Bhattacharya v Armstrong: abuse of process bars daughters' bid to reopen property declaration
Daughters who knowingly stood back during bankruptcy proceedings cannot seek to relitigate their parents' defeated beneficial interest claims.
The High Court has dismissed an application by two daughters seeking to set aside a declaration that trustees in bankruptcy were legally and beneficially entitled to a large Victorian property in Chelsea, holding that the application was both without real prospect of success and an abuse of process.
In Bishnupriya Bhattacharya & Anor v Robert Armstrong & Anor [2026] EWHC 759 (Ch), ICC Judge Greenwood refused to reopen a March 2025 declaration made in favour of the joint trustees in bankruptcy of the applicants' parents, Mr and Mrs Bhattacharya. The property in question — 100 Redcliffe Gardens, London SW10 — comprised six separate flats held under a single freehold title. The bankrupts had argued unsuccessfully at trial that their daughters held beneficial interests in several of those flats, partly through resulting trusts arising from a £1.5 million payment made by their aunt, Mrs Ghosh, and partly through an alleged constructive trust following the surrender of a leasehold interest in 2008.
The daughters applied under CPR r.40.9, which permits a non-party directly affected by a judgement or order to seek its variation or discharge. The court accepted that both were directly affected. However, the judge concluded that neither ground for relief was made out.
On the merits, the applicants' case closely mirrored the rejected case of their parents, without the addition of any new documentary evidence. Bishnupriya's credibility was significantly undermined by a material change in her account of a £100,000 payment she had initially sworn — incorrectly — was made by her, when bank records showed it was made to her. The court noted that Mrs Ghosh's witness statement still failed to reconcile a signed letter from 2020 with the constructive trust case being advanced, and that no satisfactory legal basis had been articulated for imposing a trust over specific flats within a single unitary freehold. Nayantara's evidence was vague, internally inconsistent with her sister's, and contradicted the case that her own parents had advanced at trial — including the accepted position that the lower ground floor flat had never been transferred to her at all. The court was not satisfied that either applicant had demonstrated a real prospect of success at a further trial.
On abuse of process, the judge held that the declaration constituted a judgement in rem, and so was plainly a res judicata regardless of whether the applicants were their parents' privies. The more significant question was whether setting it aside would be manifestly unfair to the trustees or would bring the administration of justice into disrepute.
The judge found that both applicants had known, well in advance of the trial, that the trustees' application concerned the possession and sale of the property and directly engaged their asserted interests. An email sent jointly by both sisters in April 2024 — articulating specific proprietary claims and objecting to a directions order — made the position plain. They had nonetheless chosen not to seek joinder, content to allow their father to conduct the litigation on the family's behalf. Although the court stopped short of finding formal privity of interest — noting, following Skyparks, that the bankrupts and the applicants held different and in principle competing interests — it was satisfied that the practical reality was that the bankrupts had argued the applicants' case for them. To permit re-litigation now, with the benefit of a detailed judgement identifying the weaknesses in that case, would be unfair to the trustees representing the creditors of an insolvent estate. The application was dismissed accordingly.
The case reinforces that the court's jurisdiction under r.40.9 is not a route by which those who deliberately stand back from proceedings affecting their interests may obtain a second opportunity, and that the abuse of process doctrine operates independently of, and is not confined by, the technical requirements of res judicata.
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