Samuel v Samuel & Ors

A second claim may constitute an abuse of process even where the earlier proceedings ended by compromise without a determination on the merits. The court must make a broad, merits-based assessment of all the circumstances, balancing finality, economy and protection from repeated litigation against the claimant’s opportunity to have the claim determined.

In probate proceedings, a defendant who claims any remedy relating to the grant of probate must serve a counterclaim under Civil Procedure Rules 1998, r 57.8(1). A party who fails to put such a claim formally before the court cannot ordinarily reserve a substantially identical claim for a later proceeding. Lack of funds and litigant-in-person status are relevant but will not necessarily justify the omission.

The claimant, a daughter of the deceased, sought revocation of probate of a 2008 will and declarations setting aside a transfer and trust relating to the deceased’s home.

A substantially identical probate claim had previously been brought by the claimant’s brother. The claimant had been joined as a defendant, attended a mediation, but did not acknowledge service, file a counterclaim or otherwise put her own claim formally before the court. The earlier claim was later compromised between the participating parties and discontinued without notice to her.

The first defendant applied under Civil Procedure Rules 1998, r 3.4(2)(b), contending that the claimant’s new proceedings were an abuse of process.

1. The claim was dismissed as an abuse of process. The court approached the application with care, balancing the claimant’s right to have an untried claim heard against the defendant’s right not to face a second set of proceedings where one should have sufficed.

2. Following Johnson v Gore Wood & Co [2002] 2 AC 1, the question was whether, in all the circumstances, the claimant was misusing the court’s process. The inquiry was not governed by an inflexible rule that every matter which could have been raised earlier must necessarily be raised earlier.

3. The earlier proceedings had involved substantially the same issues, parties and expert evidence. Although they had ended by compromise without binding the claimant and without a determination of the merits, those circumstances did not prevent a finding of abuse. The claimant had been a party, had attended the mediation and knew the broad facts underlying her proposed challenge.

4. Rule 57.8(1) of the Civil Procedure Rules 1998 made it compulsory for a defendant claiming any remedy relating to the grant of probate to serve a counterclaim. Its purpose was to ensure that all challenges to a will were dealt with in the probate proceedings and that the court could determine the validity of the will or wills comprehensively.

5. The claimant’s failure to put her position formally on the record meant that the court was not alerted to the existence of another claim. She should have sought to pursue her remedy in the earlier proceedings, or returned promptly to the probate court after learning that the brother’s claim had been compromised. Her inability to afford legal representation and her status as a litigant in person were relevant circumstances but did not outweigh the private and public interests in finality and avoiding duplicated litigation.

6. The claim concerning the declaration of trust and transfer was also abusive. Although that claim was not governed directly by r 57.8(1), it formed part of the relief sought in the earlier proceedings and could and should have been pursued there.

Not stated in the judgment.