Kanwal Sohal (as Personal Representative of Sandy Pyara Singh ("tony") Suri (Deceased), for the use and benefit of Namita Suri and Guy Spencer Elms) v Patwant Singh Suri (Respondent/Claimant) Makinder Kaur Suri (Aka Makinder Kaur Bhabra) (Second Respondent/Part 20 Defendant)
Jurisdiction | England & Wales |
Judge | Lady Justice Arden,Lord Justice Aikens,Lady Justice Black |
Judgment Date | 03 August 2012 |
Neutral Citation | [2012] EWCA Civ 1064 |
Court | Court of Appeal (Civil Division) |
Date | 03 August 2012 |
Docket Number | Case No: B2/2011/1054 |
[2012] EWCA Civ 1064
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SLOUGH COUNTY COURT
HIS HONOUR JUDGE ELLY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Aikens
and
Lady Justice Black
Case No: B2/2011/1054
and
Mr Thomas Graham (instructed by Blackstones Solicitors) for the Appellant
Mr John Robson (instructed by Cliffton Ingram LLP) for the Respondent
Hearing dates : 24–25 April 2012
What this appeal is about
The principal issue on this appeal is whether the judgment of HHJ Elly deciding that an oral agreement was made for the exchange of properties in Kenya in early 2000 is wrong and should be set aside so that a new trial can be ordered. This judgment will have to look at the judge's judgment in fine detail. However, a bird's eye view of the key conclusions to which he came can be found in a supplemental judgment which the judge wrote. I have inserted the most important paragraphs of that judgment into the appendix to this judgment. They give a very good insight into the process of reasoning which underlay the judge's judgment.
The events concerned the descendants of one Sarder Inder Singh Suri. As the judge did so, I will refer to the descendants of Sarder Suri by their first names. In 1900 Sarder Suri left his home in the Punjab and settled in Kenya. Sarder Suri became prosperous. He had five sons, one of whom was Patwant Singh Suri ("Patwant"), the respondent to this appeal, and one of whom was Pyara Singh Suri. The five sons together acquired a site and built on it a substantial residence, which I shall call Nakuru after the name of the place where it is situate, in a prestigious location in Kenya. Pyara died in 2001. He was the father of Sandy Pyara Singh ("Tony"), also now deceased. Tony's executor is the appellant. At the start of the new millennium in 2000, the descendants of Sarder Suri celebrated the centenary of Sarder Suri's arrival in Kenya with a party at Nakuru, then primarily the home of Tony and his wife Namita. In the course of these celebrations, which I will call "the centenary celebrations", Patwant alleged that he and Tony orally agreed to swop Patwant's half-share of Nakuru for Tony's interest as sole owner of a property in England, known as 9 Rectory Gardens, Wollaton, Nottingham ("Rectory Gardens") for KS 5,000.
Patwant executed a transfer of his interest in Nakuru in favour of Tony in early 2001 in Kenya. He contended that he did so in reliance on his arrangement with Tony. At no stage was there a transfer of Rectory Gardens by Tony to Patwant. It is common ground that, if Patwant and Tony made an agreement as alleged by Patwant and Patwant transferred his share in Nakuru pursuant to that agreement, there was a sufficient foundation for the conclusion in law that Rectory Gardens is now held on a constructive trust for Patwant.
Tony died suddenly in Kenya on 17 March 2007. He left a will but this did not refer to any specific property. Namita, his widow, did not then know of the agreement between Patwant and Tony and denied that it could have been made. There was a somewhat heated meeting between Patwant, Namita and two of Patwant's children at Patwant's house in Nottingham in July 2007 when the matter was inconclusively discussed, and, on Namita's case, an important admission made. Patwant accordingly brought these proceedings against Tony's executor, now the appellant, to establish his ownership of Rectory Gardens. The executors counterclaimed against Patwant and Makinder, his daughter (who was joined to the proceedings for this purpose), for an account of the rental income from Rectory Gardens which they had received.
Namita's challenge to the judge's judgment on this appeal has taken the form of a root and branch attack on the judge's reasoning in his judgment. I will, therefore, instead of just summarising the judgment of the judge in the order in which it is written, and without intending any disrespect to the judge, dissect the various strands of evidence in his judgment. I have grouped the facts under headings and I accept that it is arguable that the same facts should be included under different headings or more than one heading but that does not alter the core points that I wish to demonstrate. My approach will enable me to deal with the numerous detailed submissions made on this appeal more succinctly than I might otherwise have been able to do. Before I do so I should explain a little about the process of fact-finding and the limited nature of the appellate function.
MAKING FINDINGS OF FACT
The position is that judgments on questions of fact can be expressed in different ways. Consistently with the independence of the judiciary, it is left to the judge to decide how to express his conclusions, subject to review on appeal in accordance with what are for the most part well-established principles. It is not for this court to retry the case: our task is to review the judgment of the judge for error. The judge does not have to make a finding on every disputed item of evidence. It is enough if he makes findings on matters which he needs to resolve before coming to his conclusion. Likewise, there is no obligation on the judge to make findings if, after having considered the matter conscientiously, he forms the view that it is not possible to make a particular finding.
Returning to the judgment of the judge in this case, since he had to adjudicate upon the existence of an oral agreement made between two family members, one of whom had passed away, in the presence of one of the daughters of the survivor, he analysed all the circumstantial evidence to ascertain where the weight of the evidence lay.
There is nothing improper or unusual about this methodology. It was described thus by Pollock MR in Re Exall (1866) 176 ER 850, 4 F & F 922 when considering whether a crime had been committed:
"…all the circumstances must be considered together. It has been said that circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence—there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of."
It would follow from this that, if the judge drew some inferences from the evidence that are liable to be set aside on appeal, that would not necessarily mean that the whole of the judgment should be set aside. It would only be set aside if either that inference was an essential link in the chain of reasoning or if the inference was so intertwined into the "rope" of the judge's finding viewed collectively that it could no longer bear the weight of the conclusion.
The obverse of this principle is that, while appellate courts are reluctant to intervene where a trial judge has decided the case on the basis of a witness' demeanour (because the judge had the advantage of seeing the witness which they do not), they will do so if the trial judge's decision cannot stand when reviewed by reference to the objective evidence. Thus in Armogas v Mundogas (The Ocean Frost) [1985] 1 Lloyd's Rep 1, Robert Goff LJ, with whom Stephenson and Dunn LJJ agreed, held:
"Much argument was directed to the circumstances in which this court could and should reverse the findings of fact of a trial judge who had based himself upon his view of the credibility of witnesses which this court had not had the advantage of seeing and hearing give evidence. The principles are well established in authoritative cases including Montgomerie & Co. Ltd. v. Wallace-James [1904] A.C. 73, Powell v. Streatham Manor Nursing Home [1935] A.C. 243, Watt (or Thomas) v. Thomas [1947] A.C. 484, especially per Lord Thankerton, at pp. 487–488, and Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370. I have found particularly helpful the statement made by Lord Macmillan in Powell v. Streatham Manor Nursing Home, when he said, [1935] A.C. 243, 256:
"Where, however, as in the present instance, the question is one of credibility, where either story told in the witness box may be true, where the probabilities and possibilities are evenly balanced and where the personal motives and interests of the parties cannot but affect their testimony, this House has always been reluctant to differ from the judge who has seen and heard the witnesses, unless it can be clearly shown that he has fallen into error."
I respectfully agree with Browne L.J. when he said in In re F. (A Minor) (Wardship: Appeal) [1976] Fam. 238, 259, that in his experience it was difficult to decide from seeing and hearing witnesses whether or not they are speaking the truth at the moment. That has been my own experience as a judge of first instance. And especially if both principal witnesses show themselves to be unreliable, it is safer for a judge, before forming a view as to the truth of a particular fact, to look carefully at the...
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