BL-2024-000734 - [2025] EWHC 3003 (Ch)

The ninth ground is that I held that the Claimants’ bringing of this case constitutes an abuse of the process of the court. This finding was based on the fact that the Claimants, having presented one position to a court, and the court having made an order in reliance on that position, now take a different position in these different proceedings. Zacaroli LJ in in Malik v Malik [2024] EWCA Civ 1323 at [36] made clear that this fact pattern should be considered to be an abuse of the process (the authorities are set out in [97 - 100]).

The reason that I took this view was that, having supported the making of an order which could only have been made if the Defendants were validly appointed, it is an abuse of process for the Claimants now to bring a claim whose fundamental basis is that they were not. It would have been entirely open to the Claimants to raise the issues that were before me in those earlier proceedings, but they chose not to do so. It is therefore too late for them to try to raise them now.

It was of course argued that the determination of this matter was a fact sensitive one requiring full consideration of all the circumstances after having had proper disclosure and witness evidence, and that here was insufficient material before the court to come to any final conclusion summarily. However, there was and is no indication as to what sort of facts might be found which would be relevant to this issue. This ground of appeal therefore has no reasonable prospect of success.