Chaudhri (Shafi) v Shafi & Anor

A party who abandoned, or expressly agreed not to resist striking out, a claim in earlier financial remedy proceedings cannot ordinarily revive that claim years later. The court may treat such conduct as an abuse of process where the claim should reasonably have been advanced in the earlier proceedings. A freezing injunction sought to protect the revived claim should then be discharged.

Applications for freezing orders arising from family proceedings should ordinarily be made in the Family Court, normally before a District Judge. A District Judge has power to grant such relief under the relevant statutory and procedural provisions, subject to allocation to a High Court judge where specifically ordered.

The applicant sought continuation of a freezing order over a property registered in the name of the second respondent. She alleged that she and the first respondent were its beneficial owners and that it could be used to satisfy an unpaid lump sum order made in earlier financial remedy proceedings.

The applicant had previously abandoned the property claim and had expressly stated through her solicitor that she would not resist an application to strike it out. The earlier proceedings concluded without any order concerning the property. The issues were whether revival of the beneficial ownership claim was abusive and whether the freezing order should remain in force, together with the proper forum for any future freezing application.

1. The freezing order was discharged. The applicant had twice failed to pursue the alleged beneficial ownership claim: first by expressly declining to resist its strike-out and later by abandoning it during the financial remedy proceedings. The earlier proceedings had concluded three years before, without the property being included in the judgment or order.
2. The court applied the abuse of process principles in Henderson v Henderson [1843] 3 Hare 100 at 114 and Johnson v Gore Wood & Company [2002] 2 AC 1 at [31]. Finality in litigation requires a party to advance the whole case which, exercising reasonable diligence, should have been brought in the earlier proceedings. The second respondent had discharged the burden of showing that permitting the new claim would be a manifest abuse.
3. The judge stated that the applicant’s approach to the High Court for freezing relief was misconceived. In family proceedings, a freezing injunction may be granted under section 37 of the Matrimonial Causes Act 1973 or section 37 of the Senior Courts Act 1981. Section 37(6) of the latter Act gives the Family Court power to grant an injunction under that Act.
4. Schedule 2 to the Family Court (Composition and Distribution of Business) Rules 2014 authorised a District Judge sitting in the Family Court to deal with any freezing order application under either statutory provision. Paragraph 24 of the President’s Guidance confirmed that such applications should ordinarily be heard in the Family Court, normally at District Judge level, with allocation to High Court level only by specific order.
5. The existing freezing order made by Holman J was transferred to the Family Court at Uxbridge. Any further application for freezing relief was to be made there and could be allocated to a High Court judge only by a specific order of a District Judge.

Not an appeal. The judgment reconsidered a freezing order made by Cobb J on 8 April 2019 and directed the transfer of an earlier freezing order made by Holman J in September 2016.