Abuse of Process

09 Jan

I apologise in advance that this blog is a bit longer than normal as I feel a legal history lesson is needed to give the reader some context. If you want to skip to the good bit then I suggest you simply read the last paragraph for the practical part!

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I apologise in advance that this blog is a bit longer than normal as I feel a legal history lesson is needed to give the reader some context. If you want to skip to the good bit then I suggest you simply read the last paragraph for the practical part!

What happens when a party tries to bring further claims relying on matters which could have formed part of the original claim but chose not to? The basis for the modern abuse of process doctrine as applied in civil litigation comes from the 19th Century and is found in the case of Henderson v Henderson [1843] 3 Hare 100 PC, which laid down the following principle:

"... where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of a matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time..."

In Johnson v Gore Wood & Co [2000] UKHL 65, the House of Lords over 150 years later summarised the position as follows (my underlining):

"... Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by 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 the 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 earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element, such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involves what the court regards as unjust harassment of a party. 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 in my opinion be a broad, merits-based judgement which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a part's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances..."

This guidance was re-visited by the Supreme Court in the case of Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 which had this to say about Henderson v Henderson:

"Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court's procedural powers... they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation..."

I have tried to summarise the important points which arise from the case law:

  1. The central issue which the Tribunal must address is why the facts and matters were not raised in the first claim.
  2. The party alleging abuse of process must show that the facts or matters were known at the time.
  3. The Tribunal must decide whether the facts and matters will necessarily have to be determined when considering the later claims.
  4. It is not a special circumstance that the Claimant's lawyers gave the wrong advice.
  5. Finally and crucially, there must be 'abuse'. Simply raising an issue you could have done earlier in subsequent litigation is not, in and of itself, enough to amount to abuse of process.

In London Borough of Haringey v O'Brien [2016] UKEAT 0004 the Claimant brought a second claim after the conclusion of her first claim. It was against the same Respondent and included some matters which predated the original claim and other matters which had arisen after the first claim was issued but prior to the hearing. The Respondent raised the defence of abuse of process and succeeded in part in the Employment Tribunal.

The Employment Appeal Tribunal approved of the approach of the original Tribunal when assessing abuse of process. The Tribunal properly had regard to all the circumstances and sought to understand the reason for the Claimant's failure to include the matters in the earlier claim. It took account of the additional time required to address the issues, the fact that the Claimant had received advice and the fact that the Respondent was no longer able to give crucial evidence on behalf of the Respondent. The Tribunal ruled that any matters which arose prior to the claim being issued would be struck out.

The Tribunal took a different view on matters that post dated the issuing of the claim. This, the Employment Appeal Tribunal held, was an error. Applying Prakash v Wolverhampton City Council UKEAT/0140/06 [this case allows the Claim Form to be amended to include matters which have arisen since the claim was issued] it held that the Claimant could and should have applied to amend to include these matters. The Henderson v Henderson principles applied to all issues which arose prior to the final hearing of the original claim.

What O'Brien means in practice is that a Claimant may well find that all or part of a second claim is barred if it includes matters which could and should have been added by amendment to the original claim even though events post date the issuing of the first claim. It may be that this case will have limited impact due to its particular facts nevertheless to be safe advisors should ensure that they promptly seek to add further matters as they arise after a claim has been brought rather than risk losing those claims to an abuse of process argument.

Peter D

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