Musst Holdings Limited v Astra Asset Management UK Limited & Anor.

A later claim is not barred merely because related relief was sought in earlier proceedings. The court must identify the cause of action and factual basis actually litigated, and distinguish that from general or contingent requests for disclosure. Where disclosure and evidence were unavailable, the parties agreed to defer related issues, and the later claim concerns different breaches and investments, res judicata and abuse of process may not apply.

Abuse of process requires a broad, merits-based assessment of all the circumstances. Strike out is a discretionary and proportionate remedy reserved for clear and obvious cases. Summary judgment is inappropriate where the claim has a realistic prospect of success and further evidence reasonably expected at trial may affect the outcome.

The claimant had succeeded in earlier proceedings concerning commissions allegedly due in respect of one investment account. It then brought a second action concerning different accounts, alleging that they followed the contractual investment strategy, that the defendants were liable for commissions, and that misleading statements had caused the claimant not to pursue those claims earlier.

The defendants applied to strike out or obtain summary judgment, relying on res judicata, the rule in Henderson v Henderson, abuse of process, pleading defects, and lack of merit. The claimant also sought contractual inspection of books and records concerning the additional accounts in the earlier proceedings. The central issues were whether the second action was barred and whether contractual inspection arose before the additional investments had been pleaded as eligible investments.

1. Strike-out and res judicata. The second action was not barred. The first action concerned commissions relating to Crown I. The second action concerned different investments, different alleged breaches, and a novation which remained to be proved. General wording in the earlier prayer for disclosure did not amount to a pleaded claim for commissions concerning Crown II and Crown III.
2. The parties’ October 2020 agreement deferred disclosure and related commission issues until after the first trial. In those circumstances, the claimant could not reasonably have been expected to bring the later issues into the first trial. Cause of action estoppel, merger, issue estoppel and the rule in Henderson v Henderson therefore did not apply.
3. Applying the broad, merits-based approach in Johnson v Gore Wood, the later proceedings were not abusive. The claimant had informed the defendants and the court of its intended course, and the defendants had not asserted at the time that a later claim would be barred. Strike out would in any event have been disproportionate: the remedy is reserved for clear and obvious cases.
4. Merits and pleading. The claim was properly pleaded. The evidence, including the Adler email and the absence of disclosure, gave it a realistic prospect of success. A summary judgment application must not become a mini-trial and must take account of evidence reasonably expected to be available at trial. The novation, the contractual investment definitions, and the alleged misstatements raised issues requiring trial.
5. Inspection. The contractual inspection right in clauses 11.1–11.3 was contextual. In the first action it extended to the pleaded Crown I investments, not to a general trawl through investments not pleaded as eligible. The contractual disclosure claim concerning Crown II and Crown III was dismissed, without determining the scope or timing of CPR disclosure in the second action.
6. The consequential costs were ordered substantially in the claimant’s favour, subject to a separate order for defamation counsel’s costs. The £180,000 security already held in court was adequate. No prescriptive order was made requiring future claims to be brought only by fresh action.

This was a first-instance decision of the High Court. The judgment records that permission to appeal in the earlier Contract Claim was subsequently granted by the Court of Appeal on two matters, but that appeal was not an appeal from this judgment.