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Success for Jonathan King in Court of Appeal: Claim to set aside judgment on grounds that it was procured by fraud is not an abuse of process

Jonathan King recently appeared before the Court of Appeal for the hearing of an appeal concerning whether or not an action to set aside a judgment on grounds that it was procured by fraud was abusive and liable to be struck out.

Following a judgment entered in 2016 upon the striking out of Mr. Park’s defence in the original proceedings brought by CNH, Mr. Park issued proceedings in 2018 for the rescission of the judgment on grounds that the judgment had been procured by fraud on the part of CNH. CNH applied to strike out the rescission proceedings on grounds that inter alia the relevant facts were said to have been known to Mr. Park at the time of the original judgment, and that the acts alleged by Mr. Park to be fraudulent were not the operative cause of the entry of the original judgment.

At first instance, CNH’s application for strike out was refused, however the rescission proceedings were subsequently struck out on CNH’s appeal.

Within a unanimous judgment handed down on 24th November 2021 (Park v CNH [2021] EWCA Civ 1766), the Court of Appeal held that the evidence demonstrates, in the clearest terms, that the court was deceived at the time when the judgment in default was entered (in the original proceedings), and that the case that CNH deceived the court into granting judgment by default by making deliberately false statements in their Particulars of Claim is overwhelming. Having regard to the principles set down by the Supreme Court in Takhar v Gracefield Developments Limited [2019] UKSC 13, and to the later High Court decision in Elu v Floorweald Ltd [2020] EWHC 1222, Mr. Park’s claim was not an abuse of process, and ought not to have been struck out.

Jonathan King acted for the successful appellant, Mr. Park, instructed on a direct access basis.

A copy of the judgment can be found at https://www.bailii.org/ew/cases/EWCA/Civ/2021/1766.html

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