Test for setting aside a judgment for fraud


The claimant alleged that the defendants had obtained an earlier judgment by fraud. Newey J considered the legal principles governing applications to set aside judgments for fraud. These are that: (1) There has to be a "conscious and deliberate dishonesty; (2) The relevant dishonesty must be "material"; and (3) Materiality is assessed by the impact the fresh evidence would have had on the original decision (rather than if the claim were to be retried).

The parties differed as to whether there was a further requirement – namely, that the new evidence could not reasonably have been obtained in time for the original trial. Following a review of the relevant caselaw, the judge concluded that there is no such requirement. That view is supported by Commonwealth caselaw and is based on the principle that "fraud unravels all" and there is no duty of due diligence on the innocent party. Accordingly, the case was allowed to proceed to trial (although the judge also found that there was a reasonably arguable case that the new claim for deceit was time-barred and so the claimant was refused permission to amend her particulars of claim).