Elite Property Holdings Ltd & Ors v BDO LLP

A later claim against a different alleged co-conspirator is not automatically an abuse merely because it could have been brought with earlier proceedings. The court must make a broad, merits-based assessment of all the circumstances, including whether the later claim is oppressive or unjust. However, proceedings are abusive where they amount to a collateral attack on a final finding in earlier litigation in which the claimant had a full opportunity to advance its case. A claim based on the same alleged conspiracy may therefore be struck out where the earlier court has found that the alleged agreement had no real prospect of success.

The claimants alleged that Barclays Bank plc and BDO LLP conspired by unlawful means to procure Barclays’ foreclosure of lending facilities. Two of the claimants had previously brought related proceedings against Barclays. The conspiracy claim in those proceedings was refused permission to amend and the Court of Appeal dismissed the appeal, holding that there was no real prospect of showing that BDO had conspired or agreed with Barclays to obtain KPMG’s approval by unlawful means.

The claimants then brought the present claim against BDO, adding Travelforce as a claimant. BDO applied to strike it out as an abuse of process, including on the basis of collateral attack, and alternatively sought summary judgment.

1. The claim was struck out as an abuse of process. The court rejected the submission that the claim was abusive merely because BDO could have been joined to the earlier Barclays proceedings. Applying Johnson v Gore Wood 2002 AC 1 and Aldi Stores v WSP Group 2008 1 WLR 748, the relevant question was whether, on a broad merits-based assessment, the later proceedings were an abuse, particularly whether they caused oppression or unjust harassment.

2. The failure to join BDO in the earlier claim was not, by itself, abusive. BDO had not previously been sued, the earlier claim had not proceeded to trial, BDO had not been involved in it, and the decision to sue Barclays alone was not unreasonable when viewed without hindsight.

3. Nevertheless, the present claim was a collateral attack on the Court of Appeal’s finding that there was no real prospect of showing that BDO had combined or agreed with Barclays to use unlawful means. The principle in Hunter v Chief Constable of the West Midlands Police [1982] A.C. 529 applied. The fact that the earlier claim had been struck out rather than tried did not prevent abuse of process: Panton & Anor v Vale of White Horse District Council & Anor [2020] EWHC 167 (Ch).

4. The new pleading alleged substantially the same conspiracy as the Barclays claim. It pleaded only breach of Barclays’ undertaking to the FSA as the unlawful means. Allegations that BDO’s report was inaccurate did not materially alter the issue, since they did not establish an agreement between BDO and Barclays.

5. Alternatively, summary judgment would have been given for BDO. The evidence did not provide a reasonable prospect of proving the necessary agreement. The BDO report was not sent to KPMG, Barclays supplied the relevant information about redress, and the pleaded matters did not support an inference of conspiracy. The elements of conspiracy to injure by unlawful means were accepted as stated in Kuwait Oil v Al Bader [2000] 2 All ER (Comm) CA.

The judgment describes earlier proceedings against Barclays. HHJ Bird struck out the advice and review claims in [2016] EWHC 3294. Permission to appeal was refused by the Court of Appeal in [2018] EWCA Civ 1688. In related proceedings, HHJ Waksman refused permission to amend the conspiracy claim in [2017] EWHC 2030 (QB), and the Court of Appeal dismissed the ensuing appeal. The present court treated the finding that there was no real prospect of proving an agreement between Barclays and BDO as final for collateral-attack purposes.