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The recent case of Tinker V Esken Ltd[1] considered the approach the Court should take when deciding whether to set aside a judgment on the basis of fraud.

The Court confirmed that such an action was a fresh cause of action and not a procedural application.

The Court further confirmed the three-stage test namely:

1. There must have been deliberate dishonesty.

2. The dishonesty must have been material to the original decision.

3. There must be new evidence.

In considering materiality, the Court accepted that this would inevitably involve some trespassing on the original decision because it is necessary to consider how the original judgment was reached. This is unavoidable, when deciding whether the relevant dishonesty was an ‘operative cause’ of the original decision (this is a subtly different question, from what the result would have been if the action were re-tried with the new evidence, which is not the test for materiality).

However, it should be borne in mind that an action to set aside a judgment based on fraud is not simply an opportunity for an aggrieved party to re-visit the original decision. Nor is such an action analogous to an appeal.

The above three elements must be proven to a relatively high standard, as with any action for fraud.

[1] 2023 EWCA Civ 655

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