspects of the appeal in respect of which I am giving permission, that might impact on the Judge’s findings in other respects, including his findings about the reasons she gave for retaining the property. What consequence that might have will be a matter for the court hearing the appeal.[29]Complaints are made about the way in which the Judge questioned Mr Condappa about why his mother’s house was transferred to him. I do not consider that his questioning was inappropriate and do not consider that her criticisms of the Judge’s conduct stand any real prospect of leading to a successful appeal.[30]Finally, under these grounds of her appeal, Ms Slater objects to the Judge’s comment, during the course of the closing submissions of Mr Condappa’s counsel, that she was a wholesale fraudster. I think Ms Slater misunderstands what the Judge was saying. From a reading of the transcript, it can be seen that his comment was made in the course of an interchange with counsel for Mr Condappa. The Judge made his comment in anticipation of what counsel was about to submit – namely that she was a fraudster.[31]Accordingly, I do not, in summary, consider that Ms Slater’s appeal based on Grounds 1 and 6 of her Grounds of Appeal has any, let alone a real, prospect of success.[32]The next section of the Further Particulars deals with “Perverse Findings of Fact”, “Failure to Consider Evidence and Material Facts” and “Failure to Consider Evidence and Material Facts”, which formed Grounds 2, 3 and 4 of Ms Slater’s amended Grounds of appeal.[33]The most important of these matters concerns the 3 pdf documents and the 3 Word documents referred to by the Judge in [57] to [59] of the judgment. There is no doubt that 3 letters bearing the letterhead of Manhattan Computer Service Ltd were scanned into one of the computers used in connection with the SMC business. Ms Slater accepts that that was so, although it is not clear who she says did the scanning. Mr Condappa’s case is that it was nothing to do with him and that he only discovered the documents, along with the Word documents, in the circumstances described in [58] of the judgment. It is also clear that the text of the 3 Word documents is virtually the same as that found in the scanned letters. The layout, however, is different in the scanned documents from the layout in the Word documents and the text is very slightly different in two of the pairs in that a time appears as “am” (in lower case) in the scanned documents whereas it appears as “AM” (in upper case) in the Word documents. It is thus entirely unclear how, if at all, the scanned documents relate to the Word documents. The Judge did not make any comments on these differences.[34]Mr Condappa’s case was that he found the scanned documents and the Word documents in the folder which he had copied across from Ms Slater’s computer before she took it away. And the “properties” of the documents (as displayed when calling up the documents on the computer screen) were those put to Ms Slater in cross-examination. If his evidence was true, it would follow that Ms Slater created the Word documents although what follows from that is not entirely clear to me at least.[35]Mr Condappa was, of course, examined in chief and cross-examined about these documents. As a matter of fact, all he was able to say, and all he did say, about their creation was that he found the documents in the folder which he had copied and that the “properties” appeared as he explained and as had been put to Ms Slater.[36]As to cross-examination, it is rather more than unfortunate that parts of the transcript are missing. It is apparent that some early parts of Ms Slater’s cross-examination on Day 1 are missing, including the part where the scanned documents were first put to her. Also, according to Ms Slater, the missing parts include the cross-examination of Mr Condappa in relation to both the scanned documents and the Word documents. I had been hoping very much indeed to see a transcript of this part of the cross-examination. Be that as it may, her case on this application for permission to appeal is that, during that part of Mr Condappa’s cross-examination which is missing from the transcript, Mr Condappa told the Judge (who in any case, according to her, had professed himself to be a computer expert) that the creation date shown was genuine because the information contained in the “properties box” could not be changed or manipulated in any way. It may be that the missing cross-examination, assuming Ms Slater’s recollection to be correct, does not matter because her counsel returned to the matter the next day. But without seeing the precise questions asked, it is impossible to know whether Mr Condappa was addressing his answers to changing the date on which a document had been created (so that a document originally created on one day could have its apparent creation date in the “properties” display changed to an earlier or later date) or whether he was addressing his answers to creating a document with an apparent creation date different from its actual creation date.[37]A later part of the cross-examination does appear in the transcript. Ms Slater attaches great importance to this (although I doubt that it can carry the weight which she would have it bear). It is to be noted that, overnight, Ms Slater had created a document which showed a creation date in the future. She had done so by setting her computer clock to that future date and then creating and saving the document. The document’s “properties” continued to show that future creation date even after the computer clock had been reset to the current time and date.[38]It was put to Mr Condappa, and he of course accepted, that it was possible to reset the computer clock, including changing the year. He accepted that by changing the date on the computer clock, the dates of “various files” (to use Counsel’s words in the question put) would also be changed. But his evidence was nonetheless to the effect that the “stats” were not changeable, saying that “The stat document will actually show if the dates have been changed… That is a Microsoft document. It cannot be changed”. If the dates have been changed, his evidence was that the stats would show if the date had actually been changed.[39]Having given that evidence, Mr Condappa was then confronted with the document which Ms Slater had created overnight. Counsel said “This is Ms Slater writing a document overnight having changed the (off mic)… the system clock and coming up with dates for the created, modified, accessed and printed which are in the future”, going on to suggest that this demonstrated that these dates can be changed if the system clock is changed. Mr Condappa’s response was that “It demonstrates that it can be changed for the future but it cannot change them in the past. This is what the idea of the stats are, past tense, not present….”. Counsel responded “I suggest that is incorrect” but did not take the matter further. It is impossible to tell from the transcript whether this was because he had reached the end of his questioning or because the Judge himself asked some questions and, having obtained some sort of answers, said “Okay, next point” and matters moved on.[40]I go into this in detail because Ms Slater detects inconsistency and change in testimony from Mr Condappa on which the Judge has relied to make adverse findings against her and appears to criticise the Judge for not investigating further, presumably by asking some searching questions himself. But I do not think that this is fair on the Judge or indeed Mr Condappa.[41]It is not fair to Mr Condappa because what he appears to be saying in this part of his cross-examination was that the stats were not changeable. In other words, once a document had been created showing a particular date of creation, the stats page would record that as the date of creation for ever and it could not be manipulated. The document produced by Ms Slater overnight is completely irrelevant to that since that document did not raise any question about changing the creation date of an existing document (as to which Ms Slater has not at any time produced any evidence or suggested any exists); it was concerned with creating a new document with a future date. It may be that Ms Slater is right when she says that it is easy to create a document with an apparent creation date in the past in the same way as with a future date by resetting the system clock before creating it. But that is a different matter and was not put clearly to Mr Condappa.[42]Nor is it fair on the Judge. The Judge concluded (see [59] of the judgment) that Mr Condappa was telling the truth about how he had come across the scanned documents and the Word documents. He said this:
“The creation and modification dates of the Word documents support what he says and furthermore it was the Claimant (not the Defendant) who would create documents because that was part of her skills…….”
. The Judge was certainly not basing his assessment solely, or perhaps at all, on the accuracy of a proposition that a Word document could not be created with an apparent creation date earlier than its actual creation. He can be read as saying merely that his conclusion was consistent with the dates shown in the “properties” of the documents. Nonetheless, it is at least arguable that the Judge did rely on that proposition as part of his reasoning in concluding that Ms Slater fabricated the documents. As to that proposition, there was in fact no evidence to support it even from Mr Condappa if my reading of what he said is correct and, in fact, it could well be wrong. There was, of course, no escape from the conclusion that one of them must have been lying. Either the documents were obtained in the manner which Mr Condappa explained, in which case they were fabricated by Ms Slater, or they were generated by Mr Condappa, who could have done so by the process of resetting the computer clock etc.[43]The Judge concluded that Mr Condappa did not create the Word documents. It followed that Ms Slater must have done so. Having reached that conclusion, he was entitled to conclude that she also fabricated the letters (that is to say the scanned documents), expressing himself in strong language: he was “sure” (using that word to indicate the standard of proof he applied) that she had done so. He was also entitled to conclude as he did that she did so in order to enhance her claim for damages in the road traffic claim. Although I consider it unlikely that Ms Slater would be able to persuade an appellate court either(i) that the Judge proceeded on a misunderstanding that the creation date of a newly-created document could not be made to appear as a date in the past or in the future (through the mechanism of re-setting the computer clock) or(ii) that the Judge might, had he understood the position properly, not have held that it was Ms Slater who had created the Word documents (either being unwilling to resolve the point, alternatively finding that it was Mr Condappa who created them), I cannot say that she has no real prospect of success. If the Judge had decided that the documents were created by Mr Condappa, or perhaps even if he had made no decision at all, it can then be argued that this may have had an impact on the Judge’s assessment of Ms Slater’s credibility and that his decision on the main issue should be set aside (leading inevitably to a retrial). Highly sceptical as I am of this argument, I cannot say that an appeal on that point has no real prospect of success; it is something which should be addressed in the light of full argument and not simply in the context of an application for permission to appeal. This is a matter which Ms Slater ought to be able to ventilate on an appeal in the same way as the alleged 1997 discussion.[44]I would add this comment. Neither party appears to have approached Manhattan itself to see if it retains a copy of the original letters to Ms Slater. Even if there was not an opportunity to do so at the trial, the evidence having come in very late, nothing is sought to be adduced by way of further evidence on this application. Whether that will remain the position on the actual appeal is up to the parties (subject to permission to adduce the original letters or copies if they exist).[45]Ms Slater’s next attack is on the Judge’s failure to attach any weight to many alleged discrepancies in Mr Condappa’s evidence concerning when she started work in relation to SMC and the extent of the work she did. This, like so many of Ms Slater’s attacks, goes to the credibility of Mr Condappa. This is just the sort of generalised attack which really comes to this, that the Judge should, on the evidence, have reached a different conclusion about the credibility of Mr Condappa. In contrast, she says that the slightest discrepancies in her own evidence were seized on by the Judge as grounds to discredit her evidence and to show her as fraudulent. I have read carefully more than once those passages of the transcript to which Ms Slater refers in the Further Particulars. I do not detect in those passages anything which casts doubt on Mr Condappa’s honesty. What the questioning extracted was a better and more accurate identification of the time when Ms Slater first started working on SMC business and when she started doing physical work. She also says that she became involved with paperwork in 1994. She relies on a document which was in the trial bundle (at file 5, 5.866) and which she appends to the Further Particulars. That document does not appear to have been relied on at trial and does not, in any case, demonstrate on its face that Ms Slater was involved in its preparation or with its subject matter. But even if she is right, it does not go anywhere near showing, whether by itself or in conjunction with all the other material on which she relies, that the Judge’s assessment of her credibility was wrong.[46]The Judge dealt with SMC in [28] to [34] of the Judgment. His conclusions, in summary, were these. Ms Slater and Mr Condappa were essentially partners or jointly entitled to SMC throughout the period of their relationship (nothing turning on the precise start or end dates of that relationship). There were no accounts and no tax returns. That made it very difficult to form a view as to precisely what money was produced by the partnership although the Judge does refer to a schedule produced by Mr Condappa: see [31] of the judgment. Not only were there no accounts, but the major part of the receipts were cash. Cheques were paid into Mr Condappa’s Midland Bank account but the Judge concluded that this was only a small percentage of income.[47]At [33]. The Judge referred to the evidence of Mr Condappa (which he found difficult to follow and which he said seemed to be accepted by Ms Slater) that the cash was not banked: Ms Slater would work out what their respective shares were and the cash would be split. Mortgage payments were made by Mr Condappa, but not out of SMC cash.[48]It was impossible, the Judge concluded, to work out with even the broadest basis of accuracy what, if any, profit was actually made during any of the relevant years. He said that Ms Slater shed no light on this. The Judge speculated that the profit might have been 25% to 50% of turnover, but most likely much less than that. The Judge accepted (see [81] of the judgment) Mr Condappa’s evidence that Ms Slater kept a running total of what the supposed profits were and that she kept her own share of the cash and did whatever she wanted to do with it. At no stage did he really know what was going on in the SMC business. The Judge also accepted his evidence (see [82] of the judgment) that Mr Condappa’s paid employment was sufficient to meet all mortgage, endowment and other outgoings. And he accepted Mr Condappa’s evidence that the SMC income was really icing on the cake, providing a higher standard of living and holidays which they would not otherwise have been able to afford.[49]Ms Slater is critical of these findings. But I can find no fault with them having followed the oral evidence through by way of the transcript. Ms Slater might have liked the Judge to come to different conclusions, but whatever else may be right or wrong, she has to accept that Mr Condappa was, for most of the time, earning a salary when she was not earning anything and that the profit of SMC is extremely difficult to pin down. Her submissions (found at paragraphs 59 to 61 of the Further Grounds) are an attempt to re-litigate matters which the Judge has determined. She refers to her witness statement for the trial which at paragraph 33 contains a schedule of deposits, outgoings and salary in relation to Mr Condappa’s bank account. She suggests that he simply did not have enough income to meet the outgoings on his account from his salary; and that the Judge reached a perverse finding in holding that he was able to meet his outgoings (mortgage payments and endowment policy premiums etc, whatever etc might be) from his salary. But Mr Condappa responded to that in his supplemental witness statement and Ms Slater then had a response of her own in a further statement. Curiously, there seems to have been no cross-examination on this by either side: at least, the parts of the transcript which is available reveal none. Putting it at its highest from Ms Slater’s point of view, some or her share of the profit of SMC might be seen as discharging part of the mortgage interest. But that is far from clear. The Judge held otherwise. I do not consider that an appeal from his findings has a real prospect of success.[50]Ms Slater’s next complaint relates, in effect, to the way in which the Judge controlled the cross-examination. Before a short adjournment, the Judge said to counsel that “we just need you both focused…. Because a lot of the relationship points about whether or not they were engaged and all that sort of stuff is pretty much agreed now really. I mean there are minor credibility issues but….”. Her counsel, following that indication from the Judge, did not put to Mr Condappa a 40th birthday card, her 40th birthday being on 18th September 2004, a date after he maintained that their relationship was over and she had left the house. The card, on its faces, appears more than affectionate. It lends support, she would say, to the existence of a continuing relationship and supports her version of events that she did not leave the house until 2005. She says that where credibility is a major issue, the Judge did not fulfil his judicial obligations in hearing the claim. She had given specific details in her statement “proving that Mr Condappa was being untruthful about relevant dates and events within the relationship which appears to have been disregarded although they were very relevant”. As to that, I make two comments. First, the Judge was entitled to restrict cross-examination on issues which were not directly relevant to the claim being made and which went only to credibility. He had a mass of material on which he was able to assess the witnesses and the resolution of a dispute about details of timing within this relationship was clearly something he saw, perfectly reasonably, as disproportionate. In any event, it is quite wrong to say, as Ms Slater does, that her counsel could not address the birthday card in cross-examination. If he had considered it important, he could have asked a few brief questions even if the Judge might have been irritated. As it was, he did not do so; nor did he attempt to say anything about this in his submissions. This conduct on the part of the Judge affords not the slightest ground, in my view, for any appeal.[51]Complaint is made that the Judge failed to take account of a 2000 Christmas card and the message at the bottom “From 19 February 2000, sign IOU x”. Counsel suggested that the date was the anniversary of the 1999 agreement alleged by Ms Slater about the house. The Judge would not allow that question stating Ms Slater had never suggested in her own evidence that the 1999 conversation took place on 19 February. That was not in fact correct. Ms Slater had covered this point in her witness statement dated 12 August 2010 at paragraphs 16 to 18. Unfortunately, her counsel did not pick the Judge up on this and moved on. Mr Condappa was not asked to explain further what he did mean by “IOU”. Instead, he simply denied that there was ever an agreement that “she was now the owner of Dongola Road” as counsel put it to him. It is hardly surprising that he denied that. Even Ms Slater had not put her case as high as that; she had not claimed that she was now the owner, that is to the exclusion of Mr Condappa, although in practice, if the agreement was as she alleges, she would be the owner if their relationship came to an end, even at her instigation. Counsel then moved on. I find it very difficult, in any case, to see how Ms Slater can say that the IOU message related an agreement that she should own the house in certain circumstances. The message says nothing about the house or about any agreement. She gave no evidence about any conversation which she might have had with Mr Condappa about what he meant by the message. Of course, if there was an agreement, the IOU message is consistent with it. But the message is equally consistent with their being no such agreement. And in the absence of a cross-examination demonstrating that Mr Condappa had no plausible explanation for the IOU message in the absence of an agreement concerning the house, it is impossible to draw any inference one way or the other from the message about ownership of the house.[52]The next section of the Further Particulars deals with “Too Much Consideration Given to Past Litigation” which formed Ground 5 of the amended Grounds of appeal. I have addressed this in paragraphs 7 and 8 above. In my judgment, an appeal on this ground has no real prospect of success.[53]The final section of the Further Particulars deals with “Perverse Interpretation of the Evidence”, which formed Ground 7 of the amended Grounds of appeal. With one exception, this ground adds nothing to what has gone before and there is no particularisation of where the Judge is said to have gone wrong. The one exception is what one finds in [94] of the judgment in relation to her letter dated 19 June 2006 to Mr Condappa. In that letter, she wrote “Do you remember how quick you were to tell me you wanted nothing more to do with the kids last July? I took half of the money of the shares that I sold, money to which I was entitled to, that I took to prove a point to you and your family because that is what gets your attention and that I gave it back to you within one week.”[54]Mr Condappa, of course, denied that she had any right to a share of the money. His counsel cross-examined Ms Slater in relation to the passage from the letter which I have just quoted trying to elicit from her why, if she was entitled to it, she gave it back, a question to which she gave no satisfactory answer. In the light of all the evidence, the Judge reached the conclusion that she did not in fact have any right to the shares (and accordingly not to a share of the money either). In that context, it seemed to him that she was telling the truth “when she said that she took the £18,000 to teach the Defendant a lesson, and the lesson was ‘don’t mess with me’”. When he went on to say that this (taking the money to teach Mr Condappa a lesson) demonstrated that she knew perfectly well that the shares were not hers and she had no claim to money, he was saying no more, it seems to me, than that teaching him a lesson was not consistent with a genuine claim to the money. That can be seen as reflecting counsel’s unanswered question about why she gave the money back. I do not think there is anything in this complaint either. But even if that is wrong, there is nothing at all in this finding which impacts on the Judge’s finding that there was no agreement concerning ownership of the house. Nor would this reference to what Ms Slater said in the letter, even if it is a misunderstanding of what she was saying, give rise to an appeal with a real prospect of success that the Judge was wrong in his conclusions reached on the totality of the evidence in relation to ownership the shares.

Detrimental reliance

[55]There is, however, a further obstacle facing Ms Slater. Even if she were to establish that an agreement was made in 1995 or 1999 (or even 1997) such as she alleges, that is not enough by itself for her to establish any interest in the house. In order to succeed on that, Ms Slater has to establish “detrimental reliance” as the Judge described the requirement at [85] of the judgment. Although the question did not strictly arise for decision by him in the light of his decision on the absence of any express or implied intention that Ms Slater should have a share in the house, he saw the question as overlapping very much with the issue of inferred common intention. It seemed to the Judge that, on the evidence, Ms Slater simply could not make out her claim to detrimental reliance.[56]As to that, the Judge correctly observed that what happened before 1995 was irrelevant to the so-called oral assurance in 1995 (or, I would add any later oral assurance including the alleged 1999 agreement). Then, as the Judge observed in [86] of the judgment, between 1995 and the late 1990s, all she had were debts. There was the beginning of the build-up of SMC but not much. In any case, that was a separate business.[57]The crux of Ms Slater’s case is set out by the Judge in [87] of the judgment. As the Judge put it, her price of not leaving the home and the relationship was the assurance given by Mr Condappa that she could have the whole property in certain circumstances. But, as the Judge said “Whilst it might be unpleasant if you do not like the person you are staying with, that of itself is no detriment at all”. That is so, at least, if by staying there is no loss of some identifiable benefit or no other way in which a claimant would have been better off by leaving. Ms Slater has produced no evidence to show that, by staying at the home and in the relationship, she has suffered any detriment in regard to her housing needs. Indeed, she was able, having left the house, to move into council accommodation with such right-to-buy benefits (if any) as she is able to assert. Some other detrimental reliance must found.[58]As to that, her counsel, in his closing submissions, identified the detriment relied on as this: These parties pooled their resources from the outset. Mr Condappa’s financial contribution may well have been greater than Ms Slater’s, but that, counsel said, did not take the debate further. They each contributed what they could. They were, in fact, a family unit. Further, it was noted that Ms Slater’s contribution through SMC were eventually accepted by Mr Condappa as substantial. Counsel identified the total turnover of SMC for its most successful years, 2001 – 2003, as about £128,000. But that figure, it must be remembered, was turnover not profit, as to which the figures are most unclear. Counsel also observed that the relationship was not just a romantic: they were involved in business together and by staying in the relationship, Ms Slater continued to be working in SMC.[59]I am bound to say that a challenge to the Judge’s analysis and conclusions on this aspect of the case faces great difficulty. However, what can be said is that the Judge’s approach to detrimental reliance must have been influenced by his conclusions in relation to the absence of any agreement and the absence of any inferred (or imputed) intention that Ms Slater should have a share in the house. If Ms Slater succeeds in an appeal by establishing the existence of such an agreement, it cannot be said that she stands no prospect of success on an appeal seeking to overturn the Judge’s finding on detrimental reliance. This is not to say that she should be allowed to re-open, within the context of the appeal, the Judge’s finding about how the profits of SMC were dealt with, although if success on an appeal resulted in an order for a retrial, it will be a matter for the court when sending the matter back to the County Court to specify whether and to what extent those findings (and the findings in relation to the share accounts) should be open for redetermination.

Disposition

[60]I refuse Ms Slater’s application for permission to appeal on her amended Grounds 1, 5 and 6. In relation to amended Grounds 2, 3, 4 and 7, I grant the following limited permission but otherwise refuse permission. The limited permission is that Ms Slater may appeal against the Judge’s finding that there was no agreement that she should have a share in the house by(i) seeking to show that the Judge proceeded on a misunderstanding of the possibility of manipulation of the “properties” of an electronic document on a computer leading him to an erroneous assessment of Ms Slater’s credibility and(ii) by relying on the absence of any consideration by the Judge of the alleged conversation in 1997 referred to in paragraphs 14ff above. For the avoidance of doubt, if Ms Slater is successful in that appeal and establishes the existence of such an agreement, she is to be entitled to argue that there was sufficient detriment to entitle her to an interest in the house on the basis of the primary findings of fact made by the Judge. Permission is not needed to rely on those findings. It will be for the appellate court to determine what if any reference to the evidence in support of those findings it will allow.