Simer Kaur Dhillon v Barclays Bank Plc
| Jurisdiction | England & Wales |
| Judge | Pelling |
| Judgment Date | 12 March 2019 |
| Neutral Citation | [2019] EWHC 475 (Ch) |
| Docket Number | Case No: HC-2016-000441 |
| Court | Chancery Division |
| Date | 12 March 2019 |
[2019] EWHC 475 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
PROPERTY TRUSTS AND PROBATE LIST (Ch.D)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
HIS HONOUR JUDGE Pelling QC
SITTING AS A JUDGE OF THE HIGH COURT
Case No: HC-2016-000441
Mr Christopher McCarthy (instructed by Rainer Hughes, Solicitors) for the Claimant
Mr Timothy Polli QC (instructed by Dentons UK and Middle East LLP) for the First Defendant
Mr Nicholas Trompeter (instructed by Government Legal Department) for the Second Defendant
Hearing dates: 12–14 February and 12 March 2019
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.
HIS HONOUR JUDGE Pelling QC
HH Judge Pelling QC:
Introduction
This is the trial of a claim by which the claimant seeks an order directing the rectification alternatively alteration of the register maintained by the second defendant (“CLR”) for a property at 47 Moresby Road, London E5 9LE (“Property”) pursuant to Paragraph 2 of Schedule 4 to the Land Registration Act 2002 (“ LRA”) by deleting the entry in the Charges Register made on 20 November 2002 relating to a legal charge originally granted by Crayford Estates Limited (“CEL”) to Woolwich Plc, to which the first defendant (“BB”) has succeeded (“BB Charge”). Hereafter I do not distinguish between Woolwich Plc and BB, since nothing material turns on the distinction, other than in relation to BB's contention that these proceedings constitute an abuse of process.
The claimant maintains that the transfer of the Property to CEL was void by reason of her signature as registered proprietor having been forged on the transfer document by which what she contends to be her title to the Property was transferred to CEL and that although the Charge was valid as between CEL and BB, its entry should be removed from the Property's charges register because it is derived from the allegedly fraudulent transfer to CEL. Both defendants oppose the claim on a variety of different procedural and substantive grounds.
In addition, the CLR maintains that if the BB Charge is to be removed then that alteration would not be a rectification within the meaning of LRA, Schedule 4, Paragraph 1. The CLR is concerned about this point because rectification (but not mere alteration) will expose the CLR to a claim for an indemnity by BB under the statutory compensation scheme contained in LRA, Schedule 8. BB maintains that such an alteration would be a rectification entitling it to an indemnity under the scheme. For reasons that have not been explained, BB has not counterclaimed for an indemnity from the CLR in the alternative to its defence to the claim. BB submits in those circumstances that if I conclude that it is at least realistically arguable that such an alteration would not be a rectification then that would be an exceptional circumstance within the meaning of the Sched. 4 scheme that would justify not making the alteration sought. I return to this issue in more detail later in this judgment.
BB counterclaims against the claimant for a declaration that it is entitled to be subrogated either to the first charge or an unpaid vendor's lien arising prior to the allegedly fraudulent transfer to CEL in the event that the entry relating to the BB Charge is removed from the Property's Charges Register.
The trial took place between 12 and 14 February 2019. The only witness was the claimant. For reasons that I explain in detail below, I have concluded that the claimant's evidence is unreliable and in consequence I should be very cautious before accepting the evidence of the claimant save where it is admitted, corroborated by contemporaneous documentation or is against her interest.
Factual Background and Findings
At all material times prior to 3 October 2002 the Property was registered in the names of the Mayor and Burgesses of the London Borough of Hackney (“Hackney”) and was occupied by the claimant as a secure tenant from no later than 26 August 1993. She shared occupation of the property with her second husband, Mr Shaukat Hussain (“Mr. Hussain”) and her children.
The claimant maintained before me that she was and is unable to speak or write English (other than her name), that the only language she speaks is Punjabi but that she was and is unable to read or write that language. She gave her evidence throughout via an interpreter. Her assertion that she is unable to speak English is impliedly contradicted by an affidavit sworn by the claimant in earlier proceedings commenced by her against the Crown Estate Commissioners and BB relating to the freehold title of the Property (“the Title Transfer proceedings”), where she says only that she is unable to read or write English. I explain the significance of these proceedings later in this judgment. The claimant's assertion that she cannot now read or write English is contrary to an assertion contained in her statement in these proceedings. Both the statement and the earlier affidavit are written in English not Punjabi and signed by her. Although she maintains that the statement and affidavit were translated and read over to her in Punjabi before she signed them, there is no evidence that is so other than her oral evidence.
The claimant's first husband had died some years prior to the events with which these proceedings are concerned. The claimant claims that he left her various properties located in India although there is no documentation or other evidence apart from the claimant's assertion that this is so. There is no mention of this point in her statement filed in these proceedings or in her affidavit sworn in the Title Transfer proceedings. She maintains that at all times down to 3 October 2002 and thereafter she was in receipt of benefits but she was unable to tell me what benefits she was in receipt of. She said in the course of her evidence that the properties in India left to her by her first husband were sold and the proceeds transferred to her in England. She was unable to give any evidence as to when this is alleged to have happened, nor was she able to explain how the properties were realised and the proceeds transferred to the UK. The claimant suggested that the sum she received totalled about £80,000. It was not suggested by either defendant that the transfer of such a sum from India to the UK either violated Indian Exchange Control legislation or could have been effected only with the consent of the Reserve Bank of India. It was suggested to her however that she would have been obliged to report such a receipt to the UK government agencies that paid her benefits. Having been given a warning against incrimination by me on the application of her counsel before answering this question, the claimant then told me that the sum was not all for her, that the part she received was about £10,000 and the remainder belonged to and was divided equally between her five children.
Given that there is (a) no mention of the fact of this receipt in either the claimant's statement or earlier affidavit, (b) there is no corroboration in the form of bank statements or any other contemporaneous documentation nor (c) any evidence offered by any of the claimant's children that corroborates her assertion that each was entitled to receive and received some of the money allegedly derived from their late father's property in India, I reject her evidence that she received funds from India as she alleges (whether for herself alone or for herself and her children) as being untrue and recent invention. Whilst I acknowledge that she maintains that many of her documents were lost in the circumstances referred to below, it is inherently improbable that the properties said to be in India could have been realised without generating a paper trail involving lawyers, land agents, personal representatives and banks. Whilst it may be true to say that any documents held by third parties would have been destroyed by now that was much less likely to have been the case in 2003 when this dispute first arose. Indeed, had there been any truth in the point I am now considering, it is inherently probable that the claimant would have asserted it when first she instructed solicitors in 2003 and documentation to support it could and would have been obtained from relevant third parties by those solicitors even if the claimant no longer had such documentation. I return to the significance of this untrue assertion and the probable reasons for it later in this judgment. My conclusion on this issue is one of the reasons why I conclude that I must be cautious before accepting the claimant's evidence other than when it is admitted, against her interest or corroborated.
It is common ground that by 1999, the claimant had acquired a right to buy the Property under s.118 of the Housing Act 1985. The claimant claimed in her evidence that she sought to exercise that right by notice given to Hackney, which she maintains she completed with the help of her daughter. The claimant's case is that Mr Hussain fraudulently hijacked her application to exercise her right to buy at some stage thereafter and in the course of doing so forged her signature on a number of documents. I address this in more detail below. For present purposes it is necessary to note only that Mr Hussain was arrested, charged and convicted of offences apparently arising out of these events. In the course of the police investigation various interviews were conducted. One was of the claimant by Detective Constable Syria Hussain (“DC Hussain”). That interview is summarised in a statement by DC Hussain dated 1 July 2005 prepared...
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