Dale v Banga & Ors

Where fresh evidence allegedly shows that a judgment was obtained by fraud, an appellate court should order a retrial only if the fraud is admitted or incontrovertible. Otherwise, the fraud must first be determined.

Before referring that issue to the lower court, the appellate court must be satisfied that the evidence is capable of showing conscious and deliberate dishonesty which caused the judgment, attributable to a party or suborned or knowingly relied upon by that party. Evidence merely undermining a witness’s general credibility may be insufficient, particularly where it concerns unrelated conduct after the relevant events.

Even when this threshold is met, referral within the existing proceedings is discretionary. The court must consider whether that course is expedient, convenient and proportionate in the circumstances.

The appellant and the first respondent were siblings engaged in probate litigation concerning their father’s estate. A deputy High Court judge held that a 2013 will was invalid but that a letter had validly revoked an earlier 2012 will. The deceased therefore died intestate. The judge also expressed a non-binding conclusion that the earlier will had not been procured by undue influence.

After trial, one attesting witness was convicted of unrelated dishonesty offences committed after the alleged attestation. The appellant also learned that the first respondent had been prosecuted for attempting to pervert the course of justice through allegedly false invoices, although he was acquitted after the Crown offered no evidence.

Having obtained permission to appeal and rely on this evidence, the appellant alleged that the revocation letter was forged and that the trial judge had been deliberately misled. She sought referral of the fraud issue to the lower court and a conditional order admitting the earlier will to probate if fraud were proved. The central questions were whether the evidence justified trial of the alleged fraud and, if so, whether referral within the existing proceedings was appropriate.

1. Appeal dismissed. Evidence that testimony was mistaken, or even that a witness committed perjury, does not by itself justify setting aside a judgment. There must be conscious and deliberate dishonesty which was an operative cause of the judgment. The dishonesty must be that of a party, or have been suborned or knowingly relied upon by a party: Odyssey Re (London) Ltd v OIC Run Off Ltd [2000] EWCA Civ 71, Cinpres Gas Injection Ltd v Melea Ltd [2008] EWCA Civ 9 and Takhar v Gracefield Developments Ltd [2020] AC 450 applied.

2. Where fraud is admitted or incontrovertibly established by fresh evidence, the Court of Appeal may allow the appeal and order a retrial. Otherwise, the fraud must first be determined. It may be determined in a separate action or, following the pragmatic procedure adopted in Noble v Owens, by referral to the lower court within the existing proceedings.

3. Before making such a referral, the appellate court must decide whether the fresh evidence is capable of showing that the respondents deliberately misled the trial judge and that the judgment may have been obtained by fraud. The evidence must justify pleading fraud and be capable of establishing causative, conscious and deliberate dishonesty attributable to, suborned by, or knowingly relied upon by a party. If this threshold is met, referral remains discretionary under rule 52.20(2)(b) of the Civil Procedure Rules 1998.

4. The threshold was not met. The evidence concerned subsequent, unrelated misconduct and depended upon inferences about the witnesses’ credibility and propensity. It did not directly address the creation or attestation of the revocation letter, show that the attesting witness committed perjury, or show that any perjury was procured or knowingly relied upon by the first respondent. The respondent’s acquittal also meant that the alleged production of false invoices would itself have to be proved.

5. In any event, referral would not have been expedient, convenient or proportionate. The original judge had retired, a new judge would have to begin again, and the wide-ranging allegations would create satellite litigation without material savings of time or cost. The attempt to preserve the original judge’s non-binding conclusion on undue influence added further complexity. The court expressed no opinion on whether such a conditional order was legally available.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court declined to refer the alleged fraud to the lower court because the fresh evidence did not meet the threshold for trial of that issue and referral would in any event have been inappropriate.

2. High Court, Chancery Division, Birmingham District Registry: His Honour Judge Simon Barker QC, sitting as a deputy High Court judge, held that the 2013 will was invalid, that the letter revoking the November 2012 will was validly executed and attested, and that the deceased died intestate. He also gave a non-binding conclusion that the November 2012 will had not been procured by undue influence. No citation is stated in the judgment.