In Dawodo v American Express [2001] BPIR 983 the former Master of the Rolls, Etherton M.R considered an appeal by Mr Dawodu against a bankruptcy order founded on a petition in respect to a ‘series of judgment debts and interest’ amounting to £15,000.
The judgment addressed in detail the insolvency court’s duty of inquiry / going behind a judgment in bankruptcy proceedings citing a number of long established authorities that determine it is not res judicata to apply to set aside any judgment within the insolvency court’s remit whenever prima facie grounds are made out from which to impugn the debt, even if the debt is underpinned by a judgment and even if there has been unsuccessful prior attempts to set the judgment aside.
At page 12 of the 20-page judgment Etherton M.R expressed that:
“What in my judgment is required is that the Court be shown something from which it can conclude that had there been a properly conducted judicial process it would have been found, or very likely would have been found, that nothing was in fact due to the Claimant. It is clear that in those circumstances the Court can enquire into the judgment and the judgment debt, even though the debtor himself has previously applied to have the judgment set aside, and even though that application has been refused and that refusal has been affirmed by the Court of Appeal see Re Fraser [1892] 2QB 633″.
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