Source: All England Reporter
Publisher Citation: [2002] All ER (D) 224 (Jan)
Court: Chancery Division
Judge:

Sir Donald Rattee

Representation Stephen Moverley Smith (instructed by Pinsent Curtis Biddle, Birmingham) for the claimant.
  Vivian Chapman (instructed by Jerrard Saunders Donn) for the defendants.
Judgment Dates: 25 January 2002

Catchwords

Deed - Rectification - Deed of commutation - Third defendant owning certain properties - Claimant taking charge over properties to secure indebtedness of defendants - Parties executing deed of commutation - Defendants subsequently discharging their liabilities by payment of certain sums to claimant - Claimant refusing to release charges over two properties - Third defendant obtaining declaration from master that properties be released from charges - Court of Appeal subsequently upholding master's order - Claimant seeking rectification of deed of commutation - Defendants seeking to strike out claimant's application as abuse of process - Whether claimant's application should be struck out.

The Case

It was well accepted that the bringing of a claim in later proceedings might, without more, amount to an abuse if the court was satisfied that the claim should have been raised in earlier proceedings, if it was to be raised at all. In the instant case, on the evidence, it was clear that the claimant had an opportunity to raise the issue of rectification in the earlier proceedings but had not done so. Accordingly, the claimant's application for rectification was an abuse of process, and would be struck out.

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