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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kutay v Jooyandeh [2001] EWCA Civ 673 (1 May 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/673.html Cite as: [2001] EWCA Civ 673

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM STOCKPORT COUNTY COURT
(HIS HONOUR JUDGE CAULFIELD)

		Royal Courts of Justice Strand London WC2 Tuesday, 1st May 2001

Tuesday, 1st May 2001

1. LORD JUSTICE TUCKEY: This is a renewed application for permission to appeal from the judgment of His Honour Judge Caulfield given in the Stockport County Court, who dismissed the applicant's claim for £29,000 allegedly owed to him by the defendant as the balance due under two promissory notes which totalled £52,000 which the defendant given to secure a loan.
2. The issue at trial was whether the defendant had repaid the balance in cash or kind as he maintained, or whether he had only repaid £23,000 by cheque, and nothing more, as the claimant said. The issue was therefore a stark one as the judge said. Either the claimant or the defendant and the four witnesses whom he called were lying.
3. The judge reviewed the evidence called on both sides. He did not accept parts of the defendant's evidence. He rejected altogether the evidence of two of his witnesses and it is clear that he approached the evidence of the other two critically. He hesitantly accepted the evidence of the defendant's brother that he had seen the defendant count out £1,000 into an envelope which he had then put into a safe with instructions to give it to the applicant when he called.
4. The fourth witness, Mrs Brazendale, was the defendant's ex-wife's aunt. She was a nurse. The judge considered that she was the closest to a truly independent witness in the case. He accepted her evidence that on one occasion she had seen the defendant hand over cash to the applicant and later in July 1999 heard the applicant say to the defendant that he had spoken to his accountant and that the defendant was all clear and that was the end of the loan. The judge concluded by saying:

"It is in large measure this witness's evidence which causes me to prefer the defendant's account rather than the claimant's account of what was, or was not, paid by the defendant in respect of the loan."

5. He then went on to dismiss the claim.
6. The application for permission was accompanied by an application to adduce further evidence in the shape of documents gathered by the applicant's solicitors after the trial. In short the documents show that the defendant's brother was a director and company secretary of the company through which the defendant ran his public house business at the "Drop Inn". The brother was the manager of the business at the time of the trial as the judge records, but apparently said he had no interest in it. That was strictly true. Copy extracts from the defendant's passport are produced to show that he did not go on holiday to Florida at a time when some of the defendant's witnesses suggested that he did, and other documents are produced which are said to show that the defendant was not short of money at the material time contrary to what he said at the trial.
7. There is one further document which I will refer to in a moment, but in relation to the documents which I have mentioned and those which I have not, quite apart from the difficulties of adducing this evidence on appeal given the fact that some or all of it must have been available at trial, I do not think any of it would have made a scrap of difference to the outcome of this case.
8. The appellant's application for permission starts by complaining of serious procedural irregularity in the course of the proceedings. The defendant had failed to comply with court orders. At one stage judgment had been entered in default but he was allowed to call his four witnesses although their statements did not contain their addresses or statements of truth and were undated.
9. The judge had a discretion to allow the witnesses to be called in the interest of having a fair trial despite these defects which could not have prejudiced the claimant in any way. There is no principle of tit-for-tat in these matters.
10. It is said that the claimant was at a disadvantage when he gave evidence because his witness statement was taken as his evidence in chief, that cross-examination started immediately and because the judge repeatedly told him to speak up. There is nothing to suggest that the claimant was treated unfairly by the judge. Witness statements are usually treated as evidence in chief in order to hasten the trial process.
11. The appellant's other ground of appeal is simply that the judge reached the wrong conclusion. A host of points are made in support of this broad submission which is that the judge did not properly assess the evidence of the defendant and his witness and that, had he done so, he would have rejected the defendant's case.
12. This morning in his oral submissions Mr Key, for the applicant, has concentrated on one aspect of that general criticism which is the judge's acceptance of Mrs Brazendale's evidence. What he says is that she was not independent and the judge was wrong even to consider that she was in some way independent; she was related to the defendant's ex-wife and had a financial interest in the outcome of the proceedings because once the defendant had paid off his loan to the applicant, her niece, the ex-wife, would be likely to benefit from payments made to her by her ex-husband, the defendant.
13. The second point which Mr Key relies on depends upon one aspect of the further evidence to which I have referred. This shows that the electoral register has the ex-wife living at 14 Ashwood Avenue as from 10th October 1998. This, it is said, shows that the evidence which Mrs Brazendale gave at the trial that she used to visit the ex-wife at the Drop Inn was wrong, because although she had lived there before her husband bought her 14 Ashwood Avenue she was not living there at least from October 1998. That, Mr Keys suggests, taints the judge's conclusion that he could rely on her evidence and inevitably taints the result since the judge relied heavily on that evidence to reach it.
14. I do not accept these submissions. The period over which cash payments were allegedly made by the defendant to the applicant started in 1996 and, according to his evidence and those called on his behalf, payments were made up to about June 1999. It was not therefore inconsistent for Mrs Brazendale to say (and she did not apparently put a date on it) that she had seen a cash payment being made by the defendant at a time when her niece was still living at the public house. She says that the final conversation to which I have referred took place in July 1999 when if the register is correct her niece was no longer living at the public house. But in her statement she says in terms that that conversation took place after her niece had separated from the defendant. For these reasons if this evidence had been before the judge I do not think that it would have affected the result.
15. As I said when refusing permission on paper the outcome of this case depended upon the judge's assessment of the witnesses whom he saw and heard. There is no real prospect of this court concluding that the judge's assessment was wrong for either the particular reason relied on by Mr Key or any of the other reasons set out at length in the application for permission.
16. For these reasons this application for permission is refused.
(Application refused; no order for costs).