COUNTY COURT HAS POWER TO SET ASIDE A JUDGMENT AFTER TRIAL – IF IT WAS OBTAINED BY FRAUD

December 18, 2017 · by · in Appeals, Applications, Civil Procedure, Setting aside judgment, Witness statements

The decision in Salekipour & Anor v Parmar [2017] EWCA Civ 2141 was made after three previous hearings a (including two appeal hearings) in the lower courts.  It was the only time the claimants were successful.  It involved an important procedural issue as to whether the county court can set aside a judgment obtained at trial if it is later shown that the judgment was obtained by fraud.

“The suborning of a witness by a party to give perjured evidence in order to succeed at trial is a most serious matter, which not only taints the evidence of the witness but potentially undermines the credibility of that party on all issues“

THE CASE

After a five day trial the claimants had been unsuccessful. The defendants had been successful on a counterclaim.

The major issue at trial was credibility. The trial judge noted.

19. Credibility is thus vital in this case and this has had the result that each side has sought to introduce evidence going to credit …”

“33. As to the defendant’s witnesses, Mr Fiszer was a bluff Polish shopkeeper who gave evidence in good but careful English. He was the most independent of the supporting witnesses and I am quite satisfied that he was sincerely telling me the truth as he saw it. I feel able to rely on his evidence.”

THE EVIDENCE AFTER TRIAL

After the trial the claimants obtained a statement from Mr Fiszer.  They issued proceedings seeking to set aside the original trial.  The witness statement of Mr Fiszer was attached to teh Particulars of Claim in the second set of proceedings. This included.

Mr Fiszer

“9. I carried on the business which became successful. In or around February 2012 I received a lot of emails from Mrs Parmar about the case between Mrs Salekipour and Mrs Parmar. She told me that she would tell me what to write and she gave me a piece of paper which had the broad terms of what she wanted on it and asked me to put it in my own words.

10. Mrs Parmar’s daughter then brought a typed version which I believe came from Mrs Parmar’s solicitors. I had no contact with her solicitors at all.

11. Although there were no particular problems with Mrs Parmar I put some video cameras outside the back of the premises and I caught Mr Parmar and a tenant burning furniture and rubbish at the back. I told them not to do it and they desisted. Due to the length of time, unfortunately the photographic evidence of the incident no longer exists.

12. In March 2012, I went to Court to give evidence. I was told by Mrs Parmar that if I did not go to Court for her and she lost then I would lose the shop. Before I went into Court Mr Parmar and Mrs Parmar and some others got me in a room and told me what to say and in particular to say that I had only been in the premises since Feb-March 2011.

13. I was asked by the barrister for Mrs Salekipour when did I start work and I said two months before the Lease which would have made it about February. The Judge asked how could I have carried out all the works and I said that we were Polish builders. I feel very bad about this now as it was not true. I also said in court that the premises were devastated and very messy. This was also untrue.”

THE PREVIOUS HEARINGS AND APPEALS

The defendants applied to strike the action out. The defendants were successful before the District, Circuit and High Court judge.

THE APPEAL TO THE COURT OF APPEAL

The issue before the Court was whether the Court Court had jurisdiction to set aside its own order when fraud was being alleged. This depended on the construction of 23(g) of the County Courts Act 1984.

“23. Equity jurisdiction.

The county court shall have all the jurisdiction of the High Court to hear and determine-

…

(g) proceedings for relief against fraud or mistake, where the damage sustained or the estate or fund in respect of which relief is sought does not exceed in amount or value the county court limit.”

From 1846 until 2002 the County Court had an express statutory power to set aside its own order.   This was  ended, as the Court of Appeal stated, probably inadvertently.

THE JUDGMENT ON APPEAL

The Master of the Rolls considered the argument that the most appropriate course of action was to appeal.

    1. No doubt the most appropriate course – independent collateral proceedings or appeal – will depend on the facts of each case and the precise allegations being made. I do not, however, agree with the general proposition that the more common and generally the better way of challenging a judgment obtained by fraud is by way of appeal. Indeed, in Sharland, in which Noble was cited in argument, Baroness Hale said (at [38]) that an appeal is not the most suitable vehicle for hearing evidence and resolving the factual issues which will often, although not invariably, arise on an application to set aside; and (at [39]), citing Jonesco, that a fresh action would be the normal route in ordinary civil proceedings to challenge a final judgment on account of fraud. Further, In Gohil, in which Noble was also cited in argument, Lord Wilson said (at [18(a)]) that the Court of Appeal is not designed to address a factual issue other than one which has been ventilated in a lower court.

    2. If, however, the respondent is correct about the County Court’s lack of jurisdiction, the only remedy for a litigant in the County Court who wishes to have a prior final County Court order set aside for perjury or fraud is to appeal, even though that will often not be the most appropriate course consistent with the overriding objective in CPR r.1.1. It was common ground before us that the High Court has no jurisdiction to hear independent proceedings to set aside an earlier final order of the County Court obtained by perjury or fraud. If that deprivation of a previous County Court jurisdiction was the effect of the repeal of CCR Ord. 37 r.1(1), then it appears that it would have been the result of oversight rather than intention, and, contrary to objective of the CPR, would have produced a significant difference between the High Court and the County Court and would have seriously disadvantaged County Court litigants, for no sound policy reason.

    3. I agree with the appellants that such an anomaly does not exist because, leaving to one side the CPR, including the management powers under CPR 3.1, sections 23 and 38 of the 1984 Act confer jurisdiction on a County Court judge to determine proceedings to set aside a final County Court order obtained by perjury or fraud. Such proceedings appear to me to fall precisely within the wording of section 23. The right of a party to have a judgment set aside on the ground of fraud is a principle of equity:Flower v Lloyd (1877) 6 Ch D 297; Noble at [42] (Elias LJ). The present proceedings are, consistently with the terms of section 23, “proceedings for relief against fraud … where the damage sustained … does not exceed in amount or value the county court limit”.

    4. Judge Faber does not explain why she considered that “it is clear that [section 23] does not deal with rescission of the judgment of a colleague even though it be on the grounds of fraud”, other than for the reason that she was strengthened in her view by the observation in Bishop that the jurisdiction is described as an inherent jurisdiction of the High Court.

    5. Garnham J’s interpretation of section 23 and its scope is contained entirely within paragraph [56] of his judgment, as follows:

“In my judgment those words are appropriate to describe an original action for relief against fraud which itself causes damage below the relevant limits. It contemplates the County Court having jurisdiction to try fraud cases where the amount in issue is below the relevant limit. In my judgment the wording of subsection (g) is inapt to create a mechanism by which a prior judgment can be set aside.”

    1. Mr Letman vigorously endorsed that reasoning of Garnham J that the wording of section 23 is “inapt” to refer to an action to set aside a judgment.

    2. I do not agree. The conduct of the defendant who has caused loss is at the core of the claim. The essence of the claim is that the fraud of the defendant has caused the claimant damage by defeating the original claim. I can see no sound reason for constraining the literal wording of section 23 so as to exclude such a claim.

    3. Garnham J said (at [57]) that he was reinforced in his view by the finality provisions in section 70 of the 1984 Act. Again, I respectfully disagree that section 70 supports a constrained interpretation of section 23. Section 70 expressly stipulates that judgments and orders of the County Court are not final and conclusive as between the parties to the extent that the 1984 Act otherwise provides. Section 38 of the 1984 does otherwise provide in the case of proceedings to set aside an earlier county court order obtained by fraud because that section entitles the County Court to make any order which could be made by the High Court if the proceedings were in the High Court; if such proceedings were in the High Court, the High Court would have inherent power to set aside the earlier order and to direct a new trial. No further elaboration in section 70 is necessary.

    4. The fact that the section 23 has not previously been invoked in this context is no indication that the jurisdiction does not exist. Until the repeal of CCR Ord. 37 r.1(1), that wide provision and its predecessors, both in the County Court Rules and in the early statutes, provided an explicit and convenient general procedure for revoking final orders. There was no need to resort to section 23 for a jurisdiction in relation to the particular equitable cause of action to set aside an order of the court obtained by fraud.”

THE SECONDARY ARGUMENT: THE CHANGE IN EVIDENCE WAS NOT SUFFICIENT TO OVERTURN THE TRIAL JUDGE’S DECISION

 

The Court held that the correct test to assess this issue was:-

    1. “that stipulated by the Court of Appeal in Hamilton v Al Fayed EWCA Civ 3012 at [34], as follows:

“Where it is clearly established by fresh evidence that the Court was deliberately deceived in relation to the credibility of a witness, a fresh trial will be ordered where there is a real danger that this affected the outcome of the trial.”

    1. As Mr Davies observed in his skeleton argument, Hamilton was not cited to the Court of Appeal in Royal Bank of Scotland and the test set out by Aikens LJ was agreed between counsel in that case.

    2. Furthermore, in Sharland at [32] Baroness Hale, citing Smith v Kay (1859) 7 HL Cas 750, said that:

“a party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality.”

  1. That statement was cited with approval by Lord Clarke, with whom the other Justices of the Supreme Court agreed, in Zurich Insurance Co plc v Hayward [2016] UKSC 48, [2017] AC 142 at [37].”

THE SUBORNING OF A WITNESS: THE APPROPRIATE TEST CONSIDERED

    1. “It is not, however, necessary to make a final decision on that point on this interlocutory application to strike out the claim. If the facts alleged in the claim and set out in the witness statement of Mr Fiszer are correct, then, whichever test is the correct one, it is satisfied in the present case.

    2. The suborning of a witness by a party to give perjured evidence in order to succeed at trial is a most serious matter, which not only taints the evidence of the witness but potentially undermines the credibility of that party on all issues. That certainly is the case here where so much turned on credibility. If the fact of subornation and perjury, as described in Mr Fiszer’s witness statement, had been known to Judge Marshall, it is highly likely that it would have had a material impact on her assessment of the credibility of all the evidence given by Mr and Mrs. Parmar.

    3. I, therefore, see no reason in the present case to deviate from Lord Buckmaster’s statement in Hip Fong Hong (at 893) that a judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail, and his statement in Jonesco (at 301-302) that:

“Fraud is an insidious disease, and if clearly proved to have been used so that it might deceive the Court, it spreads to and infects the whole body of the judgment.”

  1. It is to be noted that Lord Buckmaster’s speeches in both those cases were cited in the judgment of the Court of Appeal in Hamilton, although not by Aikens LJ in the Royal Bank of Scotland case.

  2. The consequence of perjury and fraud in any particular case will depend upon the circumstances. In the present case, for the reasons I have given, which are essentially the same as those given by Judge Faber and Garnham J, I have no hesitation in rejecting the respondent’s notice.

  3. I would add, for completeness, that I consider it is inappropriate on a strike out application on the ground that the claim is bound to fail for there to be the kind of detailed analysis of the lengthy judgment of Judge Marshall, who had heard oral evidence over five days and who had to weigh up the conflicts in that evidence, as was undertaken by Mr Letman in order to persuade us that the contents of Mr Fiszer’s witness statement would have made no difference to the reasoning and outcome of Judge Marshall on any issue.”

 

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