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Attacking dishonest evidence: Reeves v Drew & Ors [2022] EWHC 159 (Ch)

Preamble

Reeves is a remarkable case.  In the probate context it is one of the most valuable cases there has been in this jurisdiction.  More widely, the decision is notable for the serious findings of dishonesty made against a number of witnesses, including an officer of the court.

At trial, Maurice Holmes and Hamish Fraser acted for the Second Defendant (“Bill”), led by Constance McDonnell QC of Serle Court.  Maurice also acted for the Fourth Defendant (“Ryan”), led by Clifford Darton QC of Selborne Chambers.  All counsel for Bill and Ryan (“the Defendants”) were instructed by Mr Mayus Karia and Mr Raj Mehta of LLP Solicitors.

The judgment can be found here and on BAILII by the following link: https://www.bailii.org/ew/cases/EWHC/Ch/2022/159.html.

Background

The proceedings concerned the (in)validity of a contested will (“the 2014 will”).  By her claim, the Claimant (or “Louise”) propounded the 2014 will under which she stood to inherit 80% of her father’s residuary estate (estimated to be worth approximately £100m), with the remaining 20% going to her sister, Lisa (the Third Defendant).

Under the deceased’s previous will (the validity of which was common ground), 80% of his residuary estate was to be divided equally between three of his children, namely Bill, Louise and Lisa, with the remaining 20% divided equally between two grandchildren, namely Ryan and Ria (the Fifth Defendant).

In evidential terms, however, the proceedings perhaps more closely resembled a commercial fraud claim rather than traditional chancery.  In that respect there could have been few judges better placed to hear the trial than Michael Green J, given his substantial experience of commercial fraud cases from his own practice at the Bar.

In his judgment, Michael Green J commented [10]:

“The remarkable thing about this case is the number of witnesses who are said to be lying on oath: the Claimant accused nearly all of Bill’s witnesses of lying, particularly in what they said about her and what they said they had seen her do; and the Defendants mounted a full-scale attack on the honesty of the Claimant, Mr Drew and Mr Curnock, along with all the Claimant’s evidence on the deceased’s literacy.”

It is principally for this reason that Maurice was instructed – given his experience of fraud in the context of commercial, insurance and sport cases.  Hamish is also interested in developing his growing practice in cases involving fraud.

Decision

Mr Justice Michael Green pronounced against the force and validity of the 2014 will, on the basis that it had not been executed with the knowledge and approval of the deceased.

This conclusion was reached on account of numerous findings that dishonest evidence had been given by witnesses including most significantly the following three: (a) the Claimant; (b) Mr Daniel Curnock, the foremost solicitor involved in the preparation of the 2014 will; and (c) Mr Clayton Drew, executor of the 2014 will and administrator of the estate pending suit.

Michael Green J concluded that, as to the Claimant’s character, she was capable of being [429]: “ruthless and manipulative, using her intelligence and willingness to take risks to act deviously for her own personal interests.”  In some instances the Claimant’s actions were orchestrated [39]: “with the willing connivance of Mr Drew and Mr Curnock”.

Although fraud was not pleaded (since it was not a necessary part of the Defendants’ case), Michael Green J expressly observed that his findings carried [348]:

“the strong implication that she engineered an extraordinary fraud on her father by getting him to execute the 2014 will without knowing its terms or thinking they were something else.”

Michael Green J commented that the Louise’s intended prize was so great that she was prepared to take the risk of being found out by the deceased in relation to the 2014 will [409].  In respect of Louise’s evidence, it was concluded that [41]: “All of what she said is tainted by her objective in this litigation.”

It was found that Mr Curnock had supported Louise’s claim by giving untruthful evidence before the court [408] and that his preparation of the 2014 will was [407]: “not merely incompetent; it was reckless and quite possibly dishonest.”  Michael Green J observed that [408]: “There could be serious consequences for him as a result of my findings.”

Finally, in respect of Mr Drew it was also found that his evidence was also unreliable and that he [65]: “was prepared to say anything to support the Claimant’s position.”

Attacking dishonest evidence – documents are key

The paramount importance of contemporaneous documents in undermining witness evidence is well known to all litigators.  Even where dishonesty is not alleged, in reaching factual findings a court is likely to place an emphasis on documentary evidence (as well as known or probable facts) over witness recollection, particularly in commercial cases.  The powerful guidance given by Leggatt J (as he then was) in Gestmin SGPS SA v Credit Suisse (UK) Ltd & Anor [2013] EWHC 3560 (Comm) at [15]-[22] as to the fallibility of human memory is now in part enshrined under the CPR, in the Appendix to PD 57AC at paragraph 1.3.

The focus of this article is on three categories of documents that were pursued in Reeves to undermine the honesty of key witnesses.  All three categories of documents ultimately had to be obtained via applications to the court.

If these applications (which were not without risk) had not been pursued, the Defendants would have been significantly less well armed at trial in terms of contemporaneous documents with which to undermine the Claimant’s case, particularly in cross-examination.

These illustrative examples underscore the importance to litigators of: (a) being alive to what probative evidence might be expected to exist but which has not been disclosed; and (b) giving appropriate advice as to the justification for pursuing such evidence, if necessary by way of an application (which will almost always involve a risk of cost to the client).

Procedure – obtaining undisclosed documents

The most common procedural mechanism for obtaining undisclosed relevant documents after proceedings have been issued is via an application for specific disclosure or inspection pursuant to CPR r.31.12.

Under the Disclosure Pilot Scheme, the approach under CPR r.31.12 is mirrored save that the DPS provides two separate routes:

  • PD 51U.17 (failure adequately to comply with order for Extended Disclosure; and
  • PD 51U.18 (varying an order for Extended Disclosure / making an additional order for disclosure of specific documents).

Where the respondent to the application is not a party to the proceedings (as was the case on multiple occasions in Reeves), the application must be made pursuant to CPR r.31.17 or, in some instances, under the Norwich Pharmacal jurisdiction.

(i) Mobile phone records

In Reeves, it was readily apparent that the Claimant had given less than complete disclosure.  It had been the Claimant’s case that she had no prior existing relationship with Mr Curnock and had only met him after the execution of the 2014 will.  However, email chains had been disclosed that appeared to show a familiarity between them and which in some instances were clearly incomplete – as was observed in the judgment at [191].

As is often the case in cases involving fraud, it was therefore necessary to seek to evidence the extent of certain relevant dealings by means other than the documents voluntarily disclosed.

One route pursued by the Defendants was to seek disclosure of mobile phone records evidencing any contact between her mobile and that of Mr Curnock prior to the execution of the 2014 will.  The justification for an application was compounded by the Claimant’s conspicuous refusal to the request for voluntary disclosure.  If it were true that Louise had no dealings with Mr Curnock over the period in question, the records could only have served to support her case.  The application for specific disclosure was consequently made, which was (somewhat boldly) opposed by the Claimant.

The court granted the application and in due course the records from the Claimant’s mobile phone provider (Vodafone) demonstrated that she had sent some 38 text messages, and made numerous short phone calls, to the personal mobile of Mr Curnock over a period prior to and including the date of execution of the 2014 will.  This included 17 text messages and 3 calls on a date on which a meeting was held between Mr Curnock and the deceased (but which the Claimant maintained she had not attended), and 11 text messages to Mr Curnock on the date of the execution itself.

The Vodafone records were cited at numerous instances in the judgment – e.g. [244], [265], [386] – and exemplify the importance of ensuring that all relevant records are before the court including, if necessary, by making an application for specific disclosure.  In fraud cases it may also be necessary to go further by investigating and obtaining prior disclosure of multiple different phone numbers used by the individual(s) in question.

(ii) Solicitors’ notebooks

Despite repeated assurances that all relevant documents had been disclosed, at a late stage in the proceedings it became apparent that Mr Curnock had maintained handwritten file notes in notebooks (akin to counsel’s blue books), and one extract that had not previously been provided was disclosed.

However, the Defendants (correctly) considered that the solicitors involved in reviewing Mr Curnock’s notebooks would be unlikely to have appreciated the potential significance of all the evidence they contained.

An application for specific disclosure was made against the executor in respect of documents held on the deceased’s behalf by Mr Curnock’s (then) firm and a related application for non-party disclosure was made against Mr Curnock personally.  Again, the Claimant took a somewhat bold approach – this time by declining to participate in, or even attend, the application hearing.

The Defendants were granted permission to nominate two representatives (junior counsel and one instructing solicitor) to attend the offices of Mr Curnock’s (then) firm in order to inspect the notebooks in person, upon providing undertakings to keep confidential all information that was not relevant to the proceedings.

As a result, the Defendants obtained further extracts from Mr Curnock’s notebooks that evidenced his working practices (relevant to his involvement in the preparation of the 2014 will) and which recorded further information that appeared to conflict with his witness evidence.

For example, an entry from 1 February 2013 (some 11 months before the execution of the 2014 will) appeared to record the purchase price for a property transaction involving the Claimant (as purchaser albeit purchasing in her mother’s name), in which Mr Curnock had denied having any involvement.  The seemingly innocuous entry: “£70,000 + rent H1 send to [redacted] account” was overlooked by the solicitors conducting the disclosure exercise on behalf of Mr Curnock (perhaps understandably so given that they had no wider involvement in the proceedings) but transpired to be significant, since Mr Curnock had no explanation for why he had written the purchase price for that property in his notebook when he had allegedly had no involvement with that transaction [72].

It is also notable that Mr Curnock’s attempted alibi for why he could not have attended the property transaction in question was undermined by reference to photographs from his Facebook and his medical records [72].

(iii) Property transactions

In Reeves, the Defendants sought to establish that the Claimant and Mr Curnock had an established relationship prior to the execution of the 2014 will.

Significantly, though, the Defendants also identified in evidence a series of property transactions in which the Claimant (or a person acting as representative of the Claimant) was the purchaser and where Mr Curnock’s (then) firm acted for the vendor – typically the estate of a deceased where the firm had also acted in seeking the grant of probate.

The Defendants applied for disclosure of the conveyancing file for the properties in question.  Despite Mr Curnock’s witness evidence which sought to distance himself from the transactions in question, the records obtained were found to show that this was inaccurate.  In one instance the conveyancing file appeared to evidence that Mr Curnock had been closely involved, for example in obtaining property valuations and steering executors towards a particular valuation.  Mr Curnock had also arranged for the property in question to be insured on a rebuild basis for the value of £350,000, where it was subsequently sold to the Claimant at £175,000 [300].

Conclusion

There are numerous aspects to the judgment in Reeves that are likely to be of interest to litigators.  One is the extent of the findings of dishonesty made against the Claimant and two of her main witnesses, including an officer of the court.  A significant factor in obtaining those findings was the preparation involved, long before trial, in pursuing every available avenue to ensure that all relevant evidence was before the court.

Maurice Holmes’ profile can be found here.

Hamish Fraser’s profile can be found here.



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