Caws & Ors v Boyce & Ors

Serious allegations of duress and fraud remain subject to the ordinary civil standard of proof. However, the more inherently improbable and serious the alleged events, the more cogent the evidence required before they can be established on the balance of probabilities. The court must assess the evidence as a whole, including contemporary documents and the parties’ conduct. A claimant’s account may be rejected where it is inconsistent with reliable contemporaneous records and surrounding circumstances. A transfer of property will not be set aside for duress where the evidence shows that it was made voluntarily, as part of an organised transaction, and that the transferor received the sale proceeds.

The claimants alleged that Jacqueline Caws had been forced by threats of violence, communicated by Barry Boyce and Gary MacNeill, to transfer a plot of land to Mr Boyce for no consideration. They alleged that the plot was then transferred to Nicola Hoare and sold, and that a £45,000 banker’s draft had also been obtained from Shirley Caws by duress. An alternative claim alleged fraudulent misrepresentation.

The action was tried at first instance after earlier interlocutory proceedings, including summary judgment in favour of the third defendant. The central issues were whether the alleged threats existed, whether they caused the transfers and payment, and whether the claimants had established any basis for setting aside the transactions.

1. The action was dismissed against the first, second and fourth defendants. The third defendant had already obtained summary judgment in March 2004 and had taken no further part.
2. The ordinary civil standard of proof applied. Nevertheless, allegations of grave criminal conduct and threats of death required truly cogent evidence. Applying the approach stated in In re H (Minors) [1996] AC 563, the court held that the more improbable the alleged event, the stronger the evidence required before it could be established on the balance of probabilities.
3. The claimants’ evidence was unreliable and materially inconsistent with the contemporary conveyancing files. The documents showed that Jacqueline Caws actively instructed the solicitor, participated in the proposed sale, accepted the proposed price, and dealt with negotiations concerning the restrictive covenants. The lengthy and relatively informal course of the transactions was also inconsistent with the alleged immediate coercion by ruthless criminals.
4. The court found that Jacqueline Caws transferred the plot to Mr Boyce voluntarily, with Mr Boyce acting as her nominee. He sold it at the price she had stipulated and accounted to her for the net proceeds in cash. The court also rejected the allegation that Shirley Caws had been forced to provide the £45,000 banker’s draft.
5. The alternative fraudulent-misrepresentation case was unsupported. The court did not need to decide the further issues that would have arisen had the factual case succeeded, including the possible application of the clean-hands principle and the credit due to Miss Hoare for expenditure on developing the land.

This was a first-instance trial in the High Court.

• High Court (Chancery Division): summary judgment had previously been granted to the third defendant in March 2004. An application for summary judgment against the first and second defendants had been rejected by Lewison J on 1 November 2004. After trial, the action was dismissed against the remaining defendants.