Peters v Joseph - Property Ownership Dispute

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  Peters   v Joseph [2026] EWHC 775 (Ch) (31 March 2026)

URL: https://www.bailii.org/ew/cases/EWHC/Ch/2026/775.html
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[2026] EWHC 775 (Ch) | | |
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| | | Neutral Citation Number: [2026] EWHC 775 (Ch) |
| | | Appeal Reference: CH-2025-000137 |
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
CHANCERY APPEALS (ChD)
On appeal from the order of Recorder Eaton Turner
made in the County Court at Central London on 29th July 2024,
but sealed on 21st October 2024 ? (Case Number: J10CL421)

| | | Rolls Building
7 Rolls Buildings
Fetter Lane
London, EC4A 1NL |
| | | 31st March 2026 |
B e f o r e :

MR JUSTICE EDWIN JOHNSON

Between:
| | ASHLEY PETERS | Appellant/
Claimant |
| | and | |
| | MARY JOSEPH | Respondent/
Defendant |

**Ben Waistell (instructed by Paris Smith LLP) for the Appellant
The Respondent, Mary Joseph, in person

Hearing date: 18th February 2026**

HTML VERSION OF JUDGMENT ____________________

Crown Copyright ©

3. Remote hand-down: This judgment was handed down remotely at 10.30am on Tuesday 31 st March 2026 by circulation to the parties and their representatives by email and by release to the National Archives.
5. Mr Justice Edwin Johnson:
7. Introduction
8. This is a dispute over the ownership of a residential property known as 1 Cicely Road, London SE15 5HW ("the Property"). The freehold title to the Property is registered. The current registered proprietor of Property is Ms Mary Joseph. Ms Joseph is the Defendant in this action and the Respondent in the appeal. I will refer to Ms Joseph as "the Respondent".
11. The Claimant in this action and the Appellant in the appeal is Mr Ashley Peters, to whom I will refer as "the Appellant". The Appellant is one of the four children of the Respondent and her former husband (now deceased) Peter Enulue. For ease of reference, and with no disrespect intended, I will refer to Mr Enulue, who died in June 2019, as "Peter".
14. The Respondent and Peter were originally married in Nigeria in 1985, by which time Peter had already relocated to the UK. The Respondent joined him in the UK in 1985. The couple had a church wedding in the UK in 1996. They separated in 1998 and were divorced in 2002.
17. The Respondent's case is that the Property was, prior to Peter's death, held on trust for herself and Peter as joint tenants in equity, with the consequence that, on Peter's death, his jointly held share of the beneficial interest in the Property passed to her by virtue of the doctrine of survivorship.
20. The Appellant's case is that, by a declaration of trust entered into between the Respondent and Peter and dated 3 rd January 1997 ("the Declaration of Trust"), the Property was declared to be held upon trust for Peter and the Respondent as tenants in common, with Peter being entitled 99% of the beneficial interest in the Property, and the Respondent being entitled to 1% of the beneficial interest in the Property. The Appellant's case is that Peter left a will, dated 28 th May 2010 ("the Will"), by which he left his estate to the Appellant. As such, the Appellant's case is that Peter's 99% share of the beneficial interest in the Property devolves to him, as part of Peter's estate ("the Estate"), by virtue of the Will.
23. This dispute came before Recorder Eaton Turner, for trial ("the Trial"), on 28 th and 29 th July 2024. The Respondent's case before the Recorder was that both the Declaration of Trust and the Will were forgeries, that she had never been a tenant in common of the beneficial interest in the Property, and that she and Peter had been, until his death, joint tenants of the beneficial interest in the Property.
26. For the reasons set out in a judgment handed down on 28 th June 2024 ("the Judgment"), the Recorder concluded that the Declaration of Trust was a forgery, and that Peter's joint share in the beneficial interest in the Property passed by survivorship to the Appellant. Effect was given to the Judgment by an order made by the Recorder on 29 th July 2024 ("the Order"). The Order, which was not sealed until 21 st October 2024, included the following declaration:
28. "1. The Property was, prior to the death of the Deceased, owned by the Deceased and the Defendant as joint tenants, such that the Property passed to the Defendant by survivorship upon the Deceased's death in June 2019."
30. The Recorder refused permission to appeal against the Order for the reasons he set out in a separate and shorter judgment ("the PTA Judgment") delivered at the hearing to deal with matters consequential upon the Judgment, on 29 th July 2024.
33. The application for permission to appeal ("the Permission Application") was renewed to this court. In his appellant's notice the Appellant also made an application for permission to rely upon further documents, which the appellant had obtained after the Trial, pursuant to CPR 52.21(b). I will refer to this application for permission to rely upon these further documents as "the Evidence Application".
36. The Permission Application and the Evidence Application came before me, for paper determination, on 23 rd October 2025. By an order made on that date I directed that there should be a hearing of the Evidence Application and the Permission Application, with the hearing of the substantive appeal ("the Appeal") to follow (if the Permission Application was granted).
39. The Permission Application, the Evidence Application and (subject to the question of permission) the Appeal came before me for hearing on 18 th February 2026 ("the Hearing"). I did not make a decision on the Permission Application or the Evidence Application (together "the Applications") at the Hearing. Instead, at the Hearing I heard the arguments on the Applications and, subject to the outcome of the Applications, the arguments on the Appeal itself.
42. This is my reserved judgment on the Applications and, subject to the outcome of the Applications, the Appeal.
45. At the hearing of the Applications and the Appeal, the Appellant was represented by Mr Waistell, counsel. The Respondent appeared in person. I am grateful to Mr Waistell and to the Respondent for their assistance, by their submissions, in the making of my decision on the Applications and the Appeal.
48. The conventions of this judgment
49. Reference to Paragraphs in this judgment, without more and unless otherwise indicated, are references to the paragraphs of the Judgment. I will refer to the beneficial interest in the Property as "the Beneficial Interest". Italics have been added to quotations in this judgment.
52. The background to the dispute
53. The evidence before the Recorder was that the Respondent and Peter originally took a tenancy of the Property, as tenants of the London Borough of Southwark ("Southwark"), in 1996. They had previously lived in a flat in Peckham, as council tenants, with their children. Three of their four children, not including the Appellant, have disabilities. In 1995 the Respondent and Peter applied to Southwark to be rehoused, on the basis that it was dangerous for their three children with disabilities to have to use a lift. The family were then rehoused in the Property in 1996, where the opportunity arose to purchase the freehold title to the Property from Southwark pursuant to the right to buy legislation. The Respondent and Peter decided to take up this opportunity and, by a transfer dated 17 th March 1997, the freehold title to the Property was transferred by Southwark into the joint names of the Respondent and Peter. The Property was purchased with the assistance of a mortgage loan from the Cheltenham & Gloucester Building Society.
56. The Respondent is now the sole registered proprietor of the Property. I assume however that both the Respondent and Peter were registered as joint proprietors of the freehold title to the Property, pursuant to the transfer from Southwark. The Judge records, at Paragraph 22, the Respondent's explanation that, following Peter's death, she provided a copy of his death certificate to the Land Registry, which then recorded the Respondent as the sole registered proprietor of the freehold title to the Property.
59. According to the conveyancing documents in the trial bundle the solicitors who acted for the Respondent and Peter on the purchase of the Property were a firm called Titus Miranda, based in Denmark Hill, London. The Judgement records, at Paragraph 26, that this firm no longer exists.
62. The Declaration of Trust, which I have already mentioned and which the Judge found to have been a forgery, appears in the trial bundle as a photographed version of the original document (or a photographed version of a copy of the original document). The Declaration of Trust bears the stamp of Titus Miranda. It was expressed to have been made between Peter, as the first party, and the Respondent, as the second party. The recitals to the Declaration of Trust purported to record that Peter and the Respondent, who were described as the "Co-owners", had jointly acquired an undivided interest as tenants in common in the Property, and were entering into the Declaration of Trust "to set out the terms governing their relationship as Co-owners of the Property and provide for the orderly administration of the Property". Clause 1 of the Declaration of Trust then purported to record the agreement of Peter and the Respondent that they should hold the title to the Property as tenants in common, in percentages of 99% for Peter and 1% for the Respondent. The Declaration of Trust bore what purported to be the signatures of the Respondent and Peter.
65. There is one other document which I should mention, in relation to the original purchase of the Property. This is what purports to be a (photographed) version of a document (or a photographed version of a copy of the original document) described as a purchase agreement form. The purchase agreement form also bears the stamp of Titus Miranda.
68. In a recital to the Order it is recorded that the Recorder had determined that this purchase agreement form ("the Purchase Agreement Form") was, along with the Declaration of Trust, also a forgery. So far as I can see, there was no formal finding to this effect in the Judgment.
71. On its face the Purchase Agreement Form was identified as a document required by Titus Miranda before they could act for the Respondent and Peter on the purchase of the Property. The Purchase Agreement Form purports to bear the signatures of the Respondent and Peter, which are dated 3 rd January 1997. The purpose of the Purchase Agreement Form, if it was genuine, appears to have been to provide Titus Miranda with information about the proposed purchase of the Property. For present purposes the most relevant pieces of information recorded in the Purchase Agreement Form were located in the last two information boxes. The penultimate information box required identification of whether the purchasers were purchasing as joint tenants or tenants in common. The square brackets with a "Yes" for "Tenants in Common" were shown as ticked. The final information box asked whether a trust deed was required. The square brackets for "Yes" were shown as ticked.
74. I have said that, so far as I can see, there was no formal finding in the Judgment to the effect that the Purchase Agreement Form was a forgery. In this context I should mention that there is, in Paragraph 54, a sentence in which the Recorder states "the Purchase Agreement Form, at least in the form now relied upon, was a forgery.". I understand this sentence however to be part of the Recorder's summary of the Respondent's evidence in cross examination, which was that she might have signed the Purchase Agreement Form, but had not ticked "Yes" for the "Tenants in Common" box.
77. As I understand the position, the Property was originally occupied by the Respondent, Peter and their four children, including the Appellant, as their family home. As I have already described however, the Respondent and Peter separated in 1998 and divorced in 2002. Peter later remarried, and had a son with his second wife.
80. The history of the occupation of the Property, following the breakdown of the marriage between the Respondent and Peter, is not entirely clear to me. It appears that the Respondent moved out of the Property, initially with the children, while Peter remained in occupation of the Property. Subsequently, the children, or at least some of them, returned to live with Peter in the Property, whilst the Respondent remained living elsewhere. What is relevant for present purposes is that, following Peter's death, the Respondent appears to have resumed or to have sought to resume some level of occupation of the Property, which generated a dispute between the Appellant and the Respondent over occupation of the Property. This in turn resulted in two sets of proceedings, one of which is this set of proceedings (J10CL421), which I shall refer to as "the Property Claim".
83. So far as the Property Claim is concerned, it was not commenced by claim form, but appears to have had its origin in a claim made by the Appellant for an injunction against the Respondent to restrain her from interfering with the Appellant's occupation of the Property. This, in turn, brought into issue the question of ownership of the Beneficial Interest.
86. In a separate set of proceedings (J10CL420) the Appellant sought the family law remedies of a non-molestation order and an occupation order, pursuant to the Family Law Act 1996, against the Respondent. I will refer to this separate set of proceedings as "the NMO Claim".
89. I should also make reference to a third set of proceedings (J10CL372), which have been commenced by Peter's second wife, Ms Millicent Lewis-Enulue, and their son, Jared, by which Ms Lewis-Enulue and Jared seek relief against the Estate pursuant to the Inheritance (Provision for Family and Dependants) Act 1975 ("the 1975 Act Claim"). The defendants to the 1975 Act Claim are the Appellant and the Respondent.
92. I should mention that, although it is the Respondent's case that the Will is a forgery, the Appellant obtained a grant of probate in respect of the Will on 29 th March 2020. The Will appointed the Appellant as sole executor and trustee of the Estate.
95. The procedural history of the Property Claim, the NMO Claim and the 1975 Act Claim (together "the Claims") is complicated. For present purposes I need only make reference to the following three parts of the procedural history of the Claims.
98. On 24 th June 2022 the Appellant gave a series of undertakings to the County Court at Clerkenwell & Shoreditch, at what I assume to have been a hearing in that court, in relation to the Property Claim and the NMO Claim. The terms of the undertakings, which were written out in manuscript on the court form used to record undertakings, are not easy to understand. They appear to have been intended to function as a set of mutual undertakings between the Appellant and the Respondent, by which the parties each undertook to the court not to interfere with the property of the other or with the other's use of the Property. I assume that the intention behind the undertakings was to regulate the dispute between the Respondent and the Appellant over use and occupation of the Property. I note that, in the Order, there is a recital recording the confirmation of the Respondent that she had given undertakings to the court on 24 th June 2022 in equivalent terms to those given by the Appellant. I also note that, in the Order, the Respondent gave undertakings to the court, in much the same terms as the original undertakings given to the court on 24 th June 2022, which were to continue until determination of the Permission Application and, if permission to appeal was granted, until disposal of the Appeal.
101. The undertakings given on 24 th June 2002 were drafted in broad terms, and imposed extensive restraints upon each party in relation to the Property. As the manuscript recording of these original undertakings is not entirely clear, I will quote the terms of the continued undertakings given by the Respondent in the Order. Those continued undertakings are in materially the same terms as the original undertakings given on 24 th June 2022 by the Appellant (for the benefit of the Respondent) and, it appears, given by the Respondent (for the benefit of the Appellant):
103. "(i) Not to touch or use the Claimant's belongings without permission;
104. (ii) Not to change the locks at the Property;
105. (iii) Not to turn off the washing machine in the Property:
106. (iv) Not to disconnect the wi-fi in the Property;
107. (v) Not to harass the tenants or other visitors at the Property;
108. (vi) To allow the Claimant peaceful and quiet enjoyment and occupation of the Property;"
110. I will refer to the original undertakings given by the Appellant on 24 th June 2022 as "the Undertakings". As I have said, the Undertakings were in materially the same terms as the undertakings given by the Respondent in the Order which I have just quoted, subject to the obvious point that the Appellant was, by the Undertakings, undertaking not to interfere with the Respondent's belongings and occupation of the Property.
113. On 5 th December 2022 the 1975 Act Claim came before Deputy District Judge Grant, sitting in the County Court at Central London, for a directions hearing. Also before the Deputy District Judge at that hearing were the NMO Claim and the 1975 Act Claim. By an order made at that hearing, but not drawn up until 7 th August 2023, the Deputy District Judge directed that the Claims should be heard and case managed together. The Deputy District Judge also gave detailed directions in the 1975 Act Claim. So far as the Property Claim was concerned, the Deputy District Judge gave directions (i) for the Appellant's case that the Declaration of Trust was valid and effective to be deemed to be Points of Claim and (ii) for any party who disagreed with the Points of Claim to file Points of Defence in relation to the dispute over the ownership of the Property. The Deputy District Judge also made a declaration that the Declaration of Trust was valid and effective, but also ordered that this declaration should only take effect if no party served Points of Defence in response to the Points of Claim. In the event the Respondent did serve a document, which was described as Points of Claim but which I assume was treated as a Points of Defence, which disputed the validity of the Declaration of Trust. As such, the declaration made by the Deputy District Judge did not have effect.
116. The Property Claim and the 1975 Act Claim came before Judge Dight CBE for a directions hearing in 2023. By an order drawn up on 20 th October 2023 Judge Dight directed that the Property Claim should be tried separately to the 1975 Act Claim, and gave directions for the listing of the trial of the Property Claim. It is not entirely clear whether the NMO Claim was also before Judge Dight at this hearing, but the Judgment records, at Paragraph 20, that both the Property Claim and the NMO Claim were listed before the Recorder for the Trial. According to Paragraph 20, the Recorder explained to the parties, at the outset of the Trial, that he did not have authorisation to hear matters brought pursuant to the Family Law Act 1996, and suggested that the Property Claim and the NMO Claim be listed before a judge with authorisation to hear both of these two Claims. According to Paragraph 20, the parties pressed the Recorder to deal with the Property Claim, even if the NMO Claim had to be adjourned and relisted. Thus it was, I assume, that the Trial was the trial only of the Property Claim.
119. The procedural history of the Claims is relevant to the Applications and the Appeal for two reasons. First, there were only limited case management directions in the Property Claim. In particular, there was no order for disclosure. Second, the Appellant has, since 24 th June 2022, been subject to the Undertakings. So far as I am aware, the Undertakings have yet to be discharged.
122. So far as the Trial itself is concerned, there is only one matter which I need to mention at this stage, which is relevant to the grounds of appeal. Both the Appellant and the Respondent appeared in person at the Trial. According to the PTA Judgment, an order was made by His Honour Judge Genn, on 20 th February 2024 (I have not seen a copy of this order), which directed a procedure for the Trial whereby each party would submit to the court their cross examination questions, in advance of the Trial. At the Trial the court would then conduct the cross examination of each party, using the questions prepared and submitted to the court by the other party. The Appellant duly submitted a list of 94 questions to the court, but unfortunately they were misplaced, I assume by the court, and did not reach the Recorder. In these circumstances the intended procedure was not followed, and the Appellant was left to conduct his own cross examination of the Respondent at the Trial.
125. The Evidence Application ? the new evidence sought to be introduced
126. Before I come to the grounds of appeal, it is necessary to explain what further evidence the Appellant seeks to introduce, by the Evidence Application.
129. The Evidence Application is supported by a witness statement of the Appellant which is dated 7 th November 2024. The further documents upon which the Appellant wishes to rely ("the Further Documents") are exhibited to the witness statement.
132. The Further Documents fall into three categories. Before I summarise these categories, I should make the important initial point that the Respondent does not accept the authenticity of those of the Further Documents which are relied upon by the Appellant as demonstrating that Peter and the Respondent were tenants in common of the Beneficial Interest in 99%/1% shares. Where, in this and subsequent sections of this judgment, I describe and/or quote from particular documents within the Further Documents, I do so without prejudice to the question of their authenticity.
135. The first category of documents ("Category 1") comprises hard copy documents which the Appellant says that he discovered in the loft at the Property, following the Trial and over the weekend of 10 th /11 th August 2024, in a briefcase which had belonged to Peter. The documents comprise historic bank statements and an exchange of correspondence between the Respondent and Peter. In relation to the documents in Category 1 the Appellant places the most reliance on the exchange of correspondence, which comprises letters between the Respondent and Peter dated, respectively, 1 st July 2001 and 20 th August 2001. The Appellant's case is that this exchange shows the Respondent demanding from Peter, by her letter of 1 st July 2001, a greater share of the Beneficial Interest than 1%; thereby acknowledging that her then existing share of the Beneficial Interest was limited to 1%.
138. The second category of documents ("Category 2") comprises eight screenshots of emails which the Appellant says that he found on a computer belonging to Peter. The Appellant's evidence is that the computer had been in the living room of the Property, to which he did not have access, by reason of the Undertakings; that is to say the undertakings which he had given to the court on 24 th June 2022. This was because the Appellant had undertaken, by the Undertakings, not to interfere with the Respondent's use and occupation of the Property, which included use and occupation of the living room. The Appellant says that the Respondent placed the computer outside the living room, in the corridor, after the Trial. The Appellant retrieved the computer over the weekend of 10 th /11 th August 2024, accessed the computer and found the emails. The emails comprise a series of emails sent by the Respondent to Peter in 2009, concluding with a response from Peter to the Respondent. The first screenshot is dated 24 th February 2009. The final screenshot in the series, comprising the reply from Peter, is dated 31 st March 2009. The Appellant's case is that these emails demonstrate that the Respondent was well aware, in 2009, that she was only entitled to 1% of the beneficial interest in the Property.
141. The third category of documents ("Category 3") comprises screenshots of emails which were sent by Peter to Mr Mbanwa, the Appellant's uncle, on 1 st January 2019. On 9 th August 2024 the Appellant sent a WhatsApp message to Mr Mbanwa, in the following terms:
143. "Good morning uncle
144. I need your help
145. I am trying to find any additional evidence regarding the purchase of my home 1 Cicely Road
146. Did my dad forward you any letters or correspondence between him and Mary?
147. I tried to gain access to my dad's computer but Mary has unplugged it and I cannot find the power lead."
149. In response to this inquiry Mr Mbanwa sent to the Appellant what appear to be screenshots of three emails from the Respondent to Peter, which Peter had forwarded to Mr Mbanwa on 1 st January 2019. The emails from the Respondent appear to be from the same series of emails in February/March 2009, which comprise the emails in Category 2. As such, the Appellant's case is that the emails in Category 3, from a different source, demonstrate that the Respondent was well aware, in 2009, that she was only entitled to 1% of the Beneficial Interest. I will use the collective expression ("the 2009 Emails") to refer to the email documents in Categories 2 and 3.
152. The Appellant's case is that the Further Documents and, in particular, the correspondence and the 2009 Emails mentioned above, comprise important evidence which the court, in the exercise of its discretion and in accordance with the principles governing the admission of fresh evidence on appeal, should permit the Appellant to rely on, in support of the Permission Application and the Appeal.
155. The grounds of appeal
156. There are four grounds of appeal, as follows:
158. (1) The first ground of appeal ("Ground 1") is that the Recorder erred in his conclusion that the Declaration of Trust was a forgery. The Recorder should have rejected the Respondent's allegation of forgery, and given effect to the Declaration of Trust, so that 99% of the Beneficial Interest passed to the Appellant pursuant to the Will. There are a number of specific arguments, or sub-grounds which are relied upon in relation to Ground 1, but I do not need to set them out individually at this stage. The overall argument is that the Recorder was wrong to find that the Declaration of Trust was a forgery ("the Forgery Conclusion").
159. (2) The second ground of appeal ("Ground 2") is that, in the light of the acknowledgments alleged to have been given by the Respondent in the 2009 Emails, the Respondent procured the Judgment by fraud and/or the proceedings were unjust and seriously irregular.
160. (3) The third ground of appeal ("Ground 3") is that the proceedings at the Trial were unjust on the basis of a serious procedural irregularity; namely that, as described above, the Appellant was forced to conduct a detailed cross examination without any notice or any opportunity to prepare. Had the correct procedure been followed, or if the Appellant had been given a fair opportunity to prepare his cross examination, the Respondent's evidence would likely have been rejected and the Appellant's case accepted.
161. (4) The fourth ground of appeal ("Ground 4") seeks to advance an alternative case to the effect that if, contrary to the Appellant's primary case, the Respondent and Peter did purchase the Property as joint tenants of the Beneficial Interest, that joint tenancy was severed by the conduct of the Respondent and Peter following their separation and divorce, with the consequence that they were tenants in common of the Beneficial Interest, each holding 50% of the Beneficial Interest, at the date of Peter's death. As such, and on this alternative case, Peter's 50% share of the Beneficial Interest passed to the Appellant, by the Will, on Peter's death.
163. There are two further points which I should make, in relation to Ground 1, at this stage:
165. (1) Included within the overall argument which constitutes Ground 1 there is the contention that the Recorder was also wrong to find, implicitly, that the Purchase Agreement Form was a forgery. I am not sure that it is quite correct to characterise this latter finding as "implicit". Although, as I have said, the Judgment does not appear to contain a formal finding that the Purchase Agreement Form was a forgery, there is a recital to the Order which records that the court had determined that both the Declaration of Trust and the Purchase Agreement Form were forgeries.
166. (2) In support of Ground 1, the Appellant seeks to rely upon the Further Documents and, in particular, the 2009 Emails. Whether the Further Documents or any of them can be considered in relation to Ground 1 depends upon the outcome of the Evidence Application.
168. In considering the Permission Application and the Appeal, I find it easiest to work through each of the grounds of appeal, and then, in relation to each ground of appeal, to reach my conclusion both on permission to appeal and, subject to my decision on that question, on the substantive ground of appeal. As I have explained however, the Appellant seeks to rely on the Further Documents in relation to the Permission Application and the Appeal. In these circumstances it necessary for me to decide the Evidence Application, before I come to the Permission Application and the Appeal.
171. The Evidence Application ? analysis and determination
172. The question of when an appeal court should admit new (fresh) evidence has been the subject of relatively recent consideration by the Court of Appeal in Kieran Corrigan & Co. Ltd v Timol [2024] EWCA Civ 1233 [2025] 3 All ER 838. The case was concerned with a claim brought by Kieran Corrigan & Co Ltd ("KCL"), an Irish company, against various defendants for breach of confidence. KCL's complaint was that the defendants had made use of KCL's confidential information for the purposes of designing and marketing a tax-saving structure. The defendants were OneE Group Limited, a company registered in England and Wales which was the vehicle by which the tax-saving structure was marketed and implemented, two tax advisers who worked for OneE Group, and Mr Timol, a director and minority shareholder of OneE Group.
175. At first instance, and following a trial on liability, the judge found the defendants to be liable, with the exception of Mr Timol. Mr Timol escaped liability on the basis that although he had been involved in the decision to market and implement the tax-saving structure, he had made the decision without reference to the confidential information and without being aware that the confidential information had been used in the design of the structure.
178. KCL appealed against the decision on liability, in relation to Mr Timol. Of the two grounds of appeal which remained at the hearing of the appeal, the first ground was that the judge had been wrong to find that Mr Timol was not liable for breach of confidence. The argument was that liability was strict and that Mr Timol could not escape liability on the basis that he did not know that the confidential information, which he had received, was being misused by other persons. This first ground of appeal failed. The Court of Appeal decided that, in circumstances where Mr Timol had not himself been using the confidential information, there was not enough to found primary liability for breach of confidence.
181. The second ground of appeal was that the Court of Appeal should set aside the factual findings of the judge, and order a retrial on the basis that KCL had discovered, since the trial, that Mr Timol had failed to disclose a number of documents which, so it was contended, demonstrated that Mr Timol had been familiar with the technical details of the tax-saving structure and had been put on inquiry that the structure had been developed using KCL's confidential information, before he had approved the marketing and implementation of the structure. KCL was successful in this second ground of appeal. It is the decision of the Court of Appeal on this second ground of appeal which is relevant in the present case.
184. In his judgment, with which Andrews and Baker LJJ agreed, Snowden LJ summarised, at [74]-[83], the law on the admission of fresh evidence on appeal and on the question of when it was appropriate to order a retrial on the basis of fresh evidence.
187. At [74]-[76] Snowden LJ made reference to Hamilton v Al Fayed (No. 2) [2001] EMLR 15, at [11], and to Ladd v Marshall [1954] 1 WLR 1489, which had set out the principles governing the admission of fresh evidence on appeal, prior to the introduction of the CPR:
189. **"[74]* The discretion to admit the New Documents on appeal pursuant to CPR 52.21(2)(b) is to be exercised in accordance with the overriding objective. In Hamilton v Al Fayed (No.2) [2001] EMLR 15 at [11], Lord Phillips MR stated, when addressing the difference between the pre-CPR and post-CPR law on new (fresh) evidence:*
190. > '? We consider that under the new, as under the old, procedure special grounds must be shown to justify the introduction of fresh evidence on appeal. ? That question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless, remain powerful persuasive authority, for they illustrate the attempts of the courts to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. That task is one which accords with the overriding objective.'
191. **[75]* The old, pre-CPR, cases to which Lord Phillips MR referred include the well-known case of Ladd v Marshall [1954] 1 WLR 1489, which indicated that new evidence should only be admitted on appeal if (1) it could not have been obtained with reasonable diligence for use at trial, (2) the evidence is such that, if given it would probably have had an important influence on the result of the case (though it need not be decisive), and (3) it must be apparently credible (though it need not be incontrovertible).*
192. **[76]* In Hamilton v Al Fayed, Lord Phillips MR also addressed, at [26], the approach to be taken by the Court of Appeal when ordering a retrial: 'A new trial should be ordered when the interests of justice so demand. Where a party has behaved fraudulently, been guilty of procedural impropriety or some other irregularity has affected the fairness of the trial the vital question to be asked is whether there is a real danger that this has influenced the outcome. If there is, a retrial should normally be ordered. If there is not, the interests of justice require that the decision should stand.'"*
194. Counsel for Mr Timol sought to argue that the test for the admission of new evidence was that new evidence which might lead to a retrial could only be admitted on appeal if it was imperative in the interests of justice. Snowden LJ recorded this argument, and the authorities relied upon by counsel for Mr Timol at [77] and [78]:
196. **"[77]* Mr Budworth contended that Lord Phillips MR's approach understated the requirements for the admission of new evidence on appeal. He submitted that new evidence that might lead to a retrial could only be admitted on appeal if that was 'imperative in the interests of justice'. In support of that submission he relied upon Ras Al Khaimah Investment Authority v Azima [2021] EWCA Civ 349 ('Ras Al Khaimah') at [110], where this court (Lewison, Asplin and Males LJJ) stated:*
197. > '110. This court's power to receive fresh evidence is to be found in CPR Part 52.21(2). The general principles on which that power are exercised are in essence those established by Ladd v Marshall [1954] 1 WLR 1489, viz (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive and (3) it must be apparently credible. In an ordinary civil claim satisfaction of these criteria is a necessary but not a sufficient condition for the reception of fresh evidence: Khetani v Kanbi [2006] EWCA Civ 1621. If these criteria are met, the appeal court has a discretion to exercise. In deciding how to exercise that discretion this court held in Transview Properties Ltd v City Site Properties Ltd [2009] EWCA Civ 1255 at [23]:
198. > > "The interests of the parties and of the public in fostering finality in litigation are significant. The parties have suffered the considerable stress and expense of one trial. The reception of new evidence on appeal usually leads to a re-trial, which should only be allowed if imperative in the interests of justice." '
199. **[78]* Mr Budworth also referred to Dale v Banga [2021] EWCA Civ 240 at [42]?[43]. That case demonstrates that where it is contended on an appeal that fresh evidence shows that a judgment was obtained by fraud, the Court of Appeal can either determine that the issue should be resolved within the existing proceedings, or require the party alleging fraud to bring a new action to set aside the judgment for fraud. In deciding whether to adopt the former course, the Court of Appeal will decide, as a threshold question, whether the fresh evidence is capable of showing that the judge was deliberately misled and whether that dishonesty was causative of the judgment being obtained in the terms that it was. If satisfied on that threshold question, the court will then determine whether, in all the circumstances, it would be appropriate to make an order remitting the issue of fraud to be determined by the first instance court. Mr Budworth submitted that the approach of the Court of Appeal to a request for a retrial where it is not alleged that the new evidence was dishonestly withheld from the trial judge, could not be any less rigorous."*
201. Snowden LJ was not persuaded that there was any difference in principle between the approach of Lord Phillips MR in Hamilton v Al Fayed and the approach in Transview Properties as endorsed in Ras Al Khaimah. As Snowden LJ explained, at [79]-[80]:
203. **"[79]* For my part, although expressed in different language, I do not detect any real difference of principle between the approach of Lord Phillips MR in Hamilton v Al Fayed and that in Transview Properties as endorsed in Ras Al Khaimah. Both emphasise that the Court of Appeal will not admit new (fresh) evidence on appeal unless that evidence would probably have had an important influence on the result in the court below. I consider that to be synonymous with there being a real danger that the result below would have been different. The cases also show that in exercising its discretion the Court of Appeal will be concerned to strike a balance between the need for finality in litigation and the need for the judicial process to achieve the right result.*
204. **[80]* In striking that balance between the desirability for finality and achieving the right result, the Court of Appeal will take into account all the circumstances. So, for example, it may take into account the reasons for the new evidence coming to light and the conduct of the parties generally. If, as in the instant case, the reason why the new evidence was not available at trial was as a result of a failure by the successful party to disclose it in accordance with their obligations under the CPR prior to the trial, the arguments for the new evidence to be admitted in the interests of justice are likely to be stronger than if the evidence has become available from an independent source. The Court of Appeal may also take into account any delay in making the application, its proximity to the appeal hearing and whether the party facing the application is able to deal with it properly. As indicated in Transview Properties, the court can also take into account the general nature of the litigation and the burden on the parties of ordering a retrial."*
206. So far as Dale v Banga was concerned, Snowden LJ did not think that there was a difference of approach to be detected. As he explained, at [81]-[83]:
208. **"[81]* I also do not think that this approach is significantly different or requires to be modified by reference to Dale v Banga. That case concerned the question of what should be done by an appeal court where it is contended that fresh evidence, which does not go directly to the issues in the case, shows that the trial judge was deliberately misled. Dale v Banga concerned the attestation of a will and the case turned on the credibility of witnesses. The fresh evidence was said to show that a crucial witness that the judge had believed actually had a propensity to forge documents and act dishonestly in other aspects of his life. In such a case it is self-evident that the Court of Appeal would have to be satisfied, as a threshold question, that the fresh evidence was capable of supporting a pleading that the witness had deliberately misled the judge, and that such deception was causally linked to the result of the trial.*
209. **[82]* Although necessarily expressed in different terms, I do not consider that the approach to the threshold question identified in Dale v Banga is more rigorous than the requirement in Ladd v Marshall that new evidence which does go directly to the issues in the case under appeal should be apparently credible and would probably have had an important influence on the result.*
210. **[83]* I would also note that the approach to the exercise of the discretion whether to order the trial of the fraud issue by the lower court was said in Dale v Banga to be a broad one, to be exercised in light of all the circumstances. In my view that corresponds to the residual discretion whether to admit new evidence if it would lead to a retrial, as identified in Ras Al Khaimah."*
212. I was referred to other case law on the question of when an appeal court should admit new evidence, but for the purposes of the Evidence Application I do not think that it is necessary to make further express reference to the case law, beyond the decision in Kieran Corrigan. It seems to me that the relevant principles have been sufficiently set out by Snowden LJ in Kieran Corrigan. I now turn to the application of those principles to the Evidence Application.
215. In the application of those principles I find it most convenient to address the three questions in Ladd v Marshall, and then to consider the position more widely, in determining how the balance should be struck in the present case between the desirability for finality in litigation and achieving the right result. As Lord Phillips MR stated in Hamilton v Al Fayed (No. 2), cases such as Ladd v Marshall remain powerful persuasive authority on the question of whether new evidence should be admitted.
218. I will also take the second and third Ladd v Marshall questions first. The second Ladd v Marshall question is whether the Further Documents comprise evidence which is such that, if it had been given at the Trial, it would probably have had an importance influence on the result of the Trial. The third Ladd v Marshall question is whether the Further Documents are apparently credible. I will then come to the first Ladd v Marshall question which, on the facts of the present case, is considerably more difficult to answer than the second and third questions. The first Ladd v Marshall question is whether the Further Evidence could not have been obtained with reasonable diligence for use at the Trial.
221. In relation to the exchange of correspondence between the Respondent and Peter which comprises the final two documents in Category 1 ("the 2001 Exchange"), the importance of these documents, is obvious. The copy of the letter of 1 st July 2001 which I have seen, if it is a copy of a genuine letter sent by the Respondent to Peter on that date, contains the following statement:
223. "I am writing you this letter to demand what I deserve. I want you to give me a bigger share of the house 1 Cicely Road. I deserve more than 1% and I will get what I want one way or another."
225. The copy of the letter from Peter to the Respondent, apparently sent in reply to the Respondent' letter of 1 st July 2001 and if it is a copy of a genuine letter sent by Peter to the Respondent, contains the following statement:
227. "Whatever empty threats you make will not make me change our agreement. You do not even deserve the 1% I gave you because you have contributed nothing towards the mortgage."
229. These statements in the 2001 Exchange are consistent with the evidence of the Declaration of Trust. They support the argument that the version of the Declaration of Trust produced at the Trial is genuine, and not a forgery. They also support the argument, albeit in a more indirect fashion, that the version of the Purchase Agreement Form produced at the Trial is genuine, and not a forgery.
232. Turning to the 2009 Emails, all of the emails which, on their face, are shown as coming from the Respondent, are consistent with her having only a percentage share in the Beneficial Interest, as a tenant in common with Peter of the Beneficial Interest. The same applies to the email shown as coming from Peter to the Respondent. Several of the emails make specific reference to the Respondent only having a 1% share in the Beneficial Interest. By way of example:
234. (1) There is an email from the Respondent to Peter, apparently sent on 26 th February 2009, which is headed, "GIVE ME A BIGGER PERCENTAGE", and contains the following statement:
235. > "GIVE ME A BIGGER PERCENTAGE WHAT IS YOUR PROBLEM
236. > Even if I had only 10%, you would still have 90% of 1 Cicely Road.. Why are you so greedy?"
237. (2) There is an email from the Respondent to Peter, apparently sent on 27 th February 2009, which is headed, "Only 1% for your ex-wife", and contains the following statement:
238. > "Give me at least 10% ownership of 1 Cicely Road because 1% is too small. Are you seriously this wicked? I think your witch mother is controlling you"
239. (3) There is an email from the Respondent to Peter, apparently sent on 19 th March 2009, which is headed, "Greedy man and his 99% share", and contains the following statement:
240. > "Greedy man I hope you are proud of yourself 99% for Mr Enulue and he gave his ex-wife just 1%. Greedy greedy greedy.
241. > You have the kids, you have the house. Everything for Mr Enulue. Just give me 10% for goodness sake."
242. (4) The response from Peter to the emails from the Respondent, apparently sent on 31 st March 2009, contains the following statement:
243. > "I have seen all of your e-mails and I am not interested in talking to you about my house. 1% is all that you will ever have. You have your own home Oakdene."
245. The analysis of the 2009 Emails is essentially the same as my analysis of the 2001 Exchange. The content of the 2009 Emails is consistent with the evidence of the Declaration of Trust. This content supports the argument that the version of the Declaration of Trust produced at the Trial is genuine, and not a forgery. It also supports the argument, albeit in a more indirect fashion, that the version of the Purchase Agreement Form produced at the Trial is genuine, and not a forgery.
248. The Respondent contended, in her oral submissions at the Hearing, that the 2009 Emails were not genuine. The 2009 Emails show the Respondent's email address as a gov.uk email address for Her Majesty's Prison Service. I understood the Respondent to accept that at the relevant time, that is to say when the 2009 Emails were sent, she was working for the Prison Service. The Respondent's point was that she would not have been permitted to make use of her Prison Service email address to send personal email correspondence of this kind. The Respondent told me that she had never sent any of the 2009 Emails, and had never seen them before. The Respondent told me that everything her son, the Appellant, had produced from the beginning had been lies and forgery.
251. I am not in a position to make findings on the question of whether the 2009 Emails or the 2001 Exchange, in the form in which they have been produced, are genuine. On their face the copies and screenshots appear to be genuine copies and screenshots of genuine correspondence and genuine emails. Disputes over the authenticity of these documents would however need to be determined at a trial, at which the Respondent could give evidence and be cross examined and at which any other available methods for testing the authenticity of the documents could be pursued.
254. Returning specifically to the second Ladd v Marshall question, it seems to me that the Further Documents, at least so far as the 2001 Exchange and the 2009 Emails are concerned, comprise potentially important evidence. If this evidence had been available at the Trial, it would plainly have had an important influence on the result of the Trial. If this evidence had been before the Recorder at the Trial, the Recorder would have had two important questions to consider. First, and assuming a challenge to the authenticity of the communications, as now intimated by the Respondent, the Recorder would have had to consider the likelihood that all of these communications, in addition to the Declaration of Trust, the Purchase Agreement Form and the Will had all been fabricated. Second, and assuming that a challenge to the authenticity of the communications failed, the Recorder would have had to consider whether it was possible for the Declaration of Trust to have been forged, in circumstances where its content was entirely consistent with the 2001 Exchange and the 2009 Emails. Consideration of these two questions was, self-evidently, capable of having an important influence on the result of the Trial.
257. The third Ladd v Marshall question is whether the Further Documents are apparently credible. As I have said, I am not in a position to resolve the Respondent's challenge to the authenticity of the 2001 Exchange or the 2009 Emails. On their face however, the communications are apparently credible.
260. This leaves the first Ladd v Marshall question, which is whether the new evidence could not have been obtained, with reasonable diligence, for use at the Trial. I have not found this an easy question to answer, on the facts of the present case.
263. The starting point is an analysis of the evidence given by the Appellant in his witness statement dated 7 th November 2024.
266. In relation to Category 1, the Appellant's evidence, in paragraph 7 of his witness statement, is as follows:
268. "7. The documents I seek permission to rely on were discovered in my late father's briefcase. I found them over the weekend on 10/11 August 2024. The reason I did not discover the documents sooner is because the briefcase was not made available by the Defendant. I did not know it existed until I found it by chance in the loft at the Property, having become suspicious after seeing my sister coming out of the loft. It was only after I obtained legal advice and was considering this appeal that I searched in the loft for anything that might be relevant. I found the briefcase and I refer to the photographs of the documents within the briefcase which are at *ACP1/1-51*."
270. In relation to Category 2, the Appellant's evidence, in paragraphs 10 and 11 of his witness statement, is as follows:
272. "10. I did not have access to my late father's computer at trial. That is because it was in the Property's living room. The circumstances surrounding the Injunction Claim are set out in my witness statement in support of it at page 103 of the trial bundle. The Defendant moved into the Property unannounced in May 2022 and took up residence in the living room. She would lock the living room door to prevent me from accessing it. The Defendant and I then gave undertakings to each other in the Injunction Claim and I undertook, amongst other things, not to touch or use the Defendant's belongings and to allow her peaceful and quiet enjoyment and occupation at the Property. I gave these undertakings on 24 June 2022 and they still apply.
273. 11. My late father's computer is a desktop computer which used to be placed on his small computer desk in the Property's living-room. The computer desk itself seems to still be inside the living room as I have not seen it. After judgment had been handed down in this claim, I noticed that the Defendant was beginning to tidy-up and she had placed various items outside of the living room. One of the items that I noticed was my late father's computer. The Defendant had disconnected it from the monitor and I could not find the cables to connect it to power or a monitor. I retrieved the computer over the weekend on 10/11 August 2024. On that same weekend, I managed to connect the computer to a power source and turn it on. I had to connect the computer to my television to see the display."
275. Finally, in relation to Category 3, the Appellants explains his approach to his uncle, Mr Mbanwa, in the following terms, at paragraphs 17 to 19 of his witness statement:
277. "17. Uncle Mike was my late father's brother. I sent him a WhatsApp message on 9 August 2024. I told him I needed his help and that I was trying to locate letters and emails between my late father and the Defendant. Screenshots of our WhatsApp conversation are at *ACP1/60-61** and blown-up screenshots of the emails Uncle Mike sent to me are at ACP1/62-64.*
278. 18. Uncle Mike sent me screenshots of 3 emails my late father had forwarded to him. These emails were sent to my late father in February and March 2009 and appear to be part of the same series of emails in category 2 above and one of them is identical. They were forwarded to Uncle Mike by my late father on 1 January 2019 from his email account, peter.enulue@ntlworld.com. This account is said to be linked to my late father's computer. Having done some brief internet research, I see that NTL merged with Telewest in March 2006 to become NTL:Telewest, which then merged with Virgin Media in June 2006 and was rebranded as Virgin Media in February 2007. It therefore makes sense to me that the screenshots in category 2 are of a Virgin Media dashboard but that the emails forwarded to Uncle Mike by my late father came from an NTL email address.
279. 19. I did not have the emails forwarded to Uncle Mike at trial because I had not asked him for them. I did not know of their existence at the time of trial and had not received any legal advice at the time."
281. I have already quoted the terms of the WhatsApp message which the Appellant sent to his uncle on 9 th August 2024. For ease of reference, I repeat the message:
283. "Good morning uncle
284. I need your help
285. I am trying to find any additional evidence regarding the purchase of my home 1 Cicely Road
286. Did my dad forward you any letters or correspondence between him and Mary?
287. I tried to gain access to my dad's computer but Mary has unplugged it and I cannot find the power lead."
289. In her submissions, the Respondent sought to challenge this evidence. In particular, she claimed that Peter's computer had not been confined in the living room of the Property, but had been in the corridor, where the Appellant says that he first found the computer, all along. There has however been no actual evidence filed in response to the Appellant's witness statement dated 7 th November 2024. I have only what the Respondent told me in her submissions at the Hearing. In these circumstances, it seems to me that I have to take the evidence of the Appellant in the witness statement at face value, subject of course to my conclusions as to its meaning and effect.
292. One puzzle, in analysing the Appellant's evidence, is that he says that he "retrieved" the computer over the weekend on 10 th /11 th August 2024 and that, over the same weekend, he managed to access the computer. The Whats App message to Mr Mbanwa was sent on 9 th August 2024, and made reference to the Appellant seeking to obtain access to Peter's computer. It follows that the Appellant must have found the computer before the weekend of 10 th /11 th August 2024, and before he sent the Whats App message on 9 th August 2024. This does not sit easily with the Appellant's evidence that he "retrieved" the computer over the weekend of 10 th /11 th August 2024. What I take the Appellant to mean, in the relevant part of his evidence in the witness statement, is that he found the computer in the corridor, as described in his witness statement, before 9 th August 2024, but after the Trial, and set out about trying to obtain access to the computer on or shortly before 9 th August 2024. I do not think that the apparent inconsistency between the date of the WhatsApp message and the Appellant's alleged retrieval of the computer justifies my rejecting the Appellant's evidence that he did not have access to the computer until after the Trial.
295. What is the effect of the evidence in the Appellant's witness statement, in terms of the first question in Ladd v Marshall? It seems to me that there are competing considerations.
298. As I have explained, there was no order for disclosure in the Property Claim. As such, this was not a case where, in contrast to Kieran Corrigan, the Appellant was deprived of the Further Documents, for use at the Trial, as a result of a failure of disclosure on the part of the Respondent. As against that, in the absence of an order for disclosure, there was no means, in the Property Claim itself, by which the Appellant could have compelled the production of the Further Documents by the Respondent, if and in so far as they are genuine.
301. As I have understood the Appellant's evidence in his witness statement, he was only able to obtain access to Peter's computer after the Trial, when it appeared in the corridor outside the living room of the Property. As such, the Appellant had no means of obtaining access to the computer, and to the documents in Category 2, prior to or at the time of the Trial.
304. It seems to me that that same analysis applies to the documents in Category 1. I am bound to say that I find the Appellant's evidence in this respect rather odd. It is not clear to me why the Appellant should suddenly become suspicious after seeing his sister coming out of the loft of the Property but, taking the Appellant's evidence at face value, I am bound to accept that the Appellant became suspicious as to what might be in the loft as a result of seeing his sister coming out of the loft. As I understand the Appellant's evidence, it was this suspicion which then caused him to search the loft and find the briefcase containing the Category 1 documents. It can of course be said that the Appellant should have thought to search those parts of the Property to which he had access for relevant documents prior to the Trial. This seems to me however to be setting the bar too high for a case in which there was no order for disclosure of documents and where the documents were effectively concealed in a briefcase in the loft of the Property.
307. The documents in Category 3, which overlap with some of the documents in Category 2 are more problematic. The Judgment records, at Paragraphs 43 and 44, that the Appellant obtained copies of the Declaration of Trust and the Purchase Agreement Form from his uncle, Mr Mbanwa, on a visit to Nigeria in 2021. The Appellant says, quite candidly, in paragraph 19 of his witness statement that he did not have the 2009 Emails in Category 3 at the Trial because he had not asked his uncle for them. He did not know of their existence at the time of the Trial and had not received any legal advice at that time. There is however the obvious point that, if the Appellant's uncle had been able to produce documents of such obvious importance as the Declaration of Trust and the Purchase Agreement Form in 2021, he might also have been able to produce, if asked, the 2009 Emails in Category 3, in advance of the Trial. The emails in Category 3 do not comprise all of the 2009 Emails, but their content does disclose the apparent acknowledgment by the Respondent that she had only a 1% interest in the Beneficial Interest. In other words, it can be argued that there was sufficient to put the Appellant on inquiry, prior to the Trial, that his uncle might have further documents relevant to the dispute over the ownership of the Beneficial Interest. In the Whats App message the Appellant said that he was trying to find additional evidence regarding the purchase of the Property. That was an inquiry, so it can be argued, which could and should have been made prior to the Trial. While the Appellant says that he had not received any legal advice at the time of the Trial, this is not necessarily a good reason for leaving the search for additional evidence until after the Trial.
310. Ultimately however, and looking at the matter in the round, I do not think that it would be fair to conclude that the Further Documents could have been obtained, by the exercise of reasonable diligence for use at the Trial. It seems to me that there are two key factors which bring the balance down in favour of the Appellant on this question.
313. The first factor is that no order for disclosure was made in the Property Claim. This is not a criticism of those responsible for the directions which were and were not given in the Property Claim. With the benefit of hindsight however, and given the nature of the dispute in the Property Claim and given, in particular, the allegations of forgery, it can be seen that a disclosure process of some kind was important to a fair trial of the Property Claim. A disclosure order would either have unearthed the Further Documents or, if the Further Documents would still not have been discovered until after the Trial, would have raised the question of why the Respondent had not disclosed the Further Documents pursuant to what would have been her obligation of disclosure.
316. The second factor is that none of the Further Documents were obviously available to the Appellant, either prior to or at the time of the Trial. The circumstances in which they came to be discovered were unusual. Ultimately, I am inclined to accept Mr Waistell's submission that it would be harsh to conclude that the Appellant could and should have turned up the Further Documents, or any of them, either prior to or at the Trial.
319. I therefore conclude, in answer to the first Ladd v Marshall question, that the Further Documents were documents which could not have been obtained, by the exercise of reasonable diligence, for use at the Trial.
322. While the answers to the Ladd v Marshall questions in the present case support the admission of the Further Documents as new evidence, it is clear from the guidance given by Snowden LJ in Kieran Corrigan that this is not necessarily the end of the question of whether the Further Documents should be admitted. I have a discretion to exercise. I have to strike the balance between the need for finality in litigation and the need for the judicial process to achieve the right result. The need for finality in litigation is important in all cases, and may be said to be of particular importance in the present case, where both parties, as litigants in person, have had to go through the stresses of the Trial, and where it appears that neither party has the funding to engage in lengthy and expensive litigation.
325. Nevertheless, in the exercise of this discretion in the present case, and taking into account all the relevant circumstances, it is clear to me that the balance comes down in favour of the need for the judicial process to achieve the right result. As such, it seems clear to me that the Further Documents, at least so far as they comprise the 2001 Exchange and the 2009 Emails, should be admitted as new evidence. I have already explained the importance of these documents to the issues which the Recorder had to decide. It seems to me that any finding that the Declaration of Trust and/or the Purchase Agreement Form were forgeries, made without consideration of the 2001 Exchange and the 2009 Emails cannot be regarded as reliable. In saying this, it will immediately be understood that I intend no criticism of the Recorder, who had no knowledge of these documents. In the particular circumstances of the present case, it seems to me that the need for the judicial process to achieve the right result, namely a determination of the ownership of the Beneficial Interest arrived at after consideration of 2001 Exchange and the 2009 Emails, outweighs the need for finality of litigation.
328. I therefore conclude that the Evidence Application should be allowed, and that the Further Documents should be admitted as new evidence. Strictly speaking, my analysis leads to the conclusion that only some of the Further Documents should be admitted; namely the 2001 Exchange and the 2009 Emails. If however these documents are, as I have decided, to be admitted as new evidence, it seems to me that there is no useful purpose served by excluding the remainder of the Further Documents.
331. Accordingly, my decision, on the Evidence Application, is that all of the Further Documents should be admitted as new evidence.
334. Ground 1 ? analysis and determination
335. The arguments in support of Ground 1, as they were set out in the Appellant's grounds of appeal, were presented in more condensed form in the Appellant's skeleton argument in support of the Appeal and in the oral submissions of Mr Waistell. I find it easiest to consider Ground 1 by taking, in turn, the arguments as they are set out in the skeleton argument. In doing so I also keep in mind and take into account, as necessary, the individual arguments as set out in the grounds of appeal and the points made in the oral submissions.
338. Ground 1 ? the first argument
339. The Appellant's first argument relies upon the 2009 Emails. The ability of the Appellant to rely on the 2009 Emails depended upon my decision on the Evidence Application, but I have made the decision to admit the 2009 Emails, and the remainder of the Further Documents. It follows that this first argument is available to the Appellant. The first argument is that the 2009 Emails speak for themselves, and show that the decision of the Recorder was plainly wrong.
342. This first argument proceeds on the footing that an analysis of the evidence given by the Respondent at the Trial demonstrates that the Recorder, in finding that the Declaration of Trust was a forgery, was relying upon the evidence given by the Respondent, which was unsupported by any contemporaneous documents. Once one brings into account the 2009 Emails, so it is argued by the Appellant, they fatally contradict both the evidence of the Respondent, to the effect that she did not sign the Declaration of Trust, and the Forgery Conclusion.
345. In relation to this first argument Mr Waistell did not pull his punches. He submitted that the 2009 Emails demonstrated that the decision of the Recorder was wrong, and that the correct position was as set out in the Declaration of Trust. As such, Mr Waistell submitted that I should reverse the decision of the Recorder, set aside the relevant parts of the Order, and make a declaration that Peter's 99% share of the Beneficial Interest passes by the Will to the Appellant.
348. I accept the first argument, but only in part, for the following reasons.
351. In my analysis of the Evidence Application, I have already explained the importance of the 2009 Emails and the 2001 Exchange. As I have said, and for the reasons explained in my analysis of the Evidence Application, if this evidence had been before the Recorder at the Trial the Recorder would have had two important questions to consider. First, and assuming a challenge to the authenticity of the communications, as now intimated by the Respondent, the Recorder would have had to consider the likelihood that all of these communications, in addition to the Declaration of Trust, the Purchase Agreement Form and the Will had all been fabricated. Second, and assuming that a challenge to the authenticity of the communications failed, the Recorder would have had to consider whether it was possible for the Declaration of Trust to have been forged, in circumstances where its content was entirely consistent with the 2001 Exchange and the 2009 Emails.
354. As I have also explained, in my analysis of the Evidence Application, it seems to me that any finding that the Declaration of Trust and/or the Purchase Agreement Form were forgeries, made without consideration of the evidence of the 2001 Exchange and the 2009 Emails, cannot be regarded as reliable. The conclusions of the Recorder that the Declaration of Trust and the Purchase Agreement were forgeries were, through no fault of the Recorder, reached without consideration of the evidence of the 2001 Exchange and the 2009 Emails. It follows that these conclusions cannot be regarded as reliable. In Paragraph 67 the Recorder concluded that the Respondent had established, on the balance of probabilities, that the Declaration of Trust was a forgery, with the consequence that the entirety of the Beneficial Interest devolved to the Respondent, on Peter's death, by the doctrine of survivorship. In circumstances where the Recorder did not have the opportunity to consider the 2001 Exchange and the 2009 Emails, it seems to me that these conclusions cannot stand and must be set aside.
357. This leaves the question of whether I should go further and accede to the Appellant's submission that the Recorder was actually wrong to conclude that the Declaration of Trust was a forgery. In my judgment I cannot, and should not go that far. I say this for two reasons.
360. First, the Recorder reached his conclusion on the basis of all the evidence which he read and heard at the Trial. I have not had the same advantage. As is inevitable in an appeal hearing, I have only been taken to extracts from the evidence at the Trial. The question of whether the Declaration of Trust was a forgery is a question which needs to be determined by a court which has had the benefit of reading and hearing all the relevant evidence. The relevant evidence now includes the 2001 Exchange and the 2009 Emails, but the relevant evidence must also include the evidence read and heard by the Recorder at the Trial. I have not read and heard the evidence at the Trial, and I am not in the same position as the Recorder. In these circumstances, it seems to me that it would be wrong for me to attempt to answer the question of whether the Declaration of Trust was a forgery.
363. Second, it seems to me that taking this course would create an obvious injustice to the Respondent. The Respondent's case, as I understood it, is that she challenges the authenticity of the 2001 Exchange and the 2009 Emails. It seems to me that the Respondent must be given a fair opportunity to make that challenge, supported by such evidence and arguments as she is able to deploy. I do not think that the Hearing, that is to say the hearing of the Appeal, constitutes that fair opportunity. It is true that the Respondent has had some time to consider the Evidence Application and the Further Documents, but I do not think that it would be reasonable to have expected the Respondent to be able to put her case on the authenticity of the documents at the Hearing or, for that matter, to be able to deploy, at this stage, all the evidence and arguments upon which she might wish to rely in relation to the 2001 Exchange and the 2009 Emails.
366. I therefore conclude, in relation to the first argument of the Appellant in support of Ground 1, that the argument succeeds in part. The Forgery Conclusion cannot stand, and must be set aside.
369. It follows from this conclusion both that permission to appeal should be granted in respect of the first argument in Ground 1, and that the Appeal should be allowed on the basis of this first argument.
372. I will consider the consequences of my conclusions on the first argument, in terms of the outcome of the Appeal, once I have completed my analysis of the remaining arguments in support of Ground 1, and the remaining Grounds.
375. Ground 1 ? the second argument
376. The Appellant's second argument is that the Recorder failed, or failed properly to consider the inherent probabilities in this case. The Appellant relies upon five matters in particular, as follows:
378. (1) It is said that there is no, or no adequate reference in the Judgment to the inherent improbability of fraud and forgery.
379. (2) The Respondent alleged that three documents, namely the Declaration of Trust, the Purchase Agreement Form and the Will had all been forged. The Recorder was wrong, in these circumstances, not to note and consider how unlikely serial forgery of this kind was. The Recorder was also wrong to say that he did not need to determine the status of documents other than the Declaration of Trust.
380. (3) The Recorder was wrong to characterise the issue before him as being whether it was plausible that the Respondent had agreed to a 99%/1% division of the Beneficial Interest. By doing so the Recorder misdirected himself and not only failed to consider the inherent improbability of multiple forgeries but relegated the question of the apparently contemporaneous documents to one of secondary importance against his general assessment of the Respondent's likely actions.
381. (4) The Respondent did not put forward any expert evidence or contemporaneous evidence to challenge the various documents, alleged to have been forged. It is said that the Respondent admitted that the relevant documents did not look like forgeries.
382. (5) At Paragraph 54 the Recorder noted that the Respondent had accepted, in cross examination, that she might have signed the Purchase Agreement Form. The Recorder interpreted this to mean that she might have signed a version without the "Tenancy in Common" box ticked. There was however no such version of the Purchase Agreement Form before the Recorder, or referred to in any of the evidence. In these circumstances the evidence given by the Respondent in this respect was not realistic, and thereby constituted a further pointer against the likelihood of forgery.
384. On this basis it is submitted that the Recorder misdirected himself and erred in failing to consider the inherent probabilities. If the Recorder had done so, it is submitted, the Recorder could not have concluded that mere assertion by the Respondent that documents had been forged was sufficient to rebut the strong countervailing inherent probabilities. On this basis it is submitted that the Forgery Conclusion was not open to the Recorder on the evidence, and should be reversed. Alternatively, it is submitted that the Property Claim should be remitted for a further trial and determination.
387. In support of this second argument Mr Waistell referred me to the judgment of Fancourt J in Aldermore Bank plc v Lynch [2022] EWHC 3050 (Ch). In his judgment, at [88]-[94], Fancourt J considered the question of inherent probability in the context of an appeal against a finding that a guarantee which purported to have been given by Mr Lynch to the bank had not in fact been signed by Mr Lynch, but had instead been signed by someone at the bank with a signature which purported to be that of Mr Lynch.
390. At [88] Fancourt J identified the one strand which had not expressly been brought into consideration in the judgment at first instance; namely the question of inherent improbability:
392. "88. The one strand that was not expressly brought into consideration was the inherent likelihood or unlikelihood of the Guarantee having been signed by someone on the Bank side, as opposed to someone on the Ruskin side. Inherent probability of one or other side's factual account being correct is a valuable and important consideration in a case where fraud or forgery is alleged. It was particularly important in this case because the Judge's factual conclusions meant that he felt impelled to say that the signature of Mr Lynch was appended by a person at the Bank. A finding of forgery carried out by an employee of a reputable company is a serious finding to make (particularly when the parties had agreed that there was no requirement to make it)."
394. At [89] Fancourt J quoted an extract from the judgment of Robert Goff LJ in Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1, 57:
396. "89. In Armagas Ltd v Mundogas SA (The Ocean Frost) [1985] 1 Lloyd's Rep 1, 57, Robert Goff LJ said:
397. > > "Furthermore it is implicit in the statement of Lord MacMillan in Powell v Streatham Manor Nursing Home at p.256 that the probabilities and possibilities of the case may be such as to impel an appellant court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test the veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witnesses telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses motives, and the overall probabilities, can be a very great assistance to a judge in ascertaining truth. I have been driven to the conclusion that the judge did not pay sufficient regard to these matters in making his findings of fact in the present case."
399. After making reference to the submissions made on behalf of the Bank, Fancourt J reached the following conclusions, at [91]-[93]:
401. "91. Having reached a conclusion that the documents were not strongly probative of the Bank's case and that Mr Lynch and Ms Hughes appeared to be honest witnesses, the Judge was persuaded that the Guarantee document had never left the Bank and that therefore the signatures must have been forged within the Bank. The Judge was only partly supported in this conclusion by the expert opinion of Dr Radley. The Judge should have tested his provisional conclusion by reference to the undisputed facts, the possible motives of the parties and the inherent probabilities of the matter.
402. 92. A judge does not have to deal expressly in a judgment with every issue and argument raised. It can usually safely be inferred that, without referring to them expressly, a judge had all the evidence and submissions in mind. I am left in doubt, however, whether the Judge did carry out the essential step described by Robert Goff LJ. I have re-read the judgment to try to find reassurance that the Judge did stand back and consider inherent probabilities. There is nothing to indicate that he did. The Judge's finding that the signature was made by a person at the Bank was said to follow "logically" from the conclusion that the Guarantee was never provided to Mr Lynch (para 85). That suggests that the Judge did not do so.
403. 93. I accept that this is not a case where the documents point forcefully against the Judge's conclusion, but what is nevertheless missing is consideration of why someone at the Bank may have acted in that way, within such a short timescale, when the Bank had a contractual right to a guarantee. There was only one day between the first drawdown on the facility and the Guarantee being uploaded. It is hard to imagine why the signatures would have been forged before drawdown. The Judge would also have had to consider whether, if Mr Lynch did not sign his name, someone else on the Ruskin side might have done so and had a reason to do so. The Judge may have been deflected from that course because of his conclusion that the Guarantee did not leave the Bank, but it was right nevertheless to have tested his conclusion of forgery at the Bank by reference to that possibility."
405. At [94] Fancourt J made it clear that his overall conclusion was that there was a flaw in the decision of the judge at first instance. The situation was not one where it could be said that any reasonable judge who carried out the same evaluation of the evidence would have reached the opposite conclusion to the judge:
407. "94. Given what Dr Radley said about Mr Lynch's signature and the flaws in the Bank's evidential case, it cannot be said that any reasonable judge who carried out that evaluation would have reached the opposite conclusion to that of the Judge. There are too many evidential points at play in this case, some of which conflict. A final conclusion could only be made by a judge who heard the witness evidence. Nevertheless, the decision that the Judge reached is flawed because it does not appear that he considered the essential matters identified by Robert Goff LJ."
409. I was not, initially, inclined to accept the argument based upon inherent probabilities. The case law contains repeated warnings to courts and tribunals not to interfere with findings of fact made at first instance, or with evaluative conclusions based upon those facts, unless there is something which constitutes an error of law. At first sight, the Appellant's second argument seemed to me to constitute an attempt to re-fight factual issues from the Trial, which were for the Recorder to decide.
412. On analysis however, it seems to me that the position is not quite so simple, for the following reasons.
415. The Recorder was confronted with a situation where the Respondent was saying that the Declaration of Trust, the Purchase Agreement Form and the Will were all forgeries. In the case of the Purchase Agreement Form, it may be said that the position was not necessarily that the entire document was alleged to be a fabrication. The Respondent's evidence was that she might have signed the Purchase Agreement Form, but did not tick the "Tenants in Common" box. As such, the Respondent was saying that she had not signed the version of the Purchase Agreement Form which was before the court. Nevertheless, if the Respondent had signed the Purchase Agreement Form, without ticking the box, someone had tampered with the version of the Purchase Agreement Form which she had signed. In this sense, at least, the Recorder was dealing with a document which was not what it purported to be. In those circumstances, it seems to me that the Recorder was right, in Paragraph 54, to record the Respondent's case as being that the Purchase Agreement Form, in the form relied upon by the Appellant, was a forgery.
418. The Respondent was therefore making serial allegations of fraud. A person or persons had forged the Declaration of Trust, the Purchase Agreement Form and the Will. The Will may be said to have been of less importance, because its content did not go directly to the ownership of the Beneficial Interest. There was however still an allegation of forgery in relation to the Will. There was no expert evidence before the Recorder to support these serial allegations of fraud. It was said by the Respondent, in cross examination, that the Appellant had recently forged the documents in Nigeria, but both the Declaration of Trust and the Purchase Agreement Form bore the stamp of Titus Miranda, and had been prepared on forms which were clearly identified as Titus Miranda forms; presumably kept by that firm as precedents for use in conveyancing transactions. At the time when these documents were expressed as having been signed, the Appellant would have been a small child. Putting all of this together it was, in my view, reasonable to say that there was an inherent unlikelihood of all three of these documents having been forged, in the same sense as Fancourt J referred to inherent unlikelihood in Aldermore Bank, at [88].
421. This inherent unlikelihood was a matter for the Recorder to weigh against the remainder of the evidence at the Trial and, in particular, against the Recorder's finding that it was wholly implausible that the Respondent would have been prepared to agree to having only a 1% interest in the Beneficial Interest in the family home of herself and her children, which at the time was her only asset, while remaining jointly liable on the mortgage. This finding of the Recorder must command respect because it was the Recorder who had the advantage of seeing and hearing the Respondent give her evidence.
424. The problem with the Judgment in this respect is however that the Recorder did not carry out the exercise referred to in my previous paragraph. The Recorder did not, so far as I can see in the Judgment, consider the inherent unlikelihood of the serial acts of forgery alleged by the Respondent. In Paragraph 63 the Recorder noted the Appellant's submission that the Respondent's position, taken to its logical conclusion, involved multiple allegations of forgery. The Recorder then went on however to say that it was only the validity of the Declaration of Trust which was before him. In my view this was not a correct statement of the position. If the Recorder was to decide whether the Declaration of Trust was a forgery, it seems to me that it was necessary for the Recorder to consider whether the Purchase Agreement Form and the Will had also been forged. The allegations that they were forged were part of the Respondent's case. If the Respondent failed to establish that they were forged that failure would, on any view of the matter, have placed a significant question mark over whether the Declaration of Trust had been forged.
427. Much the same may be said in relation to Paragraph 64, where the Recorder characterised "the question at the heart of the issue before me" as being whether it was plausible that in January 1997, when acquiring the Property, the Respondent would have agreed that she would only have a 1% interest in the Beneficial Interest. This clearly was a key question, but it needed to be set against the inherent unlikelihood of the serial acts of forgery alleged by the Respondent.
430. In considering the question of how the Recorder approached the question of whether the Declaration of Trust had been forged, there is also the PTA Judgment, which is potentially relevant because there is a considerable overlap between the grounds of appeal as they are now constituted, and the grounds of appeal as they were presented to the Recorder, when the application was made to the Recorder for the grant of permission to appeal. Mr Waistell submitted that I should not take into account the PTA Judgment. Instead, I should construe the Judgment objectively, in its context. I accept that I should construe the Judgment objectively, in its context. I do not accept that I should disregard the PTA Judgment for all purposes. In my view it is legitimate to consider the PTA Judgment, as evidence of what was before the Recorder at the Trial, and as evidence of what the Recorder did and did not take into account and of what exercises the Recorder did or did not carry out in the preparation of the Judgment.
433. I have, for this reason, considered the terms of the PTA Judgment. It seems to me however that there is nothing in the PTA Judgment which demonstrates that the Recorder did address the question of inherent unlikelihood. The Recorder said, at paragraph 8 of the PTA, that the Judgment "makes it clear that I considered the inherent probability or improbability of the Trust Deed being a forgery, and indeed of there being multiple forgeries: see para 63 of my judgment". I do not consider, with due respect to the Recorder, that the Judgment does demonstrate this. As Paragraph 63 makes clear, the Recorder noted the multiple allegations of forgery, but took the view that it was only the validity of the Declaration of Trust which was directly before him.
436. Drawing together all of the above analysis I reach the following conclusion. It seems to me that the Forgery Conclusion was flawed in the same way that the decision of the first instance judge in Aldermore was flawed. I do not think that the Recorder took proper account of the inherent unlikelihood of the serial acts of fraud alleged by the Respondent actually having taken place.
439. As in Aldermore I do not think that it is possible to say that any reasonable judge, taking proper account of the inherent unlikelihood of the serial acts of fraud alleged by the Respondent, would have concluded that the Declaration of Trust was not a forgery. Rather, it seems to me that the flaw which I have identified in the reasoning of the Recorder provides a further reason why the Forgery Conclusion cannot stand.
442. It follows from my conclusion above both that permission to appeal should be granted in respect of the second argument in Ground 1, and that the Appeal should be allowed on the basis of this second argument.
445. As with the first argument I will consider the consequences of my conclusions on the second argument, in terms of the outcome of the Appeal, once I have completed my analysis of the remaining arguments in support of Ground 1, and once I have completed my analysis of the remaining Grounds.
448. Ground 1 ? the third argument
449. The Appellant's third argument is concerned with a particular point relied upon by the Recorder in the Forgery Conclusion. The point was articulated by the Recorder in the following terms, in Paragraph 57:
451. "57. I should mention that Ms Joseph places reliance upon the fact that the Land Registry did not enter a restriction in Form A on the Register. She says that had there been an agreement to hold as tenants in common, evidence of it would have been submitted by Titus Miranda, and such a restriction would have been entered. Peter, she said, was meticulous and would have noticed if the documents received from the Land Registry after the purchase were incomplete or inaccurate, and would have followed it up. This seems a strong point to me, but Ashley's response is that it may be the common practice of the Registry to enter such a restriction in such circumstances, but that it is not its invariable practice, so the point is not a conclusive one."
453. The point being made by the Recorder was that if the Respondent and Peter had agreed to be tenants in common of the Beneficial Interest, Titus Miranda would have submitted evidence of this to the Land Registry, and the Land Registry, in accordance with its usual practice, would have entered a restriction against the registered title to the Property. No such restriction was entered when the Property was purchased, which supported the argument that the Respondent and Peter had been joint tenants of the Beneficial Interest.
456. Mr Waistell explained, in his skeleton argument for the Hearing, that the Land Registry practice in this respect postdated the acquisition of the Property in 1997. The practice was introduced in 1998, when the new TR1 form of transfer was introduced, which has a box 10 in which the transferees, if more than one person, are required to state whether they are to hold the property on trust for themselves as joint tenant or as tenants in common in equal shares or on trust. The side notes to this box 10 explain that the registrar will enter a restriction unless the transferees are to hold the relevant property on trust for themselves alone as joint tenants. Prior to 1998 a different form of transfer was used by the Land Registry (Form 19), which did not require any declaration of trust to be stated.
459. This error was relied upon before the Recorder, as part of what was then the first ground of appeal, when permission to appeal was sought from the Recorder. The Recorder was not persuaded that this error justified the grant of permission to appeal. The Recorder said this, at paragraph 10 of the PTA Judgment:
461. "10. As to 8.3, while Mr Waistell has drawn to my attention that the Land Registry practice referred to in para 57 of my judgment post-dates the purchase of Cicely Road, I made it clear that I did not regard it as a conclusive point in the light of the submissions made to me at trial by Ashley. I would have come to the same conclusion even if the clarification which Mr Waistell has now provided had been available at trial."
463. Mr Waistell's submission was that this particular point was part of the reasoning of the Recorder which resulted in his conclusion that the Declaration of Trust was a forgery, and was described in Paragraph 57 as "a strong point". As such, so it was submitted, the Recorder's error justified allowing the Appeal and either reversing the Forgery Conclusion or, at the least, remitting the case for a new trial.
466. I do not think that the Recorder's error in relation to Land Registry practice will bear the weight which Mr Waistell sought to place upon it, as a free standing ground of appeal. In Paragraph 57 the Recorder, while stating that the absence of registration of a restriction was a strong point, also stated that this point "was not a conclusive one". If one notionally removes Paragraph 57 from the Judgment, it seems to me that this does not affect the essential reasoning of the Recorder. Nor, in my view, would the notional removal of Paragraph 57 from the Judgment, without more, render the Forgery Conclusion unreliable.
469. I accept that there is sufficient in the third argument in Ground 1 to render it arguable as a ground of appeal, and thereby to justify the grant of permission to appeal in respect of this third argument. So far as the Appeal is concerned, I conclude that the Appeal fails, so far as based upon the third argument in Ground 1.
472. Ground 1 - the fourth argument
473. The Appellant's fourth argument is that the evidence of the Respondent was unreliable, internally inconsistent with contemporaneous documents and, if properly considered and assessed, should never have been relied upon. As such, so it is submitted, the Recorder should have rejected the Respondent's evidence and accepted the Appellant's case.
476. In his written and oral submissions Mr Waistell sought, as he was obliged to do by the terms of this argument, to go into the oral and documentary evidence which was before the Recorder.
479. It is not necessary for me to go into the detail of the fourth argument because, with two exceptions to which I shall come, the fourth argument seems to me to be without merit. I say this for the following reasons.
482. The Recorder reviewed the evidence given by the Respondent in the final section of the Judgment. For the purposes of the fourth argument, the key elements of this final section of the Judgment are as follows:
484. (1) At Paragraph 61 the Recorder noted that there were "numerous loose ends and irreconcilable inconsistencies in the evidence".
485. (2) At Paragraph 62 the Recorder stated that he did not accept all of the Respondent's evidence, for the reasons which he gave in Paragraph 62.
486. (3) At Paragraph 63 the Recorder further noted supposed inconsistencies in the Respondent's evidence and submissions which had been identified by the Appellant, and also accepted the Appellant's point that the Respondent's position, taken to its logical conclusion, involved multiple allegations for forgery.
487. (4) At Paragraph 64 the Recorder effectively put to one side the evidential inconsistences on which the Appellant had focussed, in favour of the question of whether it was plausible that the Respondent would have agreed that she should only have a 1% share in the Beneficial Interest.
488. (5) For the reasons which the Recorder gave, at Paragraph 65 and 66, based on his observation of the Respondent and her circumstances in 1997, the Recorder found it wholly implausible that the Respondent would have agreed to a 1% share at the time when the Property was purchased.
490. There are two problems with the chain of reasoning in the final section of the Judgment, both of which constitute the exceptions to which I have referred above, and both of which I have already identified.
493. The first problem is that the reasoning of the Recorder, through no fault of the Recorder, does not take into account the 2001 Exchange or the 2009 Emails. For the reasons which I have explained, in my analysis of the first argument, this renders the Forgery Conclusion unreliable.
496. The second problem is that the reasoning of the Recorder suffers from a further flaw. For the reasons which I have explained, in my analysis of the second argument, the Recorder failed to take proper account of the inherent unlikelihood of the serial acts of fraud alleged by the Respondent actually having taken place. This flaw in the Recorder's reasoning also renders the Forgery Conclusion unreliable.
499. Each of these problems constitutes an identifiable flaw in the reasoning of the Recorder, Each of these problems is, in itself, sufficiently material to mean that the Forgery Conclusion cannot stand and must be set aside. It does not however necessarily follow that the Recorder was wrong in his conclusion. Whether the Recorder was wrong in his conclusion depends upon an analysis of the evidence at the Trial, with the benefit of the 2001 Exchange and the 2009 Emails, and with the inherent unlikelihood of serial acts of forgery properly taken into account. It is not possible for me to carry out this exercise, because there has been no trial of the Property Claim before me. I have only heard the Applications and the Appeal.
502. Equally, the existence of these problems does not mean that the Recorder was necessarily wrong in his finding that it was wholly implausible that the Respondent would have agreed to take a 1% share in the Beneficial Interest when the Property was purchased. This was a finding which the Recorder made after seeing and hearing the Respondent give her evidence. In making that finding the Recorder clearly took into account the inconsistencies and alleged inconsistencies in the Respondent's evidence. The problem with this finding, as I have explained, is that it was made without reference to the evidence of the 2001 Exchange and the 2009 Emails, and without taking into account the inherent unlikelihood of serial acts of forgery.
505. The problem with the Appellant's fourth argument is the same problem which usually attends appeals of this kind. The fourth argument constitutes an attempt to re-fight the Trial, by reference to extracts from the evidence which was before the Recorder. This is an impossible exercise on the hearing of the Appeal. Beyond this, none of the points made in support of the fourth argument come anywhere near demonstrating that the Recorder was bound to reject the Respondent's evidence and accept the Appellant's case. The most which can be said is that the Forgery Conclusion cannot stand, for the reasons which I have explained when dealing with the first and second arguments.
508. On the basis of the above analysis, my conclusions in relation to the fourth argument are therefore as follows:
510. (1) Given the overlap, in terms of the Appellant's case, between the fourth argument and the first and second arguments, it can be said that there is sufficient in the fourth argument in Ground 1 to render it arguable as a ground of appeal, and thereby to justify the grant of permission to appeal in respect of this fourth argument.
511. (2) The Appeal fails, so far as it is based upon the fourth argument. There is the overlap between the first and second arguments and the fourth argument, but in that respect the Appeal falls to be allowed on the basis of the first and second arguments, not the fourth argument.
513. Ground 1 ? the fifth argument
514. The Appellant's fifth argument is that the Recorder failed properly to consider the reasons for a 99%/1% ownership of the Beneficial Interest. Two points are highlighted in support of this contention.
517. The first point is the Recorder's reference to the Respondent's evidence about her relationship with Peter, at Paragraph 42. The reference in the Appellant's skeleton argument is to Paragraph 41, but the relevant evidence is in Paragraph 42, and I assume that it was Paragraph 42 which was intended to be referred to. By reference to that evidence, it is said that the inference can be drawn that Peter considered himself superior to the Respondent. It is alleged that the Recorder failed to consider this factor, in deciding whether the 99%/1% division of the Beneficial Interest was plausible. This factor, so it is submitted, pointed against any equal division of the Beneficial Interest between the Respondent and Peter, and clearly pointed against a joint tenancy of the Beneficial Interest, which would have involved the Estate having no interest in the Beneficial Interest, if Peter predeceased the Respondent.
520. The second point is that it is said to have been common ground, on the evidence at the Trial, that the Property was intended to pass to Peter's children. This common intention, so it is submitted, was more consistent with a tenancy in common of the Beneficial Interest than a joint tenancy.
523. I cannot see any merit in the Appellant's fifth argument, for the following reasons.
526. The first of the points made by the Appellant proceeds on the assumption that the Recorder took no account of the evidence of the Respondent recorded in Paragraph 42. There is no basis for this assumption to be made. A judge is not obliged, when giving their reasoning in a judgment, to make express reference to every item of evidence in the relevant trial. In circumstances where the Recorder took the time to set out the evidence in Paragraph 42, it can and should be assumed that the Recorder had that evidence well in mind when he came to make his findings on the evidence, and when he came to the reasons which caused him to conclude that the Declaration of Trust had been forged.
529. Beyond this however, it is not clear to me what purpose is served by the argument that Peter's attitude to his wife, as described in the Respondent's evidence, pointed against an equal division of the Beneficial Interest and against a joint tenancy. I am not sure that this necessarily follows at all from the evidence of the Respondent recorded in Paragraph 42, but even if it does, so that this evidence of the Respondent can function as a pointer against an equal division of the Beneficial Interest or a joint tenancy, I do not see how this assists the Appellant. The fifth argument is put on the basis that if the Recorder had properly considered this matter and other matters, it would not have been open to the Recorder to find that the Declaration of Trust or the Purchase Agreement Form were forgeries. So far as the evidence of the Respondent recorded in Paragraph 42 is concerned, however, this seems to me an impossible argument. Whether considered individually or in concert with other matters, it cannot possibly be said that this evidence left the Recorder in a position where it was not open to him to find that the Declaration of Trust and the Purchase Agreement Form were forgeries. The relevant evidence was a factor to be considered, when weighing all the evidence. I cannot see how it was capable of constituting a factor which left the Recorder with no option but to conclude that the Declaration of Trust and the Purchase Agreement Form were genuine documents.
532. Turning to the second point, it is conceded in the Appellant's own argument that the common intention that the Property should pass to the children could be consistent with a joint tenancy but was more supportive of a tenancy in common. As the Appellant's own argument acknowledges, this second point is not a strong one. The Respondent and Peter could perfectly well have agreed to a joint tenancy of the Beneficial Interest, with the ultimate intention that the Property should, after they had both died, pass to their children. This seems to me to rule out any argument that this second point, whether taken individually or in concert with other matters, could possibly have left the Recorder in a position where it was not open to him to find that the Declaration of Trust and the Purchaser Agreement Form were forgeries.
535. It is also contended, as part of the fifth argument, that if the Recorder had properly considered the two points set out above, together with the other matters relied upon in relation to Ground 1, it would not have been open to the Recorder to find that the Declaration of Trust and the Purchase Agreement Form were forgeries.
538. This attempt to combine these two points with the remainder of the arguments in Ground 1 seems to me to fail for the same reasons as the equivalent attempt fails in relation to the fourth argument. None of the arguments in Ground 1 establish that it was not open to the Recorder to find that the Declaration of Trust and the Purchase Agreement Form were forgeries. The most which can be said is that the Recorder's conclusion that the Declaration of Trust was a forgery cannot stand, for the reasons which I have explained when dealing with the first and second arguments.
541. On the basis of the above analysis, my conclusions in relation to the fifth argument are the same as my conclusions in relation to the fourth argument:
543. (1) Given the overlap, in terms of the Appellant's case, between the fifth argument and the first and second arguments, it can be said that there is sufficient in the fifth argument in Ground 1 to render it arguable, as a ground of appeal, and thereby to justify the grant of permission to appeal in respect of this fifth argument.
544. (2) The Appeal fails, so far as it is based upon the fifth argument. There is the overlap between the first and second arguments and the fifth argument but, in that respect and as with the fourth argument, the Appeal falls to be allowed on the basis of the first and second arguments, not the fifth argument.
546. Ground 1 ? overall conclusions and the outcome in relation to the Appeal
547. Drawing together all of my analysis of the arguments in support of Ground 1, my overall conclusions are as follows:
549. (1) Permission to appeal is granted, in relation to Ground 1.
550. (2) The Forgery Conclusion cannot stand, for the reasons which I have explained, and falls to be set aside.
551. (3) The Appeal is therefore allowed, on the basis of the first and second arguments within Ground 1.
553. The consequences of these conclusions, in terms of the Order, are that paragraph 1 of the Order falls to be set aside; that is to say the declaration that the Property (strictly speaking, the reference should have been to the Beneficial Interest) was, prior to Peter's death, held by the Respondent and Peter as joint tenants such that the Property passed to the Respondent by survivorship upon Peter's death in June 2019.
556. This leaves the question of what further order should be made, consequential upon the setting aside of paragraph 1 of the Order. As I still have the remaining Grounds to consider, I will return to the question of what further order should be made, consequential upon my decision to allow the Appeal on Ground 1, after I have dealt with the remaining Grounds.
559. Ground 2 ? analysis and determination
560. It seems to me that Ground 2 does not arise for decision. I have decided that the Forgery Conclusion cannot stand, and that the declaration in paragraph 1 of the Order falls to be set aside. In these circumstances, I understood Mr Waistell to accept that it would not be necessary for the Appellant to seek to have the conclusion of the Recorder set aside on the basis that it was obtained by fraud.
563. Given this position, and given that I am concerned with allegations of fraud in relation to Ground 2, it seems to me that it is not appropriate, subject to one exception, for me to express any view on the allegations of fraud made against the Respondent on the basis of the 2009 Emails.
566. The only exception to this arises from the fact that the Appellant's skeleton argument suggests that the alleged fraud has the consequence that the Forgery Conclusion should be reversed, as opposed to being set aside. If I had had to deal with the fraud allegation, I would not have been prepared to go this far, whatever my decision on the fraud allegation. I would have been in no position, hearing the Appeal, to decide the fraud allegation. If I had been persuaded that there was sufficient in the fraud allegation to satisfy the test in Dale v Banga [2021] EWCA Civ 240, the most that I would have been prepared to do would have been to remit the fraud allegation for a trial in the County Court at Central London. In saying this, I stress that I am not making any decision on whether I would, if I had had to deal with the fraud allegation, actually have been prepared to order a remission on this basis.
569. In case this should matter, it seems to me that I should make it clear that I am prepared to grant permission to appeal on Ground 2. Although Ground 2 has now become redundant, as a result of my decision on Ground 1, it seems to me that there was sufficient in Ground 2 to render it arguable, as a ground of appeal, and thereby to justify the grant of permission to appeal. I also consider that it would be wrong not to deal with the Permission Application because it has now turned out that Ground 2 is not required. Accordingly, I grant permission to appeal in relation to Ground 2.
572. Ground 3 ? analysis and determination
573. The argument in Ground 3 is that a serious procedural irregularity occurred at the Trial. This was because the intended procedure for cross examination at the Trial was not implemented. As I have explained earlier in this judgment, the Appellant submitted to the court a list of questions for the Respondent by reference to which, in accordance with the procedure set out in the order of District Judge Genn on 20 th February 2024, the court would then conduct the cross examination of the Respondent. Unfortunately, the questions did not find their way to the Recorder, with the result that the Appellant was left, at the Trial, having to conduct his own cross examination of the Respondent, in circumstances where he was not expecting to have to cross examine the Respondent and was not, I assume, properly prepared to do so.
576. The Appellant's case is that this was both procedurally irregular and grossly unfair to the Appellant. This was a case where the Respondent was making serious allegations of forgery and fraud. The only other witness to the signatures on the relevant documents was Peter, who was dead. The credibility of the Respondent was directly in issue at the Trial, with the consequence that her cross examination and the Recorder's impression of her evidence were critical to the Trial. The Appellant, a litigant in person, was left having to conduct his own cross examination, without proper preparation time and in circumstances where he was not expecting to have to do so. This was particular stressful for the Appellant, given that he experiences health issues with anxiety and stress.
579. These circumstances were, so it is submitted, grossly unfair to the Appellant. The failure of the court to provide the Appellant's questions to the Recorder resulted in the very situation which District Judge Genn's order was intended to avoid. The Appellant's case is that if he had been given a fair opportunity to prepare his cross examination, the Respondent's evidence would likely have been considered unreliable and rejected, with the consequence that the Recorder would have found the Declaration of Trust to be genuine.
582. I accept that the situation which confronted the Appellant at the Trial was both unfair and amounted to a procedural irregularity. On the assumption that it was the court which was responsible for the failure to ensure that the Appellant's questions and, I assume, the Respondent's questions found their way to the Recorder for the Trial, this was a serious failure. The Appellant should not have been placed in this position of having to conduct his own cross examination of the Respondent, without prior warning or preparation, at the Trial. Cross examination is a process which requires careful and extensive preparation. Any lawyer would find it very difficult to conduct an effective cross examination in the circumstances which confronted the Appellant at the Trial. All the more so for a litigant in person, such as the Appellant.
585. I am not however persuaded that this failure, serious as it was, is sufficient to justify either setting aside or reversing the Forgery Conclusion. I say this for the following reasons.
588. It seems to me that the procedural failure which occurred at the Trial, in relation to cross examination, can only justify setting aside or reversing the Forgery Conclusion if it can be demonstrated that the failure had a material effect upon the outcome of the Trial. By this I mean that there is a need for some causal link to be shown between the procedural failure and the outcome of the Trial; specifically the Forgery Conclusion. This in turn requires it to be demonstrated (i) that a particular question or particular questions, previously prepared by the Appellant for the intended use of the court, were either not asked of the Respondent or were not adequately asked, and (ii) that if that question or those questions had been asked or asked adequately of the Respondent, this would have resulted in a material change in the evidential landscape at the Trial, sufficient at least to call into doubt the Forgery Conclusion.
591. I intend no criticism of the written and oral submissions of Mr Waistell when I say that those submissions fell well of short of demonstrating the matters referred to in my previous paragraph. It is clear from the terms of the Judgment that the Appellant, to his credit given the circumstances, conducted an extensive and searching cross examination of the Respondent. I note that the Recorder described the Appellant, at Paragraph 39, as "clearly a well-educated man, articulate and measured.". It is clear that the Respondent was challenged, in cross examination, on her allegations of forgery. I note, in particular, that the Recorder said this, at Paragraph 63:
593. "63. In his closing submissions Ashley focused with some skill upon supposed inconsistencies in his mother's evidence and submissions, and rightly suggested that her position, taken to its logical conclusion, involves multiple allegations of forgery (i.e. of the Will and the Purchase Agreement Form as well). This may be correct, although only the validity of the Trust Deed is directly before me."
595. The Respondent's position, namely that there had been serial acts of forgery and fraud was therefore put squarely before the Recorder, as were the alleged inconsistences in the Respondent's evidence identified by the Appellant.
598. Paragraph 63 is material, in the context of Ground 3, for a separate reason. I have already concluded, in relation to the second argument in support of Ground 1, that the Recorder did go wrong in treating the validity of the Declaration of Trust as the only issue of validity which was before him. It is however clear that this error did not derive from a problem with the cross examination of the Respondent. It is clear that the Recorder understood that the Respondent's case involved serial allegations of forgery and fraud. The Recorder's error was not a failure to understand this, but rather a failure to take proper account of the inherent unlikelihood of these serial acts of forgery and fraud actually having taken place.
601. My analysis above derives support from what was said in this context by the Recorder in the PTA Judgment. The procedural failure in relation to the cross examination of the Respondent was put before the Recorder as a ground of appeal at the hearing to deal with consequential matters. At paragraph 16 of the PTA Judgment the Recorder accepted that the procedural failure had occurred:
603. "16. It is unfortunately the case that the 94 questions filed in advance by Ashley (the 'Questions') did not reach me, and were not referred to at trial. I have considered that very detailed list of Questions. They give the strong impression of having been drafted by someone with trial experience (as did the questions put at trial by Ashley, who conducted a searching cross-examination of his mother)."
605. The Recorder then went on to say this, at paragraphs 17 and 18 of the PTA Judgment:
607. "17. Many, but not all, of the topics covered by those Questions were addressed in cross-examination at trial, albeit in less detail, and without some of the specific references to documents identified in the list. Some of the topics covered by the list of Questions were however not addressed at all.
608. 18. I now have to consider whether the failure to explore some of these Questions in cross-examination amounts to a serious irregularity, leading to injustice. I have concluded, with some hesitation, that it does not. It is most unfortunate that not all of the Questions raised in Annex 2 were explored, or explored in quite as much detail as they might have been, in cross-examination. Having now looked through them in detail, I consider it most unlikely that they would have led me to any different conclusion, for a number of reasons:
609. > a. The Questions, even where closely related to the transactions in question, are very much directed to inconsistencies in Ms Joseph's evidence. I have made it clear however that I have taken note of the many loose ends and inconsistencies in the evidence relied upon by both parties. I do not consider that the identification of further factual inconsistencies would have made a difference to my overall impression of the evidence on the balance of probabilities.
610. > b. Under the heading 'Mortgages' Questions 34 to 55 relate to the manner in which the mortgage on Cicely Road was paid off. This topic was covered at trial, and I made clear at para 47 of my judgment that this particular dispute did not help me to resolve the issue of the nature of the original agreement between Ms Joseph and Peter at the time of purchase.
611. > c. Some of the Questions do not go to the transactions in question but are (further) attacks on Ms Joseph's credibility, under the heading of 'Paternity Fraud and Divorce'. It is most unlikely that these issues, even if covered in cross-examination, would have yielded answers that would have assisted me in relation to the issue of the authenticity of the Trust Deed."
613. In my view the Recorder's assessment of what is now Ground 3 should be respected. The Recorder was best placed to assess the materiality of the procedural failure. The Recorder's conclusion was that the procedural failure did not affect the outcome of the Trial. The Recorder had the opportunity to look through the list of questions prepared by the Appellant, and considered it most unlikely, if they had been available at the Trial, that they would have led him to any different conclusion, for the reasons which he gave.
616. While I am necessarily considering the position at second hand, and without the advantage of having heard the Trial, my own impression, from what was before me at the hearing of the Appeal, is consistent with what was stated by the Recorder in paragraphs 17 and 18 of the PTA Judgment. In summary, it has not been demonstrated that the procedural failure was material to the Forgery Conclusion.
619. Drawing together all of the above analysis, and while I accept that the procedural failure which occurred was a serious failure, I am not persuaded that it was material to the Forgery Conclusion. I conclude that the procedural failure is not sufficient to justify either setting aside or reversing the Forgery Conclusion.
622. It seems to me that there is sufficient in Ground 3 to render it arguable, as a ground of appeal. As such, I consider that there is sufficient in Ground 3 to justify the grant of permission to appeal. The Appeal itself however, so far as based upon Ground 3, fails.
625. Ground 4 ? analysis and determination
626. Ground 4 seeks to introduce an argument which was not put before the Recorder. The argument proceeds on the footing that the Recorder was right in the Forgery Conclusion, and that the Respondent and Peter purchased the Property as joint tenants of the Beneficial Interest. On this basis the Appellant seeks to argue that the joint tenancy of the Beneficial Interest was severed, following the separation and divorce of the Respondent and Peter so that, by the time of Peter's death, the Respondent and Peter were tenants in common of the Beneficial Interest, in equal shares. On this hypothesis Peter's 50% share of the Beneficial Interest will pass by the Will, assuming that the Will is valid.
629. Given that this argument was not raised at the Trial, I have been referred by Mr Waistell to the decision of the Court of Appeal in Singh v Dass [2019] EWCA Civ 360, and to the notes at 52.21.1 in Civil Procedure, Volume 1 (The White Book Service 2025) at pages 1901-1902. In his judgment in Singh v Dass, with which McCombe and Moylan LJJ agreed, Haddon-Cave LJ summarised the legal principles which apply, where a party seeks to raise a new point on appeal which was not raised below, in the following terms, at [16]-[18]:
631. "16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court.
632. 17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2 at [30] and [49]).
633. 18. Third, even where the point might be considered a 'pure point of law', the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs. (R (on the application of Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] RTR 22 at [29])."
635. Mr Waistell contended that this new argument was not one which required any new evidence. Nor, he submitted, was it an argument that would necessarily have changed the way in which the evidence was addressed at the Trial. The argument of the Appellant is that once the Recorder had reached the Forgery Conclusion, the Recorder should have proceeded to consider the question, on the same evidence, of whether the joint tenancy of the Beneficial Interest had been severed. The Recorder should then have concluded, on the basis of the evidence at the Trial, that there had been a severance of the joint tenancy. It is submitted that, in the absence of a conclusion to this effect on the part of the Recorder, I am able to reach this conclusion for myself.
638. The Appellant's case is that this alleged severance came about by one or more of three methods, as between the co-owners of the Beneficial Interest (the Respondent and Peter); namely (i) one co-owner acting on their own share, (ii) mutual agreement between the co-owners, and/or (iii) by course of dealing between the co-owners.
641. The first of these methods of severing a joint tenancy is described in the following terms in Megarry & Wade, The Law of Real Property (Tenth Edition), at 12-38 (footnotes omitted):
643. "At common law, the ability to alienate property was favoured above the right of survivorship. If therefore a joint tenant alienates his beneficial interest inter vivos, his joint tenancy is severed. The person to whom the interest is assigned takes it as a tenant in common with the other joint tenants, because he or she has no unity of title with them. Any severance must take place during the lifetime of the joint tenant. A joint tenant "cannot make a will of what he holds in jointure", nor can a will sever a joint tenancy."
645. The second and third of these methods of severing a joint tenancy are described in the following terms, in Megarry & Wade, at 12-042 and 12-043 (footnotes omitted):
647. "A joint tenancy can be severed by the mutual agreement of all the joint tenants. Originally such an agreement had to amount to an enforceable contract, so that this form of severance was simply an example of joint tenants acting upon their own share. Furthermore, any such agreement would be invalid if any of the joint tenants lacked capacity. However severance by mutual agreement is now acknowledged to be a distinct category of severance and it is no longer necessary that the agreement should be enforceable as a contract."
649. "Severance by a course of dealing depends upon inferences drawn from conduct where there is no express act of severance. To fall within this head of severance there must be "a course of dealing by which the shares of all the parties to the contest have been affected". For this reason, a unilateral statement of an intention to sever by one joint tenant, whether communicated to the other joint tenants or not, will not constitute a course of dealing, though a written notice to the other joint tenants may sever for reasons considered shortly. Although it is not necessary that the joint tenants should have reached a concluded agreement, the acts and dealings with the property must indicate an intention by them that they should hold in common. Thus periodic distributions of property amongst joint tenants or the apportionment of the profits of trade amongst the joint owners of a business on the assumption that they are tenants in common, has been held to constitute such a course of dealing. However inconclusive negotiations by one joint tenant to purchase the interest of the other, or a mere agreement in principle to do so but without any final commitment will not suffice. Where a house is jointly owned, the mere conversion of it into two self-contained maisonettes, or its inclusion in partnership accounts purely for tax purposes will not amount to a sufficient course of dealing to effect a severance. Some authorities suggest that the conclusion of mutual (or "mirror") wills is an example of mutual conduct, rather than an act operating on one's own share. Given that an "act" only severs if it is legally enforceable, for the conclusion of mutual wills to be such an act depends on their enforcement via a constructive trust. However, it seems that little turns on which analysis is to be preferred, unless a constructive trust is prohibited by the conduct of one of the parties, so that the mutual will cannot amount to an enforceable act."
651. As Haddon-Cave LJ explained in Singh v Dass, an appellate court will not, as a general rule, permit a new point to be raised on appeal if it is such that it would necessitate new evidence or, had it been run below, would have resulted in the trial being conducted differently with regards to the evidence at the trial.
654. If the severance argument had been run at the Trial, it seems clear to me that the Trial would have taken a very different course. The severance argument is advanced on the basis that the severance took place either (i) by Peter acting on his own share, that is to say dealing with his own share in the Beneficial Interest in such a way as to sever the joint tenancy, or (ii) by mutual agreement between the Respondent and Peter, or (iii) by a course of dealing between the Respondent and Peter. In reality however it seems to me that the severance argument is necessarily based upon an examination of Peter's conduct in relation to the Property and upon an examination of the dealings between Peter and the Respondent. I note that the Appellant is not able, in his arguments in support of Ground 4, to point to any specific agreement between the Respondent and Peter. Nor is the Appellant able to point to any specific action by Peter, in relation to his share of the Beneficial Interest, which falls within the examples given by Megarry & Wade, in the editors' discussion of what constitutes an act of a joint tenant operating upon their share in a beneficial interest, so as to effect a severance. This serves to bring out the point that, if the severance argument had been run at the Trial, it would have been necessary to examine the conduct of both the Respondent and Peter in relation to the Property.
657. This would necessarily have been a wide ranging investigation of the conduct of the Respondent and Peter, as illustrated by the specific instances of conduct relied upon by Mr Waistell in support of the severance argument. It is clear that there was no such wide ranging investigation at the Trial, given that the focus of the Trial was upon the authenticity of the Declaration of Trust. It also strikes me as at least likely that there would be new evidence which would be required, in order to deal with the severance argument.
660. I do not think that this position is altered by Mr Waistell's attempt to bring in the 2009 Emails as evidence in support of the severance argument. The introduction of this new evidence does not alter the point that the Trial would have been conducted very differently if the severance argument had been pursued at the Trial. The position is not one where it can be said that the only difference resulting from the raising of the severance argument, in terms of the conduct of the Trial, would be the introduction of the 2009 Emails, as new evidence.
663. As with the other Grounds, it is also the case that I am in no position, hearing the Appeal, to decide the severance argument for myself. In order to ensure a fair trial of the severance argument, it would be necessary to go back to the starting gate, and conduct a new trial, with arguments and evidence directed to the severance argument.
666. In my judgment it would be procedurally unfair to the Respondent if she was to be compelled to fight what would, in effect, be a different trial to determine the severance argument, in circumstances where the Appellant could and should have pursued the severance argument, if he wished to do so, at the Trial. I do not accept that the Appellant's position, as a litigant in person at the Trial, excuses the failure to pursue the severance argument at the Trial. This factor has to be balanced against the position of the Respondent, if she is now required to face the severance argument. In my judgment the balance comes down firmly in favour of the Respondent, and against allowing the severance argument now to be pursued.
669. I am confirmed in these views by a consideration of what the Recorder said, in paragraphs 23-26 of the PTA Judgment. The severance argument was raised as a ground of appeal before the Recorder, at the hearing to deal with matters consequential upon the Judgment. The Recorder was not prepared to grant permission to appeal on the basis of the severance argument. After noting that the severance argument had not been raised at the Trial, and after a brief summary of the particular facts relied upon by Mr Waistell in support of this ground of appeal, the Recorder said this:
671. "23. Having considered these points further, and reviewed the evidence, I do not consider that these points could be considered on appeal purely on the basis of facts either agreed or previously found. That would be procedurally unfair to Ms Joseph.
672. 24. It is common ground that the relationship between Peter and Ms Joseph was strained. They split up, later divorced, and both had further children by different partners. Ms Jospeh moved out of Cicely Road. That much is undisputed.
673. 25. The point was argued only briefly, and I was not taken to any of the authorities referred to at para 12-043 of Megarry and Wade, but the summary set out there makes clear that the court may take account of a multitude of circumstances in addressing severance by course of dealing. A common theme however would seem to be that there must be a bilateral, or multilateral, course of dealing, and that a unilateral statement of an intention to sever by one joint tenant, whether communicated to the other(s) or not, will not suffice. None of the factors referred to above would seem to fit with a bilateral / multilateral analysis.
674. 26. Further, it does not seem to me that allowing Mr Peters to argue severance on an appeal by reference only to the existing evidence, or even to additional documentary evidence, would be fair to Ms Joseph. I was not referred to any authority in relation to the taking of new points on appeal. I note however the summary of the relevant principles in Singh v Dass [2019] EWCA Civ 360 by Haddon-Cave LJ at [15] - [18]. The evidence and factors referred to above in support of Ground 3 were not explored at trial with an eye to arguments as to severance. Ms Joseph's witness statements and oral evidence at trial would almost certainly have been differently formulated, and directed to additional and alternative points, had severance been raised before and at trial."
676. The Recorder was much better placed than I am to consider how the severance argument would have affected the course of the Trial. I note that the Recorder was of the view that the course of the Trial would have been different if the severance argument had been raised. My view is the same.
679. Drawing together all of the above analysis I conclude that the Appellant should not now be permitted to pursue the severance argument. It seems to me that the severance argument falls squarely within the type of new point which Haddon-Cave LJ identified in Singh v Dass, at [17], as a point which an appellate court should not permit to be raised.
682. It seems to me that there is sufficient in Ground 4 to render it arguable, as a ground of appeal. As such, I consider that there is sufficient in Ground 4 to justify the grant of permission to appeal. The Appeal itself however, so far as based upon Ground 4, fails.
685. The outcome of the Permission Application
686. The outcome of the Permission Application is that permission is granted for the Appeal, on all four Grounds.
689. The outcome of the Appeal
690. The overall outcome of the Appeal is that the Appeal is allowed, but only upon the basis of the first and second arguments within Ground 1. As I have explained, the consequence of this is that paragraph 1 of the Order must be set aside.
693. This then brings me to the question, which I deferred from the final part of my analysis and determination of Ground 1, of what further order should be made, consequential upon my decision to allow the Appeal on Ground 1. I indicated that I would defer consideration of that question until after I had dealt with the remaining Grounds. I have now dealt with the remaining Grounds. Ground 2 no longer arises for decision. The Appeal has failed on Grounds 3 and 4.
696. The Appellant's primary case is that I should reverse the conclusion of the Recorder, and substitute my own decision that the Declaration of Trust was valid, so that 99% of the Beneficial Interest passes pursuant to the Will (assuming the Will to be valid).
699. I have not however been persuaded that I should reverse the conclusion of the Recorder. For the reasons which I have explained in my analysis of the arguments which support Ground 1, the Forgery Conclusion has not yet been shown to be wrong. Rather, the Forgery Conclusion is a conclusion which cannot stand, for two reasons. First, the Forgery Conclusion was reached, through no fault of the Recorder, without reference to the 2001 Exchange and the 2009 Emails. Second, the Recorder failed to take proper account of the inherent unlikelihood of the serial acts of fraud alleged by the Respondent actually having taken place. In order therefore for there to be a fair determination of the question of whether the Declaration of Trust was a forgery, it is necessary for the question to be determined with reference to the evidence of the 2001 Exchange and the 2009 Emails, and with proper account being taken of the inherent unlikelihood to which I have referred.
702. In these circumstances, and consequential upon my decision to allow the Appeal on the basis of the first and second arguments within Ground 1, I regret that I see no option but to remit the case to the County Court at Central London for a re-trial of the question of whether the Declaration of Trust was a forgery.
705. In practical terms this is a highly undesirable result. It means that the parties will have to undergo a second trial. It means that the final outcome of the Property Claim will be further delayed. It means further expense which, I anticipate, neither party can really afford. Nevertheless, it seems to me that these undesirable consequences do not outweigh the need to ensure a fair and just outcome to the Property Claim. For the reasons which I have explained, a fair and just outcome has yet to be achieved.
708. There is one other point which I should add, in terms of remission of the case for a re-trial of the question of whether the Declaration of Trust was a forgery. I do not consider that the Appellant should be permitted to pursue the severance argument at the re-trial. In my view the failure of the Appeal on Ground 4 should be final, in the sense that the Appellant should not be permitted to take advantage of the re-trial to pursue the severance argument. I consider that this would be unfair to the Respondent, and should not be permitted.
711. The outcome of the Appeal is therefore as follows:
713. (1) The Appeal is allowed, on the basis of the first and second arguments within Ground 1.
714. (2) Paragraph 1 of the order falls to be set aside.
715. (3) The case will be remitted to the County Court at Central London for a re-trial of question of whether the Declaration of Trust is a forgery.
716. (4) At the re-trial the Appellant will be permitted to introduce the Further Documents into the evidence.
717. (5) At the re-trial the Appellant will not be permitted to advance the severance argument, as an alternative argument. If the Declaration of Trust is found to be a forgery at the re-trial the consequence will be, as it was before the Recorder, that the Beneficial Interest was held by the Respondent and Peter as joint tenants, with the consequence that Peter's share of the Beneficial Interest passed to the Respondent on his death.
718. (6) Given that the re-trial will be concerned with issues of fact which have already been the subject of findings made by the Recorder, it seems to me that the case should be remitted for re-trial before a different judge to the Recorder. It will be understood by all that, in saying this, I am reflecting a practical consideration. I intend no criticism of the Recorder.
720. I will hear the parties further, as necessary, on the terms of the order to be made consequential upon this judgment, including in relation to costs (here and below) and in relation to the terms (additional to what I have indicated above) upon which the case is to be remitted to the County Court at Central London. In the usual way the parties are encouraged to agree, subject to my approval, as much as they can in terms of the order to be made consequential upon this judgment.

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