“16. DG says the answer to the preliminary issue is ‘no’. Her case is that she first had cause to become concerned about the supposed investment in the truffle scheme in November 2016 when she then contacted GF. Far from admitting participation in the scam, GF sought to pacify her and, she says, it was only in May 2017 that she acquired full knowledge of the fraud that had been perpetrated against her. 17. BF and TFP, on the other hand, say the answer to the question is ‘yes’. They say all of DG's claims are time-barred or, alternatively, that the claims based on negligent advice are barred. 18. Their position is that the reasonable diligence to be expected of a claimant who is the victim of fraud … means that DG cannot prove she could not have discovered the alleged fraud prior to November 2016. They say DG either knew of or should have known of it from the moment she made the investment in the truffle plantation scheme in October 2012 or certainly by May 2013 when she was told she had been sent her Government Gateway User ID enabling her to access the details of her investment. They rely upon a further fall-back date (outside the 6 year period prior to the issue of the Claim Form) of September 2013 when she received the Government Gateway details in the context of her having queried certain pension administration fees. On the basis that DG should have known of the alleged wrongdoing prior to November 2013 it is said that all her claims are time-barred. 19. Alternatively, in relation to the claims based on negligent advice, BF and TFP contend that facts which were observable or ascertainable prior to that date … justified DG embarking on the preliminaries to the claim which was in fact issued more than 3 years later. They rely upon the fact that DG did log in to the Government Gateway on24 July 2014 and, as a fall-back, the date of September 2016 when an article about the truffle investment scheme scam (which DG printed off on24 November 2016 ) was first published. On the basis that DG knew or should have known of the allegedly negligent advice prior to November 2016 it is said that the claims framed in negligence are time-barred. 20. As appears from my analysis of the evidence below, the arguments raised in response to DG's reliance upon sections 32 and 14A of theLimitation Act 1980 do not just rest upon what BF and TFP say was a series of missed opportunities to discover the alleged wrongdoing. Their resistance to DG's reliance upon those provisions also extends to a direct challenge to the honesty and reliability of her evidence that she only became concerned about her investment in November 2016. This challenge rests principally upon what they describe as DG's deliberate deletion in October 2019 of almost all her emails prior to10 January 2018 . Their deletion took place one month before the issue of the Claim Form. Related to that point are other points of criticism about DG's disclosure in these proceedings (also addressed below and which led to her solicitor also giving evidence before me) and the fact that Ms Alison Beatty, with whom DG had communications in November 2016 and who it had been proposed would give evidence on behalf of DG, was not called as a witness to corroborate DG's case on limitation.”
“21. The defendant will submit at the close of trial that: [ … ] 21.3. The Claimant deliberately deleted her email account in October 2019, one month prior to the issuance of the Claim Form in November 2019, despite the fact that she knew and understood her obligations to preserve such evidence from April 2019. [ … ]”
“Mr Virgo: The third matter I wanted to address is under the heading on page 7 of Mr Dinsmore’s skeleton with the rather contentious title “The destruction of evidence”
“Mr Dinsmore: … As your [lordship] will have picked up from our skeleton argument, we say the same in relation to this case and I will not say too much about that because I am going to cross examine Ms Giddens on that, but we say that the claimant had not been candid about the deletion of emails that that has only come out following further correspondence from the defendant solicitors, And that there is now a story being put forward that we say is false … ”
“Question: And the reason they are not available is because you had deleted them? You accept that’s the reason they are not available, Ms Giddens? Answer: I would never have deleted them deliberately. If I’ve deleted them, if they’ve gone, I do not recall deleting my emails.”
“In relation to the deletion itself then, we do say that that deletion was deliberate. She deleted those documents one month prior to issuing her claim form. We say that the timing of that is highly suspicious. She did or should have known what pertinent emails were given that she accepts that in April 2019 she was told of the need to preserve documents. [ … ] We have what we say is a deliberate deletion of documents, and I am going to come onto the story in relation to that in a moment, which is then not disclosed and is drawn out of the claimant over a year to finally get to the position with a sworn statement of truth. [ … ] Just briefly taking those points together, the burden is on the claimant. There has been a clear destruction of documents, from which we suggest your Lordship should infer that there were documents in support of the defendants’ case, and a failure to call Ms Beatty, an inference that she was not willing to corroborate.”
“88. DG's credibility as a witness is therefore key to my determination of the preliminary issue and whether she can avail herself of section 32 or section 14A.”
“121. The criticisms of DG's account were powerful ones. I have been left feeling puzzled as to how, through one or more clicks of the keyboard, emails held on a server can have been so easily and irretrievably lost by accident. 122. However, I am not persuaded her account of events is untrue. Ultimately, and in the absence of convincing expert evidence demonstrating her explanation is not credible, my decision on this point rests upon my assessment of her as a witness. As Mr Virgo pointed out, the contrary conclusion would involve DG attempting to hoodwink the court with a false narrative. DG did not come across to me as a witness who was perjuring herself. [ … ] 124. A further attack upon the credibility of DG's evidence generally involved the suggestion that she was somehow implicated in the truffle investment scam … [ … ] 125. … I am not at all persuaded by this particular attack on DG's credibility so far as it bears upon her evidence on the preliminary issue … ”
“128. It is for DG to make out the case for either section 32 or section 14A applying to relieve her of the consequences of the ordinary 6 year limitation period. 129. If prior to22 November 2013 DG either did discover matters which justified her making preliminary inquiries with a view to bringing proceedings, or could have discovered them with reasonable diligence, then all her claims are time-barred and not saved by section 32. If she either had or is to be attributed with acquiring knowledge of such matters in the period after that date but before November 2016 then her claim based upon negligent advice is time-barred, and not saved by section 14A, even if the claim in fraud is not. 130. For the reasons explained in the previous section of this judgment, on my assessment of the evidence I am satisfied on the evidence that DG has proved that she did not discover the alleged breaches and would not have discovered them though the exercise of reasonable diligence prior to26 November 2016 and that, until that date, she lacked constructive knowledge of those breaches by reference to facts observable or ascertainable by her. 131. On that basis, the answer to the preliminary issue identified in paragraph 13 above is ‘no’ in relation to all of DG's pleaded claims.”
“1. There was a serious procedural, or other, irregularity in reaching judgement without expert evidence on the plausibility of Ms Giddens’ account which was unjust because it led the Court to err in its conclusion that Ms Giddens did not deliberately delete her emails. 2. The Court’s conclusion that Ms Giddens had not deliberately deleted her emails was unsupported by evidence and involved a demonstrable failure to consider relevant evidence. 3. The court erred in its conclusion that Ms Giddens did not know of the alleged breaches and could not have known through the exercise of reasonable diligence, prior to26 November 2016 .”
“1. The applicant claims repeatedly that at the trial of the preliminary issue there was no reason to doubt the respondent’s account of having inadvertently deleted her emails and that the new evidence in the form of a report from Mr Buller could not have been obtained for that trial. 2. Neither claim withstands scrutiny. 3. The applicant did doubt the respondent’s account. He alleged that she was guilty of deliberate deletion and the respondent was cross-examined by the applicant’s counsel on that basis. Further, the applicant’s counsel made closing submissions that the respondent’s explanation was technically implausible. The judge addressed these submissions at paras 111-113 and 116-122 of his judgment. The applicant’s problem, entirely predictably, was that there was no expert evidence to support those submissions. 4. There was no reason why Mr Buller‘s report could not have been obtained for the trial. Contrary to what is asserted by the applicant, it does not depend on any particularly sophisticated analysis and does not depend on, or even refer to, the evidence given by the respondent at the trial. It is a straightforward explanation that the account given in the respondents witness statement is not technically plausible. Such an expert’s report could undoubtedly have been obtained for the trial, or the existing joint expert could have been asked appropriate questions, if the applicant or his legal team had thought to do so. [ … ]”
“ … where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole issue can be properly defined, fought out, and determined, though a motion for a new trial is also an available weapon and in some cases may be more convenient.”
“ … the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegations established by the strict proof such a charge requires.”
“That, however, there is jurisdiction in special cases to set aside a judgment for fraud on a motion for a new trial may be accepted … If, however, for any special reason departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof are no whit abated and all the strict rules of evidence apply. The affidavits used must, therefore, be examined as on final trial; every particle of hearsay evidence and reference to documents, not produced, must be excluded, and it must be kept constantly in mind that the rules which permit, on interlocutory proceedings, hearsay evidence, where the exact source of the information is afforded, have no more application than they would possess were the deponent a witness in the box speaking at the trial. I cannot help thinking that it is because these considerations were not properly placed before and impressed upon the Court of Appeal that they have pronounced a judgment which, in spite of the skill of counsel for the respondent, I can find no ground to support.”
“54. For the reasons that I have given, I do not consider that the Etoile [Owens Bank Ltd v Etoile Commerciale SA[1995] 1 WLR 44 , PC] and Bracco [Owens Bank Ltd v Bracco[1992] 2 AC 443 , HL] cases are authority for the proposition that, in cases where it is alleged that a judgment was obtained by fraud, it may only be set aside where the party who makes that application can demonstrate that the fraud could not have been uncovered with reasonable diligence in advance of the obtaining of the judgment. If, however, they have that effect, I consider that they should not be followed. In my view, it ought now to be recognised that where it can be shown that a judgment has been obtained by fraud, and where no allegation of fraud had been raised at the trial which led to that judgment, a requirement of reasonable diligence should not be imposed on the party seeking to set aside the judgment. 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.”
“61. The cause of action to set aside a judgment in earlier proceedings for fraud is independent of the cause of action asserted in the earlier proceedings. It relates to the conduct of the earlier proceedings, and not to the underlying dispute. There can therefore be no question of cause of action estoppel. Nor can there be any question of issue estoppel, because the basis of the action is that the decision of the issue in the earlier proceedings is vitiated by the fraud and cannot bind the parties: Director of Public Prosecutions v Humphrys[1977] AC 1 , 21 (Viscount Dilhorne). If the claimant establishes his right to have the earlier judgment set aside, it will be of no further legal relevance qua judgment. It follows that res judicata cannot therefore arise in either of its classic forms. 62. The rule, originally stated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, that a party is precluded from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones, is commonly treated as a branch of the law of res judicata. It has the same policy objective and the same preclusive effect. But, it is better analysed as part of the juridically distinct but overlapping principle which empowers the court to restrain abuses of its process. The relationship between the two concepts was examined by this court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd[2014] AC 160 , paras 22-25. Whereas res judicata is a rule of substantive law, abuse of process is a concept which informs the exercise of the court’s procedural powers. These are part of the wider jurisdiction of the court to protect its process from wasteful and potentially oppressive duplicative litigation even in cases where the relevant question was not raised or decided on the earlier occasion. Since the decisions of the House of Lords in Arnold v National Westminster Bank plc[1991] 2 AC 93 and Johnson v Gore Wood & Co[2002] 2 AC 1 it has been recognised that where a question was not raised or decided in the earlier proceedings but could have been, the jurisdiction to restrain abusive re-litigation is subject to a degree of flexibility which reflects its procedural character. This allows the court to give effect to the wider interests of justice raised by the circumstances of each case. 63. It is this flexibility which supplies the sole juridical basis on which the respondents can argue that the evidence of fraud must not only be new but such as could not with reasonable diligence have been deployed in the earlier proceedings. It is also the basis on which Lord Briggs, in his judgment on the present appeal, suggests a less absolute rule than that proposed by Lord Kerr. I cannot accept either the respondents’ argument, or Lord Briggs’ more moderate variant of it. 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.’ The ‘should’ in this formulation refers to something which the law would expect a reasonable person to do in his own interest and in that of the efficient conduct of litigation. However, the basis on which the law unmakes transactions, including judgments, which have been procured by fraud is that a reasonable person is entitled to assume honesty in those with whom he deals. He is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows that they are. That is why it is not a defence to an action in deceit to say that the victim of the deceit was foolish or negligent to allow himself to be taken in: Central Railway Company of Venezuela v Kisch (1867) LR 2 HL 99, 120 (Lord Chelmsford); Redgrave v Hurd(1881) 20 Ch D 1 , 13-17 (Jessell MR). It follows that unless on the earlier occasion the claimant deliberately decided not to investigate a suspected fraud or rely on a known one, it cannot be said that he ‘should’ have raised it.”
“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
“61. The rule, originally stated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, that a party is precluded from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones, is commonly treated as a branch of the law of res judicata. It has the same policy objective and the same preclusive effect. But, it is better analysed as part of the juridically distinct but overlapping principle which empowers the court to restrain abuses of its process. The relationship between the two concepts was examined by this court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd[2014] AC 160 , paras 22-25. Whereas res judicata is a rule of substantive law, abuse of process is a concept which informs the exercise of the court’s procedural powers. These are part of the wider jurisdiction of the court to protect its process from wasteful and potentially oppressive duplicative litigation even in cases where the relevant question was not raised or decided on the earlier occasion. Since the decisions of the House of Lords in Arnold v National Westminster Bank plc[1991] 2 AC 93 and Johnson v Gore Wood & Co[2002] 2 AC 1 it has been recognised that where a question was not raised or decided in the earlier proceedings but could have been, the jurisdiction to restrain abusive re-litigation is subject to a degree of flexibility which reflects its procedural character. This allows the court to give effect to the wider interests of justice raised by the circumstances of each case. 63. It is this flexibility which supplies the sole juridical basis on which the respondents can argue that the evidence of fraud must not only be new but such as could not with reasonable diligence have been deployed in the earlier proceedings. It is also the basis on which Lord Briggs, in his judgment on the present appeal, suggests a less absolute rule than that proposed by Lord Kerr. I cannot accept either the respondents’ argument, or Lord Briggs’ more moderate variant of it. 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.’ The ‘should’ in this formulation refers to something which the law would expect a reasonable person to do in his own interest and in that of the efficient conduct of litigation. However, the basis on which the law unmakes transactions, including judgments, which have been procured by fraud is that a reasonable person is entitled to assume honesty in those with whom he deals. He is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows that they are. That is why it is not a defence to an action in deceit to say that the victim of the deceit was foolish or negligent to allow himself to be taken in: Central Railway Company of Venezuela v Kisch (1867) LR 2 HL 99, 120 (Lord Chelmsford); Redgrave v Hurd(1881) 20 Ch D 1 , 13-17 (Jessell MR). It follows that unless on the earlier occasion the claimant deliberately decided not to investigate a suspected fraud or rely on a known one, it cannot be said that he ‘should’ have raised it.”
“151. Mr Mallet [counsel for the claimant] relied on the fact that virtually all of the evidence on which the defendant now wishes to rely was known to it and in its possession at the time of the trial. This, he said, meant that it was not ‘fresh’ or ‘new’, whereas this is an essential requirement if the judgment of HHJ Coltart is to be set aside. 152. The starting point is that, as Lord Sumption pointed out in Takhar, an action to set aside a judgment on the basis that it has been obtained by fraud is a cause of action in itself. In the present case, the question whether the cause of action should proceed arises in the context of an appeal from the original decision, rather than a fresh claim, but there is no difference of principle in my view and none was suggested by counsel … 153. Second, a key ingredient of the cause of action is that the party and the court were deceived by the fraudulent evidence of the other party. For this reason the court requires ‘fresh’ or ‘new’ evidence or facts. Mr Jones submitted that evidence or facts which were not before the court in the earlier proceedings will be sufficient, but I do not accept this. In my judgement, the facts or evidence relied on must be materials which were not known, at the time of trial, to the party now alleging that it was deceived … 154. This point is strictly about the validity of the cause of action pleaded in the Statement of Case but the considerations which underpin the requirement for fresh evidence overlap with those which underpin arguments of res judicata and abuse of process, namely the need for finality of litigation. In the present case, from mid-September 2017 Mr Fischer [a director of the defendant] was sufficiently clear that the Claim was fraudulent to report the matter to the police and, by time of the trial, he had virtually all of the material on which the defendant now seeks to rely to prove its allegations. This, in my view, is fatal to the defendant's case … 155. I appreciate that this conclusion may not sit comfortably with how Lord Sumption put the matter in some passages in his judgment in Takhar. In particular, he referred to evidence not being ‘deployed’ (see eg paragraphs 63 and 66) rather than not being ‘known’. It is arguable that his reference to ‘new evidence not before the court in the earlier proceedings’ in paragraph 65 refers to evidence which is both new to the claimant and not before the court but it could equally mean that the evidence should be regarded as new if it was not before the court on the previous occasion. Moreover, the references at the end of paragraphs 63 and 66 to the possibility that a party would or might be barred from bringing the second claim if he ‘deliberately decided… not to rely on a known fraud’ (emphasis added) arguably support Mr Jones' submission that there may be cases where the fraud is known but the litigant is prevented from raising it and the fraud issue is nevertheless then permitted to proceed because there was no deliberate decision not to rely on it. 156. I do not rule out the possibility that there may in law be exceptional cases where the evidence of fraud is known to a party and in its possession, but cannot be deployed, and the second action is then permitted to proceed (eg because of threats to the litigant or for reasons related to the prevention of crime or national security or because it emerges at a very late stage eg during the trial … But, I do not think that these passages from the judgment of Lord Sumption should be read as establishing a general rule that it is only when there has been an entirely free choice not to rely on known evidence of fraud that the second claim will be prevented from proceeding: [ … ] ii) In Takhar, the Supreme Court was not considering a case where, as here, the alleged fraud was known at the time of trial and the evidence was in the knowledge and possession of the party seeking to set aside the judgment … [ … ] iv) The issue which the Supreme Court was asked to determine was whether there was a requirement to show that the alleged evidence of fraud could not, with reasonable diligence have been discovered. It was not whether, having discovered the evidence of fraud, there was a condition that the case was prosecuted with reasonable diligence … ” [ … ] ii) In Takhar, the Supreme Court was not considering a case where, as here, the alleged fraud was known at the time of trial and the evidence was in the knowledge and possession of the party seeking to set aside the judgment … [ … ] iv) The issue which the Supreme Court was asked to determine was whether there was a requirement to show that the alleged evidence of fraud could not, with reasonable diligence have been discovered. It was not whether, having discovered the evidence of fraud, there was a condition that the case was prosecuted with reasonable diligence … ”
“166. Assuming res judicata applies in this context, then, it seems to me that the defendant is barred from running its case that the claimant gave false evidence and relied on certain documents which were forged to make good her case before HHJ Coltart, subject to its arguments that it should be permitted to rely on evidence in relation to these issues which was not before the court. The question would then be whether there are ‘special circumstances’in this case where to refuse to allow him to do so ‘would cause injustice’(per Lord Sumption’s summary at paragraph 22 of his judgment in Virgin Atlantic) having regard to the need for finality in litigation and the particular considerations which apply where it is alleged that a judgment has been procured by fraud. Similarly, insofar as the defendant did not raise issues or deploy materials before HHJ Coltart the question would be whether he should be permitted to do so having regard to essentially the same considerations. 167. Insofar as there is any difference between the approach to these questions in the context of a plea of res judicata, as opposed to abuse of process, where the claim is to set aside an order on the grounds that it has been procured by fraud, I do not consider that there are special circumstances which mean that it would be unjust to refuse to allow the defendant to reopen the issues which were before HHJ Coltart. On the contrary, I consider that it would be unjust to the claimant to allow the defendant to do so, for the reasons stated below in relation to abuse of process, and that the finality principle should prevail in this case.”
“168. As to whether the case of fraud which the defendant now wishes to advance is abusive, I am persuaded that it is for the reasons given above and the following reasons. 169. Takhar should not be regarded as detracting from the guidance as to the general approach to abuse of process in Johnson v Gore Wood (supra). Instead, as discussed above, the Supreme Court was looking at the application of that guidance in the particular situation where there is a claim that an earlier judgment was procured by fraud and that claim is said to be abusive, albeit that the Supreme Court held that a rule could be derived in relation to this type of case. Furthermore, the issue which the Supreme Court decided was as to the application or otherwise of a reasonable diligence condition where the alleged fraud and the evidence to support it were not known to, or in the possession of, Mrs Takhar and the issue of fraud was not raised in the earlier proceedings for determination at trial. 170. As I have pointed out, in the present case the questions whether the claimant's evidence was truthful, and the impugned documents were authentic, were raised at the outset in the County Court proceedings and were litigated before the Court in the interlocutory stages and at the trial. The honesty of her claim was in substance challenged. The majority of the impugned documents were central to the court's decision on the claim for the costs of repair and redecoration, particularly those documents which evidenced the fact and amount of the payments which she said she had made. The Judge also explicitly determined these issues. The defendant's true complaint is essentially that it did not put forward the whole of its case at trial. I therefore consider that Takhar can be distinguished from the present case and that the present case is not subject to the ratio of Takhar. 171. Mr Jones argued that there are parallels with Takhar given that, as set out in more detail above, Mrs Takhar said that she did not recall signing the profit share agreement etc and there was evidence that she and her advisers suspected that the signature attributed to her was not genuine. If this meant that fraud was not ‘raised’ for the purposes of the Supreme Court's analysis, he argued, it must follow that it was not raised in the relevant sense in the present case. In my view, however, in drawing its distinction between cases where the issue of fraud was raised and cases where it was not raised, and bearing in mind that the issue was as to abuse of process and the need for finality, the Supreme Court intended an approach based on substance rather than form. It had in mind the question whether the court was asked to decide the honesty or truthfulness of the claim and/or of the evidence on which it was based, rather than whether a so called positive case of fraud was advanced or the allegation of fraud was made in terms … ”
“71. Elu v Floorweald is not directly in point. It concerned a very different case in which the allegations of fraud had been raised in the first set of proceedings and either abandoned or found in favour of the successful claimant at trial. Linden J found that there was a deliberate decision not to pursue the fraud allegations or deploy the evidence at trial; the defendant had also, for tactical reasons, deliberately failed to comply with directions from the court for the service of the evidence of a witness on which he now sought to rely. There was ample material for Linden J to find the second claim to be an abuse of process, consistently with Lord Sumption's reasoning in Takhar. 72. Linden J's observations about what is meant by ‘fresh evidence’, particularly in the passage at [153] to [156], were unnecessary to his decision. As he himself recognised, they are difficult to reconcile with Lord Sumption's approach in Takhar. What Lord Sumption says is clear and in accordance with principle, and it should be assumed that he meant what he said. There is, with respect, no internal inconsistency in his judgment, and three other members of the Supreme Court agreed with it. Lord Sumption's judgment is not at odds with what Lord Kerr said. On the contrary, Lord Kerr took the view that there should be a discretion to refuse an application to set aside the judgment if the claimant took a deliberate decision not to investigate a suspected fraud. Lord Sumption held that it would be an abuse of process to bring the claim in those circumstances. Apart from the quotation from Toubia, which was specifically in the context of explaining why there is no ‘due diligence’ obligation, Lord Kerr said nothing about what the position would be if the evidence of fraud was obtained prior to trial. 73. For those reasons, the case of Elu should be treated with some caution. It provides no justification for finding that Mr Park's knowledge of the circumstances in which he signed the Deed is a proper basis upon which to deny him the opportunity of seeking the judicial rescission of the default judgment on the grounds of fraud.”
“59. The Board does not doubt that Park was rightly decided on its facts but would not adopt the approach of the English Court of Appeal in that case to the question of abuse of process. The sole basis for that approach was what was said by Lord Sumption in Takhar. In the opinion of the Board, the statements of Lord Sumption on which the Court of Appeal relied in Park do not bear the weight put on them.”
“where it can be shown that a judgment has been obtained by fraud, and where no allegation of fraud had been raised at the trial which led to that judgment, a requirement of reasonable diligence should not be imposed on the party seeking to set aside the judgment.”
“53. … 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 … The ‘should’ in this formulation refers to something which the law would expect a reasonable person to do in his own interest and in that of the efficient conduct of litigation. However, the basis on which the law unmakes transactions, including judgments, which have been procured by fraud is that a reasonable person is entitled to assume honesty in those with whom he deals. He is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows that they are … It follows that unless on the earlier occasion the claimant deliberately decided not to investigate a suspected fraud or rely on a known one, it cannot be said that he ‘should’ have raised it.”
“66. I would leave open the question whether the position as I have summarised it is any different where the fraud was raised in the earlier proceedings but unsuccessfully. My provisional view is that the position is the same, for the same reasons. If decisive new evidence is deployed to establish the fraud, an action to set aside the judgment will lie irrespective of whether it could reasonably have been deployed on the earlier occasion unless a deliberate decision was then taken not to investigate or rely on the material.”
“60. It is important not to lose sight of the basic tenets of common law reasoning that every judgment must be read in context, by reference to what was in issue in the case, and that it is only the ratio of the decision which establishes a precedent and not obiter dicta … 61. In Takhar the claimant was seeking to show that the judgment against her was procured by fraud by relying on evidence obtained after the trial. Thus, there was no issue about whether the evidence in question was ‘new’ or about what constitutes ‘new’ or ‘fresh’ evidence for the purpose of a claim to set aside a judgment for fraud: the evidence was ‘new’ on any view of the matter. The only issue in the appeal was whether there was a requirement to show that the new evidence could not have been discovered with reasonable diligence in time to be deployed in the earlier proceedings … No question arose as to whether it is or may be an abuse of process to attempt to set aside a judgment for fraud relying solely on information which the claimant had when the judgment was given. 62. Accordingly, the Supreme Court did not receive argument on nor have to apply their minds to that question, let alone decide it. The judgments must be read in this light. Lord Sumption, at para 65, distinguished between ‘(i) the proposition that an action to set aside a civil judgment must be based on new evidence not before the court in the earlier proceedings,’ and ‘(ii) the proposition that that evidence must not have been obtainable by reasonable diligence for the earlier proceedings’. While rejecting the second proposition, he described the first as ‘well established’. But nowhere in his judgment did Lord Sumption distinguish between and consider separately (i) the proposition that the evidence on which the action to set aside the judgment is based must have been obtained since the earlier proceedings, and (ii) the proposition that the evidence must be ‘new’ only in the sense that it was not adduced in the earlier proceedings even though the claimant already had it. It is a mistake in these circumstances to treat what Lord Sumption said as authority on a point that he did not need to, and did not, address. 63. It is still relevant to examine the reasoning which led Lord Sumption to express the view, obiter, that an action to set aside a judgment for fraud can only be an abuse of process if, in the earlier proceedings, ‘the claimant deliberately decided not to investigate a suspected fraud or rely on a known one’. This was said by Lord Sumption, at para 63, to follow from ‘the basis on which the law unmakes transactions, including judgments, which have been procured by fraud’ – namely, that ‘a reasonable person is entitled to assume honesty in those with whom he deals’ and ‘is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows that they are’ … 64. … Lord Sumption’s reasoning is an orthodox statement of the test for rescission of a contract for misrepresentation. But his discussion appears to leave no separate space at all for the Henderson principle – or what he had aptly described as ‘the wider jurisdiction of the court to protect its process from wasteful and potentially oppressive duplicative litigation even in cases where the relevant question was not raised or decided on the earlier occasion’: see Takhar at para 62 … 65. In the Board’s view, this approach gives insufficient weight – indeed on analysis it gives no weight at all – to the strong public interest of achieving finality in litigation … One way in which the principle of finality is protected is by means of the court’s procedural power to prevent abuse of its process. The Board can see no justification for exempting actions alleging that a settlement or judgment was obtained by fraud from the scope of that protection in cases where the evidence relied on was already known to the claimant at the time of the settlement or judgment. [ … ] 68. The risk of a party being vexed by allegations of fraud which amount to ‘wasteful and potentially oppressive duplicative litigation’ is as at least as great as the risk as regards other types of new claim. In fact, it may be considered greater, as the jurisdiction to set aside a judgment or settlement agreement for fraud creates the potential for using allegations of fraud as a pretext for relitigating the dispute supposed to have been finally determined … [ … ] 72. The Board thus considers that, where a claimant relies on evidence not adduced in the original proceedings to allege that a judgment or settlement in those proceedings was obtained by fraud, the burden is on the claimant to establish (1) that the evidence is new in the sense that it has been obtained since the judgment or settlement, or (2) if the evidence is not new in this sense, any matters relied on to explain why the evidence was not deployed in the original action. Furthermore, where the evidence is not shown to be new in this sense, the claim is likely to be regarded as abusive unless the claimant is able to show a good reason which prevented or significantly impeded the use of the evidence in the original action.”
“5. The doctrine [of precedent] is, of course, seen in its simplest and most familiar form when applied to the hierarchy of courts. On issues of law, (i) Circuit Judges are bound by decisions of High Court Judges, the Court of Appeal and the Supreme Court, (ii) High Court Judges are bound by decisions of the Court of Appeal and the Supreme Court, and (iii) the Court of Appeal is bound by decisions of the Supreme Court … [ … ] 9. So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so … 10. The question to be addressed in this appeal is the effect of decisions of the [Judicial Committee of the Privy Council (JCPC)]. Although the function of the JCPC has varied somewhat since its creation by theJudicial Committee Act 1833 , this case is concerned with its function as the final appellate court for a number of Commonwealth countries, the 14 British Overseas Territories, the Channel Islands and the Isle of Man. In that capacity, the JCPC advises the monarch on the disposal of appeals or (in the case of republics) determines the disposal of appeals. Accordingly, the JCPC is not a court of any part of the United Kingdom. 11. Having said that, the JCPC almost always applies the common law, and either all or four of the five Privy Counsellors who normally sit on any appeal will almost always be Justices of the Supreme Court. This reflects the position as it has been for more than 100 years, following theAppellate Jurisdiction Act 1876 , which created the Lords of Appeal in Ordinary (ie the Law Lords), who thereafter constituted the majority of the Privy Counsellors who sat in the JCPC, until the creation of the Supreme Court in October 2009. 12. Three consequences have been held to follow from this analysis, at least as a matter of logic. First, given that the JCPC is not a UK court at all, decisions of the JCPC cannot be binding on any judge of England and Wales, and, in particular, cannot override any decision of a court of England and Wales (let alone a decision of the Supreme Court or the Law Lords) which would otherwise represent a precedent which was binding on that judge. Secondly, given the identity of the Privy Counsellors who sit on the JCPC and the fact that they apply the common law, any decision of the JCPC, at least on a common law issue, should, subject always to the first point, normally be regarded by any Judge of England and Wales, and indeed any Justice of the Supreme Court, as being of great weight and persuasive value. Thirdly, the JCPC should regard itself as bound by any decision of the House of Lords or the Supreme Court – at least when applying the law of England and Wales. That last qualification is important: in some JCPC jurisdictions, the applicable common law is that of England and Wales, whereas in other JCPC jurisdictions, the common law is local common law, which will often be, but is by no means always necessarily, identical to that of England and Wales. [ … ] 16. There is no doubt that, unless there is a decision of a superior court to the contrary effect, a court in England and Wales can normally be expected to follow a decision of the JCPC, but there is no question of it being bound to do so as a matter of precedent. There is also no doubt that a court should not, at least normally, follow a decision of the JCPC, if it is inconsistent with the decision of a court which is binding in accordance with the principles set out in paras 5, 8 and 9 above. 17. The difficult question is whether this latter rule is absolute, or whether it is subject to the qualification that it can be disapplied where a first instance judge or the Court of Appeal considers that it is a foregone conclusion that the view taken by the JCPC will be accepted by the Court of Appeal or Supreme Court (as the case may be) … I have concluded that it is more satisfactory if, subject to one important qualification which I deal with in paras 19 and 20 below, the rule is absolute – ie that a judge should never follow a decision of the JCPC, if it is inconsistent with the decision of a court which is otherwise binding on him or her in accordance with the principles set out in paras 5, 8 and 9 above. [ … ] 19. Having said that, I would adopt a suggestion made by Lord Toulson which may, in terms of strict logic, be inconsistent with the above analysis, but which is plainly sensible in practice and justified by experience … There will be appeals to the JCPC where a party wishes to challenge the correctness of an earlier decision of the House of Lords or the Supreme Court, or of the Court of Appeal on a point of English law, and where the JCPC decides that the House of Lords or Supreme Court, or, as the case may be, the Court of Appeal, was wrong. It would plainly be unfortunate in practical terms if, in such circumstances, the JCPC could never effectively decide that courts of England and Wales should follow the JCPC decision rather than the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal. In my view, the way to reconcile this practical concern with the principled approach identified in paras 17 and 18 above is to take advantage of the fact that the President of the JCPC is the same person as the President of the Supreme Court, and the fact that panels of the JCPC normally consist of Justices of the Supreme Court. 20. The JCPC’s current Practice Direction, in JCPCPD 3 .1.3 and 4.2.2, already requires an applicant, or an appellant, to say whether an application for permission to appeal, or an appeal, will involve inviting the JCPC to depart from a decision of the House of Lords or the Supreme Court (and to give particulars). This should be expanded to apply to decisions of the Court of Appeal of England and Wales. 21. In any case where the Practice Direction applies, I would hold that the following procedure should apply from now on. The registrar of the JCPC will draw the attention of the President of the JCPC to the fact there may be such an invitation. The President can then take that fact into account when deciding on the constitution and size of the panel which is to hear the appeal, and, provided that the point at issue is one of English law, the members of that panel can, if they think it appropriate, not only decide that the earlier decision of the House of Lords or Supreme Court, or of the Court of Appeal, was wrong, but also can expressly direct that domestic courts should treat the decision of the JCPC as representing the law of England and Wales … ”
“4. One of the allegations made by the Rs, by counsel, at the hearing was that A had deliberately deleted her emails in October 2019 of almost all her emails prior to10 January 2018 and fraudulently stated that this was done in error … Indeed, A was cross-examined on this point … HHJ Russen KC found in favour of A on this issue … and held limitation did not apply. 5. The Rs now make the same allegation of fraud in the instant claim and attempt to rely on further evidence, namely, an expert report by Mr Graeme Buller dated19 June 2024 … and a further export report by Mr Daniel Titterton dated18 June 2025 … in support of that allegation. 6. A considers, therefore, that the claim should be struck out on the following grounds: 6.1. The instant claim is an abuse under the principle in Henderson v Henderson (1843) 3 Hare 100 as the same issue now being raised has already been determined by way of the Judgment. Further and/or alternatively, the claim should be struck out pursuant to r.3.4(a) (no reasonable grounds) and/or (b) (an abuse of the process) on the grounds that the claim involves the same, or substantially the same, material that has already been decided by the Judgment. 6.2. Alternatively, if this is a case where Henderson v Henderson does not apply in the usual way, any further evidence is subject to the requirement of due diligence, the matter having been previously litigated. The [two expert reports] are evidence that could have, and should have, been obtained prior to the Judgment … 6.3. Alternatively, the GB Report and CYFOR Report, if available, would not affect the materiality of the decision reached in the Judgment.” 6.1. The instant claim is an abuse under the principle in Henderson v Henderson (1843) 3 Hare 100 as the same issue now being raised has already been determined by way of the Judgment. Further and/or alternatively, the claim should be struck out pursuant to r.3.4(a) (no reasonable grounds) and/or (b) (an abuse of the process) on the grounds that the claim involves the same, or substantially the same, material that has already been decided by the Judgment. 6.2. Alternatively, if this is a case where Henderson v Henderson does not apply in the usual way, any further evidence is subject to the requirement of due diligence, the matter having been previously litigated. The [two expert reports] are evidence that could have, and should have, been obtained prior to the Judgment … 6.3. Alternatively, the GB Report and CYFOR Report, if available, would not affect the materiality of the decision reached in the Judgment.”
“6. Rs’ position can be summarised as follows: a. The fresh evidence now available to Rs in the form of the Alvarez [Mr Buller] and CYFOR [Mr Titterton] reports makes it abundantly clear that A has consciously and knowingly deceived the Court both as to the means by which the emails came to be deleted but also as to her awareness of such matters, and that she has done so in order to obtain the determination of the preliminary issue in her favour. There is, as matters stand, no credible challenge to the effect of such evidence. b. Rs case in fraud – that expert evidence shows boththat deletion could not have occurred in the way that A suggested and that A must have known that she had deleted emails, and that A had consciously and deliberately sought to mislead the Court – was neither put before the court nor determined. c. No reasonable diligence requirement applies. d. Even were such a requirement to arise, Rs do not ‘fall foul’ of this. Rs were not required to conduct their affairs on the assumption that A was intending to perpetrate, and was perpetrating, a fraud on the court. e. Even were such a requirement to arise, then on the broad merits based approach which would need to be applied, it would clearly be inapt to strike out the claim, having regard (i) the potency of A’s fraud (ii) the difficulties posed by the ‘shifting sands’ of A’s own evidence as to deletion and (iii) A’s own consistent opposition to expert evidence, as a prelude to consideration as to whether A, against whom there is clear, compelling and as yet uncontroverted evidence of fraud, ought to escape judicial scrutiny of this on procedural grounds. f. A’s position as to materiality is, with respect, obviously wrong. It appears to be advanced as a ‘makeweight’ allegation indicative of A’s opportunistic and scattergun approach.” a. The fresh evidence now available to Rs in the form of the Alvarez [Mr Buller] and CYFOR [Mr Titterton] reports makes it abundantly clear that A has consciously and knowingly deceived the Court both as to the means by which the emails came to be deleted but also as to her awareness of such matters, and that she has done so in order to obtain the determination of the preliminary issue in her favour. There is, as matters stand, no credible challenge to the effect of such evidence. b. Rs case in fraud – that expert evidence shows boththat deletion could not have occurred in the way that A suggested and that A must have known that she had deleted emails, and that A had consciously and deliberately sought to mislead the Court – was neither put before the court nor determined. c. No reasonable diligence requirement applies. d. Even were such a requirement to arise, Rs do not ‘fall foul’ of this. Rs were not required to conduct their affairs on the assumption that A was intending to perpetrate, and was perpetrating, a fraud on the court. e. Even were such a requirement to arise, then on the broad merits based approach which would need to be applied, it would clearly be inapt to strike out the claim, having regard (i) the potency of A’s fraud (ii) the difficulties posed by the ‘shifting sands’ of A’s own evidence as to deletion and (iii) A’s own consistent opposition to expert evidence, as a prelude to consideration as to whether A, against whom there is clear, compelling and as yet uncontroverted evidence of fraud, ought to escape judicial scrutiny of this on procedural grounds. f. A’s position as to materiality is, with respect, obviously wrong. It appears to be advanced as a ‘makeweight’ allegation indicative of A’s opportunistic and scattergun approach.”
“There was no reason why Mr Buller‘s report could not have been obtained for the trial. Contrary to what is asserted by the applicant, it does not depend on any particularly sophisticated analysis and does not depend on, or even refer to, the evidence given by the respondent at the trial. It is a straightforward explanation that the account given in the respondents witness statement is not technically plausible. Such an expert’s report could undoubtedly have been obtained for the trial, or the existing joint expert could have been asked appropriate questions, if the applicant or his legal team had thought to do so.”
“170. … The honesty of [the claimant’s] claim was in substance challenged. The majority of the impugned documents were central to the court's decision on the claim for the costs of repair and redecoration, particularly those documents which evidenced the fact and amount of the payments which she said she had made. The Judge also explicitly determined these issues. The defendant's true complaint is essentially that it did not put forward the whole of its case at trial … ”