“1. The Property was, prior to the death of the Deceased, owned by the Deceased and the Defendant as joint tenants, such that the Property passed to the Defendant by survivorship upon the Deceased’s death in June 2019.”
“(i) Not to touch or use the Claimant’s belongings without permission; (ii) Not to change the locks at the Property; (iii) Not to turn off the washing machine in the Property: (iv) Not to disconnect the wi-fi in the Property; (v) Not to harass the tenants or other visitors at the Property; (vi) To allow the Claimant peaceful and quiet enjoyment and occupation of the Property;”
“Good morning uncle I need your help I am trying to find any additional evidence regarding the purchase of my home 1 Cicely Road Did my dad forward you any letters or correspondence between him and Mary? I tried to gain access to my dad’s computer but Mary has unplugged it and I cannot find the power lead.”
“[79] For my part, although expressed in different language, I do not detect any real difference of principle between the approach of Lord Phillips MR in Hamilton v Al Fayed and that in Transview Properties as endorsed in Ras Al Khaimah. Both emphasise that the Court of Appeal will not admit new (fresh) evidence on appeal unless that evidence would probably have had an important influence on the result in the court below. I consider that to be synonymous with there being a real danger that the result below would have been different. The cases also show that in exercising its discretion the Court of Appeal will be concerned to strike a balance between the need for finality in litigation and the need for the judicial process to achieve the right result. [80] In striking that balance between the desirability for finality and achieving the right result, the Court of Appeal will take into account all the circumstances. So, for example, it may take into account the reasons for the new evidence coming to light and the conduct of the parties generally. If, as in the instant case, the reason why the new evidence was not available at trial was as a result of a failure by the successful party to disclose it in accordance with their obligations under the CPR prior to the trial, the arguments for the new evidence to be admitted in the interests of justice are likely to be stronger than if the evidence has become available from an independent source. The Court of Appeal may also take into account any delay in making the application, its proximity to the appeal hearing and whether the party facing the application is able to deal with it properly. As indicated in Transview Properties, the court can also take into account the general nature of the litigation and the burden on the parties of ordering a retrial.”
“[81] I also do not think that this approach is significantly different or requires to be modified by reference to Dale v Banga. That case concerned the question of what should be done by an appeal court where it is contended that fresh evidence, which does not go directly to the issues in the case, shows that the trial judge was deliberately misled. Dale v Banga concerned the attestation of a will and the case turned on the credibility of witnesses. The fresh evidence was said to show that a crucial witness that the judge had believed actually had a propensity to forge documents and act dishonestly in other aspects of his life. In such a case it is self-evident that the Court of Appeal would have to be satisfied, as a threshold question, that the fresh evidence was capable of supporting a pleading that the witness had deliberately misled the judge, and that such deception was causally linked to the result of the trial. [82] Although necessarily expressed in different terms, I do not consider that the approach to the threshold question identified in Dale v Banga is more rigorous than the requirement in Ladd v Marshall that new evidence which does go directly to the issues in the case under appeal should be apparently credible and would probably have had an important influence on the result. [83] I would also note that the approach to the exercise of the discretion whether to order the trial of the fraud issue by the lower court was said in Dale v Banga to be a broad one, to be exercised in light of all the circumstances. In my view that corresponds to the residual discretion whether to admit new evidence if it would lead to a retrial, as identified in Ras Al Khaimah.”
“I am writing you this letter to demand what I deserve. I want you to give me a bigger share of the house 1 Cicely Road. I deserve more than 1% and I will get what I want one way or another.”
“Whatever empty threats you make will not make me change our agreement. You do not even deserve the 1% I gave you because you have contributed nothing towards the mortgage.”
“GIVE ME A BIGGER PERCENTAGE WHAT IS YOUR PROBLEM Even if I had only 10%, you would still have 90% of 1 Cicely Road.. Why are you so greedy?” (2) There is an email from the Respondent to Peter, apparently sent on27th February 2009 , which is headed, “Only 1% for your ex-wife”, and contains the following statement: “Give me at least 10% ownership of 1 Cicely Road because 1% is too small. Are you seriously this wicked? I think your witch mother is controlling you” (3) There is an email from the Respondent to Peter, apparently sent on19th March 2009 , which is headed, “Greedy man and his 99% share”, and contains the following statement: “Greedy man I hope you are proud of yourself 99% for Mr Enulue and he gave his ex-wife just 1%. Greedy greedy greedy. You have the kids, you have the house. Everything for Mr Enulue. Just give me 10% for goodness sake.” (4) The response from Peter to the emails from the Respondent, apparently sent on31st March 2009 , contains the following statement: “I have seen all of your e-mails and I am not interested in talking to you about my house. 1% is all that you will ever have. You have your own home Oakdene.”
“7. The documents I seek permission to rely on were discovered in my late father’s briefcase. I found them over the weekend on 10/11 August 2024 . The reason I did not discover the documents sooner is because the briefcase was not made available by the Defendant. I did not know it existed until I found it by chance in the loft at the Property, having become suspicious after seeing my sister coming out of the loft. It was only after I obtained legal advice and was considering this appeal that I searched in the loft for anything that might be relevant. I found the briefcase and I refer to the photographs of the documents within the briefcase which are at ACP1/1-51.”
“10. I did not have access to my late father’s computer at trial. That is because it was in the Property’s living room. The circumstances surrounding the Injunction Claim are set out in my witness statement in support of it at page 103 of the trial bundle. The Defendant moved into the Property unannounced in May 2022 and took up residence in the living room. She would lock the living room door to prevent me from accessing it. The Defendant and I then gave undertakings to each other in the Injunction Claim and I undertook, amongst other things, not to touch or use the Defendant’s belongings and to allow her peaceful and quiet enjoyment and occupation at the Property. I gave these undertakings on24 June 2022 and they still apply. 11. My late father's computer is a desktop computer which used to be placed on his small computer desk in the Property’s living-room. The computer desk itself seems to still be inside the living room as I have not seen it. After judgment had been handed down in this claim, I noticed that the Defendant was beginning to tidy-up and she had placed various items outside of the living room. One of the items that I noticed was my late father’s computer. The Defendant had disconnected it from the monitor and I could not find the cables to connect it to power or a monitor. I retrieved the computer over the weekend on 10/11 August 2024 . On that same weekend, I managed to connect the computer to a power source and turn it on. I had to connect the computer to my television to see the display.”
“17. Uncle Mike was my late father’s brother. I sent him a WhatsApp message on9 August 2024 . I told him I needed his help and that I was trying to locate letters and emails between my late father and the Defendant. Screenshots of our WhatsApp conversation are at ACP1/60-61 and blown-up screenshots of the emails Uncle Mike sent to me are at ACP1/62-64. 18. Uncle Mike sent me screenshots of 3 emails my late father had forwarded to him. These emails were sent to my late father in February and March 2009 and appear to be part of the same series of emails in category 2 above and one of them is identical. They were forwarded to Uncle Mike by my late father on1 January 2019 from his email account, peter.enulue@ntlworld.com. This account is said to be linked to my late father’s computer. Having done some brief internet research, I see that NTL merged with Telewest in March 2006 to become NTL:Telewest, which then merged with Virgin Media in June 2006 and was rebranded as Virgin Media in February 2007. It therefore makes sense to me that the screenshots in category 2 are of a Virgin Media dashboard but that the emails forwarded to Uncle Mike by my late father came from an NTL email address. 19. I did not have the emails forwarded to Uncle Mike at trial because I had not asked him for them. I did not know of their existence at the time of trial and had not received any legal advice at the time.”
“Good morning uncle I need your help I am trying to find any additional evidence regarding the purchase of my home 1 Cicely Road Did my dad forward you any letters or correspondence between him and Mary? I tried to gain access to my dad’s computer but Mary has unplugged it and I cannot find the power lead.”
“88. The one strand that was not expressly brought into consideration was the inherent likelihood or unlikelihood of the Guarantee having been signed by someone on the Bank side, as opposed to someone on the Ruskin side. Inherent probability of one or other side’s factual account being correct is a valuable and important consideration in a case where fraud or forgery is alleged. It was particularly important in this case because the Judge’s factual conclusions meant that he felt impelled to say that the signature of Mr Lynch was appended by a person at the Bank. A finding of forgery carried out by an employee of a reputable company is a serious finding to make (particularly when the parties had agreed that there was no requirement to make it).”
“89. In Armagas Ltd v Mundogas SA (The Ocean Frost)[1985] 1 Lloyd’s Rep 1 , 57, Robert Goff LJ said: “Furthermore it is implicit in the statement of Lord MacMillan in Powell v Streatham Manor Nursing Home at p.256 that the probabilities and possibilities of the case may be such as to impel an appellant court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test the veracity by reference to the objective facts 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. It is frequently very difficult to tell whether a witnesses telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses motives, and the overall probabilities, can be a very great assistance to a judge in ascertaining truth. I have been driven to the conclusion that the judge did not pay sufficient regard to these matters in making his findings of fact in the present case.” “Furthermore it is implicit in the statement of Lord MacMillan in Powell v Streatham Manor Nursing Home at p.256 that the probabilities and possibilities of the case may be such as to impel an appellant court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test the veracity by reference to the objective facts 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. It is frequently very difficult to tell whether a witnesses telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses motives, and the overall probabilities, can be a very great assistance to a judge in ascertaining truth. I have been driven to the conclusion that the judge did not pay sufficient regard to these matters in making his findings of fact in the present case.”
“91. Having reached a conclusion that the documents were not strongly probative of the Bank’s case and that Mr Lynch and Ms Hughes appeared to be honest witnesses, the Judge was persuaded that the Guarantee document had never left the Bank and that therefore the signatures must have been forged within the Bank. The Judge was only partly supported in this conclusion by the expert opinion of Dr Radley. The Judge should have tested his provisional conclusion by reference to the undisputed facts, the possible motives of the parties and the inherent probabilities of the matter. 92. A judge does not have to deal expressly in a judgment with every issue and argument raised. It can usually safely be inferred that, without referring to them expressly, a judge had all the evidence and submissions in mind. I am left in doubt, however, whether the Judge did carry out the essential step described by Robert Goff LJ. I have re-read the judgment to try to find reassurance that the Judge did stand back and consider inherent probabilities. There is nothing to indicate that he did. The Judge’s finding that the signature was made by a person at the Bank was said to follow “logically” from the conclusion that the Guarantee was never provided to Mr Lynch (para 85). That suggests that the Judge did not do so. 93. I accept that this is not a case where the documents point forcefully against the Judge’s conclusion, but what is nevertheless missing is consideration of why someone at the Bank may have acted in that way, within such a short timescale, when the Bank had a contractual right to a guarantee. There was only one day between the first drawdown on the facility and the Guarantee being uploaded. It is hard to imagine why the signatures would have been forged before drawdown. The Judge would also have had to consider whether, if Mr Lynch did not sign his name, someone else on the Ruskin side might have done so and had a reason to do so. The Judge may have been deflected from that course because of his conclusion that the Guarantee did not leave the Bank, but it was right nevertheless to have tested his conclusion of forgery at the Bank by reference to that possibility.”
“94. Given what Dr Radley said about Mr Lynch’s signature and the flaws in the Bank’s evidential case, it cannot be said that any reasonable judge who carried out that evaluation would have reached the opposite conclusion to that of the Judge. There are too many evidential points at play in this case, some of which conflict. A final conclusion could only be made by a judge who heard the witness evidence. Nevertheless, the decision that the Judge reached is flawed because it does not appear that he considered the essential matters identified by Robert Goff LJ.”
“57. I should mention that Ms Joseph places reliance upon the fact that the Land Registry did not enter a restriction in Form A on the Register. She says that had there been an agreement to hold as tenants in common, evidence of it would have been submitted by Titus Miranda, and such a restriction would have been entered. Peter, she said, was meticulous and would have noticed if the documents received from the Land Registry after the purchase were incomplete or inaccurate, and would have followed it up. This seems a strong point to me, but Ashley’s response is that it may be the common practice of the Registry to enter such a restriction in such circumstances, but that it is not its invariable practice, so the point is not a conclusive one.”
“10. As to 8.3, while Mr Waistell has drawn to my attention that the Land Registry practice referred to in para 57 of my judgment post-dates the purchase of Cicely Road, I made it clear that I did not regard it as a conclusive point in the light of the submissions made to me at trial by Ashley. I would have come to the same conclusion even if the clarification which Mr Waistell has now provided had been available at trial.”
“63. In his closing submissions Ashley focused with some skill upon supposed inconsistencies in his mother’s evidence and submissions, and rightly suggested that her position, taken to its logical conclusion, involves multiple allegations of forgery (i.e. of the Will and the Purchase Agreement Form as well). This may be correct, although only the validity of the Trust Deed is directly before me.” 165. The Respondent’s position, namely that there had been serial acts of forgery and fraud was therefore put squarely before the Recorder, as were the alleged inconsistences in the Respondent’s evidence identified by the Appellant. 166. Paragraph 63 is material, in the context of Ground 3, for a separate reason. I have already concluded, in relation to the second argument in support of Ground 1, that the Recorder did go wrong in treating the validity of the Declaration of Trust as the only issue of validity which was before him. It is however clear that this error did not derive from a problem with the cross examination of the Respondent. It is clear that the Recorder understood that the Respondent’s case involved serial allegations of forgery and fraud. The Recorder’s error was not a failure to understand this, but rather a failure to take proper account of the inherent unlikelihood of these serial acts of forgery and fraud actually having taken place. 167. My analysis above derives support from what was said in this context by the Recorder in the PTA Judgment. The procedural failure in relation to the cross examination of the Respondent was put before the Recorder as a ground of appeal at the hearing to deal with consequential matters. At paragraph 16 of the PTA Judgment the Recorder accepted that the procedural failure had occurred: “16. It is unfortunately the case that the 94 questions filed in advance by Ashley (the ‘Questions’) did not reach me, and were not referred to at trial. I have considered that very detailed list of Questions. They give the strong impression of having been drafted by someone with trial experience (as did the questions put at trial by Ashley, who conducted a searching cross-examination of his mother).” 168. The Recorder then went on to say this, at paragraphs 17 and 18 of the PTA Judgment: “17. Many, but not all, of the topics covered by those Questions were addressed in cross-examination at trial, albeit in less detail, and without some of the specific references to documents identified in the list. Some of the topics covered by the list of Questions were however not addressed at all. 18. I now have to consider whether the failure to explore some of these Questions in cross-examination amounts to a serious irregularity, leading to injustice. I have concluded, with some hesitation, that it does not. It is most unfortunate that not all of the Questions raised in Annex 2 were explored, or explored in quite as much detail as they might have been, in cross-examination. Having now looked through them in detail, I consider it most unlikely that they would have led me to any different conclusion, for a number of reasons: a. The Questions, even where closely related to the transactions in question, are very much directed to inconsistencies in Ms Joseph’s evidence. I have made it clear however that I have taken note of the many loose ends and inconsistencies in the evidence relied upon by both parties. I do not consider that the identification of further factual inconsistencies would have made a difference to my overall impression of the evidence on the balance of probabilities. b. Under the heading ‘Mortgages’ Questions 34 to 55 relate to the manner in which the mortgage on Cicely Road was paid off. This topic was covered at trial, and I made clear at para 47 of my judgment that this particular dispute did not help me to resolve the issue of the nature of the original agreement between Ms Joseph and Peter at the time of purchase. c. Some of the Questions do not go to the transactions in question but are (further) attacks on Ms Joseph’s credibility, under the heading of ‘Paternity Fraud and Divorce’. It is most unlikely that these issues, even if covered in cross-examination, would have yielded answers that would have assisted me in relation to the issue of the authenticity of the Trust Deed.” a. The Questions, even where closely related to the transactions in question, are very much directed to inconsistencies in Ms Joseph’s evidence. I have made it clear however that I have taken note of the many loose ends and inconsistencies in the evidence relied upon by both parties. I do not consider that the identification of further factual inconsistencies would have made a difference to my overall impression of the evidence on the balance of probabilities. b. Under the heading ‘Mortgages’ Questions 34 to 55 relate to the manner in which the mortgage on Cicely Road was paid off. This topic was covered at trial, and I made clear at para 47 of my judgment that this particular dispute did not help me to resolve the issue of the nature of the original agreement between Ms Joseph and Peter at the time of purchase. c. Some of the Questions do not go to the transactions in question but are (further) attacks on Ms Joseph’s credibility, under the heading of ‘Paternity Fraud and Divorce’. It is most unlikely that these issues, even if covered in cross-examination, would have yielded answers that would have assisted me in relation to the issue of the authenticity of the Trust Deed.” 169. In my view the Recorder’s assessment of what is now Ground 3 should be respected. The Recorder was best placed to assess the materiality of the procedural failure. The Recorder’s conclusion was that the procedural failure did not affect the outcome of the Trial. The Recorder had the opportunity to look through the list of questions prepared by the Appellant, and considered it most unlikely, if they had been available at the Trial, that they would have led him to any different conclusion, for the reasons which he gave. 170. While I am necessarily considering the position at second hand, and without the advantage of having heard the Trial, my own impression, from what was before me at the hearing of the Appeal, is consistent with what was stated by the Recorder in paragraphs 17 and 18 of the PTA Judgment. In summary, it has not been demonstrated that the procedural failure was material to the Forgery Conclusion. 171. Drawing together all of the above analysis, and while I accept that the procedural failure which occurred was a serious failure, I am not persuaded that it was material to the Forgery Conclusion. I conclude that the procedural failure is not sufficient to justify either setting aside or reversing the Forgery Conclusion. 172. It seems to me that there is sufficient in Ground 3 to render it arguable, as a ground of appeal. As such, I consider that there is sufficient in Ground 3 to justify the grant of permission to appeal. The Appeal itself however, so far as based upon Ground 3, fails. Ground 4 – analysis and determination 173. Ground 4 seeks to introduce an argument which was not put before the Recorder. The argument proceeds on the footing that the Recorder was right in the Forgery Conclusion, and that the Respondent and Peter purchased the Property as joint tenants of the Beneficial Interest. On this basis the Appellant seeks to argue that the joint tenancy of the Beneficial Interest was severed, following the separation and divorce of the Respondent and Peter so that, by the time of Peter’s death, the Respondent and Peter were tenants in common of the Beneficial Interest, in equal shares. On this hypothesis Peter’s 50% share of the Beneficial Interest will pass by the Will, assuming that the Will is valid. 174. Given that this argument was not raised at the Trial, I have been referred by Mr Waistell to the decision of the Court of Appeal in Singh v Dass[2019] EWCA Civ 360 , and to the notes at 52.21.1 in Civil Procedure, Volume 1 (The White Book Service 2025) at pages 1901-1902. In his judgment in Singh v Dass, with which McCombe and Moylan LJJ agreed, Haddon-Cave LJ summarised the legal principles which apply, where a party seeks to raise a new point on appeal which was not raised below, in the following terms, at [16]-[18]: “16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court. 17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad[2009] EWCA Civ 2 at [30] and [49]). 18. Third, even where the point might be considered a ‘pure point of law’, the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service[2017] EWCA Civ 24 ; [2017] R.T.R. 22 at [29]).” 175. Mr Waistell contended that this new argument was not one which required any new evidence. Nor, he submitted, was it an argument that would necessarily have changed the way in which the evidence was addressed at the Trial. The argument of the Appellant is that once the Recorder had reached the Forgery Conclusion, the Recorder should have proceeded to consider the question, on the same evidence, of whether the joint tenancy of the Beneficial Interest had been severed. The Recorder should then have concluded, on the basis of the evidence at the Trial, that there had been a severance of the joint tenancy. It is submitted that, in the absence of a conclusion to this effect on the part of the Recorder, I am able to reach this conclusion for myself. 176. The Appellant’s case is that this alleged severance came about by one or more of three methods, as between the co-owners of the Beneficial Interest (the Respondent and Peter); namely (i) one co-owner acting on their own share, (ii) mutual agreement between the co-owners, and/or (iii) by course of dealing between the co-owners. 177. The first of these methods of severing a joint tenancy is described in the following terms in Megarry & Wade, The Law of Real Property (Tenth Edition), at 12-38 (footnotes omitted): “At common law, the ability to alienate property was favoured above the right of survivorship. If therefore a joint tenant alienates his beneficial interest inter vivos, his joint tenancy is severed. The person to whom the interest is assigned takes it as a tenant in common with the other joint tenants, because he or she has no unity of title with them. Any severance must take place during the lifetime of the joint tenant. A joint tenant “cannot make a will of what he holds in jointure”, nor can a will sever a joint tenancy.” 178. The second and third of these methods of severing a joint tenancy are described in the following terms, in Megarry & Wade, at 12-042 and 12-043 (footnotes omitted): “A joint tenancy can be severed by the mutual agreement of all the joint tenants. Originally such an agreement had to amount to an enforceable contract, so that this form of severance was simply an example of joint tenants acting upon their own share. Furthermore, any such agreement would be invalid if any of the joint tenants lacked capacity. However severance by mutual agreement is now acknowledged to be a distinct category of severance and it is no longer necessary that the agreement should be enforceable as a contract.” “Severance by a course of dealing depends upon inferences drawn from conduct where there is no express act of severance. To fall within this head of severance there must be “a course of dealing by which the shares of all the parties to the contest have been affected”