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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Davies & Ors v Morris [2018] EWHC 1901 (Ch) (26 July 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/1901.html Cite as: [2018] EWHC 1901 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Royal Courts of Justice Rolls Building, Fetter Lane, London EC4A 1NL
		26/07/2018

Master Bowles :

1. By a Claim Form, dated 12^th July 2017, the three Claimants in these proceedings seek the rescission of a judgment of Charles Hollander QC, sitting as a judge of the Chancery Division, in probate proceedings brought by the current Defendant, Adrian Nicholas Morris (Mr Morris) to prove the will of the late Owen Robert Treharne Davies (Owen), dated 30^th March 1996. The three Claimants are three of the Defendants in those proceedings (HC10C02504). The first Claimant is Owen's brother. The second Claimant is his mother and the third Claimant is his sister. The Defendant was a close personal friend of Owen.
2. The gravamen of the Claimants' Claim is that the judgment of Mr Hollander was procured by the fraudulent evidence given to the court by the Defendant. Before me, the Defendant applies to strike out the Claim, alternatively for judgment on the Claim, on the basis that the Claim has no realistic prospects of success. This judgment relates to that application.
3. The judgment, in the probate proceedings, which is sought to be set aside in the current proceedings, is a judgment in respect of a preliminary issue, raised for determination in the probate proceedings, as to Owen's domicile.
4. It was Mr Morris's case, in the earlier proceedings that Owen, although living and working in Belgium and France, as at the date of his death, in November 2008, retained his domicile of origin in England and Wales.
5. It was the current Claimants' position that Owen had acquired a domicile of choice in Belgium, such that the validity of his will fell to be determined by Belgian law and was void in Belgian law, as a sham, that, in consequence, succession to his English immoveables fell to be determined upon the basis of an intestacy, that, by reason of his Belgian domicile, succession to his moveables, wherever situated, was governed by Belgian law and, further, that, by reason of that domicile, the second Claimant, Owen's mother, was, in any event, entitled under Belgian law, to one quarter of Owen's estate.
6. By his judgment, handed down on 12^th July 2011, Mr Hollander determined that Owen had retained his domicile of origin in England and Wales and had not acquired a domicile of choice in Belgium. It is, I think, clear from his judgment, to which I shall refer in more detail later in this judgment, that Mr Hollander regarded the case for domicile of choice in Belgium as being a weak one. In his words, at paragraph 73 of his judgment, 'the evidence never came close to satisfying the burden … to show that Owen acquired Belgium as a domicile of choice'.
7. In reaching that conclusion and central to the present Claim, that his judgment was procured by fraud and is vitiated accordingly, Mr Hollander had regard to the evidence before him, emanating, essentially, from the Defendant, that Owen's 'only assets in Belgium consisted of one Belgian bank account with not much in it'. That, however, was but one of the factors taken into account and tabulated in paragraph 71 of his judgment.
8. The actual evidence, given by the Defendant as to Owen's assets in Belgium, is to be found in witness statements made by the Defendant in the probate proceedings and put in evidence before Mr Hollander.
9. In his witness statement dated 14^th April 2011, the Defendant stated that 'As regards assets in Belgium, Owen had one bank account …The closing balance as at the date of his death was €2,376.75' and further stated that 'the only assets Owen had in Belgium were €2,376.75' and that he 'was not aware that Owen owned any property in Belgium at any time'.
10. In a further witness statement, served and filed in respect of an application within the probate claim for an anti-suit injunction, relating to parallel Belgian proceedings, and also in evidence before Mr Hollander, the Defendant reiterated that Owen's only asset in Belgium was the bank account and that, otherwise, he was 'not aware that Owen had owned any property in Belgium at any time'. The suggestion, based upon the bank account, was that Owen's material connection with Belgium represented less than half a per cent of his estate.
11. The same case, as to Owen's assets in Belgium, was made in the Defendant's Reply and Defence to Counterclaim in the probate proceedings, signed by his solicitor, but, presumably, on the Defendant's instructions. Paragraph 5.5 stated that Owen 'held no property whether moveable or immoveable in Belgium save a small amount of cash held in a bank account'.
12. The Claimants' pleaded case is that all of the foregoing statements were untrue and known to the Defendant to be untrue.
13. As currently pleaded, it is said that, in fact, at the date of his death, Owen owned many valuable chattels in Belgium, that those chattels had filled two barns in Belgium and that, in December 2008, the Defendant brought back two lorry loads of those chattels, or possessions, to England. It is further said that had those facts been known, they would have constituted a highly material factor in the assessment of Owen's connection with Belgium and in the assessment, therefore, of his domicile, that, in consequence, the judgment of Mr Hollander was obtained by reason of the Defendant's dishonest evidence, going to a material particular, and that it would be an affront to justice, therefore, for the judgment to stand.
14. There is powerful evidence that the facts, as pleaded out by the Claimants, as to the knowing untruth of the Defendant's evidence before Mr Hollander, will be made out.
15. That evidence began to emerge in 2012, when, following the grant of probate in respect of the March 1996 will and in course of the administration of Owen's estate, solicitors acting for the Defendant made reference to the existence of substantial chattels, to which no reference had been made in draft estate accounts disclosed during the probate proceedings. Those assets, as it transpired, consisted of a collection of motor vehicles, motor cycles, spares, tools and associated items, which had been inventoried and valued by a firm of auctioneers, H J Pugh & Co, in August 2012, at a given value of circa £60,000. Owen was, as recorded by Charles Hollander, at paragraph 46 of his judgment, 'passionate about motorcycles and ... every other form of scrap metal'.
16. The emergence of these chattels did not, in itself, contradict the Defendant's evidence to Mr Hollander. The inventory provides no clue as to the whereabouts of the chattels at the date of Owen's death.
17. What does contradict the Defendant's evidence and his pleading in the probate proceedings is the contents of a letter written by Mr Clive Davies, who is the sole beneficiary of Owen's estate. Mr Clive Davies is Owen's uncle and, therefore, the uncle of the first and third Claimants. Although joined as a defendant in the probate proceedings he took no part in the trial. Unsurprisingly, given his potential interest as sole beneficiary, he, at that stage, indicated his support for the Defendant. He is, as emerges from the letter, itself, deeply estranged from, certainly, the first Claimant, Adrian Davies, between whom, he says, there is a mutual antipathy.
18. The letter itself was first sent to the Claimants' then solicitors in May 2016. It was, at that stage, unsigned. Before me, however, the Claimants were able to adduce a signed and witnessed version, which also contained a number of additions and corrections. The letter is long and raises a series of complaints against the Defendant and his solicitors. For present purposes, however, it states that Owen had a large number of possessions in Belgium, as at the date of his death, that he, Mr Clive Davies, had seen these possessions, largely cars, motor cycles, parts, firearms and tools in May 2008, when he had been staying with Owen, and that the extent of these possessions was such as to require their storage in two barns in Dikkele village, where Owen and his fiancée, Natalie de Vleeschauwer (Natalie), were living at the date of Owen's death.
19. As importantly, given the plea of fraud, the letter makes clear that the Defendant was aware of these possessions, in Belgium, because, in December 2008, Mr Clive Davies, as sole beneficiary, was contacted by the Defendant for his permission to repatriate, as it is put, Owen's possessions. The cost of such a repatriation would, of course, be an expense of the estate and it is, therefore, unsurprising that the beneficiary of the estate would be approached in this way. That consent was, it is said, given and Mr Clive Davies's letter records that the Defendant went to Belgium in December and in the New Year of 2009, such that, by April 2009, Owen's possessions had either been returned to England or put in storage in Belgium. In this regard, Mr Clive Davies states that his permission was sought and given for the Defendant to purchase a container for the storage of Owen's residual possessions in Belgium and that that container and its contents remains in Belgium at an address at 28 Hauwstraat.
20. The assertions in Mr Clive Davies' letter, as to the Defendant's conduct in respect of Owen's possessions after his death and, therefore, of his knowledge as to the existence, whereabouts and extent of those possessions, derive, as I see it, significant support from the analysis that the first Claimant has made of the estate accounts, as set out in his witness statement, dated 30^th April 2018. It is clear that, on at least three occasions between December 2008 and April 2009, the Defendant hired vans and took them to Belgium. It is also clear that, in April 2009, as stated by Mr Clive Davies, estate monies were spent in respect of the hire, or acquisition, of a container.
21. In light of the foregoing, I have no doubt at all that the Claimants have realistic prospects of establishing at a new trial that the evidence given by the Defendant, before Mr Hollander was knowingly and materially untrue. In this regard and while, of course, there is no obligation upon the Defendant, when launching a strike out application to put forward a factual case, it is, I think, somewhat surprising, in the context of a Part 24 application, where the factual prospects are, potentially, in issue, that the Defendant has not, in his evidence, raised any explicit denial of the facts now being advanced by the Claimants.
22. The Defendant's application was, at its outset, founded upon a number of different bases. By the good sense of the parties, however, the issues for determination have been greatly curtailed. It is no longer contended that the Claim be struck out for inadequacy of pleading. Nor is it now submitted that the Claim must fail on the basis that the new material which grounds the claim, principally the information and evidence provided by Mr Clive Davies, is material which could with due diligence have been available at the original trial.
23. What is maintained, upon behalf of the Defendant, is that, in the context of the issue of domicile determined by Mr Hollander and the range of material taken into account by Mr Hollander in reaching his conclusions upon domicile, the untrue evidence allegedly tendered by the Defendant was not of such sufficient materiality in the judge's decision making process as to give rise to any realistic prospect that, had the true material been available, the court would have reached a different conclusion. Put simplistically, the Defendant's core submission is that the alleged suppression of the true facts as to the quantity and extent of Owen's chattels in Belgium made no difference to the outcome of the preliminary issue and, in consequence, there is no realistic prospect that, at a trial and even if the Defendant's dishonest evidence is fully established, the court would set aside Mr Hollander's judgment as being causative of that judgment.
24. That submission, attractively argued by Mr Rowntree, for the Defendant, raises, necessarily, a mixed question of fact and law. The question of law is as to the test to be applied in determining whether fraudulent evidence given at a trial is of such a character as to warrant the setting aside of an earlier judgment emanating from a trial at which that evidence was given. The question of fact is as to whether there is a realistic prospect of that test being made out in the context of this case and, in particular, in the context of the issue of domicile which fell to be determined by Mr Hollander and the materials relied upon by Mr Hollander in determining that issue.
25. Mr Rowntree's starting point, in respect of the law, was the judgment of Aikens LJ, in Royal Bank of Scotland Plc v Highland Financial Partners LP [2013] EWCA (Civ) 328, and, in particular, paragraph 106 of that judgment.
26. In that paragraph, Aikens LJ set out the test which had been agreed by counsel, in that case, as being applicable where it was sought to set aside a judgment upon the grounds of fraud. That test, in so far as relevant to the present case, was to the effect that the evidence, now shown to be dishonest. which had been advanced in the earlier trial, must have been 'material', in the sense that it constituted an 'operative cause of the court's decision to give judgment in the way it did', or that the fresh evidence, now available and now establishing the dishonest nature of the evidence previously given, 'would have entirely changed the way in which the first court approached and came to its decision'. 'The relevant conscious and deliberate dishonesty must be causative of the impugned judgment being obtained in the terms it was'.
27. The test set out in Royal Bank of Scotland, although taken as common ground by the parties, in Takhar v Gracefield Developments Ltd [2017] EWCA (Civ) 147, does not, as it seems to me, wholly reflect the range of judicial views that have been expressed on this topic, both historically and recently.
28. In Chodiev v Stern [2015] EWHC 1428, Burton J, at paragraph 21 of his judgment, identified a number of forms of words which have recently been used to describe the weight and effect of the material which is required before a judgment is set aside on the grounds of fraud.
29. In Dicey Morris & Collins (15^th Edition) it is said, at 14-138, that the new evidence to be produced must be 'so strong as to be reasonably expected to be decisive at the rehearing and if unanswered have that result'. In Owens Bank v Bracco [1992] 2 AC 443, Parker LJ describes the necessary evidence to be adduced to enable a judgment to be set aside for fraud as being evidence which, had it been adduced at trial, 'would in probability have caused a different conclusion to be reached'. In Sphere Drake Insurance Plc v The Orion Insurance Co Plc (unreported 11 February 1999), Langley J described the evidence of fraud necessary to set aside a judgment as being 'such as entirely changes the aspect of the case, in the sense that it must be likely to be decisive of the outcome of the claim in question'. In KAC v IAC [2003] 1 Lloyds Law Rep 448, at paragraph 146, David Steele J described the new evidence required as being evidence which 'entirely changed the nature of the case'. In a later judgment, KAE v IAC [2005] EWHC 2524 (Comm), he further described the necessary material as being material 'which was likely to be decisive as to the outcome'.
30. As far as I can see, the foregoing authorities and the foregoing citations all stem from the court's concern with and application of the principle, described, in Owens Bank, as a 'salutary English rule', that, save within stringent criteria, the finality of a judgment should not be disturbed. On that footing, as it would appear, the test to be satisfied before a court will interfere with an earlier judgment on the grounds of fraud, or perjury, in the obtaining of that judgment is that the new material, probative of that fraud, is also of such weight, if accepted, as to have either been causative of the judgment now complained of (Royal Bank of Scotland), or, at least, such as to have entirely changed the nature of the case and likely, therefore, to have been causative of that judgment.
31. Those authorities and citations, however, do not appear to me to be wholly consistent with an alternative line of authority, of respectable antiquity, the focus of which is a different principle, namely that fundamental interests of justice require that a judgment which is tainted by fraud should not stand.
32. The starting point, here, is the decision of the Privy Council, in Hip Foong Hong v H. Neotia & Co [1916] AC 888 (PC) and the judgment of Lord Buckmaster in that case. That judgment distinguishes between the case where a judgment is sought to be set aside on the basis of new evidence and the case where a judgment is sought to be set aside on grounds of fraud. In the former case, the new evidence must be such as would have been determinative of the result. In the latter case, however, no such considerations arise and a judgment tainted by fraud, even if, as I read it, not determinative of the result, should not be allowed to stand.
33. The same view, although, perhaps, not so explicitly stated, emerges in a further speech of Lord Buckmaster, in the House of Lords, in Jonesco v Beard [1930] AC 298. In that case a claim was brought in respect of two matters; a claim for a share in ownership of eight race horses and a claim for the price of two horses. It was alleged, upon an appeal seeking a motion for a new trial, that the evidence relating to the sale of the two horses had been fraudulent. In the result, that fraud was not shown to have been established. However, as is clear from Lord Buckmaster's speech, at page 301, had fraud been established in respect of the sale of the horses 'the whole judgment would have been vitiated' and not solely that part relating to the sale. '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'. In Jonesco, the fraud was not said to have been determinative of the issue of ownership. Yet, had the fraud been established the whole judgment and not merely that part relating to the sale would have been set aside.
34. The same question, or issue, came before the High Court of Australia, in McDonald v McDonald (1965) 113 CLR 529. In that case, Barwick CJ endorsed, as I read it at pages 532 and 533, the views of Lord Buckmaster, as to the distinction to be drawn between the case where a retrial, or reconsideration, is sought upon the grounds of fresh evidence and the case where a retrial is sought upon the ground that the verdict was obtained by fraud. In the latter instance, although the evidence of fraud must be fresh, a retrial can be ordered where the new material tends to establish that the verdict, or judgment, was procured by fraud even where the new material would not necessarily be admissible on the issues in the action, or be conclusive, or probably conclusive on those issues.
35. As to any requirement of a causative link between the fraudulent conduct and the original verdict, or judgment, Menzies J, as part of his concurring judgment, at page 542, took the view, again, as it seems to me, consonant with that expressed by Lord Buckmaster, that, once established that a judgment is tainted by fraud, that judgment will, without more, be set aside without any speculation as to the result of the wrongdoing (Menzies J's example was bribery) in question.
36. That linkage and also the relationship between the broad principles of justice, which, as I see it, underlie the foregoing decisions and the, potentially, conflicting principle of finality, which is at the heart of the line of authority culminating in Royal Bank of Scotland, was discussed, further, in the Court of Appeal, in a case preceding McDonald, Meek v Fleming [1961] 2 QB 366.
37. In that case, where the court had been deceived as to the status and character of a police witness, who had been reduced in rank for being party to an arrangement to deceive a court of law, Holroyd Pearce LJ, at page 379, defined the relevant principle to be applied as being to the following effect: where a party deliberately misleads a court in a material matter and that deception has probably tipped the scale in his favour (or even where it may reasonably have done so) it would be wrong to allow that party to retain the judgment thus unfairly procured. To the same effect, Willmer LJ, at page 383, expressed the view that, where the court has been deceived in relation to a matter of vital significance, it would be a miscarriage of justice to allow a verdict obtained in that way to stand.
38. In regard to finality and in the context of a deliberate deception of a court, Holroyd Pearce LJ's view was that 'finis litium' (finality), while a desirable object, should not be sought at the sacrifice of justice. In his view, a principle that allowed and, thereby, encouraged such a result would do greater harm than a multiplication of trials.
39. All of the foregoing decisions were considered by a strong Court of Appeal, Lord Phillips MR (as he then was), Sedley LJ and Lady Justice Hale (as she then was), in Hamilton v Al Fayed [2000] EWCA Civ 3012.
40. The judgment of the court, given by Lord Phillips, determined that a new trial should be ordered where the interests of justice so require. Having posed, at paragraph 23, the question as to whether Menzies J was right, in McDonald, to suggest that, once it is shown that a judgment is tainted by fraud, a retrial will be ordered without more, his answer, at paragraph 26, was that '(w)here a party has behaved fraudulently … the vital question to be asked is whether there is a real danger that this has influenced the outcome. If there is, a retrial should normally be ordered. If there is not, the interests of justice require that the decision should stand'.
41. That test applies whether the new material purporting to establish fraud goes to the issues in the previous claim or to issues of credit, or both. In respect of credit the position is set out at paragraph 34(2). 'Where it is clearly established by fresh evidence that the Court was deliberately deceived as 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'.
42. The conflict, between the view expressed in the authorities, which culminate in Royal Bank of Scotland, and those discussed and explained in Hamilton v Al Fayed, surfaced, very recently, in the Court of Appeal, in Salekipour v Parmar [2017] EWCA Civ 2141. The primary issue in that case was jurisdictional, namely as to whether the County Court, as opposed to the High Court, had jurisdiction to set aside a judgment for fraud. That question was answered in the affirmative and, in consequence, it fell to be determined, on the facts of that case, whether the judgment obtained in that case should be set aside.
43. In deciding that it should be set aside, Sir Terence Etherton MR, while preferring not to make any final decision on the point, drew attention, at paragraphs 88 to 90, to the two tests, to the fact that the test, in Royal Bank of Scotland, had emanated not from argument before the court but from the agreement of counsel and to the fact that Hamilton v Al Fayed had not been cited. It is, I think, clear, from paragraph 93 of his judgment that, had it been necessary to do so, he would have taken the view that it was the approach adopted in Hamilton v Al Fayed which constituted the proper approach.
44. It would be quite inappropriate, upon an interlocutory application, such as the present, to seek to resolve the dichotomy identified in Salekipour. What is clear, given the dichotomy, given that the views expressed by Lord Phillips, on behalf of the Court, in Hamilton v Al Fayed, represent the reasoned views of a strong Court of Appeal, having heard full argument, and given the support for those views to be found in the Master of the Rolls' judgment in Salekipour (a judgment which was, itself, agreed by the other two members of that court), is that it is manifestly the case that, at a trial, there are more than realistic prospects that the test found to be applicable will be that established in Hamilton v Al Fayed, rather than that set out in paragraph 106 of Royal Bank of Scotland. Accordingly, for purposes of the current application, I propose to regard the applicable test as that laid down by Lord Phillips in Hamilton v Al Fayed.
45. The next question, therefore, is as to the application of that test to the facts of this case and, in particular, as to whether, applying that test, in the context of a Part 24 application and of the issues determined and for determination by Mr Hollander, there is a real danger that the lies apparently told to Mr Hollander by the Defendant, as to the quality and extent of the assets that Owen held in Belgium and the apparently deliberate conduct of the Defendant in misleading the court as to the existence of those assets and, in so doing, as to his own honesty and credibility as a witness, might realistically have had an effect upon the outcome of the preliminary issue tried by Mr Hollander.
46. Mr Rowntree, in his skeleton argument, albeit dealing with the application of the test derived from Royal Bank of Scotland, described the prospect of the court treating that test as being satisfied on the facts of this case as 'risible'. Applying the Hamilton v Al Fayed test, I do not think that the Claimants' prospects are risible.
47. While acknowledging the remarks of the Master of the Rolls, in Salekipour, to the effect that it was not helpful, on an application of this nature, to conduct a detailed analysis of the judgment called into question, with a view to demonstrating that the claim to set aside the judgment was bound to fail, Mr Rowntree, nonetheless and helpfully, took me to the salient parts of Mr Hollander's judgment.
48. The issue for determination by Mr Hollander was as to whether Owen had given up his domicile of origin and acquired a new domicile of choice in Belgium. Such a domicile could have been acquired if Owen was demonstrated to have been resident in Belgium at the date of his death and if it was also demonstrated that he had an intention of indefinite or permanent residence in Belgium. In determining whether that demonstration was made out, the court had to consider any circumstance that was evidence of his residence in Belgium or of his intention to reside permanently, or indefinitely, in Belgium. The court also had to have regard to what has been termed the tenacity, or adhesive quality, of a domicile of origin.
49. In determining that Owen, although resident in Belgium (see paragraph 74 of his judgment), did not have the relevant intent to reside permanently, or indefinitely, in Belgium, Mr Hollander, as already stated, took into account and tabulated, in paragraph 71 of his judgment, a number of matters, which he derived from the evidence.
50. Among those matters and forming part of his reasoning in reaching his conclusion, was the fact (again already stated) that Owen's Belgian assets consisted only of a Belgian bank account 'with not much in it'. Other matters to which he had regard were the fact that Owen retained a property in the UK (albeit primarily to retain a foothold in the property market), the fact that he retained a UK passport and driving licence, the fact that he did not purchase a property in Belgium, the fact that he apparently retained an almost jingoistic Britishness, the fact that his friends were English and he holidayed in England and the fact that he professed or developed no affection for Belgium and its culture. All these matters, including the lack of assets in Belgium, were factored in, as I read it, by Mr Hollander as being evidence that Owen had not developed a permanent, or indefinite, intention to reside in Belgium.
51. Of the other matters identified and tabulated by Mr Hollander, a number related to the property occupied by Owen and his fiancée, Natalie. That property, known as the Hovel, had been purchased, in 2007, with Natalie's money and in Natalie's name, as a property for their joint occupation. Relevantly, for present purposes, one of the objects of the purchase had been to provide Owen with a workshop. While acknowledging this fact and the fact that Owen had been actively involved in the refurbishment of the property, Mr Hollander took the view that the fact that the purchase had been funded by Natalie as her property, coupled with his finding that Owen's short to medium term intentions were to change his job, with the expectation that Natalie would follow him wherever that job took him, meant that the property did not provide secure evidence of a permanent, or indefinite, intention to reside in Belgium. Another factor, said to point towards permanence, but which did not find favour with Mr Hollander, was Owen's love of the cats, kept by him at the property.
52. Reliance was also placed, by Mr Hollander, upon the fact that Owen had indicated to Natalie that he would want any children educated at boarding school in England. His intention had been to marry in England and he had indicated, it is said, to the current Defendant, an intention to retire to England. Letters written in 2001, referring to an intention to live in Belgium for 'an indefinite period' meant, in Mr Hollander's judgment, no more than that Owen did not know when he would be returning to England. With appropriate caution, Mr Hollander also attached weight to a number of declarations, or comments, in emails, in which Owen described himself as 'British but resident in Belgium' and 'I am an expat in Belgium'.
53. In the light of this range of factors to which Mr Hollander had regard in reaching his determination, Mr Rowntree's submission is that the new material, as to Owen's assets in Belgium and as to the Defendant's allegedly dishonest evidence as to those assets, would not, even if established, have made any difference. The preponderance of factors pointing against the acquisition, by Owen, of a domicile of choice in Belgium, in the context of the adhesive quality of his domicile of origin, made it unrealistic, in his submission, to conclude that there was any serious prospect that the new material, had it been available, would have altered Mr Hollander's conclusions.
54. I am not persuaded that the matter is as straightforward as Mr Rowntree submits.
55. It seems to me that, had Mr Hollander been aware of the new material now available (assuming for this purpose that that new material is made out and there being, as already stated, powerful evidence that it will be made out), then he would have, necessarily, considered the question of domicile of choice in a very different way.
56. As a starting point, rather than the absence of assets in Belgium amounting to and constituting one of the matters relied upon as contradicting any permanent, or indefinite, intention to reside in Belgium, the fact, that, in truth, Owen had brought to Belgium and had housed in Belgium a large quantity of chattels, many of value, pertaining to one of his major interests, would have had to be brought into Mr Hollander's analysis upon the other side of the equation and as material suggesting a significantly greater degree of permanence in Belgium than that suggested by the evidence said to have been dishonestly advanced on this point by the Defendant.
57. In this regard, Mr Rowntree sought to submit that, although not specifically adverted to, within Mr Hollander's reasoning, his judgment, nonetheless, makes clear that he was fully aware that Owen had, in Belgium, a significant quantity of chattels relating to his interest in, as Mr Hollander put it, variously, in his judgment, scrap metal, motor cycles, restoring old vehicles and buying additional scrap vehicles, that the Hovel had been purchased, among other things, to provide Owen with a workshop to accommodate his pursuit and that Owen's financial contribution to the restoration of the Hovel was repeatedly constrained by his expenditure upon scrap vehicles.
58. There is something in the point. However, as it seems to me, what was deliberately obscured from Mr Hollander was the sheer scale of Owen's operation and the true extent, quantity and value of the items acquired by Owen and brought to and housed in Belgium by Owen. It is one thing for a person to have a workshop and an enthusiasm for scrap metal. It is another, where that person acquires and stores, over a number of premises, a considerable quantity of valuable chattels relating to that enthusiasm and, presumably, to be utilised, over time, in respect of that enthusiasm. That latter conduct, as it seems to me, is conduct which evidences a significant degree of permanency in the living arrangements of the person in question.
59. That Mr Hollander was not fully alive to the true position is, I think, abundantly clear from his reasoning in paragraph 71 of his judgment. Had he been fully aware of the extent and value of what he termed 'scrap metal', or, indeed, that the so-called scrap metal was of such value and importance as to warrant several trips to remove the items to the UK and the, apparently, continued hire of a container to hold and retain the residue, he could not have described Owen's assets in Belgium in the way he did. Rather, as it seems to me, he was, or must have been, diverted from the true position by the Defendant's evidence, as set out earlier in this judgment; perhaps, most materially, his evidence, carrying the necessary implication that the 'scrap metal' was of no value, that Owen's assets in Belgium reflected, or represented, less than half a percent of his estate.
60. The facts allegedly supressed by the Defendant and the fact of the suppression of those facts, if made out, would, as it seems to me, have had further possible implications in the way that Mr Hollander considered and resolved the question of domicile.
61. It would, or might, in particular, have affected his views as to the weight to be given to the Hovel as indicative of Owen's intention to reside permanently, or indefinitely in Belgium.
62. As is set out in paragraph 71 of Mr Hollander's judgment, the purchase of the Hovel, for renovation and occupation by Owen and his fiancée, was regarded by Mr Hollander as some evidence of permanence in Belgium and, as he put it, 'the high water mark of the case in favour of Belgian domicile'. The weight of that evidence, however, as is clear from paragraphs 71 (iii) and (iv) was, in his view, reduced by the consideration, both, that Owen was unhappy in his job and would have moved wherever work took him and that the property had been purchased by Natalie and as her property.
63. It seems to me that the weight given by Mr Hollander to these contra-indications could well have been significantly affected had Mr Hollander been aware of the full picture. His knowledge of the steps that Owen had taken to accumulate and store, in Belgium, a large and, in part, valuable quantity of chattels relating to one of his main enthusiasms might well have caused him to modify his view as to Owen's willingness to move in pursuit of work, at least in the sense of his willingness to wholly abandon his base in Belgium in the interests of securing work. Likewise, it seems to me that the same factors might, when set against the fact that the purchase had been Natalie's purchase, have given him serious cause to conclude that the fact of that purchase in that form was not, after all, such a clear indication of impermanence, or of a lack of a definite intent to remain permanently in Belgium, as, on the materials then before him, he, appears, at paragraph 71(iv), to have concluded.
64. The facts now alleged by the Claimants, if made out and if they had been available to Mr Hollander, would, as I see it, have had further implications. Mr Hollander would have become aware that the Defendant, in these proceedings, had supressed evidence and told a number of bare faced lies in respect of matters, plainly, material to the issue for his determination. It seems to me that that would have had consequences, both in respect of the credibility of the Defendant as a witness and in respect of Mr Hollander's possible evaluation of the weight to be given to the supressed material.
65. As to credibility, it is hard to see that, faced with the new information, the Defendant could have been assessed as anything other than an unreliable witness and one, therefore, who could not be trusted in the evidence he gave as to Owen's 'intentions and aspirations' (see paragraph 18 of Mr Hollander's judgment).
66. The importance of that is that, as Mr Hollander made clear, in paragraph 18 of his judgment, his primary sources in respect of Owen's intentions and aspirations were the Defendant and Natalie and that it was from them, primarily, that he drew the information from which he felt able to say, at paragraph 22, that he felt he had received a very full portrait of Owen. He formed that portrait, in so far as the Defendant contributed to it, upon the express basis that he found the Defendant to be a truthful and reliable witness and, presumably, therefore, a truthful and reliable witness in respect of those aspects of Owen's intentions and declarations of intention which, as Mr Hollander recorded, in paragraph 18 of his judgment, were in issue.
67. Had Mr Hollander known and accepted what is now, very realistically, contended on behalf of the Claimants and had he, as he very well might, have taken the view, in consequence, that the Defendant's evidence as to Owen, his intentions and declarations was flawed, then he would, necessarily, have had to re-evaluate the weight that he gave to the Defendant's evidence as it contributed to his picture, or portrait, of Owen, his understanding of Owen's intentions and the veracity of any evidence given by the Defendant as to any declarations of intent made to him, or in his presence.
68. Additionally, as I see it, Mr Hollander's knowledge, in the previous proceedings, that the Defendant had supressed and lied about facts, going to the permanency of Owen's residence in Belgium and the roots he had put down in Belgium, would, inevitably, have caused Mr Hollander to give close consideration as to the reasons underlying that conduct. The clear likelihood is that he would have concluded that the Defendant was hiding the relevant facts because he knew that they went against his contention that Owen had retained his domicile of origin and because, at least in the Defendant's perception, the material in question was of sufficient weight and importance, in respect of the question of domicile, as to warrant the Defendant's seriously dishonest behaviour. That, in its turn, would, necessarily, have cast a spotlight on to the supressed facts and the weight to be given by the court as to those facts.
69. While the analogy is by no means exact, there are, as it seems to me and as, I think, recognised by the Master of the Rolls, in Salekipour (see paragraphs 91 and 92 of his judgment in that case), useful parallels to be drawn between a claim to set aside a judgment for fraud and a conventional transactional claim in fraudulent misrepresentation.
70. In the latter case, it is well understood that 'a party who has practised deception with a view to a particular end which has been attained.., cannot be allowed to deny its materiality'.
71. Similarly, in a case such as the present, if it is found that the Defendant deliberately and dishonestly supressed evidence as to the extent, quantity and quality of Owen's assets and chattels in Belgium and if, as seems likely, the conclusion is drawn that the reason for that behaviour was to preclude the court from having the supressed facts in mind when making its decision as to domicile, then it will lie ill in the mouth of the Defendant to say that the supressed matters were immaterial to the court's decision.
72. That, of course, is not to say, without more, that the supressed facts are, or would have been, determinative. Mr Hollander's decision was multi-factorial and the supressed matter, together with the fact of their suppression, while, as indicated above, potentially bearing strongly upon other relevant matters, would not, if before him, have been, necessarily determinative in favour of the current Claimants.
73. What can be said, however, is that, borrowing the words from Royal Bank of Scotland and for the reasons discussed in this judgment, the new material 'would have entirely changed the way' in which Mr Hollander approached and reached his decision. Even had the same decision been reached, it would have been reached, as I see it, on different facts and by way of an entirely different analysis.
74. That would not, of itself, warrant, or require, the setting aside of the judgment. The fact, however, that Mr Hollander would, had the new material been available to him and established before him, have had to entirely re-analyse and re-assess his decision, bringing into account that material, does, as it seems to me, give rise to realistic grounds for setting the judgment aside.
75. I do not see that it can safely be said, as Mr Rowntree asks me to say, that the new material now available and the fact that that material was dishonestly supressed from the hearing before Mr Hollander could not, realistically, have changed the outcome of those proceedings.
76. As already discussed, the new material would have had the effect of replacing a significant factor pointing towards Owen's retention of his domicile of origin with a factor which was, at the least, suggestive of a desire and willingness to put down roots in Belgium and which, correspondingly, might well, also, have had the effect of displacing, or modifying, the weight that Mr Hollander gave to other factors which, absent the new material, were seen as indicative of a retained domicile of origin. The Defendant's dishonest conduct, in hiding the fact that Owen had acquired and stored substantial assets in Belgium, now largely repatriated to England, could only, if known to Mr Hollander, have given emphasis to the weight, in favour of a change of domicile, arising from that circumstance. The knowledge of the Defendant's dishonest behaviour would, likewise, have had to cause a re-evaluation of his testimony and the weight to be given to his evidence both as to Owen's professed intentions and as to the veracity of Owen's alleged declarations.
77. Taking all these things together, it does not seem to me to be possible to say that there are no realistic prospects that the new and supressed material might not have changed the outcome of the proceedings before Mr Hollander, or, therefore, that there is no real danger that the Defendant's dishonest conduct, if established, had the effect of influencing the outcome of those proceedings.
78. Even when regard is had to Mr Hollander's view, as set out in paragraph 6 of this judgment, that the case, as presented to him, was a weak one, I do not think that I can discount the real possibility (albeit not, I think, a probability) that Mr Hollander would have reached a different answer if the facts, including the Defendant's conduct, which are now presented, had been before him at the earlier hearing, with the consequence, that there is, on the evidence before me, a real danger that the Defendant's dishonest evidence and conduct in respect of that hearing could have affected the outcome of those proceedings.
79. In the result, therefore, I am not prepared to strike out this Claim, or to give Part 24 judgment in favour of the Defendant. This case should go to trial.
80. I add that, at the hearing, I posed to counsel, the possibility that, even were I to conclude that the new material did not give rise to realistic prospect of the Claimants establishing any real danger that the original outcome of the proceedings before Mr Hollander had been affected by the Defendant's dishonest evidence and dishonest conduct, if made out, it might, nonetheless, be appropriate to treat this case as one of those, albeit rare, cases where compelling reasons existed for the case to go to trial.
81. For the avoidance of doubt, had I formed the view that this case had no real prospects of success, I would not have sent it to trial upon the above basis. While there is some authority that where a party seeking a summary judgment has been guilty of serious misconduct he should only get a judgment in the full light of the publicity potentially engendered by a trial, there is, on the other hand, the consideration that, in circumstances where the outcome of the proceedings is clear and obvious, it would be both a waste of costs and of judicial resources for the matter to be required to go to a trial.
82. Be that as it may, in this case and for the reasons given, I am not prepared to strike out, or dismiss, this Claim and I will, accordingly, dismiss the Defendant's application.