RSS Feed

Tag Archives: seriously oh my god

Extending an olive branch

 

 

I like to occasionally share with you the peculiar world of big money divorce cases, because when you are used to domestic violence, crack cocaine, scabies, gas-lighting and smearing (I hasten to add that is at work, not my personal life) hearing about people argue about how big a yacht they need is light relief.

 

The case name on this one stood out to me when I saw it on Bailii in the Family Court section of newly reported cases. See if you can guess why…

 

Christoforou v Christoforou (Alleged Removal of Trees from the Applicant’s land) [2020] EWHC 43 (Fam) (14 January 2020)

http://www.bailii.org/ew/cases/EWHC/Fam/2020/43.html

 

That’s been wrongly filed, I say to myself, says I. But no, it is in the right place. And it genuinely is a fact finding hearing as to whether or not a husband has cut down olive trees from his ex-wife’s land.

As part of the financial settlement in a sixty million pound divorce, some land was transferred from the husband to the ex-wife. In those proceedings, the Court had this to say about the husband’s honesty

 

9.In this context, I bear well in mind, as I must, that findings of previous attempts to mislead the court, or of outright lies found to have been told to the court, are not in themselves evidence that the respondent is necessarily lying to the court in the context of “the tree issue”. In his earlier judgment, reported as Christoforou v Christoforou [2016] EWHC 2988 (Fam), Moylan J made a number of clear findings against the respondent. He found, in terms, that he was a dishonest and unreliable witness. In paragraph 26, his Lordship said this:

 

 

 

“When assessing his evidence I have, of course, considered the extent to which it is based, for example, on faulty or mistaken recollection or the absence of documents. I have come to the clear conclusion that his evidence, when dealing with contentious issues, was largely based on an indifference to the truth and was motivated by what he seeks to achieve in these proceedings rather than on his true recollection of events. I am satisfied, from the way in which significant elements of the husband’s factual case have mutated during the course of these proceedings and from the way in which he gave his evidence, that this has to a significant extent been deliberate.”

 

The wife’s allegation was that when she got to her newly recovered land, fifty olive trees had been removed. In a huge coincidence, a piece of land that the husband owned acquired about fifty new olive trees. This is a head-scratcher, no?

 

I’m delighted to see that the wife had spent £500,000 litigating this issue (I really hope that means the recovery of the land, and not just the trees, but who knows?)

 

 

  1. The matter comes back before me today (i.e. 6 March 2019). The respondent continues to make no admissions in relation to liability notwithstanding that these matters have absorbed several days of court time and an enormous amount of the lawyers’ time with the inevitable expense which that has entailed. The applicant’s costs alone are now approaching c. £500,000 on this one issue alone.

 

I honestly think that’s just the trees.

 

The litigation included :-

 

Drone evidence!

Allegations that the drone evidence was tampered with.

A forensic expert to consider whether the SD card from the drone had been tampered with.

Tree experts!

The husband saying that he had bought the olive trees from someone else (that someone saying ‘yes, I sold him a bunch of very small and new olive trees, but not THESE ones)

The husband asserting that there were in fact NO olive trees on the wife’s land, but merely some straggly old trees which were just used as ‘windbreakers’ and were cleared.

The ghost of George Washington giving character evidence via Ouija board

 

(One of those things is not true. But only one of them)

 

My conclusions and findings

41.Having carefully reviewed all the evidence which is before the court, I am entirely satisfied that, on the balance of probabilities, the respondent was responsible for the removal of the applicant’s trees prior to the formal transfer to her of the plots of land on which they previously stood. If he did not physically assist in the removal of the trees, I am satisfied that he gave instructions to a team of contractors to carry out the removal. It is abundantly clear from the terms of Mr Cocking’s report that this operation would have involved a substantial number of man hours and, most probably, a significant amount of heavy lifting equipment to remove and transport the trees. It was, in my judgment, a substantial operation which was motivated by a desire not only to preserve what he could from land which he had fought tooth and nail to preserve in the context of the ongoing matrimonial proceedings: it was also, as I find, an act of pure spite against the applicant.

 

 

42.Whilst the respondent admitted removing eight “potted” palm trees, he has maintained throughout that he did not remove any of the missing olive trees as the applicant was alleging. In support of that ‘defence’ he has sought to construct an elaborate narrative into which he has woven various ‘explanations’ as to why her allegations are unlikely to be true. He has declined to submit himself for cross-examination in relation to his narrative, aspects of which are patently untrue in the light of the unchallenged expert evidence. I do not accept that the CAPO documents assist me at all in relation to the tree issue. These were provided to the SJE and found no traction whatsoever in Mr Cocking’s report. Further the statement from Mr Theodoridis dated 21 November 2018 confirming his conversation with Mr Cocking confirms specifically that the (transplanted) trees shown in situ on the respondent’s retained land identified in various photographs were not sold by his nursery business to the respondent. The statement confirms precisely what was sold to him (i.e. 48 small ornamental olive trees which were not trees designed for the commercial production of olives and none more than 6 years old at the most). The statement from Mr Theodoridis contains a statement of truth and has never been the subject of formal challenge by the respondent. I can only conclude therefore that this aspect of the respondent’s narrative account is a pure fabrication. I know not whether he has at any stage planted anywhere on his retained land elsewhere in Cyprus the trees which he describes in paragraph 18 of his April 2018 statement but I am confident on the basis of the undisputed expert evidence that these were not the trees observed by Mr Cocking during his site visit. Thus, I reject in its entirety the detailed description he gave at paragraphs 18 to 20 of how his workmen planted the trees supplied by the nursery over the course of five days and his account of having spoken to those workmen when some of the trees died. I reject entirely his denial of having removed, or caused to be removed, olive trees from the farm and I find his challenge to the authenticity of the drone footage to be part and parcel of the narrative he was constructing in defence of his former wife’s allegations. He appears to accept in paragraph 29 of his statement that whatever was removed from the land was removed by his work force on his instruction but he then attempts to pass this off as the ‘cutting back of some wind breakers’. In this context, I remind myself about what I saw and observed when I watched the drone footage prior to the instruction of either of the joint experts in this case. There is no doubt in my mind that what I was observing in the earlier footage, taken prior to the removal of the trees in question, was an established row of mature olive trees. It was only the indignation expressed by the respondent through his counsel on that occasion and the strength of his denial of involvement which persuaded me to allow him to proceed with the instruction of a single joint expert in relation to the authenticity of the drone footage and the instruction of Mr Cocking. It follows that I reject the respondent’s account at paragraph 65 of his statement in relation to why the drone footage is unlikely to be genuine just as I reject his attempt to pass off what was removed as a ‘row of wind breakers’ if that was indeed the thrust of his case.

 

 

43.Further, I reject the respondent’s account in paragraph 70 of his statement that, on receiving the initial allegation in November 2017 that he had removed the trees, he had a conversation with a local nursery about the impossibility of such an exercise. If I am wrong and any such conversation took place, it was likely to have been part and parcel of the false narrative which he was seeking to construct for the purposes of his defence to this court. I reject the evidence of Ms Theophilou as assisting one way or the other on the principal issue of the respondent’s liability for the removal of the trees. She had been asked to express a view about the likelihood of mature trees surviving the transplantation process and, as is now apparent, some of the re-transplanted trees have not survived the restitution exercise which the respondent agreed to put in place following receipt of both experts’ reports.

 

 

44.I am driven to conclude, as I find to be implicit from the respondent’s own actions and the instructions given to his legal representatives since receipt of those expert reports, that his written evidence to this court contains a number of highly misleading and untrue representations as to his own involvement in the removal of the trees from the applicant’s land. Further, I find that at the time he made those representations, he knew them to be untrue. In this context, I agree with the earlier findings made by Moylan J (now Lord Justice Moylan) that the respondent cannot be considered a reliable witness in terms of the truth of several aspects of his evidence as presented to the English court in the context of this long-running matrimonial litigation and its implementation

 

Of course, whilst all of this is mildly amusing and these are very rich people involved in a process of gradually moving funds from their own bank accounts into the bank accounts of their legal representatives  [which I am honour-bound as a lawyer to consider a good and proper thing to do and all clients should do more of it], I also remind myself that this nonsense has tied up a family High Court Judge for a considerable period of time whilst other cases wait, and that to do so involves paying the Court a very meagre fee. About time that the Government looked at making big money divorce cases pay a Court fee commensurate with the valuable and scarce public resource they are taking up.   (My quick look at Court fee schedule suggests one of these parties had to pay £255 court fee for a disputed ancillary relief application)

Figments of imagination (so many figments)

 

When a High Court Judge opens their judgment with a line like this:-

 

The facts giving rise to the present application are so extraordinary that they could have come from one of A.P.Herbert’s “Misleading Cases”.

 

Then I am pretty much Renee Zellweger in Jerry Maguire – “you had me at hello”

 

A .P. Herbert is my inspiration for legal writing, and his Misleading Cases one of my favourite books – I lost my copy in the RCJ last year and I still feel the ache of its absence when the weather is cold…

 

Sometimes, when you see a Judge criticise a person, you have a degree of sympathy – anyone can make a mistake, anyone can make a poor decision, anyone can have a bad day. Sometimes, you think “there but for the grace of God”

 

Not this time.

 

Islamic Investment Company of the Gulf Bahamas Ltd v Symphony Gems Ltd 2014

 

http://www.bailii.org/ew/cases/EWHC/Comm/2014/3777.html

 

is not, as you will have gathered from that lofty case name, a family case.

 

So you don’t HAVE to read it – it tells you nothing illuminating about family law. But if you make the time, it will pay off, I assure you.

 

In this case, a Mr Mehtra (RM) had found himself in tricky litigation in the commercial Courts. It involves a debt of £10 million, which the Court previously ordered he should pay, and now interest on top of £4 million.

 

It is, pretty self-evidently, a tricky case.

 

It has been made more tricky for RM because for about three years, his lawyer Mr Benson, formerly a partner at Byrne and Partners (now not) had been running the litigation in a peculiar way.

 

By peculiar, I mean making things up. And by making things up, I don’t mean “Oh, Mr Mehtra, I was just about to ring you, I’m so glad you’ve called”.

 

Nor do I mean ” Have you lost weight? Seriously, have you been working out or something?”

 

I mean, fabricating every single thing that he told his client, including documentary evidence to support that.

 

I’ll quickly make it plain that the Court were totally satisfied that Byrne and Partners knew nothing about this and were not involved in any way.

 

Also that the Court had not heard from Mr Benson, and that it is (theoretically) possible that he has a good explanation for it. I can’t for the life of me imagine what that might be, but there could be one. If he instructs Perry Mason, Atticus Finch, Clarence Darrow, Mrs Jo Mills, Edward Marshall Hall, Kavanagh QC, Olivia Pope, Phoenix Wright, Maxine Peake out of Silk and My Cousin Vinny they might jointly come up with one on his behalf, but I doubt it.

 

By way of flavour (and there’s loads and loads of this, I’m just pulling out some examples). Remember in relation to all of them that RM had instructed Mr Benson to make an application to Court, but that at no point did Mr Benson do anything about it in the real world, he instead just made up a detailed and plausible account of how that was going.

 

So he was :-

 

Telling his client that a silk had been briefed for him (nope) and then that the silk had been changed (well, yes, but only changing one imaginary briefing for another) – in all, four silks were dragged into this case on a purely imaginary basis.

 

Telling his client that the silk was dragging his heels and that’s why things were taking so long (well, no, because he’d never actually told the silk anything about the case or asked the silk to do anything)

 

Sending the client letters to the High Court chasing up about hearings (having never sent any application to the High Court, he obviously didn’t send letters chasing it up)

 

Sending his client fabricated orders from the High Court, culminating in even making up Judges who were supposedly making these orders

 

Sending his client a skeleton argument prepared by his silk (nope, because there was no silk instructed. He did this TWICE. )

 

Arranging a telephone conference between his client, himself and a ‘senior partner’ at his firm to discuss the case (the ‘senior partner’ was not anyone connected with the firm, but someone impersonating him)

 

Sending his client fake emails from the other side

 

Sending his client a draft letter of complaint to a High Court Judge about the delay in the case (obviously never sent, because the High Court had never been asked to do anything, so there was nothing to delay)

 

Sending his client a fake judgment in his favour from the Court of Appeal – something that must have taken some effort, because as the Court observed “It runs to 6 pages and comprises 37 plausibly reasoned paragraphs”.   The original judgment was set aside and sent back for re-hearing.

 

As the Court also point out, Hence by this point Mr Benson had constructed a fiction in which RM was effectively back to square one

 

Visiting his client in Antwerp to take instructions for an affidavit which was never filed, because the proceedings were entirely imaginary.

 

Sending another judgment from the High Court following the Court of Appeal’s decision – again, entirely made up

 

Sending letters explaining that yet another silk had attended Court on RM’s behalf to lobby the Senior Presiding Judge about the dreadful delays in the case.

 

Sending emails from High Court Judges clerks about forthcoming hearings and orders

 

And yet another High Court judgment

 

And yet another appeal – which RM won (hooray, only it never happened)

 

 

And then this is where it all unravelled – as RM started to liaise with the Court about getting a typed version of the order and judgment, and the Court rightly said words to the effect of “whatchoo talkin’ bout, Willis?”

 

https://www.youtube.com/watch?v=N0-aQPbzCZE

 

 

RM instructed another solicitor, one who conducted his practice in a world where the sky is blue, and that solicitor made enquiries of the four Silks who had apparently acted on RM’s behalf, none of whom had ever heard of him. At which point, calls were made to the police and to the Solicitors Regulation Authority.

 

You might be thinking that this was all some sort of financial con, but it appears not.

 

Firstly, RM had only paid £25,000 to the firm – that sounds like a lot of money to you and I, but for commercial litigation for 3 years in the High Court and Court of Appeal with four silks, it is very small beer indeed. There is no way that the huge amount of work that was being put into this fabrication was in order to trouser £25,000.   Bear in mind Mr Benson was faking not only reams and reams of correspondence, but submissions that were from leading counsel, judgments and appeal court judgments. It would have been far less work to actually just issue the application.

 

The deception practised by Mr Benson over a period of more than 3 years, as summarised above, is rightly described as breathtaking. Until the Police and the SRA have concluded their investigations much remains unclear, including his motives. What is clear, however, is that his actions will have had a significant effect on RM (and his family) who has been strung along for more than 3 years in attempts to challenge the ACO and apparent subsequent court orders and in efforts to demonstrate that he has complied with the order of Master Miller of 17 January 2007. Throughout this time RM has been effectively been prevented from entering this jurisdiction causing obvious distress to himself, his partner and his children (who live in the UK).

 

 

The motives for Mr Benson’s actions are presently unclear. The only payment made on behalf of RM during this period is the payment of £25,000 made to Byrne & Partners pursuant to the supposed consent order dated 4 July 2011. This has now been returned. None of the other payments called for in purported court orders were made. There is some evidence that other payments may have been made to Byrne & Partners but, if so, not by or on behalf of RM. There is also some evidence of a bitter family feud and of parties who might have an interest in ensuring that RM failed in all aspects of the English court litigation. However, at present this is all speculation. Matters will no doubt become clearer as a result of the Metropolitan Police and SRA investigations.

 

 

My best guess – there was a small lie – instead of issuing the application, he sat on it, and instead of admitting that when the client asked how it was going, he lied. And then rather than progressing things, he continued to lie. And then the lies just snowballed to a point where they were utterly utterly out of control.

 

 

I hope so (because the other suggestion, that he had been paid to nobble his own client is just too dark and awful to bear thinking about)

 

This is terrible, terrible stuff. It is hard to think of an example of someone doing a worse job for their client. Lionel Hutz, attorney at law would look askance at this.

 

I feel for Mr Benson on a human level – you don’t get to be a partner at a commercial law firm dealing with multi-million pound claims without being smart, and he has clearly set fire to his career and probably stands to lose everything without any apparent gain. And throughout those three years, he was probably terrified every time he had a day off or was ill, in case someone else from the firm dealt with Mr Mehtra and the whole thing unravelled.

 

You know when you have those nightmares that someone official comes up to you and tells you that there’s been a mistake and you never really passed O Level/GCSE English after all and that as a result all of your other qualifications are flawed? Imagine that level of stress and anxiety, but for real, every day for three years.

 

 

{Before you go to bed tonight, just say to yourself “I wasn’t the lawyer in that case, and I DO really have an O Level in English”, just to avoid nightmares}