Boodoosingh v Ramnarace (Trinidad and Tobago) [2005] UKPC 9 (8 March 2005)

ADVANCE COPY

	Privy Council Appeal No. 50 of 2003

Visham Boodoosingh	Appellant
	v.
Richard Ramnarace	Respondent

	FROM

THE COURT OF APPEAL OF
TRINIDAD AND TOBAGO
	---------------

	JUDGMENT OF THE LORDS OF THE JUDICIAL
	COMMITTEE OF THE PRIVY COUNCIL,
	Delivered the 8th March 2005
	------------------

	Present at the hearing:-
			Lord Nicholls of Birkenhead
Lord Hoffmann
Lord Scott of Foscote
Baroness Hale of Richmond
Lord Brown of Eaton-under-Heywood
 [Delivered by Lord Brown of Eaton-under-Heywood]
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1.	At about 1.00 a.m. on 9 August 1998, in a Bar at Penal, the respondent suffered serious injuries when he was shot in the face by the appellant.  The respondent, then in his early twenties, was drinking at the Bar with his brother Mitra and two friends.  The Bar was owned by the appellant’s wife and so too was the licensed firearm used by the appellant in the shooting.  The appellant, a policeman of many years service (although engaged in administrative work rather than the investigation and prevention of crime), was off duty at the time.  Immediately before the shooting he had been watching TV in the family flat above the Bar when a disturbance broke out below.  It was in response to that that he armed himself and went downstairs.  So much has always been clear and undisputed.  Altogether less clear and hotly in issue, however, were the particular circumstances in which the appellant came to shoot the respondent.

2.	The respondent’s case was that he and his friends were in no way responsible for the disturbance.  Rather an altercation had broken out between three other men in which one of the respondent’s friends sought to intercede as peacemaker.  When the respondent attempted to extricate his friend the appellant came up and shot him.  The appellant’s radically different account of the matter was that he had come downstairs to find the respondent himself holding up the barman in an attempt to rob the Bar.  The respondent, said the appellant, “had a black plastic bag in his hand. ... [He] pointed his hand which was holding the black plastic bag towards me”.

3.	On 17 May 1999 the respondent issued proceedings against the appellant for damages for assault and battery.  His statement of claim particularised extensive facial and dental injuries and described the treatment he had already undergone.  It stated that further reconstructive surgery and dental treatment was required and itemised various items of special damage (although nothing at that stage by way of loss of earnings).  A defence and reply followed in due course.

4.	The action came on for the trial in the High Court before Bereaux J on 2 May 2001 and was heard over nine days finishing on 15 May.  On the second day of the hearing, 3 May 2001, the respondent was granted leave to amend his statement of claim to include a special damage claim for loss of earnings at the rate of $4,600 per month from 9 August 1998 until March 2001.  Judgment was reserved and given in writing on 6 July 2001.  The appellant was held liable and an order was made in favour of the respondent for general damages (including aggravated damages) of $150,000 for the assault and battery (to bear interest at 12% from 17 May 1999 to 6 July 2001); future medical expenses of $40,000; and special damages for loss of earnings of $132,000 (to bear interest at 6% from 9 August 1998 to 6 July 2001).  Execution of the judgment was stayed for 6 weeks.  Since then, however, no stay of execution has ever been sought or granted on any part of the award, although to this day not a single dollar has been paid under it.

5.	The judge’s finding of liability against the appellant was made in the strongest terms.  He found the appellant’s account of the shooting “not [able] for its incongruity” and expressed himself “satisfied that much of [his] account was grossly untrue”. The judge said that having closely observed the appellant as a witness “I am satisfied that his evidence was nothing more than a well rehearsed contrivance”. By contrast he accepted “every aspect” of the account given by the plaintiff and his witnesses. “They were four young men ‘liming’ [hanging out together] and enjoying a Saturday night out.  Their accounts of how the incident occurred were consistent ... and unshaken in cross-examination”.  He concluded:
“I am driven to describe [the appellant’s account] as a bold-faced lie.  That the [respondent] has escaped with his life was an act of forbearance of the Almighty; that the [appellant] has escaped a criminal prosecution is a travesty of justice.  In my judgment he is lucky not to have been charged with attempted murder.”

6.	On 10 July 2001 the appellant served notice of appeal against the judgment, asserting baldly that the judge’s findings were against the weight of the evidence and that the damages awards were “contrary to principle”.  Fifteen months later, on 8 October 2002, just a month before the appeal itself was due for hearing, the appellant’s attorney, Mr Kamta, wrote to the Court of Appeal stating that he had “come to the conclusion that having regard to what transpired at the trial and what has  been recently brought to our attention ... the most appropriate step is to have the judgment set aside for fraud which are (sic) particularised in the statement of claim filed today”; he would accordingly be seeking to adjourn the hearing of the appeal on 6 November 2002.  The fraud alleged against the respondent is essentially that he lied at the trial with regard to his loss of earnings claim, falsely stating that he had not worked at all from the date of the shooting (9 August 1998) until March 2001 (a month before the hearing) whereas in fact he had.  The judge had accepted the respondent’s oral evidence that he earned $2,200-$2,300 per fortnight; the award of $132,000 appears to represent sixty fortnights (approximately the period between the shooting and March 2001) at $2,200 per fortnight.

7.	The appeal duly came before the Court of Appeal (Warner, Lucky and Kangaloo JJA) on 6 November 2002.  As foreshadowed in his letter of 8 October, Mr Kamta asked for the hearing to be adjourned so that the fraud action could be pursued first.  Although later he indicated to the Board that he has come to change his view, Mr Kamta expressly told the Court of Appeal:
“The question of the loss of earnings ought to have, really, another judicial determination.  But, unfortunately, the Appellate Court cannot deal with that as the law stands.”

That aside, the appellant at that stage appears to have had no documentary evidence upon which he could have sought to disturb any of the findings of the judge below.

8.	Hardly surprisingly the Court of Appeal refused an adjournment and proceeded to hear Mr Kamta’s brief submissions on the substantive appeal.  None of these had the least merit and none are now of any materiality.

9.	Warner JA gave a brief extempore judgment (concurred in by the other members of the Court) dismissing the appeal and recording, with regard to the adjournment application:
“We refused the application not only on account of the delay, having regard to the fact that the grounds of appeal were filed as far back as 10 July 2001, by Mr Kamta for Kamta and Company, but because, as well, there was no material before this Court upon which this Court could entertain such an application, which was, essentially, an application to stay these proceedings.  Mr Kamta no doubt recognised the uphill task he faced to persuade us to disturb the findings of fact that the trial judge saw and heard the witnesses and had the opportunity to assess the evidence.”

10.	Later in her judgment Warner JA observed that “on the question of the loss of earnings ... the trial judge accepted the evidence of the officer from the National Insurance Board.  In effect, counsel has not really attacked that aspect of the award”.  (Evidence had indeed been given at the trial by an independent witness from the National Insurance Board saying that the respondent had made contributions out of earnings from 24 November 1997 until 2 August 1998  but at no time thereafter.) 

11.	Following the Court of Appeal judgment the appellant was granted conditional leave to appeal to the Privy Council on 16 December 2002 and, on payment of the required security of £500, final leave to appeal on 7 April 2003.

12.	Before finally their Lordships come to consider the basis of the present appeal it is convenient first to take brief note of certain events with regard to the appellant’s fraud action, that is to say the action begun on 8 October 2002 by which the appellant seeks, independently of any appeal, to impeach Bereaux J’s judgment in the present action on the ground that it was obtained by fraud.

13.	The fraud action, it may be noted, was brought not only against the respondent but also against his brother Mitra (who had given evidence not only supporting the respondent’s account of the shooting but also confirming that he had not worked between the shooting and March 2001), the National Insurance Board, and three companies for whom, so it is now alleged, the respondent had worked from time to time during that period (these last four defendants being joined principally with a view to discovery).

14.	In October 2003 the respondent and his brother served a defence denying that they gave false evidence at the trial, putting the appellant to strict proof of this allegation, and asserting that in any event this would not affect the appellant’s liability for the shooting. At a later date, Gregory Smith J acceded to an application by the last four defendants to dismiss the action as against them.

15.	On 22 October 2004 Carlton Best J made an order for an early trial of the fraud action (as against the respondent and his brother).  On 8 November 2004, however, the Court of Appeal (Sharma CJ, John and Archie JJA) vacated Carlton Best J’s order and instead stayed the fraud action pending the hearing of the present appeal (then due for hearing, and indeed heard, by the Board on 11 January 2005, the appellant’s application to adjourn it having been refused by the Judicial Committee in November 2004).

16.	On what basis, then, in the light of this history, is the present appeal advanced before the Board?  It is now argued by Mr Harrikissoon SC and Mr Kamta that, instead of pursuing an independent fraud action to impeach the judgment below, the appellant could and should instead have sought to persuade the Court of Appeal to allow his appeal and set aside the judgment by reference to fresh evidence pointing to the respondent and his brother having lied at the trial with regard to the loss of earnings claim.  This lie, it is submitted, required not merely a fresh look at the special damage award but rather a rehearing of the entire claim: the issue of liability turned on the credibility of the rival protagonists and these lies, it is submitted, went to the heart of the respondent’s and his brother’s credibility.  

17.	True it is, the appellant acknowledges, that the Court of Appeal cannot realistically be faulted for their approach to the matter.  After all, not only had Mr Kamta conceded that it was powerless to set aside the judgment on the basis of fresh evidence but there was at that stage almost nothing by way of fresh evidence in fact before the Court.  Since then, however, namely in May 2003, there became available to the appellant further material which has now been made the subject of a specific application to the Board dated December 2004 to adduce fresh evidence on the hearing of the appeal.  It is on the basis of this fresh evidence that the appellant now submits that the Board should allow the appeal and order a fresh trial of the original claim, thus making it unnecessary to pursue the subsequent fraud action. 

18.	There is no doubt that a judgment obtained by fraud can be set aside either by order made in a fresh action brought in fraud to impeach it or on appeal to the Court of Appeal by adducing fresh evidence sufficient to establish the fraud.  Sometimes the more appropriate remedy will be by original action - see Lord Slynn of Hadley’s speech (at paras 22-27) in Kuwait Airways Corporation v Iraqi Airways Company [2001] 1 Lloyds Report 485.  Following that decision, the Board notes, a successful action in fraud duly was brought before Steele J: Kuwait Airways Corp. v Iraqi Airways Corp. [2003] 1 Lloyds Report 448. Sometimes, however, the more convenient course will be to appeal to the Court of Appeal.  Such, indeed, was suggested in Hamilton v Al Fayed (No 2) [2001] EMLR 394, 404 at para 21 to be generally the case:
“because the Court of Appeal has much wider powers to do justice in such a situation, including the power to order issues of fact to be tried.”

Certainly an appeal rather than a fresh action in fraud is the appropriate course where part only of a judgment is being impugned.  A fresh action, if well-founded, is apt to set aside a judgment.  Their Lordships know of no case, however, in which it has served some lesser purpose, say a reduction in the damages award.

19.	Equally there can be no doubt that a judgment obtained by perjury is a judgment obtained by fraud.  Just when, however, perjury will be found so central to the case as to justify a conclusion that the judgment as a whole was obtained by fraud is less clear.  Certainly this was held to have been the effect of the defendant’s perjury in the notorious case of Meek v Fleming [1961] 2 QB 366.  There, in a jury trial turning on which party’s evidence was to be accepted as to what had occurred during a comparatively brief incident at a police station, the defendant, with leading counsel’s connivance, deceived the Court into believing that he was still a police inspector whereas in fact he had recently been reduced in rank for misconduct.  Giving the leading judgment in the Court of Appeal Holroyd Pearce LJ said this (at p379):
“Where a party deliberately misleads the court in a material matter, and that deception has probably tipped the scale in his favour (or even, as I think, where it may reasonably have done so), it would be wrong to allow him to retain the judgment as unfairly procured.  Finis litium is a desirable object, but it must not be sought by so great a sacrifice of justice which is and must remain the supreme object.  Moreover, to allow the victor to keep the spoils so unworthily obtained would be an encouragement to such behaviour, and do even greater harm than the multiplication of trials.  In every case it must be a question of degree, weighing one principle against the other.  In this case it is clear that the judge and jury were misled on an important matter.”

20.	Willmer LJ and Pearson LJ both gave supporting judgments, each of them citing from Lord Buckmaster’s opinion in the Privy Council in Hip Foong Hong v H. Neotia & Co [1918] AC 888, 894:
“A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail.”

Pearson LJ added this at pp 383-384:
“In the present case the fresh evidence only affects the credit of the defendant, and does not relate directly to any issue in the case.  Accordingly it would not be right to order a new trial unless there is some feature of paramount importance outweighing the grave disadvantage of protracting the litigation.  In my opinion, however, there is such a feature in the present case. ... the fresh evidence has materiality.  The main issue at the trial was whether the evidence of the plaintiff or the evidence of the defendant should be believed as to what happened in the passage at the police station.  If the purport of the fresh evidence had become known in the course of the trial, it would have shown both that the defendant had taken part in the deception of the Court in the matter for which he was demoted, and also that he was at the trial of this action participating in another deception of a Court.”

21.	Similarly in Skone v Skone [1971] 1 WLR 812 the House of Lords allowed a husband’s appeal and ordered the new trial of a divorce petition following the discovery of fresh evidence consisting of a bundle of love letters from the co-respondent to the wife clearly showing that, contrary to his sworn evidence, he had committed adultery with her.  Lord Hodson said at p817:
“Assuming, as I think your Lordships must for the purposes of this application, that the letters sought to be tendered as evidence are genuine, the basis of the judge’s finding of fact at the trial has been falsified to such an extent that to leave matters as they are would, in my opinion, be unjust.

... [A] strong prima facie case of wilful deception of the court is disclosed.”

22.	With these authorities in mind their Lordships turn to the fresh evidence put forward in the present case.  This was apparently first obtained (at any rate in documentary form) in May 2003 (two years after the trial) and it consists of a number of disparate documents exhibited to the appellant’s affidavit sworn as recently as 2 December 2004.  Almost nothing has been attempted by way of analysis of this material and still less is any explanation afforded of why it took so long to assemble.

23.	As already indicated, what essentially the evidence seeks to show is that at various times between August 1998 and March 2001, when the respondent and his brother told the Court that he was not working, in fact he was.  True it is that, taken as a whole, the documents do indeed appear to suggest that for one or two short spells during this 30 month period the respondent was engaged in some casual employment. It is altogether more difficult, however, to piece together from the exhibited material just when and for how long the respondent worked and what sort of sums he earned.  For example, a director of Jaleel & Co. (one of the three companies for whom he is alleged to have worked) blandly states in a letter of 9 May 2003 that the respondent “was employed during the period 1999 to 2000 with our company”. When, however, one turns to what might be expected to be the most reliable (or least unreliable) of the exhibited documents, a certified “contribution statement” apparently prepared by the National Insurance Board, one finds that there is no record of any payments whatever made in respect of the respondent’s employment by Jaleel & Co. after 1997 - indeed, no record of any employment by anyone at all in the year 2000.  Even for the year 1999 the certified statement appears to record a total of no more than eight weekly contributions.  The position in 1998 is particularly unclear although, having regard to the seriousness of his injuries, the respondent could hardly be thought to have worked much, if at all, between August and December of that year.  As for 2001, the documents seem to support the respondent’s sworn evidence that he only resumed work in late March that year.

24.	In short there are many inadequacies in these documents, all the starker perhaps for the extreme lateness of their delivery.  

25.	Does this fresh evidence entitle the appellant to succeed on this appeal?  In their Lordships’ view, plainly not.  In the first place it appears to fall well short of the “strong prima facie case of wilful deception of the Court” of which Lord Hodson spoke in Skone v Skone.  But in any event, even supposing that the Board were satisfied on the basis of such inadequate material that the respondent and his brother had indeed intentionally misled the trial judge by overstating the extent of his earnings loss, it is far from obvious that this would justify the setting aside of the entire judgment.  It is not as if the appellant seeks merely some reduction in the special damage award to reflect the likelihood that the plaintiff undertook some casual work during the claimed period of loss, or even indeed the setting aside of the entire special damage award.  Rather it is an all or nothing appeal, the argument being that the exaggeration of the special damage claim undermines the respondent’s credibility also on the issue of liability and so casts doubt on the entirety of the judgment.

26.	Perjury, assuming it to have been committed, is, of course, a serious matter and always unacceptable, irrespective of the particular circumstances in which it is committed and the particular issue to which it goes.  No court will ever condone it.  But that is by no means to say that if any part of a judgment is procured by perjury the whole judgment will necessarily be set aside.  Plainly that would be a wrong approach.  So much, indeed, is readily apparent from the brief citations already given from the judgments in Meek v Fleming.  As Holroyd Pearce LJ put it: “In every case it must be a question of degree, weighing one principle against the other”.  (The competing principles being, of course, on the one hand the finality of litigation and, on the other, the undesirability of a party benefiting from his deceit.)  In Pearson LJ’s words, “It would not be right to order a new trial unless there is some feature of paramount importance outweighing the grave disadvantage of protracting the litigation”.
27.	Even were the appellant on this appeal able to demonstrate to the necessary standard of proof that the respondent to some extent deliberately inflated his loss of earning claim, their Lordships conclude that it would not be right to set aside the entire judgment.  So far as the issue of liability was concerned, this was not, it must be observed, a close run case.  Rather, all the probabilities favoured the respondent’s account of the shooting and the trial judge, having (in the Court of Appeal’s words) “properly analysed the evidence”, found for the respondent in resounding terms, comprehensively rejecting the appellant’s evidence.  It is simply not realistic to suppose that, had the judge come to realise that the respondent was deliberately exaggerating his loss of earnings claim, he then would or might have reached the opposite conclusion on the issue of liability.  It would have been perfectly possible in a case like this to have had a split trial of the issues of liability and quantum, perhaps to be heard by different judges.  Is it really to be supposed that in that event, had liability been resolved in the plaintiff’s favour and he later been found to have exaggerated his special damage claim, the judgment would have been set aside?  Surely not.  Sometimes, of course, a split trial is refused and liability and quantum ordered to be heard together for the very reason that the plaintiff’s evidence on quantum is likely to bear materially upon his credibility on the issue of liability.  But that would hardly have been so here.  In short, even giving the appellant the benefit of every doubt with regard to the effect of the fresh evidence, this cannot sensibly be regarded as materially undermining the respondent’s case on liability.

28.	On this ground too, therefore, the Board would dismiss the appeal.  The appellant’s parallel action in fraud presently stands stayed (see para 15 above).  It is difficult to see how it can now usefully be carried further.  That, however, is not presently for decision by the Board.

29.	In the result the appeal is dismissed with costs.