Ghouse Abdul Wahab (Appellant/Claimant) v Amir Khan and Others (Respondents/Defendants)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Briggs |
| Judgment Date | 12 April 2011 |
| Neutral Citation | [2011] EWHC 908 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: CH/2010/0262 |
| Date | 12 April 2011 |
[2011] EWHC 908 (Ch)
Mr Justice Briggs
Case No: CH/2010/0262
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
ON APPEAL FROM MASTER BRAGGE
IN THE ESTATE OF ABDUS SATTAR SHEIKH DECEASED
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Barbara Rich (instructed by NP Solicitors, 1 Whitton Road, Hounslow, Middlesex TW3 2DB) for the Appellant
Mr John Robson (instructed by Thackray Williams LLP, Kings House, 32–40 Widmore Road, Bromley, Kent BR1 1RY) for the First Defendant.
Hearing date: 6 th April 2011
INTRODUCTION
This is an application for permission to appeal (with the appeal to follow) by the claimant Mr Ghouse Abdul Wahab against the striking out by Master Bragge on 29 th April 2010 of his claim for the revocation of probate of his brother's purported will, on the ground that the claim is an abuse of process. Mr Wahab's claim was struck out on the application of the first defendant Mr Amir Khan who proved the will, and who is the principal beneficiary thereunder.
THE FACTS
Abdus Sattar Sheikh ("the Deceased") died in England on 5 th February 2005. Mr Wahab was his only full brother. He lives in India and is aged 80. The Deceased was also survived by a half-brother, a Mr Ghouse Munawar.
On 6 th June 2005 probate of a purported will of the Deceased dated 19 th December 2004 was granted to Mr Khan and the second defendant Mr Mohammed Jamal. The estate consisted of real properties situated in England and cash. The named beneficiaries were Mr Khan as to 70% and Mr Jamal as to 30%. Neither of them are blood relations of the Deceased. Mr Wahab's case is that Mr Khan was a builder who did work for the Deceased and that Mr Jamal was one of his tenants.
On 30 th July 2007 Mr Munawar commenced a Part 8 Claim ("the 2007 claim") seeking the revocation of probate, based upon an allegation that the will was a forgery. Mr Khan and Mr Jamal were the defendants to that claim. At an interim application on 16 th August 2007 Mr Munawar obtained, in the form of undertakings, a restraint upon the distribution of the estate by the defendants.
At a further interim hearing on 20 th August 2007 Kitchin J ordered that Mr Wahab be substituted as the claimant, and that the claim be continued as if it had been made under Part 7 rather than the (obviously inappropriate) Part 8. Mr Munawar was ordered to pay the defendants £5,000 towards their costs to date and the undertakings given by the defendants were continued.
From that point onwards, the prosecution of the 2007 claim ran out of steam. The evidence as to why this was so is inconclusive. Mr Wahab appears to have spent part of the following few months in hospital in India. More importantly there was evidence before the Master that he had failed to put or keep his English solicitors in funds, or to give them instructions.
In February 2009 the first defendant's solicitors suggested that the claim be discontinued with each side paying its own costs. Mr Wahab's solicitors appeared to be without instructions to agree, and they applied to come off the record.
In the meantime, on 10 th April 2009 Peter Smith J granted the first defendant's application to strike out the claim. The evidence in support of that application relied upon a failure by Mr Wahab to comply with CPR Part 57.5 in relation to provision of testamentary documents, the non-payment of the £5,000 costs ordered to be paid by Mr Munawar and Mr Wahab's failure to prosecute the action after September 2007. The skeleton argument in support of the application relied upon the first and third of those grounds. Mr Wahab did not attend and was not represented. Peter Smith J granted the application and ordered Mr Wahab to pay Mr Khan's costs, subject to detailed assessment if not agreed. No agreement as to the costs payable was reached between the parties, and no application for a detailed assessment has since been made by Mr Khan.
Mr Wahab's enthusiasm for his claim appears to have revived in June 2008, but it was not until 30 th October 2009 that he issued a fresh claim, again under Part 8, against Mr Khan and Mr Jamal, joining in addition as third and fourth defendants the two persons appearing on the will to have been the attesting witnesses. I shall refer to it as "the 2009 claim".
The substance of the 2009 claim was exactly the same as in 2007, namely an attempt to obtain the revocation of probate upon the grounds of forgery and lack of due execution. Annexed to the Particulars of Claim is a report from Robert Radley, a forensic handwriting and document examiner, prepared in July 2007 in connection with the 2007 claim in which, on the basis of what he describes as "very strong evidence" he expresses the opinion that it is very unlikely that the two signatures purporting to be made by the Deceased on the will were in fact made by him.
Having protested (amongst other things) about the continuing failure by Mr Wahab to pay costs in the 2007 claim, Mr Khan issued an application to strike out the 2009 claim on 31 st March 2010, seeking security for costs in the alternative. That application came on for hearing on 29 th April 2010 at the same time as the date fixed for the case management conference.
MASTER BRAGGE'S JUDGMENT
Master Bragge gave a detailed extempore judgment, a transcript of which he subsequently approved. After reciting the facts (in a manner which is not challenged on this appeal) he directed himself as to the law by reference to CPR 3.4(2), to the overriding objective, and to notes in the 2010 White Book at paragraphs 3.4.3.1 and 3.4.3.5. It does not appear that he had any authorities cited to him, but some of the most relevant authorities are summarised in those notes.
Having noted that the 2009 claim repeated the same inappropriate use of Part 8 (rather than Part 7) and that there had been a similar failure by Mr Wahab to comply with CPR 57.5, Master Bragge considered (at paragraph 35) that he needed to decide whether the Statement of Case in the 2009 claim was an abuse of the court's process. He reminded himself that the bringing of successive or concurrent vexatious proceedings may be an abuse if it amounts to harassment of a defendant, and he recognised the modern practice that, where a previous claim is struck out on the grounds of delay, then a subsequent claim may, even if not statute-barred, be struck out because "the claimant's wish to have a second bite at the cherry has to be weighed with the overriding objective of the Civil Procedure Rules in mind, in particular the court's need to allot its limited resources to other cases".
The Master's conclusion was that the bringing of the 2009 claim was an abuse, and that nothing short of its striking out was a sufficient or appropriate response. His reasoning may be summarised as follows. First, the 2007 claim had not merely failed, but been struck out after the obtaining by Mr Wahab of significant interim relief, and in response to his failure to provide either instructions or funds to his solicitors. Secondly, the Master considered but rejected the less draconian course of staying the 2009 claim pending assessment and payment of the costs ordered in the 2007 claim, because the history of Mr Wahab's inactivity gave him "no confidence that that course would achieve anything other than the expense to the first defendant of a detailed assessment hearing".
Finally, the Master took account of the apparent strength of Mr Wahab's expert evidence, but concluded that, having regard to the successive failures in both claims to comply with Part 57.5, that "this case really cannot continue".
THE LAW
The bringing of a second claim where an earlier claim based upon the same facts or seeking the same relief has failed may give rise to a number of different types of what may loosely be called an abuse of process. The clearest instance is where the claim or issue in dispute has already been adjudicated upon between the same parties (or their privies) in the earlier case, where the second claim will generally be barred as being res judicata, or subject to a fatal issue estoppel. That is a matter of substantive law, rather than the court's case management powers arising from abuse of process: see Johnson v. Gore Wood and Co [2002] 2 AC 1 at 59 E per Lord Millett.
The second is where the claim or issue raised in the second case is one which both could and should have been brought in the first case, where the first case has either been adjudicated upon or concluded by a settlement. This is what is sometimes called Henderson v. Henderson abuse (a label derived from the leading case of that name) but is comprehensively analysed in Johnson v. Gore Wood. It is underpinned by the same public interest that there should be finality in litigation and that a party should not be twice vexed in the same matter: see per Lord Bingham at page 31B. The question whether such a claim should have been raised for adjudication in earlier proceedings requires a "broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before" per Lord Bingham at page 31D to E. For a concise summary of the relevant principles see Dexter Ltd v. Vlieland-Boddy [2003] EWCA Civ 14, per Clarke LJ at paragraph 49.
Generally, cases of those first two types arise where there has either been an adjudication (whether at trial or summary judgment) or a settlement of the earlier claim. In...
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