Yashwant Dahyabhai Patel v Girish Dahyabhai Patel and Others
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Marcus Smith |
| Judgment Date | 26 May 2017 |
| Neutral Citation | [2017] EWHC 1588 (Ch) |
| Docket Number | Case No: HC-2017-000905 |
| Court | Chancery Division |
| Date | 26 May 2017 |
[2017] EWHC 1588 (CH)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
7 Rolls Buildings
Fetter Lane
London
EC4A 1NL
Mr. Justice Marcus Smith
Case No: HC-2017-000905
Mr. D. Head, Q.C. (instructed by Gardner Leader LLP) appeared on behalf of the Applicant
Mr. J. Russen, Q.C. andMr. L. Scher (instructed by Stevens & Bolton LLP) appeared on behalf of the Respondents
Introduction
This is an application made by the Applicant pursuant to CPR Part 81.18 and/or CPR Part 81.14 and/or the inherent jurisdiction of the Court for permission to commence committal proceedings against each of the four Respondents, who have been jointly represented before me on this occasion by Mr. Jonathan Russen, Q.C. and Mr. Laurie Scher.
Since four of the five parties bear the same name, I shall refer to them by reference to their titles in the application: I shall thus refer to the "Applicant" and to each of the Respondents as "R1" to "R4". The Applicant, I should say, is represented by Mr. David Head, Q.C.
The application
I refer to the application notice. This is in the form of a claim under CPR Part 8. The details of the claim are as follows:
"1. The Applicant seeks the court's permission (pursuant to CPR 81.18 and/or 81.14 and/or the inherent jurisdiction of the court) to make an application for committal (and if such permission is granted) asks for an order committing each of the Respondents to prison and/or imposing a fine upon each of the Respondents and/or imposing such other sanction on each of the Respondents as the court considers appropriate ("Committal Application"), on the basis that the Respondents and each of them have acted in contempt of court, including by interfering with the due administration of justice and/or by making a false statement of truth and/or by committing contempt in the face of the Court.
2. A detailed statement of grounds for bringing the Committal Application against each of the Respondents is appended to this claim form at Schedules 1 to 4.
3. The evidence on which the Applicant relies is contained in the First Affidavit of Christopher George Felton, dated 27 March 2017.
4. In brief, the Applicant contends that in proceedings in the Chancery Division under claim no. HC-2015-002485 the First Respondent (as Claimant) advanced a fraudulent claim against the Applicant (as Defendant) seeking relief to which the First Respondent knew he was not entitled, that each of the Respondents gave false evidence in support of that claim in witness statements verified by statements of truth and/or in sworn affidavits and/or in sworn oral evidence to the court during the trial of the claim without an honest belief in the truth of such evidence. The claim was dismissed with indemnity costs, the trial judge finding that the document on which the claim was based was a forgery."
As mentioned in the application notice, the grounds for the application are set out separately in respect of each Respondent. Thus, Schedule 1 deals with R1, Schedule 2 with R2 and so on.
The factual background
The substance of the grounds against the Respondents is the similar, arising as they do from a judgment of Mr. Andrew Simmonds, Q.C., sitting as a Deputy Judge of the Chancery Division in the High Court. That case, Patel v. Patel is reported at [2017] EWHC 133 (Ch).
The essential factual background can be derived from the Applicant's skeleton argument, beginning at paragraph 8:
" 8. [R1] issued the will proceedings in June 2015 seeking a grant of probate in solemn form of the 2005 Will, and revocation of the earlier grant in respect of the 1985 Will. As noted by the Trial Judge at paragraph 107(6) of the Judgment…the potential upside of success in the Will Proceedings (and therefore strong motivation to forge the 2005 Will) was control of a US$50m interest in Aumkar via [R1's] interest in Barrington, as well as tactical advances in other litigation.
9. [R1 's] case in the will proceedings was that the Deceased visited him in London in May/June 2005, that conversations between the Deceased and her sister led the Deceased to fear that her money would be given in the Swaminarayan sect of which she did not approve and that she insisted that [R1] should draft a will for her, which [R1] eventually agreed to do.
10. [R1] advanced a factual account as to the circumstances of execution by the deceased of the 2005 Will on 23 June 2005 supported by the evidence of [R2], [R3] and [R4] ("the Respondents' Factual Account").
11. In summary, the Respondents' Factual Account was as follows: the Deceased executed the 2005 Will at the offices of [R1's] company, Barrowfen Properties Limited in Gorst Road, London NW10. [R1] arranged for [R4], his assistant, to type up the 2005 Will, which Girish had previously prepared in manuscript. [R1] asked [R2] and [R3], who were visiting the Gorst Road offices on that day, to witness the execution of the 2005 Will and they agreed to do so. Since the 2005 Will was in English and the Deceased did not read or write English, [R1] read out each clause, translating it into Gujarati, and gave his mother a brief oral explanation in Gujarati of the effect of each such clause. The Deceased indicated her assent in the presence of [R2] and [R3], who are fluent in English and Gujarati. [R4] was also present at a desk in the corner of the room and witnessed these exchanges. The Deceased then signed the 2005 Will in the presence of [R2] and [R3], who then signed the 2005 Will as witnesses.
12. This account was advanced in considerable detail in the pleadings, witness statements and affidavits signed by the Respondents as identified in [the evidence, which was then referenced by the Judge].
13. At trial the court also heard highly significant expert evidence…from Robert Radley (forensic document examiner) and Dr. Valery Aginsky (forensic chemist) instructed by the Applicant and Gerald LaPorte (expert ink-testing) instructed by [R1].
14. The absence of certain expert evidence was also highly significant: although [R1] instructed Dr. Audrey Giles (another leading forensic document examiner) to carry out a similar examination to that performed by Mr. Radley, [R1] chose not to serve any written report from Dr. Giles and Dr. Giles was not called by him to give evidence at trial."
Skipping paragraph 15 of the skeleton argument, and moving on to paragraph 16, this summarises the effect of the judgment:
"16. The Trial Judge handed down Judgment on 10 February 2017…He dismissed the claim with indemnity costs, explicitly finding that [R1] forged the 2005 Will (see paragraph 106 of the Judgment). The principal reasons for that conclusion are identified in paragraph 107 of the Judgment. In summary:
16. 1. [R1's] account was implausible. This included the fact that the content of the 2005 Will was inconsistent with [R1's] purported justification for its creation., and the fact that [R1] claimed that he had completely forgotten about the 2005 Will until reminded about it by [R3] at a family gathering in Christmas 2014, which even [R1] himself described as "very odd".
16. 2. [R1's] account was contradicted by the documentary record. This included the fact that in the so-called "October 2014 e-mail"…, [R1] himself had stated: "Our mother never once over the 25 years prior to her death spoke of having executed a will". Further, when confronted in other proceedings with the 1986 Will, he complained about that will but did not mention the single most important point, if his case were true, namely that a later will had been executed.
16.3. The court was unable to attach any weight to the account given by [R1], [R2] and [R3] other than as reliably corroborated by other evidence, since each of them had lied brazenly to the court. This was a reference to the fact that…[R1], [R2] and [R3] all initially gave evidence that they had not seen each other for a period of some weeks or months prior to the trial. However, following cross-examination [R2] admitted that she, [R1] and [R3] had in fact met at [R3's] house in the evening immediately prior to the commencement of the trial. [R1] and [R2] were then recalled, and admitted their attendence at that meeting, albeit claiming its purpose was innocent (a claim rejected by the Trial Judge)."
I shall refer to that meeting as the "Sunday night meeting".
"16. 4. [R4's] account was also unreliable, for different reasons.
16.5. There was no independent corroboration of [R1's] case: among other things, no-one was told about it, no copy was taken, there was no documentary reference to it before February 2015, there was no computer metadata available.
16. 6. [R1] had a strong motive to forge the 2005 Will (i.e. control of US$50m interest in Aumkar and tactical advantage in other proceedings).
16. 7. [R1] exercised influence over [R3] and [R2], enabling him to persuade them falsely to witness the 2005 Will.
16. 8. [R1] had available to him blank documents pre-signed by the Deceased. The need to fit around her pre-existing signature explained the peculiar layout of the 2005 Will.
16.9. The expert evidence was inconsistent with [R1's] case. In particular, there was no explanation for the "ESDA lifts" i.e. tests showing multiple impressions of the Deceased's signature in close proximity, consistent with her having pre-signed a number of blank documents. The court accepted Mr. Radley's conclusions as to the date of the Deceased's signature, i.e. that the signature on the 2005 Will...
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