CIVIL EVIDENCE: WHEN YOU TELL A WHOPPER THE FIRST TIME AROUND – IT COMES BACK TO BITE YOU IN A SECOND TRIAL

May 14, 2024 · by · in Civil evidence, Witness statements

In McDonald’s Restaurants Ltd v Shirayama Shokusan Company Ltd [2024] EWHC 1133 (Ch) Mr Justice Edwin Johnson found that a company had misrepresented its intention at a trial which involved, essentially, the claimant’s right to a new tenancy of business premises.  Consequently the defendant was liable to pay compensation to the claimant under the Landlord and Tenant Act 1954. However a claim in the tort of deceit was dismissed.  It is a lesson that evidence given in one civil trial can come under close scrutiny in a second.

 

THE CASE

The claimant restaurant (McDonald’s) was the tenant of premises near County Hall in London. The defendant obtained possession of the premises by opposing the grant of a new tenancy, after a trial of the issue, on the grounds that they had a required intention to occupy the premises.

The claimant brought this second action alleging that possession had been obtained by deliberate or reckless misrepresentation to the court of the defendant’s intentions.

THE DEFENDANT’S EVIDENCE AT THE FIRST TRIAL

The defendant’s witnesses (at the first trial) gave evidence that there was a definite plan to develop the site as a restaurant.  However, immediately after the trial, it started to explore a wide range of plans to develop the site.

THE DEFENDANT’S UNDERTAKING

The defendant offered an undertaking at the first trial.

“27. The offer of an undertaking by the claimant is part of the evidence relevant to the claimant landlord’s subjective intention. It serves to reinforce the claimant landlord’s intention. I do not see why the undertaking should not be enforceable by contempt proceedings, as accepted by the claimant. It is not an undertaking to continue something requiring constant supervision. Further, I see nothing to prevent the claimant, through Mr Okamoto, giving an undertaking. The current English power of attorney has not expired. The giving of an undertaking now will bind the claimant company for the future. The evidence in any event is that the power of attorney will be renewed, Mr Okamoto having had a power of attorney for over 20 years. This is quite apart from the existence of a separate Japanese power of attorney.”

IMMEDIATELY AFTER THE FIRST TRIAL

 

    1. On the day after delivery of the Judgment, the giving of the Undertaking and the making of the Order, Mr Okamoto announced the outcome of the Preliminary Issue Trial in an email sent on 13th November 2018 (06:53). The email was addressed to Al Scott and Sarah Castle of IF–DO, a firm of architects (“IFDO”). In his evidence for the Preliminary Issue Trial Mr Chauhan explained that IFDO had been instructed to develop the design and layout for the new Zen Bento restaurant in the Premises which the Defendant, on its case in the Preliminary Issue Trial, intended to open. In his first witness statement Mr Chauhan gave evidence that tender returns for the construction of the new restaurant had been received from two contractors, and that the contract to carry out the works would be awarded in due course, once it was known when the Lease would determine and whether the Defendant could recover possession of the Premises. In his second witness statement Mr Chauhan said that the Defendant had received an up-to-date quotation and draft programme for the works from AMP Interiors Limited (“AMP”), and that it was the intention of the Defendant to accept this quotation and appoint AMP to carry out the works.

 

    1. The email of the early morning of 13th November 2018 was not sent to Mr Scott and Ms Castle alone. The email was also sent to a large number of other recipients, said to number some 88 individuals, many of whom had no apparent connection with the Defendant’s business, and included persons prominent in the film industry and in politics. The same phenomenon can be observed with other emails sent out by Mr Okamoto in the aftermath of the Judgment. Mr Okamoto routinely shared his emails with the same extended group of recipients who had been included in the email of the early morning of 13th November 2018. In his oral evidence Mr Okamoto explained that the recipients of this and other emails he sent out were persons who shared his commitment and vision for healthy eating and the introduction of Japanese cuisine on the basis of an East meets West concept. I will refer to this extended group of recipients, meaning those recipients of the relevant emails who were not immediately involved with the Premises and/or who were not specifically addressed in the relevant emails, as “the Recipient Group”.

 

 

    1. This email of the early morning of 13th November 2018, which bore the subject title “BAUHAUS by the River Thames Has Cross Culture Cooking Kaleidoscope Features”, was in the following terms:

 

“GOOOOOOOOD MORNING

Thanks to a Court Order yesterday, we can now take back the current McDonalds’ Riverside Premises, probably the most commercially valuable space in London, and we can open our “own” restaurant.

PLEASE URGENTLY produce a full set of construction drawings of our new “own” restaurant with the following brief:

AA) “GRAB & GO” restaurant without any seating area inside the building;

BB) Seating area outside on Queens Walk ONLY;

CC) The Entire & Whole Basement space is for Kitchens ONLY;

DD) At this new huge Basemen Kitchen Compound we can cook all the sorts of Far Eastern Dishes and Bakery Products including MOCHI; and

EE) The Ground Floor space is for a “GRAB & GO” Counter for all the sorts of BENTO Box Meals and “Hello Kitty” “Teddy Bear” branded Food Shop.

Are the above brief clear for you?”

 

  1. It should be noted that in this and other emails, from which I quote in this judgment, I have not been able to reproduce the emojis, symbols and pictures of which Mr Okamoto made liberal use in his email communications in the aftermath of the Judgment. I also stress that the emails from which I quote comprise extracts from a large body of email communications, in a similar vein to those from which I quote, which were sent in the aftermath of the Judgment.

DID THE DEFENDANT MISREPRESENT ITS INTENTION AT THE FIRST TRIAL

The judge found that it did.

 

    1. Did the Defendant misrepresent its intentions, or more accurately its intention to the court? As I understand the Claimant’s case, it is not said that there is evidence, on or prior to 12th November 2018, which demonstrates that the Defendant misrepresented its intention to the court. Instead, the Claimant relies on the events which took place after 12th November 2018.

 

 

    1. Given the certainty and precision of the Defendant’s evidence that it intended to occupy the Premises, by Aji Restaurants, for the purposes of operating Zen Bento, it is a considerable surprise to find Mr Okamoto, literally within hours of the Judgment being delivered, emailing IFDO and the Recipient Group with a brief for the development of a new “grab and go” restaurant, with no internal seating and little or no resemblance to Zen Bento. The email, the terms of which I have set out earlier in this judgment, was sent at 06:53 on 13th November 2018. The terms of the email, and the communication of the new brief to IFDO make it quite clear, in my judgment, that Mr Okamoto regarded himself as being at liberty to develop whatever kind of restaurant he wished in the Premises. The email refers to taking back the Premises from the Claimant, and makes no reference to the obligations imposed by the Undertaking. It seems clear to me, reading the email of 13th November 2018, and I so find, that Mr Okamoto regarded the Termination Order as the equivalent of a possession order.

 

 

    1. All this is borne out by the subsequent emails sent out by Mr Okamoto with ideas for the use of the Premises. I have set out the relevant emails earlier in this Judgment. In summary those emails show Mr Okamoto floating a series of proposals for the use of the Premises ranging from a grab and go restaurant with no internal seating, through a restaurant for children, a Michelin 3 star restaurant and a high-class Spanish style fish restaurant, to the Japanese restaurant on the ground floor, and the English bakery in the basement which eventually opened for business. Conspicuous by its absence from these emails is Zen Bento. In saying this, it will be appreciated that my reference to Zen Bento continues to mean the new restaurant which, in the Preliminary Issue Trial, the Defendant had stated that it intended to open at the Premises. I have adopted the same expression to refer to what was said to be the intended new restaurant. I accept that proposals for a Japanese style restaurant did feature in the email communications in the aftermath of the Judgment. What went missing was Zen Bento itself.

 

 

    1. This is not the only surprising feature of the post-Judgment emails from Mr Okamoto. In his second witness statement for the Preliminary Issue Trial Mr Chauhan identified AMP as the company which the Defendant intended to instruct, for the purpose of carrying out fitting out works costed at over £1 million. On 4th December 2018, in response to an inquiry from Mr Pearce as to whether the services of AMP were still required for various projects, including the Premises, Mr Okamoto emailed Mr Pearce telling him to “forget McDonalds”. This brought an abrupt end to AMP’s involvement with the Premises. Ultimately, it was JLA which was instructed to install the new kitchen in the Premises, but not before another company, Space Group, had been approached and then discarded.

 

 

    1. IFDO, the architects instructed in relation to Zen Bento experienced something similar. On 15th November 2018 (09:40) Ms Castle of IFDO emailed Mr Okamoto looking to set up a meeting “to agree the layout for the exciting new restaurant at London County Hall.”. In cross examination Mr Okamoto accepted that this meeting never took place and that this was the end of IFDO’s involvement with the Premises. In the Business Plan IFDO had been identified as part of the Executive Team for Zen Bento.

 

 

    1. IFDO was not the only member of the Executive Team to disappear from view in the wake of the Judgment. Mr Yokoyama had been named as CEO of Zen Bento. In the post-Judgment emails however Mr Yokoyama appears only infrequently in direct email communication with Mr Okamoto. In this context there is an exchange of emails which took place between Mr Yokoyama and Mr Okamoto on 4th December 2018, in which Mr Yokoyama was seeking to set up a meeting with Mr Okamoto over the Christmas period. The remarkable feature of this email exchange is that it made no reference to Mr Yokoyama’s intended role as CEO of Zen Bento. If this role was intended, it appears to have been forgotten by 4th December 2018.

 

 

    1. The same applies to Mr Chauhan, named as CFO of Zen Bento. While it is true that Mr Chauhan can be found copied into post-judgment emails from Mr Okamoto, his direct communication with Mr Okamoto was minimal. On 20th December 2018 Mr Okamoto had an email exchange with Mr Chauhan, concerning Mr Okamoto’s proposal for “Our new huge Kids’ Kitchen at the current McDonalds space by the River Thames”. As with Mr Okamoto’s exchanges with Mr Yokoyama, these exchanges made no reference to Mr Chauhan’s intended role as CFO of Zen Bento. Again, if this role was intended, it appears to have been forgotten.

 

 

    1. The same also applies to Mr Shimoyame, named as Executive Chef of Zen Bento. In his evidence in cross examination at the Preliminary Issue Trial, Mr Okamoto confirmed that Mr Shimayame was going to be involved as Executive Chef. Following the Judgment, Mr Shimayame, who was based in this country, appears to have had no direct involvement with the Premises. Again, if his role as Executive Chef was intended, it appears to have been forgotten once the Judgment had been delivered. I say this not simply because of the absence of evidence of Mr Shimayame having any direct involvement with the Premises in the aftermath of the Judgment. One can also test this by referring to an email which was sent to Mr Shimayame and others, including the Recipient Group, by Mr Okamoto on 3rd February 2019 (09:26). I have made reference to this email earlier in this judgment. The email set out proposals for types of food which might be sold from the Premises. According to the email, Mr Okamoto anticipated that Mr Shimayame would be able to “expand range variety of “EKI BEN”, and then we will sell the widest range variety of “EKI BEN” at the current riverside McDonald’s space after their departure”. I find it impossible to reconcile the terms of this email with the evidence given at the Preliminary Issue Trial, which was that Mr Shimayame was to be the Executive Chef of Zen Bento.

 

 

    1. In cross examination Mr Okamoto had considerable difficulty in explaining these discrepancies between the evidence given to the court at the Preliminary Issue Trial and his conduct after the Judgment had been delivered. In relation to AMP Mr Okamoto tried to claim that their involvement with the Premises had not come to an end on 4th December 2018, and that he had only ended their involvement in February or March 2019. He suggested that he might have had a meeting with AMP after 4th December 2018. There is however no other evidence either of the meeting or of AMP continuing to be involved with the Premises after 4th December 2018. This would also be inconsistent with the position of IFDO, whose involvement with the Premises had come to an end by 15th November 2018. For these reasons, I reject this evidence of Mr Okamoto.

 

 

    1. Mr Okamoto also sought to claim that the decision to end AMP’s involvement was caused by Brexit related problems, which made it difficult to recruit a suitable Japanese chef. In cross examination Mr Okamoto sought to rely generally on Brexit related problems as the explanation for not proceeding with Zen Bento, following the Judgment. As Mr Okamoto explained in cross examination, Brexit was historically unprecedented and had an impact on everything. Without a Japanese head chef, the Defendant’s plans could not be implemented. So, everything had to be reviewed. Mr Okamoto claimed that the Judgment had come as a shock to him. He had not expected the Defendant to win at the Preliminary Issue Trial. When the Defendant did win, and he was faced with the reality of the position, he realised very quickly that Zen Bento was “mission impossible”.

 

 

    1. I regret that I cannot accept any of this evidence. So far as I am aware, there was no mention of Brexit related problems in the evidence given by Mr Okamoto and Mr Chauhan at the Preliminary Issue Trial. There is no mention of Brexit related problems in the Defendant’s Defence in this action. I can accept that Zen Bento required the services of an experienced Japanese chef, at least in order to train the chef who would be the actual Zen Bento chef. I can accept that Brexit, or more accurately the imminence of Brexit was capable of creating problems for the recruitment of specialist chefs from overseas. What I cannot accept is that Brexit only became a problem in the mind of Mr Okamoto after the Judgment. The suggestion that Mr Okamoto only realised that Brexit was a problem for Zen Bento after the Judgment is not credible. Putting the matter at its most extreme it is not credible that Mr Okamoto did not perceive Brexit as a problem on 12th November 2018, but had understood it to be a problem a few hours later, when he despatched his email to IFDO and the Recipient Group at 06:53. There is however an equal lack of credibility if one extends the period over which Mr Okamoto claims to have realised that Brexit was a problem. By way of example, there is an equal lack of credibility if one takes the relevant period as lying between (i) the dates of the Preliminary Issue Trial, in October 2018, and (ii) the date on which Mr Okamoto dispensed with the services of AMP (4th December 2018) or the date of any of the post-Judgment emails in which Mr Okamoto made new proposals for the use of the Premises.

 

 

    1. Mr Okamoto also sought to claim that it was only when he inspected the Premises that he realised that the Premises could be re-used in their existing condition. Prior to that, so he claimed in his evidence, there was uncertainty in terms of what condition the Premises would be in. The original design for Zen Bento, as presented to the court at the Preliminary Issue Trial, was only possible if the Premises were left in a totally derelict condition and required total refurbishment. Again, I cannot accept this evidence. This was not a qualification which was explained to the court at the Preliminary Issue Trial. Beyond that, this claim is seriously undermined by the email which Mr Okamoto sent to Mr Mann on 20th January 2019 (07:13) in which Mr Okamoto said that he had been told by Professor Einstein to re-use the existing space in the Premises. By way of context, this email was sent in response to Mr Mann seeking to arrange a meeting with himself and Mr Medway to discuss “the new brief” for the Premises, in order to allow Space Group to start work. The somewhat eccentric style of Mr Okamoto’s reply should not be allowed to obscure the fact that the reply had a serious commercial and professional purpose. Mr Okamoto had decided that he did not need Space Group, because he had decided to re-use the Premises as they were. I am satisfied, and I find that Mr Okamoto was, both in January 2019 and when he gave his evidence at the Preliminary Issue Trial, well aware that re-using the Premises as they were, without the need to spend over £1 million on fitting out works, was a perfectly feasible option.

 

 

    1. Another striking feature of the evidence in this action is the contrast between the intensive email activity in which Mr Okamoto engaged following the Judgment, and what appears to have been, on the evidence, the almost total absence of such email activity prior to the Judgment. At the Preliminary Issue Trial a single email was produced, from Ms Castle of IFDO to Mr Okamoto, sent on 27th October 2017 (17:20). The email attached tender returns from two contractors for the Zen Bento project. As from 13th November 2018 there is a profusion of emails from and to Mr Okamoto concerning the Premises. This contrast is extraordinary. It is right to say that the absence of emails was put to Mr Chauhan and Mr Okamoto at the Preliminary Issue Trial. Their explanation was that they acted in their dealings on the basis of trust and face to face meetings, which was accepted by the Judge; see paragraph 20 of the Judgment. The Judge did not however have the advantage of being able to compare the absence of emails with the profusion of email communications following the Judgment.

 

 

    1. In cross examination the absence of emails prior to the Judgment was put to Mr Okamoto, who essentially repeated his evidence that he preferred to do business over the telephone or face to face. When Mr Okamoto was asked why he was so free with emails after the Judgment he suggested that he had to start sending emails because he was preoccupied with the enormous problems of Brexit. Shortly thereafter he suggested that there was no email correspondence pre-Judgment because his experience had been that people abused emails by taking part of an email and twisting the context. He also claimed, later in cross examination, that he had sent emails to a large number of people as a result of his previous experience of emails being abused. Later again, in answer to a question from me as to the absence of emails prior to 12th November 2018, Mr Okamoto claimed that he had not wanted to think about the Preliminary Issue Trial or the Section 29 Application. He found them depressing, and focussed on other things. I did not find any of these explanations to be credible. None of them make sense, when the absence of emails pre-Judgment is compared with the position post-Judgment. I have already dealt with Brexit. None of the remaining explanations make sense, when set against Mr Okamoto’s use of email communication post-Judgment. It is clear that Mr Okamoto is a regular and enthusiastic user of email communication, and that it is an integral part of the way he does business.

 

 

    1. In his closing submissions Mr Holland referred me to an exchange of emails which took place on 24th October 2018; that is to say after the hearing of the Preliminary Issue Trial but before the Judgment. Mr Holland’s submission was that these emails were consistent with what the court had been told, and did not evidence any conspiracy by Mr Chauhan and Mr Okamoto to mislead the court. They were good evidence of Mr Okamoto’s state of mind at that time, as Mr Okamoto said in cross examination at the Trial, and were consistent with Mr Okamoto’s evidence in the Preliminary Issue Trial.

 

 

    1. The relevant email exchange commences with an email sent earlier than those to which I was referred by Mr Holland. The first email in this exchange was, I believe, sent by Mr Okamoto on 23rd October 2018 (I cannot find a time) to three individuals, one of whom was Mr Chauhan. The email was in the following terms:

 

“As addressed to you at the BM yesterday afternoon, Cadogan shall invest heavily in “Locally Sourced Fresh Seasonal Food” – Healthy & Tasty Dishes.

We Are What We Eat.

It is now extremely difficult to resurrect LIFE of “Locally Sourced Fresh Seasonal Food”, but there are some ways different from those Old Mothers’ Home Cooking Days.

Farming, Cooking and Eating are still the Foundation of HUMANITY, CIVILISATION & CULTURE.

Actually, Cadogan has already started “Locally Sourced Fresh Seasonal Food” Ventures at London County Hall. This must be accelerated more vigorously.”

 

    1. Mr Chauhan replied in the following terms, on the same day (10:13):

 

“As you have always said – we are what we eat; and you have already started such ventures already. I have fully understood this and look forward to delivering many more such ventures not only in London, but wherever opportunity arises ….. based on mothers cooking using locally sourced fresh seasonal foods.

Look forward to speaking soon, and thank you for a wonderful dinner last night.”

 

    1. Mr Okamoto sent an email on 24th October 2018 (9:14) to four individuals, including Mr Chauhan, Mr Yokoyama and, I believe, Mr Solaguren-Beascoa (the Spanish restauranteur referred to earlier in this judgment):

 

“When I was extensively and intensively being cross examined about our Seriousness of BENTO Box Meal Venture at Royal Courts of Justice last week, I had got to re-realise “Countless Number of Different BENTO Box Meals” – INFINITY.

Let’s open and run BENTO Outlets literally EVERYWHERE at the County Hall Complex, not just at one or two places !!

I have already asked TONY San, the Lion King of Bears, to start the required works immediately at the old AJI and Jenny’s Bakery Premises to open & run BENTO outlets by ourselves

BENTO embody ZEN and BENTO are Cross Culture Contents.

We MUST make the Entirety of London County Hall flooded with BENTO A Can you get on with this BENTO ZEN Venture straightaway

NOW?”

 

    1. Mr Chauhan emailed in reply the same day (09:20) to say that he would get on with this immediately. Mr Okamoto replied by email almost immediately (09:30), in the following terms:

 

“PLEASE DO SO

Please start BENTO Venture at the former AJI and Jenny’s Bakery Premises THIS MORNING!!

No mater how short my rest of life is, I will inject all of my energies into this BENTO ZEN Venture and making “ALL About MOTHERS” Films/Motion Pictures.

ALEXIS San: I shall take you to a very popular BENTO place in St Anne of PARIS on Friday this week.”

 

    1. I do not think that this email exchange demonstrates that the Defendant’s intention was as represented to the court at the Preliminary Issue Trial. Even if all the email communications which followed the Judgment are put to one side, I find this email exchange decidedly odd, when set against the specific and precise evidence given by Mr Okamoto and Mr Chauhan in their witness statements for the Preliminary Issue Trial. One might have expected Mr Okamoto and Mr Chauhan to be communicating in relation to the implementation of the Business Plan. Instead one has an exchange of emails in which Mr Okamoto is throwing out ideas, in a manner consistent with his email communications after the Judgment. It seems to me that this isolated exchange of emails points up two significant features of the evidence. First, there is a surprising absence of email communications prior to the Judgment, given the volume of email communications in the aftermath of the Judgment. Second, there is a surprising absence of email communications concerning the implementation of what was said to be the Defendant’s intention; that is to say the occupation of the Premises for the purposes of operating, by Aji Restaurants, Zen Bento.

 

 

    1. Returning to Mr Okamoto’s explanation for the absence of emails prior to the Judgment being delivered, I would also be wary of accepting Mr Okamoto’s evidence that he does business without contracts, and on the basis of trust. I note that when the Premises came to be fitted out the Defendant, as one would expect, entered into written contracts. Business was not done on the basis of a hand shake or a conversation.

 

 

    1. Other parts of Mr Okamoto’s evidence, at the Trial, were also illuminating. In relation to the Business Plan it was put to Mr Okamoto that he never told the court that he might implement a different plan from the one being described to the court. Mr Okamoto replied that, naturally, he did not say that the Business Plan was just for the Preliminary Issue Hearing. He said his recollection was that when he was in the witness box at the Preliminary Issue Hearing, his interpretation was that Zen Bento did not need to be exact. It would be sufficient if there was to be a Japanese restaurant and Japanese cooking on the Premises. He said that his interpretation was that there was flexibility to modify Zen Bento, as long as a zen bento concept with Japanese food was realised.

 

 

    1. Later in the same part of his cross examination, when Mr Okamoto was pressed with the point that he never told the court, at the Preliminary Issue Trial, that he would be implementing a different plan, Mr Okamoto gave a series of answers. He said that he did not have time to tell the court the many other things they were thinking. He said he did not have the opportunity to do so. He said that he did not think that they had to do so. Business plans change all the time. He thought that he could not change everything, but that he could modify what was proposed.

 

 

    1. Mr Okamoto was more direct in the email which he sent to the Recipient Group on 30th November 2018 (13:42). I have quoted the terms of this email earlier in this judgment, but they bear repeating:

 

“Subject: Trilogy Films of HANNAH’s ZEN Life Journey and HANNAH’s Riverside Restaurant

NIK San & JEREMY San

Our ZEN Arts’ Film Editing Studio & Preview Cinema are located right adjacent to the lower level of the current McDonalds riverside space, which we will take back & repossess by next March.

GRACE & HANNAH (Mother & Daughter) shall open & run a Heart of Gold Mother’s Home Cooking Dish Restaurant at this riverside space.

Countless number of different drama stories will evolve at/from this amazing riverside restaurant.

We didn’t tell anyone before, but actually & truly we have fought (Legal Battles) and taken back the current McDonalds space for GRACE & HANNAH, Children Book Picture Creator MOTHER and Her Only Daughter in your Film Story and Real Life.

With EverGreen Dream & Life …….”

 

    1. The style is eccentric but, having had the opportunity to assess Mr Okamoto and his evidence, it would, in my judgment, be a mistake not to take seriously the content of this and other emails sent out by Mr Okamoto in the aftermath of the Judgment. In particular, I do not regard what was said by Mr Okamoto in the last paragraph of this email as a throwaway line. Given the number of ideas thrown out by Mr Okamoto for the use of the Premises, in the aftermath of the Judgment, it seems unlikely to me that Mr Okamoto did have anything approaching a firm intention, when he gave his evidence in the Preliminary Issue Trial, to use the Premises for the “GRACE AND HANNAH” concept. Rather it seems to me, and I so find, that this was a potential use of the Premises which Mr Okamoto had in mind when he gave his evidence in the Preliminary Issue Trial.

 

 

    1. As such, it seems to me that the true position, in terms of Mr Okamoto’s state of mind when he gave his evidence at the Preliminary Issue Trial, is illustrated by the final paragraph of the email of 30th November 2018. While it may have been an exaggeration for Mr Okamoto to say that the Defendant had pursued the Section 29 Application in order to take back the space for “GRACE AND HANNAH”, I find that it was no exaggeration in the sense that Mr Okamoto clearly pursued the Section 29 Application in order to take back the space, so that Mr Okamoto could then decide what to do with it. I find that Mr Okamoto did not pursue the Section 29 Application in order to open Zen Bento, because that was not his intention. All this is entirely consistent with Mr Okamoto’s conduct once the Judgment had been secured.

 

 

    1. Mr Okamoto was the decision maker and the controlling mind of the Defendant at the time when he gave his evidence at the Preliminary Issue Trial. In my judgment, and I so find, the evidence in the Trial demonstrates quite clearly that Mr Okamoto did not have the intention, when he gave his evidence at the Preliminary Issue Trial, that the Defendant would, by Aji Restaurants, occupy the Premises for the purposes of Zen Bento. The suggestion that Mr Okamoto did have such an intention is not credible, given Mr Okamoto’s conduct following the Judgment. The only way in which this conduct can otherwise be explained is that Mr Okamoto had a change of mind, in terms of his intentions for the Premises, immediately after delivery of the Judgment. In my judgment such an explanation is not credible, and cannot stand with the evidence.

 

 

    1. In cross examination and in his submissions Mr Hill-Smith also laid stress on the fact that the Premises did not open for any kind of business until March 2020 and that the business which now operates from the Premises is not Zen Bento, but the Aji Restaurant on the ground floor and the Aji Bakery in the basement. His point was that this also illustrated that the Defendant, by Mr Okamoto, had never intended to occupy the Premises for the purposes of Zen Bento. I do not think that these matters, taken on their own, necessarily demonstrate that the Defendant never had the intention to occupy the Premises for the purposes of Zen Bento. As I have said, I regarded Dr Su as an honest witness. I accept his evidence of the difficulties and delays which were encountered in the fitting out of the Premises, following the Defendant recovering vacant possession of the Premises in March 2019. By the time the Premises did open for business the pandemic had begun, and the new business had to cope with the restrictions on trading imposed as a result of the pandemic. I am prepared to accept Mr Okamoto’s evidence that the incorporation of the basement into the Aji Restaurant did not work, with the consequence that the decision was taken to open the Aji Bakery in the basement. If these events and difficulties stood on their own, I can see that it would be plausible to say that they did not demonstrate an absence of intention, at the Preliminary Issue Trial, to open Zen Bento, but rather demonstrated the Defendant reacting to changed circumstances in the aftermath of the Judgment. These events and difficulties do not however stand on their own. They have to be considered together with and in the context of the evidence of Mr Okamoto’s conduct on and after 13th November 2018, parts of which I have summarised above. What that conduct demonstrates is that Zen Bento was never opened for business because there had never been any intention to open Zen Bento for business.

 

 

    1. In my analysis above I have concentrated on the evidence of Mr Okamoto, because Mr Okamoto was the decision maker and controlling mind of the Defendant in the Section 29 Application. I have not concentrated on Mr Chauhan for four reasons. First, Mr Chauhan was not the decision maker or the controlling mind of the Defendant. Second, Mr Chauhan pretty much disappears from view following the Judgment. Third, Mr Okamoto stated, in his witness statements for the Preliminary Issue Trial, that he confirmed the evidence of Mr Chauhan in his witness statements. In other words Mr Okamoto gave evidence that he could confirm and did confirm the evidence of Mr Chauhan. Fourth, I have not heard from Mr Chauhan as a witness at the Trial. Mr Okamoto was asked in cross examination why Mr Chauhan, whom he confirmed to be alive and well, had not been called as a witness. Mr Okamoto said that he did not know. As I have explained, the absence of Mr Chauhan has less significance than might otherwise have been the case, given that he was not the controlling mind or decision maker of the Defendant. It does however follow from my analysis above that Mr Chauhan misrepresented the intention of the Defendant to the court, just as much as Mr Okamoto did.

 

 

    1. Returning to the Claimant’s pleaded case, paragraph 54 of the Particulars of Claim pleads, at sub-paragraphs (i)-(xi) a series of misrepresentations, all of which depend upon the proposition that the Defendant did not intend, at the Preliminary Issue Trial, to take the various steps which it said that it intended to take in order to occupy the Premises for the purposes of operating, by Aji Restaurants, the business of Zen Bento. Applying my analysis of the evidence, it seems to me that the Claimant has made good its case. I find and conclude that the Defendant did, by the evidence given to the court by Mr Okamoto and Mr Chauhan at the Preliminary Issue Trial, misrepresent its intention to the court, at the Preliminary Issue Trial, in each of the ways alleged in sub-paragraphs (i)-(xi) of the Particulars of Claim.

 

 

  1. It will be noted that I have left sub-paragraph (xii) of paragraph 54 of the Particulars of Claim out of this analysis. This is because I intend to deal separately with the claim of misrepresentation based upon the Undertaking. I will use the expression “the Misrepresentations” to refer to the misrepresentations in sub-paragraphs (i) to (xi) which I have found to have been established.
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