Christoforou v Christoforou (Alleged Removal of Trees from the Applicant's land)

A party alleging misconduct in civil or family proceedings bears the burden of proving it on the balance of probabilities. The seriousness of the allegation or its consequences does not alter that standard. A deliberate, relevant lie may support an allegation, but cannot prove it alone; the court must consider whether there are innocent explanations.

Where a litigant deliberately misleads the court in sworn evidence, that conduct may justify an open, un-anonymised judgment and may cause the litigant to forfeit confidentiality attaching to otherwise private proceedings. The court must balance the parties’ Convention rights against the public interest in reporting fraudulent conduct.

The judgment determined a discrete enforcement and fact-finding issue arising from financial remedy proceedings. Moylan J had ordered the respondent to transfer two plots of land in Cyprus to the applicant. Before completion of the transfer, mature olive and other trees were removed and appeared on land retained by the respondent.

The respondent denied responsibility, declined to attend for cross-examination and relied on written evidence. Expert evidence addressed the authenticity of drone footage and whether the trees on the respondent’s land were those removed from the transferred plots. The issues were whether the respondent had removed or procured removal of the trees, whether his evidence was deliberately misleading, whether the judgment should be public, and the appropriate costs order.

1. Liability. The applicant bore the burden of proving that the respondent removed, or caused the removal of, the trees. The applicable standard was the balance of probabilities. The seriousness of the allegation, its consequences and its inherent probability did not alter that standard. The evidence had to be assessed in its overall context.
2. Assessment of lies. Earlier findings that the respondent had been dishonest did not themselves establish dishonesty on the tree issue. Applying the guidance derived from R v Lucas [1981] QB 720, as discussed in Re H-C (Children) [2016] EWCA 139, a deliberate and relevant lie could support the truth of an allegation but could not prove it alone. The court had to consider whether an innocent explanation for the lie existed.
3. The unchallenged expert evidence, the drone footage and the respondent’s inconsistent and untested account established, on the balance of probabilities, that he was responsible for removing the applicant’s trees, either personally or through instructions to contractors. His account was a manufactured and deliberately misleading defence.
4. Publication and confidentiality. The respondent’s deliberate deception in sworn evidence constituted serious litigation misconduct. Applying Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315; [2011] 1 FLR 1427 and Norman v Norman [2017] EWCA Civ 49; [2018] 1 FLR 426, the public interest in reporting such conduct outweighed the respondent’s asserted confidentiality and anonymity interests. An open, un-anonymised judgment was appropriate.
5. The respondent was ordered to pay the applicant’s outstanding costs of the tree issue on the indemnity basis, assessed at £39,617, within 14 days.

The judgment concerned a first-instance fact-finding hearing. The judge recorded that an earlier case-management decision permitting determination of the respondent’s liability had been upheld when Lady Justice King refused permission to appeal on 11 July 2019.