Ali v Dinc & Anor [2022] EWCA Civ 3421 January 2022
Published: 19/04/2022 09:00
https://www.bailii.org/ew/cases/EWCA/Civ/2022/34.html
Lord Justice Green, Lord Justice Birss and Lady Justice Whipple.
The claim concerned the transfer of properties between the parties and the dispute that arose as to the terms of that arrangement. At trial, the judge rejected key aspects of each party’s case, but made findings of fact, leading to the finding of a Quistclose trust.
The appeal was pursued on the ground that the judge decided the case on the basis of an arrangement that the claimant had not pleaded and had expressly disavowed in cross-examination. It was argued that the judge crossed the line which separated adversarial and inquisitorial systems, the case of Al-Medenni v Mars UK [2005] EWCA Civ 1041 cited in support. The respondent contended that the proceedings before the judge couldn’t be characterised as inquisitorial.
The appeal was dismissed on the basis that the judge's conclusions were composed entirely of the acceptance or rejection of factual assertions which were pleaded or implied. The case could be differentiated from cases like Al-Medenni or Satyam Enterprises Ltd v Burton [2021] EWCA Civ 287, in which the judge found facts which were outside the ambit of either party's pleaded case. Even if a party abandoned their alternative case in cross examination, the fact that a witness sticks to their case in the witness box was unsurprising. The point of an alternative case was to countenance the possibility that the judge may not accept the party's case and testimony as a whole. This was not a case in which the judge adopted an inquisitorial approach or made any other error. Appeal dismissed.
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