England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(Master Bowman)

		Royal Courts of Justice Strand London WC2 Tuesday 13 March 2001

Tuesday 13 March 2001

1. LORD JUSTICE ROBERT WALKER: This is an application for permission to appeal and an extension of time for appealing from an order of Master Bowman made on 7 December 2000. The applicant is Mr Kumarasamy Rasanayagam. He was the defendant in an action which the Master was hearing by the parties' consent, the action having been brought by the applicant's sister, Mrs Rasanithy Ravindran. She was seeking to establish that there had been a partnership between herself and her brother.
2. The case took the Master four days to hear. It was plainly a very difficult case for him to hear for a variety of reasons: there was an acute conflict of evidence between the parties on every important issue of fact; there was no impartial oral evidence, and little documentary evidence, to provide a basis of undisputed fact; the Master found that the principal witnesses on each side were unreliable; and, furthermore, much of the evidence was given to the Master through interpreters from the Tamil language.
3. In these circumstances, the most likely order - although not the only possible order - which the applicant could hope to obtain from an appeal would be a new trial. It is questionable whether a new trial, whether before a Master or before a High Court Judge, would have much better prospect of arriving at the full truth of this obscure matter.
4. The main criticisms of the Master advanced by Miss Hilary Heilbron QC (who has appeared for the applicant in this court but did not appear below) are directed to findings or the absence of findings of fact made by the Master.
5. There were three main issues at trial, in addition to some subsidiary issues which I need not go into. The first was whether Mrs Ravindran, who was then an unmarried asylum seeker from Sri Lanka, had paid a total sum of £25,000 (by nine cheques for sums of between £1,000 and £5,000) to the applicant in order to finance the purchase of a newsagent's business called Radford News, which was conducted in leasehold premises in Fleet Street. If so, was that money her money; and, thirdly, was there a partnership intended between brother and sister?
6. The Master found Mrs Ravindran not to be untruthful, but to be an unreliable witness: that was the way he put it. He approached her evidence as to her having made savings of £25,000 between 1990 and 1993 with scepticism. Her evidence was that her weekly income at that time was about £193 or £243, made up of her wages (because she was working in the newsagent's when it was run by the previous owner) together with income support.
7. The fact that she should not have been working as an asylum-seeker (at any rate initially) and the fact that she should not have been receiving income support while she was working were relied on against her case below, but it has not been suggested that the Master should on those grounds alone have decided against her. Those irregularities are on all fours with the complete absence in this case on both sides of any PAYE documentation, accounts or any other documentary evidence which would normally be available.
8. It has to be said that the Master was no less critical of the evidence of the applicant. The Master described him as giving conflicting answers in cross-examination and as being unable to provide an explanation of how he was able to finance the acquisition of the business on his own.
9. The Master did have two pieces of documentary evidence which, in the absence of better evidence, assume some importance; that is the statements of the applicant's two bank accounts with TSB and statements of the current plus account which his sister had at the Blackheath branch of National Westminster Bank. The Master discerned a pattern of evidence strongly suggesting that payments had been made from Mrs Ravindran's Nat West account to her brother's TSB accounts. The most important payments from his account for the acquisition of the business were made between 6 and 10 January 1994, and they can be clearly identified on his TSB account number 9129 904655. Some of the nearly-matched payments went into that account, and some into 9129 899676.
10. The Master said of this pattern of payments, and of the criticisms of it made by the applicant's counsel below:

"That document [a schedule which extracted certain entries from the bank accounts] has been challenged on behalf of the defendant on a number of bases.

(1) There is no precise matching of items. One at least must be excluded, which was a returned cheque.

(2) As a matter of banking logistics, the debits and credits could not match, given the normal interval time within which cheques are cleared. What is striking however is that all these cheques were debited to the claimant's account at the time the [defendant] had a requirement present or impending to pay the Patels what was due in respect of the purchase of Radford News.

The defendant was unable to give any alternative satisfactory explanation of how he financed the purchase, apart from unspecified loans from individuals not available to give evidence. The defendant was plainly stretched financially to pay the purchase price. One cheque at least in favour of the vendors was returned.

The overwhelming consideration however must be 'what happened to the money drawn from the claimant's [Mrs Ravindram's] bank account unless it went to the purchase price.'"

11. The Master found that the newsagent's business (although acquired by the purchase of all the shares in a limited company called Himanshu Enterprises Ltd) was acquired as a partnership venture and that £25,000 was contributed by Mrs Ravindran to that venture. He made appropriate declarations and adjourned the issues of accounts and the appointment of a receiver and manager.
12. He also dismissed a counterclaim by the applicant as not having been proved on the balance of probability.
13. Miss Heilbron, while acknowledging that the Master had a difficult case to try, has attacked his judgment on various grounds. She has submitted that the Master reached inconsistent conclusions when he said at page 12D of his judgment (page 41 of the bundle):

"In the circumstances, I have to conclude that since the money was in the claimant's bank account and no sufficient contrary evidence is available, that it was money of the claimant"

and his statement at page 14E-F (page 43 of the bundle):

"Given that I am unable to conclude that the source of the money was the claimant's earnings from Radfords, I have to conclude there may have been a mixing up of the monies of the claimant and of the defendant in the account."

14. There is a degree of inconsistency, or at least obscurity, in those two contrasting passages, even when some allowance is made for this occurring in a fairly long extempore judgment. There can be no challenge to the Master's conclusion that £25,000 was more than Mrs Ravindran could have saved out of her earnings, even if she was living very cheaply with relatives. But the fact that some of her brother's money (for whatever reason) may have been mingled with hers in an account in her name is not to my mind inconsistent with the nine cheques totalling £25,000 having been agreed as her money and her contribution. As the Master pointed out, the brother and sister were on goods terms until 1998, and they seem to have been very close before they got married (Mrs Ravindran in 1995 and the applicant in 1996). It may be that it was the arrival of in-laws on the scene which led to or contributed to their unfortunate falling-out.
15. Miss Heilbron has criticised the Master for falling into error as regards the burden of proof. Reading his judgment as a whole, I think it is clear that he was well aware that the burden of proof was on Mrs Ravindran as the claimant in respect of the claim, and was on the applicant as regards his counterclaim. However, in a matter of this sort the evidential burden can shift, and the Master seems to have been satisfied that it had on some crucial points shifted to the applicant, whose own evidence the Master found very unsatisfactory.
16. Miss Heilbron has also criticised the Master's reasoning and conclusion in relation to the bank accounts and has suggested that the pattern which the Master discerned was not there. However, most of the points taken on this appear to me not to have such substance in them. Mrs Ravindran gave credible evidence that she gave her brother two cheques for £5,000 each (rather than one cheque for £10,000) because that is what he asked for. Against the background and circumstances of these parties, I cannot regard that as an unsatisfactory explanation. It appears that the sister and brother did at that time trust each other. Nor does the fact that bank customers are always told to allow three days for the clearance of cheques make it incredible that the clearance of a cheque should occasionally occur sooner.
17. I have carefully considered all these points and other points made by Miss Heilbron as to the existence of a partnership. Miss Heilbron has said all that could possibly be said in support of this application. The Master's judgment is certainly not beyond criticism. However, he had a very difficult task to perform and it seems to me that he approached it in the right way, once it was clear that neither side's witnesses were reliable, by looking at the documentary evidence, such as it was, and at the inherent probabilities of the situation.
18. Despite all the submissions made to me, I have reached the conclusion that an appeal in this matter would have no realistic chance of success. I must therefore dismiss the application.
ORDER: Applications refused