“But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”
“The point is that, had I been told in June 1998 that it was [Niazi] an outsider who was the purchaser of the 25% share, not Albert and Doreen, I would have recovered my original file to review the terms of the JVA and I would have established that it was not a permitted transaction. I would have been alerted to the fact that the Fattal Trusts had pre-emption rights, and wanted those rights to be exercised by Walbrook. The fact that Niazi was the purchaser of a 25% share is certainly not an immaterial fact.”
“we were prepared to consent to the 1998 transfer on the basis of the information given to us but now that we have fuller information we see that there was a materially different transaction.”
“Taking all of the matters into account, what I propose to do is to disallow 20 per cent of Walbrook’s costs with the result that they will only be entitled to an indemnity for 80 per cent of their costs. However, that 80 per cent, it seems to me, must now be regarded as having been properly and reasonably incurred by them and, as a matter of general principle, the burden of it should be borne by all of the relevant trusts pro rata. I cannot see any basis for putting the burden upon any one trust rather than any of the others.”