In JSC BTA Bank v Ablyazov & Ors, the bank applied for a final charging order over a property. The ownership of the property had been in dispute in earlier proceedings in which Ablyazov (A) denied he was the beneficial owner and that it was owned by S. S (who was not a party to the proceedings) gave evidence to that effect in the earlier proceedings. However the court disbelieved him, holding that A was the owner.
S appeared in the current proceedings to oppose the final charging order on the basis that he, not A, owned the property.
The bank argued this was a collateral challenge to the findings in the earlier proceedings which would be an abuse of process bringing the administration of justice into disrepute if allowed. S claimed his application was not an abuse of process as he had not been a party to the earlier proceedings.
The High Court held a collateral challenge could still be an abuse of process where the person challenging had been a witness, and not a party, to the proceedings. The issue in the final charging order application as to ownership was the same as had been considered in detail over a number of days in the earlier proceedings in which S had given evidence and had been disbelieved. The court considered it was improbable that there was further evidence relating to ownership that had not already been before the court and had been rejected.
S's opposition was a collateral attack which would bring the administration of justice into disrepute. The final charging order was granted.
Things to consider
The fact that it is a witness, and not a party, who is making the collateral attack will be taken into account by the court when deciding whether the application will bring the administration of justice into disrepute.