A - Abuse of process
6/11/23
ORJI v NAGRA [2023] EWCA Civ 1289
Reviews the principle in Henderson v Henderson (1843) limiting re-litigation of issues that have been, or should have been, raised in earlier proceedings [44], and principles of abuse of process in circumstances of dishonesty/deception, oppression and delay [60]. On the facts, the Henderson principle was not engaged because there had been no relevant prior determination, nor were the elements of abuse made out.
17/6/20
SAINSBURY’S SUPERMARKETS LTD v VISA EUROPE SERVICES LLC [2020] UKSC 24
A fee (MIF) payable to a card issuer under the rules of Visa and MasterCard payment schemes, had the effect of restricting competition in breach of article 101(1) of the Treaty on the Functioning of the European Union and ss 2 and 9 of the Competition Act 1998. The MIF is passed on to retailers who have no ability to negotiate the fees down, so the fees are determined by collective agreement rather than competition. Considers principles of assessment of loss [194]. The extent to which the retailers mitigated their loss by passing-on the MIF to suppliers and customers could only be a matter of estimation. The law does not require unreasonable precision in proof of the amount [225]. Having held that the trial judge was wrong to find the MIF was exempt under article 101(3), the Court of Appeal should not have remitted that issue for reconsideration. To do so would allow re-litigation which is contrary to the principle of finality in litigation [240].
8/6/20
TINKLER v FERGUSON [2020] EWHC 1467 (QB)
Considers when proceedings will be struck out as an abuse of process involving re-litigation or a collateral attack on an earlier judgment [34], or where litigating the claim will yield no tangible or legitimate benefit [46].
15/5/20
ELU v FLOORWEALD LTD [2020] EWHC 1222 (QB)
The court struck out proceedings in which it was claimed that an earlier judgment had been obtained by fraud. The court reviewed the principles of res judicata and abuse of process [87] and the application of these principles where a judgment is alleged to have been obtained by fraud [105]. There must usually be fresh evidence which was not known at the time of trial [153]. There may be exceptional cases where the evidence of fraud is known but cannot be deployed [156] but here the facts were known at the time of the trial. The claim was barred by res judicata and was an abuse of process.
5/2/20
GOLDMAN v ZURICH INSURANCE PLC [2020] EWHC 192 (TCC)
Claims would not be struck out as an abuse of process because the court was not satisfied that they could and should have been raised in earlier proceedings between the same parties.
28/5/19
BARCLAYS BANK PLC v MARSDEN [2019] EWHC 3741 (Comm)
A customer’s swap mis-selling against a bank was a contingent claim which would be the subject of set-off in the customer’s bankruptcy under s 323 Insolvency Act 1986 but it was an abuse of process for the customer to raise the issue after having previously done so in earlier proceedings.
15/1/19
HUGHES JARVIS LTD v SEARLE [2019] EWCA Civ 1
A judge had wrongly committed a party for contempt and struck out a case on grounds that a fair trial was not possible because the party had wrongly discussed the case during an adjournment and whilst giving evidence. The obvious sanction open to a judge who discovers that a witness has communicated with some third party about his evidence during the course of the trial is to ascertain what was discussed and, if appropriate, to discount or give no weight to the evidence. The court considered principles applicable to striking out on grounds that a fair trial is not possible [43]. The incident had not justified the exercise of the power.
11/1/19
DEANSGATE 123 LLP v WORKMAN [2019] EWHC 2 (Ch)
Considers applicable principles of abuse of process in circumstances where it is alleged that a claim should have been brought in earlier related proceedings [23]. On the facts it was not an abuse to make an application to set aside a transaction under section 423 Insolvency Act 1986 (transactions defrauding creditors) after the court had held the in earlier proceedings that the transaction was valid and effective. Although there would be a degree of overlap in the evidence, the issues were not the same and the applicants had given sufficiently early indications of their intention to pursue the applications under s 423.
30/10/15
KOTONOU v NATIONAL WESTMINSTER BANK PLC [2015] EWCA Civ 1106
Claims struck out for abuse of process. Applicable principles reviewed [42].
20/3/15
SOCIETY OF LLOYDS v NOEL [2015] EWHC 734 (QB)
Extended civil restraint order made.
11/2/15
GARNHAM v MILLAR [2015] EWHC 274 (Ch)
Claim struck out as an abuse of process. Extended civil restraint order made.
6/2/15
JACKSON v THOMPSONS SOLICITORS [2015] EWHC 218 (QB)
Contains a useful summary of the law as to bias [14] and the torts of abuse of process [27], causing loss by unlawful means and unlawful means conspiracy [30], procuring a breach of contract [33] and deceit [36]. Claims that the defendant induced an ATE insurer to avoid cover and procured the failure of an application for a group litigation order failed on the facts.
15/4/14
GAYDAMAK v LEVIEV [2014] EWHC 1167 (Ch)
A new claim involving the same point raised in earlier proceedings but from a different angle, was barreed by issue estoppel because it could and should have been raised in the first proceedings.
11/4/14
CALDERO TRADING LTD v BEPPLER & JACOBSON LTD [2014] EWHC 1142 (Ch)
It was not an abuse of process for a claim to be pursued to enforce a contractual right to reimbursement despite earlier proceedings between the parties, because in those earlier proceedings the right had been acknowledged and had not been in issue.
28/3/14
LITTLEWOODS RETAIL LTD v REVENUE & CUSTOMS COMMISSIONERS [2014] EWHC 868 (Ch)
In a claim for an indemnity for overpaid VAT, the court considered the application of the principles of issue estoppel, the extent to which companies in the same group are to be regarded as privies [214], contractual estoppel [229], and abuse of process [243]. The court held that the loss of use of the overpaid tax should be compensated by an award of compound interest.
28/2/14
JCA BTA BANK v ABLYAZOV [2014] EWHC 455 (Comm)
There was no issue estoppel preventing the bank from seeking a declaration that the defendant was the beneficial owner of shares against which the bank wished to enforce judgments. Although the bank had failed to establish this in committal proceedings, that had been determined on the criminal standard and since then the bank had adduced new material which it relied on to show the defendant had adduced untrue evidence.
4/2/14
GRIFFIN v JUDICIAL CONDUCT INVESTIGATIONS OFFICE [2014] EWCA Civ 66
Application for permission to appeal against a civil restraint order refused.
14/11/13
EMERY v WANDSWORTH LBC [2013] EWHC (QBD)
The court refused to discharge a civil restraint order made against a vexatious litigant following numerous unsuccessful applications against a local authority for evicting her.
5/11/13
ARTS & ANTIQUES LTD v RICHARDS [2013] EWHC 3361 (Comm)
A claim was struck out as the issues had been decided in arbitration proceedings, even though the defendant had not been a party to the arbitration.
12/9/13
WEST v TAYLOR-DUNCAN [2013] EWHC 4394
Extended civil restraint order made against claimant who had persistently issued claims and made applications which were totally without merit.
31/7/13
PRICE v NUNN [2013] EWCA Civ 1002
The court summarised the principles of cause of action estoppel, issue estoppel and res judicata [67].
3/7/13
VIRGIN ATLANTIC AIRWAYS LTD v ZODIAC SEATS UK LTD [2013] UKSC 46, [2014] AC 160
Considers the inter-action between the principles of res judicata, issue estoppel and abuse of process [17]. On the facts there was no issue estoppel preventing the appellant from relaying on the invalidity of a patent in proceedings for the assessment of damages.
13/6/13
CRAWFORD ADJUSTERS v SAGICOR GENERAL INSURANCE (CAYMAN) LTD [2013] UKPC 17
A claimant had not committed the tort of abuse of process because he could not be said to have had no intention of bringing the action to trial. But the claimant was liable for the tort of malicious prosecution, which includes bringing a civil claim which you know to be bad and which results in damage to the defendant’s reputation, person, liberty, property or finances.
17/5/13
JSC BTA BANK v ABLYAZOV, EWHC (Comm)
In contempt proceedings it had been held that the defendant was the beneficial owner of a flat rather than a witness who had claimed to be the owner. On an application for a charging order the same witness was not entitled to claim to be owner of the flat. The principle that it is an abuse of process to make a collateral attack on a judgment can extend to witnesses as well as parties.
12/4/13
RESOLUTION CHEMICALS LTD v H LUNDBECK A/S [2013] EWHC 739 (Pat)
Considers when there is sufficient privity of interest between companies to make it an abuse of process for one company to litigate the same issue as previously litigated by another company. The mere fact that the companies were in the same group and under the same control was not of itself enough. Nor is it enough that one company has a direct commercial interest in the outcome.
29/1/13
BARNETT v NIGEL HALL MENSWEAR LTD [2013] 91 (QB)
A claim was struck out for abuse of process where the same claim, previously brought in the name of a company, had been struck out on the basis that the company had no standing to bring it. It was necessary to carry out a balancing exercise adopting a broad merits based approach taking into account the extent to which the claimant’s conduct could be characterised as unjust or oppressive and any deterioration in the defendant's commercial or financial circumstances. It was unjust to permit the second claim when the claimants, or their legal advisers, took no steps to respond to the first claim, had not explained why, and the defendant could not now afford legal representation.
22/1/13
BANK OF SCOTLAND PLC v WATSON [2013] EWCA Civ 6
A defendant was refused permission to amend her defence to plead a counterclaim of dishonest assistance in breach of trust based on events which occurred more than 6 years previously The proposed amendment included new claims which could not properly be regarded as arising out of substantially the same facts as the claim already made within CPR r 17.4 and s 35 Limitation Act 1980. The court considered differences of judicial dicta as to what constitutes a new claim for this purpose. The fact that the defendant had previously brought a claim on similar grounds would not have made it an abuse of process to counterclaim in these proceedings because the earlier claim had been struck out without a decision on the merits.
18/1/13
GLADMAN COMMERCIAL PROPERTIES v FISHER HARGREAVES PROCTOR [2013] EWHC 25 (Ch)
Marketing agents could not be liable to the claimant for misrepresentations alleged to have been made in sales particulars because the claimant had previously settled a claim against the vendors for whom the agents had acted. The vendor, as principal, and the agents would have been liable as joint tortfeasors’ for any such misrepresentations, and the release of the claim against the vendors released the agents too because there was no express or implied reservation of rights against the agents. If the agents and the vendors had only been concurrently (not jointly) liable for the same damage, the payment made under the settlement would not have been regarded as fully satisfying the claimant’s loss. But in any event the claim against the agents was also an abuse of process because it could and should have been brought in the earlier action.
18/1/13
FABB v PETERS [2013] EWHC 296 (Ch), [37]
A general civil restraint order was made against an individual who had persisted in making applications which were totally without merit.
21/9/12
MICHAEL WILSON & PARTNERS LTD v SINCLAIR [2012] EWHC 2560 (Comm)
It was an abuse of process to bring a claim on the basis of factual allegations which had been determined against the claimant in an arbitration.
29/5/12
SPICER v TULI [2012] EWCA Civ 845; [2012] 1 WLR 3088
Dismissal of a possession claim by consent did not give rise to an issue estoppel or abuse of process preventing a second possession claim from being pursued in circumstances where there had been no judgment on the merits and the claimant had made it known to the defendant that it was not the claimant’s intention to abandon the claim.
24/2/12
EDGERTON v EDGERTON [2012] EWCA Civ 181
A final High Court order as to the ownership of assets created an estoppel binding on the parties to the proceedings. It made no difference, other than in exceptional circumstances, that the order was a consent order made without a trial and was a default order in relation to one of the parties.
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