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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Wahab v Khan & Ors [2011] EWHC 908 (Ch) (12 April 2011) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2011/908.html Cite as: [2011] EWHC 908 (Ch) |
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CHANCERY DIVISION
ON APPEAL FROM MASTER BRAGGE
IN THE ESTATE OF ABDUS SATTAR SHEIKH DECEASED
Strand, London, WC2A 2LL |
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B e f o r e :
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GHOUSE ABDUL WAHAB |
Appellant/ Claimant |
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- and - |
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(1) AMIR KHAN (2) MOHAMMED JAMAL (3) USMAN TARIQ (4) MUHAMMED AKHTAR |
Respondents/ Defendants |
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Mr John Robson (instructed by Thackray Williams LLP, Kings House, 32-40 Widmore Road, Bromley, Kent BR1 1RY) for the First Defendant.
Hearing date: 6th April 2011
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Crown Copyright ©
Mr Justice Briggs :
INTRODUCTION
THE FACTS
MASTER BRAGGE'S JUDGMENT
THE LAW
"A decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process."
See Aldi Stores Ltd v. WS Group plc [2008] 1 WLR 748 at 762C per Thomas LJ. Nonetheless, an appellate court will be reluctant to interfere with a careful balancing of the relevant factors by the first instance judge, provided that he has not omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him.
"For my part, I think that the time has come for this court to hold that the "change of culture" which has taken place in the last three years—and, in particular, the advent of the Civil Procedure Rules—has led to a position in which it is no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the limitation period will not be struck out save in exceptional cases. The position, now, is that the court must address the application to strike out the second action with the overriding objective of the Civil Procedure Rules in mind—and must consider whether the claimant's wish to have "a second bite at the cherry" outweighs the need to allot its own limited resources to other cases. The courts should now follow the guidance given by this court in the Arbuthnot Latham case [1998] 1 WLR 1426, 1436-1437:
"The question whether a fresh action can be commenced will then be a matter for the discretion of the court when considering any application to strike out that action, and any excuse given for the misconduct of the previous action: see Janov v Morris [1981] 1 WLR 1389. The position is the same as it is under the first limb of Birkett v James. In exercising its discretion as to whether to strike out the second action, that court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed."
"After an action of this nature has been started, he submitted, the court is under a duty to investigate the propriety or otherwise of the order under which the relevant grant was obtained, no matter how extreme the delay. The court, in his submission, is sitting as a court of conscience concerned with the sanctity of probate, so that it must allow the validity of the grant of probate to be investigated at whatever date the challenge may be made, unless there are other grounds, apart from questions of delay, upon which it is obvious that the action must, in due course, fail."
ANALYSIS
i) That Mr Wahab pay within fourteen days the £5,000 costs ordered to be paid by Mr Munawar in the 2007 claim, failing which the second claim be struck out.
ii) That if the £5,000 be paid Mr Khan be at liberty to lodge within three months of today an application for detailed assessment of his costs of the 2007 claim.
iii) That the 2009 claim remain stayed until that application has been lodged and, if lodged within that time, determined by the costs judge, and thereafter until those costs have been paid by Mr Wahab.
iv) That in the event that Mr Wahab fails to pay those costs within two months of service of a costs certificate, the 2009 claim be struck out.