Garnham v Millar & Ors

On a renewed application for permission to appeal from summary judgment, the applicant must show a real prospect of success. A challenge to a settlement based on an allegedly forged or concealed recording requires more than a fanciful evidential case, proof that the recording was relied on when settling, and proof that the party would otherwise have refused to settle. Alleged non-disclosure is insufficient without a causal connection to the settlement. Knowledge of the recording, an opportunity to investigate it, and independent legal advice may defeat that connection. The need for finality in litigation strongly militates against attempts to re-litigate claims resolved by a court or by consent.

The appellant had entered into a Tomlin order compromising earlier proceedings brought by Iris Wilkins concerning transactions involving her property and company interests. He later alleged that the settlement had been procured by fraud, including the concealment and fabrication of a recording. Proudman J granted the defendants summary judgment on 8 October 2012, holding that the claim had no realistic prospect of success. The appellant renewed his application for permission to appeal and also sought a stay, a transcript, permission to adduce fresh expert evidence and further directions. The central issue was whether the alleged defects in the recording and its disclosure could provide a real prospect of setting aside the settlement.

Disposition. Lord Justice Vos dismissed the renewed oral application for permission to appeal. The applications for a stay, a transcript, permission to adduce fresh evidence and further directions were also dismissed.

1. The appellant could show a real prospect of a successful appeal only if he could establish three linked matters: that he relied on the genuineness of the recording when settling; that he would not have settled without that reliance; and that there was more than a fanciful case that the recording had been forged or fabricated.
2. The alleged inconsistencies concerning the recording had been considered by Proudman J. Her conclusion that the recording supported the defendants’ case was justified. The evidence did not provide a credible foundation for alleging forgery, and the additional expert material added little.
3. Although the recording ought to have been disclosed at the outset, even fraudulent non-disclosure would not have caused the appellant to enter into the settlement. He knew that the recording existed, knew that he had not yet been able fully to assess its contents or genuineness, and nevertheless chose to settle with the benefit of legal advice. The necessary causal connection was therefore absent.
4. Proudman J had applied the correct legal principles and had been entitled to grant summary judgment. The appellant’s subsequent performance of the Tomlin order further supported the conclusion that he had affirmed and ratified the settlement.
5. The court emphasised the importance of finality in litigation and warned that pursuing substantially identical proceedings could lead to an application for a civil restraint order.

• Court of Appeal (Civil Division): On 22 July 2014, Lord Justice Vos dismissed the renewed application for permission to appeal and the associated applications.
• High Court, Chancery Division: Proudman J granted the defendants summary judgment on 8 October 2012 and dismissed the appellant’s applications.
• High Court: Morgan J dismissed an earlier application to set aside the Tomlin order on 11 October 2011.