Report No. 65
IV. Fraud, Public Policy and Natural Justice
18.13. Natural justice.-
The categories of fraud and breach of natural justice might sometimes coalesce-as for example, where the foreign court is deceived by the statement of the petitioner that the whereabouts of the respondent are not known. In such a case, the foreign decree would not be recognised1, and the legal grounds for non-recognition are two-fold, though the same set of facts gives rise to the two grounds, namely, (i) fraud affecting the jurisdiction of the court; and (ii) breach of natural justice in that respondent, the wife, had no notice.
1. Macalpine v. Macalpine, (1957) 3 All ER 134.
18.14. Fraud-whether part of public policy.-
At this stage, we may refer to the view sometimes taken on the question whether fraud forms part of public policy. In the Hague convention, public policy is specifically mentioned as a ground of non-recognition. But the convention is silent as to fraud. It appears that, in the discussion on the draft international Convention on recognition of divorces, the delegate from Austria did press for the inclusion of the ground of fraud as constituting a separate exception to the general rule of recognition, but their suggestion did not find favour with the Conference, apparently because the practical importance of fraud in Continental countries was not considered to be very great.
It is, however, well established in the common law that the judgment of a foreign court procured by fraud is not binding on English courts, and will not be recognised in an English court, even if the judgment is otherwise valid and even if all the other requirements of recognition are satisfied. In view of specific Indian legislative precedents on1 the subject, it is advisable to mention fraud separately as a ground for non-recognition.
1. Para. 18.2, supra.
18.15. Fraud and natural justice.-
Fraud and breach of natural justice are sometimes taken as connected with each other. In Middleton v. Middleton, (1906) 1 All ER 168: 2 WLR 523 the Court observed:
"Finally, I might mention an old decision which has nothing to do with divorce, but is of some assistance on the attitude of our courts towards foreign judgments obtained by fraud1, and which indicates that the conception of what is contrary to natural justice may be wide enough to cover the present facts. Orchsenbein v. Papelier, (1873) 8 Ch App 695 was a case before the Judicature Act, 1873, where the Court of Chancery was asked to grant an injunction to restrain a party, who had obtained judgment for a debt in a foreign court, from bringing an action on the judgment here because the judgment had beet! obtained by fraud. On appeal, it was held by Lord Selborne L.C. and Mellish L.J. that the injunction could not be granted because a common law court would take cognizance of the fraud.
"The Lord Chancellor said2:
'I should be sorry to think that anything should fall from this court which might give the least colour to any doubt as to the power of court of law to take cognizance of fraud in obtaining foreign judgments.3
"And Mellish L.J. saidl:
'It was always held that a foreign judgment could be impeached at law as contrary to the principles of natural justice, as for instance, on the ground of the defendant having had no notice of the foreign action, or not having been summoned, or of want of jurisdiction or that the judgment was fraudulently obtained.'
'The interesting point is that Mellish L.J. treated both want of jurisdiction and obtained a judgment by fraud as instances of a judgment being contrary to the principles of natural justice.
"From these citations I reach the following conclusions:
'The rule in Armitage v. Attorney-General, 1906 Probate 135 is not an over-riding principle, but is subject to exceptions. One exception is where the decree was obtained by fraud going to the point of jurisdiction. If the rule is as stated in some of the authorities that the only exception is where the decree was made in circumstances which offend natural justice or substantial justice, the definition of what is contrary to natural justice or substantial justice, is wide enough to cover such a fraud as was perpetrated by the husband in this case.'"
Of course, the same set of facts may amount to fraud as well as to breach of natural justice4, as we have already pointed out.
1. Emphasis added.
2. Orchsenbein v. Papelier, (1873) 8 Ch App 698.
3. Oschsenbein v. Papelier, (1873) 8 Ch App 700.
4. Para. 18.9, supra.
18.16. Facts must have been discovered since the trial.-
English law permits a domestic judgment to be challenged on the ground of fraud only if the facts upon which the challenging party relies were discovered since the trial1. However, this general rule creates some problems in relation to perjury2.
1. (a) Duchess of Kigston's case, 2 Sm LC 754 (12th Edn.). (b)Young v. Keightly, (1809) 16 Ves 348: 33 ER 1016.
(c) Wason v. Westminster, (1861) 4 LT 80.
2. Para. 18.10, supra.