IRAJ TOHIDI v DAVID ESTRIDGE

An appellate court should not interfere with a trial judge’s findings of fact unless a recognised error of law or plainly unsustainable conclusion is shown. Guidance that documentary evidence and known or probable facts should be used to test recollection is not a rigid rule excluding witness evidence. A judge may find that the truth lies between rival factual cases without adopting an unpleaded theory. Re-opening a judgment for new evidence is discretionary. The court must consider the evidence’s likely impact, the explanation for its absence, the parties’ fault and the overriding objective. Evidence is not a sufficient “game-changer” where it would require a retrial and would not affect the principal basis of the decision.

Mr Estridge appealed against findings that Mr Tohidi was the beneficial owner of properties whose legal title Mr Estridge held, and against refusal to re-open the judgment after new correspondence was discovered. The underlying dispute concerned whether agreements in 2005 or 2008 transferred the beneficial interests to Mr Estridge, and whether a later letter was signed by Mr Tohidi.

The appeal challenged the trial judge’s evaluation of evidence, his finding as to the parties’ 2008 agreement, the application of the fair dealing rule, compliance with s.53 LPA 1925, and the refusal to admit the new evidence. The central issues were whether the trial judge had made an appealable error and whether the new correspondence justified reopening the judgment.

1. Appeal dismissed. Permission was refused on Grounds 2–5. Permission was granted on Grounds 1 and 6–8, but those appeals were dismissed.
2. The appellate court applied the high threshold for interfering with findings of fact stated in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5. The trial judge had considered the evidence as a whole, including documents, inherent probabilities and witness evidence. The five-month period before circulation of the draft judgment did not justify modifying the ordinary appellate restraint.
3. The observations in Gestmin SGPS SA v Credit Suisse UK Ltd [2015] EWHC 3560, as applied in NatWest Markets PLC v Bilta (UK) Ltd [2021] EWCA Civ 680, were a warning about the fallibility of memory, not a rigid rule excluding recollection or the judge’s assessment of a witness’s reaction. The 5 August Letter was only one item of evidence and was not an anchor point requiring acceptance over the other evidence.
4. The judge was entitled to conclude that the 2008 agreement concerned control, rent collection and management rather than beneficial ownership. A judge may find that the truth lies between rival factual cases. The approach described in Sibir Energy Ltd v Slocom Trading Ltd [2014] EWCA Civ 83 applied.
5. The challenge to the Barrell Judgment concerned the exercise of discretion. The relevant principles required consideration of the new evidence, the reason it was unavailable at trial and the overriding objective. No distinction was to be drawn between solicitor and client for fault in this context, applying Evans v Tiger Investments Ltd [2002] EWCA Civ 161. The judge was entitled to find that Mr Tohidi was without blame and that the correspondence was not sufficiently significant to justify reopening the judgment.
6. The new evidence would not have affected the principal basis on which the claim succeeded. Its admission would have required a retrial, after substantial resources had already been expended and following disclosure failures. The judge’s decision fell within the generous ambit of discretion.

• High Court (Chancery Division): appeal from orders of HHJ Berkley dated 11 November and 9 December 2021. Permission was granted on Grounds 1 and 6–8 but the appeal was dismissed; permission was refused on Grounds 2–5.