Zinda v Ark Schools: fraud claim to set aside judgement fails where evidence was always in claimant's possession

In Zinda v Ark Schools & National Education Union [2026] EWHC 469 (KB), Deputy Master Skinner KC granted summary judgement for both defendants, dismissing a claim that two earlier judgements had been obtained by fraud. The decision illustrates the high threshold a claimant must clear to reopen concluded litigation, and reinforces the principle that fraud allegations are not a mechanism for relitigating disputes long since determined.

The claimant, a former Design and Technology teacher dismissed for gross misconduct in 2008, had entered into a compromise agreement with his former employer, Ark Schools, the following year. He subsequently pursued a prolonged course of litigation in both the civil courts and the employment tribunal. The two judgements he sought to set aside were those of Master Eastman (November 2011), striking out a breach of contract claim relating to the compromise agreement, and Supperstone J in the Employment Appeal Tribunal (November 2014), dismissing an appeal concerning the validity of that agreement.

The alleged fraud centred on representations made to each court regarding the statutory basis for Ark Schools' referral of the claimant to the Independent Safeguarding Authority following his dismissal. The claimant contended that the school had falsely suggested to Supperstone J that the referral was made partly on safeguarding or potential grooming grounds, when in fact it related solely to financial misconduct. He argued that transcripts of covertly made recordings from 2008 — only transcribed in December 2024 — together with a general ledger disclosed during the original employment tribunal proceedings, constituted new evidence exposing that dishonesty.

The court applied the three-stage test established in Tinkler v Esken [2023] EWCA Civ 655: whether there is new evidence; whether that evidence demonstrates conscious and deliberate dishonesty; and whether the dishonesty was material to the original decision. These questions are cumulative, and the claimant bore the burden of satisfying each.

On the first question, the claim foundered at the outset. The recordings had been made by the claimant himself in 2008 and were in his possession throughout. The ledger had been disclosed to him in the earlier employment tribunal proceedings. The Privy Council's analysis in Finzi v Jamaican Redevelopment Foundation [2023] UKPC 29 was directly in point: evidence is not rendered "new" simply because a party delays in deploying it. No adequate explanation was offered for why the transcripts had not been prepared and relied upon in the earlier proceedings, still less during the applications for permission to appeal that followed each judgement.

On the second question, the factual foundation was equally weak. Faced with evidence that the word "grooming" had not in fact been used before Supperstone J, the claimant abandoned his pleaded case and advanced instead a vague assertion that the school's conduct had "invited and encouraged" the court to perceive a safeguarding risk. The court found no reasonable basis for that contention. As to the Eastman judgement, the statutory duty relied upon by Ark Schools arose under a different statutory gateway altogether from the one the claimant had addressed, undermining the premise of his fraud allegation.

The claims against the National Education Union, parasitic upon those against Ark Schools, were struck out on the court's own initiative under CPR PD 3A §4.1.

All four of the claimant's applications were dismissed and certified as totally without merit. The court referred the matter to a High Court Judge for consideration of whether an extended or general civil restraint order should be made.

The case is a clear illustration of the finality principle in operation. As Deputy Master Skinner KC observed, the claimant had known all relevant matters for years before either judgement was handed down and had made no allegation of fraud in the course of his applications for permission to appeal. Fraud allegations, however seriously pleaded, do not displace the ordinary requirements of civil procedure or justify the indefinite reopening of concluded disputes.

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