Sam Phillips of Five Paper’s Private Client team, has provided the following summary on TrustsForgery (or false allegation), new evidence and breach of undertakings.
Peters v Joseph [2026] EWHC 775 (Ch)
When can a finding of fraud be challenged?
Findings of fact made, having heard live evidence at trial are notoriously difficult to overturn. The appeal court is required to give significant weight to the fact that a trial judge has had the benefit of seeing the demeanour and response of witnesses and hearing their evidence tested in cross examination.
PvJ related to the veracity of a deed of trust concerning a home in London. Under the Deed, the Deceased was the owner of all but 1%, which in turn would pass to the Deceased’s son following his death.
The Deceased’s former wife resisted the claim on the basis that the Deed itself was a forgery meaning that as a joint tenant, she retained possession through survivorship.
Following a trial before Recorder Eaton Turner at the County Court at Central London, the judge found that the deed of trust was a forgery and that, accordingly the London property was solely owned by the Deceased’s ex-wife.
On appeal to the Chancery Division of the Hight Court, Mr Justice Edwin Johnson found for the Claimant (Appellant) that in order for the Deed to be a forgery, other contemporaneous documents would also have to have been fabricated. In circumstances where the trial Judge did not consider this (or make any conclusions to that effect), it was possible for the appeal court to find that the judge had failed to address or turn his mind to the extent to which it was simultaneously necessary and unlikely that multiple forgeries would have been prepared, meaning that the finding of fraud was unsustainable.
New evidence post-trial
Notably, the Appeal Judge also allowed the Claimant to rely on new evidence that had come into the appellant’s possession, post-trial, which included communications between the Deceased and the Respondent corroborating division of the property in the Appellant’s favour. The Court addressed the test for the inclusion of ‘new’ evidence on appeal and allowing the same, took the view that this was further justification for overturning the Trial Judge’s finding.
Rather than electing to revisit the outcome of the trial himself, the Appeal Judge took the view that the new evidence required a retrial to be listed and in the interim the Court found that the Respondent had breach the terms of an undertaking not to interfere with the Appellant’s purported right to occupy the Property, which had been his home since childhood.
Breach of Undertakings
The Respondent sought to argue (somewhat hopefully) that as the Appellant had been excluded from his home for a number of years, it was impossible to argue that undertakings allowing him to reside maintained the status quo. The Court considered the relevant test for releasing the Respondent from her own undertakings (ie. is there a good reason arising from a change in circumstances that is substantial?).
The Court unsurprisingly found that there was no good reason and confirmed the Court of Appeal’s statement that the person offering undertakings could not rely upon their own breach(es) of their promises to make out a substantial change in circumstances.
Key Takeaways
- While difficult to get new evidence before the Court, in the right circumstances it can be done, particularly in circumstances where there appears to have been a breach of duty;
- Findings of fraud, particularly the forgery of documents require convincing proof. The Court should not take evidential leaps in order to make out a position;
- The Court will look very unfavourably on offerors of undertakings who breach the same and will be swift to ensure the costs consequences of the same are draconian.