Karsten v Markham
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jacob |
| Judgment Date | 22 July 2010 |
| Neutral Citation | [2010] EWCA Civ 924 |
| Docket Number | Case No: A3/2009/2722 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 July 2010 |
[2010] EWCA Civ 924
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(His Honour Judge Raynor Qc)
LORD JUSTICE JACOB
Case No: A3/2009/2722
Mr A Khan (instructed by CT Emezie Solicitors) appeared on behalf of the Appellant
Mr S Davies QC (instructed by WGS Solicitors) appeared on behalf of the Respondent
(As Approved)
Lord Justice Jacob:
This is a renewed application for permission to appeal from the judgment of HHJ Raynor QC given on 17 December 2009 for a stay of his order and for the setting aside of a freezing order granted by the same judge on 14 January 2010. Permission to appeal was refused on the papers by Patten LJ. Mr Khan now appears before me to renew that application for permission to appeal.
The details of the case appear from the judge's judgment. Broadly, the appellant, Mr Markham, and the respondent, Ms or Mrs Karsten, entered into a relationship from about 1999 until 2005. During that time she transferred, to use a neutral word, the sum of £850,000 in various tranches, as recounted by the judge, to the appellant. She claimed at the trial that this was by way of a loan. The appellant said it was a gift.
The key question before the judge was which of those two stories was true. She relied upon certain documents, an Acknowledgement of Indebtedness of 17 August 2005 and a trust deed of 6 October 2005, to reinforce her claim that this was indeed no more than a loan. The judge believed her and gave thorough and completely convincing reasons as to why he did not believe the appellant. He saw the witnesses. There was ample material upon which he could make the findings that he did. Once it was established that this money was by way of a loan, all questions of undue influence and the like which had been ventilated simply go out of the window. Oddly, of course, normally in a case of undue influence it is somebody who has been induced to part with their money where the point comes into play. Here it was the respondent who parted with her money, and before you get to any question of whether the two documents were obtained by undue influence or not you have to examine why she parted with the money, and the judge has found that she parted by way of loan.
Mr Khan first sought to raise a point of actual undue influence. That was not pleaded and in any event would not be relevant given that the money was by way of a loan. Mr Khan took me to paragraph 133 of the judgment where part of the pleading is recited. It goes nowhere near pleading actual undue influence. The point is not available on an appeal even if it had been relevant.
The next point Mr Khan took was that even if it was a loan, there was no details of the contract of loan and, in particular, no requirement that the loan be repayable at any particular time. That seems to me to be utterly misconceived in law. A loan does not have to be by way of a contract. The proposition that when A lends money to B, if nothing is said about it...
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... ... there is a genuine triable issue as to the existence of the petition debt: see Muir Hunter on Personal Insolvency , paragraph 3–414, and Markham v Karsten [2007] EWHC 1509 (Ch) , [2007] BPIR 1109 ... According to Briggs J in Markham v Karsten , the test for the existence of a genuine triable ... ...
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