England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		The Rolls Building Fetter Lane EC4A 1NL
		15/10/2014

Mr Justice Norris:

1. This is the appeal of Hamila Ghassemian against an order of Master Teverson dated 28 January 2013 whereby he enforced a final charging order which had been made on 30 September 2011 in the Queen's Bench Division ("the Charging Order") by ordering a deferred sale of Flat 56 Chatsworth Court Pembroke Road London W8 ("the Property").
2. Hamila Ghassemian is also known as Hamila Sartipy ("Mrs Sartipy"). Sharooz Langroody ("Mr Langroody") is the son of Mrs Sartipy. He conducts proceedings in the name of Mrs Sartipy. One such set of proceedings was a claim by Mrs Sartipy to register a title acquired by adverse possession to some land in Earls Court Road. Those proceedings were dismissed. The Adjudicator found that Mr Langroody had laid an "elaborate and false paper trail to support the case" and that many of the documents relied on by Mr Langroody (some of which had been produced in the course of the hearing itself) were either forgeries or were documents which had been altered to suit his case.
3. On 25 November 2010 the Adjudicator made an order for costs in favour of Tigris Industries Inc ("Tigris") and made an order for the payment of £60,000 on account. When Mrs Sartipy did not obey that order an interim charging order was granted on 16 December 2010 over the Property which was (and had since 22 April 1985 been) registered in Mrs Sartipy's name. In an endeavour to avoid that interim order being made final Mrs Sartipy alleged that she was not the person who had applied in the Land Registry, participated in the adjudication proceedings or become subject to the costs order, and that Mr Langroody had not been authorised to act for her and was on a frolic of his own. As Counsel on her behalf put it to Master Eyre on 14 June 2011:-

"My client's position is that she is the owner of the property over which the charging order is made but she is not Hamila Ghassemian."

This case was rejected and the Charging Order was made. The rejection of that case has been affirmed and the making of the final Charging Order confirmed in the sundry appeals which Mr Langroody has subsequently pursued. The alleged equitable owners have not applied under CPR 73.9 to discharge the Charging Order.

4. In December 2011 Tigris issued a Part 8 claim in the Chancery Division to enforce the Charging Order. This was listed for disposal on 21 March 2012. On 16 March 2012 solicitors acting for Mrs Sartipy sent to Tigris "by way of continuing disclosure" photocopies of a Declaration of Trust dated 13 June 1986 ("the Declaration of Trust") and the (unproved) Will dated 8 March 2001 of Hadi Ghassemian who was said to be the late husband of Mrs Sartipy ("the Will").
5. The Declaration of Trust which had been photocopied was apparently unstamped. It recited that the lease of the Property had been granted to Mrs Sartipy in her capacity as a trustee for the benefit of Hadi Ghassemian as sole beneficiary and declared a trust to that effect. Its execution page showed that it had been completed on 13 June 1986 in the presence of two people from Milestone Tutorial College of Kensington. The copy of the Declaration of Trust produced included a back sheet which appeared to show that it had been prepared by a firm of solicitors called Mills-Thomas & Co.
6. The Will was said to apply only to the testator's assets in United Kingdom and in particular "my interest in my leasehold apartment at 56 Chatsworth Court". It appointed Hassan Babaki of 56 Chatsworth Court together with a Delaware corporation to be executors and then declared discretionary trusts in favour of Mrs Sartipy, Mr Langroody and Mr Langroody's children and remoter descendants, and others.
7. Master Teverson's Order began with these recitals:-

"UPON HEARING Counsel for the Claimant and Counsel for the Defendant

AND UPON the Defendant having failed to attend the hearing of the Part 8 Claim on 9 and 10 August 2012 for cross-examination

AND UPON the Court not being satisfied that the Declaration of Trust and Will relied upon by the Defendant are genuine documents nor being willing to give effect to them

AND the Claimant being entitled to an equitable charge……."

It then afforded Mrs Sartipy the opportunity to pay off the judgment debt (which by that stage amounted to £102,358) and if she had not availed herself of that opportunity by 18 February 2013 ordered the sale of the Property without further reference to the court.

8. It is necessary to give some background to those recitals. The Declaration of Trust and the Will had been produced "by way of continuing disclosure" immediately before the court hearing. So far as I can see there had been no provision for disclosure in the Part 8 proceedings. This was simply an attempt to get new material before the Court too late for it to be addressed by the other side. Late introduction of material is a feature of litigation conducted by Mr Langroody. On 16 March 2012 itself Mrs Sartipy made a witness statement (in Iran and in fluent English) to the effect that she had always known that her husband was the true owner of the Property and she had believed that it had passed to her automatically on his death in 2003: but that she had recently been told of the meaning and effect of the Declaration of Trust and the Will and "had been advised that [she had] no beneficial interest in the [Property] and never had had any beneficial interest in the [Property]". It was necessary for her to do this because she was seeking to go behind the Charging Order which had been made and which she was unsuccessfully appealing.
9. The Master was not impressed. He ordered Mrs Sartipy to make a further witness statement explaining how and in what circumstances the Declaration of Trust and the Will had come into her possession and why these matters had not been raised or relied upon at an earlier stage of the enforcement proceedings. He ordered her to produce the original of the documents, or to explain why she was unable to do so; and also to attend the adjourned hearing for the purposes of cross-examination. If she failed to attend for cross-examination then the Master directed that she would be debarred from relying on her witness statement of 16 March 2012 and any further evidence she chose to file.
10. It is as plain as can be that the authenticity of the Declaration of Trust and the Will were in issue.
11. Mrs Sartipy made a further witness statement on 13 April 2012. This stated that Mills-Thomas & Co were the conveyancing solicitors who acted on the purchase of the Property and had continued to act in drafting the Declaration of Trust; that Hadi Ghassemian had contributed the cash part of the purchase price; that she could recall attending Mr Langroody's then school (Milestone Tutorial College) and getting two staff members to witness the signatures; that the original Declaration of Trust had been retained by the solicitors whose firm was no longer in existence; and that she had considered herself to be the owner of the Property after her husband Hadi Ghassemian's death until the Iranian executor of her late husband's estate told her that she could not sell the Property to satisfy the judgment debt because it was not hers.
12. Although there was no permission so to do, Mr Langroody also filed a witness statement on 17 April 2012. It gave an account of discussions following the death of Hadi Ghassemian as to whether the Will needed to be proved and as to whether inheritance tax needed to be paid. It exhibited a May 2000 witness statement of Hadi Ghassemian that had been made in yet more litigation involving Mrs Sartipy and the Property, in which he described himself as "the beneficiary of 56 Chatsworth Court". Mr Langroody also filed a second witness statement on 30 July 2012.
13. Tigris also filed a volume of witness statements addressing various of the assertions that had been made by Mrs Sartipy. These included some material contemporaneous with the purchase of the Property and the Declaration of Trust which had been obtained from Nationwide Building Society as a result of a third-party disclosure order, and to which Mr Langroody had not had access. Amongst this material was a letter from a firm of solicitors called Harry L Alkin, acting on behalf Barclays Bank plc, who had obtained judgment against Mrs Sartipy and were enforcing it by means of charging order nisi over the Property. This letter referred to an assertion by Mrs Sartipy's then solicitors that she contended that she had no interest in the Property "apart from that of a bare trustee in which capacity she allegedly holds the property for the benefit of her son (sic)".
14. The adjourned hearing was on 9 August 2012. Mrs Sartipy did not attend for cross-examination. Nor were the original documents produced (although an explanation was proffered that they must be archived somewhere). The Master was entitled not to admit the evidence adduced by Mrs Sartipy. He decided to admit it, but in assessing it to bear in mind that Counsel for Tigris had not been able to cross-examine Mrs Sartipy. True to form, Mr Langroody attended the hearing with an additional bundle of documents which had been provided to Tigris the day before the hearing. The Master decided to admit those even though Tigris had not had a fair opportunity to consider them. Counsel for Mrs Sartipy asked the Master to decide the authenticity of the documents on the written evidence.
15. Mr Langroody filed yet further evidence during the very course of the hearing on the 9 and 10 August 2012. The Master reserved judgment and was due to deliver it on 25 September 2012. He did not do so because on 14 September 2012 Mr Langroody applied to adduce further additional evidence. That application was due for hearing on 26 October 2012. By that time Mr Langroody had produced yet more witness statements (his fifth on 15 October 2012 and his sixth on 25 October 2012, the day before the hearing). The material now relied on included a transcript of a judgment given by District Judge Madge in the West London County Court in 1996 in the proceedings brought by Barclays Bank plc against Mrs Sartipy.
16. By now the level of contested fact was such that the Master rightly raised with Counsel whether he should be giving directions for trial rather than proceeding to determine the Part 8 claim on written evidence alone. Both Counsel wished for the matter to be determined on written evidence. The Master also afforded Mrs Sartipy the opportunity to submit to cross-examination on the substantial volume of evidence which had been filed: that opportunity was declined. So the Master had to decide upon the authenticity of the Declaration of Trust on the written evidence without the benefit of cross-examination and in circumstances where this fundamental challenge to the Charging Order had not been raised in the Charging Order proceedings themselves.
17. In paragraph 84 of his judgment he held:-

"On the evidence before me I am not satisfied that the Declaration of Trust is what it purports on its face to be. I am not satisfied it was professionally prepared by Mills Thomas. I am not satisfied it was made on about the date on which it purports on its face to have been made. I think it more likely it came into existence sometime nearer to when Barclays brought the proceedings against the defendant in 1995".

18. He then went on to hold in paragraph 85:-

"Further and in any event based on the documents obtained from the Nationwide Building Society I have come to the clear conclusion that whenever exactly the document was made…it is a sham document. By this I mean that whenever it was made it was not genuinely intended to create a trust but was intended to be "put in the safe for a rainy day"….".

19. That concluded the issue: but the Master went on to say that he was not in any event satisfied that the Will was a genuine document either.
20. It is common ground (i) that this further holding about the Will was not material to the order which the Master made; and (ii) that the Master erred in embarking upon the exercise, because at one point in the hearing on 10 August 2012, in the course of considering what was evidence before him and how to deal procedurally with the constant drip feed of material, the Master had in aside said that he did not think it was his job to decide the authenticity of the Will. I shall say no more about the Will.
21. The Appellant's Notice was filed on 14 March 2013. Tigris did not oppose the extension of time. Its principal grounds may be stated thus:-

a) The court erred in law in placing the burden of proof upon Mrs Sartipy.

b) The court "erred in finding fraud" because it must have applied the wrong standard of proof because the more serious the allegation the stronger the evidence required to sustain it.

c) The court erred in finding that the Declaration of Trust had been made in 1995.

d) The court erred in determining that the Declaration of Trust was a sham, because that was not an issue raised and argued before the court.

22. I gave permission to appeal. The appeal was listed for hearing on 17 December 2013. But in the event the entire time was taken up with an application by Mr Langroody to admit yet more fresh evidence (and a responsive application by Tigris). I refused to admit any additional material and adjourned the appeal.
23. It is trite that an appeal is an appeal against the order and not against the reasons for the order. This is an appeal against an order made in a Part 8 claim. Like all appeals, it is limited to a review of the decision below (and is not re-hearing of the case) to ascertain if the judge had made an error of law in deciding to make the order or the decision was unjust because of a serious procedural irregularity at the hearing leading to the order.
24. Where the burden of proof lies is plainly a question of law. Whether "sham" was raised as an issue for decision is plainly a matter of procedural regularity. The challenge to the Master's conclusion that he was not satisfied that the Declaration of Trust was a genuine document is not obviously raising an error of law. But Counsel for Mrs Sartipy argues that if the court looks at the quality of the evidence that was available the only conclusion lawfully open to the Master was to be satisfied that the Declaration of Trust was genuine: so in concluding otherwise he must have made an error of law.
25. I deal first with the argument about "the burden of proof", noting that that expression is used somewhat loosely in the Appellant's Notice. The burden of proof on the Part 8 claim lay upon Tigris: it had to show that it was entitled to an order for sale. It discharged that burden by showing (i) that it had the benefit of the Charging Order against the Property and (ii) that the Property was registered in the name of Mrs Sartipy, the form of registration (being in a sole name without any restriction or notice) giving no hint of any trust and entitling it to rely upon the presumption that equity follows the law and that the beneficial ownership was identical with the legal ownership. Assuming that she was permitted to make a collateral attack on the Charging Order (a point not argued on this appeal) an evidential burden then lay upon Mrs Sartipy to adduce material to undermine that prima facie case. She alleged she was a bare trustee, and an evidential burden lay on her to prove what she alleged. She did so by producing the photocopy Declaration of Trust. Simply producing a piece of paper proves nothing, unless the paper is admitted to be genuine. For obvious reasons the authenticity of this document was put in issue. So an evidential burden then lay upon Mrs Sartipy to adduce evidence of such quality as to the authenticity of the document as to prevent Tigris persuading the Court on a consideration of all of the evidence that on the balance of probabilities, the property beneficially belonged to her: that is what being required to "prove" the authenticity of the Declaration of Trust at trial entailed. Such was the strength of the presumptions deriving from the Charging Order and the form of registration (for the regularity of Court Orders and the accuracy of the registers of title is essential to civic and commercial life) that she had to show that the Declaration of Trust was probably authentic: for anything less than that would have left Tigris proving its case on the balance of probability. Of course Tigris could have run a pre-emptive case by alleging that the document was not what it purported to be but was a forgery and adducing evidence of the requisite quality in support of a positive case to that effect. But Tigris did not do that. Equally Tigris could have run a responsive case by saying that even if the document was what it purported to be (a Declaration of Trust made on 13 June 1986) it was a "sham" (i.e. a document not intended to embody or record any genuine transaction but intended to mislead third parties). Whether such a case could be decided is one of the issues on the appeal.
26. A recent example of these principles in operation (not referred to in argument) is Pall Mall Investments v Camden LBC [2013] EWHC 459 (Admin).
27. The judgment of the Master does not suggest that he misunderstood where the burden of proof and the shifting evidential burden lay. The recital to the Order and the Master's holdings (i) that he was not satisfied that the Declaration of Trust was a genuine document (ii) that he was not satisfied that it was what it purported on its face to be (iii) that he was not satisfied that it had been prepared by Mills-Thomas, and (iv) that he was not satisfied that it had been made on or about the date on which it purported on its face to have been made are all entirely consistent with a correct application of the burden of proof in the claim and the evidential burden on issues within the claim.
28. In my judgment the first ground of appeal fails.
29. The second ground of appeal as formulated proceeds on the footing that in order not to accept the Declaration of Trust as genuine the Master had to be persuaded by Tigris that it was a fraudulent document or a sham: and that these serious allegations required cogent evidence for their proof. As I have indicated I consider that this wrongly excludes the possibility of the Master simply not being satisfied as to the authenticity of the document. But the ground of appeal can be reformulated as a submission that the only lawful conclusion on the evidence produced was that the Declaration of Trust was a genuine document.
30. Counsel for Mrs Sartipy reminded me of the observations of Waller LJ in Manning v Stilianou [2006] EWCA Civ 1655 at [19]:-

"…an appeal on fact is not concerned with reviewing the exercise of a judge's discretion. It is not because there is room for two views of the facts that the Court of Appeal is less inclined to interfere with the judge's conclusion as compared, for example, to his or her views on points of law. The finding of fact is a finding that, on the balance of probability, something actually existed or an event actually occurred. The deference that a court pays to a judge's findings of fact stem from the advantage that the judge may have had in the trial process, of seeing the witnesses, having a greater feel for the atmosphere of the trial and matters such as that. We have interfered in this case because we were in as good a position as the judge in relation to the photographs on which he founded in his judgment."

That passage is not of direct application in the instant case because the complaint here is that the Master failed to find a fact: but I heed the warning.

31. Nonetheless, this passage and those to similar effect cannot be read as meaning that in any Part 8 claim the trial judge's findings in relation to any fact necessary to his or her decision are open to challenge on the basis that they were against the weight of the evidence because the appeal Court is in as good a position to review the written material as was the trial judge. The primary factfinder is the trial judge: if the state of the evidence is such that his or her conclusion was lawfully open to the trial judge, that is the end of the matter. If the conclusion is that it was not lawfully open the appeal court must interfere. The Court of Appeal interfered in Manning because they were satisfied that the judge's crucial finding derived from a misinterpretation of a photograph: there was no question of weighing competing indicators before reaching a conclusion.
32. In the instant case the submissions of Counsel for Mrs Sartipy were in essence that the Master gave too much weight to some features and parts of the evidence and insufficient weight to others. So, for example, it was accepted that the Master was entitled to have regard to Mrs Sartipy's failure to attend for cross-examination: but it was submitted this fact was of no real weight given what was said to be the far greater probative value of the documents. The submission that it was not lawfully open to the Master to give particular weight to a particular item of evidence is one that it is difficult to establish.
33. Counsel for Mrs Sartipy submitted that the Master had given too much weight to the following items:-

a) The contents of the Nationwide files, which undoubtedly showed Mrs Sartipy acting as absolute owner of the Property at the time of its acquisition and sole contributor to its purchase, and also acting as absolute owner in subsequent dealings with it (including a proposal by her to sell it);

b) A proposed transfer of the equity in the Property from Mrs Sartipy to Mr Langroody in 1995 (which it was submitted "does not bear the weight the Master gave it");

c) Comments in correspondence of Mr Catt formerly of Mills-Thomas to the effect that the Declaration of Trust was not in the drafting style of that firm;

d) The evidence of Mrs Smart that at the date borne by the Declaration of Trust Milestone Tutorial College did not take pupils of the then age of Mr Langroody and that to the best of her recollection and belief there were no employees of the names of the purported witnesses to the Declaration of Trust nor were there and administrative offices of the sort which they describe themselves as holding.

34. Counsel for Mrs Sartipy submitted that in relation to the Declaration of Trust too little weight had been given to the following items of evidence:-

a) The judgment of District Judge Madge (which it was accepted could not establish the genuineness of the Declaration of Trust but was at least evidence that it was being referred to in 1995). The Master did take account of this but noted that District Judge Madge did not have the Nationwide file;

b) The first version of the Articles of Incorporation of the Delaware corporation effective from 17 March 2000 which referred that Corporation managing some assets under an English will of Hadi Ghassemian, including the Property. The Master noted this and observed that the reference cannot have been to the Will (which was dated later). Counsel for Mrs Sartipy relied as evidence of the bona fides of these Articles upon a reference to them in the judgment of Mr Justice Patten in Re Equity & Provident Limited [2002] EWHC 186 (Ch), but this only served to bring to my attention the judge's finding in that case that Mr Langroody had fabricated documents [36] and [52] and was "devious and dishonest" [65];

c) The second version of the Articles of Incorporation of the Delaware corporation dated 14 June 2001 which specifically mentioned the Will, which in turn mentions the interest of Hadi Ghassemian in the Property (though the Master noted that on the evidence this had not been registered in Delaware);

d) The papers produced by Mr Langroody at the hearing on 9 August 2012 referring to yet another case involving the Property in which it was said Hadi Ghassemian was the equitable owner of the Property (which in fact the Master considered in detail, noting differences between Mr Langroody's hearing bundle and the contents of the file of the solicitors acting for the claimants in that case);

e) An unsigned letter purportedly from Mrs Sartipy to the Court in relation to that case which mentions " my husband and me" fighting the case;

f) A Power of Attorney dated 6 February 2001 apparently made by Hadi Ghassemian in connection with proceedings in which he refers to himself as "beneficial title holder ….in accordance with a Declaration of Trust dated the 13^th day of June 1986..";

g) The stamp of Milestone Tutorial College was recognised by Mrs Smart as that actually used, and the genuineness of the stamp should simply have outweighed the evidence about the nature of the college, it staff structure and employees;

h) A decision of The Leasehold Valuation Tribunal in 2001 (which showed only that Mr Langroody had represented the owners of the Property but which on this appeal Tigris accepts indicates that Hadi Ghassemian was then saying he held the equitable interest in the Property and was asserting locus to participate).

i) An Iranian will made in June 2001 that referred to "my debt because of my flat in London".

35. Such a comparison of course focuses upon some only of the material that was before the Master and undertakes an analysis of it outside the atmosphere of the trial. In particular it leaves out of account both the known propensity to fabricate documents and the refusal of Mrs Sartipy to be cross examined on her explanation as to why she did not disclose earlier that she was a bare trustee of the Property (given, according to Mr Langroody's evidence, the number of occasions upon which this had been made clear and given the discussions about the Will). What Counsel for Mrs Sartipy submitted was that, notwithstanding those proper grounds for suspicion, the number of documents, their dates, their source and their quality demonstrated that on the balance of probabilities the Declaration of Trust was executed on the date it bore and for the purpose it stated: and any other finding was perverse.
36. The Master accepted that by 1995 the Declaration of Trust was in existence and was being referred to, not least in the judgment of District Judge Madge; and that thereafter it was relied on in a variety of cases. What he was troubled about was its earlier existence. This issue had not been addressed by District Judge Madge. It is important to see why. Paragraphs 17 of the 1996 judgment was in these terms:-

"I noted from the exchange of correspondence in the bundle that those instructed by Barclays initially questioned the veracity of [another document and] the subsequent 13/06/1986 declaration of trust. However, upon Mills Thomas … writing to confirm that they had drafted [another document and] the declaration, but they only held the original signed copy of the declaration on their file and were, if required, prepared for it to be inspected at their offices or to be forwarded onto those now instructed – Barclays decided not to pursue that point further. I should also say that Mr Ghassemian had obtained evidence from the landlord of the flat who held on their files a copy of the signed declaration under cover of a Mills-Thomas letter dated 08/07/1986."

Strictly speaking, the truth of what Mills-Thomas had written to the West London County Court in 1996 was not direct evidence before the Master (although the fact of their having written in those terms was). But plainly any analysis of events which concluded that it was improbable that the Declaration of Trust was what it purported to be and more likely that it had been brought into existence in 1995 would have to take account of the fact that Mills-Thomas had written in those terms.

37. The Master said (correctly) that District Judge Madge did not have before him the Nationwide files and that his decision was the decision of another judge on different evidence. So an important question is: what was in the Nationwide files?
38. In my working copy of the appeal bundle the section containing the Nationwide files Part 2 "Mortgage Application" included a letter dated 8 July 1986 from Mills-Thomas & Co to Holding & Management Ltd (the landlords) bearing the reference of Mr Catt and making reference to "a copy of the declaration of trust executed by our clients on 13^th June in respect of the above property". This could not prove that the document referred to was the Declaration of Trust: but it appeared to establish that in July 1986 there existed a document dated 13 June 1986 which demonstrated that Mrs Sartipy was not the absolute beneficial owner.
39. After the conclusion of the appeal hearing I received a document entitled "Closing Submissions of the Respondent", though it was not signed by Mr Leigh of Counsel. Paragraph 9 of that document was in these terms:-

"Mrs Sartipy submits that the Master was wrong to find that there is no reference in the Nationwide files to anyone other than Mrs Sartipy being the owner of the Property and relies on the letter dated 16/1/1996 from those acting for Barclays in 1995/96, Harry I Alkin solicitors, whose correspondence appears on the Nationwide files [B2/586] and a letter written 10 years earlier by Mills-Thomas Solicitors dated 08/07/1986 [B2/620: 2 pages are numbered the same] to the then freeholder/managing agent: Holding & Management Ltd. Although that letter was drafted three weeks after the date of the Declaration of Trust (13/6/1986) Tigris submits that still does not conclusively prove the Declaration of Trust was executed on that 13/6/1986 day. Yet the court may come to find that on balance it was."

40. Paragraph 11 of that "Closing" document was in these terms:-

"Tigris presented its case not knowing that a Declaration of Trust existed. Unfortunately for whatever reason only the above referred covering letter from Mills Thomas solicitors dated 08/07/1986 survived in the Nationwide files without the Declaration of Trust itself that was enclosed with it. The mortgage file obtained by Tigris from from Nationwide has various pages blank. It may well be those blank pages were what used to be the Decoration of Trust. As such Tigris did not have sight of the actual Declaration of Trust when it took the initial position that no trust existed and or was a forgery."

41. When I circulated a draft judgment it became clear that the position of both parties to the appeal was that the letter of 8 July 1986 had been misfiled in the appeal bundle (as the second page 620 in bundle B2) and that it was not before the Master. As to the "Respondent's Closing" (which referred to the document as being in the Nationwide files and moreover gave the correct reference to it in my working appeal bundle) Mr Leigh disowned it. He said that it was not written in his customary style or presented in his customary format, that no trace of the document could be found on his computer, that his Instructing Solicitor had not seen it, and his opponent (Mr Upton) did not have a copy of it (and he most certainly would have copied to Mr Upton anything which was submitted to the Court on behalf of Tigris). There was much excitable speculation as to the provenance of this document into which I decline to enter.
42. Both parties told me that notwithstanding its apparent incorporation (in my appeal bundle) into an exhibit to a witness statement made on 7 August 2012 the letter of 8 July 1986 had only been put before the Court in November 2013 as part of an exhibit to an application to adduce fresh evidence (which I refused on 6 December 2013).
43. In these extraordinary circumstances I must determine the appeal on the footing that the letter of 8 July 1986 was not before the Master because it was not in the copy of the Nationwide file which he had.
44. When I indicated that view, Counsel for Mrs Sartipy submitted (without notice) (a) that his client had not drawn up an Order dismissing her application to adduce fresh evidence on the appeal (b) it was therefore open to her to ask the Court to revisit that order (c) there was a change in circumstances because it could be seen that the letter of 8 July 1986 was significant (d) I should admit as fresh evidence a photocopy of the letter of 8 July 1986. I refuse that application. For the purposes of considering the application to adduce fresh evidence on the appeal I assumed that the Ladd v Marshall criteria were satisfied (including that the evidence, if admitted, would have an important influence on the appeal) and refused the application on discretionary grounds. There has been no change in those circumstances. So I will not revisit my earlier order.
45. In paragraph 31 of this judgment the learned Master held:-

"Without exception, all the documents obtained from the Nationwide are consistent with the Defendant being the sole and absolute owner of the property. The first suggestion that may not be the position so far as Nationwide…. is concerned is that contained in a letter dated 16^th January 1996 from Harry L Alkin solicitors reporting a claim made on the half of the Defendant by recently instructed solicitors that she holds as a bare trustee for her son. There is nothing on the files obtained from Nationwide prior to that to suggest that the defendant Mrs Sartipy was merely a bare trustee …nor is there any reference in any document on the Nationwide files to the Declaration of Trust..".

In this it is agreed he was correct.

46. I pay tribute to careful and conscientious judgment of the Master. The parties required the Master to make a decision on written material and must both live with the difficulties which that has caused. This left the Master to puzzle over what amongst the various photocopied documents he felt he could trust and what he felt was doubtful, and to do so knowing that Mrs Sartipy declined to be cross examined upon the doubtful questions. He approached that task with evident care. He decided that (notwithstanding the absence of any case that it was forged) he was not persuaded as to the authenticity of the Declaration of Trust. This was an evaluation requiring different factors being weighed the one against the other.
47. I have a strong impulse to uphold his judgment (i) because the whole conduct of this entire litigation on the part of Mrs Sartipy has been disgraceful, (ii) because the decisions of Masters on Part 8 claims are not as a matter of policy to be treated as open to appeals on fact and (iii) because the nature of the decision is an evaluative one (not the exercise of a discretion, but of a complex nature where a similar approach maybe justified: see Assicurazioni Generali SpA [2002] EWCA Civ 1642 at [16]ff). Because of that impulse I have given the most anxious consideration to Mr Upton's well structured submissions to the effect that the Master erred in law in deciding that he was not satisfied as to the authenticity of the Declaration of Trust because he did not sufficiently address the evidence that was produced as to the existence of a trust in July 1986.
48. Questions of weight are for the trial judge. In complex evaluative decisions the question for the appeal court is whether it can identify any element in the evidence which the trial judge failed to take into account in his evaluation, or some element that was wrongly taken into account, or whether the outcome is so plainly wrong that such an error must have been made.
49. Given that the letter of 8 July 1986 was not before him, the troubling point on the appeal is whether the Master (in expressing the view that he was not satisfied that Mills-Thomas had drafted the Declaration of Trust and that he was not satisfied that it existed in 1986) took into account that part of DJ Madge's judgment that referred (a) to a letter having been written by Mills-Thomas (presumably to Barclays Bank) in 1995 saying that they had drafted the Declaration of Trust and held the original on their file; and (b) to "evidence" from the landlords of the Property that they held a copy of the signed Declaration of Trust received under cover of a Mills-Thomas letter dated 8 July 1986. As I indicated in paragraph [36] above any view that the Declaration of Trust was probably created in 1995 must I think address the record (in a judgment) of evidence of Mills-Thomas' claim to authorship of a document dated 1986 and retention of a copy of it on their files and to their apparent authorship of a letter dated 1986 referring to the existence of a document demonstrating that Mrs Sartipy was a trustee.
50. In paragraph [60] of his judgement the Master specifically refers to these parts of the judgment of D J Madge: and in paragraph [70] he notes that he does not have copies of the documents referred to. He therefore did not overlook the existence of this material. The question is: did he take it into account? And if so, how?
51. The Master reached his conclusion that he was not satisfied upon the authenticity of the Declaration (a) because he did not have the original Declaration of Trust (b) because the Nationwide file showed Mrs Sartipy acting as a beneficial owner would act both before and after the date of the Declaration (c) because real doubt surrounded the circumstances of the execution of the Declaration of Trust (having regard to evidence about witnesses in 1986) (d) because the form of the document (the absence of a reference and its language and style) did not suggest that it had been drafted by Mills-Thomas and (e) Mrs Sartipy would not be cross-examined. I have thought hard about this, but I have concluded that the Master was bound to address what D J Madge said about the material before him (even if the Master did not have a copy of the letter dated 8 July 1986). If the document was probably not drafted by Mills-Thomas and probably not executed in 1986 what is to be made of D J Madge's record of the material before him?
52. I therefore feel constrained to allow the appeal.
53. What order should follow? It is wrong to decide on appeal and on written evidence an issue surrounded by such suspicion. I remit the issue for trial before a Master with oral evidence (and I see no reason why Master Teverson should not conduct that trial).
54. I was originally dissuaded from that course by two passages in the "Closing" document. Paragraph 27 said:-

"If the appeal is allowed Tigris will not resist any application by Mrs Sartipy under CPR 73.9 to set aside the charging order made in the QBD".

Paragraph 30 said:-

"Tigris does not seek to challenge the remaining grounds of the appeal and on the appeal being allowed will take a pragmatic approach not to pursue the case further".

But Mr Leigh disclaimed the document as his and so I make the order remitting the case for the issue to be determined at a trial.

55. In the circumstances I need not refer to the third ground of appeal, namely, that the court erred in finding the Declaration of Trust to be a sham. It was unnecessary to the decision actually made: and it was not a case that had been argued..
56. My provisional view on costs is that there should be no order as to costs on the appeal. Mrs Sartipy brought the Part 8 claim upon herself: from the form of the registration through to the conduct of the defence in the Charging Order proceedings she gave Tigris every reason to believe that she was the absolute owner of the Property. Belatedly (days before the disposal hearing) she took the point. Both sides thereafter placed the Master in an almost impossible position by a cascade of evidence filed without permission, and by requiring the Master to decide the issue on written evidence alone; and Mrs Sartipy compounded the difficulties faced by the Master by declining to attend for cross-examination. So I am not inclined to make any order about costs.
57. This view is a provisional one given to assist the parties in disposing of the litigation. If either wishes to argue the matter of costs I will, of course, consider the matter entirely afresh: and written notice of intention to apply for a costs order should be given to the other side and to the Court within 14 days after handing down, and the appropriate arrangements made by the party or parties applying.