Mr Bashar Bin Mahmood v KPMG LLP

Hearing date: 17 December 2024

Approved Judgment

This judgment was handed down remotely at 10 a.m. on 14 January 2025 by circulation to the parties or their representatives by email and by release to the National Archives.

Nicola Rushton KC:

I have before me an application by the Defendants to strike out the Claimant's claim against them on grounds of abuse of process, and/or for summary judgment on the basis that the claim has no real prospect of succeeding. The claim is essentially for professional negligence and misconduct between 2008 to 2010 in the conduct of the administrations of a number of insolvent companies of which the Claimant was director, shareholder and/or guarantor, in particular in allegedly selling at an undervalue the development properties which were the main assets of those companies. The value of the claim was said on the Claim Form to be £1,206,600,000 plus interest.

The claim to a very great extent duplicates an earlier claim brought by the Claimant against the same Defendants in the Central London County Court (Claim Number J36YJ967, “ the First Claim”). That First Claim was struck out and judgment was given in favour of the Defendants by an order of District Judge Greenidge of 10 July 2023, following a hearing which from the transcript took the best part of a day. Permission to appeal was refused on the papers by HHJ Saggerson on 27 October 2023. The Claimant renewed his application for permission orally and it was refused by HHJ Bloom on 9 May 2024. DJ Greenidge and HHJ Bloom each also found that respectively the claim and the application for permission to appeal were totally without merit. I have been provided with the transcripts of the judgments and the hearings before both DJ Greenidge and HHJ Bloom, as well as the bundles and other papers relating to those hearings.

The present claim was issued on 26 January 2024. This was before the Claimant's oral application for permission to appeal on the First Claim had been dealt with, as he acknowledged to HHJ Bloom during the hearing before her. On 23 February 2024 the Defendants issued their application for strike out and summary judgment on the present claim. On 14 March 2024 Master Brightwell directed the Claimant to explain how the current claim differed from the First Claim, saying that it was not open to a dissatisfied litigant whose claim had been dismissed in one court to issue the same claim again in another. The Claimant has never responded to that direction.

On 22 April 2024 the Claimant issued an application for wide-ranging disclosure against the Defendants. On 24 April 2024 Master Brightwell directed that the question of whether that application needed to be listed would be considered at the conclusion of the hearing of the Defendants' application, which he listed to be heard before him on 1 August 2024.

The hearing before Master Brightwell on 1 August 2024 was vacated because the Claimant's counsel unfortunately contracted Covid. The application was therefore relisted, and came before me for hearing on 17 December 2024, with a time estimate of one day.

In his direction of 31 July 2024 vacating the hearing, and having reviewed the Defendants' skeleton filed in support, Master Brightwell observed that rather than being a case where an issue estoppel or cause of action estoppel had arisen, this might rather be a case where the previous claim had been struck out without an adjudication on the issues, so that the applicable principles were those set out by the Court of Appeal in Securum Finance Ltd v. Ashton [2001] Ch 291 (“ Securum”). He also noted that the Claimant had been made bankrupt after the events of which he complained, which appeared to create the fundamental objection that the Claimant had no standing to sue. The Master gave further directions which were intended to give the Defendants the opportunity to deal with the Securum point, Claimant's counsel to file a skeleton in opposition to the application, and Defendants' counsel to respond to the same. Regrettably Claimant's counsel filed and served his skeleton late for the hearing before me, preventing Defendants' counsel from responding to it in writing but I am satisfied that he had a proper opportunity to do so in oral submissions.

The Claimant has for the most part acted as a litigant in person, but he was represented at the hearing before me by counsel, Mr Timothy Becker, acting on a direct access basis. The Defendants have been represented throughout, as they were in the First Claim, by counsel Mr Matthew Abraham, instructed by Stephenson Harwood LLP. I am grateful to both counsel for their submissions in writing and at the hearing.

On 19 July 2024 the Claimant applied to amend his Particulars of Claim, attaching proposed draft amended Particulars. The Defendants have helpfully provided a red-lined version showing the proposed amendments. That application was also listed to be heard before me. Mr Abraham on behalf of the Defendants did not oppose the amendments, on the basis that he wanted the strike out and summary judgment to extend to any amended claim. Accordingly I will consider the Defendants' application on the basis that the Particulars of Claim have been amended under CPR rule 17.1(2)(a), without therefore any acknowledgement or finding that the amendments have rendered the claim reasonably arguable. By the amendments the Claimant among other things reduced the size of his claim to £25,000,000, and added additional heads of claim which are closely related to the original ones.

There is no dispute that the Claimant was made bankrupt on 23 March 2009, after all the relevant companies had entered administration. He was discharged from bankruptcy on 20 August 2012. A representative of the Official Receiver attended the hearing before me as an observer.

The Defendants' application for strike out and summary judgment was made on a number of alternative grounds, so I will approach these in the manner which seems to me logical.

Abuse of process under CPR 3.4(2)(b) and Securum

Mr Abraham's primary submission was that the claim should be struck out under CPR 3.4(2)(b) on the basis “that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings” because it essentially replicates the First Claim, which has itself been struck out and dismissed, and judgment entered for the Defendants.

Although the First Claim was disposed of at an interim hearing, Mr Abraham submitted that it was adjudicated upon on its merits, because DJ Greenidge struck it out under CPR 3.4(2)(a) as well as under sub-paragraph (b), and also granted summary judgment. Mr Abraham took me to the extended recital to DJ Greenidge's order, in which the District Judge set out that he had considered, and was including within the definition of the Claimant's claim:

“… (i) the Claimant's claim dated 25 October 2022; (ii) the particulars of claim filed in respect of it; (iii) the ‘Detailed Supplementary Claim Statement Submission as Requested by the Defendants’ document dated 29 December 2022; (iv) the further particulars dated 7 February 2023 ‘in reference to the defendants' response [to the Claimant's request for further information] dated 25 January 2023’; (v) the further particulars by way of the Claimant's document dated 1 April 2023 entitled ‘In reference to the defendants' response of refusal to correspond via part 18 Procedure And Court order to correspond for conclusion date 25.03.2023’; (vi) the further particulars by way of the Claimant's ‘Position Statement as ordered by HHJ Ellington on the 25.March.2023’, dated 20 April 2023; (vii) the further particulars by way of a document titled ‘Skeleton Argument in Support Towards Part 18 Sanctions Against The Defendants’ dated 26 April 2023; (viii) the Claimant's application dated 14 June 2023 for an order ‘Detailing and expanding of the Particulars of Claim submitted 25.10.2023 to the court and defendants with the supplementary witness statement and part 18 witness statements issued between 28.12.2022 and 02.06.2023’; (ix) the Claimant's skeleton argument dated 15 June 2023; and (x) the Claimant's ‘supplementary Claimant witness statement’ dated 6 July 2023 (the Claim)”

Mr Abraham submitted that the current claim was an abuse of process because it sought to relitigate the First Claim, which was disposed of on its merits. He said that the Claimant had admitted this before HHJ Bloom and also in an application for a stay which he issued in the present claim on 28 February 2024, in which the Claimant said in his witness statement in support:

“2. I issued proceedings against the Defendants in Central London County Court. My claim is substantial. That Court said my claim should be transferred to the High Court as it was above the County Court Limit.

3. Instead, the Defendants applied to strike out my claim on the basis that my pleading was incoherent. On 10 July 2023 District Judge Greenidge struck out my case.

a. I applied for permission to appeal within the time limit. Eventually my application was refused on paper. I straight away applied for an oral hearing. After all this time I am told the Central London Cou[n]ty Court will list my hearing soon.

4. In the meantime, I issued the current claim which covers the same case. I did this because I was concerned that my case may become ineligible due to limitation...