England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT
SITTING AT CENTRAL LONDON
(HIS HONOUR JUDGE GERALD)

		Royal Courts of Justice Strand London, WC2A 2LL
		16 February 2016

1. LADY JUSTICE ARDEN: This is an appeal against the order dated 26 November 2013 of His Honour Judge Gerald sitting in the Central London County Court.
2. His order declares, among other things, that the Respondent, whom I will call Mr Heer, holds 50 per cent only of the beneficial interest in a property known as 1 Eaton Close, Leamington Spa. I will call that "the property". The property is registered in the name of Mr Singha, the former husband of the Respondent, Mrs Singha.
3. I will deal first with the relationship between Mr and Mrs Singha with regard to the property. Mr Singha bought the property on 7 December 2001. The property became the matrimonial home of Mr and Mrs Singha. Thereafter, the couple fell out and Mrs Singha petitioned for divorce. On 28 July 2003 Mr Singha executed a form E describing his financial position. Form E described him as sole beneficial owner of the property, subject to a mortgage to a third party lender.
4. In addition, on 27 July 2003 in the course of the divorce proceedings an injunction against disposing of the property was replaced by an undertaking given by Mr Singha not to dispose of or deal with the legal or beneficial interest in ten properties, which included the property. Mr Singha also gave an undertaking to the court not to use violence against Mrs Singha. This undertaking contained a recital that he had not disposed of any interest in, among other properties, the property. The parties were divorced in June 2010.
5. On 28 May 2010 in ancillary relief proceedings, a property adjustment order was made. This ordered Mr Singha to transfer the property to Mrs Singha entirely so that she could sell it and take £125,000 out of the proceeds with the remainder to be returned to Mr Singha.
6. I now turn to the relationship between Mr Heer and Mr Singha with regard to the property. Mr Heer and Mr Singha were old childhood friends. In around 1998 Mr Heer and Mr Singha formed a partnership for acquiring properties together.
7. On 12 November 2001 it is Mr Heer's case that he and Mr Singha agreed that Mr Heer would provide £45,000 to Mr Singha to aid the purchase of the property to be repaid by Mr Singha within five years. The legal ownership of the property was to be in Mr Singha's name only, but the sole beneficial owner would be Mr Heer until the £45,000 was repaid in full. There are two documents that purport to record this agreement which I will call the November 2001 agreements.
8. Mr Singha did not admit these transactions. Her belief was that the money came from her husband. When I say that was Mrs Singha's case, that was Mrs Singha's case before the judge but it forms no part of her case on this appeal for reasons which will become clear.
9. There was a falling out between Mr Singha and Mr Heer and Mr Heer registered a caution against the property in September 2003. This was supported by a statement from his solicitor to the effect that the beneficial interest in the properties was to be held in equal shares between Mr Singha and Mr Heer. This reflected the arrangement as to partnership.
10. On 13 March 2007 Mr Singha and Mr Heer signed an agreement setting out that Mr Singha owed Mr Heer £245,000. This was result of dealings in relation to a number of properties, which I will assume were the partnership properties. The judge found that this agreement effectively dissolved the partnership.
11. On 16 April 2007 Mr Singha granted Mr Heer a charge over the property to secure a sum of just over £5,000, which the judge found it appeared that Mr Heer had paid to American Express to pay a credit card bill of Mr Singha.
12. On 5 August 2010 and again on 4 October 2010 due to defective service, on the basis of the outstanding debt agreement Mr Heer obtained judgment in default in the sum of £300,000 against Mr Singha. On 10 August 2010 he applied for, and in due course obtained, interim and final charging orders over the property. He claimed these charging orders in his capacity as a judgment debtor. He did not mention that he in fact was already the beneficial owner of the property.
13. On 19 November 2011 Mr Heer's solicitor for the first time asserted a beneficial interest of 100 per cent in the property. This subsequently led to the production of the November 2001 agreements.
14. Mrs Singha commenced these proceedings to obtain a declaration from the court as to Mr Singha's beneficial interest, if any, and to obtain orders removing his caution and charge. That would enable her to sell the property as intended by the property adjustment order.
15. In his defence, Mr Heer contended that Mr Singha had declared himself a trustee of the property for him, Mr Heer. His case at trial was principally that the trust was declared by the two documents of 12 November 2011, but he also relied on three letters written by Mr Singha. Those three letters are especially important on this appeal and I will now set out their terms. They were each written by Mr Singha to Mr Heer.
16. The first letter was dated 4 April 2005. Mr Singha wrote:

"As you have been formally writing to me, I thought I would return the favour to you and take this opportunity to make my position very clear to you. I have been under immense pressure in the last years, as you know. My relations with my wife and in laws have been strained. Also, my own father and my brother [Panni]. My apologies for the handwritten note as I do not have access to a computer. You keep asking me to make good my agreement with you in respect of 1 Eaton Close. The issue I have is that this is where my family live. The other properties part of the portfolio can be dealt with separately. I appreciate and want to make this very clear that I am holding all the properties on trust for you until such time as the matters have been resolved between us. I cannot say any more to you and trust you will give me time to sort my financial affairs at home. Can you not, therefore, e-mail or write or text me any more as I find them disstressful."

The second letter was some three years later on 8 August 2008:

"I am going to be very frank with you. I'm getting very tired of your contact. I do not open your correspondence or texts, so please do not contact me. I'm under a great deal of pressure, not that this means anything to you. I know and you know of your lawyer in Leicester, John Fidler, that I have co-operated in sorting out the portfolio split. Very, very grateful for you to leave Eaton Close to be dealt with outside this arrangement. Yes, I do know I'm still holding it on trust for you and all I can say is that if I am unable to pay my dues in relation to that, I will honour my agreement to you for the property to be transferred formally to you. I humbly ask you for more time so that I can arrange matters accordingly. I have tried to help, as you know, since 2006. I have paid council tax on all the portfolios as part of my indebtedness at great personal sacrifice, even when I was not working. The bailiffs visiting was very distressful to me and my family. I'm not trying to escape from my responsibility to you, as it is still my intention to honour this. If I had money to sort this out, I would so. Please can we work this out between us? I don't want my father or my own family to know of our dealings as this would destroy me."

The third letter was dated 14 January 2009:

"Since I know you are a fan of formal letters, I thought I would write to you and let you know where my life is. I am still dealing with a huge amount of personal debt and I'm struggling to keep it together. That said, I will not seek an IVA or bankruptcy and will still continue to pay the council tax on the portfolio as a measure of my obligations and desire to show you that I do want to deal with you in the spirit of co-operation. Given my desperate situation and several attempts to bankrupt me, I am mindful that this should not affect you, especially in your interest in Eaton Close. I have tried to make an objective assessment of what my liability is to you in this regard. At a high level, my understanding is approximately £120,000 in respect of Eaton Close, £260,000 for balance liabilities. If I cannot deal with the £120,000 through my future financial position, you are welcome to claim your legal interest and I am willing to transfer Eaton Close into your name, reflecting our agreement and trust on which I have been holding it given that I have also been taking all the rental income for our portfolios. I want to thank you for your patience in the way you have dealt with me and for not bringing this to the attention of my parents. Thank you again."

17. Mr Heer also argued at trial in the alternative that the property was an asset of the partnership between Mr Singha and Mr Heer, but this case was rejected by the judge and is not pursued on this appeal.
18. Mrs Singha's case at trial was that she always believed the property to be 100 per cent beneficially owned by her ex-husband. However, she did not challenge that Mr Heer was entitled to 50 per cent because she was confident that the equity in the property and in another property called Milverton Lodge, to the proceeds of sale of which she is entitled to part, will be sufficient to pay her the sum of £125,000 that she is entitled to under the property adjustment order.
19. I will now summarise the judgment. The judge found that both Mr Singha and Mr Heer were articulate men and that Mr Singha had even some legal knowledge, but that he was not qualified as a lawyer.
20. The relevant clause in the November 2001 agreements was not an out and out creation of a trust, but simply the promise that the property belonged to Mr Heer until the sum of £45,000 had been paid to him. This was not, therefore, enough to give Mr Heer an outright beneficial interest in any event, but for some reason the point that the November 2001 agreements constituted only a charge and not a trust was not taken before the judge and the judge wisely left that point open.
21. The November 2001 agreements were not, in the judgment of the judge, contemporaneous but had recently been created and executed and were designed to deceive the court. The judge came to this severe conclusion principally on the basis of the lack of credibility of Mr Heer's witnesses and their evidence, which the judge held was dishonest and designed to deceive, and on the basis of the fact that the agreement had not been referred to in any of the documents over a period of 10 years.
22. The judge considered that various stated matters were plainly inconsistent with Mr Heer having 100 per cent beneficial interest. He referred there to the statutory declaration of 25 September 2003 in support of the caution, the charge of 16 April 2007 and Mr Singha's form E dated 16 April 2009 in the divorce proceedings and Mr Heer's interim final charging orders of October 2010.
23. The judge's judgment was careful and comprehensive. I have not set out all the background to which the judge refers. In particular, the judge refers to other correspondence.
24. In addition to identifying various inconsistencies with Mr Heer's claims over time as I have explained, the judge described how the relationship between Mr Heer and Mr Singha in connection with the property had evolved. Originally, the relationship was one of partnership, but after the partnership was dissolved by agreement it was apparently accepted that Mr Heer had no further interest in the property and indeed needed a fresh charge to secure his loan of £5,000 odd in April 2007.
25. The judge found that Mr Heer only provided his solicitor with a copy of the 2001 agreements at a late stage since he considered it was inconceivable that his solicitors would have registered the caution if they had known of the trust, certainly not without mentioning it and explaining it.
26. The judge next rejected Mr Heer's case that the three letters that I have read out either individually or collectively amounted to an express declaration of trust by Mr Singha of his entire interest in the property in favour of Mr Heer. The most, in his judgment, that they did was to indicate an informal agreement between the two men that monies provided by Mr Heer to assist Mr Singha's purchase of the property would be returned within a period of time, failing which Mr Singha would then transfer the title to him.
27. The judge held that the first letter appeared to relate to properties other than the property and in any event, any trust would have been spent when matters between the two were fully resolved on 13 March 2007.
28. Further, merely by using the word trust, even though Mr Singha had a law degree, did not mean that Mr Singha intended to use the word trust in a legal sense. In the context of the relationship between Mr Heer and Mr Singha, all the word trust meant in the first letter was that the properties would not be dealt with adversely to the interests of Mr Heer pending the resolution of their dispute as partners. Further, Mr Heer did not regard this as entitling him to a beneficial interest as he did not seek to protect it by caution or otherwise.
29. Turning to the second letter, the judge held that the wording of the second letter was insufficient to be a formal declaration of trust in the legal sense and that this was not how Mr Heer had regarded it as he did not seek to protect his beneficial interest by caution or otherwise.
30. As to the third letter, the judge held that at most it amounted to a memorandum of a prior agreement to hold the property on trust and there was no pleaded case or evidence of that prior agreement. It plainly could not refer to the November 2001 agreements because the judge had held that they had been forged.
31. I now turn to the parties' submissions on this appeal. Mr Thomas Roe QC, who appears for the Appellant, essentially contends that the judge should have held that there was a trust on the basis of the three letters. It is in respect of the three letters that he has been given permission to appeal.
32. Mr Roe made two general points. Firstly, he properly accepted that the burden of persuasion or the burden of proof fell on his client.
33. Secondly, he did not accept that the relationship was one of secured lender and borrower. He contended that it was a bare trust of the entire beneficial interest in the property. In other words, that the effect of the declarations of trust for which he contended in the letters was to give Mr Heer the entire beneficial interest in the property, which has recently been sold for some £400,000 subject to mortgage, and in addition the right to repayment of the £245,000 plus any judgment-led interest.
34. As to the first letter, Mr Roe submits that the judge erred in finding that the letter did not refer to the property at all. The letter stated that all properties were held on trust. The reason that the rest of the portfolio could be dealt with separately was that they were not Mr Singha's home. The distinction between how the properties were to be dealt with and the ownership of the properties was not, on Mr Roe's submission, justified.
35. The judge erred in holding that the trust was spent in 2007. Moreover, the matters were not finally resolved by the mere acknowledgement of Mr Singha's indebtedness. As the letters make clear, Mr Singha did not go on to pay the debt and therefore, on Mr Roe's submission, matters were not fully resolved.
36. Moreover, submits Mr Roe, the judge erred in his interpretation of the word trust. Where a person, especially a person legally trained, uses the word trust in the context of holding properties on trust, the overwhelmingly strong inference ought to be that it was intended to be used in the legal sense.
37. Furthermore, submits Mr Roe, the judge erred in construing the first letter in terms of Mr Heer's actions and omissions where he stated that Mr Heer did not subsequently seek to protect his interest. It is impermissible to ascertain the meaning of a written instrument by investigating what the parties did after it was executed. Mr Roe relies in support of this proposition on the well-known case of James Miller and Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583 at 603.
38. As regards the second letter, Mr Roe submits that the judge erred in finding that the language of the trust did not support a trust. He submits that the assertion by Mr Singha that the transfer of the property would be a formality is only consistent with an intention that it should be held on trust in the legal sense. Again, on his submission the judge erred in relying on Mr Heer's subsequent actions or lack of actions to interpret the letter.
39. As regards the third letter, the judge's dismissal was, on Mr Roe's submission, excessively formalistic. The letter did not refer to a prior agreement and there was no basis for holding that it could only be a memorandum of a prior agreement for again the letter expressly declared that Mr Singha was holding the property in trust and any doubt over what he meant by this was dispelled by his expression of willingness to transfer the property.
40. As regards all the letters, on Mr Roe's submission the judge lost sight of the principle that no special or technical expressions are necessary for the creation of an express trust: see Paul v Constance [1977] 1 WLR 527.
41. Moreover, even if the correct interpretation of the letter was that it was a memorandum of an earlier declaration of trust, it follows, submits Mr Roe, that this was a declaration of trust.
42. We did not call on Ms Katherine Hallett who appears for the Respondent. She filed a concise and well-directed skeleton in which she made, among others, the following submissions.
43. She seeks to uphold the reasons given by the judge. Specifically, she first submits that the judge was entitled to reach the conclusion that he did having heard the witnesses' oral evidence, from Mr Singha and Mr Heer in particular. Moreover, the judge was entitled to find that the context of the letters did not suggest that the legal meaning of the term trust was intended in either the first or second letters.
44. As to the third letter, the conclusion that the letter could only be a memorandum of an earlier declaration of trust was a reasonable one in the light of dishonesty and forgery by Mr Singha and Mr Heer. The wording suggests a pre-existing trust and on the judge's unchallenged findings there was no such pre-existing trust.
45. Second, Ms Hallett submits that when properly interpreted in their context, the three letters do not constitute declarations of trust at all. The relevant matrix of fact, on her submission, includes the unchallenged finding that Mr Heer and Mr Singha had forged purportedly earlier trust documents and that their dishonesty extended to a conspiracy between three witnesses under oath to the court giving detailed falsified evidence as to the creation of the November 2001 agreements. In addition, Mr Heer and Mr Singha had conducted themselves inconsistently with Mr Heer being the 100 per cent beneficial owner of the property.
46. Third, Ms Hallett submits that as a matter of construction of the language of the letters, the letters do not constitute declarations of trust. They refer back to pre-existing trusts.
47. Finally, Ms Hallett contends that there was no pleaded allegation that the three letters themselves constituted express declarations of trust. I need not explore this point which was not considered by the judge in his principal judgment.
48. I now turn to my reasons. I have reached the conclusion that the appeal must fail and that the judge was correct. I do so for the reasons given in the remainder of this judgment.
49. As to the test to be applied to the judge's conclusions, Ms Hallett argues that the judge was entitled to reach the conclusions to which he came, and that that is the end of the matter. I do not accept that submission. In my judgment, this case requires the court to consider whether the judge was wrong. But in relation to any matter on which the judge was in a better position having heard the witnesses than this court to make a finding, we should give weight to his assessment. That does not mean we are bound by his judgment, but that we must give it weight in those circumstances. Far from being bound, we should set aside his judgment if we find that it is clearly wrong. These principles are well-established: see Central Bank of Ecuador V Conticorp [2015] UKPC 11 at [8], first two sentences.
50. This passage does not, however, say that the judgment of the court below is to be considered by this court as if this court had heard the oral evidence itself. I therefore proceed on the basis that I have already stated in paragraph 49 of this judgment.
51. In short, I do not accept that it is enough for me solely to ask as, Ms Hallett invites us to do, whether it was reasonable for the judge to reach the conclusion that he did. That certainly would not do in relation to any question of law and would not, in my judgment, be enough in relation to any question which did not depend on his assessment of the oral testimony as a whole.
52. Mr Roe drew our attention to the remainder of paragraph 8 of the judgment of the Central Bank of Ecuador case where Lord Mance examines an important passage from the judgment of Robert Goff LJ, as he then was, in The Ocean Frost to the effect that in a case where fraud is alleged judges should test any conclusions based on oral evidence by reference to the contemporary documents, the parties' motives and the inherent probabilities of the case. In this appeal, it seems to me inherently improbable that Mr Singha would have given Mr Heer the entire beneficial interest in the property. Even the forged instruments did not purport to do that. I bear those probabilities in mind in this judgment. I am entitled to do so for the reasons explained by Robert Goff LJ, which also applies in a case where fraud is not asserted. Fraud is not asserted in relation to the letters.
53. I now turn to the letters themselves. It is part of the background to the whole of this case that the judge found that the November 2001 agreements had been forged, but the difficulty is that the judge did not make any finding as to when that forgery occurred. It seems to me unlikely that the agreements came into existence until shortly before Mr Heer told his solicitors about them, which on the judge's findings must have been in about November 2011.
54. They accordingly did not exist when the letters were written and therefore they are not part of the factual matrix against which we are entitled to interpret the letters: see again James Miller v Whitworth Street Estates. It is therefore unnecessary for me to consider whether this is a case in which I should give myself a Lucas direction (see R v Lucas [1981] QB 720), as Mr Roe invited the court to do.
55. As to the first letter, the knock out point, in my judgment, is that the trust was subject to a condition subsequent that the matters between the parties were resolved. The judge found that this occurred when the deed of confirmation was executed in 2007. This liquidated Mr Singha's liabilities to Mr Heer and declared that he was indebted to him in the sum of £245,000.
56. It is noteworthy and indeed remarkable that there was no provision in the 2007 agreement that Mr Heer was also entitled to the whole of the beneficial interest in the property. If he had been so entitled, it is improbable that he would have to have taken the 2007 charge to secure the sum of £5,000 odd.
57. The judge had to evaluate all that evidence to see whether or not the condition subsequent had been fulfilled. That evidence was not relevant to the interpretation but to the question of whether the condition subsequent had in fact been fulfilled after the letter was written.
58. Mr Roe submits on this appeal that the affairs of the parties were not in fact resolved as the letter required until not only had the parties agreed exit figures from the partnership, but also that any amounts owing to Mr Heer had in fact been paid. But the judge heard the witnesses and he heard them explain the sequence of transactions.
59. The 2007 charge moved the burden of adducing evidence to Mr Heer to rebut the suggestion that this was inconsistent with the first letter. He was unable to do that. Indeed, Mr Roe on this appeal expressly accepted the inconsistency between the 2007 charge and the first letter. Therefore, the judge was, in my judgment, entitled to reach the conclusion that if there was an arrangement constituted by the first letter, it had come to an end by 2007 and therefore is no longer in point.
60. The second and third letters expressly used the word trust which the judge did not interpret in the legal sense. This is an important point. Mr Roe contends that the judge was wrong, especially given Mr Singha's legal education. On the other hand, when it was pointed out to Mr Roe that both documents refer to some trust which had already been established, Mr Roe contended that the documents were being read too strictly and that they should be interpreted liberally and they could equally mean a trust that was created by the letters.
61. Mr Roe correctly submits that the word "trust" does not have to be used for the court to find a trust: see for example the case which he cited, Paul v Constance. But the contrary is not true that if the parties use the word "trust" that it has to be a trust. The court will look at the true effect of the arrangement or document, in this case the letters.
62. So far as the word "trust" in the second and third letters is concerned, it is likely to be correct to assume that this word had its legal meaning in a document that was actually drawn up by lawyers acting in their professional capacity, but the documents in question are short letters written informally by a person acting under pressure with no professional practising qualification, even if he did have legal training.
63. Therefore, I do not see any compelling reason why they should be read in a technical sense as carrying all the connotations of a trust as Mr Roe contends. It is important to look at the letters as a whole.
64. The second letter goes on, after referring to the trust, to explicate the commitment resulting from the so-called trust. To summarise the point I am just about to make, as Baker J interposed in the argument, the important word here is the word "if," which Mr Roe did not emphasise in his submission. What there was a commitment to transfer the property to Mr Heer if Mr Singha was unable to pay what was due. That is not a description of a trust, but of a charge. It is quite inconsistent with the deal as put forward by Mr Roe, which was that Mr Heer should have both the property and the repayment of the debt of £245,000.
65. Moreover, as Macur LJ pointed out in the exchanges with counsel, the third letter also tells us that Mr Singha considered that Mr Heer's rights in respect of the property were as follows. I now take the relevant paragraph of the third letter. It starts:

"Given my desperate situation and several attempts to bankrupt me, I am mindful that this should not affect you, especially in your interest in Eaton Close. I have tried to make an objective assessment of what my liability is to you in this regard. At a high level, my understanding is approximately £120,000 in respect of Eaton Close."

66. I stop there. I propose to do what I have said needs to be done, namely look at the letters as a whole.
67. As my Lady inferred in her remark in the exchanges with counsel, it is highly significant that there is no reference here to the existence of an absolute beneficial interest in Eaton Close in any event. This confirms the judge's conclusion and is totally inconsistent with Mr Roe's proposition that the third letter created a trust. It is a question again of the inherent probabilities.
68. Furthermore, even though the letters are informal documents, there can be no mistaking that both the second and the third letters are referring to some previously made arrangement. The second letter says, "I am still holding it on trust for you." Mr Roe submits that the court should not put too much weight on the tenses, but the word "still" cannot be written out of the letter and deprived of all meaning.
69. Neither the second nor the third letter actually declares a trust. If there was a trust, it was somewhere else. We are not asked to infer that it must have been a trust created at some other point in time. If it had been, it would have to have been a trust in writing setting out all the terms. One possibility is that the parties executed the November 2001 agreements because they became aware of the legal requirement for writing.
70. As it is, Mr Heer denies that the second and third letters refer to some pre-existing agreement. If he had contended that there was such a trust, the issue would have been whether the document evidenced all the terms of the trust: see Smith v Matthews [1861] 3 De GF & J 138 at [150]; 45 ER 831 at 835 per Lord Alvanley whose judgment in Forster v Hale (3 Ves 707) is cited in that case.
71. The third letter says in terms that the transfer would "reflect our agreement and trust". This is clearly a reference to some pre-existing transaction and it does not itself create a trust as Mr Roe contends. No such pre-existing trust has been asserted or proved.
72. I intend no discourtesy to counsel, still less to the judge, but I do not find it necessary to go through all the points on which those persons have relied. In my judgment, for the reasons given above, the judge was correct to dismiss the contention that any of the letters or indeed all of them taken together constituted a declaration of trust.
73. I would, therefore, dismiss the appeal.
74. LADY JUSTICE MACUR: I agree.
75. MR JUSTICE BAKER: I also agree.