Francis v Woods

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Georges and Henry, JJ. A.)
• Judgment Date: 14 March 1989
• Court: Court of Appeal (Cayman Islands)
• Date: 14 March 1989

Court of Appeal

(Zacca, P., Georges and Henry, JJ. A.)

FRANCIS

and

A. WOODS (as Administrator of the Estate of N.E. WOODS, Deceased)

N.W. Hill, Q.C. and J. Jenkins for the applicant;

P. Lamontagne, Q.C. and T. Shea for the respondent.

Cases cited:

(1) de Lasala v. de Lasala, [1980] A.C. 546; [1979] 2 All E.R. 1446, dictum of Lord Diplock applied.

(2) Hip Foong Hong v. Neotia (H.) & Co., [1918] A.C. 888, followed.

(3) Jonesco v. Beard, [1930] A.C. 298; [1930] All E.R. Rep. 483, considered.

(4) Lazard Bros. & Co. v. Midland Bank Ltd., [1933] A.C. 289; [1932] All E.R. Rep. 571, distinguished.

(5) Meek v. Flemming, [1961] 2 Q.B. 366; [1961] 3 All E.R. 148, considered.

(6) Thynne v. Thynne, [1955] P. 272; [1955] 3 All E.R. 129, dicta of Morris, L.J. applied.

Legislation construed:

Evidence Law, 1978 (Law 13 of 1978), s.32(1):

‘[I]n a civil proceeding a statement contained in a document is, subject to this section and to rules of court, admissible as evidence of any fact therein stated to which direct oral evidence would be admissible, if the document is, or forms part of, a record compiled by a person acting under a duty from information which was supplied by a person (whether acting under a duty or not) who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with in that information. . . . ’

s.37(1): ‘In civil proceedings the fact that a person has been convicted of an offence before any court in the Islands is . . . admissible in evidence. . . . ’

Evidence-previous proceedings-relevance in subsequent proceedings-court admitting evidence from previous proceedings under Evidence Law, 1978, s.32 to use identical evidence from previous record-if evidence not part of record mistakenly admitted, will only set aside own judgment if correct evidence would have been conclusive of facts or outcome of case

Civil Procedure-judgments and orders-setting aside judgment-court may not set aside own judgment based on false evidence or fraud-applicant should appeal, bring new action or exceptionally move for a new trial

The applicant applied by motion for the court to set aside its own judgment in civil proceedings between himself and the respondent.

The applicant had been convicted of causing death by dangerous driving and his appeal against the conviction was dismissed by the Court of Appeal. Civil proceedings were successfully initiated against him by the brother of the deceased who, to establish liability, relied on the Evidence Law, 1978, ss. 32 and 37 to admit his conviction and to tender copies of transcripts of the evidence of Crown witnesses which had been admitted at the criminal trial. On appeal to the Court of Appeal, the sum awarded was increased substantially. The proceedings in the Grand Court and the Court of Appeal are reported at 1984–85 CILR 510 and 1986–87 CILR 207 respectively.

At the criminal trial, a sketch plan of the scene of the accident had been tendered in evidence. In the civil proceedings two sketch plans were included in the record, the one used before in the criminal trial and another one similar to it, but showing the point of impact. By an oversight, the civil case proceeded both in the Grand Court and in the Court of Appeal on the basis that the sketch plan showing the point of impact was the same one that the jury had seen in the earlier proceedings.

The applicant filed a motion seeking to have the judgment of the Court of Appeal set aside and a new trial ordered.

The applicant submitted that (a) since the Grand Court and the Court of Appeal had considered the wrong sketch plan, the judgment against him had been substantially affected by and based upon a false premise and had resulted in a miscarriage of justice to him; and (b) where it was

apparent that a miscarriage of justice had occurred, the court had an inherent jurisdiction to set aside its own judgment.

The respondent submitted in reply that in the circumstances the court had no jurisdiction to set aside its own judgment and the applicant could only challenge its decision by way of appeal or by a fresh action on the ground of fraud.

Held, dismissing the application:

(1) Although it was alleged that the Grand Court”s judgment in favour of the applicant was substantially affected by and based upon a false premise and therefore unjust to the respondent, the actual circumstances did not justify this conclusion. Because the sketch plan had been admitted in evidence by virtue of the Evidence Law, 1978, s.32, the court should have referred to the copy which had formed part of the record of the criminal proceedings. However, the fact that it had mistakenly used another plan (showing the point of impact) in the belief that it was that used in the criminal trial did not fundamentally affect its decision, as the plan was neither conclusive in itself not was it evidence which would necessarily have determined the matter in the applicant”s favour. In fact, the jury in the criminal trial had not had the benefit of seeing a plan showing the point of impact but had nevertheless convicted the applicant of causing death by dangerous driving, a verdict which had subsequently been upheld on appeal. Accordingly, it could not be said that the mistake was one which had affected the validity of the court”s decision and consequently it did not give rise to a situation in which the court should set aside its own judgment. The applicant”s motion to set aside the judgment in favour of the respondent would therefore be refused (page 304, line 24 – page 305, line 11).

(2) In any event, since the applicant had suggested that the sketch plan had been deliberately tendered as false evidence or as a fraud on the court...