Brian Frost & Anor v Deborah Giddens

A fresh claim to set aside a judgment for fraud may be abusive where the alleged fraud was already challenged and determined in the earlier proceedings. A party cannot obtain a second determination merely by obtaining expert evidence which could have been obtained for the original trial. In those circumstances, issue estoppel may apply, and the court may also strike out the claim as an abuse of process for failure to bring forward the whole case. The absence of a reasonable-diligence requirement recognised in Takhar applies where fraud was not alleged at the original trial; it does not govern a case where the alleged fraud was litigated there.

The claimants sought to set aside an earlier preliminary-issue decision in favour of the defendant, alleging that it had been procured by fraudulent evidence concerning the accidental deletion of emails. The earlier decision held that the defendant’s claims were not time-barred under sections 14A and 32 of the Limitation Act 1980.

The alleged deliberate deletion had been put in issue at the earlier trial. The claimants cross-examined the defendant on it and made closing submissions that her account was false, but did not obtain expert evidence on whether the deletion could have occurred accidentally. After unsuccessful attempts to appeal and reopen the appeal, they issued the present claim relying on later expert reports. The issue was whether that claim was barred by issue estoppel or constituted an abuse of process.

1. Claim struck out. The claimants were estopped from raising again the issue whether the defendant had given false evidence about the deletion of emails. The allegation was substantively raised at the earlier trial, notwithstanding the absence of an express pleading of fraud.
2. The earlier judge had been required to decide whether the defendant’s account was truthful. He considered the evidence and found that the deletion had been accidental. The present allegation was in substance the same allegation, supported by additional expert evidence.
3. The rule in Takhar that reasonable diligence need not be shown where no allegation of fraud was raised at the original trial did not govern this case. The distinction between fraud being raised and not being raised was one of substance, not form.
4. The claimants had chosen to proceed at trial without expert evidence. The later reports could have been obtained in time for that trial, or the single joint expert could have been asked the relevant questions. They therefore could not obtain a second opportunity to litigate the same issue.
5. Even if issue estoppel did not apply, the fresh claim was an abuse of process. The claimants had a duty to bring forward their whole case and could identify no good reason for failing to rely earlier on evidence which was available or obtainable then.
6. The claim disclosed no reasonable ground under CPR rule 3.4(2)(a) and was struck out. The judge also held, alternatively, that it was an abuse of process.

1. High Court (Commercial Court): The present claim was struck out as barred by issue estoppel and, alternatively, as an abuse of process.
2. Court of Appeal: Permission to appeal from the earlier preliminary-issue decision was refused by Males LJ on 23 November 2022. Permission to reopen the appeal under CPR rule 52.30 was refused on 16 April 2025.
3. Earlier High Court decision: HHJ Russen KC held that the defendant’s claims were not time-barred: [2022] EWHC 1022 (Comm). Permission to appeal was refused: [2022] EWHC 1602 (Comm).