Ocwen Ltd v Murphy & Anor [2002] EWCA Civ 47 (14 January 2002)

Neutral Citation Number: [2002] EWCA Civ 47 B2/2001/2540 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM CENTRAL LONDON COUNTY COURT (HIS HONOUR JUDGE MEDAWAR QC) Royal Courts of Justice Strand London WC2 Monday, 14th January 2002 B e f o r e : LORD JUSTICE CHADWICK ____________________ OCWEN LIMITED Claimant/Respondent - v - DANIEL JOSEPH MURPHY First Defendant/Appellant MARY THERESA MURPHY Second Defendant/Appellant ____________________ (Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited 190 Fleet Street, London EC4A 2AG Telephone No: 020 7421 4040 Fax No: 020 7831 8838 Official Shorthand Writers to the Court) ____________________ MISS C PERRY (instructed by J D Spicer & Co, London NW6 4JD) appeared on behalf of the Second Defendant The Respondent did not attend and was unrepresented ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Monday, 14th January 2002 LORD JUSTICE CHADWICK: This is an application for permission to appeal from an order made by His Honour Judge Medawar QC in the Central London County Court in proceedings brought by Ocwen Ltd as mortgagee of property known as 137A Kilburn Park Road, London NW6. The applicant, Mrs Mary Murphy, is the registered owner of that property; the title having been transferred into her sole name on 14th August 1998. At all material times before that date the property was registered in the joint names of the applicant and Mr Daniel Murphy, to whom she was then married. Ocwen Ltd claimed to be mortgagees of the property, 137A Kilburn Park Road, under a mortgage deed dated 18th August 1999. The applicant and Mr Daniel Murphy are named as the mortgagors in that deed; and the deed appears to bear the signature of each of the mortgagors. Execution of the deed was attested by Mr J W Mayle, an underwriter employed by the lender, Ocwen Ltd. The mortgage was executed to secure moneys owing to the lender under a credit agreement dated the previous day, 17th August 1999. Again, both the applicant and Mr Daniel Murphy are named as borrowers in the credit agreement; and the credit agreement appears to bear the signature of both the borrowers. The total amount of the loan specified in the credit agreement is £80,300, of which £71,000 is described as the "advance amount". It is not, I think, in dispute and the judge so held that out of the £71,000 advance amount some £45,000 was applied to discharge existing secured borrowing and the balance, £26,00 or thereabouts, was paid into the applicant's account with Barclays Bank Plc. There is a dispute between the applicant and Mr Daniel Murphy, first, as to the extent of the existing secured borrowing for which she was responsible; and second, whether she subsequently paid any part of the £26,000 received into her Barclays Bank account to Mr Murphy. The lender brought these proceedings against both the borrowers, as the persons named in the credit agreement and in the mortgage deed. Each defended the proceedings on the ground that it was the other who was liable. Mr Daniel Murphy accepted that he had signed the documents; but contended that his signature had been procured by the misrepresentation and undue influence of the applicant. Mr Daniel Murphy's case was that he was led by the applicant to believe that the transfer from joint names into her sole name, which he had executed the previous year, had not been carried into effect; so that, when he executed the Ocwen documents in August 1999, he thought that he was still a joint owner of the property. The applicant's case was that she thought that the only purpose of the documents which she signed on 17th or 18th August 1999 was to repay an existing mortgage to secure borrowing from Midland Bank Plc, used to fund the original purchase of the property under a right to buy scheme, an amount of some £15,000. She said that she had no responsibility for further borrowing (amounting to £29,492-odd) from First National Bank Plc which was secured on the property as a result of a charge executed in November 1998; and that documents evidencing and securing that borrowing, which appear to bear her signature, were forgeries. The judge, after hearing evidence from a jointly instructed document examiner, Mr Radley, held that the applicant had signed the documents which purported to bear her signature. He also held that the applicant had not given Mr Daniel Murphy any part of the £26,000-odd which had been paid by Ocwen Ltd into her account with Barclays Bank on or about 18th August 1999. The judge accepted that Mr Daniel Murphy had been induced to sign the credit agreement by misrepresentations made by the applicant; that the lender, who knew or ought to have known that the property was in her sole name, ought to have made enquiry; and that the agreement should be set aside as against Mr Murphy. There is no cross-appeal by the lender against that part of the judge's decision and Mr Daniel Murphy is not named as a respondent to Mrs Murphy's appellant's notice. The judge rejected the applicant's claim that she had been the subject of undue influence or misrepresentation on the part of Mr Daniel Murphy; and he rejected her contention that she did not appreciate the nature or effect of the credit agreement or the mortgage deed. He held that the lender was entitled to an order for possession against her. His decision is reflected in the order which he made on 7th November 2001. He made an order for possession against the applicant. He set aside the credit agreement and the mortgage deed against Mr Daniel Murphy and he dismissed the lender's claim against him. He ordered that the lender pay Mr Murphy's costs; but he directed that the lender could add its costs of the action (including any costs that it had been ordered to pay to Mr Daniel Murphy) to its secured debt. The effect of that is that all the costs fall on Mrs Murphy as the owner of the property. It is clear from the judgment which he delivered on 26th October 2001 that, where their evidence differed, the judge preferred the evidence of Mr Daniel Murphy to that of the applicant - see at page 8D of the transcript. He formed a low opinion of the applicant's conduct and of her credibility. At pages 8F-9C he said this: "I say this because I am in no doubt on the evidence, and I so find, that Mrs Murphy was knowingly a party to each loan and charge [that includes the loans from First National and the charge to secure those loans], that she well knew what was being done, that spitefully and showing an utter disregard for Mr Murphy, she has sought to blacken his character, caused him to be falsely accused of various criminal offences by police, of a driving offence knowing that the person really involved was Dennis Bashford, who she represented to police was Mr Murphy, of an employee theft from people by whom Mr Bashford was employed but Mr Murphy never was, of supposed fraud in connection with loan applications and even of rape of her. None of these allegations were, on the evidence before me, true. Such accusations by Mrs Murphy and other previously unmentioned accusations first raised in the course of her evidence showed a wicked mind and a vindictive willingness to wound Mr Murphy in any way that she could." The applicant was represented by solicitors and counsel at the trial. I have had the benefit of a skeleton argument prepared for this application by counsel who appeared for her below. I have also had the benefit of oral representations from counsel, Miss Perry, who did not appear below but who appears to make this application on her behalf today. The ground upon which the applicant seeks permission to appeal is that an appeal would have a real prospect of success. Put shortly, it is said that the judge's findings of fact were against the weight of the evidence. In particular, it is said that the judge ought to have accepted the evidence of Mr Radley, the jointly instructed expert, that what appear to be the applicant's signatures to the First National Bank documents and on an application for loan made to Ocwen Ltd on 10th August 1999 had been forged; and that the judge ought to have accepted the evidence of a Mrs Georgina Harrison that she had seen the applicant hand over cash to a man in the street who, as Mrs Murphy said, was Mr Daniel Murphy. The judge dealt with these matters in detail. As to the evidence of Mr Radley he said this, at pages 4H-6C of the transcript: "In his written report Mr Radley gave his opinion as to the question of documents, that is to say the Ocwen Ltd credit agreement dated 10th August 1999 and First National Credit Agreement dated 27th November 1998. For comparison purposes he had Mrs Murphy's 1991 driving licence, 26 credit card sales vouchers, mostly from 1999 and the Ocwen Ltd mortgage deed dated 18th August 1999 and the Ocwen Ltd credit agreement also dated 18th August 1999, the signature on which was said to be written whilst her hand was bandaged. He gave it as his opinion that the 10th August 1999 credit agreement signature was a crude copy of her general signature style and compared with her sample signatures not thought to be of common authorship, and that the 27th November 1998 Credit Agreement signature was not written by her but was a copy of her general signature style, although far closer to the comparison signatures than the other questioned signature. He was cross-examined. He was relying on what he took to be the brain signal behind the writing. He accepted that if a person was on medication this could affect brain function. If Mrs Murphy had been correct she was frequently heavily medicated. Mr Radley knew nothing of that or of her supposed inability to read easily as she suffers from dyslexia. This too could lead to inconsistency in handwriting. Hesitation may produce modification in writing. Also, he had not known that she suffers from rheumatoid arthritis. He could not suggest on a balance of probability that either of the questioned signatures had been written by Mr Murphy. He did not think either signature had been deliberately disguised by the writer. The views expressed in his report were far from conclusive. Having heard his evidence, his conclusions became even less tenable and provide at best weak support for the suggestion that the questioned signatures were not those of Mrs Murphy and no support for the suggestion that they were written by Mr Murphy. Nevertheless what he had to say is to be considered together with all the other evidence in the case when reaching any conclusion as regards the authenticity of any of Mrs Murphy's ostensible signatures." [Note: the document dated 10th August 1999, to which the judge refers in the first and third sentences of that passage is not a credit agreement but a credit application form]. I add to that two considerations. The first is that the judge was not concerned with an allegation of forgery in relation to the documents on which the claimant was relying in this action. The question of forgery went to the credibility of Mrs Murphy when she said that she did not know about the First National Bank loans. The judge, in a later part of his judgment, expressed himself as quite satisfied that she was knowingly party to each loan and charge, and that she well knew what was being done - see page 8 at G. Second, that the judge had, in addition to the evidence of Mr Radley, the evidence of Mr Murphy who asserted that the documents which Mrs Murphy claimed were forged were in fact signed by her in his presence, so that to hold that the documents were forgeries would have involved the judge in disbelieving Mr Murphy's evidence of that point. In substance it would have required him to find that Mr Murphy had been a party to that forgery. There is really no escape from that. The judge plainly did not take the view that Mr Daniel Murphy had been party to a forgery. The judge held that he could not be satisfied that any ostensible signature of Mrs Murphy's was false. He thought it was more likely than not that she did sign each document herself - see at page 10D of the transcript. But, more damningly, he said this at page 8 between F and G: "It is not beyond the bounds of possibility that if any signature on any document was not that of Mrs Murphy it was signed by someone else in her name as if signed by her. I say this because I am in no doubt on the evidence, and I so find, that Mrs Murphy was knowingly a party to each loan and charge, that she well knew what was being done, that spitefully and showing an utter disregard for Mr Murphy, she has sought to blacken his character, caused him to be falsely accused of various criminal offences by police, of a driving offence knowing that the person really involved was Dennis Bashford..." The judge went on to reject the evidence of Mrs Harrison who had said that she had seen a package which she thought contained money being passed by Mrs Murphy to a man in the street. Preferring the evidence of Mr Daniel Murphy that no money had been paid to him the judge said this at page 12G in the transcript: "Whether Mrs Georgina Harrison was mistaken in her recollection or simply trying to help a friend who was at the time an almost daily and often twice daily customer of the hairdressing establishment where she worked it is difficult to say, but I am unable to accept her evidence as accurately reflecting what happened on the day in question. I prefer Mr Murphy's account of what happened and I find that no part of the monies from the Ocwen Ltd loan were ever paid to him in the way suggested by Mrs Murphy, whose evidence I reject, or at all." The position, therefore, is that the trial judge has made findings of fact which can only be challenged on the ground that he was wrong to prefer the evidence of one witness to that of another. The applicant must appreciate the hurdle with which an appellant, who seeks to challenge findings of fact made by a judge who has seen and heard the witnesses give their evidence, is faced in an appellate court. This court must recognise the advantage which the trial judge has had in assessing credibility; and unless satisfied that he has not made a proper use of that advantage, must respect his findings of fact. In my view this is not a case in which there is any real (as distinct from fanciful) prospect that the Court of Appeal would interfere with the clear findings of fact made by a trial judge who has based his conclusions upon his assessment of the witnesses, including the expert witness, who gave evidence before him. It follows that an appeal would have no real prospect of success. The application must be dismissed. (Application dismissed; no order for costs). BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII