Harrison v Harrison

A final judgment may be set aside for fraud only where new evidence, unavailable at the original hearing despite reasonable diligence, distinctly establishes fraud or perjury and is capable of entirely changing the aspect of the case. A claim based merely on non-disclosure cannot be recast as fraud without proof of actual fraud. Summary judgment is appropriate where the challenge has no real prospect of success. A without-notice freezing injunction requires frank disclosure, a proper evidential basis for risk of dissipation and a properly justified scope.

The claimant sought to set aside a 2002 ancillary relief judgment concerning the parties’ financial affairs. She alleged that her former husband had obtained it through fraudulent misrepresentations and material non-disclosures concerning bank accounts, business valuation, a burglary, tax investigations, expenditure, stock and subsequent trading.

The defendant applied for strike-out or summary judgment. The claimant also sought transfer to the Family Division and disclosure from the Metropolitan Police. She had earlier obtained a without-notice freezing injunction, later varied and discharged by consent. The central issue was whether the pleaded matters disclosed a viable fraud-based challenge to the earlier judgment.

1. Summary judgment. Summary judgment was granted for the defendant. Although the particulars of claim disclosed the elements of a possible cause of action on their face, the claimant had no real prospect of setting aside the earlier order.
2. Applicable test. The principles summarised in Kuwait Airways Corporation v Iraq Airways Corporation [2003] EWHC 31 were adopted. A judgment obtained by perjury is obtained by fraud for this purpose. The challenge must rely on new evidence which was unavailable at the original hearing and could not reasonably have been obtained then. Fraud or perjury must be shown to be distinctly more probable than not. The evidence must be material in the stronger sense that it entirely changes the aspect of the case. That test was supported by Hunter v Chief Constable of West Midlands [1982] Appeal Cases 529.
3. Non-disclosure. A family-law application based on failure of full and frank disclosure was distinct from an action to set aside a judgment for fraud. Livesey v Jenkins [1985] AC 424 showed that only non-disclosure which produced a substantially different order could justify setting aside an order.
4. Evidence. The alleged undisclosed account had in substance been disclosed and was irrelevant to the valuation adopted. The alleged burglary had been considered in the original proceedings and had not affected the judge’s rejection of the claimant’s valuation evidence. The remaining allegations were unsupported, previously available, immaterial or incapable of showing that the original decision would have been substantially different.
5. Other applications and costs. Transfer to the Family Division and police disclosure were refused. The freezing injunction application lacked proper justification and involved serious failures of frankness, including inaccurate statements about the earlier costs order and the significance of the evidence. The claimant was ordered to pay the defendant’s costs on the indemnity basis. An inquiry was directed into damage suffered by the defendant and Interchange.

First-instance judgment. No appeal from the earlier ancillary relief judgment or order was stated.