Couwenbergh v Valkova

The Court of Appeal may reopen concluded proceedings where there is a real prospect that a significant injustice has occurred in exceptional circumstances and no effective alternative remedy exists. On a renewed application for permission, the applicant need only demonstrate a real prospect of satisfying those requirements and succeeding on appeal.

Fresh evidence must ordinarily satisfy the Ladd v Marshall criteria, considered alongside the overriding objective. Where credible new evidence indicates that fraud may have been practised on the court, fairness strongly favours allowing the truth to emerge. Finality remains a cardinal principle, but the exceptional jurisdiction to attack a judgment for fraud is one of its necessary safeguards.

A testatrix’s 1990 will left her estate to the respondent. Carnwath J pronounced for its validity after rejecting challenges based on testamentary capacity and knowledge and approval. Permission to appeal was refused in 1999.

During a later police investigation, the will’s two attesting witnesses alleged that they had not witnessed the testatrix’s signature, that she was absent when they signed, and that letters purporting to confirm due execution bore forged signatures. The appellant consequently renewed his application for permission to appeal after the ordinary appeal process had ended.

The central questions were whether there was a real prospect that a significant injustice had occurred and whether a fresh action alleging fraud would provide an effective alternative remedy.

1. The renewed application for permission to appeal was granted. The residual jurisdiction identified in Taylor v Lawrence permits concluded proceedings to be reopened only to avoid real injustice in exceptional circumstances. At the permission stage, the applicant had to show a real prospect of satisfying that jurisdictional standard and succeeding on appeal, rather than establish the alleged fraud conclusively: [2004] EWCA Civ 676, paras 24–26, 51.

2. There was a real prospect that the new evidence would be admitted. The applicant could plausibly satisfy all three Ladd v Marshall requirements: reasonable diligence, an important probable influence on the result, and apparent credibility. Those requirements had to be considered with the overriding objective and the overarching demands of fairness and justice. If there was a risk that fraud had been practised on the court, the court should, where possible, permit the truth to emerge: paras 27–34.

3. The evidence, if accepted, could show that the later will was not duly executed and that the respondent had procured forged confirmatory letters. Although an identically worded earlier will appeared likely to survive, the possible fraud could materially affect the existing costs order. A litigant should not bear all the costs payable to a party who may have perverted the course of justice. There was therefore a real prospect that substantial injustice had occurred: paras 30, 36–38.

4. A judgment allegedly obtained by fraud may be challenged either on appeal with fresh evidence or by a fresh action. Where the fraud is hotly contested, a fresh action may ordinarily be more satisfactory. In this case, however, there was a real prospect that it would not be an effective remedy. A rehearing could provide broader control over the costs of the first trial, proceed more economically and quickly, and give the trial judge greater flexibility to do justice between the parties: paras 39–46.

5. Finality is a cardinal principle, strengthened by delay, but it is subject to exceptional safeguards, including an attack based on fraud. The delay here did not threaten the fairness of a possible rehearing. Costs of the permission application were ordered to be costs in the appeal. The parties were strongly encouraged to mediate: paras 47–55.

1. Court of Appeal (Civil Division): By [2004] EWCA Civ 676, granted the appellant’s renewed application for permission to appeal after the ordinary appeal process had concluded.
2. Court of Appeal: Peter Gibson and Hale LJJ refused the original application for permission to appeal on 29 March 1999.
3. High Court (Chancery Division): Carnwath J pronounced for the force and validity of the testatrix’s will dated 24 October 1990 and ordered the appellant to pay the respondent’s costs.