Wahab v Khan & Ors

Wahab v Khan & Ors

It was not an abuse of process merely to bring the second claim for revocation of probate after the first was struck out for procedural default and delay; the appropriate remedy is to stay the second claim pending payment of the outstanding costs, not to strike it out.

Parties
Appellant/claimant: Ghouse Abdul Wahab; Respondent/defendant: Amir Khan; Respondent/defendant: Mohammed Jamal; Respondent/defendant: Usman Tariq; Respondent/defendant: Muhammed Akhtar
Jurisdiction
England and Wales
Judgment Date
12 April 2011
Procedural Posture
Probate/revocation of Probate / Appeal From Order Striking Out Claim
Outcome
Appeal allowed; order striking out the claim set aside; second claim stayed pending payment of costs.
Legal Topics
Abuse of Process, Striking Out, Revocation of Probate, Costs, Successive Proceedings
Civil Procedure Probate Abuse of Process Striking Out Revocation of Probate Costs Successive Proceedings

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Parties

Ghouse Abdul Wahab

Appellant/claimant

Amir Khan

Respondent/defendant

Mohammed Jamal

Respondent/defendant

Usman Tariq

Respondent/defendant

Muhammed Akhtar

Respondent/defendant

Procedural Posture

Probate/revocation of Probate / Appeal From Order Striking Out Claim

Legal Issues

  1. 1 Whether the bringing of a second claim for revocation of probate after the first was struck out constitutes an abuse of process
  2. 2 Whether striking out the second claim was the appropriate remedy or whether a stay pending payment of costs was sufficient

Ratio Decidendi

It was not an abuse of process merely to bring the second claim for revocation of probate after the first was struck out for procedural default and delay; the appropriate remedy is to stay the second claim pending payment of the outstanding costs, not to strike it out.

Court Disposition

Appeal allowed; order striking out the claim set aside; second claim stayed pending payment of costs.

Orders

  • Mr Wahab to pay £5,000 costs ordered against Mr Munawar in the 2007 claim within 14 days, failing which the second claim will be struck out.
  • If £5,000 is paid, Mr Khan may apply for detailed assessment of his costs of the 2007 claim within three months.