Bishnupriya Bhattacharya & Anor v Robert Armstrong & Anor

An application under CPR 40.9 by a non-party directly affected by a judgment requires a real prospect of success at a further hearing. The court must also consider whether setting aside the judgment would amount to an abuse of process. That assessment requires a broad, merits-based evaluation of the interests of justice, public policy and the parties’ private interests. A judgment in rem binds persons generally, regardless of whether they were parties or privies. Even where there is no privity of interest, a person who knew that proceedings concerned their asserted proprietary rights, had an opportunity to participate, and deliberately stood by while another advanced their case may be prevented from re-litigating the issue. The application was dismissed because the proposed evidence was insufficiently substantial, credible and coherent and the re-litigation would be abusive.

The applicants, Bishnupriya and Nayantara Bhattacharya, applied under CPR 40.9 to set aside or vary a declaration made in earlier proceedings between the joint trustees in bankruptcy of their parents and the parents themselves. The declaration stated that the trustees were legally and beneficially entitled to a freehold property and ordered its sale.

The applicants had not been parties to the earlier proceedings. They claimed beneficial interests in separate flats within the property, based on alleged family promises, the surrender of a leasehold interest and payments said to have been made towards secured borrowing. They also sought joinder under CPR 19.2(b) and a further trial. The central issues were whether they had a real prospect of establishing their claimed interests and whether the application was barred as an abuse of process.

1. Application dismissed. The applicants failed to establish that either of them had a real prospect of success at a further trial. The additional witness evidence was vague, internally inconsistent, unsupported by documents and materially contradicted by the evidence and findings in the previous trial. There was no new evidence from the bankrupts and no sufficient explanation for their previous inconsistent statements.
2. CPR 40.9 permits a person who is not a party but is directly affected by a judgment or order to apply to set it aside or vary it. The applicants were directly affected because they claimed interests in the property. Promptness and the real prospect of obtaining a different outcome were material considerations.
3. The declaration was, by common ground, a judgment in rem. It therefore constituted a res judicata against persons generally, not merely the parties and their privies. The applicants’ absence from the earlier proceedings did not prevent the declaration from binding them. Joinder alone would not have achieved the relief they sought.
4. There was no privity of interest in the strict sense. The applicants were not identical with their parents and their alleged proprietary interests competed with the parents’ interests. The Nana Ofori principle was therefore not strictly applicable.
5. Nevertheless, the application was an abuse of process. The applicants knew, well before trial, that the proceedings concerned the property and affected their asserted interests. They had ample opportunity to seek joinder or participate, but chose to rely on their parents to fight their battle. The earlier proceedings had proceeded to a final trial at significant cost, and the proposed re-litigation would impose substantial further costs on the creditors and the court.
6. Allowing a second trial, without new evidence of real materiality and after the applicants had stood by while their interests were advanced, would be manifestly unfair to the trustees and would bring the administration of justice into disrepute. The application was dismissed on both the merits and abuse-of-process grounds.

The judgment was a first-instance decision on the applicants’ CPR 40.9 and joinder applications. It concerned a declaration made in earlier proceedings, reported as [2025] EWHC 597 (Ch), but no appeal from that decision was before the court.