PROVING THINGS 225: PROVING THAT A SIGNATURE WAS FORGED: DIVORCE PROCEEDINGS WERE NEVER SERVED

In  Randhawa v Randhawa (Divorce: Decree Absolute, Set Aside, Forgery) [2021] EWFC B96 HHJ Moradifar found that a signature on an acknowledgment of service had been forged. Consequently the decree of divorce that followed was set aside.

THE CASE

The claimant* sought an order that a divorce be set aside on the grounds that she had had no notice of proceedings. The defendant relied upon a signed acknowledgment of service where,  it was said, the claimant had stated she did not intend to defend the divorce.  The matter depended on whether it was, in fact, the claimant’s signature. (These are not the terms used in the judgment, but I have adopted them to make the matter easier to follow).

The defendant had “remarried” and had a child by his new wife.

THE LAW

The judge set out the relevant principles in relation to the need to prove a disputed fact.

    1. It is a simple and general proposition of the law that the party seeking to rely on a disputed fact must prove that fact. In civil and family proceedings such facts must be proven on a balance of probabilities. The applicable practice and procedure has been most helpfully summarises by Baker J (as he then was) in Re JS [2012] EWHC 1370 (Fam). Following this decision, Jackson J (as he then was) in Lancashire County Council v C, M and F (Children: Fact finding Hearing) [2014] EWFC 3 added a further item to this invaluable list of important considerations. Furthermore, I have considered and applied the observations of the former President of the Family Division in Re A (A child) [2016] 1 FLR 1. Although these cases were concerned with children in public law proceedings, the legal principles that are set out therein are equally relevant to cases such as this. More recently in Re A, B And C (Children) [2021] EWCA Civ 45 Lady Justice Macur most helpfully stated:

“54. That a witness’s dishonesty may be irrelevant in determining an issue of fact is commonly acknowledged in judgments, and with respect to the Recorder as we see in her judgment at [40], in formulaic terms:

“that people lie for all sorts of reasons, including shame, humiliation, misplaced loyalty, panic, fear, distress, confusion and emotional pressure and the fact that somebody lies about one thing does not mean it actually did or did not happen and / or that they have lied about everything”.

But this formulation leaves open the question: how and when is a witness’s lack of credibility to be factored into the equation of determining an issue of fact? In my view, the answer is provided by the terms of the entire ‘Lucas’ direction as given, when necessary, in criminal trials.

55. Chapter 16-3, paragraphs 1 and 2 of the December 2020 Crown Court Compendium, provides a useful legal summary:

“1. A defendant’s lie, whether made before the trial or in the course of evidence or both, may be probative of guilt. A lie is only capable of supporting other evidence against D if the jury are sure that: (1) it is shown, by other evidence in the case, to be a deliberate untruth; i.e. it did not arise from confusion or mistake; (2) it relates to a significant issue; (3) it was not told for a reason advanced by or on behalf of D, or for some other reason arising from the evidence, which does not point to D’s guilt.

2. The direction should be tailored to the circumstances of the case, but the jury must be directed that only if they are sure that these criteria are satisfied can D’s lie be used as some support for the prosecution case, but that the lie itself cannot prove guilt. …”

56. In Re H-C (Children) [2016] EWCA Civ 136 @ [99], McFarlane LJ, as he then was said:

“99 In the Family Court in an appropriate case a judge will not infrequently directly refer to the authority of Lucas in giving a judicial self-direction as to the approach to be taken to an apparent lie. Where the “lie” has a prominent or central relevance to the case such a self-direction is plainly sensible and good practice.

100 … In my view there should be no distinction between the approach taken by the criminal court on the issue of lies to that adopted in the family court. Judges should therefore take care to ensure that they do not rely upon a conclusion that an individual has lied on a material issue as direct proof of guilt.”

57. To be clear, and as I indicate above, a ‘Lucas direction’ will not be called for in every family case in which a party or intervenor is challenging the factual case alleged against them and, in my opinion, should not be included in the judgment as a tick box exercise. If the issue for the tribunal to decide is whether to believe X or Y on the central issue/s, and the evidence is clearly one way then there will be no need to address credibility in general. However, if the tribunal looks to find support for their view, it must caution itself against treating what it finds to be an established propensity to dishonesty as determinative of guilt for the reasons the Recorder gave in [40]. Conversely, an established propensity to honesty will not always equate with the witness’s reliability of recall on a particular issue.

58. That a tribunal’s Lucas self-direction is formulaic, and incomplete is unlikely to determine an appeal, but the danger lies in its potential to distract from the proper application of its principles. In these circumstances, I venture to suggest that it would be good practice when the tribunal is invited to proceed on the basis , or itself determines, that such a direction is called for, to seek Counsel’s submissions to identify: (i) the deliberate lie(s) upon which they seek to rely; (ii) the significant issue to which it/they relate(s), and (iii) on what basis it can be determined that the only explanation for the lie(s) is guilt. The principles of the direction will remain the same, but they must be tailored to the facts and circumstances of the witness

THE EVIDENCE OF THE HANDWRITING EXPERT

The judge then considered the evidence of the handwriting expert.
    1. Miss Ellen Radley was the first of the witnesses to give an oral testimony. She is a Forensic Document Examiner who was jointly instructed by the parties to undertake an examination of the material documents and the purported signatures of the parties. She confirmed that her report dated 14 August 2020 and the addendum thereto dated 29 September 2020 remain accurate and that her opinion had remained unchanged. She explained that in her report she identified five levels of certainty by which her opinion is expressed. These are conclusive opinion, very strong evidence in support of a proposition, moderate evidence in support of a proposition, limited positive evidence in support of a proposition and inconclusive. Miss Radley further explained that the last of the five would fall outside the civil standard of proof and the remining four supportive of proving a fact on the said standard. In summary she found that;
a. Compared to the known sample signatures of Mrs Randhawa, there is very strong evidence to support the proposition that the questioned signature was not written by [Mrs Randhawa] but that it is a simulation (freehand copy) of her genuine signature style, by another individual”.
b. It is highly unlikely” that the signature was deliberately modified by W or altered due to any circumstances that it was signed in including or an accidental modification.
c. There is no reliable evidence to accurately assess if H written the signature in question and this proposition must in her opinion be assessed as “inconclusive”.
    1. Miss Radley gave several characteristic examples in support of her conclusions that included the letter ‘P’ reaching below the base line, this being an imaginary base line that is individual to each person, construction and the formation of letter ‘a’, the unusual construction of the second ‘a’, the elongated ‘w’ (although this may be explained and not determinative) and significantly the terminal stroke which is scribed by a reflex action and illustrates a significant difference with Mrs Randhawa’s known sample signatures. She further stated that a deliberate disguised signature will have features of the writer’s handwriting that would reveal the attempt at a disguised signature. In this case, she found no such evidence, thus making this proposition highly unlikely. She also explained that it can be difficult to identify the ‘forger’ but not impossible. It requires a clear signature or writing and a known sample of similar characters so that a like for like comparison may be made. This requires sufficient known samples from different documents such as letters, notes and diaries that have the lower and upper cases of letters. In the samples that were provided by Mr Randhawa, she was not offered the opportunity to undertake such an investigation as those samples were insufficient . She observed that the signature was clear and with a larger known sample such an analysis and identification may have been possible.
  1. Miss Radley finally stated that there were three disputed sample documents (20-22) that she had discounted when reaching her conclusions as these documents were not agreed. She did comment that there were some similarities in document 22 but could not comment any further. She did not agree with the suggestion that there may have been a cutting and pasting of a signature on one of the relevant pages. She explained that this would be impossible to assess and accepted that if there is reliable evidence of a wet signature on a document, then the proposition of a cut and paste cannot be maintained.

THE JUDGE’S FINDINGS

The judge found that the signature had been forged.

    1. Having considered the parties’ evidence in the context of the totality of the evidence before me, on the central issues in this case I prefer Mrs Randhawa’s evidence to that of Mr Randhawa’s. There is no evidence that would suggest that the signature on the acknowledgement of service was ‘faked’ by her. This is no more than a conjecture by Mr Randhawa who does not profess to have witnessed her doing so. To do so, would be illogical and in my judgment highly improbable. Furthermore, there are several ways in which a divorce process may be disguised or hidden from the family or the community. This includes the instructions of solicitors which is a practice that both parties were familiar with.
    1. There is no direct evidence that would support a finding that the said signature was forged by or on behalf of Mr Randhawa. However, I found Mr Randhawa’s explanation for his inability to provide a sufficient sample of his handwriting for the consideration of Miss Radley to lack any credibility. I note that he is a business man of many years standing who has conducted many business transactions involving many friends and professionals in this capacity. Furthermore, Mr Randhawa, as accepted by him, has been shown to have given incorrect information on official documents including the wrong address in Kent on an official document relating to Mrs Randhawa in circumstances where she has never lived at that address. Moreover, it is clear to me that in 2010, Mr Randhawa had a vested interest to be divorced from Mrs Randhawa. He was the only one of the parties who had an involvement in the divorce process in circumstances that I find that Mrs Randhawa did not have notice of the divorce proceedings. Thus leaving Mr Randhawa as the only person with opportunity and motive to ensure that the divorce proceeded without difficulties. After considering all of the evidence before me, I find that Mrs Randhawa’s purported signature on the Acknowledgement of Service form dated 11 February 2010 was forged by or on behalf of Mr Randhawa.
Conclusion
    1. After considering all of the evidence before me, I find that;
a. Mrs Randhawa has had no notice of the divorce proceedings that were initiated by a Petition for divorce by Mr Randhawa dated 22 January 2010.
b. Mrs Randhawa’s purported signature on the Acknowledgement of Service form dated 11 February 2010 is a forgery.
c. The said signature was forged by or on behalf of Mr Randhawa
Accordingly the decree of divorce granted consequent upon the Petition for Divorce dated 22 January 2010 must be set aside.