SUN BANK Plc v ROGER PATRICK WOOTTEN First and MARY ELLEN WOOTTEN Second
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,LORD JUSTICE SEDLEY |
| Judgment Date | 15 October 2004 |
| Neutral Citation | [2004] EWCA Civ 1423 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B2/2004/0460(A) |
| Date | 15 October 2004 |
[2004] EWCA Civ 1423
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MEDWAY COUNTY COURT
(MR RECORDER SPON-SMITH)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Buxton
Lord Justice Sedley
B2/2004/0460(A)
B2/2004/0460
MR M SEFTON (instructed by Fordlittle) appeared on behalf of the Appellant
MR EYRE (instructed by Eversheds) appeared on behalf of the Respondents
MR R WOOTTEN appeared IN PERSON as an Interested Party
This is an appeal from a decision of Mr Recorder Spon-Smith in the Medway County Court. Judgment was handed down on 9th February 2004, the hearing having taken place in the previous December. That part of the chronology has some peripheral reference to the issues before this court. I should say straight away that no criticism is made in this appeal of the judgment of the Learned Recorder on the evidence as it stood before him. It is right that that is so, because I take the liberty of saying that the Recorder dealt with the case clearly and concisely and in a way that could not possibly be challenged.
The appeal turns on a question of fresh evidence and is effectively an application that the court should admit fresh evidence and, on the basis of that order, a re-trial. In order to understand why the fresh evidence matters and its relation to the previous proceedings, it is necessary to give some account of the trial and of the findings made by the judge; even though, as I say, those in themselves are not an issue.
The case was concerned with a claim for possession by the claimants, now called Sun Bank Plc, although they previously had a different name or incarnation, for possession of premises at Rochester Road in Burham, Near Rochester, Kent. The first and second defendants were Mr Roger Patrick Wootten and his then, and as I believe still current, wife Mrs Mary Ellen Wootten, the joint legal owners of the property. The claim for possession was founded on a legal charge dated 15th March 1990 ("the mortgage") . There was no challenge that the mortgage had been executed by Mr Wootten. It purported to have been executed by Mrs Wootten also, although the issue in the trial before the judge, and before us, was whether indeed she had so signed the mortgage.
The outstanding debt was very considerable. At the time of the trial it was nearly £200,000, and is no doubt more at the present date, there being a very heavy monthly interest charge and very few payments made either towards the interest or to reduce the capital. There was no doubt that the bank was entitled to possession, subject to what turned out to be the one issue that was live at the trial and certainly the one issue that was live before us, as to whether Mrs Wootten's apparent signature on the mortgage was in fact a forgery.
Mr and Mrs Wootten were married in 1970. There were no children of that marriage. A lady called Kim Wilkinson, who will feature in a later part of the narrative, is the daughter of Mrs Wootten by a previous relationship. The property with which we are concerned was purchased as the couple's matrimonial home in 1972. Unhappily, the marriage has not prospered and, according to Mrs Wootten's evidence at the trial, her husband spent progressively less and less time at the matrimonial home during the 1980s, and a final separation between them occurred in or about 1990.
In 1989 Mr Wootten decided to buy a property known as Munsgore Farm, in Sittingbourne in Kent. He was assisted by an independent adviser, Mr Colin Bull, who again will feature in the narrative. The purchase of that farm was achieved partly by means of a loan, with which we are not concerned, and partly by the advance that was secured by the mortgage. It should also be noted that, from 1990 to about 1993, Mr Wootten lived at Munsgore Farm not with his wife, but with a Miss Parker, a lady who is now known as Mrs Dursley, and will be so referred to when I come later to her role in the proceedings.
As I have said, Mrs Wootten asserts that her signature on the deed was a forgery. That was denied by Mr Wootten, because the necessary implication of Mrs Wootten's case was that, if her husband had not forged the deed, he indeed was complicit in it; and the strong suggestion appears to have been made that Mr Bull also had a role in those matters. The judge correctly directed himself that these grave charges had to be established to a degree of certainty that was commensurate with their gravity. That is a trite proposition. It is to be found most conveniently in the case of Re H [Minors] AC 563 at page 586G.
There were three signed documents in relation to the mortgage, including a signature on the mortgage application form. Scientific evidence was called from a well-known handwriting expert, or document examiner, a Dr Audrey Giles. She did not reach any conclusion upon which the judge found himself able to act, though her evidence to some extent, and weakly, pointed in the direction at least to the possibility that the signatures were not genuine. But the judge said this in paragraph 7 of his judgment:
"In my judgment Dr Giles' very tentative conclusions would not have been sufficient to justify a finding of forgery had they stood alone, for example if all the parties involved were now deceased. However, they do not stand alone as all the protagonists are still alive and gave evidence before me."
The judge reviewed the evidence of those persons, and I must again briefly state what they said and the conclusions that the judge reached, because that again is germane to the possible admission of evidence that was not available to the judge himself.
Mr Bull had witnessed the signature on the mortgage both of Mr and of Mrs Wootten and his evidence was that, not unsurprisingly, he did not remember the particular occasion 14 years then previously on which that had happened; but he said that he would not have signed as a witness unless he was satisfied that both parties had indeed signed the document. It was alleged on behalf of Mrs Wootten that Mr Bull was prejudiced in favour of her husband's case through friendship with him. The judge pointed out it that there was no evidence that that was so, and his finding in paragraph 8 of his judgment was that Mr Bull was a truthful witness. But, fairly, the judge said that there remained open the possibility that Mr Bull, while not in any way lying, had confused his dealings with the Woottens with another occasion involving other clients, or alternatively had managed to persuade himself that matters had been as he would have wished.
The judge then turned to Mrs Wootten and pointed out that Mr Bull's evidence corroborated the evidence of Mr Wootten that both the application and the mortgage had been signed by his wife. The judge said this about Mrs Wootten in paragraph 9 of his judgment:
"Making, I hope, due allowance for the fact that she is not accustomed to giving evidence in court, an experience which many people find uncomfortable and disconcerting, I am afraid that I found her to be an unreliable witness. Whether she was simply muddled, or it was a case of 'the wish is father to the thought', or whether Mrs Wootten was giving deliberately false evidence, is not an issue which it is essential for me to address, although I should record that Mrs Wootten struck me as neither unintelligent nor inarticulate."
The judge then supported or explained that finding as to Mrs Wootten with a fairly extensive account of, first of all, her failure to take action in respect of the forgery after she allegedly found out about it; and, secondly, extensive contradictions that he had discerned in her evidence. It is not necessary to go through those in any way, but I would venture to comment, with respect, that they do demonstrate that the judge looked at this case with considerable care, and in particular looked meticulously at the details of the evidence.
In paragraph 14, he summarised the matter in this way:
"I have no hesitation in saying that I prefer the evidence of Mr Bull to that of Mrs Wootten. I should add that although I have not referred to the evidence of Mr Wootten in any detail, I also prefer his evidence where it conflicts with that of Mrs Wootten on the central issues in the case."
The next person with whom the judge dealt, and with whom I must deal, was Miss Kim Wilkinson, whom I have already identified. Her evidence did not address the central issue of the authenticity of her mother's signature on the application and the mortgage. She came into the picture because there was in existence a deed of consent which Sun, the claimant, had required her to sign as an occupier of the mortgaged property. The document in question, the deed of consent, which plays an important role in this appeal, was not served on other parties to the case until 10th December, that is to say the day preceding the opening of the trial. An explanation was given for that, it appearing to be the case that advice was only given very late in the day that Miss Wilkinson should be called at all.
The purported witness to Miss Wilkinson's signature on the deed was the lady I have referred to as Mrs Dursley. In her evidence to the judge Miss Wilkinson said that she would not ever have permitted Mrs Dursley to act as a witness. It is necessary to look in some more detail at the evidence that Mrs Dursley gave at the trial, because I should say straight away that the fresh evidence that is sought to be adduced in...
To continue reading
Request your trial