References: (1843) 3 Hare 100, [1843] EngR 917, (1843) 67 ER 313
Links: Commonlii
Coram: Sir James Wigram VC
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule of the Court correctly when I say that, 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 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 judgment, 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.’
This case is cited by:
- Applied – Wain -v- Sherwood & Sons Transport Ltd CA (Times 16-Jul-98, Gazette 24-Jun-98)
Plaintiff, having succeeded in claim for damage to his car, was subject to an action estoppel, since he could have had the additional claim for personal injury damages settled at the same time. A mistake by his adviser which fell short of being . . - Cited – Time Group Limited -v- Computer 2000 Distribution Limited and IBM United Kingdom Limited TCC (Bailii, Bailii, [2002] EWHC 126 (Technology))
Computers had been supplied by the second defendant to the claimant and first defendant at different times for exclusive distribution in the UK. Defects were alleged. The case concerned applications made for dismissal of a case as an abuse of . . - Cited – Ansari and Another -v- Barclays Bank Plc CA (Bailii, [1997] EWCA Civ 3055)
The appellant sought leave to appeal an order striking out their claim against the bank. There had been considerable litigation. They had executed charges supporting personal guarantees, in support of loan agreements in favour of the company of . . - Cited – Tilly -v- Hamleys of London Ltd, Essex County Council CA (Bailii, [1998] EWCA Civ 1767)
The claimant had brought an action against the shop. She had been stopped on leaving when a library book caused the anti-theft alarm to go off. She and felt humiliated by the public way she was dealt with. Her claim in negligence had been dismissed, . . - Cited – Johnson -v- Gore Wood and Co (a Firm) CA (Bailii, [1998] EWCA Civ 1763, [1999] BCC 474)
The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . . - Explained – Johnson -v- Gore Wood & Co HL (Gazette 05-Jan-01, House of Lords, Times 20-Dec-00, Gazette 22-Feb-01, Bailii, [2000] UKHL 65, [2001] 2 WLR 72, [2001] 1 All ER 481, [2002] 2 AC 31)
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . . - Cited – Motorola Credit Corporation -v- Uzan and others (No 2) CA (Bailii, [2003] EWCA Civ 752, Times 19-Jun-03, Gazette 28-Aug-03, [2004] 1 WLR 113)
World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . . - Cited – The Sennar (No 2) HL ([1985] 1 WLR 490)
The Henderson v Henderson principle should only be applied where it is clear (i) that the decision or determination relied on was made by a foreign court of competent jurisdiction and (ii) the decision upon the issue later sought to be raised is a . . - Cited – Anyanwu and Ebuzoeme -v- South Bank Students’ Union South Bank University CA (Bailii, [1999] EWCA Civ 1032)
The applicants sought an extension of time to apply to set aside leave to appeal given to their opponents.
Held: The cause of the respondent seemed weak, but raised a point of law which needed determination and the appeal should be allowed to . . - Cited – J A Pye (Oxford) Limited -v- South Gloucestershire District Council CA (Bailii, [2000] EWCA Civ 268)
The company appealed an award by way of valuation for land which was to valued as if purchased compulsorily. It was argued that they were raising points which should have been litigated before the Lands Tribunal.
Held: The appeal to the court . . - Cited – Barrow -v- Bankside Members Agency Limited CA (Times 10-Nov-95, [1996] 1 WLR 257)
Mr Barrow was a member of an action group which had successfully sued a number of members’ agents for negligent underwriting. Having substantially succeeded, but recovered only a proportion of the damages he had claimed, Mr Barrow issued fresh . . - Approved – Yat Tung Investment Co Ltd -v- Dao Heng Bank Ltd PC ([1975] AC 581)
Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration . . - Cited – Sweetman -v- Nathan and others CA (Bailii, [2003] EWCA Civ 1115, Times 01-Sep-03, [2004] PNLR 89)
The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
Held: . . - Applied – Arnold -v- National Westminster Bank Plc HL ([1991] 2 AC 93, [1991] 3 All ER 41, [1991] 2 WLR 1177)
Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . . - Cited – Celador Productions Ltd -v- Melville ChD (Bailii, [2004] EWHC 2362 (Ch))
The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . . - Cited – Blackburn Chemicals Ltd -v- Bim Kemi Ab CA (Bailii, [2004] EWCA Civ 1490, Times 22-Nov-04)
The parties entered into exclusive cross marketing agreements. The defendant resisted enforcement of the contract saying it was void under European law, being contrary to Article 81. The parties were alleged to have agreed to make cross purchases. . . - Cited – John Edwin Berry -v- Post Office Investigation Department CA (Bailii, [1996] EWCA Civ 926)
The claimant’s property was raided twice, and stamps removed. The first search led to charges which were dropped. He sought the return of all the property removed. In later proceedings it was said that a new claim was being made which was res . . - Cited – Hormel Foods Corporation -v- Antilles Landscape Investments NV ChD (Times 28-Feb-05, [2005] RPC 28, [2005] EWHC 13 (Ch),)
The claimant had alread challenged the validity of the defendant’s registered trade mark, but sought to do so now on grounds which could have been advanced in the earlier case. The claimant owned the trade mark ‘SPAM’ for canned meats, and the . . - Cited – Phipps, Regina -v- CACD (Bailii, [2005] EWCA Crim 33)
The appellant had been convicted of driving with excess alcohol. After complaints by the injured victim’s family he was further prosecuted for dangerous driving. He now appealed his conviction, having pleaded guilty when the judge failed to find an . . - Cited – Occidental Exploration & Production Company -v-Republic of Ecuador CA (Bailii, [2005] EWCA Civ 1116, Times 23-Sep-05, [2006] 2 WLR 70, [2006] QB 432)
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . . - Cited – Dallal -v- Bank Mellat ([1986] 1 QB 441)
Any choice of international law to govern an agreement to arbitrate should be express. . . - Cited – Coulter -v- Chief Constable of Dorset Police CA (Bailii, [2005] EWCA Civ 1113, [2005] 1 WLR 130)
An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . . - Cited – Ganesmoorthy -v- Ganesmoorthy CA (Bailii, [2002] EWCA Civ 1748, [2003] 3 FCR 167)
The parties had divorced. The wife alleged a serious assault against her husband, and instructed a claims firm to recover damages from him. Her ancillary relief claim in the divorce was compromised with her having sought to rely upon the assault, . . - Cited – Heffernan and Another -v- Grangewood Securities Ltd CA (Bailii, [2001] EWCA Civ 1082)
Redemption action. . . - Cited – Vervaeke -v- Smith HL ([1983] 1 AC 145, [1982] 2 All ER 144, [1982] 2 WLR 855)
A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . . - Cited – McBride -v- The Body Shop International Plc QBD (Bailii, [2007] EWHC 1658 (QB))
The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . . - Cited – Anyanwu and Another -v- South Bank Student Union and Another HL (Times 27-Mar-01, Gazette 24-May-01, House of Lords, Bailii, [2001] ELR 511, [2001] UKHL 14, [2001] 2 All ER 353, [2001] 1 WLR 638, [2001] ICR 391, [2001] IRLR 305, [2001] Emp LR 420)
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . . - Cited – Munir -v- Jang ([1989] ICR 1)
The doctrine of issue estoppel applies in Industrial Tribunal cases. . . - Cited – Divine-Bortey -v- London Borough of Brent CA (Bailii, Bailii, Bailii, [1998] EWCA Civ 830, [1998] EWCA Civ 831, [1998] EWCA Civ 832)
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . . - Cited – Dimtsu -v- Westminster City Council EAT ([1991] IRLR 450)
The EAT considered the application of the rule in Henderson v Henderson in Employment Appeal Tribunal proceedings.
Knox J said: ‘The majority is fortified in the view expressed so far by three further considerations. First, this jurisdiction . . - Cited – Campbell -v- Leeds United Association Football Misc (Bailii, [2009] EW Misc 4 (EWCC))
The claimant sought damages for psychiatric injury suffered when working for the defendant who replied that the matter had already been litigated in her claims in the Employment Tribunal, and that a cause of action estoppel applied.
Held: The . . - Cited – Walbrook Trustees (Jersey) Ltd and Others -v- Fattal and Others CA (Bailii, [2009] EWCA Civ 297)
The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
Held: The appeal against the stay succeeded. The new case had been flagged up . . - Cited – Botham -v- The Ministry of Defence QBD (Bailii, [2010] EWHC 646 (QB))
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . . - Cited – Bank of Scotland -v- Hussain and Another ChD (Bailii, [2010] EWHC 2812 (Ch))
The second defendant had, under the undue influence of the first defendant sold him her house at an undervalue. She also asserted non est factum. He then charged it to the claimant. The court was asked which innocent party should prevail. She said . . - Cited – Foster -v- Bon Groundwork Ltd EAT (Bailii, [2011] UKEAT 0382_10_1703)
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . . - Mentioned – Ramzan -v- Brookwide Ltd CA (Bailii, [2011] EWCA Civ 985)
The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . . - Cited – Personal Representatives of Tang Man Sit -v- Capacious Investments Ltd PC (Gazette 07-Feb-96, Times 26-Dec-95, [1996] AC 514, Bailii, [1995] UKPC 54, [1996] 1 All ER 193, [1996] 2 WLR 192)
The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with . . - Cited – Sarwar -v- The Royal Bank of Scotland Plc (Rev 1) ChD (Bailii, [2011] EWHC 2233 (Ch))
The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of . . - Cited – Hi-Lite Electrical Ltd -v- Wolseley UK Ltd QBD (Bailii, [2009] EWHC 3075 (QB), [2010] BLR 225)
The claimant sought a contribution from the defendant towards its liability for a fire at its premises, as found in earlier proceedings against the now claimant. The defendant had filed a defence merely not admitting, and not denying, responsibility . . - Cited – Bocacina Ltd -v- Boca Cafes Ltd IPEC (Bailii, [2013] EWHC 3090 (IPEC))
The claimant alleged passing off by the defendant’s use of the name ‘Boca Bistro Cafe’, and subsequently ‘Bica Bistro Cafe’
Held: Where the defendant had changed its trading style during the proceedings it was possible, if the claimant . . - Cited – Gladman Commercial Properties -v- Fisher Hargreaves Proctor and Others CA (Bailii, [2013] EWCA Civ 1466)
The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . . - Cited – Joint Stock Company (Aeroflot-Russian Airlines) -v- Berezovsky and Another CA (Bailii, [2014] EWCA Civ 20)
The appellant had judgments obtained in Russia against the respondent. It now appealed against a refusal of enforcement of those judgments based upon the ground that there was a complete defence to the recognition and enforcement of the judgments . . - Cited – Virgin Atlantic Airways Ltd -v- Zodiac Seats UK Ltd SC (Bailii, [2013] UKSC 46, [2013] 3 WLR 299, [2014] 1 AC 160, [2013] WLR(D) 265, [2013] RPC 29, [2013] 4 All ER 715, Baili Summary, WLRD, UKSC 2010/0013, SC Summary, SC)
Virgin Atlantic Airways Ltd sought to recover damages exceeding £49,000,000 for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . . - Cited – Starlight Shipping Co -v- Allianz Marine & Aviation Versicherungs Ag and Others CA (Bailii, [2012] EWCA Civ 1714, [2013] ILPr 15, [2013] 1 Lloyd’s Rep 217, [2013] 1 All ER (Comm) 1297, [2013] 1 CLC 123)
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . . - Cited – David T Morrison & Co Ltd (T/A Gael Home Interiors) -v- ICL Plastics Ltd and Others SC (Bailii, [2014] UKSC 48, 2014 GWD 25-5, 2014 SLT 791, Bailii Summary, UKSC 2013/0104, SC, SC Summary)
The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
Held: . .
Last Update: 09-Oct-15 Ref: 179857
