Walbrook Trustees (Jersey) Ltd & Ors v William Simon Fattal & Ors

Walbrook Trustees (Jersey) Ltd & Ors v William Simon Fattal & Ors

The New Claim should not have been struck out as an abuse of process because the Fattal trustees did not have the material facts at the time of the 2003 proceedings, and it would be unjust to penalise them for not pleading a claim that would have been struck out. The question of waiver by election and authority to consent should go to trial. Costs incurred by Walbrook as trustees should be borne by the non-Fattal trusts, not the Fattal trusts, due to the unreasonable conduct of the non-Fattal defendants.

Parties
Respondents: Walbrook Trustees (Jersey) Ltd & Others; Appellants: William Simon Fattal & Others
Jurisdiction
England and Wales
Judgment Date
08 April 2009
Procedural Posture
Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal
Outcome
Appeal allowed
Legal Topics
Abuse of Process, Waiver by Election, Trustee Costs, Pre Emption Rights, Joint Venture Agreements
Civil Procedure Trusts Law Property Law Abuse of Process Waiver by Election Trustee Costs Pre Emption Rights Joint Venture Agreements

Case Brief

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Parties

Walbrook Trustees (Jersey) Ltd & Others

Respondents

William Simon Fattal & Others

Appellants

Procedural Posture

Civil Appeal / Appeal From High Court (chancery Division) to Court of Appeal

Legal Issues

  1. 1 Whether the New Claim by the Fattal trustees should be struck out as an abuse of process for not being raised in earlier proceedings
  2. 2 Whether the Fattal trustees waived their pre-emption rights under the JVA by consenting to the 1998 transfer
  3. 3 How costs should be apportioned among the trusts

Ratio Decidendi

The New Claim should not have been struck out as an abuse of process because the Fattal trustees did not have the material facts at the time of the 2003 proceedings, and it would be unjust to penalise them for not pleading a claim that would have been struck out. The question of waiver by election and authority to consent should go to trial. Costs incurred by Walbrook as trustees should be borne by the non-Fattal trusts, not the Fattal trusts, due to the unreasonable conduct of the non-Fattal defendants.

Court Disposition

Appeal allowed

Orders

  • The order striking out the New Claim is set aside; the New Claim is reinstated.
  • The costs order of 21 December 2007 is varied so that the Walbrook parties recover 80% of their costs by way of indemnity from the non-Fattal trusts only.