Terry v BCS Corporate Acceptances: Judgment Obtained By Fraud

Court of Appeal rejects attempt to strike out a claim after judgment allegedly obtained by fraud

Prior caselaw has established that, where it is alleged that judgment was obtained by fraud, a fresh action may be brought to set aside the judgment. In an appropriate case, an appeal may also be brought seeking to rely on fresh evidence and to obtain an order for a retrial (see Noble v Owens (Weekly Update 10/10)). Unless the fraud is admitted, or incontrovertible, the issue of fraud must be both properly particularised and proved. However, in this case, the appellant/defendant sought to argue that the Supreme Court decision in Summers v Fairclough provided an alternative procedure, namely, an application to strike out the claim for abuse of process under CPR r3.4.

The Court of Appeal has now rejected that argument. It held that, although some of the statements made by the Supreme Court were expressed in general and seemingly unqualified terms, they had to be considered in context. The case did not support the argument that an application for strike out could be brought after final judgment: "The time at which the exercise of the power to strike out was being considered in Summers v Fairclough was...