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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Fen & Ors v D'cruz & Ors [2006] EWHC 2441 (QB) (31 July 2006) URL: http://www.bailii.org/ew/cases/EWHC/QB/2006/2441.html Cite as: [2006] EWHC 2441 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		31 July 2006

1. MRS JUSTICE DOBBS: The claimants are from Malaysia. They entered this country in November 2004 on a six-month holiday visa in order to pursue a course of study at Bradford College from the beginning of 2005. Having arrived in this country they were informed that they required a student visa in order to be enrolled. Their claims for such visas were refused on the grounds that they should have sought entry clearance from Malaysia. They took advice from the Malaysian High Commission who referred them to Mr D'Cruz. (It is from this introduction that this claim arises.) Mr Low is a solicitor and a partner in the firm of Whitehead and Low, the third defendant. He was introduced to Mr D'Cruz by Mrs Norma, who worked at the Malaysian High Commission. Mr D'Cruz introduced Mr Low to the claimants.

The Claim

2. In short, the claim is that the three claimants paid Mr D'Cruz £23,750 for immigration work to be done on their behalf. Mr Low had held out Mr D'Cruz to be a partner in his firm. No immigration work was done during the material time. Money has not been returned. Mr D'Cruz has now disappeared. Summary judgment has been entered against Mr D'Cruz. Mr Low admits that the claimants were introduced to him at a meeting as prospective clients, but denies being instructed by or receiving any money from them. Additionally, it is denied that Mr Low held Mr D'Cruz out as being a partner in his firm. Moreover, in relation to any representations to that effect made by Mr D'Cruz, there was no authority given for him so to do.

The Evidence: The Claimant's Case

3. Miss Ping is the second claimant. Her statement is dated 6 February 2006. The first claimant is a friend of hers and the third claimant is her husband. The three of them came to the UK in order to study at Bradford College. On arrival they were issued with a six-month visitor's visa. They were advised initially by the College that they could vary their status to that of students upon entry. They attended the Home Office in Liverpool on 2 December in order to effect the change. The Home Office refused their applications and advised them that they needed entry clearance from the British High Commission in Malaysia if they wanted to study in the UK. They were unaware that the law had changed in January 2003.
4. A few days later they phoned the Malaysian High Commission to seek advice. They spoke to Mrs Norma, who asked them to call back. On calling back the next day Mrs Norma gave the claimants the mobile phone numbers of Mr D'Cruz, who she described as a solicitor who would be able to help them. They contacted Mr D'Cruz on the same day and they met him on 9 December 2004 at the Hilton Hotel, Mr D'Cruz saying that his nearby office was under renovation. He did not have a business card with him. He indicated that one of his partners, Danny, was Malaysian Chinese. They talked for two hours and explained their predicament. Mr D'Cruz advised them to apply for a residence visa which was valid for five years. He had successfully obtained such visas for other Malaysians. The cost was £10,000 per application and 50 per cent of the fee would be payable in advance.
5. On 16 December they paid £5,000 in cash to Mr D'Cruz when they met him at his home. They also handed over their passports and photos. Some time later Mr Low turned up at the house and was introduced to the claimants. He said he was a solicitor and partner in the firm of Whitehead and Low. He is Malaysian and spoke the same language as the claimants. He confirmed that Mr D'Cruz was also a partner of the firm. The claimants informed Mr Low that they had given Mr D'Cruz some payment together with their documents and Mr Low confirmed that all would be accounted for at the office later on. Mr D'Cruz took the claimants out for a meal but Mr Low did not join them.
6. Thereafter the claimants made a number of payments to Mr D'Cruz over a period of weeks as follows: 31 December 2004 £5,000 cash; 28 January 2005 £2,250 by way of banker's draft; 9 February 2005 £6,500 cash; 24 February 2005 £5,000 cash. No receipt was asked for or offered by Mr D'Cruz.
7. At about the first week in January the claimants phoned the firm to speak to Mr D'Cruz. They were told that he was at court. The same evening Mr D'Cruz returned their call. On 18 January 2005 each of the claimants received a letter in the same envelope from Mr Low, indicating that he was preparing their applications. They have been shown a different version of the 18 January letter, said by Mr Low to be the copy of the letter he did send. It is not accepted that they received this version of the letter. The short letter is to be found at volume 2, tab 12, page 123, and I read it into the record. It is dated 18 January 2005. This particular copy is addressed to Chan Chong Bing, but the contents of all three are the same:

"Dear Sirs

Application for Residency Status

Applicant: yourself

Thank you for instructing our firm to act for you in your application to the Home Office of the United Kingdom for Residency Status.

We acknowledge receipt of your Passport and photos and confirm that we are now in the process of preparing the necessary forms to submit your application to the Home Office.

It is the firm's policy to submit your application within 3 days from the date we receive all the required documents but this is subject to the number of files we receive for the particular week. In any event we will endeavour to submit your application to the Home Office within this week.

We advise that the Home Office will normally endeavour their best to process all applications within 6 weeks from the date they receive your application. Due to the increase in the number of applications recently, we believe your application may take longer than normal.

Upon receipt of our application, the Home Office will write to inform and acknowledge receipt whereupon, we will write to you immediately to inform you of same.

Should you have any queries at any time, please do not hesitate to contact us.

Yours faithfully,

Boon Low

WHITEHEAD & LOW."

8. The reference on that letter is "Chan-Residency" and there is a signature on the document which looks like "BL". That is the short form version. The envelope accompanying it is to be found at page 126.
9. Turning to what will be referred hereafter as the long form document (the document that the claimants do not accept receiving), this is to be found at pages 155 through to 160 at tab 18 of volume 2 and I read it into the record. The document at page 155 is addressed to Chua A Fen, it is dated 18 January 2005 and the reference is "Mindy-Residency":

"Dear Sirs

Application for Residency Status

Applicant: yourself

We understand from Mr Jared D'Cruz that you intend to make an application to the Home Office, UK for a Residency Permit and that you may wish to instruct our firm to act for you.

We acknowledge receipt of your Passport and photos and confirm that we are now in the process of preparing the necessary forms to submit your application to the Home Office, and subject to us receiving instructions from you, we will proceed to submit your application to the Home Office, UK.

In order for us to proceed in your application, kindly provide us the following:

1. Your instructions to act for you;

2. The basis of your application, together with the necessary documents and evidence in support of your application;

3. Our fee of £1,800.00 + VAT. You may wish to pay our fees by stages in which event, we would appreciate if you could kindly arrange to pay into our account an initial sum of at least £500. The balance remaining to be paid to us within 14 days from the date of submission of your application;

4. The Home Office processing fee of £155.00.

It is the firm's policy to submit your application within 3 days from the date we receive all the required documents but this is subject to the number of files we receive for the particular week. In any event we will endeavour to submit your application to the Home Office within this week.

We advise that the Home Office will normally endeavour their best to process all applications within 6 weeks from the date they receive your application. Due to the increase in the number of applications recently, we believe your application may take longer than normal.

Upon receipt of our application, the Home Office will write to inform and acknowledge receipt whereupon, we will write to you immediately to inform you of same.

Should you have any queries at any time, please do not hesitate to contact us.

Yours faithfully,

Boon Low

WHITEHEAD & LOW."

10. On 22 March, about a month after the last payment, the claimants sent a text message to Mr D'Cruz inquiring about the progress of their applications. They received no reply. They then phoned Mr Low, who indicated that he too was looking for Mr D'Cruz. He advised them not to contact the police and that he would let them know the progress of their applications. On 2 April 2005 the claimants went to Mr D'Cruz's flat and there met his brother, who informed them that Mr D'Cruz had left the country. A search was made of the property for their passports but they were not found. They called Mr Low, who confirmed that Mr D'Cruz had left the country. He requested a week and asked not to be disturbed. However, they decided to instruct other solicitors to pursue the matter.
11. In July 2005 the claimants were arrested in Leeds by Immigration officials who had received their passports from an unknown person together with a note stating that they were working illegally in the country. They were detained for a period of time.
12. Cross-examined, Miss Ping indicated that she remembered 16 December very clearly as they had the video recording which says 16 December and 16 December was one month after her husband's birthday. It was also a week after they went to Liverpool Immigration on 9 December. She last saw the first claimant during their wedding, about a week before she came back in September 2005. She could not remember when she last spoke to her. Mr Lim left Leeds in June to go back to Malaysia as his working visa expired. He was the boyfriend of the first claimant. All four of them lived in Wilfred's Grove. She married the third claimant in Malaysia. By 4 May 2005 her tourist visa had expired and she stayed on illegally as she did not have her passport. It was returned to her in June when Immigration came to see them. They were in the middle of extending their visas as they had instructed the solicitors Dotcom in May. She wanted to extend her visa to sort out these matters. She has a student's visa now. Her father pays the rent and she has no property or money in this country.
13. When pressed about bank accounts, she indicated that she had opened some bank accounts -- Barclays and HSBC. She has £3,000 in Barclays and she pays her bills of some £100 per month from the HSBC account. Her father has paid part and will pay the legal costs ordered of the defendants. She agreed that she comes from a fairly well educated and well-off background and that she is quite sophisticated and careful in money matters. The money paid to D'Cruz was her money, drawn by her and the third claimant from her husband's, the third claimant's, bank account. The money was the proceeds of the sale of a house in Australia that her father bought her for her 21st birthday. She sold it when she left Australia. Her parents are now financing her.
14. She accepted that paragraph 6 of the Particulars of Claim (tab 1, page 2) was not detailed enough. The paragraph is wrong to the extent that the money and passports were handed over before meeting Danny. Similarly, a letter from Dotcom solicitors to Mr Low (tab 2, page 27) on 6 May was wrong when it says the passport money and photos were handed to Mr D'Cruz in the presence of Danny. She could not explain why it was wrong. She did not give the solicitors this inaccurate information. She dealt with the various meetings they had with Mr D'Cruz, but denied that they were getting friendly with him. In between the meetings they were having phone conversations with him. It was her husband who was speaking to him. She kept most of the receipts of the cash withdrawals, but some were thrown away or misplaced. She was present every time her husband withdrew the money. Although not mentioned in her witness statement, she said that Danny did confirm the details again with them when he arrived.
15. She did not show a letter at entry as she told Immigration that the purpose of her visit was to look for a college or university. They landed at Leeds/Bradford. Immigration let them in and said it was fine. It was later that they were told that the rules were changed. She did not have an idea of how much the new visa would cost. She did not start the course as she could not get her visa. She had not paid the fees for the course. She stayed at home and did cross-stitch most of time. She taught Chua to do cross-stitch. Her husband was at home playing on the PlayStation. She did think that it was a staggering amount of money that D'Cruz was asking for, but it represented the lawyers' fees and the applications fees because it was a semi-permanent visa. They trusted the High Commission and Mr D'Cruz.
16. Danny stayed for about 45 minutes. He explained the residency visa and confirmed that it took six to eight weeks. He went into details with the visas. When Mr D'Cruz introduced Low to them he said: "This is my partner", and Mr Low nodded and said: "Yes". Mr Low was introduced to them as a solicitor who might be able to help them. Danny did not mention £1,800 in costs and did not say to contact him when ready to instruct him. They did not know that Mr D'Cruz was not a solicitor but thought they were partners working together. She thought that both of them were going to act for them.
17. She was referred to bundle 2, page 149, the cash withdrawal slip dated 16 December 2004 for £350, showing the transaction in Leeds at a time when she was saying that they were in London with D'Cruz and was unable to account for the apparent anomaly. The photograph at tab 11, page 122, 16 December 2004, is a photograph of Mr D'Cruz. This was taken by her husband in the Indian restaurant in London. She did not ever tell the solicitors the photo was taken in Leeds. It was Mr Lim or her husband who did the video clips on the mobile phone. She was not aware that they were filming D'Cruz and Low. She discovered it after, on the way back to Leeds. She said it was for memory.
18. Although not mentioned in her statement, she did ask for a receipt from Mr D'Cruz and Mr Low and they said they would sort it out the next day in the office. There were phone calls made to D'Cruz. They were all present listening on the conference facility when her husband asked Mr D'Cruz for a receipt. He said he was busy and that as it was close to Christmas it would take some time to get back to them. They did not phone Danny to ask for a receipt. Once her husband called the office of the third defendant. The four of them were there when he did. It was a man who said D'Cruz and Low were out at court. He was English speaking. She did not know who it was; it might have been Low, it might not. The firm's business card had been handed to Lim. It did not show Mr D'Cruz on it.
19. She opened the letters dated 18 January in Leeds at home. Her husband was there. She read it, he did not. The writing on the envelope was Lim's writing. She was happy to know that there was confirmation on receiving the letter. The letter did not mention the money or the college letters, but to her, the passport was more important than the money. They did not look at the heading, they read the contents. She gave the letters to Mr Lim and then took back hers and her husband's to keep. She also kept the envelope. She did not accept that it was possible to confuse the two versions of the letters and was adamant that they had not received the longer version. She spoke to Mr Low once, but she could not remember when it was when their passports were missing. Beyond that, all contact was with Mr Lim and they were all normally present when Mr Lim made the phone calls to Mr Low, although she could not say if there were occasions when he made a call when she was not present. The phone was on speaker.
20. She did not remember any conversations about Mr D'Cruz not being a partner and to be careful about money. She did not recall Mr Lim saying that £11,500 had been paid. Mr Low said that he would enquire about their passports in the Home Office with regards to their visas. That is why they faxed copies of their passports to him. On 4 April 2005 it was planned that they should go for a meeting with him. She does not remember why they did not go to the meeting. Although the CAB had advised them to go to the police, they did not as Danny had told them not to go and to give him a week. Lim had only paid £2,000 so far and had borrowed money from her. He wanted to get the £11,000 to pay her back.
21. Dealing with the fact that the total amount of withdrawals came to only £21,630, Miss Ping explained that she had £3,500 in banker's drafts when she came into the UK and cash. The withdrawals after 9 December and up to 24 February were all used to pay Mr D'Cruz. She had another account in Australia and some of her money came from there. She closed the account when she was in the UK. She did not ask for copies of the statements. They made further withdrawals after 24 February as the next payment was to be a month later and that is why they rang Mr D'Cruz. The cash was kept in a safe in the house.
22. Re-examined, she said that they did not try to speak to Mr Low as he had confirmed that it was all right to pass the money and passports to Mr D'Cruz. They thought that Mr D'Cruz was the one who took the money and instructions and that he would go back to the firm and do the necessary. Mr Low said that he was going to apply for a residency visa at the Home Office. He said that if they got a residency visa they could get cheaper fees at university and they could work and study at the same time. It was like a semi-permanent visa and then after five years they stood a chance to apply for permanent residence. £10,000 was a lot of money, but if they could get cheaper university fees then they could save more than £10,000 and in the long run it would be cheaper. International students paid £8,000 to £9,000 per year and she was told that national students paid £2,000 to £3,000 per year. They did not insist on getting receipts as she felt that they were both solicitors and they kept telling them that they would give the confirmation receipt. When they got the letter they thought it was fine and that their applications were being proceeded with. They could not pop into his office as they were living in Leeds and they trusted them.
23. The letters received were in one envelope. She did not look at the address part of the letter, she just read the main bit. She thought it was from Whitehead and Low and that Danny was sending it. As a result of reading the letter she thought that Mr D'Cruz had handed over the passports and money to him and that the application was going ahead for a residency visa. They only received three pages in the envelope. The long version has two pages, so the three letters would have amounted to six pages.
24. Dealing with the withdrawal of £350 on 16 December, she said that her husband's phone indicated 16 December. As Malaysia is eight hours ahead this could account for the time discrepancy. She went through the documents showing £3,500 in traveller's cheques available to her and $3,000 US of which she had $2,000 US when she came to the UK. In response to questions from the court, she indicated that had she received the long form letter she would have called the firm to query the contents and she would have called Mr D'Cruz and the police. She would have called Mr D'Cruz first to ask him about the contents of the letter. She had to go back to Malaysia to get her student's visa. It was applied for and issued in Malaysia.
25. Chan Chong Bing is the third claimant. His statement is dated 6 February 2006. He confirms the contents of his wife's statement. Cross-examined, he indicated that the video clips taken of Mr Low and Mr D'Cruz were taken by Mr Lim on his phone, but he did not find out about it until they were on the way to Leeds. Mr Lim said he was playing around with the video and keeping some memories. The date on it was 16 December and the time was early morning, about 2am. He had changed the time on his watch but not on his phone so that when he wanted to call Malaysia he could see what time it was there. The phone was thus displaying Malaysian time. His wife read his statement for him in English and what he did not understand she explained in their native tongue. His English is better now than then, although it was not bad then (in November 2004). He did not read the letters of 18 January 2005. He does have an independent recollection of what happened.
26. Danny arrived and Mr D'Cruz introduced them and said that Danny was a solicitor at Whitehead and Low and that they were partners and working together. Danny nodded his head and said yes. By the time of the meeting he had been told by the official from the Embassy and by Mr D'Cruz that Mr D'Cruz was a solicitor and a partner in Whitehead and Low. Danny did confirm it on the day he arrived. Mr Lim went back to Malaysia in June this year. He saw him just before then. He called Mr Lim when he arrived back in Malaysia. He is still the boyfriend of the first claimant.
27. At the time events were unfolding, the four of them were misunderstanding and blaming each other about why it happened. Mr Lim blamed them and they blamed Mr Lim. Nobody wanted this thing to happen and everyone was in a bad mood and just blaming each other. The reason they blamed each other is because they were asking themselves why they had trusted the two men. They did ask Mr Low about their applications and he said it was already in the process. He did not pick up the phone to complain to Danny but they always had a discussion about what they were going to ask and what they were going to say before they called. They were always asking about the applications which Mr Low said were being processed. He was listening and Mr Lim was speaking. Sometimes Danny spoke in Chinese. He himself made the phone call in early January to Whitehead and Low. He asked to speak to Mr D'Cruz. He was the one who normally contacted Mr D'Cruz.
28. Andrew Frowen is director of forensics at Disklabs. His evidence is not challenged. He examined the hard drive supplied by the defendants. Deleted and recoverable folders and files were also considered. A keyword search was conducted in relation to all documents relating to the three claimants. A total of eight documents were recovered, but on checking, there were in fact four documents, each being duplicated. There were three documents relating to each claimant, all created on 14 January 2005 and last modified on 20 January 2005. There was a letter in relation to Mr D'Cruz, first created on 31 January 2005 and last modified on 1 October 2005. A search was also done for signs of data wiping facilities and none was found.
29. The expert's conclusions are as follows: there is no evidence to support the contention that the letters provided by the defendants had been printed on the exhibit; no evidence was recovered to confirm that the exact letters in the claimants' possession exist or existed on the exhibit; no evidence to support that the letters in the possession of the claimants were printed or created on the exhibit. It is not possible to determine the level of editing on the documents submitted by the defendants which had been retrieved in the live files. No evidence was recovered on the exhibit in relation to the envelope printing. He went on to note that what was said by Mr Wood about the possibility of scanning the letterhead was possible, but that a scanner would need to be of high quality and would, in his opinion, still require a level of image editing to ensure that the image was not pixellated on printing. No evidence was recovered in relation to the envelope printing on the exhibit and the firm's address on the envelope was not recovered.

The Evidence: The Defendants' Case

30. Mr Wood's statement is dated 18 January 2006. He is managing director of Bigger Boat Design, a graphic design company. He created the logo for the Whitehead and Low letterhead by using a computer program called "Illustrator". There are two potential security problems with using a logo of this kind. Firstly, the picture can be cut and pasted into any new document. Secondly, as the logo prints out with each letter there may be no discernible difference between the paper used by Whitehead and Low to print letters and the paper used by anyone else. It is not very difficult to create the logo. A reasonably sophisticated scanner which has the ability to scan at high resolution could do it. Once scanned it could be cut and pasted into a new document.
31. Cross-examined he explained that you would need some skills at producing images. Only basic computer skills were necessary as most of the software available for home users tells you how to do everything yourself. You do not need any particular skills, it is just a case of scanning it into another document. A signature could be scanned, cropped and repositioned on the new document. It would not look like an original signature, it would look like a copy. You could see if the signature had been scanned in the document. He has been a graphic designer for over ten years and been involved in it since he was 18 and has owned his own practice for the last four years.
32. Mr Boon Low made four statements dated 19 January 2006, 29 March 2006, 19 May 2006 and 17 July 2006. In his first statement he deals with his background and the events in question. He was born in Malaysia in 1963. He was called to the Malaysian Bar in 1991. Between then and 2003 he practised as a solicitor and advocate in Malaysia, mostly doing conveyancing, commercial and corporate matters. In the summer of 2002 he was invited by some friends at the firm of Aequitas Law in London to join the firm as a consultant. He moved to the UK at the beginning of 2004 with his family. Having completed the transfer test, he qualified as a solicitor on 15 January 2004. He worked at Aequitas Law until November 2004 doing conveyancing and non-litigation matters.
33. He met his current work partner in November 2004 through a mortgage broker. In the same month they started the firm Whitehead and Low. Their work is mainly conveyancing and commercial and residential leases. Whilst working at Aequitas he met and became a close friend of Mr Frank Lee, who specialises in immigration matters. Mr Lee taught him basic procedures in immigration matters, such that he felt confident to deal with straightforward applications.
34. He first met Norma Sharif in October 2004 at the Malaysian High Commission when he renewed his passport. She asked what work he did, and on explaining that he was a solicitor, she offered to help him find clients because many Malaysians make inquiry of the High Commission about property and immigration matters. He met Mr D'Cruz through Mrs Norma. He needed a mortgage. He also wanted to buy a hotel. Mr Low agreed to help. He met D'Cruz at a flat in St John's Wood. Mr D'Cruz indicated that he was interested in buying a hotel but did not want to use the services of his then solicitor, Mr Ram, as he was asking too many questions about the financing of the hotel. Mr Low was hoping that Mr D'Cruz would use the services of his firm. Mr D'Cruz also said that he would assist Mr Low to obtain clients and would expect a referral fee if he did. Mr Low agreed.
35. Mr Low first met the claimants when Mr D'Cruz invited him to his flat in December 2004. He asked Mr Low to drop by as he had some potential clients to introduce to him. He arrived at the flat. He was introduced to the three claimants and Henry Lim. Mr D'Cruz indicated that Mr Low was a solicitor and that he recommended they use his services for their immigration matters. At no time did Mr D'Cruz suggest that he was a solicitor or a part of the firm. Mr D'Cruz explained to Mr Low that the claimants wished to apply for residency in the UK, that the three claimants were on tourist visas and Miss Ping said that she wanted to study in this country. They asked what visas were available and Mr Low explained the different kinds of visa and the application procedure.
36. On request he told them that the fees would be about £1,800 per application plus a processing fee of £155. In order to prepare their applications he would require at least £500 on account. The balance would be payable once the application had been approved and their passports endorsed. He indicated to them that he would need further documents, such as letters from their employers or from the college. He did not quote £10,000 per application, nor did he say he would refund the fees if the application was unsuccessful. The claimants did not pay him any money, nor did he see them pay any money to Mr D'Cruz. No mention was made of any payment having been made. He did not stay to have dinner with them.
37. Mr Low was in regular contact with Mr D'Cruz about his possible hotel purchase. A few days after the meeting with the claimants Mr D'Cruz delivered the claimants' passports and photographs at the office. Mr Low told Mr D'Cruz to arrange another meeting with the claimants as he needed more information from them and that he would need £500 on account for each one. Mr D'Cruz asked him to write a letter to acknowledge receipt of the passports and to list the further documents required from them, which he did on 18 January, copies of which he produced. These are to be found at divider 5, pages 50 to 55. He did not see the version of the letter dated 18 January produced by the claimants until May 2005 when they were faxed by the claimants' solicitors. He denied being the author of or signing those letters and gives reasons for so saying. Those letters are to be found at divider 12, pages 123 to 126.
38. Mr Low received no reply from the claimants and, as he had no contact details for them other than the address Mr D'Cruz had given him, he spoke to Mr D'Cruz who said he would contact the claimants and arrange for them to meet Mr Low and provide him with a payment on account. Time passed and as he had not heard from the claimants Mr Low told Mr D'Cruz that he would have to return the passports and thus he returned the passports to Mr D'Cruz by hand under cover of a letter dated 2 February 2005 (divider 5, page 56). After that meeting he spoke to Mr D'Cruz only three or four times about the possible hotel purchase.
39. Some two or three weeks after he had returned the passports to Mr D'Cruz he received a phone call from Mr Lim (the boyfriend of the first claimant) asking about the status of the claimants' applications. Mr Low told Mr Lim that no application had been made as he had received no money or instructions and further, that he had returned the passports to Mr D'Cruz. Mr Lim asked him if Mr D'Cruz was a solicitor. Mr Low told him that he was not, but someone who would get a fee for referring clients to him. Mr Lim told Mr Low that the claimants had paid £5,000 or £6,000 to Mr D'Cruz in respect of their applications. Mr Low advised Mr Lim that they should be careful when paying money and suggested that they get a receipt from him for the money and ask for the return of the passports.
40. At around Easter 2005 he received another phone call from Mr Lim asking for assistance to contact Mr D'Cruz. He said the claimants had paid some £11,000 in total to Mr D'Cruz and that he had driven up to Leeds to collect money from them. Mr Low asked him why they had given more money to Mr D'Cruz when he had warned them to be careful. He suggested that they should get receipts from Mr D'Cruz if they had not already done so. He told them that he did not know where Mr D'Cruz was and suggested they tried to locate him themselves, perhaps through Mrs Norma and the flat in St John's Wood. Further phone calls ensued from Mr Lim, who was seeking his advice about finding D'Cruz and getting their passports back. Mr Low suggested that he come to the office on Monday 4 April. He asked for a copy of their passports, which were faxed to his office (divider 5, pages 57 to 58), but the claimants did not come to his office on 4 April. All his conversations had been with Mr Lim and he has no recollection of any conversation about the police. He does not believe he would have told Mr Lim not to contact the police.
41. Later in the day on 4 April he received a phone call from Mr Ram at Dotcom solicitors, who had been instructed by the claimants. He was asking for the return of monies paid to Mr D'Cruz, said to be £11,500, and return of the passports. He asked Mr Ram to put the allegations into writing, which Mr Ram did some time later on 6 May 2005 (divider 5, pages 59 to 60). Mr Low was concerned about the allegations and contacted the Law Society Fraud Intelligence Unit to express his concerns (divider 5, pages 61 to 64). He cannot recall the last time he had contact with D'Cruz, but when it became apparent that the claimants were experiencing difficulties and that neither the hotel purchase or mortgage would be going ahead, he stopped contacting D'Cruz and gradually D'Cruz stopped contacting him.
42. Mr Low's second, third and fourth statements deal with immigration law and comments on the second claimant's statement, the office stamp of Whitehead and Low and the date of registration of the firm with the Law Society and the firm's client accounts.
43. Cross-examined, he said that the firm was not registered with the Law Society until July 2005. It was not a registered office at the time these matters took place. They spoke to the Law Society and they confirmed that if it is an office not used for clients, you do not have to register it. It does not mean strictly that no clients would come in, but it means an office for convenience where clients could come in to deliver documents and make certified copies of identification. It was only later that they realised that they had to put "by appointment only" on the letterhead. It may have given the impression to people who were receiving letters that they were a working office. It did not occur to him that it was wrong in the light of what the Law Society told him.
44. Mr D'Cruz was introduced to him as someone who could bring him clients. Mrs Norma introduced Mr D'Cruz to him in regard to three matters: the potential purchase of the hotel, the mortgage for the house and potential clients. There was a general discussion that he would bring Mr Low some clients and he would have to pay a referral fee. Nothing was written down. Mr D'Cruz introduced him to the claimants. Mr D'Cruz said he had some clients for Mr Low and asked him to go to his house, all four of them, including Mr Lim. He was introduced to them as a solicitor, either as a partner or one of the owners of the firm. He gave a business card to one of the claimants as per his usual practice. It had the 244 Edgware Road office on it and Mr Low as a solicitor and partner. It did not have the Blyth office on the business card.
45. Mr D'Cruz did not say he was working with Mr Low and was a partner. He does not think that the impression given was that Mr D'Cruz was working with him. Mr D'Cruz told them he would be the solicitor dealing with the applications: "This is Danny, the solicitor I am going to introduce you to, and I recommend you use him for your immigration matters." He would have asked them what their situation was. His recollection is quite vague. He would not have allowed himself to be introduced as a partner of Mr D'Cruz as it would be totally against ethics. He would have said something if this had happened.
46. He believed that they would want a student's visa but they asked him a general question about what sort of visas were available. He did not understand exactly what they wanted, that is why he asked for the basis of their application in his letter of 18 January. Despite what was said in his letter, he was not filling out any forms. There was no particular form he was talking about when he said "necessary forms". What he put in the letter was strictly incorrect, and you could say untrue, but it was just his use of English. It did not occur to him that it could have the interpretation that work had already started on the applications. No form uses the terminology "residency permit" but the Immigration Rules do refer to "residency permit". He could deal with straightforward applications, such as student permits and work permits. There were also investment and business permits. He did not tell the claimants that the former two were his field of expertise.
47. The £1,800 would be for the student and work permit. He was not in a position to comment on whether they needed a residency permit. That is the reason he included in his letter that he required more documents and to know the basis of their application. It is clearly stated: "We understand from Mr D'Cruz", as that is what Mr D'Cruz told him. He had agreed to pay Mr D'Cruz, although they had not gone into details. Apart from communicating through D'Cruz, he had no other way of communicating with the claimants. He got their address through D'Cruz when he delivered the passports to him. Correspondence could only be done through the post. They lived in Leeds. He had no telephone number for the claimants. He cannot recollect whether he asked Mr D'Cruz for their number. He meant for Mr D'Cruz to arrange for them to pay him the money, not for Mr D'Cruz to arrange to collect the money on his behalf.
48. He could not recollect why it took a month to write the letter. D'Cruz brought the passports down not long after he had met them. He was the only person in the office there to answer the phone. He had a redirect service from BT so that when no one was in the office the call would be redirected to his mobile. He denied writing the letters at pages 123 to 126. Each of them was a separate client. He put them all in one file under one reference, the Mindy reference. If he had written to the Home Office he would have used the Mindy reference for all three of them. It is his style and the way he does it. He thought that he probably used only one envelope as it was the same address for all three letters. He wrote three separate letters, as when it comes to a refund, if there is any payment made in excess of the amount payable, you could identify who made each payment. The two versions of the letters are very similar but he did not think you could mix them up. He explained the differences between the two versions of the letters.
49. He accepted that on his version, the claimants seemed to have the belief that he was processing the applications. He had no idea how they got that belief as he had not done so. Perhaps they got the belief from Mr D'Cruz. A couple of weeks later he received a phone call from Mr Lim who asked whether Mr D'Cruz was a solicitor. He did not know why they asked him that. He agreed that they were asking about the progress of the applications, but denied that it was because they had received the letters at pages 123 onwards, namely the short form letter.
50. He had one computer in the office, a desktop computer at home and a tablet computer at the time. It is the hard drive of the office computer which has been examined by the expert. He did not sign, write or send the letters at pages 123 to 125. He had written to the claimants and had no response. He did not send a chase-up letter. He did not know if they wanted to instruct him or not. He returned the passports to Mr D'Cruz as it was Mr D'Cruz who had passed them to him. He asked Mr Lim for photocopies of the passports because he did not have details of the passports and if he was instructed to assist them to locate the passports he would need details of them. Mr Lim was saying that they could not find D'Cruz and that they wanted their passports back. He was sent photocopies of the passports. He did nothing with the photocopies. He requested Mr Lim to come and meet him and when he did not turn up Mr Low did not do anything. He was going to enquire from the Home Office with the details from the photocopies. They did not say that Mr D'Cruz was going to make the applications for them and the Home Office was the only place he could think of. He had two mobile phone numbers for Mr D'Cruz and had a lot of conversations with him between November and 16 February 2005. He could not recollect the last time he met D'Cruz.
51. In re-examination he said that he was not so interested in getting the work that he was prepared to hold out Mr D'Cruz as his partner. He denied typing the envelope at page 126. He did not have a printer at home. Mr Lim never blamed him nor held him responsible. In response to questions from the court, he said that he did not stay very long with Aequitas for a few reasons. The principal of the firm at one stage was complaining that he was not bringing clients to the firm. He did try to source clients by visiting places like Chinatown and the partner was unhappy when Mr Low was not in the office. He felt very dissatisfied with the work environment and they only had a handful of clients. He was to be the London arm of Whitehead and Low. When he was at Aequitas he met Danny Larty, a mortgage broker who promised him some work, and he thought that this was where he would build up his contacts. He introduced D'Cruz to Larty.
52. He had done no immigration matters prior to meeting the claimants. He was doing conveyancing at the time and did not have that many files. He was not instructed by Mr D'Cruz. They would have general conversations about the mortgage, hotel and his family and background. You can get a resident's visa if you have worked for more than four years and lived as a student for more than ten years. That would give you the advantage of claiming benefits such as unemployment benefit and cheaper school/college fees. He knew Miss Ping had a tourist visa and he was pretty confident that she wanted a student visa, although not for definite. She was not asking to work. If it was a student's visa they wanted, then they needed to give him the college letter and the sponsor's letter. He accepted that in paragraph 25 of his statement he says that he was asked by Mr D'Cruz to spell out in the letter of 18 January the documents that they needed to send in to him. It was a mistake that he did not spell out the documents needed in the letter. It was an omission on his part.
53. He got the information about the time it was taking the Home Office to process applications from his friend Frank Lee. He could not recollect why or whether he did ask Mr D'Cruz to phone the claimants and ask them if they had received his letter of 18 January. He did not get a receipt from Mr D'Cruz for the return of the passports. After handing over the passports on 2 February he would have seen Mr D'Cruz a maximum of two times. He did give the claimants his business card in December when Mr D'Cruz was there. Mr D'Cruz would have been aware of this. Cross-examined again, he said he did not send the passports back by registered post as he was not sure if it was the right address or who might be living there. Re-examined, he said that his general discussions with Mr D'Cruz were primarily on the hotel and the flat and the valuation. It was no problem to get help from Frank Lee if he needed it.

The Claimants' Submissions

54. The main points made by the claimants are as follows. The case stands or falls on the view the court takes of the witnesses. This is a case of holding out and there is no need to plead fraud. The allegations are clear. The essence of the case is to look at what happened both at the meeting of 16 December and afterwards. The fact that Mr Low had little work is an important background factor as he was willing to compromise himself in order to get it. The claimants would not have handed over so much money if they had not thought that Mr D'Cruz and Mr Low were dealing with their applications. There is clear evidence that money was paid, as evidenced by the large withdrawals being made by the claimants over a short period of time.
55. The crux of the case is in the documents. The explanation about the single reference for all three applications is not credible. The documents have clearly been edited. If the long version had been received by the claimants, given that they had paid so much money to Mr D'Cruz already, they would have got in touch with Mr D'Cruz, then the office, then possibly the police. If Mr Low had written the long version of the letter, he would have sent a follow-up or asked Mr D'Cruz for their phone number to chase them up. Even on Mr Low's evidence, the claimants were phoning and asking about the progress of the applications. They would only have done that as a result of receiving the short version of the letter. The long version of the letter does not make sense, as Mr Low already knew what they wanted from discussions he had at the meeting. Why, it is asked, was he asking for faxed copies of their passports in order to make inquiries at the Home Office when he knew no applications had been made?

The Defendants' Submissions

56. The main points advanced by the defendants are as follows. By way of background it is submitted that this is an unusual case in which the claimants, sophisticated and affluent people, paid out large sums of money without security or receipt. They did not provide all the documentation to show the withdrawals made or to evidence phone calls allegedly made. They have blamed each other for their predicament and remained in the country illegally and despite the obvious theft by D'Cruz of their money did not report it to the police. The claimants are either consciously failing to tell the truth or over-egging their case or are confused. The court is entitled to draw inferences in relation to the absence of Mr Lim and the first claimant.
57. The court would need compelling reasons to make a finding against Mr Low, given the high burden in cases involving allegations of dishonesty against solicitors. The court needs to bear in mind the subtleties of language which need to be taken into account when considering the evidence of Mr Low and not make adverse findings where he may not have expressed himself ideally. The case is about holding out. Fraud is not pleaded, despite an express invitation to the claimants to do so if they thought it justified.
58. The claimants have advanced crucially different versions of the events of 16 December 2004 in the documentation and in their evidence, leading to the inference that their stories have changed. Matters not reflected in their statements have been raised in the evidence for the first time. They are inaccurate about dates, times, places and amounts of money said to have been withdrawn and paid over to Mr D'Cruz. It is submitted that the claimants have made certain assumptions about the role of Mr D'Cruz being a solicitor and partner in the firm before meeting Mr Low and these assumptions continued. Alternatively, on the evidence it is unlikely that they ever thought he was a partner, for reasons which are set out in the skeleton submissions.
59. The letters of 18 January 2005 are difficult to understand and the court, not having a full picture of this, should guard against establishing liability on this matter alone. There are other odd features of the evidence which must leave doubts as to the accuracy and reliability of the claimants. In respect of the immigration matters, it is Mr Low's state of mind at the time he gave advice which is important, not whether he was right or wrong. They submit that the legal position was such that the advice given by Mr Low was not necessarily wrong.
60. This is a case which turns on credibility of the witnesses. Mr Low has been consistent from his first summary of events setting out what he alleged happened and there is no discernible reason for him to modify the letters in question. The expert evidence does not assist on this aspect in any event. The second and third defendants have received no benefit. The dealings and meetings, save for the short period on 16 December, were all with Mr D'Cruz. The money was given to Mr D'Cruz and the passports were handed over to Mr D'Cruz. Mr D'Cruz is the one who has disappeared. All the evidence points to Mr D'Cruz being a fraudster. Mr Low is unlikely to have entered into a conspiracy with Mr D'Cruz and in any event it is not pleaded.
61. Dealing with specific criticisms made of the claimants' case, I set out the main points raised. I do not deal with every single point made in my judgment, but they have all been taken into account in the overall assessment of the evidence. The first area of criticism is that the claimants have advanced a different story on important issues when one looks at the Particulars of Claim and correspondence between solicitors and compares it to what was said in the statements and evidence in court. The main points of difference relate to (a) whether money and passports were handed over to Mr D'Cruz in the presence of Mr Low at the meeting of 16 December 2004; (b) whether a photograph of Mr D'Cruz in a restaurant was taken in Leeds or London; (c) a reference in the witness statement in relation to whether Miss Ping had her college offer letter at the time she arrived in the UK; (d) a figure of £11,500 is mentioned by the claimants' solicitors when in fact the claim is for £23,750.
62. Secondly, it is said that new matters have been introduced in evidence at court which are not reflected in the pleadings and the witness statements. The main matters are: the existence and use of an Australian bank account; that Mr Low confirmed all the details about semi-permanent visas during the meeting of 16 December and the evidence that Mr Low advised that their college fees would be cheaper if they had the semi-permanent residency visa; that Miss Ping asked Mr Low and Mr D'Cruz for a receipt for the money handed over on 16 December.
63. Thirdly, it is said that some of the evidence and certain explanations given are inherently implausible, in particular, (a) the payment of large sums of money with no receipts obtained; (b) the lack of contact with Mr Low if they thought that he was their solicitor and they were concerned about the money; (c) the letter of 18 January (the version produced by the claimants), they would have queried the lack of reference to the £10,000 that they had already paid over and they would have noticed from the letterheading of 18 January that Mr D'Cruz was not shown as a partner in the firm. Moreover, they did not have a business card from Mr D'Cruz and they never met him at the office, so it was inherently unlikely that they thought he was a partner in Whitehead and Low. (d) They did not go to the police and report the apparent thefts; (e) the taking of photographs of the money before meeting of 16 December and the video clips of Mr D'Cruz and Mr Low on the same day; (f) the implausibility that Miss Ping did not know about the taking of the video clip, as she seems to duck out of the way during the filming.
64. Fourthly, that the documentary evidence contradicts the evidence of the witnesses, for example, the withdrawal slip on 16 December showing the claimants in Leeds at a time when they say they were in London meeting Mr Low and Mr D'Cruz. The video clip showing the first two defendants at a meeting in London dated 16 December contradicts the ATM withdrawal slips. The withdrawal slips do not add up to the amount claimed to have been paid to Mr D'Cruz by the claimants.
65. Fifthly, the failure to call certain witnesses, namely, the first claimant and Mr Lim, and failure to produce documentation of phone bills and the bank account in Australia. These failures, it is submitted, can lead to adverse inferences being drawn against the claimants. Dealing with the other evidence, it is submitted that the computer evidence takes the claimants nowhere. To the extent that it does support any party, it is supportive of the defendants' case.

Findings

66. The issue to be decided is a narrow one, although it involves consideration of all the evidence in the case. The question to be answered is: have the claimants proved that Mr Low held out Mr D'Cruz as a fellow solicitor and partner in the firm of Whitehead and Low on or about 16 December 2004? The case, as has been emphasised by both parties, rests on the credibility of the witnesses. Because of this I have set out the evidence and submissions in some detail. In approaching the issue I have read all the evidence in the case, I have considered the skeleton arguments, including the matters of law contained therein, and the final submissions of counsel. I approach the task conscious of the heavy burden placed on the claimants, given that this is an allegation of dishonesty against a solicitor. I start from the basis of the inherent improbability of such an allegation, looking for cogent evidence that such dishonesty as alleged has taken place.

The Claimants' Case

67. I first deal with the witnesses called on behalf of the claimants. I make it clear for the purposes of this decision that I have not taken into account the affidavit of the first claimant. I rely on the evidence of the second and third claimants. I deal with the defence criticisms in turn.

Previous Inconsistent Statements

68. It is correct that there are some discrepancies between the statements and the pleadings and correspondence. If one looks at paragraph 6 of the Particulars of Claim it reads:

"The Claimants then handed over their passports and the sum of £5,000 for the First and/or Second Defendant."

69. It is apparent from the way that this is pleaded that it is allowing for every eventuality until such time as firm instructions are obtained. If firm instructions were in the possession of the solicitors at that time then a clear allegation would have been pleaded. It is true that a letter dated 6 May 2005 indicates that the money was handed over in the presence of Mr Low, but looking at the summary of what is alleged in that letter, it is a very brief summary of events and it is badly expressed. It predates the Particulars of Claim and on close examination does not make sense. The confirmation that it was all right for payment to have been made to Mr D'Cruz makes more sense if in fact the payment had already been made in the absence of Mr Low and he later confirmed that it was all right. This difference does not persuade me that it is the claimants who have changed their story, but rather that detailed and clear instructions had not yet been taken. It is interesting to note that if they had in fact changed their stories in the statements and in evidence, it was in favour of Mr Low.
70. In correspondence Dotcom solicitors indicate that a photograph of Mr D'Cruz dated 16 December 2004 was taken in Leeds (volume 2, tab 11, page 122). Miss Ping in evidence says that she has never given such instructions to the solicitors. Indeed it is obvious from the letter of 15 February 2006 (volume 4, tab 27, page 569) written by Solicitors.Com that the writer, the solicitor, having taken instructions, takes responsibility himself for the error.
71. I now deal with the discrepancies in the amounts of money said to have been paid to Mr D'Cruz. It is quite clear right from the first letter written by Solicitors.Com to Whitehead and Low in May 2005 and before proceedings were begun that the sum alleged to have been paid over was £23,750, the same amount as now alleged, with the details of the dates and amounts paid (volume 1, tab 4, page 59), even though Mr Low said that there were references to a figure of £11,000 and £11,500.
72. In relation to the point about the offer letter at paragraph 2 of her statement (volume 1, tab 6, page 69), Miss Ping accepts that her statement was inaccurate. There is no reason to believe that she was being deliberately dishonest when the statement was made. One only has to read the statement to see that there has been regular use of the word "we", which on closer examination has sometimes meant the three claimants and Mr Lim, the second and third claimants or just even one. It is apparent that no real clarification has been sought by those taking instructions. Thus it is easy to see how the error came to be made. I do not find it to be a point of great importance in the context of the case.

New Matters Introduced in Evidence

73. These new matters do not in my view give rise to the inference that Miss Ping is lying or unreliable. Again, it is clear that few, if any, questions have been asked as to the detailed finances of the claimants, save to produce what documentation they had or were asked for by their solicitors. I draw no adverse inference from the fact that the further details that were elicited in cross-examination about the account in Australia (now closed) emerged. It is to be noted that one or two new matters also emerged during the evidence of Mr Low which were not dealt with in his original witness statement.
74. Miss Ping said that Mr Low confirmed the information about the semi-permanent visa and said that they would save money on fees if they had such a visa and would be able to work. It may be that this was not mentioned in her statement but there is, nevertheless, support for what she says from the evidence of Mr Low himself, although he was talking about permanent residence as opposed to semi-permanent residence. In response to questions from the court Mr Low said: "There is a resident's visa where if you have worked for more than four years and lived as a student for more than ten years then you can get a resident's visa. That would give you the advantage of claiming benefits, such as unemployment benefit and cheaper school and college fees."
75. I do not find that Miss Ping made up this aspect of her evidence, therefore, in fact, to the contrary. No mention was made in the statement of the fact that Mr Low was asked for a receipt on 16 December. Miss Ping does not suggest that she told the solicitor about it. On her evidence she was assured that the financial side would be sorted out back at the office and there would be accounting for the money received. Whether it was because she asked for a receipt or because it was indicated that one would be forthcoming does not, to my mind, affect the essence of what she was saying. I do not find that she was lying about this new evidence but that, at the very highest, she may have been mistaken about asking for a receipt at the meeting.

Inherent Implausibility of the Claimants' Evidence

76. I do not find the claimants' evidence to be inherently implausible, especially in the light of their background. It is quite apparent that Mr D'Cruz saw the opportunity to defraud three young people who were new to the country and who had no experience of the workings of either our legal or immigration systems. It is also apparent that money is not an issue for Miss Ping, who comes from an affluent family, a family which is supporting her even now and paying the legal fees of this case. It was mostly her money which was lost. The claimants had naturally put their trust in those recommended to them, especially given that the first and second defendants were fellow countrymen.
77. That the claimants failed to obtain receipts over the two months or so that elapsed, that they dealt mainly with Mr D'Cruz until such time as Mr D'Cruz disappeared off the radar; that they did not make any connections in relation to the headed paper from Whitehead and Low, is not in my view particularly surprising, given the trust that they had placed in their fellow countrymen. They had received assurances that the work would be done. On their evidence they received a short letter of 18 January showing that work was being done and by inference acknowledging that money had been received, given that there had been a condition that money was to be paid on account. They had also been promised a receipt in due course. I do not find it implausible that they acted in the way that they did.
78. The reason for the many withdrawals over that period of time has been explained as being due to the £590 cash withdrawal limit. Whilst they did not go to the police station in relation to the apparent thefts, they did go to the Citizens Advice Bureau, who advised them to go to the police. On their evidence, when they mentioned going to the police Mr Low asked them not to and asked for time. When nothing happened they then instructed another solicitor and took advice thereafter. I do not find that this undermines their credibility.
79. It is not clear why the initial money was photographed as it does not prove the amount of money paid. There was only the one photograph (volume 2, tab 11, page 122). It was Mr Lim who took the video clips, apparently for a memento. These pieces of evidence, even taking into account the fact that it looks as if Miss Ping may have ducked when the video clip was made, are not such as to cause me to disbelieve the two claimants on the main issue.

Documentary Evidence Contradicting the Evidence of the Claimants

80. There are a number of cash withdrawal slips which appear to show the claimants in Leeds at a time when they say they were in London (volume 2, tab 17, page 147). There are a number of withdrawals, one at 2.13am at Leeds station and two after 5pm in Leeds on 9 December 2004, the day when the claimants say they met D'Cruz for the first time and spent a couple of hours with him. I do not find that the receipts undermine their evidence. They were not asked about what time they met D'Cruz, but there are enough hours in the day for them to have come down to London, spent two hours with D'Cruz and been back in Leeds by 5pm.
81. The more interesting difference is the evidence of the cash withdrawals in Leeds dated 16 December and timed at 16.52pm (page 149) at a time when on their evidence they were in London with D'Cruz and later Mr Low. The claimants took the date of the meeting of 16 December from the date shown on the video clip on the mobile phone. We have heard evidence from the third claimant that he had not changed the time on his mobile phone from Malaysian time when he came to this country so that he would know what time it was in Malaysia when he phoned home. Malaysia is some eight hours ahead. This, it is said, explains the discrepancy and explains why they may have got the date of the meeting with Mr D'Cruz and Mr Low wrong. Despite Miss Ping being convinced that the date was 16 December, it was clear that she is mistaken. This does not undermine the credibility of her evidence as (a) there is good reason advanced for the mistake but (b), more importantly, there is no dispute that there was this meeting in December.
82. With regard to the point that the claimants did not have a business card from Mr D'Cruz, they explained that he had said that he did not have one on him. They were given, and this is not disputed, a business card from Mr Low. The fact that they always met Mr D'Cruz in a hotel or at his home is relied on for the suggestion that they must have known that Mr D'Cruz was not a partner. However, Mr Low himself says that it is not unusual for him to go to clients' homes or meet them other than in the office. Indeed, he was not meant to use his office as a proper office for the reception of clients, although he thought that they could attend for some administrative tasks to be done.
83. The fact that the withdrawal slips produced amount to some £2,000 less than claimed does not lead the court to disbelieve the claimants on the central issue. There is other documentary evidence of traveller's cheques available to Miss Ping to make up the difference and evidence from her, which I accept, of the drawing down on her Australian bank account, which she closed when the funds were exhausted.

Failure to Call Evidence

84. It is submitted that adverse inferences should be drawn by the failure to call Mr Lim and the failure to produce certain documentation. The explanation for the absence of Mr Lim is that his visa has expired and he has returned to Malaysia. Whilst it is true that most of the communications between Mr D'Cruz and the claimants was done by Mr Lim, the evidence is that the others were present, listening in on the conference facility, and that they discussed what was to be dealt with on the phone prior to each phone call. I do not intend to speculate on what Mr Lim might have said when cross-examined. On the evidence of the second and third claimants, he would have said much the same as they have. However, I cannot and do not take that into account in support of the claim in this case. Whilst I acknowledge the absence of Mr Lim, it is on the evidence before me that a decision has to be made. I emphasise that I have not taken the evidence of the first claimant into account.

The Computer Evidence

85. The computer evidence shows that the two documents in question have been edited at some stage. The evidence does not take the case much further because it cannot identify what editing has taken place. Mr Low can offer no explanation as to why on the unchallenged expert evidence the documents had been edited. He denies doing so. In my view, the evidence is of some assistance to the claimants' case, but not much. It emerged in cross-examination that Mr Low has two personal computers at home, a desktop and a tablet, although it is said that he had no printer there. In those circumstances it would have been possible for Mr Low to use either of his personal computers to create or edit the documents and if necessary to print them out in the office without this showing on the hard disk of the office computer. It was only the hard disk from the office computer that the defendants made available to the computer expert and not those of the personal computers. Thus, the lack of further evidence on the office hard disk does not take the case any further one way or another.

Overall Assessment

86. When looking at the evidence of the second and third claimants I have taken into account, amongst other matters, the following background: although the second claimant has a good command of English, it is not the claimant's native tongue and allowances have to be made, as indeed they have to be made in the case of Mr Low. They come from a foreign country and have no experience of professionals nor procedures in this country. Although they did have a proper meeting with their solicitors in relation to the taking of instructions, their solicitor was based in London and they were based up north and some communication had to be done remotely. I have also considered any motive that there might be for lying or over-egging their evidence.
87. It has been suggested that the evidence of the third claimant is of little value as he merely endorsed the statement of his wife, the second claimant. Whilst this is true, he was under oath and it was open to the defendants to cross-examine him in some depth to test his evidence. This opportunity was not taken as his cross-examination was fairly short and his credibility was not substantially undermined. I found both the second and third claimants to be essentially honest (although at times confused and mistaken) witnesses. I have had the opportunity of seeing them both in the witness box and sitting together in court during the proceedings. I do not take the view that they have come to court to lie and mislead the court. Nor do I take the view that such discrepancies as there are in their evidence arise from any dishonest motivation. As I have already indicated, such discrepancies as do exist do not at the end of the day affect their credibility to the extent that the court cannot rely on their evidence in relation to the necessary heavy burden of proof.
88. Even starting from the premise of the improbability of Mr Low acting in the manner in which they allege, in relation to the central issue in this case about what took place on 16 December 2004 I accept their evidence, not only because I find they have been honest, but also because there is other evidence which supports their evidence generally. These aspects will be referred to when dealing with the evidence of Mr Low.

The Defendant

89. As indicated, I have started from the premise of the inherent improbability of Mr Low acting dishonestly, given his position as a solicitor. I have also taken into account his background and language issues. However, I do not find him to be a credible witness for a number of reasons, but mainly for the inherent implausibility of his evidence. Following questions from the court it became clear that Mr Low, having come to this country and having been admitted to the role of solicitors here, was having serious problems attracting work. So much so that he left the first firm he worked with after a few months and went into partnership with Mr Whitehead. This partnership had only just been formed for some three weeks when the claimants came on the scene.
90. Mr Low had been promised by Mrs Norma that she would try to put work his way. He had been going around Chinatown previously trying to attract work. Mr D'Cruz, once he had been introduced to Mr Low by Mrs Norma, had already indicated that he would put work Mr Low's way for a fee. Mr Low on his own admission had very little work at this time, he was very anxious to get clients and did not seem very fussy about what kind of client they were. This is well demonstrated by what Mr Low says about how Mr D'Cruz had said that he wanted to move solicitors as his then solicitor was asking too many questions about Mr D'Cruz's sources of money. Warning bells should have been ringing in Mr Low's head. Despite this, Mr Low spent some time and effort with Mr D'Cruz, talking business with him in the hope of attracting him as a client. He needed the money and the contacts.
91. I set out the main points which lead me to the conclusion stated above in paragraph 90. Mr Low's description of the meeting with the claimants in December 2004 does not withstand close scrutiny. He says that Mr D'Cruz told the claimants that he recommended that they use the services of Mr Low for their applications. It would be natural for them in those circumstances to mention that they had already handed over their passports and photographs and money to Mr D'Cruz. According to the claimants they did, according to Mr Low they did not.
92. On Mr Low's version he told the three claimants in the presence and hearing of Mr D'Cruz that the cost of the applications for a visa would be £1,800 a piece plus a processing fee of £155 and that he would require at least £500 each on account. The total would be about £5,000 with the deposit of £1,500. Yet on 16 December the claimants had in effect already paid the full amount. They would have indicated as much to Mr Low if he had told them about those costs. Moreover, despite Mr Low telling them that the cost was about £5,000 in total, they continued to pay further large amounts to Mr D'Cruz, totalling £23,750. This included a banker's draft of £2,250 made payable to Mr D'Cruz. Mr Low says that he had agreed to pay Mr D'Cruz a commission for the introduction.
93. Mr Low said that he did not know what kind of visa they required, although he suspected it might have been a student's visa, yet he says he gave the claimants a quote, not yet knowing what work was to be involved. Additionally, Mr Low has never done any visa applications before and only felt competent to deal with the most simple of applications, namely, student and tourist visas. Even on his own evidence he gave the claimants the impression that he was competent to deal with any kind of visa as he explained the different kinds of visas and procedures to the claimants and in both the long and short forms of the letter of 18 January he gives a false impression that he has experience of such applications. Mr Low told the court that there is a resident's visa which allows you if you have worked for more than four years and lived as a student for more than ten years to get unemployment benefit and cheaper study fees. This evidence is very similar to what Miss Ping said that Mr Low had told them at the time of the meeting of 16 December 2004. This supports her evidence.
94. Dealing with events after the meeting, Mr Low's evidence is that Mr D'Cruz brought the passports to him and asked him to write to the claimants telling them what further information and documents he needed. Looking at the long letter of 18 January, the letter Mr Low says that he sent, he does not tell them what documents they are required to send him. This was an omission, he says, despite the fact that this was the reason for the letter. He accepts that although he wrote that "we are in the process of preparing the necessary forms for the application", he had in fact done nothing. He explains that the phrase used was due to the inadequacy of his English. Although he did not think it was misleading, he accepted that it might have given the impression that he had started work on the applications.
95. Given the fact that the claimants clearly wanted to instruct him, having handed over their passports and photographs, and despite the fact that Mr D'Cruz was the introducer and not the solicitor, Mr Low, it seems, at no time asked Mr D'Cruz for the phone numbers of the claimants nor made arrangements in the long letter of 18 January to set up a meeting to take proper instructions and/or give advice. In the long letter of 18 January there is a request for payment on account. Mr D'Cruz knew that he had not paid Mr Low and that Mr Low did not know of the payments made, the claimants by that time having paid him about £10,000. On receiving the letter from Mr Low the claimants would have been certain to get in touch with both men, wanting to know how it was that they were being asked for more money when they had already paid double what the applications were estimated to cost. In those circumstances it is inconceivable that Mr D'Cruz would have suggested that the ignorant Mr Low contact the claimants directly, as that would have been the end of payments by the claimants to him.
96. Moreover, Mr Low said that he handed over his business cards to the claimants in the presence of Mr D'Cruz, who, having introduced them to Mr Low, would know that there was a further risk that the claimants might contact Mr Low directly with the risk of Mr Low finding out from them that they had already paid Mr D'Cruz the full value of the costs of the applications. In these circumstances I do not accept that Mr Low was unaware of the fact that money had been paid by the claimants, although he may not have been aware of precisely how much and may well not have received any.
97. Mr Low's explanation that he only used the same name reference on the three letters does not make sense. On the one hand, he said that this was his way of doing things and yet, on the other hand, he says he wrote three separate letters instead of one composite one, like the one on file, as he needed to be able to tell who had paid what in the case of any refund necessary in relation to payment on account. It is interesting that he talks about a refund in evidence, having denied that he mentioned any refund when speaking to the claimants at the meeting of 16 December, another small but telling piece of evidence to support that of Miss Ping. It would allow Mr Low on informing the claimants of their unsuccessful applications to make some refund of fees in relation to the nonexistent application in order to allay their submissions, had Mr D'Cruz not made off with the money and left the jurisdiction.
98. Mr Low also says that he would have used the Mindy reference for correspondence with the Home Office, even though there were three separate applications to be made. In future this would make locating the correspondence difficult if there was a particular query about one individual application other than Miss Ping's. Having, as he said, received no letter or phone call confirming receipt of his letter of 18 January, Mr Low did not send a follow-up letter, nor did he, it seems, ask Mr D'Cruz for the contact details. He merely returned the passports to Mr D'Cruz.
99. Mr Low accepts Mr Lim phoned him and asked him about how their applications were proceeding, although denies that he gave any indication that the applications were being processed by him. He told Mr Lim that he had received no instructions but told Mr Lim to get a receipt from Mr D'Cruz for the £5,000 he was told they had already paid over. He did not, however, ask Mr D'Cruz why the money had not been paid to him. He did not say to the claimants: "If you want me to do the application do not pay any more money to Mr D'Cruz, but pay me, the solicitor who will be dealing with the application." He asked Mr Lim for photocopies of the claimants' passports because he thought if he were to be instructed to locate the passports he would need their details. He would have written to the Home Office to see if there had been such an application. This makes no sense, given that he had told the claimants that no applications had been submitted.
100. In addition to the above, the following matters are noted and taken into account. The short letter of 18 January (the one received by the claimants) makes sense in relation to what the claimants did. Having received that letter and then no further information, they naturally would inquire about the progress of their applications, given that the letter indicates that the applications were to be submitted within the week. The short letter also makes sense because there are individual references for each claimant.
101. If Mr Low did not send the short letter, then who did? The only realistic candidates are Mr D'Cruz and the claimants. Analysis of the evidence shows that it cannot have been these people. In order to compose a short letter access to a copy of the long version would be needed. Mr Low was the only person who had access to the London office. Mr D'Cruz was not a client of his and they had had conversations and meetings, not correspondence. Mr Low has not suggested that he made a copy of the long letter available to Mr D'Cruz. Mr D'Cruz was not in a position, therefore, to manufacture the short version of the letter.
102. If the claimants had received the long letter they would have been on the phone making inquiries, given the contents, not composing a short version of the letter. Should it be the implicit suggestion that they could have manufactured the letter some months later, then it follows that they must also have been able to manufacture the envelope, which Mr Low denies sending. There would have to be two envelopes in existence date stamped 18 January 2005. The envelope produced by the claimants is date stamped 18 January 2005 and has the familiar marks associated with an envelope which has been through the post. There is no evidence to the contrary to suggest that the envelope produced does not have the genuine marks of an envelope that has been through the post.
103. The fact that it is not rubber-stamped does not in my mind mean that it cannot have come from Mr Low. He could well have had the firm's address on his own computers at home as a convenience when he did not have access to the rubber-stamp in the office. Although there are one or two points of difference, the way the addressees are referred to on the envelope is very similar to the way the claimants are referred to in the letter which Mr Low says he did write to Mr D'Cruz on 2 February 2005 (volume 2, tab 12, page 126 and tab 19, page 161). The conclusion this court has come to is that this is the envelope in which the claimants received the short letters of 18 January.
104. Another piece of evidence which is illuminating is the evidence of the claimants about a phone call they made to Mr D'Cruz at the offices of Whitehead and Low when they were told by a man that neither Mr D'Cruz nor Mr Low was available. They had not been able to reach Mr D'Cruz on his mobile phone. The fact that they were asking for Mr D'Cruz at the office and then asking for Mr Low when told that Mr D'Cruz was at court is evidence which points to their state of mind about the relationship between the two men and the firm. The only person who could have answered, we now know from the evidence, was Mr Low, as he is the only person who worked in the office and he had the office calls on divert to his personal phone when he was not in the office.
105. It is odd that, having received the passports informally from Mr D'Cruz, Mr Low writes a formal letter to Mr D'Cruz which he then delivers personally to Mr D'Cruz together with the passports. Given the informality of their arrangement, the mere return of the passports and a conversation with Mr D'Cruz would have been more in keeping. Moreover, Mr Low gives no real explanation of what inquiry, to which he refers in the letter, that Mr D'Cruz had made of him. If there had been such an inquiry then Mr Low would have no doubt expected Mr D'Cruz to phone the claimants if he was not prepared to contact them himself to find out why they had not submitted the necessary documentation or funding. This is especially so, given what Mr Low says about actively seeking clients. Furthermore, Mr D'Cruz was an introducer, not the client and it was not a matter of whether Mr D'Cruz wanted Mr Low to act for the claimants, but if the claimants did. The letter has the hallmarks of Mr Low trying to cover his back. Despite Mr Low knowing that the claimants had paid D'Cruz a lot of money for nothing, instead of redoubling his efforts to try to help them to locate Mr D'Cruz, he stopped contacting him.
106. It has been submitted that Mr Low has been consistent in his story from the time he sent in his summary of events to the Law Society (see volume 2, tab 21, page 165). It is to be noted, however, that in his summary he does not mention the fact that he told the claimants what his fees were at the meeting in December. It is further said that Mr Low's action in getting in touch with the Law Society is consistent with his innocent role. It is instructive to note that once Dotcom solicitors sent the letter dated 6 May 2005 with the allegations, it is Mr Whitehead who is responding to them and threatening to go to the Law Society, not Mr Low, although it is Mr Low who compiled the summary.
107. It is also suggested that Mr Low had no motive to get involved in anything dishonest or to cover up anything. I disagree. He needed work, money and clients and Mr D'Cruz had been recommended to him as a good source. Mr D'Cruz himself said that he could be a fertile source of work. Mr Low did not appear bothered about the integrity of Mr D'Cruz when he was dealing with him. There must have been a time when Mr Low realised that Mr D'Cruz had hoodwinked him as well as the claimants and there was every reason for him to cover up in an attempt to protect his job, qualification and reputation.
108. In assessment of the evidence I have not taken into account or held against Mr Low any matters regarding the details of immigration law nor the allegations of threats made against the claimants' family back in Malaysia to drop the proceedings.
109. I deal with one or two outstanding issues. It is submitted that there is no evidence of the first claimant having an interest in this case as there is no evidence of payment by her of any money. I find that the first claimant does have an interest as there is evidence that the banker's draft in the sum of £2,250 came from the account of her boyfriend, Mr Lim, on her behalf, Mr Lim not being one of those who was seeking a new visa.
110. It is also submitted that the claimants should have pleaded fraud in this case and that having not done so this court is limited in its approach to the case. Although fraud has not been pleaded, it is quite clear from the facts as presented by the claimants what the allegations are. The defendants have not been unable to deal with such allegations and are in no way prejudiced. Because of the clear allegation of dishonesty proof needs to be of a high quality and standard. Standing back and asking the question posed at the beginning of the ruling, the answer is that I am quite satisfied on the evidence that the claimants' case is made out. Judgment is therefore in favour of the claimants.