Seema Ashraf (as executrix of Syed UI Haq (Deceased)) v The Chief Land Registrar
| Jurisdiction | England & Wales |
| Judge | Mr Justice Edwin Johnson |
| Judgment Date | 01 December 2022 |
| Neutral Citation | [2022] EWHC 3580 (Ch) |
| Docket Number | Case No: HC-2017-000642 |
| Court | Chancery Division |
[2022] EWHC 3580 (Ch)
Mr Justice Edwin Johnson
Case No: HC-2017-000642
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building
7 Rolls Buildings
Fetter Lane
London EC4A 1NL
Mr Matondo Mukulu (instructed by direct access) appeared on behalf of the Claimant
Mr Jonathan Allcock (instructed by Walker Morris LLP) appeared on behalf of the Sixth Defendant
APPROVED JUDGMENT
(Unreserved)
Introduction
This is the hearing of an application made by the claimant for permission to re-amend what are currently amended particulars of claim in this action. The application is made by an application notice which is dated 14 April 2022, which was issued on 19 April 2022. The application to re-amend is made against the parties who were the fifth and sixth defendants in this action. The application is only opposed by the sixth defendant. Accordingly, it is only the claimant and the sixth defendant who appear at this hearing of the application.
The claimant is Mrs Seema Ashraf in her capacity as executrix of the estate of Syed Ul Haq, who died in 2017. The sixth defendant is the Bank of Scotland plc. I will refer to the claimant as “ the Estate”. Where it is necessary to refer separately to Mrs Seema Ashraf, I will refer to her simply as “ Mrs Ashraf”. I will refer to the late Mr Ul Haq as “ the Deceased”. I will refer to the sixth defendant as “ the Bank” and to the fifth defendant, the Chief Land Registrar, as “ the CLR”.
At this hearing, the Estate has been represented by Mr Mukulu of counsel. The sixth defendant has been represented by Mr Allcock, also of counsel. I am most grateful to both counsel for their assistance in the hearing of this application. I should also mention that Mr Mukulu was only instructed very shortly before this hearing. This did not however prevent Mr Mukulu from being able to put the case of the Estate in support of the application to re-amend, in an effective manner, and to best effect.
An application to adjourn this hearing was made by Mr Mukulu on behalf of the Estate at the outset of the hearing, and this was resisted by Mr Allcock on behalf of the Bank. I refused the application to adjourn for reasons which I set out in a short separate judgment, which I delivered in court after hearing the arguments in relation to the application to adjourn. I will refer to the application for permission to re-amend which is before me as “ the Amendment Application”.
The Evidence
The evidence for the hearing of the amendment application comprises the following witness statements in addition to the other documents which have been included in the hearing bundle. There is a first witness statement of Robert Payne, who is a partner in the firm of Walker Morris, the Bank's solicitors in this matter, which is dated 21 June 2022. There is a second witness statement of Mr Payne, which is dated 12 August 2022. On the Estate's side, there is a first witness statement of Mrs Ashraf, which is dated 14 July 2022, and there is a second witness statement of Mrs Ashraf dated 5 August 2022.
The 2008 Transaction
I refer at this point to the judgment which I handed down earlier in this action on 21 March 2022. I will come back later in this judgment to the circumstances in which I came to hand down this judgment, which I will refer to as “ the Judgment” but for present purposes, the relevant point is that the background, both to the amendment application and to this action, is set out in some detail in the Judgment, which is very lengthy. In those circumstances, it is not necessary for me to go in detail into the lengthy and very complicated history of this matter. I can confine myself only to those matters which are directly relevant to the amendment application. I will, unless otherwise indicated, in this judgment use the definitions which were established in the Judgment.
The action is concerned with a property known as 91 Argyle Road, Ealing, London, W13 0LZ (“ the Property”). The freehold title to the Property is registered under title number MX389787. Until 23 June 2011, the registered proprietor of the Property was the Deceased. The registered proprietors of the Property subsequently became the fourth defendants to this action, or put more accurately, the parties who were the fourth defendants to this action, Mr Bavinder Singh and Mrs Sonia Nijjar. They acquired the Property from the Bank selling it as mortgagee of the Property in 2013. As at 19 April 2021, the registered ownership of the Property changed again to new proprietors.
Returning to the Deceased's interest in the Property, the Deceased acquired the Property in 2007 with the assistance of a mortgage loan from the Bank, which was secured by a registered charge dated 5 April 2007. In the Judgment, I define that charge as the “Original Charge”, but in this judgment it is more convenient to define the charge in relation to the Property as “ the Argyle Road Mortgage”, because that makes it easier to distinguish between that mortgage and another mortgage of another property to which I shall be coming shortly.
In 2008, the Deceased agreed to sell the Property to a Mr Attarian, the third defendant in this action, for £1.25 million plus £8,000 for fixtures and fittings. Mr Attarian was purchasing the Property with the assistance of a loan also from the Bank, which was to be secured by a registered charge over the Property, which I define in the Judgment as “ the Attarian Charge”. The loan documentation identifies the amount of this mortgage loan, which was said to have been secured by the Attarian Charge, as £1.125 million.
As in the Judgment, I will use the expression “ the 2008 Transaction” to refer to the transaction (the intended sale and purchase of the Property) which took place between the Deceased, Mr Attarian and the Bank in 2008. As in the Judgment, I use the expression without prejudice to the question of whether the 2008 Transaction actually took effect as a transaction with any legal effect.
The solicitors who were instructed to act on the 2008 Transaction were a firm called FLP Solicitors (“ FLP”). FLP acted in the 2008 Transaction for all the parties, meaning the Deceased as the intended vendor, Mr Attarian as intended purchaser, and the Bank as intended mortgage lender. One important consequence of this was the funds provided for the purchase were dealt with by FLP. There was no other firm of solicitors involved in the 2008 Transaction through whose hands the purchase funds also passed.
The case of the Estate in this action is that the Deceased was the victim of two frauds in relation to the 2008 Transaction. First, while the mortgage monies advanced by the Bank were under the control of FLP in their client account, they were misappropriated. It is said they were misappropriated by a Mr Uddin, an employee of FLP, or an individual who was working for FLP, who was subsequently imprisoned for this offence. When I refer to the mortgage monies advanced by the Bank, what I am referring to are the mortgage monies which were advanced by the Bank to Mr Attarian, the third defendant to the action, which were intended to be secured by the Attarian Charge.
Second, the Estate's case is that the signature of the Deceased was forged on the form of transfer by which the transfer of the Property to Mr Attarian was said to have been effected. It was on the basis of this allegedly forged transfer, the “ 2010 Transfer”, that the Bank was able to procure its own registration as proprietor of the Attarian Charge and Mr Attarian's registration as the freehold proprietor of the Property.
The Inglis Road Possession Proceedings
Prior to his death, the Deceased also owned a property known as 35 Inglis Road, London, W5 3RL (“ 35 Inglis Road”) which was also charged to the Bank by a mortgage which I believe was entered into on 14 July 2006 (“ the Inglis Road Mortgage”). It is necessary at this stage to say a little about what happened in relation to the Inglis Road Mortgage. The position was this. On 29 May 2014, the Bank issued possession proceedings in respect of 35 Inglis Road against the Deceased. It will be recalled that the Deceased died in 2017. Those proceedings for possession (“ the Inglis Road Possession Proceedings”) were commenced I believe in the Brentford County Court, and the sole ground for possession in the original...
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