Davies & Ors v Morris

On an application to strike out a claim seeking to set aside a judgment allegedly procured by fraud, the relevant question is whether there is a real danger that the fraud influenced the outcome. The fresh material need not be shown to have been determinative. It is sufficient that, if established, it would have required the original court to approach and analyse the decision in a materially different way. The effect of the dishonest conduct on the reliability of the witness and the significance of the suppressed evidence are relevant. Where those matters give the claim realistic prospects of success, summary disposal is inappropriate and the claim should proceed to trial.

The claimants sought rescission of an earlier probate judgment determining that Owen Robert Treharne Davies had retained his domicile of origin in England and Wales and had not acquired a domicile of choice in Belgium. They alleged that the defendant had knowingly misstated the extent of Owen’s Belgian assets and possessions, thereby misleading the court on a material issue.

The defendant applied to strike out the claim or obtain judgment under Part 24, arguing that the alleged dishonesty could not realistically have affected the earlier decision. The central issue was the legal test for setting aside a judgment allegedly obtained by fraudulent evidence and whether that test was met on the pleaded and evidential case.

1. Applicable test. The court declined to resolve the wider conflict between the authorities. For the purposes of the interlocutory application, it treated the approach in Hamilton v Al Fayed [2000] EWCA Civ 3012 as applicable. The question was whether there was a real danger that the fraudulent conduct had influenced the outcome. If so, a retrial should normally be ordered; if not, the decision should stand.
2. Materiality and causation. The alleged suppression of the extent and value of Owen’s Belgian chattels would have replaced an apparently adverse factor in the domicile analysis with evidence suggesting that Owen had put down substantial roots in Belgium. It could also have affected the assessment of the Belgian property, the weight given to other factors, and the defendant’s credibility as a source of evidence about Owen’s intentions. The material therefore need not have been determinative. It was enough that it might have caused the original judge to undertake an entirely different analysis.
3. Application to the evidence. There was powerful evidence that the defendant’s statements were knowingly and materially untrue. The alleged dishonesty was directly connected with the issue determined in the earlier proceedings and could realistically have influenced the outcome. The defendant could not safely establish at this stage that the suppressed matters were immaterial.
4. Disposition. The claim had realistic prospects of success. The court refused to strike it out and refused to give Part 24 judgment for the defendant. The claim was to proceed to trial, and the defendant’s application was dismissed.

The judgment concerns a first-instance application in proceedings seeking to set aside an earlier probate judgment. No appellate history of the present proceedings was stated.