"48. In this regard I would say something about the importance of contemporary documents as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party's internal documents including emails and instant messaging. Those tend to be the documents where a witness's guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence. The classic statement of Robert Goff LJ in The Ocean Frost[1985] 1 Lloyd's Rep 1 at p.57 is frequently, indeed routinely, cited: "
“It is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and to the overall probabilities.”
“…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.”
"88. …First, as has very recently been noted by HHJ Gore QC in CBX v North West Anglia NHS Trust [2019] 7 WLUK 57, Gestmin is not to be taken as laying down any general principle for the assessment of evidence. It is one of a line of distinguished judicial observations that emphasise the fallibility of human memory and the need to assess witness evidence in its proper place alongside contemporaneous documentary evidence and evidence upon which undoubted or probable reliance can be placed. Earlier statements of this kind are discussed by Lord Bingham in his well-known essay The Judge as Juror: The Judicial Determination of Factual Issues (from The Business of Judging, Oxford 2000). But a proper awareness of the fallibility of memory does not relieve judges of the task of making findings of fact based upon all of the evidence. Heuristics or mental short cuts are no substitute for this essential judicial function. In particular, where a party's sworn evidence is disbelieved, the court must say why that is; it cannot simply ignore the evidence."
“Mr Vipin Shah will not attend; he is almost 80, not in good health and not able to travel for the hearing from Jersey.”
“OUR ARRANGEMENTS I have been deliberating on the way we have been working at MPL and [the Indian JV]. I have seen that your role has been a very active one, whilst I spend most of my time on PR – I am satisfied that our interaction has worked. So, I thought we should formalise our arrangement from the time we started this new arrangement early last year. My suggestion is that you and I work on a 76% / 24% division of profits (both income and capital) from MPL + [the Indian JV]. Let me know what you think.”
“Met Rohin – he had certain reservations re the split. Finally agreed 80/20 from1/1/2003 with a prior return to MFSL for 2003 + 04 of£30,000 then straight split of the remainder, i.e. 80/20. He also said this should apply to anyone or entity he designates – I said OK.”
“… he is uncertain as to the date upon which he added the annotation. He believes he either made the annotation was either made [sic] in 2004 or in 2011.”
“Q. And what you mean by that is that an understanding reached between the two of you, you are confident that then the affairs of the corporate structure would be managed in such a way that -- they'll be managed so that the output of the process will reflect the understanding reached between you and your nephew? A. Correct. Q. Practically speaking, in practice? A. In practice, that's exactly what happened. Q. And it's the practical situation that mattered from your point of view, wasn't it? A. Correct. Q. So as long as you trusted on your advisers managing a corporate structure in a way, the outcome was in practice split 80/20, that's what mattered? A. Correct.” […] Q. One of the advantages of leaving it as an arrangement between yourself and your nephew is that with your advisers' assistance, you can manage the way in which the 80/20 spoils are split in a tax-efficient way, yes? A. As far as MFSL was concerned, it was very simple, because we would receive dividends from MPL, and those would be sent up to MP Group Limited. As far as MPL/Rohin was concerned, it was for him to determine how he wished his 80% to be distributed. Q. And because the understanding was that it was for him to determine, that left it flexible? A. As far as he's concerned, yes, oh, yes. Q. He could take it out of the bottom as a bonus, or he could choose to arrange for it to flow up, provided the advisers said it could work that way, and out the top? A. Yes. Q. And what actually happened was a mix of the two? A. Correct. Q. That all reflects the fact that this was an arrangement between you and your nephew that could be implemented in accordance with how your advisers said it could be made to work within the corporate structure? A. Correct. Q. Now, you described it as a loose business arrangement in 2013,18 and that ties in with what you said about the principles of Jain in practice, doesn't it? You rely on trust and understanding among the members of the community? A. Yes. Q. Yes? A. Yes. Q. Can you speak up? A. Sorry, yes. Q. And because you rely on trust and understanding, you don't need an enforceable contract as such? A. Yes. Q. Yes, you agree? A. Yes.”
“I have requested [Mr Howell] to send you the accounts of [MFSL] as at31 December 2010 .”
“… because of the cultural aspects of the family this was to them a binding agreement but if it came to a third party looking at it, would it be a … So, it was agreed that it should be restated by the parties in a form which was in a more legal document. So it was never meant to be a sort of fresh agreement. It was a restatement of the earlier 2004 informal agreement between Anant and Rohin”
“It is further agreed by the parties that MFSL shall have no further entitlement to or claim in respect of any Sale Proceeds or to any Other Relevant Sums from the Completion Date. PPL, as the party which is ultimately entitled to such Sale Proceeds (through the declaration and payment of further dividends by MFSL) or Other Relevant Sums, be solely entitled to receive and be paid all and any further Sale Proceeds or Other Relevant Sums as from the Completion Date absolutely without any deduction, set-off, counterclaim or any other withholding whatsoever in accordance with the terms of this Agreement.”
“… sufficiently strong to meet any arguments the Pensions Regulator or the PPF might raise that the final payment from the JLLM deal, which is purely for the benefit of RS, should be withheld and paid towards the MGPS deficit? If so, what steps, if any, can the parties take to mitigate this liability? As MPL is estimated to owe 10% of the MPGS deficit, is there an argument that MPL should withhold the sum MPL owes towards the deficit from the final payment from the JLLM deal and pay this towards the MGPS deficit? If so, what steps, if any, can the parties take to mitigate this liability?”
“Q. … it’s obvious from this proposal, Mr Shah, that your central concern is that you don’t want to be seen as responsible for this last stage, which is controversial, yes? A. That’s right, yes. Q. That’s your concern – A. That’s right. Q. --- you don’t want to be seen as responsible? A. No.”
“It is further agreed by the parties that MFSL shall have no further entitlement to or claim in respect of any Sale Proceeds or to any Other Relevant Sums from the Completion Date. PPL, as the party which is ultimately entitled to such Sale Proceeds (through the declaration and payment of further dividends by MFSL) or Other Relevant Sums, be solely entitled to receive and be paid all and any further Sale Proceeds or Other Relevant Sums as from the Completion Date absolutely without any deduction, set-off, counterclaim or any other withholding whatsoever in accordance with the terms of this Agreement.”
"Whether there is a binding contract between the parties and, if so, upon what terms depends upon what they have agreed. It depends not upon their subjective state of mind, but upon a consideration of what was communicated between them by words or conduct, and whether that leads objectively to a conclusion that they intended to create legal relations and had agreed upon all the terms which they regarded or the law requires as essential for the formation of legally binding relations. Even if certain terms of economic or other significance to the parties have not been finalised, an objective appraisal of their words and conduct may lead to the conclusion that they did not intend agreement of such terms to be a precondition to a concluded and legally binding agreement."
“Q. So the share that -- the part of the benefit of these businesses, I say businesses because it's the UK part and the foreign part, yes? A. Yes. Q. Part of that that's not the Rohin part in terms of the benefit, you would be participating in? A. Yes. Q. And your children would therefore stand to participate in? A. Yes. Q. Did you think anyone else would? Q. And your children would therefore stand to participate in? Q. Did you think anyone else would? A. No, no.” (4) In his personal notes from June 2011, Mr Anant Shah used “I” to refer to the Animegh Foundation (“I will be left with MFSL and MPGL”). Again, he offered no explanation for this. (5) Mr Anant Shah’s evidence was that the purpose of the release declaration Mr Anant Shah made in October 2011 in relation to the Animegh Foundation was so that “there was no reason for anyone to think that we were connected with this”
“Although it is rare, when Jain businesses have gone bankrupt, the owners have used personal and family resources to pay back creditors and lenders rather than run away with any loot or ignore their debts and responsibilities as moral citizens of the town or city .”
“Q. So when assessing your responsibilities for the purposes of evaluating your needs in order to live by the doctrine of Aparigraha, you have regard to those of your obligations that arise as a result of this Jain family business principle that we discussed yesterday? A. Yes. Q. So you have regard to responsibilities you have in respect of those businesses, Jain businesses you've been involved with, where companies themselves have liabilities they can't meet; yes? A. Yes. Q. So in your context, when thinking about what needs you need to -- what responsibilities you have in order then to define what needs you have, in order to ensure you don't give away too much of your wealth, you need to have regard to your responsibility vis-à-vis the Meghraj pension scheme; correct? A. Yes. Q. And if you, as part of living by the doctrine of Aparigraha, have given up some of your wealth or deprived yourself of wealth in a way which has benefited wider Shah family members, for instance by releasing yourself from trusts or whatever; if you have -we don't have to decide whether you have -- engaged with the doctrine in a way which has benefited other family members -- yes? -- then they would not be living by -- according respect to Aparigraha if they refused to enable some of that benefit that they've had to come back and assist the scheme. Isn't that right? A. I understand what you're saying. Q. Do you agree with it? A. Yes. Q. Yes. So any family member who has benefited from the Meghraj Group that you're responsible for, the MFSL structure, if they themselves lived by the Jain principles that you've explained the family hold itself out as living by, they would be anxious to allow money to be used to ensure the pension scheme was properly paid back, agreed, properly paid? A. Yes. Q. Yes. A. Mm. Q. They wouldn't require security for a loan, they would just ensure the money was made available, wouldn't they, Mr Shah? A. Yes. I understand what you're saying, but I'm not them. Q. You understand what I'm saying and you agree with what I'm saying, don't you, Mr Shah? A. Yes, if it were me, yes, I understand. Q. So if family members of yours, wider family members are in that position and choose not to assist -- A. Yes. Q. -- they're not living by the Jain principles that you espouse? A. I understand. Q. You agree? A. Yes, I agree. Q. And therefore they're not living by the principles that the family holds itself out as living by? A. I understand. Q. Do you agree? A. I agree. Q. But you wouldn't expect, would you, any family members who benefited from the operation of the Meghraj Group, about 20 per cent, whoever it is who has benefited from the 20 per cent -- A. Yes. Q. -- anyone who has benefited in that way and lives by the Jain principles we've discussed, you would expect them to make available what they can to help with the pension scheme problem; correct? A. Yes. Q. And that would include assisting you to pay any debt that may arise under a contribution notice -- A. Yes. Q. -- should this Tribunal think that's the reasonable thing to do? Q. Do you agree with it? Q. -- they're not living by the Jain principles that you espouse? Q. You agree? Q. Do you agree? Q. -- should this Tribunal think that's the reasonable thing to do? A. I understand. Q. Do you agree? A. I agree, yes.”
“When considering the reasonableness of a contribution notice, the reference to a target’s ‘financial circumstances’ under section 38(7)(f) is not limited to the target’s current financial worth but also includes consideration of how the target has ended up in the financial position in which he currently finds himself. This includes taking into account the target’s receipt of monies and how they have been used. The Panel accepted that it was correct to draw a distinction between the issuing of a contribution notice and its enforcement. Questions about the ability to recover and the costs and proportionality of so doing are far less relevant to the decision to issue a contribution notice than to decisions over whether and how it should be enforced.”