Esther Olufunmilayo Lambo v Patricia Kelly Lambo

A final judgment obtained by fraud cannot ordinarily be set aside by application notice in the original proceedings. A fresh claim is required, supported by pleadings and suitable case management.

The claimant must establish conscious and deliberate dishonesty, materiality, and causation. The dishonesty must have been an operative cause of the judgment, assessed against the evidence supporting the original decision rather than the outcome of a retrial on honest evidence. Evidence affecting only one factor will not suffice where it would not have entirely changed the first court’s approach. A later determination of a party’s status does not retrospectively alter an earlier judgment reached on agreed issues.

The deceased died intestate after protracted litigation between Esther and Patricia concerning burial arrangements, spousal status, administration and costs.

In 2018, Master Shuman determined that the deceased’s body should be repatriated to Nigeria, with a commemorative service in England, and ordered Patricia to pay Esther’s costs. Patricia’s later application sought to reopen that judgment and costs order on allegations that documents relied on in 2018 were forged or fraudulent.

The application was made by application notice in the original proceedings. The court considered whether that was procedurally permissible and, alternatively, whether the alleged fraud satisfied the applicable test. The central issues were whether a fresh claim was required, whether the alleged dishonesty was material and causative, and whether the later 2022 judgment concerning spousal status affected the 2018 decision.

1. Disposition. Patricia’s 2022 set-aside application was dismissed both procedurally and on its merits. The court did not accept the parties’ invitation to treat the application notice as a new claim or the hearing as a properly managed trial.
2. Procedure. An action to set aside an earlier judgment for fraud is a freestanding cause of action. It must ordinarily be commenced by claim form and supported by pleadings. Pleadings and case management are particularly important where fraud, expert evidence, disclosure and cross-examination may arise. An application notice in the original proceedings was therefore not the correct procedural route.
3. Fraud test. The applicant had to establish conscious and deliberate dishonesty relating to evidence, conduct, a statement or concealment; materiality; and causation. Materiality required the fresh evidence to have been an operative cause of the original decision and to have entirely changed the first court’s approach. The assessment concerned the evidence supporting the original decision, not the result of a hypothetical retrial.
4. Application to the evidence. The alleged divorce-certificate fraud was immaterial because Patricia’s spousal status was not an issue determined in 2018. The alleged defects in the Nigerian company certificate did not establish that the company or the deceased’s shareholding did not exist, nor that Esther had acted dishonestly. In any event, the company shareholding was only one, relatively weak, factor in a wider close-connection assessment. Removing it would not have changed the decision.
5. The parties had agreed that spousal status would not be determined in 2018 and that the burial issue would be decided by specified factors. Patricia’s later success in obtaining a grant in 2022 did not provide a basis for undoing the earlier judgment or costs order. The court also retained discretion under Senior Courts Act 1981, s 116, even where a person was otherwise entitled to a grant.

The judgment describes earlier High Court proceedings in 2018 and 2022. The 2018 judgment and order remained undisturbed after permission to appeal was refused. The present court dismissed Patricia’s later set-aside application.