Sartipy v Tigris Industries Inc

A default judgment may be set aside where proceedings were deliberately served at an incorrect address and the defendant was thereby prevented from responding. A claim based on allegations already rejected in earlier proceedings may constitute an abuse of process and be suitable for summary judgment or strike-out.

An Extended Civil Restraint Order may be made where a party has persistently issued claims or applications which are totally without merit. The relevant party may include the person who is the real claimant or applicant behind proceedings issued in another person’s name. Earlier applications may be treated as totally without merit even if the earlier orders did not use that expression.

The defendant applied to set aside a default judgment, strike out the claimant’s claim or obtain summary judgment, and obtain an Extended Civil Restraint Order. The proceedings concerned a charging order and repeated allegations of fraud and improper conduct which had previously been raised and rejected in related litigation.

The defendant contended that service had been deliberately effected at an incorrect address, that the claim was an attempt to reopen matters already determined, and that the claimant was being used as the nominal party for applications conducted by her son. The court considered the validity of service, abuse of process, and the requirements for an Extended Civil Restraint Order.

1. Default judgment. The proceedings had not been served at the defendant’s Panamanian registered office, its UK address for service, or its solicitors’ address. The claimant and her son knew the correct addresses and the defendant’s representation. The failure to serve was deliberate and had misled the judge who entered judgment in default. The default judgment was therefore set aside.
2. Abuse of process. The claim relied on the same allegations previously advanced in an application for permission to appeal and rejected by Norris J as an attempt to reopen concluded litigation. Repeating those allegations in fresh proceedings was a further abuse of process. Summary judgment was entered for the defendant, alternatively the claim was struck out because the claimant had no real prospect of success.
3. Extended Civil Restraint Order. Paragraph 3.1 of Practice Direction 3C permits an order where a party has persistently issued claims or made applications which are totally without merit. Applying CFC 26 Ltd v Brown Shipley & Co Limited, the ordinary threshold is an overall total of three such claims or applications.
4. The expression “party” may include the real claimant or applicant behind proceedings brought in another person’s name. The evidence showed that the claimant’s son drafted the legal documents, conducted the litigation, and used his mother’s name to avoid the effect of a restraint order. He was therefore the real claimant or applicant, and his conduct could be taken into account against the claimant.
5. Following Lilley v Euromoney Institutional Investor Plc, earlier applications may be found to have been totally without merit even where the earlier orders did not expressly characterise them in those terms. The repeated applications, based on forged documents and lies to the court, were paradigm examples. An Extended Civil Restraint Order was made against the claimant.