“The director holding office at31 March 2001 did not hold any beneficial interest in the issued share capital of the company at17 March 2000 or31 March 2001 .”
“The director holding office at31 August 2002 did not hold any beneficial interest in the issued share capital of the company at29 August 2001 or31 August 2002 ”
“My mother knew about them and cooperated because it was always known between us that the companies were my businesses.”
“of the situation whereby your mother is going to gift you the flat at [22 BM]. You explained that this is really just putting things right because you put the property in your mother’s name when you first bought it so that your partner at the time could not make any claim on it.”
“[39] There is now a considerable body of authority setting out the lessons of experience and of science in relation to the judicial determination of facts. Recent first instance authorities include Gestmin SGPS SA v Credit Suisse (UK) Ltd[2013] EWHC 3650 (Comm) (Leggatt J, as he then was) and two decisions of Mostyn J: Lachaux v Lachaux[2017] EWHC 385 (Fam) [2017] 4 WLR 57 and Carmarthenshire County Council v Y[2017] EWFC 36 [2017] 4 WLR 136 . Key aspects of this learning were distilled by Stewart J in Kimathi v Foreign and Commonwealth Office[2018] EWHC 2066 (QB) at [96]: “i) Gestmin: (1) We believe memories to be more faithful than they are. Two common errors are to suppose (1) that the stronger and more vivid the recollection, the more likely it is to be accurate; (2) the more confident another person is in their recollection, the more likely it is to be accurate. (2) Memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is even true of “flash bulb” memories (a misleading term), i.e. memories of experiencing or learning of a particularly shocking or traumatic event. (3) Events can come to be recalled as memories which did not happen at all or which happened to somebody else. (4) The process of civil litigation itself subjects the memories of witnesses to powerful biases. (5) Considerable interference with memory is introduced in civil litigation by the procedure of preparing for trial. Statements are often taken a long time after relevant events and drafted by a lawyer who is conscious of the significance for the issues in the case of what the witness does or does not say. (6) The best approach from a judge is to base factual findings on inferences drawn from documentary evidence and known or probable facts. “This does not mean that oral testimony serves no useful purpose… But its value lies largely… 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”. ii) Lachaux: (7) Mostyn J cited extensively from Gestmin and referred to two passages in earlier authorities. The dissenting speech of Lord Pearce in Onassis and Calogeropoulos v Vergottis[1968] 2 Lloyd’s Rep 403 , 431; Robert Goff LJ in Armagas Ltd v Mundogas SA[1985] 1 Lloyd’s Rep 1 , 57. I extract from those citations, and from Mostyn J’s judgment, the following:- (8) “Witnesses, especially those who are emotional, who think they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason, a witness, however honest, rarely persuades a judge that his present recollection is preferable to that which was taken down in writing immediately after the incident occurred. Therefore, contemporary documents are always of the utmost importance…” (9) “…I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective fact proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities…” (10) Mostyn J said of the latter quotation, “these wise words are surely of general application and are not confined to fraud cases… it is certainly often difficult to tell whether a witness is telling the truth and I agree with the view of Bingham J that the demeanour of a witness is not a reliable pointer to his or her honesty.” iii) Carmarthenshire County Council: (11) The general rule is that oral evidence given under cross-examination is the gold standard because it reflects the long-established common law consensus that the best way of assessing the reliability of evidence is by confronting the witness. However, oral evidence under cross-examination is far from the be all and end all of forensic proof. Referring to paragraph 22 of Gestmin, Mostyn J said: “…this approach applies equally to all fact-finding exercises, especially where the facts in issue are in the distant past. This approach does not dilute the importance that the law places on cross-examination as a vital component of due process, but it does place it in its correct context. [40] This is not all new thinking, as the dates of the cases cited in the footnote make clear. Armagas v Mundogas, otherwise known as The Ocean Frost, has been routinely cited over the past 35 years. Lord Bingham’s paper on “The Judge as Juror” (Chapter 1 of The Business of Judging) is also familiar to many. Of the five methods of appraising a witness’s evidence, he identified the primary method as analysing the consistency of the evidence with what is agreed or clearly shown by other evidence to have occurred. The witness’s demeanour was listed last, and least of all. [41] A recent illustration of these principles at work is the decision of the High Court of Australia in Pell v The Queen [2020] HCA 12. That was a criminal case in which, exceptionally, on appeal from a jury trial, the Supreme Court of Victoria viewed video recordings of the evidence given at trial, as well as reading transcripts and visiting the Cathedral where the offences were said to have been committed. Having done so, the Supreme Court assessed the complainant’s credibility. As the High Court put it at [47], “their Honours' subjective assessment, that A was a compellingly truthful witness, drove their analysis of the consistency and cogency of his evidence …”
"I question whether the respect given to our findings of fact based on the demeanour of the witnesses is always deserved. I doubt my own ability, and sometimes that of other judges, to discern from a witness's demeanour, or the tone of his voice, whether he is telling the truth. He speaks hesitantly. Is that the mark of a cautious man, whose statements are for that reason to be respected, or is he taking time to fabricate? Is the emphatic witness putting on an act to deceive me, or is he speaking from the fullness of his heart, knowing that he is right? Is he likely to be more truthful if he looks me straight in the face than if he casts his eyes on the ground perhaps from shyness or a natural timidity? For my part I rely on these considerations as little as I can help." "
"Psychologists and other students of human communication have investigated many aspects of deceptive behavior and its detection. As part of this investigation, they have attempted to determine experimentally whether ordinary people can effectively use nonverbal indicia to determine whether another person is lying. In effect, social scientists have tested the legal premise concerning demeanor as a scientific hypothesis. With impressive consistency, the experimental results indicate that this legal premise is erroneous. According to the empirical evidence, ordinary people cannot make effective use of demeanor in deciding whether to believe a witness. On the contrary, there is some evidence that the observation of demeanor diminishes rather than enhances the accuracy of credibility judgments."
“1.3 Witnesses of fact and those assisting them to provide a trial witness statement should understand that when assessing witness evidence the approach of the court is that human memory: (1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but (2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore (3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.” (1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but (2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore (3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.”
“3.2 Any trial witness statement should be prepared in such a way as to avoid so far as possible any practice that might alter or influence the recollection of the witness other than by refreshment of memory as described in paragraph 2.6 above”
“10. Before the jury may use an alleged or admitted lie against D, they must be sure of all of the following: (1) that it is either admitted or shown, by other evidence in the case, to be a deliberate untruth: i.e. it did not arise from confusion or mistake; (2) that it relates to a significant issue; and (3) that it was not told for a reason advanced by or on behalf of D, or some other reason arising from the evidence, which does not point to D’s guilt.” (1) that it is either admitted or shown, by other evidence in the case, to be a deliberate untruth: i.e. it did not arise from confusion or mistake; (3) that it was not told for a reason advanced by or on behalf of D, or some other reason arising from the evidence, which does not point to D’s guilt.”
“ES: just for reference I’m in the corridor of Bloomsbury Mansions, Afiz…it’s now Thursday, no it’s Wednesday 21st of September. Afiz is this Wednesday the 21st? I’m recording this because you’re going to say something and maybe I’m going to say something, so you should…it’s good for you because I know how you play now. VW: I know how you play that as well [laughs]. Anyway, I am coming to see this security, I want to know about you see me and I expected you to follow me and talk about it. But if you don’t talk it doesn’t matter. ES: oh, so you walk away, I said come on come here. VW: yes ES: oh, right ok. And you need me to chase you? VW: correct ES: ok VW: we didn’t see each other for 4 years ES: and why is that? VW: yeah, you know why, I know why, that’s it. ES: you have your version, I have mine. VW: yeah, but I want to tell you one thing, son, you can open this for Helen, you don’t know about Helen, I know really well now. I loved her dearly. When you have affair with Tanya, she the one tells me to keep away from you and tell me to keep you out. But end of the day you, my son. ES: what’s this got to do with what you’re doing now? VW: Yeah, because you remember when I said to you, I need number 3 Chargrove Close, and I want£50,000 Kwan borrowed from me but then returned back to you see you [INAUDIBLE] like this. Oh my, that’s it. Message to the fight. It’s ok Ekk now I make up my mind. You still young and I am old right and I work to death, but good thing we can melt everything and then you can start, I’m going to die soon. I don’t bother now because at the end of the day you the one set up everything not me. ES: you’re saying that, why are you saying that on the recording. Why would you say that because you told everyone that it was you. VW: yeah ES: why would you say that? VW: See… ES: I’m reminding you that this is being recorded VW: Yeah, I know that ES: And you don’t have your lawyer with you VW: No ES: So, I’m reminding you VW: I tell you the truth. I asked you for number 3 Chargrove Close, next door because I want to live there. But now no more, we have to fight because you still got income, you still got everything. You remember that letter you sent it to me for say “I’m old, I lost my memory”
“ 48.My mother says that she does not recognise her signatures on some of the incorporation documents, and they are forged. That is not true. She signed the documents and she knew what they were for…. 54. [As regards share transfers out of Wanda’s name and the transfer of 40% of the Finfish Ltd shares from Wanda to Anglo Thai Ltd]: At the time this did not change the overall shareholding in the companies in my mother’s name. But after my divorce from my first wife was finalised, I took steps to transfer the ownership of the companies back into my name. My mother knew about them and cooperated because it was always known between us that the companies were my businesses.” 82. As for the companies, my mother’s case seems to be that she did not know I had taken over ownership of them until her lawyer’s investigated. But on her own evidence, she has always known that I had effective control over their money and their company affairs, so I have always been able to do what I want with them.”
“86. My mother had no involvement in these decisions but she knew about them, because I told her. We were very close at the time. As far as I can remember, she did not sign any stock transfer form. I do not believe that we issued share certificates in Finfish or Anglo Thai, and I do not remember using stock transfer forms for any of the transfers of shares. I just notified Companies House online of the change in ownership. That was in the annual return that I filed on12 March 2007 . I did not know that anything else was required.”
“When I saw the Forms 288a last year appointing Roy Wilford as a director of Anglo Thai Limited and Finfish Catering Limited, this came as a complete surprise to me. Again, they are my signatures but I have no recollection that Roy was ever a director of these companies and, in any event, he never took any role in the businesses. I believe this was something which Eggy and Roy Wilford must have come up with themselves and another document Eggy asked me to sign for the business without me appreciating what it was. Sadly, Roy has passed away so he is not around to explain what was going on.”
“The director holding office at31 March 2001 did not hold any beneficial interest in the issued share capital of the company at17 March 2000 or31 March 2001 ”
“Whereas the Legal and Beneficial owner is the owner of the said Property referred to above and has been the owner of all the Beneficial Interest in the Property since 2004 and is desirous of declaring that she holds the Beneficial Interest in its entirety for the Beneficiary.”
“If, however, a party has been misled into executing a deed or signing a document essentially different from that which he intended to execute or sign, he can plead non est factum in an action against him. The deed or writing is completely void in whosesoever hands it may come. In most of the cases in which non est factum has been successfully pleaded, the mistake has been induced by fraud. But the presence of fraud is probably not a necessary factor.210 As Byles J said in Foster v Mackinnon 211: “… it is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signor did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended.”
“The “key elements” for a successful plea of non est factum have been summarised thus: (a) the belief of the signer that the person is signing a document of one character or effect whereas its character and effect were quite different; (b) the need for some sort of disability which gives rise to that state of mind; (c) the plea cannot be invoked by someone who does not take the trouble to find out at least the general effect of the document.”
“when my sister and I inherited some property from my father in Thailand. I could not take legal ownership because I am not a Thai national and so my mother took it and from the proceed she paid her sister.”
“ reassure Wisit and make sure he understood that if I could not raise money from selling Thai property I would sell my flat in Pembridge Gardens, to give him every assurance that I was good for it.”
“Before a year was out, she went to Thailand to pay back the loan as quickly as possible. She managed to sell some of my inheritance property to pay back part of it and she got a loan from her half brother to pay back the rest.”
“Mymother said that not all of the property was sold at this time. Every time she came back from Thailand she would tell me what had been sold off and approximately how much money was in the bank”