Barabutu & Anor v Timmis

A claim may be struck out as an abuse of process where a person uses a nominal claimant to revive substantially the same claim previously struck out, even if the new claim is expressed in different terms. A court may identify the real claimant by examining the litigation history and surrounding circumstances. A claim for breach of trust is subject to the applicable limitation period. The concealment exception in Limitation Act 1980, s 32(2), does not assist where the alleged concealment is contradicted by the claimant’s previous attempts to bring the same claim.

The claim concerned an alleged £100,000 deposit made in 2008 and was brought by Christian Barabutu, said to be the assignee of a cause of action formerly belonging to KB Trust Company. The defendant applied under CPR 3.4(2)(a) and (b) to strike out the claim for disclosing no reasonable grounds and as an abuse of process.

The court considered the history of substantially similar claims brought against the defendant, including claims associated with Leslie Gayle-Childs. It also considered the claimant’s failure to attend the hearing and concluded that Mr Gayle-Childs was the true claimant. The central issues were whether the claim was abusive and whether it was time-barred.

1. The claim was struck out under CPR 3.4(2)(a) and (b), and was certified as totally without merit. The claimant’s applications to set aside the order setting aside default judgment and to substitute KB Trustees Company as claimant were also dismissed and certified as totally without merit.

2. The court was entitled to look beyond the nominal claimant and identify the person who was in reality pursuing the proceedings. The litigation history, the similarity between the present claim and five earlier claims, the use of assignments and nominal claimants, and the claimant’s refusal to attend supported the conclusion that Mr Gayle-Childs was the true claimant.

3. Bringing substantially the same claim again, dressed in a different form and in the name of a nominal claimant, formed part of a campaign of litigation and was an abuse of the court’s process.

4. In any event, the underlying cause of action was statute-barred. The six-year limitation period for breach of trust had expired. The reliance on Limitation Act 1980, s 32(2), could not succeed because there had been no concealment as between the defendant and the true claimant. The true claimant had previously been able to bring the same claim.

5. The court directed that the transcript be produced at public expense because of the lengthy history of claims requiring the defendant to respond.