“In this decision we examine the evidence on which the Secretary of State relies to establish the frauds in individual cases. We conclude that despite the general challenges made, both in judicial proceedings and elsewhere, there is no good reason to conclude that the evidence does not accurately identify those who cheated. It is amply sufficient to prove the matter on the balance of probabilities, which is the correct legal standard. Although each case falls to be determined on its own individual facts and evidence, the context for any such determination is that there were thousands of fraudsters and that the appellant has been identified as one of them by a process not shown to have been generally inaccurate.”
“They appeared to give an opportunity for an up-to-date evaluation of the state of the evidence produced by the Secretary of State in ETS/TOEIC cases. In this decision we consider the impact and effect of that evidence as a whole. We consider whether it is sufficient to call for a response by the present appellants and others in a similar position. We then determine the appeals before us on the basis of all the evidence adduced in these individual cases. We attempt to give some guidance on the approach to TOEIC/ETS appeals in general.”
“Professor Sommer’s oral evidence explored and emphasised, but did not add very much to what he had said previously in writing. He again went through the possibilities of error in the “chain of custody”, but accepted that these were merely his suggestions about what could conceivably go wrong, rather than evidence that anything had gone wrong. He did make two points which we regard as of some significance. The first is that he was quite clear that candidates would not remain in ignorance that tests were being taken on their behalf: if they were not displaced from their seat, they would in any event see the cursor on the screen moving other than in accordance with their own entries. Secondly, Professor Sommer’s considered conclusion was that it was very unlikely that there were accidental errors in the production or transmission of results. If there were errors, they were very probably deliberate. He hypothesised that a test centre might want to improve its own record of results by substituting false entries for those actually put in by the candidate.”
“126. The two strands, therefore, amount, respectively, to the virtual exclusion of suspicion of relevant error by ETS, and the virtual exclusion of motive or opportunity for anybody to arrange for proxy entries to be submitted except the test centres and the candidates working in collusion. 127. Where the evidence derived from ETS points to a particular test result having been obtained by the input of a person who had undertaken other tests, and if that evidence is uncontradicted by credible evidence, unexplained, and not the subject of any material undermining its effect in the individual case, it is in our judgment amply sufficient to prove that fact on the balance of probabilities. 128. In using the phrase ‘amply sufficient’ we differ from the conclusion of this Tribunal on different evidence, explored in a less detailed way, in [SM and Qadir]. We do not consider that the evidential burden on the respondent in these cases was discharged by only a narrow margin. It is clear beyond peradventure that the appellants had a case to answer. 129. In these circumstances the real position is that the mere assertions of ignorance or honesty by those whose results are identified as obtained by a proxy are very unlikely to prevent the Secretary of State from showing that, on the balance of probabilities, the story shown by the document is the true one. It will be and remain not merely the probable fact, but the highly probable fact. Any determination of an appeal of this sort must take that into account in assessing whether the respondent has provide the dishonesty on the balance of probabilities.”
“108....We are left in no doubt that in general, there was widespread cheating and test centres adopted less sophisticated methods available of manipulating test rests, working in collusion with the candidates. It is possible that another method was adopted by a test centre but an appeal is not determined on what is possible. That something is possible is not to say it is probable. The question for a Tribunal is whether it is more likely than not, that the particular appellant they are considering in the case before them cheated. ..... 113. A judge has to start somewhere. The evidence before us simply serves to re-enforce [sic] the fact that there was widespread fraud and cheating at ETS test centres. As the Tribunal said in DK and RK, it is clear beyond peradventure that where there is evidence from ETS that points to the test relied upon by the individual as having been taken by someone other than that person, that is strong evidence that will weigh against the individual and calls for a credible explanation. 114. The parties agree that a Tribunal must consider the evidence before it as a whole and the decision will be fact sensitive...”
“The doctrine of precedent in the strict sense applies to questions of law, and indeed the notion of a factual precedent has been described as ‘exotic’: see S and Others v Secretary of State for the Home Department[2002] EWCA Civ 539 , [2002] INLR 416, at paras 28-29 (Laws LJ). The concept of a factual precedent had nevertheless come to be regarded as having some utility, in particular in the immigration context: see S and Others itself, and the above decision of this Court in Akter, which is of particular importance in the present appeal, because it was directly concerned with the status of the UT’s decision in DK and RK.”
“I have therefore asked officials to review our guidance to ensure that we are taking the right decisions on these cases to ensure we are properly balancing a belief that deception was committed some years ago against other factors that would normally lead to leave being granted, especially where children are involved. We will update operation guidance to ensure no further action is taken in cases where there is no evidence an ETS certificate was used in an immigration application.”
“3. Having taken instructions Mr Wilcox informed me that whether or not the allegation was formally withdrawn the grant of leave to remain was a reflection of the fact that the Respondent now accepted that the suitability requirements of the Rules were met. 4. In court Mr Wilcox informed the Tribunal that the Respondent accepted that the Appellant met the suitability requirements of the Rules, albeit that leave to remain had been granted outside the Rules.”
“The appellant’s evidence has remained consistent, both internally and with the wider documentation. He was an impressive witness, anxious and able to provide answers to questions and provide explanations for concerns that arose from the documents. Taking the appellant’s evidence, in light of the factors discussed above, the appellant easily satisfies the burden that rest [sic] upon him at this stage.”
“When all the evidence in the present appeal is considered and weighed as already explained, I cannot find the use of deception by the appellant to be more probable than not. I believe the appellant’s account. I therefore find as a fact that the appellant took his own test, did not fraudulently obtain his TOEIC certificate and, did not utilise deception by relying upon it when seeking leave to remain in the United Kingdom.”
“The Defendant is estopped from attempting to re-argue the determination of the allegation of fraud by the First-tier Tribunal (in the determination dated25 July 2019 ) by the principles of res judicata and issue estoppel. There is a binding decision from the expert Tribunal in respect of the Defendant’s failed fraud allegation which the Defendant did not appeal and/or failed to appeal. The Defendant’s attempt to remake that allegation now in these proceedings is a collateral attack on a final decision of the Tribunal and an abuse of process.”
“Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 State Tr 355. ‘Issue estoppel’ was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation(1921) 29 CLR 537 , 561 and adopted by Diplock LJ in Thoday v Thoday[1964] P 181 , 197—198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100, 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.”
“22.... (1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non-existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non-existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.”
“...it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success. In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result...”
“If a judge has made a mistake, perhaps a very egregious mistake, as is said of Walton J’s judgment here, and a later judgment of a higher court overrules his decision in another case, do considerations of justice require that the party who suffered from the mistake should be shut out, when the same issue arising in later proceedings with a different subject matter, from reopening the issue?”
“In my judgment a change in the law subsequent to the first decision is capable of bringing the case within the exception to issue estoppel. If, as I think, the yardstick of whether issue estoppel should be held to apply is the justice to the parties, injustice can flow as much from a subsequent change in the law as from the subsequent discovery of new facts. In both cases the injustice lies in a successful party to the first action being held to have rights which in fact he does not posses. I can therefore see no reason for holding that a subsequent change in the law can never be sufficient to bring the case within the exception. Whether or not such a change does or does not bring the case within the exception must depend on the exact circumstances of each case.” (Emphasis in original.)
“As I understand the law with regard to res judicata, it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in a litigation can be allowed to re-open the litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up to the same relief which I asked for before, but, it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. My Lords, the only way in which that could possibly be admitted would be if the litigant was prepared to say, I will shew you 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.”
“33. In my opinion, therefore, the decision that the Labour Party was a qualifying body for the purposes of section 12 was made by a competent court and is therefore binding upon the parties. It does not matter that a later decision now approved by this House has shown that it was erroneous in law...The whole point of an issue estoppel on a question of law is that the parties remain bound by an erroneous decision. 34....the issue estoppel is in principle binding between the parties in subsequent litigation raising the same issue, as in the second and third applications by Mr Ahsan...It is true that the severity of this rule is tempered by a discretion to allow the issue to be reopened in subsequent proceedings when there are special circumstances in which it would cause injustice not to do so: see [Arnold]...In the present case, however, I think it would be unjust if the issue estoppel did not apply to the second and third applications. Although the Labour Party knew that it had given notice of appeal in [the other proceedings] it made no attempt to obtain an extension of time for appealing in this case. Instead, it involved Mr Ahsan in a length and expensive hearing over the summer of 2001, during which the merits of all three applications were examined. It would be quite unfair for Mr Ahsan now to be told that he must start again in the county court.”
“54....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...”
“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. 67. I recognise the risk of frivolous or extravagant litigation to set aside judgments on the ground of fraud, but like other members of the court, I think that the stringent conditions set out by Aikens LJ in Royal Bank of Scotland plc v Highland Financial Partnerslp [2013] 1CLC 596, para 106, combined with the professional duties of counsel, are enough keep it within acceptable limits. I do not think that the imposition of further conditions would be consistent with the long-standing policy of equity of reversing transactions procured by fraud.”
“69....it is no answer to an action to set aside a judgment said to have been procured by fraud that it is a collateral attack on a previous decision. In one sense it is not, because the action is not an attempt to re-litigate issues which have already been decided as such because the causes of action are different, as pointed out by Lord Sumption in Takhar at paragraph 61, in which he pointed out that estoppels arising from the previous action are of no relevance to the action to set aside. However, insofar as it might otherwise be viewed as a collateral attack, it is one which the law allows because of the significance of the fraud and the policy reasons which should prevent a party from using deceit together with court proceedings to procure an advantage.”
“Since they are not equivalent legal situations, it does not follow that the concepts and operation of any doctrines of election necessarily apply straight from one to the other...Takhar makes it clear that an absence of due diligence in discovering or raising fraud is not a defence in an action to set aside a decision for fraud. So due diligence is applied to one type of attempt to re-run an issue but not to another. One has to consider carefully whether principles applicable to one type of action or procedure should be transferred in the same form to set aside actions.”
“But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, butwhere those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, 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.That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not...While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”
“(i) The jurisdiction to strike out proceedings as an abuse of process is one that should not be tightly circumscribed by rules or formal categorisation. It is an exceptional jurisdiction, enabling a court to protect its procedures from misuse. Thus, a court is able to indeed, has a duty to control proceedings which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people: Hunter[1982] AC 529 , 536.... (ii) Any further attempt to define the circumstances in which this power should be exercised is subject to this overriding formulation of the principle, and can only be helpful if seen in this light. Thus, there can be identified a class of abuse which involves the relitigation of issues which have already once been determined by a court of competent jurisdiction in earlier proceedings.... (iii) However, the cases make clear that to regard relitigation as even prima facie amounting to an abuse of process would be to adopt too rigid an approach and to disregard the importance of individual circumstance and the need to consider each case on its own facts...” (Emphasis in original.)
“46. There can be no doubt, therefore, that both Henderson v Henderson and Johnson v Gore-Wood are primarily concerned with a party seeking to raise in subsequent proceeding an issue which had either already been decided in earlier proceedings, or which could and should have been raised in those earlier proceedings. However, it is not necessary for there to be two different sets of proceedings for the rule to apply... 47. It follows that the rule in Henderson v Henderson can apply, not only to one set of proceedings, but to earlier interlocutory decisions in those proceedings...But it is crucial to remember that, whenever it arises, the rule in Henderson v Henderson requires a previous determination by the court. As Lord Hobhouse put it in In Re Norris[2001] UKHL 34 at paragraph 26: ‘It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process’ (emphasis supplied). More recently, Nugee LJ reiterated in Wilson and Another v McNamara and Others[2022] EWHC 243 (Ch) at [57], by reference to Henderson v Henderson itself, that ‘the principle does not arise if there has not been a previous adjudication’ by the court.”
“84. But what all the cases have in common is that the second claim is an attempt to reopen something that has already been decided. That is where the abuse lies. That does not meant that there must have been a trial of the first claim. The principle is capable of applying if the previous proceedings have been settled by agreement. A settlement by the parties is just as much a final resolution of a claim as a judgment by a court, and it can be just as abusive to seek to circumvent it by putting forward a second claim...But if there has not been any previous decision, there is nothing for the principle to bite on. It cannot be said that a litigant is being abusive in seeking to have a second bite at the cherry if they have not yet had their first.”
“144. It is a general rule of the common law that findings made by another decision-maker are not admissible as evidence of the facts found. This rule is often referred to as ‘the rule in Hollington v Hewthorn’...As explained by the Court of Appeal in Rogers v Hoyle[2015] QB 265 , 305, paras 39-40, the rule is founded on a principle of fairness. That principle requires that a tribunal responsible for finding facts should base its findings on its own evaluation of the evidence and not on the evaluation of someone else who is not the relevant decision-maker... 145. It would be particularly unfair to treat findings made by an earlier decision-maker as admissible against a person who was not a party to the earlier proceedings and who therefore had no opportunity to influence the findings made in those proceedings by adducing evidence or advancing arguments. This fundamental objection does not apply to someone who was a party to the earlier proceedings. In some cases, such a party may be bound by findings, for example where they give rise to an issue estoppel; or it may be an abuse of process for the party to contest them... 146....where the follow-on jurisdiction is not in issue and there is no question of issue estoppel or abuse of process, the defendants are entitled to challenge the correctness of the findings and the principle of fairness considered in Rogers v Hoyle remains relevant. The court or tribunal which has to decide whether the findings of the earlier decision-maker were correct can only properly do so by making its own evaluation of the evidence on which they were based and any additional evidence...”