England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
(MISS SONIA PROUDMAN QC sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2
		30 July 2002

Tuesday, 30th July 2002

1. LORD JUSTICE PILL: I will ask Sir Martin Nourse to give the first judgment.
2. SIR MARTIN NOURSE: This is a renewed application for permission to appeal, and for an extension of time for appealing, against an order made on 27th July 2001 by Miss Sonia Proudman QC, sitting as a deputy judge of the Chancery Division on the trial of a preliminary issue in a probate action.
3. The action arises out of a dispute between members of an Indian family called Sohal. The dispute is in relation to an English will dated 23rd October 1996 and a later Indian will dated 8th November 1996. By her order the learned deputy judge pronounced against the English will and in favour of the Indian will. The previously granted probate of the English will was revoked.
4. The testator was Mohan Singh Sohal. He died on 10th December 1996 in England, a widower aged about 80. He had six sons, all now in their 40s and 50s. By the English will the youngest son, Hardev Singh Sohal, the first defendant, and his wife, Manjit Kaur Sohal, the second defendant, were appointed executors. He was left all the English estate, most importantly the testator's house purchased in 1968 at 20 Fleetwood Road, Slough, subject to the payment of legacies of £1,000 each to the five eldest sons, the claimants in the action.
5. The testator's Indian estate was left to all six sons in equal shares. By the Indian will, which revoked "Any other will previously made and executed by me", the testator left both his Indian and his English estates to all six sons in equal shares and appointed them to be his executors.
6. The claimants' case at trial, as summarised by the judge, was that on 8th November 1996, unknown to them at the time, the testator, who was at that time staying at his house in Athola (a small village of 2,000 inhabitants in the Punjab), went with two witnesses to the offices of an advocate, Madan Lal, in the city of Jalandar some 45 minutes drive away, and executed the Indian will.
7. The defendants' case was that the Indian will could not have been executed on 8th November 1999, or indeed at any time during the testator's 1996 visit to Athola, since he was very frail, wheelchair bound, needed constant nursing and stayed inside the house for the duration of his visit. They also claimed that there were no visits from friends or neighbours from the village at any time. At page 4E to F of the transcript, the judge said of the defendants' case:

"It follows that their case is that the Indian will must be a forgery. It also follows from that allegation that the lawyer who says he drafted the Indian will and the persons who say they witnessed it must be parties to a deliberate fabrication of evidence. On the facts before me, this is not a case where there is any room for mistake in the matter. Either the episode took place as they say it did, or the evidence has been concocted."

8. The judge said that the crucial question she had to decide was whether or not the claimants had established that the testator visited Mr Madan Lal in Jalandar with the two alleged witnesses on 8th November 1996.
9. On the claimants' side the judge heard evidence from Mr Lal, Mr Santakh Singh, one of the two alleged witnesses to the Indian will, and Mr Malkit Singh, a banker in Athola. She also saw a witness statement by the other alleged witness, Mr Dhara Singh, to which she attached little, if any, weight, because in a case of this kind it was not prudent to accept evidence which had not been tested by cross-examination. She also saw a witness statement of Mr Jasvir Singh, who was said to have been the taxi driver who drove the testator and the alleged witnesses from Athola to Jalandar on 8th November 1996. She said she attached no weight to that statement.
10. The judge continued, at page 11D:

"That said, as far as the direct evidence about the execution of the will is concerned, I have found nothing inherently implausible or doubtful about it and if it stood alone I would accept it without reservation. I must therefore consider to what extent the other evidence either supports or undermines it.

The essence of the defendants' case is that the testator could not have gone to Jalandar to execute the will as he did not leave the house on 8th November or at all during the relevant period, and I turn to the oral and witness statement evidence bearing upon this issue."

11. The judge referred to that evidence at length. It included the evidence of the defendants and their daughter, all of whom were staying at Athola in the testator's house for the whole of the time he was there, except for the second defendant who did not get there until 10th November. The judge described the evidence of the first defendant as being "contradictory and implausible in several respects". She was just as uncomplimentary about the evidence of the second defendant and the daughter. She concluded, at page 24A:

"In these circumstances I do not accept the defendants' evidence that the testator never left the house at Athola, and I see nothing to impugn the evidence of Madan Lal and Santakh Singh that the testator did in fact go to Jalandar on 8th November 1996."

12. Accordingly the judge found that the claimants had discharged the burden of proving due execution and knowledge and approval of the Indian will.
13. The judge's order was made on 27th July 2001. On 24th June 2002, nearly 11 months later, the solicitor now instructed by the defendants put in a witness statement of considerable length in support of their application for permission to appeal and an extension of time for appealing. Among the exhibits to that statement are copies of affidavits or affirmations sworn by the alleged taxi driver, Mr Jasvir Singh, by Mr Balwindar Jit Singh Turna, another advocate practising in Jalandar, and by four of his employees. It is said that if this evidence had been available to the judge at the trial, it would have been powerful evidence causing her to question the validity of the evidence of Mr Madan Lal and Mr Santakh Singh.
14. The skeleton argument of Mr Wilby QC, who now appears for the defendants, said:

"The allegation here is effectively of a fraud on the judicial process by perjured evidence."

15. The defendants seek the admission of the fresh evidence and an order for a retrial of the preliminary issue.
16. The application first came before myself on consideration of the papers. In refusing it on 12th July 2002, I said:

"No ground is shown for the disapplication of the general rule that a perfected judgment can only be set aside on the ground of fraud in a separate action in which 'the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires'; see Jonesco v Beard [1930] AC 298, 300. Wood v Gahlings cited in counsel's skeleton argument was an entirely different case and is of no assistance here, except for its recognition of the general rule."

17. Wood v Gahlings was the only case cited on the main point in the application, and at that stage the only available report of it was a very abbreviated one in the Times newspaper of 29th November 1996. Mr Wilby has now put in a further skeleton argument and amended grounds of appeal. He has renewed the application before us today.
18. I am prepared to assume, without in any way deciding, that the fresh evidence would satisfy the requirements of Ladd v Marshall and would be admissible accordingly. That makes it unnecessary to go into the evidence except to say, first, that in his affidavit Mr Jasvir Singh states that he was tricked into making his first statement by one of the claimants and that that statement was untrue; secondly, that much of the evidence of Mr Balwindar Jit Singh Turna's four employees is directed to the impracticability of a person in the testator's alleged physical condition having been carried into Mr Madan Lal's office on 8th November 1994.
19. Mr Wilby's primary submission in his second skeleton argument, though not greatly developed before us, was that the sole issue in the action was one of fraud, namely, was the Indian will a forgery or not? He submitted that the defendants' case was that the evidence of the claimants' witnesses, in particular of Mr Lal, Mr Santakh Singh and Mr Jasvir Singh was concoction and the product of collusion and perjured evidence. That is correct so far as it goes, but the allegation on which the defendants rely in order to get the judgment set aside is, as Mr Wilby recognises, that perjured evidence was given by the claimants' witnesses at the trial; in other words that the judgment was procured by fraud. While accepting that the issue in the action has always been one of fraud, I am unable to see a distinction between this case and any other in which it is alleged that a judgment has been procured by fraud.
20. As to the authorities, Mr Wilby pointed out that Jonesco v Beard and the earlier influential decision of this court in Flower v Lloyd (1877) 6 Ch D 297 were both decided long before the introduction of the Civil Procedure Rules. He says that the court's approach to judicial business must now be considered in the light of the overriding objective. He relies again on the approach of Lord Woolf, MR in Wood v Gahlings and also on that of Peter Gibson LJ in Jones v Williams (2 October 2000 unreported), of the judgments in each of which cases, we now have full transcripts.
21. In his argument Mr Wilby has relied most of all on the decision of this court in Hamilton v Al Fayed (21 December 2000 unreported). It is unnecessary to refer to the facts of any of these cases. From Lord Woolf's judgment in Wood v Gahlings I will read two passages. At page 3, having referred to Flower v Lloyd, he said:

"I have no doubt that in an appropriate case if an allegation of fraud can be clearly established, it is appropriate for this court to intervene, or indeed as a result of an action brought properly before a court at first instance, for that court to intervene."

22. At page 4:

"In the normal way, therefore, where it is sought to challenge a decision of a judge on the basis of fraud, the more convenient course will usually be for an action to be brought which makes a clear and precise allegation of fraud so that a proper issue can be joined on the question of whether fraud is established or not. However, there can be situations where to bring a separate action would involve the parties in unnecessary additional litigation and expense. If without causing practical difficulties it is possible to establish clearly that a fraud has been committed as part of the appeal process, then it seems to me that this is not objectionable."

23. Lord Woolf's observations were referred to in James v williams where Peter Gibson LJ said in paragraph 21 of his judgment:

"[Counsel] relies on dicta by Lord Woolf MR in Wood v Gahlings in which the Master of the Rolls said that in an appropriate case, if an allegation of fraud can be clearly established, it is appropriate for this court to intervene and that it might not be necessary to bring a separate action. The Master of the Rolls accepted that normally a litigant alleging fraud in the obtaining of a judicial decision would have to commence separate proceedings to establish the fraud. Lord Woolf said that there could be situations where to bring a separate action would involve the parties in unnecessary litigation and expense, and that if, without causing practical difficulties, it was possible to establish clearly that a fraud had been committed as part of the appeal process, then it would not be objectionable for this court to make an order setting aside a previous order.

22. The remarks by Lord Woolf and by the other judges in this court concurring with him were obiter. Wood was a case where this court did not think it appropriate to enter into the question of whether a fraud had been practised on the Court of Appeal."

24. Wood v Gahlings was a case where the alleged fraud had occurred in the appeal process. Lord Woolf distinguished Flower v Lloyd on that basis. In James v Williams it was conceded that the position was the same in a case, such as the present, where it is alleged that the judgment of the court of first instance has been procured by fraud. This court proceeded on that assumption. So, too, did this court in Hamilton v Al Fayed, where Lord Phillips MR, delivering the judgment of the court, said at paragraph 8:

"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 more satisfactory - see the comments of Lord Buckmaster in Jonesco v Beard [1930] AC 298 at p 299."

25. In my judgment, in a case where it is alleged that the judgment at first instance has been procured by fraud, the effect of the recent authorities, at any rate down to paragraph 8 of the judgment in Hamilton v Al Fayed, can be summarised as follows. There is no jurisdictional bar to this court admitting the fresh evidence and dealing with the allegation by way of an appeal. But it should only do so if, in the words of Lord Woolf, the allegation of fraud "can be clearly established" or if, in the words of Lord Phillips (which come to the same thing) the fresh evidence or its effect is not "hotly contested". In any other case, the party who complains about the judgment should be left to bring a fresh action to set it aside.
26. Mr Wilby does not accept that that is a correct interpretation of the recent authorities. He has referred us to subsequent paragraphs in the judgment in Hamilton v Al Fayed. Paragraph 14 states:

"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."

27. I do not read the court as there saying anything different from what they had said in paragraph 8. They were referring to a case where the fresh evidence demonstrates, ie clearly establishes, that perjured evidence was given.
28. Mr Wilby has taken us through subsequent passages in the judgment, which are mainly concerned with the question whether fresh evidence should be admitted. He relies, particularly, on paragraph 21, which reads:

"Because the Court of Appeal alone has the 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 such 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. Different considerations may, however, apply within the Family Division."

29. Those observations must be accorded every respect. I do not think they can have been intended to depart from what was said in paragraphs 8 and 14. Whether that be right or wrong, it is clear that each case must be judged on its own merits. If this court takes the view that the alleged fraud has not been clearly established, or that it is or certainly will be hotly contested on the evidence, then it must be open to it to say that the question will not be dealt with by way of appeal, but must be dealt with as the subject of a fresh action.
30. In the present case, although Mr Wilby disputes that this is so, it cannot be said that the fresh evidence, however favourably to the defendants it is viewed, clearly establishes that the judgment of the deputy judge was procured by perjured evidence. The judgment having been based largely on the oral evidence of Mr Lal, and Mr Santakh Singh, their perjury could only be clearly established, if at all, at another trial. Accordingly the claimants must be left to bring a fresh action to set the judgment aside.
31. That is sufficient to dispose of this application. However, in the light of Mr Wilby's submissions, it is appropriate to give some brief consideration to the likely course of events if permission to appeal were to be granted and the fresh evidence admitted.
32. Mr Wilby recognises that it would not be sufficient to put in the written evidence at present available; oral evidence would have to be taken either here or by video link from witnesses in India. But once the defendants' fresh evidence was admitted, the claimants would clearly wish to put in their own fresh evidence; they also would wish to have that evidence supported by oral evidence. The result would be a mini trial, almost a full trial, in this court with oral evidence, which at best could only result in an order for a new trial. In other words, assuming that it was appropriate for such a hearing to take place in this court, there would have to be two bites of the cherry with oral evidence on each occasion. That would be most unsatisfactory. Although Mr Wilby does not accept this either, it would very likely involve the parties in greater expense and delay than if a fresh action were to be brought.
33. I should say something about both delay and expense. As to delay it seems to me that we could not on any footing grant permission to appeal today. There would have to be an inter partes hearing. Assuming permission were then granted, there would be further considerable delay before the appeal could be prepared and heard. If the defendants were successful at that stage, there would be a further delay before the retrial. On the other hand, if permission is refused and the defendants were to commence a fresh action tomorrow, I believe that the trial of that action would be held at an appreciably early stage than would the retrial of the present action.
34. As to expense, Mr Wilby says, correctly, that a new action would involve the costs of the preliminary steps, including pleadings and so forth. But he has been unable to satisfy me that the additional costs would be considerable, since it is natural to assume that the fresh evidence on which he wishes to rely in the present action could stand as evidence in the fresh action. Moreover, there would only be the costs of one trial as opposed to the costs of what I have described, perhaps rather optimistically, as a mini trial, as well as a retrial. In my view it has not been demonstrated - and we must look to the interests not only of the defendants but also of the claimants - that there would be any saving of time or expense in taking the course which Mr Wilby advocates.
35. Although better informed by Mr Wilby's further written and oral submissions, for which I am grateful, I remain of the view that this application must be refused. I would add that Mr Wilby has submitted that, so far as permission is concerned, it is only necessary for him to show that an appeal would have a real prospect of success. That is correct. But because an application has been fully and ably argued, it does not mean that an appeal would have a real prospect of success or that it is properly arguable. If, on the application, it can be seen that the full court would be bound to dismiss the appeal, it is only right that the matter should be disposed of at the application stage.
36. LORD JUSTICE PILL: I agree. Accordingly the application is refused.
(Application refused; no order as to costs. The judgments in this case may be cited in the future.)