England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
CHANCERY DIVISION
(ASPLIN J)

		Royal Courts of Justice Strand London, WC2A 2LL
		28 October 2015

1. LORD JUSTICE LONGMORE: This is a series of interlocking applications, the main two of which are an application to adduce further evidence connected since the trial, and to amend the grounds of appeal. It is, in form, a renewed application for permission to appeal, but as Mr Auld QC, for the applicants, has very sensibly recognised, if those two applications fail it is indeed likely that this court would confirm the refusal for permission to appeal, which was refused by Briggs LJ on the papers.
2. The case is a moderately complex one, in the sense it involves a series of allegations about property acquisitions. The first applicant is Miss Clutterbuck, and she and the second applicant, Mr Paton, are engaged in property acquisition and development business in the West London area. Since around 1994, they have lived as husband and wife.
3. The defendant, Miss Al Almoudi, also owns property in the West London area. In or around October or November 2002, Mr Paton was introduced to a Mr Nichol, who was engaged in property investment and development in the West London area. He, in turn, introduced Mr Paton to Miss Al Amoudi, and according to Mr Paton, it was as a potential joint venturer.
4. The applicants say that at this time a number of Representations were made with regards to the identity of Miss Al Amoudi, which include, inter alia:

A) That she was a Saudi Arabian Princess.

B) That she was the daughter of a Saudi billionaire.

C) That she was a relation of the Saudi Arabian royal family through marriage.

D) That she had substantial funds for investing in the West London property market.

5. It is claimed that the Representations (in addition to the manner in which Miss Al Amoudi presented herself as a person of immense wealth) induced Mr Paton to enter into a number of joint ventures in relation to property on behalf of himself and Miss Clutterbuck, and it is also said that those Representations caused money to pass hands.
6. It is claimed that representations, amongst others, were knowingly false and it is however also said (as I understand it) that Mr Paton and Miss Al Amoudi entered into a covert relationship without Miss Clutterbuck's knowledge (and that indeed was the finding of the judge) shortly after they had met.
7. Between 2003 and 2009, a number of residential properties were acquired by Mr Paton and Miss Clutterbuck. They claimed that that was pursuant to joint ventures entered into with Miss Al Amoudi and Mr Nichol. They say that pursuant to the joint ventures between January and October 2007, Mr Paton transferred various sums of money, which were held on trust for Miss Clutterbuck, to Miss Al Amoudi, totalling about £2.3 million. They were intended to assist with purchase of the properties, and a further £1 million was claimed to have been transferred by Mr Paton, on behalf of Miss Clutterbuck, for the purpose of refurbishing those properties. They now claim the return of those monies.
8. It is further said that in around April 2008, a further joint venture was entered into between Miss Clutterbuck and Mr Paton on one hand, and Miss Al Amoudi and Mr Nichol in respect of properties in Hans Place, near Knightsbridge.
9. In this respect, it was claimed that Miss Al Amoudi represented that she could secure a £46 million Sharia loan to assist with the purchase of the property and that was also false, and that in return Mr Paton transferred six properties to her. They say that she failed to produce a Sharia loan and has since failed to recognise any interest of theirs in the Hans Place properties.
10. Miss Al Amoudi defended the claim by saying that there were no joint venture agreements to which she was a party. In relation to Hans Place, or otherwise, she said that the money paid her by Mr Paton was a repayment of monies Mr Paton owed to her, she denied that any refurbishment monies were ever paid, and she said that what have been called "the security properties" were transferred to her by way of a set-off, or discharge, of monies which Mr Paton owned her.
11. She also counter-claimed various items of jewellery and sums of money she claimed to have leant Mr Paton for safe-keeping but the judge rejected that counter-claim.
12. The main matters, therefore, which the judge had to decide were whether the claimants have established their case (that money and property was transferred to the defendant pursuant to a joint venture agreement for their future co-operation); and, secondly, whether the defendant had represented that she could get a £46 million Sharia loan to fund Hans Place.
13. The defendant did not have to prove any case about the money and transfers, but obviously the judge would scrutinise her case that they were paid to her as repayments by Mr Paton, against the background of the so-called "covert relationship".
14. After a 19 day trial, Asplin J dismissed the claim. She gave a lengthy and careful judgment determining the credibility of the evidence presented at trial and, as I have said, she dismissed the counter-claim.
15. Firstly, Asplin J held that the claimants had not established their joint venture case.
16. Secondly, that no representation about a Sharia loan has been made.
17. Thirdly, that on any view Mr Paton did owe, at any rate, some money to the defendant.
18. In the course of Asplin J's judgment, she relied partly on a Civil Evidence Act statement of Mr Baroom, said to be the uncle of the defendant, that he had brought to the United Kingdom sums of money for the defendant and that that was the source of her wealth. He also said (and this was supported by documentary evidence) that he had transferred sums by bank transfer.
19. Mr Baroom did not attend the trial to give oral evidence, and so naturally the judge said that she had to regard his evidence in the light of it not being cross-examined.
20. The judge dismissed the claim and the counter-claim and an application was made for permission to appeal. That was dismissed by Briggs LJ. As long ago as 5 June 2014, he said this:

"1. The judge's decision that the claimant's case failed followed 19 days of evidence, during which the judge heard and assessed the credibility of numerous witnesses. Her rejection of the claimant's evidential case was based not merely on the defendant's evidence of Mr Baroom's statement, but upon the evidence contrary to the claimant's case of numerous witnesses giving evidence corroborative of the defendant's case; many of whom she found independent and/or in any event credible from inconsistencies arising from documents and from unsatisfactory aspects of the claimant's evidence under cross-examination.

2. The judge was careful to avoid uncritical reliance on the defendant's own oral evidence, save where corroborated, as it frequently was, by the evidence of independent reliable witnesses.

3. The grounds of appeal focused on two issues:

1) That the the source of money alleged by the defendant to have been lent to the second claimant.

2) A supposed inconsistency between the judge's acceptance of the defendant's defence and rejection of her counter-claim.

3) (As to 1), the defendant's case and evidence that she received substantial sums of cash from abroad was corroborated by witnesses other than just Mr Baroom. The judge was careful to direct herself as to the weight of Mr Baroom's statement in the absence of cross-examination.

She was entitled to accept oral evidence explaining his non-attendance from another witness. The weight, therefore, to be given to Mr Baroom's statement was a matter for her.

4) (As to 2), there is no necessary inconsistency or rationality as alleged in the grounds of appeal. The judge was entitled to accept the thrust of the defendant's evidence. The payments received by her and property transferred to her by the second claimant were on account of debts which he owed her, but to reject, as among other things too vague and imprecise, evidence that a specific additional sum remained owing.

5) There is therefore no real prospect that the claimants would succeed in their appeal or no other compelling reason why their appeal should be heard.

21. Now, more than a year later, this court finds itself hearing the renewed application for permission to appeal, as the applicants are entitled to do by way of oral argument.
22. The main application, and the main reason why it has taken so long for the case to come on is that there is an application to adduce new evidence and amend the grounds of appeal to allege that the judgment was obtained by the defendant by fraud, in that, broadly:

A) She falsely represented that she was a Saudi Arabian related to the royal family who had access to considerable sums of money which she could use for the purpose of joint ventures; whereas she was not in fact a Saudi at all, not related to the royal family, and did not have access to great wealth.

B) That she procured a statement to be read to the court by a person falsely claimed to be her uncle [that is, Mr Baroom] to the effect that she had received substantial sums of money from him for investment.

C) That she had put forward a Mr Ramsden as an independent witness of truth, when she knew that he was not truly independent because his wife was the defendant's sister, or half sister.

23. The new evidence is contained in:

A) An expert report from a company called Alaco, which has found what are said to be five indications of falsity in a birth certificate produced by the defendant on 28 June 2015.

The five respects are that:

i) The certificate number is invalid.

ii) That the civil registration numbers contained in the birth certificate for the defendant and her parents are also invalid.

iii) That the transcription of dates in the certificate is wrong.

iv) There has been an incorrect conversion of the Gregorian calendar's date of birth from the Islamic date of birth.

v) That Jeddah was wrongly called a province.

24. The second category, Category B, of new evidence is a number of witness statements which are said to be new: first of all, from Miss Negat Ali, who did give evidence at the trial, that she knew the defendant, and that the defendant was not from Saudi Arabia.
25. The judge did not accept that evidence, partly on the basis that since Miss Ali might have offered to bribe a witness, she was probably paid being paid for giving her evidence. Now Miss Ali and the applicants want her to give a further explanation of that evidence, and to produce photographs of herself with the defendant, showing that the defendant entered the United Kingdom before she claims to have done and behaving in what I will call, loosely, 'an unIslamic way'.
26. Then there are statements from new witnesses, to much the same effect, that the defendant was not from a strict Islamic background, but comes from Ethiopia and is not related to the royal family at all.
27. They are statements from a Miss Raidi; Mr Beard, who was someone who drove the defendant around London; Miss Seraj- Bachi; a Mr Alsunaidar, from Yemen, the Yemeni Consul; from Mr Liniviker, a private investigator; and from a Miss Saad, who is Miss Ali's sister. Then, lastly, there is also a wish to adduce what is currently hearsay evidence from a Mr Tilton, (he is not prepared apparently to give a statement) that he also knows that the defendant is from Ethiopia and that Mr Ramsden was not the independent witness the judge thought he was.
28. The application for that fresh evidence has been supported by Mr Stephen Auld QC and opposed by Mr Seitler QC. The argument has turned, as it almost invariably does, on the conditions as set out in the rules of the Supreme Court of the CPR based as they are on Ladd v Marshall [1954] 1 WLR 1589; namely, is the new evidence if credible likely to have influenced the result, and secondly, could it have been obtained with due diligence before the trial.
29. As to the question of the influence on the case, it is very important, first, to note the way in which the case was presented to the judge. Mr Auld says that joint ventures were only a part of the case and that part of the case was always deceit as to the defendant's origins, wealth and lifestyle.
30. But it is very difficult to see how any representation as to origins of wealth and lifestyle could really have had much relevance to the true issues in the case: as either the defendant had access to wealth or she did not, and if she did have access to wealth there would be no misrepresentation.
31. Counsel then representing the applicants at the trial before Asplin J made plain that those representations did not of themselves give rise to any specific relief, and they were intended as a backdrop only to the claimant's case that there was a joint venture in relation to these properties; and that as far as the properties in Hans Place were concerned, they were subject to the misrepresentation of the ability to provide a Sharia loan.
32. The judge makes quite clear what her findings are on the joint venture and what her findings are on the defendant's case that Mr Paton owed her money. She also said at an early stage of her judgment (and perhaps not surprisingly) that there was doubt about Miss Al Amoudi. Indeed, she said in paragraph 283:

"The exact identity of Miss Al Amoudi remains unknown."

33. Mr Auld says that is only in relation to a specific part of the allegations but then when the judge comes to consider the question of what the judge called "impostorship" at paragraph 443 of her judgment, she says this:

"In the circumstances, therefore, it is unnecessary to determine whether the alleged representations as to her identity status and source of wealth were false. I have found that there were no transactions entered into in reliance on the alleged representations. In any event, as was conceded in closing, they were intended as a backdrop and no direct relief was sought in relation to them."

34. Not only was the judge saying that no direct relief was sought in respect of the allegations of representation of origin, wealth and lifestyle but she actually made the express finding that the transactions were not entered into reliance on any of those representations.
35. In those circumstances, it seems to me clear that despite the fact that the judge said at a later stage, that if necessary, she would decide the questions of origin, wealth and lifestyle in the defendant's favour, her conclusions on that were not remotely necessary for her decision, since she expressly says the contrary.
36. As to the findings in relation to joint venture, those were, on the facts before the judge, amply justified. She relied on the fact that no record was kept of her contributions made; that there were numerous transfers from the defendant to Mr Paton, which were not spent on the alleged joint venture properties, a matter which Mr Paton accepted had happened; and she also contrasted the detailed documentation in relation to other joint ventures that the claimants were concerned with, compared with the absence of documentation in this case.
37. Moreover, the evidence about the source of the defendant's funds, particularly from Mr Baroom, was marginal to the question of whether the defendant did have actual access to the funds.
38. There was no doubt that she did have transfers of cash via bank transfers from Mr Baroom, for example, the documents at bundle 1 tab 9, pages 85 to 92. She also relied on independent evidence from a local estate agent, Mr Davis, and HSBC that the defendant had access to large sums of cash.
39. Mr Auld makes the point that although there is evidence of bank transfers there is also evidence that, once transferred, the money went out again. But that with respect misses the point that there is no doubt that the defendant did have access to substantial cash sums, and the fact that the evidence from Mr Baroom was given by way of civil evidence at statement is only very marginal to that question.
40. There is also no doubt that Mr Paton accepted that he had indeed received money from the defendant. That was also supported by Mr Davis, and the judge pointed out in passages of her judgment that it was also recognised in documents. I have in mind paragraphs 326 to 341, and 437 to 438 of the judgment. Her conclusion was also supported by her finding of the covert romantic relationship.
41. All this evidence that was relied on by the judge has nothing to do with the defendant's origin or lifestyle. If one were to ask oneself the question whether if, as encouraged by this court in the case of Owens v Noble [2010] EWCA Civ 284, the matter were referred back to the judge to determine on an issue to be tried whether the court was defrauded in the way that is alleged, it is to my mind entirely obvious from the way she has framed her judgment that the judge would say no.
42. That is sufficient to conclude the application on its own but it is also relevant to consider whether the evidence now sought to be adduced was reasonably obtainable for the trial. In that context, it is important to note that it was already part of Miss Clutterbuck's case when she sought to resist an application to set aside judgment in default, in 2010, that the defendant was misrepresenting herself as a Saudi Princess of considerable wealth.
43. It is perhaps curious that since that allegation was made in 2010 it was not amended into the claim, if it was really thought to be important to the claim, until the 17 April 2013, 3 months before the trial was taking place. But over the now 5 year timescale it is impossible to think that the evidence which is now sought to be adduced could not have been sought out and obtained.
44. As far as the birth certificate is concerned, to which the Alaco expert evidence would go, that was only disclosed on 28 June 2013, and that could be said to be perilously close to the trial date. But since the evidence took until the end of the summer term in July, and the case was then adjourned to a date in November for final written submissions, and the judge herself took a little while to consider the evidence before giving the judgment, there was a period of about 6 months since the birth certificate was produced (which would have been ample time for any report of the kind that Alaco have produced) to have been produced.
45. As far as Ms Ali's evidence is concerned, it seems that she had also heard about the case in 2010. She decided to give evidence on behalf of the claimants. Her new statement is no more than an attempt to improve her evidence and explain away matters which the judge thought were unsatisfactory about her evidence.
46. It is said that it is only with the help of her sister that she has managed to find the photographs which Mr Seitler QC was forensically surprised she could not produce in the course of her cross-examination, but again there was plenty of time, before the judge gave judgment, for such photographs to have been produced.
47. The other witnesses are only witnesses to the same effect, in any event. At least two of them, if not more, seem to have come forward as a result of contact with a shadowy figure called "Mr Lucey", who has taken it on himself to reconsider the case after the judgment and become apparently concerned that there may have been a miscarriage of justice.
48. It is not said how Mr Lucey has discovered these witnesses and no persuasive account has been given of Mr Lucey's interest in the matter.
49. As far as Mr Alsunaidar is concerned, the court is informed that he has come forward because some unidentified senior officer in the Yemeni Air Force has persuaded the Yemeni Government to take an interest in the matter, but why that unidentified officer should only have surfaced after the trial is left completely unexplained. As far as the evidence in relation to Mr Baroom is concerned that also could easily have been obtained during the course of the trial.
50. It is fair to say, as Mr Auld pointed out in the course of his excellent submissions, that the requirement that the new evidence could not have been reasonably obtainable at trial is a less stringent requirement where, in some cases, at any rate, the allegation is that there has been fraud which has deceived the court.
51. But the cases on which Mr Auld relies for that proposition, in particular, Skone v Skone & Anr [1971] 1 WLR 812; Linton v Ministry of Defence [1983] 133 NLJ 1103 and Hamilton v Brodie Brittain Racing Ltd [1996] CLY 654 are all cases where the question of fraud arose for the first time actually in the course of the trial.
52. It is particularly striking, perhaps, in the Hamilton v Brodie Brittain Racing Ltd(supra) case where hire invoices were put forward with a heading from a hire company, and nobody had thought, at the time they were produced at the trial, that there was anything wrong with them; it was only later that this was discovered and that the court had genuinely been deceived on a very material matter.
53. As Butler-Sloss LJ said in the course of her judgment about that, the trouble about fraud is that it is something which is concealed and which the court does not know; but in this case, the alleged fraud as to the defendant's origin, wealth and lifestyle was in the arena for 3 whole years and it did not arise as a matter of surprise at the trial. The truth of the matter is that the new evidence is only an attempt by disappointed litigants to improve the evidence that they could have called at trial.
54. For all those reasons, I would not give permission for the new evidence to be adduced, nor would I give permission for the grounds of appeal to be amended.
55. As far as the renewed application for permission is concerned from the refusal of Briggs LJ, I need only say that I find the reasons given by Briggs LJ entirely persuasive and so I would refuse all the applications.
56. MR JUSTICE HENDERSON: I agree.