Markham v O'Hara

Abuse of process is fact-sensitive. A later claim may be abusive where it should have been raised in earlier proceedings, particularly where it seeks to revive a claim already struck out. A claim for an account requires proof that the defendant received property in an accountable capacity, ordinarily arising from a fiduciary relationship. A possible claim in bailment does not itself create an equitable duty to account.

A freezing order should not continue where it has no utility, but the court may preserve it over identified assets where there remains a real risk of dissipation and a legitimate enforcement purpose. A conditional discharge may require disclosure of a residential address where that materially assists enforcement, although the condition must allow a fair alternative if no residential address exists.

Following judgment for Ms O’Hara on claims for repayment of loans and a declaration concerning a property, a worldwide freezing order was made against Mr Markham. Phillips J later discharged the order generally but continued it over French chattels and made the discharge conditional on Mr Markham providing his residential address. Mr Markham appealed.

Separately, Mr Markham sought an inquiry and account concerning chattels allegedly retained by Ms O’Hara and credits said to be due against the judgment debt. Males J struck out that application as an abuse of process and held that it would fail on the merits: [2018] EWHC 3796 (QB). Mr Markham sought permission to appeal. The central issues were whether the chattels claim was abusive, whether it disclosed any basis for an account, and whether the freezing order and its condition were proportionate.

1. Permission application. Permission to appeal Males J’s decision was refused and the application was certified as totally without merit. The chattels claim had already been struck out as an abuse of process, and seeking to raise the same underlying claim again was itself abusive.
2. Abuse of process. The applicable test was the fact-sensitive approach stated in Johnson v Gore-Wood [2002] 2 AC 1, reflecting finality in litigation and protection from being twice vexed. Mr Markham had advanced at trial the diametrically opposed case that the chattels belonged to the Kingsbury Trust. He could have pleaded an alternative case that, if they were his, credit or an account was due, but did not do so. The later proceedings therefore should have been raised earlier and were abusive.
3. Account and bailment. Liability to account had to be established before an account could be ordered. It depended on receipt of property in an accountable capacity and, in this case, a fiduciary relationship. No fiduciary relationship was established. A possible bailment claim did not give rise to an equitable duty to account. There was also no satisfactory evidence identifying chattels still held by Ms O’Hara, and the evidence did not justify an order for directions or an account.
4. Freezing order. The appeal against the partial discharge was dismissed. Phillips J was entitled to preserve the order over the French chattels. The order concerned continuation of an existing injunction; the risk of dissipation, Mr Markham’s history of dishonesty and non-compliance, the existence and value of the chattels, and their unlawful removal gave the order continuing utility. Reliance on the French orders did not assist him because he had flouted them.
5. Condition. The condition requiring provision of a residential address was within the judge’s discretion. Under CPR 6.23(2), an unrepresented individual without a solicitor must give a residential address unless there is none. The condition was justified by the pattern of non-compliance and the address’s importance to enforcement. It was, however, potentially unfair if Mr Markham genuinely had no residential address. The condition was varied to permit a detailed witness statement explaining that position, his past twelve months’ accommodation, his current location and his expected location for the next twelve months.

1. Court of Appeal (Civil Division) — The appeal against Phillips J’s order was dismissed subject to variation of the address condition. Permission to appeal Males J’s decision was refused and the application was certified as totally without merit.
2. Queen’s Bench Division, Mr Justice Males — The application for an inquiry and account was struck out as an abuse of process and would in any event have been dismissed on its merits: [2018] EWHC 3796 (QB).
3. Queen’s Bench Division, Mr Justice Phillips — The general freezing order was discharged, save for the French chattels, subject to provision of a residential address. No citation is stated in the judgment.