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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Chief Constable of Essex Police v Adeniji (Rev1) [2022] EWHC 1725 (QB) (05 July 2022) URL: http://www.bailii.org/ew/cases/EWHC/QB/2022/1725.html Cite as: [2022] EWHC 1725 (QB) |
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QUEEN'S BENCH DIVISION
ON APPEAL FROM THE COUNTY COURT AT CHELMSFORD
FROM THE JUDGMENT OF HER HONOUR JUDGE MURFITT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
CHIEF CONSTABLE OF ESSEX POLICE |
Claimant |
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- and – |
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FIONA ADENIJI |
1st Defendant |
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- and – |
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LANGDON HILLS MOTOR COMPANY LIMITED |
2nd Defendant |
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There was no appearance by the Claimant or by the First Defendant/Respondent
Hearing date: 16 June 2022
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Crown Copyright ©
MR JUSTICE FREEDMAN:
I Introduction
"I have confirmed with the appellant I will not be able to attend remotely today.
I am happy for the appeal to continue in my absence to bring this matter to a conclusion. If present, I would have no further information to present other than the original bundle and documents submitted to court (copy of which I have provided to the appellant).
This whole situation has caused me untold anxiety and the thought of attending another hearing, whether remote or in person, to be tied up in knots by legal professional again is having a detrimental effect on my wellbeing. I therefore ask the Court to continue with the hearing today in my absence, as I am keen for this matter to be concluded."
(1) in September 2016, the Respondent commenced an intimate relationship with Mr Paul Pinnell;
(2) in November 2017, the Respondent acquired the Porsche for a sum of about £69,000, and she became the registered keeper according to DVLA records;
(3) on 9 April 2018, the Respondent signed her agreement to Mr Pinnell becoming the registered keeper.
(4) By November 2018, the relationship of the Respondent and Mr Pinnell had broken down.
(5) The Appellant's case is that on 4 November 2018, Mr Pinnell sold the Porsche to them for the sum of £48,000 of which the sum of £12,000 was in part exchange for an Audi, the sum of £9,000 was paid in cash and the balance was to be paid in 9 monthly instalments of £3,000 each.
(6) On 18 December 2018, the Appellant leased the Porsche to Mr Gojka.
(7) On 27 December 2018, Mr Gojka was arrested in connection with drugs offences and the Porsche was seized by the police.
(8) On 4 December 2018 and further on 20 December 2018, the Respondent reported Mr Pinnell to the police about matters described below, and made a witness statement in connection with the Porsche on 23 December 2018.
(9) On 8 November 2019, the proceedings under CPR 86 were commenced by the Claimant.
(10) On 13 July 2020, the case was tried and subsequently in July 2020, the judgment was handed down and an order made.
II Background
"The texts from November 2017, shortly before the Porsche was purchased by the respondent, certainly contained fulsome expressions of her love for Mr Pinnell, although she also appears quizzical when he calls her a 'dirty bitch' in response to a message saying she has a meeting but will be home soon. Another series of messages passing between the pair on 12-13 June 2018 detail the respondents mixed sentiments that the relationship is over. She expresses her sense of injury at his verbal abuse when she says has only been loyal. She apologises as he tells has 'f…ing lost her mind' and when he asserts it is her fault that the relationship is at an end. After a series of mutual recriminations, Mr Pinnell mentions the log book for the car: "I give the log book for car said I sign it but you said no.' He then writes: "I'll come drop you the car: I exactly care.' Ms Adeniji replies "It's okay It's worthless the state it's in" to which he re-joins: "No, I being serious, you can com get it. I don't want it. I'm walking away from it." Ms Adeniji writes back: "I can't get to it. Sorry xx Park it at the yard xx."
"There is one exchange when she observes he can drop the car back after visiting probation and suggested afterwards 'Jed' can pick him up. When Mr Pinnell responds: "so you do what to take my car back, then x? She re-joins: "yes so it can be sold and then I'll see y right? Unless you want to pay me off xx I'm not being difficult but that's all the money I have left." In his turn Mr Pinnell did not interject to assert that the Porsche was not hers to sell either. Instead, he replied by texting: "It's ok, you can have it, I'v got nothing so I'll just do what iv gonna doo to survive.... I knew you would take my car away." He goes on to suggest he may kill himself, and is abusive about 'Jed' suggesting that he may have been asked by Ms Adeniji to help get the car off him, which she refutes."
"I wish to make a statement in relation to me signing over my car to pull Pinnell. From when Poole was able to drive the car, he made continual requests for me to pass the ownership over to him. He justified this by saying. It would prove that I loved and trusted him. In May or June 2018, I signed over the ownership to him. So I was still insured on the car when I signed over the ownership. We had a verbal agreement that were we ever to break up, he would return the car to me. following. [illegible] incidents, which have been repeated to the police, Paul and I broke up in early 2018."
"I would like the car returned. I have signed over the vehicle as part of an abusive relationship and it represents a significant investment for me and my children. I would be willing to go to court in connection with this incident and Paul's pattern of controlling behaviour which led to me signing over the ownership of the vehicle I have bank statements and receipts which show my payment"
"My relationship with Pinnell deteriorated. I was subject to physical violence if I used the vehicle despite it being registered in my name and he started to collect numerous PCN's and doing forecourt runs without payment. As the vehicle was in my name, all of these charges were coming back to me and amounted to in excess of £1500. He also used emotional abuse, claiming if I really loved him, I would sign this over to him as it would prove my love for him. I was in a very weak and vulnerable position and therefore agreed to sign the vehicle over to him on the proviso that if we were to split up, the vehicle would be returned to me as I had been the sole purchaser and had invested a large amount of money in the vehicle."
"Whilst I had signed the vehicle over to him so he was the registered keeper of the vehicle, I was still the legal owner - I had purchased the vehicle and paid the insurance for the vehicle but did not have the use of the vehicle on a day to day basis. The vehicle was not Pinnell's to dispose of and should not have been handed over without my consent. I therefore request the return of my vehicle."
"In November, she stated that Mr Pinnell disappeared, but that he would turn up occasionally thereafter, and if she asked where the car was and when he would be returning it, he would become aggressive and tell her it was being repaired and that he would not dream of getting rid of it. On 4 December, she states he threatened to harm her and her children and arrived at the house and tried to break in, and this led her to make her first report to the Police. She said she reported the car a stolen on 20 December 2018 not knowing where it was, but hoping that it may be picked up. Then on 19 January 2019, she stated that Mr Pinnell called to ask her to help him get the car back, claiming that an Albanian had taken it off him. Without paying him anything for it, she said that he told her she could have the car back if she helped him recover it. However, after that she said she heard nothing more until she was advised that the Police had impounded the car, after someone had tried to take it abroad."
17. "In her oral evidence Ms Adeniji said that it was Mr Pinnell who persuaded her to buy the car in the first place, and that she used a large part of her late partner' s estate to do this. When Mr Pinnell began asking her to transfer the Porsche to him, she said she refused at first. Then on 18 March after she took the car out, she said he became very angry and smashed up the bedroom up such that she was afraid and told her children to hide. She described him grabbing her by the throat till she dropped the keys and gave them up, and that he then took them and slept with them under his pillow after that. She said that (in hindsight) she had been manipulated by his declarations of love at a time when she was low, but that it had also taken the pressure off to transfer it to him so that he was liable for the fines when they carne in. She was adamant however that the ownership of the car remained hers. After they split she said she he would turn up in different cars to see his dog, and whenever she asked where the Porsche was, he would become angry and make up excuses that he had lent it to a friend, or that it was in for repair. She said that she knew he had a serious cocaine addiction, and that he owed a lot of money to an Albanian drug supplier in Basildon.
18. In cross examination it was put to Ms Adeniji that she had made no mention of the keys to the car being taken from her by force within her statements. She said that she told the Police all about his violence and that it was contained within her statements for the criminal proceedings relating to his physical abuse, and she had not thought she needed to repeat the details in the civil proceedings about ownership of the car. She said that whilst she did not like rehearsing the details she was willing to give details of dates times and places if asked.
19. It was put to her that her case as to being coerced or controlled by Mr Pinnell was inconsistent since she had agreed to sign the vehicle over to Mr Pinnell, to which she responded that it was consistent, because she had only agreed when she had people chasing her for his debts, in between his protestations of love, and then violence towards her. She said she did not wish to accuse Mr Ujka of being involved in crime with Mr Pinnell, but she nevertheless believed that Mr Pinnell had sought to trade the Porsche to settle the debts, which he told her he owed to many Albanians in Basildon. She said she had noticed Mr Ujka had declared his nationality as Albanian at Companies House, but agreed she had no basis for saying that Mr Pinnell had debts to settle with Mr Ujka in particular. She denied (when it was put to her) that she had given the car to Mr Pinnell voluntarily, stating it was under duress and that she was coerced into agreeing due to the pressure of meeting his huge forecourt debts and PCNs; that the money was all she had, and that she had not just woken up one day and thought 'I'll sign it over'. She agreed she had not reported Mr Pinnell to the Police after signing the registration document, stating that she had remained in a relationship with him until November, and thereafter she had asked for it back, until the incident of violence in December led her to report his behaviour to the Police, and also to report the car as stolen in the hope of getting it back. During the relationship she said she had felt scared and vulnerable, as he had moved her to an isolated area where she was cut off from friends and family, and it was not just a simple matter of picking up the phone to the Police to say, "I've done something silly...". She said that he verbally agreed to return the car if they broke up, and that he had exploited her vulnerability by saying he would give it back. She mentioned that he also had a 'backhander' if she didn't agree with him, although she added she was not here to go into those details today. Where in her police statement it states she signed over the ownership to Mr Pinnell, she said she was referring to signing the car over to him as registered keeper, and that their agreement was that he would return it back into her name as registered keeper, and that she remained the owner notwithstanding, and paid for the insurance and petrol. She repeated that she agreed to him being the registered keeper to manage the stress she was under, and as a means of self-preservation to get back onto stable ground, but she did not do so willingly, and she never signed any transfer of ownership to him.
III The findings on the first issue
"In general, I found Ms Adeniji's evidence to be articulate and cogently given. She has been consistent in her evidence that her agreement to make Mr Pinnell the registered keeper was coupled with their verbal agreement that the car would be returned to her should the relationship come to an end. Given the vehicle represented most if not all of the money she had inherited from her late partner, the evidence does not lead me to conclude on a balance of probabilities that she wished to give away her capital interest to Mr Pinnell, even if she was persuaded to allow him the use of it whilst they were together. I find that the contemporary text messages recited above are also congruent with that understanding. Whilst in her police statement she did refer to signing over ownership of the car to him, I am satisfied she used that term loosely as a lay-person to refer to her signing of the DVLA documents to make him the registered keeper. There is no evidence that she signed any other document transferring the ownership of the car to him. Having read his text messages there are clear signs that Mr Pinnell was inclined to use self-pity and threats of self-harm to elicit Ms Adeniji's sympathy. I do consider he was manipulative in his attempts to justify himself in these texts, pointing the finger of blame at her for the ending of the relationship, which he had left. In some contrast in the wake of their broken relationship I note that Ms Adeniji was empathetic in her responses, amongst other things seeking to compliment Mr Pinnell's efforts in engaging with probation to combat his drug problem."
"She agreed when it was put to her that Mr Pinnell had been manipulative, and that she had made him the registered keeper under false promises, however she denied that she had made him the legal owner under false promises, as she repeated he was never the owner. I do not consider the evidence supports the conclusion that Ms Adeniji intended to create a trust whereby the legal interest in the Porsche would pass to Mr Pinnell whilst Ms Adeniji retained a beneficial interest contingent upon their relationship coming to an end. Ms Adeniji was clear that at no point did she agree to pass the legal interest in the Porsche to Mr Pinnell. The fact that it was her money which wholly funded the purchase, and her money which sustained its upkeep on the road thereafter, is also consistent with this conclusion. For the same reasons I do not find that Mr Pinnell's deception as to his true intentions, caused her to pass her legal interest over to him either, even though it did play a part in persuading her to make him the registered keeper."
IV The findings on the second issue
(1) On 4 November 2018, the date of the purchase order, Langdon Hills Motor Co (Basildon) Ltd, the Appellant did not exist as a company. It was incorporated on 6 November 2018. There was another company called Langdon Hills Motor Company Limited (which was the Second Defendant), but this company was replaced as Second Defendant by the company Langdon Hills Motor Co (Basildon) Ltd. The company Langdon Hills Motor Company Limited was dissolved on 20 August 2019. Mr Ujka was unable to explain why an invoice had been made out in the name of the new company before 6 November 2018: see the judgment at para. 27.
(2) The purchase order was made out in the name of Langdon Hills Motor Company. A total price was identified of £48,000 which was said to have been "paid in full". Mr Ujka blamed this on Mr Mileham and suggested that these errors were the reason why he ended the employment of Mr Mileham in April 2019. There was an email at the time in which Mr Mileham had referred to himself as the sole owner of the car, but as the Judge said, he may have been purporting to write as the alter ego of Mr Ujka: see the judgment at paras. 10, 11 and 31;
(3) The invoice included errors in the months of the year (missing out May), it had the '£' symbol after rather than before the sums, nothing appeared in the quantity or unit price columns, the signature (under the "Costumer Sign" column) was in respect of blank amounts paid, and as noted above, it was also against the tenth blank line following the September line. As the Judge said in the judgment at para. 28: "since no sum appears next to each set of initials, the document does not actually confirm the receipt of any monthly payment by the signatory."
(4) The arithmetic in the invoice did not add up in that it was said that the sum of £48,000 was paid, but the sums added up to £50,000 (£12,000 + £9,000 + [£3,000 x 9]. The signature of the customer was given 10 times, which would appear to show ten payments of £3,000, that is £30,000 and not £27,000. Mr Ujka said in his statement that the payments had been made in full by August (that is not September or thereafter), and in another account, PC Foster recorded that the Appellant had stated that only 8 instalments had been paid: see the judgment at para.29;
(5) There was no primary documentary evidence to prove payments for the Porsche, and there was no evidence of bank transfer of funds or company record showing a payment out of company funds. Mr Ujka had stated that he withdrew money from a car washing business, but the Judge said that such information would have been required for the preparation of company accounts: see the judgment at para. 30;
(6) The Judge was of the view that a reasonable precaution would have been to take steps to verify the seller's title by asking to see a purchase receipt or other document verifying his interest: see the judgment at para. 32.
V The law
18. "To the extent that there is a challenge to findings of fact, it also needs to be borne in mind that in order to succeed in an appeal, the appeal court will need to be satisfied that a critical finding was either unsupported by the evidence before the judge or that the decision was one that no reasonable judge could have reached (London Borough of Haringey v Ahmed and Another [2017] EWCA Civ.1861, at [31]). It does not matter that the appeal court considers that it would have reached a different conclusion. It will be particularly rare for a challenge to a primary finding of fact by a trial judge who has seen witnesses give evidence to succeed on appeal. Where an appeal court is asked to reverse findings of fact which are dependent on the credibility of witnesses, it will only do so if it is satisfied that the judge was plainly wrong (Assicurazioni Generali Spa v Arab Insurance Group [2002] EWCA Civ.1642, at [12]).
…
20. An appellate court may, however, interfere if irrelevant material has been taken into account, relevant material has been ignored (unless it would not have made a difference to the outcome), there was a failure to apply the right principles or the decision was one which no reasonable court could have reached."
"83. Appellate courts have been warned repeatedly, including by recent statements at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to the evaluation of those facts and to inferences to be drawn from them. The reasons for this approach are many. They include:
i) The expertise of a trial judge is in determining what facts are relevant to the legal issues to be decided, and what those facts are if they are disputed;
ii) The trial is not a dress rehearsal. It is the first and last night of the show;
iii) Duplication of the trial judge's role on appeal is a disproportionate use of the limited resources of an appellate court, and will seldom lead to a different outcome in an individual case;
iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping;
v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence);
vi) Thus, even if it were possible to duplicate the role of the trial judge, it cannot in practice be done."
(See Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at [114].)
....
"85. In essence the finding of fact must be plainly wrong if it is to be overturned. A simple distillation of the circumstances in which appellate interference may be justified, so far as material for present purposes, can be set out uncontroversially as follows:
i) Where the trial judge fundamentally misunderstood the issue or the evidence, plainly failed to take evidence in account, or arrived at a conclusion which the evidence could not on any view support;
ii) Where the finding is infected by some identifiable error, such as a material error of law;
iii) Where the finding lies outside the bounds within which reasonable disagreement is possible.
86. An evaluation of the facts is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and appellate courts should approach them in a similar way. The appeal court does not carry out a balancing task afresh but must ask whether the decision of the judge was wrong by reason of some identifiable flaw in the trial judge's treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion."
"Accordingly, for all practical purposes, in order to appeal successfully against the findings of fact made by a judge at first instance, an appellant has to show that there was no evidence to support the findings made, or there was a demonstrable misunderstanding of, or failure to consider, relevant evidence. If all the relevant evidence was considered by the judge then, even if the appellate court might have come to a different conclusion, an appeal against the trial judge's findings of fact will fail. That is why an appeal against a trial judge's findings of fact is such a high hurdle for an appellant to overcome."
VI Grounds of Appeal
(a) Grounds 1-3
(1) The fact that the Judge heard the respondent give evidence, which is not an advantage available to the appellate court;
(2) The fact that evidently, the respondent's evidence was the subject of detailed cross-examination from Counsel;
(3) It is apparent from the judgment that the evidence of the respondent was the subject of careful scrutiny by the Judge;
(4) The Judge found her evidence to be in general not just articulate but cogently given and consistent.
(1) It was stated consistently in the witness statement to the Police in December 2018, in the statement for the court case in April 2020 and in cross-examination;
(2) It was cogent because it reflected a desire to hold on to the value of the Porsche given that it represented at least most of her inheritance;
(3) The Judge was clearly impressed by the evidence having heard it being tested.
"I do not see how a registration document, which on its face states that it records the name of the registered keeper and that the registered keeper is not necessarily the legal owner can possibly be said to be a document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented. It seems to me to do no more than specify who is the 'keeper' of the vehicle for purposes of a liability to pay the road fund tax and other such purposes: see Joblin v Watkins and Roseveare (Motors) Ltd [1949] 1 All ER 47 and Central Newbury Car Auctions Ltd v Unity Finance Ltd [1957] 1 QB 371 . I do of course accept that this is a document which a prudent buyer will require to be produced and delivered with the motor car, but it is the absence of the document which casts doubt upon the seller's authority. Its presence proves, or tends to prove, only the identity of the statutory 'keeper'."
(b) Conclusions on grounds 1-3
(c) Grounds 4-11
VII The effect of the new evidence
"I have reached the conclusion that the fresh material sought to be introduced on the appeal is, in all the circumstances, credible as prima facie evidence that, contrary to the evidence given by Mr Khokher at the trial, no valid counter-notice was served. Permission should be given for it to be adduced on the appeal. It will be for the court that hears the appeal to decide what impact the evidence has on the issue and whether it is such that the issue on the counter-notice should be remitted to the county court to be re-tried."
" When I had the money I called [the respondent] and told her that I had sold the car and I had the money and asked her if she wanted any of it. She said "no I don't want anything from you."
(1) There is no new documentary evidence to support the evidence of Mr Pinnell which he has exhibited to his statement. By contrast, the statement of the Respondent of 23 December 2018 provided to the police was proximate in time to the events in question.
(2) The evidence of Mr Pinnell was only adduced in February 2021 (it was said that he was not available at the time of trial because he was serving a prison sentence). This was despite the fact that he had earlier been cooperating with the Appellant in respect of the recovery of the Porsche from one of its stays in a police pound. It was only adduced after the trial and in the light of the result of the trial. Such a long delay impacts on any weight that the statement might otherwise have had.
(3) Despite the features about the transaction which are the subject of detailed questions in the judgment, Mr Pinnell has failed to address any of these points, and in particular to provide any documentary evidence regarding the cash payments of £3,000 per month. He has not referred to the payment of £9,000 up front. He has not referred to the ten signatures on the invoice. He has been silent about how or when he received money, and, if it were the case, how he received such large sums. It is to be noted on this account, he has apparently handed over the car without any security despite on his case being owed at least 9 instalments of £3,000 per month. In the context of a statement designed to elicit evidence to support the fact that the transaction occurred and to deal with the shortcomings found by the Judge, the statement is particularly unsatisfactory.
(4) In December 2018, the respondent made a complaint to the police about Mr Pinnell and in the same month reported that the Porsche was stolen. It is an incredible suggestion against this background that Mr Pinnell was in touch with the Respondent and was offering to pay her the proceeds of sale or any part. This evidence appears fanciful and provides a perspective about the remainder of his evidence.
(1) The fact that the Appellant was not formed until 6 November 2018, and the transaction occurred at a time when the predecessor company was still in existence.
(2) There was no further evidence to prove that the payments actually were made, whether evidence from the payer the Appellant or from Mr Pinnell the supposed payee.
(3) There was no satisfactory evidence to address all of the documentary details.
(4) Mr Mileham's evidence was very slender, addressing a little about the transaction and the subject of the eleventh ground.
(5) Mr Mileham was an employee who appears to have been removed by the Appellant in April 2019.
VIII Disposal