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Ask James Mather Your Own Question
James Mather
James Mather,
Category: Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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what is a working definition of an abuse of process and what

Customer Question

what is a working definition of an abuse of process and what case contains that definition?
Submitted: 5 years ago.
Category: Law
Expert:  F E Smith replied 5 years ago.
Good evening

Can you explain your position more?
Customer: replied 5 years ago.

i want to argue that to file an affidavit saying A is true gain an advantage and then file another affidavit saying B (incompatible with the facts of A) is an abuse of process

Expert:  F E Smith replied 5 years ago.
Thank you.

Who has filed the affidavit? In what circumstances?
Customer: replied 5 years ago.

in proceedings a party has filed an affidavit to say X is not a shareholder and now says that X is a shareholder for the purpose of guarnishing certain dividends i wish to argue that having said X was not a shareholder and succeeded on those facts it is an abuse for that same litigant to guarnish those dividends

Expert:  James Mather replied 5 years ago.

I have been asked to lok athis for you.

This isnt abuse of process, it is merely conflicting evidence.

In which case you can ask court to strike them both out. It also throws all the other evidence into doubt from that party. Can I help further?

Customer: replied 5 years ago.

but they got a result the first time and i cant ask the court to throw that evidence out as that case is over done the evidence was that X did nto won shares in a company having filed that evidence and suceeded they now file conflicting evidence say my client owns the shares and seeks to guarnish money based on that new evidence ( she is the owner) they not abusing the court process by filing evidence that conflicts with earlier evidence that is why i wanted a working definition of what is abuse of process

Expert:  James Mather replied 5 years ago.

Can you let me know the facts behind the cases, please?

Customer: replied 5 years ago.

my client (A) is a minority shareholder in a private company. she applies to the court for an order allowing her to bring a derivative action. the respondents say that her ownership pf the shares is in doubt sa she has signed a trust deed. that application is dismissed.


my client is condemned in costs in another case which she brought against the company and ors. the company declares a dividend and asks the court to guarnish the dividend to satisfy the costs.


i think it must be arguable that since the company perviously said she was not the owner or her ownership is in doubt then to now say she is the owner to get the dividends is an abuse of process.



but all is am saying is that i need a definition of an abuse of process to allow me to argue that if a liltgant says one thing in court then to say another for the purpose of gaining a benefit is an abuse of process?

Expert:  James Mather replied 5 years ago.

What is your interest in this?

The facts are still very sketchy.

I assume that you mean Garnishee.

So for the puposes of the 1st action she didnt want to be the owner of the shares, but now she does for the current action.

I assume that the court accepted the evidence that she wasnt the owner in the 1st case or did it not?