“...Since both striking out and entering summary judgment are draconian orders, in that they prevent a litigant pursuing their claim, it is usually inappropriate to make such orders when a lesser order, such as granting permission to amend, would put right any defect in the case such that striking out or summary judgment was inappropriate. Therefore, for the purpose of this application, I consider the Claimant’s case as set out in the APOC. Further, I have made allowance as noted above for the possibility that the case may be put in a slightly different way so far as it is alleged that either the First or Second Defendant should have acted themselves or advised others to take action.”
“...on the basis that [Mr Allsop] has failed to identify significant evidence that would have changed the outcome of the case or alternatively had a real and substantial chance of changing the outcome of the case...”
“...because it is implicit in his Judgment, and is the case, that [Mr Allsop] had no reasonable prospect of securing a more advantageous order (independently of the issue of collateral attack)....”
“...finding that [Mr Allsop’s] claims against both Defendants with respect to: 4.1 their failure to raise an argument based on double penalty and/or 4.2 their failure to raise an alternative argument based on a commercial rate of interest should be struck out as an abusive collateral attack on the [decision of District Judge Buxton] and/or on the basis that the same had no real prospects of success.”
“...in striking out (or giving Summary Judgment with respect to) the intended claim pleaded against [Mr Cohen] at paragraph 108A of the proposed Amended Particulars of Claim (claim referenced as G1(b) in the [Judgment]) when he had previously confirmed that the Claimant’s other claims against [Banner Jones] in respect of the Cap Clean issue (references as A4-A7 in the Judgment) were sufficiently arguable and should not be struck out, and as there was no basis for striking out or giving Summary Judgment in respect of the claim against [Mr Cohen].”
“63. In considering the proper application of the doctrine of collateral attack in such circumstances, a balance must be struck between two principles. On the one hand, it is desirable that those who have arguably suffered loss as a result of the tort of another should be allowed to litigate their claim; on the other hand, the litigation of a fresh claim may so closely overlap the findings in another case that it is impossible to find for the Claimant in one case without examining the decision of the Judge in the other, yet to do so is almost impossible when different parties and potentially different sources of evidence are before the later court. 64. In my judgment, this difficult tension is resolved by bearing in mind the availability of an appeal process. If a Judge has erred in their findings on the material before them, then, even if it is arguable other material should have been before them that may have put the case in a different light, the litigant’s remedy normally lies in appealing (including, if necessary, an application for permission to rely on fresh evidence) rather than in bringing a claim against the lawyers whose alleged negligence was the cause of the evidential deficiency in the first place. The alternative result would be an abusive relitigation of the same issues. Only evidence that “entirely changes the aspect of the case”, as referred to in Phosphate Sewage, can justify the cost and potential unfairness of allowing fresh proceedings to be brought in order to consider what the first court might have decided on the same issue. 65. I see no reason to depart from the Phosphate Sewage test in considering the abuse of process argument. The passage cited at paragraph 60 above…” …pausing there, paragraph 60 of the Judgment was the Judge’s citation of Buxton LJ in Laing v. Taylor Walton (a firm) at [27], a case that is considered further below… “…expressly refers to errors in assembling a case as well as errors in its conduct. That passage is binding upon me. In any event, as a matter of principle, the Phosphate Sewage test reflects a proper balance between the desirability of permitting access to justice for those with legitimate complaints about how previous cases have been prepared and presented and with preventing the inconsistencies and injustices that may arise if litigation between two parties are [sic] re-visited in proceedings brought by one of those against a third party.” “…expressly refers to errors in assembling a case as well as errors in its conduct. That passage is binding upon me. In any event, as a matter of principle, the Phosphate Sewage test reflects a proper balance between the desirability of permitting access to justice for those with legitimate complaints about how previous cases have been prepared and presented and with preventing the inconsistencies and injustices that may arise if litigation between two parties are [sic] re-visited in proceedings brought by one of those against a third party.”
“English law, and it is safe to say, all comparable legal systems, place high in the category of essential principles that which requires that limits be placed upon the right of citizens to open or to reopen disputes. The principle which we find in the Act of 1858 is the same principle as that which requires judgments in the courts to be binding, and that which prohibits litigation after the expiry of limitation periods. Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interest of peace, certainty and security it prevents further inquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth (I do not say that this is such a case), and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved.”
“As I understand the law with regard to res judicata, it is not the case, and it would be intolerable if it were the case, that a party who has been unsuccessful in a litigation can be allowed to re-open that litigation merely by saying, that since the former litigation there is another fact going exactly in the same direction with the facts stated before, leading up to the same relief which I asked for before, but it being in addition to the facts which I have mentioned, it ought now to be allowed to be the foundation of a new litigation, and I should be allowed to commence a new litigation merely upon the allegation of this additional fact. My Lords, the only way in which that could possibly be admitted would be if the litigant were prepared to say, I will shew you that this is a fact which entirely changes the aspect of the case, and I will shew you further that it was not, and could not by reasonable diligence have been, ascertained by me before.”
“The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.”
“…the court ought to be slow to strike out a statement of claim or defence, and to dismiss an action as frivolous and vexatious, yet it ought to do so when, as here, it has been shewn that the identical question sought to be raised has already been decided by a competent court.”
“…I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again.”
“[abuse of process] concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right thinking people. The circumstances in which abuse of process can arise are very varied…It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.”
“I can deal with this very shortly, for I find myself in full agreement with the judgment of Goff LJ. He points out that on this aspect of the case Hunter and the other Birmingham Bombers fail in limine because the so-called “fresh evidence” on which they seek to rely in the civil action was available at the trial or could by reasonable diligence have been obtained then. He examines also the two suggested tests as to the character of fresh evidence which would justify departing from the general policy by permitting the plaintiff to challenge a previous final decision against him by a court of competent jurisdiction, and he adopts as the proper test that laid down by Earl Cairns LC in Phosphate Sewage Company Ltd v. Molleson,(1879) 4 App Cas 801 , 814, namely that the new evidence must be such as “entirely changes the aspect of the case”
“That leaves collateral challenges to civil decisions. The principles of res judicata, issue estoppel and abuse of process as understood in private law should be adequate to cope with this risk. It would not ordinarily be necessary to rely on the Hunter principle in the civil context, but I would accept that the policy underlying it should still stand guard against unforeseen gaps.”
“Prosecuting counsel owes no duty of care to a defendant...The position of defence counsel must however be considered. Unless debarred from doing so, defendants convicted after a full and fair trial who have failed to appeal successfully will from time to time attempt to challenge their convictions by suing advocates who appeared for them. This is the paradigm of an abusive challenge. It is a principal focus of the principle in Hunter v. Chief Constable of the WestMidlands Police,[1982] AC 529 . Public policy requires a defendant who seeks to challenge his conviction to do so directly by seeking to appeal his conviction.”
“But in my judgment, the law has already provided a solution where later proceedings are brought which directly or indirectly challenge the correctness of a criminal conviction. Hunter v. Chief Constable of theWest Midlands Police,[1982] AC 529 establishes that the court can strike out as an abuse of process the second action in which the plaintiff seeks to re-litigate issues decided against him in earlier proceedings if such relitigation would be manifestly unfair to the defendant or would bring the administration of justice into disrepute. In view of the more restrictive rules of res judicata and issue estoppel it is not clear to me how far the Hunter case goes where the challenge is to an earlier decision in a civil case. But in my judgment, where the later civil action must, in order to succeed, establish that a subsisting conviction is wrong, in the overwhelming majority of cases to permit the action to continue would bring the administration of justice into disrepute. Save in truly exceptional circumstances, the only permissible challenge to a criminal conviction is by way of appeal.” iii) Lord Hoffmann considered that the question of collateral attack had a number of strands requiring separate examination (at 698). Of the Hunter principle, he noted that “the courts have a power to strike out attempts to re-litigate issues between different parties as an abuse of the process of the court”, but that the “power is used only in cases in which justice and public policy demand it” (at 702). He agreed with Lord Diplock’s view that the categories in which a court had the duty to strike out proceedings as an abuse of process should not be exhaustively listed (at 702-703): “I, too, would not wish to be taken as saying anything to confine the power within categories. But I agree with the principles upon which Lord Diplock said that the power should be exercised: in cases in which relitigation of an issue previously decided would be “manifestly unfair” to a party or would bring the administration of justice into disrepute. It is true that Lord Diplock said later on in his speech, at 541, that the abuse of process exemplified by the facts of the case was: “the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff has a full opportunity of contesting the decision in the court by which it was made.”
“I do not think, however, that I can entirely agree with the Court of Appeal’s view that the question of whether a collateral challenge is an abuse of process depends upon the “weight” to be given to the judgment and that there is a scale of weighting according to the amount of judicial input, with a consent order at one end and a judgment after hearing full evidence at the other. I agree that, as a practical matter, it is very difficult to prove that a case which was lost after a full hearing would have been won if it had been conducted differently. It may be easier to prove that, with better advice, a more favourable settlement would have been achieved. But this goes to the question of whether, in the words ofCPR 24.2 , the plaintiff has “a real prospect of succeeding on the claim”
“(a) A collateral attack on an earlier decision of a court of competent jurisdiction may be but is not necessarily an abuse of the process of the court. … Proposition (b) concerned the case where the anterior decision was in the criminal jurisdiction, and is for that reason omitted. (c) If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings. (d) If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge…in the earlier action (i) it would be manifestly unfair to a party to the later proceedings that the same issues should be re-litigated or (ii) to permit such relitigation would bring the administration of justice into disrepute.”
“The court therefore has to consider, by an intense focus on the facts of the particular case, whether in broad terms the proceedings that it is sought to strike out can be characterised as falling under one or other, or both, of the broad rubrics of unfairness or the bringing of the administration of justice into disrepute. Attempts to draw narrower rules applicable to particular categories of case (in the present instance, negligence claims against solicitors when an original action has been lost) are not likely to be helpful.”
“…the initiation of such proceedings is [not] necessarily an abuse of process, but…it may be. The question whether it is so clearly an abuse of process that the court must, or may, strike out the proceedings before trial must be answered having regard to the evidence before the court on the application to strike out. There are, in short, and at least, exceptions to the principle.” ii) One such exception was where the claimant was indeed seeking to revisit the decision of the earlier court, but was doing so on the basis of fresh evidence (at 116): “Thus, in Hunter’s case itself, it was recognised that the initiation of proceedings, in which such a final decision will be questioned, will not be so clearly an abuse of process that the proceedings may be struck out, if the plaintiff relies upon fresh evidence. If the plaintiff is challenged, the fresh evidence on which he relies will have to be shown to meet the necessary standard of credibility and of probative effect.”
“The collateral attack based upon sufficient fresh evidence, if it succeeds demonstrates nothing more than that two different courts, acting according to law, may properly reach different conclusions upon the same or a similar issue when the evidence before the two courts is markedly different. A collateral attack based upon a failure to advance a point of law on appeal, if it succeeds, demonstrates no more than the unsurprising fact that a court may go wrong in law. It is because of that risk that rights of appeal are given by Parliament and, if a litigant is deprived of the ability to exercise his right of appeal by the breach of duty of his advisers, then, in the absence of any other defence such as immunity, or estoppel, upon which no reliance is placed in these proceedings, I see no reason why he should not be free to pursue a claim for such damages as he may prove that he suffered thereby.”
“...Langley J concluded...that there was a reasonably compelling case that the decision of His Honour Judge Thornton on the terms of the agreements is open to serious challenge. That conclusion enabled Langley J to find that it would not bring the administration of justice into disrepute to permit the issue of the terms of the agreements to be relitigated; and that in terms of fairness, it would be unfair to Mr Laing if he were not permitted to pursue a case in which he alleges that it was the negligent drafting of the documentation which exposed him to the claim by Mr Watson/Burkle.”
“…everything said to us and to Langley J in criticism of His Honour Judge Thornton’s judgment could have been said to His Honour Judge Thornton (and mainly was so said); and could have been deployed in the appeal from His Honour Judge Thornton that was never brought. What is sort to be achieved in the second claim is, therefore, not the addition of matter that, negligently or for whatever reason, was omitted from the first case, but rather a relitigation of the first case on the basis of exactly the same material as was or could have been before His Honour Judge Thornton.”
“I therefore conclude that it would bring the administration of justice into disrepute if Mr Laing were to be permitted in the second claim to advance exactly the same case as was tried and rejected by His Honour Judge Thornton. If His Honour Judge Thornton’s judgment was to be disturbed, the proper course was to appeal, rather than seek to have it in effect reversed by a court not of superior but have concurrent jurisdiction hearing the second claim. That the second claim is in substance an attempt to reverse His Honour Judge Thornton is important in the context of wider principles of finality of judgments. In Hunter, at 545D, Lord Diplock said that the proper course to upset the decision of a court of first instance was by way of appeal. Where, wholly exceptionally, a collateral, first instance, action can be brought it has to be based on new evidence, that must be such as entirely changes the aspect of the case: see per Earl Cairns LC in Phosphate Sewage v. Molleson,(1879) 4 App Cas 801 at 814. The second claim in our case not merely falls short of that standard, but relies on no new evidence at all.”
“I of course agree that it will not necessarily, or perhaps usually, be a valid objection to a claim for solicitor’s negligence in or about litigation that the claim asserts matters different from those decided in that litigation. That is so not only of cases where the solicitors have made what might be called administrative errors that have prevented the earlier proceedings from being properly pursued or their outcome challenged by the proper means (e.g., Walpole v. Partridge & Wilson,[1994] AC 106 ); but also where errors in assembling the evidence or understanding the law are alleged to have led to an incorrect result, as was the case in Hall v. Simons itself. But the present case is significantly different from those just mentioned. The difference is that, as shown in [19] above, in order to succeed in the new claim Mr Laing has to demonstrate not only that the decision of His Honour Judge Thornton was wrong, but also that it was wrong because it wrongly assessed the very matters that are relied on in support of the new claim. That is an abusive relitigation of His Honour Judge Thornton’s decision not by appeal but in collateral proceedings, and in substance if not strictly in form falls foul of the PhosphateSewage rule.”
“36 I should explain why I conclude that the challenge is impermissible. Allegations of negligence during the course of litigation, against solicitors or advocates, will normally involve an attempt by a claimant to demonstrate that the previous conclusion of the court would have been different, absent negligence on the part of the lawyer. In many cases it will, indeed, be necessary to do so in order to prove causation and loss. The paradigm is the loss of a case due to negligent advocacy. But to bring such proceedings for negligence does not bring the administration of justice into disrepute; Hall v. Simons teaches to the contrary. 37. But such cases differ from the instant appeal in two important respects. Firstly, in the normal run of case, the impugned conduct of the lawyer is independent of the factual conclusions of the court; those conclusions are only relevant to prove causation and loss. His case does not, in reality, involve any challenge to the findings or conclusion of the court. He merely contends that, in the light of the negligence of which he now complains, the court’s conclusions would have been different. But this not so in the present case. As Buxton LJ has demonstrated (at [19] and [27]), the claimant cannot establish that his adviser’s drafting of the agreements was negligent without challenging the judge’s findings as to credibility and fact. To make good the allegations of negligence, Mr Laing must show that his account of the agreements is the truth. He must demonstrate that His Honour Judge Thornton’s judgment of his credibility was wrong. 38. Secondly, generally in actions against legal advisers arising out of litigation, the losing party’s allegations of negligence could not have been advanced in the case which he lost. They arise only after the case is concluded. But in the present case, the claimant had every opportunity during the course of the trial to raise, as he would have it, the inadequate drafting. The more Mr Marks, QC emphasised the strength of Mr Laing’s position on the basis of the written evidence, the harder it became to understand why the errors of Mr Kelly were not fully aired at trial.On Mr Laing’s account the 1999 and 2002 written agreements were inadequate. Mr Laing had every opportunity at trial to explain that the inadequacies were due to the incompetence or misunderstanding of Mr Kelly.”
“...it would ordinarily be an abuse of process for a civil court to be asked to decide that a subsisting conviction was wrong. This applies to a conviction on a please of guilty as well as after a trial. The resulting conflict of judgments is likely to bring the administration of justice into disrepute...On the other hand, in civil (including matrimonial cases), it will seldom be possible to say that an action for negligence against a legal adviser or representative would bring the administration of justice into disrepute. Whether the original decision was right or wrong is usually a matter of concern only to the parties and has no wider implications...” b) There is a second, important, distinction between collateral challenge to anterior criminal rather than civil decisions. As Lord Diplock emphasised in Hunter (at 540), criminal decisions do not give rise to res judicata estoppels in the way that civil decisions do. That is, at least in part, because there is no meaningful identity of parties between the earlier (criminal) and later (civil) decisions. That, in turn, means that the abuse doctrine has an inevitably greater role where the anterior proceedings the subject of collateral challenge are criminal rather than civil. The doctrine of res judicata estoppel does not operate in the criminal sphere as they do in the civil. c) Thirdly, and relatedly, it is necessary to be very clear what is meant by “relitigation”
“[Mr Allsop’s] case is dependent on proving that, but for the alleged breaches of duty, the outcome of the financial remedy proceedings hearing would have been more favourable to Mr Allsop. To consider whether the Claimant has a real prospect of success in such an argument and/or whether his claim involves an impermissible attack on the judgment, it is necessary to consider the detail of that judgment, the material upon which it is based and the Claimant’s criticism of that material.”
“The majority of the challenges made by the Defendants to the Claimant’s case is that, regardless of any argument of breach of duty, the Claimant has no real prospect of success in showing that the alleged breaches would have made any difference to the outcome of the case and/or that the argument that the breaches would have made a difference is an abuse of process, involving a collateral attack on the judgment of District Judge Buxton. For this reason, the focus in my analysis is largely on the alleged differences in outcome.”
“The instant case is not about gambling in the sense in which we most often use it, e.g. horse racing, nor is it about costs. It is about reckless speculation on the stock market during the latter years of the marriage. Mr Cohen said I would be creating new law or at least an extension of the existing law if I found that reckless speculation during the currency of the marriage could properly be the subject of an application. For reattribution. I do not accept that proposition…” iv) The District Judge then considered what, if any, reattribution should be ordered in the case before him (at paragraphs 29, 30, 31(9) and 31(10) of the Financial Remedies Judgment). He concluded (at paragraph 31(9)) that Mr Allsop’s total losses were “not less than£4,000,000 ” and that accordingly each of Mr and Mrs Allsop had lost£2,000,000 on the basis of an equal split of their assets. The District Judge did not consider it appropriate for Mr Allsop to compensate Mrs Allsop for the full£2,000,000 of her loss (paragraph 31(10)), and he recognised that he needed to take account of the fact that Mr Allsop “does not have any liquid assets” (paragraph 31(10) first bullet). In two later bullet points, the District Judge noted that Mr Allsop had a related claim against Barclays: “• [Mr Allsop] hopes to recover between£3 -4 million from Barclays Bank plc. The offer he has received is for£630,522 . [Mr Allsop] hopes Barclays will increase their offer. They may; then again, they may not. All I know for certain is that the sum of£630,522 is immediately available to him should be choose to settle his claim against Barclays now. • It is impossible to say how much [Mr Allsop] will ultimately recover from Barclays Bank if he chooses to pursue his claim. [Mr Allsop] hopes to recover between£3 -4 million, but this may be no more than unfounded optimism; it may be wildly short of the mark.” v) The District Judge concluded that Mr Allsop could have the£630,522 from Barclays “very quickly if he so chose” (paragraph 31(10.1) of the Financial Remedies Judgment), and ruled that: “…it would be fair to leave [Mr Allsop] to pursue his claim against Barclays and to direct that after deducting the reasonable costs of so doing, the net balance should be divided equally between the parties with [Mrs Allsop] giving credit for the reattribution payment of£630,522 which I have determined. If [Mr Allsop] fails to recover more than£630,522 , he will not be out of pocket in having paid the said sum to[Mrs Allsop]. The sum will have come from Barclays. At the same time, [Mrs Allsop] will have substantially less than she would have received upon divorce had [Mr Allsop] not been reckless with his gambling with Barclays Wealth. I consider that [Mr Allsop, by reason of the reattribution payment which I have determined, will be making a fair contribution to [Mrs Allsop’s] disadvantaged financial position brought about by his reckless gambling…”
“70 Despite the complex nature over the claims made against Barclays and the nature and extent of the offers made by it, which offered various sums which vested in other members of the Allsop family, not just Mr Allsop, and for the most part involved offsetting sums against Mr Allsop’s alleged liability to Barclays as opposed to a cash payment to him, Mr Netting failed to advise Mr Allsop, and failed to take reasonable steps to ensure that written evidence in the form of witness statements from Mr Allsop and from Ms Jill Thomas of Banner Jones Wealth Management LLP (Mr Allsop’s financial advisor who was assisting in the claims against Barclays) were filed and adduced at the Final Hearing so as to properly present and evidence (1) the claims against Barclays (including the relevant background to the same), (2) the various offers made by it and (3) the costs and expenses that were being incurred by Mr Allsop in pursuing the claims against Barclays (which included£18,197 invoiced by Banner Jones Wealth Management LLP).” … 98 Mr Netting further failed: 98.1 prior to the Final Hearing: 98.1.1 despite (1) recognising that Mr Allsop’s dealings with Barclays and the impact of the same were a “big issue” as confirmed in a letter to Mr Allsop dated28 July 2014 and (2) it being obvious that witness statements dealing with all relevant matters should be obtained as noted at paragraph 46.4 above to take reasonable steps to obtain and use all necessary and available evidence as to such dealings, including witness statements from Mr Allsop and others, including from James Allsopp as to his dealings with Barclays, so that the Allsop families dealings with and the claims against Barclays could be fully explained at the final hearing, Mr Netting further failed to advise Mr Allsop that if James Allsop would not voluntarily provide a statement that a witness summons should be issued against him so that oral testimony from James Allsop could be adduced at the Final Hearing; 98.1.2 As a corollary, to advise Mr Allsop to make a Subject Access Request in order to obtain information held by Barclays with respect to Mr Allsop’s dealings with, and the claims against Barclays. For the avoidance of doubt, had such advice been given, Mr Allsop would have made such a request and further, had such a request being made, the information now relied upon by Mr Allsop in the Barclays claim was available and could and should have been obtained prior to the final hearing…”£18,197 invoiced by Banner Jones Wealth Management LLP).” 98.1 prior to the Final Hearing: 98.1.1 despite (1) recognising that Mr Allsop’s dealings with Barclays and the impact of the same were a “big issue” as confirmed in a letter to Mr Allsop dated28 July 2014 and (2) it being obvious that witness statements dealing with all relevant matters should be obtained as noted at paragraph 46.4 above to take reasonable steps to obtain and use all necessary and available evidence as to such dealings, including witness statements from Mr Allsop and others, including from James Allsopp as to his dealings with Barclays, so that the Allsop families dealings with and the claims against Barclays could be fully explained at the final hearing, Mr Netting further failed to advise Mr Allsop that if James Allsop would not voluntarily provide a statement that a witness summons should be issued against him so that oral testimony from James Allsop could be adduced at the Final Hearing; 98.1.2 As a corollary, to advise Mr Allsop to make a Subject Access Request in order to obtain information held by Barclays with respect to Mr Allsop’s dealings with, and the claims against Barclays. For the avoidance of doubt, had such advice been given, Mr Allsop would have made such a request and further, had such a request being made, the information now relied upon by Mr Allsop in the Barclays claim was available and could and should have been obtained prior to the final hearing…”
“139 But on the evidence given by Mr Allsop and the findings on credibility made by the [District Judge], it is not possible to see how this would have altered his conclusions on the issue of reattribution. The Judge’s findings, on Mr Allsop’s own admission, as to the loss that he had caused to the matrimonial pot inevitably led to the finding of wanton dissipation on this scale. 140 In so far as there were other aspects of the case where the [District Judge] formed adverse views of [Mr Allsop’s] credibility, I have dealt with them separately in this judgment. Taken individually, none of them has merit. Even taking those criticisms collectively, [Mr Allsop] fails to show that, but for the alleged breaches of duty, he had a real prospect of obtaining a better outcome to the claim. 141 [Mr Allsop] fails to show credible material such that a claim has a real prospect of success, without mounting a collateral attack on the judgment of District Judge Buxton. For this reason, these aspects of the claim should be struck out as an abuse of process and none of the allegations survive [Banner Jones’ Application].”
“[Mrs Allsop’s] monthly expenses of£6,001.29 are probably less than [Mr Allsop’s] given that he pays a monthly mortgage payment of£4,598 . The present order which provides for a monthly payment of£2,500 is wholly inadequate. The husband has ample scope to pay himself more as pointed out by Leslie Howe. With effect from16 September 2015 , the payments of spousal maintenance will increase to£11,000 per month reducing to£4,000 per month when the first instalment of capital is paid as provided for by paragraph (11) hereof and to nil when the reattribution payment (£630,522 ) is paid…”
“Allegations A13 and E3...are of slightly different quality in so far as they relate not to the imposition of a double penalty but rather that the penalty by way of interest on outstanding monies is excessive. The power to award interest arises by virtue of section 23(6) of the Matrimonial Causes Act. There is a wide discretion as to the correct rate. It is inconceivable that the Judge was not aware that he had a discretion as to the rate of interest to be paid or that to award interest at the judgment rate might be argued to be penal – both points are utterly obvious and will no doubt have been made many times to the Judge whilst on the bench and by the Judge himself whilst he was in practice before his appointment. It follows that the Judge must have consciously made the decision to adopt this interest rate. The allegation is a clear collateral attack on that judgment.”
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