England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
(MRS JUSTICE PROUDMAN)

		Royal Courts of Justice Strand London, WC2A 2LL
		22 July 2014

LORD JUSTICE VOS:

Introduction

1. This is a renewed oral application for permission to appeal from the decision of Proudman J delivered on 8 October 2012 whereby she granted the Defendants summary judgment on the claim and dismissed two applications made by the Appellant (before me) and the Claimant in the action, Mr Joseph Charles Garnham ("Mr Garnham").
2. In addition, before me Mr Garnham applies for a stay of the order made by Proudman J, a transcript of the proceedings before her and permission to adduce fresh evidence in the form of an e-mail dated 22 November 2013 from a Mr Christopher Mills, allegedly an expert from Infra Tech Forensics in relation to the recording that I shall come to mention and for further directions.
3. Mr Arthur Wilkins, whom I shall call "Arthur", was the brother of Mrs or Miss Iris Wilkins who later became Mrs Iris Briscoe. I shall call her "Iris". Arthur and Iris were brother and sister. They are both now sadly dead. Iris died at about 97 years old in 2011.
4. Mr and Mrs Garnham became involved in business and financial terms with Iris over many years. As a result, many transactions were entered into and several sets of legal proceedings resulted. The penultimate set of proceedings was begun in 2009 when Iris, then aged something like 95 years old, sued Mr and Mrs Garnham to unwind or set aside on grounds of undue influence what she alleged was a series of abusive transactions whereby Mr Garnham had influenced her to part with her property. Those proceedings were compromised after a mediation by a Tomlin order made by the court on 7 June 2010 and, at which stage, Iris was still alive.
5. These proceedings were begun by Mr Garnham on 3 January 2012 in order to set aside the Tomlin order on the basis that it had been procured by fraudulent misrepresentation. In essence, the allegation that Mr Garnham made was that Iris and the Defendants, her executors, had dishonestly concealed the recording of a conversation or conversations that Mr Garnham had with Iris shortly before an earlier set of proceedings was compromised in which it was alleged that Mr Garnham had made misrepresentations to Iris. That conversation allegedly led Iris in 2003 to settling those earlier proceedings on unfavourable terms.
6. Proudman J heard the Defendants' application in these proceedings to strike out or grant summary judgment on this claim in their favour on the grounds that Mr Garnham had no real prospect of setting aside the Tomlin order having freely entered into it with the benefit of legal advice and partly carried it into effect before changing his mind about its validity. Proudman J granted the Defendants summary judgment.
7. The history of these proceedings, and hence this appeal, is long and complex, but I shall try to summarise it briefly before coming in more detail to the grounds of appeal. I should just say that Mr Garnham in his oral submissions this morning has explained that he cannot come to terms with the fact that, as he put it, people can get away with dishonest non-disclosure in circumstances where, if he had been guilty of the same thing, he cannot conceive that he would not have been caught up with. That seems to me to be the core of Mr Garnham's application for permission to appeal. He is concerned to expose dishonesty as he sees it and believes that it provides a proper ground for appeal. The question for me is whether or not it does.

Chronological background

8. In 1990, Arthur's wife Ada Wilkins died leaving her estate to Arthur. On 17 December 1998, Arthur made a first will leaving his shares in a company called J.A. Distributors (Leigh-On-Sea) Limited and the freehold of the Bell Hotel to a Mr Terrence Smith, whom I shall call "Mr Smith". I shall call that the "first will".
9. On 23 February 1999, Arthur purportedly granted Mr Garnham a lease of a property called Glendale Gardens for one hundred years at a constant rent of £260 per quarter with no premium. On 18 August 1999, Arthur purportedly made a second will. It left 70 per cent of his shares in the company to Mr Garnham and a Mr Skeels and 30 per cent to Mr Smith and split the Bell Hotel and the property at Glendale Gardens equally between Mr Garnham, Mr Skeels and Mr Smith. I shall call that the "second will".
10. On 22 September 1999, Arthur purportedly made a third will making Mr Garnham and Mr Skeels his executors and beneficiaries and leaving similar dispositions to the second will. I shall call that the "third will".
11. On 18 June 2000, Arthur sadly died. In April 2001, Iris bought Ada's shares in the company from Ada's estate for £200,000. The executors were Barclays Bank Trust Company. Iris put the shares in Mr Garnham's name. On 27 April 2001, Mr Garnham and Iris entered into a deed of trust under which Mr Garnham held the shares Iris had bought for Iris as bare trustee. On 25 and 26 November 2002, Iris signed an agreement and an affidavit purportedly giving Mr Garnham full power of attorney over her affairs and over the probate claim for 21 years and agreeing to make payments to Mr Garnham.
12. On 22 December 2002, Iris executed three deeds in rather complex terms, but apparently intended to appoint Mr and Mrs Garnham as trustees of Iris's shares in the company and to provide for them to pass to Mr and Mrs Garnham on Iris's death or incapacity; to transfer Glendale Gardens and the premises of the company to Mr and Mrs Garnham or to provide £700,000 to enable them to buy these properties; and negotiating a charge granted to Arthur over Mr and Mrs Garnham's home in Milton Hall Close. On 22 December 2002, Iris also made a will benefiting Mr and Mrs Garnham and Mr and Mrs Skeels.
13. In October 2003, two claims came on for trial before Blackburne J. The first were the probate claims as to which of Arthur's three wills should be propounded. The second was a claim by Barclays as Ada's executors for possession of the Bell Hotel brought against Mr Smith and the company and Iris.
14. On 26 and 27 October 2003, meetings allegedly took place between Mr Garnham and Mr Skeels and Iris. Iris was at that stage, it will be recalled, some 90 plus years old and was at that time -- I think it is undisputed -- in hospital in St Mary's Hospital in Paddington. It was alleged later that Mr Garnham and Mr Skeels had made misrepresentations to Iris on that occasion about the business of the company being carried on when it was allegedly not; about the company trading at the Bell Hotel which it was allegedly not; and about the business failing if it was not moved to Glendale Gardens.
15. Mr Gerald Quigley, a friend of Iris's, allegedly recorded these supposed conversations with her consent, but unknown at the time to Mr Garnham and Mr Skeels. These conversations have proved to be the foundation of the litigation which came before Proudman J since it is Mr Garnham's allegation that the recordings are forged, false and have been put together dishonestly in an attempt to mislead. It is also Mr Garnham's allegation, as will later appear, that the recordings were dishonestly concealed by the Defendants in the 2009 proceedings, to which I shall later refer, and then sprung upon Mr Garnham at the mediation or shortly before the mediation which led to the settlement the subject of these proceedings.
16. To return to the chronology of 2003; on 28 October 2003, a Consent Order was entered into which admitted the first will of Arthur to probate. Under the Consent Order, Iris agreed to pay Mr Smith the full value of Glendale Gardens, which turned out to be some £570,000; Iris, Mr Garnham and Mr Skeels agreed to pay Mr Smith's costs of the probate claim in the sum of about £109,000; and Iris agreed to indemnify Mr Garnham and Mr Skeels in that regard. In addition, in the Consent Order Iris agreed to pay Barclays' costs of the possession claim, which turned out to be about £110,000 and Mr Smith agreed to pay £15,000 towards those costs. Iris agreed to buy Mr Smith's share in the company for £50,000. Mr Garnham alleges that Iris received legal advice from solicitors and counsel before entering into that Consent Order.
17. On 27 March 2009, moving on five and a half years from the date of the Consent Order, Iris, now some 95 years old, brought proceedings against Mr and Mrs Garnham. She claimed that the monies charged on Mr and Mrs Garnham's home, which were about £104,000 should be paid back to her. She claimed that the transfer and registration of the shares in the company purchased from Mr Smith and held on trust for her should be provided to her. She sought declarations that the three deeds that I have referred to, the lease of Glendale that I have referred to, and the November 2002 documents were all not binding on her on the grounds of non est factum, that they were shams, that they were a pretence, that they constituted unconscionable bargains, they were brought about by undue influence in an inequality of bargaining power and estoppel. Finally, she claimed damages for misrepresentation made to induce the settlement of the probate action on 28 October 2003.
18. In those proceedings, Mr Garnham counterclaimed for remuneration that he said he was entitled, for work done for Iris, to sums totalling some £941,000. On 11 May 2010, moving on a further year from the issue of the 2009 proceedings, Mr Garnham's legal advisers became aware for the first time of Mr Quigley's recordings.
19. On 14 May 2010, a mediation took place before Mr Michel Kallipetis QC and at which the claims were allegedly compromised. On 7 June 2010, a Tomlin order was sealed by the court on the basis that the lease of Glendale Gardens was transferred to Iris; again, Glendale Gardens was delivered up to Iris; all rights under the three deeds and the November 2002 documents were released; Mr Garnham was to repay a £45,000 loan made by Arthur; and costs of £200,000 were to be paid by Mr Garnham by instalments secured over Milton Hall Close, his matrimonial home. Mr Garnham agreed to discontinue proceedings that he had started in the Basildon County Court.
20. Also on 7 June 2010, Mr Garnham appeared before Master Moncaster complaining about his legal representation at the mediation. He said that he was unaware of the trial date. He alleged that the Quigley recording was a forgery and asked if it would be worthwhile challenging the Tomlin order. The Master said that if he wanted to do that, he would have to bring a new action.
21. On 22 June 2011, at the grand old age of 97, Iris sadly died. In September 2011, three months later, Mr Garnham defaulted for the first time on the payment of an instalment of the costs payable under the Tomlin order to which he had agreed. On 15 September 2011, Mr Garnham and Mr Skeels applied in Iris's action to set aside in the 2009 proceedings brought by Iris to set aside the Tomlin order. On 11 October 2011, Morgan J dismissed Mr Garnham's application to set aside the Tomlin order with costs. He did so presumably on the basis that a separate action was required, as Master Moncaster had already told Mr Garnham. On 3 January 2012, these proceedings were issued alleging that the Tomlin order was procured by fraud and that the 2009 proceedings were brought fraudulently.
22. The judge summarised the proceedings at paragraph 51 of her judgment. She said in broad summary, as can be seen from the claim form and particulars of claim, that the Claimant alleged that Iris and/or the Defendants had lied and conspired to defraud in the 2009 proceedings to avoid their liabilities to Mr Garnham. The proceedings alleged that Iris's lying was demonstrated by certain DVDs. The proceedings alleged that the Defendants and their solicitors and counsel had dishonestly concealed documents comprising, first, Mr McCarthy's notebooks and, secondly, Mr Smith's witness statement. I should explain that Mr McCarthy is the solicitor at David Webb and Co who had acted in the probate claim for Mr Garnham and for Iris.
23. The proceedings also alleged that the Defendants had deliberately failed to disclose the recordings so as to use them in an ambush at the mediation. They alleged that in the mediation it had been represented to them falsely, "It is not the only tape. We do have a disk." In addition, in the proceedings it was alleged that Mr Garnham was entitled to payment for his work for Iris from which he alleged that she had received some £1.4 million.
24. It was alleged that Iris had not attended the mediation, despite her great age, as part of a deliberate act of deception. It was alleged that Mr Garnham was told that there were 19 days until the trial when there, in fact, were 30 days, by way of deliberate misrepresentation. Finally, Mr Garnham alleges in the proceedings causes of action in duress, perverting of the course of justice, undue influence, inequality of bargaining power and numerous other allegations.
25. So the stage was set for these proceedings. On 15 May 2012, the Defendants issued an application to strike out or for summary judgment against Mr Garnham. On 8 October 2012, Proudman J granted the summary judgment that the Defendants had sought. On 24 October 2012, Mr Garnham filed his Appellant's notice. I shall return in a moment to his grounds of appeal.
26. On 23 July 2013, Lewison LJ looked at the matter on paper and refused permission to appeal saying that the judge had given adequate reasons for her decision about the recording, but that she had preferred the expert evidence of the only independent expert introduced by the Defendants. Mr Garnham had had the opportunity to call an expert, but had not done so.
27. Lewison LJ said that all the grounds of appeal flowed from the judge's finding on the recording and that had led to her finding that Mr Garnham's case was fanciful. Lewison LJ said that the judge had also relied on Mr Garnham's affirmation of the Tomlin order so that he had lost the right to set it aside and that the appeal was bound to fail. His conclusion was that the learned judge had applied the correct legal test for summary judgment so there was no real prospect of the Court of Appeal interfering with her decision. He declined to grant a stay.
28. On 27 March 2014, Mr Garnham issued new proceedings against the same Defendants claiming damages for fraud and negligence. I shall return to those in due course.

The judge's decision

29. The judge prepared a detailed and comprehensive judgment as follows.

1) Mr Garnham's case had to carry a degree of conviction to be allowed to go forward. The court was not obliged to accept any allegation he might choose to make: Paragraph 54.

2) There was no general jurisdiction to set aside a transaction on the grounds of inequality of bargaining power: Paragraph 55.

3) The restitutionary claims were prevented by the Tomlin order. They were simply an attempt to re-litigate those claims: Paragraph 56.

4) The claims supported by DVDs and other documents from the probate claim were without merit as amounting to an attempt to re-litigate the 2009 proceedings. The DVDs were available to the parties in the 2009 proceedings: Paragraph 57.

5) There was no substance in the claims of conversion, perjury and perverting the course of justice and undue influence as a stand-alone complaint: Paragraphs 59 to 60.

6) The main plank of Mr Garnham's claim was fraudulent misrepresentation: Paragraph 61.

7) The allegation that boxes of documents and Mr McCarthy's notes and Mr Smith's statement were deliberately concealed had no prospect of success and Mr Garnham was anyway not misled in respect of that: Paragraphs 62 to 65.

8) The recording ought to have been disclosed at the outset by the Defendants, but was, in fact, probably only disclosed shortly before the mediation: Paragraph 66.

9) Having been through the recording in detail, the judge held:

(a) that the allegation that it was withheld to be used in an ambush was "far fetched" and "fanciful" as the mediation was only arranged at the last minute: Paragraph 70.

(b) there was no expert evidence or rather other evidence beyond the bare allegation of the fabrication to support the allegation that the recording was false. It was not challenged at the time: Paragraph 73.

(c) the expert evidence of Mr Groninger showed that he found nothing to show the recordings had been edited or tampered with: Paragraphs 75 to 76.

(d) the contents of the recordings were entirely consistent with the Defendants' case: Paragraph 78 to 79.

(e) all the cogent evidence suggested that the recording was genuine and was corroborated: Paragraphs 103.

10) Taking a common sense view of the credibility of Mr Garnham's case in the light of the absence of any credible evidence as to the forgery of the recordings, the prospects for establishing fraudulent misrepresentation against Iris or the Defendants was "fanciful": Paragraph 80.

11) There were no surrounding facts giving rise to any credible case of undue influence: Paragraph 80.

12) Even if Mr Garnham had objected to the recording at the time, he would still have been advised to agree to the Tomlin order as there was no realistic chance of his succeeding at trial: Paragraph 81.

13) Mr Garnham could not sustainably argue that there were misrepresentations made about trial being 19 days away since what was said was true and he was not misled: Paragraphs 82 to 83.

14) Mr Garnham approved, affirmed and ratified the settlement by continuing to perform his side of the bargain: Paragraphs 84 and 85 and 93.

15) The claims in undue influence, economic duress and conspiracy were unsustainable and unsupported by credible evidence: Paragraphs 87 to 89, 90 to 93 and 95 to 97.

16) Accordingly, Mr Garnham's application to set aside the Tomlin order should be dismissed and summary judgment was granted to the Defendants: Paragraphs 98 to 100.

17) The claim was an opportunistic attempt to extract payment from Iris's estate: Paragraph 101.

18) Mr Garnham's application to cross-examine the Defendant would be dismissed.

The grounds of appeal

30. Mr Garnham has produced a 48-page closely typed skeleton argument for this application. His grounds of appeal are, however, shorter, running only to 6 pages. They are, however, supported by no less than 14 files of documents. There are, in fact, two versions of the Appellant's notice containing different grounds of appeal, but substantially in the same terms.
31. The grounds can be summarised as follows. First, the judge, it is said, failed to consider relevant facts and her decision was vitiated by factual error because she failed to find that Iris was a dishonest person, prepared to go to any lengths to defraud her brother and others and to lie and cheat in numerous other ways. The Defendants assisted her in these ventures. Perhaps more importantly, it is said that the judge failed to find that the recording was forged and the judge failed to find that the recording and other documents had been dishonestly concealed in the 2009 proceedings.
32. Under the heading of the "essence of my claim" at page 5 of Mr Garnham's skeleton argument, he repeats these allegations and alleges that there has been non-disclosure, misrepresentation, deceit and dishonesty prior to and at the mediation on 14 May 2010 by the Defendants who conspired not to disclose the recording prior to the mediation knowing that it had been covertly recorded and processed contrary to the Data Protection Act 1998 and that it was not genuine.
33. After some 25 pages of analysis concerning the voice recording, Mr Garnham concludes by saying that his case is more than arguable, fanciful or shadowy and that he has sufficient merit in the points that he has made to proceed to trial.
34. In oral argument before me this morning, Mr Garnham has said that it is clear that the Defendants and Iris dishonestly signed statements of truth on their lists of documents in the 2009 proceedings when, after 22 opportunities to disclose the recording, they did not do so. When I asked Mr Garnham what the effect of this alleged dishonesty was, he said, in effect, that he could not get over the fact and come to terms with the fact that people can get away with such dishonesty, whether or not it had any effect on the ultimate settlement. It was his case that if he had known of it, he would not have settled the case.
35. The second point that he made to me was to point to the e-mail dated 22 November 2013 from the new expert that he has recently instructed, Mr Mills, who has looked at the recording and ascertained that there are two different people, one a female with a slight Jamaican accent saying "good morning" and a male responding "good morning", on the recording which has not come from the background television. It is his view that the recording was made from around 6.30 pm on the evening of 27 October 2003.
36. The third point that Mr Garnham has made orally is that the transcript shows that the recording was made at 7.30pm, some one and a half hours after the previous recording, which demonstrates that it must be false.
37. Fourthly, Mr Garnham has submitted, and I use his words to record this, "why would they conceal the documents if there was not a problem with the recording and with the disclosure?" He submits that it is pretty obvious that the recording is not genuine, that it is a mixture of recordings put together, and that only Mr Quigley can answer those questions and that there should, therefore, be a trial at which he can be cross-examined.
38. He submits that it was on the basis of the existence of the recording sprung upon him at the last moment at the mediation that he compromised the proceedings. He would not have done so otherwise. In those circumstances, he submits that the judge has fallen into error and that I should grant permission to appeal.

Discussion

39. Mr Garnham's claim, as Proudman J says, is an attempt to re-litigate the 2009 proceedings. It has unfortunately been presented in a series of prolix documents without adequate focus or discrimination between good and bad points. It is difficult when a litigant is acting in person to achieve that focus.
40. Nonetheless, Mr Garnham has gone to extreme lengths in an attempt to persuade the court that the recording made by Mr Quigley allegedly on 27 October 2003 has been forged, if I can put it in the vernacular, cooked up, was false and was dishonestly concealed from him in the 2009 proceedings and that has thereby given rise to the Tomlin order which he would not otherwise have entered into.
41. There is no doubt that Mr Garnham has been motivated by a desire to prove that Iris was a dishonest and disreputable woman, but, as he himself acknowledges, that is not really the issue in this intended appeal. The question that I have to decide is whether Mr Garnham has been able to show that an appeal from Proudman J's decision to grant the Defendants summary judgment has a real prospect of success.
42. He would be able to demonstrate that it had a real prospect of success if, but only if, he had satisfied me that he relied on the genuineness of the recording in settling the proceedings in 2010; that he would not have at the time settled the proceedings had he not relied on the genuineness of the recording; and that there is a more than fanciful case to support the proposition that the recording was, in fact, forged or in some way cooked up.
43. I have read the papers in this case. I have read Proudman J's judgment. I have looked at the additional points that Mr Garnham has made. It is true that in relation to a recording that took place some seven years before it became an issue in the 2009 proceedings that there were a certain number of inconsistencies. Those inconsistencies were, however, fully taken into account by the judge. The judge not only saw a transcript of the recording, but considered the contents of the recording alongside the Defendants' case and held, with justification, that they supported it. There is no reason to suppose that the voice of Mr Garnham is not found on the recording.
44. More important than that, it is perfectly clear from all the circumstances of this case that the reason that the 2009 proceedings were compromised was because, on their merits, Mr Garnham was unlikely to win them. He was advised by solicitors and counsel. He chose to settle the proceedings knowing that a recording had been produced and knowing that he had not had an opportunity fully to consider its contents or its genuineness at the time. He was in a position to decide whether or not to settle knowing of those uncertainties. He chose to settle with legal advice.
45. In those circumstances, not because Mr Garnham cannot show that there are uncertainties about the precise date and time of the recording and the precise provenance of it, but because the recording does not seem to me to have been a material factor in Mr Garnham's decision to settle, there is no possibility of a successful appeal from Proudman J's judgment.
46. I agree with the conclusion that she reached on the basis of the material that was placed before her. The new material really adds very little to her conclusions. She acted on the basis of the correct legal principles which she has set out in her judgment and have not been challenged before me. She understood that Mr Garnham had acted himself in pursuance of the Tomlin order before later, after Iris's death, changing his mind and repenting of his wish to settle.
47. In litigation it is crucial that there is finality to all disputes. That is so important because otherwise costs and time are needlessly taken up by re-litigation of issues that have already been determined either by courts or by consent. Mr Garnham is, I am afraid to say, conducting a crusade in an attempt to rewrite history and to extricate himself from a settlement agreement that transparently represented the merits of the 2009 litigation and that he freely entered into with the benefit of legal advice.
48. Even if it were to be shown that the non-disclosure of the recording in lists of documents and in correspondence on 22 occasions was fraudulent, it would not have a causative effect on Mr Garnham having entered into the settlement agreement. It is simply not correct for Mr Garnham to say that had he known of the non-disclosure, he would not have settled the claim. The fact of the matter is there was no connection between the non-disclosure and the settlement. As I have said, he knew of the existence of the recording and chose nonetheless to settle knowing that there were things about the recording that he did not know, but could find out if he decided not to settle.
49. I should point out in this judgment that I am disappointed to see that Mr Garnham has seen fit to issue new proceedings against the same parties in respect of very similar relief as has been sought in those proceedings. That new action is not before me, but it has been brought to my attention by the Defendants' solicitors. Mr Garnham should be aware that if he were to pursue the same proceedings under a new claim form against these Defendants having been denied permission to appeal from Proudman J's judgment, it is more than likely that he will be the subject of an application for a Civil Restraint Order in the usual terms. I would encourage him to think very carefully before he proceeds with those proceedings.
50. There are no grounds for Mr Garnham's application for a stay of the order made by Proudman J, a transcript of the proceedings before her and permission to adduce fresh evidence in the form of an e-mail dated 22 November 2013 from Mr Mills. Mr Garnham had ample opportunity to adduce evidence from an expert at the original hearing but failed to do so. In any event, the evidence does not assist Mr Garnham or impugn the judge's conclusion. I will dismiss Mr Garnham's additional applications.
51. Before ending this judgment, I would like to repeat that though I understand that Mr Garnham finds it difficult to get over the fact that, as he sees it, the Defendants have got away with dishonesty, that was not the issue that was before Proudman J. The question before her was whether there was any reasonable case to set aside the Tomlin order and she held correctly that there was not. There must be finality to this litigation, as for all litigation. I will dismiss this renewed oral application for permission to appeal from the decision of Proudman J.