Dass v Masih

JurisdictionEngland & Wales
Judgment Date08 March 1968
Judgment citation (vLex)[1968] EWCA Civ J0308-3
CourtCourt of Appeal (Civil Division)
Date08 March 1968
Banta Dass (an infant by Karam Chand, his next friend)
Plaintiff Respondent
Sardar S. Masih
Defendant Appellant

[1968] EWCA Civ J0308-3


The Master of the Rolls

(Lord Denning)

Lord Justice Salmon and

Lord Justice Edmund Davies

In The Supreme Court of Judicature

Court of Appeal

Civil Division

From His Honor Judge Rawlins Oxford County Court

MR J. ALLIOTT (instructed by Messrs Trower Still & Keeling, agents for Messrs. Thomas Mallam, Grimsdale & Co., Oxford) appeared as Counsel for the Appellant.

THE RESPONDENT did not appear.


Mr Dass came to England from India in September 1963. He claims in this action a sum of £298. 10s.0d. money lent to the defendant, Mr Masih. It is made up in this way: £100 in October 1964; £100 in March 1965; £15 in July 1965; £10 in August 1965; and other small items until the last one of £12 in October 1965. It seems remarkable that Mr Dass, during the short time he has been in this country, should have been able to save all those sums: and even more remarkable that he should lend it all to Mr Masih. not getting a receipt for any of the sums. Nevertheless he claims that he did lend the sums. In April 1966 he took out a summons in the Oxford County Court. It came on for hearing in June 1966. Mr Dass gave oral evidence in support of the loans. His wife supported him. He also produced a letter from Mr Masih which he claimed corroborated the first £200. It was written in the Punjabi language by Mr Masih on the 4th May, 1965, from the Osler Hospital, Headington. It has been translated for the Court. The first part of it is just a friendly greeting. It starts: "My dear Dass, Greetings": then a sentence or two and then finishing: "Would you come and see me this Friday. It is very urgent. Yours sincerely, S. Masih". But then near the signature, pressed into the bottom of the letter, there is this statement: "£200 will be paying you when I come out of the hospital". Mr Dass says that last sentence was written by Mr Masih in Punjabi in his handwriting and is written corroboration of the loan of the first £200.


At the hearing there was much controversy about that sentence. Mr Masih said that it was not his handwriting but was a forgery. It was inserted, he suggested, by Mr Daas. The Judge asked the forensic science laboratory in Cardiff to examine the letter. They could not express a definite conclusion one way or the other. The reason was because it was in Punjabi handwriting, of which they were ignorant. On that report being received, the Judge adjourned the case again.He told the plaintiff he should get an expert in handwriting. He also told Mr Masih to get an expert.


Eventually the case came on for hearing in May 1967. Mr Dass then called two witnesses. One of them said he had served in the police and knew the Punjabi language. The other was Mr Chopra, an M.A. of the Punjab University. They both said the disputed sentence was in the handwriting of Mr Masih. The defendant did not call any evidence. So judgment was given by the Judge against Mr Masih for the full amount of £298.


Mr Masih was disappointed by the result. He then went to great pains to try and get the evidence of a handwriting expert in Punjabi. There was none to be found in England. He wrote to the High Commissioner for India in London. The High Commissioner could not help. Mr Masih that wrote to a handwriting specialist in England, Major Wilkins, who gave him the names of three handwriting experts in India who were familiar with the Punjabi language. Mr Masih wrote to them. The first two each wanted £50 for an opinion. So Mr Masih did not engage them. The third, Mr Puri, said he would give an opinion for £15. Mr Masih engaged him. And on the 18th October, 1967, Mr Puri made a report on the disputed sentence. His report is seven pages long, It analyses the handwriting and goes into great detail about the hooks, curves, dots and the like. He came to the conclusion that the disputed sentence was not written by the defendant.


Thereupon Mr Masih went to the County Court Judge and applied for a new trial on the ground that this was evidence which he could not reasonably have had available at the trial. The Judge said: "If the evidence of the expert had been available, I might have come to a different conclusion". But he indicated that he would want to hear Mr Puri in person, and to have him cross-examined, before he could hold that the disputed sentence was a forgery. He thought that Mr Puri could not be got over from India: so it would be no useordering a new trial. He also said: "I am satisfied that the defendant did not exercise due diligence and it is, therefore, too late for him now to apply for a new trial".


Mr Masih appeals to this Court, with the assistance of legal aid. We have had before us the case of Ladd v. Marshall 1954, 1 Weekly Law Reports, p. 1491, which sets out the three conditions for a new trial. "First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive: thirdly, the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible, though it need not be incontrovertible".


It seems to me that those three tests are satisfied. In the first place I do not think that Mr Masih could reasonably have bean expected to get the evidence of Mr Puri for use at the first trial. It is true that the Judge, when he granted an adjournment, told him to get an expert. But there was no expert in Punjabi handwriting in England. and I do not think that at that stage he could have been expected to go beyond England. But when things went so badly for him, he went to the extreme length of writing out to India. Secondly, it seems to me that Mr Puri's evidence, if given orally, would have had an important influence an the result of the case. The Judge said: "If the evidence of the expert had bean available, I might have come to a different conclusion". It was also apparently credible: for the analysis appears to be carefully done: and such as to be accepted unless upset by cross-examination. But the difficulty is that Mr Puri is not here to give evidence orally. Mr Masih said he was ready to pay all the expense of getting Mr Puri over here. But I do not think that is a practical proposition. It would not be right to spend all that money over a claim of this amount. But Imust say that I think that Mr Puri's report itself would be admissible under the Evidence Act 1938.


Section 1 says: "In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say" (so far as material in this case) (i) "if the maker of the statement had personal knowledge of the matters dealt with by the statement" and (ii) "if the maker of the statement is beyond the seas and it is not reasonably practical to secure his attendance".


Applying the section it seems to me that the fact in issue was: Who wrote the disputed sentence? Did the defendant write it? I think that "direct oral evidence" would be admissible of that fact. Direct oral evidence could be given by someone who saw the defendant write or knew his handwriting. Next, I think that the statements made by Mr Puri in his report "tend to establish that fact". His report is an analysis of the disputed sentence. It tends to establish the fact that it was not in the handwriting of Mr Masih. It stands on the same footing as an analysis made by a chemist of a substance. It tends to establish its ingredients. Next, I think that Mr Puri had "personal knowledge of the matters dealt with by the statement" in that he had personal knowledge of the analysis contained in the report and of his opinion thereon. Finally, Mr Puri is beyond the seas and it is not reasonably practicable to secure his attendance.


In my opinion, therefore, Mr Puri's report would be admissible in evidence under the Evidence Act 1938. But its weight is an entirely different matter. That is for the Judge who tries the case.


It has been said that statements of opinion are not admissible under the Evidence Act 1938 but only statements of factI do not agree. When there is a fact in issue (such as the cause of death), the statements made by an expert in a report (stating the nature of the wounds and their probable cause) tend to establish that fact. Such a report by an expert who has examined the body is admissible. So also with any other report which is based on an analysis of observed facts.


In support of this view I would rely on Professor Cross in the latest edition of his book on Evidence, Third Edition, pp.485/6, together with the Australian authorities to which he refers, Warner v. Woman's Hospital, 1954 Victorian Law Reports, p.410; and Lenehan v. Queensland Trustees Ltd., 1965 Queensland State Reports, p.559. I would not suggest that every statement of opinion is admissible. For instance, if a bystander who saw an accident makes a statement of facts seen by him, that would be admissible: but if he gave his opinion that one of the drivers was negligent, it would not be admissible. It would not be admissible even if given on oath. So it is certainly not admissible under the Evidence Act. But the opinion of an expert, based on his observed facts, is admissible on oath: and if he is not available, his report is admissible under the Evidence Act. So Mr Puri's report is, in my opinion, admissible.


The only remaining question is whether, as a matter of discretion, a new trial should be granted. The Judge did not think it right...

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