England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
Mr Recorder Rawlings
2YL76458

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/12/2015

Lord Justice Kitchin:

Introduction

1. This is an appeal against the order of Mr Recorder Rawlings made on 27 October 2014 whereby he gave judgment for the claimant, Mr Ali, on his claim against the defendant, Mr Siddique, in the sum of £13,397 including interest and ordered Mr Siddique to pay 60% of Mr Ali's costs.
2. Mr Ali's claim had two parts. The first and major part was a claim by Mr Ali that Mr Siddique was liable pay him £22,050, this being a sum which Mr Siddique undertook to transfer from Mr Ali's account in England to Mr Ali's account in Bangladesh. The second and minor part was a claim by Mr Ali for a further £720 which he asserted represented the balance of a debt owed to him by Mr Siddique.
3. The claim for £22,050 was originally formulated in the particulars of claim in the following way. It was said that in late 2009 Mr Ali gave Mr Siddique two signed cheques, one for £18,900 and the other for £3,150. In neither case did the cheque include the name of the payee. The cheques were given by Mr Ali to Mr Siddique so that Mr Siddique could change the funds the cheques represented into Bangladeshi taka and credit them to Mr Ali's account in Bangladesh. It was further asserted that in this way Mr Siddique became both an agent of Mr Ali and a trustee of the monies or the chose in action each cheque represented. However, so the allegation continued, Mr Siddique wrongly retained the monies entrusted to him and thereby acted in breach of trust or was liable for money had and received.
4. At the trial, and despite objections raised by counsel for Mr Siddique, the Recorder allowed Mr Ali to amend his particulars of claim to allege that Mr Siddique owed to him a duty of care in respect of the transaction to which I have referred, that he had acted negligently and in breach of that duty of care in handing the cheques on to a third party, Mr Abdus Khan, and that, as a result, Mr Ali had suffered loss and damage.
5. The Recorder found that Mr Siddique received the cheques as Mr Ali's agent and that he held the cheques on trust for the specific purpose of effecting a transfer of the monies they represented to Mr Ali's account in Bangladesh. It followed, the Recorder continued, that the relationship between Mr Ali and Mr Siddique was sufficiently proximate for a duty of care to arise; that Mr Siddique had acted in breach of that duty; and that the breach had caused Mr Ali to suffer a loss. Mr Ali was, however, guilty of contributory negligence and accordingly it was appropriate to reduce the damages for which Mr Siddique was responsible by 50%. The Recorder therefore awarded to Mr Ali £11,025 in respect of this aspect of his claim. The Recorder also awarded Mr Ali just £32 in respect of the debt allegation which formed the second part of his claim. Finally, he awarded Mr Ali 60% of his costs of the action.
6. Upon this appeal, Mr Siddique contends that the Recorder fell into error in allowing Mr Ali to amend his particulars of claim at such a late stage. He also contends that the Recorder fell into error in holding that he had acted in breach of any duty of care he did owe to Mr Ali; in finding that any such breach had caused Mr Ali any loss; in only reducing the damages by 50%; and in awarding Mr Ali 60% of his costs of the action.
7. Mr Siddique also has an application for permission to adduce further evidence on appeal. This application occupied very little time at the hearing and it is convenient to deal with it at the outset. The evidence consists of an academic article concerning the informal value transfer system known as the Hundi system and various newspaper articles. I am not satisfied that this evidence could not have been obtained with reasonable diligence for use at the trial; nor do I believe that any of the evidence is such that, if given, it would probably have an important influence on the result of the case. I would dismiss this application.

The facts

8. Mr Ali came to England from Bangladesh in about 1986 and made his home in Bradford. In the years immediately preceding the trial he worked as a taxi driver. Despite the length of time Mr Ali had lived in England and the work he had undertaken here, he was unable to speak, write or understand English other than at a very basic level.
9. Mr Siddique came to England from Bangladesh in about 1993. He too lived in Bradford and, at the date of the trial, was employed by Bradford Council as a social worker. He has always spoken, written and understood English very well.
10. For very many years Mr Ali and Mr Siddique were extremely close friends and from time to time Mr Siddique assisted Mr Ali by writing letters and other documents for him in English.
11. These basic matters aside, virtually all other aspects of the relationship and dealings between Mr Ali and Mr Siddique were heavily disputed. They and the witnesses they respectively called gave accounts which widely diverged. Neither Mr Ali nor Mr Siddique emerged from the trial with any credit. The Recorder found that each gave evidence he knew to be untrue and adjusted his answers in cross-examination in an endeavour to improve his prospects of success. Further, each exaggerated the responsibility of the other for the transactions which underlie these proceedings. Nevertheless, the Recorder proceeded to make a series of findings of fact which neither side has sought to challenge on this appeal and which I must now summarise, together with an outline of the different accounts they gave.
12. Over the years, Mr Ali made relatively frequent transfers of funds from England to Bangladesh. He made these transactions for himself, his family and his friends and from time to time he made a profit from them. His experience was such that he was well aware of the costs associated with such transfers and how long they took.
13. In September or October 2008 Mr Ali agreed to transfer to Bangladesh for Mr Siddique 15 Bangladeshi lakh, that is to say, 1,500,000 taka. Mr Siddique gave Mr Ali £5,000 in cash and Mr Ali paid the balance of £7,032 necessary to effect the transfer from his own funds. He claimed that Mr Siddique therefore owed him this sum together with a further £688 in respect of various other small loans. He also claimed that Mr Siddique had only discharged £7,000 of this debt and that a further £720 was therefore due and owing to him. The Recorder did not accept that the further £688 was ever owed by Mr Siddique to Mr Ali and accordingly he awarded Mr Ali only £32 in respect of this part of the claim. Neither side has challenged this aspect of the judgment on this appeal.
14. Turning to the more substantial part of the claim, the Recorder found that in 2009 Mr Ali decided to remortgage his house so as to release sufficient funds to allow him to buy a property in Bangladesh at a cost of 35 lakh. Despite Mr Ali's assertions to the contrary, Mr Siddique did not encourage Mr Ali to take this course and assisted him only to the extent of helping him to complete an on-line expression of interest form and forwarding this on Mr Ali's behalf to a broker. Moreover and more generally, Mr Siddique did not at any time carry on or purport to carry on business as any kind of financial advisor. However, upon Mr Siddique indicating to Mr Ali that he could arrange the transfer of funds to Bangladesh at a favourable rate and in approximately 10 to 11 weeks, they agreed that Mr Siddique would arrange the transfer of the 35 lakh to Bangladesh for Mr Ali.
15. The parties gave radically different accounts of what happened next. Mr Ali said that, after deductions, he received into his bank account a sum slightly in excess of £20,000 from the remortgage. He continued that, on 21 October 2009, he met Mr Siddique at his home and Mr Siddique told him that he could not arrange the transfer of the entire 35 lakh with the funds Mr Ali had available but that he could arrange the transfer 30 lakh for £18,900, and that Mr Ali would need to raise a further £3,150 in order for him to arrange the transfer of the balance of 5 lakh. It was Mr Ali's case that, at the request of Mr Siddique, he signed a cheque for £18,900 and left it with Mr Siddique. He did not complete the details of the payee. Mr Ali's account continued that, in November 2009 and having raised a further £3,500, he returned to Mr Siddique's home and, on this occasion, left with him a second signed cheque but once again he did not complete the details of the payee.
16. Mr Ali also maintained that, in accordance with Mr Siddique's instructions, he waited for a number of weeks but no funds were ever received by him in his Bangladeshi bank account. Mr Ali then made enquiries of his bank. He then found out that the cheque for £18,900 had been made payable to a business called Sonargaon Finance and that the cheque for £3,150 had been made payable to an individual called Shipa Begum. Both cheques had been presented and had cleared.
17. Mr Siddique's account ran as follows. He said that in August 2009 he mentioned to Mr Ali that his family knew of a man who could transfer monies to Bangladesh very cheaply and, at Mr Ali's request, obtained and provided to him details of this man, Mr Khan. Thereafter Mr Ali dealt directly with Mr Khan. Their first transaction involved the transfer by Mr Khan of 15 lakh to Bangladesh for various customers of Mr Ali. This transfer was achieved very cheaply and Mr Ali made a significant profit from it.
18. Mr Siddique continued that the second transaction conducted by Mr Ali and Mr Khan was intended to effect the transfer of the 35 lakh, and that his own involvement was very limited. He said that on 21 October 2009, Mr Ali came to his home and asked him to complete a cheque in accordance with a note which he had with him. The cheque was to be written in the sum of £18,900 but the name of the payee was unclear. Mr Siddique therefore telephoned Mr Khan who told him to make the cheque payable to Sonargaon Finance, which he did. Mr Ali then left with the cheque. Mr Ali returned to Mr Siddique's home on 10 November 2009 and on this occasion asked him to write out a second cheque for him, this time in the sum of £3,500 and payable to Shipa Begum. Once again Mr Ali left with the cheque. Mr Siddique maintained that on both occasions he did what was asked of him and nothing more.
19. By the time of the trial a good deal more information had emerged about the fate of Mr Ali's monies for Mr Golam Chowdhury had been tried and convicted at Winchester Crown Court of fraud in connection with their diversion. Mr Khan gave evidence at Mr Chowdhury's trial and, in the course of that evidence, stated that he had never met Mr Ali and had dealt only with Mr Siddique. He also explained that he had acted on behalf of a number of persons who wished to transfer funds to Bangladesh; that he passed the monies on to Mr Chowdhury, sometimes by cheque and sometimes in cash; and that Mr Chowdhury had dishonestly misappropriated some of those monies. I should emphasise that it has never been suggested that Mr Khan, Sonargaon Finance or Shipa Begum engaged in any criminal activity or were party to Mr Chowdhury's fraud. Nor has Mr Ali ever attempted to recover his monies from Sonargaon Finance or Shipa Begum.
20. In the end, the Recorder preferred Mr Ali's evidence on these issues. He found that the 15 lakh transaction which Mr Siddique maintained had been effected by Mr Khan for Mr Ali had never taken place; that Mr Siddique did not complete the names of the payees of the cheques for £18,900 and £3,150 in the presence of Mr Ali; that Mr Siddique retained the two cheques in order to arrange the transfer of the 35 lakh using the services of Mr Khan; but that Mr Siddique did not at any time disclose to Mr Ali that he intended to forward the cheques to Mr Khan. Nevertheless, the Recorder went on to find that Mr Ali did consent to the use by Mr Siddique of unconventional means to effect the transfer. This was apparent from the fact that Mr Ali used the services of Mr Siddique because he offered a much better rate than would otherwise have been available to Mr Ali, and because Mr Siddique explained that the transfer would take approximately 10 to 11 weeks. It also followed, continued the Recorder, that it was inconceivable that Mr Ali thought that Mr Siddique was going to arrange the transfer himself without involving any third party. Necessarily therefore, Mr Ali consented to the use by Mr Siddique of the services of one or more third parties. These findings were, so it seems to me, entirely consistent with the fact that, when Mr Ali parted with possession of the cheques, the details of the payees had not been completed.

The reformulation of the case

21. The claim for £22,050 was formulated in the original particulars of claim in the manner I have outlined. It was contended that, at Mr Ali's request, Mr Siddique assisted Mr Ali by entering on to each of the two cheques the details of the sums to be paid; that Mr Ali signed the cheques; and that the cheques were then given by Mr Ali to Mr Siddique so that Mr Siddique could change the funds the cheques represented into taka and credit them to Mr Ali's account in Bangladesh. It was further alleged that Mr Siddique thereby became Mr Ali's agent for the purpose of carrying out this transaction or that he thereby became a trustee of the monies or the chose in action each cheque represented. The pleading continued that it was agreed that the transaction would be completed in 10 to 11 weeks; that Mr Ali had repeatedly requested Mr Siddique to repay the monies; but that the monies had not been repaid either within the 10 to 11 weeks or at any time thereafter.
22. The action was duly fixed to come on for trial before the Recorder in the Bradford County Court on 28 April 2014. It was listed for three days. Shortly before the trial began, Mr Alfred Weiss, who appeared at the trial on behalf of Mr Ali, as he has on this appeal, prepared and lodged a skeleton argument which, in addition to elaborating upon the various allegations contained in the particulars of claim, included for the first time a contention that, in all the circumstances, Mr Siddique had assumed a responsibility to Mr Ali in respect of the services he had agreed to perform and that, if and in so far as he had entrusted the cheques to a third party, he had negligently performed those services and was liable in damages for any loss Mr Ali had suffered thereby.
23. This further allegation was not, however, accompanied by any proposed amendment to the particulars of claim. This deficiency prompted the Recorder, on the first day of the trial, to ask Mr Weiss whether he intended to make an application on Mr Ali's behalf for permission to amend the particulars of claim. He indicated to Mr Weiss that he would be sympathetic to such an application provided that it would make no difference to the evidence each side wished to adduce. Not surprisingly, Mr Weiss responded that, in these circumstances, he did wish to make an application for permission to amend the pleading and that he would draft an appropriate amendment overnight. He also submitted that the amendment would have no impact upon the evidence and that it would be in the interests of justice to allow it, albeit that the application was being made at a late stage.
24. Mr Soofi Din, who appeared at the trial on behalf of Mr Siddique, as he has on this appeal, indicated that he would like to see the amendment but that he did not anticipate objecting to the order sought should it prove to be the case that the amendment would indeed have no impact upon the evidence. In my judgment it is clear that Mr Din was in this way reserving his position.
25. At this point and despite Mr Din's response, the Recorder gave Mr Ali permission to amend the pleading. It is to be noted that he did so without seeing a draft of the proposed amendment and on the basis that it would have no impact upon the evidence that either side might wish to adduce. I must return to the terms of the Recorder's ruling later in this judgment and, as will be seen, he later characterised it as being one which granted Mr Ali permission to amend "in principle".
26. The Recorder was then faced with a further application, this time made by Mr Din on behalf of Mr Siddique. He sought permission to call Mr Khan as a witness to explain his involvement in the transaction. Mr Din submitted that it would clearly be in the interests of justice for Mr Khan to be called because Mr Ali was himself intending to rely upon the transcript of the evidence given by Mr Khan at the trial of Mr Chowdhury and it was desirable that Mr Khan should give evidence in person. He explained that Mr Khan could be made available on the second day of the trial and that those instructing him had prepared a draft witness statement.
27. The Recorder dismissed this application for reasons which he elaborated in his written judgment of 23 October 2014. In summary, he considered that the application was made far too late and that the evidence given by Mr Khan at Mr Chowdhury's trial, as recorded in the transcript, was, at least in part, inconsistent with the case that Mr Siddique was now seeking to advance in that Mr Khan said at that trial that he did not know and had never met Mr Ali, and that he had only dealt with Mr Siddique.
28. On the second day of the trial Mr Weiss produced the draft amended pleading as he had promised. It reads in material part:

"Common law duty

22A. The Defendant owed the Claimant a duty of care in respect of [the 35 lakh transaction].

22B. Said duty arose out of the following circumstances:

a) The Claimant trusted the Defendant to carry out a particular task, namely to pay to the Claimant's bank account in Bangladesh the total sum of 35 Lakh.

b) The Claimant had poor English language, written and spoken.

c) The Defendant was highly educated and had good use of English language.

d) The Claimant had a history of reliance upon the Defendant's assistance in financial affairs and matters involving literacy. In particular, the Defendant had arranged the re-mortgage of the Claimant's property from a 25 year loan to a 10 year loan. The Defendant had arranged a further re-mortgage of the Claimant's property to raise the funds for the 35 Lakh.

e) The Defendant made a promise to pay the 35 Lakh into the Claimant's bank account.

f) The Defendant knew or ought to have known that the Claimant was relying upon that promise.

22C. In so far as any misrepresentation is required to found the duty of care the misrepresentation was the Defendant's promise to transfer the monies to the Claimant's bank account. This was a misrepresentation because it implies that the Defendant was in a position to fulfil that promise. However, the Claimant learned after the transactions between him and the Defendant involving the two cheques, that the Defendant had in fact passed the cheques to a 'middleman'. If the Defendant in fact passed the cheques to a middleman, then he was in no position to promise to transfer the monies to the Claimant's bank account as he was submitting the cheques to the middleman and therefore had no control over the destination of the monies that could be drawn on those cheques.

22D. The Defendant was negligent in that he:

a) Gave the cheques to a "middleman".

b) Failed to ascertain the trustworthiness of the individual(s) to whom he was passing the cheques.

c) Failed to ascertain the trustworthiness of the individual(s) to whom he addressed the payee name on the cheques.

d) Failed to inform the Claimant that he would be passing the cheques onto a "middleman".

e) Failed to seek the Claimant's consent to pass the cheques onto a "middleman".

f) Failed to pay the monies that could be drawn on the cheques to the Claimant's bank account through a reputable money transfer agency.

g) Failed to pay the monies that could be drawn on the cheques into the Claimant's nominated Bangladeshi bank account.

h) Promised to pay the monies to the Claimant in circumstances where the Defendant knew or ought to have known that that he was entrusting the cheques to a third party thus relinquishing control over the monies that could be drawn on those cheques.

i) Failed to take reasonable care with the Claimant's monies that could be drawn on the cheques.

22E. As a result of the negligence of the Defendant the Claimant has suffered loss and damage in the sum of £22,050."

29. I must return to this amended pleading later in this judgment but for the moment would note that it embodied a further and important development of the case foreshadowed by Mr Weiss in his skeleton argument and elaborated on the opening day of the trial. The allegation in the skeleton argument was simply that Mr Siddique was negligent in entrusting the cheques to a middleman. However, in the amended particulars of claim it was asserted, inter alia, that Mr Siddique was negligent in failing to ascertain the trustworthiness of the persons to whom he passed the cheques and to whom the cheques were made payable.
30. The trial then proceeded and the evidence occupied the rest of the time for which it was listed. Accordingly the parties were invited to make their closing submissions in writing, including any further submissions as to the allowability of the amendment to the particulars of claim. At this point Mr Din reiterated his objections both as to the form of the amendment and as to whether it should be allowed at all at such a late stage.
31. On this latter question, the Recorder explained in his judgment that he had decided in principle that he should give Mr Ali permission to amend on the first day of the trial and this was not a matter which could now be re-opened. As for the particular form of the amendment, the Recorder considered it was properly formulated and that it should be allowed. He went on to say that, had he not already given permission for the amendment in principle, he would have done so later, for it could hardly be said that Mr Siddique had been deprived of the opportunity to adduce relevant evidence when it was his case that he had only been involved in the transaction to the extent of assisting Mr Ali to complete the details on the cheques and introducing Mr Ali to Mr Khan.

The judgment

32. It was perfectly clear by the start of the trial that the claim as originally formulated was bound to fail for it was by then common ground that the cheques had been passed to Mr Khan and that the monies those cheques represented had not been retained by Mr Siddique or diverted by him for his own purposes. Accordingly, there was no question of Mr Siddique wrongfully retaining any monies due and owing to Mr Ali, and Mr Weiss made clear in his opening submissions that Mr Ali was not pursuing a claim for money had and received. All therefore depended upon the amended pleading and the claim in negligence.
33. In addressing this new claim, the Recorder began by considering whether Mr Siddique was acting as Mr Ali's agent. The Recorder found that he was at [84]:

"84. It seems to me that by (as I have found) handing the Cheques signed but otherwise blank to Mr Siddique for the specific purpose of Mr Siddique arranging to transfer funds from Mr Ali's bank account in England to Mr Ali's bank account in Bangladesh, Mr Ali was manifesting an intention for Mr Siddique to act as his agent for that purpose and further that Mr Siddique manifested his consent to act for that purpose by taking the Cheques from Mr Ali and agreeing to arrange the transfer."

34. It was contended by Mr Din on behalf of Mr Siddique that there was no evidence that Mr Ali ever consented to Mr Siddique acting in such a way as to affect Mr Ali's legal relationships with any third party. The Recorder did not accept this submission. As I have said, he held that it was inconceivable that Mr Ali thought that Mr Siddique was going to arrange the transfer himself without the involvement of any third party. Moreover, the Recorder continued, Mr Ali knew and agreed to the use by Mr Siddique of unconventional means for making that transfer, that is to say without the use of a bank or other established and reputable transfer means. The Recorder summarised the position in these terms at [86]:

"86. It follows in my judgement that Mr Ali generally assented to Mr Siddique utilising the services of one or more third party [sic] in order to affect [sic] the transfer to Mr Ali's bank account in Bangladesh and I find that in doing so Mr Siddique would act as agent and Mr Ali as principal (whether disclosed or not)."

35. The Recorder then considered whether Mr Siddique was a trustee of the cheques themselves or the chose in action each represented for this, he thought, might be relevant in deciding whether or not Mr Siddique owed to Mr Ali a duty of care. Mr Weiss made clear to us that this reasoning was not based upon any submission he had made to the Recorder and he disclaimed any reliance upon the Recorder's reasoning in this respect. He also made clear that such a contention formed no part of his case before this court.
36. There followed a consideration by the Recorder of the overall relationship between Mr Ali and Mr Siddique and whether it was such that Mr Siddique owed to Mr Ali a duty of care. He held that it was and that, in all the circumstances of the case, Mr Siddique owed to Mr Ali a duty of care in respect of the means by which Mr Siddique attempted to transfer the monies represented by the cheques to Mr Ali's Bangladeshi bank account.
37. That brought the Recorder to the question of breach of the duty of care. He found that Mr Siddique had indeed acted in breach of that duty for reasons he set out at [126] to [127]:

"126. Mr Siddique denied that Mr Ali handed the Cheques to him or that he handed them to Mr Khan. It is his case that he did nothing more than give Mr Ali Mr Khan's contact details and that thereafter Mr Ali made his own arrangements with Mr Khan. I have found that Mr Ali did hand the Cheques to Mr Siddique, Mr Siddique did hand the Cheques to Mr Khan and that Mr Siddique did not tell Mr Ali that he would hand the Cheques to Mr Khan or how he would arrange the transfer of funds. Unsurprisingly, Mr Siddique produced no evidence that he had made any enquiries as to (a) how Mr Ali's funds would be transferred; (b) how Mr Khan or any party that Mr Khan intended to deal with would arrange the transfer; or (c) as to the bona fides or financial wherewithal of the payees who were entered on the Cheques after (I have found) the Cheques were left with Mr Siddique by Mr Ali (in the case of Shipa Begum, by Mr Siddique, and in the case of Sonagoan Finance [sic] by some other party).

127. The legal burden falls upon Mr Ali to establish that Mr Siddique breached his duty of care, however, in circumstances where, as I have found, Mr Ali did not know, much less approve the method by which Mr Siddique would transfer the funds, an evidential burden falls upon Mr Siddique to set out what steps he did take to comply with his duty to exercise reasonable skill and care in ensuring that Mr Ali's funds were transferred to Mr Ali's bank account in Bangladesh. There is no evidence that Mr Siddique took any steps at all to try to ensure that Mr Ali's funds would be successfully transferred and I find in those circumstances that Mr Siddique breached his duty of care to Mr Ali."

38. The Recorder then turned to the issue of causation. In this regard Mr Din advanced two arguments. He contended first, that if Mr Siddique had sought Mr Ali's consent to the particular means of transfer which he employed, Mr Ali would have given his consent and so Mr Ali's funds would have been lost in any event. The Recorder was not persuaded by this submission for he considered he should not speculate what Mr Ali might have done had Mr Siddique behaved differently.
39. Mr Din's second and, to my mind, more substantial argument was to the effect that any loss Mr Ali had suffered was caused by Mr Chowdhury's fraud and not by any failure by Mr Siddique to take reasonable care in the way he carried out the transaction. Once again, the Recorder rejected this submission on the basis that it would require him to engage in undue speculation. Accordingly, he found that Mr Siddique's breach of his duty of care was a substantial cause of Mr Ali's loss.
40. Finally, I should say a word about contributory negligence. Here the Recorder reiterated his finding that Mr Ali well understood that Mr Siddique would be employing an unconventional method of transfer which was unlikely to involve the use of any established reputable financial institution and thus involved a higher risk of loss. He continued that Mr Ali also knew or ought to have known that handing over signed blank cheques would put his funds at risk. He concluded that Mr Ali was therefore also at fault and that there was a causal link between that fault and the damage which he had suffered. In all the circumstances he considered it appropriate to reduce Mr Ali's damages by 50%. Accordingly, he continued, Mr Siddique was liable to pay £11,025 to Mr Ali by way of damages. This sum and the interest upon it amounted to £13,397.
41. The Recorder dealt with costs at a later hearing. He reasoned that Mr Ali had won overall but that he must also take into account that Mr Ali was to a significant extent responsible for his own losses and that he had failed on some issues. The Recorder held that all the circumstances it was appropriate to award Mr Ali 60% of his costs.

The appeal

42. Upon this appeal Mr Din has attacked nearly every aspect of the Recorder's approach and reasoning. He submits that the Recorder fell into error on the first day of the trial in giving Mr Ali permission to amend his particulars of claim at such a late stage and without there being a properly formulated proposed amended pleading. Mr Din continues that when the amended pleading was produced, it still did not contain any proper formulation of the alleged duty of care and the Recorder ought so to have held. Furthermore, says Mr Din, these errors were rendered even more serious by the refusal of the Recorder to allow Mr Siddique to call Mr Khan as a witness, and the Recorder wrongly rejected his renewed objections to the amendment in his closing submissions.
43. Turning next to the Recorder's judgment, Mr Din submits that he fell into error in finding that Mr Siddique did owe to Mr Ali a relevant duty of care; in holding that Mr Siddique had acted in breach of that duty; and in finding that the breach was the cause of Mr Ali's loss. Moreover, argues Mr Din, the Recorder fell into further error in failing properly to assess Mr Ali's responsibility for his loss and by reducing his recoverable damages by only 50%. Finally, submits Mr Din, Mr Siddique should have been awarded all of his costs up to the date of the amendment.
44. Mr Weiss responds that the Recorder approached the case correctly. He submits that Mr Ali's application for permission to amend the particulars of claim and Mr Siddique's application for permission to call Mr Khan as a witness raised case management issues and in dealing with them the Recorder had a wide discretion. Moreover, the Recorder's decisions in relation to those issues were properly reasoned and this court should not interfere with them unless he has erred in principle. As for the merits of the amended claim, Mr Weiss submits that the pleading was properly formulated and that, subject to the issue of reliance by the Recorder upon a trust relationship between Mr Ali and Mr Siddique to support the finding of a duty of care (which, as I have said, has never formed part of his case), the Recorder's findings should be upheld for the reasons he gave.
45. I begin with the issue of amendment of the particulars of claim. In considering any application to amend a court is concerned to ensure that the case is dealt with justly and that, so far as practicable, the real issue between the parties can be adjudicated upon. However, the court is also concerned to ensure that a party faced with an amendment is not unfairly prejudiced. If an amendment is sought at any early stage in a claim, it will often be the case that any such prejudice can be adequately compensated in costs. But where an amendment is sought at a very late stage and perhaps, as here, at the trial, the position may be very different. A party faced with an application to make such a late amendment may be placed in great difficulty in giving it adequate consideration, in determining how it affects the case that has been prepared and in assessing whether, for example, it requires a corresponding amendment to its own pleading, further disclosure or fresh evidence or even an adjournment.
46. For all of these reasons a court will not only consider the prejudice that would be caused to the party seeking a late amendment if it were refused but will also have careful regard to the prejudice that would be caused to the party faced with the amendment if it were allowed. Moreover, relevant factors to consider will include the degree of precision with which the proposed amendment is formulated and any explanation as to why it is being made so late. Indeed it has been emphasised on more than one occasion by this court that a party seeking a late amendment bears a heavy onus to justify it: see, for example, Swain-Mason v Mills & Reeve [2011] EWCA Civ 14, [2011] 1 WLR 2735 at [72] per Lloyd LJ (with whom Elias and Patten LJJ agreed).
47. In my judgment the amendment with which we are concerned was sought at a very late stage and in a highly unsatisfactory way. As I have explained, a change in direction was first signalled in Mr Weiss' skeleton argument served shortly before the commencement of the trial but this was not accompanied, as it should have been, by an application for permission to amend or a proposed amended pleading, or even by an indication that such an application would be made at the trial. Accordingly Mr Siddique was entitled to assume the case he faced was the case which had been formulated in the original particulars of claim, that is to say that he had wrongfully retained the £22,050 and had thereby acted in breach of trust or was liable for monies had and received. Moreover, in so far as the skeleton argument did signal a possible change in direction, it was only by way of the assertion of an alternative claim that Mr Siddique had acted negligently and in breach of the duty of care he owed to Mr Ali by entrusting the cheques to a third party, that is to say to any third party. It is notable that either case would have failed on the findings the Recorder ultimately made.
48. It was only on the first day of the trial and at the prompting of the Recorder that an application was made on behalf of Mr Ali to amend his particulars of claim. But the Recorder did not seek an explanation as to why the application was being made so late and none was offered. Moreover, and without sight of the proposed amended pleading, the Recorder expressed the view that he was minded to allow it for, as he put it, he would be "very sympathetic" to it. Faced with this preliminary observation from the Recorder and in light of the contents of the skeleton argument he had seen, Mr Din did not at that time raise any further objection, subject to seeing the amendment and it not impacting on the evidence. But, as I have said, he clearly reserved his position. Nevertheless, the Recorder then ruled on the issue in the following terms:

"On that basis I give permission to amend. The broad thrust of the amendment will be that the claimant will advance, or is entitled to advance, a case on the basis of a broader approach to falling within the criteria set out in Hedley Byrne v Heller & Partners in order to show that a duty of care was owed by the defendant to the claimant in accordance with the claimant's factual case."

49. In my judgment the Recorder erred in principle in taking this course. He ought to have considered whether the application should be refused in light of the failure by Mr Weiss to provide any explanation as to why it was being made so late and without there being a properly formulated draft. Had he done so and decided not to dismiss it, he ought to have deferred issuing any ruling upon it until the proposed amended pleading was before the court and until Mr Din and those instructing him had had an opportunity properly to consider it with Mr Siddique. Moreover, I believe the Recorder's failures in this regard had an important impact on the course of the case, for reasons I will now explain.
50. Mr Din then made his application to call Mr Khan as a witness. As I have mentioned, this application failed for, in marked contrast to the approach the Recorder had taken to Mr Ali and his application to amend, the Recorder considered that it had been made too late. He also expressed the view that any evidence that Mr Khan might have given would have been inconsistent with Mr Siddique's case that he had handed the cheques back to Mr Ali and that thereafter Mr Ali had dealt with Mr Khan directly.
51. The Recorder's view is perhaps understandable in the context of the case as originally pleaded and even in the context of a possible amended case as foreshadowed by the skeleton argument prepared by Mr Weiss, but I believe that the evidence of Mr Khan would have been of direct relevance to the case as eventually formulated in the amended pleading and presented to the court on the second day of the trial. I have set out the material parts of that pleading earlier in this judgment. It was, in my view, still inadequate in the way it framed the alleged duty of care, and this is a matter to which I must return. But for present purposes it is important to note that it marked a fundamental change in direction for it now included an assertion that Mr Siddique had acted negligently in failing to ascertain the trustworthiness of the persons to whom the cheques were passed and to whom they were made payable, that is to say, Mr Khan, Sonargaon Finance and Shipa Begum. I recognise that it was Mr Siddique's case that Mr Ali had dealt with Mr Khan directly but I do not think that this precluded Mr Siddique from calling Mr Khan as a witness to provide a full account of his background to enable the court to make an assessment of his general reliability and integrity; to explain his intentions in taking possession of the cheques; to explain how and in what way he had been deceived by Mr Chowdhury; and to give evidence as to how the cheques came to be made payable to Sonargaon Finance and Shipa Begum, and as to the integrity of those payees. In short, Mr Khan's evidence would have elaborated and expanded upon the evidence he gave at the criminal trial, and it would have been highly relevant to Mr Ali's reformulated claim that Mr Siddique failed to exercise reasonable care in entrusting the cheques to Mr Khan and that this failure caused Mr Ali to suffer loss.
52. As it was, however, the amended pleading was not before the court when Mr Din made his application for permission to call Mr Khan as a witness so none of these matters could be explored. When the amended pleading was eventually produced on the second day, the evidence was well under way and we were told by Mr Din and I accept that he was not able to give detailed consideration to it with those instructing him. Nevertheless, Mr Din did renew his objection to the amendment in his closing submissions. He maintained that the application to amend was made too late and that Mr Siddique had been deprived of the opportunity to adduce relevant evidence. Moreover, Mr Din continued, the amendment was incoherent.
53. The Recorder was not impressed. As I have explained, he held that he had decided on the first day of the trial that the amendment should be allowed in principle and that this ruling could not be re-opened. Further, the pleading was, in his view, properly formulated and so it should be allowed. He went on to explain that, had he not given permission in principle on the first day of the trial, he would have done so now, and that was so for the following reasons, namely that Mr Din was able to take the amendment into account in cross examining Mr Ali and his witnesses; Mr Siddique could hardly have been deprived of the opportunity to adduce further evidence when it was his case that he had handed the cheques back to Mr Ali; and the question of adjourning the trial did not arise because an adjournment was never sought.
54. I have come to the conclusion that this approach was manifestly unjust to Mr Siddique and that in adopting it the Recorder has again erred in principle. It was not correct to say that Mr Din was able to take the amendment into account in cross examining Mr Ali and his witnesses for the amendment in the form allowed was not provided until the second day and at a time when Mr Din was fully occupied and not able to give it his detailed consideration. Nor was it correct to say that Mr Siddique was not deprived of the opportunity to adduce relevant evidence. Mr Khan could have given evidence which was highly relevant to the case as developed in the amended pleading yet the Recorder refused to allow Mr Siddique to call him as a witness. I accept that Mr Din did not ask for an adjournment on the first day of the trial but it must be remembered that at this time the only information available as to the form the amendment would take was that provided in the skeleton argument filed by Mr Weiss, and a claim formulated in that way would have failed on the Recorder's findings. I accept too that Mr Din did not seek an adjournment on the second day; nor did he renew his application for permission to call Mr Khan as a witness. But by this time the course of the trial had been set; Mr Din was fully engaged in cross examining Mr Ali and his witnesses; and Mr Siddique and Mr Din on his behalf were faced with the decisions of the Recorder on the first day both allowing the amendment and refusing Mr Siddique permission to call Mr Khan.
55. In my judgment the case set off on the wrong track when the Recorder gave Mr Ali permission in principle to amend on the first day without having seen (and Mr Din having had a chance properly to consider) a draft of the proposed amended pleading and without there being any explanation as to why the application for permission was being made so late. Having taken that course, the Recorder ought to have reconsidered the position at the conclusion of the evidence in light of all the matters to which I have referred, as Mr Din urged him to do. I believe that a reconsideration which had proper regard to the prejudice caused to Mr Siddique arising from the amendment and the way it was presented would have led the Recorder to conclude that the amendment should be refused. I would therefore allow the appeal on the first ground advanced by Mr Din.
56. I turn then to the substance of the claim in negligence and the Recorder's findings in relation to it and begin with the duty of care. As has been seen, this was formulated in the amended pleading in a very general way, for it was alleged simply that Mr Siddique owed to Mr Ali a duty of care in respect of the 35 lakh transaction. This was, so it seems to me, far too lacking in specificity having regard to the fact that, as the Recorder found, Mr Ali understood and accepted that Mr Siddique would be employing unconventional means to arrange the transfer and that those means would necessarily involve the services of one or more third parties. Nevertheless, I am prepared to accept for the purposes of this appeal that, by taking possession of the cheques for the purpose of arranging the transfer, Mr Siddique did assume a responsibility to Mr Ali to take reasonable care in carrying out those parts of the transaction for which he would be personally responsible, for he knew that Mr Ali would be relying upon him. So also I am prepared to assume that Mr Siddique owed to Mr Ali a duty to take reasonable care to ensure that any person to whom he transferred the cheques or made them payable was reliable and could be trusted to deal with the cheques and Mr Ali's monies for the purpose of effecting the transfer of those monies to Mr Ali's account in Bangladesh.
57. That brings me to the question of breach. The heart of the Recorder's reasoning on this issue is set out in this paragraph:

"127. The legal burden falls upon Mr Ali to establish that Mr Siddique breached his duty of care, however in circumstances where, as I have found, Mr Ali did not know, much less approve the method by which Mr Siddique would transfer the funds, an evidential burden falls upon Mr Siddique to set out what steps he did take to comply with his duty to exercise reasonable skill and care in ensuring that Mr Ali's funds were transferred to Mr Ali's account in Bangladesh. There is no evidence that Mr Siddique took any steps at all to try to ensure that Mr Ali's funds would be successfully transferred and I find that in those circumstances that Mr Siddique breached his duty of care to Mr Ali."

58. I recognise that Mr Siddique could not himself give evidence as the reasonableness of his conduct in passing the cheques on to Mr Khan when it was his case that he had not dealt with Mr Khan at all save to the limited extent I have explained. Nevertheless, the Recorder's analysis seems to me to be deficient in a number of respects. First, it takes no account of his finding that Mr Ali well knew that Mr Siddique would be employing unconventional means to arrange the transfer and that these means would necessarily involve the services of one or more third parties. Second, it was evident by the time of the trial that, one way or another, the cheques had been passed to Mr Khan. Third, there was never any suggestion that Mr Khan or the payees of the cheques, Sonargaon Finance and Shipa Begum were dishonest or that Mr Khan was careless. To the contrary, the evidence before the court was to the effect that Mr Khan was himself the victim of the fraud of Mr Chowdhury.
59. In my judgment the Recorder should have asked himself whether, in light of all of these matters, it could be said that Mr Ali had established a prima facie case that Mr Siddique had been negligent in handing the cheques over to Mr Khan, for it was only if he could answer that question in the affirmative that he could go on to say, as he did, that the evidential burden had switched to Mr Siddique and further, that this was a burden he could not discharge. However, had he asked himself this question, I believe his answer should have been in the negative. True it was that Mr Siddique lied about his involvement, but there was no evidence to suggest that he was careless in passing the cheques on to Mr Khan or that Mr Khan was not a person who could be relied upon to deal with the cheques and the monies they represented for the purpose of transferring those monies to Mr Ali's account in Bangladesh.
60. I believe that the reasoning of the Recorder in relation to the issue of causation is also flawed. He rejected Mr Din's argument that Mr Chowdhury's fraud broke the causal connection between any wrongful conduct of Mr Siddique and the loss that Mr Ali suffered because this would, he thought, require him to engage in extensive and inappropriate speculation. I disagree. On the evidence before the court, limited though it was as a result of Mr Siddique's lack of candour and the Recorder's refusal to give Mr Siddique permission to call Mr Khan as a witness, it seems to me that the causal connection was indeed broken. It is a fair inference from that evidence that, but for the fraud of Mr Chowdhury, Mr Ali's money would have been transferred to his account in Bangladesh. Moreover, there was no suggestion that Mr Siddique was responsible for the decision by Mr Khan to use Mr Chowdhury as a middleman. Put another way, I do not accept that it was ever shown that Mr Siddique owed to Mr Ali any responsibility for the conduct of Mr Chowdhury.
61. In light of these findings it is not necessary to address the other arguments advanced by Mr Din and I prefer not to do so.
62. For all of the reasons I have given, I would allow the appeal.

Lord Justice Lewison:

63. I agree.

Lord Justice Moore-Bick:

64. I also agree.