There are established ways to challenge a judgment obtained by fraud, and in the case of Terry v BCS Corporate Acceptances Ltd ( EWCA Civ 2422) the defendant's attempt to follow a different course was misguided. The Court of Appeal dismissed Mr Terry's application to strike out a claim for abuse of process; it refused to accept that the decision in Summers v Fairclough gave the court jurisdiction to strike out a claim after final judgment, even where fraud was alleged.
BCS Corporate Acceptances had paid Terry over £1 million to source corporate financial guarantee bonds and a credit facility. Those were not delivered and BCS issued proceedings against him in the High Court. Terry did not serve a defence and BCS was awarded judgment in default. (In a draft defence, Terry stated that he did receive some money, but it was not payment for these services; he was owed it under a consultancy agreement.) His application to have the judgment set aside was dismissed, as was his application for permission to appeal, both on the papers and again after a hearing. Subsequently, damages were assessed at £1.6 million and €400,000. Terry did not appeal that damages decision.
Terry made an application to rid himself of the judgment in the High Court on the basis that the claimants' claim was a "wholly fraudulent" abuse of process and that "nothing material to the claim [was] true". He did not opt for any of the established ways to set aside a judgment allegedly obtained by fraud; nor did he apply under Civil Procedure Rule (CPR)13.3 to set aside the default judgment. Instead, he relied on the principle in Summers (ie, that the court had a power to "strike out a statement of case as an abuse of process after a trial at which the court has held that the defendant is liable in damages to the claimant in an ascertained sum" under its inherent jurisdiction and CPR 3.4(2)). This was rejected by the High Court on the basis that the principle in Summers could not be applied after judgment had been given, because at that point there was no claim to strike out – only a judgment remained.
The defendant appealed to the Court of Appeal. The court considered:
- whether the court had jurisdiction to strike out the claim post final judgment; and
- whether an application to set aside the judgment could be made under the court's general case management powers (in particular CPR 3.1(7)).
Although Summers gave the court the power to strike out a statement of case for abuse of process under CPR 3.4(2), that power can be exercised only in exceptional cases – for example, where a party's abuse of process "was such that he had thereby forfeited the right to have his claim determined". This power cannot be used when judgment had been handed down; CPR 3.4(2)(b) was inherently a case management power and, once a final judgment has been handed down, there is no case to manage.
As to the second question, the court reviewed the authorities related to the court's general powers to vary or revoke an order under CPR 3.1(7) and held that the circumstances in which that can be relied upon to set aside an interim order are rare; and the general considerations which might lead to a successful application (ie, that there had been a material change of circumstances, or the facts upon which the original decision was made had been misstated) "will not justify varying or revoking a final order". In the interests of finality, final orders would be varied only in very rare circumstances. The defendant had failed to show any proper or sufficient grounds for such an exceptional course.
Further, the court noted that the proper procedure under the CPR for challenging a default judgment is the specific procedure under CPR 13.3, not a general power such as CPR 3.1(7).
The judgment provides useful practical guidance for practitioners considering challenging a judgment believed to have been obtained by fraud, and helpfully clarifies the limited application of Summers. The established pathways for challenging a judgment believed to have been obtained by fraud cannot be circumvented by seeking to rely on the more general provisions in the CPR.
For further information on this topic please contact Gillian O'Regan or Andy McGregor by telephone (+44 20 3060 6000) or email (gillian.o'[email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.
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