Malhan v Malhan

A final judgment may exceptionally be set aside where newly discovered evidence satisfies the Phosphate Sewage test. The evidence must be incapable of reasonable discovery earlier and must be capable of entirely changing the aspect of the case. At the pleading stage, material that might merely affect a witness’s credibility is insufficient. The court must be able to identify evidence which, on its face, is difficult to disprove and which could materially alter the earlier decision. The test is not met where there are substantial evidential gaps, or where the evidence could have been elicited by reasonable cross-examination.

The applicant sought permission to appeal against the striking out of proceedings intended to set aside an earlier judgment concerning the respondent’s beneficial interest in a property occupied by both parties. The earlier judgment had been affirmed on appeal. The applicant relied on the later discovery that the respondent had acquired another property, alleging that this showed her evidence in the earlier proceedings to be false and would have changed the result. Following an earlier refusal of permission, the applicant submitted a draft amended pleading. The central issue was whether the proposed new evidence disclosed a realistic basis for setting aside the earlier final judgment.

1. The renewed application was refused. The previous order refusing permission to appeal was directed to be drawn up.
2. The general rule is that, once appeal processes are exhausted, a judgment is final. The exceptional jurisdiction identified in Phosphate Sewage Company Limited v Molleson [1878-79] 4 AC 801 requires newly discovered evidence which could not, with reasonable diligence, have been discovered earlier and which would entirely change the aspect of the case.
3. The applicant’s proposed evidence concerned the respondent’s alleged undisclosed ownership of another property. Even assuming that the evidence could not previously have been discovered with reasonable diligence, it might merely cause a court to take a different view of the respondent’s credibility. Its effect could not be predicted with the necessary certainty.
4. At the pleading stage, the applicant had to show a sufficiently clear case that the new evidence would entirely change the earlier judgment. The pleading contained too many gaps, including uncertainty about the beneficial ownership, the funding of the property, and the connection between the alleged contributions and its purchase.
5. The possibility that the evidence could have been ascertained through cross-examination provided an additional reason why the test was not satisfied. Evidence that the respondent moved into a jointly occupied property after its purchase was also capable of being adduced at the original trial and could not support reopening the judgment.

• Court of Appeal (Civil Division): The court renewed and refused the application for permission to appeal against the Brentford County Court’s order striking out the proceedings.
• Brentford County Court: His Honour Judge Marcus Edwards QC struck out the proceedings seeking to set aside the earlier judgment.
• Earlier Court of Appeal proceedings: The appeal from the earlier judgment concerning the respondent’s beneficial interest in 816 Great West Road was dismissed.