Sarwar v The Royal Bank of Scotland Plc (Rev 1): ChD 27 Jul 2011

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 process, res judicata and estoppel, and requested a strike out of the claim.
Held: There could be no action or issue estoppel. The allegations included matters not previously at issue: ‘the appeal must be allowed. I view that result with satisfaction. Many might ask why the Bank’s response to realising that it had provided incorrect information to Blackburne J and to the (its) Customer would not be to seek to put that right. It is obvious that had the Bank provided correct information Blackburne J would have ensured there was a means by which its entitlement to charge interest at that rate could be examined. Putting right what the Bank had done wrong would involve the Bank’s supporting a course that would allow examination of its entitlement to charge interest at 25%, rather than seeking to take advantage its own error by arguing that the matter was closed.’
Knowles QC J
[2011] EWHC 2233 (Ch)
Bailii
England and Wales
Citing:
CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
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 . .
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 . .
CitedRepublic of India and Others v India Steamship Co Ltd (‘The Indian Endurance and The Indian Grace’) (No 1) HL 29-Mar-1993
Munitions were being carried to Cochin on board the defendants’ vessel. Some was jettisoned in a fire and the remainder was damaged. The cargo owners sought damages in India for short delivery under the bills of lading, as to the jettisoned cargo . .
CitedRegina v Inhabitants of the Township of Hartington Middle Quarter 22-Feb-1855
Coleridge J said: ‘The question then is, whether the former judgment concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision . .
CitedThoday v Thoday CA 1964
The court discussed the difference between issue estoppel, and action estoppel: ‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first . .
CitedBrisbane City Council v Attorney General for Queensland PC 1978
Lord Wilberforce approved Somervell LJ’s words in Greenhalgh: ‘This is the true basis of the doctrine in Henderson v Henderson and it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party . .
CitedLetang v Cooper CA 15-Jun-1964
The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking . .

These lists may be incomplete.
Updated: 15 March 2021; Ref: scu.443238