ISSUE 53 Expert Witness Journal - Journal - Page 77
fraud, the disputed issue is the existence of a fraud –
a matter “wholly free” from the issues originally tried.
Only after addressing that issue should the Court
consider the materiality of the fraud to the evidence
on which the court made findings and reached its
first decision [13-14].
court’s decision to give judgment in the way it did” or,
put another way “would have entirely changed the
way in which the first court approached and came to
its decision” [35]. By contrast, in Hamilton, Lord
Phillips MR required only that the fresh evidence
proved a “real danger that the dishonest conduct had
affected the outcome” [8(i)].
Although the existence and materiality of fraud are
theoretically distinct, they are often inextricably linked
[15, 38, 42]. Vos MR observed that the Judge’s
unorthodox approach – of reviewing HHJ Russen’s
relevant original findings of fact before considering
the new evidence in point – partly reflected the overlap between the existence and materiality of the fraud
[16]. This followed from the nature of Mr Tinkler’s
appeal case: that the new evidence which had been
fraudulently withheld was a continuation of the
“premeditated plan” on which HHJ Russen had made
findings [21].
Despite acknowledging Court of Appeal authority
preferring Hamilton [51], Vos MR held Highland applied to claims to set aside for fraud [34]. He repeated
the distinction between such claims and Ladd v Marshall applications. Hamilton concerned the latter and
had been decided in the context of the second Ladd v
Marshall criteria: that the new evidence to be adduced
must exert an important, but not decisive, influence
on the result. For that reason, the more stringent
Hamilton test (an action to set aside for fraud) was
appropriate and had been applied correctly [55-56].
Vos MR nonetheless proceeded to interpret Hamilton
as holding that the fraud need only be an operative
cause, and not the but for cause of the resultant judgment [52-53]. Vos MR therefore agreed with the
Judge’s observation that little turned on the application
of either test to the facts at hand [53-56].
In Vos MR’s view, the parties should have invited the
Judge to assess the existence and quality of any new
evidence under Limb 3 first. Once done, the Judge
should have considered whether the new evidence
proved conscious and deliberate dishonesty on the
Defendants’ parts, under Limb 1. If that fraud was
proven, the Judge should then have considered Limb
2 materiality. Only at this final stage did the Judge
need to consider HHJ Russen’s findings [49].
Conclusions
Fraud flourishes in times of economic hardship.
Refreshers on the less common tools available to defeat fraudsters are therefore always welcome. Although sometimes challenging to interpret, Vos MR’s
judgment ultimately gives clear guidance on this unusual action, drawing a clear distinction against Ladd
v Marshall applications:
It followed from the above order, and from the claim’s
nature, that the Judge’s role was not to re-try the issues
before HHJ Russen, nor to consider all original evidence supporting the same. Doing so risked injustice
by hearing part only of that underlying evidence [42],
and the Judge rightly baulked at doing so [18]. The
Judge was instead to assess whether the new evidence
proved a fraud, and whether HHJ Russen’s judgment
could withstand the same. He was not then required
to rule on what the correct outcome of the underlying
trial should have been, by way of retrial [33, 38].
Equally, in respect of those issues he was properly
required to decide, the Judge had not felt bound by
HHJ Russen’s findings [50].
1. The action to set aside a judgment for fraud is a
free-standing claim, with a long jurisprudential heritage. Although they share similarities, they are not to
be elided with applications to adduce new evidence
under Ladd v Marshall.
2. The issues before the Court deciding whether to set
aside for fraud often overlap with the findings made
by the judge in the underlying dispute. However, in
contrast with Ladd, the key issue when considering set
aside for fraud relates to the fraud itself, “wholly free
from and unembarrassed by any of the matters originally tried” [13]. It is not, therefore the judge’s role to
re-try the findings made in the underlying, substantive
judgment.
The Judge had therefore applied the Test in
substance. He had indeed started by setting out HHJ
Russen’s findings and on one view had thereby put
the cart before the horse. However, he had not done
so because he felt bound by them (save where there
was no new evidence on the point) [17]. He had
merely used them as a “convenient starting point” for
the findings he had properly been required to make
[49]. It was therefore clear that the Judge recognised
he was not engaged in a retrial; but was instead to hear
and evaluate the new evidence of the fraud, before
deciding its materiality. Accordingly, Vos MR
dismissed this ground of appeal.
3. The structure by which successful claims should be
framed is now utterly clear. Parties should invite the
Court first to evaluate new evidence (Limb 3); then to
establish whether a deliberate fraud is made out
thereby (Limb 1); and only then to consider the materiality of that evidence to the evidence supporting
the original decision (Limb 2) [35].
4. If a claim satisfies Limbs 3 and 1 – in that order – the
Test “which allows a party to defeat a final judgment
must be set high” [20]. Limb 2 is therefore a stringent
one. Although little turned on the point in this case, the
Ladd v Marshall-influenced test in Hamilton arose from
a different context, is less stringent, and does not apply.
The Correct Test for Materiality
The second ground of appeal was that the Judge had
erred in law by preferring Highland [2013] EWCA Civ
328, over Hamilton [2001] EMLR 15 as the test for
materiality.
In Highland, Aikens LJ held that the fraud proven by
the fresh evidence must be “an operative cause of the
EXPERT WITNESS JOURNAL
75
F E B R UA RY 2 0 2 4