Alexander Isaac Hamilton v Mark Colin Barrow & Ors

This is a consequential hearing following a judgment that was circulated to the parties in draft at the end of September. I handed it down remotely on 10th October 2025.

The issues are:

Ground 1 seeks permission to appeal my decision on champerty: “on the ground that the Claimant did not have a pre-existing legitimate interest in the subject matter of the assignments”.

At paragraph 11 of his skeleton argument, Mr Bell seeks to summarise my reasoning. At 11 (ii) he says that I found that “The Assignors had a common interest in recovering their investments. The jurisprudence surrounding ‘non-commercial interests’ discussed in para 4-43 of Guest is relevant in this regard”; and 11 (iv) he says that I found that “C’s decision to wait until after the outcome of his claim before taking the Assignments is not “wanton and officious intermeddling”, given that the Assignors’ need for access to justice remained.”

At paragraph 17 (i) of his skeleton argument, Mr Bell says that at paragraph 118 of my judgment I “…said that the Assignors’ “common interest…in recovering their investments” is a sufficient interest…” and then criticises my reasoning on the basis that he says that when dealing with interest I focused on the assignors’ interest and not that of the assignee (see paragraphs 17 (i) and (ii) of his skeleton argument).

These parts of Mr Bell’s skeleton argument mis-state my reasoning:

At paragraph 12 Mr Bell says that it is an “essential requirement for the assignee to have a genuine commercial interest.” and that “This submission is made notwithstanding Guest at 4-43”. At paragraph 15 Mr Bell acknowledges that paragraph 4-43 of Guest “cites examples of assignments that were held to be valid even though the assignee’s interest was ‘other than commercial’”. He then concludes by saying “the examples referred to in Guest simply demonstrate that the assignee’s interest does not have to be financial in order to qualify.” I think that the tension between these statements emphasises the problem for Mr Bell’s argument. As I said at paragraphs 80 to 82 of my judgment, both the leading textbook (by reference to authority) and a judgment that has been described as authoritative by two House of Lords judgments, state that the law of maintenance and champerty recognises interests other than commercial or financial interests. Indeed, Mr Page KC accepted that in his original skeleton argument and in oral argument.

At paragraph 16, Mr Bell criticises my statement at paragraph 121 of my judgment that: “The transaction must be looked at as a whole and it is necessary to ask whether there is anything in it which is contrary to the relevant public policies.” He says that that statement is either incorrect or incomplete. However, paragraph 121 of my judgment cross-refers to paragraphs 84 to 86 of my judgment. It can be seen from paragraph 84 that the statement Mr Bell criticises is taken almost word for word from the judgment of the Judicial Committee of the Privy Council in Massai Aviation Services and Anor v. Attorney General and anor [2007] UKPC 12 at paragraph 19. As can be seen from paragraph 85 of my judgment that paragraph from Massai was relied on by Cockerill J (as she then was) in Recovery Partners GB Ltd v. Rukhadze [2019] Bus LR 1166, which judgment Guest says summarises the modern approach to these questions. I do not therefore accept that the extract from paragraph 121 of my judgment Mr Bell quotes is inaccurate or relevantly incomplete.

Finally, Mr Bell seeks to distinguish the facts of Martell v. Consett Iron Co Ltd [1955] Ch 363 and the position that would exist if the assignment had been to an SPV. However, Mr Bell maintains the position that he made at the hearing and does not address the public policy question at all.

I do not think that this Ground of Appeal has a real prospect of success or that there is some other compelling reason for the appeal to be heard. The arguments as framed partly mis-state my reasons. I applied the modern test for whether an agreement is champertous as set out in the cases and in the leading textbook. As I say in my judgment, the defendants did not address an essential aspect of that modern test.

Ground 2 seeks permission to appeal my decision that it is not an on abuse of process “…for the Claimant to bring the present claim against the Third and Fourth Defendants in circumstances where he could and should have named them as defendants in his previous action.”

At paragraph 20 of his skeleton argument, Mr Bell says that his “…central submission on abuse of process was that it was an abuse for C to have sued D3/D4 in this action, even though he made the conscious decision not to sue D3/D4 in the first action, despite treating that as a test case.”

The starting point for considering this Ground is that, as I say in relation to Ground 1, I made clear findings of fact that the claimant was not contemplating the present proceedings from the date of the negative advice on the merits that he received from both solicitors and counsel and was proceeding without representation. It follows that the suggestion that the Claimant was treating his first case as a ‘test case’ is not correct. The only relevant decision not to sue the third and fourth defendants in the first action can therefore have been not to seek to make them joint and severally liable for his personal claim. In the circumstances that prevailed at the time, the third and fourth defendants would have been unlikely to have argued that that decision was incorrect and that they should have been exposed to such liability.

As I stated in my judgment, the question of whether or not an action is an abuse of process is a ‘broad merits-based’ one. In Aldi Stores Ltd v. WSP Group PLC [2008] 1 WLR 748 at paragraph 16, Thomas LJ said:

“…an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him…”

Mr Bell accepted in oral argument today that there was no authority for the proposition that it was per se an abuse of process to sue partners where they had not all been brought into an earlier action in which the existence of the partnership was in issue. He accepted that the case of Morris v. Wentworth-Stanley [1999] QB 1004 that he cited in his skeleton argument does not really assist his argument and does not state any such general rule. Instead, he cited MCC Proceeds Inc v. Lehman Bros [1998] 4 All ER 676, which he accepted he did not cite in the hearing, for a more general proposition.

Mr Bell says that the relevant error that I made was that because there was a disputed issue which the claimant would have known in the first action would affect his clients, the claimant needed to provide a good reason for not bringing them into the first action and the claimant had not provided one.

It seems to me that this submission needs to be assessed in the context of the findings of fact that I made: the claimant was not contemplating the present action at the time of his first action, and in the context of the ‘broad merits-based’ test that fell to be applied. I do not think that it was an error of principle not to have required the claimant to have gone beyond establishing the fact that he was not contemplating the present action at the time and to have required him to provide an additional reason for not bringing the third and fourth defendants into the first action. It seems to me that the fact that he was not contemplating this action and was proceeding on his own and against legal advice, were sufficient reasons.

It is to be remembered that in the present case, the claims being brought under the assignments are the claims of different people to the claim being brought in the first action. In addition, as I say at paragraphs 129 and 138 (a) of my judgment the third and fourth defendants accept that it would not be an abuse of process for the assignors to bring exactly the same claims against them as the claimant now does.

It does not seem to me that this Ground of Appeal has a real prospect of success or that there is some other compelling reason for the appeal to be heard either. My decision was a broad merits-based one which took into account the range of factors that I identified in paragraph 138 of my judgment. It does not fall within the grounds for an appellate court to interfere set out in the quotation from Thomas LJ that I set out above.

The first and second defendants do not seek permission to appeal from me. They do however wish to argue in the Court of Appeal that I failed to deal with a point.

The point that they say I did not deal with is what they assert is a common law rule separate from the rule against champerty that a bare cause of action is not assignable, unless the assignee has a genuine commercial interest. They rely for that proposition on paragraphs 21 and 22 of Farrar v. Miller [2022] EWCA Civ 295.

The first and second defendants say that paragraphs 21 and 22 were cited to the Court orally in opening and the point was dealt with in the pleading analysis document submitted to the Court after the hearing.

I am in some difficulties in dealing with this point now. That is for two broad reasons.

First, I have some concerns about the manner in which this argument is said to have come about. I say that for the following reasons:

Secondly, I do not think that the point has been sufficiently fully argued for me to form any reliable conclusion as to its merit. I make the following points, although with considerable hesitation given the above:

At least the first to fourth defendants accept that arguments such as those that were run in these applications should be dealt with by the ordinary rule that costs follow the event and I should make that order now. The tenth defendant argues that that should not be the case, at least as regards his strike out application, because he maintains his position that the claim against the eighth to eleventh defendants is vexatious and they should not be here at all. I reject that argument. As Mr Page KC and Mr Bell accept, if the points that were taken are taken at this stage of proceedings then costs follow the event and there is no reason to make a different order. The fact is that the eighth to eleventh defendants were unsuccessful.

In relation to who should pay which costs, by the end of the hearing it was not in substantial dispute that after deducting an amount for the costs of the claimant’s amendment application, the claimant should have his costs split up in the following way (the orders to be made on a joint and several basis):

As to summary assessment, at the end of the hearing it was not in substantial dispute but that if I were to summarily assess the costs, they should be apportioned as to 27% for each of issues (a) to (c) and 19 % to issue (d). In addition, the amount on the schedule for counsels’ fee was not disputed, neither was the other expenses item, subject to a small deduction to remove the claim for subsistence.

The dispute was as to the number of hours the claimant claimed for preparation. As Mr Page KC pointed out, this amounted to some 33 weeks’ work. I asked the claimant whether this claim was maintained, explaining that it seemed high. He said it was maintained and was a true reflection of the time spent, by reference to time logs that he had kept. I did not have copies of the time logs and it was not possible for me to decide this dispute on a summary assessment. I therefore order that the costs order be as I set out at paragraph 27 the apportionment between issues be as in paragraph 28 and the amount, to be assessed if not agreed.

I grant the third and fourth defendants an extension of time to 4pm on 10th November 2025 for any renewed application for permission to appeal to the Court of Appeal.