Coghlan v Bailey & Anor

To set aside a judgment for fraud, the claimant must show that newly discovered evidence, which could not reasonably have been produced at the original trial, would probably have affected the result. The alleged fraud need not have been the sole cause of the judgment, but it must have made a substantial contribution to the decision. The relevant question is how the trial judge’s conclusions would have been affected if the concealed information had been disclosed, not whether the witness’s general credibility would have been reduced. A passage in an earlier case suggesting a broader approach was treated as fact-specific rather than as a general principle of law. Summary judgment remains appropriate where the claim has no real prospect of success, notwithstanding a public interest in investigating alleged dishonesty by a public official.

The claimant appealed against Master Yoxall’s order granting summary judgment to the defendants on a claim seeking to set aside a recovery order obtained in earlier civil-recovery proceedings. The underlying judgment was Serious Organised Crime Agency v Coghlan [2012] EWHC 429 (QB).

The claimant alleged that an investigating officer had made fraudulent or misleading statements concerning the source of a property-purchase deposit, rent payments and the destination of sale proceeds. The Master accepted that the claimant might establish recklessness concerning the deposit, but held that the alleged matters could not have affected the earlier judgment sufficiently to justify a retrial. The central issues were the applicable test for setting aside a judgment for fraud, the materiality of the alleged misrepresentations, and whether there was any compelling reason for a trial.

1. Appeal dismissed. The Master had correctly concluded that the claimant had no real prospect of establishing that the alleged misrepresentations probably affected the earlier judgment. The appeal was one by way of review, and the Master had not erred in law or been wrong within the meaning of CPR r.52.11.
2. In an action to set aside a judgment for fraud, the question is how the trial judge’s conclusions would have been affected if the allegedly concealed information had been given to that judge. The claimant need not show that the fraud was the sole or exclusive cause of the judgment, but must show that it substantially contributed to the decision. The inquiry concerns the impact of the concealed information, rather than the general unreliability of the witness.
3. The true source of the deposit was consistent with the case accepted by the earlier judge and was not crucial to identifying the property as proceeds of unlawful conduct. The rent material was not fraudulently suppressed because its existence and contents had been referred to at trial. The alleged information about the sale proceeds was neither shown to have been in the investigator’s possession nor relied upon in the earlier judgment.
4. The passage in Meek v Fleming [1961] 2 QB 36 concerning deception which may have tipped the scale was treated as a statement directed to the facts of that case, not as a general legal principle. A similar approach might be appropriate in another case, but it could not displace the materiality test applicable here.
5. The public interest in examining allegations against an official of a public authority was engaged, but it did not create an automatic right to a trial where the claimant could obtain no relief. That interest had to be balanced against the public interest in finality of litigation. There was no other compelling reason for a trial.

1. High Court (Queen’s Bench Division): Appeal from Master Yoxall’s summary judgment order dismissed.
2. Earlier High Court proceedings: The recovery order was made in Serious Organised Crime Agency v Coghlan [2012] EWHC 429 (QB).
3. Court of Appeal: Hallett LJ refused permission to appeal from the earlier judgment on 28 September 2012, describing the application as totally without merit.