Muhammad Asif v Freers Askew Bunting Solicitors Limited & Anor

A civil claim may be an abuse of process where it seeks to relitigate an issue decided in earlier criminal proceedings, even though the parties and causes of action differ. The critical considerations are whether the later proceedings would be manifestly unfair or would bring the administration of justice into disrepute. A criminal court’s decision to stay a prosecution for abuse may, in form and effect, constitute a judgment. Summary judgment is also appropriate where contemporaneous documents materially contradict the claimant’s account and there is no realistic prospect of success. A registered charge does not establish, for all purposes, that the claimant suffered the loss alleged.

The claimant brought a professional negligence claim against solicitors arising from the removal of a registered charge over property. He alleged that he had advanced money to the property owner and that the charge secured his loss.

The defendants applied to strike out the claim for abuse of process, lack of reasonable grounds and procedural non-compliance. They also sought summary judgment. The same underlying issue had been considered in a private criminal prosecution brought by the claimant, which had been stayed as an abuse of process and in respect of which permission to appeal had been refused by the Court of Appeal Criminal Division. The central issues were whether the civil claim impermissibly challenged the criminal proceedings and whether it had any realistic prospect of success.

1. Abuse of process. The court applied the principles stated in Allsop v Banner Jones [2021] 3 WLR 1317. The jurisdiction is exceptional but flexible. Relitigation is assessed by close attention to the circumstances, particularly whether the later claim would be manifestly unfair or would bring the administration of justice into disrepute.
2. The fact that the earlier proceedings were criminal, that the defendants were strangers to them, and that the causes of action differed did not prevent abuse. The issue whether the claimant’s money had been advanced to the property owner was essentially identical in both proceedings. The evidence was materially the same, no new evidence could realistically be expected, and the criminal decisions had been unsuccessfully challenged on appeal.
3. The decision to stay the private prosecution was, in form and effect, a judgment. Reopening the same issue in the civil claim would amount to an impermissible collateral attack and would bring the administration of justice into disrepute. The claim was therefore struck out under CPR 3.4(2)(b).
4. Summary judgment and reasonable grounds. The claimant’s evidence had to be assessed against the contemporaneous documents and the absence of documents which would ordinarily support the alleged loan. Existing documents pointed to another person as the lender. Applying Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), the claim had no realistic prospect of success and there was no compelling reason for a trial. Summary judgment was granted under CPR 24.2, and the claim also disclosed no reasonable grounds under CPR 3.4(2)(a).
5. A registered charge does not make the claimant’s asserted loss unchallengeable for all purposes. The claimant still had to explain and prove that he had suffered the loss alleged. The application under CPR 3.4(2)(c) was not considered further.