WHEN WHATSAPP PROVES THAT THIS WAS NOT A BUSINESS RELATIONSHIP: NOT SO ROMANTIC PARTNER ORDERED TO REPAY £67,000
I am grateful to barrister James Miller for sending me a copy of the judgment of HHJ Gosnell in Riaz -v- Akbar (19th November 2019) a copy of which is available here. This is an interesting example of a judge considering witness credibility when the evidence was diametrically opposed. A copy of the judgment is available here. Riaz v Akbar Judgment
“There are over 200 pages of these entries but in general terms certain themes emerge. The Claimant is much more communicative than the Defendant and her messages are almost exclusively affectionate. They do however support her claim to have made a significant number of loans to the Defendant to help him pay tax arrears, loans to friends, car repairs, credit card bills, black magic payments for goat sacrifices, food and generally to tide him over when short of money.”
The claimant brought an action for damages claiming that she had paid money to the defendant on false pretences. She met the defendant on an online dating agency eHarmony. The defendant stated he was single, he was a company director and that they would get married once his youngest child had completed his GCSE examinations. The claimant lent the defendant £65,480.67 which he promised to repay.
The defendant was, in fact, married and not a company director. The claimant’s case was that the money had been paid under false pretences.
The defendant’s case was that there was a business relationship between them and, broadly, money was paid in the course of that business relationship.
THE OPENING LINE OF THE JUDGMENT
“This is a curious case. It is often submitted by counsel that a witness would not come to court to lie. In this case, every single witness has been accused of lying. The court must inevitably find that one or more actually has lied.”
THE WAY THE EVIDENCE PROGRESSED
The judgment makes interesting reading for the various turns the evidence took (including a few dead ends). It is clear that both parties were allowed to give evidence that was supplemental to their witness statements.
“The Claimant gave evidence and confirmed that the contents of her witness statement were true. She was permitted to give some additional evidence in chief which included the fact that she first met the Defendant through the eHarmony dating website in February 2015 through his active account.”
“The Defendant gave evidence and he also took the opportunity, with the agreement of counsel for the Claimant to expand on his witness statement by giving extensive evidence in chief, a practice which I disapproved of and eventually curtailed.”
FACTUAL FINDING ON THE KEY POINT: WHATSAPP EVIDENCE SHOWED A ROMANTIC RELATIONSHIP
62. The nature of the parties’ relationship
Again, the parties’ cases on this issue are diametrically opposed. The Claimant claims she was in a romantic relationship with the Defendant and she lent him money when he needed it because she loved him, and they were planning a future together once his son was older. The Defendant says that there was never any romantic involvement from 2015 onwards and this was a purely business relationship. Whilst he accepts that he received regular payments from the Claimant, they were made to reimburse him for expenses he had incurred in setting up the Vehari office with the Claimant’s agreement.
63. The Claimant can prove all of the payments which she made as they were done by direct bank transfer through her bank account. The Defendant therefore has to accept that he received this money but seeks to put forward increasingly unlikely explanations why the payments were made. For example, he had to accept that the Claimant had bought him jewellery, pens and watches. He said that these were all bought for him in lieu of payments made to reimburse him for expenses in Pakistan or to pay him his share of profit / commission from the business. He has been unable to produce any evidence of a profit or commission statement from Manchester Legal Services at any time to justify these claims. If he is right that reimbursement or commission was owed why did the Claimant not merely transfer the sums involved? Surely it would be easier to do that rather than buy something which actually looks more like an expensive gift for a lover. It seems extraordinary that if two people were involved in a business transaction, they would not have exchanged any business-related emails or letters. Whilst I accept that they could have communicated by phone in addition, the absence of any emails at all in a modern business is virtually unprecedented in my experience.
64. The Defendant therefore has an uphill task in persuading the court that such a business relationship exists at all. That task became impossible once the Claimant’s WhatsApp records were taken into account. The Claimant has managed to recover and download all of her WhatsApp conversations with the Defendant from 24th November 2015 to 13th September 2017 [ 4C/1- 209]. The Defendant says that whilst the records appear genuine that they have been edited or changed by the Claimant to bolster her case. I did point out to him that there are a number of ways to recover these messages even if they have been deleted from your phone. He relies on the fact that the Claimant was found by the Immigration Services Commissioner to have altered and or edited an email trail to cover up her wrongdoing in the complaint made by Mr Qureshi [ preliminary bundle page 30]. I do take this into account and must approach the WhatsApp records with some caution but in cross-examination the Defendant appeared mainly to accept the records were genuine but seek to persuade the court that there was an innocent explanation. These explanations were almost exclusively entirely unconvincing. He relied on passages where there were line gaps between entries, but this happened infrequently and usually where the sender was compiling a list with the use of the return key.
65. An example of was on 8th February 2016 when the Defendant sent this message to the Claimant.
“List of Bribes;
This would be a truly odd conversation for business partners to have. Even if this conversation was edited there are plenty of examples of non-business-related conversations where no suspicious gaps appear.
66. The following exchange is instructive:
“Shazia: Morning xx. Omg just realised its our first anniversary!! That means I can buy u a pressie n I can treat myself too lol. Happy Anniversary Baby xx I just need an excuse to get things lol xx
Ifty: Good Morning x happy anniversary x now get to the bank and send the ambulance money”
This exchange is relatively typical, with the Claimant being affectionate and the Defendant responding then, asking for money.
67. In December the Claimant sent the Defendant a link for a song which contained the lyrics “Don’t cha wish your girlfriend was hot like me”. The Defendant’s reply was “make no sense if you are already my girlfriend lol”. This appeared to me to be fairly conclusive confirmation of the nature of their relationship.
68. The Claimant’s evidence was that she had borrowed about £50,000 from Equifinance in September 2015 partly in order to help pay off the Defendant’s tax debts. There is evidence that he received £24,750 in early September 2015 from her bank accounts. By January 2016 she is reminding him to remember to transfer the loan money and this is consistent with her case that he agreed to pay half of the loan instalments from his income. Shortly after that the Defendant tells the Claimant about debts he has incurred to friend and she transfers another £10,000 to his account on 5th January 2016. He then tells her he needs another £10,000 to clear his debts. In late January the Defendant says his wage is short because he hasn’t been into work due to illness and needs £1,200 which the Claimant then transfers. She also offered to pay the full loan instalment the next month rather than just her half. On 2nd February 2016 the Claimant confirms to the Defendant how much at that stage he owes her which was £17,230 plus half the Equifinance loan of £25,000 coming to £42,730. The Defendant disputes the authenticity of this message but there is a further message from the Claimant lower in the chain which refers to the £4,400 she is about to transfer which was included in the figures referred to above.
69. There are over 200 pages of these entries but in general terms certain themes emerge. The Claimant is much more communicative than the Defendant and her messages are almost exclusively affectionate. They do however support her claim to have made a significant number of loans to the Defendant to help him pay tax arrears, loans to friends, car repairs, credit card bills, black magic payments for goat sacrifices, food and generally to tide him over when short of money. There are numerous references to his ability or inability to pay his half of the loan repayments. Perhaps what is more significant is the fact that there is no reference whatever to their being in business together and the Claimant owing the Defendant money for his outlay in setting up the business in Vehari and then his share of the commission earned. This is extraordinary if the Defendant is right about the nature of their relationship. He said that they had agreed not to mention the business in their messages as the Claimant did not want her regulator or the tax authorities to find out about and they sometimes used a code word or words. This explanation was clearly not credible.
70. On August 2017 shortly before their relationship ended the Claimant sent a message to the Defendant which ended “love u xxx”. The Defendant’s reply was “ u 2 x”. When he was cross-examined about this, he said that the heart was coloured black rather than red which meant that he didn’t love her at all. Whilst conceding that my knowledge of “emojis” was not extensive I thought that would have been an extraordinary reply to give to the Claimant’s message if that was indeed what it meant. I concluded that the conventional meaning was much more likely and entirely consistent with the type of messages two people in a romantic relationship might engage in.
71. The Defendant’s evidence about the nature of their relationship is utterly incredible when seen in the context of the affectionate nature of the WhatsApp messages between him and the Claimant. The only sensible conclusion I could draw was that he was lying about this because he could not officially accept that their relationship was anything other than business like given that he was in a relationship with his wife throughout the period from 2015 to 2017. To what extent he was actually romantically committed to the relationship is difficult to say but the messages also support the Claimant’s case that he was constantly asking her to loan him money for various purposes which are most likely to be spurious. On this issue I find as a fact that the Defendant behaved as if he was in a romantic relationship with the Claimant and used that trust and affection on the Claimant’s part to extract money from her.
The claimant was successful. She recovered the sums paid but did not recover exemplary damages. James tells me that: