England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
His Honour Judge Cowell
Case Nos: CHY07553; CHY07554

		Royal Courts of Justice Strand, London, WC2A 2LL
		04/03/2010

Lord Justice Rimer :

Introduction

1. This is an adjourned application by Mrs Papinder Malik for permission to appeal against an order dated 3 July 2008 made by His Honour Judge Cowell in the Central London County Court following the combined trial of two related actions between the same parties. The second action was the leading action. The claimant in that action (the defendant in the other) and respondent to the appeal is Mr Bhupinder Kalyan, who is Mrs Malik's brother. Mrs Malik was the claimant in the first action and the defendant in the second. By his order, made in both actions, the judge declared that Mrs Malik held a house at 5 Osterley Park Road, Southall, Middlesex ('the house') on trust for Mr Kalyan absolutely subject to a charge for £10,000 to secure the payment of certain legacies. But for an order for the payment by Mrs Malik to Mr Kalyan of £20,000 on account of costs, the judge would have charged the house with the payment of £30,000 towards such legacies: the £10,000 was arrived at by setting off the two figures. The judge ordered Mrs Malik to transfer the house to Mr Kalyan.
2. The dispute was of the bitterest nature. Its essence is that whereas Mrs Malik claimed that the house was an asset of her late father's estate which she was entitled, indeed bound, to sell in order to satisfy the provisions of his will, of which she was the sole executrix, Mr Kalyan claimed that the principles of proprietary estoppel gave him an exclusive beneficial entitlement to it so that he could retain it for his own occupation.
3. On 19 December 2008 Arden LJ, on the papers, refused Mrs Malik permission to appeal, on the basis that the judge's decision turned on findings of fact which Mrs Malik had no real prospect of subjecting to a successful challenge in this court. Mrs Malik was late in seeking a re-consideration of that order at an oral hearing, but on a date unknown to me Lloyd LJ, at such a hearing, adjourned her application to the full court, with the appeal to follow if permission should be given. Thus it came before us. Ms Helene Pines Richman appeared for Mrs Malik (but did not do so at the trial) and Mr Philip Jones appeared, as below, for Mr Kalyan.

The facts found by the judge

4. In order to explain how I would dispose of Mrs Malik's application, I must summarise the facts the judge found.
5. Ram Dass, born in 1928, came to this country from Kenya in about 1968 and was employed by Wimpey. About a year later, he was joined by his wife and their eight children. The latter, in order of seniority, were: (i) Shunktla, who was born 1949 and died in 1981; (ii) Sheela; (iii) Mr Kalyan, the respondent, born 1950 (he changed his name from Dass in 1974); (iv) Angelina, born 1951; (v) Krishnan Kalyan, the only other son, born 1954 (he also changed his name); (vi) Daljit, born 1956; (vii) Carol, born 1959; and (viii) Mrs Malik, the appellant, born 1960.
6. On 2 March 1970 Mr Dass bought the house for £5,500 with the help of a £5,300 mortgage loan from the Greater London Council. The mortgage was a 25-year repayment one, with the monthly instalments varying with interest rate changes, the judge treating them as being about £40. A deposit and solicitors' fees totalling some £520 were paid, of which Mr Kalyan paid £300. He was 20 at the time, had been employed since August 1969 and by 1970 was also studying part time at a college. The judge found that he remained working 'pretty well ever thereafter'.
7. The family moved into the house. Shortly afterwards it was improved by the installation of central heating, it was rewired and the roof was repaired. Mr Kalyan paid half the cost of the central heating and £300 towards the roof repairs, whereas Mr Dass 'mainly paid' for the rewiring.
8. At some uncertain date Sheela went to India and dropped out of the story. Carol also played no part in it. In 1974 Angelina married Jaginder Masih and left the house. By 1977 they had two children, but their marriage was dissolved by divorce shortly afterwards, and Angelina returned to live at the house where she remained for some years although she is not there now.
9. On 10 February 1981 there was purchased in Mr Kalyan's name a house at 25 Cranford Drive, Hayes, Middlesex ('Cranford Drive'). His evidence was that it really belonged to his friend Antonio Banday but was purchased in his name because Mr Banday could not get a mortgage. Mr Kalyan was not just the legal owner but also had the doubtful privilege of being the mortgagor. But, he said, Mr Banday paid the mortgage instalments and also redeemed the mortgage early in about 1994. In circumstances to which I will return, in the summer of 2006 Mr Kalyan transferred Cranford Drive to Mr Banday's sister, Rosita, a transaction for which he said he received nothing in exchange. The judge found the lack of documents supporting Mr Kalyan's account of his arrangement with Mr Banday unsatisfactory, referring in particular to the lack of corroboration that Mr Banday paid the mortgage instalments and redeemed the mortgage. Nevertheless, with apparent hesitation, he accepted as true Mr Kalyan's evidence about Cranford Drive.
10. With that diversion to this century, I return to 1984 when, aged 56, Mr Dass was made redundant. He was not due to receive his state pension for another nine years. He applied his redundancy money in buying a property in India: Kalyan Cottage, 3/60/4 GT Road, Phagwara, Punjab. That reduced his ability to service the mortgage on the house, which had 11 years to run, and the judge found that Mr Kalyan was 'required to pay much more towards the mortgage instalments'. I understand the judge also to have accepted Mr Kalyan's evidence that, since the purchase of the house, he and the other working siblings had paid money to their mother but, on top of this, he had also been contributing a further £20 a month, which I understand to have been towards the £40 mortgage instalments. The judge found that they were always paid in cash and there was no documentary evidence as to which family members had provided what in the way of cash contributions.
11. In 1987 Daljit married Mr Fernandes. They had a daughter. They went to Australia for a year in about 1997 and have not lived at the house for several years.
12. In 1988 the appellant married Mr Malik. The wedding was in India where they remained until Mrs Malik became pregnant, when she returned to the house, being later joined by her husband. By 1992 they had two daughters. Shortly afterwards they obtained a tenancy of a house at 8 Manaton Crescent, Southall, Middlesex, which they later purchased.
13. There was evidence about the carrying out of works to the house. In 1987 a £200 bill was paid to a contractor, Mr Coughlan. Mr Kalyan and his father paid half each. In 1989 he and his father paid half each of a bill from another contractor, M.J. Grimes, but the judge did not say how much it was or for what. In 1998 Mr Kalyan paid a further bill to Sokhi Builders, three invoices dated between June and September 1998 being in evidence, although the judge did not say what their amounts were and we were not shown them. Mr Kalyan also said that in November 2000 he paid for a new boiler. In October 2001 the Council approved a grant for the installation of disability facilities, the works being completed in December 2001. In December 2001 a new cooker and washing machine were purchased, and Mr Kalyan's evidence was that he paid for them.
14. Mrs Dass died in about 2000 or 2001 (the judge made slightly inconsistent findings as to when in paragraphs 1 and 28).
15. Mr Dass made his last will on 5 April 2002, one drafted by Mr Cosstick of Anthony Holden Crofts & Co, solicitors ('Anthony Holden') and witnessed by Mr Cosstick and his secretary. So far as material, Mr Dass appointed Mrs Malik to be sole executrix and trustee. He then gave all his:

'… real and personal estate whatsoever and wheresoever situated (including, for the avoidance of doubt, my property in India known as Kalyan Cottage, 3/60/4 GT Road Phagwara Pubjab India)'

to his trustee upon trust for sale with a power to postpone sale and directed that, subject to the payment of his debts and funeral and testamentary expenses, the residue should be held upon trust to divide the same by paying a legacy of £30,000 to Mrs Malik, legacies of £10,000 to each of Angelina, Daljit, and Carol and paying the balance between such of Mr Kalyan and Krishnan as should survive Mr Dass, and if both (as happened) then in equal shares. On the face of it, the will disposed of the house as part of his residuary estate subject to the trust for sale.

16. Shortly after making his will, Mr Dass invited some friends called Sokhi to the house (not the builders). He told them he had made a will and explained its terms. The judge found that he told them that he had left £10,000 to each of his four daughters, had left the house to Mr Kalyan and had provided for Indian land to be divided between Mr Kalyan and Krishnan. That account bore no close relation to the actual terms of the will.
17. On 28 May 2002 Mr Dass broke his hip and went to hospital. During a visit by Mr and Mrs Kalyan, he asked to see the copy of his will that Mr Cosstick had given him and told Mr Kalyan where it was. On his next visit to the hospital Mr Kalyan took the copy to his father. There was a discussion, the result of which was that Mr Dass expressed his view that the house ought to be transferred to Mr Kalyan and his intention to achieve it. In the event, Mr Dass never returned home. He died in hospital on 8 June 2002 and in the meantime had not transferred the house to Mr Kalyan.
18. Mrs Malik obtained a grant of probate of Mr Dass's will on 8 August 2003, the net value of the estate being returned at £208,094. The Inland Revenue Account valued the house at £220,000 and the Indian cottage at £30,000. The net estate was below the threshold for the payment of inheritance tax although the judge observed that the Inland Revenue Account did not apparently include all the assets reflected in the material that, at Mrs Malik's request, Mr Kalyan had provided to her. Mr Dass's cash in the UK was absorbed in debts and funeral expenses. The result was that the only assets out of which the legacies provided by the will could be raised and paid were the house and the Indian cottage.
19. On 5 May 2004 Anthony Holden (Mrs Maliks's solicitors) proposed that Mr Kalyan should give up possession of the house to Mrs Malik. On 10 November 2004 Mrs Malik became, as executrix, its registered proprietor. In May 2006 her new solicitors warned Mr Kalyan of the institution by her of proceedings. On 4 July 2006 she made it clear that there would be no negotiation about a valuation of the house or a purchase by Mr Kalyan. The same letter also referred to Mr Kalyan's ownership for 20 years of Cranford Drive and suggested he could live there.
20. Mr Kalyan provided no prompt reply to that letter. The inference is that it provoked him into transferring Cranford Drive to Rosita Banday, who became its registered proprietor on 15 September 2006. That transaction then enabled Mr Kalyan, on 28 September 2006, to make the belated, and apparently somewhat disingenuous, response to the letter of 4 July 2006 that he 'does not own' another property in the UK or elsewhere. The judge criticised him for not vouchsafing a frank explanation of the Cranford Drive purchase.
21. In February 2007 Mrs Malik demanded possession of the house by 23 March 2007. It was not given and in April 2007 she commenced possession proceedings against Mr Kalyan. A possession order was obtained on 24 April 2007 but was set aside in June 2007 following the claims made by Mr Kalyan in the second action.
22. An important finding that the judge made, in line with Mr Kalyan's evidence, was that at one or more unidentified points during his and Mr Dass's joint occupation of the house, Mr Dass told him that the house would one day be his (paragraph 85 of the judgment). The judge repeated (in paragraph 93) that Mr Dass made it clear that the house would one day be Mr Kalyan's, adding that Mr Kalyan acted upon that, paying for things as if he were the owner, thinking that he would become the owner, and thereby acted to his detriment. The judge also added this in paragraph 93:

'… He [Mr Kalyan] did not move out. He did not buy a house elsewhere, as did either all or nearly all of the rest of his brothers and sisters.'

Whilst the judge did not there also find that Mr Kalyan could once have bought a house of his own, but could no longer do so, he does nevertheless appear to have held that the fact that, unlike his siblings, Mr Kalyan had not bought a house of his own was a factor either representing or contributing to the detriment he had suffered in reliance on his father's assurance as to his future ownership of the house; and in paragraph 107 the judge repeated the point that 'what happened in this case was that [Mr Kalyan] did not move out and buy a place of his own …'. Proof of detriment is an essential part of the establishment of the proprietary estoppel claim Mr Kalyan was advancing. The judge concluded that Mr Kalyan had made it good.

23. The judge was of course well aware that the form of Mr Dass's will was apparently inconsistent with any intention on Mr Dass's part that the house should belong to Mr Kalyan alone. The litigation before the judge did not include a probate claim, but the judge pointed out that the circumstances surrounding the execution of the will were such as to excite the suspicion of the court. Mrs Malik alone of the family members acted as Mr Dass's agent in connection with the making of the will and also received a benefit under it that was thrice that bestowed upon her sisters. There was a question as to what was brought home to Mr Dass, a Punjabi speaker, when he gave his instructions for, and signed, the will: only Mrs Malik was there to interpret for him. There was no express mention in the will of the house, although there was of the Indian cottage. There was a concern about (so the judge found) the false evidence given by Mrs Malik and Mrs Fernandes as to Mr Dass and Mr Kalyan only getting on badly, thus attributing to Mr Dass a motive for not leaving the house to Mr Kalyan; whereas the judge's view, in paragraph 74, was that, in the particular circumstances that applied in this case, it would have been usual, and in accordance with Indian tradition, for Mr Dass to want his son to inherit the house after his death and continue to live in it. Then there was the evidence as to what Mr Dass understood he had achieved by his will, which was inconsistent with what the will actually provided. The judge also accepted the evidence about Mr Dass's intentions with regard to the house that he expressed when he was in hospital.
24. The judge explained, in paragraphs 84 and following, why the terms of the will did not stand in the way of Mr Kalyan's claim to the house, and there is no need to detail it. The judge then moved on remind himself that 'ordinarily and without more' a filial contribution to the family purse, so that some part of it will or may be applied towards the parents' mortgage commitments, will not give the contributor any interest in the property. Such contributions commonly continue so long as the contributor continues to live in it. That, however, was not this case, as the judge then explained:

'100. So the question in all these cases is, is there that more without which no question of beneficial interest or trust arising in the contributor can arise? If there is more it lifts the case from out of the ordinary case of the contributor simply paying for his accommodation for so long as he chooses to remain, and I wish to make it quite clear that had it just been that [Mr Kalyan] was contributing towards the acquisition and a mere few mortgage instalments via a family pot, that would not have been sufficient, but there is very much more in this case.

101. I am inclined to accept (although only just) that separate monthly sums of £20 were paid specifically for the mortgage instalment and that it was paid to [Mr Dass]. [Mr Kalyan] was the eldest son and would be expected to do such a thing, but I have no doubt that after [Mr Dass's] retirement and redundancy it was essential for [Mr Kalyan] to make contributions, particularly because the redundancy money had been use to buy the property in India. And so even if I am wrong on the first point, I am satisfied that contributions were made from and after 1984 and until the mortgage was finally redeemed. I have no difficulty in accepting that part of the evidence.

102. Then there is the fact that [Mr Kalyan], as the eldest son, was expected to and did remain at Number 5 looking after [Mr Dass] and his wife, expecting, as [Mr Dass] said he would, to inherit the property, Number 5, after both his parents had died.

103. I am quite satisfied (as I have said) that [Mr Kalyan's] share of the outgoings of the house increased after [Mr Dass] had been made redundant, and by 1998 we can see that [Mr Kalyan] was paying, for example, all of the invoices from Sokhi Builders.

104. And then there are [Mr Dass's] statements of intention, 'it is as much yours as mine', and that Number 5 would be his, [Mr Kalyan's], so that he and his wife would still live at Number 5 after [Mr Dass's] death. And that is precisely what would have induced [Mr Kalyan] not to move out and buy a home of his own in which to live, but to look after his parents and to contribute to the mortgage instalments in order to secure the acquisition of Number 5 as a home for his parents and then for himself and his wife, for all of which [Mr Dass] (Ifind) was grateful. And I am entirely satisfied that neither [Mr Dass] nor [Mr Kalyan] ever contemplated that [Mr Kalyan] would have to leave Number 5 after [Mr Dass's] death. They contemplated the opposite, that he would stay.'

25. In addition to what he said in paragraph 104, I have already indicated that the judge twice referred elsewhere to the element of detriment suffered by Mr Kalyan in not moving out and buying a home of his own.
26. Having concluded that the principle of proprietary estoppel raised an equity in Mr Kalyan's favour, the judge considered how it was to be satisfied. His conclusion was that it should be satisfied by entitling Mr Kalyan to the ownership of the house, subject to a requirement by him to pay, as if they were charged upon it, half of the legacies given by Mr Dass's will, or £30,000. The other half was to come from the Indian property.

Mrs Malik's application for permission

27. The amended grounds of appeal before us covered some seven pages but during the argument Ms Richman, for Mrs Malik, reduced to two the only grounds that she proposed to pursue. She incorporated them into a form of re-amended grounds of appeal that she provided to us. The first ground was that the judge was wrong to find that Mr Kalyan had suffered material detriment in relying on Mr Dass's promise because it is said that, in arriving at the conclusion he did, the judge failed to take into account that Mr Kalyan had purchased Cranford Drive (meaning that he became its beneficial owner). The second ground was that the judge's chosen method of giving effect to the equity he found Mr Kalyan to have established was wrong. He had, it is said, failed to take into account both Mr Kalyan's purchase of Cranford Drive and the benefit that Mr Kalyan, his family and his two companies had derived from their rent free occupation of the house since 1970.
28. Central to both grounds of appeal is, therefore, that the judge wrongly failed to take account of the fact that Mr Kalyan had purchased Cranford Drive. I have explained how the judge found that Cranford Drive was not purchased by Mr Kalyan, at least not as a beneficial owner. He was, on the judge's findings, no more than a nominee for Mr Banday, the real purchaser. If the judge was right in that, the factual point at the heart of both grounds of appeal disappears.
29. I will shortly come to that central factual issue, but mention first that I also understood it to be part of Ms Richman's argument that even if the judge was correct in the factual findings that he made (including in relation to Cranford Drive), he was wrong to satisfy as he did the equity he found Mr Kalyan to have established. The judge had not, it is said, found that Mr Kalyan was no longer able to fund the acquisition of his own house and had not factored into his consideration the benefit of the rent free occupation.
30. I refer to this argument even though it does not represent a separate ground of appeal, since if it were it well-founded it might entitle Mrs Malik to succeed on her appeal without there being any need to consider the Cranford Drive issue. In my view, however, it is not well-founded. This was, on the judge's findings, a case in which Mr Dass promised Mr Kalyan that the house would be his, in reliance upon which Mr Kalyan acted to his detriment in the way the judge found, including by not moving out and acquiring a house of his own as his siblings had done. Whilst the judge did not say expressly that Mr Kalyan was no longer able to buy a house of his own, it is implicit that the judge found that by, passing up such an opportunity when he might earlier have been able to take it, Mr Kalyan suffered a material element of detriment in reliance on Mr Dass's assurances.
31. Taking the judge's findings at face value, there is, I consider, no real prospect of a successful challenge to the way in which he concluded that he should satisfy Mr Kalyan's equity. The relevant principles were fully considered by this court in Jennings v. Rice [2003] 1 P & CR 100 and the judgments of Aldous LJ and of Robert Walker LJ (as he then was) repay careful reading. I do not propose to cite from that authority beyond this short passage from Aldous LJ's judgment, at paragraph [36]:

'There is a clear line of authority from at least [Crabb v. Arun District Council [1976] Ch 179] to the present day which establishes that once the elements of proprietary estoppel are established an equity arises. The value of that equity will depend upon all the circumstances including the expectations and the detriment. The task of the court is to do justice. The most essential requirement is that there must be proportionality between the expectation and the detriment.'

Walker LJ agreed with Aldous LJ's reasons. He explained that the reference by Scarman LJ in Crabb to 'the minimum equity to do justice to the plaintiff' did not require the court to be constitutionally parsimonious but did implicitly recognise that the court must also do justice to the defendant (paragraph [48]). He made it plain that the claimant's expectations play a material part in the court's consideration of how the equity might most appropriately be satisfied.

32. In this case Mr Kalyan's expectation that he would inherit the house was clear. Mr Dass made a promise to that effect in the 1980s and, the judge found, he believed he had given effect to that expectation in his will although the will as drawn in fact provided differently. Whilst in his hospital bed, Mr Dass affirmed an intention of making an inter vivos transfer of the house to Mr Kalyan, presumably with a view to achieving that which he had by then seen his will would not achieve after his death. The expectations as between father and son were therefore common ground, and the judge found Mr Kalyan to have relied to his detriment on his expectations in the way he did, including in foregoing the opportunity to acquire a house of his own. I do not accept that the judge ignored that Mr Kalyan had enjoyed rent free occupation of the house since 1970. The judge knew perfectly well that he had paid no rent and knew also that he had always occupied the house: the latter point was at the heart of his thinking. I regard the judge's evaluation of how the equity should be satisfied as rational and understandable and well within the range of decisions properly open to him. It is also perhaps inaccurate to regard the equity as having been satisfied by giving Mr Kalyan the house. Under the will, he was (in substance) entitled to a half share in it, Krishnan being entitled to the other half. The judge therefore in effect satisfied the equity by giving him Krishnan's half, and still only did so on terms that the whole house was charged with half the amount of the sisters' legacies. Krishnan was not a party to the proceedings, although perhaps he ought to have been. He was, however, called by Mrs Malik to give evidence. The judge's order disadvantaged Krishnan, but we were not referred to any consideration that justified a conclusion that the order was unjust to him. I add only that I do not regard the decision in Uglow v. Uglow [2004] EWCA 987, upon which Ms Richman particularly relied, as requiring any different conclusion. That case, like all these cases, turned on its own particular facts.
33. Accordingly, I regard as without substance the challenge to the judge's decision based on the facts as he found them. Were there before us any separate ground of appeal so based, I would refuse permission to appeal on it. As it is, I have explained how both re-amended grounds of appeal depend materially on the assertion that the judge was wrong to find that Mr Kalyan had not purchased, and become the beneficial owner of, Cranford Drive.
34. That point raised a question of preliminary concern whose resolution was necessary to a proper determination of both grounds; and most of the discussion in the argument was devoted to it. The concern arose from the fact that part of Mrs Malik's complaint before us was that the judge had stopped a line of cross-examination of Mr Kalyan in relation to Cranford Drive. We have no transcript of the proceedings and there was a difference in the evidence before us as to precisely what had been said before it was stopped. But the resolution of the difference was that Ms Richman accepted the account explained in evidence by Mr Jones's instructing solicitors, namely that upon counsel for Mrs Malik posing to Mr Kalyan the question 'Ms Banday is your girlfriend?' Mr Jones objected that the question did not go to an issue in the case. Mr Jones told us that there was then a short discussion about the matter, although he was unable to recall its precise content, with the outcome that the judge stopped further questions.
35. In my view that was an unfortunate course for the judge to have taken. It is usually good practice for a judge trying a civil claim to see where a line of questioning is or may be going before stopping it. He might perhaps also have been sensitive to Mr Jones's apparently unhesitating enthusiasm to close off that particular avenue of inquiry. I have commented on the paucity of evidence that Mr Kalyan had adduced about his arrangement with Mr Banday in relation to the purchase of Cranford Drive, of which the judge was critical. Mr Kalyan's transferee of Cranford Drive in 2006 was not Mr Banday, but Rosita. A line of questioning as to the, or any, association between Mr Kalyan and Rosita might well have shed relevant light on the Cranford Drive purchase, and in particular, as to why it was now ostensibly her property rather than Mr Banday's. We have also been shown, as the judge was not (because Mrs Malik had not then obtained it), a birth certificate of a child of Mr Kalyan and Rosita born on 21 April 1985, the certificate recording Cranford Drive as the address of mother and child.
36. The importance of Cranford Drive to the judge's decision is, as I have said, that a key consideration in his assessment that Mr Kalyan had suffered relevant detriment in reliance on the paternal promises was that he had not bought a house of his own and moved out. He had certainly not moved out but if, contrary to the judge's findings, Cranford Drive was in fact a house that he had bought beneficially, that would, I consider, cast an important light on the judge's assessment that he had suffered relevant detriment. In paragraph 122 of his judgment, the judge said that he regarded Cranford Drive as of marginal relevance but added that 'it can only go to the question of detriment that I have already mentioned.' I agree that it could go to the question of detriment. It could also go to the question of how any equity that Mr Kalyan might have established ought to be satisfied.
37. In my judgment, quite apart from the impetus to the point generated by the birth certificate, the judge was in error in stopping the cross-examination in relation to Rosita. Had it been permitted to continue, it could have revealed facts material to the judge's decision.
38. We canvassed this concern with both counsel at the hearing, indicating that one outcome of a conclusion that the judge was in such error would be to give permission to appeal, allow the appeal and order a re-trial before a different judge. Ms Richman favoured that course, venturing her view that a re-trial might perhaps cost £20,000. I suspect that is likely to be an under-estimate. The trial lasted three days, with judgment on the fourth. Any re-trial might well be longer since it would probably be encumbered by the putting to witnesses of what they had said in the first trial. A cheaper alternative to a re-trial, which we also discussed and which Mr Jones appeared to favour, would be to remit the case to Judge Cowell for him to hear further cross-examination of Mr Kalyan in relation to Cranford Drive and to make factual findings on it. When that was done, the appeal would then be restored for its final disposition. Neither counsel suggested to us that the adoption of such a course was one that was not open to this court.
39. Having considered the matter further, I would not favour the remission of this matter for a new trial before a different judge. That would, in my view, be a disproportionately expensive course and one I would also regard as unnecessary. The disposition of this appeal that I would favour would be to give Mrs Malik permission to appeal on the two re-amended grounds, allow the appeal, set aside Judge Cowell's order and remit the case to him for a re-trial on a limited basis. That would be one on which he would simply hear the further cross-examination I have indicated and then hear submissions on all the issues in the case in the light of the evidence originally before him and that further evidence, including any documents relating to Cranford Drive that may be disclosed. The further evidence and submissions may or may not cause him to re-consider his prior findings of fact and/or his overall conclusions. That would be entirely a matter for the judge.
40. Whilst we canvassed with counsel the two alternative disposals that I have mentioned in paragraph [38], we did not also discuss with them the third one that I have indicated I favour. I would, therefore, offer both counsel, if they wish to take it, the opportunity to make written submissions in relation to the order that I would propose. Their submissions should be exchanged and lodged within seven days of the receipt of this judgment in draft.

Lord Justice Etherton :

41. I agree.

Lord Justice Sedley :

42. I also agree.