Asertis Ltd v Clarkson & Ors

A later claim challenging a settlement agreement is not barred as an abuse of process merely because the claimant knew the underlying facts during an earlier enforcement application, where the earlier proceedings did not determine that challenge. Allegations of clean hands and illegality may require a full trial where the court must compare the parties’ conduct. An unlawful means conspiracy is sufficiently pleaded where combination, intention to injure, unlawful means and loss are supported by primary facts; injury need not be the predominant purpose. A claim under section 140A of the Consumer Credit Act 1974 may be pursued only by a debtor or surety, not by a shareholder of the debtor.

The judgment concerned applications in related London and Manchester proceedings. Asertis, as assignee of FundingSecure’s claims, sought relief against Mr Clarkson and other defendants concerning substantial alleged borrowings and fraud. Mr Clarkson brought a Part 20 claim alleging, among other matters, that the lenders and others had conspired to procure default under a settlement agreement relating to property financing.

The applicants sought strike out, summary judgment, enforcement of the settlement agreement, and revocation of permission for the Part 20 claim. They relied on res judicata, Henderson v Henderson abuse of process, illegality, lack of clean hands and defective conspiracy pleading. The central issues were whether the Part 20 claim should proceed and whether the statutory consumer-credit claim was available.

1. Abuse of process. The court rejected the res judicata and Henderson v Henderson objections. The earlier hearing concerned enforcement of the settlement agreement and Mr Clarkson had challenged it only as containing penalties. He had not sought to set the agreement aside. The present challenge was therefore different, and it was not shown that it should have been raised earlier.
2. Clean hands and illegality. Those issues were unsuitable for strike-out or summary determination. The court would need to scrutinise at trial the parties’ respective conduct and decide whether Mr Clarkson’s conduct should preclude relief.
3. Unlawful means conspiracy. The pleaded elements were combination, intention to injure, unlawful means and loss. The pleading supplied a sufficient factual basis from about 12 October 2018. Injury need not be the primary purpose where unlawful means are alleged; it may be the necessary consequence of the conspirators’ objective. Alleged deceit, breaches of fiduciary duty and breaches of implied contractual terms were capable of constituting unlawful means. The claim was allowed to proceed to trial.
4. Lawful means conspiracy. The pleading did not allege the required predominant purpose to injure. That claim was struck out.
5. Consumer credit and other orders. Section 140B(2) of the Consumer Credit Act 1974 limits claims under section 140A to a debtor or surety. Mr Clarkson therefore lacked standing. The statutory claim was struck out. Because the enforceability of the settlement agreement remained live, enforcement of the Tomlin Order was dismissed. Mr Clarkson’s set-off claim remained, while the other defendants’ set-off was struck out. Permission to withdraw admissions was refused for want of a proper application and explanation.

First-instance decision. The judgment records an earlier order dated 8 November 2019 concerning enforcement of the settlement agreement, but no appeal from that decision was stated.