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Couwenbergh v Valkova, Court of Appeal, 27 May 2004

11 June 2004
The issues

Fraud – Appeals – Whether Permission To Appeal Should Be Allowed After Allegations Of Fraud Have Been Raised – Fresh Evidence

The facts

The Claimant made an Application for permission to appeal against a decision that the third will of a testatrix appointing the Defendant as sole beneficiary and executor was valid. The Judge had found that the testator, Mrs Adams had testamentary capacity in October 1990 and that she knew and approved the contents of her will.

Subsequently the Edmonton Police and Serious Crime Squad in Barking commenced enquiries into the death of Mrs Adam and conducted an investigation that Dr Valkova had in some way unlawfully contributed to that death. Subsequently no decision to prosecute was taken and an indication came out of the investigations that the will might not have been properly investigated. They had new evidence from the two individuals who purported to witness the will – which was to the effect that neither saw the deceased sign it; that they signed a document not knowing what it was; that they did not recall Mrs Adams’ signature being on it when they signed it; that subsequent letters purported to have be written by them and stating that they confirmed their attestation of the Mrs Adams’ signature were forged. As a result the Claimant applied to the Court of Appeal to re-new his application for permission to appeal.

The decision

The applicant had to satisfy the high hurdle established in Taylor v Lawrence. The Court therefore had to be satisfied that a significant injustice had probably occurred and that there was no alternative effective remedy before re-opening the litigation.

1. The First Taylor v Lawrence Question: significant injustice?

An application to admit fresh evidence had been made. The evidence was apparently credible though it need not be incontravertable. There was a real prospect that the Court would conclude that it was sufficiently credible to justify admitting it in evidence. There remained a crucial overarching consideration of fairness and justice. The Court was strongly of the view that if there was a risk that a fraud had been perpetrated on the Court, then the Court should whenever possible allow the truth to come out.

2. The Second Taylor v Lawrence Question: Is There An Alternative Effective Remedy?

There was an alternative remedy. A party could bring a fresh action in which the relief sought was the setting aside of the Judgment fraudulently obtained. Lord Phillips in Jonesco v Beard had laid down the settled practice of the Court that the proper method of impeaching a completed Judgment on the ground of fraud was by a separate action. However, more recent authorities as had been summarised in Sohal v Sohal concluded that there was no jurisdictional bar to the Court admitting fresh evidence and dealing with the allegation by way of an appeal. It should only do so if the allegation of fraud “can be clearly established” or if the fresh evidence or its effect is not “hotly contested”.

A re-Trial of the action would bring benefits to both parties which would be unobtainable in a fresh action including benefits as to the proper allocation of costs between the parties. In addition, a re-hearing was likely to be less costly. A fresh action would need fresh pleadings, fresh discovery, fresh witness statements etc and a fresh action was likely to take longer to get to Trial than the re-fixing of a re-hearing. Finally and most importantly a re-hearing gave the Trial Judge the greater flexibility to do justice between the parties.

There was therefore a real prospect (ie the prospect was not fanciful) that the Court hearing and the Appeal would consider that a fresh action was not an effective remedy in the case.

Appeal allowed.

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