MAKE UP A FRAUDULENT CASE, TELL LIES TO THE COURT – GO TO JAIL: THE FORGED WILL CASE HAS A SEQUEL

An earlier post looked at Patel -v- Patel [2017] EWHC 133 (Ch) in which the judge disbelieved all the witnesses who gave evidence that a will had been made in 2005. The trial judge observed.

“My remaining concern with Nirja’s evidence is one that applies equally to all four witnesses on Girish’s side. The degree of minute detail which they purported to remember about the events of 23 June 2005 was, to my mind, quite incredible. Each of Ranjanbala, Jayshree and Nirja were giving evidence about an event which supposedly occurred ten years before they were first asked to provide a witness statement and it was an event of no personal significance to any of them. Even Girish said he thought the Will was unnecessary and he instantly forgot all about it until Christmas 2014, despite the Deceased’s death in 2011. In those circumstances, I would have expected the witnesses to have, at best, a vague and outline recollection of what had occurred. Yet, one or more of them purported to remember (a) exactly who stood or sat where in the office at Gorst Road; (b) what day of the week it was; (c) who drank tea and who didn’t and when; (d) which pen each of them used to sign and what the Deceased did with her pen after signing; (e) that Jayshree asked what the date was and was told by Nirja (although neither mentioned this in their witness statements); (f) what colour sari the Deceased was wearing; and (g) what the Deceased had to eat after the shopping trip. This did not, in my judgment, have the ring of truth.”

The evidence by the claimant and the witnesses in that case went on to have a profound impact upon them. They became defendants in an application for committal proceedings based on the evidence they gave.

COMMITTAL PROCEEDINGS

Subsequent to that decision committal proceedings were brought against the plaintiff and the witnesses.  All, but one, were sentenced to jail in Patel v Patel & Ors [2017] EWHC 3229 (Ch)

THE NATURE OF THE CONTEMPT

Each of the defendants admitted that the claim that had been brought was fallacious and they had lied at the trial. Mr Justice Marcus Smith reviewed the principles in relation to sentencing.

1. Moving on from these general factors, to which I shall revert when I consider the individual position of the four Defendants before me, I turn to the fraudulent claim that was the Probate Proceedings, and the many lies told by the Defendants in pleadings, witness statements, affidavits and orally in front of Mr. Simmonds, Q.C.

2. There is no doubt that the First Defendant is guilty of contempt of the most serious kind, and that he was the architect of a dishonest scheme to mislead the court at the substantial expense of the Claimant. He forged the 2005 Will. It matters not why he did so. Self-evidently, he considered it in his interests to displace the 1986 Will with the forged 2005 Will.

3. In order to achieve this end, the First Defendant initiated the probate proceedings as claimant. It was his choice to bring these proceedings. He knew from the outset it was a wholly fraudulent claim. This was not a case of the exaggeration of a valid claim, but one of outright invention.

4. The First Defendant contested the Probate Proceedings to the very end. The case was fought to judgment. The First Defendant lost, despite his best efforts. He put the Claimant to huge expense, and occupied a substantial amount of court time unnecessarily.

5. It goes without saying that I must place it on the record that in any proceedings of whatever sort, be they civil or criminal, putting false evidence knowingly before the court is capable of undermining the integrity of the court process and is extraordinarily serious. In this case, justice was done. Mr. Simmonds, Q.C. reached the correct decision, but at enormous cost to the Claimant and enormous cost to the state in terms of the court time that was wasted.

6. The First Defendant persuaded the other Defendants, three individuals over whom I accept he had significant influence as a close family friend and/or father figure and/or former or present employer, first to sign the 2005 Will as witnesses, and then to give false evidence on his behalf about it, by affidavit, by witness statement, and in oral, sworn, testimony.

7. According to the Second, Third and Fourth Defendants, whose evidence I accept as to their subjective states of mind, he did so by misrepresenting to them the genuineness of the document that they were signing and by telling them that it represented the Deceased’s real wishes. He did so notwithstanding the fact that he must have known that he was exposing them to criminal penalties.

8. The First Defendant is an experienced litigant, both in England and in other jurisdictions. He is, or was, also a professional man, a qualified chartered accountant, who has acted as an arbitrator. He was well-aware of the seriousness of his actions.

9. The First Defendant arranged to meet with his witnesses (that is, the other Defendants) on 20 November 2016, before the trial of the probate claim, where he discussed certain aspects of their evidence and persuaded them not to mention that they had met. He then lied on oath about when he had last seen them.

10. So much for the First Defendant’s role in the Probate Proceedings. It follows from what I have said about the First Defendant’s role, that I accept that the guilt of the Second, Third and Fourth Defendants as regards the Probate Proceedings is less than that of the First Defendant. They were secondary participants in a scheme not of their making. Yet there is no doubt that they are also guilty of contempt of court. Each of them lied repeatedly to the court in relation to matters that lay at the heart of the Probate Proceedings. Each of them accepts that they knew that their statements were not true at the time they were made.

A WARNING LETTER HAD BEEN SENT

1. At a very early stage in the Probate Proceedings, that is to say at the time of preparing the Claimant’s defence in September 2015, having considered the expert evidence then available and the numerous documents contradicting the First Defendant’s case, and after careful consideration, the Claimant’s legal team sent letters to each of the Defendants warning them, in balanced and measured terms, as to the possibility of committal proceedings.

2. Those letters were dated September 2015. They summarised the content and strength of the expert reports which had been served before the defence itself was served. Notwithstanding these letters, all of the Defendants persisted in their conduct and continued to give false evidence. Each of them continued to lie, even though they had been alerted to the serious consequences of giving false evidence.

3. It may be that the First Defendant is more culpable than the Second, Third and Fourth defendants because of the influence that he had over them, and because of his control over the Probate Proceedings. Nevertheless, it must be underlined that disregarding this very clear warning as to the wrongfulness or likely wrongfulness of their behaviour, was a very serious failure on the part of all of the Defendants.

CONDUCT IN THE COMMITTAL PROCEEDINGS

1. I turn to the conduct of the Defendants in these committal proceedings. From the issue of the committal application on 28 March 2017 until relatively recently, all of the Defendants were jointly represented by Messrs Stevens & Bolton, the same firm that conducted the Probate Proceedings on behalf of the First Defendant. While jointly represented, the Defendants collectively opposed the grant of permission to pursue the committal application. Notwithstanding that opposition, permission was granted on 26 May 2017.

2. While remaining silent on matters of detail, as was their right, the Defendants apparently maintained a case, certainly that was the inference to be drawn, that they were innocent of giving false evidence. At the very least, they did not admit their guilt. That was, of course, their right, and they chose to exercise it.

3. Subsequently, the First Defendant brought an application, heard on 27 July 2017, to stay the committal application by reason of the existence of the private prosecution against him, now pending in Southwark Crown Court and to be heard late next year, as well as because of certain developments in proceedings in other jurisdictions.

4. That application was dismissed. It is fair to note that in relation to that application, the Second, Third and Fourth defendants adopted a neutral stance.

5. There were obvious and serious concerns, which were expressed in court at the July hearing, regarding the continued joint representation of the Defendants in circumstances where there were obvious potential conflicts of interest between them.

6. On 27 July 2017, the court made an order directing Stevens & Bolton to file a letter with the court confirming that they had given or procured to be given to the Defendants advice in relation to potential conflicts, and that each of the Defendants nonetheless wished or did not wish, as the case might be, to continue to instruct that firm for the purposes of the committal application.

7. Following significant delay during August and early September 2017 – which I simply note; it plays no part in my thinking on penalty – the Second, Third and Fourth Defendants instructed Messrs IBB Solicitors on 19 September 2017.

8. On 2 October 2017, IBB contacted Gardner Leader, acting for the Claimant as the Claimant’s solicitors, to indicate the intention of the Second, Third and Fourth Defendants to admit the allegations made against them in the committal application. That was supported by unsigned evidence from them served on 3 October 2017 and later perfected, confirming that they had lied to the court when giving evidence in the probate proceedings.

9. Inevitably, that forced the First Defendant’s hand. On 3 October 2017, Stevens & Bolton wrote to Gardner Leader to inform them that the First Defendant intended to serve further evidence and would be, “conceding the principal allegations” against him. He did so notwithstanding that he had only just served evidence, including additional expert evidence, purporting to support his case that the 2005 Will was genuine, some four days earlier on 29 September.

10. On 5 October 2017, via Stevens & Bolton’s letter of that date, the First Defendant formally withdrew that earlier served evidence.

11. I find that the Second, Third and Fourth Defendants are entitled to a very substantial discount on any penalty that I impose. I have in mind the maximum discount of one-third. These Defendants admitted their contempt in full within a short time of instructing alternative solicitors, IBB. Since admitting their contempt, they have engaged with the Claimant, including by providing affidavits explaining how the fraud developed and unfolded.

12. I appreciate that, in the scheme of things, the admission could have been made sooner. But I find that it was not made sooner because of the common representation of the Defendants by a single firm of solicitors, and that it was made as soon as practically possible by the Second, Third and Fourth Defendants on instructing IBB.