“ …damages (including any damages/compensation payable under theCriminal Justice Act 1988 ) and other relief… for deceit, fraud, conspiracy, conversion, negligence, breach of trust, breach of fiduciary duties, trespass to property, trespass to goods, and wrongful interference with goods.”
“By its application for a Restraint Order, the Defendant instituted relevant proceedings for the purposes of section 89 …”
“It should have been obvious that in the circumstances the charges against the claimant could not proceed unless a different view was taken having regard to the allegations that he was the mastermind of the frauds. But no immediate steps were taken to withdraw the arrest warrant or the restraint order. Mr Broad, the officer having conduct of the case against the claimant, was unable to recall when he attended Uxbridge Magistrates' Court to return the warrant. This is material having regard to a limitation defence raised by the defendant." The limitation point was the principle that the cause of action accrued when the arrest warrant was cancelled (para 17). (c) in paragraph 17 he recorded that the Chancery proceedings were "clearly inappropriate since there was a statutory right to compensation contained in s.89 of the 1988 Act which was subject to the conditions therein contained.". (d) In paragraph 19 Collins J considered statements from Mr Broad and Mr O'Donnell (a colleague in HMRC's solicitor’s office) to the effect that Uxbridge Magistrates' Court could find no record of the issue or of the return or the cancellation of the warrant. Since the court destroyed records after 3 years, that may be thought consistent with a cancellation in 2003. However, Mr Broad could not provide a specific date for the cancellation save to say he did not recall it as being as late as 2005. Paragraph 20 records that Mr Kent conceded that on the evidence HMRC would not be likely to succeed in establishing a limitation defence as a preliminary issue. (e) Paragraph 21 records an allegation of serious default on the part of HMRC in relation to the investigation of proceedings and what was not disclosed to Newman J when the restraint order was granted, and in failing to have it discharged when it became apparent that there would be no prosecution. (f) Collins J went carefully through the history of the deliberations about pursuing Mr Bhandal, based on privileged material which HMRC had chosen to disclose. In paragraph 48 he records counsel’s advice given in conference on17th July 2001 , in which counsel indicated that there was a strong case of criminal conduct. Paragraph 48 goes on: “He set out the charges which he suggested should be brought. The arrest warrant followed then [presumably that should be “them”]. (g) Subsequent paragraphs contain material which Mr Mallin relies on as demonstrating the extent to which Mr Broad’s credibility was in issue, and which he says would have been affected if it had been known he was the forger of the warrant. Those paragraphs include the following: “49. … Mr Broad himself was not party to any misleading evidence. He was, however, aware that there were problems in relation to LCB and the Allingtons. In evidence he said he did not recall hearing Alf Allington give evidence and in any event he was not made aware of his precise role. While unaware of the full extent of the problems, he said he was “loath to touch anything to do with LCB'. However, I have no reason to doubt that he informed Mr Mitchell [of counsel] of the problems and of his concerns to avoid LCB. He attended a conference on1 February 2000 at which health Allington's role was supposed to have been identified by Mr Small. 51. ... As with Mr Broad, Mr Robertson knew that there was an issue with Mr Allington. He liked Mr Broad thought the problem related to disclosure not to an evidential trail.… 52. I have no doubt that both Mr Broad and Mr Robertson were entirely honest in the evidence they gave before me. There were inevitable difficulties in recollecting details of events occurring up to 15 years ago. I am satisfied that Mr Mitchell was fully informed of all that was known by then and in particular was aware of the likely disclosure difficulties of Alf Allington's position. There was in my judgment no default by either of them in connection with the institution of the prosecution..." (h) Collins J then went on to consider the events post the restraint order and the belief or hope that Mr Bhandal could be extradited and concluded that the maintenance of the proceedings at that point amounted to no default and there was no need to go back to the judge. The maintenance of the proceedings carried on until advice from different counsel in June 2003 led to the conclusion that the prosecutions should be abandoned, and no evidence was offered against Mr Bhandal’s co-defendants (at that point there was no question of offering no evidence in relation to Mr Bhandal because his absence in the USA meant that any prosecution against him had got nowhere). In paragraph 59 Collins J recorded: “But the arrest warrant and the RO against the claimant remained in being. However, by then any alleged loss had already been caused.” (j) In paragraph 60 he rejected the evidence in an unsigned witness statement of a Mr Smith which accused various officers (unspecified in the judgment) of “gross deceit” and the non-disclosure of Mr Allington’s true rule. Collins J recorded: “Nothing in Mr Smith’s statement indicated that Mr Broad or Mr Robertson were involved in any deceit.”
"Unfortunately, it was not until after the trial proceedings below that further evidence could be obtained in support of the significant doubts about the warrant. This was so despite many strenuous efforts to get to the bottom of what actually occurred with regard to the warrant situation. The Appellant's counsel was restricted to examining witnesses about the surrender of the warrant in connection with the issue of limitation alone, and not about the authenticity of the warrant documentation itself."
" 30. However, the question remains as to whether such a claim amounts to an abuse. In my judgment, it does. The Administrative Court was competent to hear the section 89 application, because the application was put on the basis, as it had to be, that proceedings had been instituted against Mr Bhandal. As Mr Knox realistically accepted, by the time that application had been made, Mr Bhandal's advisors were well aware that there was evidence to suggest that the warrant had not been issued in the Uxbridge Magistrates Court on the date appearing on it. Such evidence included the statement dated6 May 2008 (which was not disclosed to HMRC until 2013) of a solicitor in the firm then instructed by Mr Bhandal who attended the court office and was shown the register of warrants by an officer which did not, as it should have done, contain details of the disputed warrant on the date which appeared on its face."
"32. As Longmore LJ observed, this evidence could and should have been obtained in or shortly after 2008, when Mr Bhandal's solicitors had evidence that the warrant had not been issued on the date which it brought. The fresh evidence does not entirely change the aspect of the case. I do not accept that he was misled by HMCE into making the section 89 application on the basis that the warrant and information were valid. It is true that that is what HMCE have always said and HMRC maintains. But Mr Bhandal's advisors had evidence to the contrary. He faced a choice, whether to proceed on the basis that proceedings had been instituted against him and to invoke a statutory procedure to apply for compensation on the basis of serious default on the part of the investigating officers, or to proceed on the basis which he now seeks to rely upon that the warrant and information had been created by Mr Broad later on. 33. He elected the former. In my judgment it is an abuse, after the application which he chose to make was dismissed as were his attempts to appeal that dismissal (including ultimately on the grounds of the forgery of the warrant and information), for him now to seek to pursue common law claims on the grounds of forgery which is the antithesis of the basis on which he pursued his section 89 application. ... 36. The case of forgery could not have been raised in the Administrative Court proceedings, because the basis of those proceedings was that proceedings had been instituted against Mr Bhandal. However, Mr Bhandal made an election, in full knowledge of evidence that the warrant had not been issued as it purported on its face. In my judgment, it would be oppressive for HMRC and Mr Broad to face these further proceedings. Looking broadly at the merits, the claim should be struck out on the basis that it is an abuse of process, whether as currently formulated or as proposed to be amended. It follows that the other applications are dismissed."
"By the time that the Chancery proceedings were stayed, the applicant had given serious consideration to alleging that a warrant for his arrest had not been issued on the basis of material then in his possession. Longmore LJ held, when refusing permission to appeal against the dismissal of the CJA claim, that with reasonable diligence he could have obtained the further material on which he relied before Longmore LJ. Notwithstanding the availability of this material, the applicant pursued the CJA claim. Having in these circumstances pursued the CJA claim he cannot now launch a collateral attack on the findings made by Collins J on the basis of an allegation that, by virtue of such material, he is not bound by those findings because there was no basis for the CJA claim. As the judge said, he chose to pursue that claim despite having, or being able with due diligence to obtain, the material on which he now relies. It was open to him to pursue alternative claims: the CJA claim on the basis that a warrant had been issued and other claims on the basis that a warrant had not been issued. In all the circumstances it would be an abuse of process to proceed with the Chancery action."
“The contrasting legal concepts of voidness and voidability form part of the English law of contracts. They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order is either irregular or regular. If it is irregular it can be set aside by the court that made it upon application to that court; if it is regular it can only be set aside by an appellate court upon appeal if there is one to which an appeal lies.”
“The principles are, briefly: first, there has to be a ‘conscious and deliberate dishonesty’ in relation to the relevant evidence given, or action taken, statement made or matter concealed, which is relevant to the judgment now sought to be impugned. Secondly, the relevant evidence, action, statement or concealment (performed with conscious and deliberate dishonesty) must be ‘material’. ‘Material’ means that the fresh evidence that is adduced after the first judgment has been given is such that it demonstrates that the previous relevant evidence, action, statement or concealment was an operative cause of the court’s decision to give judgment in the way it did. Put another way, it must be shown that the fresh evidence would have entirely changed the way in which the first court approached and came to its decision. Thus the relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was. Thirdly, the question of materiality of the fresh evidence is to be assessed by reference to its impact on the evidence supporting the original decision, not by reference to its impact on what decision might be made if the claim were to be retried on honest evidence.”
“ 35. The contrast with the present case is immediately obvious. This is not an instance of the appellant seeking to adduce evidence of facts “going in the same direction” as facts previously stated, because Mrs Takhar had not asserted that the Krishans had been guilty of fraud, merely that she had no recollection of having signed the profit share agreement. The relief that she seeks now is quite different from that which she had earlier claimed. Previously, she sought to avoid the effect of the agreement because of undue influence and unconscionability on the part of the Krishans. Now she claims that the agreement on which they rely was, in its written form, a forgery. 36. Now, it is true that Earl Cairns had also said in the Phosphate Sewage case, at p 814, that “the only way in which [new evidence] could possibly be admitted would be if the litigant were prepared to say, I will shew you that this is a fact which entirely changes the aspect of the case, and I will shew you further that it was not, and could not by reasonable diligence have been, ascertained by me before.”
“55. Two qualifications to that general conclusion should be made. Where fraud has been raised at the original trial and new evidence as to the existence of the fraud is prayed in aid to advance a case for setting aside the judgment, it seems to me that it can be argued that the court having to deal with that application should have a discretion as to whether to entertain the application. Since that question does not arise in the present appeal, I do not express any final view on it. The second relates to the possibility that, in some circumstances, a deliberate decision may have been taken not to investigate the possibility of fraud in advance of the first trial, even if that had been suspected. If that could be established, again, I believe that a discretion whether to allow an application to set aside the judgment would be appropriate but, once more, I express no final view on the question. In Mrs Takhar’s case, she did suspect that there may have been fraud but it is clear that she did not make a conscious decision not to investigate it. To the contrary, she sought permission to engage an expert but, as already explained, this application was refused.”
“63 .,.. The reason is that proceedings of this kind are abusive only where the point at issue and the evidence deployed in support of it not only could have been raised in the earlier proceedings but should have been: see Johnson v Gore-Wood & Co, at p 31 (Lord Bingham of Cornhill) and Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd, para 22 (Lord Sumption). As Lord Bingham observed in the former case, it is “wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.”