Professor Theodora Kostakopoulou v University of Warwick & Ors

A judgment may be reopened for fraud only where fresh evidence shows conscious and deliberate dishonesty that materially and causatively procured the original decision. A claim cannot use that jurisdiction to reargue issues determined on the original evidence, challenge legal conclusions, or pursue ordinary costs objections. Claims lacking any properly arguable fraud case may be struck out as disclosing no reasonable grounds and as an abuse of process, and may receive summary judgment. Electronic service of a claim form requires the specific prior indication required by Practice Direction 6A. Civil restraint orders impose a permission filter rather than a complete bar and may be made under the court’s inherent jurisdiction to restrain related tribunal proceedings.

The claimant brought two High Court claims seeking to rescind parts of an earlier order striking out her 2021 High Court proceedings and requiring payment of costs. She relied on Takhar v Gracefield Developments Ltd and alleged that fresh evidence showed fraud, concealment, inflated costs and judicial impropriety.

The defendants applied to strike out the claims, obtain summary judgment and secure an extended civil restraint order. The claimant also sought default judgment, challenged service by email, sought disclosure concerning costs and insurance, and challenged a limited civil restraint order.

1. Strike out and summary judgment. The two claims disclosed no reasonable grounds and were abuses of process. Under [2019] UKSC 13, the claimant had to identify fresh evidence, unavailable to the original court, showing conscious and deliberate dishonesty which was material and causative of the earlier decisions. The claims instead relied on material already before Sir Andrew Nicol, or on ordinary disputes about the merits and costs.
2. The evidence did not show that the disciplinary proceedings were a sham, that the court had been deceived about student allegations, or that fraud had procured the legal conclusions on privilege, leave and licence or the Johnson principle. Allegations of excessive time, duplication or double counting in costs were matters for detailed assessment and did not, without more, amount to fraud.
3. Alleged copying or excessive reliance on submissions by the earlier judge could potentially raise an appeal issue, but could not satisfy the fraud jurisdiction. The applications to strike out were therefore granted and summary judgment entered for the defendants.
4. Default judgment and service. Service by email was invalid. Practice Direction 6A required a specific prior written indication that the recipient was willing to accept service of a claim form electronically, together with compliance with the enquiry concerning limitations on electronic service. General email correspondence and previous electronic communication were insufficient. Without valid service, the defendants had no duty to acknowledge service, so default judgment could not be entered.
5. Civil restraint orders. The claimant’s challenge to the limited order was itself barred by that order and was without merit. The statutory threshold for an extended order was satisfied by the persistent issuing of totally without merit claims and applications. Tribunal proceedings could be considered when assessing persistence, and the High Court could restrain related Employment Tribunal and Employment Appeal Tribunal proceedings under its inherent jurisdiction. The limited order was discharged and replaced by an extended order.
6. Costs were to be dealt with on paper after a further written response from the claimant.

The judgment describes earlier proceedings in which Sir Andrew Nicol struck out the claimant’s 2021 High Court claim on 21 December 2021. The Court of Appeal dismissed permission applications on 9 March 2022 and dismissed an application to reopen that decision on 14 July 2022. Those decisions were not under appeal in the present proceedings.