Koshy v Deg-Deutsche Investitions-Und Entwicklungsgesellschaft Mbh

A party who elects to pursue an appeal on a defined evidential basis, after declining an available first-instance fact-finding process, may be precluded from pursuing another procedure directed to the same substantive result. Re-opening the same issue through a fresh claim may constitute an abuse of the process of the court.

A claim to set aside an order allegedly obtained by fraud generally requires fresh evidence discovered since the original hearing, which could not have been produced with reasonable diligence and would probably have affected the result. Findings made in earlier litigation are not themselves fresh evidence.

Thomas Koshy brought a fresh claim seeking to set aside an interlocutory costs order made by Harman J and an order requiring an account of profits made by Rimer J in earlier litigation involving DEG and GVDC. He also claimed damages, alleging that DEG’s solicitor had deliberately misled Harman J and that this conduct had caused the later orders.

The defendants applied to strike out the claim under CPR Part 3.4, alternatively seeking summary judgment under CPR Part 24.2. The central issues were the effect of Mr Koshy’s choice before the Court of Appeal to pursue his appeal rather than a first-instance trial of the alleged non-disclosure, whether the fresh claim was an abuse of process, and whether the claim concerning the GVDC order was supported by fresh evidence.

1. Claim concerning the Harman Order. Mr Koshy had been offered a choice by the Court of Appeal: pursue his appeal on the basis of two paragraphs in Rimer J’s earlier judgment, or have the factual issue of alleged non-disclosure tried at first instance. He expressly chose the appeal, understanding that if it failed the matter could not be reopened by another procedure. The appeal was dismissed in [2003] EWCA Civ 1718.
2. The election was construed according to its substance. It precluded not only remission of an issue to the Chancery Division, but also a fresh claim directed to the same factual inquiry and substantive result. The February 2005 claim, including the related damages claim, was therefore an abuse of process. Even if the election had been narrower, the fresh claim would still have been abusive under the principle applied in Johnson v Gore Wood [2002] AC 1.
3. The court expressed reservations about whether the choice was technically an election in the strict sense described in Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (the “Kanchenjunga”) [1990] 1 Lloyd’s Rep. 391 and Personal Representatives of Tang Man Sit v Capacious Investments Ltd [1996] AC 514. That did not affect the result, because Mr Koshy had agreed to abandon alternative procedural routes.
4. Claim concerning the GVDC order. The pleaded case depended on reopening the alleged misleading of Harman J, which was already precluded. In addition, a claim to set aside a judgment for fraud ordinarily requires fresh evidence discovered since the original trial, unavailable with reasonable diligence and probably capable of producing a different result, applying Owens Bank Ltd v Bracco and another [1992] 2 AC 443. Rimer J’s earlier findings were not fresh evidence.
5. The alleged forum non conveniens case also had no real prospect of success. Under Owusu v Jackson and others [2005] QB 801, the English court could not decline jurisdiction based on a non-contracting state being the more appropriate forum where jurisdiction rested on domicile under article 2 of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (as amended). In any event, Zambia was not clearly the more appropriate forum under Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460.
6. The whole claim issued on 9 February 2005 was struck out.

The judgment records earlier proceedings in which the Court of Appeal dismissed Mr Koshy’s appeal against the Harman Order in [2003] EWCA Civ 1718 and Hart J rejected related preliminary issues in [2004] EWHC 2896 (Ch); [2005] 1 WLR 2434. The present High Court struck out the fresh claim.