Sohal & Anor v Sohal & Anor

The Court of Appeal has jurisdiction to admit fresh evidence and address an allegation that a first-instance judgment was procured by fraud. It should ordinarily do so only where the fraud is clearly established, or the fresh evidence and its effect are not hotly contested. Otherwise, the complaining party should bring a fresh action to set aside the judgment.

Satisfaction of the requirements governing fresh evidence does not remove this threshold. Permission to appeal should be refused where the proposed appeal would inevitably be dismissed, even though the application has received full argument.

Five sons of a deceased testator successfully challenged an English will under which the youngest son principally benefited. A deputy judge of the Chancery Division upheld a later Indian will dividing both the English and Indian estates equally among all six sons. She found that the claimants had proved due execution and the testator's knowledge and approval.

Nearly 11 months after the order, the defendants sought permission to appeal, an extension of time and admission of fresh evidence. They alleged that the judgment had been procured through perjured evidence and sought a retrial. The central issue was whether the fraud allegation should be addressed through the appeal or left to a fresh action to set aside the judgment.

1. The renewed application for permission to appeal and an extension of time was refused unanimously. Sir Martin Nourse, with whom Pill LJ agreed, held that the Court of Appeal had jurisdiction to admit fresh evidence and determine an allegation that a first-instance judgment had been procured by fraud. It should exercise that jurisdiction only where the fraud can be clearly established or the fresh evidence and its effect are not hotly contested. In other cases the complaining party should bring a fresh action to set aside the judgment. This approach reflected Wood v Gahlings, James v Williams and paragraph 8 of Hamilton v Al Fayed.

2. Paragraph 14 of Hamilton did not establish a wider rule. Its reference to fresh evidence demonstrating perjury concerned evidence which clearly established that perjury had occurred. Nor were the observations at paragraph 21, concerning the prevalence and procedural advantages of appeals, intended to displace the qualifications in paragraphs 8 and 14. Each case nevertheless had to be assessed on its own merits.

3. Even assuming, without deciding, that the proposed evidence satisfied the requirements of Ladd v Marshall, it did not clearly establish that the deputy judge's decision had been procured by perjury. The decision depended substantially upon oral testimony. Whether the relevant witnesses had committed perjury could therefore be established, if at all, only at another trial. The defendants were left to commence a fresh action.

4. Sir Martin added that entertaining the evidence on appeal would require extensive oral evidence from both sides and would resemble a trial in the Court of Appeal, potentially followed by a retrial. That course would probably increase expense and delay. A fresh action offered a more satisfactory means of resolving the disputed facts.

5. Although an applicant for permission need show only a real prospect of success, full and able argument does not itself make an appeal properly arguable. Permission should be refused at the application stage where the full court would be bound to dismiss the appeal. The application was refused with no order as to costs.

1. Court of Appeal (Civil Division): The renewed application for permission to appeal, an extension of time and admission of fresh evidence was refused. The defendants were left to pursue a fresh action if they wished to set aside the judgment for fraud.

2. Chancery Division: Miss Sonia Proudman QC, sitting as a deputy High Court judge, pronounced against the English will and in favour of the later Indian will. She revoked the existing grant of probate of the English will after finding due execution and knowledge and approval of the Indian will.