Ghassemian v Tigris Industries Inc

The principle of finality in litigation has real and independent value, although it is not absolute. A party cannot use a fresh appeal against a consequential order as a technical device to revisit issues already determined, where permission to appeal and an application to reopen have been refused. Exceptional residual jurisdiction is now reflected in Civil Procedure Rules 1998, rule 52.17, and is reserved for cases for which that rule is insufficient. Where fraud is alleged to have procured a judgment, the appropriate course will ordinarily be a separate action to set it aside, unless the fraud issue can suitably be determined within an existing appeal. An appeal on findings of fact may have a real prospect of success where the appellate court is in as good a position as the trial judge to assess written material.

The judgment concerned three related applications by Mrs Sartipy and Mr Langroody arising from costs and enforcement orders made after Land Registry adjudication proceedings. In the first matter, Mrs Sartipy sought to appeal out of time against a final charging order in order to revisit whether she had authorised her son to act and whether identification evidence was reliable. Earlier permission to appeal and an application to reopen the appeal had been refused.

In the second matter, Mrs Sartipy challenged findings that documents relied upon to establish beneficial ownership were sham or non-genuine. The central issues were the availability of a further appeal, the effect of alleged fraud, and whether the proposed factual and legal grounds had a real prospect of success.

1. Permission to appeal in CH/2013/0173 was refused and the application to extend time was refused. The proposed appeal was an attempt to revisit matters determined by the Deputy Master, Spencer J and Nicol J. Finality in litigation was a material component of justice.

2. The residual jurisdiction identified in Taylor v Lawrence [2002] EWCA Civ 90 continued to exist, but was now embodied in rule 52.17 of the Civil Procedure Rules 1998. It should be reserved for the most extraordinary cases for which rule 52.17 was insufficient. An allegation that a judgment was obtained by fraud could instead be pursued in a carefully structured action to set aside the judgment.

3. The procedure adopted in Noble v Owens [2010] EWCA Civ 224, whereby a fraud issue might be tried within an appeal, was not appropriate in this case. The impugned identification evidence was not essential to the Deputy Master’s principal conclusion, which had independent documentary foundations.

4. The principles considered in Hackney London Borough Council v Findlay [2011] EWCA Civ 8 and Kojima v HSB Bank [2011] EWHC 611 did not produce a different result under rule 3.7.

5. In CH/2013/0147, time was extended and permission to appeal was granted. The proposed challenge to the burden of proof and the procedural treatment of the alleged sham raised arguable points. An appeal on fact is not governed by the approach applicable to reviewing discretion. As explained in Manning v Stylianou [2006] EWCA Civ 1655, deference to factual findings rests principally on the trial judge’s advantage from seeing witnesses and the trial process. That advantage was absent where the decision was based wholly on written material.

   The stay of enforcement was extended until disposal of that appeal, subject to prosecution with due diligence. The third appeal was given further procedural time and was directed, if possible, to be heard with CH/2013/0147.

The judgment itself records earlier procedural decisions in the same litigation:

• Spencer J refused permission to appeal against the Deputy Master’s charging-order decision.
• Nicol J refused an application under Civil Procedure Rules 1998, rule 52.17, to reopen that appeal.
• High Court (Chancery Division) refused a further out-of-time appeal in CH/2013/0173, but granted an extension of time and permission to appeal in CH/2013/0147.