Brian Frost & Anor v Deborah Giddens

Introduction

1. This is my judgment on the hearing of an application by the defendant to strike out the claim on the basis that it is an abuse of the process. In brief, in their claim the claimants/respondents say that a decision on a preliminary issue in earlier proceedings between the parties ( [2022] EWHC 1022 (Comm) ), which HHJ Russen KC decided in favour of the defendant (then claimant), was obtained by the fraudulent evidence of the defendant/applicant. The defendant/applicant on the other hand says that the issues now being raised by the new claim either were raised and decided, or if not so raised, should have been, in those earlier proceedings, and that it is an abuse of the process for the claimants/respondents to raise them now in new proceedings. The matter was argued before me on 12 November 2025, when the applicant was represented by counsel and solicitors, and the respondents by counsel instructed through direct access.

2. The earlier decision was not a final decision in that litigation, which indeed is continuing. Instead, it was a decision on a preliminary issue about whether the applicant’s claim was time barred. HHJ Russen KC held that it was not. That existing litigation between the applicant and the respondents (commenced in November 2019) relates to claims made by her arising out of the transfer in 2012 of some £90,000 from the applicant’s pension scheme into what turned out to be a scam investment in truffle plantations, run by the first respondent’s brother. Her investment was lost. The applicant sued the respondents both in fraud and in negligence, as well as the first respondent’s brother, against whom she obtained a default judgment. This scam did not affect the applicant alone. There were other investors too who lost money. It was described by ICC Judge Barber in Secretary of State v Viceroy Jones New Tech Ltd [2018] EWHC 3404 (Ch) . But for present purposes I need say no more about it.

3. Permission to appeal against the decision of HHJ Russen KC was sought from him, but he refused it on 22 June 2022: [2022] EWHC 1602 (Comm) . The respondents then sought permission to appeal directly from the Court of Appeal, but were refused such permission on 23 November 2022 by Males LJ, in robust terms which are set out later in this judgment. More than two years later, they sought permission to re-open the appeal under CPR rule 52.30, but once again, on 16 April 2025, Males LJ refused permission, in terms also set out later in this judgment. Having failed in their attempts to appeal against the decision of HHJ Russen KC, the respondents issued the present claim on 16 June 2025, seeking to set aside that decision on the basis that it was procured by fraud. As I have said, the applicant makes the present application to strike out that claim, on the basis that the issues now being raised by the new claim either have been decided, or should have been, in the earlier proceedings, and that it is an abuse of the process to raise them now. Limitation The law

4. As I have said, the transfer of funds from the applicant’s pension scheme into the scam investment took place in 2012, but the claim against the respondents was issued only in 2019, after expiry of the primary limitation period. Consequently, the applicant sought to rely on sections 14 A and 32 of the Limitation Act 1980 . Section 14 A provides: “(1) This section applies to any action for damages for negligence, other than one to which section 11 of this Act applies, where the starting date for reckoning the period of limitation under sub-section (4)(b) below falls after the date on which the cause of action accrued. (2) Section 2 of this Act shall not apply to an action to which this section applies. (3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with sub-section (4) below. (4) That period is either – (a) 6 years from the date on which the cause of action accrued; or (b) 3 years from the starting date as defined by sub-section (5) below if that period expires later than the period mentioned in paragraph (a) above. (5) For the purposes of this section, the starting date for reckoning the period of limitation under sub-section (4)(b) above is the earliest date on which the plaintiff or any person in which the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such an action. (6) In sub-section (5) above ‘the knowledge required for bringing an action for damages in respect of the relevant damage’ means knowledge both – (a) of the material facts about the damage in respect of which damages are claimed; and (b) of the other facts relevant to the current action mentioned in sub-section (8) below. (7) For the purposes of sub-section (6)(a) above the material facts about the damage are such facts about the damage as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment. (8) The other facts referred to in sub-section (6)(b) above are – (a) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence and (b) the identity of the defendant and (c) if it is alleged that the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant. (9) Knowledge that any acts or omissions did or did not as a matter of law involve negligence is irrelevant for the purposes of sub-section (5) above. (10) For the purposes of this section a person's knowledge includes knowledge which he might reasonably have been expected to acquire – (a) from facts observable or ascertainable by him or (b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek, but a person shall not be taken by virtue of this sub-section to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and where appropriate to act on) that advice.”

5. And section 32 relevantly provides: “(1) … where in the case of any action for which a period of limitation is prescribed by this Act , either — (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it … (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.” The preliminary issue

6. Whether the applicant’s claim was indeed barred by limitation was the subject of the preliminary issue decided in her favour by HHJ Russen KC. The judge set the scene for the decision of this question in the following paragraphs from his judgment (in which “DG” stands for the applicant, “BF” for the first respondent, “TFP” for the second respondent, and “GF” for the first respondent’s brother): “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 on 24 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 on 24 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 the Limitation 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 to 10 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.”

7. It will be seen from the second half of paragraph 20 of the judge’s judgment that a key factual issue in determining the preliminary issue was whether the applicant deliberately deleted “almost all her emails [dated] prior to 10 January 2018”. The applicant accepted that a deletion of emails had taken place, but said that it was accidental, not deliberate. This was challenged by the respondents in their skeleton argument. At [20], the respondents referred to the decision of Calver J in E D & F Man Capital Markets Ltd v Come Harvest Holdings Ltd [2022] EWHC 229 (Comm) , [125]-[136], “which helpfully summarises the law on destruction of evidence”. At [21], the skeleton said: “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. [ … ]”

8. During the applicant’s counsel’s opening of the trial of the preliminary issue, he said this: “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”. Judge Russen: Yes, deliberate destruction. Mr Virgo: Yes, it is the use of the word deliberate that we would be very much in issue with … ”

9. During the respondents’ counsel’s opening, he said this: “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 … ”

10. During the trial of the preliminary issue, the judge saw the applicant being cross-examined on her account of what happened. During that cross-examination the following exchange took place (among many others): “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.”

11. In closing submissions, the respondent’s counsel said this (amongst other things): “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.” The judge’s decision

12. HHJ Russen KC discussed the applicant’s evidence in some detail in his judgment. He also specifically considered her credibility. As he said: “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 14 A.”

13. Then he dealt with various criticisms of the applicant and her evidence. In doing so he expressly noted the absence of any expert evidence bearing on the likelihood of the applicant’s having deleted her emails accidentally. But finally he said this: “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 … ”

14. Then, in paragraphs 128-131, he expressed his conclusions on the preliminary issue as follows: “128. It is for DG to make out the case for either section 32 or section 14 A applying to relieve her of the consequences of the ordinary 6 year limitation period.

129. If prior to 22 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 14 A, 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 to 26 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.”

15. Accordingly, the applicant’s claims were not barred by limitation. The attempts to appeal

16. As I have already said, the respondents made various efforts to appeal against the decision on the preliminary issue, including an unsuccessful application to the judge himself for permission to appeal. On the respondents’ first application to the Court of Appeal, they advanced three grounds of appeal, as follows: “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 to 26 November 2016.”

17. As to these three grounds, Males LJ said: “1. The proposed appeal is solely on a question of fact, whether the respondent deleted her emails deliberately. The judge found that she did not. Accordingly the appeal would face the well-known and significant challenges applicable to an appeal on fact.

2. Ground 1 is hopeless. If the applicants considered that expert evidence on the feasibility of the respondent account was required, they should have sought to adduce such evidence or to put relevant questions to the joint expert who was instructed. They failed to do so. What an expert might have said is entirely speculative. There is no procedural irregularity capable of founding an appeal.

3. I note that the applicant indicates an intention to apply to adduce fresh evidence on appeal, but no application has been made and it is very difficult to see how any such application could succeed when the evidence could have been obtained for the trial of the preliminary issue.

4. Ground 2 is simply wrong. There was evidence that the respondent had not deliberately detailed emails, namely the respondent’s own evidence. It was for the judge to evaluate that evidence, which he did. He accepted the truthfulness of the respondent’s account, which was supported by the tenor of the November 2016 emails which were accepted to be genuine. He recognised that there were powerful criticisms to be made of the respondent’s evidence and that it was puzzling as to how her emails could have been lost accidentally, but ultimately the evaluation of these criticisms was a matter for him. The judge recognised that the deletion of emails and deletion of browsing history are different things, but it is not suggested by the applicant that it was an error of law by the judge to fail to take judicial notice that the clearing of an internet history cannot cause the accidental deletion of thousands of emails. He took account of all of the matters on which the applicants now rely, including the account given to the respondent solicitors.

5. Ground 3 is largely parasitic on success on the ground 1 or 2. To the extent that it is not, these are makeweight points at best.

6. Accordingly, an appeal would have no real prospect of success. The fact that, if an appeal were to succeed, that would dispose of the litigation does not begin to amount to a compelling reason to give permission to appeal.” (I have assumed that “detailed” in line 2 of paragraph 4 is a slip for “deleted”, the word used in line 2 of paragraph 1.)

18. The respondents evidently took to heart the point made by Males LJ in paragraph 2 about the absence of expert evidence. By the time that they made their application to reopen the appeal in 2025, they had commissioned and obtained such an expert report from a Mr Graeme Buller of Alvarez & Marsal Disputes and Investigations, dated 19 June 2024.

19. In refusing the application to re-open the appeal, in April 2025, Males LJ said: “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. [ … ]”

20. At the end of his reasons for refusing permission to re-open the appeal, Males LJ said that, if the respondents had any remedy (but he emphasised that he was not saying that they had), it would have to be by way of a claim to set aside the earlier decision for fraud. Once again, the respondents have taken the Court of Appeal’s comment to heart, and have launched the new proceedings. The respondents have also obtained a further report, from a Mr Daniel Titterton of Cyfor Forensics, dated 18 June 2025, on which they also seek to rely. Setting aside judicial decisions for fraud The Privy Council, the House of Lords and the Supreme Court

21. The law on claims to set aside decisions for fraud is clear. In Hip Foong Hong v H Neotia & Co [1918] AC 888 , Lord Buckmaster, giving the advice of the Judicial Committee of the Privy Council, said (at 894): “ … 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.”

22. However, Lord Buckmaster hardened his view in Jonesco v Beard [1930] AC 298 , where an application had been made to the Court of Appeal to set aside a judgment at first instance on the basis that it had been obtained by fraud. The Court of Appeal granted the application, but the House of Lords reversed their decision. Lord Buckmaster, with whom the other members of the House agreed, said (at 300): “ … 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.”

23. Lord Buckmaster acknowledged that in theory there was jurisdiction to deal with the matter more summarily, but added a warning (at 301): “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.”

24. In Takhar v Gracefield Developments Ltd [2020] AC 450 , SC, the claimant had in earlier proceedings claimed that her properties had been transferred to the first defendant by reason of the undue influence or other unconscionable conduct of the second and third defendants. That claim failed. Three years later the claimant began a new claim, alleging that the first judgment had been obtained by fraud, relying on evidence that the second and third defendants had forged her signature on a document. No such allegation had been made in the first claim, and the evidence no relied on had not been available at the first trial. The defendants applied for the new claim to be struck out as an abuse of the process. The judge refused the application but the Court of Appeal allowed an appeal.

25. The Supreme Court (sitting as a chamber of seven judges) however reversed the decision of the Court of Appeal. All seven judges agreed on allowing the appeal. But there are four separate judgments: one by Lord Kerr (with whom Lords Hodge, Lloyd-Jones and Kitchen agreed), one by Lord Sumption (with whom the same Lords Hodge, Lloyd-Jones and Kitchen agreed), one by Lord Briggs and one by Lady Arden. It is thus clear that the judgments of Lord Kerr and Lord Sumption are majority judgments, and, subject to what I say later in this judgment, that I am strictly bound by the ratio decidendi in each, at least to the extent (if any) that they are not inconsistent with each other.

26. Lord Kerr said: “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.”

27. Lord Sumption said: “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) , 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.” 20 Ch D 1 The Court of Appeal

28. In the subsequent case of Park v CNH Industrial Capital Europe Ltd [2022] 1 WLR 860 , CA, a company through its director entered into certain agreements with a finance company. The agreements erroneously referred to a non-existent company. Noting the error, the finance company prepared a deed of rectification, which the director signed. However, this deed rendered the director personally liable on the agreements. The finance company then sued the director and obtained a default judgment. The director brought a further claim, alleging that the judgment had been obtained by fraud. The district judge refused an application by the finance company to strike out the new claim, but the judge on appeal reversed his decision. The director appealed to the Court of Appeal, which allowed his appeal. In the course of doing so, the court considered the Takhar decision in some detail.

29. Andrews LJ (with whom Sir Geoffrey Vos MR and Edis LJ agreed) said: “55. In Takhar the defendants in the original action relied on a written agreement which they said Mrs Takhar had signed, which supported their version of an oral joint venture agreement that the parties previously made. The only copy of that document was a scanned copy which was found in the files of the defendants' solicitors, having apparently been misfiled. Mrs Takhar could not remember signing the agreement. She suspected forgery, but she was refused permission to obtain evidence from a handwriting expert in advance of the trial because her application was made too late. Without that evidence she could not have pleaded fraud. The trial judge found that the signature was hers. He relied heavily on the document in finding for the defendants. Subsequently Mrs Takhar obtained an opinion from an eminent handwriting expert which concluded that the signature, though genuine, had been transposed from a letter sent by Mrs Takhar to the defendants' solicitors. Moreover, this was not an isolated example of such a transposition.

56. The Supreme Court held that in a case where the alleged fraud was not in issue in the previous proceedings, even if the previous judgment has been entered after a trial on the merits, the person seeking to set aside the judgment is not obliged to show that the fraud could not have been discovered before the original trial by reasonable diligence on his or her part. The requirement in Henderson v Henderson (1843) 3 Hare 100 that ‘a litigant should bring forward his whole case’ in the first set of proceedings does not apply in such circumstances, and there are no good policy reasons to allow the fraudulent party to rely upon the passivity or lack of due diligence of his opponent.

57. Lord Kerr left open the question whether the court should have a discretion to refuse to entertain an application to set aside the judgment in two situations, namely (i) where the fraud was in issue in the earlier proceedings and the party challenging the judgment seeks to rely on evidence of its existence that was not adduced in those proceedings – which was the situation that arose in Elu v Floorweald [ [2020] 1 WLR 4369 ] - and (ii) where a deliberate decision was taken not to investigate the possibility of fraud in advance of the first trial. He expressed the view that it was arguable that in those scenarios, the court should have such a discretion.

58. Lord Sumption went further. After a clear exposition of the underlying principles, he stated at [63] that proceedings of this kind (i.e. a fresh action to set aside the judgment for fraud) are only abusive 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. It follows the fact that the fraud argument could have been raised in the first action is not enough to make the second action an abuse of process. Lord Sumption then defined the circumstances in which it can be said that the point ‘should have been’ raised in the earlier proceedings. He said: ‘ … 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 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 … 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.’

59. Lord Sumption left open the position in a case in which fraud had been raised unsuccessfully in the earlier proceedings, but he expressed the provisional view that the position should be the same, for essentially the same reasons. He concluded at [66]: ‘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. The question whether evidence ‘could reasonably have been deployed’ is self-evidently different from the question whether it ‘could reasonably have been discovered’. A person cannot take a deliberate decision not to rely on evidence of fraud, unless he is not only aware of that evidence, but knows that he can rely on it to plead fraud in answer to the case brought by his opponent.

61. It is clear from their judgments that both Lord Kerr and Lord Sumption used the expression ‘new evidence’ or ‘fresh evidence’ to denote evidence that was not deployed in the action which led to the imputed judgment, not just evidence that had only come to light since the judgment.”

30. I referred above to my being bound by the decision of the Supreme Court in Takhar , as expressed in the two majority judgments. There is a qualification to be made to that proposition, and it is this. Sitting here at first instance, I am bound by the interpretation placed by the Court of Appeal in Park on the decision of the Supreme Court in Takhar : see eg Williams v Glasbrook Brothers Ltd [1947] 2 All ER 884 , CA; Kuddus v Chief Constable of Leicestershire [2000] EWCA Civ 39 . So, I must look firstly at what the Court of Appeal in Park says about Takhar , before seeking to apply that decision. Abuse of process

31. In Henderson v Henderson (1843) 3 Hare 100, Wigram V-C, in a well-known and often-cited passage, said this (at 115): “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.”

32. This principle was the subject of detailed discussion in the Supreme Court in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160 , [19]-[25], per Lord Sumption, with whom Lady Hale and Lords Clarke and Carnwarth agreed. In Takhar , Lord Sumption repeated the substance of what he had said in Virgin Atlantic , but more shortly. He said this (in what I have already indicated was also a majority judgment): “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.”

33. I was referred also to the decision in Elu v Floorweald Ltd [2020] 1 WLR 4369 , where a leaseholder made a successful claim in the county court against her landlord for breaches of repairing covenants. The landlord appealed, and as part of the appeal alleged that the evidence given by the leaseholder to the court had been fraudulent, and so the judgment in her favour had been obtained by fraud. On the appeal (to the High Court), the landlord was required to plead the fraud issue in a statement of case as if it were a fresh claim. The leaseholder applied to strike out the statement of case “on the basis that it raises matters which are res judicata and/or is an abuse of process and/or pursuant to CPR3.4(2)(b)”.

34. Linden J dealt with the questions of whether “fresh evidence” was needed to support the newly pleaded claim, and, if so, what it was, in the following paragraphs: “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 … ”

35. After considering issue estoppel, Linden J concluded thus: “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.”

36. Linden J then turned to abuse of process. He said: “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 … ”

37. As against that, in the subsequent decision of the Court of Appeal in Park , Andrews LJ said: “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.”

38. It will be seen that the criticism by Andrews LJ of Linden J related to an earlier part of his judgment than that which I cited above, and that Andrews LJ saw nothing wrong with the decision that he made on abuse of process. However, in Finzi v Jamaican Redevelopment Foundation Inc [2024] 1 WLR 541 , [51]-[58], Lord Leggatt, for the Judicial Committee of the Privy Council, in turn criticised the approach taken by the Court of Appeal in Park . Then he said: “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.”

39. Finzi was a case where no fraud had been alleged at the outset. The defendant Foundation obtained a default judgment against Mr Finzi on a debt alleged to be owing by him. He applied to set it aside, but, before the application was heard, the parties negotiated a settlement. It was only some years later that the claimant began a fresh claim, alleging that the earlier judgment and the settlement had been obtained by fraud. The defendant applied for and obtained summary judgment against Mr Finzi, dismissing the claim. In Lord Leggatt’s words, this was “on the basis that the proceedings against them were an abuse of the court’s process, as the allegations of fraud on which the claims are based could and should have been raised in the earlier proceedings before Mr Finzi entered into the settlement agreement which put an end to all outstanding claims.” Both the Court of Appeal of Jamaica and the Privy Council dismissed appeals by Mr Finzi.

40. Lord Leggatt reviewed the decision of the Supreme Court in Takhar , and in particular the two majority judgments of Lords Kerr and Sumption. He said that both decided that (in the words of Lord Kerr at [54]): “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.”

41. As to the judgment of Lord Kerr, Lord Leggatt went on to observe that “41. This reasoning was all that was necessary to decide the appeal. But Lord Kerr expressed, obiter, at para 55, some provisional views about what the position would be in two other situations: (a) where fraud was raised at the original trial and new evidence of the fraud is now relied on and (b) where a deliberate decision was taken not to investigate the possibility of fraud in advance of the original trial, even if it was suspected. He suggested that in each case the court would have a discretion whether to allow the fraud claim to proceed but emphasised that the question did not arise on the appeal and that he was not expressing any final view. Lord Kerr did not address a situation where the party seeking to set aside the judgment for fraud had the evidence now relied on but did not deploy it in the earlier proceedings.”

42. Lord Leggatt considered that Lord Sumption’s reasoning was found in the following passage: “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.”

43. But, as Lord Leggatt said, Lord Sumption went on later to say this: “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.”

44. It is in this context that Lord Leggatt made the comment about the decision in Park , set out above. Lord Leggatt then went on to say this: “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.” The rules of precedent

45. It is apparent from these citations (which could have been fuller, but, for reasons of space, I have pared down), that there is some tension in the decisions of the higher courts about the exact test to be applied when considering an application to strike out for abuse of process a claim to set aside an earlier decision as obtained by fraud. I therefore remind myself of the relevant rules of precedent. These were authoritatively stated by Lord Neuberger (with whom all the other eight justices agreed), in Willers v Joyce (No 2) [2018] AC 843 .

46. In his judgment, Lord Neuberger relevantly said: “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 the Judicial 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 the Appellate 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 JCPC PD 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 … ” The parties’ submissions

47. On the present application, the applicant says in her skeleton argument (“Rs referring to the respondents and “A” to the applicant): “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 to 10 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 dated 19 June 2024 … and a further export report by Mr Daniel Titterton dated 18 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.”

48. On the other side, the respondents say this in summary of their position (where once again “Rs” refers to the respondents and “A” to the applicant): “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 both that 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.”

49. These written submissions were amplified at the hearing before me. The applicant said that fraud, in lying about the deliberate destruction of evidence, had been in issue from the outset of the trial of the preliminary issue. This was unlike Takhar , where no fraud had been alleged at the trial. Accordingly. the present case was one where the fraud had already been litigated. In that respect, it was like Elu , where it had been argued from the beginning by the landlord that the evidence put forward by the leaseholder was knowingly false. Takhar was not in point. There was no primary evidence that could be said to be new. The two expert reports had been obtained since the decision of HHJ Russen KC, but Males LJ in refusing permission to appeal had made the point that “If the applicants considered that expert evidence on the feasibility of the respondent account was required, they should have sought to adduce such evidence or to put relevant questions to the joint expert who was instructed. They failed to do so.”

50. Then, after the Buller report had been obtained, the respondents sought to re-open the appeal. Males LJ again refused permission. He said: “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.”

51. In other words, the applicant says that these reports, although obtained after the trial, are not “new” evidence for the purposes of the abuse of process argument. They could have been obtained for the trial, or the joint expert could have been asked the relevant questions. The applicant submitted that the respondents had deliberately decided not to investigate further. She also submitted that the new set-aside claim would not materially affect the judgment on the preliminary point, because the new reports were deficient in various respects, the judge found the applicant to be a reliable and honest witness, and the reports were “unlikely to have entirely changed the way in which the court approached and came to its decision”.

52. The respondents submitted orally that their case on fraud in the fresh claim was not that being advanced before HHJ Russen KC on the preliminary issue. They noted that the applicant had not provided any expert evidence to rebut the evidence obtained since the trial by the respondents. This claim was intended to do what Males LJ had said could be done, to “grasp the nettle” and bring a claim to set aside the earlier decision as procured by fraud. The evidence of the single joint expert obtained for the trial was about the feasibility of recovering the deleted files, rather than whether they could have been deleted accidentally. So it was submitted that the expert could not have been asked questions about the latter matter.

53. The respondents submitted that the applicant had four hurdles to get over. The first was to show that the case now put in fraud had been determined by HHJ Russen KC. As the respondents put it, their case on fraud “is not ‘that [the applicant] deliberately deleted emails’. It is … that [the applicant] gave consciously and deliberately false evidence about the deletion of the emails, including both the circumstances of the deletion and her awareness of having done so, so as successfully to procure judgment in her favour on the trial of limitation as a preliminary issue.”

54. The second hurdle for the applicant was to show that a reasonable diligence requirement applied in the present case. The respondents submitted that the doctrine of Henderson v Henderson , as developed in modern times, did not apply unmodified to cases of fraud, that Takhar provided “very strong reasons” why a reasonable diligence requirement should not apply, and that Elu and Finzi did not demonstrate otherwise.

55. The third hurdle, if there nevertheless was such a requirement, was to show that the respondents failed to exercise reasonable diligence. This had to be considered in the light of the principles set out in the caselaw, “including that the reasonable person is not expected to conduct himself or his affairs on the footing that other persons are dishonest unless he knows that they are ” ( emphasis in original). The respondents further submitted that the applicant could not allege at the hearing that they had deliberately decided not to investigate fraud, because neither the application notice nor the evidence in support raised that issue.

56. The fourth hurdle was to show that the new claim should be struck out as abusive. The respondents submitted that, in order to do that, there would need to be “a broad merits based judgment of the type envisaged by Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at [31] (as cited in Takhar at [77])”. Moreover, if the applicant knowingly deleted emails and deliberately misled the court about that, thereby obtaining a judgment, “it cannot sensibly be suggested that she ought not to retain the benefit of such a judgment on account of any procedural failings on the part of” the respondents. This would be contrary to the idea that fraud is a “thing apart”, and “unravels all”. Discussion The law

57. Takhar was not a case where fraud was alleged at the trial. It was alleged only in the fresh claim. Anything the judges said about a case where fraud was alleged at trial was therefore no part of the ratio decidendi . Park and Finzi were similar cases, where fraud was not alleged at the trial, but only subsequently. Elu , on the other hand, was a case where the truthfulness of the evidence of a party, and the genuineness of her documents, were in issue at the original trial, and the losing party attempted to have a second bite of the cherry in pleading out a new statement of case expressly based on fraudulent evidence at trial.

58. I am bound by the rationes decidendi of Takhar (SC) and Park (CA), but not by that of Finzi (JCPC). I am not strictly bound by the ratio decidendi of Elu (HC), though in accordance with convention I will follow it unless convinced it is wrong. But obiter dicta in any of these decisions do not strictly bind me at all. On the other hand, a first instance judge has to be sensible about this. There are dicta and dicta , after all. The spectrum stretches all the way from the isolated judicial intervention of one appellate judge during the argument, at one end, to considered dicta of the whole court in their judgment on a point which, had the facts fallen differently, would have represented the ratio decidendi of the case, at the other. Other factors include whether the point was fully argued, the citation of other authority, and the experience and expertise of the judge or judges concerned.

59. Takhar holds that, in a case where no allegation of fraud was raised at the trial which led to the judgment, there is no requirement to demonstrate that the fraud could not have been uncovered with reasonable diligence before the judgment. However, in a case where the allegation of fraud had been made at the earlier trial, the Court of Appeal in Park interpreted Takhar as expressly leaving that matter open, although with two (inconsistent) suggestions made in obiter dicta . One was that the court should have the discretion to refuse to entertain an application to set aside the new claim (Lord Kerr). The other was that the position should be the same ( ie there is no such requirement), unless a deliberate decision had been taken not to investigate the fraud (Lord Sumption). Each suggestion had the support of a majority of the court, though they are not consistent with each other. One posits a discretion, the other a bright line rule.

60. Elu was a case where it had been argued at the original trial that the claimant’s evidence was false, but the trial judge did not so find. On the “fresh claim” (which was actually an appeal, repleaded as a fraud claim), Linden J, in the High Court, held that the new claim was an abuse of process: “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 … ” In Park , the Court of Appeal confirmed that Elu was indeed a case of abuse of process. It did not criticise the decision as such.

61. Finzi , like Takhar , was a case where no allegation of fraud was raised at the trial which led to the judgment. The Board took a different view from the obiter view expressed by Lord Sumption in Takhar . Lord Leggatt said that it would be necessary to show “(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 ” (at [72]).

62. But none of this dispute as to what to do, where no allegation of fraud was made at the original trial, affects a case where such an allegation was in fact made. In such a case, although I am not strictly bound by the decision in Elu , I should follow it unless convinced it is wrong. I turn therefore to consider the facts of this case. The facts of this case

63. Looking at the facts here, in my judgment, the respondents did challenge as false the evidence of the applicant that she accidentally deleted emails from her account. The respondents went into the trial (as shown by their skeleton argument) on the basis that the applicant was lying in saying that the deletion was accidental, and that the reality was that she had deliberately deleted those emails. As is clear from the transcript, they opened the trial on that basis, cross-examined her on that basis, and made closing submissions on that basis. The judge was therefore required to make a decision on the matter. However, taking the evidence placed before him by the parties as a whole (and noting that the respondents had not obtained or placed before him any expert evidence on the matter, nor having sought to ask the single joint expert questions about it), the judge concluded that the applicant was telling the truth, and found that she had deleted the emails accidentally.

64. In my judgment, what the respondents are now alleging, in the new claim, is in substance the same thing, namely, that the applicant was lying about the circumstances of the deletion of her emails. The only difference is that the respondents have now procured expert evidence (as they say) to support their allegations, and seek to adduce it in the new proceedings. As Males LJ observed, in refusing permission to reopen the appeal, this could have been obtained before the trial, but the respondents chose not to do so. In my judgment, the applicant surmounts the first hurdle, that is, showing that the issue now raised in the present claim is one which has already been decided.

65. The respondents’ second question is whether a reasonable diligence requirement applies here. But I do not think that this is the right question in this context, where ex hypothesi there was a challenge at the original trial to the evidence then given as fraudulent. There is no need to impose (or not impose) a requirement for reasonable diligence to discover the fraud, if the other party was already aware of it, and indeed sought at the time to exploit it so as to defeat the claim. Another way of putting the point is to say that the respondents could not be said to have been deceived , and hence a crucial element of the fresh claim in fraud cannot be made out.

66. The real question in such a case is whether there is an issue estoppel. In my view there is. Just as in Elu (see at [164]), it does not matter that there was no express pleading of fraud in a statement of case. The fact is that the applicant’s evidence at trial was challenged on the grounds that it was deliberately untruthful. The respondents however preferred not to seek to obtain expert evidence which might demonstrate this. Instead, they sought to defeat the evidence with what they already had. Having taken the risk of proceeding thus, and having lost that point first time round, they now want another bite at the cherry. That is precisely what the doctrine of issue estoppel is directed at.

67. In a case where the evidence is challenged at trial as fraudulent, but for some reason there is no issue estoppel, a different question may arise, which is whether the challenger could with reasonable diligence have obtained the evidence on which he or she now seeks to rely at the time of the trial. Even if that were the law (as to which I need not and do not decide), it is clear on the facts that the respondents could have commissioned the expert evidence on which they now seek to rely in time for the trial. Indeed, Males LJ made exactly this point in refusing permission to appeal. So that argument goes nowhere.

68. Lastly, there is the question whether the respondents’ attempt to make a fresh fraud claim against the applicant is also an abuse of the process. I think that it is. The respondents had a duty to bring their whole case on fraudulent evidence forward on one occasion. They did not do so, because they could have commissioned the very expert evidence on which they now rely, but failed to do so. They cannot show that there is any good reason for having a second bite at the cherry. Conclusion

69. In these circumstances, I hold that the respondents are estopped from raising the issue in this action of the allegedly false evidence given in the earlier one. There is therefore no reasonable ground for this claim under CPR rule 3.4(2)(a). If I were wrong about that, then I would hold that the new claim is an abuse of the process, within CPR rule 3.4(2)(a), in failing to bring forward the whole of the claim at the original trial, namely by not obtaining and relying on the expert evidence now put forward. In my judgment, the respondents should have done so at the time, and it is too late now. I will therefore strike out the claim.