A v Aziz & Ors

Fraud may be established by compelling circumstantial evidence, notwithstanding the unusual character of the alleged deception and the heavy burden applicable to fraud claims. A claimant who makes payments or gives property in reliance on fraudulent representations may recover the value of what was lost, whether the claim is framed in deceit or restitution. Confidential information remains protectable even if its truth has not been established, provided it was imparted in circumstances preserving its confidential character. Permanent injunctive relief is appropriate where there remains a continuing risk of disclosure.

The claimant alleged that Mrs Amir had impersonated a fictitious man, Mr Aziz, in a relationship conducted by telephone and had thereby induced her to make substantial bank and cash payments and to give valuable gifts. She also alleged that Mrs Amir possessed confidential recordings and personal information and had threatened disclosure to pressure her to discontinue the proceedings.

The court tried the substantive claim against Mrs Amir after the claims against the other defendants were settled. The central issues were whether Mr Aziz existed in the relevant sense, whether the payments and gifts were obtained by fraud, the appropriate monetary relief, and whether interim confidentiality orders should be made permanent.

1. Fraud and misrepresentation. The court found that Mr Aziz, as represented to the claimant, did not exist and that Mrs Amir had impersonated him in order to extract money. The finding rested on the absence of objective evidence of his existence, the diversion of transferred funds to Mrs Amir and her associates, evidence concerning the cash payments and gambling, the use of photographs of another man, the earlier finding that Mrs Amir had impersonated Mr Aziz, and the claimant’s convincing evidence of the final discovery. The implausibility of the deception did not outweigh the compelling evidence.
2. The claimant had established fraudulent misrepresentation. The representations that Mr Aziz existed and had the stated personal and financial circumstances were false, were relied on, and caused the payments and gifts. Mrs Amir was liable in tort for unrecovered losses and in restitution for money which had passed through her hands.
3. Confidential information. The tapes and the information concerning the claimant’s private life were confidential. It was unnecessary to determine whether the information was true. The information had not been imparted in circumstances depriving it of confidentiality. The court applied the principles referred to in Campbell v MGN Ltd [2004] 2 A.C. 457 and McKennitt v Ash [2006] EWCA (Civ) 1714.
4. The interim orders restraining disclosure and requiring delivery up of the tapes were made permanent because there was a continuing risk of disclosure. Judgment was entered for £2,040,000 in respect of the payments, less any recoveries, with interest. Damages of £170,000 were awarded for the gifts, also with interest. The court reserved the precise terms of any further order concerning the box said to contain additional items.