Claudia Zelena Emmanuel v Andrew Avison
| Jurisdiction | England & Wales |
| Judge | Mr Justice Birss |
| Judgment Date | 08 July 2020 |
| Neutral Citation | [2020] EWHC 1696 (Ch) |
| Date | 08 July 2020 |
| Docket Number | Case No: CH-2019-000322 |
| Court | Chancery Division |
[2020] EWHC 1696 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
APPEALS LIST (ChD)
ON APPEAL FROM THE ORDER OF HHJ HAND QC dated 31st October 2019 made in the COUNTY COURT at CENTRAL LONDON
Royal Courts of Justice
The Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Justice Birss
Case No: CH-2019-000322
Robert-Jan Temmink QC and Gabriel Buttimore (instructed by Teacher Stern) for the Appellant
Nigel Meares (instructed by Gardner Leader) for the First and Second Respondents
The Third Respondent in person
Hearing dates: 11th June 2020
Approved Judgment
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.
This is an appeal from the order of HHJ Hand QC dated 31 st October 2019, made following the judge's judgment dated 24 th May 2019. The appeal is with the permission of the judge. The appellant (Ms Emmanuel) was the claimant below.
Ms Emmanuel is a non-practising solicitor. In 2011 she was CEO of the Trinidad and Tobago Securities and Exchange Commission and at that time she relocated to Trinidad. She had been in touch with Mr White since 2010 relating to economic development projects. In 2013 they worked together on a project to build a biomass pellet manufacturing plant based in Guyana. The bulk of the finance (85%) was to be from investors in China. The balance of 15% was to come from a company referred to as IBC which had been set up by Ms Emmanuel and in which Mr White was involved. A number of different companies with similar names are referred to but details of the company do not matter, save to say that it had no funds. In one document the loan amount from the Chinese investors is said to be over US$14 million. The idea of the plant generating revenue of $5 million over three years is mentioned. There were also oral references (not in the documents) to commissions to be paid to the company IBC of about US$2 million.
By summer 2014 things had moved forward. It was clear that some kind of proof of funds by Mr White / Ms Emmanuel / IBC was going to have to be produced. For present purposes it does not matter which entity had to be able to do that, but it was going to be necessary to do it in order to unlock the larger funding from China. Money was going to have to be borrowed, at least temporarily, and discussions about that between Ms Emmanuel and Mr White took place in July 2014.
At this time Ms Emmanuel was in London but due to travel back to Trinidad on 26 th August 2014. Mr White lived in Worthing, West Sussex and was friendly with the first and second respondents (Mr and Mrs Avison).
In July /August 2014 an arrangement was discussed whereby Mr and Mrs Avison would lend £200,000 for a relatively short period of time. Mr and Mrs Avison wanted security for the loan and one idea which was discussed was to provide Ms Emmanuel's property at 18 Bennett Park, Blackheath, London as security. Ms Emmanuel and Mr and Mrs Avison did not at that time know each other. Mr White communicated with Mr and Mrs Avison and, separately, he communicated with Ms Emmanuel. There was no direct contact between Ms Emmanuel and Mr and Mrs Avison in this period. Draft documents were exchanged via the medium of Mr White.
An interest rate of 40% was discussed but Ms Emmanuel was unhappy with it. In one of the email exchanges (17 th August) Ms Emmanuel says to Mr White that while she had agreed that the property might be used as collateral in the event of default, she never agreed to a legal charge over the property. On 19 th August Mr White emailed Ms Emmanuel a revised legal charge which included a £10,000 retention from repayment until the charge was removed. Also on that day Ms Emmanuel attended the Whittington Hospital in London for a colposcopy procedure and she changed her flight back to Trinidad from 26 th August to 31 st August.
What we know then happened was that on 26 th August in the afternoon a meeting took place in a Costa Coffee shop in Worthing in which a notary, Peter Laverick, witnessed the execution of a legal charge and loan agreement (a total of four counterparts). The loan agreement bears two signatures witnessed by Mr Laverick on that occasion. One is Mr White's and the other purports to be Ms Emmanuel's. The legal charge also bears a signature purporting to be Ms Emmanuel's, again witnessed by Mr Laverick on that occasion.
The loan agreement provides that Mr and Mrs Avison will lend £210,000 to the borrowers Mr White and Ms Emmanuel. There is a 20% interest rate for the first 60 days and 40% after that. The term of the loan is 120 days. The legal charge is over 18 Bennett Park and secures the loan.
Ms Emmanuel says these are forgeries and that Mr White arranged for her to be impersonated at the meeting. Mr White says they are genuine and she was there. That is the dispute the judge had to resolve.
Mr and Mrs Avison also executed the two documents, I think on 2 nd September. In any event on 2 nd September 2014 Mr and Mrs Avison transferred £210,000 to Mr White's bank account. On 5 th September the Land Registry notified Mr and Mrs Avison's solicitors that the legal charge was registered. The Land Registry's notification to Ms Emmanuel was sent to a different address and there is no evidence she received it.
The money was transferred to IBC in St Lucia from Mr White's account. It is not clear what happened to the money after that but in any event it has not been repaid to Mr and Mrs Avison.
In April 2016 Ms Emmanuel tried to sell 18 Bennett Park. Her case is it was at this stage that she discovered the charge over her property and realised she was a victim of fraud. Ms Emmanuel started a similar claim in Lambeth County Court, instructing Astute Legal, but it was struck out.
Ms Emmanuel brought this claim (i) for declarations that her signatures on the charge and the loan agreement were forgeries and not binding on her, (ii) a declaration that she was not indebted to Mr and Mrs Avison for the sum purportedly loaned pursuant to the Loan Agreement (whether jointly with Mr White or not), and (iii) an order pursuant to Sch 4 of the Land Registration Act 2002 to alter the charges register relating to her property (18 Bennett Park, Blackheath, London) to remove the charge.
The trial
The matter came on for trial before the judge over five days at the end of July 2018. Ms Emmanuel and Mr and Mrs Avison were represented by counsel and Mr White represented himself. Both counsel appear on the appeal. Mr Temmink QC, who did not appear at trial, now leads Mr Buttimore for Ms Emmanuel.
The witnesses included Ms Emmanuel and her conveyancing solicitor for the April 2016 sale, Mr Phull. Mr White gave evidence as well as his wife and his two daughters. Mr White also called Mr Laverick. Mr and Mrs Avison also gave evidence. There was a report from a single joint handwriting expert, Mr Radley.
Ms Emmanuel denied she had been in Worthing on that day at all and denied signing the documents. Mr Phull's evidence was deployed to support the point that Ms Emmanuel was surprised to discover the charge.
Mr White's evidence was that the documents were genuine and it was Ms Emmanuel who had been at the café in Worthing to execute them. Mrs White and their two daughters essentially corroborated Mr White's case that Ms Emmanuel had been in Worthing on the relevant day. They said she had come to visit their home (there is a point of detail about that which I will return to).
Mr Laverick said he had no clear recollection of the occasion. However his register showed that he had confirmed the identity of the person purporting to be Ms Emmanuel by her driving licence and had noted the driving licence number in his register. The number is the right number for Ms Emmanuel. The address from the licence recorded in the register is an old address for Ms Emmanuel. I will come back to Mr Laverick's evidence below.
The evidence of the handwriting and document expert was inconclusive. His opinion was that Ms Emmanuel's genuine signature was simplistic, variable and insecure. It could be simulated by another with a fair degree of pictorial success. There is a point about dots and I will need to return to the handwriting expert's evidence below.
Mr and Mrs Avison had no relevant evidence to give relating to the dispute about execution of the documents by Ms Emmanuel. Their case is that the documents are genuine.
After the trial
The judgment was not given until about 10 months after the trial, for a number of reasons. Originally the judge indicated he would give an oral judgment in September 2018. However the first thing which went wrong was that the judge's set of the trial bundles, in which he had made copious notes, went missing from the court within a few weeks of the end of the trial. Despite a lot of searching they were never found. A replacement set had to be produced, obviously without the judge's markup.
There were also problems with notes sent to the judge after the hearing. These were on the issue of burden of proof. On Ms Emmanuel's behalf it was submitted that the burden lay with the defendants, on Mr and Mrs Avison's behalf it was contended it lay with Ms Emmanuel.
The audio recordings were sought but the initial versions included some for the wrong hearings or were of poor...
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