England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		28 April 2009

The Deputy Judge

Introduction

1. Before me is an application by the First Respondent, Mr Haghighat. In terms the nature and grounds of his application, set out in his application notice issued on 9 February 2009, are said to be "in relation to the Orders made relating to costs and error in judgment as His Honourable Judge was tricked by the Applicant".
2. The application is supported, and further explained, by a document dated 5 February 2009 and signed by Mr Haghighat with a truth statement. This document is captioned "Application notice regarding fraud committed by the Applicant by not submitting my documents especially the affidavit". Attached to this are the Extra Documents, referred to below. In addition, starting almost as if forming part of the Extra Documents, are attachments numbered 30 to 51 (attachments numbered 1 to 29 being referred to in and apparently attachments to the unsworn affidavit comprised in the Extra Documents).
3. To understand the application reference should be made to the judgments I handed down on 2 December 2008 and 12 January 2009. On 1 and 2 December 2008 I had to try the claim of the Applicant trustee in bankruptcy for possession of a flat, 82 Eamont Court, London NW8 7DN ("the Property"), where Mr Haghighat at present lives with his wife (the Second Respondent) and his family.
4. In summary, on 1 December 2008 I dealt with a preliminary issue. This is whether it is open to the Respondents to argue that the Property belongs beneficially to the Second Respondent and has therefore not become vested in the Claimant as Mr Haghighat's trustee in bankruptcy. For reasons explained in my first judgment I held that it was not open to the Respondents so to argue in the face of a judgment given by His Honour Judge Cowell on 16 May 2000. Specifically, my conclusion rested on two grounds. One was that it would be an abuse of the Court's process for the Respondents now to advance that argument. Secondly, I held that the judgment of HH Judge Cowell gave raise to an estoppel by record.
5. I should perhaps add that before me it was sought to be argued that by a written declaration of trust made in 1995 by Mr Haghighat the beneficial interest in the Property had been disposed of by him in favour of his wife. The original of the relevant document ("the 1995 Declaration of Trust") has not been produced.
6. The proceedings before HH Judge Cowell and his judgment ("the Judgment") are summarised at paragraphs 7 and 8 of my first judgment. Critically in proceedings to which Mr Haghighat and his wife were both parties the Judge had rejected their claim that there had been any effective disposition of the beneficial interest in the Property from Mr Haghighat to his wife before 1999 and had set aside under section 423 of the Insolvency Act 1986 a disposition of the beneficial interest of the property in his wife's favour made by Mr Haghighat in 1999 by a written declaration of trust; and he made absolute a charging order over the Property in favour of judgment creditors of Mr Haghighat's.
7. As a consequence of the Judgment the register for the Property with the Land Registry shows Mr Haghighat to be the registered owner with title absolute, the Property being subject to an equitable charge created by an order absolute made by Central London County Court on 16 May 2000. And, as a consequence of Mr Haghighat's subsequent bankruptcy, there is a bankruptcy inhibition recorded: at present the beneficial interest in the Property is vested in the Applicant as Mr Haghighat's trustee in bankruptcy. It is this position that Mr Haghighat now seeks to challenge, and that he and his wife were in the proceedings last December seeking to challenge.
8. At the conclusion of the hearing on the preliminary issue I decided that it was not open to Mr Haghighat or his wife to seek in the proceedings to assert in reliance on the 1995 Declaration of Trust that the beneficial interest in the Property belongs to Mrs Haghighat, as to do so would be a misuse of the court's process on the principle established in Henderson v Henderson (1843) 3 Hare 100; and I also concluded that there was an estoppel by record which precluded the argument.
9. On 2 December 2008 I heard the substance of the Applicant's application. As I explained in my second judgment, Mr Haghighat had not been present in court during the course of the hearing on 1 December 2008, which had proceeded in his absence. On 2 December 2008, however, Mr Haghighat sought to have the preliminary issue re-opened. This I refused for reasons explained in my second judgment. I will return to this later in this judgment.
10. On 12 January 2009 I handed down my second judgment: I decided that the possession order requested by the Claimant should be made but with a three-year delay. This delay was because of the exceptional circumstances discussed in my second judgment. I also ordered that the Respondents should pay the Claimant's agreed or assessed costs, but with a stay on the order so far as concerned the Second Respondent, who had been legally aided.
11. At the hearing on 12 January 2009 Mr Haghighat was present without an interpreter. At an early stage of the hearing he told me that without an interpreter he did not understand what was being said. I therefore gave him permission to make within 28 days an application, if he thought fit, to have a rehearing of decision made on 12 January 2009 concerning costs.
12. So much of Mr Haghighat's present application as concerns costs is, I understand, an application under that permission. No point has been taken by the Applicant that the application has been made well after the end of the 28 day period.
13. The remainder of his application is, however, for a rehearing of the preliminary issue dealt with in my first judgment and for a rehearing of the substance of the case dealt with in my second judgment. The grounds of this I shall need to explain in more detail.
14. However it is relevant to note that by an Appellant's notice filed on 2 March 2009, out of time that is for appealing, Mr Haghighat has applied to the Court of Appeal for permission to appeal against my judgment on the preliminary issue and, it may be, my decision of 2 December 2008 to refuse his application for a rehearing of the preliminary issue. It may also be that he is seeking to appeal out of time against the substance of my decision on the Claimant's application, and against my decision on costs.
15. No suggestion has been made to me that the pending application to the Court of Appeal should have any bearing on the approach I should take towards Mr Haghighat's present application before me, despite the fact that the application to the Court of Appeal appears to be based on similar grounds to those relied upon in the application before me, and despite the fact that a decision in Mr Haghighat's favour on the application before me could render pointless much, if not all, of his application to the Court of Appeal.

The application for a rehearing

16. On 2 December 2008 there would have been jurisdiction to direct a rehearing of the preliminary issue. This could have been under CPR Part 39.3 or under section 375(1) of the Insolvency Act 1986. While this court no longer has jurisdiction under CPR Part 39.3, whether in relation to my decision on the preliminary issue or in relation to my refusal to direct a rehearing, it being for the Court of Appeal to review my decisions on those matters (assuming permission to appeal out of time is granted by the Court of Appeal), nevertheless section 375(1) of the Insolvency Act 1986 remains in point. The jurisdiction under section 375(1) is also available in the case of my substantive determination of the Applicant's possession application given in my second judgment.
17. As regards the applicable principles on an application under section 375(1) I was referred to the helpful guidance given by Laddie J in Papanicola (as trustee in bankruptcy for Mak) v Humphreys [2005] 1 All ER 418. At paragraph [25] of his judgment he set out several propositions, and in the following paragraphs he expanded on a couple of these. I will not repeat these. But, as applied in the present case, Mr Haghighat must demonstrate that there are exceptional circumstances to justify my exercising in his favour the discretion given by section 375(1). The circumstances must involve a material difference to what was before me when I made my original order; but there is no limit to the factors which may be taken into account. Those factors may, in particular, consist of or include new evidence which was not before me; but in the case of new evidence it would be relevant to know the explanation for the evidence not having been before me.
18. I would add that in my judgment for Mr Haghighat to obtain a rehearing he must also show that there is a realistic prospect of the rehearing having a different outcome from the original hearing.
19. The points made by Mr Haghighat, and relied upon as justifying the exercise of the section 375(1) discretion in his favour, are as follows.
20. First, he says that the reason why he was not present in court on 1 December 2008, when the preliminary issue was being argued was because he had been sent away by Mr Robson, his wife's Counsel. This he describes as follows: "I came to the hearing on Monday 1^st December 2008 at 9.30am with a big case consisting of 6 files that was very heavy. I also arranged fro (sic) an interpreter in advance who came to court. There was another interpreter for Ms Nasrin Darabadi [the Second Respondent]. It was around 10.20 when Mr Robinson (sic) came to my interpreter and said that as the hearing was not mine I should not attend the court, but Ms Nasrin Darabadi should attend the hearing. He said that we always leave our wives at home by force. He told me that I should go quickly home by taxi and send Ms Darabadi by taxi to court as quick as possible. The solicitor told Ms Darabadi not to come to the hearing on Monday, but that solicitor sends an interpreter to court. Why did Mr Robison (sic) ask me to leave the court as soon as possible and lied to court by saying that I left the court myself? I paid interpreter's fee for full day on Monday 1^st December 2008."
21. Second, he makes the point that before the court at the hearing on 1 December 2008 were material documents relevant to and supporting his and his wife's case on the question which I had decided on the preliminary issue, documents which could and should have been considered on that question but which were not. As to this, his contention is that these documents were in the six files referred to in the extract from his evidence quoted above, these six files having been the same as six files which previously he had provided to the court and to the Applicant's solicitors, Beachcroft LLP. He also says that he had sent his important documents to his wife's solicitors to take copies of; and that it was only after the hearing in January 2009 that he "realised that Mr Robinson (sic) did not use from a great deal my documents related to the Trust Deed during the hearing in order to use them against the Applicant" and "cannot understand why Mr Robinson did not use any of my documents in the hearing…".
22. The most material of the omitted documents accompany Mr Haghighat's application notice and supporting statement referred to in the second paragraph of this judgment. These ("the Extra Documents") I describe in some detail later.
23. Third, Mr Haghighat complains that not having seen the hearing bundle in advance of the December 2008 hearing, and not having it when present in court, he was unable to address argument on the statement of affairs put forward by the Applicant in relation to his bankruptcy. Specifically, as I understand it, he says that facts set out in paragraph 8 of my second judgment are wrong. On this basis it is said that I should review my second judgment.
24. I deal with the three arguments in the same order as set out above.

Mr Haghighat's absence from court on 1 December 2008

25. As it was explained to me on 2 December 2008, I thought that Mr Haghighat's absence from court was a matter of choice made by him. Certainly there must have been a discussion between him and Mr Robson. But the purpose of his absence was to enable him to care for his child so that his wife could attend Court and give instructions to her advisers during the hearing. One particular matter on which, as Mr Robson has told me, he needed instructions was the material (a copy of the 1995 Declaration of Trust and Farsi language letter of 27 November 2008 from an Iranian lawyer) then just recently obtained from Iran and which I referred to in paragraphs 18 and 19 of my first judgment.
26. This point of Mr Robson's is, I think, confirmed by Mr Haghighat's statement in support of his application notice. He says that on 28 November 2008 (that is on the Friday before the hearing was to start) his wife had received email from his brother, Ahmad Haghighat, in Iran. According to Mr Haghighat, his brother "sent two emails, one was a letter from a solicitor and the second was Trust Deed dated 1995. As this Deed was attached to a solicitor's letter [my wife] had to take these email to her solicitor's officer. I sent this Trust Deed with some letters to my brother in Iran in 1995. My brother thought that the Trust Deed was very important, thus he went to the solicitor and sent it via email as attachment with a letter to [my wife]". (This last letter I understand to be the Farsi language letter of 27 November 2008 from the Iranian lawyer.) And he continues by asserting that his wife took the emails to her solicitor and asked her solicitor whether she need not be present in court on Monday 1 December, and that the solicitor agreed to this but told his wife to be present the following day.
27. Mr Haghighat is no stranger to litigation. He has attended many hearings. On his own showing, when he left court on 1 December 2008 he did so knowing that the hearing was going to continue in his absence: he left so that his wife could attend. He also knows how to apply for an adjournment or extra time for evidence: at earlier stages in these proceedings he made just such applications. But what he did not do was to ask the court for an adjournment so that he and his wife could both be present for the hearing. As his departure from court was just 10 minutes before the hearing time, it would not have been difficult to have waited the few minutes and then to have explained the problem. I really am not impressed by the explanation he has offered. He asserts that Mr Robson, his wife's Counsel lied to the court by saying that "I left the court myself". But, so far as I can see, Mr Haghighat did in fact leave the court of his own volition.
28. Accordingly, were there no other factors I would reject Mr Haghighat's application insofar as based on his absence from court on 1 December 2008. I therefore turn to consider whether there are other factors to impact on this conclusion.
29. Before doing so I would draw attention to a fact which confirms my view that Mr Haghighat's absence from court should be regarded as having been his own choice, the exercise being directed at obtaining for use at the hearing evidence which was at best pointless and at worst misleading, and which could have been available long before.
30. It is now plain that the copy of the 1995 Declaration of Trust was simply a copy which Mr Haghighat had himself provided to his brother at some previous time before Friday 28 November 2008 at the very latest. From what he says, he must have been involved in the process of obtaining the emails from his brother, and he must have known their content. But as there was already a copy of the 1995 Declaration of Trust before the court for the 1 December 2008 hearing – and on Mr Haghighat's case there were among the Extra Documents numerous copies of the 1995 Declaration of Trust before the court together with numerous materials dating from 1995 calculated to show that the document was then in existence - producing a further copy of the Declaration of Trust and the lawyer's letter in court on 1 December 2008 was pointless.
31. However the obvious purpose of the documents was to seek to give authenticity to the 1995 Declaration of Trust by suggesting, falsely, that the copy of the 1995 Declaration of Trust was a copy which had been obtained from the court in Iran, thus supporting the case that the original had been provided to the Iranian court in 1995 in connection with an attempt to obtain for Mr Haghighat permission to take a second wife: that is the inference suggested by the second paragraph of the Iranian lawyer's letter. As to this I note that when the material was produced before me it was not also said that the copy of the 1995 Declaration of Trust was a copy of a copy document sent by Mr Haghighat to his brother in 1995. What was in fact told to me is set out in paragraph 18 of my first judgment.

The Judgment

32. In relation to the proceedings before HH Judge Cowell I had before me, on the 1 December 2008 hearing, (a) a witness statement made by Mrs Haghighat on 23 December 1999; (b) Points of Claim dated 28 January 2000 from the Claimants; (c) Points of Defence of Mrs Haghighat dated 1 March 2000; (d) her Skeleton Argument dated 12 May 2000, and (e) the Judgment. Mrs Haghighat placed her case squarely on an oral agreement evidenced in correspondence, and subsequently evidenced by the 9 November 1999 Declaration of Trust or alternatively carried into effect by that instrument. The Claimants pleaded and relied upon Mr Haghighat's own letter of 8 November 1999, a letter which had pointed strongly to the fact that he had at the time regarded himself as beneficially the owner of the Property.
33. As I explained in my first judgment, HH Judge Cowell rejected the argument that there had been an effective disposition of the beneficial interest in the Property by Mr Haghighat before 9 November 1999, and he set aside the 9 November 1999 disposition. It was perfectly obvious, I should add, from the Claimants' Points of Claim that what was being said was that the 9 November 1999 Declaration of Trust was a transaction in fraud of creditors within section 423 of the Insolvency Act 1986, there having been no previous effective disposition of the beneficial interest; and they alleged that a reason there had been no such disposition was because there was no written and signed instrument to satisfy section 53(1)(b) of the Law of Property Act 1925.
34. Also as I explained in my first judgment, there was nothing to suggest that before HH Judge Cowell there had been any case advanced that the pre-November 1999 disposition had been made by a written instrument. Certainly Mrs Haghighat's evidence, pleading and skeleton argument had put forward an oral agreement or disposition, and had made no mention of the 1995 Declaration of Trust.
35. In the end the case being made at the 2008 hearing was that Mrs Haghighat had had no knowledge of the 1995 Declaration of Trust until after the hearing before HH Judge Cowell. This I pointed out in paragraph 15 of my first judgment. Nevertheless, it had seemed to me that, as I held, it would be a misuse of the court's process for Mrs Haghighat now to put forward a case based on the 1995 Declaration of Trust. Quite apart from numerous unanswered questions casting doubt on the authenticity of the 1995 Declaration of Trust (for example, the apparent inability of Mrs Haghighat's solicitor to trace the solicitor before whom the instrument had seemingly been sworn or executed, and the various other curious features referred to in my judgment), no adequate explanation was offered for the fact that no reliance had been placed on the 1995 Declaration of Trust at the hearing before HH Judge Cowell.

The Hearing bundles

36. For the trial on 1 and 2 December 2008 the Applicant's solicitors had prepared three hearing bundles. One of these contained what the index described as a witness statement of Mr Haghighat of 23 June 2006.
37. However the Skeleton Argument of the Applicant's Counsel, Ms Raquel Agnello, had explained in relation to this as follows: "The Debtor [that is Mr Haghighat] has filed a lengthy witness statement which is at [the relevant place in the three hearing bundles]. The Debtor seeks to deal with a variety of matters relating to the earlier proceedings as well as seeking in some way to challenge the judgment of HH … Judge Cowell. Along with his witness statement, the debtor served 6 files by way of exhibits. [Beachcroft] have not incorporated those exhibits as part of the bundles in this case. However copies of those files will be available at Court in the event the Court wishes to refer to them at any stage …"
38. In the course of her oral address to me on 1 December 2008 Ms Agnello drew my attention to the relevant part of the hearing bundle where the extract from Mr Haghighat's materials was to be found, and in particular to the few pages where Mr Haghighat gave his explanation concerning the 1995 Declaration of Trust. As Ms Agnello submitted at the time, the explanation was short of detail and did not offer any reason for the 1995 Declaration of Trust not having been relied on, or indeed referred to so far as could be told, at the trial before HH Judge Cowell.
39. In advance of the hearing I had read the extract from Mr Haghighat's materials contained in the hearing bundle, and considered Ms Agnello's submission to be correct. I had not looked at the six files; and I did not look at anything in them during the hearing.
40. During the course of 2006, in the earlier stages of this litigation, evidence was filed and served by the parties. It would appear that at some point there was some question about the filing and service of Mr Haghighat's six files of evidence, there being a suggestion that in fact Mr Haghighat had not filed and served evidence on 23 June 2006. At all events the court file contains a witness statement made by Mrs Haghighat on 14 September 2008 in which she said that "despite my husband having personally delivered to the Applicant's solicitors' office and having received confirmation from the secretary at the office that he had delivered lever arch files to them, the Applicant then alleged that they had not received any documents from my husband.
41. Also on the court file is a witness statement signed by Mr Haghighat and dated 15 September 2006 directed at this point, among various others. What he says in the statement is that on "on 23^rd June 2006 at 4.25pm, I took 6 files that contained 2176 pages to Beachcroft Wansbroughs Solicitors …. Those 6 files contained the followings: A) My witness statement. B) My reply to Louise Brittain statement. C) My reply to Melissa Ann Hope witness statement. D) My document and witness evidence." He says also that he obtained from Beachcroft a receipt for the six files, and that he had given the court copies of the six files and obtained a receipt.
42. Also contained in the court file is a bundle apparently provided by Mr Haghighat for a directions hearing in this case. In this bundle is a letter addressed to the Court Manager and apparently (from a date stamp) received on 4 August 2006. This describes in identical terms to that quoted in the previous paragraph what had been provided to Beachcroft on 23 June 2006. Enclosed with this letter are a variety of materials. These include what appears to be a copy of a letter to Beachcroft explaining that he "gave in 6 files today (23 June 2006) which includes the following" the following being listed in exactly the terms set out above at letters A to D, and identified as comprising 2176 pages. They also include what appears to be the first page of the "Witness statement of Hamid Haghighat" with both a stamping apparently of Beachcroft and another apparently of the court and showing the document to have been filed on 23 June 2006. This page starts with an "Introduction" and has two paragraphs with Roman numbering.
43. What I have not been told is when, according to the Applicant, the six files referred to in the Applicant's Skeleton were received, whether on 23 June 2006 or later. But I understood it to be the Applicant's position that only one set of six files had been received by Beachcroft.
44. Before me Mr Haghighat says that when the case came on for trial in December 2008 he was not provided with a copy of the hearing bundles, and therefore was not aware of the materials which were included in, and more importantly were excluded from, the bundles. He says that he only saw the hearing bundles for the first time when, after the hearing on 12 January 2009 and in response to a request by him they were provided by Beachcroft. Whether Mr Haghighat is right that he had not previously seen the bundles, and in particular had not seen them before the hearing in December 2008, I am not able to decide. I will assume in his favour that he is right on this point, while recording that Ms Agnello told me on instructions that, as I would have expected, he had been provided with a set of the hearing bundles shortly before the trial started in December.
45. I have now been provided for this hearing with what I am told by Ms Agnello on instructions are the six files provided by Mr Haghighat to Beachcroft and which were available in court for the hearing on 1 and 2 December 2008. These I have looked at carefully; and what I have seen in these I shall summarise later.

The versions of the 1995 Declaration of Trust

46. First I should mention, in relation to the 1995 Declaration of Trust, and in relation to the 1995 Affidavit, there are now before me various different photocopy documents purporting to be copies of the original (or copies of copies of the original).
47. As to the 1995 Declaration of Trust, in particular, there is what might be called the plain copy. This has nothing purporting to be a Central London County Court stamping or date marking. This was the form in which the 1995 Declaration of Trust was exhibited to the statements of Mrs Haghighat and her solicitor in these proceedings. Also there is a version of the plain copy, but this time with a Central London County Court date stamp of 14 June 2000; this version is contained within Bundle D, referred to below. This stamped version (that is the plain version with the 14 June 2000 stamping) has been relied upon by Mr Haghighat in connection with the application for permission to appeal from the Judgment, in particular being relied upon to show that an application was duly lodged with the County Court on that date but lost by the County Court and not dealt with.
48. Next there is a version of the 1995 Declaration of Trust referred to in paragraph 18 of my first judgment, this being the copy handed up on 1 December 2008: it bears both a manuscript annotation and a Central London County Court stamping, apparently from 14 and 28 November 1995 respectively.
49. Of the version without the manuscript two further, different versions have now been produced by Mr Haghighat, besides the two to which I have already referred. These are (a) a version with County Court stamping from 25 August 1995, and (b) a similar version but with an additional stamping from 28 November 1995. In addition Mr Haghighat has produced a copy of the document with the manuscript annotation but this time without any County Court stamping. All these three versions are included among the Extra Documents.
50. The point of mentioning this is that by my calculation Mr Haghighat must have had within his possession or available to him by 16 May 2000, if all these documents are authentic as they purport to be, at least five different photocopies of the 1995 Declaration of Trust. What is more, on 28 November 1995 he had had the Central London County Court stamp two different versions, one the plain one but stamped already on 25 August 1995, and the other the version with the manuscript County Court annotation of 14 November 1995 (it being a copy of this second version with the added County Court stamping which was produced to me by Mr Robson at the 1 December 2008 hearing as having recently been obtained from Iran).

The six files

51. Bundle A starts with what is in effect an index of documents numbered up to page 1574, this last page being a document to do with the Property and dating from 25 November 2005. The documents referred to in the index comprise the whole of Bundles A to D, the first four files.
52. The index in Bundle A runs to typed page number 26, starting with a page which has no number and continuing on page numbered 1. The first page refers to pages 1 to 84 as being "Louise Brittain documents", and page 85 as "Invitation from The London Hospital". On page numbered 1, however, item 1 is "I, Hamid Haghighat … came to England on July 1988 … see pages 86 and 87". After the index the bundle continues at a page numbered in manuscript 85 (being a letter from a Professor of Neurosurgery stating that Mani Haghighat, being at present in Turkey, should come to England for treatment); and pages 86 and 87 appear to be documents directed at the immigration of the Haghighat family in 1988. It would therefore appear that the first 84 pages of "Louise Brittain documents" were not included. But at the hearing before me no point was taken on this by Mr Haghighat.
53. Bundle D deserves detailed comment. By the beginning of 2003 the Applicant was in correspondence with Mr Haghighat and his wife concerning the 1995 Declaration of Trust. This appears from letters dated 2 January 2003 from Baker Tilley, the Applicant's firm.
54. So far as Mrs Haghighat is concerned, by letter dated 12 January 2003, apparently sent by recorded delivery to Baker Tilley, and apparently signed by her, it was said "…of course all these documents have been made to the Iran Court and has he granted all these to me, he was then permitted by Iran Court to marry for the second time. All these have been made in Affidavit arranged by my husband same day when he was making Trust deed in Solicitor's office, and I will submit copy of all these documents to you…".
55. Also, in a letter and statement of 19 January 2003 Mr Haghighat gave elaborate particulars concerning his making of the 1995 Declaration of Trust and 1995 Affidavit. In due course, under cover of a letter of 7 March 2004, a copy of the 1995 Affidavit was provided by Mr Haghighat to Baker Tilley. That, with its exhibits, had what appeared to be 14 June 2000 County Court stampings; and one of the exhibits so stamped was a copy of the 1995 Declaration of Trust (being the plain version but stamped only 14 June 2000).
56. In his letter of 7 March 2004 Mr Haghighat explained to the Applicant that he had not had the 1995 Declaration of Trust with him during the trial before HH Judge Cowell and that the 1995 Declaration of Trust was in Iran at that time. His letter asserted, in answer the question previously asked of him by the Applicant as to the reason why the 1995 Affidavit had not been submitted during the trial, that "Affidavit and Trust Deed of 1995 have Both been in Iran during that time, and I have brought them with me in the date of appeal, but they have been in Iran before that date".
57. In a letter of 22 March 2004 the Applicant asked Mr Haghighat questions as to the 1995 Declaration of Trust and Affidavit. For instance she asked him for the address of his lawyer in Iran and about the language of the original documentation. It appears that in an interview she had had with Mr Haghighat some months earlier she had understood him to have named that lawyer as one Mr Oshadabred.
58. On 4 April 2004 Mr Haghighat wrote in reply to the Applicant to say that his Iranian solicitor had been "very old" and was likely to have retired, that files are destroyed after six years, and that "after this long time, addresses and phone numbers have been changed" and that "the only person who was following my words in Iran, was my father … who unfortunately is now on bed as a patient in ICU section …". The letter also gave an explanation for the fact that the originals of the documents and been made in English and sent to Iran. This is as follows: "It was for the reason, that First Affidavit and Trust Deed should have been confirmed by Authority in England, which I took them both to a British Solicitor, then he confirmed them. And if someone in Iran complains then the original letter must be enclosed to the File Folder, then be sent to the court. When I forwarded the documents to Iran, my solicitor has translated then he submitted including originals of Affidavit and Trust Deed to the Court, you have asked me to provide copy of the originals, I will be grateful if my Father feels fit, then I will certainly do so." As part of this letter Mr Haghighat inserted copies of extracts of the 1995 Trust Deed and Affidavit bearing 14 June 2000 County Court stampings to show that he had "these Trust Deed and Affidavit in my possession before 2002". The copies bore no earlier stampings or similar markings.
59. On 17 May 2004 Ms Brittain replied to this letter. Among other matters she drew attention to the fact that the 1995 Declaration of Trust is only dated June 1995, with no day named. By his reply of 28 May 2004 Mr Haghighat asserted, as to the inference that the 1995 Declaration of Trust had not been in England before 2002, that "I have enclosed that massive documents, that I submitted the Trust Deed on 14 June 2000 to the British court..". He continued "You wrote that as the Trust Deed is not mentioning day date, you do not Trust to the reality of that Trust Deed. I did not know up till now that if a certified and qualified solicitor confirmed by Law Society, if does not write day date in a document, then that certified document by him must be thrown away. What is for me to do with that solicitor's mistake? If I had known, I would have reminded him Not To Forget day date to write. You demand day date, I see the cheque end the date I have paid the solicitor is the date of making the Trust Deed, and also the Name of the solicitor and the interpreter is mentioned, I oathed, then the interpreter will come and witness which date exactly the Trust Deed has been made. I will bring that interpreter to stop your concern!"
60. What may be noticed is that (a) both Respondents were by 2003 at the very latest relying in correspondence on the 1995 Declaration of Trust, (b) Mr Haghighat had offered an explanation, such as it was, for certain peculiar features of the documents, (c) Mr Haghighat had inferred that what he had after May 2000, but not at the time of the trial before HH Judge Cowell, was the original of the English language version of the 1995 Declaration of Trust, it being a Farsi or Arabic language translation which remained in Iran with the lawyers or the court, and (d) so far as can be discerned, there had not been produced any of a copy of the 1995 Declaration of Trust, or for that matter of the Affidavit, with a stamping or marking purporting to bear a specific date earlier than 14 June 2000.
61. I have described these parts of Bundle D, all of which were manuscript insofar as they were copies of documents from Mr Haghighat or his wife, with particularity. As it seems to me, they are relevant to the present questions. But certain of the Bundle D documents were referred to and described in the material part of Mr Haghighat's evidence which had been included in the hearing bundles; and, more importantly, the material does not add appreciably to what was in fact in the hearing bundles, namely the extracted evidence of Mr Haghighat and the letter of 16 Decemeber 2003 referred to below.
62. In the extracted evidence Mr Haghighat had sought to answer evidence from the Applicant in which she had said "despite the existence of this alleged earlier Trust Deed [that is, the 1995 Declaration of Trust] at the time of the proceedings relating to the Charging Order no reference was made to its existence at any stage by either [Mr Haghighat] or Mrs Haghighat at those proceedings". Mr Haghighat's response was that HH Judge Cowell had "dismissed [Mr Haghighat's] case … because the Trust Deed was in Iran for the court concerning my second marriage and not here at the hearing". Mr Haghighat did not in terms say that any attempt had been made to rely on the document before HH Judge Cowell, although an inference might be drawn that that was what he intended to convey.
63. I should add that the various documents in Bundle D had not gone so far as to suggest that any such attempt had been made. And it is not clear that in his extracted evidence he was saying that any such attempt had been made. This is because what he did in the extracted evidence was to direct attention to a copy of the 1995 Declaration of Trust and of the 1995 Affidavit which bore the 14 June 2000 stamping. And a little later in the evidence he added "I have said several times that the Affidavit Trust Deed was reached to me after the court hearing of 16^th May 2000. I lounged (sic) an appeal on 14/06/2000 and I have all the relevant documents with the seal of the court".
64. It appears that on 16 December 2003 Mr Haghighat had written to the court when seeking to appeal from the refusal of Patten J to give permission to appeal from the Judgment. In that letter Mr Haghighat explained how he had made the 1995 Declaration of Trust at the offices of Mitchell & Co. He continued "As the 1995 dated Trust Deed was absent in 16 May 2000 in the Central London County Court hearing, but in that hearing his honour the Judge [Cowell] refused my case because in 16 May 2000 I had sent Trust Deed, including my Affidavit for a court to Iran, Then I contacted Iran then they mailed those documents, and I appealed in Central London County Court in 14 June 2000 and then I submitted this Trust Deed including Affidavit and other documents which I asked Iran to mail for me, for Appeal in the Central London County Court …". Later in the letter Mr Haghighat repeated that HH Judge Cowell refused his case on 16 May 2000 because he did not have the documents at the time, but that he did have them at the time of the hearing before Patten J. Again, however, he did not go so far as to say in terms that HH Judge Cowell had been referred to the 1995 Declaration of Trust and had rejected evidence or argument about it.
65. Bundle E, the fifth of the files, contains a large number of irrelevant invoices, correspondence and a draft judgment. The pages in this file are numbered from 1575 to 1906.
66. The first part of the sixth file, Bundle F, contains further documents some of which are similar to those in Bundle E. These comprise pages 1907 to 2042. Included among these pages is a copy of the 1995 Declaration of Trust, this having no date stamping on the front other than what appears to be a legend for Central London County Court of 14 June 2000; and there is a copy of the June 1995 Affidavit in the Central Tehran Court to which I already made reference, along with the exhibits, and a copy of the judgment of Patten J given on the application by Mr and Mrs Haghighat for permission to appeal the judgment of HH Judge Cowell. The first page of the June 1995 Affidavit has the identical stamp of 14 June 2000 for Central London County Court.
67. However the remainder of the sixth file, Bundle F, contains what might be described as copies of Mr Haghighat's witness statements made for the purposes of the present case. These start at bundle page 2043 midway through that file. It is noticeable that where any of these statements refer to another document as an exhibit or attachment, it is by reference to the document at the relevant page number within the preceding five and half bundles. I need, however, to say more about these witness statements.
68. Bundle page 2043 is the start of a witness statement, internally numbered to page 70, the last page containing a truth statement and Mr Haghighat's signature and dated 23 June 2006. His signature on this page was witnessed by one H Gharaie, as a solicitor, on 23 June 2006. The first page of this statement is a copy of that contained in the bundle with Mr Haghighat's letter of 4 August 2006 which I have already described, but without the various stampings. The fourth page of this statement contains the heading "My reply to the witness statement of Louise Britain (sic)".
69. It is apparent, from a comparison with the hearing bundle, that this whole document was omitted from the hearing bundle extract of Mr Haghighat's evidence. However it is also right to point out that the text on the first page is set out on page 111 of the hearing bundle; and although the second and third pages contain information relevant to what Mr Haghighat says about the making of the 1995 Declaration of Trust, that same text runs between pages 111 and 113 of the hearing bundle, pages to which I was referred by Ms Agnello during the hearing on 1 December 2008. So far as I can see, nothing else in the omitted document had any bearing on the question of the 1995 Declaration of Trust and in particular on the effect to be given to the judgment of HH Judge Cowell.
70. The contents of Bundle F, from pages 2113 to 2184, are contained in the hearing bundle. They comprise a witness statement, internally numbered to page 9, signed by Mr Haghighat on 23 June 2006 (but without the signature being witnessed and with a different style of printing for the name and date); the unsigned statement of a Mr Richie; a statement running to 28 pages of internal numbering with a signature of Mr Haghighat and date in the same style as that just mentioned; a further similarly signed and dated statement of 12 pages (this ending on what is page 2166 of Bundle F); another statement of 15 hand-numbered pages similarly signed and dated, this statement itself being largely a compilation of other people's statements and documents. Finally there is an unsigned document of three pages which appears to be a statement of one John Sayer into which have been interpolated various editorial criticisms of Mr Sayer's evidence and arguments about Mr Sayer. This ends on page 2184 of Bundle F.
71. Pages 2185 to 2219 of Bundle F are also contained in the hearing bundle; but the remaining eleven pages are not. These are numbered from 2220 to 2229, with there being two pages numbered 2229. Page 2185 is the start of a witness statement captioned "My reply to witness statement of Melissa Ann Hope" and with internal numbering running to page 43, the first (bundle number 2220) and last three pages (bundle numbers 2228, 2229 and 2229) not being numbered internally in the same way. The statement ends on the first page 2229 with a truth statement signed by Mr Haghighat with the name style and dating in the form of his first statement in Bundle F; the second page 2229 is an appropriate backsheet to the witness statement.
72. The pages of this last witness statement omitted from the hearing bundle contain nothing relevant to the question of the 1995 Declaration of Trust. Further the same text can be found in pages that were included. In particular page 2220 is simply a colour photo copy of a newspaper clipping on page 2219 which was in the hearing bundle; and pages 2221 to 2228 of Bundle F correspond verbatim with parts of the different statement of Mr Haghighat contained on pages 66 to 72 of the hearing bundle.
73. Thus far, as it seems to me, a criticism which may be made of the Claimant's side is that the preparation of the hearing bundle was inept in the selection of what was in the event included in the hearing bundle out of the six files as being Mr Haghighat's witness statement of 23 June 2006; but the omitted pages cannot have made any practical difference to the hearing on 1 December 2008.

The Extra Documents

74. However, Mr Haghighat contends that there has been a further omission, this time of a very different complexion. It will have been noted from my description of the material part of File F that it contains copies of six witness statements signed by Mr Haghighat and dated 23 June 2008. Of these, one describes itself as the Witness Statement of Hamid Haghighat; one is headed to indicate that it is a reply to Ms Hope's witness statement; and within one there is part captioned to show that it is a reply to Ms Brittain's statement. The pages are numbered up to 2229.
75. What Mr Haghighat says is that the Extra Documents, comprising a further unsigned affidavit of six pages, together with a backsheet in a style which is very different from either of the other backsheets in Bundle F, and together with approaching 100 further pages of attachments (these comprising documents numbered from 1 to 29), was omitted from the hearing bundle and has also been removed by Beachcroft from Bundle F. This unsigned affidavit, with its 29 attachments, says Mr Haghighat, was among the materials included in the 6 files provided by him in 2006 and which should have been before the court on 1 December 2008.
76. In particular, in his statement in support of the present application he has described himself as having provided on the 23 June 2006 a list of documents, this list including items A to C in exactly the same terms as in his statement of September 2006 and in his letter to the court of August 2006. Item D is however described differently, this time being described as "Affidavit of Hamid Dehdashti Haghighat Continuation sheet my Reply to the Witness Statement of Louise Brittain and My reply to Melissa Ann Hope's Witness Statement".
77. Ms Agnello told me on instructions that the Extra Documents had not been removed from the six files, never having been there; and, as I understood it, her client does not accept the authenticity of the Extra Documents.
78. The first of the Extra Documents, the unsigned affidavit of six pages, is headed "Affidavit of Hamid Dehdashti Haghighat CONTINUATION SHEET MY REPLY TO THE WITNESS STASTEMNET OF LOUISE BRITTAIN My reply to Melissa Ann Hope Witness Statement". It has various stampings on the front, including one purporting to show it was filed on 23 June 2006 and another that to show that it was received by Beachcroft (these stampings being similar to those to be found on other documents). There is a truth statement at the place where Mr Haghighat might have signed it.
79. The document is curious. There is no real reason why it was not signed by Mr Haghighat, if it was in fact part of the original Bundle F materials: if he had wished it to be made as an affidavit, he could have asked H Gharaie to administer the oath and sign the document having made an appropriate manuscript change. Alternatively he could simply have signed it himself as a witness statement, as he had all his other statements in Bundle F. Paragraph 50 does not read naturally in a document made on 23 June 2008; on the other hand the same text appears at paragraph 98 of Mr Haghighat's statement in support of his application notice, where it is quite appropriate in context. And it is striking that the attachments to this statement were dealt with quite differently to the way all his other 23 June 2006 statements referred to exhibits elsewhere in the six files by page number. Finally there is the fact that in his letter and witness statement of August and September 2006 he gave a very different description of what he had provided in June 2006 as his item D.
80. The attachments to the unsigned affidavit comprise numerous copy documents, all of those apparently dating from before about 2004 and almost all having some stamping or marking apparently made by a court, typically the Central London County Court. They appear to demonstrate that the 1995 Declaration of Trust was deployed by Mr Haghighat in proceedings in the Central London County Court in about 1995; was deployed in the proceedings before HH Judge Cowell, and was deployed in subsequent proceedings when an appeal against the Judgment was being attempted. Most importantly they include (a) as attachment 18 an affidavit of 11 February 2000 made in the proceedings before HH Judge Cowell, (b) as attachment 19 an "additional statement" of 14 June 2000 made by Mr Haghighat in support of his application notice for an appeal from the Judgment, (c) as attachment 21 an "additional statement" of 23 September 2002 in support of his subsequent attempt to appeal, and (d) as attachment 28 a statement of 20 December 2002 in connection with that appeal. All these statements are typed and have Mr Haghighat's signature. Page 3 of the 11 February 2000 affidavit is missing from the copy provided to me, as are the pages containing paragraphs 10 to 29 of the 14 June 2000 additional statement.
81. In his unsigned affidavit Mr Haghighat states "I had written an affidavit on 11/02/2000 to Ms Nasrin Haghighat and submitted to the hearing dated 16^th May 2000 that was before His Honourable Judge Cowell….". He also explains that in late 1999 he had had to move all his things back to the Property from a different flat where he had been living apart from his wife. And he says that "When I moved to [the Property] with a great deal of belongings, I had forgotten where my files were and did not know where I had placed them as I was so depressed and psychologically down. … This was the reason why I was not able to show all of my documents at the hearing on 16 May 2000. But I informed the court on 16 May 2000 about the existence of the Trust Deed and Affidavit". He adds that "I contacted my country Iran and asked them to post me a copy of the Trust Deed and Affidavit as soon as possible. They posted the above documents. I was also looking for my files at [the Property] and fortunately found my files." For good measure he says, of the hearing before HH Judge Cowell, that "an Arabic interpreter came to the hearing instead of a Farsi interpreter. That interpreter could not speak Farsi and as I do not understand English, I could not understand what was happening during the court hearing."
82. Attachment 18 with the Extra Documents is, as mentioned, what appears to be an affidavit of Mr Haghighat's. This is apparently endorsed with a Central London County Court date stamp. In it Mr Haghighat narrated facts about the making of the 1995 Declaration of Trust in terms which, if true, made it most improbable that his wife could have known nothing about it: specifically he said (emphasis added): "Following issuing a Trust Deed of [the Property] in my wife's name in June 1995, she did not have any other claim on our marriage or other payments and showed no objection concerning my second marriage". In other words the Trust Deed was the basis of a compromise of, that is an agreement with Mrs Haghighat to resolve, a matrimonial dispute which was to enable Mr Haghighat to take a second wife.
83. In the affidavit Mr Haghighat explained (in paragraph 21) how a copy of the 1995 Declaration of Trust had been used in proceedings in England in 1995, and had been submitted to the Central London County Court. He said (in paragraph 22) that "I have a great deal of documents that were submitted to the court in 1995 and the court stamped on all of them. It is written clearly on these documents that I prepared the Trust Deed 1995 and also said that I could not find my file. I requested the court to give me more time for submitting more documents to the court and to obtain the original Trust Deed and Affidavit from Iran". Finally in the affidavit he explained that the 1999 Trust Deed had been made on the advice of Mr Haghighat's solicitor who had said that "I should sign another Trust Deed in order to go to court" and that "it does not harm us if I sign another Trust Deed." In other words, on the basis of this February 2000 document he was saying that he had in his possession "a great deal" of the 1995 documents deployed in his earlier County Court proceedings, and that as long ago as 1995 he had sought time from the Court to obtain the original of the 1995 Declaration of Trust back from Iran.
84. I have only seen photocopy documents. But there are in fact two different original versions of this affidavit, so far as one can judge. The one provided to me with the papers in advance of the hearing on 23 March 2009 as the relevant attachment has a manuscript 18 at the bottom of the first page to indicate that it is attachment 18 to the unsworn affidavit. It bears on its first and every one following pages provided to me what appears to be a Central London County Court stamping with a date of 11 February 2000. The placing on each page is random, whether on the left or right and whether the stamp is horizontal or angled. But on its last page it purports to be been sworn before one KJA Daraker of Zelin & Zelin, solicitors, on 11 February 1995, five years before its date.
85. At the hearing on 23 March 2009 an alternative copy of this affidavit was handed up by Mr Haghighat as being the correct attachment, this one with Central London County Court stampings on the first page from 11 February and 14 June 2000 and 12 September 2002. The signature page was different, having the typed date of swearing of 11 February 2000, but again apparently having been sworn before KJA Daraker. Remarkably the Central London County Court stampings of 11 February 2000 which run through this document are placed in almost the exact position on each page as in the other copy of the document; but the placing is not always absolutely exact. This can be seen most obviously on the fourth page of each document, where a vertically placed stamp runs either just inside or just outside the last letter of Mani's name on the second line, and on the fifth page where the line runs either through or below the last couple of letters of the word "accepted".
86. In other words, what these two versions of the affidavit suggest, if authentic, is that two different versions of the affidavit were sworn before KJA Daraker, the last page of one having been re-typed with a different date from the second; that both versions were taken to the County Court on the same day, 11 February 2000; and that the County Court stamped both versions, taking pains to make sure that the stamp was placed on each page on the one version in, so far as possible, the same apparently random place as it was on the other.
87. The statement with the 14 June 2000 date contains text similar to that in Mr Haghighat's unsigned affidavit dealing with the hearing before HH Judge Cowell. So, for example, it contains the statements about the inability to find his files, his obtaining of copies of the relevant documents from Iran and his finding of files at the Property, about his having told the Judge about the existence of the 1995 Declaration of Trust and 1995 Affidavit, and about his having been accompanied to court by an interpreter with the wrong language skills so that "I could not understand what was happening during the court hearing." The statement identifies 18 attachments, attachment 18 being "a copy of my Affidavit dated 11/02/2000".
88. The statement with the 23 September 2002 date is similar. It repeats that he had "written an affidavit on 11/02/2000 to Ms Nasrin Haghighat and submitted to the hearing dated 16^th May 2000 that was before His Honourable Judge Cowell". It repeats other matter to be found in the 14 June 2000 statement. Again attachment 18 is stated to be the 11 February 2000 affidavit; and attachments 1 to 17 are the same as in the unsworn affidavit and in the statement in support of the application. Attachment 19 is stated to be the 14 June 2000 statement.
89. Attachment 23 with the unsigned affidavit appears to be a letter written by Mrs Haghighat to the court on 23 September 2002 in connection with an appellant's notice (attachment 24) with a Central London County Court stamping of that date and a filing date of 25 October 2002. In this letter she invites the Court to allow her husband to appeal again against the Judgment "because the day the hearing was I did not have the trust deed with me that my husband had given the house to me in the year 1995. My Husband's family had sent to us but on the day of the appeal we received the trust deed."
90. Finally there is the statement with a dated court stamping of 20 December 2002. This repeats verbatim the material passages to be found in previous statements. The attachments are described as they are in the 23 September 2002 statement, with the addition of that statement as attachment 20.
91. Plainly much of the repetition in the affidavits and statements is the repetition of word-processed typing: the various documents have used much the same text, subject to occasional additions, omissions or changes of sequence. By way of example, the text is paragraphs 21 and 22 of the 11 February 2000 affidavit (referred to above) is to be found almost verbatim at paragraphs 12 and 13 of the unsworn affidavit and paragraphs 15 and 16 of the 23 September 2002 statement, and verbatim at paragraphs 13 and 14 of the statement of 20 December 2002. The one difference between the text in the 11 February affidavit and 20 December 2002 statement on the one hand and that in the unsworn affidavit and 23 September 2002 statement on the other is the omission from the latter documents of the passage, quoted above, dealing with Mr Haghighat's inability to find his file in the 1995 proceedings and his request for time to obtain the original from Iran.
92. The stamping on the 20 December 2002 statement resembles that on a manuscript statement of 22 November 2002. A copy of that manuscript statement was included in the hearing bundle. Unquestionably the manuscript statement had been made for the application for permission to appeal which came to be dealt with by Patten J in 2003. It had omitted, however, the detail about the whereabouts of the 1995 Trust Deed and the hearing before HH Judge Cowell which had been contained in the typescript statements in the Extra Documents (for example that with the 23 September 2002 dating) and which is referred to above. And it did not follow the pattern of those typescript statements in the attaching of the various previous affidavits or statements starting with that of 11 February 2000. Indeed, it made no reference to the 11 February 2000 affidavit or subsequent statements (such as that of 23 September 2002) referred to in the 20 December 2002 statement.
93. The Extra Documents could plainly have led to a fundamentally different view of the facts relevant to the preliminary issue from that which I formed at the 1 December 2008 hearing. Most obviously, at the hearing itself, if Mr Haghighat's repeated statements concerning the point are accepted, he did in fact tell HH Judge Cowell of the existence of the 1995 Declaration of Trust. In other words I could have been mistaken in thinking, as I did, that at the trial the 1995 Declaration of Trust was not relied upon, or even referred to, by either Mr or Mrs Haghighat and that there was no reference to it.
94. However, there is a further point which arises. If the Extra Documents are to be believed, Mrs Haghighat and her advisers were aware of the 1995 Declaration of Trust and Affidavit at the time of the trial before HH Judge Cowell, having been provided with Mr Haghighat's 11 February 2000 statement (which, after all, he says he had made to them and to the court); and of course the 1999 document had been made at a time when Mrs Haghighat's solicitor had been told about the 1995 Declaration of Trust. But no reference was made to the 1995 Declaration of Trust in Mrs Haghighat's Defence or in her Skeleton.
95. True it is that the original of the 1995 Declaration of Trust was at the time still in Iran, according to Mr Haghighat, and that Mr Haghighat had forgotten where his files were and so did not provide any of the many copies that must have been in existence. But that is not sufficient to explain why, so far as can be told, Mrs Haghighat and her advisers chose not to seek to rely on the 1995 Declaration of Trust. As the fact (if it was the fact) that no written and signed instrument from the period before 1999 had ever been made transferring the beneficial interest in the Property to Mrs Haghighat was bound to be a critical issue in the case, a decision not to refer to the 1995 Declaration of Trust (if known of) would have been an important decision to be taken for good reason. And as it was Mrs Haghighat who was claiming to be the beneficial owner of the Property, supported in this by Mr Haghighat, I find it difficult to see why they should be able to re-litigate the same question if the decision turns out to have been misguided.

Conclusion as to the preliminary issue

96. In response to Mr Haghighat's application I have not had evidence (as opposed to statement by Counsel on instructions) from the Applicant as to the integrity of the six files. Given this, and despite my misgivings about the materials deployed by Mr Haghighat, I have reached the conclusion that I must for the purposes of this application assume that the Extra Documents were in fact excluded from the hearing bundle, and that they are authentic.
97. I make no finding about those two matters: they may need to be determined if the matter goes further and there is, for example, a rehearing of the preliminary issue. But it will be appreciated that if the Mr Haghighat is correct as to the authenticity of the Extra Documents, it is difficult to understand how Mrs Haghighat's case before me at the hearing of the preliminary issue can have been advanced on the basis that it was, namely that until after the Judgement had been given by HH Judge Cowell Mrs Haghighat knew nothing of the 1995 Declaration of Trust. This was the case presented in Mrs Haghighat's presence, after she had been sent for, and no doubt on her instructions.
98. However, on the assumption on which I am now proceeding, there is no doubt that Mr Haghighat makes a case worthy of careful consideration for the preliminary issue to be reopened and for there to be a rehearing. First, he was absent from court with, at the least, encouragement from his wife's Counsel and thus had failed to take part in the hearing. Second, his wife's advisers failed to ensure that in his absence his important documents previously provided to them were deployed in the proceedings. Third, the Applicant's advisers failed to put before the court the relevant evidence, which ought to have been in the hearing bundle. Fourth, the important documents could and should have led the Court take a different view of the facts bearing on the Henderson v Henderson abuse of process issue in relation to the Judgment.
99. Ultimately, however, I have decided not to direct any rehearing and instead to dismiss Mr Haghighat's application. My reasons may be stated shortly.
100. First, there were two separate grounds for my decision on the preliminary issue. One, and one only, was the Henderson v Henderson ground, referred to above. The second was the ground that the Judgment had given rise to an estoppel by record. As between Mr Haghighat and his wife it is the former who was, following the Judgment, the beneficial owner of the Property. The Extra Documents do not affect that position, however relevant they may have been in the period after the Judgment when Mr Haghighat and his wife were seeking to appeal from the Judgment. Mr Haghighat did not suggest otherwise on the hearing before me. In short, the appropriate forum for a challenge to this ground of my judgment on the preliminary issue should be the Court of Appeal, and not a rehearing on what is a pure point of law.
101. Second, I remain of the view that even on the Henderson v Henderson ground Mr Haghighat has no reasonable prospect of succeeding on a rehearing of the preliminary issue. On the assumption I am making concerning the Extra Documents, if his wife and her advisers chose to keep what they had been told by Mr Haghighat (as he says) about the 1995 Declaration of Trust up their sleeves and to place no reliance on the 1995 Declaration of Trust even when on 16 May 2000 Mr Haghighat (as he says) told the court of it, that was a matter for them: they were endeavouring to show that as against him Mrs Haghighat was beneficial owner, and in this they failed. But I do not see that they should be allowed now to deploy the 1995 Declaration of Trust without good explanation for their choice and for what transpired before HH Judge Cowell; and this they have not given. I record that Mrs Haghighat has not sought before me to say that's there should be a rehearing of the preliminary issue.
102. Insofar as Mr Haghighat is concerned, it is now his case that he did in fact rely on the 1995 Declaration of Trust before HH Judge Cowell. If so, plainly the Judge did not believe that there ever was such an instrument made. This may be because Mr Haghighat's wife chose not to base a case on any such instrument having been made. But the upshot is that this is not a case where Mr Haghighat should be allowed now to rely on the 1995 Declaration of Trust as having achieved what HH Judge Cowell had rejected as having been achieved before 1999.

The position in the bankruptcy

103. In paragraph 8 of my second judgment (that is, my judgment dealing with the substance of the Applicant's application on the basis that the Property belongs to Mr Haghighat) I concluded that if there were now to be a sale of the Property there would still be a substantial shortfall in the bankruptcy. This conclusion followed from the summary of assets, liabilities and expenses which, on the basis of the materials before me, I had set out earlier in that paragraph.
104. Mr Haghighat says that the Property could now be worth £450,000 or £475,000 (against the £375,000 referred to in my judgment and which had been suggested by the Applicant), that there is nothing due to the Legal Services Commission (against the £70,000 suggested by the Applicant), and that there had been wrongly included in the fees and expenses, incurred and anticipated, of £206,000 some £24,000 said to have been paid by the Applicant to the landlord of the Property. He also wishes to say that anyway the estimate of those fees and expenses is excessive and the fees and expenses need to be properly vouched.
105. If this matter were to go further the Applicant would wish to dispute Mr Haghighat's assertions. Ms Agnello tells me on instructions that the £70,000 claim is a claim in respect of which the Legal Services Commission have submitted a proof of debt; and it would be hardly surprising if there were a significant costs claim arising out of Mr Haghighat's proceedings to recover the Property in 1999 in which he was successful. Further, it is her position that the Applicant has indeed paid the £24,000 in respect of the Property.
106. Nevertheless, assuming for present purposes that Mr Haghighat is correct both in his submission concerning his not having had the hearing bundle and having been unable to prepare himself for the hearing or to deal with matter which was before the court at the hearing, and also concerning the specific points referred to in the previous paragraph, the fact remains that even on his evidence on a sale of the Property today there still would be most probably a significant shortfall. Instead of £290,000 or so the shortfall on his figures would be between £149,000 and £174,000 or so, always assuming that the Applicant's other fees and expenses were not successfully challenged. But whatever view one takes of the Applicant's fees and expenses, she is bound to be entitled to a considerable sum in respect of the £206,000 (or £182,000, if the £24,000 has been excluded) estimated fees and expenses. This is a long-running bankruptcy in which the Trustee has been engaged in protracted and expensive litigation against the Respondents.
107. There is no way, so far as I can see, in which these points advanced by Mr Haghighat could have assisted the case of the Respondents in relation to the Applicant's application for possession of the Property to enable the Property to be sold. For what it is worth, I note that the points were not advanced by Mrs Haghighat at the hearing in December 2008; and although Mr Haghighat did at that hearing challenge the £24,000, his challenge appears to have been on the basis that there could have been no need to pay the £24,000 as he was not the tenant. But, and this is the real point, the arguments which Mr Haghighat now wishes to make cannot lead to the conclusion that there is a realistic prospect of any appreciable surplus such that Mr Haghighat may be taken to have some equity in the Property.

Disposition

108. In the result I dismiss Mr Haghighat's application for a rehearing.

The costs of the Applicant's application for possession

109. On the application in relation to the costs of the Applicant's claim for possession no real argument was advanced by Mr Haghighat why the Applicant should not have her costs, if (as I have) I were to reject Mr Haghighat's application for a rehearing. As it seems to me, the Applicant was the successful party on her claim (including the preliminary issue); Mr Haghighat had opposed the claim unsuccessfully. To my mind nothing in the present case displaces the general principle that if an order for costs is made (and in my judgment one should be made) the order is to be that the unsuccessful one is to pay the cost of the successful one (CPR part 44.3(2)).

Costs of Mr Haghighat's application

110. At the conclusion of the hearing the parties made submissions to me as to the various possible costs orders which might be made, depending upon the way in which I determined this application.
111. Given my decision on my Haghighat's application, I will order that Mr Haghighat should pay the Applicant's costs, to be assessed if not agreed. I will make no order as to the costs of Mrs Haghighat save that they should be subject to detailed assessment, Mrs Haghighat being a person who is in receipt of services funded by the Legal Services Commission.
112. I should add that I am not making any separate or special order in relation to the costs of the attendance of Mr Haghighat and Mrs Haghighat on 18 February 2009, when this application first came before the court, before Warren J. I should explain my reasons.
113. What had happened was that the Applicant, appreciating almost as soon as her solicitors were in receipt of the application, that it should best be dealt with by me as the judge who had conducted the previous hearings in December 2008 and January 2009, applied without notice to Sales J and obtained an adjournment to a date to be arranged. However the letter of the Applicant's solicitors to Mr Haghighat to advise him of the adjournment only reached him, he says, after his return from court on 18 February 2009. And it appears that the Applicant's solicitors, not seeing Mrs Haghighat as a respondent to Mr Haghighat's application, failed to notify them in advance of the 18 February 2009 hearing. The upshot was that at the hearing on 18 February 2009 Mr Haghighat was present with an interpreter, and Mrs Haghighat was represented. The Applicant was not represented. The attendance at the 18 February hearing was unfortunate, as inevitably the hearing was abortive. But it was also clear that Warren J would have made precisely the same the order as had been made by Sales J.
114. On behalf of Mrs Haghighat it is argued by Mr Robson that I should order the Applicant to pay the costs of the 18 February hearing as costs which were unnecessarily incurred through the fault of the Applicant or her solicitors; and Mr Haghighat submitted that the Applicant should be ordered to pay his travelling and interpreter's expenses for the 18 February hearing.
115. It is a pity that the Applicant, having taken the sensible step of obtaining the adjournment which could have avoided the expense of the other two parties' attendance at court, failed to achieve that end. Nevertheless, and frustrating as it may have been for the other two to attend on 18 February, I do not see why the Applicant should pay costs which those two parties would have had to incur anyway if the Applicant had simply done nothing but attend at court on 18 February and then, in the presence of the other parties, ask the court for the same order which would surely have been made.
116. The short of this, in my judgment, is that the Applicant should not be required to pay the costs of the other parties which she had unsuccessfully tried to spare them and which if she had made no such attempt they would have had to incur anyway.

Postscript

117. Finally I would add that, as explained at the conclusion of the hearing on 23 March 2009, the parties need not attend when I hand this judgment down. Of course, if the parties wish I will hear argument on any consequential orders which may arise out of this judgment: but, if any party does wish to argue any question, that party should inform both the other parties in advance.