44 Wellfit Street Ltd v GMR Services Ltd

The Claimant sought possession of commercial land contending that the Defendant was a trespasser and that a purported Lease dated 21 December 2015 and an associated Option were forged, recent creations or a sham. The court treated the authenticity of the Lease and Option as the central issue and noted that the burden lay on the Defendant to prove their authenticity.

Key legal principles applied included the effect of CPR Part 32.19 (deemed authenticity of disclosed documents unless notice given), the availability of non-expert comparison of handwriting under s.8 of the Criminal Procedure Act 1865, and the function of the court in assessing handwriting and overall credibility rather than relying solely on expert opinion. The court also considered the relevance of the Landlord and Tenant Act 1954 (including sections 24 to 28 and Part II) insofar as the Defendant had pleaded a business tenancy (a plea which was not pursued).

On the facts the court found the Lease, the Option and a number of other documents and emails to be false or tampered with, identified significant inconsistencies in the Defendant's disclosure and witness evidence, and concluded the Defendant had not discharged the burden of proving the authenticity of the Lease and Option. The court therefore ordered possession for the Claimant and dismissed the Defendant's counterclaim.

Background and parties: The Claimant is the registered proprietor of a consolidated freehold title (TGL73898) acquired in July 2015 by an SPV. The Defendant claimed occupation under a Lease and an Option dated 21 December 2015. The Claimant asserted those documents were bogus and sought possession; the Defendant counterclaimed for damages and relied (but did not pursue) a business tenancy under Part II of the Landlord and Tenant Act 1954.

Procedural posture: This was a first-instance, expedited trial in the Chancery Division heard over four days (19, 20, 30 June and 3 July 2017). The Claimant broke into and took possession of the Land on 4 April 2017 and commenced these proceedings the same day.

Relief sought: Possession of the Land and dismissal of the Defendant's claim to occupy under the Lease; the Defendant counterclaimed for damages arising from the Claimant's taking possession.

Issues framed:

• whether the Lease and Option dated 21 December 2015 were authentic and enforceable;
• whether emails and other documents relied on by the Defendant were genuine or had been tampered with;
• the proper application of disclosure rules and CPR Part 32.19 (deemed authenticity absent notice);
• the admissibility and role of handwriting comparison and witness familiarity evidence (including s.8 Criminal Procedure Act 1865); and
• credibility and weight of oral and documentary evidence, including whether the Defendant's case was a sham or fiction.

Court's reasoning: The court analysed the Lease and Option in detail and found them commercially implausible (eg rent of £520 pa payable biennially, extreme termination penalties, option to buy at an undervalue payable over five years). The court found defects in the Defendant's disclosure (absence of originals, multiple inconsistent versions of emails and certified copies), and that the Defendant failed to explain the provenance of competing email versions. CPR Part 32.19 notices served by the Claimant meant the Claimant's versions of disputed documents were to be treated as authentic for the purposes of the contest.

The court concluded there had been tampering with key emails and that significant witnesses for the Defendant (including the principal witness to the documents and others) were unreliable or unconvincing. Handwriting and initialling evidence (comparison of JP v JAP initials) supported the view that the Lease and Option had not been executed by the alleged signatory. The judge applied the law permitting comparison evidence by witnesses and the court's own comparison role under s.8 Criminal Procedure Act 1865 and judged that the Defendant had not proved authenticity.

Outcome: The court made an order for possession in favour of the Claimant and dismissed the Defendant's counterclaim. The judge observed that adverse inferences could properly have been drawn on multiple occasions though it was unnecessary to rely upon them.

The court made an order for possession for the Claimant and dismissed the Defendant's counterclaim. The judge concluded that the Defendant had failed to prove the authenticity of the Lease and Option, that multiple documents and emails had been falsified or tampered with (notably the Disputed emails), that several Defendant witnesses were unreliable, and that the Claimant's documented sale and licence transaction was the true commercial reality.