References: [2004] EWCA Civ 676
Links: Bailii
Coram: Lord Justice Waller Lord Justice Ward
Ratio: The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect execution. At a first trial, the claimant failed. After a much later investigation by the police, new evidence challenged the execution in front of witnesses.
Held: As a second request, the claimant had to satisfy the test in Taylor v Lawrence. The new evidence might be credible and should be admitted, but there was a real possibility that a new trial would not be effective. Nevertheless, an appeal would be allowed to go ahead. The parties were reminded of the effect on costs of a refusal to consider mediation.
Jurisdiction: England and Wales
This case cites:
- See also – Couwenbergh v Valkova CA (Bailii, [1999] EWCA Civ 1124)
. . - Cited – Taylor v Lawrence CA (Times 04-Feb-02, Bailii, Gazette 21-Mar-02, [2002] EWCA Civ 90, [2002] 2 All ER 353, [2002] 3 WLR 640, [2003] QB 528)
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . . - Cited – Ladd v Marshall CA ([1954] 1 WLR 1489, [1954] 3 All ER 745, Bailii, [1954] EWCA Civ 1)
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . . - Cited – Hip Foong Hong v H. Neotia and Co PC ([1918] AC 888)
An appellate Court has inherent power to set aside a judgment obtained through fraud. Lord Buckmaster described how an appellate court should deal with an allegation that an earlier judgment had been obtained by fraud: ‘Where a new trial is sought . . - Cited – Hamilton v Al Fayed (2) CA (Times 13-Oct-00, Gazette 26-Oct-00, [2001] EMLR 15, [2002] 3 All ER 641)
A third party who financially supported a court action had no right to be joined as a party even at hearings at which decisions would be made which might affect his potential liabilities. Those who financially support proceedings must acknowledge . . - Cited – Jonesco v Beard HL ([1930] AC 298)
The plaintiff was a race horse trainer. He had made two claims against the defendant owner alleging first that the defendant had agreed to give him a share in some horses and second that the plaintiff had sold two horses to him but not been paid for . . - Cited – Flower v Lloyd CA ([1877] 6 ChD 297)
The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits . . - Cited – Sohal v Sohal CA ([2002] EWCA Civ 1297, Bailii)
It was alleged that a verdict upholding a will had been obtained by fraud. Permission was sought to appeal.
Held: It is possible to seek to establish that a judgment was obtained by fraud by adducing fresh evidence on an appeal: ‘There is no . . - Cited – The Ampthill Peerage Case HL ([1977] AC 547)
There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial.
Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: ‘The law knows, . . - Cited – Halsey v Milton Keynes General NHS Trust etc CA (Bailii, [2004] EWCA Civ 576, Times 27-May-04, Gazette 03-Jun-04, [2004] 1 WLR 3002, YAWS, [2004] CP Rep 34, [2004] 4 All ER 920, (2005) 81 BMLR 108, [2004] 3 Costs LR 393)
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
(This list may be incomplete)
This case is cited by:
- See also – Couwenbergh v Valkova CA (Bailii, [1999] EWCA Civ 1124)
. . - See Also – Couwenbergh v Valkova CA (Bailii, [2005] EWCA 145 Civ)
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . . - See Also – Couwenbergh v Valkova ChD (Bailii, [2008] EWHC 2451 (Ch))
Challenge to admission of will to probate.
Held: The presumption of due attestation of a will had not been rebutted. . .
(This list may be incomplete)
Last Update: 08 April 2019
Ref: 197941
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