Professor Theodora Kostakopoulou v University of Warwick & Ors

The court dismissed the claimant’s attempts to rescind aspects of the earlier order of Sir Andrew Nicol on the basis of alleged fraud because the pleaded cases did not and could not satisfy the Takhar requirements that any fraud be deliberate, newly discovered and material to the earlier decision. The court applied Part 24/CPR strike‑out and summary judgment principles, finding the two new claims disclosed no reasonable grounds and were an abuse of process. The court further held that service by email of claim KB-2024-001518 was not valid under Practice Direction 6A (paragraphs 4.1–4.2), so default judgment could not be entered. The claimant’s challenge to the Limited Civil Restraint Order was refused for want of permission and on the merits. The court replaced the LCRO with an Extended Civil Restraint Order, exercising both CPR and inherent jurisdiction powers to extend restraint to related Employment Tribunal and EAT litigation, and gave directions on costs.

Background and parties: The claimant was formerly Professor of Law at the University of Warwick. She had a long history of employment and tribunal litigation and a 2021 High Court claim against the same defendants was struck out by Sir Andrew Nicol; subsequent permission to appeal was refused. The claimant issued two new High Court claims (KB-2024-001518 and KB-2024-001772) seeking to rescind parts of Sir Andrew Nicol’s order on the ground that his decisions were obtained by fraud applying the Takhar principles.

Nature of relief sought: rescission of parts of the 21 December 2021 order (strike out and costs/interim payment); default judgment; disclosure of defendants’ costs/insurance; a declaration that an LCRO had no effect; and the claimant sought to set aside the defendants’ strike‑out/ECRO applications.

Issues framed:

• whether the new claims pleaded fresh, material evidence of deliberate fraud sufficient under Takhar;
• whether the defendants’ strike‑out/summary judgment applications should succeed under CPR 3.4 and Part 24;
• whether service of claim 1518 by email complied with PD 6A so as to permit default judgment;
• whether the LCRO was effective and could be challenged without complying with its permission filter; and
• whether the court should replace the LCRO with an ECRO extending to tribunal proceedings.

Court’s reasoning and conclusions: The judge analysed the Takhar requirements (conscious deliberate dishonesty; materiality assessed against evidence supporting the original decision; and the need for new evidence) and concluded neither claim identified fresh evidence that could have causatively produced Sir Andrew Nicol’s conclusions. Much of the material relied on by the claimant had been before Sir Andrew or consisted of internal communications and non‑decisive material; allegations about malice or inflated costs were ordinary points for detailed assessment and did not amount to pleaded fraud. On service, the court held PD 6A mandatory: no prior specific written acceptance of service by electronic means had been demonstrated and the claimant’s past email correspondence did not suffice, so no valid service occurred and default judgment could not be entered. The challenge to the LCRO was dismissed because the order required permission to challenge and previous judges had validly certified applications as totally without merit; the LCRO imposed a permission filter rather than an absolute bar. The court found a sustained pattern of totally without merit litigation, including many certifications, and that an ECRO was necessary. The ECRO was ordered (replacing the LCRO) and extended to related Employment Tribunal and EAT proceedings by exercise of inherent jurisdiction. The defendants’ strike‑out/summary judgment applications succeeded; the claimant’s cross applications were dismissed and certified totally without merit. Directions were given for costs and an interim payment procedure on paper.

The court struck out the claimant’s claims KB-2024-001518 and KB-2024-001772 and granted summary judgment in favour of the defendants because the particulars did not disclose fresh, material evidence of deliberate fraud required by Takhar and thus disclosed no reasonable grounds and were an abuse of process. The purported service by email of claim 1518 was invalid under Practice Direction 6A and default judgment could not be entered. The claimant’s challenge to the LCRO was dismissed for lack of permission and on the merits. The court substituted an Extended Civil Restraint Order, extended (by inherent jurisdiction) to related Employment Tribunal and EAT proceedings, and made consequential directions on costs, including provision for a written response and paper determination of any interim payment request.