Ras Al Khaimah Investment Authority v Farhad Azima

Permission to appeal may be granted where an appeal has a real prospect of success or there is another compelling reason for it to be heard. The High Court retains inherent jurisdiction to hear a claim seeking to set aside a judgment for fraud, including where the judgment was made by a higher court. If such a claim could properly be brought in fresh proceedings, it may in principle be added to existing proceedings where this produces sound case-management advantages. Questions about whether a previous appellate judgment finally excluded a later fraud challenge may themselves justify permission to appeal, particularly where new evidence is said to reveal pervasive dishonesty affecting the original judgment. The finality principle does not necessarily prevail over the principle that fraud unravels judgments.

This was a consequentials hearing following the court’s judgment granting Mr Azima permission to bring an additional counterclaim against Ras Al Khaimah Investment Authority seeking to set aside for fraud an earlier judgment in RAKIA’s favour. The proceedings followed a remittal by the Court of Appeal for retrial of the hacking counterclaim, while directing that the main judgment should stand. The additional defendants sought permission to appeal on jurisdiction and abuse-of-process grounds. They did not challenge the finding that the new evidence gave Mr Azima a real prospect of proving conscious and deliberate dishonesty and that the fraud was material to the original judgment.

The central questions were whether the High Court had jurisdiction to add the fraud claim and whether doing so was an abuse of process in light of the earlier appellate decisions.

1. Permission to appeal was refused on jurisdiction. Under CPR 52.6, permission requires a real prospect of success or some other compelling reason. The High Court had inherent jurisdiction to hear a claim to set aside a judgment for fraud, including a judgment of a higher court. Since fresh proceedings against RAKIA could not be struck out for want of jurisdiction, the same claim could be added to the existing counterclaim. The possibility of procedural hurdles or an application under CPR Rule 52.30 did not remove that jurisdiction.

2. Permission to appeal was granted on abuse of process. The proposed challenge raised both relitigation and collateral-attack concerns, but both depended substantially on the proper interpretation of the Court of Appeal’s earlier judgment and the extent to which it excluded a later challenge based on significant new evidence.

3. The new evidence was materially different in scale from the evidence previously considered. It potentially established pervasive dishonesty affecting not only the hacking issue but also the fraudulent misrepresentation and conspiracy claims underlying the original judgment. The judge considered that the fraud-unravels-all principle had prevailed over finality at first instance, but accepted that the Court of Appeal should determine whether that interpretation of its own judgment was correct.

4. The collateral-attack argument added little to the relitigation argument. The agreed directions and trial timetable remained in force, and the parties were urged to obtain an early appeal hearing.

• Court of Appeal — [2021] EWCA Civ 349: remitted the hacking counterclaim for retrial but directed that the main judgment in RAKIA’s favour should stand.
• High Court (Business List) — The court later granted permission to bring an additional fraud counterclaim and, in this judgment, refused permission to appeal on jurisdiction but granted it on abuse of process.