Court of Appeal
Published February 29, 2008
Cinpres Gas Injection Ltd v Melea Ltd
Before Sir Igor Judge, President, Lord Justice Jacob and Lord Justice Richards
Judgment January 24, 2008

Perjury by a witness who had common cause with one of the parties in proceedings could be sufficient to have the judgment set aside as having been obtained by fraud.

The Court of Appeal so stated allowing the appeal of the claimant, Cinpres Gas Injection Ltd, from Mr Justice Mann (The Times December 5, 2006) who had held, inter alia, that the perjured evidence of James Watson Hendry, a witness to an earlier proceedings resulting in a judgment against the claimant, was not to be attributed to Michael Ladney, a party in those proceedings, in order to set aside the judgment as an exception to the doctrine of res judicata.

In the earlier proceedings started in 1991, the defendant, Melea Ltd, had become the registered holder of patent No EP(UK) 0424435 granted by the European Patent Office: Ladney and Hendry’s International Application ([1998] RPC 319).

Mr Peter Prescott, QC and Miss Jessie Bowhill for Cinpres; Mr Iain Purvis, QC and Mr Benet Brandreth for Melea.

LORD JUSTICE JACOB, giving the judgment of the court, said that Odyssey v OIC Run Off (The Times March 17, 2000) decided that a judgment could not be set aside unless it was obtained by the fraud of, or procured by a party; perjury by a mere witness was not enough.

Both Hendry and Ladney were actually parties to the first proceedings. Hendry was seeking to justify his claim to be the inventor, to be named on the patent as such and to have had the right to have assigned the property in the invention to Ladney.

Ladney was claiming to be the owner of the right to apply for the patent by virtue of assignment from Hendry. They had a common foe, Cinpres, and made common, and completely intermixed cause against it. One could not succeed without the other.

True it was that Ladney’s claim was much the more valuable commercially, but that value did not have anything to do with it.

Besides, even Hendry had a commercial interest in the patent belonging to Ladney for he would be entitled to royalties if that were so; not so if the patent belonged to Cinpres.

Hendry was more than a mere witness in the first proceedings; he was Ladney’s comrade in arms. His fraud by way of perjury was adopted by Ladney and should be regarded as Ladney’s.

Hendry clearly could not resist the earlier judgment being set aside on the ground of his fraud. Given that, the whole judgment was unravelled and should be set aside.

Solicitors: Wragge & Co; Nabarro Nathanson.

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