A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge the risks they run in doing so, and to decide otherwise would provide an unacceptable way for partied to buy themselves into a litigation process. Simon Brown LJ said: ‘There is ample authority’ and ‘no dispute’ but that ‘proof of causation is a necessary pre-condition to the making of a section 51 order against a non-party’ before concluding, as a further ground for rejecting the application made in that case for costs against non-party funders, that some at least of the contributions ‘plainly did not cause Mr Al Fayed to incur any costs which he would not otherwise have incurred’.
The court considered an application to admit new evidence to support an allegation that the original judgment had been obtained by fraud: ‘Often the fresh evidence relied upon demonstrates that perjured evidence was given at the trial. In such circumstances, provided that the requirements of Ladd v Marshall are satisfied, the practice of the Court of Appeal has been to order a new trial without resolving the issue of whether the alleged fraud in fact occurred. That issue is best resolved on the retrial.’ and Lord Phillips MR: ‘We consider that under the new, as under the old, procedure special grounds must be shown to justify the introduction of fresh evidence on appeal . . That question must be considered in light of the overriding objective of the new CPR. The old cases will nonetheless remain powerful persuasive authority, for they illustrate the attempts of the courts to strike a fair balance between the need for concluded litigation to be determinative of disputes and the desirability that the judicial process should achieve the right result. The task is one which accords with the overriding objective.’
As to the significance of former cases under the new CPR: ‘That question must be considered in the light of the overriding objective of the new CPR. The old cases will, nonetheless, remain powerful persuasive authority, for they illustrate the attempts of the courts to strike a fair balance between the need for concluded litigation to be determinative of the disputes and the desirability that the judicial process should achieve the right result. That task is one which accords with the overriding objective.’ and ‘A party who seeks to set aside a judgment or verdict by adducing fresh evidence to show that the court was fraudulently deceived can adopt one of two alternative procedures. He can appeal to the Court of Appeal and seek, on appeal, to adduce the fresh evidence, or he can bring a fresh action in which the relief sought is the setting aside of the judgment fraudulently obtained. Where the fresh evidence, or its effect is hotly contested, the latter procedure may prove to be the more satisfactory . . .’ and ‘Because the Court of Appeal alone has power to order a new trial on the ground of fresh evidence, it has been the rule rather than the exception that parties seeking to overturn a judgment on the grounds that it was obtained by fraud have appealed to the Court of Appeal. Lord Buckmaster’s strictures have been generally disregarded. We are inclined to think that because the Court of Appeal has much wider powers to do justice in such a situation, including the power to order issues of fact to be tried, the prevalent practice is one attuned to the overriding objective.’ This was not a case where the judgment had been obtained by fraud.
Judges:
Lord Phillips MR, Simon Brown LJ
Citations:
Times 13-Oct-2000, Gazette 26-Oct-2000, [2001] EMLR 15, [2002] 3 All ER 641
Jurisdiction:
England and Wales
Citing:
Cited – Jonesco v Beard HL 1930
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . .
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited by:
Cited – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
Considered – Sohal v Sohal CA 30-Jul-2002
It was alleged that a verdict upholding a will had been obtained by fraud. Permission was sought to appeal.
Held: It is possible to seek to establish that a judgment was obtained by fraud by adducing fresh evidence on an appeal: ‘There is no . .
Cited – Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others (No. 2) PC 21-Jul-2004
PC (New Zealand) Costs were sought against a non-party, following an earlier determination by the Board.
Held: Jurisdiction to make such an order was not complete. Where the order sought was against a . .
Cited – Secretary of State for Trade and Industry v Paulin ChD 13-May-2005
The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
Cited – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
Cited – Riyad Bank and others v Ahli United Bank (Uk) Plc CA 23-Nov-2005
A renewed application for leave to appeal was made as regards a valuation element of the judgment. New expert evidence was sought to be admitted.
Held: Leave was refused: ‘the Court of Appeal should be particularly cautious where what is . .
Cited – Capital Bank Plc v Mcdiarmid CA 7-Feb-2006
The defendant was said to have guaranteed a hire purchase agreement. The principle, a company, had become insolvent. He denied having signed the document.
Held: Leave to appeal should not be granted. The court considered further evidence. That . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 10 May 2022; Ref: scu.81191
