Case No. UKUT-243-(LC)-UTLC-Case-Number:-LC-2022-147

is a review of the decision of the FTT. The appellant was represented by solicitors and counsel in the FTT but has not been represented on the appeal; the respondent has been represented by Mr Stephen Connolly of counsel.3.Permission to appeal was granted by this Tribunal on two grounds. The first was that the judge should have allowed the crucial witness, Ms Mitchell, who was said to have witnessed the transfer of the property to give evidence by video link when it became clear that she was not going to attend the hearing in response to a witness summons. The second was that the judge failed to take account of significant parts of the evidence when making his decision about the credibility of the respondent. I will explain those grounds in more detail below.4.I begin with an account of those few of the facts that are not disputed, before summarising the FTT’s decision and then exploring the grounds of appeal. As did the judge in the FTT I refer to the parties by their first names, for the avoidance of confusion since Muazzez is the respondent to this appeal but was the applicant in the FTT.The factual backgroundThe family and the properties5.Muazzez and her husband Edhem Mehmet Edhem (to whom I refer as Mr Edhem senior) were born in Cyprus and moved to London in 1964. In 1968 they purchased 25 Netherford Road and it was their family home; Mr Edhem senior worked for British Rail and Muazzez ran a fashion design business. She was 82 in the summer of 2021 when the FTT hearing took place.6.Muazzez and her husband had three children. The eldest, Isa, is a consultant urologist; his sister Emmetulah is a barrister at No 5 Chambers, and has played no part in these proceedings. Both Isa and Emmetulah left home to pursue their careers and raise their families; the appellant Mehmet, the youngest of the three, continued to live with the respondent at 25 Netherford Road with his wife Sina. The family speak Turkish with each other, and one of the features of the case has been disputes about translations of conversations that were conducted in Turkish.7.27 Netherford Road was purchased in Muazzez’s sole name in 1979; it was refurbished and then let. 25 and 27 Netherford Road were said to be worth, at the time of the FTT hearing, about £1 million each.8.25 Netherford Road was transferred to Isa and Mehmet in 2014, when Mr Edhem senior’s health was failing; the judge found that the transfer was effected in an attempt to avoid an eventual payment of inheritance tax on the property and that Muazzez used 27 Netherford Road as a correspondence address in order to disguise the fact that she was still living at number 25. She moved out in 2018 and number 25 was later sold for £1 million.9.Mr Edhem senior died on 19 May 2016 after spending some time in hospital. 10.A transfer of 27 Netherford Road in form TR1 from Muazzez to Mehmet, dated 27 May 2016, appearing to have been signed by Muazzez and witnessed by Ms Millicent Mitchell, was presented to HM Land Registry and registered. 11.27 Netherford Road was subsequently charged by Mehmet to Nat West Bank as security for a loan; as part of the mortgage procedure he provided a form of occupier’s consent and postponement of equity, again apparently signed by his mother and witnessed by Ms Mitchell. The charge has since been redeemed. At no time has Muazzez lived at number 27.12.In April 2018 Muazzez reported to Action Fraud (the UK’s national reporting centre for fraud, run by the City of London Police) that she had been misled into transferring the property to him; and in June 2018 Muazzez applied to HM Land Registry to have the register altered, saying that her signature on the transfer had been forged.The proceedings in the FTT13.Mehmet objected to Muazzez’s application to HM Land Registry and the matter was referred to the FTT in February 2019, pursuant to section 73(7) of the Land Registration Act 2002. The reference was heard over several days in July and August 2021; the long delay between reference and hearing was no doubt partly caused by the pandemic, but is also a measure of the volume of evidence filed and of the complexity of the proceedings. There were a number of interlocutory applications and a case management hearing. Muazzez was the applicant in the FTT proceedings; she was alleging fraud and so she had the burden of proof.14.Mehmet filed witness statements by Ms Mitchell, confirming that she witnessed the respondent’s signature on the transfer on 21 April 2016, and that in July 2016 she witnessed her signature on the deed of postponement. In July 2021 Mehmet asked that she be allowed to give evidence by video link. His solicitor made the application and said that he had been told that Ms Mitchell, as an elderly lady of Afro-Caribbean origin, was concerned about rising levels of covid in London and was not happy to attend. Muazzez’s representative opposed the application and said (in his skeleton argument for the case management hearing on 7 July 2021), that it would be “grossly unfair” to the respondent for Ms Mitchell to do so. The judge refused the application on the grounds that “her evidence was too important, too contentious and too difficult to manage to permit such an application” (paragraph 6.39 of the FTT’s judgment). Instead a witness summons was issued. Ms Mitchell did not attend the hearing.The FTT’s decision15.Muazzez’s case before the FTT was that she did not sign the transfer of 27 May 2016; necessarily therefore she said that Ms Mitchell did not witness her signature. In the alternative she said that the transfer was not a deed that could have transferred title to the property because it was not witnessed. She argued that she and her husband had tried to be even-handed between their children and that it would have been out of character for her to have given 27 Netherford Road to Mehmet alone. The judge considered the evidence about various valuable gifts made to the three children over the years and observed that if Muazzez did transfer 27 Netherford Road to Mehmet then he had received about £2 million in cash and property while Isa had received £950,000 and Emmetulah £450,000.16.Mehmet’s case was that during the weeks prior to the death of Mr Edhem senior Muazzez had discussed with him the transfer of 27 Netherford Road to him. He said that at his suggestion she instructed Best Value Conveyancing (“BVC”) to deal with the transaction and through BVC dealt with a firm of solicitors, Hawkins Ryan, whose conveyancing file was disclosed. The file indicated that they were instructed by a Muazzez Edhem whose email address was [email protected], and whose correspondence address was 27 Netherford Road. The file included numerous references to telephone conversations, in which the client was chasing for completion during May 2016. Mehmet gave evidence that he took his mother to visit Ms Mitchell to have her signature witnessed, because she was a tenant of his with whom his mother got on well.17.In his decision the judge noted Muazzez’s position, which was that she knew nothing about Hawkins Ryan and did not instruct them. Nor did she sign the transfer of 27 May 2016. He said that it was “an oddity” that in county court proceedings brought by Mehmet against Isa in April 2018 (seeking an injunction to restrain Isa from harassing him) she had said in a witness statement (made in support of Isa) that she did sign a document that transferred 27 Netherford Road to Mehmet, but that he had misled her into doing so. The judge added that Mehmet also sought to rely on Muazzez’s alleged admission to the same effect in a conversation with Sina that had been covertly recorded.18.The judge went on to say that Muazzez’s explanation for “this apparent inconsistency” was that during the week after her husband died she went with Mehmet to a firm of solicitors, Streathers, and signed a document that she thought was a transfer of 27 Netherford Road to all three children. Streathers have no record of that visit.19.The judge then turned to Mehmet’s case and discussed the evidence from Hawkins Ryan’s file. He found that the numbers from which calls were made to Hawkins Ryan were the numbers of Mehmet’s telephone and of Sina’s. The judge also found that the emails on Hawkins Ryan’s file were written by Mehmet not by Muazzez (on the basis of their style and content). He found that it was highly unlikely that Muazzez would have engaged in correspondence and repeated telephone conversations with a firm of solicitors about a conveyancing matter during the final days of her husband’s life while he was in hospital and she was visiting him daily. He found that either Sina or another woman impersonated Muazzez on the telephone.20.The judge therefore rejected Mehmet’s account of how the transfer came to be signed.21.However, the judge observed that that did not necessarily mean that the transfer was forged because Mehmet might have a reason (arising from his relationship with Isa) for lying about the circumstances in which it came to be executed.22.The judge therefore turned to the evidence of execution. He noted again that Muazzez’s position was simply that she did not sign the transfer, and that once she saw the form TR1 she changed her position; instead of saying that she had signed a transfer at Streathers which she thought was a transfer to all her children, she now said that she certainly did not sign the TR1 of 27 May 2016. Expert witnesses had been instructed to examine the handwriting, but were unable to conclude that the signature was or was not Muazzez’s. Accordingly the judge considered Ms Mitchell’s evidence. She had made three witness statements. The first was made on 15 January 2019 and was produced to HM Land Registry as part of Mehmet’s objection to Muazzez’s application for alteration of the register. It was very brief and simply confirmed that she witnessed the signature of the TR1 and that Muazzez appeared to sign it willingly. 23.The second was dated 17 April 2019, again addressed to HM Land Registry. It recorded that Isa Edhem had visited her on 4 February 2019 and had visited her again, this time with Muazzez, on 31 March 2019. He presented her with a document that she did not recognise and asked her if she had signed it, saying that he thought her signature had been forged. She did not recognise it because “another address was printed along the top of it which was not printed on the original which I did sign”. The witness statement concluded by confirming that she did sign her first witness statement and that her signature to it was not forged.24.It was not in dispute that those two visits took place. Indeed, Isa recorded them. The judge listened to the recordings, and noted that on the first occasion Ms Mitchell was “not forthcoming” and did not appear to recognise the name Muazzez Edhem. The recording of the second visit indicated that Ms Mtcthell was shown a copy of her first witness statement and that she denied any recollection of it.25.Isa in his witness statement confirmed that he showed Ms Mitchell her first witness statement and that she did not recognise it. He went on: “I then showed Ms Mitchell the TR1 bearing the purported signatures of mum and Ms Mitchell. Again. Ms Mitchell confirmed that she did not recognise the TR1 and she did not remember signing anything.” But the recording showed that to be untrue; Ms Mitchell was not shown the TR1 and did not deny having signed it. The judge said “That is unsatisfactory but ultimately nothing turns on it because the meeting was recorded (both by Isa and by Ms Mitchell) and because Ms Mitchell did not attend to give evidence.”26.Ms Mitchell’s fourth statement recounted the signing and witnessing of the TR1 and (on a later occasion) the mortgage form, and the two visits from Isa, but did not add anything material. The judge found that all Ms Mitchell’s witness statements were prepared by Mehmet personally.27.The judge went on to explain that an application had been made prior to the trial for Ms Mitchell to give evidence remotely, which he had refused; that a witness summons had been served; and that when Ms Mitchell did not attend Mehmet’s counsel did not seek an adjournment in order for him to apply to the High Court for an order committing Ms Mitchell for contempt. The judge then considered what weight he should attach to Ms Mitchell’s written evidence. He noted that in neither of the recordings of her conversations did she indicate willingness to assume responsibility for the witness statements apparently signed by her; and that her statements were all drafted by Mehmet rather than the witness being proofed by a professional person owing duties to the Tribunal. He added that he bore in mind that Mehmet was accused of forging his mother’s signature on a transfer of property worth £1 million. He concluded that he could not place any weight on the witness statements. He had no confidence that they represented her evidence or even that she signed them. He added that there was no evidence of service of the witness summons, whereas he would have expected a witness statement from Mehmets solicitor describing the steps taken to serve the summons and would have expected a process server to be instructed. The judge expressed the strong suspicion that the solicitor delegated service to Mehmet himself, and that he had no confidence that any genuine effort was made to serve the summons, probably because Mehmet did not wish Ms Mitchell to give evidence.28.On the balance of probabilities therefore the judge concluded that Ms Mitchell did not witness Muazzez’s signature.29.The judge rejected Mehmet’s case that Muazzez was suffering from increasingly serious memory problems. He noted that in giving evidence Muazzez became tired quickly and lost her grip on the material circumstances of her case, and that she had not been wholly frank, but took the view that she did have a firm grip on events and was satisfied that as to the central issue, whether or not she signed the transfer, she was telling the truth. Mehmet, by contrast, had shown himself determined to give as little information as possible and was willing to tell lies – for example about the authorship of emails on Hawkins Ryan’s file.30.Finally the judge turned to Sina’s evidence. She had been out of the country at the time of the trial and for various technical reasons had been unable to give evidence. Her evidence was that she had had a conversation with Muazzez in which Muazzez said she had transferred 27 Netherford Road to Mehmet. But the judge said that nothing turned on that because at the time when that conversation took place Muazzez believed she had signed a document transferring 27 Netherford Road to someone, so that her admission was unremarkable.31.The judge concluded that Millicent Mitchell did not witness Muazzez’s signature on the transfer, that Muazzez did not sign the transfer, and that Mehmet forged her signature. He said that he was unable to say whether Mehmet forged Ms Mitchell’s signature on her witness statements or suborned her in some way. Accordingly the registration of Mehmet as proprietor of 27 Netherford Road was a mistake and the register should be corrected.The appeal32.The FTT refused permission to appeal the decision. The application was renewed to the Upper Tribunal, and an obvious cause for concern with the grounds of appeal was that they were primarily challenges to findings of fact and to decisions about credibility. But two problems stood out. One was the absence of evidence from Ms Mitchell; she was a crucial witness and it was not possible to understand why she had not been allowed to give evidence remotely. The other was the absence of explanation for Muazzez’s inconsistent statement in other proceedings about her having signed a transfer of the property. What the judge recounted as her explanation for that – summarised at my paragraph 18 above – did not explain it. The judge did not make any finding about that inconsistent statement and did not say how it affected his view of credibility. That was particularly startling when the judge appeared to have been unconcerned about an obvious lie by Isa about what he said to Ms Mitchell (paragraph 25 above), and about Muazzez’s admission to Sina that she had transferred the property to Mehmet. That much was apparent from the decision; Mehmet also points out that the judge did not mention or make any finding about the evidence of his witness Mr Houlous, who said that Muazzez told him that she had transferred the property to Mehmet, nor about the content of the Metropolitan Police file (“the MPF”) following Muazzez’s report of the fraud, which appears to contain statements by Isa and by Muazzez that are inconsistent with the judge’s findings.