‘Making allegations of fraud & wrongdoing’

I am proof-reading the 2nd Ed of my book, the ‘Contentious Probate Handbook’, which is scheduled for publication by the Law Society in mid to late February 2025.

I have updated the manuscript to refer to the principles stated in El Haddad v. Rostamani [2024] EWHC 448 (Ch) at [177] – [182] & set out below a short extract. I will ask my editor to reproduce the entire text of these paras in the book:

Mr Justice Fancourt stated:

[178]          Rule 16.4(1) of the CPR requires a claimant to include in their particulars of claim a concise statement of the facts on which the claimant relies. In this regard, the Chancery Guide states that the particulars of claim must be ‘as concise as possible’ (para 4.2(a)), and that in rare cases, where it is necessary to give lengthy particulars of an allegation, these should be set out in schedules or appendices (para 4.2(k). It also imposes a page limit … The court will expect a party to be able to justify the need for any statement of greater length.’
[179]          The Practice Direction to Part 16 of the CPR provides that
‘8.2   The claimant must specifically set out the following matters in the particulars of claim where they wish to rely on them in support of the claim (1) any allegation of fraud; (2) the fact of any illegality; (3) details of any misrepresentation; ….’
It is well-established in the case law that the requirement to set out an allegation of fraud means that particular facts relied upon as demonstrating the fraud must be pleaded.
[180] The Chancery Guide explains what is required at para 4.8 … [NB the book will set out the text of the revised para 4.9 in full, which refers to the El Haddad principles].
[181] The last sub-paragraph is of particular significance. In a claim where there are no available facts that directly prove dishonesty or fraud, a claimant relies on inferences to be drawn from other facts. These facts must be stated, including those on the basis of which it is to be inferred that a defendant knew that what they or someone else said was false. As para 4.9 of the Guide says, a party must not make allegations of fraud or dishonesty unless there is credible evidence to support the allegation.
[182] The more serious is the allegation of wrongdoing, the greater the need for particulars to be given that explain the basis for it: Three Rivers District Council v Governor and Company of the Bank of England (No.3) [2003] 2 AC 1, per Lord Hope at [51]. The inference of dishonesty from the primary facts pleaded must be more likely than one of innocence or negligence: JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm), approved by the Court of Appeal in Sofer v Swissindependent Trustees SA [2020] EWCA Civ 699; [2020] WTLR 1075, per Arnold LJ at [23].