Purdeep Kang v Freshacre Properties Limited & Anor

A party advancing a positive case that a document is forged must plead that allegation and give full particulars. A notice disputing authenticity under CPR 32.19 does not replace that requirement where forgery is integral to the pleaded case. An unpleaded forgery issue may exceptionally be tried if both parties clearly understood it and had a fair opportunity to prepare. Where procedural uncertainty creates a real risk of surprise and affects the findings, the trial and judgment may be unjust and the order should be set aside.

This was an appeal from the order of HHJ Johns KC dated 18 April 2024. The trial judge had found that a joint venture agreement and a letter of gift relied on by the appellant were forged, rejecting her explanations for substantial payments made by the respondents.

The forgery allegations had not been pleaded. The appellant argued that the trial had therefore been procedurally unfair. The respondents relied on disclosure, witness statements, expert evidence and pre-trial materials to contend that the authenticity issues were known by the time of trial. The central issue was whether the unpleaded allegations caused the trial and decision to be unjust.

1. Appeal allowed. The order of HHJ Johns KC was set aside and a retrial was ordered. Directions were to be given for service of a Reply and exchange of further witness statements. The parties were also directed to consider whether Bright Star should be joined.
2. Statements of case define the parameters of the dispute, enable proper preparation, and require a party advancing a positive case to plead it. A party alleging fraud, dishonesty, malice or illegality must state the allegation and give full particulars. A contention that documents are forgeries was an integral part of the respondents’ positive case because it was relied on to defeat the alleged joint venture and gifts.
3. CPR 32.19 provides a procedure for disputing the authenticity of peripheral disclosed documents. It is not an alternative to pleading forgery where forgery is necessary to the pleaded case. The respondents should have pleaded the forgery allegations, naturally in a Reply, and the absence of such a pleading meant that the appellant was entitled in principle to rely on the deemed admission arising under CPR 32.19.
4. The failure to plead was a serious procedural irregularity. An unpleaded issue may nevertheless be tried where both parties clearly knew it was in issue and had a proper opportunity to prepare. That was accepted for the letter of gift, whose authenticity had been challenged before trial and for which handwriting evidence had been sought. It was not established for the joint venture agreement. The available material suggested that the appellant and her counsel may have been taken by surprise, with pleadings closed, disclosure complete and witness statements exchanged.
5. The lack of a reasoned decision below addressing whether the forgery issue was fair to try, together with the apparent assumption that the appellant understood the challenge to the joint venture agreement, undermined the safety of the findings. The finding that the agreement was forged also influenced the findings concerning the letter of gift and the £230,000 payment. The court was therefore not satisfied that the trial was fair or that the judgment was safe. The second ground, alleging that the factual findings were plainly wrong, did not require determination.

• High Court (Chancery Division): On 4 March 2025, the appeal from HHJ Johns KC’s order dated 18 April 2024 was allowed. The order was set aside and the matter was ordered to be retried.