Kingley Developments Ltd v Brudenell and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Tomlinson |
| Judgment Date | 14 July 2016 |
| Neutral Citation | [2016] EWCA Civ 980 |
| Docket Number | B5/2014/1768 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 July 2016 |
[2016] EWCA Civ 980
Lord Justice Tomlinson
Lord Justice Lewison
B5/2014/1768
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON COUNTY COURT
(HIS HONOUR JUDGE DIGHT)
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr A Casey QC and Mr T Hammond (instructed by Huggins & Lewis Foskett) appeared on behalf of the Claimant/Respondent
Mr N Vickery (instructed by Archer Fields) appeared on behalf of the Defendant/Appellant
On 21 February 2012, Kingley Developments Limited paid £370,000 in order, so it thought, to acquire the freehold of 2, Collinwood Gardens, Woodford Green from Ms Elcock and Ms Brudenell. Of that sum, £115,000 was used to discharge a secured loan to Barclays Bank, about £30,000 was used to discharge another secured loan in favour of Kensington Mortgages, some money was paid to a Mr Patel and the balance of £237,811 was paid by CHAPS transfer into a bank account held by Ms Elcock and Ms Brudenell at NatWest.
To the untrained eye, the conveyancing documents seemed to be in order. Ms Elcock and Ms Brudenell were represented by AKL Solicitors, whose conveyancing file was in evidence. There was a contract of sale dated 21 February 2012, apparently signed by Ms Elcock and Ms Brudenell, and a TR1 of the same date, also apparently signed by them. On the latter document, their signatures were witnessed by Mr Vital Ruwala, a solicitor with ELS Solicitors, whose office stamp appears below his own signature. However, Ms Elcock and Ms Brudenell say that they never signed a contract or the TR1 or that, if they did, they did not know what they were signing.
As His Honour Judge Dight put it, the factual issue was a simple one: did Ms Elcock and Ms Brudenell sign the TR1 or were their signatures forged? After a trial lasting 6 days, he held that they did sign it and that they knew what they were doing when they did so. The main issue on the appeal therefore is a direct challenge to a finding of primary fact made by an experienced trial judge after hearing oral evidence from the relevant parties involved.
We have been supplied with copies of many cases at the highest level in which appellate courts have been repeatedly warned not to interfere with findings of fact by trial judges unless compelled to do so. This applies not only to findings of primary fact but also to the evaluation of those facts and to inferences to be drawn from them. These principles have been recently and authoritatively restated by the Supreme Court in McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477.
It is also important to have in mind the role of a judgment given after trial. The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge in giving his reasons to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing-up to a jury. It is sufficient if what he says shows the basis on which he has acted. That is not to say that a judge's factual findings are completely immune from attack. In Weymont v Place [2015] EWCA Civ 289; [2015] CP Reports 29, Patten LJ said, at paragraphs 4 and 5:
"4. But the relative immunity of the trial judge's findings of fact to interference on appeal depends upon the trial process having been conducted in a way which confirms that the trial judge has properly considered and understood the evidence; has taken into account the criticisms of the evidence advanced by the parties' legal representatives; and has reached a balanced and objective conclusion about points on which differing or inconsistent evidence has been given in making the factual findings which form the basis of his decision.
5. An important aspect of this process is the production of a properly reasoned judgment which explains to the parties and to any wider readership why the judge has reached the decision he has made. This includes making a reference to the issues in the case; the legal principles or test which have to be applied; and to why, in cases of conflicting factual evidence, the judge came to accept the evidence of particular witnesses in preference to that of others."
In Harb v Abdul Aziz [2016] EWCA Civ 556, this court overset the findings of fact made by Peter Smith J. Lord Dyson set out the general principle at paragraph 39:
"Our system of civil justice has developed a tradition of delivering judgments that describe the evidence and explain the findings in much greater detail than is to be found in the judgments of most civil law jurisdictions. This requires that a judgment demonstrates that the essential issues that have been raised by the parties have been addressed by the court and how they have been resolved. In a case (such as this) which largely turns on oral evidence and where the credibility of the evidence of a main witness is challenged on a number of grounds, it is necessary for the court to address at least the principal grounds. A failure to do so is likely to undermine the fairness of the trial. The party who has raised the grounds of challenge can have no confidence that the court has considered them at all; and he will have no idea why, despite his grounds of challenge, the evidence has been accepted. That is unfair and is not an acceptable way of deciding cases."
I do not read this as requiring a judge to pursue every twist and turn in the evidence. The criticism of the judge in both Weymont and in Harb was that he did not deal with the evidence which had a direct bearing on the issue he had to decide, namely in Weymont whether adverse possession had been established over different parcels of land and in Harb whether an oral agreement had been reached either in May or in August 2003.
An assault on a trial judge's findings of primary fact dependent on his assessment of the credibility of witnesses whom he has heard is the most difficult of all appeals in which to succeed. It is all the more difficult where, as here, we have not had sight of the transcript of the whole of the oral evidence. The appellant's notice in this case originally sought not only to set aside the judge's order but asked this court to give judgment for the appellants, it did not even ask for a new trial. The underlying premise was that we should accept the evidence of Ms Elcock and Ms Brudenell, which the trial judge rejected, and reject that of Mr Ruwala, which the judge accepted.
At the outset of the appeal, Mr Vickery fairly acknowledged that it would be impossible for this court to make the order that had been sought in the appellant's notice. He therefore applied for permission to amend in order to ask for a new trial. Mr Casey QC, did not oppose the amendment, so we allowed it.
The case which Ms Elcock and Ms Brudenell advanced at trial was that they did not intend to sell the property at all; what they wanted to do so was to buy an adjacent property but they needed to raise money for that purpose. They entrusted the raising of the money to two men referred to as Adam and Kwame, who were to remortgage 2, Collinwood Gardens in order to finance the new purchase. That is how they explained their undoubted receipt of £237,811, although they never identified the lender and produced no documents relating to the alleged loan. They accepted that they had instructed estate agents to market the property under a contract which entitled the agents to commission on sale and that a number of prospective buyers had viewed the property on the understanding that it was for sale. But they explained that by saying that the unidentified private lenders wanted to satisfy themselves that the property was saleable. They said that they had been defrauded by Adam and Kwame, who made it appear as if they had entered into a sale of the property. The signatures on the TR1 could be explained either on the basis that some unknown persons impersonated them at the signing and forged their signatures, or that Mr Ruwala witnessed a pre-signed TR1 bearing forged signatures which were slipped to him by Kwame while they were in the room, or that they signed the document thinking that it was something else.
The judge made some general findings of fact. At paragraph 19 he said:
"The defendants were cross-examined during the course of the trial as to their knowledge of financial matters. The picture which was sought to be created on their behalf was that they were of limited education and consequently had difficulty in understanding financial transactions of any complexity. However, by reference to the results of Experian searches, it was made plain that over the years the defendants had entered into a number of lending or borrowing arrangements with different entities; some for HP, some for straight loans and some for mortgages. The picture that was sought to be painted of their low level of appreciation of such matters was therefore not accurate."
Since the explanations proffered by Ms Elcock and Ms Brudenell were all based on the premise that they were semi-literate, unsophisticated women who had no idea about financial matters and believed anything that Kwame told them no matter how bizarre or...
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