Catherine Anne Pennington v Justin Mose De Wan
| Jurisdiction | England & Wales |
| Judge | Master Matthews |
| Judgment Date | 05 January 2017 |
| Neutral Citation | [2017] EWHC 4 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2016-001042 |
| Date | 05 January 2017 |
[2017] EWHC 4 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Master Matthews
Case No: HC-2016-001042
Adrian Carr (instructed by Giles Wilson LLP) for the Claimant
The Defendant appeared in person
Hearing date: 7 October 2016
Judgment Approved
Introduction
This is my judgment on the trial of the assessment of damages in a claim brought by the claimant against the defendant in respect of various matters. The claim was begun by claim form issued on 30 March 2016. The matters concerned were (i) loans totalling some £82,266.33, (ii) a Rolex watch said to have been bought by the claimant and loaned by her to the defendant but not returned, and (iii) damage sustained to an Aston Martin DB9 motor car bought by the claimant but used by the defendant.
On 27 May 2016 the court entered judgment for the claimant in default of acknowledgment of service, in the sum of £97,608.57. On the application of the defendant to set aside the judgment, and after hearing the parties, on 22 July 2016 I varied the default judgment. In respect of the loans, judgment was entered for the claimant in the sum of £73,366.33. In respect of the watch claim, the judgment was set aside. The watch claim has since been abandoned. In respect of the car claim, judgment was entered for the claimant on liability with damages to be assessed. On 7 October 2016 I heard the parties on the assessment of damages on the car claim. On that occasion Mr Adrian Carr of counsel appeared for the claimant. The defendant appeared in person. This judgment is concerned only with that assessment of damages. I am sorry for the delay in handing it down.
The evidence
The evidence in this case was both written and oral. The claimant made an affidavit dated 29 March 2016 in support of an application for a freezing order against the defendant. (On 11 April 2016 Arnold J accepted an undertaking from the defendant in lieu of granting an order on the application.) On 11 June 2016 the defendant made a witness statement in support of his application to set aside the default judgment. Further witness statements were made by Ryan Jordan, Kaveh Mobasheri, and James Wilkinson (all dated 15 July 2016), and Andrew Fell (dated 19 July 2016), but none of them relates to the car claim. The defendant made a second witness statement dated 26 August 2016. The claimant's solicitor, Jonathan Hodge, made three witness statements, of which only the last, dated 5 September 2016 (dealing with the insurance of the car) is relevant. The claimant made a second witness statement of 5 September, responding to that of the defendant of 26 August 2016.
As to oral evidence, the claimant, the defendant and Mr Hodge were all tendered for cross-examination. The defendant (acting in person) asked no questions of the claimant or Mr Hodge in cross-examination. Mr Hodge is of course a solicitor and has no personal interest in the mater. His evidence was relatively uncontroversial and I have no hesitation in accepting it as the truth. The claimant is in a different position, because she has a strong personal interest in the matter. This is both because of the money claim and also because of the former intimate relationship between the parties. It is clear that she feels strongly that she has wasted both her time and (as she would say) her money on the defendant. That does not disentitle her to her rights, of course. But the absence of any cross-examination made it impossible for her evidence to be properly tested. I therefore accept her evidence with a degree of caution appropriate to the circumstances.
The position of the defendant is different. He was cross-examined at some length by Mr Carr on behalf of the claimant. He came across as a generally pleasant but, I am afraid, shallow and indeed rather pathetic individual. He tried hard to put a positive spin on everything, however negative it might otherwise appear to an objective observer. Partly as a result, his evidence was vague and often unclear. Sometimes it was simply untrue, as when he said in his witness statement that the parties agreed not to make an insurance claim to protect the claimant's no-claims bonus, when in fact it was clearly his decision in order to protect his own insurance position.
His written evidence was no better. Indeed, it was clearly incomplete. For example, he had failed to mention at all in his witness statement that during the course of the relationship with the claimant he had been banned from driving for a year after a drink-driving conviction (the offence having been committed in this car). Moreover, his standards of morality were variable. For example, he accepted in cross-examination that he had attempted to charge the claimant £1200 for new wheels for the car which in fact cost him £411. Sometimes in giving oral evidence he claimed not to remember matters of some importance even in the face of documentary evidence ( eg whether he received speeding fines, despite the notice of intended prosecution for speeding put to him), whilst at others he remembered slight and irrelevant details with no prompting. At times indeed he seemed to be living in a fantasy world, in which he was always right, but was disturbed to find that reality kept butting in.
This does not mean however that I should disbelieve the whole of his evidence. Just because a person lives a fantasy does not mean that everything he says is untrue. Some of what he said (for example that the parties "argued a hell of a lot") had the ring of truth. Other evidence he gave was supported by independent evidence and can also be accepted. But where the only direct evidence is that of the parties, and it is in irreconcilable conflict, I prefer that of the claimant.
Facts found
In these circumstances I find the following facts. The claimant describes herself as a single mother, who in 2009 was "relatively recently divorced". She was "financially comfortable with healthy savings". The defendant is an estate agent, formerly in business on his own account, but now employed by another. When the claimant met him in 2009 in his own estate agency, in order to rent a flat in the area, he was "smartly dressed in expensive clothes and drove a Porsche sports car". She "therefore believed he was in a similar financial position to me". Unfortunately this turned out not to be correct.
From May 2009 the parties were in an intimate relationship, which broke up acrimoniously in February 2016. During the relationship the claimant, in retrospect perhaps naively, helped to fund the defendant's business and lifestyle in a number of ways, including the provision of the motor car with which I am now concerned. Once the relationship broke down, the claimant began these proceedings. The car claim arises as follows.
On 28 February 2014 the claimant bought and paid for the Aston Martin car the subject of the claim, the purchase price being £42,000. The evidence (which I accept) was that the car was in excellent condition at that time. The defendant accepted that he did not contribute to the purchase price as he "did not have any money". Now an Aston Martin DB9 is plainly not an ordinary, let alone a...
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