Court of Appeal rejects attempt to strike out a claim after judgment allegedly obtained by fraud

Prior caselaw has established that, where it is alleged that judgment was obtained by fraud, a fresh action may be brought to set aside the judgment. In an appropriate case, an appeal may also be brought seeking to rely on fresh evidence and to obtain an order for a retrial (see Noble v Owens (Weekly Update 10/10)). Unless the fraud is admitted, or incontrovertible, the issue of fraud must be both properly particularised and proved. However, in this case, the appellant/defendant sought to argue that the Supreme Court decision in Summers v Fairclough provided an alternative procedure, namely, an application to strike out the claim for abuse of process under CPR r3.4.

The Court of Appeal has now rejected that argument. It held that, although some of the statements made by the Supreme Court were expressed in general and seemingly unqualified terms, they had to be considered in context. The case did not support the argument that an application for strike out could be brought after final judgment: "The time at which the exercise of the power to strike out was being considered in Summers v Fairclough was therefore before final determination of the claim; a time at which there remains a choice between strike out and complete or partial dismissal of the claim. That is not the case once final judgment has been given". In other words, that case had concerned whether the power to strike out could be exercised after trial, rather than after judgment.

Furthermore, CPR r3.4 is a case management power, and once judgment had been perfected, there is no longer any case. The Court of Appeal said it was for the Supreme Court to decide whether the concept of merger of a cause of action with the judgment applies only against a claimant or whether cause of action estoppel prevents a defendant from applying for strike out following judgment. Nor were there any grounds to apply to set aside the judgment under CPR r3.1(7).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.