England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18th July 2012

1. MRS JUSTICE DOBBS: Mrs Tazeem Akhtar, Mr Sabir Hussain, Mr Ghazanfar Hussain, Mr Akhtar Hussain, Miss Shaheen Bi and Mr Khadim Hussain make applications for declarations of beneficial interest in certain properties in this case. The Receiver accepts that Mrs Tazeem Akhtar holds a 50 per cent interest in one property, namely [number] Woodlands Road. It was acknowledged at confiscation proceedings that Sabir Hussain holds a 50 per cent interest in another property, namely [number] Stonehaven Court. The other claims are opposed by the Receiver.

Background

2. Mr Liaquat Ali operated a money transmission service via a travel agency called Watan Travel. He was convicted on 19 June 2003 together with his brother Akhtar Hussain of laundering money said to represent proceeds of drugs trafficking. He was sentenced to 12 years' imprisonment.
3. He successfully appealed his conviction, which was quashed by the Court of Appeal Criminal Division on 7 June 2005. A re trial was ordered. He was convicted on 10th January 2007 and was sentenced to 12 years imprisonment. His appeal to the Court of Appeal Criminal Division was dismissed on 9th July 2008. He was released from prison in early 2010.
4. The indictment covered a period from 1st September 1997 to 13th February 2001. During that period a sum of £127m passed through the hands of the defendant and his co defendant Akhtar Hussain, one of the third parties in this application. A confiscation order was made against Mr Ali on 11th December 2008 in the sum of £756,000. This sum represented the assessed benefit, the defendant's realisable assets being valued as slightly in excess of that sum. The order was to be paid within 18 months. A similar order was made in respect of Mr Akhtar Hussain, which has been paid.
5. The properties listed as the Defendant's realisable assets were:

(i) [number] Woodlands Road, Sparkhill, Birmingham B11 4EH ("Woodlands Road").

(ii) [number] Lilycroft Road, Bradford, BD9 5AD ("Lilycroft Road").

(iii) 50 per cent of the value of [number] Stonehaven Court, Long Lee Lane, Keighley, BD21 4YD ("Stonehaven Court").

(iv) [number] Skipton Road, Keighley, BD21 2TA ("Skipton Road").

(v) [number] Plover Street, Keighley, BD21 3EZ ("Plover Street").

6. A restraint order over Mr Ali's assets had been made on 9 February 2001. A management receiver was appointed, but was discharged in the spring of 2006. In light of the lack of payment towards the order by Mr Ali, an enforcement receiver was appointed on 18 June 2010 by Cranston J for the purpose of enforcing payment of the confiscation order.
7. After the restraint order was made in 2001, attempts had been made by the Receiver to ascertain what, if any, claims would be made by third parties. No claims were brought until 17 March 2010 by Tazeem Akhtar, Sabir Hussain and Ghazanfar Hussein. Limited evidence was produced in support of the applications. On the basis that claims had been filed by those third parties, Cranston J suspended the Receiver's general powers, including that of possession and realisation, with respect to the Woodlands Road, Lilycroft Road and Stonehaven Court properties. He ordered that the claims of the Third Parties should be resolved by 1 September 2010 or the matter should be brought back before the Court for directions.
8. The Receiver attempted to resolve the claims. He requested further information and evidence on a number of occasions and indicated that without those further details, he would be in difficulty in being able to resolve the claims. Details are set out in the witness statement of Mr Ingram dated 16 March 2011. In addition, solicitors for those third parties had indicated that there were to be further claims in respect of Skipton Road and Plover Street. By way of a letter dated 14 December 2010, the solicitors for the third parties indicated that they would provide evidence in respect of the additional claims by 17 December. That evidence was not forthcoming, nor were any further claims made at that time.
9. As a result, the Receiver applied to the Court on 16 March 2011 for directions in respect of the existing and potential claims. The matter came before the Court on 19 May 2011, at which time directions were made. In particular, Mrs Akhtar, Sabir Hussain and Ghazanfar Hussain were to file further evidence by 16th June 2011, and any third parties asserting interests in Plover Street or Skipton Road were to make those claims with their supporting evidence by the same date. If those claims were not made by that date, they would be debarred from pursuing such claims.
10. On the afternoon of 16 June 2011, the Receiver was served with three further applications, by Akhtar Hussain and Shaheen Bi in respect of Skipton Road and by Khadim Hussain in respect of Plover Street. Eleven witness statements were served, including one from the Defendant in support of all of the third party claims.

SUMMARY OF THE CLAIMS

Woodlands Road

11. Mrs Akhtar, the Defendant's wife, asserts a 50 per cent beneficial interest. An application was made during closing submissions to amend the application notice to include a further allowance to be made in respect of a payment made towards mortgage arrears.
12. The liquidator has acknowledged that Mrs Akhtar has a 50 per cent beneficial interest in the property. The property, which was bought in 1998, is held in the joint names of Mr Ali and Mrs Akhtar. She now claims a further interest by virtue of a payment made on 1 April 2009 of £19,857.21, which represents money borrowed by her from her nephews Taliq and Tariq Hussain to pay off the arrears on the mortgage on the property in order to avoid eviction. She claims that she is entitled to an increased beneficial interest in order to reflect this payment.

Lilycroft Road

13. Mrs Akhtar, the Defendant's wife, asserts a 50 per cent beneficial interest. Lilycroft Road is in the sole name of Liaquat Ali. The basis of Mrs Akhtar's claim is that she became a partner with her husband in Watan Travel in 1994. Lilycroft Road is shown on the accounts of Watan Travel as being partnership property and consequently as a partner she has a 50 per cent interest in the property.

Skipton Road

14. This property is registered in the sole name of Liaquat Ali. It was purchased in 1993. Akhtar Hussain, the Defendant's brother and his wife, Shaheen Bi, assert a 100 per cent beneficial interest in the property, namely 50 per cent each, Shaheen Bi's interest being by virtue of Mr Akhtar Hussain saying that his wife was entitled to half of his share. The basis for the assertion by Mr Hussain that he is the beneficial owner of the property is essentially that a) he put in half the purchase price, being in a position to do so from money inherited from his father's estate and thus had a 50 per cent interest and b) that he became the full beneficial owner by virtue of an agreement with Mr Ali, the details of which will be examined later on.
15. Shaheen Bi, although she has made no financial contribution to the property asserts an interest by virtue of her understanding with her husband that she has a 50 per cent interest in the property. At Court for the first time, she gave evidence of substantial work done on the property in 2009, the monies for which were loaned to her. Application was made to amend her application notice to include the additional amounts.

Stonehaven Court

16. The property is registered in the joint names of Sabir Hussain and Liaquat Ali. Mr Sabir Hussain asserts a 100 per cent beneficial interest, although he states that Ghazanfar Hussain may have an interest. Ghazanfar Hussain, the Defendant's nephew, also asserts a beneficial interest. Between them they assert that either Sabir Hussain has a 100 per cent beneficial interest, which he has indicated would pass to his son, or Sabir Hussain has a 50 per cent interest as per title and Ghazanfar Hussain has an interest in the other 50 per cent. The basis of the claim of Sabir Hussain is that although Liaquat Ali is shown on the title as being joint owner, it is he, Sabir Hussain, who paid the deposit and made the mortgage payments.
17. Ghazanfar Hussain does not assert any contribution towards the purchase price or mortgage repayments. His claim rests on having carried out some renovations works and paid bills during his residence.

Plover Street

18. The property which was purchased in 1984 is registered in the sole name of Liaquat Ali. Khadim Hussain, the Defendant's brother, asserts a 100 per cent beneficial interest on the basis that he paid for the property.

THE EVIDENCE

Preliminary points

19. Evidence was given by Liaquat Ali, Tazeem Akhtar, Akhtar Hussain, Shaheen Bi, Ghazanfar Hussain, Khadim Hussain, Ajaib Hussain, Taliq and Tariq Hussain. Mr Madassar Hussain did not come to Court because he was attending Haj. Mr Sabir Hussain did not attend because his wife is unwell in Pakistan. Their evidence therefore has not been tested by cross examination. There were also statements from Shaukat Zaffer, Abbas Lakha QC and Matthew Frankland which were read. There was also a statement from Mr Chatfield produced by the Receiver which was read, Mr Farrell QC for the applicants not wishing to cross–examine him. I do not intend to rehearse the evidence as I have ignored it for the purposes of the applications as it takes the case no further. I have read all the documents in the case.
20. I will deal with the evidence in relation to each property separately, but before I do so I make some general points. Submissions have been made by Mr Farrell QC on behalf of the applicants about the period of time which the evidence has to cover – over thirty years ago; that the families are not educated people and thus not "au fait" with legal niceties; that there may be nuances that are not communicated during translation of the evidence of Tazeem Akhtar, Akhtar Hussain, Ajaib Hussain, Khadim Hussain and Shaheen Bi and that their statements were drafted by a solicitor and would not represent the exact words communicated to the solicitor. Reference is also made to the fact that they have had several solicitors and have had problems with obtaining legal aid. These matters are noted and taken into account.

Woodlands Road

21. Mrs Akhtar in her statement dated 24th June 2010 explained how mortgage arrears had built up and that in 2009 the arrears were in the region of £20,000. HSBC obtained an order for possession. The arrears were paid off by virtue of a loan from Taliq Hussain who made the payment of £19,857.21 from his business account on 1st April 2009. In her statement dated 15 June 2011 she asks for an additional share in the property because of having paid the arrears.
22. In evidence, during cross examination, Mrs Akhtar when asked why she was asking for the £20,000 said that it was because of all that she had been through with Mr Ali in prison, and she had looked after the children and she took the view that she was entitled to the money.
23. Both Taliq and Tariq Hussain gave evidence about agreeing to make a loan to avoid Mrs Akhtar's eviction from the premises. Their accounts differ about how the loan came about. Also, although they both refer to giving a loan to Mrs Akhtar in their statements, when questioned in Court, they both indicated that they considered both Mr Ali and Mrs Akhtar to be responsible for paying back the loan if and when they could repay it as they were joint owners of the property. Mr Taliq Hussain said in evidence that Mrs Akhtar had phoned him and told him that both Mr Ali and herself would be contributing as they both had a 50 per cent stake in the property.
24. The Receiver casts doubt on whether there really was a loan from Taliq Hussain or whether the money advanced represented payments from the former Receiver to Mr Hussain for living expenses and upkeep of Woodlands Road.
25. Mr Tariq Hussain when questioned accepted that he had received money from the Receiver but indicated that it was only for a short period of time; a couple of months he thought. It was not enough to cover the mortgage. Mrs Akhtar in evidence said that she had received money directly from the Receiver and not from Taliq and that Taliq had not told her that he had received money from the Receiver. Mr Liaquat Ali also said that he was unaware that Taliq Ali received money, namely £1,105 per month from the original Receiver for living expenses and the upkeep of the property.

Lilycroft Road

26. This property is registered in the sole name of the Defendant. Mrs Akhtar claims a 50 per cent share by virtue of being a partner in the business of Watan Travel and because Lilycroft Road was said to be partnership property.
27. The property was registered in the name of Liaquat Ali in early 1993 following the death of Mr Ali's father, who was the owner of the property from which Watan Travel operated. Mrs Akhtar gave conflicting accounts of how the property was acquired. In her application dated 17 March 2010 she stated that:

"Lilycroft Road is registered in the name of the Defendant only but was acquired with monies from a business in which the claimant was a 50 per cent shareholder with the Defendant, Watan Travel Centre and which traded from Lilycroft Road."

28. In her statement of 24 June 2010, she said:

"On 5 January 1993 my father in law died and Lilycroft Road passed to my husband."

29. In her statement of 15th June 2011, she said that sometime around 1994 she became a partner in her husband's business where she worked from time to time. Her belief was that she was a proper partner of the business and had an interest in the business and its assets. She produced accounts for 1995 1997 to show that she was a partner. Accordingly she believes that she is entitled to a 50 per cent share of Lilycroft Road as it is part of the partnership property.
30. In evidence she said that in 1994 she had two very small children and was pregnant with a third. The office was some twenty minutes away by car, and she did not drive. She was not involved in any of the running of the business; her husband dealt with it all. She was not involved in any decisions involving the firm. She did some cleaning sometimes and helped with the odd person who spoke Urdu, which her husband did not. She did not receive a regular wage, nor partnership profits. She would ask her husband for money when she needed it. When they moved to Birmingham she stated that she helped out a little more as she lived above the office. She would help man the phone when her husband was out and she would bring her children into the office with her.
31. Mrs Akhtar said that she and Mr Younis, a friend, paid the Receiver £9,500 for Mr Ali's share in Watan Travel. This would have been in 2005/2006. She agreed in cross examination that although they bought the business, they did not buy the property Lilycroft Road nor Stratford Road, both shown on the accounts as partnership property. She said the properties were Mr Ali's property and she was entitled to a half share because she was Mr Ali's wife. She had not claimed any share in Stratford Road, Birmingham before the Receiver sold it in 2004. She gave conflicting accounts of whether or not she took legal advice as to whether to make a claim on that property. In answer to questions about the source of the funds which enabled her to pay £4,750 for Mr Ali's share in Watan Travel, at first she said that she got the money from the Receiver, then she could not remember how the money was paid and then she said that someone called Saeed helped her. No further details were provided.

Liaquat Ali

32. Mr Ali supports his wife's application on the basis that she was a partner in the business from 1994 although she was not a full partner. Her name was shown on the accounts, but was not on the partnership property. However she was entitled to a half share. He conceded that Watan Travel had not bought Lilycroft or made any contribution to its acquisition. He agreed that even after 1994 when he was dealing with business matters and even as late as 2000 he presented himself as being the sole owner of the business. He obtained overdraft facilities by virtue of a charge over two properties including Lilycroft Road in January 1995. He had presented himself as a sole trader for the purposes of the application and his wife had not signed the form in the space left for partner's signatures. He accepted the offer of the Midland Bank facility in his own name alone. He signed the agreement. He did not tell the Midland Bank that his wife was the co owner of Lilycroft. When pressed about why he hadn't told the bank, he said that he had told the Midland Bank that his wife was a partner in the business and they were quite happy with the situation and never raised any questions despite her lack of signature. He conceded when pressed by Miss Cassidy that although his wife's name was on the accounts, the property was separate. In re examination he said he thought by virtue of her being a partner in the firm, Mrs Akhtar was entitled to a half share in the property.

Skipton Road

33. There is a connection between Skipton Road and Lilycroft Road for two reasons. Firstly, it is said by Mr Ali that he swopped his interest in Skipton Road for his interest in Lilycroft Road and secondly, he put up both Lilycroft Road and Skipton Road as security for the banking facilities from the Midland Bank, which ran from 1995 to 2000.
34. Skipton Road was purchased in the sole name of the Defendant in 1993. Akhtar Hussain in his statement dated 15 June 2011 indicated that Skipton Road was always intended to be his family home. He left most of the work on the purchase to Liaquat who spoke better English than he. However their solicitor Mr Broughton was aware that the property was being bought jointly. The property was purchased using monies inherited from their father. Shaheen Bi's brother lent £7,000 for the deposit, which was paid by cheque and later repaid by him. The house was registered in Liaquat Ali's name, but they both contributed to making it habitable. It did not occur to him to change the land registry title as there was no question that Liaquat would claim an interest in the property.
35. In cross examination he said that Liaquat Ali had told him that when he moved out, Skipton Road would be his even though it was in Mr Ali's name. The swop happened in 1994. He could not change the name on the title because of the bank guarantee which was discharged in 2000. If he had the chance he would have put his name on the title. Before they bought the property Mr Ali had said he would put his name on the title so that he could get a charge over the property for his business to get a facility from the bank. When it was pointed out that neither he nor Mr Ali had given this reason before, he said that the solicitor knew all about it and, despite knowing, the solicitor did not suggest that they put something in writing about the property being jointly owned. He was aware that the bank would be able to take over the property should Watan Travel default, but he was confident in his brother's business abilities. At that time his brother's business was selling 1-3 million tickets a year. He was shown the 1995 1997 accounts which showed modest profits unsupportive of what he was claiming. He indicated that he did not know the figures of the business, but was sure his brother was doing fine. Later in his evidence he changed his account about the immediate source of the money, saying that the money from the inheritance was not available at the time of purchase and that Mr Ali had taken £63,000 from Watan Travel to pay for the property. He acknowledged that he had not mentioned this in his statement. He went on to say that the solicitor has asked for cash. He was shown a letter from the solicitor dated 16 March 1993 in which the solicitor asked for funds to be transferred to his account. He then said that the solicitor wanted a transfer but they gave him cash and he, the solicitor, didn't mind.
36. Later when questioned by the Court about the £7k deposit and why that too did not come from Watan Travel, he indicated that he had decided to pay back the deposit, as he was buying the house but didn't have the money at the time. It was never intended to be a joint purchase at the beginning. In re examination he confirmed that it was always his thinking from day one that the house belonged to him.
37. He said that Sabir Hussain was mistaken when, in a letter dated 2 September 1998, he indicated that he had paid £70,000 to Liaquat Ali for the purchase of Skipton Road. The money, he said, was to repay Watan Travel. Sabir knew that the money was for both brothers and he did not know why his brother did not indicate that in his letter.
38. Mr Akhtar Hussain said that £100,000 had been spent in 2009 in relation to a new roof, additional rooms and other renovations. The money came from his wife's brothers and sisters who had loaned him the money. He did not have any receipts; he didn't think it was necessary to keep them. Other people had lent him £240,000 to pay off his confiscation order. When it was pointed out that this was the first time anyone had raised the issue of £100,000 being spent on the house in 2009, he indicated that he had told his solicitor about the work.
39. So far as his wife Shaheen Bi's claim was concerned, he had not had any specific conversation with her about her interest in the house. He was so busy, he didn't even think about it. They never talked about those matters. They took them for granted. His wife would not have spoken to Mr Ali about it.
40. Liaquat Ali, in his statement dated 9th December 2008 for the confiscation proceedings indicated that the property had been bought by both himself and Akhtar Hussain with them paying £65,000 and Hussain paying the £5,000 balance. He said nothing about a swop of beneficial interests. In his statement dated 15 June 2011 he explained that he inherited Lilycroft Road on his father's demise in 1993. It was decided that he should take over the property following his father's death and that his brother would be the sole owner of Skipton Road. This decision was made some time in 1993 or 1994 when Skipton Road was bought. Skipton Road was bought because Mr Ali and his brother Akhtar Hussain wished to move out of Parsons Street, which was becoming over crowded with family members. It was agreed that they would be given the cash available from their father's inheritance and that the two men would have no interest in the other property in Pakistan. He found Skipton Road, and because he read and spoke English better than the others he was the contracting party. As he had put his name in the tender, the title had to be in the same name as the tender. They did not have enough money for the deposit, so had to borrow from Shaheen Bi's brother Mohammed Hussain. Akhtar Hussain paid the £7,000 deposit back over time. Although a document written by his brother Sabir Hussain in relation to a query raised by Inland Revenue that his business did not have sufficient income to afford the property, indicated that he, Mr Ali, had been given £70,000 for the purchase of the property, he said that it was never intended that he would be the only person to have an interest in the property and that it was jointly owned by himself and Akhtar Hussain. He blamed Sabir Hussain for not making it clear in his letter provided for the Inland Revenue.
41. He took out overdraft facilities with the Midland Bank in January 1995 using Lilycroft and 200 Skipton Road as security for the facilities. Akhtar Hussain was happy for him to use Skipton as security for the bank. Indeed the solicitor Mr Broughton, who acted for Mr Ali in relation to the arrangement of the bank facility, knew that Akhtar Hussain was the real owner of the property. There was no real reason to change the title deeds and land registry entry.
42. In evidence Liaquat Ali gave a number of different answers. He said that the arrangement was that whoever moved out first, the other person would keep/own the house. Then he said that he decided to move out of Skipton in 1996 when he went to Birmingham and it was then that a decision was made to swop interests. When asked which of the two years he had mentioned was the correct one, he said that it was both in 1994 and 1996. All five brothers were entitled to a share in Lilycroft Road, but three of them had waived their shares and Akhtar Hussain agreed to waive his fifth share in Lilycroft in exchange for Mr Ali waiving his half share in Skipton Road. As he had moved out of Skipton Road he had no interest in it any longer. He told Mr Akhtar Hussain that he could change the name on the deeds to reflect his ownership but Mr Hussain was not bothered. This conversation took place in 1996.
43. They did not have the deposit money, but by the time completion arrived, the money from Pakistan had not arrived so he took £63k cash out of Watan Travel. When he received £70k from Pakistan, he put into Watan Travel's account. He did not give Akhtar Hussain the difference of £7k to pay off the loan to Mr M Hussain as Mr Akhtar Hussain had not asked for it.
44. The applicant Shaheen Bi
45. In her statement dated 15th June 2011 Shaheen Bi states that when the two families moved into Skipton Road the family would share the property. When Liaquat Ali moved to Birmingham it was understood from then on that the property was theirs. She did not think that Mr Ali had made any financial contribution to the house, but she did not discuss financial details as they were discussed by the men. It was no concern of hers who was on the title. She believed that her husband had borrowed some money for the deposit on the property and that her husband had paid her now deceased brother back over a number of years.
46. In her statement dated 14th July 2011 she said that she had no conversation with her husband about her share in the property – she assumed she would have half.
47. In evidence Shaheen Bi stated that she was the owner of Skipton Road because she has lived there a long time. In 1993 the brothers decided that the property was hers and her husbands. She never thought that Mr Ali owned it. When her statement was put to her that it was a joint purchase, she said that when they moved in she believed that the property belonged to both families.
48. She had approached her brother for the £7k loan for the deposit which she then gave to her husband. Her statement was in error when it said that her brother gave the money to her husband.
49. She said that works amounting to approximately £100k were carried out in 2009 whilst her husband was still in custody. Her brothers and sisters all contributed. She could not say how much each one had contributed. She had no explanation for why she had not mentioned this before, but gave approximate values of the work carried out for a new roof, new rooms an attic and damp course. Two Pakistani men carried out the work but she had no receipts. The men were paid in cash. The money was given to her gradually and as she got the money she gave it to the builders. She had told the previous solicitor about all the work and thought he had the paperwork. She had not told her present solicitor about the work.
50. Tazeem Akhtar
51. In her statement dated 24th June 2010 Mrs Akhtar stated that her husband Mr Ali bought Skipton Road. When they moved out to Birmingham Mr Akhtar Hussain and his family continued to reside there.
52. In court when cross examined she said that she may have missed some things out of her statement. Her husband Mr Ali told her that Akhtar Hussain paid the money for the house from money he inherited from their father. She agreed that she had not mentioned the swop of interests in her statement but said that Mr Ali had told her about the swop some time between 1994 and 1995 as the brothers had discussed it.
53. Ajaib Hussain
54. In his statement dated 14th July 2011 Mr Hussain said that Skipton was bought by Mr Ali and Mr Akhtar Hussain from money from their father's estate. It was agreed between the brothers that it would belong to the two of them. After the property was purchased the brothers agreed that Liaquat would take ownership of Lilycroft Road to use for his business. He and his brothers agreed that if Mr Ali was going to be the owner of Lilycroft then he could not expect to keep his share of Skipton. Thereafter the agreement was that it would be owned by Akhtar Hussain.
55. In evidence he said that his understanding was that when Mr Ali moved to Birmingham that the brothers made a decision that Lilycroft would stay with Liaquat and Akhtar would have Skipton Road. He knew that Skipton Road belonged to Liaquat before, but the brothers decided that Akhtar owned it after 1996. He himself had not inherited any property in the UK from his father. He did not give up any interest in Lilycroft Road. He was not part of the decision making between Akhtar Hussain and Mr Ali – they decided what they wanted to do and told him. He telephoned Sabir Hussain in Pakistan and told him. In answer to a question from the Court he said that he lived next door to Skipton Road. Skipton Road had 8 bedrooms and had always had 8 bedrooms. He thought some work had been done to Skipton Road about 2 3 years ago to the roof and interior but he had nothing to do with it.
56. Sabir Hussain
57. In his statement dated 15th June 2011 Sabir Hussain states that Skipton Road was bought largely with cash from his father's estate by Liaquat Ali although the other brothers were entitled to a share. It was intended that Mr Ali and Mr Hussain's families would live there but as Mr Ali was running a business from Lilycroft Road it was agreed that he could keep Lilycroft in exchange for his interest in Skipton Road. There was no need to change the registered owner as the family would understand that Mr Ali did not have a share.
58. Stonehaven Road
59. The applicant Sabir Hussain did not come to give evidence for the reasons already set out.
60. His application notice is dated 17th March 2010 and is a joint notice with his son Ghazanfar. In it Mr Sabir Hussain says he paid around £15k for the deposit on the property.
61. In his statement dated 25th May 2010 he supports his son Ghazanfar Hussain's application in relation to Stonehaven. Mr Hussain states that he bought the property in 1984 with his brother Mr Ali for £50k. He provided the deposit of £25k from savings from his business. The balance was from a joint mortgage. He made the mortgage payments and paid off the mortgage before he returned to Pakistan in 1993. His Barclays account is now closed. His son, Ghazanfar, has lived there since the property was bought and he has been responsible for the upkeep of the house. His son therefore had a beneficial interest because of his contribution to the upkeep. Mr Hussain intends to transfer his interest to his son.
62. In his statement of 15th June 2011, he states that he is the beneficial owner of Stonehaven. Liaquat Ali was only the joint mortgagee because it was easier to obtain a mortgage as the lenders were more willing to lend to two rather than one. Mr Ali was comfortable dealing with documents and spoke better English than the rest of the brothers. Mr Ali made no contribution to the property at all. He has no original documents to support his claim as he returned to Pakistan in 1993 to deal with his father's estate.
63. His final statement is dated 14th July 2011. He had been shown his son's statement and agreed with the contents. He had told his son that he expected him to take responsibility for the house and that the house was his. Either he owns the property or his son does. It was agreed from the outset that Mr Ali would have no financial interest in the property and it would be held by him.
64. Liaquat Ali
65. In his statement for the restraint proceedings Liaquat Ali accepted that the property was one of his assets. In his statement for the confiscation proceedings dated 9th December 2008 Liaquat Ali said that the property was registered in his name but was owned by his brother and/or Ghazanfar. It was paid for by Sabir Hussain. Sabir wanted him to help out as his English and confidence in handling business was greater than the other older brothers.
66. In a statement dated 22nd February 2010 he referred to Mr Sabir owning 50 per cent of the property and hence his 50 per cent interest in the property.
67. In his statement dated 15th June 2011 Mr Ali states that the mortgage was done in joint names as it was easier to get a mortgage on that basis. He had no money at the time, so it was ridiculous to say that he was a joint owner of his brother's home. He was only on the title deeds because he assisted in obtaining the mortgage. He had made no financial contribution to the property.
68. In evidence Mr Ali, for the first time, indicated that the reason he was on the mortgage was because Sabir Hussain had been turned down a couple of times for a mortgage in his own name so the two names were put forward. He accepted that he had not mentioned this in his 2008 statement made for the confiscation proceedings or in his more recent statements. He did not have any money at the time. He had told the bank as much but said that he would eventually be working and would help his brother if he could not pay his mortgage. The bank accepted his explanation. He had no bank account until 1992. He said later in his evidence in answer to the Court that he told the bank he was earning £70 per week. He had been earning £70 per week not £40 as suggested in a previous statement.
69. He said the reference in his statement of February 2010 to his "50 per cent interest" meant his legal interest as opposed to beneficial interest. He had used the word "owned" wrongly, he meant "owned" as per the title deeds, not actual ownership. He did not know what arrangements had been made between Ghazanfar and his own brother Sabir Hussain. There had been no discussion or agreement between him and Ghazanfar as to the shares in the property.

The applicant Ghazanfar Hussain

70. In his statement dated 24th June 2010, he said he has lived at 3 Stonehaven since the family moved there. His father returned to Pakistan in 1993 and he has been responsible for the household bills. He has done works to the property borrowing money from friends and family and repaying them over time. He has never paid rent.
71. In his statement dated 15th June 2011, he said that his clear understanding was that the property was his home and he believed that his father intended him to have a financial interest in it. This had not got as far as a change to the title deeds, because he would not see a need to do so in his family. He asked the Court to give him an interest, or alternatively rule that the property is solely that of his father.
72. In his statement dated 14th July 2011 he accepted that he has no receipts to show his expenditure on the house. He had discussions with his father when Sabir Hussain returned to Pakistan and his father explained to him that he would be responsible for the upkeep and from then on it was his home. He had no discussion with Mr Ali as Mr Ali never held any interest in it so far as the family was concerned.
73. In evidence he said he did not know until 2001 that his uncle's name was on the title deeds. He was referred to his statement where he had said that he found this out when his father went to Pakistan in 1993 and said that the statement was incorrect.
74. He denied discussing with other members of the family what was going to be in their statements. He was referred to the statements from Madassar, Taliq and Tariq where many paragraphs were identical. He said that his statement was just from him. The solicitor was writing down everything he said, he was given a copy and signed it. He explained that there was a kitty system where the families were paying him £50 per week for expenses. The costs of work on the property came out of that money. He had wrongly stated in his statement that he borrowed money from his brothers and paid them back. The brothers had contributed to the costs of works and he did not pay them back. He did not have any documents. He had given them to a solicitor but he could not remember which one. He had also given them to the solicitor who had taken his statement. He considered that the property belonged to him as he had been living there since 1984. His brothers had all moved out and he considered that the property should belong to him. He had no discussions with Mr Ali about the property.

Akhtar Hussain

75. In his statement dated 15th June 2011 Akhtar Hussain said that his brother Sabir sold Plover Street and used the proceeds towards the deposit and made up the balance from his own savings and profits from the business. It proved easier to get a mortgage with two names and Liaquat Ali made no contribution to the purchase or upkeep. Sabir paid the mortgage off from the inheritance of their father's estate.
76. In evidence he said he was around and heard the talk about Stonehaven and that was why he knew it was Sabir's property. He had been mistaken when he said that Sabir paid the mortgage off from his inheritance.

Ajaib Hussain

77. In his statement dated 14th July 2011 he said that the property was bought by Sabir. Liaquat Ali had no money. It was clear from the discussions that the house was wholly owned by Sabir and his family. Ghazanfar then took the house over and for many years he has believed that Ghazanfar had an interest in the house.
78. In evidence he said that he knew Liaquat was on the deeds at the time and that Sabir got the money for the deposit from his business.

Madassar, Taliq and Tariq Hussain

79. All grew up in this property. They were unaware that Mr Ali had an interest in it and understood that it had been bought by their father Sabir Hussain.
80. Cross examined, Tariq Hussain said that he knew that 3 Stonehaven was in joint names in 1996. As for his statement – he dictated it to the solicitor word for word. He did not think it was a problem if the solicitor had merely copied his statement for his brothers as the solicitor had a lot to deal with that day. He, Mr Hussain, had made a contribution to the improvements to the house and could say that he owned part of Stonehaven because it was his father's property, but the brothers had all said to Ghazanfar that if anything happened, it was his property.
81. Taliq Hussain in evidence said that he knew in 1988 when he was 8 that the property was in joint names because he had seen the mortgage paying in book. When he was about 16 he raised the question about the joint names given that Mr Ali had not contributed towards the upkeep of the property. He said to his brother if Mr Ali was on the title deeds why was he not contributing. He did not think it was right that Mr Ali was on the deeds. He was told that their father owned the property. He said his brother Ghazanfar may have forgotten the conversation. He accepted that he had not mentioned this in his witness statement. As for his statement – he did not know what the others had said but he had spoken to the solicitor who gave him the draft and he agreed with the contents. He was unable to say how much he had contributed towards the renovations of the property. If there was something large to be done, then the brothers would contribute more than the £50 per week which was used for bills and food.

Plover Street

82. Khadim Hussain, the applicant made his first statement on 15th June 2011. He bought [number] Plover Street with cash from his earnings from work in a local mill in the mid 70's for £3k cash. He moved in with his wife and had lived in the property ever since. Sometime later [number] came up and he bought it for £3,995 from his own savings. He also paid for renovations. Liaquat, although younger than him, helped with the purchase. He had no original documents. Liaquat dealt with the negotiations with the solicitor. He had rented it out and had let family live there rent free. It was occupied at the time of the making of the statement by his nephew Madassar who had spent a lot of money improving the property. He could not say why the property was registered in Mr Ali's name in 1984 as he bought the property earlier in 1977 when Liaquat would only have been 14. He did not recall being asked if it could be registered in Liaquat's name but even if he had agreed it was not because he had given Liaquat the property.
83. In his second statement dated 14th July 2011 having been shown the registration document, he accepted that the purchase must have taken place in 1984. He must also have been wrong about the purchase price.
84. In evidence Mr Hussain said that he earned between £100 and £150 per week depending on overtime. He moved into [number] when he was renovating [number] and then moved back. His nephew Madassar had lived there for two years. Madassar was paying no rent and complained about the state of the house. He told Madassar he had no money to do works to it and that he could do some himself if he wanted. He had been considering doing further works to it and extending through to number 4 but had never got around to it.
85. A friend had helped him with the solicitor when he bought Plover Street. He had asked Liaquat to help him as he was working 7 days a week. Liaquat could speak English. He was working similar hours when he bought Plover Street. He came to know about Liaquat Ali being on the title deeds when the restraint order came into force. Before that no one knew in whose name the property was registered. The family did not tell him in 2010 that they were going to Court in relation to the properties and that he should join them. Late in 2011 the family told him that Plover Street belonged to him. Mr Ali had read both his statements to him and had interpreted during his meetings with the solicitor. He did not know how both he and Mr Liaquat Ali had made the same mistake about the date and cost of purchase.

Liaquat Ali

86. In his statement to the Receiver in 2001, Liaquat Ali identified Plover Street as one of his assets. In his statement for confiscation proceedings he said that the property was registered in his name but owned by Khadim Hussain. He was only 15 at the time of purchase. Mr Khadim Hussain was illiterate so it was put in Mr Ali's name.
87. He repeated this account in his statement of 22 February 2010.
88. In his statement dated 15 June 2011 he said he was sure that Khadim bought the property out of his savings in the mid 70s. He was sure the price was £3,995 as he remembered it being £5 short of £4,000. He had always been interested in property since a young age. [number] came on the market and he was quite excited about it and went down to the estate agent with the family. He was the obvious person to assist Khadim Hussain as Khadim had learning difficulties. He made no contribution to the purchase. He could not understand how the property was registered in 1984 and he could only speculate as to why he was the registered owner. He could not have afforded to buy the property in 1984 as he was only 21.
89. In his statement dated 15 July 2011 he accepted that he must have been wrong about the date of purchase. He was being paid about £40 per week at the time of the purchase in 1984 and he had no savings.
90. In evidence when cross examined he referred to his 2001 statement to the Receiver. Saying Plover Street was one of his assets, he explained that he was not sure if he owned it or who owned it. He said that he had only recently been released from detention and the response to the Receiver was done in a hurry.
91. Cross examined about his assertion in his statements including the statement made for confiscation proceedings that he was sure of the date and price of the purchase – he said that he was not sure, he was presuming he was sure. It was pure coincidence that he and Mr Khadim Hussain had said exactly the same thing and had got the date and purchase price wrong. They had not discussed it.
92. He had been put in as the registered owner as Khadim had learning difficulties and was illiterate. He accepted that Plover Street was registered in Khadim's name and said that his brother must have taken someone else to the solicitor to assist him with that purchase. Khadim had asked him to take the money to the solicitor and the solicitor just asked him to sign the deeds and he thought he was signing just to hand the keys over.
93. His attention was drawn to his explanation in his statement for Khadim buying number Plover Street, namely that his father wanted Khadim to be close to the family so that they could keep an eye on him and asked how this could be true given that Khadim already lived in number Plover Street. His response was that what was in the statement was true to the best of his knowledge.
94. He said his nephew Madassar had been living in the property for some time. It was quite normal for people in families to live in a property and not own it. It also did not matter whose name the deeds were in in his culture. He thought that the reason that his name was still registered on properties that he did not own was due to the kindness of his brothers.

Ajaib Hussain

95. In his statement of 14 July 2011 Ajaib Hussain indicated that the property would have been put in Liaquat's name because Liaquat dealt with the solicitor. Khadim was working hard in the mill and Liaquat earned a low wage in the shop.
96. Sabir Hussain in his statement of 14 July indicated that Liaquat was earning about £40 £50 per week in his shop and had no outgoings. He would not have been able to afford the house.
97. Madassar Hussain in his statement dated 15 June 2011 said that he moved into the property with his family in 2004 and that he had spent £14,000 on improvements. He was not aware that his uncle Liaquat had an interest in the property. He had never discussed the property with him, only with his uncle Khadim. He produced no documents in support of his claim to have spent £14,000 on the house.

The submissions of the parties.

98. There is some common ground between the parties as to the approach in law, save for one important issue. It is agreed that the starting point is that single legal ownership implies single beneficial ownership. It is agreed that the onus falls on the party who wishes to displace the presumption – namely the applicants. It is also agreed that the two questions the Court has to determine are firstly, whether any of the applicants have a beneficial interest and, if so, secondly, what the extent of the benefit is. The issue in dispute between the parties is as to the approach of the Court in determining the questions. Quoting Baroness Hale in the case of Stack v Dowden at paragraph 60, counsel for the applicants, submits that the first question of beneficial ownership is to be considered by reference to the parties "shared intentions, actual, inferred or imputed with respect to the property in light of their whole course of conduct in relation to it". In other words, as noted in Stack v Dowden endorsing a passage from the Law Commission's discussion paper on sharing homes 2002, the Court is entitled to take an holistic approach looking at all the evidence. The fact of beneficial ownership at the time of acquisition does not mean that it cannot alter thereafter and the Court can look at events which followed from which an agreement or common understanding as to such a change can be properly inferred. Improvements will justify an adjustment of the apportionment of the beneficial interest.
99. Mr Farrell submits that the overall evidence, and in particular the conduct of the parties makes it crystal clear that there was common intention and agreement as to the beneficial ownership of the properties as asserted in the applications and that the applications should be granted. This is a classic case where the Court should acknowledge the reality of what was going on and whilst there has been a shift of evidence and inconsistencies and contradictions, when one looks at what has happened in relation to each of the properties, the question to be asked whether they have a beneficial interest in the property has to be answered in the affirmative. In other words the discrepancies do not detract from the reality of what has actually happened in each case.
100. Miss Cassidy on behalf of the Receiver submits that Mr Farrell has taken the extracts relied on in the authorities out of context. Stack v Dowden and the other authorities relied on were dealing with joint ownership, as was the Law Commission's paper. When referring to the holistic approach, the Court was referring to the second question, namely quantification of the beneficial interest, not whether there was a beneficial interest. To hold otherwise would be inconsistent with the decision of the Supreme Court. As to improvements, it is submitted that carrying out work on the property of another without more does not provide the party carrying out the work with a beneficial interest. It is only in exceptional circumstances that it could. So far as any family contributions are concerned, that in itself does not establish a beneficial interest.
101. In summary the Receiver submits that there is a dearth of documentary evidence in relation to important issues, the evidence which has been submitted is riddled with inconsistencies and where there are consistencies, this is when statements are couched in identical terms and which, once cross examined on, have been shown to be as a result of the parties merely agreeing a formula rather than being the true evidence of the witness. The family members have clearly discussed the details of the case. This is unsurprising. Their protestations to the contrary are unconvincing. The Receiver also points to other evidence which undermines the evidence of the applicants. It is submitted that the applicants have not discharged the onus upon them.

Applicable principles of law

102. The starting point is the legal ownership of each property. It is for the party asserting that the beneficial interests are held other than as per the legal title to prove their case: Stack v Dowden [2007] 2 AC 432 at 56.
103. Accordingly, the burden is on the Third Party applicants to demonstrate their interest in each of the properties.
104. The law has been further clarified by the case of Jones v Kernott [2012] 1 AC 776, in which it was noted that in "sole name" cases, there were two questions to be asked – namely whether it was intended that the other party have any beneficial interest in the property at all and, if he does, the second issue is what that interest is. In considering the first of the questions there will need to be evidence of an actual agreement, arrangement or understanding between the parties which must "be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been" (Lloyds Bank v Rosset and Another [1991] AC 107, Lord Bridge of Harwich at 132 F G).
105. In considering the second of these questions the Court may have regard to the "whole course of dealing" between the parties, in order to ascertain their intentions, or, if necessary, to impute them.
106. So far as improvements are concerned, the carrying out of work on the property of another without more (in other words mere conduct), does not provide the party carrying out the work with a beneficial interest save in exceptional circumstances (Morris v Morris [2008] EWCA Civ 257; Knowles v Knowles [2008] UKPC 30).
107. There is no doctrine of "family interest". In other words, contribution to a family does not entitle the contributing family member to a share in assets held by another family member. See Stack v Dowden at paragraph 16.

What the claimants have to show.

108. In order to show a beneficial interest in a property, a claimant must demonstrate either a financial contribution to its purchase (demonstrating an interest under a resulting trust) or:

(i) an agreement or understanding that they were to hold a beneficial interest;

(ii) reliance upon that agreement or understanding; and

(iii) detriment of change of position referable to that reliance (Grant v Edwards [1986] Ch 638).

Conclusions.

The credibility of the witnesses.

109. Credibility is central in a case such as this. Although he is not an applicant in the case, the main witness is Mr Liaquat Ali. That is because he is the legal owner in whole or in part of all the properties currently at the centre of these applications. His evidence covers all of the properties. His evidence and his conduct in respect of the properties is of central importance to the court's findings.
110. For reasons that should be apparent from the summary of the evidence, this court finds Mr Liaquat Ali to be an unreliable and less than credible witness. There are significant inconsistencies between his statements. There are inconsistencies between his statements and his evidence, there are inconsistencies between his statements of evidence and the statements and evidence of others. Documentary evidence also undermines his evidence. As far as the other witnesses are concerned, whilst I am mindful of the obstacles they face, they too in the main have proved to be unreliable, being on occasions internally inconsistent and inconsistent when compared to the evidence of others. It is apparent, despite assertions to the contrary, that the family members have discussed the case together before giving their statements,not least because many of them make the same demonstrable errors.
111. All of the applicants have been in court listening to members of their family giving evidence. It is noticeable that when an issue never before raised by anyone was first aired in court, how the same issue was then adopted by another witness. The summary of the evidence cannot convey satisfactorily the overall impression of want of reliability and credibility on the part of most of those who gave evidence.
112. Mr Farrell has been forced to admit that the evidence is riddled with discrepancies, but he has submitted that the court should stand back and look at the reality of what has happened in order to infer the common intention of the family rather than focusing too closely on the many inconsistencies in the evidence of the witnesses.

Conclusions.

The properties and applications.

113. Woodlands Road. This is the claim by Mrs Akhtar following application to amend the application notice. Whilst the Receiver notes that monies used to pay the mortgage on the property during the period of the indictment may well have been from the proceeds of money laundering, he concedes that she has a 50 per cent interest in the property. The issue before the court now is whether she is entitled to a further allowance on the basis of a payment made towards the arrears of the mortgage. The onus is on Mrs Akhtar to show a legal basis for the increase in beneficial interest.
114. There is no dispute that arrears accrued on the property when Liaquat Ali was in prison. Payments had been made by the management receiver, and when the money ran out in 2006 and the Receiver was discharged Mrs Akhtar received benefits which included an amount for the interest payments on the mortgage. She was paying no rent. £19,857.21 was paid on 1 April 2009 towards the arrears. This transfer was made from the bank account of Taliq Hussain, the nephew. It is possible that some of the £19,000 may have been monies which emanated originally from the Receiver and thus not representing a genuine loan. However, the evidence is not clear enough on this aspect, not least because it is Tariq Hussain who says that he received funds from the Receiver. This evidence is disregarded, therefore, for the purposes of this decision.
115. It appears from the evidence that Mr Ali was not consulted about the loan and whether he was willing to accept responsibility or cede some of his

interest in the property. There was no discussion or agreement. Even if he was in prison, one might have expected some discussion about the problem.

116. The sum was paid from a third party and it is an unsecured liability. Although resiling from what was contained in their statements, it is apparent that the two nephews envisaged that the loan might never be repaid. They have made no application to the court.
117. The reason given by Mrs Akhtar in evidence for claiming an extra interest is because she has suffered during her husband's incarceration looking after the house and the children, that is no basis for an increase of the beneficial interest. I am not satisfied in the circumstances therefore that Mrs Akhtar has shown any legal basis for an increase in her beneficial interest in Woodlands Road. However, in light of the Receiver's concession I make a declaration that Mrs Akhtar has a 50 per cent beneficial interest in Woodlands Road.

Lilycroft Road.

118. Mr Farrell submits that whilst it is true that Mrs Akhtar did little in the partnership, the real issue is whether there was an intention that she should have a 50 per cent beneficial interest in property. She is not a lawyer and her explanation that she is entitled to a share by virtue of being the wife should not be held against her. The legal reason she has such an interest is because it was agreed that she should have an interest in the partnership property.
119. Whilst it is correct that Mrs Akhtar was shown as a partner (there are no doubt good tax reasons for this) and Lilycroft Road is shown as a partnership property (again, possibly for tax or commercial reasons) it is quite clear that Mrs Akhtar contributed almost nothing to the partnership by way of work and certainly had no decision making powers.
120. Mr Zafir of Pakistan Airlines recalls that Mrs Akhtar became a partner in the business a few years after the business commenced, but he did not have many dealings with her. She received nothing by way of wages, dividends or partnership profits. Moreover, when it came to the obtaining of facilities from the bank, Mr Ali presented himself as a sole trader and the owner of Lilycroft Road.
121. I reject his evidence that Midland Bank had been told that Mrs Akhtar was a partner and owned half of Lilycroft Road. It is inconceivable that the bank would have accepted the application which was in the name of Mr Ali as sole trader and showed Mr Ali being the sole owner of the property if it had known what is said to be the true situation.
122. The crucial point is that the evidence shows that Mr Ali's conduct and treatment of the property has been consistent all along with it being his own; that is until the confiscation proceedings in this case began, when, no doubt cognisant of the risk of losing the property, the position changed. Mrs Akhtar made no claim on Stratford Road, the other partnership property which was the subject matter of the restraint order and which was sold by the management receiver. She made no offer for Mr Ali's share in Lilycroft Road when she bought Mr Ali's share of the business Watan Travel. The property was treated as separate from the partnership by both her and Mr Ali, however identified in the accounts.
123. Mrs Akhtar's claim, however couched, is in reality on the basis that she is Mr Ali's wife. That is not sufficient for the purposes of these proceedings and that application must also fail.

Skipton Road.

124. Mr Farrell concedes that there are different versions about what the agreement was and that the evidence is not entirely consistent, but submits that the whole course of conduct demonstrates the reality of the situation. Reliance is placed on the expenditure of £100,000 in 2009 as being evidence of the belief of the applicants in their ownership of the property.
125. The documentary evidence in relation to Skipton Road does not support Akhtar Hussain's claim. It was Mr Ali who dealt with the property agent. The tender was in Mr Ali's sole name, although it could have been in joint names. The correspondence with the conveyancing solicitor contains no suggestion of a joint purchase. Akhtar Hussain relies heavily on a reference to a M Hussain within some of the letters, asserting that it refers to him. Those letters do not suggest that M Hussain was acquiring an interest in the property. Moreover, the correspondence from the solicitor at the time is not inconsistent with M Hussain being the gentleman Mohammed Hussain, Shaheen Bi's brother, who provided the £7,000 cheque for the deposit. Given that according to Akhtar Hussain the solicitor Mr Broughton knew him well, it is highly surprising that he would be making such a mistake in his letters.
126. The document from Mr Sabir Hussain sent to the Inland Revenue inquiry is instructive:

"I confirm having paid £70,000 to my brother Mr Liaquat Ali from the estate of my father for the purchase of Skipton Road, Keighley."

No mention whatsoever is made of Akhtar Hussain. There seems no reason why, if the money had genuinely been forwarded to both brothers, this would not have been mentioned by Sabir; even more so because the Revenue was querying how Liaquat Ali could have afforded it and it would be important for the Revenue to know that he only had a half interest in the property.

127. The evidence of the defendant and the third parties about the swap is full of inconsistencies about the date of the swop agreement and timing of when the defendant acquired Lilycroft Road and who ceded their interest in Lilycroft Road.
128. There are inconsistencies about whose property Skipton was from the start. The swop does not make sense. Akhtar Hussain doubled his interest in Skipton Road for no consideration because Lilycroft Road had already been registered in the defendant's sole name in September 1993. However, even if one accepted that Lilycroft Road did not already belong to the defendant, although not expressly referred to by the other brothers, and in the case of Mr Ajay Hussain denied that he had any interest, Liaquat Ali gave evidence that the other brothers had waived that interest in Lilycroft. If that is correct, Akhtar Hussain retained a 50 per cent interest in Skipton Road, giving up only a 20 per cent interest in Lilycroft Road.
129. An important feature is the conduct of the defendant, who continued to treat Skipton Road as his own property. This undermines the evidence of all of the witnesses that there had been an agreement at an early stage that the property belonged to Akhtar Hussain. Mr Ali secured borrowing against it from 1995, and as late as 1997 for the purposes of his business. The charge was only discharged in 2000/2001. Moreover, the explanation by both men that the solicitor was aware of the true ownership of the property is not credible. The solicitor would have been bound to inform the bank of Akhtar Hussain's interest in the property had he been informed about it.
130. The fact this Mr Ali moved out of the property in 1996 does not, without more, give rise to a beneficial interest. It is interesting to note that even in 1998, when he had been gone for two years, Mr Ali was claiming that the property was his. He accepted in his 2001 statement in response to the restraint proceedings that the property was his. His whole conduct up to the time of the restraint order has been to treat the property as his own, despite the fact that he was not living in it. This undermines any suggestion of common intention. Akhtar Hussain's application must fail.

Claim by Shaheen Bi.

131. The evidence of Shaheen Bi confirms that she never made any form of financial contribution towards 200 Skipton Road. In respect of works carried out on that property, she confirms the funds for these came from the business. It was not suggested that she was in partnership with her husband. No supporting evidence has been provided in respect of the alleged works amounting to £100,000, which is most surprising (a) given the value of the said works; (b) given the fact that they were carried out relatively recently in 2009 when all of the family were acutely aware of the fact that a confiscation order had been made against both Mr Ali and Mr Hussain; (c) that the restraint order was still in place and that the courts were treating the property as that of Mr Ali. This issue was first raised out of the blue by Mr Akhtar Hussain in cross examination and adopted by Mrs Bi in her evidence. Nothing about the repairs and renovations features in any of their statements which, given the costs, one would have expected to feature prominently.
132. In respect of any alleged agreement or understanding even if the evidence of Akhtar Hussain and Shaheen Bi were accepted, they had no conversations that would give rise to any belief on Shaheen Bi's part that she owned 50 per cent of the property. It was an assumption on her part based on being Akhtar Hussain's wife. Moreover, there is no evidence of any act to Shaheen Bi's detriment in reliance on an agreement or understanding.
133. Importantly, there had never been any discussion with Mr Ali as to ownership. As far as the works were concerned, they were not carried out with Mr Ali's consent. There was no discussion between him and Shaheen Bi about them at a time when she knew that the courts were treating the property as that of Mr Ali. Even if there had been such discussions, no consent could have been given by Mr Ali who, like the others, was bound by the terms of the restraint order. The fact that Shaheen B has lived in the property, even with her children, is not sufficient to provide her with a beneficial interest in the same. Mr Liaquat Ali himself said in cross examination that it was quite normal for families to live in a property and not own it. It is also interesting to note that as far as 6 Plover Street is concerned, Mr Khadim Hussain was not suggesting that Madassar Hussain was entitled to a beneficial interest by virtue of his living there and having spent money on renovations.
134. It might be said that the spending of £100,000 on repairs, if indeed such a sum has been spent on repairs and renovations, is an act to her detriment. However, as the court has found that Mr Ali owns the property, the spending of £100,000 cannot bind the interest of Mr Ali, because there was no agreement or even consultation with Mr Ali. I am not satisfied therefore that Shaheen Bi has any beneficial interest in this property.

Stonehaven.

135. It was difficult to work out what the claim of Sabir Hussain was in the light of the documents provided to the court. Mr Farrell, on inquiry, by the court has explained that either Sabir Hussain has 100 per cent beneficial interest in the property, or Ghazanfar Hussain is entitled to 50 per cent beneficial interest, which is currently said to be that of Mr Liaquat Ali. Sabir Hussain has made it clear that he would give Ghazanfar any beneficial interest that he has. Mr Farrell submits that the reality is that Ghazanfar has been living in the house for a long time and it would be surprising if he were not the owner of the house. However, there would be no need to consider Ghazanfar's claim if the court finds that Sabir holds 100 per cent interest. The son's application is made on the basis of length of residence, contribution to the property and all the surrounding circumstances.
136. No documentation has been provided about the purchase and mortgage repayments despite the order of the court. Sabir Hussain gives inconsistent accounts as to how much he paid by way of deposit. In his application dated 17 March 2010 it is £15,000. In his statement of 25 May 2010 it is £25,000. There has been no explanation for the discrepancy and there has been no opportunity for Mr Hussain's evidence to be tested. He has given conflicting accounts on when he paid the mortgage off and from whence the funds came.
137. There have been conflicting reasons given as to why Liaquat Ali features on the title. Mr Ali said in 2008 that it was because his English and confidence in handling business was better than the others. Then it was said that the mortgage providers preferred to have two names. Then it was because Sabir had been turned down in a number of mortgage applications. The evidence of the sons is contradictory about when they knew about the joint title. Other than the inconsistent narrative evidence, Sabir has provided no evidence to support his assertion that he made greater contributions to the property than the defendant, or that there was any other circumstance giving rise to his owning a greater than 50 per cent share of the same.
138. I decline to make the declaration sought in Sabir Hussain's case. It was accepted at confiscation proceedings that Sabir Hussain had a 50 per cent share in the property, so the court does not need to make a declaration to that effect.

The claim by Ghazanfar Hussain.

139. His claim rests entirely on having carried out some modest updating works and on having paid the bills during his rent free residence there. Despite the order of the court, Ghazanfar Hussain has provided very little paperwork to back up his assertion as to any improvements made. But in any event as far as any interest that the defendant Liaquat Ali has, there is no evidence of any encouragement or agreement with regard to improvements. As against Liaquat Ali's interests, therefore, the mere fact that any improvements may have been carried out will not be enough to establish a beneficial interest in the property.
140. Any claim that Ghazanfar Hussain may have lies only against his father and it has already been made clear that Sabir Hussain will give any interest he had in the property to his son. Ghazanfar's application is therefore refused.

Plover Street.

141. Khadim Hussain has given contradictory evidence about the date and cost of purchase. Until recently when the title document were found, his case was that he bought the property in the mid 70s and paid £3,995:

"I remember that it was this figure because I remember thinking that it was literally £5 short of £4,000."

He did not know why the Land Registry entry states that the property was purchased in the defendant's name in 1984.

142. Liaquat Ali also stated that the property was purchased in the mid 70s for £3,995, a figure of which he was sure "because it was £5 short of £4,000." He could not explain why his name was on the title. He could not explain how he came to be mistaken as to the date, given that in the mid 70s he was a teenager and in 1984 he was an adult.
143. The reason given by Liaquat Ali in his statement of 1998 for the purchase of 6 Plover Street does not make sense:

"the property is opposite the corner shop my family owned and my father wanted Khadim to purchase the property so he would be close to the family so that our father or the family could keep an eye on him."

Given that Khadim already owned 4 Plover street in his own name and was living in, this cannot have been the reason.

144. There has been no satisfactory explanation provided as to why Plover Street would be needed to be registered in the sole name of the defendant when [next door] Plover Street had already been purchased in Khadim Hussain's sole name. It is also interesting to note that it was Mr Ali who in his reply to the restraint order in 2009 actually drew the court's attention to additional assets of his, and this included Plover Street. He said nothing about it belonging to his brother.
145. The claim in relation to Plover was made late in the day following the court order in May 2011. The evidence of Mr Khadim Hussain was that his family told him to make the application and to say that the property was his. The property is presently empty. Mr Khadim Hussain has not lived in it, save for a short period whilst works was done to [next door] Plover Street.
146. The evidence overall has been unsatisfactory and is certainly not sufficient to satisfy the burden on the applicant to shift the presumption. It follows that Khadim Hussain's application is refused.

Madassar Hussain.

147. There is no application by this gentleman, although in his evidence he claims to have spent money on renovations at Plover Street, where he lived for a couple of years from 2004. His evidence about the discussions with Khadim Hussain about doing work on the property on any view did not amount to agreement or understanding between him and Khadim Hussain that he had an interest in the property. Khadim Hussain was not claiming that he has an interest. More importantly, however, there is no evidence of any discussion and agreement between Madassar Hussain about any interest as far as Liaquat Ali is concerned. If there had been a claim, it would have failed.

Concluding observations.

148. I accept the Receiver's position with regards to the approach the court has to take, and that the authorities relied on by the applicants were dealing with quantification and not the first question, all being joint ownership cases. However, even if one were to stand back and take the holistic approach advocated by Mr Farrell in relation to both questions which need to be answered, it seems to me that there are still difficulties with the applicants' case.
149. The critical period in this case has to be what occurred before the beginning of 2001 when the restraint order came into being. Any conduct or alleged agreement subsequently must necessarily carry less weight when considering common intention, given the circumstances of the restraint order being in place and the limitations on what was permissible under that order. For example, Mr Farrell submitted that the expenditure of £100,000 on Skipton Road was capable of being evidence of the applicants' belief in their ownership of the property. But that has to be set against the fact that this expenditure was at a time in 2009 when they all knew that a confiscation order had had been made against Mr Ali, the court having made a finding that all of the properties in the present application were owned by Mr Ali.
150. In the circumstances substantial expenditure, if such took place, is just as consistent with the family hoping that by making such a claim the court would make a positive finding. The fact that the families have lived a further 11 years in the restraint property does not advance their case much further, nor that the other members of the family have spent sums of money on properties they were living in. They may have been living in the properties for a long time, but as Liaquat Ali himself said in cross examination, it is quite common for families to live in properties they do not own. They may or may not have done work to the properties; there is no documentary evidence to support this. But given that they were living there rent free and a significant amount of the work, if it was done, must have been done since the restraint order when ownership was in issue, little weight can be given to the evidence in support of common intention.
151. However, having found the witnesses to be generally unsatisfactory as far as the evidence of agreements is concerned, there is little left save for the fact that they have lived in the properties for a long time, including 11 years during which period the properties were the subject of a restraint order.
152. What is striking is that Mr Ali in response to the restraint order accepted ownership of all of the properties, and in some cases joint ownership. The evidence is that he did not consult anyone in the family when responding to the order.
153. We have heard much evidence about the closeness of the family and how the men discuss all matters regarding family property. Had the true position been as submitted by the applicants, then one would have expected him to have consulted with the family and expected the family to consult with a solicitor to ensure that the response to the restraint order was accurate and that they declared their interest as soon as possible. They did not. It may be said that they had difficulties obtaining legal aid, but it is quite clear from their evidence that when they need to raise money and from the evidence substantial sums of money they are able to do so. A modest expenditure on legal advice would not have posed an obstacle.
154. However, it appears that they did not declare their interest. That is powerful evidence in my view undermining the claims and suggestions of common intention, particularly bearing in mind the burden of proof. Carrying out the exercise advocated by Mr Farrell does not lead to a different conclusion.
155. MR FARRELL: My Lady, thank you so much. May I just ask that we have a short break so that the issue of costs can be discussed and then my learned junior will take over if there is an issue.
156. MR JUSTICE DOBBS: No, that is fine. How long would you like?
157. MR FARRELL: 10 minutes.
158. MR JUSTICE DOBBS: Shall I go back to my room?
159. MR FARRELL: I think so.
160. MR JUSTICE DOBBS: Yes, all right.
161. MR FARRELL: Thank you very much.
162. MR JUSTICE DOBBS: Somebody will ring through.
163. MR FARRELL: Yes. And as I said, my junior will take over.
164. MR JUSTICE DOBBS: Thank you very much.

(a short break)

165. MISS CASSIDY: My Lady, in anticipation of the court's judgment, I have put together, if I can so put it so crudely, a delete as appropriate order in relation to declaration to each party's beneficial interests and I also provided my learned friend a copy and we have filled in the percentage interest we understand the court to have found Mr Ali to have. It also says that the claims by the third parties are dismissed, although in relation to Mr Tazeem Akhtar insofar as it relates to the extra allowance, rather than the 50 per cent. The suspension of the Receiver's powers, the Receiver may now exercise his powers and in particular not in any way well, without prejudice to the previous order, the Receiver's powers are set out in relation to the previous properties as regards the power to sell the properties.
166. The issues as I understand it that are between the parties is firstly I understand my learned friend will seek some form of further suspension of the Receiver's powers for some period in that the third parties may potentially seek to buy out Mr Ali's interest in the properties. From the Receiver's point of view I would point out that this is matter that has gone on for several years and there was a great deal of difficulty in getting the third parties to make the claims and the court may recall that the claims for Skipton Road and Plover Street were only made after the court made an unless order debarring the claims unless they were submitted by 16 June. All that evidence was late. The Receiver has sought information on a number of occasions and has had delays in getting that and there have been genuine delays in the Receiver trying to resolve these claims. In the light of that I would submit that the Receiver's powers should be activated as of now. If the third parties are able to come to the Receiver with sensible suggestions the Receiver is of course commercially minded in these matters and if it seems that the third party is willing to buy out Mr Ali's interests in the properties then that is something no doubt the Receiver will consider, but the idea that there will be a further suspension of the Receiver's powers, given the amount of time that has passed my understanding is that interest continues to run under the confiscation order it would not be appropriate for the Receiver's powers to be further suspended at this time, particularly given, as I have said, the Receiver was appointed in June 2010 and other than a pension policy has not actually been able to make any realisation due to the claims.
167. The second matter is perhaps unsurprisingly in relation to costs. I asked my solicitor to prepare a very basic summary in terms of costs. It was not anticipated that the court would be looking to perform any assessment of costs. The summary was in a very basic form just to give the court an idea of what those costs are, and no doubt if those costs can be cannot be agreed the amount of any costs that would be assessed. The Receiver makes an application for his costs to be paid by the third parties. In relation to that I understand one of the objections relates to the strike out application made by the Receiver and dated 29 June 2011.
168. MRS JUSTICE DOBBS: Sorry, which I one?
169. MISS CASSIDY: The strike out application. There were two hearings IN relating to the strike out application. The first was 5 July, at which time the court did not have time to hear the matter. That application was actually heard on 19 October 2011. It is correct that the court did not strike out the claims on that date, however I would point to the fact that the court reserved costs to be decided by this court and I would point to the fact that this court has found effectively in terms of what was argued on behalf of the Receiver; that is to say the claim by Ghazanfar Hussain is solely against Sabir Hussain. If he does amend the claim it should not have been made against the defendant and the claim by Shaheen Bi, in truth, any claim she has should have been made against her own husband and not against the defendant. Given that this court has although the claim was not struck out found the point that was made on behalf of the Receiver at the time that even if the evidence was accepted the claim was wrongly made against the defendant. The Receiver's costs should also be paid in relation to
170. MRS JUSTICE DOBBS: What else was there in terms of the strike out.
171. MISS CASSIDY: Those two were sought to be struck out. He also referred to
172. MRS JUSTICE DOBBS: That was on the menu, so to speak, was it?
173. MISS CASSIDY: Yes. He also referred to the fact that the new evidence in relation to Khadim Hussain, the Receiver had raised the fact that the initial statements on behalf of Khadim Hussain referred to the £3,995 in the 1970s purchase and the fact that the new evidence totally contradicted it and to be fair in his statement at tab 13 paragraph 13, the Receiver points out that in the light of the evidence his solicitors have invited Khadim Hussain to withdraw his claim. That was in June 2011. That offer was declined and in the circumstances in relation to Khadim Hussain's claim I submit that costs should be paid on an indemnity basis, because it was no doubt clear to the third parties by then that there was serious difficulties with the evidence for Khadim Hussain. The other matter that was referred to and not proceeded with by the Receiver for the strike out was it had been understood that Akhtar Hussain had not mentioned any interest in Skipton Road in his confiscation proceedings, or more to the point it had not been found to be his asset in the confiscation proceedings, and that resulted in the statement of Mr Lakha QC and the statement by the third party solicitor which provided that document that Akhtar Hussain had produced in confiscation. So the Receiver did not proceed with the application to strike out on that basis.
174. Those were really the four matters. Also, the Receiver that the time did apply for the court to disregard some of the witness statements. There were some statements which did not appear to genuinely go to any of the issues in the case, and at that time the court ruled that three witness statements should not be relied on during the course of that trial.
175. The costs of that are in dispute and as I have said, for the reasons I would submit, even though the claims were not struck out, it is clear that the court has accepted that the legal basis was such that even on the evidence they give their claims could not survive, certain not against the defendants the claims could not succeed.
176. MRS JUSTICE DOBBS: What was the test before the court?
177. MISS CASSIDY: The way in which it was put to the court was that it was said on behalf of the Receiver
178. MRS JUSTICE DOBBS: Yes, what was the test the court it had to look at in relation to whether or not it struck it out?
179. MISS CASSIDY: Even if the claim was taken at its highest, whether or not they could succeed. It is actually set out in our skeleton arguments, which was the very beginning of bundle 3. If I might step down for a second.
180. MRS JUSTICE DOBBS: What does the court say, that is what I am asking?
181. MISS CASSIDY: The court decided on that occasion, and I am afraid I paraphrase somewhat, the solicitor for the third parties was there as well, the court considered that there was a prospect that in the fullness of the evidence although he did express some views that the claims were not at all strong and were very weak that because of the claims, because there was a prospect that the evidence might be such that the claims would in fact be accepted. It had been suggested I will be contradicted I am sure if my recollection is wrong for example that there might be evidence that Shaheen Bi's name was not on anything because she would not be able to borrow money, although her actual evidence did not come to that.
182. MRS JUSTICE DOBBS: All right. So you are asking for costs of receiver's costs to be paid
183. MISS CASSIDY: By the third parties.
184. MRS JUSTICE DOBBS: by the third parties to be assessed if not agreed.
185. MISS CASSIDY: To be assessed if not agreed and in particular in relation to Khadim Hussain on the indemnity basis, given it was pointed out in June 2011 that he had great difficulties given the documentary evidence and the statements so far. I would also ask that the court order that those costs be paid, or that the third parties be liable on a joint and several basis, and I have provided my learned friend with a copy.
186. MRS JUSTICE DOBBS: I have seen that, yes.
187. MISS CASSIDY: Yes. In the case of Bairstow, and effectively the court's consideration of that is at paragraphs 22 and 23 of that judgment. At paragraph 19 it was pointed out on behalf of those claimants
188. MRS JUSTICE DOBBS: Wait.
189. MISS CASSIDY: I am sorry.
190. MRS JUSTICE DOBBS: Yes what are you saying in relation to this case?
191. MISS CASSIDY: I would submit that this is a case in which very much the way these cases were presented was as a joint enterprise. Each of the witnesses, each of the parties did support the other claims and the court noted that most of the witness statements that the claimants gave were not simply in relation to their separate claim, they all supported the evidence given by the other parties as well. This was something which they had prepared their statements overall on 15 and 16 June. Many of those statements had almost identical paragraphs in them. They had sole representation and in my submission their claims were presented very much on a joint basis. Indeed, the court heard many submissions about how the parties were working together, how they pulled together as a family and all of that, but also in the way this case was presented, it was presented as a joint matter with each of the parties supporting the others. In my submission it would not be right to say that they were completely separate claims which the court happened to hear together for convenience. Each of the claimants' evidence did run into the other claimants as well and many of them gave evidence on behalf of the other claims as well as their own. The court also considered that they had to a degree discussed their evidence in relation to those claims and in those circumstances I would submit the position very much mirrors that which is set out in paragraphs 22 and 23 of the judgment in Bairstow where the parties, claimants, effectively working together to bring the claims and in those circumstances I submit it is right that the court order that they be liable as well as severally.
192. MRS JUSTICE DOBBS: How realistically could it be broken down?
193. MISS CASSIDY: My Lady, this is of course one of the issues will be in terms of looking at which costs, how much of the costs were spent on each of the claims. There is an arbitrary element to this in any event, but of course as regards how much each of the claimants had involvement in each other's claims there is a relevance as well, because Akhtar Hussain and Shaheen Bi were entirely linked to each but Akhtar gave evidence in relation to Stonehaven Court.
194. MRS JUSTICE DOBBS: There is overlap in relation to nearly all of them.
195. MISS CASSIDY: Exactly. That is my point.
196. MRS JUSTICE DOBBS: Even the youngsters, although they say a lot of what they got was very recently or later on, they then still refer to what their understandings were.
197. MISS CASSIDY: That is exactly my point. My submission is that these were very much brought as joint claims by these parties supporting each other.
198. MRS JUSTICE DOBBS: Yes Mr Coghill Smith.
199. MISS COGHILL-SMITH: My Lady, if I may take it in stages starting with the draft order.
200. MRS JUSTICE DOBBS: Yes.
201. MISS COGHILL-SMITH: There is no issue with the draft order save and except that I would ask for a default date to be inserted for the Receiver's powers to sell, and I am asking the court to insert a default date for 8 weeks. The reason for that is that all of these properties, as my Lady knows, are occupied by families, and by that I mean wives and husbands and children.
202. MRS JUSTICE DOBBS: I know perfectly what the position is in relation to the properties.
203. MISS COGHILL-SMITH: Yes. In those circumstances the family, each family is going to attempt to buy out Mr Ali's interest in that house and in the event that they are unable to raise that money in the short time period that I am asking for the Receiver's powers to sell will be triggered regardless and it will also give the families a little bit of time to gather themselves, move out of the homes and find alternative accommodation in what can be described as a seemly manner, in what would otherwise be a hasty scramble, for what will be of necessity County Council housing. This honourable court will be familiar with the fact County Council housing I don't know if that is the right expression but we know what I mean.
204. MRS JUSTICE DOBBS: Local authority.
205. MISS COGHILL-SMITH: County Court housing is going to be a long time forthcoming. In the circumstances when we have school age children, whose interests are going to be severely hampered by a hasty scramble to move and live in private dwellings prior to the assistance of the County Council, the longer that can be given to do that the better. But the primary motive the family do want a period of time to see if some money can be raised to buy out some if not all of Liaquat Ali's interests. In the properties as they have been found to be today and it is only fair that they were entitled to assume until judgment in the matter that they had an interest and they have not taken preemptive steps to move out before today. I don't think that would have been expected of them. The Receiver, if he commences down a route of immediate sale, will of course incur considerable cost, all of which will be taken out if of the received amount and the confiscation order and it will cost a significant amount to pursue orders for sale in relation to this number of properties. That might be possible to avoid that in the circumstances of this case. I would like to ask for more, but I am being realistic and I am asking for 8 weeks.
206. Moving then to the question of costs, it is accepted that the amount of the Receiver's costs and disbursements that relate to Tazeem Akhtar are not to be pursued as anything other than costs in the receivership. If it is right then that those costs can be identified by the Receiver and those who he has instructed to represent him, then in my respectful submission it is also possible for the Receiver to identify the costs that he has incurred in relation and his solicitors to each and every claimant in this case.
207. MRS JUSTICE DOBBS: That is a bit difficult, is it not, because all of them cover all the properties, pretty well, don't they? Khadim is I cannot remember, does he cover any other properties apart from the one he said was his?
208. MISS COGHILL-SMITH: Khadim Hussain, well, he claimed Plover Street.
209. MRS JUSTICE DOBBS: Yes, I am just trying to remember whether his statement covered the rest of the properties, because nearly all of the other properties overlap and they all deal with their understanding and/or knowledge. Just for the moment I have forgotten
210. MISS COGHILL-SMITH: My Lady, my submission is that in fact each and every one of these claims could have been litigated on a separate footing if it had been the case that each claimant had brought their claim at different stages throughout the relatively long history of either the restraint proceedings or the receivership proceedings that led to enforcement.
211. MRS JUSTICE DOBBS: That may be right, but they did not.
212. MISS COGHILL-SMITH: They did not in the end, because
213. MRS JUSTICE DOBBS: They did not and there is overlap between the them. That is the fact of the matter even if they had been brought separately. They have not been and the evidence covers all the properties.
214. MISS COGHILL-SMITH: But my Lady, the problem for the family is that of course the nexus for each of these, as my Lady rightly identified, is Liaquat Ali and the restraint proceedings, so there is an overriding court convenience that all of the claims should be heard together and as family members who have had variously either dealings with Liaquat Ali or variously pooled their resources for each other it is only right that they would give evidence in support of each other's claims, or not as it turned out to be. Whatever evidence they were capable of giving on certain issues that would be the right thing for them do and it was certainly part of court management and case management that would list all of the claims to be heard together. But Khadim Hussain, for example, could have been litigated separately and he would have taken half a day in relation to a claim of Plover Street. I am slightly guessing because I was not instructed, but roughly speaking it could have been dealt with in half a day.
215. MRS JUSTICE DOBBS: What we have is the solicitors putting forward the claims of all of the properties save for two, but saying that the other two would follow. The claims in relation to the other two. In effect what they were saying is we are bringing all of these claims together. As it happens they did not do anything about the second claim, until nudged to do so by the court. But that is, from my recollection of the evidence, the way it was going to be; they were all going to claim together on all of the properties. So I am not sure I am persuaded about well they could have done them separately and started them off at this time or that time. The fact of the matter is that it was presented to the Receiver as claims from all of them.
216. MISS COGHILL-SMITH: My Lady, I still pursue the idea that that is a question of the Receiver and the courts and the parties' convenience and that should not then
217. MRS JUSTICE DOBBS: That was before the court was engaged, was it not, because that was in March 2010. Then the court was involved, was it in June 2010? But the intimations has been given that there were other claims that would go with the claims that had been made. The material would be forthcoming by December and in fact it was not. So that is the way it was presented and it was not the court that was presenting it in that way, it was the solicitor writing to the Receiver to tell the Receiver that.
218. MISS COGHILL-SMITH: Yes, but done on the basis that that is the most efficient and effective way of litigating claims that have one nexus, which is, or two nexuses, which is the restraint proceedings in relation to one defendant and one receiver, because that convenience does not grasp the nettle of the paragraphs that have been referred to by my learned friend in the case of Bairstow and in those paragraphs, when we look at them in more detail, paragraph 22 sets out that there was in effect a conspiracy to place mislead the court which amounted to an abuse of process between all of them. Save insofar as Mr Hersey was concerned when he went into the witness box. Mr Hersey, of course, was not made subject to a jointly and severally liable claim. My Lady, I appreciate that the judgment you laid down this morning identified that there was a significant amount of inconsistencies and discrepancies and Mr Liaquat Ali was found to be an incredible witness, but that is not the same as going so far as to describe it as in effect a conspiracy to mislead the court which amounted to an abuse of process between all of them. If that had been this court's findings in relation to such a serious allegation I have no doubt that that would have been made abundantly plain to the parties.
219. MRS JUSTICE DOBBS: What are you saying that the Receiver could properly, in broad terms, apportion?
220. MISS COGHILL-SMITH: In broad terms, yes.
221. MRS JUSTICE DOBBS: I know it is the Receiver's costs, but in terms of how you see the case, what are you saying would be a fair apportionment?
222. MISS COGHILL-SMITH: A fair apportionment would be in relation to - - can I just turn my back on the court for one moment?
223. MRS JUSTICE DOBBS: Yes, certainly.
224. MISS COGHILL-SMITH: I have taken some instructions on the way it could be apportioned between the parties, but my primary submission is that the apportionment could be dealt with once the detailed assessment has assessed the amount payable. I will come back to the apportionment in a moment, but my next submission relates to the issue of the strike out costs. For example, my understanding is that Khadim Hussain did not face an application to strike out. His claim that was litigated on
225. MRS JUSTICE DOBBS: Sorry, I am not with you.
226. MISS COGHILL-SMITH: Khadim Hussain.
227. MRS JUSTICE DOBBS: Yes, did not?
228. MISS COGHILL-SMITH: Face an application to strike out his claim. But on a jointly and severally liable costs order, on the current basis he would be facing to be jointly and severally liable to something on the basis of £23,000 of strike out costs. That in itself highlights how the injustice could operate but also how in practical terms the apportionment can be identified but with a little effort from both the Receiver, his solicitors, and of course those instructing myself can assist in that. Those instructing me have identified their own costs in relation to each individual claimant by simply keeping a time recording sheet as solicitors always do which identifies who they are working on behalf of at any given moment in time. That gives at least a broad apportionment idea in relation to the overall costs.
229. In relation to the strike out costs, my primary submission is that the strike out costs should be costs in the receivership. They should be costs in the receivership because the Receiver brought an application to strike out claims which he lost, and although my learned friend puts much emphasis on the fact that to a greater or lesser extent the parties have now lost in this court, the court is no the sitting as a Court of Appeal in relation to the strike out judgment, the strike out judgment was on the basis that they have an arguable case and that was found in their favour and not in the Receiver's favour. To say that the claims were unarguable should be borne as cost in the receivership.
230. At the moment the figures we have been given in relation to the strike out costs is approximately £23,000. Now, on a detailed assessment of course, if the individual litigants are facing an apportionment order, or worse are jointly and severally liable order in relation to £23,000 worth of costs, they will of course have to engage in a detailed assessment about the nature of those costs on any analysis and how they have been accrued to that figure. If they are costs in the receivership my learned friend has impressed upon me she will pursue them costs to be assessed on an indemnity basis, but if they are costs in the receivership, absent the difficulties that might arise in relation to the Receiver's lien over all of the assets he is appointed over, the reality is that the costs in the receivership will not impact on the facts of this case, on the figures involved in this case, ought not to the impact in any sense over the assets he simply asserts a lien rather than those which will be simply used to enforce a confiscation order. In that sense the detailed assessment will simply fall away. It is right that they should be cost in the receivership, because the Receiver did lose that application and it right also that the claimants went to considerable costs meeting the strike out claim of the Receiver. The costs of both parties would be substantially reduced if it were not for the fact that we had had to go to court on two separate occasions to succeed in arguing that the parties had an arguable case.
231. If I can just turn my back on the court for one moment?
232. MRS JUSTICE DOBBS: Yes.
233. MISS COGHILL-SMITH: I beg your pardon my Lady, in the circumstances my submissions in relation to the strike out costs is that they should be costs in the receivership because the parties were found to have an arguable case and that is the judgment of the court. Whilst they are reserved for this court to consider, the right and proper conclusion is that they are costs in the receivership. The Receiver himself is entitled to be paid and he will be paid as costs in the receivership. So there is no prejudice to the Receiver; it is not a classic scenario where one party is paying the other party's costs. The Receiver will only ever recover his costs in this case from the assets over which he is appointed. In the circumstances the impact of those costs will be removed from the families and they are entitled to expect that if they oppose an application to strike out successfully, that they will not then find that they are jointly and severally or individually liable for a bill in relation to that strike out application in the sum of £23,000. They should be ordinarily entitled to that in the same way that the Receiver relies on his ordinary entitlement to a costs order against the applicants on the basis that ultimately the litigation has been brought by them and lost by them.
234. MRS JUSTICE DOBBS: And again, you said you - - I thought you were going to take instructions about general apportionment, or do you want to hold fire on that point?
235. MISS COGHILL-SMITH: Those who instruct me are very confident they we will be able to agree some sort of apportionment figure or apportionment arrangement between the Receiver and those who sit behind me. The actual amounts may be disputed, but the apportionment in relation to who would be likely to pay what is probably capable of consensus or resolution between the the parties and I would crave a certain amount of time to work out the best way that that should be done between them. There is, I rightly accept, overlap between some of the parties in the way that the evidence was given, but not sufficiently so that there is not a demarcation between the claims that were brought and the claims were brought in relation to very different assets, so although one party might say that in his recollection so and so is right in what they say, there are five distinct properties which were the subject of the claims themselves and there was no overlap in relation to the claimants' claiming the assets.
236. MRS JUSTICE DOBBS: Effectively you are saying, as I understand it, that although each applicant may talk about their understanding of the other properties, that does not incur additional work; it is essentially the applicants who are dealing with their on own properties that incurs the work, because they don't say anything over and above what has already been said and needs to be investigated.
237. MISS COGHILL-SMITH: Yes and the claims can be seen in relation to the distinct properties.
238. MRS JUSTICE DOBBS: Yes, I am putting it in a different way but that is my understanding of what you are saying.
239. MISS COGHILL-SMITH: Yes.
240. MRS JUSTICE DOBBS: Okay. So what are you saying the proper order should be, then, in relation to costs?
241. MISS COGHILL-SMITH: There should not be an order for jointly and severally liable costs.
242. MRS JUSTICE DOBBS: Just costs to be paid by the applicant.
243. MISS COGHILL-SMITH: On a standard basis to be assessed if not agreed. Certainly on the figures we have been given there will be an assessment.
244. MRS JUSTICE DOBBS: I am sure there will be.
245. MISS COGHILL-SMITH: Yes and also that costs in relation to the strike out claims which are identified separately by the Receiver, those costs should not be costs against the applicant, they should be costs in the receivership.
246. MRS JUSTICE DOBBS: Yes.
247. MISS COGHILL-SMITH: And that will have the effect of reducing the overall claim to approximately £70,000.
248. MRS JUSTICE DOBBS: Yes.
249. MISS COGHILL-SMITH: In relation to jointly and severally liable, my Lady, I do urge the point that we are not dealing with a conspiracy to abuse the court's process.
250. MRS JUSTICE DOBBS: I have that, yes.
251. MISS COGHILL-SMITH: I am grateful. Is there anything further with which I can assist?
252. MRS JUSTICE DOBBS: No, not at the moment.
253. MISS CASSIDY: My Lady can I come back briefly on two of those points? Firstly in relation to the timings, the parties all knew as of 2008 that the confiscation order had been made that included these properties, so to suggest today that the parties did not accept the evidence given about the true ownership, they have been aware of the position. I appreciate the court's sympathy has been invoked to an extent about the fact of the families in the properties, but Plover Street we are told lies empty; there is no family to move out. Lilycroft Road is a business asset and nobody lives there. But there has been a huge amount of delay in the Receiver exercising his powers. If it is going to take time in any event for the properties to be sold and if in the meantime the families are going to come to the Receiver with a sensible offer, of course the Receiver will be considering any offers put to him in relation to the that. But there should not be a 8 week delay before the Receiver can even start exercising his powers, which is what is sought.
254. The second submission I would make is in relation to the the joint and several liability point. I think my reading is slightly different to my learned friend's at paragraph 22. To me that seems to be what is put on behalf of the claimant for costs. There was in effect a conspiracy.
255. At 23 what is said by the court is that there was considerable force in the submission (inaudible) false case to be untrue. Each knew they would be supporting and considering not only their own case but also that of the other claimants. During the course of the trial they clearly acted together in a coordinated manner in order to pursue their false claims. It is not actually the court made a finding of a particular conspiracy.
256. MRS JUSTICE DOBBS: When you read the rest of it, coordinated conspiracy probably arose by any other name.
257. MISS CASSIDY: But certainly, my Lady, in terms of this claim when the parties have gone as far as to even make identical mistakes which they claim was coincidence, such as the infamous £3,995, it is quite clear there is an element of coordination in relation to the evidence they gave.
258. If I can assist my Lady, I don't think Khadim, certainly not in his first statement at tab 24, gives evidence about the other wider properties.
259. MRS JUSTICE DOBBS: That is what I thought.
260. MISS CASSIDY: His is in relation to Plover Street. Certainly in that statement, I have not looked up his second statement.
261. MRS JUSTICE DOBBS: If he did say anything it was very little.
262. MISS CASSIDY: Exactly. The others, of course, all did give much more substantial evidence and in particular in relation to for example Stonehaven Court and Skipton Road. The claims were in fact brought as either one has or both has or possibly the other has in relation to Stonehaven, and it could not possibly be said it was separate.
263. MRS JUSTICE DOBBS: That may be, but in one sense the basic propositions don't change.
264. MISS CASSIDY: But they all supported; each one came to support.
265. MRS JUSTICE DOBBS: I have that.
266. MISS CASSIDY: Yes. And I suppose really the way in which many of the claims were put was to simply say anyone but Mr Ali seems to be the way they were dealt with by those parties.
267. Finally as to the terminology of the order, the court may say see that in the draft my suggestion was that the wording be such costs, at paragraphs 4, the court may rule, of course, make a decision as to what extent the third parties are to pay those costs. For five I would submit that that should certainly stay, particularly where it says any costs should be paid by the receivership directly or if there is to be an assessment, because the Receiver nonetheless is entitled to be paid or assess as to how much the third parties have.
268. MRS JUSTICE DOBBS: There it is no dispute about that, all that is being said is that in relation to the strike out the court should make a separate order saying the costs of the strike out are to be costs in the receivership.
269. MISS CASSIDY: My Lady, I have made my points in relation to that.
270. MRS JUSTICE DOBBS: I have got it.
271. MISS CASSIDY: Yes. Was there any other matter?
272. MRS JUSTICE DOBBS: No, thank you very much. Counsel Miss Cassidy has kindly prepared a draft order resulting from the outcome of the proceedings in this case. The first issue that arises for resolution between the parties is whether or not the powers of the Receiver should be re engaged or implemented as of today, or as has been submitted by Miss Coghill Smith, at a period 8 weeks hence. The reason for that application is that it is said that the applicants will be attempting to buy out Mr Ali's interests in the various properties but will need time to - - if they are unable to do so - - move out in a seemly manner, and particularly bearing in mind that there are school age children who will be affected. Bearing in mind how long it would take for local authority housing to be obtained, the applicant ask for the Receiver's powers to be implemented 8 weeks hence.
273. Miss Cassidy on behalf of the Receiver says they have had long enough; this has been going on since 2010 and the Receiver's powers should be put into effect as from today.
274. I have considered the matter. It may well be and it is correct that this has been going on for some time. It is right that the applicants have lost, but it is also right that no doubt they hoped they might have some measure of success given, in particular in relation to the strike out applications, that the court had found that they were arguable. It is always difficult to plan ahead in something like this which involves moving from, possibly, a home that one has occupied for many years.
275. It seems to me that the liquidator has waited a long time, but another 8 weeks in my judgment will not seriously prejudice the liquidator, not least because if the family are able to raise the money for some or all of the properties, it will save considerable costs which will therefore not be wasted and can be properly applied to the confiscation order.
276. Therefore the draft order will be amended to indicate that the Receiver's powers will be effective as of a date 8 weeks on Friday, whatever that date may be.
277. The second issue between the parties is that Miss Coghill Smith submits that the costs of the strike out application should be costs in the receivership, because the relevant applicants won and the Receiver lost, the court having declined to strike the claims out.
278. Miss Cassidy on behalf of the Receiver relied on the fact that this court has made the findings that it has and found the applications to be without merit and also that during the strike out application there was also an application that certain witness statements should not be relied on, which was struck out. But her main point is that this court has accepted that the claims cannot survive. Although the court found that the claims were arguable, it was not with some enthusiasm, is the effect of Miss Cassidy's submissions.
279. It seems to me that the normal application should apply. The normal application by the Receiver to strike out was unsuccessful and therefore the costs involved in the strike out which has been identified in the short summary of costs that I have are properly identifiable and they should be costs in the receivership. The Receiver is not prejudiced by this; he is going to get his costs.
280. This leaves the question about whether the costs order should be paid by the applicant on a standard basis to be assessed if not agreed. There is no doubt that there will be assessment in this case in the light of the figure for costs that are claimed. Miss Cassidy relies on the case of Bairstow v Queen's Moat PLC & Ors, Marcus & Ors v Queen's Moat Houses PLC [2000] AER, Digest 548, the decision of Nelson J on 14 April 2000, where he makes an order for costs that the claimants in the case be jointly and severally liable for costs, common to each of the actions. Emphasis and reliance is placed on paragraphs 22 and 23 of that decision where in 22 there is reference to the submission made by the Queen's Moat Houses that there was a conspiracy by the claimants acting together to mislead the court which amounted to an abuse of the process between all of them, save insofar as one witness is concerned.
281. At paragraph 23 the judge found considerable force in the submission and found that the claimants had clearly acted together in a coordinated manner in order to pursue their false claims. That seems to me a conspiracy by any other name.
282. Miss Coghill Smith submits that this is not a case that is on all fours with the Queen's Moat case, because this court has not made such a finding in the judgment. Had the court gone as far as making such a finding that would be a different matter, but the court has found essentially that there was a significant degree of inconsistency between the witnesses and as a result their evidence was not found to be credible and she submits it is not the same thing as saying it is a conspiracy to mislead the court, which amounted to an abuse of the process.
283. Moreover, she submits that the costs can properly be in general terms quantified; that her solicitor would be willing to assist as to a broad apportionment of costs based on the work that the solicitor has done in relation to each claim; that the claims were brought together not so much by way of conspiracy as has been suggested but were brought together for the convenience of case management and the court and that indeed they could have been brought separately at different times if required, despite the overlap in the witnesses' evidence that they give about other properties, not ones the subject matter of their application. They are five distinct properties, it is pointed out, and significant additional work could not have been required as a result of what the other witnesses and applicants were saying about properties with which they are not concerned.
284. It seems to me that first of all the court did not go to the extent of saying that this was a conspiracy which amounted to an abuse of the process. It is quite clear in the case, for instance, of Mr Khadim Hussain that his case was really dealing with the property to which he was concerned, 6 Plover Street, and nothing more. It would be unfortunate if he were to be fixed with an apportionment by the joint and several order that was disproportionally excessive to the actual costs that were incurred in relation to his case. It seems to me that in general terms as a matter of principle that would be incorrect. I give that as an example; there may be other examples that one can draw from the evidence.
285. It follows that standing back and looking at the matter in my judgment the fairest order is that the applicants are to pay the costs of the Receiver on a standard basis to be assessed if not agreed.
286. Is there anything else I need to deal with?
287. MISS CASSIDY: My Lady, just to clarify on the costs, it will be that the claimants are to pay the costs of the Receiver on a standard basis to be assessed if not agreed?
288. MRS JUSTICE DOBBS: Yes.
289. MISS CASSIDY: Save that.
290. MRS JUSTICE DOBBS: Save that, yes.
291. MISS CASSIDY: The Receiver's costs of the strike out application are to be costs in the receivership as far as the costs of the Receiver are not recoverable, so in any assessment the Receiver still gets paid. It will also be the Receiver's costs in relation to Tazeem Akhtar's application for 50 per cent is agreed will be costs in the receivership as well. That was just in relation to the 50
292. MRS JUSTICE DOBBS: I had forgotten. I focused, of course, on the addition bit.
293. MISS CASSIDY: On the issues.
294. MRS JUSTICE DOBBS: That is right.
295. MISS CASSIDY: That as well. That in the strike out will be Receiver's costs in the receivership and anything else not recovered, otherwise third parties pay the Receiver's costs.
296. MRS JUSTICE DOBBS: That is it.
297. MISS CASSIDY: Paragraph 6 will come out. That was in the event any of the third parties were successful.
298. MRS JUSTICE DOBBS: It would be helpful, Miss Cassidy, if you get the amended document back to the court as soon as possible, because I won't be here from some time this afternoon. If it can be sent as soon as possible I will deal with it.
299. MISS CASSIDY: My Lady, I have it a conference just after lunchtime, but I will to get it sent over. If my learned friend does not mind I can send it in parallel to the court and my learned friend, and perhaps she can give comments to both at the same time, I will be online.
300. MRS JUSTICE DOBBS: Can it be done before 3.30? I have to leave at 3.30 because I have a meeting.
301. MISS CASSIDY: I can certainly send in the draft, but the point is from 3 o'clock I won't be around to respond if my learned friend has any points on it.
302. MRS JUSTICE DOBBS: You have heard what has been said.
303. MISS COGHILL-SMITH: I have. I don't think the amendments are so substantial that they are going to cause me any difficulties.
304. MRS JUSTICE DOBBS: I would not have thought so.
305. MISS COGHILL-SMITH: Unless something happens in the drafting that is unforeseen.
306. MRS JUSTICE DOBBS: I am sure Miss Cassidy seems have expressed it quite clearly.
307. MISS COGHILL-SMITH: Yes, the amendments are not substantial.
308. MRS JUSTICE DOBBS: If you can rush back and knock it out quickly it would be helpful, because the original cannot get to me to be signed unless I get it shortly. Otherwise it can wait until next week but it would be preferable if we can deal with it today so it does not get lost in the system, if you don't mind. All right. Can I leave that with you. Thank you both for your help.
309. MISS COGHILL-SMITH: I am grateful for the court for sitting late.
310. MRS JUSTICE DOBBS: Say thank you to the court staff rather than me.
311. MISS COGHILL-SMITH: I am very grateful to the court staff.