Winston Finzi v Jamaican Redevelopment Foundation Inc and others (Jamaica)

A claimant seeking to set aside a judgment or litigation settlement for fraud bears the burden of showing that the supporting evidence was obtained after the judgment or settlement. If the evidence was already known, the claimant must explain its earlier non-deployment. The later claim will probably be an abuse of process unless a good reason prevented or significantly impeded its use.

This rule does not impose a reasonable diligence requirement on genuinely new evidence. It applies the wider public interest in finality and protects parties from wasteful, oppressive and duplicative litigation. The apparent strength or weakness of the fraud allegation may also be relevant, without conducting a mini-trial.

The appellant sought to reopen extensive litigation with the first respondent by alleging that earlier judgments and a 2012 settlement had been procured by fraud. Laing J granted summary judgment dismissing the action as an abuse of process. He found that the appellant possessed all the information supporting the alleged fraud before entering the settlement.

The Court of Appeal of Jamaica refused permission to appeal. The Privy Council granted leave after the United Kingdom Supreme Court had rejected a reasonable diligence requirement in Takhar v Gracefield Developments Ltd [2019] UKSC 13.

The central issue was whether a fraud claim based on material already known, but not deployed, in the earlier proceedings was nevertheless abusive.

1. Appeal dismissed. The judge made no relevant error of law. There was no real prospect of disturbing his assessment that the action was an abuse of process: paras 75–77.
2. The extended principle derived from Henderson v Henderson (1843) 3 Hare 100 prevents matters which could and should have been raised in earlier proceedings from being advanced later. Whether a matter should have been raised requires a broad, merits-based assessment of all public and private interests. The principle applies whether the earlier litigation ended by judgment or settlement: paras 32–33.
3. Takhar v Gracefield Developments Ltd [2019] UKSC 13 establishes that a claimant relying on genuinely new evidence of fraud need not show that reasonable diligence would not have uncovered it earlier. It did not decide what constitutes fresh evidence or whether a claim based solely on information already possessed is abusive: paras 38–43 and 59–62.
4. The Board declined to adopt the interpretation placed on Lord Sumption’s obiter observations in Takhar by the Court of Appeal in Park v CNH Industrial Capital Europe Ltd [2021] EWCA Civ 1766. Limiting abuse to cases where a claimant deliberately chose not to investigate suspected fraud or rely on known fraud gives insufficient weight to the public interest in finality: paras 59–65.
5. Where evidence not adduced earlier is relied on to allege fraud, the claimant must establish that it was obtained after the judgment or settlement. If it was already known, the claimant must prove the matters explaining its non-deployment. Unless a good reason prevented or significantly impeded its earlier use, the new claim is likely to be abusive. This is principally an objective inquiry. The apparent strength or weakness of the fraud case may also be relevant, but the court should avoid a mini-trial: paras 69–73.
6. The appellant possessed all the relied-on information at least a year before the settlement. He was legally represented, had ample opportunity to deploy it and offered no explanation of merit for failing to do so. Nothing before the Board suggested substance in the allegations: paras 47–49 and 75–76.

1. Privy Council: Dismissed the appeal from the refusal of permission to appeal and upheld the summary dismissal of the action as an abuse of process: [2023] UKPC 29.
2. Court of Appeal of Jamaica: Refused permission to appeal. It held that the judge could not be faulted concerning reasonable diligence and that there was no real prospect of challenging his abuse-of-process assessment.
3. Supreme Court of Jamaica: Laing J granted summary judgment dismissing the action as an abuse of process because the alleged fraud could and should have been raised before the settlement.