Malhan v Malhan

On a second appeal, permission should be granted only where the proposed appeal raises an important point of principle or practice, or there is another compelling reason for the Court of Appeal to hear it. A claim to set aside a judgment for fraud must identify facts which, if established, would have entirely changed the aspect of the case, and which could not reasonably have been discovered earlier. A bare allegation that a party owned another property, without pleading that the purchase money was money represented as having been contributed to the property in issue, does not establish such a case.

The claimant sought permission for a second appeal against an order of His Honour Judge Marcus Edwards QC dated 27 September 2000. The judge had allowed an appeal from a District Judge, struck out proceedings seeking to set aside an earlier judgment for alleged fraud and non-disclosure, and dismissed the claim as an abuse of process.

The earlier judgment concerned the respondent’s beneficial interest in a former family home. The claimant later discovered that she owned another property and alleged that this non-disclosure had affected the assessment of her interest and the costs order. The central question was whether the pleaded allegations disclosed a sufficient basis to reopen the earlier judgment.

1. Application dismissed. The case was a second appeal, so under O.52,r.13 permission required an important point of principle or practice, or another compelling reason for the Court of Appeal to hear the appeal.
2. The governing principle, stated by Lord Cairns LC in Phosphate Sewage v Molleson (1879) 4 AC 801, 814, was that a judgment could be set aside only where a newly established fact entirely changed the aspect of the case and could not have been ascertained by reasonable diligence earlier.
3. The pleaded case did not meet that standard. It alleged that the respondent owned 198 Martindale Road and had failed to disclose that fact, but did not allege that the purchase money had come from funds which she had represented as having been contributed to the former family home. The critical source of the deposit was therefore not pleaded.
4. On the pleadings as they stood, there was no reasonable prospect of successfully appealing the judge’s conclusion that the case was speculative and abusive. The court nevertheless indicated that a draft amended statement of case could be submitted within 21 days, alleging the necessary connection between the purchase money and the contribution relied upon in the earlier proceedings. The order dismissing the application was to lie in the office for 21 days.

• Court of Appeal (Civil Division): Application for permission to bring a second appeal dismissed; order to lie in the office for 21 days, subject to submission of a draft amended statement of claim.
• Brentford County Court: On 27 September 2000, His Honour Judge Marcus Edwards QC allowed an appeal from a District Judge, struck out the proceedings as an abuse of process and dismissed the claim.
• District Judge: An order dated 8 October 1996 was made in the proceedings seeking to set aside the earlier judgment.