Stor RB One Limited v Sripiragash Kanthasamy

This claim raises the legal question of whether or when a judgment and accompanying order can be set aside where tainted by fraud, but where the fraud is not of the judgment creditor or someone for whom they are responsible.

By the Claim issued on 8 April 2026, the Claimant Mr Kanthasamy seeks to set aside the Judgment and order of HHJ Pelling KC dated 20 October 2023 (“the Underlying Order”).

This is the application of the Defendant to that Claim, Stor RB One Ltd (“Stor”), for strike out of the Claim pursuant to CPR 3.4(2)(a) as disclosing no reasonable grounds for bringing the claim, and/or that there be reverse summary judgment for Stor on the Claim pursuant to CPR 24.3.

The application is dated 6 May 2026 and supported by a witness statement of Mr Varley of Stor’s solicitors dated the same date. In response Mr Kanthasamy has filed a witness statement dated 9 June 2026. Stor has filed a responsive witness statement of Mr Akbar Ahsan, a director of Stor, dated 16 June 2026.

The Underlying Order gave summary judgment on a claim dated 25 January 2023 for sums due from the first defendant to that claim, Konnec Ltd, under a receivables purchase agreement dated 22 March 2022, and from the second defendant to that claim, Mr Kanthasamy (the Claimant in the Claim before this court), on a personal guarantee made by deed dated 8 April 2022. I understand that Konnec Ltd was operated by a Mr Kandiah, a relative of Mr Kanthasamy, who was a director of Konnec Ltd.

The Particulars of Claim in the underlying claim pleaded at paragraph 13 that “The Second Defendant entered into an agreement by deed with the Claimant dated 8 April 2022…” A Defence of both defendants was filed in that underlying claim, signed by Mr Kandiah for Konnec Ltd and by Mr Kanthasamy for himself, which admitted at paragraph 13 that “the Claimant entered into an agreement by deed with the Second Defendant which included a guarantee and indemnity in clause 2”, and at paragraph 21 pleaded “it is admitted that the Second Defendant has not made payment under the Guarantee to the Claimant”. The only defence to the guarantee claim against Mr Kanthasamy that was pleaded was disputation that the primary debt was due by Konnec Ltd. Summary judgment was granted on both claims, and the order against Mr Kanthasamy in favour of Stor on the guarantee liability was for the sum of £541,951 plus interest. I was not shown any record of the reasons given by the Judge.

The Underlying Order records that the defendants to that claim did not appear and were not represented. I gather that an application to set aside the Underlying Order was made in 2024, apparently on grounds of lack of notice of the hearing, but it must have been unsuccessful. Counsel were not able to assist me any further as to what happened in that application, but this application does not relate to any failure of notice or other procedural defect in relation to that hearing.

The Underlying Order has been enforced through an interim charging order, final charging order, settlement agreement in the sum of £350k (agreed but then breached by Mr Kanthasamy), possession application, statutory demand, and petition for bankruptcy dated 24 October 2025.

A trial of a possession claim enforcing the Underlying Order is listed for 23 July 2026, in just over one month from the date of this hearing.

The Claim seeks to set aside the Underlying Order and judgment of Judge Pelling against Mr Kanthasamy on the ground that it was procured by fraud, and that the personal guarantee was forged.

Whilst I am not asked to determine the Claim and set aside the Underlying Order today—this is Stor’s application to summarily dismiss that Claim and so leave the Underlying Order unchallenged, and there is no application from the Claimant—it is in my view nevertheless preferable to deliver this judgment before the 23 July 2026 possession hearing which seeks to enforce the Underlying Order, if practicable.

Mr Kanthasamy pleads the following in the Particulars of Claim:

Mr Passfield KC says that the pleading is defective. I agree. The Claim solely relates to setting aside the Underlying Order, and explicitly relies on the principle from Takhar, and yet nowhere sets out particulars of the alleged ‘fraud’ and how the principles from Takhar and earlier cases were satisfied. In particular, who committed the fraud, and by what means was the Court misled? The implication is that the fraud was committed by Mr Kandiah, but not even that is expressly said anywhere.

In my view, the Particulars of Claim, which were drafted with the aid of solicitors and counsel, are susceptible to strike out because they do not plead all the necessary elements of the cause of action, and fraud must be pleaded clearly. However, given what I have ordered below and in all the circumstances, rather than strike them out I am going to order that they be amended.

The Court’s clear understanding of the Claim was not materially advanced by Mr Stephens’ skeleton for this hearing, which was only two pages and did not address the central legal point. But it became clear during the hearing, and I confirmed with Mr Stephens, that the alleged basis of set aside of the Underlying Order is that Mr Kandiah forged the guarantee, that he consciously and dishonestly misled the Court by filing the Defence (in which statement of case Mr Kanthasamy also innocently misled the Court), and that Mr Kandiah also consciously and knowingly misled the Court by deceiving Stor and inducing them to innocently mislead the Court through the claim on the guarantee.

This is an unusual case, because the judgment and order said to be procured by fraud were on a summary basis, there is no allegation of perjury in witness statements or oral witness evidence (I do not know what witness statements were before Judge Pelling but Mr Kanthasamy has not relied upon any), so the key direct act of dishonesty that is said to mislead the Court is the signing of the Defence by Mr Kandiah pleading that Mr Kanthasamy entered into a guarantee as a deed, when Mr Kandiah knew that was false. That direct deceit of the Court is in some ways peripheral to the claim against Mr Kanthasamy—it was not essential that Konnec Ltd (the primary debtor) pleaded to the guarantee at all, as it did not relate to the cause of action against it. But there is nothing to suggest that it did not support (and on Mr Kanthasamy’s case likely procure) that paragraph of the Defence, and plainly the true pleading (on Mr Kanthasamy’s case) would have been a denial that Mr Kanthasamy entered into the guarantee, likely coupled with an explanation that the signature of Mr Kanthasamy was forged by Mr Kandiah (again, on Mr Kanthasamy’s case).

In any event, the strike out/summary judgment application is not brought on the basis that the Court was not deceived, but on the basis that Stor did not do the deceiving, so I am content to assume for present purposes that there was a deceit of the Court (in the sense required by the set aside principle).

Mr Passfield relied on the principles for strike out set out by ICC Judge Barber in Hall (Liquidator of Ethos Solutions Ltd) v Nasim [2021] EWHC 142 (Ch); [2021] BPIR 550 at [22]-[28]:

“[22] It was common ground that whether or not a statement of case should be struck out under CPR 3.4(2)(a) should be judged on the face of the statement of case itself and not on the evidence.

[23] On behalf of the Liquidator, Mr Sims referred me to the case of Oysterware Ltd v Intentor Ltd and Others [2018] EWHC 611 per Ms Joanna Smith QC, sitting as a Deputy Judge of the High Court, at [40]:

‘[40] It is clear from the authorities (which are well established and need not be cited in detail) that I can only strike out a statement of case or part of a statement of case under CPR 3.4(2)(a) where I am satisfied that it discloses on its face no reasonable grounds for bringing the claim … and that it is only a remedy to which the court should resort in plain and obvious cases where the court can be certain that the claim is bound to fail (Hughes v Colin Richards & Co [2004] EWCA Civ 266 per Peter Gibson LJ at [22]). In considering this question I must have regard to the overriding objective of dealing with the case justly (Three Rivers District Council v Bank of England (No 3) [2001] UKHL 16, per Lord Hope at [94])’.

[24] Paragraph 1.4 of the Practice Direction (Striking Out a Statement of Case) gives examples of cases where the court may conclude that particulars of claim disclose no reasonable grounds for bringing the claim. These claims include those which set out no facts indicating what the claim is about, those claims which are incoherent and make no sense; and those claims which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.

[25] Statements of case which are suitable for striking out on ground (a) include those which raise an unwinnable case where continuance of the proceedings is without any possible benefit and would waste resources on both sides: Harris v Bolt Burdon [2000] C.P. Rep.70 [2000] CPLR 9.

[26] It is generally not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact: Farah v British Airways, The Times, 26 January 2000 CA referring to Barrett v Enfield BC [1989] 3 WLR 83, HL [1999] 3 All ER 193.

[27] Similarly, a statement of case is generally not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence.

[28] Where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and, if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend: In Soo Kim v Youg [2011] EWHC 1781.”

I did not understand Mr Stephens to disagree with this useful summary.

Mr Passfield relied on the principles governing summary judgment set out by Lewison J (as he then was) in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch) at [15] and approved by the Court of Appeal in AC Ward & Sons Ltd v Catlin (Five) Ltd [2009] EWCA Civ 1098 at [24] (and, I think, many times since):

“The correct approach on applications by defendants is, in my judgment, as follows:

i)

The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 2 All ER 91;

ii)

A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]

iii)

In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman

iv)

This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]

v)

However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;

vi)

Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

vii)

On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.”

Again, Mr Stephens did not dispute these principles.

The typical situation in which a judgment or order is sought to be set aside on grounds of fraud involves fraud on the part of the judgment creditor in whose favour the judgment was granted, or on the part of the defendant who had a claim dismissed. Most of the reported cases relate to these situations.

The legal question in dispute here is whether it is sufficient that a party to the impugned order had committed a fraud on the court, even if not the judgment creditor. Here the co-defendant is the alleged fraudster. (I am willing to assume for the present applications that Mr Kandiah’s wrongdoing can be attributed to Konnec Ltd, although I have not been addressed on the point.)

Mr Stephens’ submissions on the point were confined to relying in his skeleton argument on Takhar as “confirming that the Court has jurisdiction to set aside a judgment procured on false evidence. It is wrong for the Defendant—itself a victim of fraud—to be seeking to prevent the Claimant’s attempt to do so.” But, after I informed the parties the day before this hearing that I expected to be addressed fully on this point in oral submissions, Mr Stephens filed the reported judgment in Lindsay’s Estate v Outlook Finance Ltd [2025] EWHC 3100 (KB).

That is a decision of Kerr J which decided an adjacent and in some ways overlapping point of whether a judgment could be set aside against an innocent judgment creditor where the fraud was of another judgment creditor. The answer given by the learned Judge was yes. The legal point was introduced at [101] as follows:

“Despite diligent researches for which I am very grateful, neither counsel could find any case law in any jurisdiction, nor any academic or text book commentary, directly addressing the issue whether a judgment obtained by fraud could or should be set aside not just as against the fraudster but as against another party to the original proceedings who was not party to the fraud but in respect of whom the second and third elements of Aikens LJ’s threefold test are met; namely, materiality, assessed by reference to the impact of the fresh evidence on the evidence supporting the original decision.”

The claim was by a farming family who borrowed money, against the first defendant lender Outlook Finance Ltd; the second defendant LPA receiver appointed by them, Mr Butcher; and the third defendant purchasers of the farm sold by the receiver. The Lindsay family alleged that the loan was not enforceable as the lender had breached oral agreements, or had waived its right to enforce, or was estopped from enforcing, and accordingly the LPA receiver had been wrongly appointed. The claim failed before HHJ Bird in Manchester on the basis of credibility of witness evidence and the contemporaneous documents, with the evidence of Outlook’s director Mr Fradgley being preferred (see [3] and [61]-[65]). Having failed against Outlook, the claimants could not succeed against the receiver Mr Butcher, who gave only limited evidence and was barely mentioned in the judgment (or against the third defendant): [3], [61] and [66].

Separate Scottish proceedings led to findings that Mr Fradgley was in fact dishonest and forged documents and exercised circumvention and lesion (undue influence, to use English law terminology), all of which meant he was not in fact a credible witness: [83] and [84]. It followed that Mr Fradgley had given dishonest and fraudulent evidence in the Manchester proceedings: [143]-[145], and this was material to that decision: [146]-[147].

Kerr J set out the law at [92] and following. The summary at [92] refers to the fraud having to be of ‘another party’ and quotes the Aikens LJ principles from RBS v Highland, as endorsed in Takhar. He then noted at [101] that he had been shown no case where the judgment is sought to be set aside not only against the fraudster but also a co-judgment creditor (quoted at paragraph 25 above). At [102] he noted the position of Mr Butcher’s counsel that “a judgment could only be set aside as against a party to the original proceedings where all three elements of the test are met in respect of that party. Thus, he submitted, a judgment could not be set aside as against a party to the original proceedings who was not guilty of the fraud tainting the judgment.”

At [108] the Judge quoted a passage from Meagher, Gummow and Lehane’s Equity Doctrines and Remedies, 5^th edn (2015) describing fraud as an ‘insidious disease’ that ‘infects’ the judgment induced by it, and leads to a personal obligation to give up the fruits of that judgment. Mr Stephens relied on this in the present case, and on the summary of the argument of the Lindsay estate’s counsel at [121] that fraud unravels all and the judgment is ‘tainted’ by fraud and ‘the whole must fail’ (quoting Denning LJ in Lazarus Estates Ltd v. Beasley [1956] 1 QB 702 at 712).

The Judge’s reasoning and conclusions were set out at [143] and following. He found that the principle was clearly satisfied against Outlook, who (through its Mr Fradgley) had deceived HHJ Bird, and the judgment in its favour should be set aside: [150]. However, he then considered in relation to the judgment in favour of Mr Butcher whether “the equitable jurisdiction to do so extends to setting aside a judgment tainted by fraud against a party who is not implicated in or complicit in the fraud”: [151]. (The claimant does not appear to have sought to set aside the judgment in favour of the third defendant purchaser.)

At [152] to [155], the Judge concluded that the answer was that the jurisdiction did so extend. While the principle might be akin to deceit (as Vos MR said in Tinkler) against the fraudulent party, more generally “The vice of the relevant fraud is that it taints the impeached judgment”. This accorded with the proposition that fraud unravels all, and it infects the whole of the judgment. Hence, at [162]

“The tests for setting aside the impugned judgment need not be met for each party individually. They are directed at the integrity of the judgment and not, or not only, at the integrity of the party guilty of tainting it with fraud. The court may set aside the impugned judgment as against any party to the original proceedings who has been served in the action to set it aside.”

He concluded at [156] that the innocence of a party goes to the scope of the remedy, and at [161] that there are varying degrees of innocence, and at [164] that innocence is a factor of “considerable importance” and the usual equitable principles must be applied. He then addressed the particular facts and concluded that it was fair to set aside the judgment against Mr Butcher in that case: [167] to [176].

In the consequentials judgment in Lindsay’s Estate, Kerr J noted at [30] of his own judgment that “Fraud and dishonesty by at least one defendant was the only basis on which the claim could, and did, succeed.”

There is a difference between Lindsay’s Estate and the present case. There the fraudster was a judgment creditor, and all of the Aikens LJ requirements for the set aside jurisdiction were satisfied for that judgment creditor, but there was a further question of whether the judgment could also be set aside against an innocent co-judgment creditor.

In contrast, the present case is one in which the fraudulent party (Konnec Ltd, through the fraud of Mr Kandiah) does not rely on the judgment, and so the principle may not be engaged at all (i.e. the Aikens LJ requirements are not satisfied for any party). There is no allegation that any judgment creditor (or party relying on the judgment) procured the judgment by fraud. This is rather demonstrated by considering which of Stor and Mr Kandiah would want the judgment against Konnec Ltd set aside. Obviously, the answer to that is Mr Kandiah, the director of the judgment debtor, would want the judgment set aside and the innocent Stor would not. Indeed, it would be outrageous if Konnec Ltd were to benefit from its own fraud by setting aside the ‘tainted’ judgment against it having been responsible for the taint, and there can be no reason for interfering with its own issue estoppel. It is not clear what Konnec Ltd’s view would be on the judgment on the guarantee against Mr Kanthasamy, but Konnec Ltd the primary debtor does not rely on it in a conventional sense. Contrast Lindsay’s Estate.

Whether this difference between the present case and Lindsay’s Estate is a legally significant distinction, however, depends upon the true scope and basis of the principle permitting set aside of judgments procured by fraud.

I mentioned during oral submissions that there was some suggestion on the Westlaw UK database that the Lindsay’s Estate decision was subject to appeal, and counsel investigations during the hearing in front of me revealed that the Court of Appeal had heard the appeal earlier in the very week in which I heard this application, specifically, on Tuesday and Wednesday 16 and 17 June 2026. I now see from the consequentials judgment that Kerr J himself granted permission to appeal on the point of law on 12 December 2025 [2025] EWHC 3241 (KB) [51]-[52].

I asked for the parties to request skeleton arguments and any transcripts from the parties to that appeal, and was sent the appeal bundle and the link to the public video recording of the appeal hearing, after my hearing had concluded.

As to the key legal issue, although it was barely explored in the skeletons, I did, as requested, receive detailed oral submissions (within the permitted scope of a half day hearing).

Mr Stephens argued, in reliance on Lindsay’s Estate, that this was a developing area of law and for that reason I should not summarily determine it. Mr Passfield accepted in his skeleton that it is generally not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact: Farah v British Airways, The Times, 26 January 2000 (CA) referring to Barrett v Enfield BC [1999] 3 WLR 83, HL; [1999] 3 All ER 193. The White Book [3.4.2] also refers to Hughes v Colin Richards & Co [2004] EWCA Civ 266; [2004] PNLR 35 (CA).

I am not presently convinced that this is a point where the law is unclear, or that this is the sort of legal point where having fuller facts makes a difference. Contrast the question of whether the existence of a duty of care should be extended to a new factual situation, as in Hughes v Colin Richards. Moreover, a fraud trial will be expensive, and if it were the case that the Claim were bound to fail for a legal reason (such as that the res judicata between Stor and Mr Kanthasamy binds him because there was no fraud on the part of Stor to displace it) then the overriding objective would support strike out rather than having that trial.

Were it not for the Lindsay’s Estate case, I would be minded to determine the application summarily. I have considered further case law in some detail, including a number of cases not cited to me and not apparently cited to the court in Lindsay’s Estate.

However, I have concluded that the best outcome for case management reasons is to adjourn the application to strike out and for summary judgment on the legal point until after the Court of Appeal gives judgment in Lindsay’s Estate (or that case settles without a judgment). It is procedurally more straightforward, quicker and cheaper for there to be such an adjournment and for me (or another judge) to take into account the Court of Appeal’s rulings on the law, than to make my decision without those rulings and then leave the parties potentially to need to appeal my decision in light of the Court of Appeal’s decision. Although the point is not the same, I do think the Court of Appeal in Lindsay’s Estate is likely to make relevant pronouncements, given the matters raised by the facts and appeal there. I see that the first ground of appeal on which permission was granted is “Erred in law in holding that the equitable jurisdiction to set aside a judgment procured by the fraud of another extends to setting aside as against a nonfraudulent party to the original proceedings.” The present case falls squarely within that question. (The second ground of appeal in Lindsay’s Estate relates to laches.)

Moreover, the wait is unlikely to be an overly long one (since the Court of Appeal heard the appeal before I heard this application, rather than being an appeal it is listed to hear in some months time) and there is no pressing urgency. Although it is not desirable for enforcement proceedings to proceed while there is a challenge to the underlying judgment being enforced (I refer in particular to the possession proceedings next month), it is not for me to case manage those proceedings, and the only outcomes of this application will be that I do strike out the Claim and so remove the challenge to the underlying judgment paving the way for enforcement unhindered; or I refuse to strike out and then the Claim will need to be adjudicated upon at trial, which was always going to be long after the imminent possession proceedings which have nevertheless been listed and not adjourned.

There may have been some sense in adjourning the entire hearing of the application before me, pending the Lindsay’s Estate appeal, so that all arguments took place in light of that appeal judgment, but I and the parties only learned of that appeal after the oral hearing of this application had started and the costs all incurred. I and the parties can consider after the Court of Appeal hands down judgment what if any further submissions are required by the parties.

I now consider Stor’s alternative case that it should have reverse summary judgment on the facts, on the basis that there is no real prospect of Mr Kanthasamy succeeding in showing as he must for his Claim that there was a forgery (which is a key element of the allegation that Judge Pelling was misled).

The case put by Mr Passfield in his skeleton argument was “the court can be satisfied that Mr Kanthasamy has no real prospect of successfully demonstrating that he did not execute the Guarantee, and that his allegations in this regard are nothing more than a naked and illegitimate attempt to frustrate the Possession Claim and the Petition”.

I do not rehearse the detailed evidence as to what exactly happened when, but instead identify the key points in each direction on this application. I should make clear that I do not resolve any of these points or reach a view as to whether there was or was not a forgery, which is a question for trial, and I am merely considering the question of whether there is a real prospect of so contending.

The key points relied upon by Mr Passfield in showing that Mr Kanthasamy will fail to prove that he did not execute the guarantee are that:

I would add to this list:

However, difficult and unusual though Mr Kanthasamy’s case is, I have concluded that it does have a real prospect of success in that there are real factual issues to be tried and his case is not so incredible that it is bound to fail. In particular:

I do not, however, accept that hardship to Mr Kanthasamy resulting from the Underlying Order is a reason for refusing summary judgment, as Mr Stephens argued.

I therefore dismiss the application for summary judgment insofar as it depends upon Mr Kanthasamy having no real prospect of establishing the core underlying facts at trial.

Accordingly, I dismiss the application for summary judgment on the facts, adjourn the application for strike out and summary judgment on the law and reserve the costs of this application, and in the meantime (pending the Court of Appeal’s judgment in Lindsay’s Estate) require the Claimant to amend his Claim and pay the costs of and occasioned by that. Requiring such an amendment is the best outcome, where I have found there are factual issues to be tried, and there is time while the Court of Appeal’s adjudication of the legal point is awaited. I would suggest that the Claimant has four weeks to amend, although will hear further submissions on that if required.