Tanner v Millar
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 23 January 2013 |
| Neutral Citation | [2013] EWHC 750 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No: CH/2012/0383 |
| Date | 23 January 2013 |
[2013] EWHC 750 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building,
110 Fetter Lane,
London EC4 1NL
Mr Justice Sales
HIS HONOUR JUDGE HULL
Claim No: CH/2012/0383
MR A KHAN appeared on behalf of the Appellant.
Approved Judgment
Wednesday, 23 January 2013
This is a renewed oral application for permission to appeal from a judgment of District Judge Pelly given in the Cambridge County Court on 31 May 2012. By that judgment, District Judge Pelly determined that the bankrupt, David Edwards, had paid away substantial sums to the respondent to the application, Mr Tanner, by way of a transaction at an undervalue, such that Mr Tanner should be ordered to repay those sums in the amount of £425,000 to Mr Edwards' trustee in bankruptcy, pursuant to section 339 of the Insolvency Act 1986. I refused permission to appeal on the papers and gave an extended set of reasons for doing so by order dated 9 October 2012.
On this renewed application, Mr Khan, who appears for Mr Tanner, seeks to emphasise five points. Three of the points involve an application by Mr Tanner to have fresh evidence considered by this court, or at any rate indicate that such an application would be made upon the hearing of an appeal and, he says, would be likely to be successful and could give rise to a real prospect of success on appeal.
The first ground of appeal that Mr Khan particularly relies upon today relates to fresh evidence that Mr Tanner would wish to adduce concerning the authenticity of a set of drawings said to be drawings by Francis Bacon, which Mr Edwards, the bankrupt, had sold by contract to a Mr Thompson, Mr Gowe and Mr Burr. The primary basis on which District Judge Pelly found that the bankrupt was insolvent at the time of the transfer of funds to Mr Tanner was that, in breach of the contract of sale in relation to those drawings, the drawings were not authentic. There was evidence before the district judge on the basis of which he concluded that, as a result of the contract of sale and the inauthenticity of the drawings, the bankrupt had a contingent liability to pay damages to the purchasers far in excess of his available assets at the time — see paragraphs [7]-[10] of the judgment, in which the district judge refers to proceedings which had been issued against the bankrupt in that regard leading to a default judgment for damages to be assessed.
The new material which Mr Tanner seeks to place before the court upon an appeal concerns court proceedings in Italy in the form of a judgment on a criminal prosecution of a Mr Ravarino — who is said to have given the relevant drawings to the bankrupt — in relation to what were alleged to be attempts by Mr Ravarino fraudulently to sell certain other drawings purportedly by Francis Bacon from a set of materials which Mr Ravarino maintained he had been given by Francis Bacon. The Italian court judgment is dated 22 March 2005 and resulted in the charges against Mr Ravarino being dismissed. The court concluded that the prosecution could not fully clarify the sustainability and subsistence of the "prosecutorial hypothesis". It appears that, in the light of evidence received in those proceedings, the court was not persuaded on what, in English court terms, would be a test of "beyond reasonable doubt" that Mr Ravarino had acted fraudulently.
In addition, Mr Tanner has placed before the court a witness statement of a Mr Guerini dated 18 January 2013; a witness statement of Anbra Draghetti, signed by her and dated 5 February 2011 (although curiously in the text referring to the appeal of Mr Tanner from the order of District Judge Pelly of 31 May 2012); a witness statement of Mr Ravarino; a further witness statement of Anbra Draghetti dated 3 January 2013; and a witness statement from Mr Tanner confirming his request in November 2012 for a translation of the Italian judgment. The statements from Ms Draghetti, as I understand it, are by a handwriting expert who had acted in the course of the Italian court proceedings. She has not had an opportunity to inspect the supposed Bacon drawings sold by the bankrupt to the purchasers under the purchase agreement in this case. In relation to other drawings in issue in the Italian proceedings, in the possession of Mr Ravarino, she expresses the view that they were drawings by Francis Bacon. The witness statement of Mr Guerini is the witness statement of the lawyer who acted for Mr Ravarino in those proceedings. He does not purport to be an art expert. He says at the end of his statement that
"In London I had an opportunity to view several of the drawings that Christiano Lovatelli Ravarino gave to David Edwards, and which Edwards subsequently sold to the father of Edward Bigden and to Richard Thompson, and I can confirm that they are part of Christiano Lovatelli Ravarino's collection."
The suggestion by Mr Guerini is, therefore, that the drawings sold by the bankrupt were genuine. The statement by Mr Ravarino also refers to an incident in which he gave to the bankrupt some of the drawings that Mr Ravarino maintains Francis Bacon had given to him, which he later learned had been sold by the bankrupt.
Mr Tanner, in his new witness statement accompanying these materials, does not explain when or how he learned of the Italian proceedings, nor does he explain when or how he learned of the availability of an account by, for example, Mr Ravarino, about the circumstances in which he gave the disputed drawings to the bankrupt. On any view, Mr Ravarino would have been an obvious person to ask for information about the provenance of the disputed drawings.
Mr Tanner's case, as presented by Mr Khan today, is that he was let down by his lawyers in the proceedings before the district judge in the Cambridge County Court. Mr Tanner, indeed, dismissed his lawyers partway through those proceedings. The suggestion is that, because of defaults by the lawyers, Mr Tanner could not, with reasonable diligence, have obtained the further evidence now sought to be placed before the court. The new evidence should, therefore, it is said, be admitted into evidence on an appeal and would be capable of giving rise to a real prospect of success for Mr Tanner on the appeal.
So far as the test for admitting further evidence on an appeal is concerned, I refer to the judgment of the Court of Appeal in Campbell v Daejan Properties Limited [2012] EWCA Civ 1503 at paragraph [31] in the judgment of Jackson LJ, where he said this:
"It is convenient to deal with the fresh evidence application at this stage. Under rule 52.11 (2) (b) of the Civil Procedure Rules ("CPR") the Court of Appeal may, in its discretion, receive evidence which was not before the lower court. This power, like all powers conferred by the CPR, must be exercised in a manner which will give effect to the overriding objective set out in Part 1 of the CPR. Rule 52.11 does not identify any specific factors to be taken into account. It is generally accepted, however, that the factors of principal relevance are those stated by Denning LJ in Ladd v Marshall [1954] 1 WLR 1489 at 1491. These are: (1) whether the evidence could have been obtained with reasonable diligence for use at trial; (2) whether the evidence would probably have an important influence on the result of the case; (3) whether the evidence is such as is presumably to be believed, even though it need not be incontrovertible."
Having regard to those factors, it is my clear view that the fresh evidence in relation to the Italian proceedings and the alleged authenticity of the Francis Bacon drawings would not be admitted on an appeal upon application of this guidance. Mr Tanner has failed to show that this is evidence which could not have been obtained with reasonable diligence for use at trial. I do not accept that reference to default on the part of his lawyers is a good excuse in this regard. It may be that that is a matter which gives rise to a legal liability on their part, if it is true, but it does not establish that this was evidence of a character which could not have been obtained with reasonable diligence for use at trial. Apart from anything else, seeking evidence from Mr Ravarino would have been an obvious course to take, which, in my view, ought reasonably to have been obvious to Mr Tanner himself, quite apart from his lawyers, since Mr Ravarino was the person who had provided the disputed drawings to the bankrupt. The bankrupt was cooperating with Mr Tanner in the...
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