Rahan Ali v Abu Bakar Siddique
| Jurisdiction | England & Wales |
| Judge | Lord Justice Kitchin,Lord Justice Lewison,Lord Justice Moore-Bick |
| Judgment Date | 16 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1258 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B2/2014/3723 & 3723(C) |
| Date | 16 December 2015 |
[2015] EWCA Civ 1258
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
Mr Recorder Rawlings
2YL76458
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
VICE-PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
Lord Justice Lewison
and
Lord Justice Kitchin
Case No: B2/2014/3723 & 3723(C)
Mr Alfred Weiss (instructed by Maya Solicitors) for the Claimant/Respondent
Mr Soofi P I Din (instructed by RDC Solicitors) for the Defendant/Appellant
Hearing date: 18 November 2015
Introduction
This is an appeal against the order of Mr Recorder Rawlings made on 27 October 2014 whereby he gave judgment for the claimant, Mr Ali, on his claim against the defendant, Mr Siddique, in the sum of £13,397 including interest and ordered Mr Siddique to pay 60% of Mr Ali's costs.
Mr Ali's claim had two parts. The first and major part was a claim by Mr Ali that Mr Siddique was liable pay him £22,050, this being a sum which Mr Siddique undertook to transfer from Mr Ali's account in England to Mr Ali's account in Bangladesh. The second and minor part was a claim by Mr Ali for a further £720 which he asserted represented the balance of a debt owed to him by Mr Siddique.
The claim for £22,050 was originally formulated in the particulars of claim in the following way. It was said that in late 2009 Mr Ali gave Mr Siddique two signed cheques, one for £18,900 and the other for £3,150. In neither case did the cheque include the name of the payee. The cheques were given by Mr Ali to Mr Siddique so that Mr Siddique could change the funds the cheques represented into Bangladeshi taka and credit them to Mr Ali's account in Bangladesh. It was further asserted that in this way Mr Siddique became both an agent of Mr Ali and a trustee of the monies or the chose in action each cheque represented. However, so the allegation continued, Mr Siddique wrongly retained the monies entrusted to him and thereby acted in breach of trust or was liable for money had and received.
At the trial, and despite objections raised by counsel for Mr Siddique, the Recorder allowed Mr Ali to amend his particulars of claim to allege that Mr Siddique owed to him a duty of care in respect of the transaction to which I have referred, that he had acted negligently and in breach of that duty of care in handing the cheques on to a third party, Mr Abdus Khan, and that, as a result, Mr Ali had suffered loss and damage.
The Recorder found that Mr Siddique received the cheques as Mr Ali's agent and that he held the cheques on trust for the specific purpose of effecting a transfer of the monies they represented to Mr Ali's account in Bangladesh. It followed, the Recorder continued, that the relationship between Mr Ali and Mr Siddique was sufficiently proximate for a duty of care to arise; that Mr Siddique had acted in breach of that duty; and that the breach had caused Mr Ali to suffer a loss. Mr Ali was, however, guilty of contributory negligence and accordingly it was appropriate to reduce the damages for which Mr Siddique was responsible by 50%. The Recorder therefore awarded to Mr Ali £11,025 in respect of this aspect of his claim. The Recorder also awarded Mr Ali just £32 in respect of the debt allegation which formed the second part of his claim. Finally, he awarded Mr Ali 60% of his costs of the action.
Upon this appeal, Mr Siddique contends that the Recorder fell into error in allowing Mr Ali to amend his particulars of claim at such a late stage. He also contends that the Recorder fell into error in holding that he had acted in breach of any duty of care he did owe to Mr Ali; in finding that any such breach had caused Mr Ali any loss; in only reducing the damages by 50%; and in awarding Mr Ali 60% of his costs of the action.
Mr Siddique also has an application for permission to adduce further evidence on appeal. This application occupied very little time at the hearing and it is convenient to deal with it at the outset. The evidence consists of an academic article concerning the informal value transfer system known as the Hundi system and various newspaper articles. I am not satisfied that this evidence could not have been obtained with reasonable diligence for use at the trial; nor do I believe that any of the evidence is such that, if given, it would probably have an important influence on the result of the case. I would dismiss this application.
The facts
Mr Ali came to England from Bangladesh in about 1986 and made his home in Bradford. In the years immediately preceding the trial he worked as a taxi driver. Despite the length of time Mr Ali had lived in England and the work he had undertaken here, he was unable to speak, write or understand English other than at a very basic level.
Mr Siddique came to England from Bangladesh in about 1993. He too lived in Bradford and, at the date of the trial, was employed by Bradford Council as a social worker. He has always spoken, written and understood English very well.
For very many years Mr Ali and Mr Siddique were extremely close friends and from time to time Mr Siddique assisted Mr Ali by writing letters and other documents for him in English.
These basic matters aside, virtually all other aspects of the relationship and dealings between Mr Ali and Mr Siddique were heavily disputed. They and the witnesses they respectively called gave accounts which widely diverged. Neither Mr Ali nor Mr Siddique emerged from the trial with any credit. The Recorder found that each gave evidence he knew to be untrue and adjusted his answers in cross-examination in an endeavour to improve his prospects of success. Further, each exaggerated the responsibility of the other for the transactions which underlie these proceedings. Nevertheless, the Recorder proceeded to make a series of findings of fact which neither side has sought to challenge on this appeal and which I must now summarise, together with an outline of the different accounts they gave.
Over the years, Mr Ali made relatively frequent transfers of funds from England to Bangladesh. He made these transactions for himself, his family and his friends and from time to time he made a profit from them. His experience was such that he was well aware of the costs associated with such transfers and how long they took.
In September or October 2008 Mr Ali agreed to transfer to Bangladesh for Mr Siddique 15 Bangladeshi lakh, that is to say, 1,500,000 taka. Mr Siddique gave Mr Ali £5,000 in cash and Mr Ali paid the balance of £7,032 necessary to effect the transfer from his own funds. He claimed that Mr Siddique therefore owed him this sum together with a further £688 in respect of various other small loans. He also claimed that Mr Siddique had only discharged £7,000 of this debt and that a further £720 was therefore due and owing to him. The Recorder did not accept that the further £688 was ever owed by Mr Siddique to Mr Ali and accordingly he awarded Mr Ali only £32 in respect of this part of the claim. Neither side has challenged this aspect of the judgment on this appeal.
Turning to the more substantial part of the claim, the Recorder found that in 2009 Mr Ali decided to remortgage his house so as to release sufficient funds to allow him to buy a property in Bangladesh at a cost of 35 lakh. Despite Mr Ali's assertions to the contrary, Mr Siddique did not encourage Mr Ali to take this course and assisted him only to the extent of helping him to complete an on-line expression of interest form and forwarding this on Mr Ali's behalf to a broker. Moreover and more generally, Mr Siddique did not at any time carry on or purport to carry on business as any kind of financial advisor. However, upon Mr Siddique indicating to Mr Ali that he could arrange the transfer of funds to Bangladesh at a favourable rate and in approximately 10 to 11 weeks, they agreed that Mr Siddique would arrange the transfer of the 35 lakh to Bangladesh for Mr Ali.
The parties gave radically different accounts of what happened next. Mr Ali said that, after deductions, he received into his bank account a sum slightly in excess of £20,000 from the remortgage. He continued that, on 21 October 2009, he met Mr Siddique at his home and Mr Siddique told him that he could not arrange the transfer of the entire 35 lakh with the funds Mr Ali had available but that he could arrange the transfer 30 lakh for £18,900, and that Mr Ali would need to raise a further £3,150 in order for him to arrange the transfer of the balance of 5 lakh. It was Mr Ali's case that, at the request of Mr Siddique, he signed a cheque for £18,900 and left it with Mr Siddique. He did not complete the details of the payee. Mr Ali's account continued that, in November 2009 and having raised a further £3,500, he returned to Mr Siddique's home and, on this occasion, left with him a second signed cheque but once again he did not complete the details of the payee.
Mr Ali also maintained that, in accordance with Mr Siddique's instructions, he waited for a number of weeks but no funds were ever received by him in his Bangladeshi bank account. Mr Ali then made enquiries of his bank. He then found out that the cheque for £18,900 had been made payable to a business called Sonargaon Finance and that the cheque for £3,150 had been made payable to an individual called Shipa Begum. Both cheques had been presented and had cleared.
Mr Siddique's account ran as follows. He said that in August 2009 he mentioned to Mr Ali that his family knew of a man who could transfer...
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