Proving fraud – the basic principles

The recent judgment of Kazakhstan Kagazy Plc & 5 Others (Claimants) v (1) Baglan Abdullayevich Zhunus (2) Maksat Askaruly Arip (3) Shynar Dikhanbayeva (Defendants) & Harbour Fund III LLP (Additional Party) [2018] EWHC 369 (Comm) handed down on 28 February 2018 dealt with consequential orders following the court’s earlier substantive judgment in this fraud claim – [2017] EWHC 3374 (Comm) – given by Mr Justice Picken on 22 December 2017.

Paragraphs 155 to 165 of that earlier liability judgment helpfully set out the basic and established principles relevant to proving fraud:

  1. Fraud has to be both clearly alleged and proved: Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400 at p. 407 per Millett LJ (as he then was).
  2. The court should not have to rely on inferences from facts not pleaded: Elena Baturina v Alexander Chistyakov [2017] EWHC 1049 (Comm).
  3. Nor will it find fraud from facts which have been pleaded but are consistent with honesty: Three Rivers District Council v Bank of England (No 3) [2001] 2 All ER 513 per Lord Millett at para. 186.
  4. It is however perfectly legitimate for the Court to proceed by way of inference from circumstantial evidence: JSC BTA Bank v Ablyazov [2012] EWCA Civ 1411 at para. 52 per Rix LJ.
  5. Although fraud need only be proved to the civil standard of probability, in practice more convincing evidence will often be required to establish fraud than other types of allegation (see Clerk & Lindsell on Torts, 21st Ed., paragraph 18-04):

    “When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence …”

    [In re H (Minors) [1996] AC 563 at pp. 586-7 per Lord Nicholls]

    “The burden of proof lies on the [Claimants] to establish their case. They must persuade me that it is more probable than not that [the Defendants] made fraudulent misrepresentations. Although the standard of proof is the same in every civil case, where fraud is alleged cogent evidence is needed to prove it, because the evidence must overcome the inherent improbability that people act dishonestly rather than carelessly. On the other hand inherent improbabilities must be assessed in the light of the actual circumstances of the case …”.

    [Foodco UK LLP v Henry Boot Developments Ltd [2010] EWHC 358 (Ch) at para. 3 per Lewison J (as he then was)]

 

These cases provide a useful reminder of the importance of careful and clear pleading, and proper consideration of the evidence available and its proper and most appropriate conclusion.

 

Route of challenge to judgment procured by fraud

 

The Court of Appeal handed down judgment on 15 December 2017 in the case of (1) Shahan Salekipour (2) Amir Saleem v Jashan Kaur Parmar (In her own right & as executrix of Mohinder Singh Parmar, Deceased) sub nom Re Parmar (Deceased) [2017] EWCA Civ 2141.

The original claim was for sums owing from the defendant landlord, and at trial the judge preferred the landlord’s evidence.  A fresh claim was brought by the claimants seeking a rescinding of the earlier judgment on the basis that one of the landlord’s witnesses had, they said, been pressured to give perjured evidence.

This second claim was struck out as an abuse of process and the application to set aside this order was dismissed on the basis that the county court had no jurisdiction to rescind one of its previous judgments. The High Court, on appeal, upheld this decision and Garnham J held that the more common and appropriate route to challenge a decision procured by fraud was by appeal.

The claimants appealed, and the defendant sought to uphold the High Court decision on the additional ground that, even if she had been aware of the fresh evidence, the trial judge would still have dismissed the claim.

In delivering the main judgment of the Court of Appeal, which allowed the claimants’ appeal, Sir Terence Etherton M.R. rejected the notion that the County Court, as a creature of statute, had no jurisdiction to rescind one of its own judgments.  The relevant provisions of the County Courts Act 1984 were sections 23, 38 and 70:

“23. Equity jurisdiction.

The county court shall have all the jurisdiction of the High Court to hear and determine-

(g) proceedings for relief against fraud or mistake, where the damage sustained or the estate or fund in respect of which relief is sought does not exceed in amount or value the county court limit.

…”

“38. Remedies available in county courts.

(1) Subject to what follows, in any proceedings in the county court the court may make any order which could be made by the High Court if the proceedings were in the High Court.

…”

“70. Finality of judgments and orders

Every judgment and order of the county court shall, except as provided by this or any other Act or as may be prescribed, be final and conclusive between the parties.”

Previously, the County Court Rules had a provision, Order 37 r. 1(1), which would have allowed the County Court to have jurisdiction:

“In any proceedings tried without a jury the judge shall have power on application to order a rehearing where no error of the court at the hearing is alleged.”

The Master of the Rolls said at paragraph 73 of his judgment:

“If however, the respondent is correct about the County Court’s lack of jurisdiction, the only remedy for a litigant in the County Court who wishes to have a prior final County Court order set aside for perjury or fraud is to appeal, even though that will often not be the most appropriate course consistent with the overriding objective in CPR r.1.1. It was common ground before us that the High Court has no jurisdiction to hear independent proceedings to set aside an earlier final order of the County Court obtained by perjury or fraud. If that deprivation of a previous County Court jurisdiction was the effect of the repeal of CCR Ord. 37 r.1(1), then it appears that it would have been the result of oversight rather than intention, and, contrary to objective of the CPR, would have produced a significant difference between the High Court and the County Court and would have seriously disadvantaged County Court litigants, for no sound policy reason.”

This led to his conclusion at paragraph 74:

“I agree with the appellants that such an anomaly does not exist because, leaving to one side the CPR, including the management powers under CPR 3.1, sections 23 and 38 of the 1984 Act confer jurisdiction on a County Court judge to determine proceedings to set aside a final County Court order obtained by perjury or fraud. Such proceedings appear to me to fall precisely within the wording of section 23. The right of a party to have a judgment set aside on the ground of fraud is a principle of equity: Flower v Lloyd (1877) 6 Ch D 297; Noble at [42] (Elias LJ). The present proceedings are, consistently with the terms of section 23, “proceedings for relief against fraud … where the damage sustained … does not exceed in amount or value the county court limit”. “

This is a useful confirmation therefore of the route of challenge to a judgment procured by fraud.  The example given in “Cornerstone on Social Housing Fraud” – in Chapter 4 at pages 65-69 – is a claim for possession against a would-be successor to a tenancy being dismissed upon a finding that the defendant has in fact succeeded to the subject tenancy.