The recent decision in Federal Government of Nigeria & Anor v Williams [2025] EWHC 1096 (Comm) is a powerful reminder that the English court must strike a delicate balance between the principles of finality of litigation and abuse of process and that, while courts are vigilant against abusive or vexatious litigation, they will not allow the finality of judgments to become a cloak for fraud. Parties must be proactive, diligent and sceptical in their approach to litigation, and should be prepared to act swiftly and decisively when faced with questionable claims or evidence.
Background
The case stems from an undercover operation in Nigeria in 1986 into foreign exchange control breaches, leading to a (subsequently overturned) criminal conviction against Dr Williams. Williams brought and discontinued proceedings against the Central Bank of Nigeria (CBN). The CBN contended certain key documents Williams relied on were forgeries and that his claim was fraudulent. Williams discontinued against the CBN three days before trial in 2016.
Days later, Williams commenced proceedings against the Federal Government of Nigeria (Nigeria) and its attorney general (AG), based on the same underlying factual allegations. In 2018, he obtained a default judgment for $15m (the default judgment).
In the present proceedings, Nigeria and the AG have applied to set aside the default judgment on the basis it was obtained fraudulently because Williams knowingly made false representations and relied on fabricated documents. This decision concerns Williams’ application to strike out Nigeria and the AG’s claim on the basis it was a collateral attack on previous judgments and that the FGN and AG’s fraud allegations were known in 2012 and are abusive and vexatious.
Henshaw J dismissed the application because Nigeria and the AG’s ‘case is, on the face of it, a strong one [and] … not an abuse’ and should be allowed to continue.
Set aside for fraud
To set aside a judgment (including a default judgment) obtained because of fraud by the counterparty, fresh proceedings can be brought before the court that made the judgment. The party who seeks to set aside the judgment must establish that both they and the court were deceived by the party in whose favour judgment was entered. Further, as an application for default judgment is administered by the court without the opportunity to examine and test the representations made in the particulars of claim at trial, it is essential that those representations are in fact true. This was emphasised by Andrews LJ in her judgment in Park v CNH Industrial Capital Europe Ltd (t/a CNH Capital) [2021] EWCA Civ 1766.
The English courts have traditionally been reluctant to permit relitigation of adjudicated matters. The public interest in finality is strong: parties should not be vexed twice in the same matter and the courts’ resources should not be consumed by repetitive litigation. However, these principles are not absolute and exceptions exist – notably in cases of fraud.
The leading modern authority is Takhar v Gracefield Developments Ltd [2019] UKSC 13, in which the Supreme Court clarified the approach to applications to set aside judgments for fraud. The key points are:
- Fraud unravels all: If it can be shown that a judgment was obtained by fraud, the court will generally set it aside, even if the fraud could have been discovered with reasonable diligence before the original judgment.
- No reasonable diligence requirement (in most cases): Where no allegation of fraud was raised at the original trial, there is no requirement for the applicant to show that the fraud could not have been discovered earlier with reasonable diligence, except where: (i) fraud was alleged at the original trial and new evidence is relied upon; or (ii) there was a deliberate decision not to investigate a suspected fraud.
- Materiality and causation: The fraud must be ‘material’, i.e. the dishonest evidence or conduct must have been an operative cause of the judgment being obtained (see also Royal Bank of Scotland plc v Highland Financial Partners LP [2013] 1 CLC 596).
- Abuse of process: While the right to set aside for fraud is robust, the court retains a residual power to prevent abuse.
Practical lessons
i) Ensure effective processes for receiving service. The FGN and AG’s difficulties were compounded by failures to monitor and respond to service of proceedings. Parties should ensure that robust systems are in place to receive, acknowledge and act upon service of legal documents, especially where proceedings may be served abroad or through diplomatic channels.
ii) Engage early and seriously. Delay, inattention and lack of conviction, no matter the nature of the allegations made, can be fatal. The FGN and AG’s initial failure to engage with the proceedings led to Williams obtaining the substantial default judgment and these proceedings.
iii) Scrutiny and scepticism. Parties should not assume that claims (or defences) are well-founded simply because they are advanced with apparent formality or supported by documentation.
iv) Evidence. Where document authenticity or veracity of factual assertions is in doubt, parties should investigate and obtain expert and factual evidence.
v) Legal team. The FGN and AGs’ case was hampered by changes in legal representation and a lack of continuity. Where possible, parties should maintain the same legal team with requisite expertise throughout.a
vi) Finality v fraud. The courts will not allow the finality to protect fraudsters, but the set aside threshold for fraud is high, and parties must be prepared to plead and prove their case.
vii) Causation. It is only necessary for fraud to be an operative, not sole, cause of the judgment for it to be set aside.
Kate Gee is a partner and Oliver Steeple a senior associate at Signature Litigation
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