Seema Ashraf v Attarian & Ors

A party abuses court process when proceedings are used for a purpose or in a manner materially different from their ordinary and proper use. The jurisdiction may include vague or incoherent pleadings, repeated unexplained changes of case and inconsistent statements of truth. A verified statement of case is evidence at interlocutory stages, and a later statement must not contradict an earlier one. The court must examine all circumstances carefully and ensure that strike-out is proportionate. Relevant considerations include the absence of a pleaded evidential basis, tactical adjustment to the defence, prior opportunities to settle the case, delay, prejudice, wasted costs and the overriding objective. On the facts, the cumulative conduct justified striking out the claim as an abuse.

The claimant, acting as executrix, pursued an indemnity claim against the Chief Land Registrar under section 103 and Schedule 8 to the Land Registration Act 2002. The claim arose from the registration of an allegedly forged transfer of property and concerned the allocation of mortgage purchase monies before their misappropriation.

Following earlier decisions of the High Court in Ashraf v Lester Dominic Solicitors & Others [2022] EWHC 621 (Ch) and the Court of Appeal in Ashraf v Lester Dominic Solicitors & Others [2023] EWCA Civ 4, the claimant advanced successive and inconsistent factual pleadings. The Chief Land Registrar applied to strike out the claim, alternatively for reverse summary judgment. The central issue was whether the claimant’s changing verified cases, unsupported by a pleaded evidential basis, amounted to abuse of process.

1. Disposition. The application by the Chief Land Registrar was granted. The claimant’s statement of case was struck out as an abuse of process under CPR 3.4(2)(b), and the claim against the Chief Land Registrar was dismissed. The February Application was dismissed, and the claim against the Seventh Defendant had already stood dismissed following the refusal of relief from sanctions.
2. Applicable principles. Abuse of process includes using the court’s process for a purpose or in a manner significantly different from its ordinary and proper use, as explained in Attorney General v Barker [2000] 1 FLR 759. Vague or incoherent pleadings may amount to abuse because they prevent the opponent and the court from understanding and fairly determining the case, applying Towler v Wills [2010] EWHC 1209 (Comm). The doctrine also covers a party blowing hot and cold by repeatedly changing the factual case advanced. A statement of case verified by a statement of truth is evidence at interlocutory stages and carries considerable weight. A later statement of case must not contradict or be inconsistent with an earlier one.
3. Assessment of proportionality. The court carefully examined all the circumstances, applying the proportionality approach reflected in Re Fundao Dam Disaster Municipio v BHP Group plc [2020] EWHC 2930 (Comm) and Summers v Fairclough Homes Limited [2012] 1 WLR 2004. The claimant had moved between five materially different versions of the Allocation Issue. Those versions had been verified by inconsistent statements of truth, without any pleaded evidential basis or explanation for the changes. The changes continued despite earlier warnings and opportunities to state a final case, and appeared responsive to the Chief Land Registrar’s defence. The proceedings had remained at the statements of case stage for seven and a half years, causing substantial expense and prejudice.
4. These circumstances made continuation manifestly unfair to the Chief Land Registrar and engaged the requirements of the overriding objective. Strike-out was therefore a proportionate means of controlling the court’s process and securing the just disposal of the proceedings.
5. Obiter observations. The court questioned whether alternative pleadings based merely on uncertainty between two factual possibilities, without identifying an evidential basis, were consistent with the guidance in Binks v Securicor [2003] 1 WLR 2557. The court also observed that the lack of a pleaded evidential basis and the claimant’s lack of personal knowledge would likely have justified reverse summary judgment or strike-out under CPR 3.4(2)(a) and CPR 24.2, although that issue did not require determination.

• High Court: In Ashraf v Lester Dominic Solicitors & Others [2022] EWHC 621 (Ch), the court dismissed or struck out several claims, dismissed the rectification claim and identified a pleading defect in the indemnity claim against the Chief Land Registrar.
• Court of Appeal: In Ashraf v Lester Dominic Solicitors & Others [2023] EWCA Civ 4, the appeal was allowed to a limited extent, permitting an application to re-plead a narrow claim against the Seventh Defendant.
• High Court (present decision): The Chief Land Registrar’s application succeeded. The claim against him was struck out and dismissed.