“was made aware that [C] promised to pay the outstanding sum of£250,000 to [D1] for the 50% transfer of 126 Highgate Road over an extended period.”
“[159] ………. Ultimately in each case it is a matter of assessment by the judge who has to examine all the relevant factors in the case before him to see if the misconduct of the claimant is sufficient to warrant a refusal of the relief sought.”
"[19.] The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice, the party who has called the witness or that party's lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces. [20.] Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. The statement is made after the witness's memory has been "refreshed" by reading documents. The documents considered often include statements of case and other argumentative material as well as documents which the witness did not see at the time or which came into existence after the events which he or she is being asked to recall. The statement may go through several iterations before it is finalised. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events."
“[22.] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
“[14] In my judgment, contemporaneous written documentation is of the very greatest importance in assessing credibility. Moreover, it can be significant not only where it is present and the oral evidence can then be checked against it. It can also be significant if written documentation is absent. For instance, if the judge is satisfied that certain contemporaneous documentation is likely to have existed were the oral evidence correct, and that the party adducing oral evidence is responsible for its non-production, then the documentation may be conspicuous by its absence and the judge may be able to draw inferences from its absence.”
“[41.] The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority….is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”
“[10.] Paragraph 11 is denied. No such payments were made. ……… [16.1.] No such£30,000 cash payment was ever made.” [16.1.] No such£30,000 cash payment was ever made.” f. Therefore, it was abundantly clear that by September 2021, prior to the time directed for exchange of witness statements (9 September 2022 ), not only was there no acknowledgment that the cash sums had been paid, they were expressly denied. Nevertheless, C in his oral evidence sought somewhat bizarrely to excuse the continuing evidential shortcomings on the ground that “From my side, I had paid. I did not have a dispute over it.”
“[11.] Due to the involvement of independent third parties and in particular my grandmother, they eventually reached an agreement. The agreement that was reached was that: (a) The Highgate Road property will be transferred to my father (b) The Main Street property will be transferred to my uncle (c) The Tilt Hammer property would be split with one half being owned solely by my father and the second solely by my uncle. [12.] Later, my uncle demanded that my father pay him£40,000 in addition to the division of the properties. Although my father was reluctant to pay this, he was convinced by my grandmother to pay my uncle the£40,000 just so that the matter is drawn to a close.”
“[10] In 1997, ……. Using our remaining money and a small£15,000 loan from Habib Bank we purchased [Highgate] for£45,000 ……The property was put into my name.…… [11] I planned ….. to develop [Highgate]. My total investment came to£67,000 . The costs to develop [Highgate] was£122,000 . I introduced a trading partner, Mr Abbas Bharwani, who invested£55,000 into the business for the work. [12] On3 March 1998 , we opened Karachi Fried Chicken trading from [Highgate]. It was agreed that the partners would split profits and losses commensurate with what they had invested. I received 49%, abbas Bharwani 40% and [C] 11%. I was running the business as a sole trader initially and took sole responsibility for all loans and bills for the business. [13] In January 2001, I paid Abbas Bharwani£95,000 for his investment in [Highgate] and took over his share of the business. The agreement for this is at SH1”
“Yes I was [at the restaurant on 4 November]. I remember now. I was helping [C] when the 3 sons came down upset. Ali Abbas said they had a problem with their uncle whilst holding a bunch of keys in his hand and he asked me to take the keys to [D1]. I went over there and called [C] and said I can’t find the van. Ali Abbas told his dad it was parked in Grove Road. I went there just behind the Mosque. I miscalled C who called me back. I called D1 and said come over. I phoned [C] and said son left problem. [C] and Ali Abbas swearing and I said come over and apologise to uncle. If I wasn’t at the restaurant how could they have given me the keys. They said on phone going to force [D1] to sign over the land. I was on speaker phone. ….. I do not know about criminal court case. Yes I know about that…..”
“[5.1] …….. In 2009, an agreement was reached…. That the First Defendant would transfer legal title in 126 Highgate Road into the joint names of the parties. It was agreed that the Claimant would pay the sum of£250,000 for a 50% interest in the [p]roperty….. the effect of this agreement…… was one of the following: [5.1.1.] that the Claimant and the First Defendant would hold the legal title to 126 Highgate Road on trust for the First Defendant as sole beneficiary until such time as the sum of£250,000 was paid to the First Defendant by the Claimant; alternatively, [5.1.2] that the£250,000 was to be treated as a loan by the First Defendant to the Claimant for the purchase of a 50% share in 126 Highgate Road. The Amended Defence makes no mention of it being part of the agreement that C would also acquire a 50% share in the Business in exchange for the payment of the sum of£250,000 . It was only during his oral evidence that D1 claimed that he was the sole owner of the Business and the payment of£250,000 was for C to acquire a 50% interest in “Highgate Road, the building, the business, the lot.”
“I was coming and going and so I allowed [C] to run [the Business] and so probably had to give him a bit more. 50% of the profit.”
“…….. The instruction I had were that both brothers had agreed that three properties they owned jointly were to be split between them. One was to get one property and one the other. The third, the one that has given rise .to the problem that now exits was to be split into two equal parts. Finally [C] was to make a small, delayed payment to his brother by way of a post dated cheque. There was a tenancy in common restriction in the registers of all three properties. Having had a problem with the Land Registry in the past when attempting to register transfers of part where there was no consideration I advised that there be two transfers in respect of Tilt Hammer. The first was to be of all the land into the name of one brother alone with the restriction being removed and once that had been registered a transfer of part. I made [D1] the transferee in the TR1 because I understood [C] was going abroad and thought if any queries were raised by the land Registry they could be dealt with easier if [D1] was available rather than wait for his brother to return. I have subsequently been told by [C] he wasn’t going abroad so my understanding must have been incorrect. I prepared transfers based on the instructions I was given and as you say, on or about8th November 2015 the two brothers and a Mr Javid came to my office. All the transfers were signed. You say [C] signed the 9th and 10th transfers but he only signed the first. It was just [D1] who signed the 10th November one. After the 9th November transfer had been registered I spoke to [D1] and told him the registration had been completed and I was in the process of registering the TP1. He said there was an outstanding query he had with his brother and they would come back to me when it had been resolved. He did not say then what it was but has subsequently. Instead of chasing up the matter I did nothing until [C] contacted me earlier this year…….. [C] instructed me to sort the problem out and I said I would do all I could to do so. He did tell me that he was not prepared to honour the bounced cheque he had given his brother. ………”
“…… We had prepared a TP1 similar to the one dated10th November 2015 with the limited company as the transferor. [D1] had said and still does that he will sign this when you client honours the cheque he bounced. We did raise this with [C]…. But he said he would not. As there is an impasse on that we are unable to do more. …….”
“[34] We well understand how the Recorder's suspicions were aroused. However, in the absence of good reason a Judge ought to be extremely cautious before making conclusive findings of fraud unless the person concerned has at least had the opportunity to give evidence to rebut the allegations. This is a matter of elementary fairness. In Vogon International Ltd v the Serious Fraud Office[2004] EWCA Civ 104 at [29] May LJ (with whom Lord Phillips MR and Jonathan Parker LJ agreed) said, "It is, I regret to say, elementary common fairness that neither parties to the litigation, their counsel nor judges should make serious imputations or findings in any litigation when the person concerned against whom such imputations or findings are made have not been given a proper opportunity of dealing with the imputations and defending themselves." [35] This is not only required because of fairness to the party affected but also to avoid the Court falling into error – see for instance Co-operative Group (CWS) Ltd v International Computers[2003] EWCA Civ 1955 at [ 38]. As Megarry J memorably said in John v Rees[1970] CH 345 , 402, "As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were answered; of inexplicable conduct, which was fully explained…Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events".” "It is, I regret to say, elementary common fairness that neither parties to the litigation, their counsel nor judges should make serious imputations or findings in any litigation when the person concerned against whom such imputations or findings are made have not been given a proper opportunity of dealing with the imputations and defending themselves." "As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were answered; of inexplicable conduct, which was fully explained…Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events".” c. In my judgment, it is simply unfair to raise very serious allegations of dishonesty against Mr McLachlan and Mr Ishfaq indirectly in the course of oral evidence without giving them the opportunity to respond. If the defendants wished to raise allegations against Mr McLachlan and Mr Ishfaq that required to be answered, D1 ought to have called them to give evidence (waiving privilege); and d. Further, if true, that D1 only decided to execute the TP1 in direct response to the assurances sought by C during the course of the GQS Meeting, it must follow that the TP1 was drafted by Mr McLachlan during the course of the meeting itself. Indeed, in his oral evidence, Mr Saqlain Hussain said for the first time that it was during the meeting that his father first instructed Mr McLachlan to prepare the TP1. However, it was D1’s oral evidence that Mr McLachlan “was never aware of the£250,000 ……. He was just doing the conveyancing. Just paying him to do a job……. He did not know anything about any payment whether a cheque. We never mentioned anything but the conveyancing…. We never discussed anything apart from the conveyancing.”
“I had some money from the business. Possibly from my bank. I can produce something. Can’t remember which bank. It came from myself from house. Had more than£5,000 in house when gave it to [D1] but that all he asked for. My Mum had more money – her money and my money the same….Family money more than£5,000 in the house………Mum might have£7,000 to£8,000 . Between us might have say£14,000 to£15,000 ……Yes I could have put more money in but didn’t want to.£3,000 from my or my Mrs account. Would need to check which branch in Solihull. See what I can do to check.”