Wahab v Khan & Ors

A second claim repeating an earlier claim struck out for procedural default or delay is not automatically an abuse of process. The court must identify the type of abuse and assess the matter in the round, considering the claimant’s conduct and reasons for the first strike-out, unfairness or prejudice to the defendant, any disproportionate burden on court resources, and the reasons for bringing the second claim.

Unpaid costs from the first claim ordinarily justify a stay of the second claim until payment, not strike-out of the claim itself. Probate claims receive no special immunity from these principles. Where delay occurred while interim relief was enjoyed, the court may refuse or discharge such relief and impose a conditional stay or strike-out.

The claimant appealed against Master Bragge’s order striking out his claim for revocation of probate as an abuse of process. The deceased’s purported will had been admitted to probate, and an earlier claim alleging forgery and want of due execution had obtained interim relief before being struck out after procedural default, delay and failure to progress the litigation.

The later claim sought substantially the same relief and was brought against the principal beneficiaries, with the attesting witnesses also joined. The central issues were whether bringing the later claim itself was abusive, whether unpaid costs required strike-out rather than a stay, and whether probate claims were subject to any special rule limiting the effect of delay.

1. Disposition. Permission to appeal was granted and the appeal was allowed. The Master had not sufficiently analysed the nature and effect of the alleged abuse before striking out the later claim.
2. Different forms of abuse. A second claim may be barred where the substance has already been adjudicated or where it raises matters which should have been raised in earlier concluded proceedings. Johnson v Gore Wood and Co [2002] 2 AC 1 explained the distinction between res judicata, Henderson abuse and case-management abuse. Those categories did not apply where the first claim had been struck out for procedural default and delay rather than adjudicated upon or compromised.
3. Where the earlier claim has been struck out and its costs remain unpaid, the abuse lies in pursuing the later claim without first paying those costs, not ordinarily in bringing the later claim at all. Under the separate remedies contemplated by Civil Procedure Rules CPR 3.4(2) and (4), the normal response is a discretionary stay until payment, with conditional strike-out if payment is not made. Investment Invoice Financing Ltd v Limehouse Board Mills Ltd [2006] 1 WLR 985 was applied.
4. A later claim following strike-out for delay may also involve disproportionate use of court resources. The court must examine the claimant’s conduct of the earlier claim, the reasons for its strike-out, the combined burden of the earlier and later claims, any unfairness to the defendant, and the claimant’s reasons for pursuing the later claim. The guidance in Securum Finance Ltd v Ashton [2001] Ch 291 was applied. The appellate court may interfere with first-instance balancing where material factors were omitted, principle was misstated, or the conclusion was impermissible.
5. There was no special probate rule derived from the supposed sanctity of a grant. Re Flynn Deceased [1982] 1 WLR 310 did not support such an immunity.
6. The claimant’s seven-month failure to progress the first claim while enjoying interim relief could justify refusal or discharge of such relief, but did not make the later claim abusive in itself. There was no adjudication, settlement, duplicative case management, or distinct prejudice beyond unpaid costs, and the forgery allegation had a genuine evidential basis. An outright strike-out was therefore too rigorous. The later claim was stayed conditionally on payment of the earlier costs, with strike-out to follow if the specified payments were not made.

1. First-instance stage: Master Bragge struck out the later probate claim on 29 April 2010 as an abuse of process.
2. High Court (Chancery Division): On appeal, Mr Justice Briggs granted permission, allowed the appeal and substituted a conditional stay and strike-out regime. The court reserved submissions on the alternative security for costs application. The judgment is reported at [2011] EWHC 908 (Ch).