In Thomas Koshy v (1) Deg-Deutsche Investitions-Und Entwicklungsgesellschaft Mbh (2) Gwembe Valley Development Co Ltd (In Receivership) - Lawtel 5.2.08 the appellant appealed against a decision striking out his action to set aside a costs order on the ground that it was obtained by fraudulent misrepresentation or false evidence. The appellant had been granted permission out of time to appeal against the costs order on the basis that he could only rely upon two paragraphs of the judge's judgment. During the course of the appeal hearing, the Court of Appeal indicated that the proper route for the appellant to seek to review the costs order was a fresh action, which would enable a trial to take place on the issue of whether there had been material non-disclosure. The appellant was given the choice between continuing with the appeal, subject to its being limited to two paragraphs of the judgment, or having the case remitted to the Chancery Division for a trial. The appellant proceeded with the appeal, but it was dismissed.

The appellant then brought a new action which was wider in scope than the previous challenge, and included a claim for damages for deceit. At first instance the judge held that the appellant had clearly agreed that if the Court of Appeal heard his appeal he would not be able to start a fresh action, and although technically what he had agreed to was not an election, it was an abuse of process for him to start a fresh action.

The Court of Appeal held that if the appellant had voluntarily accepted that, if the Court of Appeal determined his case on the limited basis on which he then chose to put it, he would not bring any further proceedings, it was too late for him to go back on that acceptance. Although he had not made an election in law, as he had not made a choice between inconsistent courses of action, his ‘election’ was relevant because it paved the way for an argument based on abuse of process. The judge below had reached the right conclusion that the appellant had made his election in the wider form which precluded any alternative procedural route.

It also held that if that conclusion was wrong and the Court of Appeal had dismissed the appeal on procedural grounds, it was an abuse of process to start a new action. Reference was made to the well recognised public interest in the finality of litigation. It would be unfair on the respondent to allow the appellant to have another opportunity, or to make assumptions in his favour which were not supported by the evidence.