Bishop v Chhokar

Reopening a final appeal or a final refusal of permission under Civil Procedure Rules 1998 Pt 52.17 requires three cumulative conditions: reopening must be necessary to avoid real injustice, the circumstances must be exceptional and appropriate, and no alternative effective remedy may exist. An allegation of fraud does not automatically bar the jurisdiction. A fresh action to impeach the original judgment may be the conventional remedy, but it will not exclude reopening if jurisdictional or procedural obstacles make it ineffective. Where the conditions are met, the Court of Appeal will ordinarily reopen the matter, subject to any residual discretion.

The Bishops brought a county court claim against Mr Chhokar concerning rent, refurbishment costs and related matters. HHJ Knight QC dismissed their main claim on the evidence, which involved significant credibility issues. Jacob LJ refused permission to appeal on 30 November 2010.

In later conversion proceedings, HHJ Hammerton QC heard evidence that Mr Chhokar had lied in the earlier trial. Mr Bishop then applied under Civil Procedure Rules 1998 Pt 52.17 to reopen the refusal of permission. The central issue was whether a fresh action alleging fraud constituted an alternative effective remedy preventing the Court of Appeal from reopening the matter.

Application granted. The Court of Appeal set aside Jacob LJ’s order refusing permission to appeal and granted permission to appeal against HHJ Knight QC’s judgment and order. The court did not determine the merits of that appeal or whether a retrial should follow.

1. The requirements in Civil Procedure Rules 1998 Pt 52.17(1) were cumulative. Reopening had to be necessary to avoid real injustice, the circumstances had to be exceptional and make reopening appropriate, and there had to be no alternative effective remedy.
2. The first two requirements were satisfied. Mr Chhokar had admitted lying in the earlier proceedings, and HHJ Knight’s decision had depended substantially on the credibility of the witnesses.
3. The court rejected the suggestion that an allegation of fraud created an absolute bar to relying on the reopening jurisdiction. Following the analysis in Noble v Owens [2010] 1 WLR 2491, an appeal and retrial based on fresh evidence of fraud could proceed where the fraud was admitted or incontrovertible; otherwise the fraud ordinarily had to be determined before the judgment was set aside.
4. A fresh action to impeach a judgment obtained by fraud was the conventional remedy under Flower v Lloyd (No 1) (1877) 6 Ch D 297 and Jonesco v Beard [1930] AC 298. However, that route only constituted an alternative effective remedy if it could realistically provide relief in the circumstances.
5. There were serious jurisdictional and procedural difficulties. The County Court lacked inherent jurisdiction to set aside its own final orders, and it was doubtful whether Part II of the County Courts Act 1984 authorised a free-standing fraud claim. CPR Pt 3.1(7) could not provide the original jurisdiction, and it was doubtful whether CPR Pt 54.2(c) was intended for fresh proceedings to rescind a County Court judgment for fraud. The court therefore concluded that no effective alternative remedy existed.
6. Where the requirements were fulfilled, the Court of Appeal was almost bound to reopen the matter, although a residual discretion to refuse might remain. The further issues, including the consequences of any successful appeal and the practicality of a retrial, were reserved for the appeal itself. McCombe LJ and Christopher Clarke LJ agreed.

1. Court of Appeal (Civil Division): reopened the final refusal of permission to appeal, set it aside, and granted permission to appeal against HHJ Knight QC’s judgment and order.
2. Court of Appeal (Civil Division): on 30 November 2010, Jacob LJ refused permission to appeal and regarded the application as totally without merit.
3. Central London Civil Justice Centre: on 20 July 2010, HHJ Knight QC dismissed the Bishops’ main claim and allowed Mr Chhokar’s counterclaim in principle.