Das & Anor v Barclays Bank Plc

Successive proceedings may amount to an abuse of process even where the earlier proceedings ended for procedural reasons and the later claim is brought by an additional claimant. The question is whether, viewed broadly and on the merits, the later proceedings misuse the court process or oppress the defendant. Relevant considerations include whether the matters could and should have been raised earlier, whether the later claim relitigates the same dispute, and the parties’ conduct.

A contractual claim for wrongful debits is subject to a six-year limitation period running, at latest, from the first demand for repayment. A beneficiary cannot relitigate matters already litigated by the trustee. Claims that are abusive or time-barred may be struck out, with summary judgment available in the alternative.

The claimants sought recovery of more than £130,000 withdrawn from the second claimant’s bank account between 1991 and 1993. Earlier proceedings by the second claimant concerning the same withdrawals were struck out by Buckley J in October 2000, and an application to set aside that decision was refused in December 2000.

The first claimant later issued proceedings concerning the same withdrawals. The claim was subsequently amended to add the second claimant as a claimant. The bank applied to strike out the proceedings, alternatively for summary judgment. The claimants also sought injunctive relief against the bank’s solicitors, reversal of procedural orders, adjournments and production of files.

The central issues were whether the second proceedings were an abuse of process, whether they were time-barred, and whether the ancillary applications had merit.

1. Disposition. The second proceedings were struck out under rule 3.4(2)(b) of the Civil Procedure Rules 1998. Summary judgment was also awarded to the bank in the alternative. The claimants’ further applications were refused.

2. Abuse of process. The court applied the broad, merits-based approach in Johnson v Gore Wood [2002] 2 AC 1. The later proceedings concerned the same withdrawals and alleged failures by the bank as the earlier proceedings. The differences were cosmetic and operated as a disguised appeal against Buckley J’s order. The claimants’ delay, repeated procedural defaults and conduct supported the conclusion that the proceedings misused the court process.

3. The fact that the earlier proceedings had been struck out for procedural non-compliance, rather than decided on their merits, did not prevent a finding of abuse. The court allowed for the difficulties faced by litigants in person, but those allowances did not justify relitigation. If the first claimant had an interest in the account, she could have been joined earlier; on the assumed trust analysis, a beneficiary could not relitigate matters already litigated by the trustee, applying Meretz Investments & Another v ACP Ltd [2006] EWHC 74 (Chancery).

4. Limitation. Applying National Bank of Commerce v National Westminster Bank [1990] 2 Lloyd’s Reports 514 and Bank of Baroda v Mahomed The Times, 10 December 1998, the six-year period for the alleged contractual breach ran, at latest, from the first demand for repayment. The letter of 19 February 1996 and subsequent correspondence were demands, so the claim issued on 12 December 2002 was time-barred.

5. The bank’s arguments concerning expiry under CPR 7.5(2) and the second claimant’s standing as a bankrupt were not decided. The default judgment had properly been set aside because it had been obtained contrary to existing orders and after the bank had issued its summary judgment application.