Zabihi v Janzemini & Ors [2008] EWHC 2910 (Ch)

[2008] EWHC 2910 (Ch)Case No HC06C2426
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28 November 2008
Before
MR JUSTICE BLACKBURNE
Between
Kamran ZabihiClaimant(1) Mahmood JanzeminiDefendants(2) Yousef MassodipourDefendant(3) Alounak Kebab LimitedDefendant
Nigel Hood (instructed by Roshanian Payman International Solicitors) for ClaimantDavid Lewis (instructed by Middleton Potts) for First and Third DefendantsPaul Staddon (instructed by Oliver Fisher Solicitors) for Second DefendantHearing Hearing dates: 11 to 13, 16 to 20, 24 to 27, 30 Juneand 2 to 4, 9 to 11 July 2008
Judgment

Introduction

[1]This is the trial of various claims of which by far the most important in value is one relating to some jewellery. The principal persons involved are all from Iran. In essence the jewellery claim is that on 12 September 2002 the claimant, Kamran Zabihi, entrusted a quantity of jewellery with the first defendant, Mahmood Janzemini, at a pre-arranged meeting at Mr Zabihi’s flat in Ruislip. The purpose of so doing, which Mr Zabihi says he had agreed with Mr Janzemini a week or so earlier, was with a view to Mr Janzemini selling the jewellery for him.[2]Mr Zabihi says that the jewellery dated from the 1920s and comprised four sets each consisting of a matching necklace, pair of earrings, bracelet and ring. They were made, he said, to a high quality and consisted of clear diamonds and white gold. He says that the jewellery had been made over to him in Iran (through his representative there, a Mr Shirian) in April 1999 by a Mr Nima Zandieh, who was an Iran-based business associate and a friend from his childhood days, and that this had been in discharge of a US $2 million debt owed to him by Mr Zandieh. He understood that the items of jewellery had been valued very shortly before they were received by Mr Shirani on his behalf.[3]Mr Zabihi says that at the meeting in his Ruislip flat on 12 September 2002 he handed the jewellery to Mr Janzemini on terms that Mr Janzemini would keep the jewellery in a safe at the restaurant operated by the third defendant, Alounak Kebab Limited (“Alounak Olympia”), at 10 Russell Gardens in the Olympia area of West London and that he and the second defendant, Yousef Massodipour, whom Mr Zabihi says that he spoke to about the arrangements the previous day, would be responsible for the jewellery's safekeeping until it was sold or returned to Mr Zabihi. It was to be covered by Alounak Olympia’s insurance policy against risk of theft or loss in the meantime. Mr Janzemini is the controlling shareholder and director of Alounak Olympia.[4]The agreement which Mr Zabihi says he reached with Mr Janzemini at their handover meeting was that Mr Janzemini would try and sell each of the four sets for £125,000 in return for a commission and on the further term that if Mr Janzemini managed to sell all four sets for more than £500,000 Mr Janzemini could keep the balance. Mr Zabihi says that he told Mr Janzemini that he was not to take the jewellery home or show it to anyone other than to Mr Massodipour and any prospective buyer.[5]Mr Zabihi claims that the defendants dishonoured these arrangements in that either the jewellery was subsequently sold but they have failed to account for the proceeds or they have unlawfully substituted other, and substantially less valuable, sets of jewellery and dishonestly claimed that this was the jewellery which Mr Zabihi had handed over at the 12 September meeting.[6]By these proceedings, which he launched on 20 June 2006, Mr Zabihi claims damages for conversion and an account of profits together with other relief including various declarations. Mr Zabihi claims that the jewellery’s true worth at the time that he handed it over to Mr Janzemini was not less than £2 million.[7]Mr Janzemini denies Mr Zabihi’s claims. He admits that he was handed four sets of jewellery by Mr Zabihi at the meeting in Mr Zabihi’s flat in Ruislip in September 2002 but denies that it was the jewellery which Mr Zabihi claims to have handed over. He says that what he received from Mr Zabihi comprised three sets of jewellery each of a matching necklace, pair of earrings, bracelet and ring, and a fourth set, again of matching jewellery but without the bracelet. He says that, as he later discovered, the jewellery was only worth between £20,000 and £25,000 and, moreover, belonged to a Mr Sadoughi. He also disagrees with Mr Zabihi about the terms on which he was to be permitted to sell the jewellery. According to him, the agreement was that he would try and sell the jewellery for not less than £300,000 and that he would be entitled to retain any excess over that figure. He maintains that he was told by Mr Zabihi that the jewellery was worth £340,000 and understood that the reason he could keep any excess over £300,000 was because it would be in repayment of debts totalling £40,000 which were owed by Mr Zabihi to him and Alounak Olympia. In any event, he says, he was unable to sell the jewellery.[8]He produced three sets of jewellery at a meeting on 21 July 2006 (a month after these proceedings were launched) at the offices of the solicitors then acting for him (Messrs Bird & Bird) for inspection by Mr Zabihi, a Mr Buckie (a jewellery expert retained to advise Mr Zabihi) and Mr Zabihi’s solicitor, a Mrs Roshanian of Roshanian Payman International Solicitors (“RPI”) and produced a fourth set at a further meeting, this time on 6 September 2006, again at the offices of Bird & Bird, again for inspection by Mr Zabihi, Mr Buckie and Mrs Roshanian. All four sets were produced for a further inspection by Mr Zabihi and Mrs Roshanian, this time at the offices of Pettman Smith, the solicitors then acting for him in succession to Bird & Bird, on 16 April 2007.[9]Mr Zabihi says that the jewellery produced at those inspections was not what he had handed to Mr Janzemini at their meeting on 12 September 2002.[10]Mr Massoudipour denies any involvement in the matter. In particular, he denies knowing what happened at any meeting between Mr Zabihi and Mr Janzemini on 12 September 2002, not least because, as is common ground, he was not present. He does not put forward a positive case to say what jewellery was handed over although he has not sought to question the fact, which is common ground between Mr Zabihi and Mr Janzemini, that some jewellery was handed over. He denies having seen any jewellery of the kind described by Mr Zabihi. Indeed he denies having seen even the jewellery which Mr Janzemini says that he received until that jewellery was produced during the course of this trial.[11]In addition to the jewellery claim, Mr Zabihi claims against Mr Janzemini £70,000, alternatively damages in a like amount, together with interest, arising out of a loan in that sum which he claims to have advanced to a Mr Hamid Kalhor in August 2000 on the faith of representations by Mr Janzemini. He says that Mr Kalhor has not repaid the loan. He sues Mr Janzemini on the representations. Mr Janzemini denies any liability arising out of any such advance.[12]Mr Janzemini and Alounak Olympia counterclaim against Mr Zabihi for three sums totalling just under £40,000. That sum is made up of £4,000 which Mr Janzemini says that Mr Zabihi received on his behalf in either 1991 or 1992, £6,000 representing a series of loans made by him to Mr Zabihi or at Mr Zabihi’s direction in the course of 2001 and £20,000 which he says he lent to Mr Zabihi in early to mid 2002. Finally, Alounak Olympia claims £9,961 in respect of food supplied by it to Mr Zabihi during the period 2000 to 2003.[13]Mr Zabihi denies liability for any of these four amounts.

The relationship of the parties

[14]The very broad background to Mr Zabihi’s relationship with Mr Janzemini and Mr Massodipour is that in the late 1980s Mr Janzemini had worked for a while, ultimately as a chef, in a family restaurant owned and run by Mr Zabihi and/or his family. In about 1991 or 1992 Mr Janzemini left that employment and set up with Mr Massodipour their own restaurant operating out of two rented portakabins in a car park in Russell Road in Olympia. Mr Massodipour had previously got to know Mr Janzemini (and at one time had shared accommodation with him) but subsequently had gone to work in a restaurant in Lancashire. He and Mr Janzemini kept in touch and they joined forces when Mr Janzemini decided to set up the restaurant from the two portakabins. While running the business from those premises the two of them operated in partnership. After about two years Mr Massodipour went off to run another Iranian restaurant, at 44 Westbourne Grove in Notting Hill. Eventually, he became the sole proprietor of that restaurant business, acquired the lease of the premises from which it operated and incorporated a company Alounak (Westbourne Grove) Limited (of which he is the sole shareholder) through which he has traded for the past ten years or so.[15]In the meantime, Mr Janzemini continued for a while to run the restaurant from the two portakabins. In due course, he had the opportunity to move to premises very nearby at 10 Russell Gardens which had been acquired jointly by one of his brothers and Mr Massodipour. This led in due course to the setting up of Alounak Olympia.[16]The original partnership restaurant run by Mr Janzemini and Mr Massodipour from the two portakabins was called, and the two successor restaurants at 44 Westbourne Grove and 10 Russell Gardens are and have at all times been called, “Alounak” which I understand is the Persian (or Farsi) for “shed” or “shack” (betokening the restaurant’s origin in the two portakabins). It is this fact - the identity of name - linking the three restaurants that led Mr Zabihi, perhaps not unsurprisingly, to assume until after this trial had started that, consistently with the fact that they had operated in partnership while running the businesses from the two portakabins, Mr Janzemini and Mr Massodipour continued in partnership after they established the separate restaurants in Russell Gardens and Westbourne Grove. In fact, as is now accepted, the two of them, although they continued to co-operate closely with one another, ran separate businesses, independent in law from each other, from those two addresses.[17]In time both successor restaurants became very successful. They attracted a wide clientele both from within the Iranian community and from without.[18]Mr Zabihi has been involved in a variety of business undertakings. In contrast to Mr Janzemini and Mr Massodipour, who both appear to have come from modest backgrounds, Mr Zabihi gave the impression of being altogether better placed socially and with extensive connections in Iran. He was privately educated (in Scotland) and is fluent in English. His family, as I understood it, came here shortly before the Iranian Revolution. They appear to have been better circumstanced than Mr Janzemini and Mr Massodipour. There were other differences between them which I shall mention when appropriate as the story giving rise to these proceedings gradually unfolds. The only other background matter I need mention at this stage is that between October 2002 and early 2006 Mr Zabihi was in Iran. The jewellery claim is largely - but not exclusively - concerned with events happening between those dates. By contrast, the monetary claims are almost entirely concerned with events occurring before Mr Zabihi’s departure in October 2002.

Some general observations

[19]As will become apparent when I come in more detail to the claims made and the oral and written testimony that I have heard or read in the course of this trial, there has been an almost total absence of documentary or similar evidence to support the contentions that the parties (principally Mr Zabihi and Mr Janzemini) have made about their respective claims and defences or about the host of other allegations that have been made. Not only that but, in a number of key respects, those whose evidence would appear to be critical to the competing accounts have, in many instances, either not been traced (for example the valuers whom Mr Zabihi and Mr Janzemini both say were consulted - at times critical to those accounts - to provide valuations of the competing sets of jewellery) or been unable or unwilling to attend in person, for example Mr and Mrs Zandieh from whom Mr Zabihi claims to have obtained the jewellery, but, instead, supplied witness statements which, necessarily, have gone untested by cross-examination.[20]Another feature of this trial is, I regret to say, that with a few exceptions those witnesses who did attend for cross-examination did not impress me as persons on whose word, where it was material to an issue that I have to decide but was unsupported by other evidence of unquestioned reliability, I have felt able to rely. The witnesses were frequently given to obvious exaggeration, often contradicted themselves, or denied or claimed ignorance of matters which must have been obvious to them, or became argumentative in the course of cross-examination or, in several cases, denied matters in their own witness statements. In saying this, I have made every allowance for the fact that some of the witnesses needed the assistance of an interpreter so that what I was hearing was the interpreter’s translation into English of what the witness was saying in his own language, namely Farsi. I also allow for the fact that the quality of interpretation, despite the best efforts of the interpreters who were used, was at best patchy. For example, long answers given by a witness in Farsi would frequently emerge, in translation, as a shortened summary. On occasions, others in court who were able to understand Farsi would take issue with the accuracy or completeness of the English translation.[21]A general impression which I quickly obtained, and which became stronger as the trial progressed, was that the dispute over the jewellery had become something of a cause celebre within the Iranian community here in London and that each side had attracted its own supporters from within the community. This division was matched by the fact that, almost without exception, those who gave evidence for Mr Zabihi, including Mr Zabihi himself, were from the same religious grouping, the Baha’i community, whereas the other side were mostly from another, the Muslim, community.[22]In the course of preparing for trial, it is apparent that the parties, particularly Mr Zabihi’s side, had pursued a large number of collateral matters with a view to showing either that (to take one example) the jewellery which Mr Zabihi says he handed over was secretly sold by Mr Janzemini and the proceeds used in this or that transaction or that, in an effort to impugn the credibility of the witness in question, the witness was involved in this or that transaction in circumstances which cast doubt on his honesty or business integrity. An example of this was the attempt to discredit Mr Janzemini by reference to his dealings in various properties which, so far as I could see, had nothing to do with either the jewellery or the money claims. Another example was the attempt to show that Mr Janzemini (or his accountant) had dishonestly completed a mortgage application form for a property in Chertsey Road, Twickenham or that he had disposed of property in breach of the terms of a freezing order which Mr Zabihi had obtained against him. Wherever possible I have avoided going into these matters. Otherwise this judgment would have been a great deal longer than it is.[23]Instead, I have sought to confine myself to the particular claims which arise (that is the claims in respect of the jewellery and the various loans) and avoid speculating on what may or may not have happened in other transactions and therefore on what indirect light those other transactions might throw on the matters which I have to decide or on the credibility of the parties.

Evidence admitted under the Civil Evidence Act

[24]The following witnesses gave their evidence by witness statement alone, adduced under the Civil Evidence Act: Nima and Mitra Zandieh, Mohammad Ali Shirian, Mehdi Motalleb and Sharokh and Mairianne Zabihi (for Mr Zabihi) and Moshen Sadoughi (for Mr Janzemini).[25]Since time and again I found that when cross-examined a witness’s oral evidence was at odds with his signed witness statement I have felt reluctant to place weight on the signed statements of persons who, for whatever reason, have not been tendered for cross-examination unless the evidence related to some uncontroversial matter or was supported by other credible evidence. This has been the case with the witness statements provided on both sides. My reluctance to place weight on such untested evidence has been increased by two considerations. First, in nearly every case, English, the language of the witness statement, was not the first language of the witness; indeed, it was not always apparent whether the witness had any real grasp of English. Second, it was apparent that some at least of the witness statements tendered in support of Mr Zabihi’s claims (or in answer to the defendants’ evidence) had been prepared by RPI (and in some cases by Mr Zabihi himself) for the witness to sign in circumstances where I am far from confident that the statement represented matters known to the witness or accurately reflected what the witness wished to say. Not the least of the difficulties in this regard is that few of the witness statements coming from persons with little or no English were first written and signed in Farsi, the language with which the witness would be familiar, and then translated into English.[26]I have therefore avoided placing reliance on witness statements untested by cross-examination except where I have no reason to doubt the accuracy and completeness of the statement, or passage from the statement, in question.[27]I shall comment on the quality of the evidence of the witnesses who did attend for cross-examination where it is appropriate to do so in the course of this judgment.

The money claims

[28]I propose to deal first with the money claims before coming to the jewellery claim. I do so because, as Mr Hood appearing for Mr Zabihi pointed out, the existence of the money claims by Mr Janzemini and Alounak Olympia against Mr Zabihi is integral to Mr Janzemini’s evidence about what he said was agreed between him and Mr Zabihi when the jewellery was handed to him at the meeting on 12 September 2002.

(a) Mr Janzemini’s £4,000 claim

[29]This turns on events which occurred, at the latest, in 1992. The gist of the claim is that in 1991 Mr Zabihi negotiated the early termination of a lease held by Mr Janzemini as sitting tenant of a flat at 16 Stanwick Road, London W14 in return for a payment by the landlord of £4,000. According to his own evidence, Mr Janzemini was not shown any paperwork in relation to the claim and was unable to verify, of his own knowledge, that this was the sum paid. Sometime later, when in Iran, he said that he arranged for a friend called Mr Shafi together with Mr Zabihi to collect the £4,000. He understood from Mr Shafi that Mr Zabihi insisted that the money be given to him (Mr Zabihi) and that he (Mr Zabihi) would later account for it. On returning from Iran - it was still 1991 - Mr Janzemini said that he called on Mr Zabihi and asked him to pay over the £4,000 but was told by Mr Zabihi that he had spent the money on legal fees which he would repay when he sold a supermarket that he owned. Instead, said Mr Janzemini, Mr Zabihi asked him to help out at the supermarket, which he did. He said that he worked there for several hours each morning and, what is more, did so for no pay. This lasted for five or six months. While so working, he said, he asked Mr Zabihi several times for the £4,000 but the money was never returned., A little later, he said, he and Mr Massodipour opened the original Alounak Restaurant in the car park adjoining Russell Gardens and thereafter he failed to ask Mr Zabihi for the return of the £4,000. This was, he said, because “I was very busy, my business was growing and I knew that [Mr Zabihi] was not doing that well”. He never thereafter pursued the matter until, it would seem, these proceedings.[30]The difficulty about this claim is twofold. First, it is hopelessly out of time and is met by a plea of limitation. (The plea, to be found in paragraph 27 of Mr Zabihi’s defence to counterclaim, refers to “paragraph 36” of Mr Janzemini’s counterclaim which, in its unamended form - see trial bundle 10/33, pleaded that Mr Zabihi was liable to account for the £4,000. But in Mr Zabihi’s amended and re-amended versions of this pleading, paragraph 36 became paragraph 37 as a result of the wrongful duplication of the numbering of two earlier paragraphs. This fact gave rise to some confusion over whether the claim was, in the event, met by a limitation plea. I am satisfied that it was.) Second, and in any event, Mr Janzemini’s own evidence before me was that by 2002 when, he says, he paid £20,000 to Mr Zabihi (the subject of Mr Janzemini’s third money claim to which I will shortly come) he twice agreed in cross-examination that he had forgotten about the £4,000 because it was so long ago. He also agreed that he would not have asked for it back anyway. It is clear therefore that according to his own evidence Mr Janzemini had written off the claim even if, which is very far from clear in the absence of any documentary evidence and any direct involvement by him in the negotiation to terminate the lease, there was an agreement for the £4,000 to be paid, and, if there was, that that sum was paid and, what is more, that Mr Zabihi received it. Mr Zabihi denied having received any such sum. The only other person, according to Mr Janzemini’s account, who was involved in the matter, apart from the landlord whose name Mr Janzemini could not recall, was Mr Shafi. Mr Shafi provided a witness statement for use at the trial but, in the event, did not attend for cross-examination owing, I was told, to his wife’s illness. It was not suggested that I should read his witness statement and I have not.[31]In my view, this claim fails to get off the ground. I should add that nothing in the evidence of Mr Mehrdad Salamat advanced this claim. Mr Salamat, who features in the jewellery claim, had no involvement in the matter and no knowledge of it beyond the fact that Mr Janzemini had once lived at Stanwick Road and that he understood that a payment of £4,000 had been agreed in return for Mr Janzemini vacating the property.

(b) Mr Janzemini’s £6,000 claim

[32]This was for sums which Mr Janzemini claims that he advanced to Mr Zabihi’s wife at Mr Zabihi’s request during 2001. According to his witness statement Mr Janzemini’s account of the matter was as follows:
“21. In or around 2001 the Claimant called me to say that he was in need of some money to give to his wife Anna, because he could not send her money from where he was, the inference being that he was stuck somewhere. The Claimant sounded under pressure and was insistent. I was unable to resist his demands. The total amount lent was the some of £6,000 in instalments of £1000 each time. Some witnesses to these loans were Mr Baboli and Mr Hamid Kahlor. The instalments were give to the Claimant’s father to give to the Claimant’s wife, Anna. 22. The Claimant requested these monies every time through telephone calls to me at my restaurant. He would keep calling me asking for help. Each time the Claimant would ask for more than £1000. As I always felt intimidated and found it difficult to say no to the Claimant, I managed to find an excuse to give only £1000 each time. These requests were made during the year 2001. Each £1000 was given on separate occasions and I recall that they were given sometimes every two months, sometimes only after 1 month or five weeks after the previous request. On every occasion it was the Claimant who telephoned me and asked for money. None of these requests were made in person. 23. Of the six £1000 instalments, I recall once the Claimant’s father came to my restaurant to collect the £1000 and that on two occasions Mr Hamid Kahlor and on two occasions Mr Mahmoudian (my former chef who is now deceased) took payments of £1000 each time to the Claimant’s father in his Baboli Trading office. On the one other occasion, I took the money to the Baboli Trading office and handed it personally to the Claimant’s father to give to his daughter-in-law.”
[33]Mr Janzemini stuck to this account when cross-examined about it.[34]There was no documentary evidence to support the claim. It was not suggested that Mr Janzemini ever formally (by letter) called for the money to be repaid until it was raised in these proceedings five years later. Mr Zabihi denied the claim and denied ever needing to borrow money from Mr Janzemini. Mrs Zabihi, the supposed recipient of these monies, denied having received any money at this time from Mr Janzemini. Mr Zabihi senior denied all knowledge of the matter and, in particular, denied passing any money to his daughter-in-law. There was no evidence from Mr Mahmoudian - said to be the transmitter of two of the instalments - and he is now deceased. Mr Kalhor, who was said by Mr Janzemini to have collected two of the instalments, made no mention of the matter in his evidence notwithstanding that he was called as a witness for Mr Janzemini (in connection with other matters). Nor was he asked about the matter. The nearest support from any third party source was a comment by Mr Baboli in answer to a question in cross-examination by Mr Lewis. He said that he recalled Mr Janzemini calling at his office in 2001 with some money for Mr Zabihi senior but added that he did not know what it was for. Mr Baboli, I should say, was the proprietor of a business called Baboli Trading, based at premises in Hammersmith, which, according to Mr Baboli’s evidence and I accept, was involved in export/import and currency trading/transfer activities specialising in business with Iran and handling cash transfers on behalf of clients. For a while, as I accept, Mr Zabihi senior worked with Mr Baboli at the latter’s Hammersmith office. I deal with other aspects of Mr Baboli’s evidence later in this judgment.[35]I am not willing on the evidence that I have heard to find that these payments were made as Mr Janzemini alleges.

(c) Alounak Olympia’s claim for £9,961

[36]This was for food supplied, according to the pleadings, between 2000 and 2003. Mr Janzemini described the position thus in his main witness statement:
“24. The Claimant’s father regularly organised or took part in Baha'i community functions, concerts and parties. The Claimant and his father would order the food to be provided to the guests at these functions from the Third Defendant. The food was usually collected by the Claimant’s father by van or in his car. 25. In 2000, the Claimant began running the Queensway supermarket owned by Iraj Roshanian, a cousin of …the Claimant's solicitor, and a close family friend of the Claimant. The Claimant made some changes to the layout of the shop and began selling Iranian snacks from a food counter. He asked us to supply him with freshly prepared Iranian food from my restaurant. We began giving him regular supplies of various speciality dishes. I think this went on for 6 months or so until the Claimant negotiated a sale of the lease on behalf of Mr Roshanian. The Claimant did not pay us for this food. 26. On other occasions the Claimant and his family would attend for meals at the Third Defendant. Occasionally the Claimant attended with singers who had performed at the Claimant’s father’s concert. These were not free meals but having worked for them I found it difficult to refuse them. I therefore allowed the Claimant and his father extended credit for their food bills. I believed that when they were ready they would settle their bills and did not feel right chasing them for money. 27. I remember one occasion in early 2002, when the Claimant came to the restaurant for dinner with his father and wider family. When he was asked for payment of the old bills by a member of staff, the Claimant got upset and exclaimed that he was not going to run away. Having said this, the Claimant left with his family without having paid yet again. Just a few months later, the Claimant travelled to Iran and did not return for some three years …”
[37]A number of restaurant bills were in evidence. They totalled around £6,906 in amount. (There may be a small discrepancy in the overall calculation.) Those that are dated stretch from early 2001 to 31 December 2002. They therefore extend over a period which is subsequent to the meeting in Mr Zabihi’s Ruislip flat when the jewellery was handed to Mr Janzemini (the significance of this will appear later) and subsequent to 26 October 2002 when Mr Zabihi left for Iran. (He did not return to this country until early 2006.)[38]Alounak Olympia also relies on two additional sums, one for £455 and the other for £2,600. These amounts are recorded on a piece of paper in the handwriting of a Mr Naresh Jagota who acted as a bookkeeper to the business (and who gave evidence). Against the smaller of those two sums is written, in Mr Jagota’s handwriting, “lamb cutlets for Bayswater” and against the larger amount the words “Khoobideh. Roshan’s Sweet Shop”. If these two sums are added the total comes to £9,961.[39]The assumption made is that all of this food was for the account of Mr Zabihi.[40]Mr Zabihi accepted that for a short period - he claimed it was no more than two weeks - he ordered food for supply to his supermarket but maintained that he paid cash for the food on delivery. By contrast, Mr Janzemini, as is apparent from his witness statement, maintained that these supplies extended over a longer period and were not paid for. But he accepted that much of the food was supplied for large functions organised by Mr Zabihi senior. He said that as these were charitable in nature he only charged half rate or thereabouts. (At one point in his cross-examination he gave the impression that he might make no charge at all if the food was ordered for charitable functions.) He explained, and his elder brother Hamid Janzemin who assisted in the running of the Alounak Olympia restaurant confirmed, that unpaid customer bills would be kept in a plastic bag under the bar.[41]In my judgment, this claim fails. First, Mr Janzemini’s own evidence was that many of the orders were placed by Mr Zabihi senior, not Mr Zabihi, and that he was quite unable to say which if any of the bills represented orders placed by Mr Zabihi himself. Second, according to Mr Janzemini’s evidence, the orders would often be placed with a waiter or the person behind the bar, rather than with himself. So he would not know who it was who had placed the order. Third, it is quite impossible to determine what the circumstances were to which Mr Jagota’s handwritten figures (for £455 and £2,500) related and whether in particular they were for the account of Mr Zabihi.[42]The reality is that Mr Janzemini (and thus Alounak Olympia) appears to have treated Mr Zabihi senior and Mr Zabihi (the claimant) as if they were one and the same. “It is his family” was how Mr Janzemini put the matter in the course of cross-examination. It is also to be noted that no claim was made for any of these sums until these proceedings were launched. By then some of the bills, assuming that they remained unpaid, had been outstanding for over five years. It is impossible to date the two figures in Mr Jagota’s handwriting. Mr Zabihi denied any liability for these amounts. In short, the evidence falls far short of establishing on a balance of probabilities that there is any claim against Mr Zabihi for these items or any clearly identifiable part of them.

(d) Mr Janzemini’s claim for £20,000

[43]As pleaded, Mr Janzemini claimed that in about March 2002 he lent Mr Zabihi £20,000 which Mr Zabihi agreed to repay a month later, the loan being to enable Mr Zabihi to pay a deposit on the purchase of a property. The claim went on to allege that about five to seven weeks after Mr Janzemini had made the loan he demanded its repayment but in breach of agreement Mr Zabihi failed and continues to refuse to repay the loan.[44]Behind this simple claim lies an extraordinary story. Omitting immaterial paragraphs, this is how Mr Janzemini described the matter in his principal witness statement:
“30. In 2002 I wanted to buy a property and having worked independently running my own restaurant/takeaway business for some 10 years, I had managed to save some money for a deposit to buy a property. Up until this point I had always lived in rented accommodation. I was living at a property belonging to Mohammad Reza Massoudipour, the Second Defendant's brother and a good friend of mine at 51 Darby Crescent. 31. I knew Mr Sadoughi as a customer of my restaurant but had only been formally introduced to him by the Claimant's father and Mr Baboli at their offices at Baboli Trading. Mr Sadoughi would come to the restaurant with the Claimant. The Claimant had asked me not to charge Mr Sadoughi as he was close to him. Soon after he told me that Sadoughi's property at 6 Uxbridge Road Acton London W3 was for sale and in or about March 2002, he took me and my brother Yousef to Mr Sadoughi's house to try to sell it to us. We went upstairs to the flat. Mr and Mrs Sadoughi were both there but did not get involved in the discussions about the purchase leaving it to the Claimant to do the negotiating. It appeared to me that the Claimant was helping Mr Sadoughi to sell his property for him. 32. The property comprised of a shop with flats above. The Claimant told us that the purchase price of the property was £550,000. He told us that if we put a deposit down he would guarantee that we would get first option to buy the house. With my savings and help from my family, I had managed to put together a lump sum of about £20,000. I told the Claimant that I had £20,000 for the deposit. 33. The next day when I met the Claimant I told him that we would raise £230,000 through the sale of my brother Yousef’s house and the balance through a mortgage of £300,000. The Claimant suggested we give him the deposit and the money from Yousef’s property which would come to £250,000. Then instead of a bank mortgage we could pay him £2,000 per week over a period of 5 years. This was just the interest on the balance of £300,000 due. He said we could build up our savings by running the supermarket there and renting the flats above the Property and when we were ready we could pay him the balance of £300,000. Under this proposal the interest which the Claimant would have earned would have amounted to £520,000. The Claimant was asking us to pay a total sum of £1,070,000 for a property being sold for £550,000. As this was not financially viable we decided not to buy the house. 34. Unfortunately, the Claimant now knew that I had £20,000 and a few days later asked to borrow these monies. The Claimant said to me that he urgently needed £20,000 as a deposit for a house with a shop in a good location near to his house in Hillingdon. The Claimant added that it was a very good deal, that he would sell the shop in two months for a profit and repay me all the money owed. I understood that I was going to be repaid not only the £20,000 but also the £4,000 held in trust, the loans of £6,000, the restaurant bills and a sum of £2,000 given by me on behalf of the Claimant's father to Darius Noori, a builder who had carried out works for him. 35. The Claimant's father used to be my employer. As I say, I was intimidated by the Claimant and found it hard to refuse him. I brought the cash that I had to the restaurant and asked my brother Hamid to count it. Hamid checked and confirmed it was £20,000. He bundled the cash in £50 notes of £5,000 each and put them in an empty cardboard whisky carton. 36. I called my friend Fardin Motazedi to drive me. We took 2 cars, one being driven by Fardin accompanied by me and the whisky carton with my brother Yousef following behind in his own car. I had asked Fardin to come for security. I needed my brother there so that he could drive back in the second car, as Fardin was going on to see his mother in law. I was met at the door by the Claimant. Fardin and Yousef stayed outside. 37. The Claimant took the money and appeared to be in a hurry. He said he was going to take the tube. I was aware that it was a large sum of money and repeatedly offered him a lift to his home. I explained that I had nothing to do and could take him to his house in Hillingdon. I told the Claimant that it was a lot of money and that it was dangerous to go by Tube with such a large sum of cash. I also offered to take him to his father's office. The Claimant refused all these offers. It was this insistence on taking the Tube in the face of the offer of lifts which first aroused my suspicion that the Claimant was going to cheat me. These fears were realised by a telephone call from the Claimant later that evening. 38. At around 6.30 pm of the same day, the Claimant telephoned me at Alounak restaurant, to say that he had lost the money whilst on the Tube. Whilst I cannot recall the precise words he used, I believe the Claimant used words to the effect “I got bad news, the money is gone. I lost it on the train but don't worry, don't think about it, its just money”
. He reassured me, however, that I would not need to worry because he would still repay the money that he had borrowed from me within a month. I did not ask the Claimant to go to the Police to report the loss as I did not believe that he had in fact lost it. I was shocked and upset, but kept quiet. This is because at the time I gave the Claimant the money and based on the way he was insisting on taking the Tube, I had a suspicion that the Claimant was looking to cheat me. I had never known the Claimant to use the Tube before. He would usually come by car from his home in Uxbridge. I felt that if I now challenged the Claimant on what he was telling me, I would never get my money back. 39. After about 7 weeks I called the Claimant at his father's house in Hillingdon. I told the Claimant that I needed the money now as I wanted to buy something. The Claimant said words to the effect:
“I don't have the money”
. I said - “Can you do something about it?” The Claimant repeated:
“I don't have money now”
. I believe I called him again twice regarding my money. On each occasion the Claimant said he did not have the money to repay me. About a week or so after the third call, I received a call from the Claimant, who told me to come to the Claimant's flat in Ruislip as he had something for me. The Claimant did not, at any time before I went to his house, mention that he had jewellery which he wanted me to sell, or ask whether I knew anyone who might be interested in buying such jewellery. I did not suggest any names or agree to sell the jewellery before the meeting at his house. As far as I was concerned, I thought the Claimant was calling me to his house to pay me back the money he owed me and which I had been chasing him for.” The periods mentioned in paragraph 39 would date the money payment to around mid to late June 2002 although the date referred to in paragraph 31 would suggest that all of this happened some weeks earlier.[45]In his oral evidence Mr Janzemini explained that, contrary to the impression given by paragraph 30 of his witness statement (although the position is a little clearer in paragraph 32), the £20,000 came from the collective savings of himself, his two brothers and his father and also, as I understood it, from the savings of his children. He seemed to recall that his share of the overall figure was approximately £4,000. He also stated that the property towards the purchase of which the money was being saved was to be for one of his brothers. Mr Janzemini also corrected paragraph 31 in that, contrary to the clear impression given by that paragraph, Mr Janzemini explained that Mr Zabihi was not present when he and his brother called on the Sadoughis. Indeed, Mr Janzemini stated that the reason why his witness statement was not correct in a number of respects, including this one, was that nobody read the statement to him before he signed it; instead, and despite his very poor reading skills (at any rate in English, the language of the witness statement) he simply signed it. “If someone had read it to me” he stated “I would have said that it was not right”.[46]Mr Janzemini was cross-examined at some length about paragraph 35. He corrected his reference to being “intimidated” by Mr Zabihi - it appears elsewhere in his witness statement - to intend something more akin to “in awe of” Mr Zabihi. He adhered to his account that the £20,000 had consisted of four rolls, each of £5,000 made up of £50 banknotes, but later accepted that the container, although cylindrical, may not have been a whisky carton because, he seemed to recall, it was slightly larger and made of tin (or the like). The significance of this was (as I was told) that four rolls of £5000 made up of £50 banknotes cannot be fitted into an ordinary, cylindrical whisky carton. I do not think that, save for one point which I come to later, the precise nature of the container matters. Be that as it may, Mr Janzemini stuck to his account of a cylindrical container into which the rolls of banknotes were placed. He also adhered to his account of the circumstances in which the money was delivered to Mr Zabihi. He said that he met Mr Zabihi at the street-level front door to the building in Uxbridge Road. The meeting to hand over the money was, he thought, in the early afternoon. He repeated that Mr Zabihi was acting strangely although, rather contrary to what he stated in paragraph 37, he did not at the time think that Mr Zabihi was going to cheat him.[47]Mr Jagota, Mr Janzemini’s part-time bookkeeper and accountant for the Alounak Olympia restaurant business, claimed to recall visiting the restaurant one afternoon in early 2002 when, going into the basement area, he found Hamid and Youssef (Mr Janzemini’s two brothers) counting £50 banknotes “which they were inserting into a round whiskey carton”. He recalled being told by Youssef whom he asked why they were doing this that it was for Mahmood (ie Mr Janzemini) to give to Mr Zabihi. Later during that same visit he was told, he said, that Mr Janzemini was giving £20,000 to Mr Zabihi.[48]Mr Fardin Motazedi had a slightly different recollection of the occasion. He, like Mr Janzemini (at any rate in his witness statement) and Mr Jagota, seemed to recall the whisky carton. Having, as he told me, once worked as a barman he claimed to recall the name of the whisky - Glenfiddich. He also claimed to recall that the container was made of cardboard and not tin. He recalled that within the container were “neatly folded £50 notes”. In cross-examination he altered this slightly to “rolled up” notes and said that they were put into plastic containers. He said that Mr Janzemini, whom he agreed to accompany to the rendezvous, told him that he was going to give the money to Mr Zabihi. Mr Janzemini told him that the money totalled £20,000. He recalled joking with Mr Janzemini that he should give the money to him (Mr Motazedi) to invest in his business (at the time he worked as a minicab driver). He recalled that they travelled in two cars to the rendezvous which was next to a supermarket in Acton at the junction of Uxbridge and Askew Roads. He and Mr Janzemini were in one car. Mr Janzemini’s two brothers, Hamid and Youssef, were in the other. He was quite definite that Youssef was present. On arrival at the destination he recalled that Hamid and Youssef parked behind his car and remained in their car when Mr Janzemini got out of Mr Motazedi’s car and went to speak to Mr Zabihi at the entrance door next to the supermarket entrance where he handed over the container with the money. He said that while this was going on he remained seated in his own car. He recalled that Mr Zabihi appeared to be in a rush although he could not hear what he and Mr Janzemini were saying to one another. He was not further involved in the matter as he thereafter drove off to call on his mother-in-law. He left Mr Janzemini to travel back in Youssef’s car.[49]Hamid Janzemin said that he recalled his involvement in the matter. Despite the difference in the spelling of his family name, he is Mr Janzemini’s elder brother. Unlike his two brothers he spoke reasonably good English and was able to give his oral evidence without needing an interpreter. He claimed to recall counting out £50 banknotes with his younger brother Youssef in the basement of the Alounak Olympia restaurant having been asked by their brother Mahmood (ie Mr Janzemini) to do so in order to check that there was £20,000. He recalled Mr Jagota coming. He recalled bundling up the banknotes into four bundles of £5,000 each and inserting them into an empty whisky canister. He understood that the money was for Mr Zabihi. There is no suggestion in his witness statement that the £20,000 was other than Mr Janzemini’s. There is certainly no indication in his witness statement that part of it had come from himself. It was only in the course of his cross-examination that he stated that some of it (he named a figure of £4,000 to £5,000) came from himself and from others in his family. Although he regarded Mr Zabihi as having stolen the money (following Mr Zabihi’s call that evening to say that it had been lost on the underground) and was angry at its loss and although as one of the contributors he might be thought to have had an interest in attempting to recover it, he accepted that no one complained about its loss. He said that he himself did not ask for it back because, as he put it, it was a matter between Mr Janzemini and Mr Zabihi. Another feature of Hamid’s account is that, like the account in Mr Janzemini’s witness statement, he made no reference to having accompanied Mr Janzemini and his other brother Youssef and Mr Motazedi to the rendezvous in the Uxbridge Road for the handover of the money. Nor did he volunteer in cross-examination that he was present. If he was present, this was a surprising omission given the apparent detail of other aspects of his recollection of the matter.[50]Youssef too, in his witness statement, made no mention of Hamid being present when the whisky carton containing the £20,000 was handed over to Mr Zabihi although he recalled having earlier counted out the money with Hamid and, more pertinently, having driven in his own car to the rendezvous to bring his brother Mahmood (ie Mr Janzemini) back afterwards. He also recalled dropping off Mr Zabihi at Ealing Common underground station after the handover. Although he accompanied his brother Mahmood to the rendezvous and brought him back afterwards Youssef understood that his brother wanted a witness to the handover which, as he understood it, was why Mr Motazedi had been enlisted. Mr Janzemini had stated, and Mr Motazedi had confirmed, that Mr Motazedi was there to provide Mr Janzemini with “security” rather than to act as a witness. Youssef said that he, like Mr Motazedi, remained in his car while Mr Janzemini handed over the container with the money in it to Mr Zabihi at the street-level front door of the Uxbridge Road property. He did not suggest that Hamid was present. He surely would have done so if Hamid was not only present but, according to Mr Motazedi, seated next to him in his car.[51]Mr Zabihi's evidence was a total denial of the whole affair. There was, according to him, no loan and therefore no meeting at the Uxbridge Road address, no lift to the underground station afterwards and no phone call later that day to say that the money had gone missing.[52]Mr Hood submitted that the accounts of this claim were full of inconsistencies and, when taken as a whole, did not make much sense. If, as Mr Janzemini had claimed, he had advanced £6,000 to Mr Zabihi for the use of the latter's wife only months previously and had failed to get Mr Zabihi to repay that money, his claim to have advanced a further £20,000 was inherently unlikely. It had turned out, he reminded me, that only a small part of the £20,000 had come from Mr Janzemini himself, with the bulk coming from other members of Mr Janzemini’s family. Mr Hood also pointed to the oddity that, according at least to Mr Janzemini, all of the money, that is all £20,000 exactly, happened to be in £50 banknotes, even it seems contributions to that overall figure made from the savings of Mr Janzemini’s own very young children. He also drew attention to the vagueness in the evidence over just where these savings had been kept and how so large a sum had been assembled.[53]Mr Hood pointed to the fact that in their witness statements all of the witnesses claimed to recall, without having any particular reason to do so either at the time or after so many years, that the money was counted up and placed in four bundles (not three or five or some other number) in a circular whisky container and that each of them attempted in their oral evidence to suggest that it might have been something larger than an ordinary-sized whisky container. Next, he said, were the conflicting accounts and oddities of the rendezvous with Mr Zabihi at the street-level door of the property in Uxbridge Road when the container with the £20,000 was said to have been handed over. Why, he asked, was Mr Motazedi invited to accompany Mr Janzemini? Explanations, he said, varied between a concern over Mr Janzemini’s security and the need for a witness. Yet, on any view, Mr Janzemini’s younger brother Youssef was present and, according to Mr Motazedi, who had expressed himself as being quite certain on the point although the others, not least Hamid Janzemin, made no mention of the fact and might have been expected to have remembered it if it was the case, Hamid Janzemin was also present and seated in his younger brother’s car. Why in any event was there a need for security or for a witness when, if his account was to be believed, Mr Janzemini was not under the least obligation to advance the money and, if he wanted evidence of the fact that he had lent the money, could easily have asked Mr Zabihi to hand over a receipt in return.[54]Mr Hood also pointed to the discrepancy between Mr Janzemini’s witness statement and the oral evidence of Mr Janzemini, Mr Motazedi and Youssef, that the money was handed over to Mr Zabihi outside the property in Uxbridge Road in sight of the witnesses in the waiting cars, yet in his Further Information signed on 1 December 2006, he had stated that he was met by Mr Zabihi “on the landing inside the property” and, what is more, that he was not alone but standing in the property with his brother and that Mr Motazedi “stayed by the door”. He pointed out that these are not vaguely recalled details qualified in some way but, on the face of it, distinct recollections which, at the time, Mr Janzemini thought sufficiently significant to set down in writing. Yet, on signing his main witness statement less than three months later (on 12 March 2007) and when giving oral evidence at this trial, the recollection was quite different.[55]Next, Mr Hood pointed to the curious recollection of Mr Janzemini that his suspicions about Mr Zabihi’s motives were already aroused when Mr Zabihi asked to be driven to the nearby underground station yet declined to be driven to his destination, coupled with his belief that, in any event, Mr Zabihi never went anywhere by train. Mr Hood also referred to Mr Janzemini’s recollection of the astonishing claim by Mr Zabihi later that same day that he had lost the money on the Tube and that Mr Janzemini should not worry about it as it was “just money”. Finally, Mr Hood said, was the extraordinary admission which he described as “the most striking oddity about this whole story” that neither Mr Janzemini nor any of other members of his family who had contributed to the £20,000 took any formal steps to call for the money’s return or for the matter to be reported to anyone. Mr Hood submitted that in all the circumstances Mr Janzemini’s claim lacked any credibility and that, putting it shortly, there was no £20,000 advance.[56]Mr Lewis said that the evidence from the witnesses describing how the £20,000 counted in the basement of the Alounak Olympia restaurant was in part unchallenged (at any rate so far as Mr Jagota’s evidence was concerned) and that, although there were inconsistencies in the witnesses’ accounts which was hardly surprising after so many years, the thrust of the evidence was clear: £20,000 in £50 banknotes was handed to Mr Zabihi at the Uxbridge Road meeting and later that same day Mr Zabihi rang to say that the money had been lost on the underground. Mr Lewis went on to submit that the fact that neither Mr Janzemini nor his family complained on being told that the money had been lost must be understood in the context of the relationship between Mr Janzemini and Mr Zabihi in that Mr Janzemini stood in awe of Mr Zabihi for whom he had once worked. It may be, said Mr Lewis, that “for cultural reasons” Mr Janzemini’s silence was a sufficiently clear signal that he did not believe what Mr Zabihi told him.[57]I have dealt in some detail with this episode because it well illustrates the difficulties apparent in all of the claims made in these proceedings: an absence of relevant documentation (“payment” in the case of the loan transactions being alleged in all instances to have been in cash with no kind of receipt or other written acknowledgement), no indication of the terms of the loan made, inconsistencies in the narrative accounts of even key aspects of what happened (for example, who was actually present when the £20,000 was supposedly handed to Mr Zabihi) when set against the odd coincidence of several witnesses claiming to recall what might be thought to be a minor detail (for example, that the £20,000 was made up of four rather than some other number of bundles and that the bundles were placed in a cylindrical whisky bottle container), an apparent failure to register any complaints (except possibly a telephone call which would therefore be unprovable) about the debtor’s default and the failure to raise the matter at all (or some significant aspect of the claim) until years after the event and then only once proceedings alleging other matters had been launched.[58]There is much in this account that I feel unable to accept. Even assuming that Mr Janzemini and other members of his family had savings which added up to £20,000, all of them in £50 banknotes, for the deposit needed to secure the right to acquire Mr Sadoughi's property at 6 Uxbridge Road for £550,000 and that the transaction fell through because of the ludicrously extravagant terms that Mr Zabihi is said to have put forward (involving interest on the unpaid purchase price at something approaching 40% per annum), I find it difficult to accept that Mr Janzemini felt constrained by his fear of (or awe for) Mr Zabihi to advance that very amount (without any agreement as to interest, never mind the 40% that Mr Zabihi had demanded, or as to repayment) to enable Mr Zabihi to put down a deposit on a proposed purchase of his own. I find it very puzzling that Mr Janzemini felt it necessary to travel with two others (or, if Mr Motazedi is to be believed, three others) to attend the handover of the money when, if Mr Janzemini’s account is to be believed, his loan of the money was an innocent gesture of goodwill by him to assist Mr Zabihi to acquire a property. I do not accept the story about the loss of the money on the underground train. It might have been more credible if Mr Zabihi had claimed to Mr Janzemini that the money had been stolen from him. Yet, by their own accounts, Mr Janzemini and his family did nothing about the matter for several weeks. When, according to paragraph 39 of his witness statement, Mr Janzemini did finally get around to ringing Mr Zabihi it was simply to say that he needed the money as he wanted to buy something. He then went on to state that he “believed” that he called Mr Zabihi twice more about the missing money before the matter was overtaken by the invitation to Mr Zabihi’s Ruislip flat for the fateful meeting on 12 September 2002. Thereafter there was silence on the matter until Mr Zabihi happened, four years later, to launch the present proceedings[59]Common sense strongly suggests that the whole truth has not been told about this matter. Mr Hood submitted that the whole episode had been made up. I do not think that that is so. I have come to the view that £20,000 did pass from Mr Janzemini to Mr Zabihi and that it happened in circumstances not dissimilar from those related to me, namely the money was made up of £50 banknotes. But how such a sum was assembled, when precisely that large number of high-value banknotes was obtained and precisely what the reason was for making such a large sum available - and in cash - are matters where I have the very strong feeling that I have not been told the full story. I also bear fully in mind, as Mr Lewis pointed out, that Mr Zabihi himself relies - see paragraph 63 of Mr Hood’s closing submissions - on the recollection of Mr Noori (another witness to whose evidence I shall come later when I consider the jewellery claim) who remembered being told by Mr Janzemini in 2004 that Mr Zabihi owed him £20,000. I am willing, taking the evidence as a whole, to find that the transfer of this money was made in circumstances importing an obligation of repayment. Quite why it was paid I do not know. In the absence of any evidence to suggest that the advance was made on any other basis I find that it was repayable on demand. Repayment has been demanded. No payment has been made. The claim for it therefore succeeds.

(e) Mr Zabihi’s £70,000 claim against Mr Janzemini

[60]According to paragraph 9 of his particulars of claim Mr Zabihi alleges that in August 2000, having by then developed great trust in Mr Janzemini, he lent £70,000 to Mr Hamid Kalhor “based on [a] personal guarantee” that Mr Janzemini gave to him “that he would repay the loan if his friend did not”. Mr Zabihi goes on to allege that he made the loan having been induced to do so by representations by Mr Janzemini, which Mr Janzemini intended Mr Zabihi to act upon and which he did, that Mr Kalhor owned a car trading/dealership business in London and needed to finance his business activities and that Mr Kalhor was a trustworthy businessman who intended to repay the loan. The claim pleads in the alternative that Mr Janzemini warranted to Mr Zabihi that Mr Kalhor was trustworthy and would repay the loan and, in the further alternative, that he assumed a duty towards Mr Zabihi to exercise reasonable care in advising Mr Zabihi of Mr Kahlor's creditworthiness which Mr Zabihi relied upon in making the loan. He alleges that Mr Kalhor was neither trustworthy nor creditworthy and has not repaid the loan. He therefore looks to Mr Janzemini to make good his guarantee, alternatively his warranty; alternatively he looks to him to compensate him for breach of his duty of care.[61]In evidence Mr Zabihi said that the advance to Mr Kalhor was made through his (Mr Zabihi’s) private account with Baboli Trading. He said that, in repayment, Mr Kalhor provided four £15,000 cheques and a single £10,000 cheque. He said that the cheques were never honoured.[62]There was no documentary evidence to support the making of the advance, for example ledger entries in Mr Zabihi’s private account. For what his word was worth, Mr Kalhor denied receiving any loan in 2000. Instead, he gave muddled evidence about one or two cheques in 1999. If the advance had been made in 1999 it would, in the ordinary course, have become statute barred by the time these proceedings were launched in 2006. Mr Baboli did not support Mr Zabihi’s account. Instead he too mentioned receiving some cheques (for £30,000 and no more) in late 1999.[63]Whatever the position may have been as between Mr Zabihi and Kalhor, Mr Janzemini denied giving to Mr Zabihi any assurance concerning Mr Kalhor’s creditworthiness or trustworthiness or that he gave any guarantee of repayment. Indeed, he denied any knowledge of the matter at all.[64]The above evidential difficulties aside, the claim fails for the following reasons. First, when asked about the matter, Mr Zabihi stated in cross-examination (and repeated) that the only assurance from Mr Janzemini that he relied upon was a guarantee that Mr Kalhor would repay the loan. Mr Hood was therefore constrained to accept that the claim failed for want of compliance with section 4 of the Statute of Frauds Act 1677 insofar as it relied on breach by Mr Janzemini of an oral guarantee. Second, although Mr Zabihi claimed to recall that Mr Janzemini told him that Mr Kalhor was a good friend and although there was some indication that Mr Kalhor did deal, albeit in a very small way, in cars, the evidence simply did not begin to support the making of the other alleged representation by Mr Janzemini, alternatively the assumption by him of a duty of care, pleaded in Mr Zabihi’s particulars of claim. Third, and for good measure, there was evidence that in 1999, a year before the alleged advance to Mr Kalhor in August 2000, Mr Zabihi was aware that Mr Kalhor had provided Baboli Trading with two cheques (in connection with an unrelated transaction) which were subsequently dishonoured. Mr Zabihi was aware of this because he provided Mr Baboli with a witness statement in proceedings which Mr Baboli brought against National Westminster Bank arising out of the Bank’s handling of the clearance of the cheques. It was evident therefore that long before August 2000 Mr Zabihi knew that Mr Kalhor’s creditworthiness was seriously in question. It is therefore difficult to see how Mr Zabihi could have seriously thought in August 2000 that Mr Kalhor was a person of good credit.

The jewellery claim

[65]The question here is not whether any jewellery was handed to Mr Janzemini for sale at his meeting with Mr Zabihi on 12 September 2002 - it is common ground that some was - but what exactly the jewellery consisted of and, if it was not the jewellery which Mr Janzemini produced for inspection on 21 July 2006 and subsequently (which I shall refer to as “the proffered jewellery”), what the jewellery was worth. The significance of the dispute lies in the vast difference in value between the rival contentions. Mr Buckie and Mr Stocker, the two jewellery experts, were in broad agreement that the hypothetical estimate of the likely open market (or disposal) value in April 1999, September 2002 and July 2006 of the jewellery which Mr Zabihi says that he handed over was “in the region of the monetary value stated by Mr Buckie in paragraph 15 of his report valuation namely “+/- £2,000,000”. Mr Buckie valued two of the four sets at twice the value of one of the other two. To the fourth set he attributed a value roughly halfway between the other two values. The valuation is “hypothetical” because, as I shall explain, it is based on no more that a verbal description of the jewellery in question. In marked contrast is the value of the proffered jewellery. The two experts were in broad agreement that this had an overall open market (or disposal) value of approximately £30,000, both in 2006 when Mr Janzemini had first produced it for inspection, and currently, and that it was probably manufactured in Bangkok, or in that part of the world, in around the 1970s or the 1980s. Unlike Mr Zabihi’s jewellery, the experts were able to see the proffered jewellery: in no sense was their valuation of it “hypothetical”.[66]I start with Mr Zabihi’s account of the matter and the evidence on which he has relied.

(a) Mr Zabihi’s case on the origins of the jewellery

[67]As I have mentioned, Mr Zabihi claims - and has stated in his evidence - that the jewellery comprised four sets each set consisting of matching necklace, earrings, bracelet and ring. He claims that the items were made to a high quality and consisted of clear diamonds and white gold and that he acquired them in April 1999 from an Iranian-based business associate and friend going back to childhood days called Nima Zandieh in discharge of a $2 million debt owed to him by Mr Zandieh.[68]A striking feature of the claim is that, subject to a hotly disputed exception, no photographic or other documentary evidence is available to describe the jewellery or indicate its quality. There are, for example, no invoices or receipts or other paperwork to prove the transaction with Mr Zandieh in April 1999. He was unable to produce any documentary evidence to indicate how or precisely when the jewellery reached this country: he stated that it came by air hidden in some dried food in the company of one of his cousins who is now living in the Philippines. There was no documentary evidence to explain where it was between its arrival and the handover to Mr Janzemini on 12 September 2002. Mr Zabihi said that it was kept in a safe deposit box maintained by Barclays Bank but the box was in the name of an Iranian lady - a Mrs Fatih - who is now deceased. He was not able to produce any evidence indicating what was in the box or how often it was accessed. Nor was any receipt given when the jewellery was handed to Mr Janzemini, if it was, on 12 September 2002. There are no appraisals or valuations by a professional jeweller (or other expert) attesting to having examined and valued the jewellery. The only documentary description of it (other than some drawings attempting to depict it and made after these proceedings were launched as mentioned below) was in handwritten form and is the exception referred to above. This document, the authenticity of which was strongly challenged by the defendants, was said to be in the handwriting of Mr Zandieh’s wife, Mitra Zandieh, and to have been dictated to her by Mr Zandieh on 28 April 1999. That was the very day, as I understood it, that the jewellery was said to have been handed by Mr Zandieh to Mr Zabihi’s agent in Iran, a Mr Shirian. The handwritten description is in Farsi. A translation into English was provided. A copy of the letter - not the letter itself - was said to have accompanied the jewellery when it came to this country but that document, I was told, has since gone missing.[69]The letter, which I shall refer to simply as “the Zandieh letter”, was (in its professionally translated form) in the following terms:
“In the name of God My Dear friend Mr Kamran Zay ... i. 1378/2/9 (28/04/1999) With reference to the subject of the four sets of diamond each set consisting of a necklace, bracelet, a ring and a pair of earrings, I hereby inform you that as I mentioned to you before the jeweller recommended by you confirmed that these four complete sets of diamond made in the 1920s, are colourless (F grade) and uniquely clear with a desirable cut. He also offered to buy these four sets for the sum of four hundred million Tomans (400,000,000). He added that if I wanted I could sell them for more than six hundred million Tomans (600,000,000) which is equivalent to more than five hundred thousand Pounds (£ 500,000). I am very grateful to you for having accepted these four complete sets of diamonds to cover my debt of one billion and seven hundred thousand Tomans (1,700,000,000) to you. May God give you health and respect. According to your instruction, I handed these four sets of diamonds to your representative in Tehran. For your information I am listing the description of each of these sets as follows: 1. A necklace with 33 diamonds of 1.5 carat each and 1 diamond of 3 carat. A bracelet with 12 diamonds of l.5 carat each. A pair of earrings with 11 diamonds of 1.5 carat each and a few diamonds of ¼ carat each (0/25). A ring with 1 diamond of 1.5 carat 5 lots of diamonds of ¼ carat (0/25). 2. A necklace with 24 diamonds of 1.5 carat each, 1 diamond of 2 carat and one diamond of 3 carat. A bracelet with 5 diamonds of 1.5 each and 10 diamonds of ¼ carat (0/25). A pair of earrings with 6 diamonds of 1.5 carat each and a diamonds of 2 carat. A ring with 4 diamonds of 1.5 carat. 3. and 4 Two necklaces each with 50 diamonds of 1.5 carat Two bracelets each with 28 diamonds of 1.5 carat Two pairs of earrings each with 8 diamonds of 1.5 carat Two rings each with 3 lots of diamonds of ¼ carat (0/25) each I thank you very much and may God protect you. Look forward to seeing you, Yours sincerely Nima Zandiye /ninth /of Ordibehesht /of the year one thousand three hundred and seventy eight (28/04/1999) Signed”
My Dear friend Mr Kamran Zay ... i. 1378/2/9 (28/04/1999) A necklace with 33 diamonds of 1.5 carat each and 1 diamond of 3 carat. A bracelet with 12 diamonds of l.5 carat each. A pair of earrings with 11 diamonds of 1.5 carat each and a few diamonds of ¼ carat each (0/25). A ring with 1 diamond of 1.5 carat 5 lots of diamonds of ¼ carat (0/25). A necklace with 24 diamonds of 1.5 carat each, 1 diamond of 2 carat and one diamond of 3 carat. A bracelet with 5 diamonds of 1.5 each and 10 diamonds of ¼ carat (0/25). A pair of earrings with 6 diamonds of 1.5 carat each and a diamonds of 2 carat. A ring with 4 diamonds of 1.5 carat. Two necklaces each with 50 diamonds of 1.5 carat Two bracelets each with 28 diamonds of 1.5 carat Two pairs of earrings each with 8 diamonds of 1.5 carat Two rings each with 3 lots of diamonds of ¼ carat (0/25) each I thank you very much and may God protect you. Look forward to seeing you, Yours sincerely Nima Zandiye /ninth /of Ordibehesht /of the year one thousand three hundred and seventy eight (28/04/1999) Signed”

My Dear friend Mr Kamran Zay ... i. 1378/2/9 (28/04/1999)

[70]Mr Zabihi stated that, aided by the written description in the Zandieh letter and by sketches that he made of some of the jewellery in July 2006 from his recollection of it when it was still in his possession just under four years earlier, he arranged for a friend of his, a Mr Behyar Samimi, to produce a set of drawings of it. This too was in July 2006. Mr Samimi, a London-trained professional artist based in Spain, gave evidence. He struck me as an honest witness, if vague about the details of his passing involvement in this affair. His evidence was that “in early July 2006” at a time when he was in London staying with Mr Zabihi’s parents, he was asked by Mr Zabihi to draw some jewellery. He agreed to do so and went to Mr Zabihi’s home for the purpose. He said that Mr Zabihi provided him with some sketches of his own. He thought that were some seven or eight drawings on two or three pages of sketches and that they included certain rough sketches by Mr Zabihi (identified as those at trial bundle 11/452 and 453). He thought that there may have been another sketch. He had no recollection of Mr Zabihi having any other document describing the individual items of jewellery. He was aware of Mr Zabihi’s claim against Mr Janzemini. He recalled that Mr Zabihi provided him with paper, pencil and a rubber with which to draw the jewellery and believed that he was with Mr Zabihi for several hours that day.[71]The originals of Mr Samimi’s three drawings (one of two sets of identical jewellery and one each of the other two sets) have gone missing. I understood that they were passed to RPI but when exactly and what has since happened to them was shrouded in mystery. Mr Samimi identified his drawings as those in evidence in trial bundle 3/4/552 to 554 but without the handwritten descriptions on them which, I understood, were added later by Mr Zabihi.[72]The curious thing about the drawings was their surprising detail, especially the detail of two of the pairs of earrings, and of the bracelets and three rings. Since Mr Zabihi’s rough sketches were simply of the necklaces, Mr Samimi did not have even the benefit of sketches of those other items to assist him with his depiction of those parts of the four sets. That point aside, I find it incredible that someone such as Mr Zabihi, who disclaimed any knowledge of jewellery and who, by his own account, had only inspected the jewellery on three occasions, the last of which was little short of four years before his session with Mr Samimi, should be able (as he claimed) accurately to recall what the items looked like.[73]Armed with those drawings and with the description of the jewellery set out in the Zandieh letter, Mr Zabihi had the jewellery professionally valued by Mr Buckie of JEMS (Jewellery Valuation & Mediation Services). Mr Buckie, as I have mentioned (see paragraph 8), is a jewellery, gems and diamond appraiser. He is based in Hatton Garden. There was no doubting Mr Buckie’s professional expertise. But given that Mr Buckie was making his valuation based entirely on the description of the jewellery contained in the Zandieh letter and on the drawings by Mr Samimi, it was entirely appropriate that Mr Buckie should describe his valuation as “hypothetical”. Making every allowance for the difficulties which he faced he nevertheless ventured the “hypothetical estimates of likely open market value” (or disposal value) of the jewellery at between £1.65 and £1.95 million as at April 1999, between £1.85 and £2.1 million as at September 2002 and between £1.975 and £2.275 million as at July 2006. See paragraph 15 of his “Report and Hypothetical Valuation” dated 25 January 2007. These are estimates with which, as I have mentioned, Mr Philip Stocker who was Mr Janzemini’s jewellery expert, broadly agreed. I shall return later to Mr Buckie's evidence and the circumstances in which he came to provide his report and valuation. I shall have occasion also to refer to Mr Stocker’s evidence.[74]According to Mr Zabihi, when the transaction with Mr Zandieh was entered into, arrangements were made for the jewellery to be inspected and valued by a professional jeweller. Hence the reference in the Zandieh letter to the jeweller and what he was willing to give for the jewellery. Mr Zabihi said that this was at Mr Zandieh’s insistence since he, Mr Zabihi, was prepared to take Mr Zandieh’s word as to its value. Indeed, Mr Zabihi would have me believe that he was not concerned to press for repayment of the $2 million which Mr Zandieh owed him and which was to be discharged by the delivery of the jewellery. According, however, to one of the witness statements provided by Mr Zandieh the valuation was something which Mr Shirian, Mr Zabihi’s Iran-based agent, arranged. In that statement Mr Zandieh said that the jewellery was taken to a jeweller in Pahlavi Street (in Tehran) who offered to buy the jewellery diamonds on the spot for 400,000,000 Toumans (the equivalent in 1999 of £1/3 million) and said that, if there was no hurry to sell, the jewellery could fetch more than 600,000,000 Toumans (or £500,000) in the market. Mr Zandieh went on to state that the jeweller “confirmed that the diamonds were all of ‘F’ grade quality and very unique in clarity, cut and brightness”. He also stated that he and Mr Shirian both knew that jewellers pay a fraction of the market value of jewellery when buying it second-hand from private clients but nevertheless used this valuation “as a minimum that could be obtained by [Mr Zabihi]”.[75]Mr Zandieh stated (in his witness statement) that he was no longer able to recall the name of the jeweller who had made these remarks. What is more, I was told, the jeweller no longer operated from Pahlavi Street and could not be traced.[76]Mr Shirian also provided a witness statement. According to this, it was Mr Zabihi who asked him to arrange for the valuation of the jewellery in order to find out how much it would sell for in Iran. He stated that he contacted Mr Zandieh and arranged to meet him at a jewellery shop which had been recommended to him by one his friends. He stated that on the day of the valuation he and the cousin of Mr Zabihi (who I was told by Mr Zabihi was called Farid) went with Mr Zandieh to the jeweller in Pahlavi Street. Having (long after the event) been supplied with copies of Mr Samimi’s drawings Mr Shirian stated that the jewellery which was shown to the Pahlavi Street jeweller looked “very similar” to what was shown in the drawings.[77]According to Mr Shirian’s recollection, the jeweller was so taken by the diamonds that he offered to purchase them then and there in exchange for his house but added that a lot more could be obtained for them if offered in the market. Mr Shirian claimed to recall, in identical terms to those mentioned in Mr Zandieh’s witness statement, what the jeweller said about the quality of the diamonds (that is that “the diamonds were all of ‘F’ quality and very unique in clarity, cut and brightness”). This is a remarkable coincidence after so may years unless, of course, there had been some collusion in the preparation of their witness statements. Mr Shirian stated that after the visit to the jeweller he telephoned Mr Zabihi in London and told him the outcome of the visit. Mr Shirian went on to say that Mr Zabihi told him to take the jewellery from Mr Zandieh and send it to him in London. Following this instruction, Mr Shirian stated that he took the diamonds from Mr Zandieh, packed them in a package of food (for “easy passage through the customs”) and then sent the package to Mr Zabihi in London “using my contacts in Iran Air during the same flight as [Mr Zabihi’s] cousin’s trip to London”. The implication was that the cousin in question was Farid who had accompanied him and Mr Zandieh to the jeweller. Mr Shirian said that care was taken to ensure that Customs officials in Tehran airport were not involved owing to a fear that if they were the jewellery would get into the hands of criminal gangs operating from the airport. Mr Shirian’s statement (like the Zandieh statements) was in faultless English but what his actual command was of the English language was not apparent.[78]Apart from two faxed messages from Mr Zabihi to Mr Shirian, one dated 24 April 1999 and the other dated 29 April 1999 (to which I shall come in some detail later) and the Zandieh letter, there was nothing in writing to corroborate any of the events that I have described. The opinion of the jeweller mentioned by Mr Zandieh and Mr Shirian was not set out or confirmed in writing so that there is no evidence of the visit to the unidentified and long-vanished jeweller beyond what is to be read in the two witness statements to which I have referred. There were no flight tickets or passport stamps or anything else to provide some kind of evidence of the date that the jewellery was said to have reached this country.[79]Quite what Mr Zabihi’s relationship was with Mr Shirian was also far from clear. Mr Shirian’s witness statement described him as a business associate of Mr Zabihi and that he had represented Mr Zabihi in dealings with Iranian government agencies and third parties during Mr Zabihi’s absence from Iran. But by April 1999 when Mr Zandieh is said to have handed the jewellery to Mr Shirian in satisfaction of the $2 million indebtedness, Mr Zabihi had only visited Iran once since he left that country to come to this country in October 1976 (when aged 14) and that was in 1978, shortly before the Iranian Revolution of early 1979. In 1978, Mr Zandieh was only 16. According to Mr Zabihi, Mr Shirian had visited London in 1987 and again in 1989 and had been introduced to him by one of Mr Zabihi’s aunts. On any view, the connection between them at that time was, at best, somewhat tenuous.[80]Neither Mr Shirian nor Mr Zandieh was available for cross-examination. In the case of Mr Shirian this was “because of my work”. In the case of Mr Zandieh the problem, I was told, was his inability to persuade the Consular Department of the British Embassy in Tehran to grant him the necessary visa. Although I raised the possibility, no video-link could be arranged to enable any form of long-distance cross-examination to take place.[81]According to Mr Zandieh’s first witness statement (made in December 2006) the jewellery which he gave to Mr Zabihi had been inherited from his grandmother who had acquired it in Beirut in the 1920s. He stated that he did not know whether his grandmother acquired all four sets together at the same time or separately over a period of time. He went on to say that his grandmother used to wear the jewellery at weddings and parties but he was unable to produce any evidence of its existence, whether in the form of photographs or receipts or insurance certificates or otherwise, “as all our family’s legal documents and photographs were confiscated by the Revolutionary Guards when they raided our house shortly after the Iranian Revolution in 1979”. This, he stated, was because his family became a target of revolutionary zeal owing to its ancestry (as descendants of the short-lived 18th century Zand dynasty) and perceived association with the Shah’s regime which had been overthrown in the Revolution. In a subsequent affidavit, sworn shortly before the start of this trial, Mr Zandieh who described himself as “a translator and business adviser” gave a different explanation for the absence of any documentary record of the jewellery from that contained in his first witness statement. This was based on his late grandparents’ wealth and connection with the former Shah’s family - his grandfather, it appears, having had responsibility for some of the Shah’s family property and a prominent role in the pre-revolutionary Ministry of Finance and his grandmother having attended royal parties and high society events. According to this explanation his grandparents took the precaution, at the time of the Revolution, of destroying all evidence of the existence of the jewellery - except, it would seem, the jewellery itself - including any pictures of the grandmother wearing it, together with all other evidence linking them with the deposed Shah and his regime or evidencing the family’s wealth, for fear that such evidence would get into Revolutionary hands and be used against the family. As Mr Zandieh put it in that affidavit:
“In 1979, after hearing stories of our relatives and friends and the people in [the] inner circle of the Shah being imprisoned or executed using their photo albums as evidence against them, we destroyed out family album and receipts for the purchase of any valuables, including any jewellery owned by my family. My grandmother kept the jewellery in a safe place for a rainy day.”
[82]Mr Zandieh went on to say that the jewellery was given to him by an uncle (who had since died) a few years after his grandmother’s death in 1983. He added that the description of the grade and size of the jewellery set out in the Zandieh letter was given to him (Mr Zandieh) by the jeweller (whom nobody could now trace) from whom the oral valuation was obtained shortly before the jewellery was delivered to Mr Shirian at that time. I observe that the very detail of the Zandieh letter (if it was genuine) suggests that some kind of note must have been taken of what the jeweller was saying even if the jeweller himself did not provide one: the letter describes how many diamonds each item in the four sets contained and what the precise weight was of each diamond. Overall, by my calculation, the diamonds totalled at least 300 in number. It would therefore be incredible to suppose that anyone could remember the details set out in the Zandieh letter unaided by some kind of written source. But apparently there was none. Mr Zandieh stated that when he gave the jewellery to Mr Zabihi in 1999 “I was reasonably sure that each set would sell for at least £125,000 if bought by a jeweller and much more if bought by a customer because of the [Tehran jeweller’s] oral valuation”. I was puzzled as to how Mr Zandieh, in Iran, could be so sure what the jewellery would fetch in sterling if purchased by a “customer”. But that was what he claimed to know.[83]Mr Zandieh also went into more detail in his second statement (the affidavit) about the circumstances in which his indebtedness to Mr Zabihi arose which he said he discharged by the transfer of the jewellery. The circumstances were, to say the least, involved. So far from being a straight loan by Mr Zabihi to Mr Zandieh of 1.5 billion Toumans (equivalent, I was told, to $2 million) as Mr Zandieh’s earlier (December 2006) witness statement had indicated, Mr Zandieh’s affidavit referred to a transfer to him and to a business partner, a Mr Vojdani, of land by an aunt of Mr Zabihi acting on the instructions of another aunt. A document, dating it would appear from the early 1980s and in Farsi (but accompanied by a translation), was said to evidence title to the land although the owner referred to was, apparently, Mr Zabihi’s father. Mr Zabihi ventured various explanations of why this was so and what his aunt’s connection with the land was which I do not need to go into. The upshot, according to Mr Zandieh’s affidavit, was that the land was transferred to Mr Vojdani, the business partner, in return for Mr Zandieh acquiring a share in Mr Vojdani’s company but Mr Vojdani, it turned out, was a crook who defrauded Mr Zandieh, took the land, obtained a loan on the strength of it and then fled the country together with the money thereby raised.[84]Consistent with so much else in this dispute, Mr Vojdani was said to have disappeared without trace. There was nothing to evidence any of the dealings between Mr Zabihi and Mr Zandieh or between Mr Zandieh and Mr Vojdani relating to the land or to the subsequent dealings. The Iranian Land Registry was unwilling, I was told, to provide any record of the land transactions without Mr Vojdani’s consent which, since he had disappeared, could not be obtained. Nor was there any documentary evidence of the fraud, indicating when it happened, whether or how it was reported, or any number of other matters that might give substance to the account.

(b) The Zandieh letter

[85]This brings me to the Zandieh letter. As I have mentioned, it is said to be in Mrs Zandieh’s handwriting. There was a witness statement by Mrs Zandieh who, like her husband, was unable, I was told, to obtain a visa to visit this country so that she could be present in court to be cross-examined on her evidence. In her witness statement (like her husband’s, it was in faultless English) Mrs Zandieh stated that the jewellery shown in Mr Samimi’s drawings was, with the exception of one of the bracelets, “very similar to the jewellery belonging to my husband's family which was given by my husband to the Claimant in 1999”. She then proceeded to describe what that bracelet (and another of identical shape and design) looked like and what each of its 28 diamonds weighed. She went on to state that on 28 April 1999:
“…My husband asked me to write a letter which he dictated and was addressed to the Claimant describing in detail the four diamond suites of jewellery he later gave to Mr Shirian to send to the Claimant in London. Because my husband’s handwriting in Farsi is not very good, he asked me to transcribe the letter for him, which I did, but he signed the letter himself.”
She then identified the Zandieh letter. She referred also to a faxed note of December 2006 in both Mr Zandieh’s handwriting - in English - and in her own - in Farsi - in which it is confirmed that it was Mrs Zandieh who wrote out the Zandieh letter because of Mr Zandieh’s poor handwritten Farsi. Mrs Zandieh did not herself refer to the circumstances of the handover of the jewellery by her husband to Mr Shirian or to its valuation. I infer that this was because she did not claim to be a witness of those events.[86]According to Mr Zabihi, the sending of the letter was not something which he had requested. It was, he said, Mr Zandieh’s idea that it should be sent. He could not explain why but speculated that it was to “protect” himself. A more obvious way to do that would have been to get Mr Shirian (or Mr Zabihi’s cousin) to sign a receipt for it.[87]The existence and genuineness of the Zandieh letter are critical to the success of Mr Zabihi’s jewellery claim. The letter provides an apparently independent description of what the jewellery consisted of - even if it could not supply an image of the jewellery's appearance - from which, as Mr Buckie later sought to do in his report, an intelligent guess could be made of its value. The letter is critical to the credibility of Mr Zabihi’s evidence and to that of Mr Zandieh and his wife since each refers to the letter and describes the circumstances in which the letter came into existence. For the same reason it is critical to the credibility of Mr Shirian’s evidence since he claims to have arranged for the jewellery to be sent to this country accompanied by a copy of that letter.[88]A curious feature of the Zandieh letter is not so much that it is in Mrs Zandieh’s handwriting (if it is) as that it is able to state the weight of each and every one of the 300 or more diamonds which go to make up the four jewellery sets so described when the valuation by the missing jeweller was, I was given to understand, entirely oral. I shall return to the terms of the letter and other features of it later in this judgment. The other curious aspect of the Zandieh letter concerns the circumstances in which it made its appearance in this litigation. It is to this that I now turn.[89]According to Mr Zabihi, and this was common ground, an appointment was made for the inspection on 21 July 2006 (which was some weeks after the claim form in this action had been issued) of three of the four sets of the proffered jewellery, (the fourth, according to Mr Janzemini, was with someone abroad at the time). This was to be the first occasion that Mr Zabihi had seen the jewellery since the handover to Mr Janzemini almost four years earlier.[90]Suspecting, on the basis of information already supplied to him by Mr Janzemini (in an affidavit in these proceedings) and from other sources, that the jewellery which Mr Janzemini would be producing at the forthcoming inspection would not correspond with the jewellery which, as he claimed, he had handed to Mr Janzemini at their 12 September 2002 meeting, Mr Zabihi ensured, through his solicitors RPI, that steps would be taken for its inspection. Those representing Mr Janzemini were concerned about the circumstances in which the inspection should be made. It was arranged to take place at the offices of Bird & Bird (Mr Janzemini’s then solicitors). Mr Janzemini, together with the three sets of proffered jewellery, was present together with an assistant solicitor from Bird & Bird, a Miss Belinda Murray. Mr Zabihi came accompanied by Mrs Roshanian and the jewellery expert, Mr Buckie. Later that same day Miss Murray prepared a memorandum setting out what had occurred. Although Miss Murray has since left this country to work abroad and, as I understood it, was not contactable, I accept as accurate and reliable the contents of that memorandum to which were attached photocopies taken by Miss Murray of the proffered jewellery. I certainly have no reason to question the accuracy of the memorandum and none was suggested.[91]Another aspect of the arrangements made for the inspection was that an affidavit by Mr Zabihi dated 18 July 2006 - three days before the inspection - would be delivered to the defendants’ side after the proffered jewellery had been seen. This was apparently to avoid any suggestion that a post-inspection description by Mr Zabihi of the “true” jewellery might be tailored to differentiate it from what he had seen at the inspection. In this affidavit Mr Zabihi described what he had handed to Mr Janzemini in September 2002, namely four sets of matching gold and diamond jewellery, antique and made in the 1920s. He attached to the affidavit the drawings made a day or two previously by Mr Samimi and set out details of the number and weights of the diamonds in question. It had also been agreed between the two sides that, if considered by Mr Zabihi to be different from what he had handed to Mr Janzemini in September 2002, the jewellery produced by Mr Janzemini would not be open to any close inspection by Mr Buckie. It was not clear to me why this term was insisted upon.[92]The result of the inspection was that Mr Zabihi declared the proffered jewellery to be quite different from what he had handed to Mr Janzemini almost four years earlier.[93]This brings me to how and when the Zandieh letter first featured in these proceedings.[94]Mr Zabihi stated that on or about 10 July 2006, that is to say a few days before the inspection, he had found the Zandieh letter among his papers. It was, he said, in a black folder. In other words, the letter, although the sole document available to Mr Zabihi which contained a description of the jewellery, had not made any appearance in the events leading up to or immediately following the start of these proceedings, much less in Mr Zabihi’s evidence in support of a without notice application for injunctive relief against Mr Janzemini made to the court on 28 June 2006. Its existence is not even hinted at in that evidence.[95]Having, as he claimed, made this most fortunate discovery, the very surprising thing is that Mr Zabihi did not forward it to his solicitors or, it seems, even tell them of its existence. He did not forward it to them, he said, because he feared that it might pass from his solicitors to Mr Janzemini’s solicitors (and thus, I assume, to Mr Janzemini) before the appointment took place to inspect the jewellery fixed for a few days later. Quite why Mr Zabihi should have thought that his solicitors would divulge its contents to the other side if he instructed them not to do so is not evident. Nor for that matter is it evident why divulging its contents to the other side in advance of inspection would have been inadvisable. Indeed, a curious feature of the evidence is that, in his affidavit dated 18 July 2006 sworn a week or so after (according to his evidence) the Zandieh letter had been found but just three days before the inspection, Mr Zabihi exhibited the drawings of the jewellery made by Mr Samimi together with a description of the number of diamonds contained in each of the four sets yet failed even to mention that the letter existed. It will be recalled that it had been arranged that this affidavit should be sworn in advance of the inspection and only handed over immediately following the inspection if, as happened, Mr Zabihi should declare the jewellery inspected to be different from what he said he had handed to Mr Janzemini at their 12 September meeting. This affidavit would have been the obvious occasion to produce or at least mention the letter assuming, as he stated, it had come to light a week earlier. Mr Zabihi could not provide a satisfactory explanation for failing to do so when cross-examined about the matter.[96]Instead, the Zandieh letter only came to RPI’s notice when Mr Zabihi faxed a copy of it to Mrs Roshanian a little after 9:15 pm on 22 July 2006, the day following the inspection.[97]It is unfortunate, to say the least, that Mr Zabihi, if his account is to be believed, did not think before starting these proceedings or before applying to the court for a freezing order, to search through his papers for the Zandieh letter which, I emphasise, is the only document available to Mr Zabihi purporting to come from a third party source, which describes the jewellery and, what is more, purports to come from the very person who had given the jewellery to him. It is also odd that, although he said he found the letter on or about 10 July, he did not bring the letter to his meeting with Mr Samimi when the latter prepared his drawings of the jewellery based entirely on Mr Zabihi’s verbal description of it aided by his rough sketches of the necklaces. Mr Zabihi specifically confirmed to me that he was not working from any document when he described the jewellery to Mr Samimi (beyond his sketches) and Mr Samimi himself did not refer to, and had no recollection of being shown, any such document. It is again unfortunate, as I have mentioned, that Mr Zabihi did not think to hand over the Zandieh letter to his solicitors until after the inspection on 21 July and did not think to include or even mention it in his affidavit of 18 July which was only to be made available after the inspection.[98]Not surprisingly, these matters prompted Mr Lewis and Mr Staddon to submit, and in cross-examination of Mr Zabihi to suggest, that the Zandieh letter only came into existence at around the time of the inspection on 21 July 2006. This suggestion was given unexpected support by the disclosure, late in the trial and long after Mr Zabihi had completed giving evidence, of a letter written by Mr Buckie to Mrs Roshanian in connection with the report and valuation which he was being asked at the time to prepare and of Mrs Roshanian’s reply. The very late appearance of this further correspondence led to anapplication, which I granted, for Mr Zabihi and Mrs Roshanian to be recalled for further cross-examination. By then Mr Hood had already started his closing submissions. It is to that correspondence and further oral evidence that I now turn.[99]On 29 July 2006, just over a week after the inspection and exactly seven days after Mr Zabihi had sent Mrs Roshanian a copy of the Zandieh letter, Mr Buckie sent Mrs Roshanian a lengthy letter. Omitting irrelevant parts this is what Mr Buckie wrote:
“Dear Ms Roshanian It was a pleasure meeting you and your client, Kamran Zabihi, on 21 July 2006 and I now acknowledge safe receipt of your subsequent letter of the same date detailing your further instructions in this matter and enclosing a better copy of KZ2-3 and other relevant documents including the Particulars of Claim. ”
KZ2-3 was a reference to Mr Samini’s drawings. “I have now had occasion to peruse all the documents and digest the information contained therein. However, as a precautionary measure before proceeding with the compilation of my report, I should like to make the following comments and observations which I should like you to address with your client and respond to me accordingly. Please understand and appreciate that with some of the issues raised I am basically playing devil’s advocate but am reasonably confident that they may well be queried or raised by the other side’s expert, who will probably turn out to be one of about six other high profile jewellery valuers who act as Expert Witnesses in such cases, each of whose modus operandi is well known to me. Indeed, if I was on the other side, I would most certainly raise these issues with the information I have to hand. (i) Weights of diamonds - you will recall that when we were all in the coffee bar after the fiasco with the substituted suites - I remarked that if indeed the diamonds were the weights and quantity that Kamran was quoting in his Second Affidavit the diamonds alone would be worth ‘an awful lot of money’. Accordingly, I asked Kamran how he knew the alleged weights of the various diamonds and he responded that soon after he acquired them, he took them to a jeweller who quoted the different weights and he had recorded them. Kamran also said that the same jeweller was personally prepared to pay him £250,000 for all four suites but added that Kamran could probably achieve a significantly higher price if he explored the market - perhaps in London. I really do need Kamran to think very carefully about the weights of the diamonds he has quoted both in his Second Affidavit and in Exhibit KZ2-3. This is because, whilst I have not yet researched the historical value in all three categories (low, medium & top qualities), I reiterate that my experience tells me that even if they were of relatively low quality, the value of the diamonds alone in 1999 and 2002, would be disproportionate to the values quoted throughout the various documents (ranging from £325,000 to £500,000) since their acquisition. Furthermore, the amount of the original debt of $2 million …is also a significant figure to be remembered.” He then referred to the various diamond sizes which he related to the diamonds as described in the Samimi drawings and made a number of comments on the jewellery as portrayed in those drawings. Thus, of the earrings of one of the sets shown in those drawings he stated that “the minimum overall length of each earring would be in the region of 85 mm (almost three and a half inches)”. He said that the other earrings would “have to have been incredibly substantial” and that the rings “would have needed to be absolutely enormous and would have covered at least two fingers”. He also commented on the style of the jewellery as portrayed in the drawings stating that while the necklace and bracelet of two of the sets portrayed were typical of the style and the design of European jewellery of the 1920s, the ring of one set and the ring and earrings of another were not. He commented also on Mr Zabihi’s description of the gold and on the varying values and price ranges for the jewellery referred to in Mr Zabihi’s evidence and concluded by stating that he considered it important to ensure that all the information on which he based his report and “the hypothetical values” (as he described them) would be wholly accurate “thus pre-empting any awkward questions likely to be put forward by the other side’s expert”. (i) Weights of diamonds - you will recall that when we were all in the coffee bar after the fiasco with the substituted suites - I remarked that if indeed the diamonds were the weights and quantity that Kamran was quoting in his Second Affidavit the diamonds alone would be worth ‘an awful lot of money’. Accordingly, I asked Kamran how he knew the alleged weights of the various diamonds and he responded that soon after he acquired them, he took them to a jeweller who quoted the different weights and he had recorded them. Kamran also said that the same jeweller was personally prepared to pay him £250,000 for all four suites but added that Kamran could probably achieve a significantly higher price if he explored the market - perhaps in London. I really do need Kamran to think very carefully about the weights of the diamonds he has quoted both in his Second Affidavit and in Exhibit KZ2-3. This is because, whilst I have not yet researched the historical value in all three categories (low, medium & top qualities), I reiterate that my experience tells me that even if they were of relatively low quality, the value of the diamonds alone in 1999 and 2002, would be disproportionate to the values quoted throughout the various documents (ranging from £325,000 to £500,000) since their acquisition. Furthermore, the amount of the original debt of $2 million …is also a significant figure to be remembered.”[100]In fact, no changes were made to the weights and descriptions which had so puzzled Mr Buckie. He produced his final report accordingly.[101]For present purposes, however, the significance of the letter is its reference to Mr Zabihi having told Mr Buckie (and Mrs Roshanian) in the coffee bar after the inspection at Bird & Bird’s offices that he, Mr Zabihi, had taken the jewellery to a jeweller and that he had done so “after he acquired them”. This was quite different from the account given by Mr Zabihi in his evidence to the court and in the witness statements of Mr Zandieh and Mr Shirian: the valuation, if there was one, had taken place before the jewellery had come into Mr Zabihi’s possession.[102]Mrs Roshanian replied three days later. As she confirmed when later cross-examined about this, her reply was written after she had taken Mr Zabihi’s instructions. She confirmed that her practice was to send or discuss with her client the contents of the letter to which she was having to reply. Her reply dealt with Mr Buckie’s letter point by point. So far as material, this is what Mrs Roshanian wrote:
“1. Weights of diamonds - the weights of diamonds quoted in Exhibit KC2-3 were taken from a letter written to Kamran by Mr Zandieh … which is dated 28/4/1999. The letter confirms that the diamonds were given to Kamran in settlement of a debt owed by him to Kamran for 1.7 billion Toumans ($2 million) and further confirms that he had shown the diamonds to the jeweller in Teheran who was selected by Kamran and the jeweller had offered to pay 400 million Toumans (£350,00) for the jewellery but also confirmed that Kamran could sell the jewellery (presumably on the open market) for more than 600 million Toumans (£500,00) if he wanted. The letter also lists the pieces of jewellery contained in each set and describes the number and size/weight of the diamonds in each piece and set. The letter confirms that the diamonds were colourless (F grade) and uniquely clear with a desirable cut. Attached please see a copy of this letter written in Farsi and its official translation in English.”
It is the translation of the Zandieh letter that is set out earlier. Mrs Roshanian had received the translation a day or so before she wrote this reply. “2. At the time Kamran prepared KZ2-3 he could not locate the letter and asked Mr Zandiye [sic] to confirm the size of the diamonds which the latter did by fax to him based on a copy of the letter that he had written. Kamran has now retrieved his files and found the original letter which will be provided to the court in due course.”[103]So, according to Mrs Roshanian’s letter, the Zandieh letter had not been found by Mr Zabihi at the time Mr Samimi produced his drawings; what is more, before he did find it, Mr Zabihi reportedly contacted Mr Zandieh for confirmation of the size of the diamonds “which the latter did by fax to him based on a copy of the letter that he had written”. It was only later that Mr Zabihi found his copy of the Zandieh letter.[104]Despite being pressed to produce this further fax from Mr Zandieh, neither Mr Zabihi nor Mrs Roshanian could do so. That a document of such importance which, moreover, allegedly came into existence and was sent to Mr Zabihi during the currency of the present proceedings should have gone missing is, to say the least, very unfortunate.[105]In a subsequent letter to Mrs Roshanian - this one dated 21 August 2006 - Mr Buckie continued to question the accuracy of the description of the bracelets and rings of two of the jewellery sets, commenting that if they were as described the bracelets would be too long and “would simply fall off the wrist” and that the dimensions of the ring heads would make them “absolutely enormous”. He went on to say that the earrings of the two other sets, if they were as described, would be “very substantial and significantly heavy” and that the overall diameter of one of the rings of the other two sets would have been 1¾ inches “which is a seriously large head for a ring”.[106]Mr Buckie plainly entertained grave doubts as to the accuracy of the jewellery’s description as it had been conveyed to him. He adhered to his previous view that the values quoted in the Zandieh letter were “disproportionate to the hypothetical value” of the four sets as described to him. He accepted that “values in Iran in 1999 were perhaps not the same as values in Western Europe or the USA” but felt “it would be exceedingly difficult to persuade the other side that the difference would be so great”. Commenting on the colour and clarity of the diamonds, as described in the Zandieh letter, Mr Buckie stated that he took the description (“colour category ‘F’” and “uniquely clear”) to mean “one category lower than internally flawless”. He then added:
“However, I should point out that, whilst it would not be impossible to locate so many matching diamonds of the same size, colour and clarity, it would be a daunting task. In such jewellery of this period the emphasis would have been placed on matching the colour and the clarity would have been very much secondary.”
And that:
“..In the absence of diamond Reports/Certificates confirming their respective colours and clarity grades, it may be prudent to assume that the clarities of all the diamonds were perhaps somewhat mixed.”
[107]On 22 August 2006 Mr Zabihi faxed Mr Buckie to say that he had since spoken to Mr Zandieh who had confirmed that the bracelets were made up of two rows of fourteen 1.5 carat diamonds and that “after consulting with an expert in Iran using the same words described by the jeweller in 1999 … the clarity of the diamonds were [sic] ‘VVS2’ in the English terms”. So Mr Zabihi was kept fully in the picture by Mrs Roshanian about her communications for Mr Buckie. Although Mr Zandieh’s two witness statements referred to communications with Mr Zabihi and Mrs Roshanian, there was no mention in them of any conversation with Mr Zabihi along the lines set out in Mr Zabihi’s letter of 22 August 2006 to Mr Buckie.[108]Despite Mr Buckie’s cautionary words, Mr Zabihi evidently adhered to the descriptions set out in the Zandieh letter. Thus it was that in paragraph 10.8 of his final report Mr Buckie stated that:
“… I think it only right and proper to point out that I believe these [the sketches of the four sets of jewellery contained in Mr Samimi’s drawings] to be of a very amateur nature and were probably drawn by somebody who had no real understanding of jewellery and/or any knowledge of jewellery construction. Furthermore, from the apparent sizes of the diamonds they are not drawn in proportion either in terms of their various component parts or in relation to each other and some do not include the requisite mountings and/or decorative metalwork to make the design ‘work’ practicably. Additionally, in some of them, it is very difficult to ascertain what are supposed to be diamonds and what are supposed to be mountings and/or decorative sections/links and I therefore decided to discuss these sketches more fully with the Claimant who clarified the situation somewhat. It is my view that it would have been far more preferable for a professional jeweller’s artist, who would have a working knowledge of diamond sizes and jewellery construction, to have drawn the pieces to scale in order to have gained a more realistic idea of the size and proportions of the various pieces…”
In paragraph 11.3 of his report Mr Buckie stated that:
“…according to the letter dated 28/04/1999 from Mr Nima Zandieh …, the original owner of the four sets of jewellery, to Kamran Zabihi, the quality gradings of these diamonds was allegedly ‘F’ colour and ‘VVS2’ clarity. Assuming these to be correct, all the diamonds contained in the four sets of jewellery were ‘high quality’ stones and, furthermore, were all ‘matched’ (in other words none were either of an inferior or superior quality).”
Finally, in paragraph 14.2 of his report Mr Buckie stated that:
“…the diamonds have mostly been described as matching ranges of ‘exact’ precise weights (1.50 ct) and ‘exact’ precise qualities (F/VVS2). In practice, however, it would be very rare (although not impossible) to amass such a collection and, therefore, this is not a very robust contention. More likely, some of the weights (in particular) and some of the quality grades would probably have varied slightly …but in the absence of laboratory diamond grading reports detailing the diamonds …I have necessarily needed to base my value conclusions on them all being the same…”
[109]Mr Philip Stocker, the valuation expert instructed on behalf of Mr Janzemini and Alounak Olympia, and with qualifications and experience no less impressive than Mr Buckie’s, had similar comments to those of Mr Buckie on the dimensions of the jewellery as portrayed in the Samimi drawings and described in the Zandieh letter. He referred to the description of some of the items as “implausible”. Of the description of the jewellery in the Zandieh letter - in particular the reference to “F” Grade (effectively colourless) and “uniquely clear” - he said this:
“I have to say that any collection of jewellery suites that contained 285 Diamonds of 1.50 carats and 5 others greater than this is unlikely to have had each and every diamond graded at: Colour - F. Clarity - VVS… The likely odds of this occurring are astronomical, equivalent to winning the lottery…”
[110]When cross-examined about the earlier of Mr Buckie’s two letters to Mrs Roshanian, Mr Zabihi denied that he had said what Mr Buckie reported him as saying, namely that he had obtained a valuation from a jeweller who had offered to pay £250,000 for the four sets and that he could probably achieve a higher price if he explored the market, perhaps in London. Mr Zabihi said that Mr Buckie had got this completely wrong. When asked why, when Mr Buckie raised with him the various misgivings he had about the correct weights and qualities of the diamonds referred to in Mr Samimi’s drawings, he did not simply give him a copy of the Zandieh letter or tell him that he would send him a copy, Mr Zabihi had no satisfactory reply. In an ill-tempered outburst, he said that, if he had wanted to make up his story about the jewellery, he could and would have gone to a jeweller and obtained photographs of four sets of diamonds or said that the jewellery had been given to him by his late “godmother” who was “one of the richest women in the world”. He claimed, somewhat contrary to his earlier evidence, that he took with him notes derived from the Zandieh letter when he met Mr Samimi and the latter produced his drawings. (I pause to say that if he did have any such notes they were never disclosed in this litigation.) He also thought that he might have mentioned the Zandieh letter to Mr Buckie at the meeting in the coffee shop.[111]So Mr Zabihi was evidently sticking to his account of already having the Zandieh letter at the time of the inspection even though he did not produce it either to Mr Samimi or to Mr Buckie or (until 22 July 2006) to Mrs Roshanian. He said that he did not think, but could not be sure, that he was in contact with Mr Zandieh at this time. The only communication he could recall was when, at Mrs Roshanian’s request, he had asked Mr Zandieh to send to Mrs Roshanian the original of the Zandieh letter. (This was because, according to Mr Zabihi, Mr Zandieh had kept the original of it and it was only a copy of the original that accompanied the jewellery when it came to this country in 1999.) But that communication could only have been a reference to what happened much later in 2006 since, according to Mrs Roshanian, she did not receive what she understood to be the original of the Zandieh letter - it came by DHL - until early December 2006. Mr Zabihi evidently had no recollection of the conversation with Mr Zandieh to which he had referred in his letter of 22 August 2006 to Mr Buckie.[112]When asked about the statement in Mrs Roshanian’s letter to Mr Buckie of 1 August 2006 that Mr Zabihi “could not locate the [Zandieh] letter and asked Mr Zandieh to confirm the size of the diamonds which the latter did by fax to him…” Mr Zabihi could not recall Mr Zandieh’s fax. He continued, however, to claim - in the teeth of what on his behalf Mrs Roshanian was telling Mr Buckie - that he had already found the Zandieh letter by the time Mr Samimi came to do his drawings. He also denied another matter referred to in Mr Buckie’s letter to Mrs Roshanian, namely that Mr Zabihi had told him (in the coffee shop) that the gold in the jewellery was in part white gold, in part yellow gold and in part a combination of the two colours. He maintained that he had mentioned only white gold to Mr Buckie.[113]I do not accept that Mr Buckie, whom Mr Zabihi himself described earlier in his evidence as “very precise”, misunderstood, to the extent that Mr Zabihi’s answers under his further cross-examination would suggest, what Mr Zabihi was telling him in the coffee shop after the inspection at Bird & Bird. Mr Buckie’s letter setting out what he had understood from Mr Zabihi in the coffee shop was written a matter of days after the meeting. The reply from Mrs Roshanian did not contest those matters. I have no hesitation in preferring Mr Buckie’s recollection by letter seven days after the event (and unchallenged in Mrs Roshanian’s reply) to Mr Zabihi’s oral recollection two years later.[114]There are other aspects of the Zandieh letter that are puzzling. The thrust of the letter was to record that the jewellery was being given in discharge of a debt three times greater in amount than the value that the letter attributed to the jewellery and that the jewellery had been handed to Mr Zabihi’s representative in Tehran. The fact therefore that each item of jewellery consisted of this or that number of diamonds with the weight of each diamond set out would seem to be of little if any relevance to the purpose of the letter. The next is why the letter should be setting out in such detail at all what each set of jewellery consisted of. The third is how Mr Zandieh was able to provide such detail: the valuation from the Tehran jeweller was apparently entirely oral; according to Mr Zandieh’s own account all records and other documentary evidence of the jewellery in his family’s possession had been destroyed years earlier lest it fall into the wrong hands; and the letter itself recorded that the jewellery had already been handed to Mr Zabihi representative. The fourth is the apparent emphasis given by the letter to the fact that the four sets of jewellery were “complete” sets; that phrase is twice mentioned in the letter which, in any event, describes in detail what the jewellery consisted of. It was as if the author was trying to counter a suggestion that any of the sets might not have been complete. Relevant to this is that by the time of the inspection at Bird & Bird of the jewellery produced by Mr Janzemini there was, as I have mentioned, a clear issue as to whether the sets he had received from Mr Zabihi had all been complete sets. Finally, there is the fact that Mr Zandieh had apparently kept the original of the Zandieh letter for over eight years after the jewellery had safely reached Mr Zabihi in this country in April/May 1999. It is not apparent what reason Mr Zandieh had to keep the letter, nor why he should have kept the original rather than a copy.[115]Another curious feature of the copies of the Zandieh letter produced in evidence is that one of them contained gaps which other copies show to have contained figures. Mr Zabihi was asked about this. He was unable to explain how this came about but speculated that “perhaps when I saw the missing figures I phoned Mr Zandieh and he put them in” adding that this would have occurred within the last two years (ie since 2006) when, he says, he rang Mr Zandieh to ask him to send the original to this country. Mr Zabihi’s speculation merely added to the doubts concerning the authenticity of the letter.

(c) the faxes to Mr Shirian

[116]The Zandieh letter was not the only document which, according to Mr Zabihi, had come into existence in April 1999 and evidenced his receipt of the jewellery from Mr Zandieh. Two other documents, both faxes, were produced. I have already referred to them. According to Mr Zabihi’s witness statement, these are the faxes that he sent to Mr Shirian, ie the very pieces of paper that Mr Shirian had received in Iran eight years earlier. The circumstances in which they came to light were closely investigated by Mr Lewis and Mr Staddon. The upshot was that Mrs Roshanian said that they came into her possession with no covering letter and she was unable to produce the envelope in which they had been sent. I was told that Mr Zabihi had rung to inform her that she would be receiving them and that two or so weeks later, in the middle of April 2007, they duly arrived. She did not send any acknowledgement. Mr Zabihi, for his part, said that he recalled faxing Mr Shirian to ask him to send the faxes to Mrs Roshanian and that she duly received them two weeks or so later.[117]The first of those two faxes, dated 24 April 1999, read - in translation - as follows:
“My dear friend and brother Mr Shirian, After salutation and greeting, and further to our phone conversations, I would like to ask you kindly to contact Mr Zandieh and make an appointment with him to take the 4 complete sets of Diamond jewelry to a jeweler for value estimation before he actually hands them to you. I am so thankful to you, please say my greetings to your respectful family especially your handsome boy Ali. Yours sincerely Kamran Zabihi”
The second, dated 29 April 1999, read as follows:
“Dear Mr Shirian, I am so grateful to you because of your kindness in obtaining the diamond jewelry from Mr Zandieh. I would like to ask you to send the diamonds jewelry to London as soon as possible. Please let me know about the costs so that I can send you the money. And if you need anything from here, please let me know. I will send them to you. Again I am so grateful for talking to you. Grateful to you kindness Kamran Zabihi.”
Yours sincerely Kamran Zabihi” Grateful to you kindness Kamran Zabihi.”

Grateful to you kindness

[118]The defendants challenged the genuineness of those faxes just as they had challenged the genuineness of the Zandieh letter. They contended that the two faxes, like the Zandieh letter, had been created long after the event and in the course of this litigation.[119]Mr Zabihi said that he sent the fax dated 24 April 1999 because he could not get through to Mr Shirian on the telephone. He accepted that he did not normally send letters. He did so on this occasion, he said, to inform Mr Shirian of the valuation. He also understood that it was Mr Zandieh who wanted the valuation and, what is more, wanted Mr Shirian to choose the jeweller to carry out the valuation. He said that he sent the second fax to confirm that he wanted the jewellery sent to London. He was concerned, he said, that Mr Shirian might forget to send it to him. He could not explain why the fax omitted to mention that his (Mr Zabihi’s) female cousin was to participate in bringing the jewellery to London.[120]Mr Lewis submitted that there were a number of suspicious features about the two faxes. The first was that Mr Zabihi, who accepted that he was not a person who usually wrote letters or recorded in writing his business transactions or instructions, should be sending written instructions (two within the space of five days) at all. He submitted that Mr Zabihi’s explanation that he had difficulties getting through to Mr Shirian by telephone was unconvincing. Mr Zabihi could simply have waited and tried again. In any event, the first of the two faxes did no more than refer to conversations which Mr Zabihi had already had with Mr Shirian. Moreover, submitted Mr Lewis, there was no urgency about the matter. Next, he said, was the curious reference in the earlier fax to “four complete sets of diamond jewelry”. Why the reference to “complete”? What reason could there be at that stage for thinking that the sets of jewellery would be otherwise than complete? And what would it have mattered if the sets were not complete? Mr Lewis submitted that the second fax, dated 29 April, was particularly difficult to justify. As Mr Shirian already had the jewellery, there could be no urgency in the matter. The explanation suggested by Mr Zabihi - that Mr Shirian might forget to send the jewellery to him - was not to be believed. In any event, according to paragraph 9 of Mr Shirian’s witness statement, Mr Shirian rang up and spoke to Mr Zabihi after the valuation and was told by Mr Zabihi to take the jewellery from Mr Zandieh and send it to him in London. Not unreasonably, Mr Lewis questioned why there should be a need to remind Mr Shirian by fax of an instruction he had already given to him by telephone no more than 24 or so hours earlier. Next, Mr Lewis pointed to the undoubted fact that the faxes when produced were, like the original of the Zandieh letter produced by Mr Zandieh many years after he had supposedly written it, in excellent condition. He also questioned why Mr Shirian should have bothered to keep two such innocuous communications at all, since the matters which they requested him to do had long since been carried out.[121]Last, Mr Lewis pointed to the fax header markings on the two faxes. There was much debate and questioning of Mr Zabihi and, to a lesser extent Mrs Roshanian, about these markings and a similar marking on one of the sketches which Mr Zabihi had made of the jewellery and sent to Mrs Roshanian on 12 July 2006, two days after Mr Zabihi claims to have discovered the Zandieh letter in his folder.[122]The sketches depicted four necklaces. One of the sketches carried his signature and the date of 13 July 2006. Its fax header showed that it was faxed to Mrs Roshanian on 13 July 2006. The other document, a very similar but not identical sketch of the four necklaces, was unsigned and carried the fax header date of 12 June 1999. The fact that the second sketch carried that date suggested at the very least that the date mechanism on Mr Zabihi’s fax machine could be altered to produce a false date. When cross-examined about this Mr Zabihi stated that he was “90%” sure that the undated sketch was produced on the same day as the dated sketch and was “almost certain” that it was made in July 2006. The puzzling feature, which when I twice asked him about it Mr Zabihi was unable to explain, was why the undated sketch carried the fax transmission date of 12 June 1999 when, as he was maintaining, the document had been faxed on or about 13 July 2006. This puzzle was relevant to the fax headers on the two faxes purportedly sent to Mr Shirian in late April 1999 in that the type and format of the two fax headers on those communications looked identical to the fax headers on the sketches (and other documents) which Mr Zabihi had faxed to Mrs Roshanian. The suggestion put to Mr Zabihi was that he had tampered with the fax machine date mechanism so as to back-date the date of transmission to make it appear as if he had faxed it on 12 June 1999, the date that it bears, when in truth, as he stated, the document had only come into existence in July 2006. A similar suggestion was advanced that he had done the same to the two faxes addressed to Mr Shirian. As I have mentioned, Mr Zabihi could not offer an explanation.[123]In the course of her cross-examination, however, Mrs Roshanian made the suggestion, which could only have come from Mr Zabihi, that the reason why one of the rough sketches which he had produced of the necklaces and sent her in July 2006 carried the fax header date of 12 June 1999 was because when Mr Zabihi’s fax machine was switched off its dating function defaulted to 1999. She said that this had happened on another document which Mr Zabihi had sent her. She recalled that when she received the sketch with the 12 June 1999 fax header date on it she noticed the incorrect date and rang Mr Zabihi to say that its date was wrong and asked him to do a better copy. This resulted, she recalled, in the further sketch of the necklaces - and it is a different sketch - which came the following day and carried the date “13 July 2006” in Mr Zabihi’s handwriting and the fax header date of 13 July 2006.[124]But if the dating function on Mr Zabihi’s fax machine defaulted to June 1999 after it had been switched off Mr Zabihi would surely have recalled the fact, especially, as according to Mrs Roshanian, this had happened on at least one other occasion. Another difficulty about Mrs Roshanian’s suggested explanation was that even if the date mechanism on Mr Zabihi’s machine did default to an earlier date when switched off, it scarcely explains why the default date would be to some date in the first half of 1999 when I was given to understand (by reference to correspondence by Mrs Roshanian with the manufacturer of the machine) that Mr Zabihi’s fax machine was only purchased in 2000. This puzzling feature of the transmission dates on faxes sent by Mr Zabihi’s machine was not ultimately resolved one way or the other.

(d) my conclusions on the Zandieh letter and faxes to Mr Shirian

[125]It is appropriate that I should now state my conclusions on the Zandieh letter and the two faxes addressed to Mr Shirian.[126]I find - indeed I have little hesitation in reaching this conclusion - that the Zandieh letter was concocted for the purpose of this litigation. Likewise the two faxes addressed to Mr Shirian. The criticisms of those documents made by Mr Lewis, coupled with the skilful cross-examination of Mr Zabihi by Mr Lewis and Mr Staddon as to the circumstances in which those documents came to light and how, in any event, they failed to fit in with the other circumstances in which Mr Zabihi claimed to have come into the possession of the jewellery, and Mr Zabihi’s unconvincing and, at times, evasive answers to their questioning, make this conclusion one which I have felt quite unable to resist. I well appreciate that it involves a finding of calculated dishonesty on Mr Zabihi’s part - which is a most serious matter. I would not be willing to reach such a finding unless convinced that it was fully justified. I am so convinced.[127]This finding involves the further conclusion that passages in the witness statements of Mr and Mrs Zandieh and Mr Shirian concerned with the Zandieh letter and, in the case of Mr Shirian, with the two faxes, are likewise untrue. I am the more ready to reach that equally distasteful conclusion given that none of those three persons was available for cross-examination and I was told little or nothing of the circumstances in which their witness statements came to be drawn up and signed and whether even, as was the case with some of the witnesses who were cross-examined before me, they were able fully to understand the English prose in which their statements were written. (I was told that Mr Zandieh was an English teacher so I could assume reasonable competence in his understanding of the language.) Mrs Roshanian said that she spoke over the telephone to Mr Zandieh on several occasions - I presume in Farsi - but never saw him (or Mrs Zandieh) face-to-face. The main point of contact with the Zandiehs was, it was clear, through Mr Zabihi.[128]I should add, to avoid any doubt, that in reaching these conclusions I have not been influenced either way by the oddity in the fax header date on one of Mr Zabihi’s two rough sketches of the necklaces and by a comparison of the style and appearance of that date with the fax header date on the two faxes addressed to Mr Shirian.[129]I should also make clear that I do not consider that Mrs Roshanian has been knowingly involved in this deception. Her conduct of Mr Zabihi’s claims may be open to criticism in a number of respects. But I find no grounds for impugning her honesty to any extent. Her fault has been a lack of thoroughness in collating and preserving original documents, a less than complete execution of the important process of disclosure and, at times, an over-zealous pursuit of her client's claims.

(e) the consequences of these conclusions

[130]It does not follow from these conclusions that I should accept the evidence of Mr Janzemini that the jewellery he produced for inspection in 2006 - ie the proffered jewellery - was the same jewellery that was handed to him by Mr Zabihi at their meeting in Ruislip of 12 September 2002. It does not necessarily follow from my finding that because, having no other documentary evidence of what exactly he passed to Mr Janzemini, Mr Zabihi has created and backdated documents to bolster his claim and has apparently involved others in this deception, he did not come into possession of valuable jewellery, possibly even in or about Spring 1999, and the jewellery did not consist of diamonds mounted on gold. For I still have to determine, if I can, what the jewellery was that Mr Zabihi passed to Mr Janzemini. It is to those further matters that I now turn. They bring into contention the evidence of Mr Janzemini and his witnesses and whether and to what extent I should accept what he and they had to say.[131]Before going to that evidence I should first consider the evidence of Mr Zabihi, for what it may be worth, and of the other witnesses on which he relied who claimed to have seen the jewellery before he passed it to Mr Janzemini, as to what exactly, according to their recollection, the jewellery looked like.

(f) sightings of the jewellery: evidence relied on by Mr Zabihi

[132]I start with a general observation. This is that I regard with extreme scepticism claims by witnesses to recall what items of jewellery looked like based, in many cases, on no more than brief or fleeting inspections, in some cases years earlier, unless there is good reason for that witness to have recalled what the jewellery was that he or she was looking at (for example, a particular interest in jewellery or in that particular kind of jewellery or its use on a particular occasion). A graphic illustration of this was provided by the inspection which took place on 21 July 2006 of three of the sets of jewellery which Mr Janzemini produced on that occasion and a later inspection, again at Bird & Bird’s offices, of the fourth set on 6 September 2006 by Mr Zabihi, Mr Buckie and Mrs Roshanian. There was a later inspection of all four sets, this time at the offices of Pettman Smith (Mr Janzemini’s subsequent solicitors) in April 2007 this time by Mr Zabihi and Mrs Roshanian without Mr Buckie being present. I find, indeed as matters turned out there was not I think any serious issue about this, that the four items which Mr Janzemini produced at the first two inspections were the same as those produced at the inspection in April 2007. What is of interest is that Mr Zabihi believed that what he saw on the subsequent occasion was not the same as what he had seen on the earlier occasion. Just as significant is that Mr Buckie entertained some doubt as to whether the items he had seen on the earlier occasions were the same as those shown in certain photographs which were produced to him. It is fair to point out that their ability to recall what they saw was not assisted by the brevity of the 21 July 2006 and 6 September 2006 inspections, neither of which could have lasted more than a couple of minutes. Nonetheless, their difficulty, particularly that of Mr Buckie, a jewellery expert, makes the detailed claims by others to be able to recall what they briefly saw years previously (when they could have had no occasion to pay particular attention to the jewellery, let alone to the details of it) all the more improbable.[133]I deal first with Mr Zabihi’s evidence about the whereabouts of the jewellery between May 1999 and September 2002 and, in particular, the number of occasions when, even on his own account, he saw the jewellery. He explained that, although his wife had no interest in jewellery and did not wear it, he decided to keep this particular jewellery rather than sell it and, according to this account, was content to keep it in a safe deposit box at Barclays Bank. His trial witness statement suggested that he kept the jewellery in a single safe deposit box although his Further Information said that it was kept in two such boxes. His oral evidence was that it was kept initially in the safe deposit box of a Mrs Sadovar and, following her death in 2000, that it went into the safe deposit box of a Mrs Fatih. Mrs Fatih, it turned out, was the wife of Mr Sadoughi to whom I have referred earlier (in connection with Mr Janzemini’s £20,000 claim). Mrs Fatih - or Sadoughi - is also now deceased. Both boxes were apparently in the same deposit room. Both ladies were, he said, godmothers to him. (It may be that in using that expression Mr Zabihi was not correctly conveying his relationship to them but I have no reason to doubt that there was a close relationship between him and those two ladies.) In his witness statement, Mr Zabihi stated, and it was not disputed, that he had a power of attorney which for some two and a half years but no longer possessed it. He indicated that the safe deposit box was at Barclays’ Park Lane Branch in the West End of London. He claimed in his Further Information that he had power of attorney to operate both safe deposit boxes. In his oral evidence before me, however, he stated that what he possessed was the right to open the safe deposit boxes on production by him of proof of his identity. As with so much else in this litigation, there was no documentary evidence to support any right of access by him to the safe deposit boxes. The matter turned entirely on his own word.[134]He said that during the period 1999 to the time of handover of the jewellery to Mr Janzemini in September 2002 he showed the jewellery to his wife and his father (at his father's house) in 1999 (as I understood it shortly after its arrival in this country) but that the examination of the jewellery lasted no more than a few minutes and that in 2001 he took it out of the safe deposit box and brought it to his flat in Ealing and showed it to a Mr Shiraji who wanted to see it. He said that a Mr Iraj Roshanian happened to come to the flat that day and he also saw it. (I deal later with Mr Roshanian’s evidence.) Mr Zabihi thought that the examination lasted no more than 30 to 40 minutes on that occasion. Mr Shiraji is now deceased. Mr Zabihi said that he saw the jewellery, although not to examine it, when he accessed the safe deposit box for other purposes, for example to pick up his passport, on a few other occasions. He said that each item of jewellery was kept wrapped in a separate handkerchief although he believed that the rings were kept with the bracelets so that there would have been twelve handkerchiefs in all.[135]I have already commented on Mr Zabihi’s claim to be able to recall in astonishing detail when he was with Mr Samimi what the jewellery looked like several years after he had last seen it, a claim which was the more remarkable in that he disclaimed any particular interest in jewellery much less any expertise in it.[136]Mr Mohammad Zabihi, Mr Zabihi’s father, gave evidence through an interpreter. His evidence consisted largely of what others had told him about what, in turn, they understood to have happened to the jewellery that his son had entrusted to Mr Janzemini and about other conduct of Mr Janzemini. Even assuming that Mr Mohammad Zabihi’s recollection of what he was told was accurate, much of it was double-hearsay. One thing which became abundantly clear during the trial was that with the passage of time the truth has become easily distorted in the course of discussion and communication about the jewellery. I am therefore exceedingly wary of placing any weight on hearsay accounts. The witness statement of Mr Mohammad Zabihi well illustrated another recurrent feature of this trial: the disparity between the contents of witness statements to which witnesses have put their signatures and what the witnesses have in truth been able to recall. Thus, in his first witness statement, Mr Mohammad Zabihi claimed that he had seen the jewellery, that this was in 1999, and that it was his son who had produced it. His witness statement described the jewellery as “four complete sets of diamonds” which, he understood from his son, had been sent by Mr Zandieh in Iran in satisfaction of a debt. In his witness statement he described the jewellery as “made of clear and bright high quality diamond pieces” and that “I could detect no coloured stones in the sets as all I saw in the four sets were white and clear and no coloured stones existed in the four sets”. He then continued:
“I confirm that pictures sent by Mr Mahmood Janzemini’s solicitors bear no resemblance to the sets shown to me by my son in 1999 because the four sets of diamonds belonging to Kamran [ie Mr Zabihi] did not contain any coloured stones.”
[137]When cross-examined about what he claimed in that witness statement to have recalled from all those years earlier, a very different picture emerged. First, he admitted that he was no expert in jewellery and could not even distinguish the glass of the court water jug from a diamond and certainly could not differentiate between different types of gemstones, let alone qualities of diamonds. Second, he admitted that his one and only viewing of the jewellery (in 1999) had been “brief”. Third, he stated, when shown coloured photographs (admittedly not of the highest quality) of the proffered jewellery, that he thought that this was “approximately what I saw” all those years previously (that is, that it was the jewellery that his son had shown to him) and added “I can’t remember these things. I only saw it [the jewellery] briefly”. Fourth, he accepted that his son had discussed with him his claims in these proceedings. His oral evidence on these matters provided a lesson in the danger of placing reliance on written but untested claims of recollection. In truth, as was obvious (and entirely credible), he had no particular recollection of what he saw all those years ago. He would have had no reason to recall those matters. The assertions in his witness statement about what he saw were plainly very far from his true recollection.[138]Mr Iraj Roshanian is a cousin of Mrs Roshanian and has been friendly with Mr Zabihi and his family for over 20 years. He lives in the United States. He recalled visiting Mr Zabihi’s flat in Ealing in the summer of 2002. He recalled the occasion as being some time between noon and 4 o’clock. He said that Mr Zabihi showed him four sets of jewellery which he was told had come from Iran. Mr Roshanian claimed no expertise in jewellery. His recollection of the jewellery was that the jewels were white or clear in colour. He was told by Mr Zabihi that they were diamonds. They were spread out on a coffee table and were on white or light coloured cloths. He did not pick up the jewellery. He noticed that there were four sets. He did not examine the jewellery. He was there for about 30 to 40 minutes. He said that he did not see any coloured stones. So far as the evidence went, I have no reason to doubt that Mr Roshanian was endeavouring honestly to recall what he saw but it did not seem to me that it advanced matters much.[139]This brings me chronologically to the next important event in this dispute: the delivery of the jewellery by Mr Zabihi to Mr Janzemini on 12 September 2002.

The jewellery handover on 12 September 2002

[140]What happened at the meeting in his Ruislip flat when Mr Zabihi handed the jewellery to Mr Janzemini is a matter of acute conflict, as are the circumstances which led to that meeting. The only matters of common ground are(1) that the meeting took place,(2) that four sets of jewellery comprising matching necklace, earrings, finger ring and bracelet, were handed over (although there is a dispute whether all four sets were complete),(3) that the jewellery lay in boxes (though not the colour of the boxes) and(4) that Mr Janzemini was accompanied to the meeting by a Mr Shirani.[141]Mr Zabihi’s account of the meeting, including what led to it, as it appears in his trial witness statement is short and succinct. “19. At the beginning of September 2002, I called the First Defendant and asked him if he knew of anyone interested in buying expensive jewellery as I had four sets of antique jewellery made of pure gold and diamonds to sell. He said he knew of two persons who he thought would be very interested in the jewellery, including one called Ali Royce Rolls. As stated in para 189 below, about a week before I handed over the jewellery to the first Defendant he told me that he had to discuss the matter with his partner Yousef and that if he agreed, he would take the jewellery and try to sell it for me. So we arranged for him to come to my flat in Ruislip to collect the jewels.20. On 12th September 2002, he together with one of his friends came to my flat. I told him that I wanted to get £125,000 per set for the four sets of jewellery and that I would give him a percentage of the selling price as his commission. I also told him that if he managed to sell the jewellery for more than £500,000, he could keep the rest for himself. He agreed and left with the 4 sets of pure gold diamond jewellery I gave him in the presence of his friend, Ali (which the First Defendant says was Ali Shirani), and my wife Anna Zabihi. My wife was present during the whole time when the first Defendant and his friend came over to my flat and witnessed our conversations.21. To clarify, what I mean by “pure gold and diamonds” is that the jewellery was made of white gold and diamonds only and did not contain any other metals or coloured gemstones.22. I gave the diamonds to the First Defendant on the condition that he placed it in the safe box of Alounak Restaurant in Olympia so that the jewellery would be covered by Alounak Olympia’s insurance policy. He was not to take it home to show it to any other person other that his partner, the Second Defendant, and the prospective buyers. He agreed.23. My wife and the first Defendant’s friend who the First Defendant has identified as Mr Ali Shirani both witnessed my handing over the jewellery to the First Defendant.”[142]In paragraph 24 he referred to two telephone conversations which he claims to have had with Mr Massodipour about the jewellery, the first on 11 September - the day before the meeting - and the second on 13 September, the day following the meeting. I will deal with those two conversations when I come to deal with the claim against Mr Massodipour.[143]In cross-examination Mr Zabihi denied exerting any pressure on Mr Janzemini to sell the jewellery, claming that Mr Janzemini was keen to sell it. He said that the jewellery was contained in red boxes (one for each set) which he had bought earlier that day. He said that he told Mr Janzemini that the jewellery was worth £125,000 per set. He also stated that he wrote £125,000 on the sleeve of each box as indicating the price for which each set should be sold. He said that he told Mr Janzemini that he only wanted £500,000 for the four sets, rather than any greater sum. (It will be recalled that, according to the Zandieh letter supposedly written three and a half years earlier, the jewellery could be sold for more than £500,000; and Mr Buckie was later to value the jewellery as described by the Zandieh letter at between £1.85 million and £2.1 million as at September 2002 attributing to two of the sets a value roughly twice that of one of the other two sets.) Mr Zabihi explained his readiness to accept no more than £500,000 by saying “I didn't want to make a profit. I needed the money fast to invest in Iran. I just wanted the £500,000”. In paragraph 29 of his trial witness statement he referred to needing the money for a “business venture”. In the course of his cross-examination he explained that this involved the purchase of 4000 square metres of land (out of a larger area, over twice the size) and that his deadline for the sale of the jewellery, having regard to the business opportunity, was (as I understood it) the end of January 2003, although it was not suggested that this deadline was mentioned to Mr Janzemini.[144]Mr Zabihi qualified what he had stated in his witness statement about his wife being present “during the whole of Mr Janzemini’s visit to the Ruislip flat”. He said that his wife was present in the flat but was coming and going in to and out of the room where he was with Mr Janzemini and Mr Shirani. He also retracted his evidence that his wife had “witnessed our conversation” but claimed that she spoke “some Farsi”. Later in his cross-examination he explained that, although he had gone earlier that day to Hatton Garden to purchase the boxes for the jewellery, it did not occur to him to enquire about selling the jewellery in Hatton Garden, much less having it valued there, because, as he claimed, he did not know that he could sell jewellery in Hatton Garden. Indeed, he said that he was unaware that Hatton Garden is a centre for diamond dealers. He claimed not to know how to sell jewellery notwithstanding that he was aware that his sister-in-law (now living in the USA) had worked in the jewellery business in the 1980s and, what is more, had done so in Hatton Garden. (I consider her evidence briefly later.) I do not accept that Mr Zabihi was being honest about these matters.[145]I do not accept that he had no awareness that Hatton Garden was a diamond dealing centre, particularly when, as he claimed, he went there with Mr Sadoughi that very day to purchase the jewellery boxes. Even if he did not know about Hatton Garden, it must surely have occurred to him to enquire when he visited the jeweller’s shop to acquire the boxes, whether that or some other jeweller might not be a better place to sell the jewellery, what he might get for the jewellery and how much it would cost him to sell it that way. If speed of sale was his concern and obtaining the very best price for it less important (given, as he has insisted, that he was willing that Mr Janzemini should keep for himself any sale proceeds in excess of £500,000) a sale through a recognised dealer would have been an obvious alternative and arguably a better course to follow.[146]Mr Zabihi’s Polish-born wife, Anna, gave evidence. She did so in a firm and confident manner. She said that she had seen the jewellery on two occasions, prior to the occasion that Mr Janzemini came to the Ruislip flat in September 2002. Her first sight of the jewellery was very briefly (for no more than a very few minutes) in 1999 when, as she understood it, it had arrived from Iran. The second occasion was in 2001 which she could date to that year because it was in the Ealing flat that she and her husband occupied for six months at that time. She had very little to say about that occasion. The next occasion was in 2002 at the time of the handover of the jewellery to Mr Janzemini. She recalled going in and out of the room where her husband was with Mr Janzemini whom she said she had known since 1990. She recalled that here was one other person present whom she did not know. This would have been Mr Shirani since it was common ground that he too was present on that occasion. She said that they were conversing in Farsi which she does not speak. She did not therefore participate in what was being discussed but she recalled seeing the jewellery lying in open boxes, one set to a box. She recalled that the boxes were of red velvet. She recalled seeing Mr Janzemini holding the four red boxes in his hands when he later left the flat. She recalled that the jewellery consisted of diamonds and a white metal which her husband told her was white gold. She personally would not have recognised it as such. She believed that what she saw looked very similar to Mr Samimi’s drawings. She seemed positive that what she saw was different from the jewellery produced by Mr Janzemini for inspection in July 2006 (and subsequently), pictures of which she had seen. She believed that she saw four complete sets of matching antique jewellery (necklace, bracelet, earrings and ring). She said that she did not count the items but merely assumed that they were complete sets because, she said, the boxes looked to be full. She had no recollection of seeing any white folders with the boxes, much less seeing the red boxes in the folders. She recalled that she had berated her husband for having handed over the jewellery without obtaining a receipt but recalled that he said that he trusted Mr Janzemini.[147]I accept that Mrs Zabihi was present at and recalled the meeting in the Ruislip flat in September 2002 when her husband passed the jewellery to Mr Janzemini. I do not accept that Mrs Zabihi’s recollection of what the jewellery comprised, ie the number of items and that the gemstones were all clear diamonds, is reliable or that the jewellery was similar to Mr Samimi’s drawings. Her previous sightings of the jewellery were altogether too cursory and imperfect for her to have carried any very distinct image in her mind of what the jewellery comprised. Her participation in what passed between her husband and Mr Janzemini at the meeting in the flat in 2002 was too passing to have enabled her, years later, to have any clear idea of what the jewellery was that was handed over. To some extent, as she accepted, her account of what happened at the meeting, for example the recollection in her witness statement that her husband told Mr Janzemini that the jewellery items “were antique and very precious”, was not what she had heard and witnessed but what her husband told her subsequently. This is not to say that Mrs Zabihi was not endeavouring to tell the truth as she saw it. She certainly did not strike me as someone who was deliberately claiming to recall matters when in truth she had no - and knew she had no - recollection of them. She acknowledged that she had very little jewellery of her own (she mentioned one item which she had been given by her parents) and admitted that she was “not into jewellery”. Her very closeness to this dispute and the ease with which true recollection becomes blurred with reconstruction after the event, influenced by a knowledge of what is being claimed, called into question the reliability of her claim to be able to identify the jewellery.[148]This brings me to Mr Janzemini’s evidence of the meeting. He stated that he came to the Ruislip flat on 12 September without knowing why:
“39. About a week or so after the third call …”
This is a reference to his having rung Mr Zabihi to ask for the return of the £20,000 which he had previously advanced to him (and dealt with earlier in this judgment). “…I received a call from the Claimant, who told me to come to the Claimant’s flat in Ruislip as he had something for me. The Claimant did not, at any time before I went to his house, mention that he had jewellery which he wanted me to sell, or ask whether I knew anyone who might be interested in buying such jewellery. I did not suggest any names or agree to sell the jewellery before the meeting at his house. As far as I was concerned, I thought the Claimant was calling me to his house to pay me back the money he owed me and which I had been chasing him for.” In paragraph 11 of his defence served on 26 July 2006 (and never amended although other amendments to that pleading were later made) Mr Janzemini alleged that in August 2002 he had been contacted by Mr Zabihi and asked “if he knew any wealthy person who might be interested in purchasing the jewellery” and that he had offered to try and find a buyer for it. This would appear to refer to an occasion earlier than the meeting at the Ruislip flat on 12 September which is dealt with in a later part of the particulars of claim and is pleaded to in a later part of Mr Janzemini’s defence. In cross-examination Mr Janzemini was unable to explain paragraph 11 of his defence. “…I received a call from the Claimant, who told me to come to the Claimant’s flat in Ruislip as he had something for me. The Claimant did not, at any time before I went to his house, mention that he had jewellery which he wanted me to sell, or ask whether I knew anyone who might be interested in buying such jewellery. I did not suggest any names or agree to sell the jewellery before the meeting at his house. As far as I was concerned, I thought the Claimant was calling me to his house to pay me back the money he owed me and which I had been chasing him for.”[149]In Further Information dated 1 December 2006 which was just over four months after that pleading Mr Janzemini set out his account of what happened which, with further additions, became the basis for the following account of events as it appears in his main witness statement:
“40. I went to the Claimant's flat in Ruislip with Ahmad Shirani in or about September 2002. He appeared to be alone and I do not remember seeing his wife Anna or anyone else there. We were given some coffee. After about 15 minutes at the Claimant's house Mr Shirani and I were shown four boxes of jewellery comprising, in the case of three of the sets, matching necklace, bracelet, ring and earrings, and in the case of the other set, matching necklace, ring and earrings (“the Jewellery”). The boxes were green and were identical with cream outer boxes. Photographs of the jewellery, the green leather boxes and the cream outer boxes are exhibited at pages 1-6 of “MJ2”. 41. He said that I had come to meet and to know many successful and wealthy men through the restaurant. He told me that in order to recoup my money I should sell the jewellery. I believe I told him that I did not know anyone I could sell it to and that he suggested I sell it to our mutual acquaintance Ali “Rolls Royce”
. I do not believe I discussed any names other than Ali “Rolls Royce” with the Claimant. He told us that three of the sets of jewellery were worth £80,000 each and that the fourth set, the one without a bracelet, was more expensive and worth £100,000, giving a total value for the jewellery of £340,000. More than once he referred to the red stones in the fourth set as “Pigeon's blood”. 42. He told me to take £40,000 from the proceeds for the money he owed me and to return the rest to him. I am in the restaurant not the jewellery trade and have no experience in selling jewellery. I refused to take the jewellery some 3-4 times. However the Claimant was insistent and eventually I reluctantly agreed. 43. As we were leaving, Mr Shirani went to get the car. The Claimant was standing by me holding the jewellery whilst I put my shoes on. The Claimant said to me words to the effect:
“sell the jewellery for £340,000. You give me £300,000 and you keep £40,000 for yourself.”
I understood by this that the Claimant was seeking to repay the various sums he owed me. The Claimant added “Don't let anyone know about this money. Don't give it to Mr. Sadoughi”. 44. I knew that the Claimant had been acting for Mr Sadoughi in several transactions such as selling a property in 6 Uxbridge Road in Acton, and also the sale of some other jewellery belonging to Mr. Sadoughi. I understood by this statement that the jewellery I was being given also belonged to Mr Sadoughi and that the Claimant was selling it on his behalf. It was my understanding at the time that the Claimant was helping Mr Sadoughi to put some money together in order to go back to Iran. 45. There was no mention either at the time I was given the jewellery or in subsequent telephone conversations as alleged by the Claimant that I should insure the jewellery on the Third Defendant’s insurance policy or that I should sell the jewellery for £500,000 or more. I was never told by the Claimant as he alleges that I should not take the jewellery home or show them to anyone other than the Second Defendant and prospective buyers or that I must place it in the safe box of the Third Defendant so as to be covered by its insurance policies. There was no suggestion that I was taking the jewellery on behalf of myself and the Second Defendant or the Restaurant. As far as I was concerned, the Claimant owed me money and was trying to repay the money he owed by getting my help in selling the jewellery belonging to Mr Sadoughi.”[150]Mr Janzemini broadly adhered in cross-examination to this account of the meeting. He claimed to recall that Mr Zabihi told him in terms (rather than do no more than imply) that the jewellery belonged to Mr Sadoughi and that it had come from the Iranian Royal Family. He said that Mr Sadoughi had been manager of the Central Bank in Iran. He understood the reference to the Royal Family to mean that the jewellery was very valuable. He insisted that he was reluctant to take the jewellery and had to be pressed to take it. As he put it:
“I said I am too shy to sell it to friends when I don’t know its value. How can I sell it for £300,000 if I don’t know the value?”
He explained that although Mr Zabihi said that he could keep £40,000 if he sold the jewellery for £340,000, no reference was made to any debts that he owed. It was merely his (Mr Janzemini’s) assumption that the £40,000 represented what Mr Zabihi owed him.[151]For reasons which will become apparent when I deal further with his evidence, I did not find Mr Janzemini at all convincing as a witness. Making every allowance for his extremely poor English and his ill-health (he suffered a heart attack in September 2003 and looked far from fit) his evidence was at times muddled and (as will appear) at other times frankly incredible. In the course of his cross-examination he frequently contradicted himself and his trial witness statement. The fact that Mr Janzemini could not recall Mrs Zabihi’s presence at the meeting throws into doubt his claim to have recalled some of the other details to which his evidence referred. For example, I do not consider that he could have thought that if he should succeed in selling the jewellery for £340,000 he should keep £40,000 in repayment of what Mr Zabihi owed him. His own evidence simply did not support the view that, at that time, he believed Mr Zabihi owed him that amount.[152]Mr Shirani was the person who accompanied Mr Janzemini to Mr Zabihi's Ruislip flat on 12 September. At the time he was a mini-cab driver and had been a friend of Mr Janzemini for 25 years or more. In his witness statement Mr Shirani stated that Mr Janzemini asked him to drive him to the flat in Ruislip. This is how Mr Shirani described what followed:
“4. After offering us some coffee which we drank, the Claimant brought in some jewellery in four green leather boxes in 4 cream boxes. He then asked the First Defendant to sell the jewellery to a man he named as Ali Rolls Royce, a man known to be very wealthy to both Mr Zabihi and the First Defendant. The First Defendant told me that he was called ‘Ali rolls Royce’ because he owned and drove several Rolls Royce motorcars. Mr Zabihi suggested that the First Defendant should sell the jewellery and retain some of the sale proceeds in payment for monies which he owed to the First Defendant. I did not know how much money the Claimant owed to the First Defendant. The Claimant also said that the First Defendant could show the jewellery around his Restaurant because he knew wealthy people who came to his Restaurant who might be interested in the jewellery. 5. I recall that three or four times the First Defendant refused to take the jewellery saying to the Claimant that he could not find a buyer and that he was not the right man to sell it anyway. I recall that the Claimant kept pressing the First Defendant that he thought that Ali ‘Rolls Royce’ would be willing to buy them from him. I recall the Claimant saying that one of the boxes of jewellery was worth £100,000 and that the other three were each worth £80,000. In the time that I spent at the Claimant’s house I had a clear view of the jewellery and each box was opened and shown to the First Defendant. Eventually, on the Claimant pressing him, the First Defendant took the jewellery and agreed to try to do his best to sell it. We then left the house and I drove the First Defendant to Alounak Restaurant before going …to pick up my car.”
[153]Mr Shirani stated that he did not subsequently give the jewellery any further thought until he was rung up by Mr Zabihi in June or July 2006 and asked if he remembered the jewellery. He recalled that, on replying that he did, Mr Zabihi offered him some money to make good a debt owed by a third party to him for a concert performance (by then he worked as a musician). After that, he said, he heard nothing. He claimed to recall that the jewellery he had seen handed by Mr Zabihi to Mr Janzemini was the same as in photographs of the proffered jewellery.[154]Mr Shirani was cross-examined at some length on his witness statement. He was able to speak passing English. He adhered to his account of the handover meeting. He said that it was only when he and Mr Janzemini arrived at Mr Zabihi’s flat that they were told anything about the jewellery. He said that he had no recollection of seeing Mrs Zabihi. He thought it was Mr Zabihi who made some coffee for them. He even remembered the coffee to have been “very delicious” and claimed to recall asking Mr Zabihi how he had made it. When asked if he could recall anything said at the meeting about Mr Janzemini keeping some of the jewellery sale proceeds he stated that he “was a hundred percent sure” that nothing was said about that. But when the fourth sentence of paragraph 4 of his witness statement was put to him (to the effect that Mr Zabihi had suggested at the meeting that Mr Janzemini should sell the jewellery and retain some of the sale proceeds in payment for monies which he owed to Mr Janzemini) he claimed to recall that, yes, that had been mentioned but only when they were outside the flat and he and Mr Janzemini were getting into his car to drive back. He adhered to having recalled Mr Zabihi mentioning £80,000 for three of the sets and £100,000 for the incomplete set. He did not recall Mr Zabihi writing anything on the jewellery boxes. He recalled picking up one of the sets of jewellery to look at it and Mr Janzemini doing likewise. He recalled that the jewellery was “red and white and with shining diamonds” but stated that he could not recognise diamonds and was not curious about the jewellery. He claimed to have a fairly detailed recollection of what the jewellery boxes looked like: “not red boxes. Green boxes. Inside another box” and that there was a separate “grey carton” for each box. (In his witness statement he had felt able to describe the outer boxes as cream in colour.) At one stage in his cross-examination he appeared to believe that the carton was in the nature of a sleeve but later said that it was lidded. He claimed to recall that the green cover of the jewellery boxes was soft in nature.[155]Mr Shirani’s recollection of the meeting which, as he accepted, he had had no reason to think about for almost four years until June/July 2006 was too detailed to be credible, for example, his claim to recall the colour of the outer containers of the jewellery boxes and even how the outer boxes functioned. His failure to recall that Mrs Zabihi was present calls into question just how much he could recall. His total certainty that the conversation about the sale prices for the jewellery took place outside the flat as he and Mr Janzemini were getting into his car to return home when, in his witness statement, his recollection of the conversation was that it took place while he and Mr Janzemini were still in the flat, undermined his credibility.[156]What then am I to make of what happened at the handover meeting? I have found it difficult to come to any firm conclusions on what was discussed. I accept that there was discussion of the prices at which the jewellery was to be sold. I accept that the figures of £340,000 (or thereabouts) and £500,000 featured in the conversation. I do not accept that Mr Zabihi stipulated that anything above £500,000 could be retained by Mr Janzemini. I feel unable to accept the suggested figures at which each set should be sold (whether £125,000 per set as Mr Zabihi claimed or £80,000 for each of the three complete sets and £100,000 for the set with the missing bracelet as Mr Janzemini and Mr Shirani claimed to recall). I am unable to accept as reliable the evidence of any of the participants concerning the colour of the jewellery or of the jewellery’s containers. I do not accept that there was any discussion of Mr Janzemini keeping £40,000 of the sale proceeds if a sale of £340,000 was achieved, much less that it was envisaged that this would cover what Mr Zabihi owed Mr Janzemini. Not the least of the reasons for this is that, as I have mentioned, I do not accept that, in his own mind, Mr Janzemini thought at that time that Mr Zabihi owed him that amount or anything approaching it.

Mr Janzemini’s case

[157]This brings me to Mr Janzemini’s case and his contention, supported by the evidence of several of the witnesses called to give evidence on his behalf, that what he was handed at the 12 September meeting was the proffered jewellery.[158]It was eventually accepted by Mr Zabihi that on 18 January 2004 Mr Janzemini took pictures of the four sets of the jewellery - the proffered jewellery - that he was later to produce for inspection. The pictures, by way of brief video clips, were taken on his mobile phone between 3.23 am and 3.25 am in the very early hours of that day. The pictures constitute the earliest documentary evidence of Mr Janzemini’s possession of that jewellery. Quite why the pictures were taken at that hour of the day and on that day were matters explored in evidence to which I shall come later.[159]Given this acceptance I see little point in assessing the credibility of sightings of the proffered jewellery subsequent to 18 January 2004 mentioned in the evidence of witnesses called or relied upon by Mr Janzemini. The question is whether, as Mr Janzemini steadfastly asserted, it was this jewellery that Mr Janzemini was handed by Mr Zabihi at their meeting 16 months earlier in September 2002. If it was, then that is an end of Mr Zabihi’s jewellery claim. If, on the other hand, it was not I am still left with the question: what exactly was the jewellery that was handed over?[160]I deal first with the evidence of witnesses called by Mr Janzemini who claimed to have seen the proffered jewellery prior to January 2004 and what Mr Janzemini said he did with the jewellery. I shall next deal with communications between Mr Zabihi (or those representing him) and Mr Janzemini concerning the jewellery between September 2002 and the start of these proceedings in June 2006. I shall then refer to certain other evidence that the parties relied on. I shall finally state my conclusions on the issue.

Jewellery sightings and dealings

(a) Yousef Janzemini

[161]According to his witness statement, Yousef Janzemini, Mr Janzemini’s younger brother, recalled being in the Alounak Olympia restaurant when Mr Janzemini arrived with four sets of jewellery. He was accompanied by Mr Shirani. Yousef Janzemini continued:
“I had a good look at the sets and saw that one set had a bracelet missing. I pointed this out to Mahmood [ie Mr Janzemini]. He acknowledged that one piece was missing.”
Yousef Janzemini then identified the jewellery as being that shown on photographs of the proffered jewellery exhibited to his witness statement. He claimed to recall that this occurred some 3 to 4 months after Mahmood had given the £20,000 cash to the Claimant from which he calculated that this would have been “in or around August/September 2002”. His witness statement continued:
“When I asked Mahmood where he had got the jewellery from, he told me that the Claimant had given him the jewellery to sell. He said he had been told that he could take his money from the sale price and the rest was to be given back to the Claimant. He said that the Claimant had told him to show the jewellery to his rich friends and to sell it for a good price.”
[162]Yousef Janzemini was cross-examined on his witness statement. He spoke through an interpreter. His witness statement, however, was in English. There was no Farsi version of it. He explained that the statement had resulted from an interview with Mr Janzemini’s solicitors when his elder brother, Hamid, had acted as interpreter. In signing his witness statement he explained that he had depended upon Hamid who, he said, translated it for him before he signed it.[163]When asked about his recollection of the occasion in August/September 2002 when his brother and Mr Shirani arrived with the jewellery, he claimed to recall the particular table in the restaurant where they sat when the jewellery was produced. He recalled that the jewellery boxes were opened and the jewellery was exposed to view for about two to three minutes. It was during this short period of inspection, he said, that he noticed that one set was without a bracelet, a fact which he pointed out to his brother. He did so, he recalled, to ensure that his brother realised that this item was missing. Although he did not mention this in his witness statement because, he said, neither his brother Hamid nor the solicitors had asked him, he claimed to recall that the jewellery he saw on that occasion consisted of red, green and white stones. He also recalled, he said, that the jewellery boxes were green in colour and were contained in outer boxes which were light grey or cream in colour and had lids. He also recalled - it was another matter which his witness statement omitted to mention - that his brother told him that the jewellery belonged to Mr Sadoughi. He was acquainted with Mr Sadoughi because it was from him that, as he explained in his oral evidence - the matter is also dealt with in his witness statement - he had been hoping to acquire the property in Uxbridge Road towards which the £20,000 had been assembled which was later lent to Mr Zabihi.[164]These detailed recollections, especially those which Yousef Janzemini claimed to recall even though they had not appeared in his witness statement, were too good to be true. In his written closing submissions, Mr Lewis described Yousef Janzemini as “admittedly not a convincing witness” but submitted nevertheless that there was “no reason to disbelieve his evidence on the headline things that he could be expected to have remembered”. It is correct that Yousef Janzemini was not a convincing witness. I am willing to accept that Yousef Janzemini may have recalled when his brother first came into possession of the jewellery entrusted to him by Mr Zabihi and that he was given a brief viewing of it. I accept that that would be a “headline” matter which he might be expected to remember. I am quite unwilling to accept Yousef Janzemini’s claim to have recollected as a result of the very brief three or so minute appearance of the jewellery what it looked like, let alone the appearance of the containers, both inner and outer, and how the lids functioned, not least when, as he accepted, he had no interest in jewellery.

(b) Mehrdad Salamat

[165]One of Mr Janzemini’s witnesses was Mehrdad Salamat. He spoke excellent English. Indeed, at one stage during the trial he acted as interpreter when the person then engaged in that role proved unequal to the task. Mr Salamat struck me as an honest witness. He has known Mr Janzemini and Mr Massodipour for very many years. More than that: he is related by marriage to Mr Janzemini. He has also been diligent, as he readily volunteered, in assisting Mr Massodipour to defend Mr Zabihi’s claims.[166]Mr Salamat recalled seeing the jewellery in the flat above Mr Massodipour’s Alounak Restaurant in Westbourne Grove very late - past midnight - one evening in the autumn of 2002. It was, he recalled, three or so weeks, possibly more, before he, Mr Janzemini and Mr Massodipour travelled to Majorca for a few days. They were in Majorca around 20 to 23 October 2002. So the occasion would have been around the end of September, or at all events in the second half of September, and thus only shortly after the handover on 12 September 2002. He was, he recalled, at the flat with Mr Massodipour and three or four others, including a Mr Golabi and a Mr Sadeghna. He also thought that Mr Shafi was present. Mr Janzemini arrived and joined them. He had some jewellery with him. Mr Salamat recalled that Mr Janzemini opened the containers and showed them the jewellery inside. He stated that Mr Janzemini told him and the others that Mr Zabihi had given the jewellery to him to sell, that it belonged to a wealthy Iranian whose name, if it was mentioned, Mr Salamat did not recall. Mr Salamat recalled mention, although he was far from certain whether this was on that or on a subsequent occasion, of a figure of £500,000. He had no recall of any other figure being mentioned. Being no expert in jewellery, Mr Salamat was unable to say if the jewellery was real or fake. His recollection was that the jewellery was not “delicate” in appearance; rather, he recalled, it looked “bulky” (his expressions). He said he was the only person present who showed any interest in the jewellery which lay in its boxes and which nobody picked up or touched. He had no recollection of any missing item in the jewellery. He recalled Mr Janzemini referring to the jewellery having a royal connection through a wealthy Iranian.[167]In his first witness statement Mr Salamat recalled that the jewellery was “in green boxes contained in cream outer boxes”. When cross-examined about this he thought that what he had seen all those years earlier was lighter in colour than the green of the boxes in court containing the proffered jewellery. There were other features of the jewellery boxes in court which he did not recall having seen. His recollection of the outer containers was that they were cardboard and cream or light yellow. He claimed to recall that the jewellery he saw contained coloured stones, including spirals of red stones. He accepted, however, that the next time he had seen any jewellery was almost four years later in Mr Janzemini’s home in the summer of 2006 after these proceeding had started when the jewellery boxes were in a bag. Oddly, given his claim to recall what he saw in late 2002, he was unable to recall what the jewellery was that he saw in 2006. He had also seen photographs of Mr Janzemini’s proffered jewellery on several occasions and stated in his first witness statement that the photographs of the jewellery boxes and outer boxes were what he saw in 2002.[168]I accept Mr Salamat’s evidence that he saw some jewellery in late September 2002 (or thereabouts). I accept that he recalled mention, either on that occasion or on some other, of a figure of £500,000 and that he did not notice that any of the four sets was incomplete. His inability to recall what precisely he saw in 2006, which was, as he was aware, after these proceedings had started, makes me extremely sceptical that he could reliably recall what the jewellery looked like that he saw nearly four years earlier. I also accept another aspect of his evidence which was that neither on that occasion in late September 2002, nor during the visit which he, Mr Janzemini and Mr Massodipour made to Majorca in late October 2002 did he recall Mr Janzemini mentioning that the jewellery was of comparatively little value or that he had been to Christie’s to have it valued.

(c) the Christie’s valuation

[169]The significance of this last matter is that according to paragraph 47 of Mr Janzemini’s main witness statement: “Within a week after I received it, I took the jewellery to Christie's with K, who is my friend, to obtain a valuation. I assumed that the valuer at Christie’s thought that K was actually buying the jewellery from me and said something along the lines of ‘give him £20,000-£25,000 for it’. Although I thought that that was not the real value of the jewellery, I decided that I was not going to attempt to sell it at all as it would amount to cheating somebody.” “K” was subsequently identified as a Mr Kaveh. Unfortunately, like so many other key allegations in this dispute, there was nothing in writing of any kind to evidence the trip to Christie’s or the valuation which Mr Janzemini said that he and Mr Kaveh obtained. Nor was there any evidence from Mr Kaveh who, so far as I am aware, was available to give evidence if Mr Janzemini had wanted him to be called.[170]I am exceedingly sceptical about this episode. If, as he claimed, Mr Janzemini had been told by a professional valuer that the jewellery was worth no more than £25,000 when, on his own evidence, he had been given by Mr Zabihi to understand that it was worth £340,000, he would surely have mentioned this fact to Mr Salamat and the others when he brought and showed them the jewellery in the flat above the Alounak Restaurant in Westbourne Grove shortly after he had been handed the jewellery by Mr Zabihi. It is of course possible that Mr Janzemini is mistaken about when he visited Christie’s and that this occurred after he had shown the jewellery to Mr Salamat and the others in the flat. But, in that event I would have expected Mr Janzemini to have mentioned the valuation to his close friend Mr Salamat (who was already engaged to Mr Janzemini’s relative by marriage) during their visit to Majorca. But Mr Salamat was never told of any Christie’s valuation at this time, let alone one which disclosed the jewellery to be worth less than one tenth of what Mr Zabihi had said it was worth and less even than the £40,000 which, on Mr Janzemini’s evidence, he claimed that Mr Zabihi owed him and which he was expecting to recoup out of the jewellery’s sale proceeds.[171]The other odd thing about the Christie’s valuation, before I come to what Mr Janzemini said about it when cross-examined, is that he did not raise the valuation with Mr Zabihi. If Mr Janzemini had been told by a professional valuer that the jewellery was only worth £20,000 to £25,000, he would surely have raised it with Mr Zabihi. I had no satisfactory explanation from Mr Janzemini why he did not. Nor did he mention the valuation to Mr Sadoughi whom he later saw in Iran and to whom he understood, he said, that the jewellery belonged.[172]Mr Janzemini’s description of his visit to Christie’s was very vague. He said that he was driven there by his friend, Mr Kaveh. They had no prior appointment. He recalled only that where they went was somewhere in Central London, he believed in Knightsbridge and that where they went was “very large”. He recalled the visit did not last long and that he and Mr Kaveh were shown into someone’s office where the person whom they saw did not spend long looking at the jewellery. They were given nothing in writing.[173]Although Mr Kaveh was unable or unwilling to give evidence, I heard evidence from a Mr Dawood Noori. He supplied a witness statement to both sides. He came across as a truthful, if exceedingly cautious, witness. His main concern seemed to me to avoid taking sides in the dispute while offering such assistance as he could which each side seemed only too pleased to accept. Part of his predicament was that he had known both Mr Zabihi and Mr Janzemini for over 20 years and was anxious, if he could, to act as some kind of honest broker between the two.[174]In his witness statement dated 20 November 2006 which he supplied to Mr Zabihi, Mr Noori stated that “about 3-4 years ago” he saw Mr Kaveh “holding one jewellery box containing some jewellery … in his hand”. He could not see the jewellery. He stated that Mr Kaveh:
“…claimed that [Mr Janzemini] had asked him to obtain a valuation of the jewellery which he claimed had been given to [Mr Janzemini] by [Mr Zabihi]. He said that the necklace belonged to [Mr Zabihi] and that he was told by [Mr Janzemini] that the jewellery was worth a lot of money but he claimed it was worth much less. Kaveh claimed that he had shown the jewellery to Christie’s and obtained an oral valuation for it.”
In the preceding paragraph of that witness statement Mr Noori said that in 2004 Mr Janzemini told him that Mr Zabihi was claiming that the jewellery was worth £500,000 but that, according to Mr Janzemini, it was “not actually worth that much” and he was holding it as security for money he was owed.[175]Mr Hood questioned Mr Noori about these two recollections. Mr Noori was unable to recall the colour of the box which he saw Mr Kaveh holding except that it “looked to be a dark colour”. He recalled that Mr Kaveh said that he had come from Christie's. “I’m quite sure about that” he said. When questioned about when this incident occurred, Mr Noori was inclined to think that it was sometime after January 2003 but added that he could not be sure as he was not good at remembering dates. In answer to questions by Mr Lewis, he believed it could have been in the autumn of 2002 “if that was when they went to Christie’s”. He enlarged a little upon his recollection of his conversation with Mr Janzemini in 2004 concerning Mr Zabihi’s claim that the jewellery was worth £500,000. This was that he recalled mention of £350,000 to £500,000. He recalled that Mr Janzemini was “a bit nervous”. He was definite in his recollection that it was only after these proceedings started that Mr Janzemini told him that he had found out that the jewellery belonged to a Mr Sadoughi. He had heard nothing prior to that time that the jewellery did not belong to Mr Zabihi.[176]In his second witness statement signed on 8 March 2007 and supplied to those representing Mr Janzemini, Mr Noori recalled the following:
“I remember being in the restaurant to clear some outstanding bills with Hamid Janzemini in or around September 2002. It was between 12-1.30 in the afternoon. I recall Mr Kaveh coming in with a box of jewellery. I understand he had been to obtain a valuation of the jewellery in Mahmoud Janzemini's possession. I recall Mr Kaveh stating that the jewellery was not worth that much. He seemed to be surprised by this. He said that the jewellery was worth only £20,000. I could not see the jewellery in the box as the box was facing away from me, but I saw that the box was open. The box was either green or brown. ”
This was the same incident described by Mr Noori in his first witness statement. Two weeks after making that statement Mr Noori signed a letter addressed to Mrs Roshanian in which he denied referring to September 2002, adding that he had simply stated “3-4 years ago” and denied referring to any colour of the jewellery box adding that “it was dark and it could have been red, green, black or other dark colours”. In two letters to Mrs Roshanian which were dated 9 May 2007 and which he also signed, Mr Noori repeated these corrections and referred to others which he wished to make to his 8 March 2007 statement. To add to the confusion, however, he later supplied Mr Janzemini’s solicitor with a further witness statement, this one dated 14 June 2007, in which he sought to retract the corrections to his earlier witness statement made by his two letters of 9 May. “Unfortunately” he said “I did not read the letters as clearly as I ought to”. The overall impression left by Mr Noori’s evidence was that I should be wary about relying on the accuracy of any detail in his recollections. He was not really challenged by Mr Hood over his recollection of this incident. Given his hesitations about date and colour this was perhaps not surprising. Instead, in his closing submissions Mr Hood challenged the weight to be attached to Mr Noori’s recollection of what he recalled Mr Kaveh having told him about the visit to Christie's, not least given Mr Noori’s inability to recall quite when he had his conversation with Mr Kaveh. Mr Hood drew attention to Mr Noori’s recollection that, at this time, Mr Kaveh was carrying only one jewellery box and submitted that this must cast doubt on precisely what it was that Christie's had been valuing.[177]Mr Noori’s recollection was supported by that of Hamid Janzemin. In his witness statement Mr Janzemin said this about the incident:
“I was in the restaurant one afternoon some months later when Mahmood and Kaveh came in together”
The reference to “some months later” is to some months after the occasion when £20,000 had been advanced to Mr Zabihi. Mr Janzemin’s evidence continued:
“I was sitting with Dawood Noori. I believe I may have been settling his payments for deliveries made. Mahmood and Kaveh had four boxes of jewellery with them. The jewellery was contained in four green leather boxes contained within cream stiff paper boxes. Mahmood explained that the jewellery had been received from Kamran Zabihi. He said that Mr Zabihi had asked him to sell the jewellery and to take his money and give the rest back to him. Kaveh said that they had been to Christies to have the jewellery valued. He said that they were worth approximately £20,000. He added that he thought it was rubbish and expressed surprise that Mahmood had been told (by the Claimant) that it was worth a lot more. This incident took place around Autumn 2002 shortly before the Claimant went to Iran in October 2002. I have seen photographs of the jewellery and four green boxes and the cream boxes exhibited at … which I confirm are photographs of the jewellery I saw at this time.”
[178]Hamid Janzemin was cross-examined on this recollection. He recalled that the figures at which his brother said that Christies had valued the jewellery was £20,000 to £25,000 (slightly different from the figure given in his witness statement) and claimed to recall, although this was not something referred to in his witness statement, that his brother reported Mr Zabihi having said that the jewellery should be sold for £500,000. He had no recollection of his brother mentioning £340,000 or of his having been cheated by Mr Zabihi or of his brother complaining about the low value of the jewellery. He said that he saw the jewellery itself for about 5 to 10 minutes on that occasion. At the time, he said, he was seated at table 8 in the Alounak Olympia restaurant. He seemed to recall that it was a hot summer’s day. He claimed to recall the colour of the different sets of jewellery. One of them, he said, was plain while the others had or included red coloured stones. He also accepted that he had seen the proffered jewellery on several subsequent occasions.[179]I have come to the conclusion, on the balance of the evidence I have heard, including importantly Mr Noori’s recollection of his conversation with Mr Kaveh, that there was a visit to Christie’s and that what Christie's were asked to value was what I have described as the proffered jewellery. That said, I am unable to find that the visit to Christie’s took place in 2002. If it did, Mr Janzemini would surely have mentioned it to Mr Salamat. As I have already remarked, Mr Salamat had no recollection of being told of any valuation. Mr Noori’s very hesitant recollection in the course of cross-examination that his conversation with Mr Kaveh may have been after he had heard about the sending of the first of the Shaidy letters (to which I will shortly come) - and thus sometime after January 2003 - is, I consider, much more likely than that it was “in or around September 2002” as claimed in the second witness statement, a date which - at one stage at least - Mr Noori had doubted. In short, what is left wholly unclear is just when the conversation did take place.

(d) Mr Zabihi’s absence in Iran

[180]On or about 26 October 2002, Mr Zabihi travelled to Iran for business. In paragraph 30 of his trial witness statement Mr Zabihi said that the purpose of his visit was to sell some properties and “to assist a man called Mr Mohsen Sadoughi to recover his properties”. This is a reference to the husband of the person described by Mr Zabihi as his godmother in whose bank safe deposit box the jewellery was supposedly lodged for part of the period between its arrival in this country and the handover to Mr Janzemini on 12 September 2002. It was Mr Sadoghi who, according to Mr Zabihi, accompanied Mr Zabihi on the visit to Hatton Garden earlier on 12 September to purchase the jewellery boxes. He is also the person whom Mr Janzemini alleges was the true owner of the jewellery.[181]For reasons which were never fully explained, and they may not matter, Mr Zabihi found that he was unable to return to this country until February 2006, almost three and a half years later. It was not clear just what Mr Zabihi was doing whilst he was in Iran and, again, it may not matter.

(e) Mr Janzemini’s claim that the jewellery had been stolen

[182]It is common ground that a few weeks after he departed for Iran in October 2002 Mr Zabihi rang Mr Janzemini to enquire about the jewellery. This enquiry gave rise to one of the most bizarre episodes of this whole extraordinary tale. This is what Mr Zabihi said about his call:
“31. After a few weeks I called the First Defendant from Tehran and enquired about the jewellery. He very calmly told me that the jewellery had been stolen by his cousin. I asked him how this was possible, as he had promised me to keep the jewellery in the safe box of his restaurant in Olympia? 32. He told me that he had taken the jewellery to his home where his cousin was living with him. I became very angry on hearing this, but he assured me that he would do everything to solve the problem.”
[183]By contrast this is what Mr Janzemini said about the call:
“51. I believe that the Claimant left for Iran with Mr Sadoughi in or around October 2002. Soon after, the Claimant and I had a telephone conversation in which the Claimant stated that he needed some money in Iran and that his father had booked the jewellery to be sold at auction. He asked me to give the jewellery to his father. When the Claimant had called me immediately after taking the loan of £20,000 he had said that the money was lost on the Tube. I have never believed this assertion was true, I did not believe it was true when it was made and did not believe that the Claimant expected it to be taken as true. In the heat of this exchange I told him that the jewellery had also been stolen. the Claimant then lost his temper and became very aggressive. 52. I did not tell the Claimant that my cousin had taken the jewellery, I only said that the jewellery had been stolen. When the Claimant asked who else had stayed at my house, I responded that my cousins came and went and that a cousin had just gone back to Iran. However, I did not point my finger at any cousin as I only intended to make the Claimant understand that just like my money had been ‘lost’ on the Tube, the jewellery had also been ‘lost’. I did not believe that the £20,000 had not [sic] been lost in the Tube, and believed that the Claimant had always known that the jewellery had not been lost either. I believe that the Claimant knew that he would get the jewellery back once he paid me the monies he owed me.”
[184]So, Mr Janzemini told Mr Zabihi something which, by his own account, was untrue. It is to be noted that if, as he claimed, the Christie’s valuation had already been provided, Mr Janzemini did not tell Mr Zabihi of it including, in particular, the valuation of the jewellery at only £20,000 to £25,000 that Christie’s had supposedly given. Since, on both accounts of this conversation, the purpose of the call was in connection with the intended sale of the jewellery - and Mr Zabihi’s concern that the matter should be progressed - it is odd to say the least that Mr Janzemini should have kept silent about the valuation. Indeed, according to paragraph 49 of Mr Janzemini’s witness statement, Mr Zabihi had been “pestering” Mr Janzemini before leaving for Iran to discover whether Mr Janzemini has shown the jewellery to the so-called Ali “Rolls Royce” and, if the latter was not interested in buying, whether Mr Janzemini had tried to sell the jewellery to someone else. Thus, according to this account, Mr Janzemini was well aware of Mr Zabihi’s concern that the jewellery should be sold.[185]The next odd thing about Mr Janzemini’s account of his conversation with Mr Zabihi is that, if his claim to Mr Zabihi that the jewellery had been stolen when in truth it had not was some form of revenge for Mr Zabihi’s assertion some weeks earlier (which he, Mr Janzemini, had not believed) that the £20,000 had been lost on the London Underground, it was presumably important that Mr Zabihi should understand that Mr Janzemini’s response to his enquiry was an oblique way of putting pressure on him to return his money. But there is no suggestion that that is how Mr Zabihi understood Mr Janzemini’s response. On the contrary, as will shortly be seen, Mr Zabihi took the assertion seriously.[186]But there is another oddity about Mr Janzemini’s response. His evidence, it will be recalled, is that he had understood from his conversation with Mr Zabihi when the jewellery had been handed to him on 12 September 2002 that he should be entitled to retain £40,000 out of the same proceeds, assuming the jewellery was sold for £340,000 or more. According to Mr Janzemini, this was intended to be in discharge of what Mr Janzemini claimed was Mr Zabihi’s indebtedness to him. Why then should Mr Janzemini spin a false story and conceal the fact (if fact it was) that the jewellery was only worth £20,000 to £25,000 if his aim was to recover the much greater sum that was owed to him?[187]In short, Mr Janzemini’s account of this conversation makes no sense.[188]An alternative, and altogether more plausible, explanation is that, as Mr Janzemini gave Mr Zabihi to understand, the jewellery was indeed no longer with him. In short, he told Mr Zabihi the truth. Mr Noori’s evidence is relevant to this. In his first witness statement Mr Noori recalled how in 2003, following a call from Mr Zabihi’s father concerning the return of the jewellery, he went to see Mr Janzemini who told him that the jewellery “was lost” and how, at a later date, Mr Janzemini told him that he suspected that one of his relatives had taken the jewellery and that he was trying to retrieve it and how later still (in 2004) Mr Janzemini, or one of his brothers, told him that Mr Janzemini had managed to retrieve the jewellery.[189]There was no challenge to this evidence. Indeed, Mr Lewis described Mr Noori as a witness who was giving honest answers. In paragraph 54 of his main witness statement, Mr Janzemini referred to an occasion when Mr Noori called to see him stating “after a conversation Mr Dawood Noori, I agreed to ‘find’ the jewellery, but that I wanted to be paid all my money in exchange. I remember telling Mr Noori words to the effect: ‘just bring my money and he will get his rubbish back’.” It was not put to Mr Noori that he was aware that Mr Janzemini’s claim that the jewellery had been lost was false. It would therefore appear that Mr Janzemini was telling others, not just Mr Zabihi, that the jewellery had gone missing (whether lost, or stolen or otherwise). Yet he would have the court believe that these assertions were false and that, in truth, he had the jewellery all along.

(f) What Mr Janzemini says that he did with the jewellery

[190]This brings me to what Mr Janzemini said about where he kept the jewellery, whatever precisely it comprised, between the time that he received it from Mr Zabihi on 12 September 2002 to the time of its production in July and September 2006.[191]According to Mr Janzemini’s main witness statement, with the exception of two periods, all of the items of jewellery remained in his custody throughout this time. The first such period was in the summer of 2004 when, he said, he was in Iran. He said that he asked his friend and neighbour, Mr Hamid Taherian, to whom he claimed he had shown the jewellery “soon after I received it from [Mr Zabihi]” to look after the jewellery “as I was afraid that people may break into my house for the jewellery. I was aware that Hamid looked after it for some months.” The second occasion followed a meeting which Mr Janzemini said that he had with a Mr Ali Roohi (also referred to as Ali Roohi Fardpour) at the Alounak Olympia Restaurant in early February 2005. This episode is dealt with in paragraphs 53 to 60 of Mr Janzemini’s main witness statement. The gist of this is that he allowed Mr Roohi to see the jewellery and to take two of the sets to Iran “for safekeeping” on the basis that, as he put it, when the “problem” with Mr Zabihi was resolved Mr Roohi could buy it from himself or direct from Mr Sadoughi who was also in Iran, and to whom, as I have mentioned, Mr Janzemini stated that the jewellery belonged. According to this account, Mr Roohi wanted to buy one of the sets for his wife. Mr Janzemini went on to explain that Mr Roohi signed a receipt for the two sets. All this seems to have happened at the meeting in early February because a translation into English of a signed handwritten receipt for the two sets is dated 8 February 2005. That was the date when Mr Janzemini said that he met Mr Roohi. One of those two sets, it seems, was the one without the bracelet.[192]Quite why Mr Janzemini felt the need to retain, albeit in Mr Roohi’s custody, what in any event he understood to be Mr Sadoughi’s jewellery when, he claimed, he was willing to sell it (or some of it) on Mr Sadoughi’s behalf to Mr Roohi, was not clear. What does seem to be clear, at any rate according to his account of events, is that with the exception of Mr Roohi, Mr Janzemini does not appear to have made any attempt to sell the jewellery which Mr Zabihi had handed to him. Although Mr Zabihi was keen for him to see if Mr Ali “Rolls Royce” might be interested in buying it, Mr Janzemini said that he never showed or offered the jewellery to that person and did not attempt to sell it to anyone else.[193]These points aside, Mr Janzemini went on to explain how in August 2005 he went to Iran and collected one of the two sets which he then brought back to London. He left the other set with Mr Roohi. Again it is not clear why Mr Janzemini should have gone to such trouble merely to recover one of the two sets, not least when according to paragraph 60 of his main witness statement, he went again in July 2006 “to bring the fourth set of jewellery back to the UK for inspection”. This was presumably after the 21 July inspection and enabled Mr Janzemini to produce the fourth set for the inspection at Bird & Bird’s offices on 6 September 2006. But by then, Mr Zabihi had made it clear - indeed he had said so at the 21 July inspection - that the proffered jewellery was not his. Moreover RPI had written to Bird & Bird on 24 July 2006 to say that Mr Janzemini was free to dispose of the proffered jewellery as he wished. Mr Janzemini could simply have sold the fourth set to Mr Roohi and, if in any doubt about the matter, obtained Mr Sadoughi’s approval. But he did not. This whole account struck me as exceedingly odd.[194]I heard no evidence from the accommodating Mr Roohi but I did from Mr Taherian. Mr Taherian, as I have mentioned, was a friend and neighbour of Mr Janzemini, and had been since 2000. Mr Taherian confirmed that he looked after four sets of jewellery for Mr Janzemini between August and November 2004 while Mr Janzemini was in Iran. An unresolved mystery about this period was that, although Mr Janzemini produced his passports, none had stamps indicating that Mr Janzemini had entered or left Iran in 2004. There were other entry and exits stamps relating to other visits. I was told by Mr Lewis, speaking on instructions, that Mr Janzemini’s passport for 2004 was not available.[195]Mr Taherian claimed that Mr Janzemini told him in very early 2003 about Mr Zabihi’s alleged loss of £20,000 on the London Underground and, in a later conversation, of the unpaid food bills. I am bound to say that Mr Taherian’s account of these conversations appeared somewhat contrived and I was left in some doubt about just what he was told of these matters and when. In paragraph 6 of his witness statement, Mr Taherian said this:
“6. I believe the first time he showed me the four sets of jewellery contained in green boxes and cream outer boxes was around early 2003. He told me that the Claimant had given him the jewellery and said that as Mahmood knew a lot of rich people he could show them the jewellery with a view to selling it to them, and to take the monies owed to Mahmood from the proceeds. He asked me what I thought it was worth. I remember telling him that I thought it would probably only cover the money that he was owed.”
[196]Although he accepted that over the past four years Mr Janzemini had discussed with him Mr Zabihi’s jewellery claim, he professed to be certain that it was in 2003 that he had seen the four sets of jewellery in the “green boxes and cream outer boxes”. This was because of some family matter which had occurred that same year. Although pressed about it, Mr Taherian was not willing to divulge what the matter was or what it was about it that enabled him to recall having seen the jewellery at about the same time. He claimed that the jewellery looked neither particularly old nor especially precious.[197]I was sceptical about the accuracy of this recollection as regards its date although I am quite willing to accept that Mr Taherian recalled seeing jewellery in green boxes contained in cream outer boxes not least because, as I am also willing to accept, he was the custodian of the proffered jewellery for three or so months in 2004. The reason why I was and remain sceptical about the date of this first sighting of the proffered jewellery is that, when cross-examined about paragraph 6 of his witness statement, Mr Taherian claimed to have recalled Mr Janzemini telling him in early 2003 that the jewellery was very valuable and that he, Mr Janzemini, had been told that the jewellery had cost a lot and that there might be rich Arabs interested in it. This was in amplification of the last two sentences of paragraph 6 of his witness statement (set out above) which Mr Taherian further amplified by stating that when he ventured his own opinion to Mr Janzemini that the jewellery was only worth about £20,000 which would only cover part of what he was owed, Mr Janzemini was not shocked. As Mr Taherian put it:
“he took it politely. We laughed about it.”
[198]If Mr Janzemini had been to Christie's and told of the very modest value of the jewellery as compared with the figures which Mr Zabihi had given him to understand that it was worth Mr Janzemini would surely not have told Mr Taherian - if Mr Taherian’s account is to be believed - that the jewellery was very valuable. Nor would he have asked Mr Taherian what the latter thought the jewellery was worth: he already knew, and from a highly professional source. Moreover, they were neighbours and good friends, so much so that Mr Janzemini was apparently willing in 2004 to entrust the safekeeping of the jewellery with Mr Taherian rather than leave it at home in the underfloor safe. But Mr Janzemini accepted that he did not tell Mr Taherian of the Christie’s valuation.[199]This might mean that the Christie’s valuation took place at a much later date than Mr Janzemini had claimed. Or it might simply mean that Mr Taherian was imagining a conversation - and an early sighting of the proffered jewellery - which had simply not occurred.[200]I am left sufficiently in doubt about that matter that I consider it unsafe to reach any conclusion as to exactly what passed between Mr Janzemini and Mr Taherian, and when, in relation to the proffered jewellery except that there was a period of months, most probably in the second half of 2004, when Mr Taherian looked after the proffered jewellery for Mr Janzemini during Mr Janzemini’s absence from London.[201]What Mr Janzemini’s witness statements did not disclose is where he kept the jewellery whilst it was in his custody. Curiously, when cross-examined about what he did with the jewellery after he had received it from Mr Zabihi, Mr Janzemini said that he took it home adding “I have a special place upstairs, a cupboard. I have a key. Even the kids cannot get through to it.” He described it as a big cupboard with shelves where he kept the pills he took for his heart condition. When asked whether he had a safe in which he kept the jewellery he answered:
“why should I keep it in a safe in my house?”
The clear impression was that he kept the jewellery in the secure upstairs cupboard.[202]It was then put to Mr Janzemini that two of his own witnesses were to give evidence that he had had a safe installed in his house, in a downstairs floor, in which the jewellery was kept. This prompted a sudden change in Mr Janzemini’s evidence. This was that he did not have the safe at the time he was handed the jewellery by Mr Zabihi but that “after one or two weeks” he arranged for a safe to be installed. He recalled that the safe was acquired from a shop in Kensington and that when he moved house he took the safe with him. He also explained that the safe was not large enough for the four jewellery boxes (from Mr Zabihi) and certain family jewellery.[203]This was a good example of the contradictory nature of Mr Janzemini’s evidence: saying one thing at one moment and then, when prompted by some other evidence, saying - and claiming to recollect - something quite different. It is why I have found his evidence, unless corroborated by some other reliable material, to be so unreliable.[204]The two witnesses who said that they installed the safe in Mr Janzemini’s house were cousins called Jamalabadi. Dariosh Jamalabadi described himself as a carpenter, his cousin Abdul Rasool as a handyman. They were self-employed. They stated in very short witness statements made in February 2007 that in or about September 2002 they built some wardrobes at 51 Darby Crescent, which is where Mr Janzemini was then living. They said that they also fixed a safe under one of the floors. They were given by Mr Janzemini to understand, they said, that the safe was needed to keep secure some jewellery which he had obtained. They claimed to recall that the jewellery was in boxes, that the boxes were too big to fit in to the safe and therefore that the jewellery was taken out and put separately into the safe. One claimed to identify one of the jewellery sets as the one without the bracelet; the other claimed to identify the set (one of the other three) with three coloured stones. In addition, Mr Abdul Rasool Jamalabadi claimed to remember that the boxes were green in colour and that there were cream outer boxes.[205]They were cross-examined on their witness statements. Dariosh Jamalabadi said that he was not able to understand every word in his statement. But he was able to communicate in English. Abdul Rasool Jamalabadi, although he made his statement in English, needed an interpreter.[206]Dariosh Jamalabadi said in cross-examination that he was not interested in jewellery. He nevertheless felt able to identify what he said he had seen all those years ago in September 2002. He said that the jewellery was not visible for more than five minutes. He explained how he went with Mr Janzemini to a shop in Kensington to buy a safe. He was not able to identify when this occurred, not least because he was paid in cash for his work at 51 Darby Crescent so could not pinpoint the date by reference to an invoice or the like. He said that Mr Janzemini did not explain for whom he had received the jewellery but gave him to understand that it was not his. Although this did not appear in his witness statement, he claimed to recall that the jewellery was kept in green boxes. He was unable to recall if there were any outer boxes. He recalled that because Mr Janzemini could fit no more than two boxes in the safe the jewellery items were removed from the boxes which had been shown to him and his cousin and then put into a single container the colour of which he was unable to recall. He reiterated that he was able to identify one of the four sets when he saw a photograph of it because the set lacked a bracelet. He went on to explain that in 2004 he moved the safe from 51 Darby Crescent to Mr Janzemini’s new home in Twickenham but did not see any jewellery on that occasion. So he only saw the jewellery on the one occasion when the safe was installed and then only for no more than five minutes.[207]Like his cousin Dariosh, Abdul Rasool Jamalabadi could not recall precisely the date when he and his cousin installed the safe. At the time, he said, they were operating through a company called Russell Builders Ltd although they no longer did so. He understood that Mr Janzemini had obtained the jewellery from somebody for whom he wanted to keep it secure. He said that Mr Janzemini regarded the matter as one of trust. He stated that Mr Janzemini did not inform them who this person was. He was emphatic in claiming to recall that the boxes containing the jewellery were green in colour. Although his witness statement is extremely short - it consists of only nine sentences - he disavowed that part of it in which he claimed to have seen cream outer boxes. He did not recall seeing any outer boxes, let alone cream outer boxes. He recalled, although this did not appear in his witness statement, that the jewellery inside the boxes was of three colours which after some hesitation, he identified as red, black and white. He saw the jewellery, he said, for no more than a few minutes when the boxes were opened and the jewellery removed so that it could be placed in the safe.[208]I am quite willing to accept the recollections of these two that they installed a safe at Mr Janzemini’s then home at 51 Darby Crescent. I am willing to accept that it was installed as somewhere in which to keep jewellery. I am also willing to accept that they saw some jewellery being placed in the safe even though it might be thought imprudent on Mr Janzemini’s part to allow the very persons who had come to instal the safe to know and see what was to be stored within it. I am quite unwilling to accept their claim to recall what the jewellery looked like or what the colour was of the boxes in which the jewellery was kept. There is no reason why, after so many years, they should be able to recall such matters after so fleeting a glimpse of the boxes and their contents, not least when at the time the safe was acquired and installed there was no reason why they should have noted these details. Nor am I willing to accept their claim to have recalled the date of installation as “in or about September 2002”. There was nothing in their evidence to link their work to that or any particular date.

Correspondence about the jewellery

[209]This brings me to one of the very few areas of indisputable certainty in this morass of uncorroborated assertion, namely some correspondence sent by Mr Zabihi’s then solicitors, Shaidy & Co, to Mr Janzemini. The correspondence consists of three letters. I have no reason to doubt that these letters were sent on the dates that they bear. Each is quite short.

(a) Shaidy & Co’s letter of 30 January 2003

[210]The first of the three letters, dated 30 January 2003 and addressed to Mr Janzemini at his restaurant in Russell Gardens, was as follows:
“Dear Sirs, Our Client: Kamran Zabihi We are instructed on behalf of the above named and understand that our client recently placed in your custody a number of complete sets of jewellery (we understand 4) the approximate value of which our client estimates to be in the region of £350,000 to £500,000. As we understand it, the items were placed in your custody for the purpose of a prospective sale, and upon recent enquiry by our client we understand that he has been informed (by you) that the entire collection has (apparently) been stolen from your residence. Certainly, whilst we assume that the theft has been properly reported to the local police (and in this regard we would invite the relevant crime reference number) nevertheless you will appreciate that given the fact that our client placed the items in your care, custody and control, the responsibility for their safe keeping is primarily yours, and any loss that "flows" from such loss is one which our client will look to yourselves to make good in the first instance. In the circumstances, and without prejudice to the outcome of any investigation presently being undertaken by the police, we would invite your proposals as to how you are minded to reimburse our client for the loss suffered by him. Given the value of the items in question, we should be grateful to hear from you within say the next seven days. Yours faithfully,”
Our Client: Kamran Zabihi Yours faithfully,”

Our Client: Kamran Zabihi

[211]Mr Janzemini accepted that he received the letter. But he never replied to it. He never therefore challenged any of the assertions in it. If, as he claimed, he had had the jewellery valued at Christie’s at between £20,000 to £25,000 very shortly after he had received it, this would have been the ideal opportunity to say so in order to counter the letter’s assertion, repeating what the writer of the letter had been told by Mr Zabihi, that the jewellery was worth between £350,000 and £500,000. The jewellery is referred to in the letter as comprising four complete sets. Since Mr Janzemini has never suggested any difficulty in understanding what is meant by a complete set (ie necklace, pair of earrings, ring and bracelet) this would have been the ideal opportunity to point out that one of the four sets lacked a bracelet and was not therefore complete. If it was untrue, as Mr Janzemini claimed that it was, that the jewellery had been stolen, a reply would have been the obvious opportunity to say so, and state that Mr Janzemini continued to hold the jewellery and, what is more if this was the truth and was his intention at the time, that he proposed to retain the jewellery until he was paid what Mr Zabihi owed him.[212]Mr Janzemini’s explanation for failing to make these matters clear is set out in paragraph 53 of his main witness statement. This is what he stated in that paragraph:
“On 30 January 2003 I received a letter from the Claimant's then solicitors, Shaidy & Co, on behalf of the Claimant. A few days before the letter arrived the Claimant called to explain that he was sending a letter to me about the jewellery, but that I should not get upset about it. He said the letter was not to be taken seriously; it was to be shown to my cousins to scare them so they would give the jewellery back. I am aware that the Claimant suggests that Shaidy & Co sent three letters to me but this was the only letter I received from them.”
[213]Mr Zabihi denied making any such warning call to Mr Janzemini. But, aside from that denial, Mr Janzemini’s explanation makes no sense at all. His evidence is that the story about the theft was made up. This means that there were no cousins to scare in order to persuade them to return the jewellery. The point of Mr Janzemini’s false report to Mr Zabihi of the theft of the jewellery was that Mr Janzemini assumed that Mr Zabihi would not believe the report but would understand it as a coded warning that, unless he paid Mr Janzemini what he owed him, he would not get his jewellery back. If, therefore, Mr Zabihi had rung him to say what Mr Janzemini claimed he said, it would have been clear to Mr Janzemini that his ruse had not worked: Mr Zabihi had evidently taken seriously what Mr Janzemini had intended him to understand in a quite different way. Yet Mr Janzemini, by his own account, took no steps to disabuse Mr Zabihi of his misunderstanding of the position.[214]When cross-examined about this, Mr Janzemini stuck doggedly to his account of Mr Zabihi’s earlier call and failed or refused to face up to the illogicality of his explanation for not responding to a letter which, for all the reasons I have set out, cried out for a rebuttal if Mr Janzemini’s evidence as to what the jewellery comprised and was worth is to be accepted as true.

(b) Shaidy & Co’s letter of 28 February 2003

[215]Proof that Mr Janzemini’s scheme for recovering what he claimed Mr Zabihi owed him had not got home to Mr Zabihi is provided by the fact that, having received no response to their letter of 30 January 2003, Shaidy & Co sent a reminder 28 days later. Dated 28 February 2003 and addressed to Mr Janzemini in exactly the same manner as their earlier letter had been, Shaidy & Co wrote as follows:
“Dear Mr Janzemini, We write further to our letter of 30th January 2003 (copy enclosed), to which we are disappointed not to have received a response. In the circumstances, unless we receive a formal response within seven days of the date of this letter we are instructed to commence legal proceedings without further recourse to you. Please note that in the event that proceedings are commenced our client will look to yourself for both costs and interest in this matter. Given the above, we strongly suggest that it may be appropriate for you to take legal advice on the content of this letter and our earlier letter of 30th January.”
[216]Mr Janzemini denied receiving this letter. But if he did receive it he must have realised that Mr Zabihi was not understanding matters as he, Mr Janzemini, had intended. Even if it had been prudent to ignore the earlier letter there could be no doubt about the need to respond to this reminder and set record straight. But there was no reply to the letter.[217]It is possible that this second letter was mislaid in the post. I am willing to give Mr Janzemini the benefit of that doubt.

(c) Shaidy & Co’s letter of 13 January 2004

[218]But it is impossible to adopt the same benevolent approach to his failure to reply to the third letter that Shaidy & Co sent. This was dated 13 January 2004. It was addressed to Mr Janzemini and Mr Massodipour at the Russell Gardens address (as before) but with another copy to them both sent (and addressed) to Mr Massodipour’s Westbourne Grove restaurant. This is what that further letter stated:
“Our Client: Kamran Zabihi We write in respect of the above named, and further to our letter of 30th January 2003, subsequent to which we understand the Items (of Jewellery) in question have been recovered by yourselves. Notwithstanding the above however, we understand from our client that the items have not been returned (as requested), nor has our client received a proper explanation for failure for same. We believe our client has been more that patient in this matter, and, given that any proposed prospective sale has not materialised, he now requires the immediate return of the items placed in your custody, which, despite numerous reminders from our client, have not been forthcoming. Accordingly, we require the items to be returned to our client forthwith, and certainly by no later than close of business Friday 16th January 2004 following which any authority to retain same is to be considered to be formally withdrawn. It follows therefore that any continue retention of the items of jewellery in question (after the above deadline of Friday 16th January 2004) will be considered to be an unauthorised and unlawful retention, and in respect of which pour client reserves all his rights against you, including, for the avoidance of any doubt, a complaint to the Police for unlawful retention of goods. Accordingly, we look forward to hearing from you by the above deadline. Yours faithfully,”
Yours faithfully,”[219]Mr Janzemini denied receiving this letter. I do not think it likely that two correctly addressed letters (this and the letter of 28 February 2003) could both have gone astray. But, that apart, it is common ground that Mr Massodipour received the copy of the letter sent to his Westbourne Grove restaurant and, what is more, that he rang up and spoke to Mr Janzemini about the letter later that same day.[220]Despite Mr Janzemini’s adamant refusal to accept either that he saw the letter or was informed of its contents (at one stage in his evidence Mr Janzemini claimed that he did not even know of the letter’s existence until this trial), I find that Mr Janzemini was fully aware of its contents. It defies belief to suppose that his good friend, one-time business partner and continuing business collaborator, Mr Massodipour, would not have passed on to Mr Janzemini his copy of the letter or, at the very least, discussed its contents. It defies belief to suppose that Mr Janzemini was left in a state of ignorance about its contents and the matter simply not discussed. I shall not therefore trouble to review the extraordinary attempts made by Mr Janzemini and others to persuade me that, although aware that a letter had been sent, Mr Janzemini remained in ignorance of what it contained. I regard it as plain that its contents came to his notice. It is plain not least because in the very early hours of 18 January 2004, which was just five days after the letter was sent, Mr Janzemini took his pictures of the proffered jewellery - in the way and at the time that I have earlier mentioned. Initially, when cross-examined by Mr Hood on this point, Mr Janzemini would have me believe that the fact that this occurred so shortly after the third of Shaidy & Co’s letters was sent was no more than a coincidence and that his purpose in talking the pictures was to enable him to show them to Mr Sadoughi with a view to establishing if the jewellery belonged to him. I do not accept that the timing of these occurrences was simply a coincidence. Nor do I accept that the pictures were taken to show to Mr Sadoughi. This was the first time any such explanation had been provided. It does not feature in any of the witness statements by Mr Janzemini (or in one which was said to have been supplied by Mr Sadoughi). When he came to be cross-examined by Mr Staddon Mr Janzemini accepted that it was his worry over Mr Massodipour’s angry reaction to having been sent a copy of the 13 January letter that had prompted him to take the pictures. So he did finally accept that the two events were linked.[221]I find that taking the pictures was Mr Janzemini’s muddled response to the fact that the letter had been sent, in particular his concern to arm himself with proof that he had some jewellery in his possession notwithstanding that he had given Mr Zabihi to understand that the jewellery had gone missing. The larger point, however, is that Mr Janzemini had once more failed to respond to a letter which, if untrue in any respect, cried out for a response. I should add that there was no suggestion of some further phone call from Mr Zabihi informing Mr Janzemini that he should ignore Shaidy & Co’s further letter.

(d) RPI’s letter of 11 May 2006

[222]This was not the last of the letters to be sent to Mr Janzemini. Having returned to this country in early 2006, Mr Zabihi took up the issue of the missing jewellery once more. In the meantime he had instructed RPI. Mrs Roshanian of RPI wrote to Mr Janzemini and Mr Massodipour addressing her letter to Alounak Restaurant at the 10 Russell Gardens address. I have already referred to the letter. It is dated 11 May 2006 and was as follows:
“Dear Sirs, Re: Stolen jewellery entrusted to Alounak Restaurant in 2003 by Kamran Zabihi We are writing to you as the new solicitors acting for Kamran Zabihi in the above referred matter. Mr Zabihi who has recently returned to the UK from a long absence from this country, has instructed us to commence proceedings against Alounak Restaurant, and each of you individually as its co-owners, in order to recover the jewellery, or its equivalent value in money, which he entrusted to you both on 12 September 2002 in order to keep in Alounak's safe box for the purpose of facilitating its sale to a potential purchaser introduced by you to him. Four sets of jewellery were placed in your joint custody on said date with the clear instruction from Mr Zabihi that the jewellery be kept at Alounak's safe box for viewing by the prospective purchaser. Each set of jewellery consisted matching necklace, bracelet, earrings and ring and was made of diamonds rubies, etc. All pieces of jewellery were antique and were worth in excess of half a million pounds. The jewellery was given to our client in discharge of a US$2 debt obligation by a debtor in Iran. Shortly after the jewellery was entrusted in your hands for safe custody, Mr Jonzemini [sic] informed Mr Zabihi that the aforementioned jewellery had been stolen from his home. On further enquiries he claimed that his cousin had stolen the jewellery and that he would try to recover the jewellery from his cousin. Mr Zabihi moved to Iran at the end of October 2002 and instructed his former solicitors to deal with the matter on his behalf. On 30th January 2003, Shaidy & Co, Mr Zabihi's former solicitors, wrote to Mr Jonzemini demanding reimbursement for the value of the lost/stolen jewellery. Attached please see a copy of said letter. Mr Massoudi then informed Mr Shaidy that the jewellery was stolen at Mr Jonzemini’s home and that he was not responsible for their loss. In fact, Mr Zabihi had entrusted the jewellery to both of you and had instructed you both to keep the jewellery in Alounak's safe. Up until now all efforts of our client to resolve the dispute concerning the stolen jewellery have been unsuccessful. Further attempts by Shaidy & Co to obtain the police reference number from you have also been unsuccessful. You have taken advantage of Mr Zabihi's prolonged stay in Iran to deny him his property rights. This is to give you a final chance to resolve this dispute amicably by: (1) Providing us with a copy of (a) the police report concerning the alleged theft, including records of any arrests made, (b) any claims you made to your insurers for the reimbursement of the value of the stolen jewellery, and (c) any compensation you have received from your insurers for the stolen jewellery; (2) reimbursing our client for the full value of the allegedly stolen jewellery or any compensation received from your insurers, whichever greater, and (3) compensating our client for loss of interest, damages and costs from September 2002. You have 21 days in which to respond to this letter and otherwise settle our client's claim to his satisfaction. Should you fail to respond to this letter, our client shall commence court proceedings against you without any further notice. We look forward to hearing from you as to how you propose to resolve this dispute. Sincerely,”
Re: Stolen jewellery entrusted to Alounak Restaurant in 2003 by Kamran Zabihi (1) Providing us with a copy of (a) the police report concerning the alleged theft, including records of any arrests made, (b) any claims you made to your insurers for the reimbursement of the value of the stolen jewellery, and (c) any compensation you have received from your insurers for the stolen jewellery; (2) reimbursing our client for the full value of the allegedly stolen jewellery or any compensation received from your insurers, whichever greater, and (3) compensating our client for loss of interest, damages and costs from September 2002. Sincerely,”

Re: Stolen jewellery entrusted to Alounak Restaurant in 2003 by Kamran Zabihi

[223]Mr Janzemini accepted that he received the letter (it had been sent by Recorded Delivery) but claimed, but without any particular reason so far as I could establish, that it reached him rather later than the date it bears (11 May 2006). Even if it did arrive a few days later than it should in the ordinary course of the post, I do not think that this explains his failure to respond to it. Mr Massodipour denied receiving it. Since it had been addressed to Mr Janzemini’s restaurant address in Russell Gardens (and not to Mr Massodipour’s in Westbourne Grove) it is possible, although I am doubtful, that it did not come to Mr Massodipour’s attention.[224]Once more, a golden opportunity to refute the allegations made in it, including an allegation that the jewellery entrusted to Mr Janzemini had a value of £500,000, was ignored.[225]These proceedings followed just under a month later.

Other evidence

(a) Mr Tavakoli and the Muljis valuation

[226]In his affidavit sworn on 4 October 2006 Mr Zabihi had alleged that Mr Janzemini had acquired the proffered jewellery from a Mr Rahim Tavakoli in July 2006 and that Mr Janzemini had asked Mr Tavakoli the previous year to sell two of the sets which Mr Zabihi had handed to him at their 12 September 2002 meeting. Mr Janzemini denied these and other allegations concerned with Mr Tavakoli and other matters which I shall not take up space to set out. Mr Tavakoli was not called as a witness and I saw no evidence from him.[227]But Mr Tavakoli did feature in one particular, and puzzling, episode that Mr Janzemini himself raised. The following is what Mr Janzemini stated about the matter in paragraph 70 of his main witness statement:
“I have not tried to sell the jewellery through Rahim Tavakoli. I have not bought any jewellery with, through or from Rahim Tavakoli. I do not owe him any money. In about October 2005, I, accompanied by Rahim Tavakoli, took all the jewellery that was in my possession, including the Jewellery received from the Claimant to a jeweller in Tooting called Muljis, at 216-218 Upper Tooting Road, London SW17. Rahim Tavakoli knew the jewellery who was called Dilip. The purpose of this visit was to have it valued. However, the jeweller wanted more than £3,000 to produce the written valuation which I thought was excessive and declined to take the valuation document.”
In an answer to a request for further information Mr Janzemini explained that the valuation was for insurance purposes.[228]Mr Janzemini was cross-examined about this episode. He said he was taken to the jeweller by Mr Tavakoli but was not able to recall just where it was. The jewellery he took only included three of the four sets of the proffered jewellery: the fourth (incomplete) set was still with Mr Ali Roohi (Fardpour) in Iran. There was other, family, jewellery which he took to the jeweller. He recalled that the jeweller had the items for about 2 hours and asked about £3,000 to £4,000 for the valuation which was more than he was willing to pay. He therefore declined to pay and did not obtain any valuation as a result. He understood that the jeweller/valuer took some pictures of the jewellery but he was not given anything. It did not occur to him to approach any other jeweller for an insurance valuation and the question of insuring the jewellery was not subsequently pursued.[229]Mr Zabihi’s side went to some trouble to follow up Mr Janzemini’s claim to have gone to Muljis for a valuation. They enlisted the services of a Ms Jaleh Salmanpour-Elsey. Ms Salmanpour-Elsey provided a witness statement and gave evidence before me. She struck me as an honest witness. She was a jewellery designer who used to work in Hatton Garden and claimed to know most of the Iranians involved (I assumed in London) in the design and the sale, brokering and trading of new or second-hand jewellery. She had been engaged by Mr Zabihi to approach the various jewellers, traders, brokers and others who “may have seen, received or sold the jewellery” which Mr Zabihi claimed. She was supplied with copies of Mr Samimi’s drawings. She pursued, without success, a lead based upon a secret tip-off from someone claiming to know, via other unspecified sources, what was supposed to have happened to the jewellery entrusted to Mr Janzemini by Mr Zabihi. She was unable to find any jeweller or trader who had seen or known of any jewellery of the quality or description claimed by Mr Zabihi. She was also engaged to search for Muljis. In this enquiry she had some, but limited, success. She found (in April 2007) - and I accept - that there had been such a shop but that it had closed sometime within the previous one or two years and the owner had since emigrated to Australia. She said that she was able to make contact with two of the former owner’s brothers, each of them involved in the jewellery business, but got nowhere in endeavouring to trace the disputed jewellery. Neither recognised the jewellery depicted in Mr Samimi’s drawings. She made other enquiries, all to no avail. So, once again, it was not possible to verify or disprove a claim by reference to an independent source on a matter germane to the issues in dispute.[230]That said, there were, as Mr Hood pointed out in his closing submissions, a number of features of Mr Janzemini’s accounts of this episode which did not make sense. First, it was not evident why Mr Janzemini should have waited, if he did, until October 2005 to arrange for a valuation of the proffered jewellery, whether for the purposes of insurance cover or otherwise. Second, it was not clear why he should have gone to such trouble when he knew from the earlier Christie’s valuation what the jewellery was worth, understood that it did not belong to Mr Zabihi (but to Mr Sadoughi) and had heard nothing to indicate that Mr Sadoughi was wanting the jewellery to be insured or was even aware of the steps to have it valued. Those points aside, it seems scarcely likely that Muljis would have spent two to three hours carrying out an examination of the jewellery before even asking for a fee for doing so, let alone agreeing one. It is also hard to believe that the fee, when it was discussed, could have been as much as £3,000 to £4,000. Nor was it clear, why, having decided that Muljis’ fee was too much, Mr Janzemini did not visit some other jeweller for an insurance valuation or even seek an alternative quote from another jeweller.[231]In short, this is an episode which simply did not make sense.

(b) Mr Zabihi senior

[232]Mr Zabihi’s father - to whom I have already referred - claimed to recall a conversation with Mr Janzemini going back to early 2003. This is what he said in his witness statement about that conversation:
“In early 2003, Mahmood Janzemini contacted me by telephone, saying that his maternal cousin had stolen Kami’s [ie Mr Zabihi’s] jewellery together with £40,000 in cash from his house and asked me to check whether his cousin had sent any money to his relatives or friends in Abadan, Ahvaz and Isfahan via Baboli Trading …”
When cross-examined about this conversation, his recollection was that the jewellery which Mr Janzemini said his cousin had stolen was that of Mr Janzemini’s wife. This rather devalued the relevance of the purported recollection. Mr Zabihi senior said that he had another recollection, of much more recent origin. This was of a meeting with Mr Tavakoli in about October 2006 in which Mr Tavakoli referred to having, with Mr Janzemini, shown two sets of jewellery which he understood was his son’s (ie Kamran Zabihi) to a jeweller in Baker Street (in London) who told Mr Janzemini that he was willing to buy them for £1.2 million in cash and was willing to trade his house for the diamonds in that amount. It is impossible to give any credence to this conversation: Mr Tavakoli did not himself give evidence - and there was no reason given to explain why he did not. And no steps were apparently taken, or at least none that I was told about, to establish who the Baker Street jeweller might be.

(c) Iraj Roshanian

[233]I should also refer once more to the evidence of Iraj Roshanian. As I have mentioned Mr Roshanian has been a friend of Mr Zabihi and his family since the early 1980s and is also a cousin of Mrs Roshanian. In his first witness statement Mr Roshanian referred to two conversations which he had with Mr Janzemini, one in June 2005 and the other in late May or early June 2006.[234]He said of the earlier occasion that, while in London in connection with some litigation unconnected with this dispute, he rang Mr Janzemini at Mr Zabihi’s request to ask for the jewellery to be returned. He recalled, and confirmed in his oral evidence, that Mr Janzemini stated that he had no intention of keeping Mr Zabihi’s jewellery, was raising money, mentioning a figure of £500,000, to pay Mr Zabihi and needed time to do so, and that the jewellery was with friends.[235]As to the subsequent, 2006, conversation Mr Roshanian said that he rang Mr Janzemini from the USA (where he lives) in order to try and resolve the dispute out of court, this being shortly before the proceedings started. He stated that he asked Mr Janzemini about Mr Zabihi’s jewellery and recalled that Mr Janzemini was very defensive in reply denying that he had taken any jewellery but claiming, instead, that Mr Zabihi owed him £60,000. He adhered to this account when cross-examined about it.[236]I accept the broad substance of these conversations. I do not consider that Mr Roshanian was making them up. His account of them tends to support my overall view that the proffered jewellery is not the jewellery which Mr Zabihi entrusted to Mr Janzemini in September 2002 and that Mr Janzemini’s money claims (on that occasion said to be for £60,000 but the precise amount does not matter) have been raised by way of riposte to Mr Zabihi’s claim for the return of his jewellery.

(d) Moshen Sadoughi

[237]Mr Moshen Sadoughi, who I was told was living in Iran, provided Mr Janzemini with a witness statement which was admitted under the Civil Evidence Act. The witness statement, which is dated 4 March 2007, gives no address, merely “of Tehran, Iran”. In the statement Mr Sadoughi claimed that he was once the senior Vice President of the International Bank of Iran and that he first met Mr Janzemini in about the summer of 2002 in connection with the latter’s possible purchase of his property located at an address in Uxbridge Road, Acton in West London. He describes how the transaction did not materialise “because Mr Zabihi attempted to earn a commission payment of over £300,000 on the sale” and how another proposed sale fell through “due to Mr Zabihi’s demands for commission from the purchaser”. He does not explain how Mr Zabihi came to have an involvement in the matter such that he could make such demands of those wishing to purchase the property.[238]Mr Sadoughi then refers to various allegations concerned with financial dealings between him and Mr Zabihi, and denies that he owed him £1 million (which, he says, Mr Zabihi had alleged was payable to him). He denies another allegation, which was that he had lived rent free in Mr Zabihi’s Ruislip flat, claiming instead that he had paid £40,000 for the flat in early October 2002 and that, on the contrary, it was Mr Zabihi who was indebted to him and had removed certain items of his to another flat elsewhere.[239]More particularly, Mr Sadoughi claimed that fifteen years earlier, ie sometime in or about 1992, he purchased four sets of jewellery for £60,000 from a shop, the name of which he could no longer recall, “located opposite the main entrance to Harrods”. He then continued:
“I believe the shop was closed down after which the owner moved to another shop in Piccadilly. I believe he later closed the second shop and emigrated to Kuwait.”
In other words, the owner and his two shops had disappeared effectively without trace.[240]Mr Sadoughi felt able in his witness statement to confirm that the four sets of jewellery shown in some photographs attached to his statement, the green boxes shown in another photograph and some cream outer boxes shown in a further photograph “are…of the same jewellery purchased by me”. The photographs of the jewellery, at any rate as appearing in evidence before me, are distinct but of poor and degraded colouring. The boxes and outer cases shown in the photographs, if that indeed is what the photographs show, are not distinguishable as green and cream in colour. Two of the photographs, identified as photographs 5 and 6, show that Mr Sadoughi had written something in Farsi and that, accompanying what he had written, are explanations in English by Mr Rahmati, his Tehran lawyer.[241]In paragraph 12 of his witness statement Mr Sadoughi referred to his jewellery having been stored in a safe deposit box in the name of his late wife, Mehrnoush Fateh Sadoughi, at the Hammersmith branch of Barclays Bank. The statement goes on to state that “in or about 2002” the jewellery was removed from the safe deposit box when Mr Sadoughi decided to sell it and that he had the jewellery valued by a jeweller in Hatton Garden “at between £100-120,000”. Mr Sadoughi then added that “I do not remember his name”. There was no written valuation or anything else in evidence to indicate the whereabouts or identity of the jeweller in question.[242]Mr Sadoughi’s statement then set out the following:
“13. When the jewellery was first removed from safe deposit for sale, the Claimant and I went to the offices of Baboli Trading and I showed the jewellery to Mr Ishmael Baboli. I told him that each set was worth between £20,000-£25,000 and that I was looking for a buyer for the jewellery. I asked him whether he knew of any potential buyers from his business. Mr Baboli said he did not. 14. The Claimant approached me after this and said “Dear Father, allow me to show this jewellery to Ali Rolls Royce - I can sell this jewellery for £300,000”
. I told him it was not worth £300,000 and that I would probably get £100,000 for it. He persuaded me that if I allowed him to sell it for £300,000 he would give me a cheque for £180,000 for the jewellery. I told him, “take it but make sure you insure it”. I asked him to keep the jewellery safe. 15. Although the Claimant had told me that he would offer the jewellery to sell to a person called Ali Rolls Royce, he later told me that he had given the jewellery to the First Defendant to keep in his restaurant safe box, and that he had told the First Defendant that the jewellery belonged to me. I was very upset by this because the Claimant was supposed to have returned the jewellery to its safe deposit box at Barclays Bank Plc. 16. I was selling the jewellery for between £100-120,000 myself. I was therefore aghast when the Claimant not only failed to sell the jewellery but failed to return it to me. Having taken my jewellery, the Claimant now says that he gave some other jewellery obtained from his cousin in Iran in 1999 to the First Defendant. I believe that the Claimant is lying because he delivered the jewellery belonging to me to the First Defendant before he came to Iran in or around October 2002. It would also be extremely difficult to remove this quantity of jewellery out of Iran. This is because there are extremely strict check points in the airport where each passenger's belongings are checked by x-ray machines and by hand. Should the security services find any gold or jewellery in the passenger's baggage which has not been declared, the guard will confiscate the jewellery, the passport of the person carrying it and arrest the person for attempted smuggling. Such a person would then be sent to the Public Prosecutor's Office in the airport area set up for these crimes. I do not believe Mr Zabihi's story that he brought jewellery out of Iran. 17. I was introduced to Mr Ali Roohi Fardpour in or around early 2002 through Mr Baboli, Mr Zabihi's partner when they came to my house. I sold some jewellery belonging to Mrs Sadoughi to Mr Fardpour. This included a pendant and two extremely beautiful sapphires, the jewels were a 20 quart [sic] of bermy sapphire, 12 carat of changing colour sapphire plus a huge pendant with the centre gem of an 18 carat clean aqua marine, decorated with rubies and emeralds in 18 carat gold. …for £15,500. I met Mr Fardpour with the First Defendant in Iran in or around July 2006.[243]Mr Hood submitted that no weight should be attached to this statement. He pointed out that, according to Mr Janzemini’s evidence when cross-examined about the circumstances in which this statement was prepared, it was Mr Janzemini who took the statement, already pre-prepared, to Iran, was present when on 4 March 2007 Mr Sadoughi signed it, together with the photographs to which it refers, in the presence of Mr Rahmati, and later returned to this country with the signed statement.[244]I have drawn attention to the fact that Mr Sadoughi’s endorsement on two of the photographs is in Farsi, along with the explanation in English by Mr Rahmati. This is odd if Mr Sadoughi was in any event capable of speaking good English. I would have expected the senior Vice President of what sounds to have been a prestigious Iranian bank to have been capable of writing in English. On the evidence of the excerpts from that statement set out above, Mr Sadoughi would appear to have been a very fluent English speaker indeed to have written what his statement contains.[245]Be that as it may, this was the second time that Mr Janzemini had met Mr Rahmati. Mr Janzemini said that he was present in Mr Rahmati’s Tehran office, together with Mr Sadoughi, when Mr Rahmati wrote the following letter. The letter is worth quoting in full:
“Dear Mr Jahanzamin On July 16 2006 I met Mr Mohsen Sadoghi in my office, who is my client since 1997. He requested me to answer your questions as his lawyer regarding his jewelry which has deposited you [sic] by Camran Zabihi who was acting as his trustee before. Therefore you are fully obliged to keep Mr Sadoghi four full sets of jewelry (art deco model) as his trustee until he return to London and collect them from you directly. Mr Sadoghi indicated me that you are his trustee to hold his four full set jewelry and Mr Camran Zabihi has no right to have access to his jewelry anymore. I will write you more about the above issue this coming week as Mr Sadoghi indicated to me.”
[246]I have already commented on the references in the letter to “four full set of jewelry”. Given that Mr Janzemini has all along emphasised, as have several of his sharp-eyed witnesses, that one of the four sets was incomplete, it is odd, if Mr Sadoughi is referring to the same jewellery, that he, claiming to be its owner, has not only failed to point this out but has asserted (and repeated) that they were full sets. Although the last sentence promised a further communication concerning the jewellery the following week, none was produced.[247]Those points aside, it is once again odd that, although said to be very good at English - indeed fluent if his witness statement represented his own words - Mr Sadoughi needed the services of Mr Rahmati to convey in written English his answers to Mr Janzemini’s questions.[248]Mr Hood had several other specific criticisms of Mr Sadoughi’s witness statement. One was the reference to his having been senior Vice-President of the International Bank of Iran. I was told that this was challenged, and that, in any case, there was no such bank. Mr Hood also challenged the assertion that Mr Sadoughi had purchased jewellery from a shop opposite the main entrance to Harrods. The investigations carried out by Mrs Salmanpour-Elsey, who herself once worked in the jewellery field in Knightsbridge, and who, as I have earlier mentioned, struck me as an honest witness, failed to disclose any jewellery shop fitting the description set out in the witness statement. Mr Hood also challenged the reference to the Barclays Bank safe deposit box in Hammersmith. The evidence before me suggested that, if there was a deposit box, it was at Barclays Bank’s Park Lane branch. Perhaps the strongest of Mr Hood’s challenges was to the reference in the witness statement to Mr Sadoughi being “very upset” and “aghast” at Mr Zabihi’s continued failure to return the jewellery. These references are odd because Mr Sadoughi does not suggest that he took any action to recover the jewellery. They are doubly odd because, according to his own account, Mr Janzemini had possession of the jewellery and would therefore have been in a position to return it to Mr Sadoughi as its true owner when he saw him in 2006 and again in 2007, not least when, again according to Mr Janzemini’s evidence, Mr Ali Roohi Fardpour - referred to in paragraph 17 of the witness statement - was entrusted with two of the sets of jewellery and, what is more, took them to Iran and met Mr Sadoughi, in the company of Mr Janzemini, in July 2006. I can understand that until the inspection took place on 21 July 2006 Mr Janzemini may have felt (or been advised) that it was prudent to retain custody of the jewellery. But, by their letter dated 24 July 2006 RPI had written to Bird & Bird to say that Mr Janzemini was “free to dispose or sell the jewellery to whosoever he pleases, including giving the jewellery to Mr Sadoughi if Mr Sadoughi is their true owner. Our client has no claims against this jewellery…”. So, by March 2007, the date of his witness statement Mr Sadoughi no longer had any basis of complaint over the non-return of his jewellery.[249]Mr Lewis informed me that Mr Janzemini placed reliance on Mr Sadoughi’s statement. He placed particular reliance on Mr Sadoughi’s reference to the jewellery being worth £100,000. Mr Lewis submitted that this would “explain perfectly” why Mr Zabihi wanted to sell the jewellery outside the usual circle of jewellery dealers and auction houses, namely to seek to get more than three times that value from an “inexperienced buyer” who would be making his purchase “out of context” in Mr Janzemini’s restaurant. He submitted that the reported value of £100,000 was consistent with the “retail” value placed upon the proffered jewellery by Mr Janzemini’s jewellery expert, Mr Stocker, who stated that the average retail mark-up of jewellery over and above its open market value could be anything from 150% to 300%. Mr Lewis submitted that this made “plausible” Mr Zabihi’s wish that Mr Janzemini should “oversell” the jewellery for £340,000.[250]I feel quite unable to go along with the idea, underlying Mr Lewis’s submissions, that all of these figures exhibit a general consistency. If, as the experts agreed, the proffered jewellery’s open market value “is/was and probably remains approximately £30,000” (as they put it) I am unable to see how that could be consistent with Mr Sadoughi’s claim that another jeweller - based in Hatton Garden - valued it in 2002 at between £100,000 to £120,000. There is nothing to indicate that each valuer was not approaching the matter of the valuation on the same open market basis. It seems to me that Mr Lewis was wanting to have it both ways: rely on the modest value of the proffered jewellery (as against the high value jewellery asserted by Mr Zabihi) while relying on Mr Janzemini’s further evidence that he was given to understand that he could obtain as much as £340,000 if not more for it.

(e) Mehdi Motalleb

[251]Also in evidence, admitted under the Civil Evidence Act, was a statement together with what I understood to be its Farsi original by a Mr Mehdi Motalleb of an address in Tehran. The evidence was adduced on Mr Zabihi’s behalf. Mr Motalleb stated that he was and had for many years been the administrator of various law firms and public services in Tehran. He claimed to have met Mr Sadoughi in 2003 and subsequently to have been introduced by Mr Sadoughi to Mr Zabihi. The general thrust of his statement was to the effect that, although once very wealthy, Mr Sadoughi had fallen on hard times, owed money to Mr Zabihi and had become heavily dependant on Mr Zabihi’s generosity to meet his housing and other needs. Mr Motalleb stated that Mr Sadoughi never mentioned that he had given away any jewellery to Mr Zabihi. He also questioned Mr Sadoughi’s claim to have been with the International Bank of Iran and said that there was no bank in Iran of that name.[252]I have devoted space to Mr Sadoughi’s witness statement because of its obvious relevance, if true, to the resolution of the issues I have to decide. It seems to me, however, that so far from providing support for Mr Janzemini’s case, Mr Sadoughi’s witness statement serves, if anything, to undermine it and, on any view, raises more questions than it answers. And against what it says is to be set what Mr Motalleb has to say. At the end of the day I have come to the view that, as Mr Hood submitted, it is safer that I attach no weight to it. The same is true of Mr Motalleb’s statement, the veracity and value of which (like Mr Sadoughi’s) it is impossible, without much further investigation, to assess.

(f) Mohamad Baboli

[253]Mohamad Baboli who ran (and I believe still runs) an export/import and money transmission business gave evidence. He said that he was acquainted with both Mr Zabihi and Mr Janzemini and had known them for over 20 years. At one time Mr Zabihi’s father had assisted in Mr Baboli’s business. There was a dispute, which I do not need to resolve, over whether Mr Zabihi had ever invested in the business.[254]Mr Baboli gave his evidence entirely orally. He had not provided any signed witness statement and told me that he had refused to sign a statement which Mrs Roshanian and Mr Zabihi had prepared for him. Mr Baboli was upset that Mrs Roshanian and Mr Zabihi had presumed to present him with a statement the accuracy of which he questioned. Nevertheless, having looked at various documents and attendance notes, it seems fairly clear that the statement in question had been prepared with some input from him.[255]Mr Baboli claimed to recall having seen what he described as “the jewellery” when, he said, Mr Zabihi and Mr Sadoughi came to his Hammersmith office in 2002. He said that he could not recall the time of year. He said that they showed him the jewellery that Mr Sadoughi said that he wanted to sell, had been to Hatton Garden and had had it valued there at between £120,000 and £130,000. He said that Mr Sadoughi offered to pay commission if it was sold for more than £100,000, recalled that the commission offered was 10% or 20% and stated that Mr Zabihi asserted that he would sell it for more than £120,000. Mr Baboli claimed to recall that there were four sets of jewellery and that Mr Sadoughi set them out on a table, having opened the jewellery boxes which were green in colour. He said that he did not pay any attention to the jewellery itself. He said that he understood from Mr Sadoughi that the jewellery belonged to him and his wife.[256]The odd thing about Mr Baboli’s evidence on these matters was that in correspondence, both with RPI (in late 2006) and later with Mr Janzemini’s then solicitors Pettman Smith (in early 2007), he stated and repeated that he had no knowledge relating to matters concerned with these proceedings. When I asked Mr Baboli why, in the light of his oral evidence, he had said that, he replied that he did not know that jewellery was in issue. I found this difficult to accept. It is clear that Mr Baboli had several telephone conversations with Mrs Roshanian in 2006 and into 2007 in connection with these proceedings. It is inconceivable that whether from Mrs Roshanian or from the Iranian community generally, he would not have known that jewellery lay at the heart of Mr Zabihi’s claims.[257]I therefore approach his evidence with considerable scepticism. I do not accept that, entirely unprompted (he claimed that neither Mr Janzemini nor Mr Massodipour had talked to him about the jewellery), he could have recalled, six or so years after the event, that there were four sets of jewellery (rather than some other number) and that they were contained in green boxes. I am even more surprised that he should claim to recall the figures and commission percentages which he said were being discussed in the course of what can have been no more than a very brief conversation. For someone whose business was to deal with money transactions on a regular basis his ability to recall these details, not least when his involvement in the matter was not being sought and it was not suggested that anything was committed to paper, is altogether too much to accept. In any event, his recollection, such as it was, did not extend to the appearance of the jewellery, much less to its quality. At the most, I am left with evidence which suggested that sometime in 2002 Mr Sadoughi was in possession of jewellery which, to Mr Zabihi’s knowledge, Mr Sadoughi wished to sell and which Mr Zabihi was offering to sell for him. It is difficult, therefore, to see how it assists in the resolution of the issues which I have to decide.

(g) Hossein Kariminik

[258]I also heard evidence on Mr Janzemini’s behalf from Mr Hossein Kariminik. Also known as Hussain Karimi, this witness said that he had been a friend of Mr Zabihi and Mr Janzemini for very many years. He was called to deny remarks attributed to him by Mr Zabihi in various parts of Mr Zabihi’s earlier written evidence concerned with Mr Janzemini’s conduct in relation to the disputed jewellery. Since I have attached no weight to the remarks attributed to him by Mr Zabihi, I need not take up time dealing with Mr Kariminik’s refutations of them.

(h) Sayed Mohammad Vahdat-Hagh

[259]Mr Vahdat-Hagh was called on Mr Zabihi’s behalf to testify to his intended purchase of a property in West London in early 2002. This was a transaction which also featured Mr Sadoughi and a solicitor called Hyett. It involved the payment by Mr Vahdat-Hagh of a deposit and the use of that deposit to reduce certain indebtedness of Mr Sadoughi. Eventually the contract to purchase the property was lost and, with it, the deposit. Mr Vahdat-Hagh believed that Mr Sadoughi had deliberately defrauded him. He believed that Mr Hyett and another firm of solicitors that had acted for him had failed in their duties to him and had given him assurances that were misleading. The transactions had nothing whatever to do with the dispute over the jewellery. Mr Zabihi’s purpose in adducing this evidence was to demonstrate that Mr Sadoughi was someone on whose word the court should place no reliance. Since, for other reasons already explained, I have attached no weight to Mr Sadoughi’s witness statement I need not consider whether Mr Vahdat-Hagh’s criticisms of Mr Sadoughi have any validity.

(i) Reza Veiseh

[260]I should mention the evidence of Mr Reza Veiseh. He was called by Mr Zabihi because he claimed to recall the very words of two conversations which he said he had with Mr Janzemini, one at the beginning of 2004 and the other sometime in late 2005. Both are said to have been at Mr Janzemini’s Alounak restaurant in Olympia. They were strongly challenged by Mr Lewis.[261]In the first of those Mr Veiseh stated that Mr Janzemini approached him “because he knew me” and then asked him a question, the precise words of which (in translation) Mr Veiseh claimed to recall namely “I have some diamonds which doesn't [sic] belong to me and which belongs to Mr Kamran Zabihi. I wonder if you can find a buyer for it?” to which, according to Mr Veiseh’s witness statement, Mr Veiseh replied “where are they? Do you have them here?” to which Mr Janzemini said “yes”. Mr Veiseh claimed to recall saying:
“sorry, I have no clue in this line of business”
. Curiously, Mr Veiseh then volunteered that he thought Mr Janzemini showed a lack of trust in him because Mr Janzemini did not there and then produce the jewellery for Mr Veiseh to inspect.[262]The second conversation is described thus in Mr Veiseh’s witness statement:
“Some time in late 2005, which I do not recall the exact date, I went to Alounak Olympia and had a meal there. I saw Mahmoud [Mr Janzemini] again. He came and sat at my table and we had a bit of chat as usual. I asked him ‘I just remembered those diamonds, what have you done with them? Have you managed to sell them?’ He said ‘Oh, ya, ya, have you not heard about them?’ I said ‘what happened?’ He said ‘I sold the diamonds for £4 million.’ I said ‘you must be happy’. He said ‘no, because I couldn’t keep the money with myself. I put it in a friend’s bank account, Ali Rouhi, and my friends bank account has been frozen by the Government.’ He said he now has regretted it and wished he never done it. I asked ‘all the money?’ He said ‘no. I put some of the money in my Dad’s Swiss bank account and I put come of the money towards investments in properties.’ I asked him ‘how much money did you give to Ali?’ He said ‘a large sum of money.’ He mentioned the amount but I have forgotten exact amount now. He added: ‘I am so pissed off because I gambled with thousands and thousands of cash and I lost it.’ I told him ‘don’t worry. At least you haven't lost it all.’…”
The paragraph goes on to relate in similar vein certain confessions that Mr Janzemini is supposed to have been made about how he arranged his affairs in order to avoid being “in trouble with taxes”.[263]Apart from a claim by Mr Veiseh that he (Mr Veiseh) was intelligent, trusted and that gamblers (like, he said, Mr Janzemini) tend to talk “to show their pain” (as he put it) there was no credible reason why Mr Janzemini should suddenly, out of the blue, initiate a conversation with someone whom, even by Mr Veiseh’s account, he scarcely knew.[264]I did not find Mr Veiseh’s evidence at all credible. It had the smack of grudge and score-settling about it.

(j) Esmail Ashrafi

[265]I should also mention the evidence of Mr Esmail Ashrafi, a cab driver, who was called to give evidence on Mr Zabihi’s behalf. He claimed to have had a conversation with Mr Janzemini after these proceedings had started in which Mr Janzemini stated that he had given Mr Zabihi’s jewellery to someone called Hamid, although Mr Ashrafi could not identify who this person was. In the next sentence of his witness statement he claimed to have been told in late August 2006 by someone also called Hamid (I understood that this was another Hamid) that Mr Tavakoli (to whom I have referred elsewhere) had told Hamid that he (Mr Tavakoli) had recently given some jewellery to Mr Janzemini. In cross-examination Mr Ashrafi could not recall where these conversations took place but thought they were in Mr Janzemini’s Alounak restaurant. In the course of his short cross-examination Mr Ashrafi was vague about other aspects of his evidence. Reviewing what Mr Ashrafi said I found his evidence to be of no value.

(k) Shahrokh and Mairianne Zabihi

[266]Mr Shahrokh Zabihi and his wife Mairianne provided witness statements which were admitted under the Civil Evidence Act. Mr Shahrokh Zabihi is Mr Zabihi’s brother. His witness statement was concerned to counter passages about him in the evidence of Mr Salamat. The evidence in question had no bearing on the issues I have to decide. The only material part of Mairianne Zabihi’s witness statement was its confirmation that, for several years between 1983 and 1993, she had worked in London as a jewellery designer. She moved to the USA in early 1993 to join her husband who had taken up residence there the previous year. She disclaimed any knowledge of her brother-in-law’s jewellery claim in these proceedings. She stated that Mr Zabihi never asked for her assistance in valuing or selling his jewellery and that she had not seen the jewellery which is the subject of his claim. She went on to say that if he had asked her for assistance she could not have helped him because, at the time, she was in the USA and no longer had any contacts that could have been helpful to him.[267]I would merely comment that Mairianne Zabihi’s absence from London and lack of contacts would not have prevented her from advising Mr Zabihi how to go about valuing and selling his jewellery and suggesting places where he might go even if she was no longer able to put him in touch with any particular contact. It strikes me as odd that, claiming to be the owner of very valuable jewellery, Mr Zabihi should not have consulted his sister-in-law, given her professional background, before entrusting the jewellery for sale to someone such as Mr Janzemini. There was no suggestion in the evidence of any kind of estrangement between Mr Zabihi and his sister-in-law which might otherwise have explained this failure on Mr Zabihi’s part.

(l) Ian Curtis

[268]His evidence had no bearing on any of the issues I have had to decide. He was called in relation to Mr Janzemini’s honesty and good faith in relation to his conduct in matters having only the most tangential relevance to the jewellery claim.

(m) other matters

[269]I should mention briefly other passages in the evidence to which Mr Hood and Mr Lewis both drew my attention.[270]Mr Hood referred me to three matters. First, there was an affidavit by Mr Janzemini sworn on 12 July 2006 in compliance with an order made a week or so earlier. In paragraph 3 of that affidavit Mr Janzemini, when recalling his meeting with Mr Zabihi in September 2002 at which the jewellery was passed to him, referred to “four sets of matching gold and diamond jewellery”. Mr Hood emphasised the reference to “gold and diamond” as distinct from any other colours or gemstones. Mr Hood referred me also to a witness statement of a Mr Patrick Quinan, a partner in the firm of Bird & Bird, the solicitors then acting for Mr Janzemini. In that witness statement, which is dated 4 July 2006, Mr Quinan referred to having received instructions from Mr Janzemini on 3 July 2006 that he had in his possession “three sets of gold and diamond jewellery” comprising matching necklace, bracelet, ring and earrings and a further set “of gold and diamond jewellery”, this one without a bracelet. Again Mr Hood pointed to the reference in that statement to “gold and diamond jewellery” as distinct from jewels of any other kind. Last, Mr Hood referred me to a letter dated 17 July 2006 from Mr Rahmati who, as I have mentioned earlier, was Mr Sadoughi’s Tehran lawyer. The letter was to Mr Janzemini. It referred to Mr Rahmati having met Mr Sadoughi on July 16, 2006. It stated that Mr Sadoughi had been his client since 1997 and that he had been requested by Mr Sadoughi to answer various questions regarding “his [Mr Sadoughi’s] jewellery which has deposited you [sic] by Kamran Zabihi who was acting as his trustee…”. (This was in connection with the contention by Mr Janzemini, denied by Mr Zabihi, that the jewellery in dispute belonged to Mr Sadoughi.) He referred in the letter to “four full set of jewelry (Art deco model)”. Mr Hood’s point was that Mr Rahmati’s reference to the jewellery was to four “full” sets which, moreover, were in “Art deco” style. He submitted that this was very different from the proffered jewellery.[271]I regard these passing references as a very slight basis indeed for establishing what the jewellery comprised.[272]Of a like nature was the assistance Mr Lewis sought to derive from something written in Mrs Roshanian’s letter of 11 May 2006 to Mr Janzemini and Mr Massodipour. This referred to the jewellery which Mr Zabihi had handed to Mr Janzemini as comprising four sets each of which “consisted of matching necklace, bracelet, earrings and ring and was made of diamonds, rubies etc …”. The mention by her of “rubies” was seized upon by Mr Lewis. He submitted that it showed that at that stage, which was before the inspection of the proffered jewellery, Mrs Roshanian assumed that the jewellery included coloured stones. He submitted that this belief could only have come from Mr Zabihi and it showed, he said, that the jewellery was not made up simply of clear diamonds as Mr Zabihi subsequently claimed.[273]I consider that Mr Lewis was attempting to read too much into Mrs Roshanian’s very general description of the jewellery. It was rather like Mr Hood’s reliance on the similarly vague descriptions of the jewellery just considered. Moreover, in Mr Zabihi’s favour on this point is that in an e-mail he sent to Mrs Roshanian on 31 May 2006 he described the jewellery as “four sets of antique jewels” and, in response to an e-mail later that same day asking him to give an accurate description of the jewellery, referred to it as “all pure diamonds” and as made in the 1920s. When he wrote this he had not seen the proffered jewellery, nor had he seen any evidence from Mr Janzemini responding to his claims. I should also record that when this reference in Mrs Roshanian’s letter was put to him, Mr Zabihi said that she had been in error in describing the jewellery as having rubies and that he had failed to notice this when a copy had been sent to him. He explained that at the time he was very preoccupied with the state of health of a niece who had recently undergone a transplant.

The jewellery claim against Mr Janzemini: conclusions

[274]I have explained why I have felt unable to accept that the Zandieh letter was created on the date that it bears and why, irrespective of Mr Janzemini’s evidence, the jewellery which was passed by Mr Zabihi to Mr Janzemini on 12 September 2002 cannot have been as described in the Zandieh letter, with or without the Samimi drawings.[275]Was it the proffered jewellery that was passed to Mr Janzemini? I am unable to accept that it was. Mr Janzemini’s claim that what he was handed on 12 September 2002 was the proffered jewellery is not to be reconciled with his subsequent conduct. My principal reasons for this conclusion are(a) the mismatch between Mr Janzemini’s action after 12 September 2002 in informing Mr Zabihi that the jewellery had been stolen and the reasons he has since given for making that statement,(b) his inexplicable failure to respond to the letters sent to him by Shaidy & Co (the first and third of which came to his notice, even if the second did not) and to RPI’s letter of 11 May 2006,(c) the impossibility of reconciling his failure to take up with Mr Zabihi the true worth of the jewellery (as he says that he discovered it to be only very shortly after receiving the jewellery) namely £20,000 to £25,000, with what he says Mr Zabihi told him on 12 September 2002 to sell it for, namely £340,000 if not more, reinforced by the assertion in the first of the Shaidy & Co letters that the jewellery had a value of £350,000 to £500,000,(d) his failure, having decided not to offer the jewellery to Mr Ali Rolls Royce or anyone else, to make any effort to return the jewellery to Mr Zabihi or, if he was holding it as some form of security for his money claims, to assert those claims or explain to Mr Zabihi or Shaidy & Co or anyone else on Mr Zabihi’s behalf that that was why he was retaining the jewellery, and(e) the absence of any reliable evidence, whether from Mr Sadoughi or from any other source, to back his claim that what he was handed by Mr Zabihi was jewellery which belonged to Mr Sadoughi. Such very sparse information as Mr Sadoughi felt able to supply in his untested witness statement as to the jewellery’s origin (see paragraph 239 above) was unsupported by any documentary back-up and, so far as it went, was doubted on credible grounds by Mrs Salmanpour-Elsey. Moreover, the notion that the jewellery was Mr Sadoughi’s is, for the reasons explained at paragraphs 193 and 245 above, very difficult to reconcile with Mr Janzemini’s later dealings with it.[276]I am wholly unimpressed by the claims of witnesses called by Mr Janzemini that the jewellery which he showed them on occasions stretching back to very shortly after 12 September 2002 was the proffered jewellery. I have explained, when reviewing the evidence of those witnesses, why I have reached that view. I do not accept that these persons, whose evidence in other respects, given that they were being asked about matters which occurred several years earlier, was understandably hedged about with uncertainty over this or that matter, should have been able to recall, sometimes in considerable detail, what the jewellery looked like and what the colour and in some cases shape of the inner and outer containers of the jewellery consisted of when their opportunity to examine the jewellery and its containers lasted, at best, no more than a few minutes. This is especially so given the almost invariable coincidence of their recollection of these matters (notably of the green inner and cream outer containers). To that must be added the fact that Mr Janzemini has been in possession of the proffered jewellery since at least January 2004 so that he and his witnesses have had ample opportunity to see and inspect it and its containers, and therefore be influenced by its appearance before giving evidence at this trial.[277]That still leaves the question: if the jewellery which was handed over was not the proffered jewellery then what was it and how is it to be valued?[278]Mr Lewis submitted that if I should reject Mr Zabihi’s detailed account, by reference to the Zandieh letter, of what the jewellery comprised, and also Mr Janzemini’s, the court could not properly find that the jewellery handed over was of some other quite different kind (what he described as “a third set”). To do so, he said, would be to find that it was of a nature and appearance which Mr Janzemini would not have had the chance to consider and comment upon in the witness box.[279]The logic of Mr Lewis’s approach is that, given my findings of fact, Mr Zabihi’s claim must be dismissed or, at most, he should recover no more than nominal damages on the footing that, although he has established that his jewellery was converted, he has failed to establish what his loss is that flows from the conversion.[280]I do not accept that my conclusions must lead to that result. Mr Hood submitted, by reference to a passage from McGregor on Damages, 17th Edition, paragraph 8-002, that the court must do its best on such evidence as it feels able to accept to place some kind of value on jewellery which, on this footing, Mr Janzemini would be shown to have converted even if its precise identity cannot be established and therefore its value must be in doubt. Otherwise, he submitted, Mr Zabihi would end up establishing that conversion of his jewellery had occurred yet would fail to recover anything in damages, other possibly than nominal damages, because of an inability to establish exactly what it was that he had handed over. I see great force in that.[281]As I have mentioned, it was common ground that four sets of jewellery were handed over even if, as one side contended, one of the sets lacked a bracelet. I am satisfied that the jewellery included a number of diamonds and gold mountings. I am further satisfied that it must have had a value of at least £30,000 (the open market value placed upon the proffered jewellery by the experts) since, having lost or disposed of the true jewellery, Mr Janzemini would not, I think, have acquired jewellery, by way of replacement, which was of greater value or, if he had, he would surely have pointed this out to Mr Zabihi. Mr Janzemini himself understood from Mr Zabihi at their meeting on 12 September that he was expected to sell the jewellery for £340,000. For his part, according to Shaidy & Co’s letter of 30 January 2003, Mr Zabihi believed, assuming (as I have no reason to doubt) that the letter accurately reported his view at the time, that the jewellery had a value of between £350,000 and £500,000.[282]The experts were in agreement that there is a difference between(1) what Mr Buckie referred to as the open market value (and Mr Stocker as the disposal value) of jewellery, and(2) its retail value, namely the price which the jewellery might be expected to achieve if sold privately, ie otherwise than by auction. Mr Buckie put the mark-up at between 1.5 and 3 times open market value. (See paragraph 9.3 of his supplemental report and valuation.) The figures in Mr Stocker’s report indicate a mark-up of 5 times disposal value. Given those levels of mark-up and doing the best I can on the very limited information that I have about the true jewellery, I have reached the conclusion that it had an open market or disposal value of between £100,000 and £150,000 at the time of its delivery to Mr Janzemini in September 2002. I cannot be more precise than that. Such a range of value would have justified Mr Zabihi’s belief, based upon Shaidy & Co’s January 2003 letter, that up to £500,000 could have been achieved for the jewellery. It would also justify Mr Janzemini’s recollection that Mr Zabihi was expecting him to obtain £340,000 for the jewellery. In what is necessarily (given the evidence) a very difficult task I therefore find that the open market value of the jewellery in September 2002 was £125,000 (the mid-point of the range of value). The experts were agreed that values have not materially altered since that date.[283]I do not consider that in reaching this conclusion I am putting forward a “third set” of jewellery; I am merely endeavouring to reach a conclusion as to the open market value (which is the figure I am concerned to establish) of the four sets of diamond and gold jewellery that Mr Zabihi handed to Mr Janzemini. Interestingly, Mr Sadoughi said (in his untested witness statement) that the jewellery which he says he entrusted to Mr Zabihi was professionally valued at £100,000 to £120,000 and that Mr Zabihi told him he could sell it for £300,000, ie a mark-up of almost 3 times the valuation. This ratio of professional valuation to retail value was a matter to which Mr Lewis referred (see paragraph 249 above).[284]There are two further matters which I should mention.[285]The first was a submission by Mr Hood, based on the authority of Armory v Delamirie (1721) 1 Strange 505, that it should be presumed against a bailee who does not produce the bailed goods that the goods are of the highest value (“…unless the defendant did produce the jewel, and shew it not to be of the finest water, they [the jury] should presume the strongest against him, and make the value of the best jewels the measure of their damages…”). This may be all very well where it is reasonably apparent what the goods are that were bailed, for example, a single three carat diamond. Here, I must temper that principle to the fact that Mr Zabihi is not able to establish just what the goods were that he bailed beyond that they consisted of four sets of diamond and gold jewellery while ensuring that the resulting figure is consistent with what the parties themselves understood the jewellery to be worth.[286]The other matter was a submission by Mr Lewis that, as the jewellery had, on Mr Zabihi’s case, been smuggled into this county and was therefore liable to forfeiture under section 49 of the Customs and Excise Management Act 1979, Mr Zabihi should recover nothing because his claim was founded on an illegal act. He referred me to the decision in Tinsley v Milligan [1994] 1 AC 340 at 375 (see Lord Browne-Wilkinson). I do not accept the submission. Even if I had accepted Mr Zabihi’s evidence concerning the circumstances in which the jewellery came here, the fact that it had been smuggled into this country in circumstances giving rise to a risk of forfeiture would not prevent Mr Zabihi from recovering it or its value in court proceedings. The illegal importation of the jewellery, assuming that to have happened, is irrelevant to the claim against Mr Janzemini in that it is not necessary to the establishment of Mr Zabihi’s title to the jewellery and thus to his claim to recover it or its value that he should have to rely on its illegal importation. Mr Lewis’s reliance on Tinsley v Milligan was not therefore in point.

The claim against Mr Massodipour

[287]As ultimately formulated by Mr Hood during his closing submissions, the claim against Mr Massodipour lay in contract only. Other claims, for example for breach of fiduciary duty, were abandoned. The contract alleged was said to have been made orally on 13 September 2002 during a telephone conversation between Mr Zabihi and Mr Massodipour. It was therefore made on the day following the handover of the jewellery to Mr Janzemini.[288]Mr Massodipour denied having a telephone conversation with Mr Zabihi on 13 September, let alone one in which an agreement was reached concerning the jewellery. He also denied another telephone conversation which Mr Zabihi alleges he had with Mr Massodipour about the jewellery, this one on 11 September, the day before the handover of the jewellery to Mr Janzemini.[289]The oral agreement said to have been reached during the telephone conversation on 13 September was that Mr Massodipour would be entitled to sell the jewellery in return for a commission and that pending its sale by either him or Mr Janzemini the jewellery would be kept in the safe at Alounak Olympia (ie at Mr Janzemini’s restaurant) and insured in the sum of £500,000. The claim then alleges, again as ultimately formulated by Mr Hood, that Mr Massodipour failed to ensure that the jewellery was kept secure or in the safe in Alounak Olympia’s restaurant in that it was misapplied or lost by Mr Janzemini or was sold by Mr Janzemini and its proceeds misapplied by him. It is also alleged that Mr Massodipour failed to keep the jewellery insured. Although it was not suggested that Mr Massodipour had himself misapplied the jewellery or its proceeds it was said that his breaches caused Mr Zabihi to suffer damage equal to the value of the jewellery.[290]As far as I can discern, the only consideration for the assumption by Mr Massodipour of these obligations to Mr Zabihi was the prospect of earning commission if he, Mr Massodipour, should succeed in selling the jewellery. It was not alleged, however, that any agreement was reached concerning commission or even what the price was at which Mr Massodipour should be free to sell. It was not suggested, for example, that there was any discussion between Mr Zabihi and Mr Massodipour along the lines of what Mr Zabihi said that he agreed with Mr Janzemini at the 12 September handover meeting as regards the price at which Mr Janzemini would be at liberty to sell the jewellery and as to any commission he could take on any sale.[291]I therefore entertain the gravest doubts whether, even as ultimately formulated, the contract on which Mr Zabihi relies gives rise to any obligations binding on Mr Massodipour. That difficulty aside, I am of the firm opinion that Mr Zabihi fails to establish any oral agreement with Mr Massodipour, whether or not such agreement gives rise to a contract binding in law, with the result that the claim against Mr Massodipour should be dismissed. I do so for the following reasons.[292]Apart from Mr Massodipour’s minimal involvement with the jewellery, even on Mr Zabihi’s case, what is particularly striking about the claim is how it was only relatively late in the day that any claim was advanced against Mr Massodipour on the basis of some kind of contract entered into with him personally and how, by comparison, the claim was formulated at the time that it was first raised.[293]I have already referred to the letter dated 30 January 2003 to Mr Janzemini from Shaidy & Co. That letter, written on Mr Zabihi’s instructions, alleged that the jewellery had been placed with a view to sale in Mr Janzemini’s custody. It warned that Mr Zabihi would look to Mr Janzemini (as recipient of the letter) to make good any loss. There was no mention of Mr Massodipour. No copy of the letter was sent to Mr Massodipour let alone addressed to him as someone responsible for the jewellery’s safekeeping. The chasing letter from Shaidy & Co sent on 28 February 2003 was again addressed to Mr Janzemini alone. There was no mention of Mr Massodipour.[294]By contrast, the letter from Shaidy & Co dated 13 January 2004 was addressed to both Mr Janzemini and Mr Massodipour. But the letter does not explain how Mr Massodipour was responsible for the jewellery’s loss. It merely assumed that Mr Massodipour was liable. It referred to “numerous reminders from our client” for the return of the jewellery. But it has not been suggested that, if there were any (and I have not seen evidence that, apart from the two earlier letters, there were), those reminders were sent to Mr Massodipour. Mr Massodipour accepted, and mentioned in his written evidence, that he was served with this letter - at his restaurant at 44 Westbourne Grove - but it has not been suggested that at the time of service or subsequently Mr Massodipour said or did anything to acknowledge any liability for the jewellery or acknowledged that the contents of the letter were in any way referable to himself.[295]There, as I have previously mentioned, the matter rested until April 2006. At around this time, Mr Zabihi had instructed Mrs Roshanian of RPI. He left with her a handwritten note setting out various instructions. (It was exhibited to one of the very many witness statement that Mrs Roshanian has made in these proceedings and no claim to privilege for it has been asserted.) The handwritten note recorded that Mr Massodipour, as “partner” of Mr Janzemini, “went to see Mr Shaidy and told him that Mr Zabihi gave the jewels to Mr Janzemini and it was Mr Janzemini who lost the jewels” (In fact, Mr Massodipour asserted that he had called Mr Shaidy by telephone, not that he had physically gone to see him, and that, in any event, he had not said anything to Mr Shaidy about what had happened to the jewellery. Mr Shaidy was not called to confirm the note’s contents. So Mr Massodipour’s evidence on the point went unanswered.) The note also contained the following instruction:
“A letter should be sent to Messrs Yousef Masoudi [sic] and Janzemini to both their addresses saying that the jewels were give to both them and suppose to be kept in the safe in Alounak Restaurant in Hammersmith branch and we are taking them to court to recover our client’s monies and interest and costs. Letter should also indicate the threats made by his two brothers.”
The reference to the two brothers was to Mr Janzemini’s brothers. It was not of course true that any jewels had been “given” to both Mr Janzemini and Mr Massodipour if by “given” was meant that they were physically handed over to the two of them.[296]Some days later, on 11 May 2006, Mrs Roshanian wrote the following letter, addressed to Mr Janzemini and Mr Massodipour at Alounak Restaurant, 10 Russell Gardens. I have already referred to this letter. I refer only to the material part:
“We are writing to you as the new solicitors acting for Kamran Zabihi … Mr Zabihi who has recently returned to the UK from a long absence from this country has instructed us to commence proceedings against Alounak Restaurant, and each of you individually as its co-owners, in order to recover the jewellery, or its equivalent value in money, which he entrusted to you both on 12 September 2002 in order to keep in Alounak’s safe box for the purpose of facilitating its sale to a potential purchaser introduced by you to him. Four sets of jewellery were placed in your joint custody on said date with the clear instructions from Mr Zabihi that the jewellery be kept in Alounak’s safe box for viewing by the prospective purchaser …”
Mr Massodipour denied seeing the letter. But the significant point is that Mr Massodipour is alleged by the letter to be liable not on the basis of any agreement reached between him and Mr Zabihi in the course of a telephone conversation on 13 September 2002 (or on any other date) but as a co-owner of the Alounak Restaurant, the jewellery having allegedly been entrusted to the two of them on 12 September to keep in Alounak Olympia’s safe box. On Mr Zabihi’s case, as ultimately formulated, Mr Massodipour’s liability was not grounded on any placing of the jewellery into the “joint custody” of the two of them on 12 September since it was common ground that Mr Massodipour was not present on that occasion but because Mr Massodipour, it was alleged, agreed on 13 September to have responsibility for the jewellery’s safekeeping following what had already occurred the previous day.[297]Just under three weeks later, on 31 May 2006 (and just three weeks before proceedings were launched) Mr Zabihi e-mailed to Mrs Roshanian what was described in the e-mail as “witness statement - stolen jewels”. The e-mail set out his account of the events leading up to the handover of the jewellery on 12 September 2002 and his understanding of what subsequently happened to the jewellery. I have referred elsewhere to this e-mail. The “witness statement” contained no mention of Mr Zandieh or of the origins of the jewellery, but referred merely to “4 sets of antique jewellery” that he wished to sell. The only mention in it of Mr Massodipour was in connection with the steps taken by Mr Zabihi (or on his behalf) after he was given to understand by Mr Janzemini that the jewellery had been stolen. This is what the statement set out in this regard:
“As I heard nothing from Mr Janzemini for a while, I decided to call my then solicitor, Mr Shaidy and instructed him to write a letter to Mr Janzemini and his business partner to enquire about my jewels. He wrote so many letters to them, but they never responded other than a visit was made by Mr Janzemini’s business partner, Mr Yousef Massoudi [sic] to Mr Shaidy’s office who told Mr Shaidy that the jewels were given to Mr Janzemini not him, but Mr Shaidy told him that according to Mr Zabihi’s statement the jewels were given to both of them as the co-owners of Alounak Restaurant. Then he had nothing to say and left his office.”
(emphasis added) There was no mention of any telephone conversations between Mr Zabihi and Mr Massodipour. Mr Massodipour’s “liability” was apparently put on the basis that he was, with Mr Janzemini, a co-owner of the Alounak Restaurant and, as such, Mr Janzemini’s business partner.[298]As I have mentioned, these proceedings were issued on 20 June 2006. Following their issue there was a without notice application to the court for a freezing order against Mr Janzemini. The skeleton argument of counsel then appearing for Mr Zabihi lodged in connection with the application set out counsel’s then understanding of the claim. It was that the jewellery had been entrusted to both Mr Janzemini and Mr Massodipour on terms that it would be kept in the safe of Alounak Olympia and that Mr Janzemini (rather than Mr Massodipour) would find a purchaser for the jewellery and if he failed to do so would return it to Mr Zabihi. There was no mention of any telephone conversations between Mr Zabihi and Mr Massodipour.[299]The witness statement of Mr Zabihi made in support of this application referred to Mr Massodipour as co-owner of the Alounak Restaurant. In paragraph 11 Mr Zabihi said this:
“11. Prior to handing over the jewels to Mr Janzemini I had also spoken to Mr Massoudi [Mr Zabihi’s way of referring to Mr Massodipour] and had agreed with both of them that the jewellery would be given to Mr Janzemini to be kept in the Restaurant’s safe and that both of them would be responsible for its safe keeping.”
So the involvement of Mr Massodipour was no longer on the basis, if it ever had been, that the jewellery had been handed jointly to him and Mr Janzemini. Now, for the first time, reliance was being placed on a conversation between Mr Zabihi and Mr Massodipour although one that had occurred before the handover. Moreover, the account of the conversation made no mention of Mr Massodipour having any authority to sell the jewellery.[300]Particulars of claim, sent at the same time as the making of the application, were to the same effect. Although the pleading set out with some care the events material to Mr Zabihi’s claim for return of the jewellery or damages, there was no mention in it of any conversation between Mr Zabihi and Mr Massodipour on 13 September 2002 or on any other date subsequent to the handover.[301]As I have mentioned, Mr Buckie, the jewellery expert retained on Mr Zabihi’s behalf, was first instructed in the matter on or shortly before 21 July 2006 when the inspection took place of those suites of the proffered jewellery. Following that inspection Mr Buckie was asked to prepare a report and valuation. A draft of the report dated 10 December 2006 set out in section 4 Mr Buckie’s understanding of the history of the dispute. There was no reference to any involvement of Mr Massodipour in the matter. By contrast, the equivalent section in the final version of the report, being the version produced in evidence as Mr Buckie’s report dated 25 January 2007, does refer to Mr Massodipour. This was by way of the insertion of a reference to Mr Massodipour having, in Mr Zabihi’s belief, acted “in collaboration” with Mr Janzemini in the sale by Mr Janzemini of the missing jewellery and the retention by him of the sale proceeds. The draft report had evidently been checked and the insertion made to explain Mr Massodipour’s involvement. It is to be noted that any claim that Mr Massodipour collaborated with Mr Janzemini in the sale of the jewellery and wrongful retention of the sale proceeds has not been pursued before me.[302]On 31 October 2006, Mr Zabihi made his third witness statement in these proceedings. This was in response to an application by Mr Massodipour to have the claim against him struck out or for summary judgment, essentially on the ground that the claim as pleaded disclosed no cause of action against him. Among the matters relied on by Mr Massodipour was that Mr Zabihi did not even claim to have handed the jewellery to him or to have asserted that he was present when this occurred. It was in Mr Zabihi’s responsive witness statement that the first mention is made of any conversation between Mr Zabihi and Mr Massodipour. This is how the matter was put at that stage:
“9. …It is true that I physically handed over the jewellery to the First Defendant on 12th of September 2002 and that the Second Defendant was not present during that meeting. However it is not true that the Second Defendant has never spoken to me on the phone. 10. A day before handing over the jewellery to the First Defendant, I called the Second Defendant and informed him of my arrangements with the First Defendant for the safekeeping and the sale of the jewellery and obtained his agreement to this arrangement. 11. On 13th of September 2002, a day after I handed over the jewellery to the First Defendant, I called the Second Defendant from my Baboli Trading Office in Hammersmith and told him that I had given the jewels to the First Defendant to be kept in their joint restaurant's safe in Olympia and asked the Second Defendant to also show the jewellery to prospective buyers as I knew he also dealt in jewellery. The Second Defendant agreed. 12. At the time of giving the jewellery to the First Defendant, I not only trusted him but also trusted the Second Defendant as they were both partners in Alounak restaurant business and I knew if one of them was not trustworthy, he could steal my jewellery from the restaurant’s safe. I instructed them both to keep the jewellery in the safe of Alounak restaurant and not remove it from there save for the sole purpose of showing the jewellery to prospective buyers. 13. As the co-owner of the Alounak Restaurant in Olympia, the Second Defendant had equal access to, and possession and control of, the jewellery kept in the restaurant's safe.”
[303]According to paragraph 10 the outcome of the earlier conversation on 11 September was that Mr Massodipour agreed to Mr Zabihi’s arrangements with Mr Janzemini for the safekeeping and sale of the jewellery. Quite what liability Mr Massodipour was undertaking as the result of the conversation is far from clear since the arrangements to which his agreement was being sought were between Mr Zabihi and Mr Janzemini. The apparent purpose and outcome of the reported telephone call by Mr Janzemini to Mr Massodipour on 13 September was to inform the latter of the handover of the jewellery the previous day “to be kept in their joint restaurant’s safe” in Olympia and to invite Mr Massodipour to show the jewellery to prospective buyers “as I knew he also dealt with jewellery”.[304]In paragraph 29 of this witness statement Mr Zabihi set out his “case against the second defendant”. That paragraph contained the following:
“…I spoke to the Second Defendant a day before and a day after I handed the jewels to the First Defendant to make sure that he accepts joint and several liability for the safekeeping of the jewels. When I spoke to him the second time on 13th of September 2002, I made it clear to him that if he produced a buyer willing to pay a higher price, I would sell the jewellery to his customer. It was also assumed among the three of us that any commission earned by the First Defendant on the sale of the jewellery would be shared with the Second Defendant as they were full business partners in all their business activities at the time I handed over my jewellery to the First Defendant. Indeed, I believe that the First and Second Defendant have used part of the proceeds of the sale of my jewellery to purchase the premises of the Alounak Restaurant in Spain and for part of the alleged £1.5 million investment loss they have sustained in Spain.”
Mr Zabihi returned to the same topic in paragraph 31 of his witness statement:
“When I asked the Second Defendant on 13th September 2002 to accept joint responsibility for the safekeeping of the jewels, he said that ‘OK’. The consideration is that he was to share in the commission to be received by the First Defendant from the sale of the jewellery and indeed has benefited from the sale proceeds, as part of the sale proceeds appear to have been invested in their joint Spanish property restaurant.”
[305]I have the following observations to make about those passages. First, even on his own account and on his evidence before me, Mr Zabihi never explained to Mr Massodipour what commission would be paid to him and what the price was at which Mr Massodipour should be permitted to sell the jewellery. Instead, as he stated in the course of his oral evidence, he assumed that Mr Janzemini would have told Mr Massodipour about these matters; the assumption to which the penultimate sentence of paragraph 29 referred was just that. Second, it was a mistaken assumption because, as is now accepted and I have explained, Mr Janzemini and Mr Massodipour were not at any time partners in the running of the Alounak Olympia. Mr Zabihi’s assumption that the two of them were co-partners in the running of Alounak Olympia, and co-owners of its undertaking, was and remained a theme of Mr Zabihi’s claim until it was abandoned shortly before the start of this trial. For so long as it continued it appears to have grounded a belief, entirely mistakenly, that because they were partners in that business Mr Massodipour was jointly accountable for the consequences of any actions by Mr Janzemini associated with the operation of Alounak Olympia including, apparently, Mr Janzemini’s acceptance, assuming it happened, that the jewellery would be kept secure in the restaurant safe. Once it is accepted , as Mr Zabihi now does, that Mr Massodipour had no role in the running or ownership of Alounak Olympia any suggestion by him that Mr Massodipour agreed that the jewellery would be lodged for safekeeping in the Alounak Olympia safe or that Alounak Olympia’s insurance would cover the jewellery whilst in the safe becomes exceedingly unlikely. Third, I have seen no evidence which credibly suggests that the sale proceeds of any jewellery were used in the purchase by Mr Janzemini and Mr Massodipour of their jointly owned restaurant in Spain or to defray any losses arising from that venture. Fourth, (and as I have already mentioned), there has been no evidence which credibly suggests that Mr Massodipour has traded as a dealer in jewellery. In paragraph 33 of the same witness statement Mr Zabihi said that he intended at the trial to adduce witness testimony from jewellery dealers and brokers showing that Mr Massodipour “regularly uses his restaurant premises in Westbourne Grove as the meeting place for prospective jewellery buyers and jewellers and receives commission for introducing a buyer to professional and private jewellery sellers”. No such evidence was produced.[306]On 6 December 2006, just over two months after serving his witness statement in opposition to Mr Massodipour’s strike-out application (which application, unsurprisingly in the face of Mr Zabihi’s evidence, did not succeed) Mr Zabihi provided replies to requests for further information concerning the two conversations with Mr Massodipour on which he was now relying. The following replies were supplied:
“The Claimant telephoned the Second Defendant on 11th September 2002 and told him that the jewellery must be kept in the safe at the Alounak Restaurant in Olympia as it will be covered by its insurance policy. The Second Defendant assured the Claimant on the telephone that the jewellery would be covered by the restaurant's insurance policy and agreed for its safe-keeping in the restaurant's safe. The First and Second Defendants did not inform the Claimant of the limit of Alounak Restaurant’s insurance cover for the Claimant’s jewellery. However, both the First and Second Defendants assured the Claimant that the jewellery was insured for much more than £500,000 (which was the minimum price the Claimant had asked for the jewellery to be sold for). … About a week before the Claimant handed over the jewellery to the First Defendant he had told him that he intended to give the jewellery to him to sell for him and he was told by the First Defendant that he had to discuss the matter with his partner Yousef and that if he agreed, he would take the jewellery and try to sell it for the Claimant. The first time the Claimant called the Second Defendant at the Westbourne Grove restaurant telephone number (using the number on Alounak’s business card) it was on 11th of September. He asked to speak to Yousef … Then the Second Defendant answered the phone. After exchanging greetings with him, the Claimant told him, ‘dear Yousef, Mahmoud is coming to my home tomorrow so that I give him the jewellery; I request you and Mahmoud to keep the jewellery in the safe of Alounak Restaurant in Olympia’. He answered, ‘yes, we have a safe there. Don't worry. We are even insured.’ The Second Defendant then told the Claimant ‘if you want it precisely, we are insured for much more than £500,000’ but he did not tell the Claimant the policy limit. He assured the Claimant that the jewellery would be kept in the restaurant's safe and that it would be covered by the restaurant's policy. The Claimant then told him that ‘only you and Mahmoud are authorised to show the jewellery to potential buyers. Please do not give the jewellery to any other person in order to show them to potential buyers.’ The Second Defendant again assured him ‘don’t worry. We will keep it in the safe and we are insured if, god forbids, something should happen.’ … On 13th September 2002, the Claimant called the Westbourne Grove Restaurant number. A lady answered the phone. …. After the Second Defendant took the phone, the Claimant told him: ‘I gave the diamonds to Mahmoud last night. He came to my home and collected it.’ Again, the Claimant pleaded with him ‘please keep the jewels in the safe of Alounak Olympia.’ The Second Defendant answered ‘do not worry’ and assured the Claimant that the jewellery will be kept in the safe of Alounak Restaurant and covered by its policy. Because the Claimant knew that the Second Defendant was also involved in the jewellery business, the Claimant told him that if he found a buyer who was willing to pay a higher price than the First Defendant’s buyer(s), he would sell the jewellery to his buyer, and the commission payable to the First Defendant would be shared in equal portions between him and the First Defendant. He said ‘OK, certainly’. They then said good-bye and the Claimant put the phone down.”
So the sharing of any commission in the event that Mr Massodipour should bring about a sale was raised during this conversation and was the subject of express agreement.[307]It thus appears that with the passing of time not only did Mr Zabihi recall conversations of which, at the outcome of this dispute, there was no mention, but he felt able to recall the very words used. As I have mentioned, it is the second of these two conversations which is now put forward as the contractual foundation for the claims he makes against Mr Massodipour.[308]In his oral evidence, Mr Zabihi maintained that he had these conversations with Mr Massodipour. He accepted that he failed to mention to Mr Massodipour the commission arrangements which he had agreed with Mr Janzemini in respect of any sale of the jewellery which Mr Janzemini might bring about, but merely assumed that Mr Janzemini would have told Mr Massodipour what those were and that, being co-partners, the commission would be shared.[309]Mr Massodipour himself was in the witness box for just over half a day. He had the assistance of an interpreter but was able for the most part to understand and answer in English the questions put to him. He resolutely denied, both in his witness statement dated 15 March 2007 and when cross-examined before me, that either conversation took place. To be set against those denials are that(1) he was, as he readily accepted, a close friend of Mr Janzemini having known him for over 20 years and the two clearly trusted each other (indeed, as if to emphasise what close friends they were, Mr Massodipour volunteered that he and Mr Janzemini were “more than brothers”),(2) they had been partners in the restaurant business which they had operated out of the portakabins in the car park off Russell Road (in the early 1990s),(3) even though, later, when running their respective Olympia and Westbourne Grove Alounak Restaurants they were not in partnership they nevertheless closely co-operated in the running of those businesses (in that Mr Janzemini would frequently supply Alounak Westbourne Grove with prepared meat and, in return, Mr Massodipour would supply Alounak Olympia with prepared curries and vegetables),(4) Mr Massodipour was a co-owner with Mr Janzemini’s younger brother, Yousef Janzemini, of 10 Russell Gardens from which Alounak Olympia traded and he was owner of 8 Russell Gardens next door from which for a time one of Mr Janzemini’s brothers ran a pastry shop and(5) he and Mr Janzemini were the joint owners of the Alounak Restaurant which they bought and, for a while, ran in southern Spain. Despite these very close ties, Mr Massodipour disclaimed practically any knowledge of the jewellery which Mr Janzemini admits that he received and denied any knowledge of what Mr Janzemini subsequently did with the jewellery. It was as if when they were together the subject of jewellery never crossed their lips even though, according to his evidence, Mr Janzemini would discuss the jewellery with others and show it to them from time to time. Mr Massodipour, however, was firm that he was never made aware of or became involved in what happened to the jewellery. Even when the letter from Shaidy & Co of 13 January 2004 was delivered to his restaurant and came into his hands, Mr Massodipour was anxious to distance himself from its contents. He said in his evidence to me that he did not give it much attention; indeed, as I understood it, he claimed scarcely to have read it and did not have its contents explained to him. Somewhat inconsistently, however, he said that he was so angered to receive the letter that after waiting a while to cool down, he rang Mr Janzemini to remonstrate with him over it. He stated that he told Mr Janzemini to “sort the matter out”. This suggests that he must have had some knowledge of what it was all about. A reading of the 13 January 2004 letter alone would not have made much sense to Mr Massodipour if his only knowledge of the dispute was what was to be seen in the letter. Yet he denied asking Mr Janzemini what the trouble was about. Indeed, he claimed that he had no knowledge before these proceedings started of any claims by Mr Janzemini against Mr Zabihi and said that he had no knowledge of any complaints by Mr Janzemini that he had been tricked by Mr Zabihi. Later in cross-examination, however, he admitted to having heard about the £20,000 which Mr Janzemini said that he gave to Mr Zabihi but could not recall whether he heard of it before or after he received the 13 January 2004 letter. Almost uniquely among the witnesses who claimed to have seen the jewellery, either the jewellery claimed by Mr Zabihi or that urged by Mr Janzemini, Mr Massodipour said that he had no recollection of what the jewellery or its containers looked like. Even on the occasion when Mr Janzemini and others were apparently discussing the jewellery and, as Mr Massodipour understood it, looking at the jewellery at his (Mr Massodipour’s) restaurant late one evening after the restaurant had closed for the day, he denied having seen the jewellery because, as he put it, he was seated at another table in the corner of the room some distance from where Mr Janzemini and the others were seated.[310]It was clear to me that Mr Massodipour had a much greater knowledge of events, particularly those concerned with the jewellery, than he was willing to admit. Making every allowance for the fact that, compared with Mr Zabihi, Mr Massodipour was (or appeared to be) of little education and lacking Mr Zabihi’s sophistication and, although able (albeit with some difficulty) to understand and communicate in English, possessed very limited English-language skills, I did not find Mr Massodipour a witness upon whose testimony I could place much reliance. But the fact that I feel that way about his evidence does not mean that I should accept Mr Zabihi’s evidence about the two conversations which he claims to have had with Mr Massodipour on 11 and 13 September 2002. I am willing to accept, despite Mr Massodipour’s denials, that at or about the time of the handover of the jewellery to Mr Janzemini on 12 September, Mr Zabihi may have spoken to Mr Massodipour. I am willing to accept that he did so because he believed, wrongly, that he and Mr Janzemini were partners in the running of the Alounak Olympia business. But I am quite unwilling to accept that any of the matters were agreed between Mr Zabihi and Mr Massodipour during the course of those conversations upon which Mr Zabihi now relies. If any conversations had taken place in which Mr Massodipour had assumed responsibility for the safe keeping of the jewellery and in the course of which some agreement had been reached authorising Mr Massodipour to sell the jewellery, Mr Zabihi would have recalled this, and the matter would have been mentioned in correspondence, much earlier than occurred.[311]In my judgment, in this as in so much else concerning the disputes between the parties (and others) of which I have heard during the trial, wishful thinking and a tendency to embroider and exaggerate with a view to improving one’s case, coupled with the bitterness and partisanship that have characterised the dispute, have combined to render quite unreliable Mr Zabihi’s account of what he says passed between him and Mr Massodipour during any conversations which they may have had at the time of the handover of the jewellery. In short, even if Mr Zabihi was in telephone communication with Mr Massodipour at that time I am unable to find that any agreement was entered into under which Mr Massodipour assumed responsibility for the safe custody of the jewellery or of any sale proceeds.[312]I go further. I am far from persuaded that, even if there was the agreement with Mr Massodipour that Mr Zabihi alleges, anything occurred to cause Mr Massodipour to be in breach of its terms. The burden of Mr Zabihi’s case has been not that the jewellery was lost or stolen by some third party but that Mr Janzemini has sold it, has failed to account for the sale proceeds, has concealed the sale and has dishonestly claimed that the jewellery that Mr Zabihi had delivered to him on 12 September 2002 was the proffered jewellery which he produced - and which is still available - in July and September 2006 and again in April 2007. In that event, any failure to insure, if insurance was an obligation which Mr Massodipour undertook, was irrelevant. Likewise, there can be no complaint that the jewellery was not kept safe. For a sale of the jewellery by Mr Janzemini was the very purpose of the delivery to him of it and the very aim that the arrangements which Mr Zabihi claims to have made with Mr Massodipour were intended to facilitate. The real complaint on this basis is that Mr Janzemini has failed to account for Mr Zabihi’s share of the sale proceeds. But it was no part of any contractual arrangement, as ultimately formulated, between Mr Zabihi and Mr Massodipour that the latter should guarantee Mr Janzemini’s obligation to account to Mr Zabihi for the jewellery’s sale proceeds. At the very least, the contract between the two of them would have needed much greater clarity before I could have concluded that that was one of its terms.[313]It is for these reasons that, in my judgment, the claim against Mr Massodipour fails and must therefore be dismissed.

Result

[314]Mr Zabihi succeeds on his jewellery claim but only against Mr Janzemini. I assess his loss at £125,000. The money claims all fail except Mr Janzemini’s claim against Mr Zabihi for repayment of his £20,000 advance made in early to mid 2002.