Case No: A3/2008/1356
Neutral Citation Number: [2009] EWCA Civ 183
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
(HIS HONOUR JUDGE MACKIE QC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 19th January 2009

Before:

LORD JUSTICE WALLER
LORD JUSTICE DYSON 
and
LORD JUSTICE STANLEY BURNTON

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Between:

	DIYA 	Appellant
	
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HALIFAX PLC	
Respondent	

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(DAR Transcript of 
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Mr J Miller (instructed by Chartwell & Sadlers) appeared on behalf of the Appellant.
Mr W Edwards (instructed by Cobbetts LLP) appeared on behalf of the Respondent.
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Judgment
Lord Justice Dyson:

1.	This claim concerns two disputed transactions on a bank account held by the claimant with the defendant bank.  The claimant is a Nigerian national who at all material times has lived in Nigeria.  The account was a guaranteed reserve account, roll number D/93336813-3, which was opened on 11 October 2004 with a deposit of £305,244.15.  

2.	The first disputed transaction resulted from a fax dated 6 April 2005, apparently signed by the claimant, requesting that, on the maturity of the guaranteed reserve account on 11 April 2005, £201,000 be transferred to an account in the name of the claimant at the Keiyo Bank in Japan.  This request was duly processed by the bank and the funds transferred.  The second disputed transaction resulted from a fax dated 20 April 2005, again apparently signed by the claimant, requesting that the further sum of £102,000, the bulk but not the whole of the sum remaining in the guaranteed reserve account, be transferred to her account in the same Japanese bank.  This request was also duly processed by the bank.  

3.	It is the claimant’s case that she did not sign either of the two faxes, she knew nothing about them at the time and that the signatures are forgeries.  She claimed the return of the money from the bank.  It refused on the grounds that the requests for withdrawal of the two sums of money were genuine.  She started these proceedings claiming the return of the money.  At the trial it was common ground that if the signatures on the instructions for the withdrawal of the money were those of the claimant, then her claim failed; if they were forgeries it succeeded.

4.	In a judgment given on 20 May 2008, HHJ Mackie QC found that the signatures were those of the claimant.  He dismissed her claim.  She now appeals with the permission of Tuckey LJ.  It is submitted on her behalf by Mr Miller that the judge reached the wrong conclusion on the single issue of fact that he had to decide.  Before I come to the reasons why Mr Miller submits that the judge reached the wrong conclusion, I need to go into the facts in a little more detail.

5.	The bank received the faxed instruction dated 6 April, together with a copy of the Certificate of Investment dated 11 October 2004, on 11 April 2005.  The fax purportedly signed by the claimant was in these terms.  

“I refer to my roll number [and it is given] due to mature on 11 April 2005 and hereby authorise you to debit the sum of £201,000.00 at maturity and transfer by wire to my account in Japan.  This is to enable me to carry out some contract transactions.”

The account details are then given in Japan.  It continues: 

“NOTE: Kindly disregard my registered instruction and act on this urgently. 

Thank you for your usual cooperation and God bless. 

Sincerely yours…”

Then there is a signature, beneath which is given the name Deborah Folashade Diya, and then in manuscript:
 
“Original of this letter of instruction has been mailed with DHL Courier Service.  Attached herewith is the copy of my deposit certificate.”

6.	On 12 April Mr Clegg, the bank’s sales and service manager, wrote to the claimant in Nigeria saying that he had taken action on her request to send £201,000 and that he had placed the remaining £104,214.15 on deposit in her current account.  On 21 April the bank received the faxed instruction dated 20 April.  This fax, also purportedly signed by the claimant, was in these terms: 

“Due to insufficient funds for the completion of my contract transactions, kindly debit the sum of £102,000.00 from my roll number [given] and transferred to my account in Japan detailed below: [and the details of that are given]  

NOTE: Do transfer my balance to my account with you.  This is not a total withdrawal of my investment, after the contract transactions period of one month I will definitely reinvest more funds.

Please do treat urgently so as to enable me to meet the contract mandate.  Thank you for your usual cooperation and God bless.  

Sincerely yours…”

Then, again, there is a signature, and beneath that the name of the claimant, and below that in manuscript the words: 

“Original of this letter of instruction and my investment certificate has been mailed with courier.”

7.	Subsequently the bank did receive by courier her original letters dated 6 and 20 April.  These were both purportedly signed by the claimant and both in identical terms to the faxes of the same date.  They were, however, not the documents copies of which had been faxed respectively on 6 and 20 April.  In other words they were original new documents.

8.	On 27 April the claimant telephoned the bank.  The bank’s records showed that she had telephone conversations with two bank officials on that day.  According to the note made by Mr Richards, the Kilburn branch manager, on 3 May of various events involving the bank’s dealings with the claimant, on 27 April she asked the counter manager, who it is thought was probably Mr Clegg, to recall the £102,000 transfer.  Security questions were asked and she was given the phone number of international banking.  There is also an email dated 28 April from Heather Moran, who was at that time working at the bank’s retail contact centre, which records:

“Mrs Diya [overseas cust] rang through to me yesterday to see whether her guaranteed reserve D/93336813-3 has been rolled over for 6 months.  When I checked it had been closed and the amount replayed [repaid] as TT via this branch.  [As I] cant gain access to any files from within the branch is it possible that you can look into this as the cust did not want the funds repaying.  And contact the cust back asap on…”

Then two numbers were given which, it is common ground, were the correct home and mobile phone numbers for the claimant.

9.	Mr Richards tried to contact the claimant by telephone but without success.  The next significant event that occurred was that the claimant came to London and went to the Kilburn branch of the bank where her accounts were held.  She said that she came because the bank would only reinvest her money if she was physically present to give instructions to the bank.  She saw Mr Richards and wanted to know whether her guaranteed reserve account had been rolled over.  He recorded the conversation between the two of them in his note of 3 May in the following terms:

“03/05/2005 Customer calls into branch to see if Guaranteed reserve has been rolled over, I interview the customer.  

Customer claims that she knows nothing about the withdrawals and she hasn’t got a bank account in Japan.  I place customers bankcard next to the signature on the letter and ask her how someone has obtained a copy of her signature which is a perfect match, customer replies ‘I don’t know’.

I asked how someone would have been able to obtain the original certificate she replied ‘I don’t know’.

When asked where she kept her documents she replied ‘in her purse’ she then said in her brief case which she explained had a combination lock, when asked who has access she replied ‘her husband & partner, three people’.

She confirmed that nothing has been stolen from her house and she doesn’t know how someone has got hold of her documents.

Mrs Diya confirms that she received the account closure statement 22/04/2005 but didn’t telephone Halifax to check what had happened until the 27th April, claims the person she spoke to confirmed that her balance was correct.  

I informed that customer that she would have to report the matter to the police and obtain a crime reference number, customer insisted that she didn’t have to as she was reporting it to us, seemed reluctant to report it to the police just kept saying I know nothing about this.  

Informed Mrs Diya that until it was reported as a crime, we would not investigate her claim, spent the next 15 minutes going around in circles that she would have to report it to the police, I asked Mrs Diya why she was reluctant to go to the Police to which she replied ‘don’t say that it’s not true’.  The only way I managed to get her to leave to go to the police was to stand up and start to leave the room.

Mrs Diya did mention that she had made a fraudulent claim for £5400 last year on her joint account D/4696584-7 which was paid out on the 18th June.

We have just received a phone call 11.15 from someone saying they are Mrs Diya and would like to know the balance on her account, we obtained a contact number of [number given], we got cut off before we could confirm security information, I rang [same number] and got an 02 voice mail message, left a message to call me ASAP.”

10.	The claimant reported the matter to the police on 3 May.  She gave them sample signatures, but it seems that no further action was taken by them.  The transferred money was not paid out from her account in the Japanese bank until 6 May.  The bank only attempted to cancel the transfer on 19 May, which of course was too late.  On behalf of the claimant, Mr Miller submitted to the judge that the timing of the claimant’s report to the bank on 3 May and the paying out of the monies from the Japanese bank on 6 May was significant.  If, as the bank contended, she had made a fraudulent claim against the bank, it was submitted that surely she would have delayed reporting the matter to the bank until after the funds had been paid out by the Japanese bank and were thereby beyond recall by the defendant bank.

11.	Dr Audrey Giles was instructed as a single joint handwriting expert to provide a report for the purposes of the litigation.  She examined the faxed instructions of 6 and 20 April and the faxed letter of 21 April.  The couriered letters of 6 and 20 April were not available for examination.  She was asked to determine whether the signatures were the genuine signatures of the claimant and, if they were not, whether there was any evidence that the claimant was responsible for the forgeries.  In her first report she said that the copies of the faxed letters were relatively poor and the short signature was “vulnerable to simulation and difficult to authenticate”.  Her overall conclusion was:

“It is extremely difficult to interpret the evidence available given the restrictions placed upon my examination.  These signatures are either genuine or they are very good simulations of Mrs Deborah Diya’s signature.  The majority of simulated signatures are not of high quality.  The degree to which the questioned signatures [1 to 3] match the undisputed signatures of Mrs Deborah Diya suggest that these signatures are genuine.  However, given the copy nature of the questioned documents the possibility cannot be excluded that the questioned documents [1 to 3] are montages into which images of genuine signatures have been introduced.  My findings as to whether Mrs Deborah Diya signed the questioned Instructions [1 to 3] are inconclusive.”

12.	In response to the claimant’s solicitors’ letter dated 9 April 2008, Dr Giles produced a supplementary report.  She was asked whether the handwriting on the faxed version of the letter of 20 April was that of the claimant.  In her report she said, under a heading “Questions 5 and 6”: 

“I have not examined the handwriting on the two copies of the Letters dated 20 April 2005 because I had not understood these to be relevant.  However, I have now reviewed them and Mrs Deborah Diya’s handwriting.  This is a difficult examination since the definition of the copies is poor, there are only small amounts of handwriting on the questioned Letters dated 20 April 2005, and the handwritings of Mrs Deborah Diya available to me are very limited.  

As far as I have been able to carry out examinations I have found similarities but also some differences.  The differences are such to suggest that the writings on these two copy Letters of Instruction were not made by Mrs Deborah Diya.  However, I should wish to examine the original documents and further handwritings of Mrs Diya before expressing any firmer conclusions.”

13.	Another question she was asked by the solicitors was this (question 7):
 
“The signature of the faxed letter of 21st April 2005 appears to overlap congruently with the signature on the faxed version of the letter dated 20 April 2005.  Is this apparent observation correct; if so are there any conclusions which can be drawn?”

The answer given by Dr Giles to this question was:

“The observation is correct.  The signatures on the copy Letters of Instruction dated 20 April 2005..., and 21st April 2005…are so close in shape and design as to be virtually superimposable.  These are not two independently written signatures but are copies of the same original signature.  This important observation was omitted from my report dated 9th April 2008, for which I apologise.  However, it is clear that these cannot be two independently written instructions.”

14.	The judge heard evidence from the claimant, and Mr Richards and Mr Clegg on behalf of the bank.  The reasoning and findings that led the judge to find in favour of the bank were as follows:
 
“35. The position as I see it is as follows.  I do not place much weight on the information available about previous frauds.  I do not attach significance to the particular amounts withdrawn, or the timing.  I do not attach much weight to other material which is either on the edge of things or cuts both ways or covers an area about which there is not enough useful evidence for me to form a reliable view.  For example, the fact that the money was still there on 6th May is consistent both with the fact that the money was going to Mrs Diya and not a fraudster, but it is also consistent with being odd that she would allow the money to stay where it was at a time when she came into the bank, if of course she knew the money was still there.  It seems to me that I have to concentrate on the evidence that I have before me, not speculate about what is or is not consistent with a fraudster.  That means that I concentrate on three matters.  One is the undisputed documents, another is the handwriting expertise, and the other is the evidence of the witnesses.

36. I agree with counsel for the defendant that, if one leaves aside the question of a montage, then there are good indications, subject to the limitations which I have mentioned, that the handwriting expertise shows the initial documents signed by the claimant to be genuine or very good simulations.  Other than the question of montage, it seems reasonably clear in relation to the 20th and 21st that I cannot draw much clear evidence one way or the other beyond that.
  
37. Secondly, looking at the records of the bank, they show that there were two calls on 27th April.  It seems to me that there is no reason to believe that either record is inaccurate, no one would have any motive for making it up, and it seems to me very likely that these are accurate records of what took place.
  
38. If Mrs Diya called the bank to recall the £102,000 transaction, that is an end of any doubts about the 20th and 21st April, because she was plainly aware of what happened in relation to those transactions.  If she was aware of what happened in relation to those transactions, then, given the admittedly tentative conclusions one forms about the earlier signatures, it seems inevitable that she was aware about the first as well.  If she is not telling the truth about the 20th and the 21st, it is unlikely that she is telling the truth about the earlier transactions either.

39. That then leads to the evidence of Mrs Diya.  I am not sure whether it was a difficulty in comprehension bearing in mind that this lady does not speak English as her first language and would not have been familiar with colloquial London English necessarily, or whether it was a reluctance to be candid.  But I did not find her a helpful witness, because her recollections did nothing to improve or fill out the limited picture given by her witness statement and what the documents appear to show.  Her recollection about what she brought with her to the meeting in May and what she recalled of 27th April seemed to be inconsistent not only with the material but also to move in the course of cross-examination.  She was altogether less articulate in her evidence than she appears to be in the letter that she writes and/or signs.  Her replies were brief and guarded and it did not seem to me that what she said and the pattern of events she described from her point of view were consistent with someone who had lost an enormous amount of money through a disgraceful fraud by or on the bank.  I should say at once that I am not much moved or impressed by the view formed by the bank’s witnesses about the calmness or otherwise of this lady, because that would be thoroughly unreliable material to proceed on.  The picture I have formed from the expert evidence and from the material was not changed by the evidence from this lady, given the inconsistencies in what she said and her reluctance to do much more in answer to some questions in cross-examination than to suggest this all must be within the knowledge of the bank.

40. That then leaves the question of whether or not Mr Richards’ evidence is reliable, because I bear in mind that so far as the 27th April transaction is concerned, while we have one contemporaneous e-mail the other document is his note of 3rd or possibly 4th May.  In my judgment, Mr Richards’ collection was a thoroughly reliable one.  As I say, he was someone who was quite willing to disclose information which was not particularly helpful to the defence case, for example in relation to fraud, and he seemed to me to be a straightforward witness who was also honest in the sense of admitting to the adverse view which he had formed about the potential honesty of the claimant.  Moreover, this witness is someone with absolutely no axe to grind.  He no longer works at the bank but runs a practice at a veterinary hospital, and in those circumstances I have no hesitation in concluding that his note of the 3rd and 4th May would have accurately and objectively recorded the facts as reported to him and no one would have had any particular reason to invent anything in relation to the £102,000.

41. In short I conclude…that the instructions to the bank did emanate from Mrs Diya.  This claim therefore fails.”

38.	Mr Miller has a number of criticisms of the judgment.  First, he says that the judge acknowledged that the fact that the signatures on the faxes of 20 and 21 April were copies of the same original signature was a clear example of forgery of the claimant’s signature but did not deal with its implications.  There is no obvious reason why the claimant would need to forge her own signature.  Secondly, the judge did not deal with the opinion of Dr Giles in relation to the two manuscript additions to the two versions of the letter of 20 April.  Thirdly, the unstated implication of the judge’s findings was that the claimant knew that she had not been defrauded and was herself trying to defraud the bank by making this claim and bringing these proceedings, being willing to go so far as to have put up £12,500 by way of security for the bank’s costs.

39.	Fourthly, the judge placed too much weight on the record of the telephone call on 27 April made by Mr Richards in his note of 3 May.  It was not a verbatim record.  Mr Richards did not take the call.  He could not remember who did take the call.  The note was made about five days after the conversation at a time when Mr Richards had formed the view that the claimant was dishonest.  He admitted in cross-examination that he thought that she was trying it on.  Although Mr Miller does not go so far as to say that Mr Richards had deliberately concocted an untrue record of the conversation, he does submit that Mr Richards’ views as to her honesty “coloured his attitude” when he wrote his note on 3 May.  This suggestion was put in terms to Mr Richards in cross-examination and was rejected completely by him.  Mr Clegg thought that he did take the telephone call from the claimant on 27 April but he did not make a record of it at the time and could not remember anything about the conversation.  

40.	Fifthly, there is the timing point, to which I have already referred.  Finally Mr Miller submits that the judge placed too much weight on his subjective impression of the reliability of the witnesses when set against the qualitatively more cogent objective evidence in the case, in particular the fact that the claimant reported the fraud to the police three days before the money left the account in Japan.  

41.	In short, Mr Miller submits that, if the bank’s case is correct, the claimant forged her own signature and disguised her handwriting on documents sent to the bank in order to create a false impression that she had been defrauded, knowing that she was falsely claiming to have been defrauded and risking the loss of any benefit from the fraud by reporting the matter to the police, at a time when the sums transferred to Japan could have been recalled, and knowing that she was making a false claim yet spending money on litigation in this country and being prepared to put up security for costs.  Mr Miller submits that the judge should have taken into account the inherent unlikelihood of such a course of events.  On the other hand, if the claimant’s case is correct she has been the victim of identity theft, which, submits Mr Miller is a much simpler and more natural explanation for what happened.  The fact that such a fraud required access to genuine signatures and banking information did not make it improbable.  Indeed it was known from the evidence of Mr Richards that an employee of the bank at the Kilburn branch had previously been involved in a fraud.

42.	On behalf of the bank, Mr Edwards submits that the judge reached the right conclusion for the right reasons.  

43.	I would dismiss this appeal, substantially for the reasons given by Mr Edwards in his skeleton argument.  The starting point is that to a substantial degree the judge’s findings of fact depended on his view of the credibility of the witnesses, in particular of the claimant and Mr Richards.  This court will only interfere with such findings if satisfied that the judge was plainly wrong: see Assicurazioni Generali SpA v Arab Insurance Group [2002] EWCA Civ 1642; [2003] 1 WLR 577 at para. 12.  It is therefore not sufficient for Mr Miller to establish that the claimant’s explanation of the two transfers is more probable than the banks.  He must show that the judge was plainly wrong to reject the claimant’s case and to find that the signatures, at least on both the faxes of 6 and 20 April, were the genuine signatures of the claimant.  In my judgment the critical finding of the judge was that the note made by Mr Richards on 3 May and in particular the note recorded against 27 April “accurately and objectively recorded the facts as reported to him”.

44.	The judge gave adequate reasons for his finding (at paragraph 40) that Mr Richards was a reliable witness.  He added that no-one would have had any particular reason to fabricate the account recorded by Mr Richards.  Mr Miller has not suggested that anyone would have had such a reason.  If, as the note records, the claimant had asked the bank on 27 April to recall “the £102,000 TT”, she must have known at that time that that sum had been sent by the bank by telegraphic transfer, as was the case.  Her case was that she was unaware of either of the two withdrawals until she visited the bank on 3 May.  It seems to me that if, as the judge held, the note is accurate, she must not only have known of the transfer of £102,000 but she must have authorised it.  The fact that she requested the recall of £102,000 and not also of the £201,000 is one of the many mysteries in this case, but it is not a mystery which this court is equipped to resolve nor should it attempt to do so.  Mr Miller sought to rely on the Moran email of 28 April to support the submission that it assisted the claimant’s case that, as at 27 April, she believed that all the guaranteed reserve account funds remained in one of her accounts at the Kilburn branch of the bank.  But, as Stanley Burnton LJ pointed out in argument, the Moran email is consistent with the bank’s case, on the footing that by asking whether her guaranteed reserve account had been rolled over for six months she was doing no more than seeking to cover her tracks.  

45.	In my judgment, the points made by Mr Miller which I have summarised are not of sufficient weight to cast doubt -- or at any rate serious doubt -- on the judge’s conclusion about the reliability of the note of the conversation of 27 April and his general conclusion about the reliability of the witnesses.  So far as the latter point is concerned, this is a case where the impression formed by the judge as to the honesty and reliability of the witnesses was of particular importance.  The points made by Mr Miller were put to the judge and, where appropriate, to the witnesses.  This court should be very slow to overturn the judge’s assessment of the witnesses in such a case.

46.	In his oral submissions, Mr Miller concentrated on two points which, he submits, were not properly dealt with by the judge and which cast serious doubt on the judge’s conclusions about the note of 27 April and his assessment of the witnesses.  The first is the timing point which I have already mentioned.  It seems to me that it is perfectly legitimate to make the point that, if the claimant were seeking to pretend that she was the victim of a fraud, intending herself to defraud the bank of approximately £300,000, it is surprising that she did not report the matter until after the money had been paid out of the Japanese bank so as to be placed beyond recall by the defendant bank, but there is no evidence as to what arrangements had been made with the Japanese bank for the payment out of the money and, in particular, as to when it should be paid.  It may be that arrangements had been made for the money to be paid out before 3 May and those arrangements were not implemented until later.  It may be, on the other hand, that the claimant simply took her eye off the ball and made a slip.  There are no doubt other possibilities.  I do not regard the timing point as being so cogent as to compel the conclusion that the claimant would not have reported the matter to the bank until after 6 May if she was seeking to commit a fraud on the bank.  In this context it is not without significance that she was reluctant to report the matter to the police.  If she was the victim of a fraud by a third party, that reluctance is difficult to explain.

47.	The other matter emphasised by Mr Miller is the so-called “montage” point, ie the fact that the signatures on the faxes of 20 and 21 April were identical, so that one must have been a copy of the other.  The reason why this was done is a mystery, whether the bank or the claimant is right.  If the claimant is right, then the fraudster chose one method for forging her signature on the fax of 6 April and the original letters of 6 and 20 April, and a different method for forging her signature on the faxes of 20 and 21 April.  There is no obvious reason why the fraudster should have done this.  If the bank is right, then there is no explanation as to why the claimant used a copy signature for the fax of 20 or 21 April, whichever the case may be.  It was impossible, on the material before the judge, to solve this mystery.  The judge was right to say, as he did, at paragraph 35:

“It seems to me that I have to concentrate on the evidence that I have before me, not speculate about what is or is not consistent with a fraudster.  That means that I concentrate on three matters.  One is the undisputed documents, another is the handwriting expertise, and the other is the evidence of the witnesses.”

48.	I have already summarised the expert evidence of Dr Giles.  Leaving aside what she had to say on the “montage” point in relation to the faxes of 20 and 21 April, it seems to me that her evidence was inconclusive.  I do not consider that the “montage” issue, on which Mr Miller seeks to place weight, comes anywhere casting doubt on the conclusion that the judge drew from the note of the telephone conversation of 27 April and his assessment of the witnesses. 

49.	In those circumstances I see no basis on which it would be right for this court to interfere with the judge’s findings and conclusion and I would dismiss this appeal.

Lord Justice Stanley Burnton: 

50.	I agree.

Lord Justice Waller: 

51.	I also agree.

Order: Appeal dismissed