BC Penthouse Limited v Sheikha Hind Salim Homoud Al-Jaber Al-Sabah

A final order may be revisited under Civil Procedure Rules 1998, rule 3.1(7), only within the limits of that jurisdiction. A subsequent change of circumstances or an earlier misstatement will not ordinarily justify setting aside a final order where the public interest in finality applies.

A judgment obtained by fraud may be set aside only where there was conscious and deliberate dishonesty concerning relevant evidence, conduct, a statement or concealment, and that dishonesty was material and causative of the judgment in the terms made. A change in the person representing an estate is immaterial where it does not affect the merits of the underlying claim or the judgment debtor’s liability.

BC Penthouse Limited applied to set aside provisions of an order made against it by Peter Smith J at a 2015 case management hearing. The order required monies held by its solicitors to be paid to Sheikha Hind Salim Homoud Al-Jaber Al-Sabah for the benefit of her late father’s estate and required BCP to pay costs.

BCP relied on the later setting aside of a probate order concerning Sheikha Hind’s authority to represent the estate, and alleged that she had misrepresented her intention to collect and apply monies for the beneficiaries. The application was made under rule 3.1(7) and, alternatively, the inherent jurisdiction to set aside a judgment procured by fraud. The central issues were whether the 2015 order was final and whether the subsequent events or alleged misrepresentations were legally material.

1. Application dismissed. The provisions of the November 2015 Order concerning BCP were a final order. The order gave judgment against BCP under CPR 12, alternatively CPR 24, directed payment of the funds held by its solicitors, awarded costs, and brought BCP’s involvement in the proceedings to an end.
2. Under CPR 3.1(7), the usual grounds for reconsidering an order include a material change of circumstances or the fact that the original decision was based on facts misstated innocently or otherwise. For a final order, those considerations are generally displaced by the public interest in finality, subject to the qualified right of appeal. The authorities did not support setting aside this final order on either basis.
3. The order against BCP was not conditional on a later determination of Mr Al Baho’s liability. The judge who made it held that Sheikha Hind was entitled to judgment against BCP and directed payment of the monies for the benefit of the estate.
4. The inherent jurisdiction to set aside a judgment procured by fraud requires conscious and deliberate dishonesty in relation to relevant evidence, conduct, a statement or concealment. The dishonesty must be material and causative: the fresh evidence must show that the impugned matter was an operative cause of the judgment made, assessed by its effect on the original decision rather than on the result of a hypothetical retrial on honest evidence.
5. The later change in the person recognised as representing the estate did not affect the merits of the claim against BCP or the basis of the 2015 order. It was therefore immaterial. Any failure by Sheikha Hind to account for or apply monies as required by her duties could give rise to claims by the current representative, but did not justify setting aside the judgment against BCP.
6. The alleged intention not to collect or apply monies for the beneficiaries likewise did not alter the analysis. Sheikha Hind remained obliged to deal with the funds in accordance with her duties, and the matters relied on were not material to the judgment against BCP.