Owens v Noble

Lady Justice Smith:

1. When the Court circulated its draft judgments, we also issued a proposed draft order and invited the parties to make submissions on it. Both parties put in submissions and were then allowed time in which to respond to those of the opposing party. This ruling explains the decisions we have taken arising out of those submissions. Remission to Mr Justice Field

2. The decision of the Court was that the issue of fraud should be remitted for determination by a High Court judge. Our preliminary view was that this should be to the original trial judge, Field J. The respondent/claimant objects to that course, submitting first that, as a matter of principle, it is undesirable that the trial judge should decide whether a fraud was perpetrated on him. It is said that he is in danger of being both witness and judge. The situation is compared with that of a judge in whose presence there occurs an alleged contempt of court; the judge should not try the issue of contempt himself.

3. We do not think that the situation is in any way similar to the position of a judge who has witnessed acts that may amount to a contempt of court. A closer analogy is the remission of a case to a County Court or Employment Tribunal which has made an error of law. It is convenient and economical to send a case back to the same tribunal unless there is good reason not to do so.

4. In the present case, the judge will decide the issue of fraud on the evidence which is put before him. He will of course have to compare that with the evidence given at the original hearing. He will be in a far better position to make that comparison than any other judge as his memory will be refreshed by re-reading the reports and reading the transcripts; no other judge has any memory to rely on. Moreover, the judge was conspicuously fair at the first hearing; neither party sought to criticise his judgment in any way.

5. It is also submitted that there is a real risk that Field J may appear to have pre-judged the issue of fraud. Reliance is placed on his reaction when shown the video films at the application for a freezing injunction. He was clearly surprised at what he had been shown and said that he would not have expected the claimant to be capable of doing what he had been seen to be doing. However, later in the hearing, he observed that it may be that there was an explanation for the apparent improvement in the claimant’s condition and arranged a hearing at which that could be advanced. In our view, no well informed on-looker would entertain any fear that Field J would not consider the fraud issue impartially.

6. Our conclusion is that the fraud issue should be remitted to Field J, if he can be made available. Costs

7. At paragraph 3 of the proposed order, we directed that, in the event that the fraud was found to be proved and damages had to be reassessed, there should be no order in respect of the appeal to this court. The appellant objects to that proposed order, saying that it would be remarkable for a party who has, ex hypothesi been guilty of fraud to receive a favourable costs order. The appellant submits that, if fraud is proved, he should have his costs of the appeal.

8. The reason we proposed that there should be no order is that, to a large extent, the appellant’s submissions on the appeal failed. The appellant contended that the evidence of fraud was sufficiently strong that the assessment of damages should be sent back to a judge for rehearing without determination of the issue of fraud. We rejected that contention and held that the issue of fraud must be tried before there could be any question of reopening the assessment of damages. In short, the respondent succeeded on the main issue in the appeal. We remain of the view that, in those circumstances, it would not be just to make the respondent pay the appellant’s costs of the appeal even if he is found to have been is guilty of fraud. The just order, we think, is that there be no order for costs in that eventuality.