Rasal Khaimah Investment Authority v Farhad Azima & Ors
[2023] EWCA Civ 507
William Andrew Tinkler v Esken Limited (formerly Stobart Group Limited)
9 June 2023
[2023] EWCA Civ 655
Court of Appeal
Someone tried to overturn a court decision, saying it was based on lies. A judge looked at the new evidence, but said it didn't change the original outcome. The appeal court agreed, saying the judge did the right thing and the attempt to overturn the decision failed.
Key Facts
- •Mr Tinkler, former CEO of Esken, was summarily dismissed and removed as a director.
- •He brought a claim to set aside a previous judgment against him, alleging fraud.
- •The claim alleged that new evidence, deliberately withheld from the first trial, demonstrated that witnesses had lied.
- •The new evidence purportedly showed a premeditated plan to oust Mr Tinkler.
- •The judge at the second trial dismissed Mr Tinkler's claim.
- •Mr Tinkler appealed, arguing the judge adopted the wrong approach to the fraud action and applied incorrect tests for materiality.
Legal Principles
A judgment can be set aside for fraud if: (i) the successful party acted with conscious and deliberate dishonesty; (ii) the dishonest conduct was material to the original decision; and (iii) there is new evidence.
Common Ground in the case
In a fraud action to set aside a judgment, the task is to evaluate the new evidence and decide if the original judgment stands in light of it; not to retry the original case with all evidence.
Leech J at [33]-[35]
There is no burden on the successful party to justify the original judgment; the court assumes the first judge decided correctly unless the fraud claim succeeds.
Leech J, citing Tuvyahu v Swigi
An action to set aside a judgment for fraud is a free-standing cause of action, not a procedural application. There can be no cause of action, issue, or res judicata estoppel.
Takhar v. Gracefield Developments Ltd [2020] AC 450 at [60]-[61]
The materiality of fresh evidence is assessed by reference to its impact on the evidence supporting the original decision, not by reference to a potential different outcome on retrial with honest evidence.
Highland at [106], approved in Takhar
In an action to set aside a judgment on the ground of fraud, the question is how the trial judge's conclusions would have been affected if the fraudulent witness had provided the concealed information; not how the conclusions would have been affected had the judge known of the witness's lack of frankness.
Coghlan v. Bailey [2014] EWHC 924 (QB) at [46]
The fraud must be an operative cause of the judgment or would have entirely changed the first court's approach.
Highland
Outcomes
Appeal dismissed.
The Court of Appeal found the judge's approach, while unorthodox, did not lead to an incorrect result. The judge correctly considered the new evidence in light of the old evidence and did not retry the original case. The Court of Appeal preferred the Highland test for materiality over the Hamilton test.