Bradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm): CA 11 Mar 1999

There was an unsatisfied judgment on a claim by a defendant in an earlier action against a third party. In a subsequent action against the defendant the latter issued third party proceedings against the original and different third parties.
Held: Since the pleadings and judgment in the first action were arguably equivocal and since not all the differences in the plaintiffs claims in the second action were unequivocal the third parties had failed to establish abuse of process and there were no grounds for striking out.
That a case was a repeat of an earlier case, was not sufficient to make the re-litigation necessarily, and of itself, an abuse of process. The party alleging that it was an abuse had the onus of proving it to be such, and the court should be cautious before striking out what appeared to be a valid claim.
Auld LJ stated: ‘In my judgment, mere re-litigation, in circumstances not giving rise to cause of action or issue estoppels, does not necessarily give rise to abuse of process. Equally, the maintenance of a second claim which could have been part of an earlier one, or which conflicts with an earlier one, should not, per se, be regarded as an abuse of process. Rules of such rigidity would be to deny its very concept and purpose.’ Something more than re-litigation of a claim which could have been part of an earlier claim was required to render a second claim an abuse of process. This was an ‘additional element’: ‘Some additional element is required, such as a collateral attack on a previous decision (see eg. Hunter; Bragg, per Kerr LJ and Sir David Cairns at page 137 and 139 respectively; and Ashmore), some dishonesty (see eg. Bragg, per Stephenson LJ at page 139; and Morris, per Potter LJ at pp. 13 and 14 of the transcript;), or successive actions amounting to unjust harassment (see eg. Manson v Vooght, CA (unreported) 3 November 1998, per May LJ at page 16 of the transcript).’


Auld LJ, Nourse J, Ward LJ


Times 30-Mar-1999, Gazette 14-Apr-1999, [1999] 1 WLR 1482, [1999] EWCA Civ 944




England and Wales


CitedYat Tung Investment Co Ltd v Dao Heng Bank Ltd PC 1975
Restraint of Second Action as Abuse
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 by:

CitedTime Group Limited v Computer 2000 Distribution Limited and IBM United Kingdom Limited TCC 4-Feb-2002
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 . .
CitedJ A Pye (Oxford) Limited v South Gloucestershire District Council CA 26-Oct-2000
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 . .
CitedJohnson 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 . .
CitedSpecialist Group International Ltd v Deakin and Another CA 23-May-2001
Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
(May LJ) ‘the authorities taken as a whole tend to . .
CitedSchellenberg v British Broadcasting Corporation QBD 2000
The claimant had settled defamation actions against the Guardian and the Sunday Times on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC.
Held: A . .
CitedFoster v Bon Groundwork Ltd EAT 17-Mar-2011
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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 30 May 2022; Ref: scu.145859