Unfair Presentation and Abuse of Process

12 July, 2022

In a judgment handed down on 4 July 2022, Mrs Justice Cockerill held that a claimant deliberately breached its duty of full and frank disclosure, and she set aside an order for service out of the jurisdiction. In doing so, the judge considered the existence of the tort of abuse of process and held that it does not extend to foreign proceedings.

The claimant, Nagel, is a broker in the diamond industry. Nagel brought a claim against the Pluczenik Diamond Company (PDC), a leading manufacturer and distributor of diamonds, and the previous CEO of a subsidiary of De Beers, Ms Shine. Nagel claimed that proceedings commenced by PDC against Nagel in Belgium, in which Ms Shine is a witness, were a fraud on and an abuse of process of the Belgian Court, relying on the English tort of abuse of process.

Nagel obtained permission to serve out of the jurisdiction from Mrs Justice Moulder. In doing so, it failed to tell the court about a judgment in the Belgian proceedings by which the Belgian court had taken jurisdiction over PDC’s claim.

At the return date before Mrs Justice Cockerill, she held that Nagel’s failure to disclose the Belgian judgment had been deliberate and was a serious breach of the duty of full and frank disclosure. It justified the setting aside of the order for permission to serve out of the jurisdiction, without further examination of the merits of that application.

However, Mrs Justice Cockerill went on to consider the merits, and said that if necessary, she would have held that in any event the English tort of abuse of process did not extend to proceedings before a foreign court. It was for the Belgian court to determine the proceedings before it. England was not the forum conveniens for Nagel’s claim, and the order of Mrs Justice Moulder would be set aside on this ground as well.

The claim against Ms Shine,  who had been served within the jurisdiction, was stayed on the grounds of forum conveniens pending the outcome of the Belgian proceedings.

Iain Quirk QC acted for Pluczenik Diamond Company, instructed by Peter Nunn, Adam Rose, Oliver Steeple and Destiny Okongwu of Mishcon de Reya LLP. Ruth den Besten acted for Ms Shine, instructed by Farrer & Co LLP.

The judgment is available here.