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	England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Patel v Windsor Life Assurance Company Ltd [2008] EWHC 76 (Comm) (25 January 2008) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2008/76.html Cite as: [2008] EWHC 76 (Comm), [2008] Lloyd's Rep IR 359

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		25/01/2008

Mr. Justice Teare :

1. This is a claim by Vipul Patel against the Windsor Life Assurance Company Limited for the sum of £250,000. The claim is made under a Life Assurance Policy issued by Virgin Direct (whose business is now being conducted by the defendant insurers) on the life of a person described as "Mr. Amitkumar A. Barot". The life was insured for a period of 7 years from 18 December 2000. Pursuant to a deed of trust dated 10 January 2001 the policy was assigned to Mr.Barot and Mr. Patel as trustees. In the event of the death of Mr.Barot all benefits were payable to Mr. Patel.
2. Mr. Patel claims that Mr. Barot died in India on 2 October 2001 and indeed that he witnessed his death. The insurers have denied liability. They say that Mr. Patel is unable to prove on the balance of probabilities that Mr. Barot, the life assured, has died. They further say that the policy was procured as part of a fraudulent scheme involving applications to at least five life insurance companies for in excess of £13,000,000 cover on the life of Mr.Barot. The burden of proving this fraud lies upon the insurers who must do so on the balance of probabilities. But cogent evidence, commensurate with the gravity of the allegation made against Mr.Patel, is required to prove the allegation on the balance of probabilities; see Ikarian Reefer [1995] 1 Lloyd's Rep. 455 and Re. H [1996] AC 563. If such a fraud is proved then, the insurers say, Mr.Patel is unable to recover.

The Claimant, Mr. Patel

3. Mr. Patel is aged 43. He was born in Gujarat in India and came to England in 1989. He describes himself as a self employed immigration consultant. He lives in a 3 bed-roomed house at 91 Bowen Road, Harrow with his wife, son and mother. The house is rented through a Housing Association.
4. In 1999 Mr. Patel was convicted at the Harrow Crown Court of a number of offences of dishonesty. For these offences he was sentenced to 18 months imprisonment and ordered to pay £5000 in compensation. He served 7 months in prison from June 1999 to January 2000.

Mr.Barot

5. The insurers do not accept that Mr. Barot existed. They have put Mr. Patel to proof that he did exist. However, they do not positively assert that he did not exist. Thus it was not suggested to Mr. Patel in cross-examination that throughout the material events he posed as Mr. Barot though it was suggested that he did so in the course of certain telephone calls. They submitted that it did not really matter whether or not there was, in addition to Mr. Patel, a person who called himself Mr. Barot because it was their case that even if there was such a person the fraud they alleged was carried out by Mr. Barot and Mr. Patel together and it followed that were entitled to avoid the policy.
6. There was some evidence that a man calling himself Mr.Barot existed. Mr. Patel's evidence was that he first met Mr.Barot in India. When Mr.Barot came to England in 1993 or 1994 Mr.Barot stayed with him from time to time. In 1998, by which time Mr.Patel had moved to 91 Bowen Road, Mr.Barot again lived with Mr. Patel from time to time.
7. Mrs. Rambhaben V Ravji, who lives at 97 Bowen Road, also gave evidence. She is 80 years old and came to England 12 years ago from Kenya. She said that a man by the name of Amit Barot lived with Mr. Patel and used to take her to the Temple every Monday during the holy month. She was shown a photograph of two persons and she identified as Mr.Barot the person who Mr. Patel says was Mr.Barot.
8. There was also in evidence a BT telephone bill addressed to Mr. Barot at 91 Bowen Road dated 23 April 2000.
9. On 11 May 2000 a bank account in the name of Mr. Barot was opened with Barclays. He gave his address as 91 Bowen Road. The application form signed by him stated that he worked as a sales assistant for Music Zone in Wembley and that he earned £15,000 per annum. I was told, based upon documents disclosed by Barclays, that before opening the account the bank had been provided with a copy of Mr. Barot's Indian passport. There is no dispute that the passport had been issued by the Indian authorities to Mr.Barot but it was observed, based upon extensive enquiries made in India, that the address given in the passport did not exist.
10. Mr. Patel said that in 2001 Mr. Barot was about 34 years old. He said that he knew Mr.Barot to be an actor who specialised in impersonating well known Indian actors.
11. Mr. Patel said that when he was in prison Mr. Barot lived in his house and paid all the bills. He visited Mr.Patel in prison and after Mr. Patel was released he continued to live in the house from time to time. Mr.Patel said that Mr.Barot drove rented cars and sometimes had large sums of money. He described him as kind and helpful.
12. When medical tests were carried out pursuant to applications for life assurance a Mr.Barot presented himself to the doctor or medical concerns carrying out the tests. When deeds of trust were executed in relation to certain of the life policies a solicitor witnessed the signature of a Mr.Barot who probably provided the same passport as that presented to Barclays Bank. This person must have been other than Mr. Patel because the latter's signature was also witnessed by the solicitor.
13. Counsel for the insurers observed that the evidence before the court did not include many of those indicia of existence which one would expect, such as a national insurance or tax reference number. He further observed that the Barclays Bank account statements did not reveal the type of ordinary domestic expenditure one would expect to see. Further, Mr.Arvind Patel, who lived at 89 Bowen Road, did not know of a Mr.Barot living at 91 Bowen Road. Nor did his daughter, Preena Patel.
14. Notwithstanding these matters I consider that the evidence does show that there was a person who called himself Mr.Barot and that he was someone different from Mr. Patel. In this regard I have particularly in mind the evidence that a solicitor witnessed the signatures of both Mr. Patel and Mr.Barot to one or more deeds of trust. Similarly, as I shall later narrate, Mr. Mistry, an independent financial adviser, held a meeting with both Mr.Patel and Mr.Barot.
15. When I refer to Mr.Barot in the rest of this judgment such references should therefore be taken as referring to a man who called himself Mr.Barot. Since so little is known about that person I am unable to say that whether Mr.Barot was his real name.

The insurance sought to be obtained on the life of Mr. Barot.

Virgin Direct

16. On 19 September 2000 an application was made to Virgin Direct in the name of Mr. Amitkumar A. Barot for life insurance in the sum of £5,316,142. The manuscript entries were made by more than one hand. Mr. Patel accepted that the details of Mr. Barot's doctor were written by him. A financial questionnaire was signed in the name of Mr. Barot on 21 September 2000. But details of Mr. Barot's earnings (£25,000 per year), his property (£200,000) and debts (£15,000,000) were entered in manuscript by Mr.Patel. When giving evidence Mr. Patel said that he thought the question relating to property referred to the value of the house which he was renting but which he hoped to buy. If this was his understanding he was clearly mistaken. The question related to the property of the applicant for life insurance, Mr. Barot. Mr. Patel also wrote on the form that the life insurance was required to repay an outstanding loan from the Bank of India. However, by a letter dated 21 September 2000 and signed by Mr. Barot it was stated that the policy was required "to protect my Producer who is making an Indian movie. I am playing leading role in the movie so I need that cover. As I have already told that I need cover from 15 October 2000 onwards. For this role, my remuneration will be paid in £4.5 million on release of the movie."
17. This information did not satisfy Virgin Direct who replied on 28 September 2001 that they did not feel able to provide the insurance requested. However, they said that if further information was provided concerning the producer of the film, Mr. Barot's work over the last 3 years, full details of the disclosed £15,000,000 liability and other matters they would give further consideration to the request.
18. A reply from Mr. Barot was received dated 2 October 2000. He stated that he could not ask the producer for information because he feared he might be "fired" from the project, this being Mr. Barot's first contract with him. He said that the £15,000,000 liability was "the total investment of the project i.e. to complete the movies…"
19. On 19 October 2000 Virgin Direct replied stating that in the absence of the requested information they could not consider Mr. Barot's application. However they said they would quote for a maximum cover of £250,000.
20. Mr. Barot applied for such cover on 30 October 2000. A medical report was required. By letter dated 13 December Dr.Ahmad informed Virgin Direct that Mr.Barot had only recently registered with him and that Mr.Barot had not been seen by a doctor. Thus Dr.Ahmad had not completed a report.
21. On 14 December 2000 Virgin Direct asked Mr.Barot for the name of his previous GP so that a report could be sought from him. They also asked for his telephone number. A manuscript note records that they were given the number 0771 891 7574. In cross-examination Mr. Patel accepted that this was his mobile number (as he had when questioned by the police in February 2002). When asked to explain why his mobile number was given he said he was unable to answer that question. In re-examination he said the number belonged to Mr.Barot and was paid for by him and that he, Mr.Patel, only used it in the last 2-3 months of 2001. Since this was contrary to what he had told the police and agreed in cross-examination I cannot accept this explanation.
22. On 18 December 2000 Virgin Direct said that they had received a "medical….but not fully completed by the examiner." They informed Mr.Barot that they had "received all the information we needed, so your cover is now in place."
23. Dr. Ahmad has since stated, on the basis of the medical records maintained by him, that he saw Mr. Barot on 19 December 2000 when blood tests were taken. The results were received on 22 December 2000 and showed a high cholesterol reading.
24. On either 8 or 10 January 2001 a deed of trust was executed by Mr. Patel and Mr. Barot witnessed by Carole Dolan of Blaser Mills Winter Taylors, solicitors. Although there has been no evidence from her it would appear that when she witnessed the execution of the deed of trust she must have met two persons, one being Mr. Patel and the other calling himself Mr.Barot.
25. Thereafter there were two attempts by Mr. Barot to increase the life cover, firstly to £1,000,000 and secondly to £5,500,000. The first occasion was on 13 February 2001 when Mr. Barot telephoned Virgin Direct asking to increase his life cover to £1,000,000. This request was refused. The second occasion was on 2 May 2001 when Mr.Barot telephoned Virgin Direct seeking an increase in his life cover to £5,500,000 stating that he had evidence from his accountant supporting high levels of earnings. Virgin Direct replied that they would look at the financial information.
26. On 31 May 2001 Mr.Barot sent Virgin Direct a copy of a letter from Ashwin Agrawal & Co. purporting to show that Mr.Barot's earnings over the period 1997-2001 were in excess of £500,000 per year.
27. On 1 June 2001 Virgin Direct faxed the letter to their re-insurers who informed Virgin Direct that they had seen the same information provided by another insurance company and that further cover should be declined. On the same day Virgin Direct informed Mr. Barot that they were unable to offer any further cover.

Norwich Union

28. On about 18 December 2000 (the day on which Virgin Direct confirmed cover for £250,000) a proposal form seeking life cover for £1,000,000 from Norwich Union was signed by Mr. Barot. However, the manuscript entries in the form were written by Mr. Patel. Dr.Ahmad was identified as Mr. Barot's doctor though in the event a medical report was provided by a doctor on behalf of GP Direct. Tests for HIV and cotinine were required. A company called Paramed arranged to do these for Mr.Barot. He appears to have given the mobile number of 07718 917574. Mr. Patel was not able to explain why Mr.Barot should have given his mobile number. A financial questionnaire was signed by Mr. Barot dated 1 February 2001 but the details were entered in manuscript by Mr. Patel. These included yearly income from 1998 to 2000 of £80,000 - £120,000 and real property of £600,000. The cover was said to be required for "family protection".
29. A declaration of trust was made in favour of Mr. Patel on 13 February 2001 although Norwich Union had yet to confirm cover. On 21 July 2001 cover for £1,000,000 was confirmed.
30. On 6 August 2001 Mr.Barot signed a further proposal for cover of £2,000,000 from Norwich Union. The manuscript details were entered by Mr. Patel. A letter bearing the same date from Mr. Barot stated that he wanted the policy to protect "my new house mortgage". The letter from Agrawal and Co. was also produced as was a letter from Mr. Mehulkumar Brambhatt to Mr.Barot stating that his firm had approved a loan to him of £1,700,000. This application for further cover was refused.

Royal and Sun Alliance Insurance

31. In November/December 2000 Mr.Barot applied, through an Independent Financial Adviser called Ramesh Mistry, for life cover from Royal and Sun Alliance in the sum of £5,000,000.
32. A document signed by Mr.Mistry records that there was a review meeting on 20 November 2000 and a recommendation meeting on 6 December 2000 attended by Mr.Mistry, Mr. Barot and Mr.Patel. Part of the manuscript in the client review form was that of Mr.Patel though the form was signed by Mr. Barot. In particular Mr. Patel wrote out Mr.Barot's name, address and date of birth. He also wrote out details of earnings of £25,000 in the years 1998-2000. Mr.Patel denied that he had been at this meeting. This had not been stated in his witness statement. The document signed by Mr.Mistry is clear evidence that he was present and I accept that he was.
33. Other manuscript entries (though not made by Mr.Patel) stated that Mr.Barot was an actor "getting a signing on fee of £2.5m and balance when project is completed." The protection was stated as being required "to ensure repayment of fee in case of premature death". It was further stated that over the period of 5 years his total earnings would be in the region of £5m. Protection was needed "in the region of £5m level." On 6 December 2000 an application form was signed by Mr.Barot.
34. A financial questionnaire signed by Mr. Barot on 12 January 2001 contained some manuscript entries by Mr. Patel.
35. Royal and Sun Alliance had to liaise with their reinsurers. They had further requirements including evidence of earnings from a reliable source. A letter dated 5 February 2001 from Mr.Mistry to Mr. Barot stated that the need for a full financial report had been requested from Mr.Patel and that this requirement had been discussed in some detail with Mr.Patel. Mr.Patel denied that this had happened and suggested that the author of the letter was mistaken. This had not been stated in his statement. I accept what is stated in the contemporaneous letter. On 28 March 2001 Mr.Mistry's office had received documents purporting to be Indian tax receipts but these were not acceptable to the reinsurers who required a written certificate of earnings from an accountant or solicitor, preferably UK based.
36. By 24 April 2001 Royal and Sun Alliance had received copies of Mr.Agrawal's letter dated 23 April stating equivalent sterling earnings of approximately £500,000 per year 1997-2001. They were forwarded to the reinsurers. But these were not acceptable to the reinsurers who would not sanction cover beyond £250,000. Such cover was confirmed on 26 June 2001. A trust deed naming Mr.Patel as the beneficiary was signed on 15 August 2001.

Cornhill Direct

37. On 12 August 2001 Mr.Barot applied for life insurance from Cornhill Direct on the basis of a monthly premium of £25. The form was filled in by Mr. Patel and the application was accepted on 22 August when cover for £131,065 was granted. By a trust deed dated 3 September 2001 Mr.Patel was appointed sole beneficiary. He was stated to be a "family member/brother." Whilst he may have been a close friend he and Mr.Barot were not members of the same family.
38. Thus the total cover obtained was £1,631.065. By contrast cover exceeding £12,500,000 had been sought from the four companies who granted cover.

Friends Provident

39. An attempt was also made to obtain cover from Friends Provident. On 7 June 2001 Mr.Barot made an application to Friends Provident for £750,000 life cover. All the manuscript entries were made by Mr.Patel apart from Mr.Barot's signature. A financial questionnaire was signed by Mr.Barot on 2 July 2001. Some entries were made by Mr.Patel, including annual earnings of between £223,000 - £266,000. On 2 July Mr. Barot signed a manuscript document enclosing Mr.Agrawal's letter. It was written by Mr. Patel. A decision was postponed pending medical evidence. No cover was provided.

Principal issues of fact

40. There are two important issues to resolve; firstly, were Mr.Patel and Mr.Barot party to a fraudulent scheme to defraud a number of life insurance companies, including Virgin Direct, and, secondly, did Mr. Barot die in India on 2 October 2001 ? The two questions are related and it is sensible to consider the fraud issue first.

Fraud

41. There are several striking features of the applications made by Mr. Barot for life assurance.
42. The first of these is that Mr. Patel was responsible for filling out important parts of the proposal forms and financial questionnaires which were signed by Mr.Barot. Mr. Patel gave evidence that he was requested to do this by Mr. Barot but was unable to say why Mr.Barot asked him to do this. Although he said that Mr.Barat asked him for help because they were living in the same house there was no suggestion that Mr.Barot was unable to complete the forms himself.
43. The second striking feature of the applications is the information given by Mr. Barot and written out by Mr. Patel concerning the income of Mr. Barot. Mr. Barot told Barclays Bank that he had an income of £15,000 per annum. He told Virgin Direct in entries written by Mr.Patel in the financial questionnaire dated 21 September 2000 that Mr.Barot's income was £25,000 per annum. Yet very different figures were given at other times. In the financial questionnaire dated 1 February 2001 Mr.Barot (by signing it) and Mr. Patel (by writing out the figures) told Norwich Union that Mr.Barot had had earnings from 1998-2000 of £80,000-£120,000 per annum. In the financial questionnaire dated 2 July 2001 Mr.Barot (by signing it) and Mr.Patel (by writing out the figures) told Friends Provident that Mr.Barot's income from 1999-2001 was £223,000-£266,000 per annum. By a manuscript note also dated 2 July 2001 signed by Mr. Barot but written by Mr. Patel they provided Friends Provident with a copy of Mr.Agrawal's letter which stated that for the years 1997 – 2001 Mr.Barot had earnings in India equivalent to £400,000 - £666,000 per annum. No evidence was led to explain from where these substantial earnings had come. They stand in stark contract to the modest earnings Mr.Barot admitted to in his application for a bank account and to the fact that Mr.Barot lived, from time to time, in a room in Mr. Patel's 3 bed-roomed house. Between February and July 2001 the statements of his income grew from £80,000-£120,000 to £223,000-£266,000 to £400,000-£666,000.
44. The third striking feature is the apparent dramatic improvement in Mr.Barot's employment prospects as told to Virgin Direct and to Royal and Sun Alliance. Mr.Barot told Virgin Direct that he was to be paid £4,500,000 for playing a leading role in an Indian movie. He told Royal and Sun Alliance that he was to receive £5,000,000 over a period of 5 years.
45. Some evidence was proffered in support of this happy turn of events. A letter dated 14 November 2000 from Mr. Mehulkumar A. Brambhatt stated that

"as producer come director of my seventh film I will offer you leading role in my feature film…………I can confirm that I will pay you £225,000 for each completing schedule of the film. The whole project is divided in to 20 schedules…….. The film will be ready to start in the 3^rd. week of the January 2001."

46. Mr. Patel was unable to say whether Mr.Barot went to India to take up this offer. There is no evidence that he did. Enquiries to trace a film producer and director by the name of Mehulkumar A. Brambhatt produced a negative result. There is a director named Mr. Mehelkumar but he is not known as Brambhatt; which name signifies a Hindu whilst Mr.Mehelkumar is a Muslim.
47. There was also produced a letter dated 1 October 2007 apparently from Sonu Films International and signed by Dinesh Patel, a well known film producer in "Bollywood" stating that he had

"finalised Mr.Amit A.Barot, 91, Bowen Road, West Harrow…………..to play an Important Role in our film titled "ASAR" – THE IMPACT……..Mr.Barot was supposed to report for the Mahurat of the said film in the month of August 2001 but he did not come for some reasons. In the following month he got in touch with us and we informed him that we would call him when our next shooting schedule would be fixed and also when his services would be required."

48. There was also produced a letter dated 4 October 2007 apparently from Jai Films and signed by Jay Prakash, another well known film producer in Bollywood stating that

"in September 2001 ………I was happy to offer [Amit A.Barot] the Lead Role in my forthcoming PRODUCTION No.1"

49. The letter goes on to identify the film in question as SAUDA.
50. Both of these letters arrived by fax from "HotelSeaPrincess". No explanation was offered as to why two different producers would send such letters from "HotelSeaPrincess".
51. Statements dated 17 December 2007 from Dinesh Patel and Jay Prakesh were also provided but the insurers did not accept that either statement was genuine and required the witnesses to give evidence by video link. However, no such evidence was given and no explanation was given as to why this was not possible. Yet both statements said that the maker was willing to give evidence in Court in London. Having regard to the obscure provenance of the letters, to the late provision of the statements and to the improbability that Mr.Barot would be offered two lead roles by prominent Bollywood directors it is difficult to accept that they are genuine. But even if they are they can carry but little weight. Firstly, research on the Internet regarding ASAR THE IMPACT indicated that by August 29 2001 the Mahurat, or first shooting (marked by the breaking of a coconut) had taken place. It was shot in a swimming pool without Mr.Barot and there was no explanation as to why Mr.Barot was not there if he had been given the offer of the lead role. The film mentioned by Jay Prakesh, SAUDA, was not apparently shot until 2005. Secondly, Mr.Patel was asked what these letters and statements had to do with the claim he was making and he replied that he did not know.
52. The fourth striking feature is that the applications stated that Mr.Barot, despite living in a room in Mr. Patel's 3 bed-roomed house, had substantial property. Thus Virgin Direct were told that he had property of £200,000 and Norwich Union were told that he had property of £600,000. Both entries were written by Mr. Patel.
53. The fifth striking feature is that the explanation given for the Norwich Union policy was different from the others. It was stated to be for family protection and to protect a mortgage, rather than to protect the interests of a film producer.
54. The sixth striking feature is that when asked for further information about the film producer for whose benefit the cover was required Mr.Barot was unable to give it.
55. The seventh striking feature is that Mr.Patel was made beneficiary of each policy. He had no satisfactory explanation for this.
56. These features require to be explained because they are extraordinary. The representations as to the very substantial income and property of Mr. Barot are unexplained. The absence of an explanation suggests that they were false; as does the circumstance that the statements of income vary so considerably. The representations as to Mr.Barot's sudden rise to prominence in Bollywood have also not been satisfactorily explained, which suggests that they too are false.
57. The fact that the need for the application to the Norwich Union was unconnected with Bollywood, but was said to be required for "family protection" or to protect a "new house mortgage", is an indication that both explanations were false.
58. The fact that Mr.Patel was the beneficiary of the policies when he had no interest in the life of Mr.Barot requires explanation. Mr. Patel had no satisfactory explanation for that. The only one he gave was that the arrangement was temporary and that when the film contract was signed the director would be made the beneficiary. This made no sense. If the film contract was not signed that would be a reason for delaying the inception of the policy (and the payment of the premium) until the contract was signed. It is not a reason for making Mr. Patel a beneficiary. Further, this explanation does not begin to explain why Mr.Patel was made the beneficiary of the Norwich Union policy. Finally, none of the trust deeds or declarations suggested that it was a temporary arrangement. In the absence of a credible explanation the fact that Mr.Patel was made the beneficiary of all the policies suggests that Mr. Barot and Mr. Patel had a fraudulent motive in taking out the policies.
59. Although Mr. Patel was not able to suggest an explanation for these striking features his counsel suggest there was a possible alternative explanation. This was that Mr.Patel and Mr. Barot were friends, that Mr.Barot was a fantasist or "Walter Mitty" character, that he believed that he had to take out the life policies to further his acting ambitions, that he asked his closest friend to help him with the applications and that, because Mr. Patel was his closest friend, he made him the beneficiary. This was a brave but doomed attempt to explain the extraordinary features of this case. It was doomed because there was no evidence from Mr. Patel to support it. He claimed to be a close friend of Mr. Barot but did not suggest that Mr.Barot was a fantasist. Nor was it Mr.Patel's evidence that he was made a beneficiary of the policies by Mr.Barot in recognition of their close friendship. Indeed, when it was suggested to Mr.Patel that he must have thought himself to be extremely fortunate to have been the beneficiary of over £1,600,000 life cover he did not see why.
60. There are therefore cogent reasons for inferring from the many striking features of the case that the policies were taken out by Mr. Barot with the assistance of Mr. Patel in an attempt to defraud the insurance companies of the policy proceeds. This would explain why Mr. Patel wrote out much of the proposals and questionnaires and why his telephone number was used. But Mr.Patel denied that this was his intention. It is therefore necessary to consider whether the inference of fraud can safely be made in the face of his denial.
61. In evaluating his evidence it is necessary to consider the relevance of his previous convictions. He was convicted of dishonestly obtaining £5000 by falsely representing that he was a Barrister and that £5,000 was owed to him by two doctors in respect of work relating to an application to remain in the UK, of attempting to obtain £85,000 from the two doctors by similar false representations, of forging two letters purporting to have been signed by the doctors, of doing acts intended to pervert the course of justice and, lastly, of perjury. He had used one or both of the letters to obtain a judgment against the doctors and then sought to get an order for the sale of their house in the Chancery Division of the High Court. It was when an application was made to set aside the judgment that he committed perjury.
62. The convictions are evidence that Mr. Patel committed the offences of which he was convicted; see section 11 of the Civil Evidence Act 1968. It is common ground that in his evidence before this Court Mr. Patel did not seek to challenge the convictions. I must therefore assess Mr. Patel's credibility on the basis that, not long before the life insurance policies were taken out, Mr.Patel had committed offences of dishonesty and had perjured himself. In those circumstances I must approach his evidence with particular caution.
63. There are other reasons for being cautious about his evidence. In the course of his cross-examination he was reluctant to face up to the difficulties presented by the documents. For example, he was reluctant to accept, indeed did not accept, that in circumstances where Mr.Barot had told Barclays that he had a modest income of £15,000 but then told the life assurance companies that he had a considerably greater income he must have been fraudulent. Similarly, he refused to comment on the suggestion that Mr.Barot's explanation as to why he could not ask for information from the film producer who had offered him a job and required his life to be insured made no sense. A producer who required the life of his leading man to be insured would surely co-operate with the life assurance company for it was in his interest to do so. This reluctance to face up to the documents suggested an unwillingness to be open and frank. Further, he sometimes gave what, at the very least, were very odd answers. Thus, as I have already narrated, he maintained that the question in the Virgin Direct questionnaire related not to Mr.Barot's property but to his own (which he only rented). This was nonsense. Moreover, he was willing to challenge statements made in contemporaneous documents which he had not previously challenged. Thus he challenged the document which recorded that he was present at a meeting with Mr.Mistry. He was also prepared to say that a statement made by the crematorium worker Mr.Mehta which had been taken by the insurance investigator Mr.Savage, had not been made.
64. For these reasons I reached the conclusion that I should not accept the evidence of Mr. Patel unless it was corroborated by cogent independent evidence.
65. Mr.Patel denied that he had attempted to obtain life cover for Mr. Barot by fraudulent means. His denial was not supported by any independent evidence. On the contrary there was independent evidence that he took a leading role in procuring Mr. Agrawal's letter stating that Mr. Barot had an income of over £500,000 and that he did so shortly after the re-insurers of Royal and Sun Alliance had requested a written certificate of earnings from an accountant or solicitor, preferably UK based. Mr. Patel denied that he had had any role in the procuring of this letter.
66. Mr.Agrawal gave evidence that he had produced his letter at the request of Vipul Patel. He was a qualified chartered certified accountant who runs his practice from his home. He said that at sometime prior to 23 April 2001 he received a telephone call from Arvind Patel who was a relative of one of his clients. Arvind Patel said that his neighbour Vipur Patel wished to see him regarding the setting up of a UK company. An appointment was arranged. He said that Arvind Patel and Vipur Patel came to see him. Vipul Patel discussed the business dealings of a friend called Amit Kumar Barot who wished to set up a company to produce films. He wanted a letter showing the tax paid by Mr.Barot in India expressed in sterling. For this purpose Mr.Patel handed Mr.Agrawal four documents described as tax receipts. Mr.Agrawal said that he had no reason to doubt their authenticity though he was not an expert in Indian tax law.
67. In fact investigations in India suggested that there were reasons to doubt their authenticity. The account number shown was false They lacked a stamp evidencing receipt of the tax. Finally, the address shown, as on Mr.Barot's passport, did not exist.
68. Mr.Agrawal provided the requested letter. Arrangements were made with Mr. Vipul Patel for Mr.Barot to attend a further meeting to complete the paperwork for forming the UK company. But he did not attend and Mr. Agrawal heard no more from either Vipul Patel or Mr.Barot.
69. Mr. Patel denied that he visited Mr.Agrawal and said that he had nothing to do with the procuring of the letter from Mr.Agrawal. Accordingly Mr.Agrawal's evidence was challenged and reliance was placed on a note made by Mr.Savage, an insurance investigator, when he questioned Mr.Agrawal in November 2001. That note records that Mr.Agrawal remembered Mr. Barot as "an Indian actor/producer for Bollywood who was considering making films in the UK." It records that Mr.Agrawal was introduced to him by Arvind Patel. No mention was made in the note of Vipul Patel.
70. This note can be read as supporting Vipul Patel's evidence that he did not visit Mr.Agrawal. But the note is not necessarily inconsistent with the evidence given by Mr.Agrawal. Further, as Mr.Savage stated, when recalled to be asked about this note, he had gone to Mr.Agrawal's house to enquire about a document concerning the income of Mr.Barot, the life assured. He was not specifically enquiring into the role of Mr.Patel. He may not, therefore, have asked about Mr.Patel.
71. Mr. Agrawal's evidence that he met Mr. Vipul Patel, rather than Mr. Barot, is supported by evidence given by Mr. Arvind Patel. He said that he visited Mr.Agrawal with Vipul Patel who was his neighbour. His evidence was also challenged but I am satisfied that I can safely accept the evidence of Mr.Agrawal and Mr. Arvind Patel that it was Vipul Patel who visited Mr.Agrawal and procured the letter concerning Mr.Barot from him. I have reached that conclusion for these reasons:

i) Although Mr.Arawal did not have a full recollection of the meeting (and even in November 2001 had to ring Mr.Arvind Patel to be reminded about the meeting) he did have, in my judgment, a reasonably clear recollection that Mr. Arvind Patel had introduced the other person as his neighbour.

ii) Mr. Arvind Patel had lived at 89 Bowen Road since 1997. So he was a neighbour of Mr. Vipul Patel who lived at 91 Bowen Road. He said they hardly met, that they were not good friends but that they were good neighbours. Although there is evidence that Mr.Barot also lived at 91 Bowen Road from time to time Mr. Arvind Patel did not know of a Mr.Barot and when shown a photocopy of a passport in the name of Mr.Barot and a photograph of a person who Mr. Vipul Patel said was Mr.Barot did not recognise him.

iii) It is therefore more likely than not that Mr. Arvind Patel introduced Mr.Vipul Patel, rather than Mr.Barot, to Mr.Agrawal.

iv) Mr.Arvind Patel gave a very clear answer when it was suggested to him that he had taken Mr.Barot to the meeting. "I know Vipul Patel very well. He is my neighbour. I took him with me."

v) For the reasons I have given I am unable to accept evidence of Vipur Patel unless it is clearly supported by independent evidence. It is not clearly supported by Mr.Savage's note. In any event I prefer the evidence of Mr. Agrawal and Mr. Arvind Patel to that of Mr. Vipul Patel.

72. The inference is irresistible that Mr.Agrawal's letter was procured by Mr. Patel in order to satisfy the demands of Royal and Sun Alliance's re-insurers. He must have appreciated that the income suggested by the Indian tax documents and by Mr.Agrawal's letter could not be true. These were fabulous sums to have been earned by the man who lodged in his 3 bed-roomed house. I have no doubt that Mr.Patel's denial of involvement in procuring Mr. Agrawal's letter reflected his appreciation that an admission by him that he was involved in procuring Mr.Agrawal's letter would sit unhappily with his denial that he had been involved in an attempt to procure life insurance for Mr.Barot by fraudulent means. Mr.Agrawal's letter was provided not only to Royal and Sun Alliance but also to Virgin Direct, Norwich Union and Friends Provident.
73. I have therefore reached the conclusion that Mr.Patel and Mr.Barot were engaged in a scheme to obtain millions of pounds of life cover for Mr.Barot by fraudulent means. The insurance taken out with Virgin Direct was part of this scheme. There is clear and compelling evidence for this conclusion; firstly, it is the only credible explanation for the many striking features of the applications for life cover and, secondly, Mr. Patel procured Mr.Agrawal's letter, which he must have known made untrue statements about Mr.Barot's income, to support the application to Royal and Sun Alliance. Mr. Patel has no credible explanation for those striking features and denied his role in procuring Mr.Agrawal's letter. He was, for the reasons I have already given, a distinctly unimpressive witness. In reaching this conclusion on the balance of probabilities I have well in mind the seriousness of the allegations made against Mr.Patel and the consequent need for cogent evidence to support those charges commensurate with their seriousness.

The alleged death of Mr.Barot

74. The aim of the fraudulent scheme must have been to allege at some stage that Mr.Barot had died and then to claim on the policies. Mr. Patel has alleged that Mr. Barot died in India on 2 October 2001. The second important issue of fact to resolve is whether Mr. Barot did indeed die as alleged.
75. Mr. Patel gave evidence that he and Mr. Barot travelled to India in September 2001. On 1 October 2001 he said that they both stayed the night at his brother in law's house in Ahmedabad. On the following day, a national holiday in India, they went to a party at the house of Mr.Arvind Parekh. Whilst at the house Mr.Barot began to feel unwell and complained of chest pains between 9.30 and 10 am. Sanjay Patel, the brother in law of Mr. Patel, asked Mr. Parekh to call his doctor. That was Dr. Trivedi who had a clinic locally. The doctor came to the house but said he would like to examine Mr. Barot at his clinic. So Mr.Patel, Mr.Sanjay Patel, Mr.Parekh, Dr.Trivedi and Mr.Barot went to the doctor's clinic. Mr.Patel said that whilst Dr.Trivedi examined Mr.Barot at his clinic Mr.Barot died as a result of a heart attack. Dr.Trivedi issued a death certificate. Mr.Patel further said that he knew of no-one to inform because Mr.Barot's mother had died some years earlier and his father and brother had died in an earthquake in January 2000. Mr.Patel, Mr.Sanjay Patel and another brother-in-law and two of the latter's friends carried Mr.Barot to a car and took him to Sanjay Patel's house. From there he was taken to a cremation ground. They arrived there at about 2 pm. The clerk, Mr.Mehta, was shown the death certificate and signed the register. Mr.Patel and Sanjay Patel wrapped Mr.Barot in a white sheet, a priest who had been called made the appropriate blessings and Mr.Barot was cremated. On 3 October Mr.Patel and Sanjay Patel registered the death and on 4 October Mr.Patel flew back to London.
76. For the reasons I have given I am not prepared to accept the evidence of Mr.Patel unless it is supported by other cogent evidence. There is no dispute that Dr. Trivedi signed a death certificate. That certificate is dated 2 October 2001 and certifies that Mr.Barot "had been gone at today (1130 am)". It further states that Mr.Barot was suffering from chest pain and was vomiting and perspiring. It states that "whilst I was examining him he expired probable it was cardiac infarction."
77. However, when visited by the insurance investigators Mr.Savage and Mr.Sanjay Bhatt on 23 November 2001, he made a statement in which he said that he had "never examined a person named Amit.A Barot nor did he die in my clinic on 2 October 2001. I was asked by a patient to issue this certificate and he supplied me with details re Barot. Accordingly the certificate is false."
78. Dr. Trivedi was called by the insurers to give evidence and he did so by video link from India. He is 46 years old and qualified as a doctor in 1985. He said that Mr.Barot did not die in his clinic. He was asked why he had issued the death certificate and he said that he had been asked to do so by Mr. Parekh who was a patient of his. He said that had been subject to emotional pressure or emotional blackmail. He was asked what he meant. He said that Mr. Parekh asked him to do a favour by signing a death certificate so that Mr.Barot could be cremated. He said that he asked to see the dead body and that he could not sign a certificate without seeing the body. He was told that the body was some 3-4 kms. away and Mr.Parekh repeatedly asked for the certificate. Because he Dr.Trivedi trusted him Dr. Trivedi provided the death certificate. He said that he did not know that the certificate was required to advance a fraud.
79. Dr.Trivedi was unshaken in cross-examination. His evidence was given clearly and without hesitation. He acknowledged that he had made a "big mistake". He said that he had not been placed under any pressure by Mr.Savage and Mr.Bhatt. He said he decided to tell the truth when he was told that the certificate was being "misused".
80. Mr. Savage and Mr.Bhatt also gave evidence, the latter by video link. On 23 November 2001 Mr. Bhatt acted as an interpreter. It was suggested to him that he said to Dr.Trivedi that unless said Dr.Trivedi said what he wanted he would report Dr.Trivedi to the police. Mr.Bhatt denied this suggestion. Whilst it is true that Dr.Trivedi thought that Mr. Bhatt asked questions in a manner which suggested that he might have been a policeman and that he understood from Mr.Savage (presumably through Mr.Bhatt) that he would not inform the Indian authorities if he told the truth I do not consider that Dr.Trivedi was subject to any improper pressure by Mr.Savage or Mr.Bhatt. There was no reason for him to deny that Mr. Barot had died in his surgery if he had indeed died in his surgery. By admitting that the death certificate he had issued was false he must have risked, at the very least, a disciplinary enquiry by the medical authorities in India. The reason he did so was that he was told by Mr.Savage and Mr. Bhatt that the certificate was being "misused". This was not something he had appreciated on 2 October 2001. At that time he was told, and I infer believed, that the certificate was required in order that the body of Mr. Barot might be cremated.
81. Mr. Patel called Mr. Parekh, who was a 67 year old retired clerk, to give evidence. He did so by video link from India. His written statement, which formed his evidence in chief, had been signed on 9 January 2008. He cannot read English but the statement had been read over to him by the person who took it. He said that at about 9.30 am on 2 October 2001 Mr.Barot started to complain of severe chest pain and was taken to Dr. Trivedi's clinic. Dr.Trivedi was his family doctor. He said that Mr.Barot died whist Dr.Trivedi was examining him. Dr.Tevidi then issued a death certificate. In his oral evidence he said that the certificate was issued "after a religious ceremony".
82. In cross-examination he denied the suggestion that Mr.Barot had not died in the clinic and that Dr.Trivedi had only signed the death certificate because he had been asked to do so by Mr. Parekh so that the body of Mr.Barot might be cremated.
83. I did not find Mr. Parekh to be an impressive witness. He could not answer any questions concerning what happened to the body. He said that he "did not know what they did with the body". Although he was giving evidence of events in 2001 it is surprising that he could not recall what had happened to the body of a person who had been taken ill in his house and whom he had witnessed die whilst being attended by his own family doctor. He then said that the body had been placed, fully clothed, in a car and driven away. He made no mention of any discussion of whether there were any relatives to inform. Although there was no evidence of Indian burial or cremation customs it is surprising that the body was taken so quickly to be cremated without attempts being made to enquire whether there were relatives to be informed. Mr.Patel said that Mr.Barot's father and brother had died in an earthquake in 2000 but Mr.Barot had signed a medical report dated 20 July 2001 and submitted to Friends Provident stating that his father and brother were "well".
84. I gained the clear impression that Mr.Parekh was doing his best to state what was in his statement and no more. The events he allegedly witnessed cannot have been usual and I would have expected him to remember more than he said he did, even allowing for the passage of time. When he did venture outside his statement his evidence did not support that of Mr. Patel. Thus he said that Mr. Barot was about 45-50 years old (when Mr. Patel said he was 34) and that there was a religious ceremony at the clinic (no mention of such a ceremony at the clinic was made by Mr.Patel who said that there was a priest at the cremation.)
85. Before reaching a conclusion on the issue of death I must also mention the evidence of Mr.Mehta, the clerk at the cremation ground. He made an entry in the register at the cremation ground stating that the body of Mr.Barot had been cremated on 2 October 2001 between 5 and 6 pm. He did not give oral evidence but he made three statements. The first of these was a statement dated 23 November 2001 given to Mr.Savage and Mr.Bhatt in which he stated that the entry was false. He had made the entry "under the directions of a retired municipal employee who promised to take my son into service." The second was a statement dated 13 September 2007 in which he confirmed that his statement dated 23 November 2001 was true. He said that the person who offered a "job placement for my elder brother" was a Patel. He was tempted by the offer and made a false entry in the register. His third statement was dated 10 January 2008. There was some discussion about the quality of the evidence that the statement had actually been made. However, it seems that it was. An advocate–notary, Mr.Sheikh, was provided with a handwritten statement in Gujarati by Mr.Mehta's advocate, Mr. Vagjibhai. It was difficult to read and so was "computerised" in Gujarati and translated by Mr.Sheikh. The computerised Gujarati version and the translation bear Mr.Mehta's signature together with the advocate-notary's signature. He stated that on 2 October 2001 the dead body of Mr.Barot was brought to him and he made a true entry in the register. He said that he made the statement dated 23 November 2001 because he was put under pressure by "detective" Bhatt and Mr.Savage. Detective Bhatt threatened to hand him over to the police. He said that the same persons forced him to make the statement dated 13 September 2007. He disclosed all to his "departmental well wisher seniors" who advised him to consult a lawyer which he did and made the statement dated 10 January 2008.
86. The insurers hoped that Mr.Mehta would give evidence by video link but he did not present himself at the studio in India at the designated time. It was submitted on behalf of Mr.Patel that the court should draw adverse inferences from the insurers' failure to call oral evidence from Mr. Mehta by video link. There seemed to be no basis upon which it would be proper to draw such adverse inferences.
87. The allegations of improper pressure were put to both Mr.Savage and Mr. Bhatt when they gave evidence. Mr.Savage said that it was only after he had obtained the statement from Dr. Trivedi that the death certificate was false that Mr.Mehta admitted that the entry made by him was false. He was unaware of any pressure exerted by Mr.Bahtt when speaking to Mr.Mehta in Gujarati. It was suggested to Mr.Bhatt that he had placed pressure on Mr. Mehta to sign the statement dated 23 November 2001 and that the statement dated September 2007 referred to a job offer to a brother rather than to a son because Mr.Bhatt learnt that Mr.Mehta did not have a son old enough to require a job. All suggestions of improper pressure were clearly and unhesitatingly denied. Mr. Bhatt suggested that the reference to a son could have been a slip of the tongue by Mr.Mehta or he may have misheard what Mr.Mehta said. He further said that Mr.Mehta's writing was unclear.
88. I was not persuaded that either Mr. Savage or Mr.Bhatt had put improper pressure on Mr.Mehta to make the statements dated November 2001 or September 2007. He made his statement dated November 2001 when shown Dr.Trivedi's statement retracting the death certificate. It was also suggested that Mr.Savage was working to an agenda, namely, that Mr.Patel's claim was "ridiculous" as stated in a preliminary report. However, whilst he no doubt had his preliminary conclusions well in mind that did not translate into any improper pressure on witnesses. It was also suggested that Mr. Bhatt's presence in the studio in India when other witnesses gave evidence was unfortunate because it may have affected the witnesses. No objection to his presence was taken when evidence was given by video link and it was not suggested how Mr.Bhatt might have been able to exert pressure at that time given that a former judge of the Indian High Court was also present overseeing proceedings.
89. There is further evidence on this issue which I should mention. There was a statement from Sanjay Patel confirming that Mr.Barot died at Dr.Trivedi's clinic. He did not give evidence by video link and no explanation was given as to why he did not. A statement was also put in from Mr. Umesh Patel. He states that he was one of the friends who attended the funeral of Mr.Barot. However, although he lives in England he was not called to give evidence and no explanation was given as to why he was not called. Since neither of these witnesses gave oral evidence on such an important issue whilst other witnesses did I am not able to place any weight, or at any rate, any significant weight on their statements.
90. Mr.Vohra, a senior lawyer from Ahmedabad, gave evidence of enquiries he had made there in November and December 2007. However, there is nothing in his evidence which assists in the determining whether Mr.Barot died or not.
91. In the result there is no cogent evidence which corroborates Mr.Patel's evidence that Mr.Barot died on 2 October 2001. Neither the death certificate nor the entry in the cremation ground register nor the evidence of Mr.Parekh can be said to be cogent evidence. On the contrary I am persuaded that Dr. Trivedi was telling the truth when he told the Court that Mr.Barot did not die in his clinic and that the death certificate was false. It is most unlikely that a doctor would admit to falsifying a death certificate if the certificate were not false. There is no evidence that he did so do under pressure from Mr.Savage or from Mr.Bhatt. The explanation for his doing so was that that he learnt that the certificate was being used for a purpose different from that given to him on 2 October 2001 and he knew that it was false.
92. I therefore find that Mr.Barot did not die on 2 October 2001 as alleged by Mr. Patel. The steps taken to obtain a false certificate of death and a false entry in the cremation register were part and parcel of the attempted fraud by Mr. Patel and Mr. Barot.
93. It is to be noted that there was activity in Mr.Barot's bank account with Barclays after 2 October 2001. On 10 October 2001 a cheque for £11,000 was drawn on the account. When interviewed by the police in February 2002 Mr.Patel suggested that it was given by Mr.Barot to Mr.Patel's wife before he died as a wedding gift and that it was presented after he had died. When cross-examined in this court he said that he did not know if his wife presented the cheque. His wife did not give evidence. Since his explanation to the police is not corroborated by any other evidence I am not, for the reasons I have given, prepared to accept it. On 25 October 2001 a cheque for £385 was drawn on the account (when the balance was £388.16). Mr.Patel was unable to say who wrote this cheque. It is unnecessary to make any findings about who drew and presented these two cheques. But whatever the explanation they do not lend any support to the Mr.Patel's case that Mr.Barot died on 2 October 2001; indeed they suggest that he did not.

Discussion of Mr. Patel's claim and conclusion

94. Mr. Patel, as trustee/assignee and beneficiary of the policy, can have no better claim than Mr. Barot as the life assured and original policy holder.
95. Although Virgin Direct would not consider Mr.Barot's application for cover of in excess of £5,000,000 in the absence of the information requested on 28 September 2000 they were prepared to offer cover of £250,000. It was submitted that Virgin Direct's willingness to provide cover of £250,000 had been obtained after (and, it was said by the insurers, because) Mr.Barot had stated that he had property of £200,000 and that he was to obtain remuneration of £4,500,000 for a leading role in an Indian film. Both of these representations were untrue and he must have known them to be untrue.
96. On behalf of Mr. Patel it was submitted that the representations, if untrue, did not induce Virgin Direct to provide cover because Virgin Direct refused the cover requested of over £5,000,000.
97. The letter dated 19 October 2000 from Judy Gregory on behalf of Virgin Direct (to which I have referred earlier in this judgment) is open both to the interpretation favoured by the insurers and to that favoured by Mr.Patel. She no longer works for the insurers and so was not available to be cross-examined on this issue. Her manuscript notes state that she accepted the policy after "checking the internet." It is not clear what in particular persuaded her to provide cover for £250,000.
98. But even if the interpretation favoured by Mr. Patel were correct it could not, in my judgment, assist him. That is because Mr.Barot plainly failed to disclose a material fact when applying for the cover of £250,000 on 30 October 2000, namely, that he was seeking to defraud Virgin Direct. He was obliged to make this disclosure pursuant to his duty of utmost good faith. Virgin Direct were therefore entitled to deny cover on this ground and Mr. Patel can be in no better position than Mr.Barot.
99. I therefore hold that Mr.Patel's claim must fail.
100. In any event it must fail because Mr.Patel is unable to prove that Mr.Barot had died as alleged on 2 October 2001. On the contrary, I have found that Mr. Barot did not die as alleged on 2 October 2001.
101. There will therefore be judgment for the Defendants, Windsor Life Assurance Company Limited.