Salekipour & Anor v Parmar & Anor

This appeal raises a novel point as to the jurisdiction of the county court to rescind a judgment in earlier county court proceedings on the grounds of perjury and subornation of a witness.

On 10 May 2012, Her Honour Judge Marshall QC, sitting in the Central London County Court, gave judgment in proceedings brought by Mrs Shahan Salekipour against Mr and Mrs Parmar. She dismissed the claim and allowed the Defendant’s counterclaim in the sum of a little more than £17,000, together with interest.

On 24 September 2014, Mrs Salekipour and her husband brought new proceedings in the county court against Mr and Mrs Parmar seeking rescission of the judgment in the original claim and an order for a new trial. On 16 January 2015, the Defendants issued an application seeking to strike out that claim under CPR Rule 3.4 as disclosing no reasonable grounds for bringing the claim, or as an abuse of process on the ground that the claim should have been advanced by way of an appeal rather than a new claim.

The Defendants’ application was made without notice to the Claimants. In the absence of a response or attendance by the Claimant, District Judge Lightman struck out the claim as an abuse of process but granted any party affected by the order seven days to apply to set aside vary or revoke his order. On 22 January 2015, the Claimants made an application for an order revoking DJ Lightman’s order, which application came on for hearing before Her Honour Judge Faber in the Central London County Court on 19 August 2015.

This is the Claimant’s appeal against HHJ Faber’s decision that the county court had no jurisdiction to grant the relief sought and in consequence it was appropriate to uphold DJ Lightman’s order.

Sadly, since the commencement of these proceedings, Mr Parmar has died. CPR 19.8(2) provides that where a defendant has died and a grant of probate or administration has not been made, which is the case here, the claim must be brought against “the estate of” the deceased and the claimant must apply to the court for an order appointing a person to represent the estate of the deceased in the claim. Here, however, both parties agree that those steps are unnecessary. It is pointed out that Mrs Parmar is the Second Respondent, it is likely that Mrs Parmar will be Mr Parmar’s executrix and Mrs Parmar was the principal protagonist in the original proceedings against the Appellants. Given that neither party takes any point on the absence of a representation order, I am content to determine this appeal on the issues raised.

The nature and history of the original claim is set out in the detailed and careful judgment of HHJ Marshall.

In short summary, the Claimant in those proceedings, Mrs Salekipour and Mr Amar Saleem were the tenants of a ground floor lock up shop and rear garage at 500 Greenford Road, Greenford, Middlesex. The landlords were Mr Mohinder Singh Parmar and Mrs Jashan Kaur Parmar. Mrs Salekipour commenced proceedings against the Defendants on 29 September 2010. She claimed first, the recovery of £25,000 which she said her husband paid on her behalf to Mrs Parmar. The claim was pleaded as being for misrepresentation, although it was subsequently put, in the alternative, as a claim to recover money paid under economic duress.

Second, Mrs Salekipour claimed £21,000 in respect of rent which she said she overpaid during her occupation of the premises. Third, she claimed under s1 of the Landlord and Tenant Act 1988 on the basis that Mrs Parmar unreasonably delayed or withheld her consent to a proposed assignment of the lease in mid-2008. The claim was for the loss of a premium of £38,000 which was to have been paid.

Fourth, the Claimant claimed damages under s3 of the Prevention of Harassment Act 1997 on the basis of a series of acts which she says were carried out or procured by Mrs Parmar. Those allegations relate to the removal of a sunblind, the erection of scaffolding outside the premises, dumping and burning rubbish behind the premises, an allegedly false accusation that Mrs Salekipour was dumping rubbish and repeatedly disturbing Mrs Parmar to complain about the same, threatening on one occasion to have Mrs Salekipour raped, causing the telephone wires to the hairdressing business she carried out at the premises to be cut, and causing the breakage of the plate glass window of the premises. That list of complaints was expanded during the course of the evidence. In respect of this harassment Mrs Salekipour claimed damages for distress and anxiety.

The defence to the claim was broadly one of complete denial. By her counterclaim, Mrs Parmar claimed three quarters’ rent in the sum of £15,000, for unpaid insurance premiums in the sums of £907 and £994.82 and for the cost of floor plans and fees in the sums of £141 and £96.13, together with interest.

HHJ Marshall rejected each of the Claimant’s claims and allowed each of the Defendants’ counterclaims. For a proper appreciation of her analysis it is necessary to read the whole of the judgment. But the following paragraphs are particularly pertinent for my purposes:

“17.

… It will be seen that much depends on which of two conflicting accounts between the two sides I prefer. Indeed, Mr Richard Power, appearing for Mrs Salekipour… suggested the evidence on the opposite side of the dispute differs so profoundly that the only conclusion is that there is ‘collective lying’ on one side or the other.

18.

I accept that this applies in particular to the first claim (the ‘£25,000’ dispute), the second claim (the ‘overpaid rent’ dispute), and the fourth claim (the ‘harassment’ dispute), the third claim (the ‘unreasonable withholding of consent’ dispute) depends mainly on an analysis of correspondence passing between the solicitors who are acting. The counter claim is a mixture of facts and law.

19.

Credibility is thus vital in this case and this has had the result of each side has sought to introduce evidence going to credit…

33.

As the Defendant’s witnesses, Mr Fiszer was a bluff Polish shopkeeper who gave evidence in good but careful English. He was the most independent of the supporting witnesses and I am quite satisfied that he was sincerely telling me the truth as he saw it. I feel able to rely on his evidence…

40.

Mrs Parmar presented a marked contrast to the emotional Claimant, but I will still have to examine how far I can safely accept her evidence at face value. In this case, much of what I have to decide rests on whose account of the facts I believe or prefer. In deciding this, I shall have regard to the degree of support for either contention which can be derived from documents, other clear facts, or just from plain common sense…

46.

The first issue then is whether or not the Claimants satisfied me… that any payment such as they allege did actually change hands. This is an issue of fact. In effect, I must decide whether I believe Mrs Parmar or Mr Salim. This also means that one of them is not telling me the truth, as there is hardly room for a finding of honest innocent mistake about such a stark and simple point…

53.

Taking into account all the evidence therefore I do not believe Mrs Parmar’s assertion that she let the Claimants into possession only at Easter 2006, and I do not believe her associated assertion that she took no money from them before rent became payable under the lease. Given both my assessment of her in evidence, and the circumstances disclosed in the documents, I find this implausible in the extreme and entirely out of character. Whilst I accept Mr Fiszer’s evidence that she did let him into possession of the shop rent free for a period before he took over the unit in 2011, I note that this was after Mrs Parmar became aware of the allegations being made against her in these proceedings.” (emphasis added)

At paragraph 136 HHJ Marshall turned to deal with the allegations of harassment. As to the dumping of rubbish she said at paragraph 153, “I prefer Mrs Parmar’s evidence on this aspect and I find that Mrs Salekipour is simply in unjustified denial of this matter…”. She went on at paragraph 154, “It follows that I am satisfied that these complaints by Mrs Parmar were, in all likelihood, not ‘false’ at all, but were justified”.

As to the allegation of a threat to have Mrs Salekipour raped, HHJ Marshall said at paragraph 160, “Having reviewed all the evidence, and taking into account not only my caution about the reliability of the Claimant’s evidence on anything but basic matters, and also Mr Letman’s submission as to Mrs Salekipour’s tendency to make highly incredible accusations and assertions about Mrs Parmar (who has obviously become her bete noire) I am simply not satisfied that this threat was ever made”. In respect of the cutting of telephone lines and smashed windows, the Judge concluded “In short, the Claimant simply failed to prove to my satisfaction that insofar as these incidents of vandalism occurred, they were either committed or procured by the Defendant at all”.

On the counter claim, the Judge found at paragraph 169:

“As regards the claim for unpaid rent, Mrs Salekipour’s resistance to this rests on the contention that Mrs Parmar’s harassing conduct amounted to a repudiation of the lease, justifying her leaving the premises in February 2010 and refusing to pay any further rent. I have found that there was no such harassing conduct. It follows that the lease, with its liability for rent, continued until such point as Mrs Parmar, in effect, accepted its termination… With regard to that I am satisfied by the evidence of both Mr Fiszer and Mrs Parmar that this did not take place until January 2011.” (emphasis added)

It will be apparent from that brief survey of HHJ Marshall’s judgment that the credibility of the witnesses, and in particular of Mrs Parmar and her “independent” witness Mr Fiszer, was crucial to the Judge’s analysis. The Judge did not accept one account over the other uncritically and, as noted above, there were issues on which she did not accept Mrs Parmar’s evidence. But the reliance she could place on the witness evidence was essential to her approach.

HHJ Marshall handed down her judgment on 10 May 2012, dismissing the claim and giving judgment on the counterclaim in the sum of £17,138.95 plus interest in the sum of £1,518.93.

On 24 September 2014, Mrs Salekipour and Mr Saleem commenced the present proceedings for rescission of that judgment. The factual basis for that claim turned on a witness statement volunteered by Mr Fiszer in June 2014 which was annexed to the Particulars of Claim. In paragraph 4 of that statement, Mr Fiszer said that he started building works at the address on 29 November 2010. That contrasts with evidence given by the Defendant before HHJ Marshall that Mr Fiszer went into possession of the premises in March 2011. In paragraph 12 of his statement Mr Fiszer says this:

“In March 2012, I went to court to give evidence. I was told by Mrs Parmar that if I did not go to court for her and she lost then I would lose the shop. Before I went into court Mr Parmar and Mrs Parmar and some others got me in a room and told me what to say and in particular to say that I had only been in the premises since February-March 2011.”

He continued at paragraph 13:

“I was asked by the barrister for Mrs Salekipour when did I start work and I said two months before the lease which would have made it about February. The Judge asked how could I have carried out all the works and I said that we were Polish builders. I feel very bad about this now as it was not true. I also said in court that the premises were devastated and very messy. This was also untrue.”

As noted above, Mrs Salekipour and Mr Saleem sought an order rescinding the judgment in the original claim and an order for a new trial. They did so on the basis that it was “an affront to justice that the judgment obtained by the subornation of perjury by a party should be allowed to stand”. It was said that the Second Defendant, “having obtained judgment by subornation of perjury and the practising of a gross deception upon the court, the Claimants are entitled in equity and claim to have the judgment set aside and to an order for a new trial…”.

Mr and Mrs Parmar sought to strike out that claim as disclosing no reasonable grounds or as an abuse. It is to be noted that there was no suggestion in the strike out application that the county court would have no jurisdiction to grant rescission.

The matter was dealt with in short order by DJ Lightman. He struck out the claim holding it to be an abuse of process. He gave Mrs Salekipour permission to apply to set aside his order and she took advantage of that permission.

The matter came on before HHJ Faber. The parties agreed that there were four issues for her to decide. First, the jurisdiction of the county court to hear the claim; second, the abuse of process argument; third, whether the pleaded case was incoherent and unwinnable; and fourth, the “materiality” of the matters alleged in the claim for rescission to the judgment of HHJ Marshall.

Judge Faber held that the county court had no jurisdiction to rescind a previous judgment of the county court. That being so she dismissed the application to set aside DJ Lightman’s decision. That was sufficient to dispose of the matter before her but she went on to address the other matters on which she had heard argument. She held that there was no undue delay, that the procedure adopted was lawful and appropriate and that there was no abuse of process. She said that the pleadings were clear as to the allegation of subornation and that the evidence of Mr Fiszer was directly material to these issues of credibility, harassment and the rent counterclaim. She concluded:

“I am sure that had evidence been presented during the trial before Her Honour Judge Marshall QC that Mrs Parmer had perverted the course of justice before Mr Fiszer gave evidence it would have entirely changed the way the Judge approached and came to her decision. Thus it is very, very material to the outcome. So if I had jurisdiction to deal with this case, which I have already ruled I have not, I would grant the application to set aside the District Judge’s order and give directions for trial on the issue of subornation.”

I had the benefit of careful, skilful and thoughtful submissions by Mr Adrian Davies, on behalf of Mrs Salekipour and Mr Saleem, and from Mr Paul Letman, on behalf of Mrs Parmar. I am grateful for their assistance.

Mr Davies argued that the High Court had an inherent jurisdiction to rescind the judgment for fraud; that it is clear that an action for rescission of the judgment is for relief against fraud; and that, in the High Court at least, the better course when it is alleged a judgment is tainted by fraud is to bring independent proceedings to set aside the judgment. He acknowledged that the county court is a creature of statute with no inherent jurisdiction, but, on the basis of a detailed analysis of the history of the county court, he argued that sections 23 and 38 of the County Courts Act 1984 gave the county court jurisdiction to rescind a previous judgment for fraud.

Mr Letman contended that the county court had no jurisdiction to entertain a collateral action to set aside a final judgment of its own and referred me to the decisions of the Court of Appeal in Bishop v Chhokar [2015] EWCA Civ 24 and Rawding v Seaga UK Ltd [2015] EWCA Civ 113.

In the alternative, Mr Letman argued that the correct procedure to challenge the decision of HHJ Marshall was to seek to appeal rather than to commence a second action. In the further alternative he argued that the Particulars of Claim are so inadequately and incoherently pleaded “that they fail to disclose any reasonable grounds for bringing the claim and or are otherwise an abuse of the court’s process and likely to obstruct the just disposal of the proceedings”. He said that HHJ Faber was “wrong to construct the case that she did as to the relevance of the new evidence of Mr Fiszer and the evidence which he now says he would have given”.

Finally, Mr Letman says, that neither the allegation that the Defendants told Mr Fiszer what to say nor the evidence which Mr Fiszer now says he should have given could have affected the results at trial and satisfied the relevant test of materiality given that it was relevant primarily to the counter claim.

It was common ground that the county court is a creature of statute and, unlike the High Court, has no inherent jurisdiction, (see for example London Borough of TowerHamlets v Rahanara Begum [2005] EWCA Civ 116 at paragraph 50). The question, therefore, is whether the County Courts Act 1984, as construed by the higher courts, gives jurisdiction to the county court to rescind earlier judgments of the court on the grounds of alleged perjury and subornation of witnesses.

The relevant provisions of the Act are as follows:

“23.

Equity jurisdiction.

The county court shall have all the jurisdiction of the High Court to hear and determine…

(g)

proceedings for relief against fraud or mistake, where the damage sustained or the estate or fund in respect of which relief is sought does not exceed in amount or value the county court limit…

38.

Remedies available in county courts.

(1)

Subject to what follows, in any proceedings in the county court the court may make any order which could be made by the High Court if the proceedings were in the High Court…

70.

Finality of judgments and orders.

Every judgment and order of the county court shall, except as provided by this or any other Act or as may be prescribed, be final and conclusive between the parties.”

There can be little doubt that the High Court has jurisdiction to hear proceedings for rescission of a previous decision on the grounds, for example, of fraud. In Spencer, Bower and Handley’s Actionable Misrepresentation, 5^th edition, the learned authors write as follows:

“20.02

It has been established since the time of Coke that ‘acts of the highest judicial authority’ though ‘not to be impeached from within’ yet ‘are impeachable from without’ if they were produced by fraud or collusion (fraud). ‘Although it is not permitted to show that the courts were mistaken, it may be shown that they were misled’. Fraud is a collateral act, which infects the most solemn proceedings of courts of justice.”

In Hip Fong Hong v Neotia and Co. [1918] AC 888, the Privy Council held that where it is alleged “that a judgment has been obtained by fraud an independent action to set aside the judgment is a more convenient mode of procedure than a motion for a new trial supported by affidavits”. Lord Buckmaster said:

“Where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside a judgment upon the ground of fraud, when the whole issue can be properly defined, fought out and determined, though a motion for a new trial is also an available weapon and in some cases may be more convenient.”

In Jonesco v Beard [1930] AC 298, Lord Buckmaster said (at page 30):

“It has long been the settled practice of the court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires.”

In Kuwait Airways Corporation v Iraqi Airways Corporation [2003] 1 Lloyds Rep. 448, David Steele J set aside a decision of the House of Lords on the ground that it had been procured by fraud on the court.

It is right to say that in more recent times the more common means of challenging a judgment obtained by fraud is by way of appeal. Thus in Noble v Owens [2010] 1WLR 2491, Smith LJ said at paragraph 29:

“Although the old cases say that where there is an issue of fraud to be tried that must be done by commencing a fresh action, I do not think that in this day and age that should always be necessary. All that is needed is that the issue of fraud should be determined. That could be done just as well (if not better) by this court referring the trial of the fraud issue to a High Court judge pursuant to CPR r 52.10(2)(b) . The possibility that that might be an appropriate course was presaged by Lord Phillips of Worth Matravers MR, at para 21 of Hamilton v Al Fayed. In my view that would be a better course to follow in the present case for two reasons. First, the costs of a fresh action would necessarily exceed the costs of the trial of an issue. If the issue is referred, the matter could be dealt with quite expeditiously. The judge could give directions as to the clarification of the allegations and as to the exchange of evidence. In any event, most of that has already taken place. The matter could be ready for hearing within a very short time. Second, this court would be able to direct that the issue be tried by (the original trial judge).”

That notwithstanding, however, in my judgment it remains entirely proper for a party to challenge a decision of the High Court obtained by fraud by collateral action rather than by way of appeal. In Noble v Owens Elias LJ said:

“42.

There is no doubt that it is open to an appellant to take action against the successful party in the litigation to seek to have judgment set aside on grounds of fraud. This is a well established principle of equity.”

Elias LJ referred to a number of cases in which the only issue the court had been asked to determine was whether the conditions in Ladd v Marshall [1954] 1 WLR 1489 had been met and if so whether a retrial should be ordered. He went on:

“However, in none of these appeals does it appear to have been argued that the appropriate remedy was for the appellant to take an action to set aside the original judgment for fraud, and neither Flower v Lloyd 6 Ch D 297 nor Jonesco v Beard [1930] AC 298 was referred to in any of these judgments. Indeed, so far as one can tell, it does not appear that they were even cited to these courts. I do not, therefore, read these cases as undermining the authority of the principles established in those cases. In any event, they could not of course depart from the principles enunciated in Jonesco v Beard in their Lordships' House.”

The position in the High Court, therefore, is well settled. But the question that arises in the present case is whether the county court has a similar jurisdiction to the High Court.

Mr Davies acknowledged that there is only one authority that supports the proposition that the county court has such jurisdiction. In Stevenson v Garnett [1898] 1 QB 677, the Court of Appeal was considering a county court judgment by which damages and costs were recovered. Before the costs were taxed the plaintiffs agreed to accept a smaller sum than that for which judgment had been given and executed a deed releasing the defendant from the judgment debt and costs. Subsequently the plaintiffs applied to the county court for an order to tax on the basis that the release had been obtained by misrepresentation. The Judge heard evidence and found that the execution of the deed had been obtained by misrepresentation and made an order that the costs should be taxed and be paid together with the balance remaining due under the judgment.

The defendant brought proceedings in the High Court for a declaration that he should be released from the judgment debt and costs and for an injunction to restrain further proceedings to enforce payment. The Court of Appeal held that the question raised in the action was identical to that decided by the county court judge and had been decided by a court of competent jurisdiction. Accordingly the action was stayed as frivolous and vexatious.

At page 681, Chitty LJ said this:

“The question raised before the county court judge was identically the same question as that raised in the present action. The judge had jurisdiction in equity under s. 67, sub-s. 8, of the County Courts Act, 1888, to deal with this deed of release on the ground of fraud. He determined that question, and his determination can be explained only on the ground that the release was obtained by fraud”

At page 682 Collins LJ said:

“But I think we are at liberty to look at what happened before the county court judge; and when I do so I am satisfied that he had jurisdiction to deal with the deed of release upon the application before him. The judge did deal with it and set it aside, and it seems to me that ss. 9 and 67 of the County Courts Act, 1888, gave him jurisdiction to deal with it. Both parties attended before him, and the deed in question was invoked by the plaintiff as an answer to the claim for taxation. The judge heard the evidence and adjudicated upon the question raised. The very same question which is raised in this action was decided by the judge, and that lets in the inherent jurisdiction of the High Court, as appears from the cases which have been cited to us, to stay the action as frivolous and vexatious and an abuse of the process of the Court. In my opinion we are properly exercising that jurisdiction in this case.”

Mr Davies argues that that is powerful support for his assertion that the county court has jurisdiction to set aside a judgment of its own obtained by fraud.

The notes to section 23 in Halsbury’s Laws records the following in respect of the expression “relief against fraud” in subsection (g): “The equitable jurisdiction extends to setting aside a deed of release from a judgment debt obtained by fraud; see Stephenson and Garnett”.

That decision was not cited in the two recent Court of Appeal decisions where the jurisdiction of the county court in such circumstances was in issue.

In Bishop v Chokkar, the appellants were claimants in a claim arising out of a dispute over monies due from the respondent landlord. The county court Judge dismissed the claim and allowed the counter claim. The claimants were refused permission to appeal by Jacob LJ on the ground that it was an invitation to reassess the evidence heard at trial. The claimant issued a second claim against the respondent for conversion of goods, during the trial of which the defendant admitted that he had lied in evidence at the first trial. The appellant applied to reopen the decision of Jacob LJ. The Court of Appeal granted the application to reopen the appeal holding that the three requirements for doing so under CPR r52.17 were all met. The third requirement, that there be no alternative remedy, gave rise to debate as to whether, where a judgment has been obtained by fraud, a fresh action could be started to set aside the judgment.

The Court of Appeal held that the High Court would be exercising an inherent jurisdiction if it set aside a decision on the ground that it was obtained by fraud but that the county court had no inherent jurisdiction to set aside its own final orders. The Court of Appeal held that it was not clear that the county court had jurisdiction to determine a freestanding claim to set aside the previous decision when the second claim is based on an allegation that the first judgment was obtained by fraud.

Aikens LJ, with whom the other members of the court agreed, set out three submissions from Mr Tim Buley, the advocate to the court, indicating that he agreed with each of them. He said:

“35 Mr Buley's second submission followed on from his analysis of the nature of the jurisdiction and remedy to set aside a previous decision which had been obtained by fraud. He pointed out, first of all, that the County Court is the creation of statute. Unlike the High Court which inherited the powers of the old Court of Chancery, the County Court has no inherent jurisdiction to set aside its own final orders. Moreover, he submitted, there must be some doubt as to whether it has jurisdiction to determine a free-standing claim to set aside a previous decision of the County Court, which second claim is based on an allegation that the first judgment was obtained by fraud. Mr Buley submitted that it is not clear that this kind of action comes within the scope of Part II of the County Courts Act 1984 which sets out the statutory basis for that court's jurisdiction. … He noted that CPR r3.1(7) …cannot provide the original jurisdiction.”

It was in those circumstances, and noting the difficulties of mounting a second action in the county court, the Court of Appeal held that fresh proceedings in the county court could not be regarded as an “effective alternative remedy”. Aikens LJ said:

“I agree with Mr Buley that it is very much open to doubt that this procedural power was intended to be used in fresh proceedings to set aside or rescind a judgment in circumstances where it is alleged that the original order was obtained by fraud. We were not shown any example of that jurisdiction being used in such a manner.

37.

In the course of the hearing we did not fully investigate all these points. It seemed to us that there was sufficient in all the points that Mr Buley brought to our attention to conclude that, in this case, there was not an effective alternative remedy in a collateral action of the kind envisaged in Flower v Lloyd (No1) and Jonesco v Beard…”

In Rawding v Seaga UK Ltd, Tomlinson LJ gave a judgment with which the other members of the court agreed. He said at paragraph 46:

“It was (counsel’s) submission that if we are minded to regard (a witnesses) evidence as apparently credible and compelling, we should nonetheless decline to admit it on this appeal and leave (the claimant) to bring a new action to set aside the original decision as having been obtained by fraud. There is some doubt as to whether either the county court or even the High Court has jurisdiction to entertain an action to set aside or rescind a decision of the county court – see the discussion in Bishop v Chokkar… However, in my view the better course here is to admit the evidence on the appeal…”

I draw the following conclusions from that case law:

In those circumstances, it seems to me that the decisive question for this part of this case is whether sections 23 and 38 of the County Courts Act give the county court jurisdiction to rescind earlier judgments of that court.

In my judgment, section 38 is of only marginal relevance. It describes the remedies available to the county court; it does not purport to give jurisdiction. It provides that the county court may make any order which could be made by the High Court if the proceedings were in the High Court, but that must be read as subject to section 23; in other words, subject to it being shown that the county court has jurisdiction.

Section 23 defines the equitable jurisdiction given to the county court. It gives the county court all the jurisdiction of the High Court to hear and determine, inter alia, proceedings for relief against fraud, provided that the damage sustained does not exceed the county court’s limits.

In my judgment those words are appropriate to describe an original action for relief against fraud which itself causes damage below the relevant limits. It contemplates the county court having jurisdiction to try fraud cases where the amount in issue is below the relevant limit. In my judgment the wording of subsection (g) is inapt to create a mechanism by which a prior judgment can be set aside.

I am reinforced in that view by section 70 of the Act, which provides that every judgment of a county court shall be final and conclusive between the parties, save as is provided for by the Act or other statutory provisions. If it had been Parliament’s intention to provide, by means of section 23, a method of challenging and overturning a county court judgment, one might have expected rather more precise language in that section and in section 70.

I am further reinforced in this view by the decisions of the Court of Appeal in Bishop v Chhokar and Rawding v Seaga. Whilst I accept that neither is decisive of the issue and that, in neither case, was Stephenson v Garnett referred to the court, it seems to me plain that the Court of Appeal did not envisage section 23 giving the county court the sort of jurisdiction for which the Appellant contends.

In my judgment, Stephenson v Garnett does not make good the Appellant’s case. Stephenson v Garnett was not a case in which a judgment was rescinded for fraud; it was a case in which a compromise was set aside for fraud. Mr Davies suggests that that is a distinction without a difference. In my judgment that submission is unfounded. The critical difference is that in case of a deed of compromise or contract, the court is reviewing the conduct of the parties not the conduct of the court and it is that for which section 23 provides jurisdiction.

It is of note that counsel have been unable to find any case in the 118 years since Stephenson v Garnett in which it has been held that the county court has the jurisdiction contended for by Mr Davies. Mr Davies would seek to explain that by pointing to the fact that, until the introduction of the Civil Procedure Rules in 1999, the county court had the power to order a new trial upon such terms as it thought reasonable (see for example section 93 of the County Courts Act 1888, and County Court Rules Order 37 Rule 1).

Mr Davies may be right that that provided a more convenient route by which such a decision could be challenged but it is notable that there has been no resort to the suggested equitable jurisdiction of the county court on such facts since the introduction of the CPR.

For all those reasons, it is my conclusion that HHJ Faber was right in deciding that the county court has no jurisdiction to rescind an earlier county court judgment.

That is sufficient to dispose of this appeal, just as it was sufficient to dispose of the application before HHJ Faber. However, in deference to the submissions of counsel on the alternative grounds on which this appeal was resisted, I would add the following.

In my judgment, HHJ Faber was also correct in her conclusions on these alternative grounds. In other words, had I found there to be jurisdiction to make the order, the other arguments of Mr Letman in favour of upholding the decision below would have failed.

I have dealt above with the issue whether the decision in Noble v Owens means that the only means of challenging a judgment tainted by fraud is by means of an appeal. In my judgment, it is plain that, provided the jurisdiction exists, it is open to a litigant to challenge such a judgment by way of fresh proceedings.

Mr Letman was critical of the pleadings in the present action. I share his view that paragraph 7 of the Particulars of Claim, which relates to an alleged threat to have Mr and Mrs Friszer killed, which threat was said to be issued after the original proceedings, is scandalous and irrelevant and ought to be struck out. Had I allowed this appeal, I would have struck out that paragraph.

That aside, however, I agree with HHJ Faber that the pleadings are adequate. The pleadings make perfectly clear the nature of the allegation of subornation of perjury of Mr Fiszer, and although there might be grounds for a request for further information, there is nothing incoherent about the pleadings.

The third and fourth alternative grounds turn on the relevance of the new evidence of Mr Fiszer and their materiality to the judgment. I set out at paragraph 12 above, and following, the relevant parts of HHJ Mashall’s judgment. I reject the submission that the relevant evidence went wholly or primarily to the counterclaim. It seems to me entirely clear that the credibility of Mrs Parmar and Mr Fiszer were central to HHJ Marshall’s reasoning in respect of credibility generally, harassment and the rent counterclaim, precisely as HHJ Faber concluded. In fact I would go further; in my judgment it is only in respect of the third claim considered by HHJ Marshall, namely the unreasonable withholding of consent, that it can be said that the evidence of witness subornation was not relevant.

Furthermore, in my judgment it is not necessary or appropriate to dissect every element of the judgment under challenge. Where a court is reaching its conclusions on the basis of witness evidence, and that evidence is challenged on grounds of fraud, or the like, it will be a rare case where any part of the judgment can survive. Here, as is common ground, Mrs Parmar was the driving force on the part of the landlord in all these events. The evidence of Mr Fiszer, if true, would undermine her credibility in every part of the case.

As was pointed out in Jonesco v Beard at 310, “Fraud is an insidious disease and if clearly proved to have been used so that it might deceive the court it spreads to and infects the whole body of the judgment”. To rely on a somewhat more up-to-date authority, in Hamilton v Al Fayed [2000] EWCA Civ 3012, Lord Phillips MR said at paragraph 34(2) that:

“Where it is clearly established by fresh evidence that the court was deliberately deceived in relation to the credibility of a witness, a fresh trial will be ordered where there is a real danger that this affected the outcome of the trial.”

In my judgment there can be no doubt that, if the evidence of Mr Fiszer is true, there is a real danger that that would have affected the outcome of the trial on all issues, with the sole exception of the alleged unreasonable withholding of consent to the assignment of the lease.

In those circumstances I find myself in precisely the same position as HHJ Faber. I find as a matter of law that the county court had no jurisdiction to entertain the proceedings for rescission and for that reason this appeal must fail. Had I reached the alternative conclusion I would have allowed the appeal.