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 process it was not part of that decision to consider the merits of the later claim, and there is no ‘general principle that a potential claimant is under a duty to exercise reasonable diligence . . to find out the facts relevant to whether he has or may have . . a claim’.
Lloyd LJ related that the cases ‘include many reminders that a party is not lightly to be shut out from bringing before the court a genuine cause of action’. He rejected the ‘general proposition’ that a claimant who ‘comes to know’ in the course of proceedings ‘of an additional cause of action . . which is quite different from that asserted in his existing claim’ comes under an obligation to inform the defendant of that additional cause if ‘it would not be reasonable . . to expect [the claimant] to seek to combine’ the two causes of action. The issue is highly fact-sensitive.
Sir Anthony Clarke MR said that a party should no ‘keep future claims secret merely because a second claim might involve other issues’, and, ‘[i]n particular’, they ‘should not keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future’. However, much depended on the particular facts, and ‘the question is not simply whether the claimant acted unreasonably in not raising [the second] claim, or indeed whether his failure to do so was an abuse of process’. ‘The question is’, as he said, ‘whether the second action is an abuse of the process, which involves a consideration of all the circumstances.’
Judges:
Sir Anthony Clarke MR, Sedley LJ, Lloyd LJ
Citations:
[2008] EWCA Civ 2, [2008] CP Rep 18, [2008] 1 WLR 823
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Foss v Harbottle 25-Mar-1843
Company alone may sue for legal wrong against it.
A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them . .
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 by:
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 – Henley v Bloom CA 9-Mar-2010
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 . .
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 . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 12 July 2022; Ref: scu.263770