Peter Richard Andreewitch v Magali Moutreuil & Anor

An appeal is a review of the lower court’s decision, not a retrial. The appeal court should interfere only where the decision was wrong in law, outside the range of reasonable decisions, or unjust because of serious procedural irregularity.

Whether later proceedings are an abuse under Henderson v Henderson requires a broad, merits-based assessment of all the circumstances. It is not enough that the matter could have been raised earlier. Abuse will usually require unjust harassment or oppression. A party’s shifting and inconsistent cases, failure to disclose a material claim, and attempts to relitigate matters previously addressed may together satisfy that threshold.

Proprietary estoppel requires assurance, reasonable reliance, detriment caused by that reliance and unconscionability, considered in the round.

The claimant appealed against orders made by Deputy Master Jefferies striking out claims concerning an alleged loan, promissory or proprietary estoppel, and beneficial ownership of German properties. The claims arose against the background of earlier proceedings concerning ownership of shares in the defendant company, financial provision and contempt.

Permission to appeal had been granted only in relation to the principal sum alleged to be due under the loan claim. The claimant renewed permission applications concerning interest and the other claims. The central issues were whether the loan and German property claims were abusive because they should have been raised earlier, whether the estoppel claims had any realistic prospect of success, and whether the lower court had applied the correct approach.

1. Appeal and permission. The appeal concerning the alleged loan principal was dismissed. Permission to appeal on the interest claim and the remaining grounds was refused.

2. Under CPR rule 52.21, an appeal is ordinarily a review rather than a rehearing. The court may intervene where the lower court was wrong or where serious procedural irregularity made the decision unjust. A decision involving an evaluative assessment, including abuse of process, should be disturbed only if the judge applied an incorrect principle, ignored or relied on an immaterial factor, or reached a conclusion that no reasonable judge could reach. The assessment of whether a decision was plainly wrong follows Henderson v Foxworth Investments Ltd.

3. The loan claim had reasonable grounds and a realistic prospect of success if considered in isolation. The accounts and the alleged payment provided an arguable evidential foundation. However, Deputy Master Jefferies was entitled to conclude that advancing the claim later, after earlier proceedings in which the claimant had advanced incompatible positions and failed to disclose the alleged debt, constituted abuse under Henderson v Henderson.

4. The relevant abuse inquiry is broad and merits-based. The fact that a matter could have been raised earlier is insufficient by itself. The court must consider whether the later proceedings amount to unjust harassment or oppression. The claimant’s inconsistent positions concerning the loan and German properties, his failure to raise them in earlier proceedings and in his Form E, and the resulting repetition and waste of court time justified the conclusions reached below.

5. The interest claim was likewise abusive and had no real prospect of success. The evidence relied on did not establish any agreement to pay interest.

6. The promissory estoppel claim could not succeed because promissory estoppel operates as a shield, not a sword. The proprietary estoppel claim also failed. The alleged statements were vague statements of general intention, not sufficiently specific assurances. There was no properly pleaded detrimental change of position caused by reliance. The lower court was entitled to decide the factual question in that way. Unconscionability was not necessary to determine the claim, although the claimant’s conduct might also have supported dismissal on that ground.

7. The German property claim was arguably capable of raising a question about the lower court’s inferred findings, but permission was refused because the claimant’s changing and incompatible explanations of the properties’ ownership constituted Henderson abuse. A resulting-trust argument raised for the first time on appeal could not be relied on, particularly as it had not been clearly pleaded below.

• High Court (Chancery Division), Deputy Master Jefferies: by judgment dated 12 June 2023 and order dated 6 September 2023, struck out the claim as an abuse of process and held that elements of it had no real prospect of success.
• High Court (Chancery Division): dismissed the appeal concerning the loan principal and refused permission to appeal on interest and the other grounds.