Family Law Hub

Rezaeipoor v Arabhalvai & Anor [2012] EWHC 146 (Ch)

  • Neutral Citation Number: [2012] EWHC 146 (Ch)

    Case No: HC 09C01780



    Royal Courts of Justice

    Strand, London, WC2A 2LL

    Date: 07/02/2012

    Before :



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    Between :


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    ESHAGH ARABHALVAI (1st Respondent)

    TAYEBEH ARABHALVAI (2nd Respondent)

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    Myles Jackson (instructed by Bishop Lloyd and Jackson) for the Appellant

    Philip Jones (instructed by ELS & Cole) for the 2nd Respondent

    (the 1st Respondent did not appear and was not represented)

    Hearing dates: 3rd November 2011

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    Approved Judgment

    I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.



    Kevin Prosser QC sitting as a Deputy Judge of the High Court:

    A. Introduction

    1. This is an appeal by Hossein Rezaeipoor against the decision of Master Bragge given on 24th February 2011. He dismissed Mr Rezaeipoor's claim that Flat 2, 347, Kensington High Street, London ("the Property") is beneficially owned by Eshagh Arabhalvai, and not by his sister, Tayebeh Arabhalvai, who is the registered proprietor of the Property.

    2. In this judgment I will, without intending any discourtesy, call Mr Rezaeipoor "the claimant", Mr Arabhalvai "the brother", and Ms Arabhalvai "the sister"

    3. The reason why the claimant contends that the brother is the beneficial owner of the Property is because the brother owes the claimant over £250,000, and by a charging order dated 24th April 2009 the brother's interest, if any, in the Property is charged with payment of that debt in favour of the claimant.

    4. The brother played no part in the hearing before the Master or in the appeal before me.

    5. The claimant appeals on three grounds. The first ground is that the Master erred in deciding that the burden of proof on the issue of beneficial ownership was on the claimant; the claimant contends that the Master ought to have regarded a decision by District Judge Million in matrimonial proceedings between the brother and his ex-wife ("the matrimonial proceedings"), to the effect that the brother and not the sister was the beneficial owner of the Property, as establishing a prima facie case in favour of the claimant, so that the burden was on the sister to prove the contrary. The second ground is that the Master misdirected himself in relation to the evidence, in particular evidence concerning a Mr Amin. (He was also called Mr Aminaei, but I will call him "Mr Amin" throughout). The third ground is that the Master erred in permitting the sister to give evidence from her home in Iran by Skype. If any of these grounds succeeds, the claimant seeks to have the Master's decision set aside.

    B. First ground of appeal: burden of proof

    6. I can deal with this ground of appeal very shortly.

    7. It is clear that the burden of proof on the issue of beneficial ownership was on the claimant, because he was alleging that the sister, although the legal owner, is not the beneficial owner: see Stack v Dowden [2007] 2 AC 432 at paragraph 56 per Baroness Hale.

    8. It is equally clear that the burden of proof was not affected by the District Judge's decision in the matrimonial proceedings because the sister was not a party to those proceedings, and therefore the decision of the District Judge is not evidence against her in these proceedings: Hollington v F. Hewthorn & Co Ltd [1943] 2 All ER 35. Hollington continues to embody the common law as to the effect of previous decisions: "In principle the judgment, verdict or award of another tribunal is not admissible evidence to prove a fact in issue or a fact relevant to the issue in other proceedings between different parties", per Hoffmann J. in Land Securities v Westminster City Council [1993] 1 WLR 286, at p.288E-F.

    9. The claimant expressly acknowledges the continuing authority of Hollington v Hewthorn, but contends that that decision should be re-considered, in particular in light of the modern emphasis on fairness. However, it is not open to me to re-consider the decision; in any event, I do not think that an appeal to fairness could assist the claimant: in my view, it would be unfair to admit the decision of the District Judge in evidence, given that not only was the sister not a party to the matrimonial proceedings, but also she did not even give evidence before the District Judge, and so she had no opportunity at all to influence his decision.

    10. It follows that the Master did not err in holding that the burden of proof on the issue of beneficial ownership was on the claimant; nor did he err in considering that he was not bound by the decision of the District Judge that the brother is the beneficial owner of the Property.

    C. Second ground of appeal: misdirection

    11. In order to make this ground understandable, I must say something about the decision of the District Judge in the matrimonial proceedings, as well as about the findings of the Master in these proceedings.

    (a) the matrimonial proceedings

    12. The brother gave evidence that his sister was a wealthy woman in her own right in Iran from her own money exchange business there. He said that his sister rarely visited England, and had no bank account here, but funded the purchase of the Property in 1998 out of her own money in Iran which was transmitted to England with the help of a business friend called Mr Amin, who traded as "Amin Trading".

    13. However, in his judgment dated 19th October 2005, the District Judge rejected this evidence as "entirely unbelievable"; the brother was lying to conceal the truth of his finances; the only sensible inference was that the brother provided the money for the purchase of the Property. As for Mr Amin and "Amin Trading", the District Judge found that Mr Amin was a friend of the brother who lived in England and had his own business, and that the brother "borrowed" Mr Amin's name in order to disguise the true nature of his own trading activities and property ownership.

    14. The brother appealed against the judgment of the District Judge, and in January 2006 Bracewell J. joined the sister as an intervener in the appeal. The sister had already made a witness statement, dated 21st December 2005, for the purposes of that appeal, to which I shall refer below. In the event, however, the brother did not pursue the appeal against the District Judge's decision, and so the appeal was dismissed.

    (b) findings of the Master

    15. The Master stated, correctly, that the burden was on the claimant to prove that the brother was the beneficial owner of the Property, and that he had to establish on the balance of probabilities that there was an agreement, arrangement or understanding between the brother and sister that the sister was a nominee, or that the funds for the purchase came from the brother.

    16. In this connection, the claimant placed "very considerable weight" on the findings of the District Judge. The Master expressed the view that the judgment of the District Judge deserved "very considerable respect" as far as the findings against the brother were concerned, in particular the finding that he was not being truthful, but that it was much more limited in weight as concerned the matter before him.

    17. The Master placed much more weight on the evidence before him.

    18. First, he had before him a number of witness statements, including three made by the sister. The first was the statement dated 21st December 2005; it contained a statement of truth but did not say that it had been translated into Farsi (the sister cannot speak or read English); however, in her oral evidence the sister explained that a lawyer prepared the statement when she was in London and her brother read it back to her. The statement explained that the sister had set up a money exchange business in 1995, which proved to be extremely successful. If a customer wanted to transfer money between a foreign country and Iran, the sister would arrange this, doing so through her trading associate in the relevant foreign country, and her trading associate in England was Mr Amin who traded as "Amin Trading". She said that her brother found the Property for her as an investment, and she gave him a power of attorney to arrange the purchase on her behalf, and she funded the purchase solely from her own money, through Amin Trading. The second and third witness statements were made for the purpose of the present proceedings. The second was dated 10th (but signed on 15th) September 2009; again did not say that it had been translated into Farsi, but in her oral evidence the sister said that her Iranian attorney, Mr Zadeh, had read it back to her in Farsi before she signed it. The third was dated 22nd December 2009 and stated that it had been read to the sister in Farsi. It exhibited copies of bank statements, bank letters certifying balances in accounts, a letter to her from solicitors in England thanking her for instructing the firm in the purchase of the Property, the power of attorney in favour of her brother, and other documents. It largely repeated what was said in the earlier statements, but this time said that £123,000 of the £350,000 purchase-price of the Property came from an inheritance from her mother, the £227,000 balance coming from her money exchange business. The purchase was effected by a transfer from the bank account here of her business associate, Mr Amin, whom she repaid by making payments to his clients in Iran over a period of months. An "important paragraph" of the statement exhibited a copy of an English translation of the sister's Iranian bank statement, showing that £234,502.78 in total left her account between October 1997 and March 1998; the sister said that £227,000 of this was paid to various clients of Mr Amin, and about £7,000 related to solicitors' costs and expenses.

    19. Secondly, the Master had before him some documents from the conveyancing file of the solicitors who handled the purchase of the Property. All but one of those documents referred to the sister as the client and/or as the purchaser of the Property, thereby demonstrating in the Master's judgement that the solicitors "clearly" viewed the sister as their client and represented this to the Inland Revenue.

    20. Finally there was the oral evidence of the sister herself, given from her home in Iran via Skype (this is the subject of the third ground of appeal) through an interpreter who attended the Royal Courts of Justice. The Master expressed the view that, although hearing her evidence via Skype was not as good as hearing evidence of someone in court or via a properly organised video conferencing facility, it was possible to gain a good impression of the sister. She was cross-examined for 4 hours. Counsel for the claimant submitted to the Master that her evidence was "incredible"; it was "entirely unclear" how funds got to England to purchase the Property; the £123,000 inheritance was first mentioned in December 2009, and there was no "paper trail" to show how it came to England; there were only small sums in the sister's Iran bank accounts: the money transactions would not enable her to make a purchase of £350,000; although large sums of money were involved, there was "no documentary evidence" supporting the sister's case; the sister's witness statements could not be relied on, because they had all been prepared, were not in the sister's own words, and "showed the hand" of Mr Ghafari (also called "Ghaffary"; I will call him "Mr Ghafari" throughout), who acted for the sister in business matters. However, the Master rejected those submissions, expressing the view that, allowing for translation, the sister gave her evidence with spontaneity "and in my assessment gave it well and appeared to be a truthful witness". The Master noted that no documentary evidence about any inheritance was produced, and that the inheritance first emerged in December 2009, but "I heard her give evidence on this point, and it appeared to me [that] what she was saying was correct". Next, he said "The [sister] is a university graduate with a degree in accountancy and [it] appears from her witness statement evidence, and it was not challenged, that she set up in 1995 a business of foreign money exchange, nor was it challenged that there had been a considerable increase in the rate of exchange...nor was it seriously challenged that her business made it possible for people living abroad to transfer money in and out of Iran in the way she explained in her witness statements...Because of her relationship with Mr [Amin] she was able to transact financial transactions without international money transfers out of Iran". Next, he referred to the sister's bank accounts in Iran and said "There was no or no substantial cross-examination on any of those accounts. What they appear to me to establish is that the [sister] had active accounts in a number of banks in Iran at the material times...One summary (page 540) shows monies out of the [sister]'s Saderat bank account between 7th October 1997 and 15th March 1998 of £234,502, that page was not challenged. It does not therefore seem to [me] that this is a case where it can be said that it is incredible that this lady was not able with the assistance of her money exchange business and her inheritance to finance the purchase of the [Property]. The [sister] in her evidence drew attention to the fact that she would draw, as she put it, large credit[s] and debits in her various accounts. Although there is a certain lack of [paperwork] as far as details are concerned as to how the purchase monies were precisely made up in the sense of transactions which resulted in the purchase being able to be completed...I am unable to conclude that the claimant has discharged the onus." Indeed, the Master went further, and concluded that "while there is no burden on the [sister] to prove her beneficial entitlement, in fact a combination of her oral evidence [and] her witness statements...tend on the balance of probabilities to satisfy me that she was not the [brother]'s nominee and that there was no agreement, arrangement or understanding between them and alternatively that the funds for the purchase came [sic: I think he meant to say "did not come"] from the [brother]". He therefore dismissed the claim.

    (c) misdirection: failure to give weight to the District Judge's findings

    21. The claimant contends (paragraphs 11 and 14-23 of the grounds of appeal) that the Master misdirected himself in giving insufficient weight to the findings of fact, in particular about Mr Amin and Amin Trading, made by the District Judge in the matrimonial proceedings.

    22. The claimant acknowledges that this contention goes hand in hand with the first ground of appeal, and that if the District Judge's findings are not admissible as evidence in these proceedings, then this contention must fail.

    23. Given my decision on the first ground of appeal, therefore, I reject this contention.

    (d) misdirection: failure to draw adverse inferences

    24. The claimant also contends (paragraph 13 of the grounds of appeal) that the Master ought to have directed himself to draw adverse inferences from the sister's failure to call crucial witnesses, namely Mr Amin and Mr Ghafari, both of whom might reasonably have been expected to give evidence favourable to her.

    25. It is clear that in certain circumstances a court may be entitled to draw an adverse inference from the absence of a witness who might be expected to have material evidence to give on an issue in an action; if a court is willing to draw such an inference, it may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness: per Brooke LJ in Wisniewski v Central Manchester HA [1998] Lloyds Rep Med 223.

    26. As for Mr Ghafari, the Master noted that although he had made a witness statement he did not attend the trial "apparently due to taking his son to a hospital appointment. I was not asked by counsel for the [sister] for any adjournment and I observed that there was no medical or other evidence in support of what I had been told." The Master concluded that very little weight if any could be placed on his witness statement. More significantly, as regards this ground of appeal, at the hearing of an application for the sister to give evidence by Skype (see below), the solicitors for the sister said that Mr Ghafari "does not add a great deal to be honest", and counsel for the claimant agreed "He is the gofer but he does not really say much". In these circumstances, the Master had no reason to think that Mr Ghafari might be expected to have material evidence to give, let alone be a crucial witness. Therefore I do not think that the Master can be criticised for not drawing an adverse inference from Mr Ghafari's absence.

    27. As for Mr Amin, the Master does not say why he did not give evidence; it may well be that no explanation was provided about his absence. In these circumstances, and given the important role which, according to the sister, Mr Amin played in her purchase of the Property, the Master would, in my view, have been entitled to draw an adverse inference from his absence. But he does not appear to have done so. However, I do not consider that his omission to do so was an error of any importance, and certainly not of such importance that I would be justified in interfering. This is so for two reasons. First, because it does not appear that counsel for the claimant commented on, or invited the Master to draw any adverse inference from, the absence of Mr Amin; if counsel for the claimant did not regard this as significant to the claimant's case, I do not think that the Master was obliged to regard it as significant either. Secondly, because the Master's evaluation of the documentary, witness and oral evidence, which I have summarised above, was such that, even if he had drawn an adverse inference, it is impossible to believe that this would or might have caused him to alter his decision, so as to conclude that the claimant had discharged the burden of proof.

    D. Third ground of appeal: use of Skype

    28. As I have already mentioned, the sister gave evidence from her home in Iran by Skype.

    29. The background to this is as follows. On 18th November 2010, the day before the trial, which the sister had been expected to attend, the solicitor for the sister applied to the Master for her to give evidence from Iran by Skype. The solicitor explained that she was unable to attend because her application for a visa to enter the UK had been refused. Counsel for the claimant suggested that the sister had not actually made a proper application for a visa, and that she did not really want to come to give evidence, but the Master disagreed, saying in his judgment: "although there has been much correspondence and evidence addressed to this particular point, I am satisfied that she attempted to obtain a visa to come to the UK so that she could attend the hearing, but she was unable to obtain one, her application being refused. I am satisfied that she did all that she reasonably could to obtain permission to enter the UK. As far as concerns video conferencing facilities, the position as I was told by her solicitors is that there are no private video conferencing facilities in Iran and it was therefore suggested to me that a pragmatic method of receiving her evidence would be via Skype."

    30. Counsel for the claimant expressed "very great concern" about the absence of any control over the operation of Skype. He referred by analogy to the video conferencing guidance in Annex 3 to Practice Direction 32, in particular paragraph 3, which makes the point that "the degree of control a court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it." The concern was of the risk of the sister being interfered with at the Iranian end: pieces of paper might be introduced to suggest what the sister should say, or her evidence might be linked to somebody else who was there. But when he was asked by the Master what his suggestion was for dealing with that concern, whether he was suggesting an adjournment, counsel said "No".

    31. It is fair to say that the possibility of an adjournment was discussed only with reference to the sister attempting to obtain a visa, so that the adjournment might well be for a substantial period; as the Master pointed out to counsel for the claimant, "there is great uncertainty, to put it mildly, whether she will ever, in fact, get a adjournment probably would not achieve anything. That would be a potential injustice to your client having to wait further for the hearing".

    32. In any event, it is clear that counsel for the claimant did not ask for an adjournment of any kind, even a short one. He told the Master: "I am concerned as to what will happen in Tehran as to the production of documents. I do not know whether she has all the documents"; but in saying this, he was not suggesting that he would or might be in difficulty in cross-examining her, a difficulty which could be cured by granting a relatively short adjournment to ensure that she did have all the documents before her. Rather, counsel's point was that there was a risk of the sister being fed with pieces of paper, purporting to be documents, but in fact making suggestions to her as to what she should say. The Master clearly understood that to be counsel's point, because he said "It is probably pretty unlikely that somebody is going to be able to immediately put a piece of paper in front of her without an obvious delay that you will be able to point out to me". Counsel's response was to acknowledge that the Master was not "a stranger to uses of Skype and the "dangers of it. We are sitting here today, as it were, considering as to how this will work. Of course, no doubt you will have regard to the dangers of it." In other words, counsel was concerned with the dangers associated with Skype as compared to video conferencing, not with any difficulty he might have in cross-examining the sister if she did not have all the documents before her, which would equally apply if she gave her evidence by video link.

    33. As the quotation above indicates, counsel for the claimant was not objecting to the use of Skype in principle; rather, he was concerned to ensure that it should not be used unless adequate controls were in place. Thus, when the solicitor for the sister agreed that she should give her evidence in a room on her own, counsel for the claimant said "She can bring the screen away from her if she has an integral camera so we can see the table and hands as to whether anything is passed to her. I accept we can do some things like that."

    34. At this point, the Master said "We are going to try to go down this [road]. I would, at the moment, like to try to impose the best conditions under unsatisfactory circumstances. She would have to understand the reasonable requests made by [counsel for the claimant] about pulling it away from her, turning the screen round to see if there is anybody in the room." Then he said "it is an unsatisfactory situation. I think we will give it a go because I think there is capability of doing it fairly...Not ideal but I think it better be given a try."

    35. I emphasise here that his repeated use of the word "try" clearly shows that the Master was only making a provisional decision to hear the sister's evidence by Skype. He certainly did not make a final decision that her evidence should be given that way even if it turned out that it could not be done "fairly". Indeed, in his judgment the Master said that he had concluded that the interests of justice favoured "attempting" to receive evidence by Skype "provided that by doing so the claimant was not prejudiced in the sense of not being able to adequately test the evidence".

    36. I therefore have no doubt that, as the trial proceeded on the following day, the Master continued to ask himself whether the claimant was or might be prejudiced, in the sense of not being able adequately to test the evidence. I also have no doubt that if counsel for the claimant had thought that his client was being prejudiced, he would have made a submission to that effect. However, it is clear from the transcript of the trial that no submission, or even comment, to that effect was made.

    37. In particular, although the sister did not have the trial bundle in front of her, no submission was made that this was hampering proper cross-examination. On the contrary, counsel for the claimant cross-examined the sister for 4 hours and in detail, on her witness statements and other documents. He was able to do this by reading passages to her but also, and more importantly, by referring her to the bank statements and other documents which were exhibited to the sister's December 2009 witness statement, which she did have in front of her.

    38. Moreover, I have no doubt that the Master and counsel for the claimant were both vigilant in ensuring that the sister was not fed pieces of paper or otherwise interfered with when she gave evidence. Indeed, it is clear from the transcript that checks were made during the course of her evidence to ensure that she was alone in the room. The Master in his judgment said that he was satisfied that the sister was alone for the duration of the time that she gave evidence, and, as I have already mentioned, he also said that she gave her evidence with spontaneity. Indeed, he said, "the Skype transmission was, with a minor interruption, very successful indeed, showing a very clear picture of the [sister] and of very audible quality. The arrangement in court was such that both counsel could see the [sister], as could I, and the interpreter also sat close by counsel."

    39. The claimant contends that in allowing the sister to give evidence by Skype, the Master misdirected himself, resulting in material prejudice to the claimant. In particular, first, the Master had no good reason to depart from the normal course of requiring evidence to be given in court, in particular the evidence of the key witness whose credibility was being challenged. Secondly, he failed to ensure that the appropriate safeguards were in place to minimise the risk of abuse, such as by directing that the sister gave her evidence in the presence of an independent third party. Thirdly, the Master failed to direct himself to the fact that the sister did not have the trial bundle before her, so that her evidence could not adequately be challenged by way of cross-examination; the Master ought properly to have adjourned the hearing so as to enable her representatives to provide her with a trial bundle. I shall consider these three contentions in turn.

    40. I should also mention that at the hearing before me, a number of additional, in my view very minor, criticisms were made of the Master's decision, none of which were mentioned in the grounds of appeal dated 5th April 2011 or in the claimant's skeleton argument dated 26th April 2011, and I refused to consider them.

    (a) misdirection: no good reason to depart from the normal course

    41. CPR r.1.4 (2)(k) provides that the court must further the overriding objective, of enabling the court to dealing with cases justly, by actively managing cases, which includes making use of technology, and r.32.3 provides in particular that the court "may" allow a witness to give evidence through a video link "or by other means". In principle, therefore, in making a case management decision whether or not to allow the sister to give evidence remotely, the Master had a discretion, and I should only interfere with his exercise of that discretion if I consider that he has not merely preferred an imperfect solution which is different from an alternative imperfect solution which I might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible. However, the exercise of discretion in a particular case is not unfettered, but involves a judgement as to whether permitting evidence to be given remotely is likely to further the overriding objective, and in particular whether it is likely to be beneficial to the efficient, fair and economic disposal of the case, bearing in mind that the degree of control a court can exercise over the witness at the remote site is likely to be less than when he or she is in court: see the Video Conferencing Guidance in Annex 3 to Practice Direction 32, which applies by analogy to evidence given remotely by any other means including by Skype.

    42. The Master was well aware that the sister was a crucial witness, and that the claimant was challenging her credibility. Moreover, he acknowledged that use of Skype was unsatisfactory. However, he also appreciated that he was faced with a number of alternatives which, in his view, were even more unsatisfactory. He could hardly exclude the sister's evidence altogether: this would be unfair to her given that her evidence was crucial and she had done nothing wrong to cause the present predicament. Nor could he adjourn the hearing indefinitely, in the hope that the sister would be able to obtain a visa: after all, it appeared most unlikely that she could obtain a visa, and anyway the claimant, who would be prejudiced by a further delay, said he did not want an adjournment. Nor could he allow the sister's witness statements in evidence without any cross-examination, for this would rightly be perceived to be unfair, either to the claimant if weight was placed on the witness statements, or to the sister if it was not. The least unsatisfactory alternative was to allow the sister to give evidence remotely, so that she could be cross-examined. In this connection, it was not possible to arrange a video link, which the Master agreed was "much more preferable". That left Skype. There were dangers associated with use of Skype, in particular of inability to control the sister at the Iranian end. But after discussion with the parties, and having regard to the analogy of the Practice direction on video conferencing, the Master formed the provisional view that it should be possible to minimise that risk, and so he decided to "try" to allow evidence by Skype, provided that by doing so the claimant would not be prejudiced in the sense of not being able to adequately test the evidence.

    43. In preferring that imperfect solution over the others, I do not consider that the Master "exceeded the generous ambit within which a reasonable disagreement is possible". Indeed, for what it is worth, I would have done exactly the same. Insofar as it is suggested that, even if the Master was justified in adopting this course, he did not adequately explain his reasons for doing so, I do not agree: he gave his reasons orally at the hearing on 18th November.

    (b) failure to ensure that adequate safeguards were in place

    44. In my view there is no substance to this criticism. As I have mentioned above, checks were made to ensure that the sister was alone, and the Master also ensured that he could see and hear her clearly, and he concluded that she gave her evidence with spontaneity. No doubt it would have been even better if an independent third party had been present in the room; but given that the sister was in Iran I doubt if this was a practical possibility; certainly, no application to that effect was made to the Master. In any event, I do not accept that the omission to arrange this actually caused any prejudice to the claimant.

    (c) failure to provide a trial bundle

    45. CPR r. 39.5 and paragraph 3.10 of Practice Direction 39A provide that the party responsible for filing the trial bundle (in this case, the claimant) must supply a copy for the use of witnesses.

    46. In the present case, because the sister gave her evidence from Iran, she did not have a copy of the trial bundle for her use. It is now contended that this hampered cross-examination of the sister, thereby causing the claimant substantial prejudice.

    47. This contention should be tested against the question: would any use have been made of the trial bundle even if she had had a copy? As I have already mentioned, the sister does not speak or understand English. Those acting for the claimant must have known this before the Skype application was made, that is when it was still expected that she would attend court in person: her third witness statement stated that it had been read to her in Farsi, and arrangements had been made for an interpreter to attend the Royal Courts of Justice to translate for her. However, so far as I am aware, no arrangements were made for the trial bundle, almost all of which is in English, to be translated into Farsi for her use. If that is correct, it must follow that counsel for the claimant had no intention of cross-examining the sister by taking her to the trial bundle (almost all of which is in English), except by reading passages out which the interpreter would translate and then asking the sister to comment. It seems to me, therefore, that the answer to my question is: No.

    48. It is therefore not at all surprising that when the Skype application was made, counsel for the claimant did not object to it on the ground that the sister did not have the trial bundle with her in Iran. As I have already mentioned, he did make the point that he was not sure which witness statements she had, but this was in the context of the argument about lack of control over the witness, not about counsel being hampered in his cross-examination.

    49. In the event, at the trial, counsel for the claimant cross-examined the sister for 4 hours, without any apparent difficulty. He asked her questions about the contents of her witness statements by reading passages out and asking her to comment. He gave no indication at any time, whether by way of submission or other remark, that he was being hampered in his cross-examination by the fact that she did not have the bundle (or indeed her first witness statement) in front of her. Certainly, the Master in his judgment commented about lack of challenge on various aspects of the sister's evidence, and in particular that there was no, or no substantial, cross-examination on certain bank statements; but they were exhibited to the third witness statement, which the sister did have before her, so that the omission to cross-examine her on those documents cannot be attributed to the absence of the trial bundle.

    50. Given that that the claimant was represented at trial by counsel, who omitted to object to, or even comment on, the fact that the sister did not have the trial bundle, and given that there appears to be an obvious explanation for his omission, namely that he had not intended to take her to the bundle anyway, and given that he did cross-examine her at length and without complaint or apparent difficulty, it seems to me that even if the absence of the trial bundle constituted a procedural irregularity, it was not an irregularity which caused any prejudice to the claimant. It may be that other counsel might have approached the cross-examination of the sister differently, but that is neither here nor there. Therefore the absence of the trial bundle cannot be a ground for interfering with the Master's decision.

    E. Conclusion

    51. For these reasons, I dismiss the appeal.

Judgment, published: 10/01/2013


Published: 10/01/2013


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