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 that the sale had been a sham and a fraud. That allegation was dropped, and judgement entered for the bank. It then began a second action, the current one. The bank sought to restrain the second action, saying it was an abuse.
Held: The issues in this action should have been raised in the first. There had been opportunity to raise the the issues as to incorrect accounting. Not having challenged those matters in the first action, and having suffered judgment, it would be wrong to allow a second action, and an estoppel by record arose. ‘it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.’ However, litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court
Morris of Borth-y-Guest, Cross of Chelsea, Kilbrandon LL
[1975] AC 581
Commonwealth
Citing:
Approved – Henderson 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 . .
Cited by:
Cited – J 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 . .
Cited – Berry v Post Office Investigation Department CA 11-Nov-1996
The claimant’s property was raided twice, and stamps removed. The first search led to charges which were dropped. He sought the return of all the property removed. In later proceedings it was said that a new claim was being made which was res . .
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 – C (A Minor) v Hackney London Borough Council CA 10-Nov-1995
The mother had claimed in damages for the injuries to her health from the landlord authority’s failure to repair. Her child then brought a subsequent action in respect of his own injuries. The authority claimed the action should be stopped as res . .
Cited – 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.
Cited – Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
Lists of cited by and citing cases may be incomplete.
Estoppel, Litigation Practice
Leading Case
Updated: 01 November 2021; Ref: scu.185838