Amr Danyall Marshal & Ors v Awais Javed & Ors [2025] EWHC 3195 (Ch)

[2025] EWHC 3195 (Ch)Case No BL-2023-001501
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane,Date 5 December 2025
London, EC4A 1NL
Before
HHJ PAUL MATTHEWS(sitting as a Judge of the High Court)
Between
AMR DANYAAL MASHALClaimantsABDUR RAHMAN HASSAN MASHALClaimantSUMAIA MASHALClaimantHARF LIMITEDClaimantAWAIS JAVEDDefendantsZED BUSINESS SOLUTIONS LIMITEDDefendantZED RENTAL SOLUTIONS LIMITEDDefendant
Jeff Hardman (instructed by Brecher LLP) for ClaimantsThe First Defendant appeared in person for in personThe Second and Third Defendants were neither present nor representedHearing Hearing date: 3 December 2025
This judgment was handed down remotely at 10:30 am on 5 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National ArchivesHHJ Paul Matthews :

Introduction

[1]On 3 December 2025, I conducted a pre-trial review of this claim, which is listed for trial in a five-day window beginning on 12 February 2026. The main question which will arise at the trial is whether monies paid over by the claimants to the defendants were so paid for the purposes of investment by the defendants on behalf of the claimants (as the claimants say) or paid for the purposes of settling a debt incurred by the claimants’ father towards the defendants (as the defendants say). The claimants’ claims are both to a proprietary interest or interests in three properties held by the defendants, and also for accounting and personal remedies as well.[2]The matter is complicated by the fact that, on 6 November 2025, the first defendant (who was a practising solicitor) applied for his own bankruptcy, and he was adjudicated bankrupt on 21 November 2025. Nevertheless, he appeared in person at the pre-trial review. The Official Receiver was aware of the hearing but indicated that she would not be taking part. The second and third defendants are companies which were formerly controlled by the first defendant, but to which administrative receivers were appointed by the first defendant earlier this year. They were not present or represented either.[3]The claim began in September 2023. Last year, on 8 August 2024, Master Brightwell gave directions to trial. Some of the directions which he gave were concerned with forensic accountancy evidence:
“25. Each party has permission to adduce expert evidence in the field of forensic accounting to trace the Investment Monies and related expenses limited to one expert on each side. 26. By 4 PM on [27 June 2025] the parties are to simultaneously exchange their expert’s reports. 27. Unless the reports are agreed, the experts are to hold discussions on a without prejudice basis in accordance with rule 35.12 by [4 July 2025] in order to identify the issues between them and reach agreement if possible. 28. The experts shall, by 4 PM on [18 July 2025], prepare a joint statement showing the issues on which they agree the issues upon which they disagree (including a summary of their reasons for disagreeing). [ … ]”
[4]The dates shown in square brackets in paragraphs 26, 27 and 28 above are the dates to which the original dates in those paragraphs were extended by subsequent orders of the court. By paragraph 15 of the particulars of claim the monies alleged to have been paid over by the claimants to the defendants (which they say amounted to £834,023), were defined as the “Investment Monies”. I therefore assume that this is what is meant by the same phrase in paragraph 25 of the order of 8 August 2024.[5]The claimants have taken advantage of this permission, and a report has been produced by Martin Chapman, a chartered accountant and a partner in the Forensic Services Team at Crowe UK LLP. The defendants have not commissioned any similar report pursuant to this permission. The first defendant at the pre-trial review told me that he did not know whether he would be participating in the trial, but that he did not intend to instruct a forensic accountant to prepare a report. That means that the needs for the discussions and joint statement provided for in paragraphs 27 and 28 fall away. Moreover, I see no need for Mr Chapman to attend for cross-examination. The trial timetable has been adjusted accordingly.

The court’s approach to the forensic accountancy evidence

[6]The purpose of this short judgment is simply to explain, for the benefit of the parties, but also for that of the trial judge (which is unlikely to be me), the approach which I have taken to the forensic accountancy evidence in this case.[7]In paragraph 2.1.2 of his report, Mr Chapman sets out the main contentions of the parties:
“The Claimants (or companies under their control) transferred £834,000 to the Defendants which I reference in this report as ‘Investment Money’, which they allege was there 50% share for investing in properties identified by the Defendants, while the Defendants argue such sums were repayment of a Mashal family debt and no such arrangement was in place.”
Then Mr Chapman goes on to say, at paragraph 2.1.3 of his report:
“My instructions are not to consider the allegations made by the Claimant’s or Defendants in respect of the purpose of the Investment Money, but rather to analyse the movement of funds and how they were used.”
[8]The form of Mr Chapman’s report, which is in substance some 40 pages long, is to consider the documentary evidence available to the claimants, including records of the bank accounts held by the defendants, and to synthesise the information contained in those documents to summarise the available evidence(i) of payments made by the claimants to the defendants,(ii) of the purchase of the three properties with which the claimants are mainly concerned,(iii) of the costs of the renovation of those properties,(iv) tracing the flow of funds from the claimants through the defendants’ hands and onward into particular applications of funds, and(v) of rental income earned by those three properties.[9]This is, if I may say so, a classic exercise in forensic accountancy, and it is well presented. But the difficulty which I have with it is simply that, except in one or two insignificant respects, it does not appear to me to be expert evidence at all. Instead, it appears to me to be, at best, hearsay evidence of fact. It is hearsay because the underlying documents themselves are the primary evidence, and Mr Chapman is simply reporting (some of) what they say. He is not adding any expert opinion of his own in doing so, such as a scientist might do in explaining a chemical process, or an interpreter might do in explaining what is meant by something written or spoken in a foreign language. He is simply making information contained in a great many existing documents more digestible for the parties and the judge by reducing them to a tabular or summary format.

Expert opinion evidence

[10]Here I think I need to go back to first principles. Opinion evidence has long been generally inadmissible in English law: Carter v Boehm (1766) 3 Burr 1905, 1918. But expert evidence is a form of opinion evidence that is admissible, under certain limited conditions. As it is put in s 3(1) of the Civil Evidence Act 1972, “Subject to any rules of court made in pursuance of … this Act, where a person is called as a witness in any civil proceedings, his opinion on any relevant matter on which he is qualified to give expert evidence shall be admissible in evidence.”[11]The first point therefore is that expert evidence within section 3 can be tendered only by someone who is qualified as an expert. This is someone who, according to Evans-Lombe J in Barings plc v Coopers & Lybrand [2001] PNLR 22, [45], “satisfies the court that he has a sufficient familiarity with and knowledge of the expertise in question to render his opinion potentially of value in resolving any of” the issues in the case. That does not mean that the expert must possess formal qualifications in that discipline. Practical experience may be sufficient in some cases: see eg R v Silverlock [1894] 1 QB 76, CA; R v Oakley (1979) 70 Cr App R 7, CA.[12]But not all expertise counts for this purpose. The “expertise in question” must be “a recognised expertise governed by recognised standards and rules of conduct capable of influencing the court’s decision on any of the issues which it has to decide” (Barings plc v Coopers & Lybrand [2001] PNLR 22, [45]; see also The RBS Rights Issue Litigation [2015] EWHC 3433 (Ch), [13]-[14]).[13]It will be noted that someone who does possess a recognised expertise is an expert for this purpose only when giving an opinion within that expertise. A qualified and experienced lawyer has no basis for giving expert evidence of, say, property valuation, merely by reason of possessing that legal expertise. An accountant may be an expert within a particular field (for example in relation to the preparation of accounts and conformity with relevant standards), but is not without more an expert in relation to anything which lies outside that field (for example expertise in demergers): see egDe Sena v Notaro [2020] EWHC 1031 (Ch), [157].

Application to this case

[14]Mr Chapman, as a qualified and experienced accountant, is no doubt an expert in the sense described above. But I do not myself consider that what Mr Chapman has done here has been done in the exercise of any “recognised expertise governed by recognised standards and rules of conduct” etc. he has reviewed the available documents, extracted relevant information, and reorganised it in a more easily digestible format. This usually saves a great deal of time in court.[15]However, when I first started in legal practice, it was the lawyers themselves who prepared such tabular and other diagrammatic aids to a more rapid understanding of the words or figures or other information contained in the documents which would be available in evidence at the trial. Counsel used them as part of their submissions to the court on the facts. Gradually, however, accountants have taken over more and more of this part of trial preparation.[16]In my view this is all perfectly proper, and indeed usually very helpful. But I still do not think that it amounts to expert evidence of anything. If Mr Chapman were to include in his report comments and criticisms of accounting statements made by corporate bodies, partnerships, trustees and others, relying on his training and his experience as an accountant to do so, then (to that extent) it would, or at least might, be different.[17]I mentioned above that there were one or two instances of Mr Chapman going beyond purely factual matters, and giving his opinion, although I described these as “insignificant”. These are occasions when Mr Chapman goes beyond describing what the documents say, and offers his own opinions as to what the effect of them is. For example, at paragraph 4.2.22 Mr Chapman says:
“As the Covert Road purchase was settled by cash, all coming from Investment Money, I consider the Claimants hold beneficial ownership 100%.”
[18]That is not an opinion on any accountancy matter in which Mr Chapman can claim to be an expert. Instead, it is an opinion of law, in which (so far as I can see from his CV) Mr Chapman is not qualified. (Even if he were, he still could not give the court his opinion, though that is because there is a rule that the court does not receive expert evidence of English law: Marquess Camden v IRC [1914] 1 KB 641, 647-50; Midland Bank Trust Co Ltd v Hett, Stubbs & Kemp [1979] Ch 384, 402.) He says much the same thing again four paragraphs later, at 4.2.26, last sentence, in relation to the property at Aidan Close.[19]Another example is to be found at paragraph 6.2.1, where Mr Chapman says:
“When undertaking my tracing exercise, I have adopted a FIFO (First In, First Out) approach, whereby the money received first into an account is assumed to fund subsequent payments until it has been fully utilised.”
Once again, the adoption of such an approach to payments made is a matter of law, and Mr Chapman cannot give “evidence” of it. He can no doubt give (hearsay) evidence of the details of the various payments in and out of the account. It will then be for legal submissions, and for the judge to decide, whether or not to adopt that approach.[20]Lastly, I make clear, for the sake of completeness, that I have not considered the applicability to the present case of the provisions of the Civil Evidence Act 1995 and the CPR requiring the service of a notice to other parties before hearsay evidence is adduced. That seems to me to be more a matter of machinery than substance, and, in any event, the trial judge may take a different view from me about the status of the report.

Conclusion

[21]It follows that I do not consider that the usual kind of evidence of a forensic accountant, such as the report of Mr Chapman in the present case, requires permission under CPR Part 35. This is because it is simply not expert evidence. It may however (depending on its terms) amount to a commentary on the documents in the case, in which case, as freestanding evidence, it may encounter problems under CPR PD 57AC, Appendix, paragraph 3.6. If, however, such reports are presented as part of the submissions of the party who commissioned them, so that they are not evidence at all but simply submissions, then (as it seems to me) they will not fall foul of that practice direction. Whether the procedural rules should be amended so as better to accommodate such hearsay evidence of fact (and, if so, how, and to what extent) is of course not a matter for me, and I express no view.

Cited in 2 later judgments