Balber Kaur Takhar v Gracefield Developments Limited & Ors
| Judge | His Honour Judge Tindal |
| Neutral Citation | [2024] EWHC 1714 (Ch) |
| Year | 2024 |
| Court | Chancery Division |
| Counsel | Mr Graeme Halkerston,Mr Thomas Graham,Mr Justin Perring |
| Date | 03 July 2024 |
Neutral Citation Number: [2024] EWHC 1714 (Ch)
Case No: BL-2021-BHM-000041
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
BIRMINGHAM DISTRICT REGISTRY
Birmingham Civil Justice Centre
Bull Street,
Birmingham
Date: 03/07/2024
Before:
HIS HONOUR JUDGE TINDAL
(Sitting as a Judge of the High Court)
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Between:
BALBER KAUR TAKHAR
Claimant
- and -
(1) GRACEFIELD DEVELOPMENTS LIMITED
(2) DR KEWAL SINGH KRISHAN
(3) MRS PRAKASH KAUR KRISHAN
Defendants
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Mr Graeme Halkerston (instructed by Tanners Solicitors LLP)
for the Claimant
Mr Thomas Graham and Mr Justin Perring (instructed by N, D and P Solicitors)
for the Defendants
Hearing dates: 12th, 13th, 14th15th, 18th, 19th, 20th, 21st December 2023
8th, 9th January and 12th June 2024
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JUDGMENT
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I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this
Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE TINDAL
Judgment Takhar v Gracefield
HHJ TINDAL:
Introduction
1.This case is the sequel to Takhar v Gracefield [2020] AC 450, in which the Supreme
Court held that where it was proved that a judgment had been obtained by fraud, a
party seeking to set it aside did not have to show that they could not with reasonable
diligence have uncovered and alleged that fraud before that judgment (which I shall
refer to as ‘the Supreme Court Takhar Judgment’).
2.That decision opened the door to Mrs Balber Takhar (the Claimant as I shall call her)
to seek to set aside for fraud the 2010 judgment of the late HHJ Purle QC sitting as a
High Court Judge (Takhar v Gracefield [2010] EWHC 2872 (Ch): (‘the Purle
Judgment’). She alleged her signature on a key document HHJ Purle QC relied on had
been forged by the Defendants – her cousin the Third Defendant (‘Mrs Krishan’) and
the latter’s husband the Second Defendant (‘Dr Krishan’), directors and shareholders
of the First Defendant company (‘Gracefield’). In 2020 before Mr Gasztowicz QC
sitting as a High Court Judge (Takhar v Gracefield[2020] EWHC 2791 (Ch), ‘the
Gasztowicz Judgment’)) the Claimant did prove fraud and the Purle Judgment was set
aside. (Mr Gasztowicz QC’s costs judgment is reported at [2020] Costs LR 1851).
3.This case is the retrial of the original action, but with two new causes of action: deceit
and conspiracy. The former effectively duplicates one of the original claims, undue
influence. The latter alleges fraudulent conduct of the previous action, as found in the
Gasztowicz Judgment. The Defendants deny all claims on themerits and raise
limitation on the new claims. This case raises three legal issues of wider relevance
after judgments are set aside for fraud - not covered by much direct authority
according to my research (‘the three wider questions’):
3.1First, what approach should be taken to Res Judicata, credibility, memory (given
cases since Gestminv Credit Suisse[2013] EWHC 3560) and findings of fact on
a re-trial after a judgment is set aside for fraud ?
3.2Second, can fraudulent misrepresentation amount to undue influence and if so,
does it require a pre-existing ‘relationship of trust and confidence’ ?
3.3Third, can fraud in procuring a judgment allow it to be set aside and amount to
‘unlawful means’ for the tort of conspiracy sounding in damages ?
4.The second and third questions also link to limitation. Deceit is no longer pursued as a
tort due to limitation, but it founds the argument that fraudulent misrepresentation
also amounts to undue influence, not argued before HHJ Purle QC. Conspiracy is
new, but raises the point that (following the Supreme Court Takhar Judgment) whilst
reasonable diligence in discovering fraud is not necessary to set a judgment aside, it is
highly relevant to whether a new claimarising from or concealed by fraud is
limitation-barred, since s.32(1) Limitation Act 1980 states where an action is based on
fraud, time does not start to run until the claimant ‘could with reasonable diligence
have discovered it’.
5.In terms of the essential background to this case, initially, I very respectfully adopt the
factual summary (albeit parts of it are in dispute before me) by Lord Kerr in the
Supreme Court Takhar Judgmentat [1]-[6]:
2
Judgment Takhar v Gracefield
“Balber Kaur Takhar, the claimant, is the cousin of the third defendant, Parkash
Kaur Krishan. For many years before 2004, they had not seen each other. In that
year they became reacquainted. At the time, Mrs Takhar was suffering personal
and financial problems. She had separated from her husband somefive years
previously.As part of the arrangements made between MrsTakhar and her
husband, she had acquired a number of properties in Coventry. When Mrs Takhar
and Mrs Krishan met again, according to Mrs Takhar, she confided in her cousin
and grew increasingly to depend upon her. Mrs Takhar claims that Mrs Krishan
exerted considerable influence over her. The financial problems of Mrs Takhar
arose mainly from the condition of the properties which she had acquired from
her husband. Some were in a dilapidated condition. Payment for rates were in
arrears.Bankruptcy for MrsTakhar wasin prospect. The Krishans provided
financial help to Mrs Takhar. Dr Krishan, the second defendant and the third
defendant’s husband, took on responsibility for negotiating with Coventry City
Council over the rates arrears and the dilapidated state of some of the buildings.
Then, in November 2005 it was agreed the legal title to the properties would be
transferred to Gracefield Developments Ltd, a newly formed company, of which
MrsTakhar and the Krishans were to be theshareholders and directors [as
happened in 2006]. Mrs Takhar claims that it had been agreed between her and
the Krishans the properties would be renovated and then let. The rent would be
used to defray the cost of the renovation, which, in the short term, would be met
by the Krishans. Mrs Takhar would remain beneficial owner of the properties.
The Krishans present a very different account. They claim that Gracefield was set
up as a joint venture company. The properties were to be sold after they had been
renovated. They were to be given an agreed value and this would be paid to Mrs
Takharafter they had been sold. Any profit over would be divided equally
between Mrs Takhar and the Krishans. They explain that Mrs Takhar agreed to
these arrangements because planning permission for development had to be
obtained in order to realise the value of the properties and this was an area in
which Dr Krishan had experience, having already successfully developed his own
medical centre.”
6.Whilst I detail the full procedural history below, in short, in October 2008 the Claimant
sued alleging on her version of the agreement was a trust or a contract, and on the
Defendants’ version, it was procured by undue influence or was an unconscionable
bargain. However, the Defendants relied on a written ‘Profit Share Agreement’ (‘PSA’)
consistent with their case the Claimant had apparently signed. Whilst she denied that,
she did not claim forgery. HHJ Purle QC relied on that to dismiss the Claimants’ claims
in 2010. However, in 2013, she obtained expert evidence that her ‘signature’ was a
forgery and applied to set aside the Purle Judgment. The Defendants sought to strike
that out as an abuse of process, which failed in 2015. That result was confirmed by the
Supreme Court in 2019, which held the Claimant could aside the judgment for fraud
without proving she could not have discovered it beforehand. In October 2020, Mr
Gasztowicz QC found her signature had indeed been forged – by the Defendants - and
set aside the Purle Judgment. The proceedings before me were therefore a re-trial of
those original allegations with the new cause of action of conspiracy (and deceit) added
in March 2015. The two actions were consolidated by consent in 2021.
7.The case was (re-)listed for trial in December 2023 before me. Mr Halkerston was
Counsel for the Claimant (showing total command of a bundle of 10,000 pages). Mr
3
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1 cases
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Yuk Ming Cheung v Office of Intercollegiate Services & Ors
...which they are pleaded.” 54. In his written submissions, the claimant relies on the case of Takhar v Gracefield Developments Limited [2024] EWHC 1714 (Ch) at [559] (per His Honour Judge Tindal), which also serves as a useful summary of the law on witness “559. …I would agree with [counsel f......