Chirstopher Loxton (instructed by Wordley Partnership) for the First Defendant
MASTER PESTER:
Introduction
This is my judgment on the Claimant’s application, dated 4 May 2023, for permission to amend his Claim Form and Points of Claim. The proceedings were begun by Part 8 Claim Form, which explains the reference to Points of Claim.
The Claimant, Pankim Patel, is represented by solicitors and Junior Counsel. The First Defendant, Minerva Services Delaware, Inc (“MSD”) is represented by solicitors and Leading and Junior Counsel. The Second and Third Defendants, Paul Baxendale-Walker and Mark Barry Slater, are separately represented, again by solicitors and both Leading and Junior Counsel.
The three Defendants all oppose the application to amend. MSD is a company registered in the US state of Delaware. MSD began arbitration proceedings against Mr Patel in Delaware in August 2021 (“the Delaware Arbitration”), and legal proceedings against Mr Patel in Delaware in January 2022 (“the Delaware Proceedings”). Both the Delaware Arbitration and the Delaware Proceedings were discontinued. Mr Baxendale-Walker was formerly a barrister and then a solicitor specialising in tax law, and latterly a pornographer: see Sargespace Limited v Eustace [2013] EWHC 2944 QB), at [1]. He was adjudged bankrupt in 2018, and a bankruptcy restriction order made against him: Official Receiver v Baxendale-Waleker [2020] EWHC 195 (Ch). On Mr Patel’s case, at least, he remains able to access large sums of money. Mr Slater is the sole director and shareholder of Bay Mining Consultants Ltd (“Bay”). Bay was the claimant in proceedings brought against Mr Patel in the High Court in April 2021, but discontinued in May 2021 (“the High Court Proceedings”).
Mr Patel brings a claim for both unlawful and lawful means conspiracy. The unlawful means relied on include causing proceedings to be commenced against Mr Patel by one or more entities controlled by Mr Baxendale-Walker and/or Mr Slater, not for any legitimate purpose but to put pressure on Mr Patel, and to give or rely on dishonest evidence. In addition, Mr Patel now says that the unlawful means include relying on a forged document in the proceedings. Mr Patel’s case is that both Bay and MSD are companies controlled by Mr Baxendale-Walker and Mr Slater.
At the previous hearing, on MSD’s application to strike out the claim against it, I was concerned as to whether Mr Patel had provided sufficient particulars to found a claim in unlawful means conspiracy. After all, in a claim for unlawful means conspiracy, the claimant must prove each unlawful act relied upon as a freestanding wrong and that it was carried out pursuant to the conspiracy: Kuwait Oil Tanker Co SAK v Al Bader [2000] 2 All ER (Comm) 71, at [132]. The point taken by MSD was that commencing litigation is neither a crime, nor a tort, nor a breach of statute, nor breach of contract, all acts which might constitute unlawful means. Mr Patel’s Counsel responded that, in certain circumstances, commencing litigation can amount to a tort, either the tort of abuse of process, or malicious prosecution. Rather than accede to MSD’s strike out application, I took the view that it was preferable to afford Mr Patel a further opportunity to clarify his pleading.
The proposed amendments to the Points of Claim now expressly plead that, in commencing the High Court Proceedings, Bay committed the torts of abuse of process and malicious prosecution (paragraph 17) and that, in commencing the Delaware Arbitration and the Delaware Proceedings, MSD committed the torts of abuse of process and malicious prosecution (paragraph 18(c)), and that this was done pursuant to a conspiracy and combination between Mr Baxendale-Walker, Mr Slater and Bay. Obviously, the Delaware Arbitration and the Delaware Proceedings relate to events abroad. The central ground of opposition advanced by the Defendants to the application to amend is their submission that the tort of malicious prosecution does not extend to arbitrations generally, nor to foreign proceedings. The tort of abuse of process is likewise said to be limited to proceedings before, and abuses of the process of, this Court, and this court alone, and that this is a point which can and should be determined on an application to amend.
Background
The background to this application is certainly unusual, and rather involved. It is not necessary in this judgment to set out the full background. There has already been one appeal, by MSD, to the Court of Appeal, which was dismissed. A fuller background is set out in my earlier judgment in these proceedings, reported at [2023] EWHC 856 (Ch), as well as the judgments of Mr Lance Ashworth KC, sitting as a deputy High Court Judge, reported at [2022] EWHC 970 (Ch), and of the Court of Appeal, reported at [2023] EWCA Civ 118.
Continue reading this Judgment here.
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