Justin Oliver Zinda v Ark Schools & Anor

A claim to set aside a judgment for fraud is a freestanding cause of action. The claimant must establish, cumulatively, new evidence, conscious and deliberate dishonesty, and materiality to the original decision. Evidence already in the claimant’s possession is not new merely because it is later transcribed. Materiality requires proof that the alleged fraud was an operative cause of the impugned judgment and would have entirely changed the original court’s approach. A hopeless fraud claim may be struck out and dismissed, including against a party whose alleged liability is wholly parasitic on the primary claim.

The claimant sought to set aside, for alleged fraud, a 2011 judgment of Master Eastman and a 2014 judgment of Supperstone J in the Employment Appeal Tribunal. He relied on transcripts of covert recordings made in 2008 and a ledger disclosed during earlier employment proceedings. He alleged that the defendants had misrepresented the circumstances of his dismissal and referral to safeguarding authorities.

The First Defendant applied for summary judgment or strike out. The Second Defendant’s alleged liability was said to be parasitic on the claim against the First Defendant. The court also considered the claimant’s applications concerning fresh evidence, abuse of process and witness evidence.

1. Summary judgment. The court applied the principles in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), as approved in AC Ward & Son Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098. The court must assess whether the claim has a realistic prospect of success, avoid a mini-trial, consider reasonably available evidence, and decide a short point of law or construction where the necessary material is before it.
2. Setting aside a judgment for fraud is a freestanding cause of action: Takhar v Gracefield Developments Ltd [2019] UKSC 13. The cumulative questions identified in Tinkler v Esken [2023] EWCA Civ 655 are whether there is new evidence, whether it demonstrates conscious and deliberate dishonesty, and whether the dishonesty was material to the original decision.
3. Following Finzi v Jamaican Redevelopment Foundation Inc [2023] UKPC 29, evidence is not new merely because it is later transcribed. If it was available earlier, the claimant must explain why it was not deployed; absent a good explanation, the claim is likely to be abusive. The importance of finality and properly particularised fraud allegations was also emphasised, adopting Rashed v Deane [2025] EWHC 3201 (KB).
4. The claimant’s recordings and ledger were in his possession before the impugned judgments. He had no real prospect, and no prospect at all, of proving new evidence, conscious and deliberate dishonesty, or materiality. The claim against the First Defendant was struck out and dismissed.
5. The claim against the Second Defendant was wholly parasitic on the hopeless claim against the First Defendant. It was struck out and dismissed on the court’s own initiative under CPR PD 3A §4.1. Judgment was entered for both defendants. The proceedings and specified applications were certified totally without merit. The question of an extended or general civil restraint order was referred to a High Court judge.

First-instance decision. The judgment records earlier unsuccessful appeal and permission applications concerning the impugned judgments, which formed part of the same litigation.