Sahota v Sohi & Ors

Where a party seeks to rescind a deed for misrepresentation, that party bears the burden of proving the misrepresentation. A trial judge’s credibility-based findings of fact are not ordinarily vulnerable on appeal merely because documentary evidence is absent, particularly where the judge has explained why evidence was rejected. A finding that negotiations occurred may provide background but is not essential if rejection of the alleged misrepresentation independently disposes of the case. An ambiguous account order may require clarification by the trial judge, but does not itself establish a viable appeal where the underlying findings remain binding.

The defendants sought permission to appeal out of time against parts of a judgment and order made by His Honour Judge Rich QC in the Chancery Division on 15 March 2002. The underlying dispute concerned an alleged Hayes partnership and the claimant’s retirement from an Addlestone partnership. The judge ordered an account and ordered payment of £300,000 under a deed dated 1 April 1994.

The defendants argued that the deed had been procured by misrepresentation and that the account order was ambiguous. The central questions were whether the judge’s factual and credibility findings disclosed a proper basis for appellate interference and whether the wording of the account order justified permission to appeal.

Lord Justice Aldous gave the judgment of the court. Lord Justice Jonathan Parker agreed.

1. Permission refused. The defendants had no real prospect of successfully challenging either the order for payment under the deed or the account order.
2. The deed established an obligation to pay £300,000. Since the defendants relied on misrepresentation to obtain rescission, they bore the burden of proving that misrepresentation. The trial judge rejected the first defendant’s evidence as dishonest and rejected the corroborative evidence of the other defendants. The evidence therefore did not discharge the burden.
3. The judge’s conclusion was a finding of fact based principally on his assessment of witness credibility. He had seen two defendants give evidence and was entitled to prefer the claimant’s evidence while treating parts of it as embellished. The absence of documentary evidence did not justify appellate interference. The finding that negotiations had occurred was relevant background, but the rejection of the alleged misrepresentation independently disposed of the defence.
4. The wording directing that the account be taken in accordance with the declarations and the judgment might cause practical difficulty. That possibility did not create a ground of appeal. The Master remained bound by the judge’s conclusions, and any genuine ambiguity could be referred back to the judge for resolution.

The application for permission to appeal out of time was refused.

1. Court of Appeal (Civil Division): On 30 July 2002, refused permission to appeal out of time. [2002] EWCA Civ 1239
2. High Court of Justice, Chancery Division: His Honour Judge Rich QC made judgment and order on 15 March 2002, ordering an account and payment of £300,000 under the deed.