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TOPIC: Fraud Onus Proof Takhar v Gracefield

Fraud Onus Proof Takhar v Gracefield 1 year 1 month ago #4325

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This appeal considered whether a party who seeks to set aside a judgment on the basis that it was obtained by fraud must demonstrate that he or she could not have discovered the fraud by the exercise of reasonable (or due) diligence at the time of the original trial.

The Supreme Court unanimously allowed the appeal. It decided that a person who applies to set aside an earlier judgment on the basis of fraud, does not have to demonstrate that the evidence of this fraud could not have been obtained with reasonable diligence in advance of the earlier trial.

The court favoured reasoning recognised in Australian and Canadian courts rather than former House of Lords and Privy Council authorities. They considered the starting point was recognising that the right to have a judgment set aside for fraud is a distinct cause of action recognised by the common law. Furthermore, the court found it is contrary to justice that a fraudulent individual should profit because their opponent fails to act with reasonable diligence and should not be able to enforce a judgment obtained by said fraud.

They found the due diligence requirement would only be abuse of court if a claimant deliberately decided not to investigate a suspected fraud or rely on a known one and could not be held to be abusive if merely discovering the fraud after the original trial. However, it was considered that courts should apply a fact-intensive approach to the due diligence requirement renders an abuse of process.

For judgment, please download: [2019] UKSC 13
For Court’s Press Summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watch the hearing, please visit: Supreme Court Website (10 Oct 2018 morning session) (10 Oct 2018 afternoon session)
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