Alexander Isaac Hamilton v Mark Colin Barrow & Ors

In multi-party litigation, the court must identify the forum in which claims against all defendants can most suitably be tried, weighing practical convenience, connecting factors and the interests of justice as a whole. An assignment is not champertous merely because it includes rights of action or was made in contemplation of litigation. The transaction must be examined as a whole, including legitimate common-interest and access-to-justice considerations. A later claim is abusive only where, applying a broad merits-based assessment, it amounts to unjust harassment, oppression or vexation. Disputed factual merits should ordinarily be determined at trial rather than on an interlocutory strike-out application. Amendments may be allowed where they clarify facts already in issue.

The claimant brought proceedings concerning losses in an unregulated foreign-exchange investment scheme. He relied on 101 assignments from other investors and sued a wider group than the defendants in his earlier successful claim. The defendants challenged England and Wales as the forum, the validity of the assignments, abuse of process, and the merits of claims against four defendants. The claimant applied to amend the Particulars of Claim to plead a money-had-and-received remedy for secret commissions. The central questions were whether the claims should proceed in Malaysia, whether the assignments were champertous, whether the proceedings improperly duplicated or attacked earlier litigation, whether evidential disputes justified strike-out, and whether the amendment was permissible.

1. Forum. England and Wales was the appropriate forum. The court considered the location of the assignors and witnesses, the residence and language of the parties, the existing familiarity with the English forum, the documentary evidence, and the practical but surmountable difficulties of obtaining Malaysian banking evidence. The uncertain place of formation, operation and proper law of the investment club did not outweigh those factors and could fairly be resolved at trial.
2. Champerty. The assignments were not void. A proprietary claim arising from alleged misapplication or misappropriation of entrusted investment funds was capable in principle of assignment, together with associated causes of action. In any event, the transaction had to be considered as a whole. The claimant had a legitimate common interest with the investor group and the assignments promoted access to justice. Nothing identified in the agreements tended to corrupt public justice, undermine the purity of justice, inflame damages or suppress evidence.
3. Abuse of process. Applying a broad merits-based approach, the defendants had not shown unjust harassment, oppression or vexation. The assignors’ claims were not inherently abusive. The claimant was accepted as not having intended this claim during the material period, and later disclosure provided a legitimate basis for advancing allegations concerning absent trades and payments. The earlier findings would not bind defendants who were not parties.
4. Strike out and amendment. The claims against the eighth to eleventh defendants depended on evidential disputes and could not fairly be determined before defences, disclosure and trial. Permission to amend was granted only for proposed paragraph 31 and amendments not opposed.

The judgment records earlier proceedings concerning the claimant’s individual investment claim:

• High Court: May J gave judgment for the claimant in [2023] EWHC 1743.
• Court of Appeal: Limited permission to appeal was granted, but the appeal was dismissed in [2024] EWCA Civ 888.
• High Court: The present court determined the applications and did not disturb the earlier judgment.