Civil procedure – Abuse of process – Strike out – Claimants alleging deceased entered into oral joint venture agreements relating to property development – Defendant representative of deceased’s estate denying agreements – Defendant applying to strike out claim on ground that previous claim brought by claimants against another defendant on same facts had been dismissed – Whether claim being abuse of process – Application granted
The claimants were engaged in the business of property development, principally in pentral London, with a focus on “high-end” properties. They contended that, before his death, the deceased, a Scottish businessman who owned and controlled a group of companies which operated principally care home businesses in Scotland, had shown an interest as a potential investor in various joint ventures to be undertaken by them and had entered into oral joint venture agreements.
After his death, the claimants brought proceedings against the deceased’s estate but the defendant, who had been appointed to administer the estate, denied the existence of any joint venture agreements and applied to the court for the claim to be struck out under CPR 3.4(2)(b) as a an abuse of process. He contended that in the earlier case of Clutterbuck v Al Amoudi [2014] EWHC 383 (Ch), the claimants claim against Al Amoudi, alleging that she had been party to the same oral joint venture agreements to which the deceased was alleged to have been party, had been dismissed in its entirety. The court had also refused the claimants’ application for permission to appeal.
The defendant argued that the claimants’ failure to seek directions from the judge in the Al Amoudi trial as to whether their claim against the defendant or the deceased’s estate should be combined with the claim against Al Amoudi, was contrary to the principles laid down by the Court of Appeal in Aldi Stores Ltd v WSP London Ltd [2007] EWCA Civ 1260; [2007] PLSCS 244 concerning mandatory case management rules for complex commercial multi-party litigation. Under the Aldi guidelines, where a second action arose out of the same matter, it had to be referred to the court seised of the proceedings. As a consequence of the claimants’ failure to adhere to the Aldi guidelines by seeking directions from the judge as to their claims against the defendants, their action should be struck out.
Held: The application was granted.
(1) It was abundantly clear that the Aldi guidelines, which were mandatory, applied to the present case and that the claimants had failed to comply with them. Looking at all the various aspects of the case and considering the action in the round against the background of the AL Amoudi case, it was inescapable that the Aldi guidelines applied and the claimants’ failure to comply with them was inexcusable: Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, Aldi Stores Ltd v WSP London Ltd [2007] EWCA Civ 1260; [2007] PLSCS 244 and Gladman Commercial Properties v Fisher Hargreaves Proctor [2013] EWCA Civ 1466; [213] PLSCS 274 applied. Clutterbuck v Al Amoudi [2014] EWHC 383 (Ch) considered.
(2) An inexcusable failure to follow the Aldi guidelines was a heavyweight factor in favour of a finding of abuse due, among other things, to the significant public interest in the efficient and economic conduct of litigation, given the costs and other resources involved, and the importance of fairness to other court users, in particular, other litigants waiting to have their actions heard, in respect of the allocation of scarce court resources. It was a matter for the court to decide whether to hear the claims against both defendants in a single action would produce an enormously complex and unwieldy trial that would, effectively, have to be split in two, and not a decision for the claimants alone to make. The present action, considering all the relevant factors and looking at the case in the round, was an abuse of process. Accordingly, the claimants’ action against the defendant would be struck out as an abuse of process.
Stuart Cakebread (instructed by Strafford Law) appeared for the claimants; Jonathan Seitler QC and Emer Murphy (instructed by Squire Patton Boggs (UK) LLP, of Manchester) appeared for the defendant.
Eileen O’Grady, barrister
