Jonesco v Beard

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Buckmaster,Viscount Dunedin,Lord Warrington of Clyffe
Judgment Date13 Feb 1930
Judgment citation (vLex)[1930] UKHL J0213-1

[1930] UKHL J0213-1

House of Lords

Lord Buckmaster.

Viscount Dunedin.

Lord Blanesburgh.

Lord Warrington of Clyffe.

Lord Tomlin.

Jonesco
and
Beard.

After hearing Counsel, as well on Tuesday the 3d, as on Thursday the 5th, days of December last, upon the Petition and Appeal of Barbu Jonesco of Oakhurst Court, South Godstone, in the County of Surrey, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 18th of December, 1928, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed case of Norman Harry Beard, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 18th day of December 1928, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Maugham, of the 12th day of July 1928, thereby set aside be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Chancery Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Lord Buckmaster .

My Lords,

1

The appellant in this appeal was the defendant in an action brought against him by the Respondent claiming ( a) a share in eight named race horses either as a joint owner with the plaintiff to the extent of one quarter or as a partner; ( b) a sum of £240, the price of two horses known as Why Worry and Zette, alleged to have been sold and delivered by him to the appellant in October, 1927.

2

The questions at issue were purely questions of fact and the learned Judge who tried the action having expressed his disbelief in the Respondent's story, dismissed the action with costs. Judgment to that effect dated the 12th July, 1928, was duly drawn up, passed and entered.

3

On the 23rd August, 1928, the Respondent served a notice of appeal asking ( a) for a new trial but without specifying any grounds or alternatively ( b) that judgment be entered for him in the action. The Court of Appeal have ordered a new trial and from their judgment this appeal has been brought.

4

On the hearing before the Court of Appeal affidavit evidence was filed in support of the Appeal and answered. It is on these affidavits that the new trial was ordered. In part they consisted of statements as to evidence not forthcoming at the trial and in part of allegations of fraud. The former did not form the foundation of the judgment of the Court of Appeal, and indeed they could not have done so for there was no sufficient explanation of why the evidence had not been available at the trial and why no application for adjournment had been made. These statements do not merit examination and may be disregarded. It is the charge of fraud that is the sole reason supporting the judgment now under appeal. Viewed simply as a matter of procedure the course taken was unusual and irregular. 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 Flower v. Lloyd, 6 Chancery Division 297, the Court of Appeal, consisting of Jessel M. R., James and Baggallay, L.JJ., held there was not jurisdiction in the Court of Appeal to entertain a similar application, saying that you cannot go to your adversary' and say, "You have obtained the judgment by fraud and I will have a rehearing, until that fraud is established." Flower v. Lloyd, 10 Chancery Division 333, Cole v. Langford, (1898) 2 Q.B. 36, Baker v. Wadsworth, 67 L.J. Q.B., page 301, show that the right procedure for that purpose is by action. That, however, there is jurisdiction 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. Newton & Co., (1918) A.C. 888, is one such 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 unwilling to defeat a case at its last stage on such a ground.

5

If, however, for any rare and special reason departure from the established practice is permitted, the necessity for stating the particulars of the fraud and the burden of proof is no wit abated and all the strict rules of evidence apply. The affidavits used must, therefore, be examined as on final trial; every particle of hearsay evidence and reference to documents, not produced, must be excluded, and it must be kept constantly in mind that the rules which permit on interlocutory proceedings hearsay evidence, where the exact source of the information is afforded, have no more application than they would possess were the deponent a witness in the box speaking at the trial.

6

I cannot help thinking that it is because these considerations were not properly placed before and impressed upon the Court of Appeal that they have pronounced a...

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