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Dale v Banga and others

The decision of the Court of Appeal is reported at [2021] EWCA Civ 240


I represented Mr Banga and two of his children, instructed by Sydney Mitchell LLP, resisting an out of time appeal brought by his sister, a Mrs Dale, against a 2016 judgment of the High Court, following a 7 day trial. The High Court had held that neither of their late father’s purported wills were valid, one having been revoked, and accordingly that he had died intestate.

By her appeal Mrs Dale sought an extension of time and permission to rely upon fresh evidence, which allegedly showed that the 2016 High Court judgment was obtained by fraud concerning the witnessing of the letter of revocation. Lord Justice Lewison gave her permission to bring the appeal.

The Court of Appeal (Lord Justice Moylan, Lady Justice Asplin and Mr Justice Hayden) handed down its judgment on 24 February 2021. In it, the Court reviewed a number of the leading cases about such appeals, and outlined the correct approach for an appeal court to take when fresh evidence is adduced after a trial which allegedly shows that the judgment below had been obtained by fraud.

If the fraud alleged is not admitted or incontrovertible, then the appellant can seek what is known as a Noble v Owens order, remitting the issue of fraud to be decided by the trial court. Where that is opposed, as it was by my clients in this case, then the appeal court has to decide whether the new evidence is capable of showing that the trial judge was deliberately misled by conscious and deliberate dishonesty on the part of (or suborned or knowingly relied upon by) a party to the action.  The new evidence relied on by the appellant did not meet that threshold test. For this and other reasons, Mrs Dale’s appeal was dismissed.

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