Abuse of process

May 2nd, 2017

In Chalfont St Peter Parish Council v Holy Cross Sisters Trustees Inc (2017) EWHC 777 (QB), a claim against a religious Order for conspiracy to injure, which effectively alleged that the Order had obtained planning permission for the residential development of its land by making fraudulent and deceitful misrepresentations about the prior use of the land, was permitted to proceed to trial. The Court refused to strike out the claim as an abuse of process, even though the planning permission had already been challenged in judicial review proceedings, because it had not been open to the claimant to allege fraud in those proceedings.  Summary judgment was also refused.

Allegations of fraud were not to be made lightly, especially against the type of defendant in the instant case. It was a professional rule that lawyers could only allege fraud on clear instructions from their client, and with seemingly credible evidence in support.  That rule had been scrupulously observed in the instant case.  There was credible evidence that the area had been used as a playing field by the school, and that that must have been common knowledge.  Nevertheless, when interviewed by the Parish Council’s solicitor, the former caretaker of the school had affirmed his recollection that the area had not been used as a playing field. The court sympathised with the Sisters in the fact that fraud was being alleged six years after the event and after multiple hearings about the same subject-matter, but could not strike out the claim for the following reasons: (a) it had not been open to the Council to allege fraud in the judicial review proceedings, because it was not the purpose of such proceedings to make findings of fact; (b) in order to prove a mistake of fact in judicial review proceedings, a party could only rely on new evidence if that evidence was uncontentious; (c) whilst there was precedent for the review by the Administrative Court of decisions vitiated by the fraud of the decision-maker, there was no authority to support the proposition that there was a legitimate ground of review where the decision-maker had acted properly, but the applicant had procured the decision by fraud. The remedy in such a case would be an action in fraud; (d) the decision not to allege fraud during the earlier proceedings had been taken upon legal advice, and that advice could not be said to be wrong.  Given those reasons, it was reasonable for the Parish Council to have exhausted their remedies in the judicial review proceedings before bringing the instant case. It could not be characterised as a collateral attack on the decisions arrived at in the judicial review process, because the Sisters had not been a party to those proceedings, and the remedy sought was quite different. The case was not suitable for summary judgment. It could not be said that the Parish Council had no real prospect of success on the issues. Further evidence and a closer examination of the facts was required.

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