Benjamin Pell v (1) Express Newspapers (An UnLtd. Company) and (2) Mark Watts

An allegation that a concluded judgment was procured by fraud should ordinarily be pursued by a fresh action, in which the fraud is clearly pleaded and strictly proved. An appellate court should not reopen the merits of a settled action merely to reverse an interlocutory costs order, particularly where the alleged fraud is disputed and the settlement is to remain undisturbed.

Fresh evidence will not support an appeal if it could, with due diligence, have been obtained for the original hearing. A substantial and inadequately explained delay in seeking permission or an extension of time is an additional ground for refusal. The court retains a discretion in exceptional cases, but finality and proportionality are central considerations.

The claimant settled his defamation action against the newspaper and its journalist by accepting a Part 36 offer of £125,000 plus costs. Before settlement, Eady J had refused, shortly before trial, permission to re-amend the particulars of claim to advance a claim for exemplary damages and had declined further disclosure. The claimant was ordered to pay the respondents’ costs of those applications.

Nearly a year later, he sought permission to appeal out of time against the interlocutory order. He relied on subsequently obtained unredacted emails and telephone information, alleging dishonest suppression of material relevant to a conspiracy claim. He did not seek to set aside the settlement, but sought reversal of the costs order. The appeal was from Eady J’s decision in the Queen’s Bench Division, [2003] EWCA 1649 (QB).

Disposition

1. Permission to appeal and an extension of time were refused. Lord Justice Rix held, with whom Lord Justice Chadwick agreed, that the application had no real prospect of success and had been brought too late without a satisfactory explanation.

2. The proper method of impeaching a completed judgment for fraud is ordinarily a fresh action. Such an action requires properly pleaded particulars and strict proof. The Court followed the settled practice stated in [1930] AC 298 and reaffirmed in [2001] 1 WLR 429. Even if the choice between appeal and fresh action were discretionary, this case had to proceed, if at all, by fresh action because the alleged fraud was hotly disputed, unpleaded in a form fit for trial, and unsuitable for resolution through an appeal.

3. The proposed appeal was disproportionate and contrary to the interests of justice. It would require the Court to revisit the essential merits of an action settled without trial, solely to alter an interlocutory costs order, while leaving the settlement itself intact. The exceptional circumstances in [2004] EWCA Civ 676 did not assist the claimant because that case concerned new evidence fundamentally inconsistent with a completed trial and costs of the trial itself.

4. The claimant also failed the due-diligence element of the fresh-evidence test in [1954] 1 WLR 1489. The allegedly important unredacted material could have been obtained promptly on request. The delay of almost a year, including waiting to receive settlement monies, was not satisfactorily explained. The absence of a prima facie case of fraud reinforced the refusal to extend time.

• Court of Appeal (Civil Division): Permission to appeal from the interlocutory order was refused, and time was not extended: [2005] EWCA Civ 46.

• Queen’s Bench Division: Eady J refused late re-amendment of the particulars of claim and further disclosure, with costs against the claimant: [2003] EWCA 1649 (QB).