Summary

A master had been wrong to determine an application to strike out where the pleadings raised the same issue that had previously been decided by a judge. The master should have recognised that the application was an abuse of process.

Facts

The appellants Anglo Petroleum Ltd and Sutton (S) appealed against an order striking out their claims and defences in three separate actions. A summary judgment application by the respondent company (T) had been refused on the basis that S had a real prospect of success if they pleaded that certain transactions breached the Companies Act 1985 s.151 , which were not appropriate to determine on a summary judgment application, Anglo Petroleum Ltd v TFB (Mortgages) Ltd (2003) EWHC 3125 (QB) . S served amended pleadings claiming breaches of s.151. At a later hearing T applied to strike out the s.151 allegations. The master found that although there had been no material changes in the facts since the earlier hearing, the application was not an abuse of process as the s.151 points had not been pleaded at that hearing but had been introduced by the judge and not the parties. The master struck out S's claims and defences that relied on breaches of s.151. S contended that the master should not have entertained the strike-out applications as the s.151 points had been determined previously by a judge who found that they had a real prospect of success.

Held

The master should not have entertained the strike-out application. It was no part of the abuse of process principle that there should have been a prior pleading or strike-out applications. What mattered was whether the parties had a proper opportunity to deal with the point and whether there was a decision on it from a court of competent jurisdiction. Nor was there any merit in the submission that it was unjust to T if they were precluded from appealing the decision as well as unable to apply for the amended pleadings to be struck out. They could have appealed the decision not to strike out the pleadings altogether and grant them summary judgment on their claims and defences, but they would have needed permission for that sort of appeal and they had not sought it. The pleadings as amended raised the same argument as that raised before the judge and the master was wrong not to have recognised that the strike-out actions were an abuse of process and should have been dismissed.

Appeal allowed