Hip Foong Hong v H. Neotia & Company

JurisdictionUK Non-devolved
Judgment Date1918
CourtPrivy Council

Practice - New Trial - Fresh Evidence - Fraud or Surprise - Judgment not affected - Mode of Procedure.

To obtain a new trial upon the ground that fresh evidence has been discovered, if no charge of fraud or surprise is brought forward, it must be shown that the fresh evidence would be conclusive; but that consideration does not apply to a case of surprise, much less to one of fraud. If a judgment is affected by fraudulent conduct it must be set aside.

Judgment of the Supreme Court at Shanghai rejecting a motion for a new trial based upon allegations of perjury and bribery, affirmed on the ground that it did not appear that the decision at the trial had been affected by the fraud alleged.

When 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.

APPEAL from a judgment of the Supreme Court at Shanghai (January 12, 1917).

The judgment appealed from rejected a motion by the appellants for a new trial of an action between the parties. The motion was based upon evidence that witnesses called for the respondents at the trial had committed perjury, and that the respondents' case had been supported by bribery and other fraudulent conduct. The motion was heard upon affidavit evidence.

The facts appear from the judgment of their Lordships.

1918. June 13, 14, 17. D. M. Hogg K.C. and A. M. Latter for the appellants.

Hughes K.C. and A. C. Nesbitt for the respondents.

[Reference was made to Young v. KershawF1, Warham v. Selfridge & Co.F2, Robinson v. SmithF3, and Brown v. Dean.F4]

July 15. The judgment of their Lordships was delivered by

LORD BUCKMASTER. This is an appeal from an order of the Full Court of His Britannic Majesty's Supreme Court for China sitting at Shanghai, refusing the appellants' application for the new trial of an action heard by the Chief Judge, Sir Havilland de Sausmarez, on July 7, 1916, and decided in favour of the respondents.

An appeal was originally instituted against the judgment itself, but this was abandoned in favour of the attempt to obtain a new trial. The appellants were well advised in the course they thus took. The difficulties that beset the hearing of the action were not of a nature that could be better resolved before their Lordships than they were before the learned judge who tried the case. No question of law whatever was involved in the issue; the conclusion depended upon the determination of the claims of contending witnesses and the balance of commercial probabilities, weighed with the knowledge of local habits and local manners.

The soundness of the judgment on the material originally before the learned judge is therefore no longer in controversy; but, none the less, it is essential for the determination of this appeal that there should be some examination of the facts leading up to the dispute.

The appellants are a Chinese firm residing in Shanghai and dealing in opium. The respondents are a firm of British Indian opium merchants, with head offices in Calcutta and Bombay and a branch office in Shanghai. Between August 10, 1911, and February 14, 1912, contracts were entered into between the appellants and the respondents by which the respondents agreed to sell to the appellants 175 cases of opium in parcels deliverable four months after the date of the respective contracts.

In January, 1912, the importation of opium into several of the provinces of China was prohibited, and the position alike for the Chinese dealers and for the Indian merchants became hazardous in the extreme. Had the strict rights under all the existing contracts been relied...

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109 cases
  • Meek v Fleming
    • United Kingdom
    • Court of Appeal
    • June 26, 1961
    ...in a case where fraud or surprise is alleged; see per Lord Buckmaster in delivering the Judgment of the Privy Council in Kip Foong Hong v. Neotia & Company (1918 Appeal Cases, page 888 at page 894). He there said: "In all applications for a new trial the fundamental ground must be that ther......
  • Ross v R
    • Australia
    • High Court
    • Invalid date
  • Francis v Woods
    • Cayman Islands
    • Court of Appeal (Cayman Islands)
    • March 14, 1989
    ...Lasala v. de Lasala, [1980] A.C. 546; [1979] 2 All E.R. 1446, dictum of Lord Diplock applied. (2) Hip Foong Hong v. Neotia (H.) & Co., [1918] A.C. 888, followed. (3) Jonesco v. Beard, [1930] A.C. 298; [1930] All E.R. Rep. 483, considered. (4) Lazard Bros. & Co. v. Midland Bank Ltd., [1933] ......
  • New Falmouth Resorts Ltd v James N. Phelan
    • Jamaica
    • Court of Appeal (Jamaica)
    • March 18, 2005
    ...in special cases to set aside a judgment for fraud on a motion for a new trial may be accepted. Hip Foong Hong v. H. Neotia & Co [1918] A.C. 888 is such a case; but it should be remembered that this case had come up to the Privy Council on this procedure and the Board would naturally be unw......
  • Request a trial to view additional results
1 books & journal articles
  • Action
    • Nigeria
    • DSC Publications Online Sasegbon’s Laws of Nigeria. Volume 1 Action
    • September 8, 2016
    ...suffice, an original action is preferable whenever there are issues of fact to be decided., see on this Hip Foong Hong v. Neotia (1918) A.C. 888 P.C; see also Jonesco v. Beard (1830) A.C. 298, at pp. 300-301: and also Stern v. Friedman (1953) 1 W.L.R. 969. A fortiori the same powers in the ......

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