Summary

The principle that it would be an abuse of process to challenge a decision in earlier proceedings where that would bring the administration of justice into disrepute was wide enough to encompass the situation where a person had not been a party to the earlier proceedings but only a witness.

Facts

The applicant Kazakh bank (B) applied for a final charging order in respect of a London flat.

In contempt proceedings against the first defendant (D) the court had held that he was the ultimate beneficial owner of the flat. B had subsequently obtained a default judgment against D. In the contempt proceedings D had said that he was not the owner of the flat and that it was owned by another person (S). S had given evidence that he was the owner but he had not been believed. The decision in the contempt proceedings had been appealed unsuccessfully. B as a judgment creditor applied for a final charging order in respect of the flat. S appeared to oppose the final charging order on the ground that he was the beneficial owner.

B submitted that to permit S to oppose the application would allow a collateral challenge to the findings in the contempt proceedings and would bring the administration of justice into disrepute contrary to the principles in Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321, [2004] Ch. 1. S submitted that the decision in Bairstow did not apply where the person bringing the challenge in the subsequent proceedings had not been a party to the earlier proceedings but only a witness, as S had been.

Held

The principle set out in Bairstow, that it would be an abuse of process to challenge a decision in earlier proceedings where that would bring the administration of justice into disrepute, was wide enough to encompass the situation where a person was not a party to the earlier proceedings but only a witness, Bairstow applied. No reason had been put forward as to why the principle that a collateral attack was an abuse of process was not capable of extending to a witness in the first proceedings who was a party to the later proceedings. The difference between a party and a witness was something which could be taken into account when deciding whether the collateral attack would bring the administration of justice into disrepute. The conclusion that the principle was not so limited was supported by other authority, Conlon v Simms [2006] EWCA Civ 1749, [2008] 1 W.L.R. 484 considered. The issue in the final charging order application as to the beneficial ownership of the flat was the very issue which had been decided in the contempt proceedings. S had given evidence on that issue and had been disbelieved. That issue had been considered in detail in the contempt proceedings and it was deeply improbable that there was further evidence relating to the ownership which had not been brought before the court. S claimed that there were financial records which would show that he purchased the flat with his own money. That point had been made in the contempt proceedings but rejected. His opposition was as plain a case as possible of a collateral attack which would bring the administration of justice into disrepute. The court made the final charging order sought.

Application granted