Abuse of Process

November 8th, 2023 by James Goudie KC

To what extent, if at all, can a claim, which is in time, and found to be arguable on the merits, be struck out as an abuse of process, because of what was said (or not said) at an earlier hearing in separate but unrelated proceedings? That was the issue before the Court of Appeal in ORJI v NAGRA (2023) EWCA 1289. The Court addressed the rule in HENDERSON v HENDERSON and found that it was not applicable.

The principle in HENDERSON v HENDERSON is that there is an underlying public interest that there should be finality in litigation. A party should not be ??? time in the same matter. This public interest is reinforced by the public interest in the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings, may, without more, amount to abuse if the Court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should be 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, focussing attention on the crucial question whether, in all the circumstances, a party is missing or abusing the process of the Court, by seeking to raise before it the issue which could have been raised before.

HENDERSON v HENDERSON is primarily concerned with a party seeking to raise in subsequent proceedings an issue which had either already been decided in earlier proceedings, or which could and should have been raised in those earlier proceedings. However, it is not necessary for there to be two different sets of proceedings for the rule to apply. If a single set of proceedings involved a binding determination at an earlier stage, then the rule in HENDERSON v HENDERSON may apply to subsequent stages of the same litigation. It follows, says the Court of Appeal at paras 44-47 and 81-85, that the rule in HENDERSON v HENDERSON can apply, not only to one set of proceedings, but to earlier interlocutory decisions in those proceedings. However it is crucial to remember that, whenever it arises, the rule in HENDERSON v HENDERSON requires a previous determination by the Court. It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process. The principle does not arise if there has not been a previous adjudication by the Court.

The essence of the principle, like other aspects of res judicata, is that once a particular matter has been determined by a Court, that may preclude a party from having a second go. Or to put it in colloquial terms a litigant is entitled to their day in Court, but once they have had it, is not in general entitled to a second bite of the cherry.

Thus where a party has prosecuted a claim to judgment that may preclude them from bringing a second action raising the same cause of action, or re-litigating a particular decided issue (cause of action or issue estoppel); it may preclude further damages being claimed for the same cause of actions; or cause a merger of the cause of action in the judgment; or – and this is the distinctive feature of HENDERSON v HENDERSON abuse – it may render it abusive for a party not only to litigate an issue that has already been litigated but an issue that has not previously been litigated, if it could and should have been raised in earlier proceedings. The underlying justification for all these principles is similar: once a claim has been determined, that (subject to appeal) should be that; and the other party should not be put to the trouble of having to defend themselves twice. The effect of the HENDERSON v HENDERSON principle is that this is capable of applying not only where a litigant seeks to run exactly the same point but also a different one, so long as the new point really ought to have been taken, if it was to be taken at all, first time round.

The cases show that the HENDERSON v HENDERSON principle is a very flexible one. The doctrine can apply even though the second claim is brought by a different party. Whether in any particular case the second claim is abusive depends upon whether it not only could but should have been brought first time round. That requires a broad, merits-based, judgment.

What all the cases have in common is that the second claim is an attempt to reopen something that has already been decided. That is where the abuse lies. That does not mean there must have been a trial of the first claim. The principle is capable of applying if the previous proceedings have been settled by agreement. A settlement by the parties is just as much a final resolution of a claim as a judgment by a Court, and it can be just as abusive to seek to circumvent it by putting forward a second claim. The principle is also capable of applying where there has been an interlocutory decision in the very same proceedings. But if there has not been any previous decision, there is nothing for the principle to bite on. It cannot be said that a litigant is being abusive in seeking to have a second bite at the cherry if they have not yet had their first.

Comments are closed.