B e f o r e :
|In the matter of:|
|Randhawa v Randhawa|
|(Divorce: Decree Absolute, Set Aside, Forgery)|
Christopher Stirling counsel instructed by Debidins on behalf of the respondent.
Dates of the hearing:
24, 25, 26, 27 and 28 May 2021, 24 June 2021
and 4 and 5 October 2021
This Judgment was delivered in open court.
Crown Copyright ©
His Honour Judge Moradifar:
a. the divorce proceeded without any notice to her, and
b. that the acknowledgement of service document in which it is asserted that she has received the Petition for divorce and does not wish to defend it, was never signed by her, and
c. any signature on that document purporting to be her signature is a forgery.
a. What was Mrs Randhawa's knowledge of the divorce Petition dated 22 January 2010 ?
b. Did Mrs Randhawa sign the acknowledgement of service that was signed on 11 February 2010? If not,
c. Was the signature forged by Mr Randhawa or on his behalf?
d. Depending on the answers to the above questions, should the decree absolute stand or be dismissed?
"54. That a witness's dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments, and with respect to the Recorder as we see in her judgment at , in formulaic terms:
"that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything".
But this formulation leaves open the question: how and when is a witness's lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire 'Lucas' direction as given, when necessary, in criminal trials.
55. Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:
"1. A defendant's lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D's guilt.
2. The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D's lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …"
56. In Re H-C (Children)  EWCA Civ 136 @ , McFarlane LJ, as he then was said:
"99 In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the "lie" has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice.
100 … In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt."
57. To be clear, and as I indicate above, a 'Lucas direction' will not be called for in every family case in which a party or intervenor is challenging the factual case alleged against them and, in my opinion, should not be included in the judgment as a tick box exercise. If the issue for the tribunal to decide is whether to believe X or Y on the central issue/s, and the evidence is clearly one way then there will be no need to address credibility in general. However, if the tribunal looks to find support for their view, it must caution itself against treating what it finds to be an established propensity to dishonesty as determinative of guilt for the reasons the Recorder gave in . Conversely, an established propensity to honesty will not always equate with the witness's reliability of recall on a particular issue.
58. That a tribunal's Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis , or itself determines, that such a direction is called for, to seek Counsel's submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness before the court".
"It is, in my judgment, quite plain that where there has been no service of process any order made in the litigation in which process should have been served must necessarily be void, unless service has been in some way dispensed with validly. This is a case in which orders were made; first the decree nisi, subsequently the making absolute of that decree, on the basis of a supposed service of a process which had never been served at all. I take that fundamental proposition as regards the law in general from Craig v Kanssen  KB 256, a decision of the Court of Appeal, in which such lack of service was described by Lord Greene MR as rendering the subsequent order void because of that, as he said, fundamental vice".
Additionally, I have further considered and applied as I must the observations of the former President of the Family Division, Sir James Munby in M v P  EWFC 14 (22 March 2019.
a. Shops in Slough and High Wycombe that were purchased in 1987.
b. The family home now occupied by Mrs Randhawa and the parties' daughters, identified as 10 Cedar Way.
c. Chalvey Shopping Centre. The lease on this property was acquired in parties joint names in October 1990 and subsequently registered in Mrs Randhawa's sole name in March 1999. On 28 March 2012, this property was transferred to the sole name of Mr Randhawa and registered in Mr Randhawa's sole name on 17 April 2012. The property was sold in April 2019 with the net proceeds of sale being held to the parties' joint order in Mr Randhawa's solicitor's client account.
d. Quaves Road Property where Sukhpreet and his family now live. This property is in Mrs Randhawa's sole name and was re-mortgaged in her name in March 1999.
e. Cuxton Road, a property that was purchased by Mr Randhawa in April 2010.
There are significant disputes about these property transactions and Mrs Randhawa's knowledge of the same. These will be further detailed later in this judgment.
a. Compared to the known sample signatures of Mrs Randhawa, there is "very strong evidence to support the proposition that the questioned signature was not written by [Mrs Randhawa] but that it is a simulation (freehand copy) of her genuine signature style, by another individual".
b. It is "highly unlikely" that the signature was deliberately modified by W or altered due to any circumstances that it was signed in including or an accidental modification.
c. There is no reliable evidence to accurately assess if H written the signature in question and this proposition must in her opinion be assessed as "inconclusive".
a. Mrs Randhawa has had no notice of the divorce proceedings that were initiated by a Petition for divorce by Mr Randhawa dated 22 January 2010.
b. Mrs Randhawa's purported signature on the Acknowledgement of Service form dated 11 February 2010 is a forgery.
c. The said signature was forged by or on behalf of Mr Randhawa
Accordingly the decree of divorce granted consequent upon the Petition for Divorce dated 22 January 2010 must be set aside.