William Andrew Tinkler v Esken Limited (formerly Stobart Group Limited)
[2023] EWCA Civ 655
Rasal Khaimah Investment Authority v Farhad Azima & Ors
15 May 2023
[2023] EWCA Civ 507
Court of Appeal
Mr. Azima lost a case to RAKIA, claiming they cheated. He found new evidence of their cheating. A judge let him bring a new case, and a higher court agreed that the new evidence is important enough to justify revisiting the original case, despite RAKIA trying to stop him.
Key Facts
- •RAKIA obtained judgments against Mr. Azima for fraud and conspiracy, partly based on documents obtained through the hacking of Mr. Azima's emails.
- •Mr. Azima appealed, alleging RAKIA's fraudulent procurement of the judgments.
- •The Court of Appeal upheld the judgments against Mr. Azima but remitted the hacking counterclaim for retrial.
- •Mr. Azima sought to bring a 'set-aside counterclaim' alleging RAKIA procured the original judgments by fraud, based on new evidence.
- •The Additional Defendants (Mr. Gerrard, Dechert, and Mr. Buchanan) appealed the judge's decision to allow the set-aside counterclaim.
Legal Principles
A decision on whether an action is an abuse of process is an evaluative assessment, not a discretionary one. The Court of Appeal will only interfere if the judge considered irrelevant factors, ignored relevant factors, applied a wrong principle, reached a decision not properly open to them, or made a plainly wrong decision.
Harbour Castle Limited v David Wilson Homes Ltd [2019] EWCA Civ 505 at [6] and [7]
Principles for setting aside a judgment for fraud: (1) conscious and deliberate dishonesty; (2) materiality (the fresh evidence would have entirely changed the first court's approach); (3) (an elaboration of 2) the dishonesty must be causative of the impugned judgment.
Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328; [2013] 1 CLC 596 (as approved in Takhar)
In actions to set aside a judgment for fraud, there is a tension between the 'fraud principle' (fraud unravels all) and the 'finality principle' (there must be an end to litigation).
Takhar v Gracefield Developments Ltd [2019] UKSC 13; [2020] AC 450
Abuse of process involves a broad, merits-based judgment considering public and private interests, focusing on whether a party is misusing court processes.
Johnson v Gore Wood [2002] 2 AC 1 at 31
If parties to later proceedings were not parties or privies to earlier proceedings, re-litigating issues is an abuse only if manifestly unfair or it would bring the administration of justice into disrepute.
Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321; [2004] Ch 1 at [38]
Outcomes
The appeal was dismissed.
The judge correctly found a real prospect that Mr. Azima could satisfy both the fraud and materiality conditions for setting aside the judgment, and the Court of Appeal did not intend to absolutely bar such a claim based on new, material evidence.