[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bhangu & Anor v Jagdev & Ors [2001] EWCA Civ 1504 (9 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1504.html Cite as: [2001] EWCA Civ 1504

[New search] [Printable RTF version] [Help]

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CENTRAL LONDON COUNTY COURT
(Her Honour Judge Bevington)

		Royal Courts of Justice Strand London WC2 Tuesday, 9 October 2001

1. LORD JUSTICE RIX: This is a renewed application for permission to appeal, without notice, made on behalf of the first defendant in this case, Mr Jagdev. It arises out of an informal oral arrangement made between the claimants, Mr and Mrs Bhangu, and the first two defendants for the assignment of a lease of the defendants' shoe shop and a separate arrangement for the payment of stock.
2. It was common ground that the price for the assignment of the lease was £40,000. It was also common ground that the stock valuation was in the sum of £21,979.60. In the end the transaction fell through because the landlords of the shoe shop would not accept the assignment and the informal unwritten arrangement for the assignment of the lease (it being an agreement which had by statute to be in writing) turned out to be void. In those circumstances the judge, Her Honour Judge Bevington, had to deal with a claim which lay essentially in restitution and which she treated as being in restitution. There was at one time a challenge on behalf of Mr Jagdev to the legal basis upon which the judge dealt with this claim, but that challenge has been dropped.
3. In his submissions this morning Mr Cheetham, on behalf of Mr Jagdev, has founded his application on a challenge to the judge's factual conclusion that the Bhangus had in fact paid to Mr Jagdev and his partner all the sums which she found had been paid. Those sums were a deposit of £2,500 (that is not in dispute); a cash payment for the stock in the sum I have mentioned of just under £22,000; in respect of the price of £40,000, a payment of some £27,700 received through the solicitor, Mr Virdi, who had been used, I think, by both sides as their solicitor; and in addition, in September 1991, a further sum of £10,000.
4. The dispute at trial, and again on this application, centres on these three alleged payments which, so far as the judge is concerned, had been found to have existed: the payment for stock of just under £22,000; the payment through the solicitor of £27,700; and the further payment in September 1991 of £10,000. Ultimately, the judge accepted the claimants' evidence that all three payments had been made in the way in which they gave evidence they had been.
5. At trial, and again on this application, the first and the third of those three payments remain in dispute. What is said is that, although it is common ground that the £27,700 was received by Mr Jagdev and his partner from the solicitor to whom it had been paid, that sum covered in large part the £22,000 in respect of stock and there was no subsequent payment in respect of the lease. Thus the other £10,000 is denied as having been received as well.
6. The submission that Mr Cheetham has pressed upon me this morning is that the judge ultimately gives no reason for preferring the evidence of the Bhangus to that of Mr Jagdev, other than a statement that she does prefer the Bhangus' evidence and also a reference to the documentation (see at pp.6 and 10 of her judgement; and see again at p.11, where she deals with the further £10,000 payment). Although there was, she indicates, a detailed argument before her as to the witnesses's credibility (see the third line at p.10), which she says she has weighed, she does not state any reason for preferring the evidence of the Bhangus to that of Mr Jagdev, other than saying that she does so prefer it, and she refers to the documentation. That documentation is not before me, but there is no particular document which she cites in her judgment, submits Mr Cheetham, to indicate why a consideration of the documentation lends any particular assistance to her overall judgment to prefer the evidence of the Bhangus.
7. Mr Cheetham's submission does impress me to a certain extent, if I consider only the judgment of the judge and the reasons she gives there for her critical decisions in favour of the Bhangus. The papers before me, as I say, do not include the documentation; nor do they include the transcript of the evidence. But I can see from the pleadings and the witness statements which are before me a reason or reasons why the judge might have preferred the evidence of the Bhangus to Mr Jagdev. It is that whereas, by and large, the witness statements of Mr and Mrs Bhangu, their pleadings and the oral evidence which it appears from the judgment they must have given at trial remains essentially consistent, the pleadings and witness statement of Mr Jagdev are not so impressive. For instance, Mr Jagdev's defence is essentially a holding defence and Mr Jagdev's witness statement says that the payment for stock was received in instalments. As to the £40,000, he accepts that he was paid the deposit of £2,500, which, as I have mentioned, has not been in dispute, but he also says that he received value in the form of a cheque for £25,000 which was provided by Mr Bhangu at his request directly to a third party, Mr Ghatore, in the form of a loan from him (Mr Jagdev) to Mr Ghatore.
8. That matter of the £25,000 paid to Mr Ghatore is a bit of a puzzle. In separate proceedings Mr Bhangu obtained judgment against Mr Ghatore for that £25,000 on the basis that the loan to Mr Ghatore was a loan by him. At this trial Mr Jagdev did not seek to go behind that judgment. Nevertheless, the intriguing effect of Mr Jagdev's witness statement is that he accepts payment for the stock; he also accepts value, at any rate to the extent of £27,500, towards the £40,000 due; and he nowhere deals with the allegation made against him on the pleadings in relation to the additional £10,000. As to that £10,000, the Bhangus gave evidence of supplying it with the help of an additional £15,000 advance from their building society, the Northern Rock. The solicitor, Mr Virdi, also gave in his witness statement some evidence of his knowledge of the Bhangus having at any rate received such a £15,000 advance. He says nothing about whether any of that was in fact used to pay Mr Jagdev a further £10,000.
9. In the light of all that, one can see reasons why Mr Jagdev's evidence was not acceptable and why the Bhangus' evidence was preferable. Nevertheless, that reasoning is not to be found at any rate expressly set out in the judge's judgment. It is, as it were, left to be covered by her statement that she had weighed all the various points going to the credibility of the witnesses in coming to her conclusion.
10. In these circumstances, I confess that I am very doubtful that there is a realistic prospect of success for this appeal. Nevertheless, I am left with concern with respect to Mr Cheetham's submission that the judge's reasoning simply does not go far enough in explaining the critical question which she had to decide on the evidence - with the help, it may be, of documentation - as to whose version of events was to be preferred.
11. In these circumstances, if Mr Jagdev is willing to take the risk, I am willing to deal with this application by adjourning any final decision on permission to appeal and putting over this application to a hearing on notice. On that occasion, should the court (which I think should be a court of at least two members) give permission to appeal, the appeal will then follow immediately. That way of dealing with the matter has, of course, some risks for Mr Jagdev in terms of costs, in the light of the general remarks that I have made in this judgment. But having said that, it seems to me that that is ultimately the fairest way of dealing with this application.
Order: application for permission to appeal adjourned to an on notice hearing before two judges, with appeal to follow if permission is granted (time estimate ½ day); costs in the further application/appeal.