“What’s done cannot be undone.” William Shakespeare, Macbeth
News | Thu 3rd Sep, 2020
In Hassan Khan v Habib Khan (2020) CLCC, the Claimant issued a claim seeking a debt in the sum of £194,021.28 against the Defendant, his brother. The Claimant alleged that he had loaned the Defendant money to purchase a property known as 128 Church Lane (the property), the Defendant owed rent and had purchased land in Pakistan using his money. The Defendant issued a counterclaim for the sum of £41,000 in respect of money the Claimant had taken from a joint bank account.
The Claimant presented evidence in the Central Family Court during divorce proceedings asserting that the Defendant was the sole absolute owner of the property. The Claimant asserted to the Family Judge that the Defendant had purchased the property using his own financial resources. He also asserted that the £41,000 (rental income) in a joint bank account belonged to the Defendant. The Claimant had presented detailed witness statements and Form Es with statements of truth, declaring that his brother owned the property, the rental income, the land in Pakistan etc.
The claims being pursued by the Claimant were in direct contradiction of the common position before the Family Court not only relating to the assertion that the Defendant was the sole absolute owner, but also in various witness statements of the Claimant that he, the Claimant, had no claim in relation to any rental or other monies in relation to the property.
In earlier proceedings in the Central Family Court, the Claimant and his lawyers strenuously resisted the family documents being disclosed to the County Court Judge, asserting that they were confidential and could not be disclosed. The Family Judge accepted Mr Butler’s submissions that if the documents were not disclosed to the civil Judge, there a serious injustice would arise. The court had to balance the right to confidentiality with the need for claims to be disposed of fairly.
The trial was listed before His Honour Judge Gerald. Having heard and read all the evidence, the Judge set out his reasons for concluding that the claim was an exercise in fantasy.
First, the Judge held that to describe the sums claimed as a “debt” is divorced from reality and truth. The Claimant’s documentary evidence was a self-serving account.
Secondly, the self-serving statements were a figment of the Claimant’s imagination.
Thirdly, the allegations were in direct contradiction to the Claimant’s position in the Family Court, where he confirmed on oath that nothing was due from the Defendant to the Claimant. The claims were res judicata and/or an abuse of the court’s process.
Fourthly, because the Claimant’s position before the Judge was in such direct contradiction to that which he said previously, the Judge was simply unable to accept a word of what he had to say.
Fifthly, the Claimant was not telling the truth in relation to there being any loan or any outstanding loan.
Sixthly, in respect of the Claimant’s credibility, the Judge said:
“I did not find him reliable, frank, honest, or indeed coherent. At many times during his cross-examination it was almost impossible to understand what he was saying. At many times he seemed to misunderstand the question and get it completely upside down.”
The Claimant’s whole case was based on the fact that he must have lied in the Family Court. The Judge said:
“That, of course, is quite a strong thing to say, and before the claimant answered any of the cross-examination relating to that matter he was given the customary warning against self-incrimination, but blithely continued (after I think taking advice) that he was perfectly happy to admit to perjuring himself before the Family Court. If he perjured himself there, why should I believe him now?”
Seventhly, in respect of the pleading and schedule of damages, the Judge described the documents as “an exercise in fantasy”.
Eighthly, the explanation given for lying in the Family Court was because he was under huge pressure and was mentally unstable. The Claimant asserted that his misrepresentations to the Judge were not intentional and therefore he was not lying.
The Judge said:
“…it is in my judgment incredible and impossible to accept that he was at that stage in any way suffering from any pressure which would materially affect the accuracy of that which he said. Rather, what he has done in this court before me is lied, repeatedly stating that he did not disclose and accepting that he did not disclose and misled matters in the Family Court when in fact that is not true.”
The Claimant’s claim was dismissed. The Judge ordered the Claimant to pay indemnity costs. The Claimant was ordered to pay the sum of £267,500 on account of costs.
Simon Butler (instructed by Alexander Shaw Solicitors) represented the Defendant.
The full judgement can be found here.