Abuse of Process – a restating of principles

The Appellant is a Jersey Trust Company who sought possession of trust property (a farm in Hampshire) from the Respondent beneficiary. There had been earlier Article 51 proceedings, with a number of hearings, before the Royal Court of Jersey – similar to a Category 2 Public Trustee v Cooper application - which resulted in the Royal Court blessing the equalisation programme proposed by the Appellant and another trustee. The equalisation programme related to the winding up of a number of family trusts (one of which owned the farm) and included, as an essential step, the sale of the farm. The Royal Court had blessed the taking of possession proceedings against the Respondent.

The Respondent sought to defend the English possession proceedings on the basis that she had a right not to be removed from the property. The Appellant applied to strike out the Defence for abuse of process citing a number of grounds.  The Circuit Judge dismissed the strike-out application.

HH Judge Matthews (sitting as a Judge of the High Court) allowed the appeal on each and every ground against the Circuit Judge’s dismissal of the strike-out application and went on to strike out the Defence (save for one specific point on which summary judgment was given) and to order possession of the property.

The Defence was held to give rise to two forms of abuse of process: (i) Henderson v Henderson abuse and (ii) collateral attack on the earlier decision of the Royal Court. With regard to Henderson abuse, the High Court held that there had been a serious breach of the Aldi guidelines as a result of the Respondent’s failure to raise her alleged right of irremovability with the Royal Court in the course of the Article 51 proceedings.}

Among other matters, HH Judge Matthews confirmed (i) that the Aldi guidelines are potentially applicable in all kinds of litigation and are not confined to ‘complex commercial multi-party litigation’ and (ii) that the correct test for collateral attack abuse of process is whether the decision being sought in the second Court is inconsistent with the decision reached in earlier proceedings.

The Respondent sought to appeal the decision of HH Judge Matthews in the Court of Appeal, but the application for permission to appeal was refused.  Rt. Hon. Lord Justice Miles was not satisfied that any of the grounds of appeal raise an important point of principle or practice or that there was some other compelling reason for the Court of Appeal to hear the appeal. 

The judgment of Judge Matthews is a thorough review of the case law and for those that need a case as a reference on the subject this is a very useful authority as it references the relevant case law in detail.

The transcript of the judgment can be accessed here.