Campbell v Banks & Ors

An earlier judgment cannot be set aside merely because a party later identifies new evidence, better arguments, legal errors, or evidence which opposing lawyers did not highlight. A fraud-based challenge requires a properly particularised case that the judgment was procured by actual fraud. The relevant issue is whether the pleaded case could withstand a challenge under CPR 3.4(2). Lawyers are required to meet the case advanced by their opponents; failure to anticipate or develop an unargued case is not fraudulent concealment. An easement is annexed to an estate in land, rather than to the physical land itself, subject to the possible effect of merger. Where an easement is claimed under section 62 of the Law of Property Act 1925, the evidence of qualifying use at the relevant acquisition date remains decisive.

The Campbells applied without notice to set aside an earlier judgment concerning rights of way over Headbolt Lane and Carr Lane. They alleged that the judgment, which had been adverse to them, was obtained by fraud and perjury by the opposing parties and their legal representatives. The original proceedings had been decided at first instance, upheld on appeal, and an application to appeal to the Supreme Court had not been entertained.

The application identified eight alleged forms of fraud, including alleged concealment of conveyancing documents, historical land use, evidence concerning gates, and material relating to a claimed public highway. The central question was whether the Campbells could plead a sufficiently particularised fraud case capable of surviving a challenge under CPR 3.4(2).

1. Application dismissed. No order could be made granting substantive relief on the without-notice application in the absence of the proposed respondents. Having nevertheless considered the allegations in detail, the court held that they did not justify directions for an inter partes hearing.
2. A fraud-based challenge to a judgment requires more than the discovery of additional evidence, a new legal argument, an alleged judicial mistake, or a party’s failure to present its case effectively. The Campbells had one opportunity to advance their case. Their failure to identify, plead, investigate, cross-examine upon, or argue particular points did not convert the conduct of opposing lawyers into fraudulent concealment.
3. The alleged omission of the DEFRA agreement was legally irrelevant to the original issue, which was whether the Campbells had acquired rights of way. The 1953 conveyance containing the material “occupation road” wording was before the trial court, and the wording had been expressly considered. It operated as a limitation relating to existing liabilities and associated rights, not as an independent grant of a right of way over Headbolt Lane.
4. The subdivision principle did not establish fraud. Although the principle was undoubted, its application was doubtful because the relevant vendors owned the tracks and therefore could not themselves have enjoyed easements over their own land. Use by tenants might have assisted a section 62 argument, but did not establish that the freehold owners had an easement which passed with the conveyances. In any event, the evidence of use was insufficient.
5. The Court of Appeal’s possible mistake in recounting the conveyancing history, even if established, would not show that its judgment was procured by fraud. The operative question under section 62 remained the evidence of use when the relevant freehold interests were acquired.

The court warned that renewed proceedings seeking to reopen the earlier litigation or allege dishonesty could lead to a civil restraint order.

The original rights-of-way proceedings were decided adversely to the Campbells at first instance before David Richards J. The decision was upheld by the Court of Appeal. The Supreme Court declined to entertain a further appeal. The present application sought to set aside the earlier judgment on allegations of fraud and perjury.