Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. In reaching the decision, the court had taken into account matters which were irrelevant. The fact that a claim might have been raised in earlier proceedings was not conclusive to establish abuse of process. Whether a second claim is abusive calls for an exercise of judgment. It is not an exercise of discretion. Rather, it is a question to which, ultimately, there is only a correct answer. The court must look at all the circumstances. Nor was the fact that a decision made by a party in complex proceedings which might result in the use of greater judicial time necessarily an abuse. It was for the state to provide the necessary resources and there are other constraints on parties who might proceed in this way and which were short of denying them justice. If was for the defendant to prove the claim to be an abuse, and it had not discharged that burden. The issue of abuse engages both the public interest, which is concerned with the finality of litigation and the efficient management of litigation, and the private interest of the claimant seeking access to the court.
Thomas LJ said: ‘I do not see how the mere fact that this action may require a trial and hence take up judicial time (which could have been saved if Aldi had exercised its right to bring an action in a different way) can make the action impermissible. If an action can be properly brought, it is the duty of the state to provide the necessary resources; the litigant cannot be denied the right to bring a claim (for which he in any event pays under the system which operates in England and Wales) on the basis that he could have acted differently and so made more efficient use of the court’s resources. . The problems which have arisen in this case should have been dealt with through case management.’
Longmore LJ, Thomas LJ, Wall LJ
 EWCA Civ 1260, Times 04-Dec-2007,  BLR 1,  CILL 2549,  115 Con LR 49,  CP Rep 10,  PNLR 14,  1 WLR 748, (2008) 24 Const LJ 334
England and Wales
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
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 . .
Appeal from – Aldi Stores Ltd v WSP Group Plc and others TCC 15-Jan-2007
Cited – Dexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co  2 AC 1, can be summarised as follows:
Cited – Mardas v New York Times Company and Another QBD 17-Dec-2008
The claimant sought damages in defamation. The US publisher defendants denied that there had been any sufficient publication in the UK and that the court did not have jurisdiction. The claimant appealed the strike out of the claims.
Held: The . .
Cited – Walbrook Trustees (Jersey) Ltd and Others v Fattal and Others CA 8-Apr-2009
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 – Wahab v Khan and Others; In re Abdus Sattar Sheikh deceased ChD 12-Apr-2011
The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, . .
Cited – Gladman Commercial Properties v Fisher Hargreaves Proctor and Others CA 14-Nov-2013
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 – Arcadia Group Ltd and Others v Telegraph Media Group Ltd QBD 8-Feb-2019
Claimant’s application for leave to withdraw request for injunction to prevent publication of stories regarding matters subject to non-disclosure agreements.
Held: Granted. An junction had been granted, but Lord Hain had disclosed protected . .
Lists of cited by and citing cases may be incomplete.
Construction, Litigation Practice
Updated: 02 November 2021; Ref: scu.261596