England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
LEICESTER DISTRICT REGISTRY
(His Honour Judge Mayor QC)

		The Royal Courts of Justice The Strand London Tuesday 2 July 2002

Tuesday 2 July 2002

1. LORD JUSTICE DYSON: This is an application for permission to appeal from the judgment of His Honour Judge Mayor QC of 11 March 2002, whereby he dismissed Mr Makhni's claim for damages for various matters, including breach of a contract of employment, assault, unlawful eviction, conversion, and a sum that he claimed as the price for goods sold.
2. The second and third defendants, Mr and Mrs Faqir, are a married couple who run a number of businesses, including the first defendant company, Global Hotels. The assets of Global Hotels include a hotel in Leicester which was formerly known as Kabalou's Hotel and Restaurant. Mr Makhni claims that he was employed by Kabalou's as a general manager for a period of time. At about the time when he was so employed, Mr Makhni lived in a property known as 11 Parhams Close, Leicester, which was owned by Mrs Faqir and leased to Global Hotels.
3. The claims made by Mr Makhni are numerous, but they can be summarised as follows. First he alleged that he had been wrongfully dismissed in July 2000 and claimed damages for loss of earnings and other sums said to be due under his contract of employment. The claim was based on a written contract which was said by Mr Makhni to have been signed by Mr Faqir, the terms of which he claimed entitled Mr Makhni to a substantial claim, including five years' loss of earnings. He also claimed certain sums due as unpaid salary.
4. The defence was that Mr Makhni had resigned on 20 May and had not been dismissed, and that the written contract relied on was a forgery, no written contract having been entered into. The defendants also denied having failed to pay Mr Makhni, but contended that following his resignation he had agreed to carry out certain functions for the hotel in consideration of or his continued accommodation at 11 Parhams Close.
5. The next issue concerned a cheque. Mr Makhni claimed that during his employment he was instructed by Mr Faqir to change the payee stated on a cheque, the cheque being for a sum of £6,000. The cheque was initially made payable to a wine supplier, but Mr Makhni changed it so that he became the payee. Once it was banked, the cheque was returned marked "suspected fraudulent". The defendants' case was this was a further fraud by Mr Makhni .
6. Next there was a claim by Mr Makhni that on or about 24 May 2000 Mr Faqir had agreed to purchase certain goods from him for use at Kabalou's for the sum of £7,500. He claimed that the goods were supplied and that receipt of them was acknowledged, and therefore the price was due. The defendants denied that any such agreement had been made and contended that the claim and the documents relied on by Mr Makhni were fraudulent.
7. Next there was a claim for an alleged assault and eviction. Mr Makhni claimed that on or about 25 July 2000 he was visited at his home by Mr and Mrs Faqir, together with other persons, who entered the property, forcibly assaulted him and told him that he should forget and cancel all agreements between them. The defendants were also alleged to have made violent threats to Mr Makhni's daughter and to have stolen various items of property from Mr Makhni (including a Rolex watch worth £29,000, said to have been received from the Crown Prince of Saudi Arabia), as well as to have evicted him. The defendants' case was that they had visited Mr Makhni at home to discuss the cheque fraud and to request the return of certain documents so as to prevent further fraud. An offer was made to Mr Makhni that he could stay at the property until the end of the month. The defendants contended, however, that Mr Makhni became hysterical and insisted on leaving the property immediately. Mr Faqir's brother called the police and an employee of the hotel arranged for his property to be put in storage. Mr Makhni's version of events was rejected by the police when they came to make their enquiries.
8. Before considering the judgment, I should mention that on 27 November 2001, several days before the trial was due to start, the judge, of his own initiative and without a hearing, made an order to the effect that the witness statements of some ten witnesses whom Mr Makhni wished to call were "prima facie irrelevant or otherwise inadmissible". The order stated that "These witnesses may not be called, nor may their statements be put in evidence without further order of the Court." The order correctly stated that if Mr Makhni objected to it, he must make an application to have it set aside, varied or stayed within seven days of receiving it. Mr Makhni tells me that he did apply at the start of the trial for the order made by the judge to be set aside, and that the judge refused that application.
9. Because of the constraints of time Mr Makhni has not been able to show me all the witness statements. He has, however, shown me those of three witnesses, they being Usman Butt, James Jakes and Christine Watson. I have considered those statements. It seems to me that the evidence that those witnesses could give was at best of peripheral relevance to the issues in the case. I am not persuaded that the judge was wrong to take a case management decision, in the interests of trying to keep this litigation within reasonable bounds, that those witness statements should not be allowed in evidence. I give simply one example. The statement of Mr Usman Butt, the witness who Mr Makhni said was the most important of the ten, includes a statement at paragraph 4 that Mr Faqir told him, Mr Butt, that Mr Makhni was being employed as a general manager to take over the management of the hotel. At paragraph 6 there is a reference to Mr Faqir saying that Mr Makhni had a management contract with Kabalou's and that he, Mr Butt, was to get his money from him.
10. It is true that there is reference in the papers to Mr Makhni being described as a chef rather than as a general manager, but it does not seem to me that that was a real issue in the case. I have not seen anything in Mr Butt's statement which bore on the question of whether any of the claims asserted by Mr Makhni, to which I have referred, was likely to succeed.
11. With that preliminary out of the way, I turn to a brief summary of the judgment. This was a reserved judgment given, it seems, several weeks after the conclusion of the evidence. The trial, I am told by Mr Makhni, lasted five days. The documents are voluminous. The judgment is long. Judge Mayor rejected the claim in its entirety.
12. First of all he considered the documents said to have been forged by Mr Makhni . There was a handwriting expert in the case, Dr Giles. In her second report she said that she considered that there was "strong support" for the view that the contract of employment was a forgery and, in particular, that the signature of Mr Faqir had been forged. The judge said that there was evidence that the contract could not have been signed when and where Mr Makhni said that it had been, nor that it had been prepared by a particular solicitor as alleged by Mr Makhni. The judge said that the document gave the appearance of having been drafted by a non-lawyer who had some legal training, and by a person originally from the Indian sub-continent. Mr Makhni met both of these criteria. The terms of the contract were improbably favourable to Mr Makhni. The only witnesses called by him were persons close to him.
13. Similarly, the judge said that the terms of the acknowledgement of receipt of goods were improbably detailed and favourable to Mr Makhni. This acknowledgment was dated 24 May 2000 and purported to acknowledge receipt of the goods allegedly supplied to a value of £7,500. The judge said, furthermore, that Mr Makhni's version of events in relation to the cheque was improbable. At pages 8-9 of the judgment, the judge also made a number of points about the oddity of the changes made to the cheque. He said that on the basis of these documents alone, Mr Makhni's case was to be treated with "very great suspicion". He also considered that Mr Makhni's evidence that he had had five expensive watches stolen, three of them gifts from Middle Eastern potentates, was most unlikely. The judge noted the absence of receipts or other documents in relation to the items said to have been stolen. Certain of these were not mentioned in the initial complaint to the police, and others had been described in quite different terms. The evidence of Mr Makhni's other witnesses had been different from his account of the events and the stolen items had not been found during a dawn raid on the defendants' home.
14. The judge said he also had regard to Mr Makhni's own evidence, which was often in conflict with the contemporaneous documentation evidence, but for which Mr Makhni, the judge said, always had a plausible explanation. He rejected Mr Makhni's claim that all of the defendants' witnesses, including two police officers, were lying. The judge noted that Mr Makhni had in the end alleged that a document originally relied on by himself was a forgery by the defendants. In summary, therefore, Mr Makhni was an unsatisfactory witness, as were his other main witnesses. By contrast the judge said that the defendants had made a good impression on him when they gave their evidence. Overall the evidence in favour of the defendants' case was compelling and the judge, as I have said, dismissed the claims in their entirety.
15. Mr Makhni advances many grounds of appeal. First and foremost is his challenge to the decision of the judge to disallow the evidence of the ten witnesses. I have already dealt with that point. More generally, Mr Makhni makes many criticisms of the judge's findings. All his criticisms, however, are attempts to challenge findings of fact. In a case of this kind, where the judge heard the witnesses over a number of days, this court is always extremely slow to disturb findings of fact by a trial judge. It seems to me that this judge has given cogent reasons for his conclusions and for his overall holding that he found the evidence of Mr Makhni to be unsatisfactory and unreliable and, conversely, the evidence of the defendants to be compelling and credible.
16. Mr Makhni has made a number of points to me this morning. He makes the point that there is no evidence to support the defendants' case that he resigned on 20 May and submits that it makes no sense that he should have continued to work for the defendants for several weeks after that without being paid. As I have said, the judge found that the consideration for his working after 20 May was the offer of free accommodation.
17. Mr Makhni also submits that the documentary evidence to which he has drawn my attention supports his case that he was owed arrears of salary prior to the termination of his contract of employment, whether that was by his resignation or termination by the defendants. The judge was shown the documents to some of which Mr Makhni has drawn my attention. He heard what Mr Makhni had to say about them. He heard what the defendants had to say about them. He preferred the account of the defendants.
18. I regret to say that, although I well understand the strength of feeling which Mr Makhni has about these matters, he has simply not begun to show that he has any real prospect of success on an appeal against this judgment on issues which are, as I have said, exclusively ones of fact. For all these reasons, I would refuse this application.
ORDER: Application refused