“POSSIBLE CRIMINAL ACTIONS THAT MAY HAVE TAKEN PLACE IN THIS CASE INCLUDE PERJURY, CONSPIRACY TO DEFRAUD AND CONSPIRACY TO PERVERT THE COURT OF JUSTICE”: THE NON-EXISTENT TRIP TO ILKLEY

The judgment of HH Judge Davis-White QC (sitting as a High Court Judge) in The British University in Dubai v Ebrahimi [2021] EWHC 757 (Ch) contains clear findings of fact in relation to three witnesses.  Among the matters of interest to litigators are the claimant’s requests for documentation from individuals. The documents included emails and receipts that showed it was very unlikely that the witnesses in question were present, and witnessing a will, at the time they alleged. Further one witness in particular simply changed his mind and stated that the evidence given in witness statements was simply untrue.

 

    1. Although I accept it is ultimately a matter for the court I do not see why parties should not be able to assist the court by making relevant submissions. Possible criminal actions that may have taken place in this case include perjury, conspiracy to defraud and conspiracy to pervert the course of justice. I was referred to the seriousness of those offences, in part by reference to the relevant sentencing guidelines.

  1. Given the facts of this case I consider that I should refer the papers on to the DPP and direct that he should be provided with a copy of this judgment and copies of the written evidence from Professor Ebrahimi and each of the two Loughborough Witnesses as lodged in these proceedings.

THE CASE

The case concerned the validity of a will.  The defendant was the executor to a will signed in 2018. The claimant was the main beneficiary of a will signed in 2012.  It was alleged that the 2018 will was not valid.   The 2018 will had some unusual characteristics.

THE 2018 WILL

The judge observed that there were four people who were said to have witnessed the 2018 will.

    1. The 2018 Will is a holographic one page will. It has the curiosity that its execution by the testator is apparently witnessed (there is no formal attestation clause) by two witnesses (the “Ilkley Witnesses”) in Ilkley, West Yorkshire, where the testator then lived, on 4 May 2018. This was the day after 3 May 2018 when it was purportedly executed by the testator. It is common ground, and the evidence from those two witnesses is, that they witnessed the testator’s signature separately on 4 May 2018, at a time when they were not together as witnesses. Accordingly, they did not validly attest the will in accordance with section 9 of the Wills Act 1837. That provision requires the two witnesses to be present together when the testator either signs the will or acknowledges his signature in their presence.
  1. However, on the reverse side of the one-page 2018 Will are two further names and addresses and signatures each with the date of 3 May 2018.

 

THE ISSUE

For a will to be valid it has to be witnesses by two witnesses who are together.  The two “Ilkley” witnesses witnessed the will independently of each other.  On the basis of those signatures the will could not be a valid one.  The evidence related to the “two further names and addresses” on the reverse side of the will.  These witnesses stated that they had travelled to Ilkley from Loughborough and witnessed the will.

THE SIGNATORIES OF THE WILL

The judge considered the evidence of the two “Loughborough” witnesses.
    1. The defendant’s case was that these two signatures were those of two professional colleagues of his from Loughborough University, for convenience referred to before me, and by me in this judgment, as the “Loughborough Witnesses”. It was said that the defendant, and separately the Loughborough Witnesses, had travelled to Ilkley on the afternoon/evening of 3 May 2018. The defendant frequently visited Professor Whalley to look after him and was due to do so in the afternoon of that day, and then to stay overnight. The Loughborough Witnesses needed academic assistance from Professor Whalley and it was agreed that they would also visit him at his home that evening. Whilst at Professor Whalley’s house, and at a time when the defendant had left the room and was not present, it was said that Professor Whalley had got out his 2018 Will, signed it and asked each of the Loughborough Witnesses to witness and sign it, which they did. They did not know the document was a will. Thereafter the Loughborough Witnesses completed their 6 hour round journey and returned home to Loughborough, arriving late at night, or in the very early hours of the following day. The reason put forward why Professor Whalley on 4 May 2018 then obtained two more signatures witnessing his signature was because he had a concern that the Loughborough Witnesses’ attestation was, or may have been, invalid as they were not UK nationals but, in one case, a Greek national and, in the other case, a Cypriot national.
  1. The claimant’s case is that the 2018 Will is invalid because the deceased did not make his signature in the presence of two or more witnesses at the same time nor acknowledge his signature in the presence of two or more witnesses at the same time. The signatures of the Loughborough Witnesses are said to have been added at a later date to represent that those “witnesses” had witnessed the will, validly, on 3 May 2018 when that was not the case. In effect, a conspiracy was alleged between the Loughborough Witnesses and Professor Ebrahimi.

THE JUDGE’S JOB MADE EASY

The judge’s fact finding task was made easier by one of the Loughborough witnesses totally changing their evidence.

    1. The issue that I have to decide is made considerably easier by what took place when the last witness for the defendant was called to give evidence.
    1. The last witness for the defendant who gave evidence before me was Dr Antonios Pezouvanis, one of the Loughborough Witnesses. On 19 March 2020, he was taken to the affidavit of due execution that he had made on 4 October 2018. That affidavit confirmed that he and the other Loughborough Witness, Dr Panagiotis Athanasiou, were present at Professor Whalley’s home on the evening of 3 May 2018 and that they had each witnessed the 2018 Will in the manner that I have explained. That affidavit was not made in the current proceedings but was made with a view to obtaining probate, which, as I have said, was then obtained. Once called to give evidence, and having identified the copy in the bundle as being a copy of his affidavit and the copy signature as being his, Dr Pezouvanis was asked, in chief, if the contents of his affidavit were true. His answer was a short one: “No”. When asked how he would like to correct his affidavit he simply replied: “There was no meeting on 3 May 2018”. At that point, Counsel for the defendant asked for time (subsequently extended) to take instructions.
    1. Having had time to take instructions, Counsel for the defendant confirmed that the defendant was not pursuing his defence to the claimant’s claim that the 2012 Will was valid and the 2018 Will was invalid. He also sought permission to withdraw his counterclaim, seeking a pronouncement in favour of the 2018 Will in solemn form. He did not resist an order for indemnity costs against him in his personal capacity, which I made, together with an adjournment of the issue of a payment on account of such costs. He also did not resist an order for payment out of sums paid into court by the claimant by way of security for costs. Again, I made that order. The claimant invited me to deliver judgment in order that I could make substantive orders on the claim, including a claim for an account from Professor Ebrahimi, which order I did not understand Professor Ebrahimi to be resisting.
    1. I was later provided with a draft agreed order which, among other things, permitted the withdrawal of the counterclaim but I decided that the issue of whether there should be permission to discontinue or a simple order of dismissal should await this judgment.
    1. The various concessions made by Professor Ebrahimi through his Counsel were made in circumstances where Dr Pezouvanis was part way through his evidence in chief and where, apart from some directions about not discussing the case or his evidence and making arrangements to adjourn or resume the hearing, he had been kept in the “waiting room” of the remote video platform being used, HMCTS’s cloud video platform, both during the adjournments but also while discussions took place between the court and counsel. Following the points being reached as I have set out above, Counsel for the claimant sought permission to cross-examine Dr Pezouvanis with a view to clarifying how, when and why he had come to give the original evidence that he had given regarding the alleged meeting on 3 May 2018. I refused to permit such cross-examination in that Dr Pezouvanis’ oral evidence was now clear, he would clearly have had to have been given a warning about the privilege against self-incrimination and would have been unlikely to answer further questions but, most importantly, the how, when and why was either not relevant or not needed for any issue left for me to resolve.
    1. Dr Pezouvanis’ oral evidence was clear and unequivocal. There was no reason for him to change his evidence to say what he did unless it was the truth. So compelling was his evidence that, as described, it resulted in the defendant abandoning his case. Nevertheless, as I have been asked to give a judgment, I must go on and assess the evidence in the case in the round.
  1. I should add that there was a further remote hearing on 24 March 2021, as I have mentioned earlier. At that hearing certain issues were ventilated about what this judgment should contain, as well as other matters including those I have referred to earlier. This judgment therefore provides my reasons for concluding that the 2018 Will is invalid and that probate should be revoked.

THE EVIDENCE ABOUT THE “SECOND” WITNESSING OF THE WILL

The judge reviewed the evidence in relation to the “Loughborough” witnesses.  Of particular note here is the claimant’s request for documentation and the damage that this documentation did to the credibility of the witnesses.

    1. Rather than deal with the evidence in chronological order, it seems to me that, given the evidence of Dr Pezouvanis, it is appropriate to go straight to the evidence of the meeting on 3 May 2018 given by Dr Athanasiou (and of course Dr Pezouvanis in his witness statements) and the defendant.
    1. The affidavits of due execution provided for probate purposes and made by each of the Loughborough Witnesses are in almost identical form and were sworn on 4 October 2018. Having said that they were both present at Professor Whalley’s house on the evening of 3 May 2018, each affidavit says that “shortly after” their arrival Professor Whalley got out his 2018 Will and signed it, he asked them their nationalities and then asked them to sign the reverse which they did. They also each say that they “now understand” from Professor Ebrahimi that Professor Whalley was under the misapprehension that as Greek (Dr Pezouvanis) and Cypriot (Dr Athanasiou) nationals, they could not be lawful witnesses which is why he arranged for further witnesses to witness his signature the next day.
    1. Each then signed a witness statement in a “proposed” matter between the claimant and Professor Ebrahimi. Each statement is dated 18 April 2019 and is in similar terms. They describe each other as a colleague and friend. They each say that the meeting was “pre-arranged” but they could not remember who organised the meeting. They say that they left shortly after 5pm to avoid traffic and that they arrived about 3 hours later at 8:30pm. Having spent some time discussing their particular topics that they had come to discuss, and Professor Ebrahimi at some time having left the room and not returned, Professor Whalley got out a document, asked if they minded witnessing it, signed it on the front, asked them their nationalities, turned the document over and pointed to where he wanted them to sign and asked them to print their names. They now estimated this as happening between 9:30pm and 10:30pm: hardly “shortly after” their arrival as stated in their earlier affidavits. They left shortly after 10pm. By inference they arrived home sometime about 1am the next morning.
    1. Drs Pezouvanis and Athanasiou made second witness statements on 6 and 7 May 2020 respectively. Professor Ebrahimi made his second witness statement in the proceedings at that time too. This was the first substantive witness statement from Professor Ebrahimi giving any detail as opposed to pro forma details about earlier wills etc. As regards the 3 May 2018 meeting both Loughborough Witnesses recorded that they wished to give as much detail as possible to the extent that they had not covered it before. Each went into some little detail of the technical issues that they wished to raise that day with Professor Whalley. It is noticeable, however, that neither were able to exhibit any notes taken at this crucial meeting with Professor Whalley, though Dr Pezouvanis was able, for example, to produce notes or drawings relating to a discussion with Professor Ebrahimi on the afternoon of 3 May 2018 which he said related to the issues that he needed to raise with Professor Whalley.
    1. Dr Pezouvanis could not remember whether the arrangement to meet Professor Whalley had been made with Professor Ebrahimi at the meeting that Dr Pezouvanis had with Professor Ebrahimi at Loughborough University in the early part of the afternoon 3 May 2018 or whether it was arranged before.
    1. Dr Athanasiou thought that he had let Professor Ebrahimi know at some earlier time that he wanted to speak to Professor Whalley and that after the meeting between Professor Ebrahimi and Dr Pezouvanis in the early afternoon of 3 May 2018, Dr Pezouvanis came and told him that he had arranged to go to Ilkley that evening and that Dr Athanasiou could come too if he liked.
    1. Dr Pezouvanis thought Professor Ebrahimi had left for Ilkley shortly after the meeting in the early afternoon, but this must have been after Professor Ebrahimi emailed him at 15:25 with a copy of the diagram that they had been discussing.
    1. They stood by their earlier witness statements that they left Loughborough shortly after 5pm and Dr Pezouvanis now thought that Dr Athanasiou had driven. The arrival at about 8:30pm was confirmed because they did not remember stopping anywhere and did not recall encountering particularly bad traffic.
    1. The meeting is described much as before save that the nationality issue was described by Dr Pezouvanis as being a “comment” or “flippant or casual remark or question” by Professor Whalley. “He either asked us what nationalities we were or whether, having both worked in the UK for some time now, we had each obtained British Citizenship. I can’t specifically recall how he put the question or made the comment, and I cannot remember exactly our answers but, in some way, or another, we told him our nationalities.”
    1. Each witness statement contained a specific paragraph confirming that the maker had been made aware of the consequences of signing the same (and swearing the earlier affidavit) if they did not believe its content to be true and said that the maker was more than happy to sign the statement because “I honestly believe that what I am saying in it is true”.
    1. Professor Ebrahimi simply said that he “had arranged” for the Loughborough Witnesses to visit Professor Whalley in Ilkley that afternoon but with no more detail. That they should so visit was said not to be “unusual”.
    1. Following these statements, the claimants sought specific disclosure particularly in relation to bank statements and credit card statements to see if there was any evidence that any of the three travellers from Loughborough to Ilkley had indeed done so (for example, petrol or service station payments and the like) or that they had not.
    1. Professor Ebrahimi served a further witness statement (his third) dated 17 February 2021. He said that he now suspected that the arrangement for the Loughborough Witnesses to travel to Ilkley was a “quick informal decision to go, most probably on the day itself.” It appeared from emails that he had since found that he had probably had a meeting with Dr Athanasiou at about mid-day on 3 May 2018 and he had sent him some emails with diagrams attached. No such meeting had been mentioned by either before. He also located a number of emails that he had sent on 3 May at 16:31, 16:39 and 18:46. These all created difficulties in his earlier version of events that he had left Loughborough after 15:25 (the last email to Dr Pezouvanis) and that he had arrived in Ilkley before 6pm. He thought it possible either that he sent the emails from a service station where he had a brief stop or that he did not leave Loughborough until after 16:30.
    1. Dr Pezouvanis made a third witness statement dated 19 February 2021. In that he attempted (among other things) to explain a debit card statement showing a purchase on 3 May 2018 apparently at Cineworld Loughborough for £39. He was unable to say when the purchase was. He thought it related to an advance purchase of tickets (or possibly, but less likely, a visit to Starbucks in the same complex). He couldn’t say whether the purchase was on-line or instore but gave the impression that it was either over the phone or on-line.
    1. Information was collected by the claimant’s solicitors regarding this purchase but the information was somewhat unclear. At the start of the trial the defendant asked permission to issue a witness summons which I granted. At that point Cineworld suddenly started providing information. It emerged during the trial from emails from Cineworld that the purchase was in-store using the ticket machine booths in the Cineworld premises in Loughborough town centre and that the time of the purchase was 17:46. This obviously raised questions about the timings given for the trip to Ilkley and also the account that the journey had been direct with no stops.
    1. After this evidence had been obtained, Dr Athanasiou was called to give evidence. He confirmed at the start of his evidence that he had not recently discussed his evidence with anyone. When asked about the journey to Ilkley, almost immediately and unprompted he gave a new account of how he had gone to Cineworld to buy tickets. This, he said, was reflected in his bank statements where a transaction dated 4 May 2018 was recorded showing a transaction in favour of Cineworld in the sum of £43.53. He said that this related to a transaction from 3 May 2018 which had probably only been posted to his bank account, and therefore shown on his statement the following day. He said that he had told the defendant’s solicitors about this at the time that he had been asked for the extra bank and other statements for the purposes of the defendant giving specific disclosure. He could not explain why he had not made a further witness statement explaining the position. It was of course, on any view, a material change in his evidence.
    1. Before commencing re-examination, Mr Bishop felt compelled, quite rightly, by reason of his duties to the court to draw to the court’s attention that he was aware that his solicitors had had a Teams video call with Dr Athanasiou once the evidence from Cineworld had been provided and to discuss the same, as I understood it within 24 hours of Dr Athanasiou giving evidence. At the time, I expressed concern about this communication with Dr Athanasiou but in the end have not heard detailed submissions as to its propriety and so need say nothing further about it.
    1. Once re-examination concluded, I gave Mr Webster permission to cross-examine Dr Athanasiou further about whether he had or had not discussed his evidence with anyone recently. Dr Athanasiou was adamant that he had not.
    1. What was clearly an obvious lie about the absence of such a recent communication was such as to completely undermine Dr Athanasiou’s credibility. In any event, absent a waiver of privilege and explanation from the defendant’s solicitors, I would not have been prepared to believe that Dr Athanasiou had indeed told them about this transaction over a year earlier that he now claimed to have taken place on 3 May 2018 (so that each of the Loughborough Witnesses are now said to have bought tickets at Cineworld on 3 May 2018, making a diversion from their route to Ilkley). The journey to Ilkley was clearly a key component of the case as was recognised by the extra witness statement made by Dr Pezouvanis trying to explain his purchase of Cineworld tickets on 3 May 2018. Had Dr Athanasiou said something to the defendant’s solicitors it is unlikely that they would not then have put in a witness statement from him.
    1. In all the circumstances, all that I need to say is that the evidence of Dr Athanasiou confirms to me the correctness of Dr Pezouvanis’ evidence that the meeting on 3 May 2018 did not take place. Part of that assessment also relates to the lack of detail about how the arrangements for the meeting were made and the absence of any positive independent evidence that the meeting did take place.
    1. That leaves the question of Professor Ebrahimi’s evidence. As regards this I think I can be brief. In the light of the position, I have outlined regarding the Loughborough Witnesses themselves, does the evidence of Professor Ebrahimi lead me to doubt the evidence of Dr Pezouvanis? The short answer is that, in my assessment, the evidence of Professor Ebrahimi simply confirms me in my conclusion that Dr Pezouvanis is correct in saying that the meeting on 3 May 2018 did not take place. Some of the headline points that I have taken into account are as follows and they go beyond the evidence relating directly to the alleged meeting itself. Some, taken individually, would not necessarily have caused me to conclude that the meeting on 3 May 2018 did not take place but taken together with all the other evidence they confirm me in my conclusion that it did not.
    1. First, there is the unclear evidence regarding the arrangements for the alleged meeting. Secondly, there is the absence of independent confirmatory evidence that the meeting took place. Thirdly, there is the entry in Professor Ebrahimi’s calendar for a meeting in Ilkley on 4 May but no entry for the 3 May.
    1. Looking more widely and taking his evidence at face value, it is difficult to understand why, having been told by Wrigleys at the meeting on 10 July 2018 that there was a potential issue with the 2018 Will (of which he had produced a front page photocopy only) and following confirmation by letter dated 24 July 2018 that the 2018 Will had not been validly witnessed by the two Ilkley Witnesses because they had not been present together at the time that Professor Whalley acknowledged his signature, Professor Ebrahimi should:
(1) not have searched for or found the original of the 2018 Will which was in the same envelope that he had taken a photocopy from and which only contained a few sheets of paper;
(2) have made arrangements on 26 July 2018 to see Irwin Mitchell LLP on 2 August 2018 on the basis that that firm handled contentious will business, whereas Wrigleys did not, and having found the original 2018 Will with the Loughborough Witnesses’ signatures on the reverse had not thought it important, nor mentioned it to Wrigleys to ask if it made a difference, and decided only to “mention” it to Irwin Mitchell LLP and then only realising its importance after meeting with Irwin Mitchell LLP on 2 August 2018;
(3) in the light also of the facts at (2), have emailed Wrigleys on 1 August 2018, asking them the options to use them to “defend” the 2018 Will in court and whether it was possible to discuss a compromise with the beneficiary of the 2012 Will to avoid going to court (Wrigleys’ answer was a short one: the document dating from 3 May 2018 is not a valid document);
(4) prior to the email to Wrigleys of 1 August 2018, have got in touch with Professor Alshamsi to discuss a possible “compromise”;
(5) have taken the view that despite the clear and unequivocal advice from Wrigleys that the court might be able to do something to rectify the technical error.
    1. As regards the attempt to reach a compromise with the claimant, Professor Ebrahimi attempted to play down that as a motivating reason for his contacting Professor Alshamsi in July 2018. Instead, he suggested that he wanted to discuss with Professor Alshamsi (1) his concerns that Manchester University might be making claims on the estate of the late Professor Whalley and (2) the conduct of Professor A.Ameer to Professor Whalley so that it could be investigated. Neither were convincing. In particular, as regards the contact from an academic at Manchester University, Richard Kirkham, the alleged grounds for suspicion either did not exist or made no sense. Professor Ebrahimi asserted that Mr Kirkham had pursued him to have a meeting whereas, once relevant emails were produced, it was clear that it was Professor Ebrahimi who had offered a meeting to Mr Kirkham to discuss Professor Whalley and Mr Kirkham had merely pursued that offer. Further, the suggestion that it was odd for Mr Kirkham to divert off the train mainline between London and Manchester to see Professor Ebrahimi was also demonstrated to be incorrect when the emails revealed that Mr Kirkham was suggesting coming to London via Loughborough on the Midland line on his way to London from York. Finally, the suggestion that he wanted to speak to Professor Alshamsi about a possible challenge to the 2018 Will coming from Manchester University made little sense if he, Professor Ebrahimi, also thought (as he said that he did) that Professor Alshamsi was likely to be raising a challenge to the 2018 Will.
    1. The assertion to the Loughborough Witnesses (and in his evidence to the court) that the reason for Professor Whalley seeking further witnesses on 4 May 2018 was that he had doubts as to whether foreign nationals could attest an English will, when the so-called evidence of such determination, even on the evidence put forward by Professor Ebrahimi, was minimal, made little sense. It is difficult to see why Professor Whalley would have changed his mind overnight of the competence of attesting witnesses given his personality, even if he had changed (over some years) his position regarding gifts by will to overseas entities. Some explanation for two sets of witnesses witnessing the 2018 Will within 24 hours needed to be found but the explanation provided was wholly contrived.
    1. Looking at all the evidence about the 3 May 2018 meeting the position can be summarised as follows. The evidence regarding the details of the trip on 3 May 2018 was unconvincing. A last minute arrangement to visit Professor Whalley would have been difficult to arrange given the evidence as to the limited opportunity to contact Professor Whalley other than at limited mealtimes and seemed most unlikely given it involved a 6 hour round trip. There was no evidence that Professor Whalley had invited junior academics in the past to his home to discuss academic matters late in the evening. There was no contemporaneous evidence by way of diary entries, credit card/debit card expenditure and the like. The evidence about the sending of emails late in the afternoon of 3 May 2018 by Professor Ebrahimi was in oral evidence suddenly embellished by a new theory that he had sent them on arrival at Ilkley but before he went to Professor Whalley’s home. In any event, the timings simply did not work.
    1. As a matter of generality, the content of the actual explanations given to explain oddities in the defendant’s case and evidence put forward were unconvincing.
    1. One of the contemporaneous pieces of evidence crying out for an explanation was the 2018 Will itself. Leaving aside the issue as to two sets of witnesses, it was wholly unclear why the Loughborough Witnesses would not have been asked to sign and set out their details on the bottom of the first page as (according to the defendant’s case) the Ilkley Witnesses were asked to do (and did do) the following day. The most natural thing (as in the case of the 2012 Will) would be to have the word “witnessed” and the relevant witness details placed immediately under the signature of the testator, rather than being freestanding and with no explanation on the reverse of the document.
  1. For all these reasons and in all the circumstances, I am satisfied that the defendant’s case was a false one, supported by the false evidence of the two Loughborough Witnesses, and that the 2018 Will is invalid.