Report No. 65
III. English Law
18.8A. Fraud in England as affecting judgments in general.-
In England, the general principle that the validity of a judgment can be attacked on the ground of fraud1, is accepted. Coe v. Langford, (1893) 2 QB 376 for example, decided that where the judgment has been obtained by fraud, the court has jurisdiction, in a subsequent action brought for that purpose, to set the judgment aside.
In Jonesco v. Beard, 1930 AC 298 (300) it was said by Lord Buckmaster
"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."
1. David Kennedy v. Dangrid, (1943) 2 All ER 606.
18.9. Whether remedy confined to strangers.-
It is sometimes stated that, in England, advantage of a fraud can be taken only by a stranger to the judgment who is not privy to the fraud, the reasoning being that a party to the proceedings could have applied to vacate the judgment. The theory advanced in this regard is that-(i) a party if guilty, cannot take advantage of his own wrong, and (ii) a party, if innocent, should have pursued the remedy by way of appeal. However, the position on the subject is not entirely beyond doubt.1 In any case, so far as challenging a decree of divorce on the ground of fraud is concerned, English Courts seem to have adopted2 a liberal attitude on this point, and have not regarded a party to the decree as debarred from claiming relief.3
1. See D.M. Gordon Actions to set aside Judgments, (1961) 73 LQR 533.
2. Bonaparte v. Bonaparte, 1892 Probate 402.
3. See para. 18:7, supra and para. 18.13, infra.
18.10. Position in England as to foreign judgment.-
It is well established in England that foreign judgments can be impeached in the ground of fraud1-6 in so far as it affects the jurisdiction of the foreign court.
1. Aboullof v. Oppenheimer, (1882) 10 QBD 295.
2. Vadala v. Lawes, (1890) 25 QBD 310.
3. Godd v. Delan, (1905) 92 Law Times 510.
4. Hip Foong Hong v. Neotia, 1918 AC 888 (Privy Council).
5. Ellerman Lines v. Read, (1928) 2 King's Bench 144.
6. Syal v. Heyward, (1948) 2 All ER 576 (CA).
It is pertinent to point out that it is not denied in English law that fraud is a valid ground for not recognising a foreign decree of divorce.1
1. Bonaparte v. Bonaparte, 1892 Probate 402.
Fraud as to the merits of the case decided by the foreign court would ordinarily be ignored in England; but fraud as to the jurisdiction of the foreign court would be taken into account1. The case of Middleton v. Middleton, (1966) 1 All ER 168 dealt with both aspects of the matter. In that case, the husband had obtained a decree of divorce in the State of Illinois (U.S.A.) by making two false allegations: first, that he had been resident in the State for over a year, and secondly, that his wife had deserted him. Both the allegations were false, but were believed by the Illinois court It was held in England that
(i) the husband's false evidence as to be matrimonial allegations (desertion in this case) was not a ground for refusal to recognise a decree, but
(ii) his fraud as to the jurisdiction of the Illinois court justified a refusal to recognise the decree in England.
1. Middleton v. Middleton, (1966) 1 All ER 168. See for detailed discussion of the case, 29 Modern Law Review 327 and 41 Brit Y B Int'l Studies.
18.12. Position as to judgments in rem.-
As to the rule1 that foreign judgments can be set aside for fraud it is sometimes stated that there is a possible exception in England as to judgments in rem. Halsbury states2, for example-
"In accordance, however, with the general principle that judgments in rem are conclusive and binding on all the world, an action here based on fraud in obtaining such judgment will not be entertained so long as the judgment stands in the original country."
However, it should be stated that even this view is not universally accepted For example, as one writer3 concludes:
"There seems no reason why a foreign judgment in rem obtained by fraud should be sacrosanct."
Similarly, Dicey4 states:
"Any judgment whatever, and therefore any foreign judgment, is, if obtained by fraud, open to attack."
Dicey further remarks5 that the doctrine "may apply" as between litigants to a judgment in rem"-though he acknowledges that there are some doubts whether it vitiates a judgment in rem so as to affect the rights of third parties. In Mc Alpine v. Mc Alpine, (1957) 3 WLR 698, noted in (1958) 74 LQR 8 the husband obtained a divorce in Wyoming (U.S.A.) by misrepresenting to the Court the wife's address, and by reason of this fraud the wife had no notice. The divorce was not recognised, for this reason.
1. Para. 18.8, supra.
2. Halsbury's, 3rd Edn., Vol. 7, p. 148.
3. Wolff res judicata in Divorce, U. West, Austl. Ann Law Review Vol. 1 (1948-50), pp. 369, 373-80, (1948-50), quoted in Pyrles Recognition of foreign judgments etc., (1972) 12 IJIL 31 (44).
4. Dicey Conflict of Laws, (1967), p. 1007.
5. Dicey Conflict of Laws, (1967), p. 1010.