Fen & Ors v D'cruz & Ors

A claim based on holding out succeeds where the evidence, viewed as a whole, establishes that a solicitor represented another person as a fellow solicitor and partner. The court may rely on consistent witness evidence supported by surrounding circumstances and documents, despite discrepancies on peripheral matters. In allegations of dishonesty against a solicitor, the court should recognise the inherent improbability of the allegation and require cogent evidence, but this does not impose a separate legal standard of proof. Fraud need not be pleaded where the factual allegations clearly identify the alleged dishonesty and the defendant suffers no prejudice.

Three Malaysian claimants came to the United Kingdom intending to study. They alleged that they paid £23,750 to Jared D'Cruz for immigration work after he was introduced to them as a solicitor. They further alleged that Boon Low held D'Cruz out as a partner in Whitehead and Low, the third defendant.

D'Cruz disappeared and summary judgment had already been entered against him. Low denied being instructed, receiving money, or representing D'Cruz as a partner. The central issue was whether the claimants had proved that Low held out D'Cruz as a fellow solicitor and partner at or about the December 2004 meeting.

1. Judgment for the claimants. The court found that the claimants had proved the alleged holding out.
2. The case depended principally on credibility. The court considered the evidence of the second and third claimants, the documentary evidence, the letters of 18 January 2005, the computer evidence, and the surrounding circumstances. Their discrepancies concerning dates, amounts, correspondence and peripheral matters were attributable to confusion, language difficulties or imperfect instructions, and did not undermine their evidence on the central issue.
3. The allegation concerned dishonesty by a solicitor. The court therefore began from the inherent improbability of such conduct and looked for cogent evidence. That approach did not prevent a finding of dishonesty where the evidence as a whole was compelling.
4. The claimants’ account was supported by the short letters of 18 January, the envelope, their subsequent enquiries about the applications, and the implausibility of Low’s explanation of the long-form letters and his dealings with D'Cruz. The evidence also supported the conclusion that Low knew, or could not credibly have been unaware, that the claimants had paid D'Cruz substantial sums.
5. The court drew no adverse inference from the failure to call the first claimant or Mr Lim. It also treated the computer evidence as providing limited support because it showed editing but could not establish who had edited the documents.
6. Although fraud had not been pleaded, the factual allegations clearly identified the alleged dishonesty. The defendants had been able to meet the case and suffered no prejudice. The absence of a specific fraud pleading therefore did not limit the court’s approach.