Michael Wilson & Prs Ltd v Sinclair & Ors [2012] EWHC 2560 (Comm)
In the latest saga of this long running dispute, judgment was handed down on 21st September 2012 examining the interplay between arbitration and litigation and the scope for applying the doctrine of abuse of process.
Teare J sitting in the Commercial Court) examines for the first time whether a finding of abuse of process can be made where the abuse consists of A bringing an action against B where A previously raised the same issues and lost in an arbitration between A and C.
As Teare J said “It is a remarkable feature of the claim brought by MWP that the central allegations made in it have already been determined against MWP in an arbitration in which MWP, Mr. Emmott and Mr. Sinclair have been involved, for the past 6 years.”
In this case the Claimants had alleged in an arbitration that C had received certain shares and money as secret profits in breach of the fiduciary duty that C owed to A as a director.
In the arbitration C contended that the shares and money were simply being held on trust for B. The arbitrators upheld that defence and acquitted C of having received them as secret profits.
In spite of this A then sued B on the basis that B had knowingly assisted C in obtaining a secret profit even though C had been found not to have done so by the arbitration tribunal.
The claim by A against B was struck out as an abuse of process even though B was not a party to the arbitration between A and C.
Philip Shepherd QC appeared for the Part 20 Defendant.
