TRACEY ANN TAYLOR v (1) OLGA SAVIK (2) PHILIP RYLE [2024] EW Misc 15 (CC)

"4. As is set out in more detail below, the Trustees' case is that: a) [The second respondent] and not [the first respondent] is the beneficial owner of the property That, it having been purchased with money provided by him as the deposit and mortgage repayments, and maintained with money provided by him; b) [The first respondent] was shown as the registered proprietor of [The Grange] in order to conceal [the second respondent's] ownership thereof; c) Further or alternatively, the payments by [the second respondent] to [the first respondent] in relation to the purchase of [The Grange],the mortgage payments made thereafter and the outgoings in relation to it fall within sections 339 and/or 423 of the Insolvency Act 1986 and the court is asked to make orders to reverse the position to what it would have been had the payments not been made. 5. [The second respondent's] fraud against HMRC was carried out between (at the latest) 1 March 2013 and his arrest on 10 November 2014. 6. The modus operandi of the fraud was as follows: a) Rare Stamp Associates Ltd ("

"It is to be inferred that the common intention of [the respondents] was that [the second respondent] was to be the beneficial owner of [The Grange] and that [the first respondent] was to be registered as the proprietor of [The Grange] so as to conceal the fact of [the second respondent's] ownership."

"e. By October 2014, [the second respondent] had been engaged in large-scale VAT fraud for some considerable time. He would have known in general terms of the risk of detection and civil or criminal action, and that such risk would increase the longer the fraud continued. A fraudster such as [the second respondent] is to be expected to have made provision to conceal his assets, f. In hearings in the Crown Court in the POCA Proceedings on 1 October 2020 and on 8 June 2021, [the second respondent] admitted that he owned 100% of the beneficial interest in the [The Grange]."

"9.1. In insolvency litigation of this sort, trials are heard by a specialist judge not by a jury, and … there is no reason why the court should depart from this approach here; and 9.2. The matters raised by the Second Respondent are not relevant to the issues for trial anyway. The Second Respondent appears to believe that the trial will deal with his complaints about third parties and the background to his bankruptcy, rather than the relief sought in relation to the property at The Grange."

"(1) In the following proceedings in [the county court] the trial shall be without a jury— (a) Admiralty proceedings; (b) proceedings arising— (i) under Part I, II or III of the Rent (Agriculture) Act 1976, or (ii) under any provision of the Rent Act 1977 other than a provision contained in Part V, sections 103 to 106 or Part IX, or (iii) under Part I of the Protection from Eviction Act 1977; [or (iv) under Part I of the Housing Act 1988] (c) any appeal to the county court under [the Housing Act 1985]. (2) In all other proceedings in [the county court] the trial shall be without a jury unless the court otherwise orders on an application made in that behalf by any party to the proceedings in such manner and within such time before the trial as may be prescribed. (3) Where, on any such application, the court is satisfied that there is in issue— (a) a charge of fraud against the party making the application; or (b) a claim in respect of […] malicious prosecution or false imprisonment; or (c) any question or issue of a kind prescribed for the purposes of this paragraph, the action shall be tried with a jury, unless the court is of opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury."

"'Fraud' in ordinary speech means the using of false representations to obtain an unjust advantage … Likewise in law 'fraud' is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false: see Derry v. Peek, per Lord Herschell. In any case, 'fraud' involves a false representation. Robbery does not. It f involves violence, not fraud."

"For at least 100 years (see Bullen & Leake's, Precedents of Pleadings, 3rd ed. (1868)) 'fraud' in civil actions at common law, whether as a cause of action or as a defence, has meant an intentional misrepresentation (or, in some cases, concealment) of fact made by one party with the intention of inducing another party to act upon it, which does induce the other party to act upon it to his detriment. A charge of robbery is clearly not embraced in 'a charge of fraud' in this sense."

"On the construction of the section I agree that this is not an action in which 'a charge of fraud against … (the defendant) … is in issue.' I agree with the judge that fraud is used here in its ordinary and primary sense of deceit, and not as referring generally to dishonesty. Reference may be made to the definitions of fraud in the Oxford English Dictionary; where it is also of some interest to notice the quotation from Swift: 'They look upon fraud as a greater crime than theft.' The charge of robbery in the present case is not a charge of deceit: therefore the defendant has no absolute right to a jury."

"Thus, there must be fraud with damage for an action of deceit. That was, it seems to me, trite law at that date. Returning to the case of Barclays Bank v Cole , I therefore read it as plainly deciding that the word 'fraud' in this context is a term of art, amounting to actionable deceit. If that is right, there was no actionable deceit in the present case. If, of course, the plaintiff did not lose or have stolen the travellers cheques, he made an intentional misrepresentation of fact when he told the defendants that he had. In so doing, no doubt he had the intention of inducing the defendants to act to their detriment. However, the defendants did not act to their detriment, because they did not pay him what he asked. Consequently, actionable deceit is not available in this case."

"If that is right, a charge of fraud is not confined to a consideration of the false representation and mental element alone, as it is defined by Lord Herschell in the passage I have read [from Derry v Peek ], but to the concluded activity involving the act performed to the detriment of whomsoever has been taken in by the false and fraudulent misrepresentations. Construed in that way, it is, of course, then wholly consistent for Diplock LJ and Russell LJ in Barclays Bank v Cole to treat fraud as synonymous with the complete cause of action, commonly called deceit, which includes the necessary element of damage. Of course, fraud may be raised in civil proceedings, not only by way of a cause of action giving the plaintiff relief, but by a defendant as a means of defence. Ordinarily that would arise where a defendant is seeking to rescind a contract into which he has been induced to enter by reason of the fraud perpetrated upon him. In that event, too, he will have parted with his property and acted to his detriment."

"The result of the foregoing judgments appear to be that s 66(3) of the County Courts Act 1984 must be read in the following way: 'Where, on any such application, the court is satisfied that there is in issue a charge of the tort of deceit against the party making the application, which it is necessary to decide in order to determine the rights of the parties, the action shall be tried with a jury.' The section does not, of course, say so in terms. But, with some hesitation and considerable reluctance, I have come to the conclusion that, on the authorities which have already been cited, that must be regarded as the meaning of this section."

"the simple answer is that the defendant does not have to and will not try to establish fraud. If no bedroom, the claim was false and it matters not whether the brokers misunderstood their client's instructions or not; the defendants do not have to establish fraud by the plaintiff in order to avoid the contract. Accordingly, in my judgment fraud is not in issue in either of these two heads of claim. Nor is the defence asserted in those two heads founded on a charge of fraud. Accordingly, in my judgment, the plaintiff is not entitled to a jury under s 69(1)."

"Now the claim in respect of the alleged constructive trust obviously does not depend on the company establishing fraud against the defendant, and the same applies to the claim for money had and received to the company's use. There is, indeed, a claim for damages; but since the Misrepresentation Act 1967, section 2, such a claim may succeed without proving that the misrepresentation was fraudulent; and the charge of conspiracy to pay the money in breach of duty to the company is not a charge of fraud. It seems to me that the company could succeed in all that is claimed without establishing that the defendant is guilty of Deny v. Peek fraud. Obviously the company's claims against the defendant involve grave imputations against her; but that is not enough to bring the case within the statute."

"If the plaintiff had limited his case to a simple assertion of malicious prosecution based on the unsuccessful fraud prosecution and particulars of malice directly related to that prosecution, then I would regard the case as one which might well have been capable of being conveniently tried by a jury. Much of the documentation, much of the factual pleading, not all but much of it, might very well then have been irrelevant. The plaintiff, however, no doubt for reasons which seem good to him and his advisers, has not adopted that course. He has based his case of malice on the whole course of police conduct from early 1985 involving the establishment and operation of the D.I.U. and has made allegations of a very far-reaching plot to destroy the plaintiff as a means of destroying Mr. Stalker. The plaintiff having put his case in that way, it seems to me inevitable that the defendant would seek to deploy a very detailed and heavily documented case in order to seek to rebut it. No application has been made to strike out any part of the defence and, in my view, the plaintiff cannot be heard to complain if his claim provokes a defence of this kind."

"The first question was: will this trial require any prolonged examination of documents or accounts? Like the judge, I am of opinion that it certainly will. The second question was and is: can this prolonged examination of documents or accounts conveniently be made with a jury? Like the judge, I am of opinion that it cannot. The case as it stands will be very lengthy, very expensive, very burdensome and very difficult to control if tried by a judge alone. If tried by a judge and jury it will be even lengthier, even more expensive, even more burdensome and even more difficult to control. I can think of no adjective less appropriate than 'convenient' to describe the trial of this action by a jury."

"(i) The basic criterion, viz that the trial requires a prolonged examination of documents, must be strictly satisfied, and it is not enough merely to show that the trial will be long and complicated ( Rothermere v Times Newspapers Ltd [1973] 1 All ER 1013, [1973] 1 WLR 448). However, the word 'examination' has a wide connotation, is not limited to the documents which contain the actual evidence in the case and includes, for example, documents which are likely to be introduced in cross-examination ( Goldsmith v Pressdram Ltd [1987] 3 All ER 485, [1988] 1 WLR 64). (ii) 'Conveniently' means without substantial difficulty in comparison with carrying out the same process with a judge alone. This may involve consideration of several factors, for example: (a) the additional length of a jury trial as compared with a trial by judge alone; (b) the additional cost of a jury trial taking into account not only the length of the trial but also the cost of, for example, additional copies of documents; (c) any practical difficulties which a trial by jury would entail, such as the handling of particularly bulky or inconvenient files, the need to examine documents alongside each other, and the degree of minute scrutiny of individual documents which will be required; (d) any special difficulties or complexities in the documents themselves ( Beta Construction Ltd v Channel Four Television Co Ltd [1990] 2 All ER 1012, [1990] 1 WLR 1042 especially per Stuart Smith LJ at page 1047 of the latter report and per Neill LJ at page 1055 H, referred to and applied in the recent case of Taylor v Anderton (Police Complaints Authority Intervening) [1995] 2 All ER 420, [1995] 1 WLR 447). (iii) The ultimate exercise of discretion will in each case depend substantially on the circumstances of each individual case, and it would be idle to attempt to enumerate all the factors which might arise."

"(1) The emphasis now is against trial by juries, and this should be taken into account by the court when exercising its discretion ( Goldsmith v Pressdram ( supra ) at page 68 of the latter report per Lawton LJ with whom Slade LJ expressly agreed). This conclusion is based on s.69(3), which was a new section appearing for the first time in the 1981 Act to replace s.6(1) of the Administration of Justice (Miscellaneous Provisions) Act 1933, the provision in force at the date when Rothermere v Times Newspapers was decided. (2) An important consideration in favour of a jury arises where, as here, the case involves prominent figures in public life and questions of great national interest ( Rothermere v Times ( supra )). (3) The fact that the case involves issues of credibility, and that a party's honour and integrity are under attack is a factor which should properly be taken into account but is not an overriding factor in favour of trial by jury ( Goldsmith v Pressdram ( supra ) at page 71 H per Lawton LJ). (4) The advantage of a reasoned judgment is a factor properly to be taken into account ( Beta Construction v Channel Four Television ( supra ))."

" … this case does not fall under the criteria requiring a jury trial as provided by s.66. The two questions are whether the trial requires any prolonged examination of documents, or alternatively any scientific investigation which cannot conveniently be made with a jury. It is clear from the reports of Dr Kehoe and of the consultant psychiatrist that there is a significant dispute between those leading professionals as to the present psychiatric state of the claimant and the reasons for it. Of course, that question could be debated before a jury, and I accept that, in cases where jury trial is in fact mandatory, that is to say, in the criminal jurisdiction, some questions similar to that are sometimes raised before the jury. The question, however, is whether that can be done conveniently with a jury. In my estimation, it is not convenient for a medical question of that sort, and particularly of the sort that is to be debated in this case, to be investigated with a jury. Secondly, the defendant's case requires a close examination of the whole of the medical records of the claimant, it being the defendant's case that his present condition is explicable in the context of his lengthy medical history, and not merely in the context of the incident that did or did not happen in 1995. Although, as Mr Gledhill has urged on us, the records in question are less formidable than the sort of records that have been threatened in other cases where juries have not been ordered, nonetheless, for my part, I consider that there is a substantial danger, indeed likely to be a requirement, that there will be prolonged examination of those records. Mr Gledhill said that was not so because the defendant's doctor was unlikely to be challenged in detail upon them. I beg to express some scepticism of that. Certainly, I do not see how the defendant's case could be properly tested, much less properly tested before a jury, without those documents being looked at in some detail. In my judgement, therefore, this is a case in which I am of the opinion, which is what the statute requires, that, first of all, the case certainly requires a scientific investigation, which cannot conveniently be made with a jury. I am also of the view that it requires prolonged examination of documents, which again could not conveniently be made with a jury."

"I turn to the question of discretion. Should the judge have ordered the jury in the exercise of his discretion? The judge viewed this as a relatively ordinary case where an insurer is saying that the claim under the policy was 'fraudulently made'. He could, less provocatively but with equal accuracy, have said 'dishonestly made'. Such claims were at the time of Barclays Bank [1967] 2 QB 738, [1966] 3 All ER 948 and are today, routinely tried by a judge alone. Mr Rees, for the plaintiff, criticised the judge for relying on what routinely happened on the facts in this individual case. The significance of 'routinely' is that it is a fundamental principle of justice that like justice should be obtained in like cases. He was therefore right to take into account the fact that these actions are routinely tried by judge alone and would, in my judgment, have been wrong not to take it into account."

" … the judge took the reality of the seriousness of the allegation into account. He also took into account, as he was entitled to do, that the trial would be shorter and cheaper and more manageable if tried by a judge alone. He is an experienced judge. It was his discretion. I can see nothing in his judgment to fault his approach to the exercise of that discretion. The plaintiff, despite Mr Rees' eloquence, does not come close to showing that the judge's refusal to order a jury fell outside the broad discretionary ambit entrusted to him. That is the test. But I would go further and say that he was plainly right."

"As to discretion, I see no sufficient reason to interfere with the decision of May J, although I am not convinced that where trial by jury is otherwise appropriate it should be refused solely on the ground that it may take longer or cost more money. One does not need to turn to family law for the proposition that this court is slow to interfere with the decision of a judge on a matter that must have been in his discretion."

"25. The disposition of the courts today is against trial by jury. Trial by judge alone provides real case management advantages."