Dale v Banga and Others
| Jurisdiction | England & Wales |
| Judge | Lady Justice Asplin,Mr Justice Hayden,Lord Justice Moylan |
| Judgment Date | 24 February 2021 |
| Neutral Citation | [2021] EWCA Civ 240 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2020/0385 |
| Date | 24 February 2021 |
[2021] EWCA Civ 240
Lord Justice Moylan
Lady Justice Asplin
and
Mr Justice Hayden
Case No: A3/2020/0385
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM DISTRICT REGISTRY
(Chancery Division)
His Honour Judge Simon Barker QC
(sitting as a Deputy High Court Judge)
B30BM185
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Brennan (instructed by FBC Manby Bowdler LLC) for the Appellant
Mr John Randall QC (instructed by Sydney Mitchell LLP) for the Respondents
Hearing date: 3 rd February 2021
Approved Judgment
This appeal raises the question of what the appeal court should do when fresh evidence is adduced after a trial which allegedly shows that the judgment below was obtained by fraud, the conduct relied upon being that of a witness and of a party to the action which took place after the events in issue, and is unrelated to the issues which were before the court. In particular, it raises the following questions: whether the fresh evidence (permission to rely upon it having already been granted) is capable of establishing that the Respondents misled the judge at trial by asserting that a letter of revocation in relation to a will had been duly attested; if so, whether the question of whether the judge was misled (the fraud issue) should be referred to the lower court to be determined or should be the subject of a separate action; and, if it is determined that the lower court was misled by fraud, whether a previous will should be admitted to probate on the basis of the original judge's obiter dicta.
These questions arise in the context of hard fought and bitter litigation between siblings about the estate of their father, Mr Kewel Banga, who died on 23 April 2014 (the “Deceased”). The Appellant, Mrs Paramjit Dale, is the deceased's daughter (“Mrs Dale”) and the First Respondent, Mr Ravindar Banga, is his son (“Mr Banga”). The second and third Respondents are two of the Deceased's grandchildren and are children of Mr Banga.
Background
The Deceased made numerous wills but the ones in question before the judge were a will dated 1 November 2012 which was substantially in favour of Mrs Dale and her family (the November 2012 Will) and a second will executed on 18 November 2013, which, for the most part, was in favour of Mr Banga and his family (the 2013 Will). The November 2012 Will had been followed by a letter of revocation dated 27 June 2013 (the “Letter”). It is the November 2012 Will which it is suggested should be admitted to probate if the fraud issue were decided in Mrs Dale's favour.
In a careful and detailed judgment, dated 22 November 2016, His Honour Simon Barker QC, sitting as a deputy High Court judge, decided that: the 2013 Will was only witnessed by one witness and, accordingly, was invalid (see [39] of the judgment) and the Letter had been executed and duly witnessed by the two attesting witnesses and, accordingly, was valid. As a result, the November 2012 Will had been revoked by the Letter and the Deceased died intestate. See [50] and [51] of the judgment. Despite not forming part of his ratio, the judge went on to record his “non-binding conclusion” (in summary form) in relation to the third issue which had been before him, namely, whether the November 2012 Will had been procured by undue influence which he rejected. See [52] – [58] of the judgment.
The trial took place over seven days in September 2016 and judgment was handed down on 22 November 2016. The order containing a declaration that the Deceased died intestate was made on 26 January 2017. By an application dated 24 February 2020, Mrs Dale sought permission to appeal, an extension of time and permission to rely upon fresh evidence. That relief was granted by an order made by Lewison LJ, dated 17 June 2020.
New evidence
It is said that in May 2019, Mrs Dale discovered that both Mr Saleem Arif, one of the two attesting witnesses to the Letter who gave evidence before the judge, and one of Mr Banga's sons, had been sent to prison. The criminal investigation was ongoing during the trial before the judge and Mr Arif's criminal trial took place in April 2019. He was convicted of fraudulent trading contrary to section 993 Companies Act 2006 and of being involved in a money laundering arrangement with Mr Banga's son contrary to section 328(1) Proceeds of Crime Act 2002. The fraudulent trading had taken place between 1 November 2014 and 31 May 2015. That was after the Letter had allegedly been signed by the Deceased and attested to by Mr Arif and the Second Respondent, Ms Rinku Kaur Banga, Mr Banga's daughter and the Deceased's granddaughter. It is said that the dishonest wrongdoing overlapped, in part, however, with preparation for the trial before the judge and, in particular, with the preparation of witness statements.
It is also said that in late January 2020, Mrs Dale discovered that as a result of the same criminal investigations, Mr Banga himself had been indicted with attempting to pervert the course of justice. In particular, it was alleged that he caused his solicitors to provide the investigating officers with a bundle of false invoices and false supporting documentation in an attempt to pervert the course of justice by seeking to persuade the investigating officers that there was a legitimate explanation for the £244,000 odd paid by Mr Arif to Mr Banga's family businesses between 5 November 2014 and 30 March 2015. Having been committed for trial, no evidence was offered and, accordingly, Mr Banga was acquitted. It is alleged, nevertheless, that it is incontrovertible that Mr Banga had sought to pervert the course of justice by the production of false invoices.
Mr Brennan, on behalf of Mrs Dale, submits that if the fresh evidence had been available to be adduced at trial it would have entirely changed the way in which the judge approached the question of the proper attestation of the Letter and his conclusion in that regard. It is said that the fresh evidence: undermines Mr Arif's credibility as a witness of fact (as to the attestation of the Letter); supports the conclusion that Mr Arif and Mr Banga are sufficiently dishonest to have attempted to deceive the court about the circumstances in which the Letter was signed by the attesting witnesses and even that it was a forgery and was produced on another occasion; made Mr Arif the obvious person to have been chosen to assist in attempting to deceive the court; and gave Mr Arif an obvious motive to assist Mr Banga and his family.
The Judge's approach
The judge dealt with the validity of the Letter at [40] – [51] of his judgment. As the judge noted at [7(2)] of the judgment, Mrs Dale challenged the Letter on the basis that it had not been properly attested by two witnesses. Although there were questions about why the solicitors to whom the Letter was addressed had never received a copy, the judge did not consider that to be of “particular significance to [this] issue”. He went on to note that Mr Brennan, on behalf of Mrs Dale, had “recognised this and in his opening submissions made clear that the evidence of the Second Respondent, [Ms Rinku Banga] and Mr Arif (that is what they say about the execution of the document) is crucial”. See [40] of the judgment.
The judge also set out six of the thirty-two points made by Mr Brennan in his written closing, as to why Mr Arif's evidence should be rejected, including the inability of the Respondents to produce evidence in the form of metadata to support the creation of the Letter at the time it was dated. The judge went on, nevertheless, to state at [47]:
“… In closing submissions, Mr Brennan acknowledged that the deceased signed the 27 June 2013 letter [the Letter]. So the question is whether it was duly witnessed by the second defendant and Mr Arif as witnesses to its execution. Mr Brennan submitted that Mr Arif is a plausible liar whose evidence falls far short of that necessary to overcome the flaws in the second defendant's evidence.”
At [48] of the judgment, the judge considered the confused evidence about originals and photocopy versions of the Letter and the question of where the copy contained in the bundle actually came from. He did not regard that matter as dispositive, however. Instead, he confirmed that he agreed with Mr Brennan's point in opening that “the evidence of the second defendant [Ms Banga] and Mr Arif is crucial”. He went on to add that so too was the context as to timing. There was contemporaneous documentary evidence that on 22 June 2013 the Deceased had first told Mr Banga that he had executed the November 2012 Will at the behest or with the encouragement of Mrs Dale and concluded that that was why the Letter was produced at very short notice as “swift action was thought necessary to protect the first defendant [Mr Banga] and his family's future financial interests.”
The judge described Mr Arif's oral evidence as a “cameo role”. Mr Arif had stated that he had spent about an hour at the Deceased's house, the Deceased had read through the Letter in his presence, two or three times, and that the signing and witnessing had taken place in his (Mr Arif's) and Ms Banga's presence. The judge also recorded that when challenged directly on whether he could be sure that he and Ms Banga had witnessed the Deceased signing the Letter, he had looked surprised and answered unhesitatingly, “Yes. We all signed together.” See [43] and [45] of the judgment.
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