Jaffray & Ors v The Society of Lloyds

The Court of Appeal’s jurisdiction to reopen a concluded appeal is exceptional. Rules of court regulate, but cannot enlarge, the court’s underlying jurisdiction. Assuming that a concluded appeal may be reopened where fraud corrupted the earlier proceedings, the applicant must ordinarily satisfy the requirements for admitting fresh evidence, show that corruption probably occurred, and establish a strong probability that it affected the result.

Disputed or complex allegations of perjury should normally be determined in a fresh action to set aside the judgment. Reopening may be appropriate only in an exceptional, sufficiently clear case where no effective alternative remedy exists. The jurisdiction cannot be used to advance evidence or arguments which could have been deployed in the original proceedings.

The applicants had unsuccessfully pursued deceit claims against the Society of Lloyd’s. Cresswell J dismissed the claims, although the Court of Appeal subsequently found that relevant representations had been made and were untrue. The appeal was nevertheless dismissed because dishonesty or recklessness on Lloyd’s part had not been proved: [2002] EWCA Civ 1101.

The applicants sought to reopen that appeal under rule 52.17 of the Civil Procedure Rules 1998, relying principally on further evidence said to demonstrate that witnesses had committed perjury and misled both the trial judge and the Court of Appeal. They also advanced arguments concerning the formulation of the misrepresentation and the legal effect of reinsurance to close.

The central questions were whether the jurisdiction recognised in Taylor v Lawrence extended to fraud upon the lower court and, on the assumption that it did, whether the evidence and allegations justified reopening the concluded appeal.

1. The applications were dismissed. The court assumed, without deciding, that it had jurisdiction to reopen a concluded appeal on the ground that fraud had been perpetrated on the lower court. Flower v Lloyd and Jonesco v Beard indicated that no such jurisdiction existed and that the proper remedy was a fresh action to set aside the judgment. The point remained open because it had not been argued and later Court of Appeal cases had assumed that jurisdiction existed.

2. Rule 52.17 of the Civil Procedure Rules 1998 could not enlarge the court’s jurisdiction. It regulated and restricted the exercise of whatever jurisdiction the law otherwise conferred. The requirement to avoid real injustice therefore did not create a broad discretion to reconsider concluded appeals.

3. On the assumed jurisdiction, an applicant relying on fraud must ordinarily pass three stages: the further evidence must be admissible under Ladd v Marshall principles; it must probably establish corruption of the earlier process, such as perjury; and there must be a strong probability that the corruption affected the result. Merely suggesting that the earlier decision might have been wrong is insufficient.

4. Hotly disputed or complex allegations of fraud are generally unsuitable for determination through an appeal. Pleadings, oral evidence and cross-examination will ordinarily be required. Unless the fraud and its effect are sufficiently clear and substantially incontestable, the proper procedure is a fresh action to set aside the judgment. Couwenbergh was confined to its exceptional facts, including a short, discrete issue suitable for a limited retrial.

5. The allegations against the Lloyd’s witnesses did not establish an arguable case of perjury or corruption. Much of the supposedly new material had been available at trial, did not materially change the evidential landscape, or required extensive factual investigation. Such an investigation could not sensibly be conducted on a reopened appeal.

6. The complaints about the Court of Appeal’s formulation of the representation and its understanding of reinsurance to close were arguments which could have been advanced in the original proceedings. They did not depend on corruption of the judicial process and fell outside the exceptional jurisdiction.

1. Court of Appeal (Civil Division), 2007: dismissed the applications to reopen its earlier appeal under rule 52.17 of the Civil Procedure Rules 1998.
2. Court of Appeal (Civil Division), 2002: in [2002] EWCA Civ 1101, held that relevant representations had been made and were untrue, but upheld the dismissal of the deceit claims because dishonesty or recklessness had not been proved.
3. High Court: Cresswell J dismissed the deceit claims, reported as [2000] All ER (D) 1674.