“It may very well be, as has been convincingly argued … that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V-C made, which was addressed to res judicata. 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………..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.”
“vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“(10) The steps taken to enable the HCTC Proceedings and the Docklands Proceedings to be brought (including the restoration of those of the Claimant Companies that had been dissolved, the use of proofs of debt submitted by SCB/SCB India to justify putting the Claimant Companies into CVL, and the appointment of the Seventh and Eighth Claimants as liquidators) amount to an abuse of the corporate insolvency regime, and the HCTC Proceedings and the Docklands Proceedings amount to an abuse of the process of the court, such that they should be struck out. In this regard, the Three Defendants will rely in particular on: (a) a contention that the steps taken are a device to enable the bringing of claims for the benefit of SCB/SCB India which for reasons of affirmation/election and limitation SCB/SCB India would not be able to bring themselves; (b) point (2) above, concerning the Claimant Companies having been, on their own factual case, trustees of the Relevant Monies for Winsome and Forever Precious; (c) a contention that the steps taken by the Claimants wrongly seek to ignore and bypass the Indian liquidations of Winsome and Forever Precious and the rights and interests of the creditors of those companies; (d) a contention that on the Claimants’ own factual case their funding arrangements are in breach of trust; (e) point (4) above, concerning the Claimant Companies having suffered no loss and consequently not being insolvent; (f) a contention that the Seventh and Eighth Claimants are, as liquidators, severely conflicted and that the Claimants’ procedural scheme relies upon those conflicted liquidators making decisions which independent liquidators would not make; (g) a contention that the Seventh and Eighth Claimants have already in fact made such decisions; (h) a contention that the procedural scheme which has been adopted is unjust and unfair to the Defendants in that it affords them no or no adequate opportunity to challenge the key propositions on the basis of which they are being subjected to these proceedings, including the propositions that it was appropriate to restore those of the Claimant Companies which had been dissolved to the register, and that it was appropriate to put the Claimant Companies into CVL with the Seventh and Eighth Claimants as liquidators, and that it is appropriate for the said liquidators to proceed on the basis that the putative claims against the Claimant Companies are good claims generating a recoverable loss; and (i) a contention that the procedural scheme which has been adopted artificially inflates the quantum of the claims against the Defendants so that, even though the only active underlying claimant (SCB/SCB India) ostensibly has a claim for some£50 million , the Defendants are facing claims for more than ten times as much.”
“The Respondents say that from around 2019, or possibly earlier, SCB instructed Grant Thornton to explore claims on SCB’s behalf outside India, with a view to recovering what had been lost as a result of the Defaults and the calls on the SBLCs. What is said to have happened is that SCB and Grant Thornton entered into a collaboration agreement and a litigation funding agreement, pursuant to which, by a series of pre-planned steps, the Claims could be made. The pre-planned steps are said to have involved SCB restoring the Claimant Companies to the register, so far as the same had been dissolved, appointing Grant Thornton (in the person of the Liquidators), and making claims and presenting proofs in the liquidations of the Claimant Companies. For its part Grant Thornton would procure litigation funding through an associated company, in return for a share of the recoveries from the Claims, and would pursue the Claims by litigation.”
“I do not accept that there should be this reduction in the value of the assets secured by the WFO, as continued, essentially for the reasons which I have already set out in the relevant part of my discussion of good arguable case. The case for the reduction seems to me to proceed on the basis, which I regard as misconceived, that the Claims can only be worth the amount of SCB India’s Inbound Claim because only SCB India has submitted proofs of debt in the liquidations of the Claimant Companies. As it happens, the factual position now is that four other Consortium Banks have submitted their own proofs of debt, but this seems to me to be beside the point. As I have already explained, it does not seem to me that the quantum of the Claims is dependent upon whether proofs of debt have or have not been submitted by Consortium Banks. If the Claims are established, their value is not restricted to the value of any particular Inbound Claim. Their maximum value seems to me to be the total of the Funds which passed through the bank accounts of the Claimant Companies as part of the Alleged Fraud. I therefore conclude that the value of the assets secured by the WFO, as continued, should be the same as the value of the assets secured by the WFO in its existing form.”