Close Brothers Limited v Rooster Trucking Company Limited & Anor

A final judgment will ordinarily be reopened only in exceptional circumstances. The availability of better evidence after judgment is insufficient where the relevant issue was previously raised, determined and reviewed on appeal. A fraud challenge requires a properly particularised case with a reasonable prospect of success. The alleged dishonesty must be conscious and deliberate, material to the judgment, and causative of the result. Where those requirements are not met, enforcement of a charging order founded on the judgment should not be stayed.

Close Brothers Limited obtained a default judgment against David William Taylor in 2019 and subsequently obtained a final charging order over his residential property. Applications to set aside the judgment and related orders were dismissed by DJ Richmond. Permission to appeal was refused by Snowden J on paper and by Fancourt J after an oral hearing.

Taylor later sought a stay of enforcement of the charging order, relying on further evidence said to show that personal guarantees had been forged. The central issue was whether the new evidence provided a sufficient basis to reopen the final judgment, or to justify staying enforcement pending a proposed fraud claim.

1. The application for a stay of enforcement of the final charging order was dismissed. The charging order was based on a judgment which had already been fully reviewed, and the available appeal routes had been exhausted.

2. Finality of litigation is an important principle. Once a matter has been determined through a proper court process and the avenues of appeal have been exhausted, a party cannot ordinarily return with better evidence in the hope of obtaining a different result.

3. The jurisdiction under CPR 3.1(7) to vary or revoke orders is constrained and is exercisable only in exceptional circumstances. The potentially relevant exception here was a judgment obtained by fraud.

4. Applying the principles identified in Takhar v Gracefield Developments Limited & Ors [2020] AC 450, adopting the formulation in Royal Bank of Scotland Plc v Highland Financial Partners LP [2013] EWCA Civ 328 at 106, the alleged dishonesty must be conscious and deliberate; it must be material in the sense that the fresh evidence was an operative cause of the judgment; and it must be causative, such that the fresh evidence would have entirely changed the first court’s approach and decision.

5. The further handwriting, witness and opinion evidence did not establish a reasonable prospect of a properly founded fraud challenge. The alleged forgery had already been raised in substance before the earlier courts. The later material was an attempt to strengthen a case previously considered, rather than evidence discovering fraud in the procurement of the judgment. The absence of a new, properly particularised claim and even a draft pleading was an additional discretionary reason not to grant a stay.

The judgment itself was a first-instance decision on an application concerning enforcement of a charging order. It records that:

• High Court: DJ Richmond dismissed the defendants’ application to set aside the relevant judgments.
• High Court: Snowden J refused permission to appeal on paper. Fancourt J refused renewed permission to appeal after an oral hearing.
• High Court (Business List): the present application for a stay of enforcement was dismissed.