Pursuer: Kelly; Russell Jones & Walker

Second Defender: Hood; Drummond Miller LLP (for Fagans, Airdrie)

[Date of Issue]24 August 2012

[1] The pursuer and the second defender are husband and wife. They were married in Scotland on 2 April 1989. It was an arranged marriage. The second defender was born in Glasgow. After the marriage they lived together and had children.

[2] In May 1990 the pursuer and the second defender bought Flat 1/1, 29 Annette Street, Glasgow, ("the flat"), which became their matrimonial home. The title to the flat was taken in their joint names. They financed the purchase of this property by means of a loan of £20,000 from the Clydesdale Bank, the fourth defenders. In about May 1999 the pursuer and the second defender separated from each other. The pursuer left the flat at Annette Street while the second defender remained there with the children.

[3] By disposition dated 14 September 2005 ("the disposition") and bearing to be signed by both the pursuer and the second defender, the flat was conveyed to the second defender's brother, the first defender. The latter financed his purchase of the property by means of a loan from the Royal Bank of Scotland, the third defenders. The original loan from the fourth defenders was repaid out of the proceeds of the sale to the first defender.

[4] In the present action the pursuer seeks declarator that the signature on the disposition which bore to be his was forged and was adhibited without his knowledge or consent and accordingly was incapable of transferring his one half pro indiviso share to the first defender and for reduction of the disposition to the extent that it bears to intromit with any part of his interest in the property, and secondly for declarator that the standard security granted by the first defender in favour of the third defenders was incapable of creating a security over the pursuer's one half pro indiviso share of the property and that accordingly the standard security had no force and effect in any question between the pursuer and the third defenders and for reduction of the standard security to the extent that it bears to grant security over any part of the pursuer's interest in the property.

[5] The action was defended by the first, second and third defenders. After sundry procedure, the third defenders were assoilzied from the conclusions of the summons. A preliminary proof was then allowed limited to the issue of the signature of the pursuer on the disposition and that is the proof which I have heard. The pursuer and the second defenders were both represented at this proof, but not the first defender. His position on record is that he acted in good faith throughout the course of the transaction involving the sale of the flat to him. The pursuer did not seek to prove otherwise.

[6] The proof focused on two issues; the handwriting of the signature which bore to be that of the pursuer on the disposition, and the identity of the man, "Mr X", who adhibited that signature to the disposition on 14 September 2005 in the presence of Eileen Coogans, the solicitor who acted for the sellers of the flat. I heard evidence from five witnesses; the pursuer, Mr John McCrae, a Consultant Forensic Document Examiner, Ms Coogans, the second defender and the first defender. In addition, evidence was presented in the form of a written statement by Mr Steve Morgan, a member of the Driver and Vehicle Licensing Agency ("DVLA") Driver Investigation Team. Much of this evidence concerned a number of documents and I propose to begin by considering them.

The Documents
[7] The principal documents comprised the disposition itself, of which there was a copy as well as the principal (6/3 and 7/2 respectively), a Certificate of Solvency (7/4) which bore to have been sworn by the pursuer and second defender in the presence of Ms Coogans as notary public, and Ms L Buist, paralegal, as witness, on the same date as the disposition had been executed, Ms Coogans' conveyancing file for the transaction (6/2), two passports, one British and one Pakistani, belonging to the pursuer (6/7 and 6/28), a photocopy of the first page and the inside cover of a Pakistani passport belonging to the pursuer together with a photograph of him placed on top of one corner of the passport (6/5), the pursuer's driving licence and counterpart driving licence (6/25), copies of two earlier driving licences belonging to the pursuer (6/26), a copy of an apparent driving licence in the name of the pursuer (6/4), the pursuer's Government of Pakistan National Identity Card (6/8), a report and supplementary report by Mr McCrae(6/1 and 6/6) and some samples of the pursuer's signature provided by him in court in the course of the proof (6/27). The conveyancing file contained a copy of the loan agreement in favour of the fourth defenders which had been executed by the pursuer and the second defender on 3 May 1990.

[8] A number of facts emerge from a superficial examination of these various documents. The pursuer's signature on the loan agreement in May 1990 consisted of his christian and surname written in block capital letters. The purported signatures of the pursuer on the disposition and the Certificate of Solvency comprised the pursuer's first initial and his surname written in cursive script. The pursuer's British passport (6/7) was issued on 11 June 2005 and contains the pursuer's signature in the form of his full christian and surnames in block capitals. The pursuer's national identity card issued by the government of Pakistan on 16 July 2010 bore a similar signature of the pursuer in the form of his full name written in block capital letters. The pursuer's two part, photo driving licence (6/25) issued on 15 January 2010 contains the pursuer's signature in precisely the same form as on his national identity card. Of the two previous driving licences, one bore the pursuer's signature in the form of his first initial and full surname and the other his full christian and surnames, both in block capital letters. Before the pursuer obtained a British passport, he had held two passports issued by the Islamic Republic of Pakistan. The first of these (6/28) was issued on 10 January 1987 and contained the entry certificate visa for his initial entry to Scotland in January 1989. It contained the pursuer's signature in cursive script but in Urdu, written from right to left. The pursuer held a subsequent Pakistani passport issued by the consulate in Glasgow on 9 March 1992. Both of these passports were valid for a period of five years only. The copy page of that later passport (6/5) was not a copy of the page which bore the pursuer's signature. Most of the examples of the pursuer's signature in block capitals contained a characteristic dot above the letter "I" in "BASHIR".

[9] The copy of the pursuer's purported driving licence (6/4) bore the pursuer's signature in the form of his first initial and surname written in cursive script. I say "purported" because of the terms of Mr Morgan's statement. According to his unchallenged evidence, that document was not issued by the DVLA. The form itself appears to be genuine but the information which has been added to it was not. The most obvious defect was the "valid until" date which did not correspond to the 70^th birthday of someone born on 1 January 1964, the stated date of birth. Less obvious, but equally false was the document's number which is based on the name, age and sex of the holder. That number did not correctly reflect the pursuer's details or even those of someone born on 1 January 1964. Mr McCrae also pointed out in the course of his evidence that the typeface used on this purported driving licence did not match that found on the genuine driving licences in the name of the pursuer. A further patent defect in the document is its "valid from" date which was stated as 20 February 1986, some three years before the pursuer's first arrival in Scotland. In short, 6/4 of process is a copy of a fake passport in the name of the pursuer.

[10] According to the pursuer's evidence, his date of birth was 1 February 1964. This date also appears on his national identity card . Both of his Pakistani passports contain only the year of his birth, 1964. The pursuer's current driving licence and the two previous ones all contained his date of birth as 5 August 1964 and consequently each has the same number which reflects this same date of birth which, according to the pursuer, is incorrect.

[11] Of these documents, five contained photographs which, according to the pursuer's unchallenged evidence, were all of him. Before moving on, it is appropriate to say something about these photographs. It is apparent that the pursuer's appearance has changed significantly over the years. As the second defender explained in the course of her evidence, he has put on weight and lost his moustache. I would add that his moustache changed in size and his hairstyle altered over the years. He was 25 years old when he married. He was 35 when he separated from the second defender. He was 41 when the disposition was signed and his British passport was issued and he was 47 by the time that he gave evidence in the present proof. There is a significant difference between the pursuer' appearance in his British passport, issued on 11 June 2005, and his driving licence issued on 15 January 2010, on the one hand, and, on the other hand, his appearance in any of the other three photographs, particularly that those contained in his first Pakistani passport and in the photocopy document (6/5).. The photograph in his first Pakistani passport, which was issued on 10 January 1987, shows the pursuer with a comparatively thin face and large moustache aged about 23. The photograph which is contained in the photocopy of the page from the pursuer's second Pakistani passport (6/5) appears to me to show a slightly older man. According to the pursuer's evidence, that photograph was not the one originally contained in his second Pakistani passport but is one which he believedwasbelieved was taken when he was still living in Pakistan, namely before January 1989, more than three years before the date of that second passport. I also note that the photograph shown in 6/5 of process is only available in the form of a photocopy and contains less detail of the pursuer's facial features than, for example, the photograph contained in the pursuer's first Pakistani passport (6/28). The photograph of the pursuer contained in his national identity card (6/8) is potentially misleading because although it was issued on 16 July 2010, it contains a photograph of the pursuer from an earlier identity card and accordingly does not reflect his appearance at the date of issue. His appearance in that photograph is somewhere between his appearance in his early 20s and his appearance in his early 40s. In the absence of evidence from the pursuer, I would not have been able to identify the pursuer as he appeared in court or in his British passport as the same man as that depicted in the photographs taken of him in his early 20s.

The Witnesses
[12] Mr McCrae is a former member of Strathclyde Police Identification Bureau and of the Forensic Science Laboratory in Glasgow. He has over 30 years experience in the examination of documents, the identification of handwriting, signatures, typescript and the detection of forgery. By the time that he came to give evidence in court, he had examined both the copy disposition and the principal together with the pursuer's national identity card, his British passport and the loan agreement known to have been executed by the pursuer in May 1990. In the course of his evidence, he was also shown the fake driving licence (6/4) and the Certificate of Solvency (7/4). He concluded that the pursuer's normal signature was that written in block capitals. He could not rule out the possibility that the pursuer had deliberately disguised his own signature by using cursive script in the form of the signature on the disposition, but that was not his, Mr McCrae's opinion. When asked how remote a possibility it was that the pursuer was the author of the signature on the disposition, Mr McCrae stated the possibility to be extremely remote - 99%. His view was based in part on having studied the pursuer while giving sample signatures, all of which were in block capitals. Mr McCrae asked the pursuer to attempt to sign his name in cursive script, but the pursuer declined to do so. Mr McCrae was of the view that the pursuer could not write anything in English other than his own name even in block capital letters. The pursuer's limited ability to write in English in capital letters influenced Mr McCrae's conclusion that the pursuer would be unlikely to be able to write in cursive script in the form used in the disposition. Mr McCrae stated that the signatures purporting to be those of the pursuer on both the disposition and the Certificate of Solvency appeared to have been written by the same author on the same day. He also stated that the author of those two signatures could be the same as the author of the signature on the fake driving licence.

[13] Ms Coogans explained the circumstances of the conveyancing transaction, although her recollection of it appeared to me to be somewhat hesitant. She stated her belief that she had instruction from both the second defender and her husband to sell the flat, the title to which was in their joint names. Ms Coogans explained that at the initial stage, the transaction was handled by her paralegal, Louise Buist. Ms Coogans believed that the second defender was the principal source of her instructions. She explained that because the second defender was not an existing client, proof of identification would have been required. She further explained that such details of identification would have been kept on a separate file. Ms Coogans had not been involved in the initial identity check. She had left that to Louise Buist.

[14] Ms Coogans remembered the day when Mr X came to her office along with the second defender to sign the Certificate of Solvency. She was acting as notary public. She did not remember the disposition being signed at the same time. She remembered requiring identification of Mr X at the time of the signing of the Certificate of SInsolvency. She thought that she had seen a photo and paper driving licence on that occasion, but nothing else. She was shown the fake driving licence (6/4) which bore a docket signed by her on 9 December 2005 certifying it as a true copy of what she had seen. Her explanation for the discrepancy in dates was that the fake licence had been produced on the date of signing, 14 September 2005. It had been copied by Ms Coogans' secretary and had been put on file without having been docketed. Ms Coogans had no satisfactory explanation for the absence of any photo identification of Mr X. The fake driving licence was not a fake photo driving licence and would never have been accompanied by a photograph. At one stage Ms Coogans suggested that she might have seen some other, similar form of photo identification such as the pursuer's national identity card, but Ms Coogans also said that she did not think that what she had seen was green, the colour of the national identity card, and that any form of identification which had been produced on 14 September 2005 would have been copied and would have been put on file. Since the fake driving licence had been copied in this way, it would seem highly improbable that any photo identification of Mr X was produced at the time of signing.

[15] Ms Coogans did not apply her mind to the question of identification again until after the transaction had settled on 5 December 2005. At that time, namely 9 December 2005, she docketed the copy of the fake driving licence and contacted the second defender seeking some form of photo identification of the pursuer. In response to this request, the second defender promptly produced 6/5 of process, the combined copy of a page of the pursuer's second Pakistani passport and a photograph of him. That document does not bear any docket by Ms Coogans because it is itself a photocopy and not one made by her. She was only given a photocopy and never saw the original either of that passport or of the photograph. She did not see that photograph until some three months after she had seen Mr X. Ms Coogans thought that she had seen the second defender before the signing which took place on 14 September 2005 but she did not remember having seen Mr X before.

[16] Ms Coogans remembered both Mr X and the second defender signing the Certificate of Solvency together in her presence. She identified Mr X, who had signed the Certificate of Solvency and who had given her the fake driving licence as the man shown in the photograph photocopied in 6/5 of process - the photograph of the pursuer in his early 20s. She was asked to look at the pursuer in court and said that he was not Mr X. Ms Coogans had met the pursuer in June 2011 and had been quite clear at that time that she had never seen him before. When it was pointed out to Ms Coogans that the man shown in 6/5 of process was in fact the pursuer, she was a little shaken but was not shifted from her position that the pursuer whom she had met in June 2011 and whom she had seen in court was not Mr X.

[17] Ms Coogans was not informed by either the second defender or Mr X that the pursuer and the second defender had separated from each other in 1999 and had been living at separate addresses since then. Accordingly all correspondence on Ms Coogans' conveyancing file addressed to the pursuer had been sent to the pursuer and the second defender jointly at the address of the flat. Furthermore, both the Certificate of Solvency and the disposition erroneously stated that the pursuer and the second defender were both residing at the flat at 29 Annette Street, Glasgow, in September 2005.

[18] The pursuer gave evidence through an interpreter. He appeared to understand quite a lot of English and to be able to speak some English but to be more comfortable giving evidence through an interpreter. His position with regard to the disposition was simple. When he was shown the signature on the disposition (7/2) he said that it was not his signature and that he did not sign his name in that way. He knew nothing about the disposition. He was not present when it was signed. In 2005 he did not know Eileen Coogans. He did not know who she was or anything about her. He did not know that she was a solicitor. In 2005 the pursuer had not met Eileen Coogans. He had not spoken to her, written to her or communicated with her in any way. Her address on the disposition was given as 642 Cathcart Road, Glasgow. The pursuer said that he did not know anything about that address and had never been there. When shown the disposition, the pursuer stated that he did not read English.

[19] The pursuer explained the circumstances of his various passports, driving licences and identity cards. Over the years some of these documents had been renewed or replaced. Some had had to be returned to the issuing authority when a new one was issued. His first Pakistani passport, for example, had been defaced by having the corner of the cover cut off and it had been replaced. By contrast, his original paper driving licence had not been returned to him when the new style photo driving licence had been issued. Over the years he had lost various documents. For example he had lost a driving licence and had had to obtain a replacement one. With regard to the two items of identification evidence held by Ms Coogans, the pursuer stated that he had not given either of them to her. He identified 6/5 of process as a photocopy of a page from an old passport of his and the photograph as being of him but stated that someone had put it there. He said that the original of this old passport had been left lying in the flat when he had left. His position with regard to the circumstances of the separation was that the second defender and her family had put him out of the house. This old passport, which was issued on 9 March 1992 and was valid for five years, was no longer valid by the date of the separation. With regard to the pursuer's Pakistani identification card, his position was that he had had one in 2005 but had had to send it away in order to obtain a new one.

[20] When the pursuer was shown the fake driving licence, he stated that he had not written the signature on it and that the licence did not belong to him. He had not been in Scotland on the date when it bore to have been issued and his date of birth, 1 January 1964, was wrong. It was not a copy of any driving licence which he had had.

[21] The pursuer had first held a provisional driving licence in Scotland on 5 January 1990 and had acquired a full licence in 1992. He did not have an explanation for the incorrect date of birth and consequently the number, on all of the driving licences issued by the DVLA. This error had recently been pointed out to him and he had told his lawyer about it. Because of the pursuer's limited ability to read or write English, the second defender had filled out various application forms for him over the years that they had lived together including his applications for a driving licence. He explained that in 1990, which was soon after he arrived in Scotland, he could neither read nor write in English. She had filled in the form. He could not read it and signed it. This explained how the error had occurred, but not why.

[22] When the pursuer had first come to Scotland, he had worked in a shop and a take away. After that, he became a taxi driver of a licensed hire car. He was asked a number of questions concerning his ability to work as a taxi driver with a very limited ability to read English and no ability to write it. He explained how he and a number of other Asian nationals had been able to obtain the necessary licences. At the time when the pursuer qualified as a taxi driver, no detailed geographical knowledge was required but only a general knowledge of the location of major destinations. He practised his trade in a fairly restricted area and had relied on customers' knowledge of the routes to their destinations. He was able to communicate with and obtain assistance from fellow taxi drivers in Urdu and Punjabi. He understood road signs but was unable to read them. When he had been living with the second defender and their children, Punjabi was spoken at home rather than English. Their children attended Scottish schools and spoke English. The pursuer had attended Langside College and had attempted to learn some English, both spoken and written.

[23] After the pursuer and the second defender had separated, the pursuer ceased to make payments to the fourth defenders in respect of the loan secured over the flat. His position was that he was unaware of subsequent threats by the fourth defenders to enforce their rights over the flat.

[24] The pursuer was cross-examined about his knowledge of the area in which Ms Coogans' office was situated. The pursuer maintained that although he was familiar with Cathcart Road, it was a long road and he had never noticed Ms Coogans' office at number 264. When he had met her in 2011 it had been at offices in Bath Street in the city centre. The pursuer further stated that he had no suspicion as to the identity of Mr X.

[25] When the pursuer was repeatedly challenged about his whereabouts on 14 September 2005, his initial response was that he was working. The particular date did not matter because at that time he had been working every day. He then responded that if he had been at Ms Coogans' office on that date and he had signed the disposition, he would have received his half share of the proceeds of sale and he would not have needed to be in court in the present proceedings.

[26] The second defender's evidence on the critical events was equally simple. When the fourth defenders had threatened to enforce their rights over the flat, she had consulted Ms Coogans. It had become necessary to sell the flat and the second defender had arranged the sale to her brother, the first defender. According to the second defender the pursuer knew of this arrangement and was happy about it. She had provided evidence of her own identity to Ms Coogans. She believed it was her own passport. The second defender stated that she had not informed Ms Coogans that the pursuer no longer resided at the flat. She did not need to do so. She remembered signing the disposition and the Certificate of Solvency in Ms Coogans' office on 14 September 2005 in the presence of the pursuer who also signed both documents. She remembered a young girl, Louise, also being present. According to the second defender, she signed first and she did not look at the pursuer's signature afterwards. She stated that she, Ms Coogans, Louise and the pursuer were all present when the disposition was signed.

[27] When the second defender was shown the fake driving licence (6/4) she said that it was the pursuer's driving licence and that he always kept it in his jacket pocket. She thought that he had given it to Ms Coogans together with a "photo card" but she was not sure what sort of card it was. The pursuer second defender had not handed over anything on the day of signing.

[28] When the second defender was shown 6/5 of process, she said that she had seen the passport before and that the pursuer had given it to Ms Coogans. She then explained that the passport had been handed over by the pursuer on the occasion of their first visit to Ms Coogans' office, the occasion when she, the second defender, had shown her passport. On that earlier occasion, according to the second defender, she and the pursuer had seen Louise rather than Ms Coogans'. The second defender did not see the passport itself again after that time.

[29] The second defender described how she had received a subsequent phone call from Ms Coogans, after the signing, who required a photo identification document for the pursuer. The second defender said that the pursuer was then living in the same area and the children had seen him in the street. The request from Ms Coogans was passed on to him. A few days later the pursuer had given the second defender 6/5 of process and had asked her to drop it off to Ms Coogans. The second defender's recollection was that she had received a photocopy document from the pursuer and had handed it in to Louise at Ms Coogans' office.

[30] According to the second defender, the circumstances of the separation had been somewhat different to those described by the pursuer. He had not left suddenly. His bags had been packed and he was ready to walk out after any argument. When he finally left, he took everything that belonged to him. He had not left so much as a pair of socks behind. She said that the pursuer's knowledge of spoken English was quite good. With regard to written English, it was not that good or that bad. She further explained that he had attended a year's course in English after the date of their separation. Nevertheless, the second defender accepted that when she and the pursuer had been living together, she had filled in forms for him although just once or twice and shortly after the wedding.

[31] The second defender stated that the pursuer had not left behind a driving licence when he had left the flat. He had not left the fake driving licence. He had not left a passport or a photocopy of a passport behind. With regard to the erroneous date of birth, which dated from the original application by the pursuer for a provision driving licence in 1990, she accepted that she would have helped the pursuer to fill in the necessary form but she would have written what he told her. She did not think that she would have used her own knowledge to enable her to complete the form. She knew nothing about how the fake driving licence came into existence.

[32] According to the second defender, the pursuer had been aware that the fourth defenders had raised proceedings in the sheriff court with a view to repossessing the flat. Two letters had arrived at the flat and the second defender had given the pursuer his copy. After the second defender had discussed the proposed sale of the flat to the first defender, she had told the pursuer and he had said "sell it". With regard to the correspondence from Ms Coogans, the second defender stated that she would tell the pursuer about letters which he had received addressed to them jointly. One of those joint letters from Ms Coogans enclosed her cheque for the remaining balance of the purchase price, namely £8942.88. The second defender had paid that sum into her bank account and, according to her, had informed the pursuer by telephone that she had done so. When the second defender gave her evidence, she elected to affirm. The pursuer had elected to swear on the Koran and in the course of his evidence he called upon her to swear on the Koran also. In these circumstances the second defender was asked about her election to affirm rather than to swear on the Koran. She said that her practice of the Muslim faith was "half and half". Her decision to affirm and been influenced by the practical consideration of the need to wash her hands immediately before swearing on the Koran. That decision had been made before the pursuer had given evidence. She stated that the effect on her of affirming or swearing on the Koran was the same.

[33] The second defender was challenged in cross-examination on a number of issues. It was suggested to her that her account of the pursuer having given a passport to Louise on the occasion of an early visit to Ms Coogans' office had not been put to Ms Coogans, as it would have been if the second defender had previously told her solicitors about the incident. Her response was that she had told her solicitors all about 6/5 of process and that she had not previously been asked what the pursuer had handed over on the occasion of the initial meeting with Louise. She was then challenged that the Certificate of Solvency which she had deponed to be true was untrue in respect of the pursuer's address. Her explanation of that was that she probably had not read the document and described her action as "an innocent mistake".

[34] The evidence of the first defender was brief. Apart from corroborating some of the basic events which were not in dispute, his evidence was restricted to the issue of the pursuer's proficiency in English. According to the first defender, the pursuer could definitely read English,. including street signs. In cross-examination he agreed that the pursuer's main language was Punjabi and his knowledge of English was limited. He had heard the pursuer use English to speak to customers when he used to serve in a shop. The pursuer would listen to what a customer said and he would answer back but the pursuer was less good at speaking than in understanding. According to the first defender, the pursuer could make himself understood in English. The pursuer did not have a problem finding his way about because he, the first defender, believed that the pursuer could understand street signs.

Assessment of Evidence
[35] Counsel were agreed that the standard of proof in this case was a balance of probabilities and that the onus of proof lay on the pursuer. Miss Hood, for the second defender, drew my attention to the decision of a bench of five judges in Mullan v Anderson 1993 SCLR 506. That decision is clear authority for the view that there is no intermediate standard of proof between the civil and criminal even when the charge contained in civil proceedings involves the commission of a serious criminal office. In Mullan the pursuer sought to prove murder after the defender's acquittal in a criminal trial. The opinions in Mullan draw attention to the role which assumptions are likely to play in the proof of facts in such cases. Lord Prosser, with whose opinion Lord Brand agreed completely, put the matter thus (at page 524B-D):

"The only alternative to proof on a balance of probabilities is proof beyond reasonable doubt (Brown v Brown) and I can see nothing in authority or principle which suggests that the higher standard should be adopted in a civil action simply because that higher standard would be required in proving the same facts in a criminal trial. Whichever standard of proof is being applied, the party upon whom the onus of proof is laid may succeed merely by proving quite bare circumstances. Or he may have to provide a vast wealth of detailed evidence. General assumptions may make the task easy or they make it close to impossible, on either standard. Lord Reid's observations in McWilliams v Sir William Arrol & Co at p83 appear to me to show with great clarity the way in which general assumptions as to probabilities determine the magnitude or otherwise of a pursuer's task. Having regard to general probabilities, I do not doubt that a pursuer's task is one of some magnitude if he seeks to prove that a murder has been committed, even on a balance of probabilities. On the other hand, if he can prove detailed facts and circumstances, leading to death, he might require little more, even to satisfy the higher standard of proof. Whichever standard has to be attained, one may have a long way to go or a short way to go once the basic facts are proved. I see no justification for departing from the ordinary civil standard of proof in those cases where initially, because of the gravity of the allegations, a pursuer apparently has a long way to go."

Lord Morison summarised the point succinctly (at p517B-C):

"My view that any civil case, including this one, must be determined on a balance of probabilities does not ignore the obvious fact that it is more difficult to prove, according to the required standard, an allegation of murder or serious crime, because it is inherently unlikely that a normal person will commit such a crime."

[36] In the present case it seems highly probable that both the disposition and the Certificate of Solvency were signed by Mr X at the same time, on the same date, at the same place in the presence of the second defender and Ms Coogans. Normally, it may be reasonable to assume that such documents signed in such circumstances have been signed by the persons by whom they bear to have been signed. In my opinion, the circumstances in which the disposition was signed by Mr X were unusual for two reasons which render such an assumption of regularity inappropriate. First, the signature adhibited by Mr X is of a quite different type from that used by the pursuer on any known occasion before or after September 2005. His normal signature was written using block capital letters whereas the signature on the disposition was in cursive script. There was no evidence that the pursuer had ever written his name in cursive script or indeed that he could do so in English, writing from left to right. The nature of the pursuer's normal signature was clearly demonstrated by the loan agreement executed by him on 3 May 19990, the signature on his British passport issued on 11 June 2005 and the signature on his driving licence issued on 15 January 2010. No attempt was made by Mr X to copy the style of the pursuer's signature on the disposition. Secondly, on the basis of the evidence which I heard, there is no reason to assume that Ms Coogans knew the identity of Mr X or that he was her client.

[37] On the evidence, Ms Coogans met Mr X for the first time on 14 September 2005. It is possible that Mr X produced some evidence of his identity to Ms Louise Buist on an earlier occasion, but I did not hear evidence from her, nor did I see the passport, one page of which was copied in 6/5 of process. On the contrary, Ms Coogans asked Mr X for identification evidence when she met him on the date of signing. What she received was an old style driving licence which did not contain a photograph of Mr X. She said that she had thought that she had seen an accompanying card bearing a photograph of Mr X but I did not accept her evidence on that point. She thought that the card was pink, but the fake driving licence which she was shown is plainly not a counterpart driving licence such as would be accompanied by a photo driving licence. The pursuer's national identity card is green and not pink. Furthermore, Ms Coogans said that if any form of photo identity had been produced on that occasion, it would have been copied as was the fake driving licence. The copy of the fake driving licence which was taken by Ms Coogans' secretary on 14 September 2005 was not certified by Ms Coogans until some three months later. That was when she sought some form of photo identification of Mr X. By that time she had not seen Mr X for more than three months and she had only ever met him once. By the time that she came to give evidence, she could not remember his signing of the disposition at all. Her only memory was of the signing of the certificate of solvencyCertificate of Solvency. The document which she ultimately received, not from Mr X but from the second defender, was itself a copy and a patent construct in that it was a photocopy of a photograph placed on top of one page of a passport. She had no way of knowing that the person shown in the photograph was the person to whom the passport related. In fact, it was a photograph of the pursuer and it was an out of date passport issued to him, but that fact was not apparent from the photocopy given to Ms Coogans. What emerged from Ms Coogans' evidence was that if, by December 2005 she still had any reliable recollection of the appearance of Mr X, he looked like the pursuer had looked in his early 20s. By September 2005 the pursuer was aged 41 and probably looked like the photograph contained in his British passport which had been issued in June 2005. The appearance of the pursuer as between the photograph contained in 6/5 and his British passport is materially different.

[38] In the absence therefore of any basis for an assumption of regular execution of the disposition by the pursuer, one is left with two possibilities; either Mr X was the pursuer or he was someone else. If the second defender's account of events was correct and Mr X was the pursuer, the obvious first question is why he did not use his normal signature. This was a point addressed by Miss Hood in her closing submission. The reason which she suggested was that it was part of a scheme by the pursuer to enable him to challenge the transaction at a later date. She did not elaborate on how such a scheme might have been thought by the pursuer to be likely to be of benefit to him. The second obvious question, if the second defender was correct, and unless the pursuer was perpetrating a sophisticated scheme of deception, is why the pursuer, if he was Mr X, did not produce satisfactory evidence of identification either on 14 September or mid December 2005. By that time he had his new British passport. Even if that had not been available, for whatever reason, in September 2005, he would have had three months in which to find it or to provide a suitable alternative form of identification.

[39] If, on the other hand, the pursuer's account of events was correct, the second defender would have been an active party to a deception which involved falsifying the pursuer's signature on both the disposition and the certificate of solvencyCertificate of Solvency. It appeared from the evidence that she had had the opportunity to do so. She instructed Ms Coogans to act for herself and the pursuer in the sale transaction. She did not disclose that she was separated from the pursuer and that he no longer lived at the flat. She was therefore in a position to exclude him from correspondence concerning the transaction. She received the proceeds of sale. Although she maintained in evidence that the pursuer was aware of the transaction and that she had made him aware of the terms of all correspondence which she had received from Ms Coogans, including payment of the balance of the purchase price, she was nonetheless in a position effectively to exclude him from the transaction.

[40] Against this background, I turn to consider the evidence of Mr McCrae concerning the handwriting on the disposition. He was clearly of the view that the signature on the disposition which purported to be that of the pursuer was not in fact his. Mr McCrae did not think that the pursuer was capable of signing his name in that way. His evidence was, of course, open to the criticism that, although asked to do so, the pursuer had not attempted to write his name using cursive script and accordingly that Mr McCrae was not in a position to say with any certainty that the pursuer was unable to do so. While that observation may doubtless be made, Mr McCrae was an extremely experienced forensic document examiner and handwriting expert. He had examined the pursuer's attempts to sign his name in his normal fashion and this had informed his conclusion. He thought that the pursuer had difficulty writing his own name even in block capital letters far less that he would have been able to write it in cursive script of the type used in the disposition. I accepted his evidence. A handwriting expert who had been instructed on behalf of the second defender was present in court while the pursuer was giving evidence and witnessed the signatures provided by him in the course of his evidence (6/27). That expert was not led by the second defender.

[41] I have considered the various attempts made to discredit the pursuer's evidence in cross-examination, but I do not find that any of them damaged his credibility or reliability on the key fact, namely whether he was Mr X or not. I accept that his ability to read English is restricted and that he has little or no ability to write in English. This may make him a somewhat unconventional taxi driver even in respect of a private hire vehicle, but it does to make him an unreliable or an incredible witness. I had no difficulty in accepting his evidence that he had not noticed Ms Coogans' office premises in Cathcart Road. I do not doubt that his ability to communicate in spoken English has improved steadily since he first arrived in Scotland in 1989. Clearly he must have required considerable assistance to fill in various official forms during the first few years of his marriage. That assistance was provided by the second defender. There is an undoubted anomaly about the pursuer's date of birth in his driving licences. Although I am unable to resolve that anomaly on the evidence, I do not find that it adversely affects the pursuer's credibility or reliability on the key issue. Similarly, his history of having lost identity documents, having had such documents stolen and having allowed such documents to become so worn that they required to be replaced did not discredit his evidence.

[42] With the regard to the second defender, I note the submissions which were made about her election to affirm rather than to give evidence on oath. I do not find it necessary to attach any significance to that matter. If I had found it necessary to do so, I would have accepted the second defender's reason for choosing to affirm and would not have attached any weight to the matter.

[43] I was concerned, however, about the second defender's attitude to the inaccuracy contained in the certificate of insolvency which bears to have been sworn by her on oath before Ms Coogans. That error was the consequence of the second defender having deliberately withheld from Ms Coogans and Miss Buist the fact that she and the pursuer were no longer living together and had not been doing so since 1990. Her attitude appeared to be that it was no concern of Ms Coogans' as long as they were still married. That deception had consequences, not least of which was the exclusion of the pursuer from any direct correspondence from Ms Coogans.

[44] I was also concerned that the suggestion made in evidence by the second defender that Mr X had given a passport to Miss Buist at an early meeting in Ms Coogans' office premises, had not been put to Ms Coogansthe pursuer. If that had happened, it would have been a serious matter and would have led to obvious questions about what had happened to it. It might have led to Miss Buist being a witness at the proof. I do not accept that if the second defender had told her solicitors about this matter either before the proof began or before the pursuer completed giving his evidence, the matter would not have been put to him in cross-examination. Miss Hood's cross-examination of the pursuer was otherwise comprehensive and thorough. I conclude therefore that the second defender did not give this information to her solicitors and that she used it in her evidence in an attempt to establish her story.

[45] In all these circumstances, I find it highly probable that the signature on the disposition (6/3 and 7/2) is not that of the pursuer and that he did not attend the premises of Ms Coogans on 14 September 2005. I find it proved that the signature on the disposition is not that of the pursuer. I was invited by counsel for the pursuer, Mr Kelly, to pronounce degree of declarator as sought in the first conclusion. I shall pronounce decree in terms of the first part of that conclusion which is directly related to the factual position which I have found to have been proved, but not, at this stage, the second part of that conclusion which relates to the legal effect thereof. It may well be that the second part of the declarator sought is not controversial, but in view of the restricted nature of the proof which I have heard, and particularly in view of the fact that the first defender was not represented at it, I am not prepared to grant the second part of the declarator sought at this stage.