Bhattacharya v Armstrong - Bankruptcy Property Dispute

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  Bhattacharya & Anor v Robert Armstrong & Anor [2026] EWHC 759 (Ch) (30 March 2026)

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[2026] EWHC 759 (Ch) | | |
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| | | Neutral Citation Number: [2026] EWHC 759 (Ch) |
| | | Case No: BR-2022-000009 and BR-2022-000013 |
**IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INSOLVENCY AND COMPANIES LIST (ChD)

IN THE MATTER OF BIRAJA PADA BHATTACHARYA
AND IN THE MATTER OF SUSMITA BHATTACHARYA
AND IN THE MATTER OF THE INSOLVENCY ACT 1986**

| | | Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL |
| | | 30 March 2026 |
B e f o r e :

ICC JUDGE GREENWOOD

Between:
| | 1. BISHNUPRIYA BHATTACHARYA
2. NAYANTARA BHATTACHARYA | Applicants |
| | - and ? | |
| | 1. ROBERT ARMSTRONG
2. GEOFFREY WAYNE BOUCHIER
(As the Joint Trustees in Bankruptcy of BIRAJA PADA BHATTACHARYA and SUSMITA BHATTACHARYA) | Respondents |

**Mr Andrew Carter (instructed by Longmores Solicitors) for the Applicants
Ms Rachel Sleeman (instructed by Pinsent Masons LLP) for the Respondents

Hearing date: 18 December 2025 (and further written submissions on 18 March 2026)**

HTML VERSION OF JUDGMENT ____________________

Crown Copyright ©

2. ICC JUDGE GREENWOOD:
3. Introduction
4. The Background
5. On 14 March 2025, following a contested trial that took place between 5 and 7 March 2025, I handed down the court's judgment in respect of two applications made on 15 December 2023 by the joint trustees in bankruptcy (" the Trustees ") of the two named respondents to those applications, Mr Biraja Pada Bhattacharya (" Mr Bhattacharya ") and his wife, Mrs Susmita Bhattacharya (" Mrs Bhattacharya ", and together with her husband, " the Bankrupts "). Following a further, consequentials hearing on 25 March 2025, amongst other things, the court made a Declaration (" the Declaration ") that the Trustees were " legally and beneficially entitled to " the freehold property at 100 Redcliffe Gardens, London SW10 9HH, registered with title number 339758 at HM Land Registry (" the Property ") " which prior to their bankruptcies was jointly owned by " the Bankrupts, and ordered that the Property be sold with vacant possession; the net proceeds of sale were to be paid to the Trustees, for the purposes of the bankruptcies.
8. In my judgment (at [2025] EWHC 597 (Ch), " the Previous Judgment ") at [10], I described the Property as a large Victorian building in the Borough of Kensington and Chelsea, divided into six separate flats: the Lower Ground Floor Flat (" the LGFF "); the Ground Floor Flat (" the GFF "); the First Floor Flat (" the 1st FF "); the Second Floor Flat (" the 2nd FF "); the Second Floor Studio Flat (" the Studio "); and the Third Floor Flat (" the 3 rd FF "). I recorded that the Bankrupts themselves lived in the 1st FF (which they accepted that they owned) and that their daughter, Bishnupriya Bhattacharya (" Bishnupriya ") lived in the 2nd FF and the 3 rd FF.
11. At [21], albeit not " entirely simple " to grasp, I recorded the case that had been advanced by the Bankrupts (through counsel, Mr Richard Buston) as follows (references to " the Respondents " were references to the Bankrupts):
14. " 21.1. the context is a close-knit family, in which certain meaningful arrangements were made for the benefit of the Respondents' children, Bishnupriya and her sister, Nayantara Bhattacharya (" Nayantara ") , but informally, without legal assistance;
16. 21.2. the Property is physically divided into the six units that I have described;
18. 21.3. the LGFF, whilst "promised" to Nayantara at some future point, as being for her eventual benefit, or as part of her eventual share in the Property, possibly as part of her inheritance on the Respondents' death, had nonetheless not in fact been transferred to any degree, and therefore, it was accepted, belonged to the Respondents; Mr Bhattacharya's evidence was that this promise made to Nayantara, was a result of Mr David Berkley QC having given the Respondents some sort of advice that the position as between the daughters would otherwise be unfair, because Bishnupriya would have a greater share of the Property than her sister;
20. 21.4. it was accepted that the 1st FF is also owned by the Respondents, and is occupied by them;
22. 21.5. the 2nd FF was promised or gifted to Bishnupriya on her 18th birthday, in March 2001, although it was not until 2006, as reflected in the Land Registry documents, that she became a co-owner of the 99 year leasehold interest that then existed in that part of the Property;
24. 21.6. when the Respondents acquired the freehold on 18 February 2008, and the leasehold interests were extinguished, Mr Buston said that Bishnupriya's "equity in that lease wouldn't have been surrendered for no reason, for no consideration, but it was surrendered and any equity that [Bishnupriya] had in the [2nd FF] would have transferred to the new title and she would have held that equity and so we say, as a result of that, a resulting trust was created in respect of [the 2nd FF]", meaning that the TR1 was "incorrect", being "purely a decision around borrowing", made to enable the Respondents to give security;
26. 21.7. in that respect, on 18 February 2008, the Respondents, as borrowers, entered into a Legal Charge with the Bank of Scotland, by which with "full title guarantee" they charged their freehold interest in the Property in favour of the Bank, presumably in order to fund the acquisition of the freehold;
28. 21.8. the GFF and the 3rd FF are beneficially owned, respectively, by Nayantara and Bishnupriya, on a resulting trust or trusts, as a result of a transaction which took place in 2012, by which they were each given ?750,000 by Mrs Bhattacharya's sister, Mrs Sanjukta Ghosh, which they allowed to be used to discharge secured borrowing on the Property, and in consequence of which they acquired the beneficial interests in question."
30. Essentially therefore, the Bankrupts' case was that their daughters, Bishnupriya and Nayantara, were the beneficial owners of, respectively, the 2 nd FF and the 3 rd FF (in the case of Bishnupriya) and the GFF (in the case of Nayantara). They accepted that they themselves owned the LGFF and the 1 st FF.
33. I wholly rejected the Bankrupts' case for reasons that were explained in detail in my judgment, in particular between [40] and [50]. I described the evidence as having been overwhelming. In summary:
36. 1. the Land Registry records, the TR1 dated 18 February 2008, and the Deed of Surrender dated 19 February 2008, were consistent only with the Trustees' case, that from the date of acquisition of the Property's freehold, the Bankrupts alone owned the Property, and that Bishnupriya's previous interest in the leasehold interest (and the leasehold interest itself) was deliberately and effectively extinguished and surrendered;
39. 2. all of the documents created subsequently, including statements made formally by the Bankrupts supported by a statement of truth, were to the effect that they alone and together owned the whole Property;
42. 3. the Bankrupts' case in respect of the Property had changed, and had been expressed inconsistently, in a variety of different forms. I recorded that even in the course of his cross-examination, Mr Bhattacharya had made a completely new and unheralded allegation (unsupported by any documents) that in addition to the ?750,000 in effect paid by each daughter in 2012, there had been further payments of ?100,000, made by each: " Later on, I have not got the date yet, there's a statement somewhere to show the ?200,000 we received and that is ?100,000 from Bishnupriya and ?100,000 Nayantara. The money came from Bishnupriya."
45. 4. in connection with the alleged 2012 transaction, the evidence was insufficient either to show what in fact had happened, or that the Bankrupts' daughters had acquired an ownership interest of some sort; the letter from Mrs Ghosh suggested that she had acquired an unsecured personal right to payment of ?1.5 million, which she had given to the Bankrupts' daughters; the Deed of Gift was unsatisfactory as a document and was in any event consistent with the content of the letter, that Mrs Ghosh had sought to give Bishnupriya and Nayantara her personal right to payment of ?1.5 million; that outcome was consistent with the Bankrupts' IVA proposals, which expressly characterised their daughters' rights (including, apparently, in respect of the sum of ?1.5 million) as merely personal, and unsecured;
48. 5. the legal basis of the Bankrupts' case was not supported by any cited authority, or to any extent developed by counsel;
51. 6. there was no evidence from either Bishnupriya or Nayantara, or indeed, from Mrs Ghosh, and no explanation of any reason for its absence; despite having been given notice of them, neither Bishnupriya nor Nayantara had applied to be joined to the proceedings, and neither of them had expressed any formal opposition;
54. 7. finally, I treated Mr Bhattacharya's evidence " with very great caution ", and that of Mrs Bhattacharya (whose evidence fundamentally contradicted the case being advanced on her behalf) as " guileless "; as such, Mrs Bhattacharya had described, " a close-knit family, in which her daughters were given to understand, as is not perhaps uncommon, that at some future point, the benefit of their parents' wealth - in this regard, the Property - would come to be shared fairly between them. Whilst that may be so, it was not an understanding that translated into any legal consequence, or which was therefore capable of surviving the unhappy consequences of their parents' insolvency and bankruptcy, and the intervention of the rights of their parents' creditors."
57. The Present Application
58. In part on the basis that their daughters had not been joined to the proceedings, the Bankrupts sought, but were refused permission to appeal, first by me on 25 March 2025, and subsequently (marked as an application totally without merit) by Mr Justice Trower on 11 September 2025.
61. The Application now before the court (in respect of which this is my judgment) was made by Nayantara and Bishnupriya on 15 April 2025, and was amended on 6 November 2025 (with my permission, given at a hearing on 23 October 2025). It sought (or at least, in respect of the application under r. 40.9, was treated by the parties as having sought) the following:
64. 1. an order under CPR 40.9 setting aside the Declaration made on 25 March 2025 in respect of the Property's ownership, and varying it to read, " The Trustees are legally and beneficially entitled to the Property which prior to their bankruptcies was vested in the Bankrupts. The beneficial interest of the Bankrupts is subject to the beneficial interests of Bishnupriya Bhattacharya and Nayantara Bhattacharya ";
67. 2. joinder to the proceedings of the Applicants under CPR 19.2(b), and the determination (at another trial) of their beneficial interests in the Property.
70. Attached to the Application, marked as " Annex 1 ", was a statement of the grounds of the Applicants' case. The Application was opposed.
73. The parties' evidence was contained in:
76. 1. the three witness statements of Bishnupriya, made on 15 April, 1 July and 17 October 2025;
79. 2. the witness statement of Nayantara, made on 16 October 2025;
82. 3. the witness statement of Mrs Ghosh, made on 4 October 2025; and,
85. 4. in opposition to the Application, the two witness statements of Mr Armstrong, made on 6 May and 20 November 2025.
88. In summary, as to the Property's ownership - albeit this time advanced by them, founded on their own evidence and that of Mrs Ghosh, all missing from the first trial - the Applicants' case was broadly the same as that which had been unsuccessfully advanced by their parents: (i) that when Bishnupriya agreed to surrender her leasehold interest in 2008, it was on the basis that she would, in return, or in any event, acquire or retain (by virtue of a constructive trust, or possibly a resulting trust or an estoppel) some variety of equitable beneficial interest in the freehold; (ii) that in 2012, Mrs Ghosh contributed ?1.5 million to the reduction of borrowing secured on the Property, and that subsequently, the Applicants each contributed a further ?100,000; that those contributions were made on the agreed basis that each of the Applicants would acquire the beneficial ownership of another flat ? in the case of Nayantara, the GFF, and in the case of Bishnupriya, the 3 rd FF; and again, that as a result, they acquired further (or expanded) interests under constructive trusts (or again, by virtue of some other variety of trust or estoppel). It was not stated in Annex 1 that Nayantara made any variety of claim to the Property apart from her claim to the GFF; nonetheless, in their evidence, the Applicants asserted that in addition to the GFF, Nayantara was also the beneficial owner of the LGFF.
91. The Application was resisted by the Trustees, first, on grounds that on the merits, there was no real prospect of the Applicants establishing any variety or degree of proprietary interest in the Property, and second, that in any event, having had notice of the Trustees' application against their parents, and having failed to oppose it or actively participate, it was an abuse of process now to seek to set aside the Declaration, and re-litigate the same issues.
94. The Law
95. CPR Rule 40.9
96. CPR Rule 40.9 provides:
98. " A person who is not a party but who is directly affected by a judgment or order may apply to have the judgment or order set aside or varied."
99. It was common ground that the Applicants were not parties to the proceedings against their parents, but that (as claimants to an interest in the Property) they had been " directly affected " by the judgment and by the relief granted in respect of the Property in March 2025 (see Abdelmamoud v The Egyptian Association in Great Britain Ltd [2015] EWHC 1013 (Ch) at [58]). As explained below, it was common ground that the Declaration comprised a judgment in rem.
102. As to the court's approach, there was no disagreement. Ms Sleeman (counsel for the Trustees) cited Ageas Insurance Ltd v Stoodley [2019] Lloyd's Rep. I.R. 1, in which an application was made under CPR 40.9 (albeit unsuccessfully) to set aside a declaration (made at a trial in the absence of Mr Stoodley, and therefore, in effect unopposed) that Ageas was entitled to void its policies of insurance with Mr Stoodley. The application was made by another insurer, "Advantage", exposed to a potential liability in respect of claims arising out of a car accident in which Mr Stoodley had been involved. Its argument was that it had been directly affected by the declaration, because whereas previously there had been three, there were now only two insurers potentially liable. It argued that the declaration was wrongly made. HHJ Cotter QC (as he then was), held:
105. 1. at [40]-[42], that the requirement under rule 40.9 that the applicant be " directly affected " should be considered flexibly in light of the overarching need to ensure that injustice is not done to those affected, and has two elements: first, that the party be materially and adversely affected, and second, that it be directly rather than indirectly affected; he held that Advantage was so affected by the judgment - the axiomatic result of the declaration was that " put simply the bill goes up substantially "; in the present case, as I have said, this element was not in issue, and there is no need therefore to consider its meaning in any further detail;
108. 2. at [47], that the promptness of the application was a material consideration; and,
111. 3. at [49]-[53], that the applicant must establish that it has a " real prospect of success " on the merits (at a future hearing, the judgment or order having been set aside) - there must, in other words, be a real prospect of securing a different outcome. In this respect Advantage failed; for that reason, its application was dismissed.
114. Res Judicata and Abuse of Process
115. There is a strong public interest in the principle of finality of litigation: the " law discourages relitigation of the same issues except by means of an appeal ", per Lord Hoffmann in Arthur J S Hall & Co v Simons [2002] 1 AC 615, at 701A. Lord Hoffmann continued:
117. " The Latin maxims often quoted are nemo debet bis vexari pro una et eadem causa and interest rei publicae ut finis sit litium. They are usually mentioned in tandem but it is important to notice that the policies they state are not quite the same. The first is concerned with the interests of the defendant: a person should not be troubled twice for the same reason. This policy has generated the rules which prevent relitigation when the parties are the same: autrefois acquit, res judicata and issue estoppel. The second policy is wider: it is concerned with the interests of the state. There is a general public interest in the same issue not being litigated over again. The second policy can be used to justify the extension of the rules of issue estoppel to cases in which the parties are not the same but the circumstances are such as to bring the case within the spirit of the rules. I shall give two examples. In Reichel v Magrath (1889) 14 App Cas 665 Mr Reichel, the vicar of Sparsholt, resigned. The Bishop of Oxford accepted his resignation. Then the vicar changed his mind. He brought an action against the Bishop and the Queen's College, Oxford, which had the right of presentation, for a declaration that his resignation had been void. The judge held that it had been valid and that the living was vacant. His decision was affirmed on appeal. The college appointed its Provost, Dr Magrath, as the new vicar. Mr Reichel refused to move out of the vicarage. Dr Magrath brought an action for possession. Mr Reichel pleaded in defence that his resignation had been void and he was still the vicar. The court struck out the defence as an "abuse of the process of the court". Although the parties were different, the case was within the spirit of the issue estoppel rule. Dr Magrath was claiming through the college, which had been a party to the earlier litigation.
118. In Ashmore v British Coal Corpn [1990] 2 QB 338 Ms Ashmore worked in the canteen of a coal mine in Nottingham. She complained to an industrial tribunal that she was paid less than men were being paid for similar work, contrary to the Equal Pay Act 1970. Over 1,500 other women employees of the corporation made similar complaints. The industrial tribunal decided to hear 14 sample cases, six selected by the employees and eight by the employers, to lay down general principles according to which the others could be decided. Ms Ashmore was aware of these arrangements. The tribunal decided all the cases adversely to the applicants on grounds which were equally applicable to Ms Ashmore's application. She then asked for a separate hearing of her case. The Court of Appeal decided that it should be struck out as an abuse of the process of the court. Ms Ashmore had not been a party to the sample proceedings but the sensible procedure there adopted would be undermined if all other members of the group were entitled to demand a separate hearing.
119. The leading case on the application of the power to dismiss proceedings on this ground as an abuse of the process of the court is Hunter v Chief Constable of the West Midlands Police [1982] AC 529. It concerned the trial of the six men convicted of an IRA bombing in Birmingham in 1974. The defendants claimed that the police had beaten them to extract confessions. The trial judge held a voir dire and decided that the prosecution had proved beyond reasonable doubt that they had not been beaten. They were convicted. They applied for leave to appeal, but not on the ground that the confessions had been wrongly admitted. Leave to appeal was refused. In prison, the accused commenced proceedings against the policemen for assault, alleging the same beatings as had been alleged at the criminal trial. The House of Lords decided that it was an abuse of the process of the court to attempt to relitigate the same issue and that the actions should be struck out.
120. Criminal proceedings are in my opinion in a special category because although they are technically litigation between the Crown and the defendant, the Crown prosecutes on behalf of society as a whole.
121. ?
122. Hunter v Chief Constable of the West Midlands Police [1982] AC 529 shows that, superimposed upon the rules of issue estoppel and the Civil Evidence Act 1968, the courts have a power to strike out attempts to relitigate issues between different parties as an abuse of the process of the court. But the power is used only in cases in which justice and public policy demand it. Lord Diplock began his speech, at p 536, by saying that the case concerned:
123. > "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."
124. I, too, would not wish to be taken as saying anything to confine the power within categories. But I agree with the principles upon which Lord Diplock said that the power should be exercised: in cases in which relitigation of an issue previously decided would be "manifestly unfair" to a party or would bring the administration of justice into disrepute. It is true that Lord Diplock said later in his speech, at p 541, that the abuse of process exemplified by the facts of the case was:
125. > "the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made."
126. But I do not think that he meant that every case falling within this description was an abuse of process or even that there was a presumption to this effect which required the plaintiff to bring himself within some exception. That would be to adopt a scheme of categorisation which Lord Diplock deplored. As I shall explain, I think it is possible to make some generalisations about criminal proceedings. But each case depends upon an application of the fundamental principles. I think that Ralph Gibson LJ was right when, after quoting this passage, he said in Walpole v Partridge & Wilson [1994] QB 106, 116a that Hunter's case [1982] AC 529 decides "not that the initiation of such proceedings is necessarily an abuse of process but that it may be ".
127. Accordingly, potentially relevant to the Application, were two different but related doctrines, res judicata and abuse of process.
130. Res Judicata
131. The first was res judicata (once " the res ? the thing actually or directly in dispute ? has been already adjudicated upon ? by a competent court, it cannot be litigated again ": per Lush J, Ord v Ord [1923] 2 KB 432, at 439), which itself comprises two distinct rules: cause of action estoppel and issue estoppel. In Res Judicata (Spencer Bower and Handley, 6 th Edition) at 1.01, a res judicata is defined as " a decision pronounced by judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re-litigated between persons bound by the judgment." Accordingly, in respect of a judgment in personam, it follows that res judicata is party-dependent - it applies only to attempts to re-litigate between the same parties, or their privies.
134. As I have mentioned however, in the present case, it was common ground between counsel (and there was no argument on the point, one way or the other) that the Declaration made on 25 March 2025 comprised a decision or judgment of the court in rem, rather than in personam. Such a decision determines the status of a thing (in this case, the Property) or person, " as against the whole world " (Ali v Pattini [2007] 2 AC 85, 98, per Lord Mance), " its jural relation to persons generally, not just parties and privies " (see Res Judicata, Spencer Bower and Handley, 6 th Edition, at 10.01).
137. It follows therefore that in respect of res judicata based on a judgment in rem (and although of course the other conditions of a valid res judicata would have to be fulfilled) the court is not concerned with parties or privies ? the judgment is available for and against persons generally.
140. It therefore also follows that paragraph 8 of the Applicants' Annex 1, which stated " As the Applicants were not parties or privies to the court proceedings, the principle of res judicata does not prevent them asserting their case and obtaining a different order in relation to their beneficial interest ", was, on the Applicants' own case, misconceived: whether or not the Applicants were " parties or privies " to the proceedings between their parents and the Trustees was wholly irrelevant to the question whether there was a res judicata. In fact, the other conditions (summarised at [17] above) having undoubtedly been satisfied, there was, in the present case, plainly a res judicata. It is for that reason that the Applicants, if they are to escape the effect of the Declaration, must have it set aside, and that their Application as literally framed (seeking merely joinder under CPR 19.2, but not an order under rule 40.9) would not have achieved their purpose.
143. The real question was therefore not whether there was a res judicata - there was - but whether the Application under rule 40.9 to set aside the Declaration (ex hypothesi binding on the Applicants) was an abuse of process. Nonetheless, it is not necessarily irrelevant to that issue to consider whether in the circumstances, the Applicants were (or would have been, for the purposes of the res judicata doctrine) their parents' privies.
146. Privity
147. In respect of privity in this context, it " has always been said that there must be privity of blood, title or interest ", per Lord Reid in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 2) [1967] 1 AC 853 at 910G. In the present case, the only relevant possibility would have been privity of interest, the requirements of which were described by Megarry V-C in Gleeson v Whipple & Co Ltd [1977] 1 WLR 510, at 515, as follows:
150. " This is difficult territory: but I have to do the best I can in the absence of any clear statement of principle. First, I do not think that in the phrase "privity of interest" the word "interest" can be used in the sense of mere curiosity or concern. Many matters that are litigated are of concern to many other persons than the parties to the litigation, in that the result of a case will at least suggest that the position of others in like case is as good or as bad as, or better or worse than, they believed it to be. Furthermore, it is a commonplace for litigation to require decisions to be made about the propriety or otherwise of acts done by those who are not litigants. Many a witness feels aggrieved by a decision in a case to which he is no party without it being suggested that the decision is binding upon him.
151. Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase "privity of interest." Thus in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa. "
152. This test has sometimes been criticised, but not overruled (and was, for example, adopted by Lord Bingham in Johnson v Gore-Wood [2002] AC 1, albeit in the context of an abuse argument). In PJSC National Bank Trust and another v Mints and Others [2022] 1 WLR 3099, at [33], Foxton J (as he then was) said:
155. " Megarry V-C described the concept of privity as "protean", and his "test" is criticised in Spencer Bower & Handley as "circular". It is fair to say that the "test" is essentially conclusory, and that it falls to be applied in circumstances in which there are a wide variety of combinations of factors which might lead to a conclusion of privity, or be insufficient to support it, in different cases. To that extent, it is a multi-factorial rather than rule-based principle. This limits the extent of the guidance which can be obtained from cases considering particular applications of the test. Without in any way purporting to identify all relevant factors (which I suspect would be an impossible task, as well as a pointless one when it is the particular combination of factors which matters), the authorities to which I was referred provided a number of "signposts" which I have found of particular assistance in this case:
157. (i) The starting point?or "basic rule"?is that "before a person is to be bound by a judgment of a court, fairness requires that he should be joined as a party in the proceedings, and so have the procedural protections that carries with it" (Sales J in Seven Arts Entertainments Ltd [2013] EWHC 588 (Ch) at [73]). As Sales J noted, "the importance of the general rule and fundamental importance of the principle of fair treatment to which it gives expression indicate the narrowness of the exception to the rule".
158. >
159. (ii) The test of identification is sometimes approached by asking if the party sought to be bound can be said "in reality" to be the party to the original proceedings (Resolution Chemicals [2014] RPC 5, at [32]).
161. (iii) That argument must be approached with particular caution when it is alleged that a director, shareholder or another group company is privy to a decision against a company, because it risks undermining the distinct legal personality of a company as against that of its shareholders and directors. The danger is particularly acute as the company must necessarily act through and be subject to the ultimate control of natural persons, and directors and shareholders who "control" the company in this sense will frequently have a commercial interest in the company's success. The need for particular caution about privity arguments in this context is emphasised in Standard Chartered Bank (Hong Kong) Ltd v Independent Power Tanzania Ltd [2016] 1 All ER (Comm) 233, paras 143-145 and MAD Atelier International BV v Manes [2020] QB 971, paras 67-69. Nonetheless, there are cases which, on their particular facts, have found privity between a company and a controlling director/shareholder: for example Secretary of State for Business, Innovation and Skills v Potiwal [2013] Lloyd's Rep FC 124 (decision of VAT tribunal against company binding on its director, controller and significant shareholder in director's disqualification proceedings)."
163. The test therefore incorporates elements both of the parties' interest in the subject-matter of the decision, and of their identity (that in reality, party A is party B).
165. The Nana Ofori Principle
167. One variety of case in which privity has been found, potentially relevant to the present dispute, is that in which " C knows of proceedings between A and B in which his rights are being tested but stands back and does nothing " (per Floyd LJ at [26], Resolution Chemicals Ltd v H. Lundbeck A/S [2013] EWCA Civ 924), and for that reason comes to be treated as a privy.
170. Thus, in House of Spring Gardens Ltd v Waite (No.2) [1991] 1 QB 241, a joint tortfeasor, in full knowledge of the circumstances, had declined to participate in an unsuccessful action by his co-tortfeasors to set aside (on the grounds of fraud) a judgment against them all. When it was sought to enforce the original judgment against him, he sought to raise the fraud allegation, claiming that he was not a party to the action to set aside. Stuart-Smith LJ said at page 254AB:
173. "? he was content to sit back and leave others to fight his battle, at no expense to himself. In my judgment that is sufficient to make him privy to the estoppel?"
175. Stuart-Smith LJ derived this principle from the judgment of Lord Penzance in Wytcherley v Andrews (1869-72) LR 2 P&D 327 at page 328 (approved by Lord Denning giving the judgment of the Privy Council in Nana Ofori Atta II v Nanu Abu Bonsra II [1958] AC 95 at pages 102?3), as follows:
178. " There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening, and it was because of the existence of this practice that the judges of the Prerogative Court held, that *if a person, knowing what was passing, was content to stand by and see his battle fought by someone else in the same interest, he should be bound by the result, and not be allowed to re-open the case*. That principle is founded on justice and common sense, and is acted upon in courts of equity where, if the persons interested are too numerous to be all made parties to the suit, one or two of the class are allowed to represent them; and if it appears to the court that everything has been done bona fide in the interests of the parties seeking to disturb the arrangement, it will not allow the matter to be re-opened." (The emphasis is added.)
180. In addition to an estoppel, the Court of Appeal in House of Spring Gardens also held that the same result could (per Stuart Smith LJ at [1991] 1 QB 241, 254E-F) " equally well " have been reached on the ground of abuse of process, a doctrine " untrammelled by the technicalities of estoppel ". Having cited the passage from Hunter [1982] AC 529, at 536, reproduced above at [15], the judge continued:
183. " The question is whether it would be in the interests of justice and public policy to allow the issue of fraud to be litigated again in this Court, it having been tried and determined by Egan J. in Ireland. In my judgment it would not; indeed, I think it would be a travesty of justice. Not only would the plaintiffs be required to re-litigate matters which have twice been extensively investigated and decided in their favour in the natural forum, but it would run the risk of inconsistent verdicts being reached, not only as between the English and Irish courts, but as between the defendants themselves. The Waites have not appealed Sir Peter Pain's judgment, and they were quite right not to do so. The plaintiffs will no doubt proceed to execute their judgment against them. What could be a greater source of injustice, if in years to come, when the issue is finally decided, a different decision is in the appellant's case reached? Public policy requires that there should be an end of litigation, and that a litigant should not be vexed more than once in the same cause."
185. In Resolution Chemicals, having considered the decision in House of Spring Gardens, Floyd LJ concluded, at [32]:
187. " Drawing this together, in my judgment a court which has the task of assessing whether there is privity of interest between a new party and a party to previous proceedings needs to examine (a) the extent to which the new party had an interest in the subject matter of the previous action; (b) the extent to which the new party can be said to be, in reality, the party to the original proceedings by reason of his relationship with that party, and (c) against this background to ask whether it is just that the new party should be bound by the outcome of the previous litigation."
188. In the present case, in respect of the decision in House of Spring Gardens, based on the Nana Ofori principle, Mr Carter also cited the decision of the Court of Appeal in Re Skyparks Group plc [2001] EWCA Civ 319. That decision concerned an appeal against an order made on an application to enforce (by sale) a charging order made in respect of one Mr Marks' beneficial interest in a certain property.
191. Mr Marks was a judgment debtor, and the charging order had been made in proceedings in the Queen's Bench Division (before Sullivan J, on appeal from Master Murray) brought by the judgment creditor against Mr Marks alone. Mr Marks had contended, unsuccessfully, that he had no beneficial interest in the property because it vested in a trust. Enforcement of that order had been sought in further proceedings in the Chancery Division, as a result of which the judge, HHJ Elizabeth Steel, had held that the beneficial interests of Mr Marks and his wife, Mrs Marks (by now a party, having successfully sought to join the further proceedings) were 87 and 13% respectively, and that there should be a sale.
194. On appeal from that decision, amongst other things, it was argued that the judge had been wrong to hold (as she had, by virtue of the principles explained in House of Spring Gardens) that Mrs Marks had been estopped from raising the argument, contrary to the finding of Sullivan J in the Queen's Bench proceedings, that the property was held for the trust. In respect of the estoppel (and in other respects also) the appeal succeeded.
197. In his judgment, Robert Walker LJ (as he then was) distinguished House of Spring Gardens, and held the Nana Ofori principle to be inapplicable, both because there was neither a sufficient identity of interest between Mr and Mrs Marks nor (on the evidence) sufficiently informed consent on the part of Mrs Marks to stand back and let her battle be fought by her husband (see [41]-[43]). He observed that the proceedings in the Queen's Bench Division had concerned only the question whether Mr Marks had some beneficial interest in the property ? issues as to the quantum of that interest had been deferred to the second stage, Chancery Division proceedings, a procedure " inconsistent with the notion that [Sullivan J] was finally deciding anything other than that Mr Marks did have some beneficial interest in [the property]." He added, at [43], that had Mrs Marks (or the trustees) applied to be joined as parties at the stage of the appeal to Sullivan J, they might well have been met by the objection that Master Murray envisaged that they (or at any rate the trustees) would have a chance of being heard in the Chancery Division.
200. As to identity of interest, he said that there " was obviously a degree of common interest in persuading the master that the house belonged to the [the trust] , because that outcome held out the best prospect of the house being preserved as a family home (so long as the charge to Midland could be kept down). And a husband who is facing insolvency may wish to prefer his wife's proprietary claims to his own. Nevertheless Mr Marks, Mrs Marks and the trustees all had competing financial interests, as would have become immediately apparent if Skyparks had proceeded (as it might have done) to make Mr Marks bankrupt at the same time as pursuing the charging order. " Moreover, HHJ Elizabeth Steel had made no findings at all about the trustees of the trust having had an interest identical to that of Mr Marks, or of having been content to allow Mr Marks to fight their battle, and " on that short point " (in any event) the conclusion on estoppel as against the trustees could not stand; in the circumstances, the creditor's abuse argument, raised by a respondent's notice, added nothing.
203. Also cited by Mr Carter, was the decision of Mr Hugh Simms QC (as he then was) sitting as a deputy judge of the High Court in The Law Society v Dua and Dua [2020] EWHC 3528 (Ch). As in Skyparks, the case concerned an application made by a judgment creditor, The Law Society, to enforce a charging order made against Mrs Dua, the judgment debtor, in respect of her beneficial interests in two properties, both of which were registered in the joint names of Mrs Dua and her husband, Mr Dua. In issue was whether Mr and Mrs Dua were entitled to contend that Mrs Dua had no beneficial interest in the properties (or no interest with a realisable value), that point having been decided against her by Master Marsh when the charging order was made. Mr Dua had not been party to that application, but had previously assisted his wife as a McKenzie Friend; he was a defendant to the enforcement proceedings. The Law Society relied, as against Mrs Dua, on both res judicata and more broadly, on abuse of process, and as against Mr Dua, on abuse of process alone; it was not argued that Mr Dua was Mrs Dua's privy, properly so called.
206. The judge decided (at [46]) that the critical issue was whether Mr Dua was precluded, on the ground of abuse, from advancing his case. Having considered the decision in Skyparks, the judge noted, at [51], that Mr and Mrs Dua (like Mr and Mrs Marks) had interests in the property that were not identical; he noted also that although Master Marsh had made a decision concerning Mr Dua's rights at the charging order stage (unlike the position in Skyparks), " his decision in this respect is not to be divorced from the context in which charging order decisions are made, where it is not necessary to determine the precise interests, and his conclusions were very much based on the evidence placed before him at that stage."
209. In relation specifically to abuse of process, the judge then considered the decision of the House of Lords in Johnson v Gore-Wood [2002] 2 AC 1, and of the Court of Appeal in Conlon v Simms [2008] 1 WLR 484, and in Booth v Booth [2010] EWCA Civ 27. He derived and noted the following:
212. 1. from Johnson, that as " one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not ? it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances "; the proper approach is to make a " broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court ";
215. 2. at [63]-[67], from Conlon, that in the context of an alleged abuse, the fact that the parties are not the same is not dispositive; but, it will be a rare case where the re-litigation of an issue which has not been decided between the same parties or their privies will amount to an abuse, and this is particularly so where the conduct which is said to be abusive is that of the defendant making a second and successive attempt at defending themselves; the claimant is, to an extent " in the driving seat so far as litigation is concerned ": [68]; he observed, at [65], that the Court of Appeal had applied a test in the terms stated by Lord Diplock in Hunter (see [15] above), and by the Court of Appeal in Secretary of State for Trade and Industry v Bairstow [2004] Ch 1;
218. 3. at [70], from Booth, that the court's (discretionary) reaction to an abuse may be affected by the stage reached by the litigation: if, for example, rights have been determined (and therefore the court's processes already used) the impulse to strike out may be weaker;
221. 4. finally, at [71]-73], that the underlying substantive merits are ordinarily, but not invariably, irrelevant; in an " extreme case " (see Stuart v Goldberg Linde [2008] EWCA Civ 2 at [57]) where the case is " hopeless " or " cast-iron ", its merits might conceivably have a bearing; having said that (Stuart, at [57]) " when Lord Bingham spoke of a "broad, merits-based" approach, the merits he had in mind were not the substantive merits or otherwise of the actual claim, but those relevant to the question whether the claimant could or should have brought his claim as part of the earlier proceedings "; in other words, the relevant assessment (and the relevant "merits") are those which take account of the public and private interests involved, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process.
224. Abuse of Process
225. In dealing with the principles of res judicata, I have referred also to the related principles governing the court's inherent jurisdiction to prevent the abuse of its own processes in this context (of finality of litigation, and of challenges to judicial decisions). Essentially, those principles allow the court where appropriate to prevent a person from raising a cause or issue which although not raised in the earlier proceedings, could have been (the rule in Henderson v Henderson [1843] 3 Hare 100), and allow it also, in principle, to prevent a party from challenging findings in earlier proceedings that are relied upon either by or against a person who was not party (or privy) to those proceedings ? and therefore falling outside the strict boundaries of res judicata. Although based on substantially similar policies, res judicata and abuse of process are " juridically very different ", " distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation ": per Lord Sumption in Virgin Atlantic Airways v Premium Aircraft Interiors UK Ltd [2013] UKSC 46, at [25].
228. In the present case, although the Trustees sought to rely on the rule in Henderson, it seemed to me that it was not strictly relevant: in the present case, the point was not that Party A, having failed to advance a case in previous proceedings to which it was a party, is or ought now to be precluded from doing so, but that Party A was not involved in the proceedings at all, and is therefore (or claims to be) entitled to challenge their outcome; the case in question (the Applicants' alleged ownership) was indubitably raised, evidenced and argued (by Mr and Mrs Bhattacharya, and their counsel), but not, on the Applicants' case, in circumstances which ought to bind them without means of challenge.
231. The court's approach was set out in Dua, that I have respectfully summarised above, at [37]. In particular therefore, in the present case, the question is whether the application to set aside or vary the Declaration made in respect of the Property (and to allow for a second trial) is manifestly unfair to the Trustees, or would otherwise bring the administration of justice into disrepute among right-thinking people.
234. The Evidence
235. Abuse of Process
236. In her evidence, Bishnupriya said:
239. 1. that although she knew from her parents that they were " in litigation " with the Trustees, she did " not receive any papers directly " from them, until about 26 March 2025, when she received a letter enclosing a copy of the order made (against her parents, in respect of the Property) on 25 March 2025; she said that she had not received documents in 2023, possibly because they were sent to the 2 nd FF, " where some French students were staying ", rather than to the 3 rd FF;
242. 2. that her father " always said he was dealing with the litigation and that he was going to get it sorted by getting an annulment ", and that although he " copied [her] in on email correspondence, [she] did not read this, as there was a massive volume of material " and because she " thought it concerned [her parents'] bankruptcy, and ? had no idea it was something where [she] was obliged or expected to participate ";
245. 3. that she was accustomed to " relying on [her] father in relation to business matters ", and only attended the first day of the trial on 5 March 2025 to support him; it was only on that day that she " realised ? that things were more complicated than [she] had understood ", by which time she had no way to get her own advice;
248. 4. more generally, not specifically in connection with these proceedings, she said that she had a good personal relationship with her father, and that " because he was a businessman and a business adviser, [she] believed that he was someone [she] could trust to look after and protect [her] interests "; she said that although she was " independent and did not just do what [her father] said in other areas, ? [she] thought that when it came to finance [she] could leave that to him "; she referred also to " cultural factors ", that her father made the family's financial decisions, and that although he always wanted the best for them, it would be " on his terms ".
251. In her statement, Nayantara said:
254. 1. that Mr Bhattacharya " made all of the financial decisions even once we were grown up; he did not share with us more information than he thought we needed to know ", and that because of his training and experience, " my mother, sister and I placed complete reliance on him when it came to business and property issues ";
257. 2. that she was only aware of her parents' financial difficulties " in a very restricted way, as [her] father was very guarded about what he shared with [her]. [She] was sent an email containing court papers which mentioned [her] name and [her] s ister's name, but did not describe [her] as a party. [She] looked at them quickly and then spoke to [her] father about them, as he was a party and the person [she] would rely on for this kind of advice. He told [her that she] need not worry about it, and it was under control "; she " never received any other contact from anyone about the court proceedings until March 2025 ".
260. In his first statement (in response at that stage to Bishnupriya's evidence), Mr Armstrong said as follows.
263. First, he observed that at no point previously had there been any mention of " French students " in occupation of the 2 nd FF; on the contrary, at his private examination on 9 August 2023, Mr Bhattacharya had effectively confirmed that it was occupied by Bishnupriya; accordingly, it was to the 2 nd FF that the Trustees' solicitors sent (under copy of their letter dated 18 December 2023) copies of the applications dated 15 December 2023 pursuant to which the Declaration was ultimately made, and also a copy of the first witness statement of Ms Wright made in support of those applications; the covering letter had stated, " you are receiving copies of the [documents] as you are noted on the [applications] as being a party to whom notice of the [applications] is to be delivered ".
266. Second, he said that Mr Bhattacharya had " consistently copied Bishnupriya into his email correspondence in relation to the ? bankruptcies " and that it " appears clear that it was [his] intention that [she] be kept up-to-date and aware of proceedings "; moreover, that Bishnupriya had herself frequently engaged in email correspondence both with the Trustees' solicitors and also the court; he gave various examples, including an email sent on 3 April 2024, and copied to various others, including her father; David Berkeley KC; Mr Buston of counsel; her sister Nayantara, and a member of the court's staff (to whom specifically it was addressed). That email, which was sent in the name of both sisters, both of whom described themselves as " Owner " of the Property, stated, in full, as follows:
269. > " We are unable to approve the Order Of Deputy Judge Parfit dated 27 March 2024.
270. > It was made clear at the hearing on 22 March 2024 that The respondents are Biraja Pada and Susmita Bhattacharya as a partnership, with Nayantara and Bishnupriya as individual owners.
271. > The trust was created by the creditors, the Bank Of Scotland, and Miss Bishnupriya Bhattacharya, Owner.
272. > The trustees are the partnership of Biraja Pada and Susmita Bhattacharya.
273. > In April 2012, Omni Capital Limited took over the loan from the Bank of Scotland. It was decided that two of the floors should be sold to fit the revised lending criteria Of Omni Capital Limited.
274. > The criteria are as follows, the lenders will loan 67% of GDV to Safeguard Forfeiture of The Property, with the trustees to Safe Guard.
275. > By selling the two floors, Mis Nayantara Bhattacharya became the owner of the ground floor by paying ?750,000 and Miss Bishnupriya became the owner of the third floor by paying ?750,000.
276. > Given these facts, the respondents are Biraja Pada And Susmita Bhattacharya as Partners
277. > Miss Nayantara Bhattacharya Respondent as Owner and Miss Bishnupriya Bhattacharya Respondent as Owner
278. > The court is authorised to vary the dates. The other part of the order is accepted by us as appropriate."
279. The order made on 22 March 2024 by Deputy ICCJ Parfitt, was made on the Trustees' applications of 15 December 2023. The first recital recorded that those applications sought " various orders, including an application for an order for possession and sale of 100 Redcliffe Gardens, London SW19 9HH "; it set out directions down to a 2 ? day trial on the first available date after 1 August 2024. By an application issued on 28 February 2024 (and also listed for hearing on 22 March 2024, although I was told that it may not have been served on the Trustees) Mr and Mrs Bhattacharya had applied to vacate the hearing on 22 March 2024, on the grounds that Mr Bhattacharya had applied to annul his bankruptcy, and that his application was to be heard on 15 April 2024; according to the application itself, signed by the Bankrupts, notice of that application was to have been given to both Bishnupriya (whose address was stated to be the 2 nd FF) and Nayantara, by email; it set out the grounds, beginning, " THE TRUSTEES HAVE APPLIED TO THE COURT ON THE BASIS VACATING THE NTIRE (sic) PROPERTY AND SALE OF THE PROPERTY " and then explaining that the 2 nd FF had been gifted to Bishnupriya, and that each of Bishnupriya and Nayantara had bought a flat using the sum paid by Mrs Ghosh.
282. Third, he said that Bishnupriya had been present at " numerous remote hearings ".
285. Overall, he said that Bishnupriya was " well aware of the Possession and Sale Application and the implications of what it meant for the Bankrupt and for herself ".
288. In his second statement (by which time Nayantara's statement had been made and served) Mr Armstrong explained that the Trustees' applications had been sent to Nayantara by email on 18 December 2023, and that Mr Bhattacharya had " consistently copied [her] into his email correspondence in relation to the ?bankruptcies;" again, he exhibited various examples.
291. On the basis of this evidence, my conclusions are as follows:
294. 1. The Trustees' applications and supporting evidence were sent to Nayantara by the Trustees' solicitors by email on 18 December 2023, and were (she accepts) received by her. She apparently looked at them (at least) sufficiently carefully to ascertain that she was not formally named as a party.
297. 2. It is highly likely that Bishnupriya received the same documents by post at about the same time: by 28 February 2024, the Bankrupts themselves, in their application of that date, stated that Bishnupriya's address was at the 2 nd FF; moreover, whether or not others were in occupation of the 2 nd FF, it is unlikely that a parcel containing the documents (comprising about 700 pages) would not have been passed to Bishnupriya (having been served on her parents and sister, and received by them, at about the same time). In any event, whether she knew at the outset is of no consequence, since from her own email correspondence, it is clear that she had come to know of the proceedings by no later than about 22 March 2024 (which was the first return date).
300. 3. The Trustees' applications referred to Bishnupriya and Nayantara as persons to whom notice was to be delivered, as did the solicitors' covering letter. It would have been obvious that the documents were significant, and concerned matters of law.
303. 4. Furthermore, if not immediately, then certainly before very long (and far in advance of the eventual trial) Bishnupriya and Nayantara, both of whom were well educated, and at that time, aged about 40 and 44 respectively, must have come to know and understand the essential purpose and intended effect of the applications: thus, their own email of 3 April 2024 referred specifically to the order made on 22 March 2024 (on the first return date) and set out various particular (perfectly well expressed) criticisms of it; plainly they knew about the hearing, and they had seen a draft of the order; apart from their various criticisms of its terms -
306. 5. explicitly based in part on their own asserted ownership of the Property - they accepted that the order was in " appropriate terms "; that order, as I have said, set out directions (including for witness evidence) down to the eventual trial and final determination of the Trustees' applications.
309. 6. There was nothing to contradict Mr Armstrong's evidence that Bishnupriya had been present at numerous hearings, and no real or detailed attempt by either Bishnupriya or Nayantara to reconcile their suggested ignorance of the proceedings over a prolonged period, with the fact of their regular involvement in correspondence, at least as recipients.
312. 7. Bishnupriya and Nayantara must therefore have known for at least about a year before the trial, that the Trustees' applications concerned the possession and sale of the Property, and thus concerned and affected their asserted interests in the Property; they must also have known that those interests were in issue, that they were not accepted by the Trustees, and that they were to be determined in and by means of the proceedings; the proposition that they did not know (and for example, that it was only on the first day of the trial that Bishnupriya " realised ? that things were more complicated " than she had previously understood) is manifestly incredible.
316. 8. The consistent evidence of both Applicants was that in matters of business and finance generally, they trusted their father, and were accustomed to relying on him for advice and otherwise. In my view, although (as they well knew) their own asserted interests were affected, that is exactly how they approached and dealt with the proceedings; in other words, they were (and indeed, they gave every appearance of being) willing and content to rely on Mr Bhattacharya to conduct their, and their family's case; to allow him to " fight their battle "; in effect, they decided not to ask or seek to join the proceedings formally, because they saw no need to do so.
319. The Applicants' Substantive Case
320. In summary, in her statement (not made until 16 October 2025), Nayantara described her case as follows. She exhibited no supporting (or indeed any other) documents.
323. 1. At some point before she turned 18 (in 1997), her father told her that " he would be giving me a flat in the Property, for my 18 th birthday ". Whilst she " assumed " that he was refer ring to the 2 nd FF, she " did not make any enquiries "; she was " still very young and ? had no idea what was involved in buying or selling property ".
326. 2. When Bishnupriya turned 18 (in 2001) there was a further family discussion (in circumstances which she cannot recall, and which might have taken place in either England or America, where she then lived, as she still does), in which their father now said that Bishnupriya would be given the 2 nd FF, " because she was there in England and I did not need it yet ". Their father had told them many times that they would share equally in the family's wealth. She said that " instead " she was to " going to be given another flat, on the third floor, that my parents would be acquiring ". In fact, as set out above, the 3 rd FF was not acquired until 22 September 2005. She continued, " There was a later discussion " - although not located by her at any particular point in time - " about me swapping the 3 rd floor flat for the lower ground floor flat, because my parents had acquired that too "; she was not living in England, and was " happy to agree " - she " did not actually need a flat at the time ". According to the records at the Land Registry, the LGFF was never separately owned - it was acquired as part of Property's freehold in 2008. This " later discussion " must therefore have taken place in or after 2008.
329. 3. Nayantara said that she " genuinely thought " that these events and changes were being documented, and had been " shocked " to discover that her sister had, at least for a time, been a co-owner of the registered leasehold interest in the 2 nd FF.
332. 4. When she was in America, her father paid money to her from time to time, but she did not know whether it was in any sense referable to the Property, or any part of the Property, and indeed, she " never checked " - she trusted him to make necessary arrangements.
335. 5. In about 2009, Mr Bhattacharya bought a hotel near Northampton, called " The French Partridge ". Some time later, he told Nayantara and Bishnupriya that he wanted them to be " partners " in the business of the Hotel, and each to have a 1/3 share; they were both appointed directors in about 2013, and for some time, Nayantara (but not Bishnupriya) worked at the Hotel; she does not recall that either of them became a shareholder.
338. 6. As to her acquisition of " another flat " (in addition to the LGFF) she " first heard of the plan " from her father, either when she was in England, or he in America. He explained that Nayantara's Aunt, Mrs Ghosh, was due to receive a substantial sum on the sale of The Gresham Hotel in London, and wanted to give that money to the Applicants. In those circumstances, her " understanding " was that she " would receive the [GFF]" and Bishnupriya would receive the 3 rd FF. She was told by her father that both flats were worth ?850,000, that Mr Ghosh was due to receive ?1.5 million, and that therefore he would take the additional ?100,000 from Nayantara's " share of the French Partridge Hotel ". Eight years later, in about 2020, she was told - albeit without sight of any documents - that The French Partridge Hotel had been sold, and her share had been used to pay the outstanding ?100,000.
341. Essentially therefore, Nayantara's evidence was that at some point before 1997, she was promised (or assumed that she was promised) the 2 nd FF; that instead, at some point in about 2005, she was promised the 3 rd FF; again, that instead, at some point in or after 2008, she was promised the LGFF; and that finally, by virtue of payments made by Mrs Ghosh and from the proceeds of sale of The French Partridge Hotel (albeit not a property or company in which she thought she had any formal interest) her understanding was that she was to be given the GFF; she never saw any documents to confirm any of this, or asked for any.
344. As I have mentioned, in March 2025, at the trial of the case against Mr and Mrs Bhattacharya, it was accepted by them that whilst ownership of the LGFF had been " promised " to Nayantara at some future point, it had never been transferred to her to any degree or by any means, and that it therefore continued to belong to Mr and Mrs Bhattacharya as part of the freehold. Nayantara's case therefore contradicted the case advanced by her parents, the freehold owners, at the trial.
347. In summary, in her statements, Bishnupriya described her case as follows.
350. 1. On her 18 th birthday - which was on 5 March 2001 - she was told by her parents that they were gifting her " a flat " at the Property (which again, I infer to have been the 2 nd FF, where she said that she had been living " on and off over the subsequent years "); her understanding was that a " similar arrangement " had already been made with Nayantara (although she was not involved in their discussions). In fact, that cannot be correct, since in 2001, only the 1 st FF (which has never been said to belong to anyone other than Mr and Mrs Bhattacharya) and the 2 nd FF were owned, so that if the 2 nd FF had been promised to Bishnupriya, it follows that no such similar arrangement could have existed with Nayantara. In her third statement, Bishnupriya retreated somewhat from the position taken in her first; she said that although her recollection was that Nayantara had been given the 3 rd FF, it was possible that this was something she was told subsequently rather than at the time; as I have said, the 3 rd FF was not acquired until 2005.
353. 2. In 2006, Bishnupriya become one of the two registered proprietors of the 2 nd FF leasehold interest (albeit that she was " repeatedly told that the flat was to be " hers alone).
356. 3. In 2007 or thereabouts (in fact, 2008) Mr and Mrs Bhattacharya acquired the Property's freehold, including the Studio, which became part of her flat, the 2 nd FF.
359. 4. In 2008, Mr Bhattacharya explained to her that he wanted to " reorganise " the borrowing against the Property, at which stage , " there was still a mortgage outstanding " on the 2 nd FF; her " understanding " was that Mr Bhattacharya intended to borrow a sum against the newly acquired freehold, and so wanted Bishnupriya and Nayantara both to " surrender [their] leases " (although in fact - I interpose to observe - Nayantara did not formally own, either then or ever, a registered interest in any part of the Property); she continued: " This was on basis we would remain owners of our flats (in my case the [2 nd FF], and in her case the [LGFF]). I understood from what was suggested that there would be no change in substance to my legal rights. I would give up having a separate leasehold title but instead would be entitled to the [2 nd FF] as part of a larger freehold. This would be subject to a mortgage, just as my current flat was still subject to a mortgage." That evidence was not the same as Nayantara's. Nayantara's case was that at some point after the acquisition of the freehold, her interest in the 3 rd FF was " swapped " for an interest in the LGFF; it was not that on the acquisition of the freehold, she gave up or surrendered her prior leasehold interest in the LGFF (which was not in fact at that point owned by the family) in favour of a different interest in the freehold. Bishnupriya's evidence was that she did not sign and does not believe that she saw the Deed of Surrender signed on 19 February 2008 (the day after the freehold was acquired); it was signed by a person acting as her attorney, although she does not recall appointing any such person; she did not speak to the lawyers who acted in respect of the transaction, which she accepted that she agreed, albeit on the basis explained, that she " would be entitled to the [2nd FF] as part of a larger freehold ". In her 3 rd statement, Bishnupriya said that attempts to obtain the files of the solicitors who acted on the surrender had been unsuccessful, but that an invoice had been found, addressed to her parents, but which made no reference to the preparation of a power of attorney. On that basis, she concluded that the person who purported to sign as her attorney, had not in fact been properly appointed at all.
362. 5. In 2012, she was told by Mrs Ghosh that she wanted to give the Applicants ?1.5 million, realised from an investment, and that Mr Bhattacharya proposed that the sum be used to reduce the borrowing on the Property, on the basis that the Applicants would each acquire another flat, rather than being paid the sum itself, as a money payment. Because each flat was worth ?850,000, the Applicants both agreed to pay a further ?100,000 at " a later date to complete the transaction "; from 2012 onwards, Bishnupriya therefore considered herself to be entitled to the 3 rd FF and the 2 nd FF, subject to payment of the outstanding sum.
365. 6. As to that sum, in her first statement, made on 15 April 2025, Bishnupriya said that she had paid ?103,000 in August 2020 (she could not recall the purpose of the additional ?3,000); she exhibited a bank statement which she said recorded the payment; she trusted her father to make any necessary legal arrangements.
368. 7. However, as was subsequently pointed out by Mr Armtrong in his first witness statement, the exhibited bank statement in fact recorded a payment (from Mr and Mrs Bhattacharya) being made on 3 August 2020, to, not by Bishnupriya. She therefore made another statement, her second, on 1 July 2025, in which she said that she had made a " mistake ", and that the sum paid to her was " part of the sale " (previously unmentioned) of The French Partridge Hotel in 2020, from which the Applicants were each due to receive ?100,000, which they both agreed to use to pay the sum outstanding in respect of the two flats; having received payment, she " treated the money as a loan and repaid it over time ".
371. 8. Neither of the Applicants produced any document (or other) evidence to substantiate the allegation either that they were each due to be paid ?100,000 on the sale of The French Partridge Hotel, or indeed, to show that payments had been made to both or either of their parents.
374. Essentially therefore, Bishnupriya's case was that she had been promised the 2 nd FF on her 18 th birthday, in 2001, and had remained solely entitled to it even after she had been registered with her father as a co-owner in 2006; that in 2008 she agreed to surrender her registered leasehold interest but in return for some sort of interest in the freehold; and that as a result of payments made by Mrs Ghosh, and from the sale of The French Partridge Hotel, she had become the beneficial owner of the 3 rd FF.
377. In addition to their own evidence, both Applicants relied on a witness statement made by Mrs Ghosh, on 4 October 2025. She said that she had been an investor in a BVI company that owned The Gresham Hotel in London; when the Hotel was sold, she was entitled to nearly ?1.5 million, which she decided to give to the Applicants. Having spoken to Mr and Mrs Bhattacharya, she decided that the best means of achieving her end was the " sale " to each of the Applicants of a flat for ?850,000, of which she would contribute ?1.5 million, which would be used to reduce the borrowing secured on the Property; she said that she had understood, at the time, that each of the Applicants already owned one flat. She said, albeit without reference to documents, that the sum of ?1.5 million was paid directly to the mortgagee.
380. In the Previous Judgment, I explained (at [27]-[29]) that the letter signed by Mrs Ghosh on 1 August 2020, and the unsigned Deed of Gift dated 1 December 2012, were not consistent with Mr and Mrs Bhattacharya's case. In relation to the letter (which was the only document that she exhibited) Mrs Ghosh's evidence now is that she does " not believe a charge was the right thing to mention, as I did not want to be repaid ?. and did not need security to ensure that was paid back. I wanted the benefit of that money to go to my nieces for their flats "; she said that to the extent that she holds any interest in the Property, she wants it to belong to the Applicants.
383. Mr Armstrong made two statements. Amongst other things, he said as follows.
386. 1. In the questionnaire completed by Bishnupriya on 21 April 2023, she had referred to the payment of ?103,000 received on 3 August 2020, as a loan which was repaid by instalments between 17 December 2020 and 18 July 2021.
389. 2. In the witness statement which she made on 2 May 2023, in response to the Trustees' application against her under sections 366 and 367, Bishnupriya referred to the payment of ?1.5 million said to have been made by Mrs Ghosh, but made no mention at all of the further payments of ?100,000 allegedly made following the sale of The French Partridge Hotel; in fact, she said that the two additional flats had each been bought for ?750,000. The first time (in the long history of these bankruptcies) that the additional payments (and the ?850,000 price) were mentioned was by Mr Bhattacharya during his cross-examination at the March 2025 trial, when he said " there's a statement somewhere to show the ?200,000 we received, and that is ?100,000 from Bishnupriya and ?100,000, Nayantara. The money came from Bishnupriya ". Although no documents were exhibited by the Applicants in respect of sale of The French Partridge Hotel, the Trustees, as part of their investigations, had acquired a copy of a financial ledger report in respect of French Partridge Ltd, which showed payment of the proceeds of sale to Mr and Mrs Bhattacharya on 24 March 2020, in the sum of ?299,358.00.
392. 3. As to French Partridge Ltd, according to the records at Companies House, the Applicants became directors on 25 January 2013, and shareholders in July 2020 (albeit after the sale of the Hotel), holding 150 (Nayantara) and 275 (Bishnupriya) ordinary shares; the company's confirmation statement dated 24 May 2021 showed that Nayantara and Bishnupriya had respectively transferred 85 and 215 of their shares, thus each holding 65 and 60 ordinary shares as at 24 May 2021, at which time Mrs Bhattacharya held 190 ordinary shares and Mr Bhattacharya held 185 ordinary shares. The most recent confirmation statement dated 24 May 2022 showed no updates, meaning that the current shareholding percentage is: Mr Bhattacharya, 37%; Mrs Bhattacharya, 38%; Nayantara, 13%, and Bishnupriya, 12%. That structure does not support the proposition that each of the Applicants was entitled to payment of 1/3 of the proceeds of sale of the Hotel in (or before) March 2020.
395. Discussion
396. In order to succeed in their application under CPR rule 40.9, the Applicants must show that their case would have a real prospect of success at trial; additionally, they must successfully resist the Trustees' submission that regardless of its substantive merits, the application is an abuse of process, and ought to be dismissed.
399. The Substantive Merits: a Real Prospect of Success?
400. The Applicants' case is very similar to that advanced by the Bankrupts in the proceedings that were brought against them by the Trustees; the principal difference was that whereas the Bankrupts accepted that the LGFF belonged to them (having merely been " promised " to Nayantara) it is Nayantara's case that beneficially, it belongs to her. For reasons that I have summarised, I rejected the Bankrupts' case on grounds that I described as " overwhelming "; that is the context in which the Applicants must now show that were there to be another trial, they would have a real prospect of success, a real prospect of showing that notwithstanding the weight of the evidence that supported the Trustees' successful case against their parents, it is realistic to suggest that the court might reach a different conclusion at another trial.
403. In my judgment, for the following reasons, the Applicants have not established prospects sufficient to justify setting aside the Declaration.
406. First, for reasons of a general nature.
409. 1. The mere fact of the Applicants' presence as witnesses at a future trial does not compel the conclusion that their case has any real merit; it does not materially subtract from the other grounds for the previous outcome, grounds which in themselves were amply sufficient to support my conclusions.
412. 2. The Applicants produced no new documentary evidence in material support of their case.
415. 3. The Applicants have not adduced any further witness evidence from either of their parents (and neither was it entirely clear what part, if any, they expected their parents or their parents' evidence to play at a second trial). This point is relevant because the Applicants' case depends, in part, on the court finding that they made certain legally meaningful arrangements with their parents, in circumstances in which their parents' own previous assertion of substantially the same case has been roundly rejected; the Applicants' case thus depends, in part, on the court finding that their parents' rejected evidence should now be accepted; for the Applicants, that is problematic, because for the reasons I explained (see [47] - [48] of the Previous Judgment) I treated Mr Bhattacharya's evidence with " very great caution ", and Mrs Bhattacharya's evidence as an " essentially guileless " acceptance of the case brought against the Bankrupts by the Trustees.
418. 4. For the Applicants, Mr Carter sought to meet this point by saying that the Bankrupts' interests had been in direct conflict with those of the Applicants (as claimants to the same property, rather than claimants in the same interest), and that previously, " until his final annulment application, at which point the true position was more in his interests than the alternative ", Mr Bhattacharya had " said what suited him "; in other words, that until the failure of his third annulment application (at the beginning of the trial) it had been in Mr Bhattacharya's own interests to assert his own (and Mrs Bhattacharya's) ownership of the Property, and to diminish or contradict the claims of the Applicants (which would have reduced the value of his estate); it would therefore be unfair, said Mr Carter, to saddle the Applicants with their father's credibility issues, which were born of the fact of his previous inconsistent statements.
421. 5. For three reasons, I do not accept those arguments to be a complete answer. First, the premise is wrong: as I described in the Previous Judgment, it was not that until the trial, the Bankrupts had consistently and only asserted their own interests and exclusive ownership of the Property - although they certainly had done so, from time to time - but that they had also asserted the Applicants' interests in a variety of different, changing and conflicting ways - see [30]-35] and [43]; in other words, even when attempting to establish the proprietary interests of the Applicants, Mr Bhattacharya's evidence and his case had been expressed inconsistently (and thus unconvincingly). Second, in any event, the Applicants would have to prove their case in the face of the Bankrupts' (numerous) previous inconsistent statements: they cannot simply dismiss them, as if never made. Moreover, at a time when even the Applicants seem to accept that the Bankrupts were seeking to advance the Applicants' interests rather than their own (at the trial), they did not advance a case that the LGFF belonged to Nayantara, or that there had been two payments of ?100,000 made using sums derived from the sale of The French Partridge Hotel. Third, as I have said, there was no new evidence from the Bankrupts to support Mr Carter's argument that they had been acting in their own interests, and against those of the Applicants; there was nothing from them attempting to explain their previous statements.
424. Second, my conclusion is based on certain features of the Applicants' own evidence specifically.
427. Despite the Previous Judgment having been handed down on 14 March 2025, and the Application having been made on 15 April 2025, it was not until 16 October 2025, six months later (one week before it was due to be heard) that Nayantara made a witness statement, which is summarised above at [51]-[53]; that was not "prompt". As to her evidence:
430. 1. First, it was vague and imprecise: she claims to have been promised first, the 2 nd FF (or at least, she assumed that to be the promise), then the 3 rd FF (before it was acquired), and then the LGFF (in respect of which the Bankrupts never held a discrete title); she was unable to locate those discussions securely, whether in time or in place (America or England); none of those claims or promises found a trace in any document, formal or otherwise.
433. 2. Second, even now, her case is not consistent with that of Bishnupriya: (i) Nayantara claims to have been promised the 2 nd FF until about 2005, when it was substituted by the 3 rd FF, whereas Bishnupriya claims to have been promised it in 2001, when she turned 18; there was therefore a period of about four years in respect of which they both seem to claim some sort of right to the 2 nd FF; furthermore, (ii) Bishnupriya's evidence was that on acquisition of the single freehold title, she and Nayantara had both " surrendered " their leases in order to facilitate borrowing, albeit on the basis that they would both remain as owners of their flats (in the case of Nayantara, the LGFF): but that was not the same as Nayantara's case that after the acquisition of the freehold, her interest in the 3 rd FF was " swapped " for an interest in the LGFF (which was not at any relevant time comprised separately in a single title).
436. 3. Third, she made no claim of having acted in reliance on the promise said to have been made in respect of the LGFF, or made any payment/s towards or in respect of it; indeed, in respect of the 2 nd FF, the 3 rd FF and the LGFF, even on her own evidence, she seems merely to have been the passive recipient of her father's assorted promises, made gratuitously, from time to time, and later changed, or withdrawn.
439. 4. Fourth, she was unable to say that she had ever received any benefit from her alleged interests, whether in money or otherwise; she has never lived in either the GFF or the LGFF.
442. 5. Fifth, Nayantara's case in respect of the sum of ?100,000 apparently paid in respect of the GFF, from the proceeds of sale of the French Partridge Hotel, is fraught with difficulty:
445. 64.5.1. there were no documents to support it;
447. 64.5.2. she was not a shareholder of the company that seems to have owned the Hotel until July 2020, well after its sale, and she currently holds only a 13% interest; she appears, even now, to be unaware of ever having been a shareholder;
449. 64.5.3. there was very little ? and indeed, nothing at all from Mr or Mrs Bhattacharya ? to support the suggestion that the Applicants were each somehow entitled to payment of ?100,000 from the sale of The French Partridge Hotel, or that they were treated as having been paid that sum; the suggestion was really no more than a bare assertion;
451. 64.5.4. this was a case that Mr Bhattacharya only mentioned for the first time at trial, during his cross-examination (without reference to the proceeds of the Hotel's sale, or mention of Nayantara as a source of payment) and which had not been mentioned previously, even for example by Bishnupriya in her statement of 2 May 2023, in which she claimed ownership of the GFF. Given the long history of these insolvencies, and given the various previous iterations of a case that the Property belonged in part to the Applicants as a result of sums paid by Mrs Ghosh, this additional, belated allegation was most unconvincing.
453. I bear in mind that although made as a single application, the Applicants are not the same person, and do not assert the same case; their cases must be treated individually. Turning then to Bishnupriya's evidence (inconsistent with that of Nayantara's in the respects outlined above):
456. 1. First, in respect of the payment of ?100,000 said to have been made in respect of her acquisition of an interest in the 3 rd FF, in addition to the issues explained above at 64.5, Bishnupriya had a further significant problem, caused by the fact of having dramatically changed her case: in her first statement, made with a statement of truth, she said that the sum was paid by her to her parents in August 2020, and she exhibited a bank statement; she then " corrected " that evidence in her second statement (it having been pointed out by Mr Armstrong that the payment in question was a receipt) in which she said that the sum due to her from the sale of the Hotel was paid to her parents and then to her (in August 2020) and that the additional ?100,000 was in effect paid by her, over time, by instalments. In the circumstances of a matter in which the Applicants' interests have been asserted inconsistently, and in which this particular allegation was made so belatedly (despite its close relationship with the case based on payment by Mrs Ghosh, which (albeit again, inconsistently) has been advanced over a period of years), it is concerning that Bishnupriya could give such radically inaccurate evidence; inevitably, the fact of having done so tends seriously to weaken her credibility.
459. 2. Second, Bishnupriya's evidence in respect of the signature on the Surrender contained an internal tension, which again caused me some reluctance to accept it. Whilst she freely acknowledged that she agreed to surrender her joint (not sole) interest in the leasehold title in respect of the 2 nd FF, albeit (on her case) not without gaining a an (apparently expanded) interest in the freehold, she went much further in her third statement, and effectively (without any real basis) accused the solicitor who signed on her behalf of having acted without any authority at all - of having " just signed this document stating they were my attorney "; that is a very serious allegation to have made without a proper foundation (based only on the fact that an invoice which her present solicitors have obtained apparently made no reference to preparation of a power of attorney - that may be so, but it does not support the serious allegation said to follow, that the solicitor's act was " completely wrong and it shocks me that it could happen ").
462. Finally, both Applicants rely on the evidence of Mrs Ghosh (in a statement not made until 4 October 2025). As to that evidence, there remains very little of any substance to meet the point that I made at [44] of the Previous Judgment, that " the evidence was insufficient either to show what in fact happened, or that [the Applicants] acquired an ownership interest of some sort ". There is no evidenced explanation of the Deed of Gift - which made no reference whatever to the Property - and the signed letter (created before these proceedings began) was in terms explicitly inconsistent with the Applicants' case. Her evidence, that she was told by Mr Bhattacharya (in 2012) that there were two flats in the Property " worth around ?850,000 each ", in respect of which ?1.5 million could be paid by her, and that the Applicants " could pay the rest of the money for the flats from other money that was going to be paid to them ", raises further unanswered questions, given that the Hotel was not sold until eight years later.
465. Finally, I note that although the point was raised at [45] in the Previous Judgment, there was still no real explanation of how a trust might come to exist in relation to particular parts of a physical building (the separate flats) the whole of which was comprised in a single freehold title (as opposed to a % share in the whole).
468. In all the circumstances, I am not satisfied that the Applicants have established that either of them would have a real prospect of success were the matter to be relitigated. There has been a trial, involving oral evidence given by two witnesses central to the issue; the evidence was overwhelmingly in favour of the Trustees' case. In those circumstances, in order to show a real prospect of success at another, future trial, such as now to justify setting aside the Declaration, the Applicants must advance a case of real cogency, based on grounds of substance. However, there are no new documents, and no further evidence from the Bankrupts; the evidence contained in the Applicants' statements, and in that of Mrs Ghosh, whilst of course additional to that which was before the court at the trial in 2025, was not, in my judgment, sufficiently substantial, credible and coherent to enable the Applicants to meet the relevant test under CPR rule 40.9.
471. This remains a case in which, in the context of a close-knit family - as Mrs Bhattacharya in effect accepted at the trial - the parents understandably gave their daughters to understand, by a variety of different expressions, spoken on different occasions, that at some future point, their wealth would come to be shared fairly between them; those understandings were of no legal consequence.
474. Abuse of Process
475. In any event, even if I am wrong about the merits of their case, in my judgment, the Application is an abuse of process.
478. As I have explained, the Declaration was (by agreement between the parties) a judgment in rem, and plainly therefore a res judicata, regardless of whether the Applicants were their parents' privies. The real question was whether the Application (and the further proceedings which it contemplated) were an abuse of process: whether it would be manifestly unfair to the Trustees to set aside the Declaration and allow further litigation, and/or whether to do so would bring the administration of justice into disrepute among right thinking people.
481. Although for the purposes of abuse, it is not necessary to show privity of interest between the Applicants and the Bankrupts, it is not necessarily an irrelevant factor. In that regard, in my view, although the connections between them were strong and numerous, and their interests very closely aligned, there was no privity of interest as such (and the Nana Ofori principle is inapplicable).
484. 1. First, it cannot be said that there was community of identity: put simply, the Applicants are not their parents; neither is this a case in which it could be said that " in reality " the parties the same, as for example, in cases such as Secretary of State for Business, Innovation & Skills v Potiwal [2012] EWHC 3723 (Ch), in which privity was found to exist between a director/shareholder and his company.
487. 2. Second, neither can it be said that there was a true community of interest: in this sense, the alleged interest of the Applicants, as co-owners, is not the same as that of the Bankrupts, whose own separate interests vested in the Trustees (the point made by Robert Walker LJ in Skyparks); the Applicants and the Bankrupts held, allegedly if not in fact, different and in principle competing interests in the same property. It follows that the principle in Nana Ofori is not strictly applicable, because it cannot be said that the Applicants stood by and allowed their battle to be fought by someone else - the Bankrupts - " in the same interest ".
490. 3. It follows that were the Declaration a judgment in personam, it would not comprise a res judicata against the Applicants; re-litigation would not offend against the foundational principle that " a man ought not to be allowed to litigate a second time that which has already been decided between himself and the other party " (per Megarry V-C in Gleeson).
493. However, in my judgment, the Application is nonetheless an abuse of process, and for that reason (in addition to the Applicants' failure in any event to meet the test under CPR rule 40.9) should be dismissed.
496. As explained above, abuse of process is a concept untrammelled by the technicalities of res judicata; the circumstances in which it arises are very varied; it requires the court to make a " broad merits-based judgment ", and to ask itself whether in all the circumstances, a party's conduct comprises an abuse, taking into account the interests of justice, public policy and the private interests of the parties.
499. In the circumstances, and for the following reasons, the Application is abusive.
502. 1. On the evidence, as I have found at [50] above, the Applicants knew about the proceedings, and knew their purpose and intended effect; they knew that they concerned and affected their asserted interests in the Property, and they knew that those interests were in issue and were to be determined. Despite all of that and despite having ample opportunity to do so (and whilst I accept that they could have been joined by the Trustees), they decided not seek to join as parties, or even to suggest joinder, because they saw no reason to do so; they were content to allow their parents to argue their case - to fight their battle for them.
505. 2. Mr and Mrs Bhattacharya were of course bankrupt: their own rights in the Property had vested in their Trustees, who stood in their shoes, represented their estates, and advanced a case to establish the extent of those rights; Mr and Mrs Bhattacharya are insolvent; they themselves had no remaining economic interest in the Property; it follows that the case which they advanced against the Trustees was really for the benefit of Applicants. In other words, although strictly the interests of the Bankrupts and of the Applicants were different, the Bankrupts, having lost their own rights, unambiguously argued for those of the Applicants.
508. 3. Bankruptcy is a compulsory, collective process of asset realisation and distribution; if a person, in full knowledge of that process, claims to be a creditor or to be the beneficial owner of property previously held by the insolvent and now vested in the trustee, then it is incumbent on him to participate, and in the course of that process to assert those rights and claims, or otherwise to risk their determination against him. The present Application is not simply a further instance of the Applicants merely defending themselves, the Trustees having always been " in the driving seat ": it is a claim positively but (by the Applicants, rather their parents) only very belatedly advanced.
511. 4. The issues raised in the proceedings were hotly disputed, and were litigated to trial, at some cost; the Bankrupts were represented (if not continuously, then certainly for some time, including at trial) by counsel; moreover, the trial involved a final determination of the parties' rights (unlike for example, Dua and Skyparks, in which the previous proceedings did not, or were not necessarily designed, finally to determine the parties' interests).
514. 5. If the Declaration were to be set aside, there would have to be a second trial of similar length and conducted at significant cost, both to the Bankrupts' creditors and to the public, allocating the court's scarce resources to the determination of issues already once determined. Moreover, as I have explained, the Applicants have not adduced new evidence of any real materiality.
517. 6. In the circumstances, the Application is abusive: to allow it to succeed, and to allow the Applicants to re-litigate that which has already been litigated and decided (having stood by, but now armed with the advantage of having been told in a judgment the flaws in their case) would be unfair to the Trustees (representing the interests of the Bankrupts' creditors in an insolvent estate) and would bring the administration of justice into disrepute among right thinking people.
520. For the reasons explained in this judgment, the Application will be dismissed.
523. Date: 30 March 2026

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