PROVING THINGS 100: IT IS DIFFICULT TO PROVE ANYTHING WHEN EVERYONE IS LYING: “A FESTIVAL OF MENDACITY”
The judgment of Mr Justice Turner today in Rashid v Munir & Ors  EWHC 1258 (QB) illustrates the difficult task of the trial judge when all of the witnesses are strangers to the truth.
“Attempting to establish the common but unstated intention of a group of individuals all giving honest but conflicting evidence is difficult enough. Where, as here, each witness is attempting to outdo the other in a rich display of competitive dishonesty the task of the judge is unenviable”
The claimant and defendants were brothers. The claimant brought an action in relation to the ownership of assets of their late father. The father had developed a business “empire” which had been taken over by the claimant and defendants after his death.
“after the death of his father, it was the second defendant who assumed de facto control of the relevant businesses the details of the operation and profitability of which were but lightly touched upon in the tax returns of the defendants.”
At trial the claimant established his entitlement to beneficial claims in relation to properties owned by the late father. He appealed against the trial judge’s findings that he was not entitled to rent from the properties.
THE JUDGMENT ON APPEAL
The opening line gives a flavour of the issues.
His Honour Judge Davy QC, before whom this matter was heard at first instance, bore witness to a festival of mendacity. The judge warned the parties that he intended to send a transcript of his judgment together with the case papers to the Director of Public Prosecutions. My inquiries have revealed that, in the event, this was not done. That is an omission which this Court intends to put right.
THE JUDGE’S VIEW OF THE WITNESSES ON APPEAL
Clearly, the arrangements between the brothers were unorthodox and the judge’s task was made no easier by the fact that he found that the evidence of all of them was utterly dishonest. The claimant seeks to argue before me today that there were a number of occasions upon which he raised the issue of rental payments before he started these proceedings but, as I explained to him, the judge at first instance had rejected his evidence on this issue and it is not open to this court on the facts of this case to go behind his findings on matters of credibility.
“…I do not believe him on this or indeed any other material matter.”
He made the following further observations:
“The first defendant gave evidence which, insofar as it was designed to help the second defendant, was, I am sure, untruthful.”
“On any view, the second defendant was egregiously dishonest…” and “in his evidence was…as heroically dishonest as he is in his everyday life.”
“The third defendant gave evidence in a facetious manner, including winking at the claimant’s counsel at one stage, a manner which revealed to me that he regards telling the truth as simply no more than a lifestyle choice.“
Attempting to establish the common but unstated intention of a group of individuals all giving honest but conflicting evidence is difficult enough. Where, as here, each witness is attempting to outdo the other in a rich display of competitive dishonesty the task of the judge is unenviable. Notwithstanding these challenges, I am satisfied that the judge applied the correct legal test and reached a conclusion which fully reflected what little objective fact he could salvage from the tangled web of deceit which the parties had so enthusiastically weaved when giving their evidence.