Different claims allowed re-litigation
The parties had had long standing disputes as landlord and tenant. They were at one point settled, but the tenant claimed again, and the landlord sought to strike out the claim as an abuse of process, saying the claimant had failed to comply with the pre-action protocol. The tenant now appealed.
Held: The issue was whether a fair trial was now impossible. The tenant could have brought this claim as part of the earlier one. However it did not amount to an abuse, since different facts were involved. The settlement agreement shut out only certain kinds of further claim, not including this one, and he had made no representation that no such claim would be brought. The defendant had not established that a fair trial was impossible, and the appeal succeeded.
Lord Neuberger MR
[2010] EWCA Civ 202, [2010] NPC 29, [2010] 1 WLR 1770
Bailii
Landlord and Tenant Act 1985 11(1)(a)
England and Wales
Citing:
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 . .
Cited – Greenhalgh v Mallard CA 1947
Somervell LJ set out the concept of abuse of process in civil cases on a plea of res judicata: ‘res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but . . it covers issues or facts which are so . .
Cited – Taylor v Anderson and Taylor Brothers Plant Hire Ltd CA 2002
Chadwick LJ said: ‘proceedings ought not to be struck out unless an unequivocal affirmative answer can be given to the question: is there a substantial risk that a fair trial is impossible?’ . .
Cited – Stuart v Goldberg and Linde (a firm) CA 17-Jan-2008
The claimant appealed against orders preventing him from suing his former solicitors in respect of heads of claim which the court said should have been included in earlier proceedings.
Held: When deciding whether a claim was an abuse of . .
Lists of cited by and citing cases may be incomplete.
Housing, Landlord and Tenant, Litigation Practice
Updated: 01 November 2021; Ref: scu.402552