Walbrook Trustees (Jersey) Ltd & Ors v William Fattal & Ors

At the last case management conference (“CMC”) in this matter on 20 and 21 December 2007 I gave directions for the question whether the Sharet Trust has a 25% interest in the membership rights of Baker Street Ltd (and thus, indirectly, a 25% interest in the underlying property at Berkeley Court) to be determined as a separate proceeding commenced by a claim form under CPR Part 7, with the original Fattal defendants as claimants and the other original parties as defendants (“the New Claim”). I also gave directions for the service of statements of case in the New Claim, and for a further CMC to be fixed at which, among other things, consideration could be given to the question whether one or more preliminary issues should be ordered to be tried in the New Claim.

Pursuant to those directions, the Fattals served point of claim (“the Points of Claim”) on 11 January 2008, settled by Mr George Bompas QC and Mr Timothy Evans of counsel and verified by a statement of truth signed by Mr William Fattal.

Substantive points of defence (“the Sharet Defence”) were served on 28 January 2008 by the first defendant to the New Claim, Mr Robert Dangoor, solely in his capacity as representative beneficiary of the Sharet Trust appointed as such by the order of Master Price made on 24 October 2006. This pleading, too, was settled by leading and junior counsel, Mr Alan Steinfeld QC and Ms Elspeth Talbot Rice (who has herself subsequently taken Silk).

On behalf of the second and third defendants to the New Claim, Mr Charles Sofaer and Mr Simon Dangoor, who represent the Sofaer and Delta Trusts respectively, brief points of defence were served separately on 29 January 2008, again settled by Mr Steinfeld QC and Ms Talbot Rice, which made no admissions as to the facts and matters pleaded in the Points of Claim, on the footing that they did not concern the Sofaer or Delta Trusts, but claimed that those Trusts had the same right as the Fattal Trusts to purchase the Sharet Trust’s interest in Berkeley Court for 90% of its market value in May 1998 in the event that the Fattals succeeded in establishing such a right.

On 11 February 2008 points of defence were served on behalf of the remaining (Walbrook) defendants to the New Claim, settled by Mr Thomas Seymour of counsel (“the Walbrook Defence”). Although the Walbrook Defence pleaded to a number of specific points, it was made clear in paragraph 5 that the Walbrook defendants neither supported nor opposed the claim in their various trustee capacities and would abide by the determination of the court. They also declined to plead, pending further clarification, to various claims of misconduct and breach of fiduciary duty apparently made against them, but not reflected in any specific claim for relief, in paragraphs 48 and 51-58 of the Points of Claim. This was a wise decision, because I had (or so I thought) made it very clear at the hearing in December that the New Claim was to deal only with the question of the Sharet Trust’s entitlement, and was not intended to provide a forum for the further ventilation of the Fattals’ Part 7 claim against Walbrook which was stayed by the Order of Sir Francis Ferris made on 22 June 2007. In the course of the hearing before me, Mr Bompas QC applied for permission to amend the Points of Claim by removing these allegations of misconduct and breach of duty.

To complete the picture on the statements of case, a reply was served by the Fattals on 25 February 2008. They also replied to certain requests for further information made by the Walbrook defendants and by the first defendant, Mr Robert Dangoor.

The relevant background to the New Claim is largely set out in the judgment which I handed down on 29 November 2007 following the trial of the preliminary issue in the main proceedings which I had directed to be tried in advance of all other questions at the CMC held on 14 September 2007: see Walbrook Trustees (Jersey) Ltd and others v William Simon Fattal and others, [2007] EWHC 2808 (Ch). I will not repeat the background in this judgment, which should be read in conjunction with my earlier judgment. I will also continue to use the same definitions and abbreviations, except where I state the contrary or the context otherwise requires.

The issue upon which I ruled in November 2007 (“the Sale Issue”) was whether a sale had taken place in 1998 by Interlands of its 25% share in the membership rights of Baker Street Ltd. For the reasons given in my earlier judgment, after hearing nearly five days of oral evidence and argument in October, I found that there had indeed been an agreement by Interlands to sell its share to Mr Niazi Dangoor, who paid the purchase price to Interlands (having probably been put in funds for the purpose by Albert and Doreen Dangoor) and directed Interlands to complete the transaction by transferring the share to the trustees of the Sharet Trust, which it duly did. I reached this conclusion although the non-Fattal defendants, at that stage ably and vigorously represented by Ms Talbot Rice, had done their very best to persuade me that no sale had ever taken place, and although (as I found) both Mr Robert Dangoor and Mr David Dangoor had deliberately given false evidence to the court. Those findings were reflected in the order for immediate payment by the non-Fattal defendants of the Fattals’ costs of the trial of the preliminary issue on the indemnity basis which I made on 21 December, together with an order for a payment on account of £100,000 in respect of those costs by 1 February 2008.

I was told by Mr Steinfeld QC that there is to be no appeal by any of the non-Fattal defendants against my decision on the Sale Issue. It is also convenient to record at this point that although the Fattals obtained permission from the Court of Appeal to appeal against the case management directions given by Sir Francis Ferris in June 2007, the appeal was dismissed without counsel for the respondents being called upon in February 2008.

If I had decided the Sale Issue the other way, the result (subject to any appeal) would have been to have put an end to the Fattals’ claim that the Sharet Trust has no right to an interest in Berkeley Court, because without a sale there could have been nothing to trigger the rights of pre-emption in clause 6 of the JVA upon which the Fattals’ claim is based. However, since there was a sale, the clause 6 rights of the participators in the JVA were potentially engaged, always assuming that those rights survived the 1995 reorganisation described in paragraphs 28 – 42 of my earlier judgment, and that they were exercisable by or at the direction of the beneficial owners of the membership rights in Baker Street Ltd. I should add that these are by no means the only obstacles that the claim would have to overcome in order to succeed.

The Fattals had already given a detailed preview of how they proposed to plead their case, both in their particulars of claim in the Part 7 proceedings stayed by the Order of Sir Francis Ferris and in further draft points of claim which they prepared and circulated in advance of the CMC in September 2007. The primary purpose of the directions which I gave in December was to enable the remaining issues to be defined and clarified in the light of my judgment on the Sale Issue, and to give the parties an opportunity to consider whether any of those issues were suitable for determination as preliminary issues, bearing in mind that a full trial of all of the issues upon which the Fattals would have to succeed in order to make good their claim would probably be an extremely expensive and time-consuming process, which could well occupy the time of the court for several weeks.

For their part, the non-Fattal defendants had already submitted that at least one question should be determined as a preliminary issue, namely the question whether the Fattals had waived or otherwise acquiesced in the transfer of Interlands’ share to the Sharet Trust by virtue of the letter of consent which Mr William Fattal signed on 10 July 1998: see paragraph 80 of my earlier judgment. The powerful point was made in support of this submission that, on the strength of his own unchallenged evidence of his telephone conversation with Doreen Dangoor shortly before he sent this letter, William Fattal knew that there had been a sale of the 25% share previously owned by Selim Dangoor, and he also knew that its proposed destination was the Sharet Trust: see paragraphs 96 – 97 of my earlier judgment. Accordingly, so it was said, William Fattal knew when he sent the letter that events had occurred which would have triggered the rights of pre-emption in clause 6 of the JVA, and he also knew that the Sharet Trust was the proposed recipient of the share, even though he was not told about the involvement of Niazi Dangoor in the sale or his role as settlor of the Sharet Trust.

Despite the apparent strength of that point, it seemed to me that it would be premature to order determination of this question as a preliminary issue before the issues had been defined in fresh statements of case. I also considered that an obvious question would arise whether Mr William Fattal was in fact able or authorised to give a consent which would bind the two Fattal Trusts, since he was not a trustee of either of them, and his position as settlor, tenant for life and protector of one of the trusts did not in itself give him any right to represent or speak on behalf of all the beneficiaries.

It is unnecessary for me to set out or analyse the statements of case in the New Claim in any detail in this introductory section of my judgment. It is enough to say that the Points of Claim cover much the same ground as the relevant parts of the stayed Part 7 claim and the draft points of claim which were prepared in September 2007. In the Sharet Defence, a number of defences are raised including contentions that:

By an application notice dated 8 February 2008 Mr Robert Dangoor gave notice of his intention to apply at the forthcoming CMC for orders reflecting the three contentions summarised above, that is to say:

In the light of that application, it was agreed that the questions raised by it should be dealt with first at the CMC and the time estimate was increased to two days. In the event, I heard argument on the strike out and summary judgment applications for a little over two days and then reserved judgment.

Although Mr Steinfeld QC dealt first with the question of waiver in his oral submissions, the question of abuse of process logically comes first, because if the New Claim is struck out the further question whether it should be dismissed on a summary basis will not arise. I will therefore begin with the question of abuse of process, as indeed Mr Steinfeld and Ms Talbot Rice do in their skeleton argument.

At this point I need to describe the 2003 proceedings, since they do not form part of the background set out in my earlier judgment.

On 31 January 2003 the Fattals issued a Part 8 claim form in the Chancery Division of the High Court, which was assigned the claim number HC03C00432 (“the 2003 Part 8 Claim”). The six defendants were Walbrook Trustees (Jersey) Ltd (“Walbrook Jersey”) and Walbrook International Trust Company Ltd (“WITCO”), who were then the sole trustees of the two Fattal Trusts; BCIL; Baker Street Ltd; Baker Street 2000 Ltd; and Mr Cuttiford. The claim form was amended before service pursuant to CPR 17.1(1)(c). As amended, it asked for the following main heads of relief:

In setting out the legal basis for the above claims in their amended claim form, the Fattals pleaded that:

“(iii)

[Walbrook Jersey and WITCO] are the trustees of a settlement known as the Sharet Trust the assets of which include all the 25% beneficial interest in [Berkeley Court] formerly belonging to Selim Dangoor under the JVA and/or 25% of the share capital of each of [BCIL, Baker Street Ltd and Baker Street 2000 Ltd].”

On 5 June 2003 the Fattals also issued a Part 7 Claim in the Chancery Division (claim number HC03C02085) against the same six defendants (“the 2003 Part 7 Claim”). The principal relief claimed was declarations (a) that certain car parking leases granted by BCIL in respect of car parking spaces in the basement of Berkeley Court were void or voidable and ought to be avoided, and (b) that a Deed of Confirmation dated 8 May 2003 by which Walbrook in its various trustee capacities had confirmed the extinction of the JVA was also voidable and ought to be avoided.

The particulars of claim in the 2003 Part 7 Claim were settled by counsel (Mr Timothy Evans) and verified by a statement of truth signed by Mr William Fattal. In paragraphs 35 – 37 the Fattals pleaded that after the death of Selim Dangoor in 1998 consent was given on behalf of the other participators in the JVA to the transfer of his 25% interest in Baker Street Ltd to the Sharet Trust:

“35.

In 1998, Mr Selim Dangoor died. Following his death, Walbrook Jersey, in June 1998 and as one of the trustees of … the Sharet Trust, wrote to each of Mr Naim Dangoor, Mr Elias Sofaer and [William Fattal], as the persons entitled on behalf of the other Participating Parties to approve under clause 12 of the JVA of a transfer of Mr Selim Dangoor’s Share in the joint venture seeking their approval of a transfer of Mr Selim Dangoor’s “25% holding in Baker Street Ltd” to the Sharet Trust.

36.

Each of Mr Naim Dangoor, Mr Elias Sofaer and [William Fattal] gave their consent as asked, [William Fattal] expressly adding that he did so on the basis that the terms of the JVA would bind the trustees of the Sharet Trust.

37.

That transfer then took place, in or about July 1998, without any comment from Walbrook Jersey in relation to the basis on which [William Fattal] (on behalf of the Walbrook trustees) had agreed to it. As a result, the trustees of the Sharet Trust became one of the Participating Parties in the joint venture and bound by the terms of the JVA.”

The particulars of claim went on to refer to the further restructuring of the joint venture which took place in 2000, when the equitable interest in the commercial part of Berkeley Court was sold to Baker Street 2000 Ltd, and to the preparation of a draft shareholders’ agreement in 2002 by Davenport Lyons on the instructions of the Participating Parties (who by virtue of the plea in paragraph 38 included the trustees of the Sharet Trust). In paragraph 51, the Fattals alleged that each of the Participating Parties had since not later than 7 February 2002 been bound to execute the shareholders’ agreement, subject to such amendments if any as might be necessary to ensure that it did indeed accurately reflect the terms of the JVA, and had also been bound to execute a similar agreement regulating their relationship as members of Baker Street Ltd. It was further alleged that Walbrook Jersey and WITCO as trustees of the Fattal Trusts had been under a duty owed to the Fattals to enforce those obligations. In the alternative, it was alleged that unless and until the shareholders’ agreement and the further agreement relating to Baker Street Ltd were executed, the JVA would continue to apply as between the Participating Parties with such variations (if any) as might be required having regard to the present structure of the joint venture.

Meanwhile, on 6 May 2003 Walbrook Jersey, WITCO and Mr Cuttiford as Part 20 claimants made a Part 20 claim in the 2003 Part 8 Claim, joining as defendants representative beneficiaries of the Fattal Trusts, the Sofaer Trust, the Delta Trust and the Sharet Trust. I have not been shown details of the Part 20 claim, but I was told by Mr Seymour that Walbrook took the view, on advice from leading counsel, Mr Robert Ham QC, that it would be in the best interests of all the Trusts for Berkeley Court to be sold, and with a view to achieving that objective Walbrook could properly represent all of the Trusts, including the Fattal Trusts. The purpose of the Part 20 claim, as I understand it, was to bring this issue before the court and obtain appropriate directions, while leaving the 2003 Part 8 Claim as originally constituted to deal with the purely internal questions relating to the administration of the Fattal Trusts which had been raised in the amended claim form.

The Part 8 proceedings came before the Vice Chancellor, as he then was, on 17 July 2003. In an unreserved judgment delivered on the same day, the Vice Chancellor described the issue before him as being “whether Berkeley Court should be sold and, if so, how”: see [2003] EWHC 1849 (Ch) at paragraph 3. It was common ground before him that the beneficial interest in Berkeley Court had become vested in the five family trusts. As he said in paragraph 1 of his judgment:

“Though the property has been vested legally in [BCIL], by a number of different and, in many cases, complicated routes, it has become beneficially vested in four separate families on terms of their own family discretionary trusts. The Sofaer Trust, the Sharet Trust and the Delta Trust each have 25% of the beneficial interest of the property. The fourth trust is in fact in two parts, each of which has 12½%, made by Mr William Fattal and his brother Mr Simon Fattal.”

The particular issue on which the Vice Chancellor ruled was the question whether clause 3 of the JVA (which provided that “save as expressly provided herein to the contrary” all questions relating to the purchase, holding and realisation of Berkeley Court should be determined by a three fourths majority of the votes of the parties) took priority over clause 5, which provided that at any time after the third anniversary of the purchase of Berkeley Court any one or more of the parties might require it to be sold by notice in writing, in which case certain specified provisions were to apply. The position was that the Fattals were contending that clause 5 was an express provision to the contrary for the purposes of clause 3, with the result that a sale of Berkeley Court could only take place if the clause 5 machinery (which they favoured) was engaged. On the other hand, as the Vice Chancellor recorded in paragraph 8 of his judgment, the Delta Trust, the Sofaer Trust and the Sharet Trust all wished Berkeley Court to be sold at once for the best price reasonably obtainable and not pursuant to the terms of clause 5, which they contended would not give rise to a sale which was either immediate or at the best available price. If clause 3, on the true construction of the JVA, prevailed over clause 5, they would be in a position to require a sale pursuant to clause 3 in reliance on their command of 75% of the votes of the parties.

The Vice Chancellor resolved this dispute in favour of the Delta, Sofaer and Sharet Trusts, holding in paragraphs 16 and 17 of his judgment that clause 3 was a general provision dealing specifically with the purchase, holding and realisation of the property, and that clause 5 was not a specific provision to the contrary within the meaning of clause 3. Accordingly, as he said in paragraph 17, “clause 3 enables 75% of the parties, by interest, to dictate how the matter is dealt with”.

After the Vice Chancellor had given this ruling, negotiations evidently continued through the summer and autumn of 2003 and to a large extent the parties were able to reach agreement on the disposal of the 2003 Part 8 Claim and the 2003 Part 7 Claim. There were, however, some outstanding questions of costs which were resolved by Mr Justice Hart at hearings on 2 and 3 October 2003. Nobody suggested at any stage that the Sharet Trust did not have a full 25% interest in Berkeley Court, and the orders which Hart J made on 3 October 2003 in each set of proceedings were made on that basis.

Finally, over a year later, in a witness statement dated 24 November 2004 made in the 2003 Part 7 Claim, in connection with an application for further disclosure pursuant to certain undertakings given by Walbrook in the relevant order of 3 October 2003, Mr William Fattal summarised the background to the claim in terms which stated, without qualification, that the Sharet Trust had “an equal 25% interest in … Berkeley Court …”.

Against this background, the contention advanced on behalf of Robert Dangoor is that it is now an abuse of process for the Fattals to assert in the New Claim that the Sharet Trust does not have a full 25% interest in Berkeley Court. The basis of the Fattals’ case in the New Claim is that there was a sale by Interlands in 1998 of its 25% interest which triggered the rights of pre-emption in clause 6 of the JVA. However, the Fattals knew that Interlands had sold its interest before they commenced the 2003 proceedings, because Doreen Dangoor had told William Fattal so shortly before he signed the letter of 10 July 1998 consenting on behalf of the Fattal Trusts to the transfer of Interlands’ share to the Sharet Trust.

Furthermore, it is submitted, William Fattal had specifically raised with Walbrook the question of the Sharet Trust’s right to participate in the joint venture on 31 December 2002, a month before the commencement of the 2003 Part 8 Claim. William Fattal refers to this in paragraphs 61 and 62 of his first witness statement in the present action which is dated 12 November 2006:

“61.

The issue as to the right of the Sharet Trust to participate in the joint venture and to have a vote under the terms of the JVA was specifically raised by me with Mr Taylor [of Walbrook] on 31 December 2002, and has not been raised by me just in the past year as asserted by Mr Cuttiford.

62.

What I was originally concerned about, was that it had occurred to me that I had never seen any document showing that the Sharet Trust had complied with the condition that was attached to the approval I had given by my letter of 10 July 1998; and I questioned the assumption that was being made that Sharet had a right to vote.”

Notwithstanding this, the Fattals expressly pleaded in the 2003 Part 8 Claim that the Sharet Trust owned a 25% share in Berkeley Court, and they repeated the same plea in the particulars of claim which they subsequently served in the 2003 Part 7 Claim. Both of the 2003 claims were prosecuted to their conclusion, without any suggestion being made by or on behalf of the Fattals, who were represented by junior counsel, that there was any doubt about the Sharet Trust’s right to participate in the joint venture. On the contrary, the orders made by Hart J on 3 October 2003 expressly recognised the Sharet Trust’s interest, because he directed that the Sharet Trust (in common with the other trusts) was to be given leases of two car parking spaces in the basement of Berkeley Court.

The type of abuse of process upon which Robert Dangoor relies is the well-known principle stated by Sir James Wigram V-C in Henderson v Henderson 3 Hare 100 at 114 – 115:

“In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because, they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

This form of abuse of process has been authoritatively reviewed by the House of Lords in Johnson v Gore Wood & Co [2002] 2 AC 1, where the leading judgment was given by Lord Bingham of Cornhill. His review of the law had the complete agreement of Lord Goff of Chieveley, Lord Cooke of Thorndon and Lord Hutton: see 38G-H, 42D-F and 50H. Lord Millett also concurred on this part of the case: see his speech at 58D-61F.

After citing the passage which I have quoted above from Henderson v Henderson, Lord Bingham continued as follows at 23E:

“Thus the abuse in question need not involve the reopening of a matter already decided in proceedings between the same parties, as where a party is estopped in law from seeking to re-litigate a cause of action or an issue already decided in earlier proceedings, but, as Somervell LJ put it in Greenhalgh v Mallard [1947] 2 All ER 255, 257, may cover

“issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.” ”

Lord Bingham went on to review the earlier cases, and stated his conclusions in a passage which I should cite in full beginning at 30H:

“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, focussing 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 justify 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.”

For his part, Lord Millett emphasised the distinction between res judicata in the strict sense and Henderson v Henderson abuse of process in the sense in which it is now generally understood. At 59C he said, in agreement with Lord Bingham, that the doctrine is capable of applying even where the first action concluded in a settlement, because “it is necessary to protect the integrity of the settlement and to prevent the defendant from being misled into believing that he was achieving a complete settlement of the matter in dispute when an unsuspected part remained outstanding”. He then continued:

“However this may be, the difference to which I have drawn attention is of critical importance. It is one thing to refuse to allow a party to re-litigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen’s right of access to the court conferred by the common law and guaranteed by Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression.”

More recently, in Aldi Stores Ltd v WSP Group Plc & ors [2007] EWCA Civ 1260, [2008] 1 WLR 748, the Court of Appeal has stated that it is generally neither necessary nor desirable to refer to authority before Johnson v Gore Wood & Co on the present question: see the judgment of Thomas LJ at paragraph 5, with whom Wall LJ (paragraph 32) and Longmore LJ (paragraph 37) agreed.

In the light of these principles, I must now make a “broad, merits-based judgment” on the question whether the Fattals are misusing or abusing the process of the court by seeking to raise in the New Claim the issue about the entitlement of the Sharet Trust to participate in the ownership of Berkeley Court.

I begin by observing that this issue certainly could have been raised by the Fattals in the 2003 proceedings. William Fattal must be taken to have been aware of the terms of the JVA, to which he and his brother were original parties. He knew from his conversation with Doreen Dangoor in July 1998 that there had been a sale of Interlands’ share, and he also knew that it had been transferred to the trustees of the Sharet Trust. He had raised the question of the Sharet Trust’s right to participate in the joint venture with Mr Taylor of Walbrook in December 2002, in a context where he wished to be satisfied that the Sharet Trust had a right to vote. The 2003 Part 8 Claim would have provided a suitable occasion to raise the question of the Sharet Trust’s right to participate, and indeed one of the heads of relief actually claimed in the 2003 Part 8 Claim was that the trustees should be directed to ensure that the terms of clauses 5 to 7 of the JVA were complied with: see paragraph 19 above. Those clauses of course included clause 6, which contains the crucial pre-emption provisions.

The case for raising the issue in the 2003 proceedings became even stronger, in my judgment, when Walbrook’s Part 20 claim was added to the 2003 Part 8 Claim and directions were sought with a view to the sale of Berkeley Court. The key issue on which the Vice Chancellor ruled in July 2003 was whether clause 3 of the JVA prevailed over clause 5. The effect if clause 3 prevailed, as the Vice Chancellor said, was that 75% of the parties by interest could dictate how the matter was dealt with. It is clear that everybody proceeded on the footing that the Sharet Trust had a 25% interest, with the result that the Delta, Sofaer and Sharet Trusts could combine together to out-vote the Fattal Trusts in accordance with clause 3. If, however, the Sharet Trust did not have a 25% interest, it would have had no right to vote (see clause 3.3 of the JVA) and the Delta and Sofaer Trusts alone would have been unable to rely on clause 3 to prevail over the Fattals. It can therefore be seen that the question of the Sharet Trust’s entitlement was one of crucial importance to the balance of power under the JVA. Furthermore, it is a question that it was very obviously in the interests of the Fattals to raise as their second line of attack, in the event that they failed to establish the primacy of clause 5 over clause 3.

Against this background, there is in my view great force in the submission that the Fattals not only could but should have raised this question in the 2003 proceedings. The trustees of all the trusts were united in wishing to bring about a sale of Berkeley Court, in what they considered to be the best interests of all the beneficiaries. The Fattals disagreed with the beneficiaries of the other three Trusts about how (if at all) this objective should be achieved, and were anxious not to find themselves in a position where the other three Trusts could dictate terms to them. In those circumstances, it was in my judgment incumbent on them to bring forward all their contentions at the same time, and not to adopt a stage by stage, or drip by drip, approach which is very often one of the hallmarks of abuse of process. If I ask myself whether the other parties to the litigation, including in particular the Sharet Trust, are being unjustly harassed by having to face and contest in 2008 a claim of this nature which could have been brought and determined in 2003 in the context of the 2003 proceedings, my strong prima facie inclination is to answer Yes.

I now turn to the arguments relied upon by the Fattals for saying that there is no abuse of process in their seeking to litigate the point by means of the New Claim. As presented by Mr Bompas QC and Mr Evans in their written submissions, and by Mr Bompas in his oral address to me, the arguments are essentially as follows:

I will now consider these arguments in turn.

The first argument is in my view largely formalistic in character, and does not go to the heart of the alleged abuse. It is true that Walbrook started the present proceedings in 2006, and one of the questions raised for determination by the court in the particulars of claim was whether the Sharet Trust has a 25% interest. Nobody could criticise Walbrook for having raised this question and seeking to have it determined by the Court. Plainly it is a question that needs to be decided, if it cannot be eliminated in some other way, before Berkeley Court can be sold. Equally, it was clearly appropriate for the court to give directions for the formulation and trial of the issue, in the absence of any clearly articulated argument that it would be an abuse of process to allow it to proceed.

Nevertheless, the question is not one that arises in the abstract, nor is it one that needs to be determined for its own sake. The reason why it was raised by Walbrook was because the Fattals were asserting that the Sharet Trust did not have an interest, and the representative beneficiaries of the other trusts disagreed. It was not a question on which Walbrook could properly take a stand one way or the other, because of their conflicted position, but it was also not a question which would go away. Accordingly, in the interests of all parties, Walbrook very properly decided to bring the question before the court. In essence, however, it remains a dispute between different family groups of beneficiaries, and as a matter of substance rather than form I see no reason why it should not be open to one group of beneficiaries (represented by Robert Dangoor) to argue that in all the circumstances it is an abuse of process for the Fattals to be permitted to contend for the question to be answered in their favour, when they could and should have raised the question themselves in 2003.

In my judgment Robert Dangoor cannot reasonably be criticised for having left his detailed challenge on abuse of process grounds until after the New Claim had been pleaded. The contention was raised for the first time, on behalf of all three of the non-Fattal trusts, in the skeleton argument of Ms Talbot Rice dated 13 September 2007 for the CMC on the following day. If my recollection is correct, she repeated the point in her oral submissions. However, it inevitably receded into the background once the decision had been taken to focus first of all on the Sale Issue. Following determination of the Sale Issue, the question came to the fore again, but it was obviously sensible to wait for the New Claim to be formulated before making the challenge. It is also material to note that one of the strongest pieces of evidence in support of the challenge, namely William Fattal’s evidence of his conversation with Doreen Dangoor in July 1998, came to light for the first time in his witness statement of 28 September 2007, some two weeks after the CMC.

I move on now to the second argument. Has Robert Dangoor by his conduct estopped himself from taking the abuse of process point? It is argued that Robert Dangoor (together with the other non-Fattal defendants) denied that there had been any sale of Interlands’ interest to Niazi Dangoor, although he knew that denial to be false, and encouraged the court to try the Sale Issue as a preliminary issue, in the hope that the Fattals would fail to uncover the truth and their case would collapse. As Ms Talbot Rice submitted on their behalf in paragraph 27(b) of her skeleton argument of 13 September 2007:

“[The Fattals’] assertion that there was a sale by Interlands to Niazi Dangoor of Interlands’ beneficial interest in the membership rights in BSL is hopeless … but is ready to be tried and can easily be tried at the October hearing. If [the Fattals] fail to establish this fundamental plank of their argument, the whole edifice of their case comes crashing down.”

It is suggested that Robert Dangoor, while doing his best to conceal the sale to Niazi Dangoor, probably supposed the Fattals to believe (mistakenly) that there had been a sale by Interlands of its share to Albert and Doreen Dangoor, because William Fattal’s letter of 22 February 2002 to David Dangoor (in which he said he had been led to believe that Selim Dangoor’s share was purchased by Albert) had been in evidence in the 2003 proceedings, and again at the hearing in June 2007 before Sir Francis Ferris. In those circumstances, it is submitted, if Robert Dangoor wished to argue that the Fattals were precluded from having the Sharet issue determined in the present proceedings, he should through his counsel have insisted on that question being adjudicated upon first, instead of the Sale Issue.

If I have understood the submission correctly, it seems to me to involve two separate but related points. The first point is that in bad faith, and with knowledge of the true facts, Robert Dangoor encouraged the court to decide the Sale Issue as a preliminary question, in the hope that it would deal a fatal blow to the Fattals’ case. The second point is that if Robert Dangoor wished to run an abuse of process argument, he should have insisted on its determination before all other questions.

As to the first point, Robert Dangoor was in my judgment guilty of deplorable behaviour when (as I found) he concealed the truth about the Sale Issue from the court, and did his best to persuade me that no sale had taken place. To put it bluntly, it was a cynical attempt to demolish the Fattals’ case on the Sharet issue at an early stage on a basis which he knew to be false. For a litigant who has indulged in that kind of conduct to then turn round and accuse the other side of abuse of process may well seem more than a little rich. On the other hand, I need to bear in mind that Robert Dangoor and the other non-Fattal defendants have already been penalised in indemnity costs for the failure of their attempt, and I must guard against penalising Robert Dangoor twice for the same misconduct. I must also not forget that he is a representative beneficiary who represents all the beneficiaries of the Sharet Trust, including minor and unborn beneficiaries who could not possibly be associated with his personal misconduct.

As to the second point, I have already indicated my view that, once it had been decided to try the Sale Issue first, it was then reasonable to wait until it had been decided, and until the New Claim had been formulated, before returning to the attack on the question of abuse of process. I am unable to see how any question of estoppel could arise in these circumstances, given that Robert Dangoor and his fellow defendants never represented to the Fattals, or proceeded on the basis of any common understanding, that they would not take the abuse of process point if they failed on the Sale Issue. On the contrary, the point had already been flagged up on their behalf in Ms Talbot Rice’s skeleton argument of 13 September, and it had not in any way been abandoned. The attempt to knock out the Fattals’ case by succeeding on the Sale Issue was in my judgment dishonest and discreditable, but it did not give rise to an estoppel.

It is also relevant to bear in mind in this connection that Henderson v Henderson abuse of process involves public interests as well as the private interests of the litigants. As Lord Bingham emphasised in Johnson v Gore Wood & Co, there is a public interest in finality in litigation and in a party not being twice vexed in the same matter. The law should do nothing to encourage the unreasonable prolongation of disputes, and court time is a precious resource. Accordingly, I would be reluctant to hold that Robert Dangoor was precluded from taking the abuse of process point now, assuming it to be otherwise well-founded, merely because he has been guilty of misconduct himself at an earlier stage in the litigation.

The third argument is that in 2003 the Fattals did not know the same facts as those upon which they now rely in support of the New Claim. It is said that it was only in the second half of October 2003 that William Fattal saw Mr Taylor’s letter of 27 January 1999 to Mr Buzzoni with its enclosures: see paragraph 89 of my earlier judgment. This was the first intimation received by William Fattal that Niazi Dangoor had been involved, and that there had been arrangements between Interlands and Niazi Dangoor which led to the latter acquiring the former’s 25% interest “which he then added to the Sharet Trust”. It is submitted that the description given by Mr Taylor in this letter of what had transpired in 1998 is at odds with what William Fattal had been told by Doreen Dangoor in their telephone conversation, and is also different from what was reported to him in Walbrook’s letter of 7 July 1998 seeking the Fattals’ approval to the transfer of Interlands’ share to the Sharet Trust.

The critical point which this submission overlooks, in my judgment, is that William Fattal knew from his conversation with Doreen not only that there had been a sale by Interlands of its share, but also that she and Albert “wanted to put it into a trust they had set up for their children called the Sharet Trust”. The information that a sale had taken place was all he needed to know in order to raise the question whether the rights in clause 6 of the JVA had been triggered. It was unnecessary for this purpose for him to know the identity of the purchaser. Furthermore, he also knew that the Sharet Trust was the intended ultimate recipient of the share, and that the beneficiaries under the Sharet Trust were Doreen and Albert’s children. This information was enough to tell him that the transfer did not fall within the addendum to the JVA. It also informed him that the share would continue to be held within the wider Dangoor family. This was important information, because the main commercial purpose of a provision like clause 6 of the JVA is to enable the original venturers to keep control over the destination of each other’s shares, and to intervene if a transfer is proposed to an unknown third party or somebody of whom they do not approve. Although William Fattal now says that the involvement of Niazi made all the difference, it seems to me that this was a relatively unimportant fact, and indeed really none of his business given that the Sharet Trust was to be the ultimate transferee.

The next argument is that the claims advanced by the Fattals in the 2003 proceedings were not inconsistent with the New Claim. It is said that the consequence of Interlands having sold and assigned its share without operating the pre-emption machinery in clause 6 of the JVA, and without obtaining the consent of the other parties pursuant to clause 12, was that the Sharet Trust acquired the share subject to an option available to the Fattal trustees to purchase the share from the Sharet trustees for 90% of the price paid to Interlands. In support of this submission reliance is placed on the judgment of Vinelott J in Tett v Phoenix Property Co [1984] BCLC 599 at 619, where he considered the position when executors of a deceased shareholder in a private property investment company had transferred her shares to an outsider in breach of the pre-emption provisions in the company’s articles of association, and the company had refused to register the transfer. Vinelott J held that the transfer was a complete and effective transfer as between the executors and the outside purchaser, although it was inchoate and did not constitute the purchaser the legal owner of the shares. He then continued at 619g:

“Counsel for the defendants’ … alternative submission was that the directors were entitled to refuse to register the transfer until the shares had been offered to the other members and they had declined the offer or until a reasonable period for acceptance had expired without any members accepting the offer. He submitted, rightly I think, that the other members’ rights to require [the] executors to offer the shares to them before transferring them to the plaintiff matured into an option to purchase the shares at the fair value to be determined by the auditors when the transfers were executed and that that option created an equitable interest prior in time to the interest taken by the plaintiff under the transfer. Until registration the equitable interest of the other members in the shares would prevail over the subsequent interest of the plaintiff whether the members had notice of his interest or not …”

That being the position in 1998, submits Mr Bompas, the most that can be said of the conduct of William Fattal in the 2003 proceedings is that he was then, in ignorance of what had in fact transpired in 1998, seeking to establish that clause 5 of the JVA prevailed over clause 3, and also to prevent objectionable disposals of property. For this purpose he did indeed accept that the Sharet trustees had already become beneficially entitled to a 25% share in the joint venture, but so they had. It was perfectly consistent with their having that beneficial entitlement that they might in the future be required to sell and transfer the share to someone else, including the Fattal trustees pursuant to the exercise of the right available to them under clause 6.

In my judgment the simplest answer to this submission is to assume in the Fattals’ favour that the option analysis is correct. It nevertheless does not alter the fact that William Fattal knew in 1998 that a sale had taken place, and he was concerned in 2003 to establish what the voting rights of the parties under the JVA were, and in particular whether he and his brother could prevent a sale or disposal of Berkeley Court on terms of which they disapproved. In those circumstances the Fattals should in my view have advanced the whole of their case, including any contention that the interest held by the Sharet Trust was precarious and liable to be defeated by exercise of their option. The mischief at which Henderson v Henderson abuse of process is aimed is not the advancing on a subsequent occasion of contentions which are inconsistent with those advanced on a previous occasion, but rather that the contention advanced on the subsequent occasion should have been raised, if it was to be raised at all, in the earlier proceedings. Since the question was not raised in the 2003 proceedings, and since everybody proceeded on the footing that the Sharet Trust had a full 25% share in the venture, the abuse lies in the Fattals later seeking to establish that the entitlement of the Sharet Trust was after all defeasible by exercise of their option.

I would add that it may in any event be questionable whether the option analysis is correct, although I find it unnecessary to decide the point. The decision of Vinelott J in Tett v Phoenix Property Co was overruled by the Court of Appeal (see [1986] BCLC 149), and as Slade LJ pointed out at 159 the option analysis did not lead to a commercially sensible result in that case, because it involved the possibility that an intending transferor who made an offer to his fellow shareholders might find himself confronted with numerous acceptances all obliging him to sell the same holding, and exposing him to numerous claims for damages in the event of breach. However, the answer to this point may well be that in the present case clause 6(4) of the JVA does expressly cater for the position where more than one of the parties serves a purchase notice in response to a transfer notice given by an intending vendor, and provides that in such a case “they shall purchase the Seller’s Share in equal shares or otherwise as they agree between them”.

The next argument relies on the conduct of Robert Dangoor as a weighty factor to be taken into account, on the assumption that (as I have held) an estoppel is not established. I have already expressed my adverse views on Robert Dangoor’s conduct in paragraph 51 above, and I agree that it is a relevant matter to take into account. However, the question that I now have to decide cannot depend on a weighing up of the misconduct on each side, not least because of the public interests which are also involved. The critical issue upon which I have to focus, at the risk of repetition, is whether in all the circumstances the Fattals are misusing or abusing the process of the court by seeking to raise an issue which could and should have been raised before. Two wrongs do not make a right, and in my judgment the misconduct of Robert Dangoor, which has already been penalised in costs, should not be permitted to carry much weight in assessing the separate question whether the Fattals themselves are now seeking to misuse or abuse the process of the court.

For similar reasons, I am unimpressed by the final argument which seeks to rely on the shortcomings of Walbrook in disclosing documents and in providing any clear explanation of what happened in 1998. I have made a number of criticisms of Walbrook in my earlier judgments, while I hope making due allowance for the difficult and conflicted position in which they find themselves. However, these criticisms are in my view of only marginal relevance to the question which I now have to decide. I accept that the Fattals’ conduct must be judged by reference to the knowledge which they actually had in 2003, and not by reference to what they would have known if Walbrook had disclosed documents and information which only came to light later. That is the basis upon which I have approached the present issue, but as I have already explained it does not seem to me to exonerate the Fattals from the criticism that they should have advanced the whole of their case in 2003.

In his most recent (fifth) witness statement dated 5 March 2008, William Fattal describes his state of mind on 10 July 1998 (the date of his letter consenting to the transfer to the Sharet Trust) in the following terms:

“So far [as] I can recall my state of mind on 10 July 1998, I understood that Doreen and Albert had purchased the BSL share, and that (as I was being written to by Walbrook in a way which suggested that there was nothing special or surprising about it), I was being asked to consent to [sic]. It was a request for my consent to the proposed transfer by Doreen and Albert to the Sharet Trust. There was nothing in that letter which gave me any grounds for objecting. I assumed that it would be unreasonable and therefore not permissible to withhold my consent. I knew that the JVA and supplement contained provisions dealing with transfers and giving (in certain cases) rights of pre-emption. I knew also that there were circumstances in which transfers were permitted and rights of pre-emption did not arise; but I did not know precisely what they were. I did not have before me the JVA and supplement and did not recall the details …”

Later in the same statement, William Fattal describes the position as he saw it in 2003:

“14.

In fact, of course, before October 2003 we did not know that Niazi Dangoor had any involvement; and until 20 October 2003 we were led to believe that it was Albert and Doreen who had bought the 25% share. It was only recently, in late 2007, that it was established that there had indeed been a purchaser and that Niazi Dangoor had been the purchaser. The point is that, had I been told in June 1998 that it was Niazi Dangoor 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 would have wanted those rights to be exercised by Walbrook. The fact that Niazi was the purchaser of the 25% share is certainly not an immaterial fact.

15.

I do not accept that Niazi’s role was merely nominal. I do not know, any more than Henderson J did, what was actually the source of the funds which he used for the purchase or, indeed, the price. The context in which I gave my approval in July 1998 was that I had been led to believe that those involved were Selim or his representatives, Albert and Doreen, and their children’s trust. This all seemed to me to be a family matter which I believed was not open to me to object as it was permitted under the JVA being to connected parties.

16.

Another thing we did not know was who the Settlor of the Sharet Trust was. In my conversation with Doreen in 1998, she led me to believe that she and Albert were the Settlor. On this point too Walbrook provided incorrect and misleading information. In his 2^nd witness statement in [the] 2003 Part 8 proceedings, dated 9 May 2003, Robert Taylor stated (his para 17) that Doreen was the Settlor. Later, on 12 October 2006, Miss Katrina Le Vesconte made a statement containing the same incorrect and misleading information. Even when this was corrected, it was never told to me that Niazi Dangoor was the Settlor: this was a fact which became apparent only following the 15 September 2007 CMC in these proceedings. The same is true of the fact that the Sharet Trust was established for the purpose of taking the 25% share: that was only recently revealed, it having at first been denied that the formation of the Sharet Trust had any relevance to the subsequent acquisition of the 25% share. Again, if I had known that the Sharet Trust had been established by some outsider called Niazi Dangoor of whom I had never previously heard, I would have established the true position and asked Walbrook to exercise our rights.”

I have quoted this evidence at some length, because although it is mainly directed to the issue of acquiescence it is also relevant to the issue of abuse of process, and I wish the Fattals to be in no doubt that I have taken it fully into account. However, it does not in my judgment provide an adequate explanation for the Fattals’ failure to raise the question of the Sharet Trust’s entitlement in the 2003 proceedings. I would make the following comments:

Having given all these matters my careful consideration, the conclusion which I have reached is that the New Claim is indeed an abuse of process and must therefore be struck out. In my judgment it would be unfair to the Sharet Trust in particular, but also to all the other non-Fattal parties, to enable the Fattals to litigate in 2008 the question of the Sharet Trust’s right to participate in the joint venture, when they could and should have raised that question in the 2003 proceedings. As Lord Bingham said in Johnson v Gore Wood & Co, the rule in Henderson v Henderson, as it is now understood, has a valuable part to play in protecting the interests of justice. In my view the present case affords a good example of the beneficent effect of the rule.

For the avoidance of doubt, the order which I propose to make striking out the New Claim is intended to apply to the New Claim in its amended form, following the application to amend made by Mr Bompas QC during the course of the hearing, and is not intended to prejudice in any way any claims which the Fattals may have against Walbrook.

The conclusion which I have reached means that it is unnecessary for me to decide the questions of waiver and limitation. I heard full and interesting arguments on both questions, but to do them justice would greatly prolong this judgment and take up a lot more judicial time. I therefore propose to say no more about them.