In Socimer International Bank Ltd (in liquidation) v Standard Bank London Ltd – Butterworths Law Direct 25.1.08 the question arose, following the Defendant’s appeal, whether there should be a full re-trial on the basis that certain evidence given at trial had been given in bad faith. The Claimant accepted that it was pleading a new case for the first time. The question was whether there was anything more for the parties to dispute or whether the decision allowing the Defendant’s appeal was determinative of the issues.

The Court of Appeal held that the Claimant's submission was a hopeless one: Asking for a new trial to be ordered upon a basis which had never previously been advanced, which was inconsistent with the real case sought to be made at trial based upon an implied term, amounted to an abuse of process. If the case were to be re-pleaded on the ground of bad faith, there would be prejudice in that it would run contrary to the essential doctrines of fairness and proportionality, and counter to CPR 1 and the concepts that underlay it.