Dale v Banga and others

This appeal concerns when an appellate court should permit fresh evidence that alleges the judgment below was obtained by fraud, where the alleged dishonest conduct post-dates the events in issue and is tangential to the primary facts. The court applied the governing principles that a judgment will be set aside for fraud only where there is conscious and deliberate dishonesty by a party (or suborned by or knowingly relied upon by a party) which was material and causative of the impugned judgment, and that fresh evidence must be such that it would have entirely changed the way the first court approached its decision (principles discussed with reference to Takhar and earlier authorities).

The fresh evidence consisted principally of later criminal convictions and investigations concerning one attesting witness and associates of the successful party. The Court of Appeal held that this evidence was too remote and tangential, post-dated the events in issue, and required inferences about propensity and credibility; it was insufficient to meet the threshold for showing that the first-instance judgment had been obtained by fraud. The court therefore declined to remit the fraud issue to the lower court and refused the conditional relief sought to convert the trial judge's obiter on undue influence into a binding decision admitting an earlier will to probate.

Background and procedural posture.

The appeal arises from contested wills and a letter of revocation (the "Letter"). The trial judge (His Honour Judge Simon Barker QC, sitting as a deputy High Court judge) held the Letter to be duly witnessed and valid and concluded that the deceased died intestate; the judge also recorded a non-binding conclusion rejecting undue influence in relation to an earlier will. Judgment was handed down on 22 November 2016 and a declaration of intestacy was made on 26 January 2017. Permission to appeal, an extension of time and permission to rely on fresh evidence were granted by Lewison LJ on 17 June 2020.

Nature of the application and relief sought.

• The appellant sought to rely on fresh evidence (chiefly subsequent criminal investigations and convictions) to contend that attendant witnesses and the respondent had committed or been involved in dishonest conduct which showed the trial judge had been deliberately misled, and so to have the earlier judgment set aside or remitted for retrial.
• She further sought a direction to remit the fraud issue to the lower court and, conditionally if fraud were proved, an order setting aside the intestacy declaration and admitting the November 2012 will to probate by converting the trial judge's obiter as to undue influence into a binding decision.

Issues framed by the court.

• Whether the fresh evidence was capable of showing the trial judge had been deliberately misled such that the judgment was obtained by fraud.
• If the threshold were met, whether the fraud issue should be remitted to the lower court within the same proceedings or whether fresh proceedings should be brought to set the judgment aside.
• Whether the court could or should convert the trial judge's non-binding obiter on undue influence into a binding order admitting the earlier will, conditional on proof of fraud.

Court's reasoning and decision.

The court reiterated the established principles that setting aside a judgment for fraud requires conscious and deliberate dishonesty by a party (or suborned by/knowingly relied upon by a party) which was material and causative of the judgment (principles drawn from Takhar, Odyssey Re and related authorities). Applying the threshold announced in Noble v Owens, the court held that the newly adduced evidence — convictions and investigative material arising after the date of the Letter and involving separate dishonest activity — was tangential, post-dated the events in issue, and did not directly contradict the primary factual matrix before the trial judge. It therefore could not be said to be capable of showing that the judgment had been obtained by fraud. Even if the threshold had been met, the court would have declined to remit the matter because the trial judge had retired, the pleaded fraud case was wide-ranging and likely to produce satellite litigation, and it would not be appropriate to convert obiter into a binding determination within these proceedings. The appeal was therefore dismissed.

The appeal is dismissed. The Court found the fresh evidence (post-dating the events in issue and consisting largely of later criminal convictions and related material) to be too remote and tangential to be capable of showing that the first-instance judgment was obtained by fraud. The threshold for a fraud-based rescission action — conscious and deliberate dishonesty by a party which was material and causative of the judgment — was not met, and the court declined to remit the fraud issue or to convert the trial judge's non-binding obiter into an operative order admitting the earlier will.

Appeal from the Birmingham District Registry (Chancery Division), His Honour Judge Simon Barker QC (sitting as a Deputy High Court Judge) (B30BM185). Trial judgment given 22 November 2016; declaration of intestacy made 26 January 2017. Permission to appeal, extension of time and permission to rely on fresh evidence granted by Lewison LJ by order dated 17 June 2020. Court of Appeal hearing 3 February 2021; judgment handed down 24 February 2021 ([2021] EWCA Civ 240).