- Setting aside a judgment on the grounds of fraud—when a claim to set aside will be an abuse of process (Park v CNH Industrial Capital)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Dispute Resolution analysis: In a claim to set aside a judgment on the basis that it was obtained by fraud, it is necessary for the claimant to establish only that the fraud was ‘an’ operative cause of the judgment being entered, not ‘the’ operative cause. The rule in Henderson v Henderson, that a litigant must bring forward his whole case in the first action does not apply to a subsequent claim that the judgment was obtained by fraud if the fraud was not in issue in the previous proceedings. The claim to set aside the judgment will be an abuse of process only if, in conducting the original proceedings, the claimant alleging fraud in the claim to set aside had deliberately decided not to investigate a suspected fraud or had determined not to rely on a known fraud. Written by David Fisher, a barrister, and an associate member of New Square Chambers.
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