Omar Abdul Fattah Ahmed v Nitai Addy and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mackay |
| Judgment Date | 25 June 2004 |
| Neutral Citation | [2004] EWHC 1465 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ02X00862 |
| Date | 25 June 2004 |
[2004] EWHC 1465 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Mackay
Case No: HQ02X00862
Mr. T. Sisley (instructed by Magwells Solicitors) for the Claimant
Mr. A. Rawley Q.C. and Mr. N. Tavares (instructed by Clyde and Co. Solicitors) for the Defendants
Hearing dates: Monday 17th May —Thursday 27th May 2004 (excluding 26th May)
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is a remarkable case. It is a variation on a theme sadly familiar in this Court commonly known as an advance fee or Nigerian 419 fraud. The Claimant's case is that he was induced by representations fraudulently made by both Defendants to part with some £188,000, most of which he borrowed, in return for which he would receive $2m the venture centring on the release of a fund of some £36m held in Nigeria. The First Defendant makes no counter-claim, but his case now is that far from being the fraudster he himself had sent over the relevant period something over £173,000 to various recipients in Nigeria, all upon the instructions of the Claimant who promised him a significant return. Neither Claimant nor First Defendant has seen any return on their money, nor has the money itself been returned.
The case is riddled with documents of the utmost unreliability. The Claimant says that a large number of documents purporting to come from the Nigerian authorities and to establish the First Defendant's entitlement to the £36m sum were gradually and skilfully deployed by the First Defendant to encourage him to pay out further sums. The documents, he says, are entirely bogus and were either generated by the First Defendant or by some associate of his. The First Defendant says that, with one important exception, he has never seen these documents before this litigation started and they must therefore have been produced by the Claimant (who had access to his, the First Defendant's, office and typewriter/computer in order to generate them). I am concerned only with the claim for £188,000 and interest on it. There is no counter-claim before me. In July 2003, two weeks before this matter was first due for trial, the First Defendant issued separate High Court proceedings which included a claim for £200,000 out of which sum he said he had been defrauded by the Claimant. After the Claimant's action was adjourned for other reasons he made an unsuccessful attempt to consolidate the two sets of proceedings. His action was stayed on terms ordered by the Court. Notwithstanding that, I of course have to consider his allegations of fraud against the Claimant as part of his defence. In effect I am considering a mirror image set of allegations by each against the other. Where above I paraphrase the First Defendant's 'case' I do so by reference to his pleadings and/or his witness statement and/or the submissions made on his behalf. He has declined to give evidence before me; his wife the Second Defendant has done so.
The approach to the facts
I remind myself at the outset that the allegations made by Dr. Ahmed against Dr. Addy and his wife are of the most serious kind, particularly when made against professional people. Under the principle in Hornal v Neuberger Products Limited [1957] 1 QB the burden of proof which falls on the Claimant in this litigation is a high one. Because of the nature of these allegations, involving as they do not an isolated fraudulent representation but a sustained campaign of deceit and forgery, I ought not to find in favour of the Claimant unless I am satisfied to the criminal standard that his claim is proved.
Faced with a series of factual issues such as this case presents I have to attempt to resolve them by asking the following questions. What is the inherent likelihood or improbability of each side's position on the key issues? Is it internally consistent or does it contain contradictions? Is any party's case corroborated by any reliable documentation or witness? Has any party put forward any bogus documentation in support of his case? Does the conduct of the parties in the litigation itself shed any light on their reliability or honesty? It is also the case that the demeanour of each witness falls to be judged. That however is rarely on its own a sufficient or satisfactory means of deciding a case of this type and comes lower down the list of judicial tools available for the case's resolution.
The history of the action
The Claimant delayed many months before taking any action. He told me and I accept that he was apprehensive about embarking on litigation and had the example of a medical colleague whose fingers had been badly burned notwithstanding that he won his case. Likewise he thought an approach to the police inappropriate as it would delay the matter and might be unlikely to produce a positive result. I accept these explanations for his delay as reasonable.
On 20 th March 2002 he obtained a Freezing Order from Garland J without notice. On 22 nd March 2002 Mr Shurvell a private investigator went to 156 Nelson Road which was a house belonging to the two Defendants in the grounds of which stood the Second Defendant's surgery. He endeavoured to serve the documents including the Order and the evidence in support of it. He went to the surgery and was told that "neither of the doctors are here" although he noticed a lot of people waiting in the surgery. At 9.35 am according to his evidence, which I accept, a short stocky Asian woman aged about 50 walked down the side of the surgery carrying shopping bags. He asked if she was Dr. Karawal and she said "no I am not Dr. Karawal". She claimed merely to work at the premises and had permission to park in the garage. She refused to accept any papers and asked him to leave or she said "I will call the police and they will throw you off my property". I am satisfied this woman was Dr. Karawal, and that she was intending to frustrate service of legal documents on her. However, I think it unfair, in view of the opinion I have formed on her as a person and a witness, to put any construction on this refusal other than that she is, as a result of her character and disposition a determined woman, hostile to all approaches she sees as signs of aggression towards her and her husband, and that there is a strong streak of arrogance in her makeup.
The next relevant hearing took place on 21 st May when an attempt was made by the Defendants on application to Hallett J to oppose the continuation of the Freezing Order which was unsuccessful as was a further application to Cox J on 16 th December 2002 to vary.
There was considerable interlocutory activity about the provenance of the documents. An Order of Hallett J had required preservation of the typewriter on which many of the disputed documents had allegedly been written so they could be compared with documents produced for the Court's use which were agreed to have been produced on it. Had she been told, as I have been told, that this machine's daisywheel printer had been changed in April 2002 because it had worn out she would not, I imagine, have made that Order. As it was, for many months the parties quarrelled about this aspect of the case. An Order for expert evidence was made on 10 th October 2002 and that had to be clarified on 1 st July 2003; whereupon the expert found that indeed the daisywheel had been changed. In the meantime the trial had been listed for 15 th July 2003 but that date was vacated so that the implications of the expert evidence only recently to hand could be absorbed by the parties.
The trial was re-listed for hearing on 8 th March 2004. On 25 th February 2004 the Defendants applied to Royce J to consolidate a further action the First Defendant had brought (that application was refused) and vacate the trial date on the grounds of the Defendants' ill health. He vacated the date to the extent of re-fixing it for 17 th May and ordered facilities to be provided for the Claimant's solicitors to examine the Second Defendant and to provide GP and hospital notes on both Defendants.
Again much time was spent giving effect to that Order. The Defendants' solicitors, as I must assume on the instructions of Dr. Karawal, said that she had to be examined at home and she was unfit to travel even a moderate distance such as from Gillingham to Tunbridge Wells for the purposes of any examination. The result was that she was not seen by the Claimant's appropriate experts until home visits in May. I must address the question of the health of each Defendant later in this judgment.
On 10 th May 2004 the Defendants again applied to vacate the trial date on the grounds of ill health. Grigson J dismissed their application describing it on the material before him as "a deliberate attempt to deceive the Court as to the condition of both" but reserving to the Defendants the right to renew their application to the trial judge.
At the start of the trial before me counsel for the Defendants produced a series of three medical reports on the Second Defendant indicating in the first that she was unfit for work for three weeks due to fibromyalgia plus or minus compression fracture L4/5. The second stated that she had been admitted to the Medway Maritime Hospital with severe back pain, with a provisional diagnosis of low back syndrome with fibromyalgia and was being investigated to enable a proper diagnosis to be reached. The third indicated that she had suffered a severe recurrence of back pain over the weekend preceding the trial and was exhibiting difficulty in moving and tenderness...
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Barrington C. Smith v Betty Norma Smith-Forbes
...degree of probability that is required.” This authority has subsequently been followed in authorities e.g. ( Ahmed v Addy and another 2004 EWHC 1465 (QB), Bush and another v King (2013) EWHC 966 (QB).” (Emphasis added) 14 There was no allegation of fraud, but about forgery. Additionally, ......