Re: abuse of process - false county court claim

[Michael Browne]

Effectively none. The only public documents prior to the hearing would be the court listing which merely lists the case number and claimant and defendants names.

[hesanmp]

i understand, however if i obtained a judgment against somebody, can i disclose details of the case i.e. poc and judgment to the press, for publication?

[honeybee13]

Hello again.

 

I'm merging this thread with your other one that seems to be about the same case. It's better to keep the information together rather than starting a new thread for each new question.

 

HB

[hesanmp]

hi everyone, i hope someone has some words of wisdom.....

 

4 brothers over the years have had financial help from the their parents.

 

they were given on the basis that when a brother was able to do so they could start paying the money back.

 

timescales were never given or details of any interest to be added.

 

trouble is the relationship between 2 brothers broke down and the parents took the side of one brother (despite the parents promising not to take sides).

 

the black sheep of the family is now on his own.

 

the parents have now issued proceedings against 'the black sheep' claiming the monies are repayable on demand and they are claiming interest.

 

the parents are not asking the other brothers for any of their other monies back.

 

the black sheep has no money to repay them, but the other brothers do......

 

any thoughts?????

[honeybee13]

Hello again.

 

I've merged this with your previous thread because it mght make it easier for the people trying to help you.

 

My best, HB

[hesanmp]

thanks HB, i was going round in circles....................

[hesanmp]

i applied for an order for sale (on land only) for a judgment debt i had against a customer.

 

prior to the 1st cmc the debtor issued proceedings for a money claim which has already been dealt with by the court. basically the money he is now claiming, was his actual defense in my money claim.

 

the problem is at the cmc his solicitor pointed out there was unfinished business re the outstanding claim. the judge did not stay the proceedings but put the order for sale application down for a hearing.

 

in the mean time i put in my defence for the claim indicating the issues had already been tried etc. the debtor was given an unless order to provide further details of the claim and a new statement of case, or the claim would be struck out.

 

the debtor came back with a different claim amount and different figures again, needless to say all the these figures also formed part of my original judgment.

 

i filed a further defence as ordered by the cour,t and this time indicated that the debtor i believed was misleading the court and it amounted to an abuse of process.

 

when the judge sees my defence and my supporting documentation proving the above can they strike out the claim or do i have to apply to strike it out? if they do not strike it out, what happens next?

Edited January 22, 2013 by honeybee13
Spacing.

[honeybee13]

Thank you for starting a new thread.

 

Is your question anything to do with one of your previous threads please? Here is a link.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?372512-Re-abuse-of-process-false-county-court-claim&p=4051818#post4051818

 

HB

[The Mould]

i applied for an order for sale (on land only) for a judgment debt i had against a customer.

 

prior to the 1st cmc the debtor issued proceedings for a money claim which has already been dealt with by the court. basically the money he is now claiming, was his actual defense in my money claim.

 

the problem is at the cmc his solicitor pointed out there was unfinished business re the outstanding claim. the judge did not stay the proceedings but put the order for sale application down for a hearing.

 

in the mean time i put in my defence for the claim indicating the issues had already been tried etc. the debtor was given an unless order to provide further details of the claim and a new statement of case, or the claim would be struck out.

 

the debtor came back with a different claim amount and different figures again, needless to say all the these figures also formed part of my original judgment.

 

i filed a further defence as ordered by the cour,t and this time indicated that the debtor i believed was misleading the court and it amounted to an abuse of process.

 

when the judge sees my defence and my supporting documentation proving the above can they strike out the claim or do i have to apply to strike it out? if they do not strike it out, what happens next?

 

 

You can either wait for Directions to be served in this matter or make an application to strike out his claim under CPR Pt 3 r.3.4(2)(a)&(b) on the grounds that the matters pleaded by the Claimant in his statement of case (POC) have been decided against him on (put date) before(state Judge’s name) in (case no.) at(state name of Court where matter was decided)

 

 

 

Serve a copy of the Judgment awarded in your favour with your app (if you decide to strike out) together with your WS.

 

 

 

You might also want to contend that in bringing this action it appears that the Claimant is attempting to Appeal (state the original Judgment) without following the statutory requirements of CPR Pt 52 & Practice Direction 52 and it should be noted that the Claimant has not Appealed (said Judgment) nor has he sought the Court’s (state name of Court where original Judgment given in your favour) permission to Appeal the same.

 

 

 

I hope the foregoing is helpful to you.

 

 

 

Kindregards

 

 

 

TheMould

[hesanmp]

evening 'the mould',

 

i have attached all the original judgment information to my detailed defence,their claim just showed figures without any detailed information. they also failed to follow the pre action protocol at all. the original judgment was entered in 2009 so i think the appeal argument is out of the window!

 

my actual question is if the judge has enough information in my defence to see the matters have been dealt with do they have to give directions i.e. a cmc or can they strike it out on their own accord?

 

cheers

[The Mould]

evening 'the mould',

 

i have attached all the original judgment information to my detailed defence,their claim just showed figures without any detailed information. they also failed to follow the pre action protocol at all. the original judgment was entered in 2009 so i think the appeal argument is out of the window!

 

my actual question is if the judge has enough information in my defence to see the matters have been dealt with do they have to give directions i.e. a cmc or can they strike it out on their own accord?

 

cheers

 

Good evening

 

2009, then out of time for Appeal (although cases can be re-opened on the grounds of new evidence)

Judges haveextensive and inherent powers under the CPR to make an Order of his owninitiative (PART 3 r.3.3) in order to ensure the overriding objectives of theCPR (PART 1 r.1.1) are being met.

I cannot actuallysay whether the Judge in your case, having read the filed statements of bothparties, will make an Order to strike out based upon your Defence and anysupporting evidence served therewith.

How long has passedsince all required statements were filed?

Kind regards

The Mould

[hesanmp]

hi

 

there are in fact 2 judgments for just under 100k, the defendant has p....d the courts off from 2008 onwards, 1st case delay delay then app to set aside, sat in front of judge at the hearing defendant and sol admitted all. 2nd case delay delay then app to set aside, before trial agreed figure. applied for charging orders and now going for order for sale.

 

what puzzles me if the sol and the defendant know that the new claim is 'false' how can they continue to sign the statement of truth?

 

cheers

[hesanmp]

hi, sorry which statements are you referring to?

[The Mould]

hi, sorry which statements are you referring to?

 

All statements relating to this action brought by the Judgment debtor.

 

As to the sol and his clients' conduct, unfortunately, dishonest people are found in all walks of life.

 

Kind regards

 

The Mould

[hesanmp]

1st claim form oct 2012, revised claim form dec 2012.

 

when does the claim become an abuse of process.

 

(sol is a deputy judge!!!)

[The Mould]

1st claim form oct 2012, revised claim form dec 2012.

 

when does the claim become an abuse of process.

 

(sol is a deputy judge!!!)

Does'nt surprise me these days.

Abuse of process? Howlong is a piece of string?

Statement of case discloses no reasonable grounds forbringing or defending the claim (r.3.4(2)(a))

3.4.2 Paragraph 1.4 of the Practice Direction (Striking Outa Statement of Case), para.3APD.1, gives examples of cases where the court mayconclude that particulars of claim disclose no reasonable grounds for bringingthe claim: those claims which set out no facts indicating what the claim isabout; those claims which are incoherent and make no sense; and those claimswhich contain a coherent set of facts but those facts even if true, do notdisclose any legally recognisable claim against the defendant.

Paragraph 1.6 of the Practice Direction, para.3APD.1, statesthat a defence may fall within r.3.4(2)(a) where it consists of a bare denialor otherwise sets out no coherent statement of facts, or the facts it sets out,while coherent, would not even if true amount in law to a defence to the claim.

Statements of case which are suitable for striking out onground (a) include those which raise an unwinnable case where continuance ofthe proceedings is without any possible benefit to the respondent and wouldwaste resources on both sides (Harris v Bolt Burdon [2000] L.T.L., February 2,2000, CA). A claim or defence may be struck out as not being a valid claim ordefence as a matter of law (Price Meats Ltd v Barclays Bank Plc [2000] 2 AllE.R. (Comm) 346, Ch D). However, it is not appropriate to strike out a claim inan area of developing jurisprudence, since, in such areas, decisions as tonovel points of law should be based on actual findings of fact (Farah v BritishAirways, The Times, January 26, 2000, CA referring to Barrett v Enfield BC[1989] 3 W.L.R. 83, HL; [1999] 3 All E.R. 193). A statement of case is notsuitable for striking out if it raises a serious live issue of fact which canonly be properly determined by hearing oral evidence (Bridgeman v McAlpine-BrownJanuary 19, 2000, unrep., CA). An application to strike out should not begranted unless the court is certain that the claim is bound to fail (Hughes vColin Richards & Co [2004] EWCA Civ 266; [2004] P.N.L.R. 35, CA (relevantarea of law subject to some uncertainty and developing, and it was highlydesirable that the facts should be found so that any further development of thelaw should be on the basis of actual and not hypothetical facts)).

Where a statement of case is found to be defective, the courtshould consider whether that defect might be cured by amendment and, if itmight be, the court should refrain from striking it out without first givingthe party concerned an opportunity to amend (In Soo Kim v Youg [2011] EWHC 1781(QB)).

The ECHR art.6(1) right of access to a court may requirecaution on the part of courts in exercising the r.3.4(2)(a) power to strike outa statement of case which appears to disclose no reasonable grounds forbringing or defending a claim, particularly where it would be applying therules in such a way as to exclude an entire category of claims from the courtsor confer blanket "immunities" from civil liability on particulargroups: Fayed v United Kingdom (1994) 18 E.H.R.R 393, para.65, ECtHR. In Osmanv United Kingdom (2000) 29 E.H.R.R 245, the ECtHR held that the striking out bythe Court of Appeal of the applicant's statement of claim on the basis that itwas contrary to public policy for the police to be under a duty of care in thecircumstances of the case was a breach of the art.6(1) right of access to acourt. The ECtHR found that the court had proceeded on the basis that thepolice had a blanket immunity from civil liability in respect of their acts andomissions in the investigation and suppression of crime.

The force of Osman was weakened by a subsequent judgment ofthe ECtHR in Z v United Kingdom [2002] 34 E.H.R.R. 3; [2001] 2 F.L.R. 612,ECtHR. The court affirmed that striking out a claim was not inherently contraryto the right of access to a court. It upheld a decision to strike out a claimin negligence on the basis that the strike out resulted not from a blanketimmunity but from the application of domestic law principles governing theconstituent elements of a cause of action.

English courts have taken the view that art.6(1) does notprevent the striking out of claims in appropriate cases since it applies onlyto "genuine and serious" disputes about civil rights and obligations,although a claim submitted to a tribunal for determination must be presumed tobe genuine and serious unless there are indications to the contrary. See alsoPalmer v Tees Health Authority, The Times, July 6, 1999, CA and Jarvis vHampshire CC [1999] 1 W.L.R. 2042, CA (strike out refused on appeal on othergrounds, sub nom. Phelps v Hillingdon LBC [2000] 3 W.L.R. 776) (Osman did notprevent the court exercising its power to strike out in a "clear andobvious" case: see transcript). In Kent v Griffiths [2001] Q.B. 36, CALord Woolf stated that:

"it would be wrong for the Osman decision to be takenas a signal that, even when the legal position is clear and an investigation ofthe facts would provide no assistance, the Courts should be reluctant todismiss cases which have no real prospect of success. Courts are nowencouraged, where an issue or issues can be identified which will resolve orhelp to resolve litigation, to take that issue or those issues at an earlystage of the proceedings so as to achieve expedition and save expense. There isno question of any contravention of art.6 in so doing".

Lord Woolf's comments were endorsed in Outram v AcademyPlastics Ltd [2001] I.C.R. 367, CA.

In Jones v Kaney [2010] EWHC 61 (QB); [2010] 2 All E.R. 649,Blake J. granted summary judgment striking out a claim for negligence which hadbeen brought against an expert witness who raised a defence of witnessimmunity. The learned judge held that the decision in Stanton v Callaghan[2000] Q.B. 75 (CA) remains an accurate statement of current law and wasbinding upon him even though it was decided before the coming into force of theHuman Rights Act 1998 [>>Text] (on October 2, 2000). In his judgment, adirect challenge to the decision or principle in play would be needed before acourt could rely upon the passage of the Human Rights Act [>>Text] as asufficient statutory change in the law to revisit a proposition spelt out abinding judgment in a superior court. However, after expressing the opinionthat the blanket immunity may well prove to be too broad to be sustainable, thelearned judge granted the claimant a certificate enabling him to bring aleapfrog appeal direct to the UK Supreme Court.

A statement of case which discloses no reasonable groundsmay also be an abuse of the court's process, and, in respect of it, theopposing party may be entitled to summary judgment under Pt 24. Thus, there isno exact dividing line between ground (a) and ground (b) (as to which seepara.3.4.3 or between either of them and Pt 24 (as to which see para.3.4.6).

Statement of case is an abuse of the court's process or isotherwise likely to obstruct the just disposal of the proceedings(r.3.4.(2)(b))

3.4.3 Although the term "abuse of the court'sprocess" is not defined in the rules or practice direction, it has beenexplained in another context as "using that process for a purpose or in away significantly different from its ordinary and proper use" (AttorneyGeneral v Barker [2000] 1 F.L.R. 759, DC, per Lord Bingham of Cornhill, LordChief Justice). The categories of abuse of process are many and are not closed.The main categories which have been recognised in the case law to date aredescribed in the following paragraphs. The court has power to strike out aprima facie valid claim where there is abuse of process. However there has tobe an abuse, and striking out has to be supportive of the overriding objective.It does not follow from this that in all cases of abuse the correct response isto strike out the claim. The striking out of a valid claim should be the lastoption. If the abuse can be addressed by a less draconian course, it should be(Reckitt Benkiser (UK) Ltd v Home Pairfum Ltd [2004] EWHC 302 (Pat); February13, 2004, unrep. (Laddie J.) (claimant's application to have defendant'scounterclaim in trade mark case struck out, so far as it related to threats,dismissed); see also Taylor v Nugent Care Society [2004] EWHC 302 (Pat); [2004]F.S.R. 37 (claimant bringing individual action when group litigation order inplace)).

Vexatious proceedings

3.4.3.1 The function of the court is to do justice betweenthe parties, not to allow its process to be used as a means of achievinginjustice. In an extreme case, a party by their conduct may forfeit their rightto take part in a trial. For example, where they demonstrate that they aredetermined to pursue proceedings with the object of preventing a fair trial(Arrow Nominees Inc v Blackledge [2000] 2 B.C.L.C. 167, CA (forgery ofdocuments as part of disclosure process, coupled with perjured evidence)). In suchcircumstances, their object is inimical to the process which they purport toinvoke. It is an abuse to bring vexatious proceedings, i.e. two or more sets ofproceedings in respect of the same subject matter which amount to harassment ofthe defendant in order to make them fight the same battle more than once withthe attendant multiplication of costs, time and stress. In this context it isimmaterial whether the proceedings are brought concurrently or serially. Inaddition to striking out the statements of case in such proceedings the courtmay make a civil restraint order, as to which, see para.3.4.10, below. Whilstit might not be appropriate for the county court to make such an order inrelation to the High Court, there is no difficulty in the High Court makingsuch a order in relation to the county court if the facts merit it (Ebert vBirch [2000] Ch. 484, CA).

There is no abuse if the claimant has sufficientjustification for commencing concurrent proceedings (Merrill Lynch, PierceFenner & Smith Inc v Raffa [2001] C.P. Rep 44, QB; claimant seeking summaryjudgment in England where concurrent proceeding in Egypt were deferred pendingthe conclusion of linked criminal proceedings there; and see further, thecommentary to SCA 1981 s.49 [>>Text], Vol.2, paras 9A–183("Concurrent civil proceedings") and 9A–185 ("Lis alibi pendens,forum non conveniens and foreign jurisdiction clauses").

Attempts to re-litigate decided issues

3.4.3.2 As a general rule a party should not be allowed tolitigate issues which have already been decided by a court of competentjurisdiction. Also, where a matter becomes the subject of litigation, partiesto that litigation should bring forward the whole of their cases (Henderson vHenderson (1843) 3 Hare 100). However, whether litigation of a decided issue isan abuse depends upon all of the circumstances. It is wrong to hold that simplybecause a matter could have been raised in earlier proceedings it should havebeen, so as to render the raising of it in later proceedings necessarilyabusive. A broad, merits-based judgment should be adopted, taking account ofall the public and private interests involved and all the facts of the case(Johnson v Gore Wood & Co (No.1) [2002] 2 A.C. 1, HL: in all thecircumstances of that case it was held not to be an abuse for a claimant tocommence proceedings seeking remedies in respect of matters which had formedthe subject matter of previous proceedings brought by a company which hecontrolled).

In Aldi Stores Ltd v WSP Group Plc [2008] 1 W.L.R. 748;[2008] P.N.L.R 14, the Court of Appeal was concerned with the application ofthe principles set out in Johnson v Gore Wood & Co (above) to an attempt tostrike out a claim for abuse of process on the basis that the claim should havebeen brought in previous litigation in which the defendants were not a party.The Court of Appeal referred with approval to the judgment of Clarke L.J. inDexter v Vlieland-Boddy [2003] EWCA Civ 14, where he summarised the principlesto be derived from Johnson v Gore-Wood as follows:

(i) Where A has brought an action against B, a later actionagainst B or C may be struck out where the second action is an abuse ofprocess.

(ii) A later action against B is much more likely to be heldto be an abuse of process than a later action against C.

(iii) The burden of establishing abuse of process is on B orC or as the case may be.

(iv) It is wrong to hold that because a matter could havebeen raised in earlier proceedings it should have been, so as to render theraising of it in later proceedings necessarily abusive.

(v) The question in every case is whether, applying a broadmerits based approach, A's conduct is in all the circumstances an abuse ofprocess.

(vi) The court will rarely find that the later action is anabuse of process unless the later action involves unjust harassment oroppression of B or C.

Clarke L.J. said (at para.50) that proposition (ii) above:

"seems to me to be of importance because it is onething to say that A should bring all his claims against B in one action,whereas it is quite another thing to say that he should bring all his claimsagainst B and C (let alone against B, C, D, E, F and G) in one action. Theremay be many entirely legitimate reasons for a claimant deciding to bring anaction against B first and, only later (and if necessary) against others."

In Aldi Stores, the Court of Appeal held that the fact thatthe defendants to the original action and to the new action were different didnot operate as a bar to the finding of abuse but was a powerful factor in theapplication of the broad merits based judgment. It was also held that nodistinction in law between cases where the original action concludes bysettlement and where it concludes by judgment. It was further held that thatthe decision as to whether or not there has been an abuse is not the exerciseof a discretion. It was a decision involving the assessment of a large numberof factors to which there can only be one correct answer as to whether or notthere has been an abuse. On the facts in Aldi Stores, the claimant had notbehaved in any way that was culpable or improper and this was held to be animportant factor even though neither impropriety or culpability is a necessaryfinding before a claim can be struck out. The claimant's decision not toproceed against the present defendants in the first action was commerciallyreasonable, forensically legitimate and reasonably transparent and the presentdefendants were being faced with a claim for the first time. The Court ofAppeal, allowing the appeal against the order striking out the claim, held thatthere was no abuse.

Aldi Stores was applied in Stuart v Goldberg Linde [2008]EWCA Civ 2; [2008] 1 W.L.R. 823, CA. In that case the claimant had successfullysued the defendant solicitor for breach of a solicitor's undertaking given inanticipation of a contract being concluded between the claimant and thesolicitor's client. The claimant then brought a second action against thesolicitor alleging inducement of a breach of contract and misrepresentation.The Court of Appeal, allowing the appeal, held on the facts that the secondaction was not an abuse of process. The majority of the Court of Appealregarded it as reasonable to proceed with the breach of undertaking claimalone. The issues in the first action were clear, simple and self-contained.The proceedings would have been on a different scale had the inducement ormisrepresentation claims been included. Furthermore, the second action was notan abuse of process as the claimant only became aware of the facts of theinducement claim about three months before the trial of the first action andwas only aware of all of the facts relating to the misrepresentation claimafter trial. The Court of Appeal made four points of general application: [1]if the prospects of success are uncertain but the case is not suitable forsummary judgment for either party, it is inappropriate to weigh the prospectsof success in the balance in deciding whether it is an abuse of process tobring the claim in later proceedings (the "broad, merits based"approach in Johnson v Gore Wood was not a reference to the substantive meritsbut to the merits relevant to the question whether the claimant should havebrought their claim as part of the earlier proceedings); [2] delay, of itself,is not relevant to whether the second claim is an abuse of process; [3] aclaimant's failure to use reasonable diligence in finding out facts relevant towhether they had a possible claim might be relevant to the abuse of processissue, but there was no general principle that a potential claimant was under aduty to exercise reasonable diligence to find out the facts relevant to whetherthey had or might have a claim; and [4] a claimant who keeps a second claimagainst the defendant up their sleeve while prosecuting the first is at highrisk of being held to have abused the court's process. Furthermore, as wasstated in Aldi Stores, the proper course is for the claimant to raise thepossibility of a second claim with the court so that appropriate casemanagement directions can be given.

In addition, see Toth v Jarman [2000] L.T.L. December 21, CA(it was not an abuse to commence proceedings for damages for nervous shock inrespect of an accident which had formed the subject matter of a claim under theFatal Accidents Act 1976 [>>Text] brought by the same claimant). Nor wasit an abuse for a party who had been held liable in one action to bring asubsequent claim for indemnity or contribution in a separate action even thoughthey could have raised such claims in the earlier action (Sweetman v Shepherd[2002] C.P. Rep 56; The Times, March 29, 2000, CA). In Perkins v DevoranJoinery Company Ltd [2006] EWHC 582; [2006] B.L.R. 218, QB, Eady J. held, onappeal, that it was not an abuse of process for the claimants to bringproceedings against the defendant joinery company alleging design defects inwindows and doors that it had fitted, even though they had previously broughtproceedings alleging defective workmanship only, given that the need to bringthe second set of proceedings was attributable largely to the fact that thedefendant appeared to have deliberately concealed the defects. Where in fatalaccident proceedings a claimant had not given notice to the Motor Insurers'Bureau within the time limit stipulated by the MIB Agreement, and the MIB wasnot prepared to overlook this, it was not an abuse of process for the claimantto discontinue the proceedings and commence a fresh action in which timelynotice was given (Richardson v Watson [2006] EWCA Civ 1662; [2007] R.T.R. 21(disapplying limitation period and allowing fresh action to proceed)). Incircumstances such as these, something more than a single negligent oversightin timely service was required (Aktas v Adepta [2010] EWCA Civ 1170).

In Koshy v Deg-Deutsche [2008] EWCA Civ 27, it was held thatwhere the claimant had elected to continue with his appeal against a costsorder on a limited basis before the Court of Appeal rather than having theissue of non-disclosure remitted for trial, he had accepted that the price ofpursuing his appeal was the abandonment of all alternative procedural routes inthe event of failure. Accordingly, a second action raising the same issue wasan abuse of process. The claimant had had the benefit of legal advice and had theopportunity to have his allegations made the subject of judicial determination.Arden L.J., observed that although the allegations which the claimant raisedwere serious and important, the justice system was not bound to provide morethan one opportunity to run such issues. This was because the court had tostrike a fair balance between the interests of the claimant on the one hand andof the other parties and the general interest on the other hand.

In Walbrook Trustees (Jersey) Ltd v Fattal [2009] EWCA Civ297, the judge struck out a claim brought by trustees as an abuse of process onthe basis that it could have been brought in earlier proceedings. The Court ofAppeal held that the judge had erred in striking out the claim, given that atthe time of the earlier proceedings, the trustees did not have all theinformation necessary to bring their claim and had they done so the claim wouldhave been struck out as disclosing no cause of action. It could not be an abuseof process for a party not to enforce their rights until they had theinformation that would prevent their case from being struck out. The case lawabove-mentioned concerns attempts to re-litigate issues which have been orshould have been litigated in earlier proceedings. Contrast cases in which ajudgment creditor brings an action upon a judgment that they have obtained as ameans of enforcing it. In these circumstances the second action is not, byitself, an abuse of process (Bennett v Governor & Company of the Bank ofScotland [2004] EWCA Civ 988; Kuwait Oil Tanker Co SAK v Al Bader [2008] EWHC2432 (Comm)).

In Booth v Booth [2010] EWCA Civ 27, the claimants hadunsuccessfully challenged the validity of their father's will. It was held thata second claim brought by them in relation to the administration of theirmother's estate (which raised similar issues) was not in all the circumstancesan abuse of process. The question of whether or not the second claim was anabuse of process was dealt with as one of several preliminary issues. The Courtof Appeal held that it would be wrong to strike out the claim as an abuse ofprocess given that the rights of the family members had been substantiallydetermined given the conclusions reached on the various preliminary issues. Itseems that the defendant might have been in a stronger position had he appliedto strike out the claim as an abuse of process at an earlier stage.

In Henley v Bloom [2010] 1 W.L.R.1770, the Court of Appeal,following Johnson v Gore Wood (above) and applying Stuart v Goldberg (above),held that a claim for damages for disrepair by a former tenant against hislandlord following their compromise of the landlord's possession claim was notan abuse of process. The tenant could have raised the disrepair claim in thepossession proceedings. However, the central issue was not merely whether thetenant could, but whether he should have raised the disrepair claim during thesettlement negotiations. If the court was not satisfied that a claimant'sattempt to raise a claim was actually abusive in the light of his previousfailure to raise it, the claim could not be barred from proceeding. There weretwo main reasons why the disrepair claim was not an abuse. First, the twoclaims involved different issues. The possession claim did not involve thequestion of whether the premises were out of repair. Second, if the possessionclaim had proceeded to trial, the disrepair claim could not have been an abuse.Furthermore, the terms of the consent order only covered any claim by thetenant in respect of his improvements to the premises, but no other claim. Afair trial was still possible. The tenant has not said or done anything to leadthe landlord to think that he would not bring a claim for disrepair. Thelandlord had been aware of the existence of disrepair for many years and hadsome reports. The Court of Appeal accepted that the landlord would probably beat a disadvantage at trial, but not a very substantial one and the court couldmake allowances accordingly. Lord Neuberger observed that if, in due course,the court hearing the disrepair claim was satisfied that costs have beenunnecessarily increased as a result of the claim being brought after thepossession claim had been settled, rather than being raised by the tenant inthe settlement negotiations which culminated in the consent order, then, it maybe appropriate to reflect that fact in an appropriate manner in any costs ordermade in the disrepair claim.

In Zurich Insurance Co Plc v Hayward [2011] EWCA Civ 641, itwas held that a claim for damages by an insurance company on the basis thatsettlement of a personal injury claim, as contained in a Tomlin Order, wasobtained by fraudulent misrepresentation, should not have been struck out asthere was no estoppel by res judicata and the second claim did not amount to anabuse of process in the Johnson v Gore Wood sense. The fact that the defendantin the first claim had pleaded exaggeration did not give rise to an estoppel asnew evidence showed that the defendant (in the present claim) had made a completerecovery over a year before the settlement and there was no congruity betweenthe allegations of exaggeration or fraud in the first and second claims.

Collateral attacks upon earlier decisions

3.4.3.3 A further potential form of abuse of process iswhere a party mounts an attack on a final decision adverse to them which hasbeen made by a court of competent jurisdiction. In Hunter v Chief Constable ofthe West Midlands Police [1982] A.C. 529 it was said that it was an abuse ofprocess to initiate:

"proceedings in a court of justice for the purpose ofmounting a collateral attack upon a final decision against the intending(claimant) which had been made by another court of competent jurisdiction inprevious proceedings in which the intending (claimant) had full opportunity ofcontesting the decision in the court in which it was made."

However, it was recognised in Hunter that it might not be anabuse of process if the claimant could show that they had fresh evidence whichentirely changed the previous case and that the further evidence could not byreasonable diligence have been obtained beforehand. (The law relating to resjudicata raises similar principles.) The cases relevant to this head of abuse,including those following Hunter, were reviewed by Sir Andrew Morritt V.-C. inSecretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321;[2004] 1 Ch. 1; [2003] 3 W.L.R 841; [2004] 4 All E.R. 325. It was important toconsider (1) the nature and extent of the earlier judgment; (2) the nature andbasis of the claim made in the later proceedings; and (3) the grounds relied onto justify the collateral challenge. The principles relevant to this head ofabuse were summarised by Sir Andrew Morritt V.-C. He said that a collateralattack on an earlier decision of a court of competent jurisdiction might be,but was not necessarily, an abuse of process; that if the earlier decision wasthat of a court exercising a civil jurisdiction then it was binding on theparties to that action and their privies in any later civil proceedings; thatif the parties to later civil proceedings had not been parties to the earlieraction it would only be an abuse of process to challenge that decision ifre-litigation of the same issues would be manifestly unfair or would bring theadministration of justice into disrepute.

In Taylor Walton (a firm) v Laing [2007] EWCA Civ 1146, theclaimant, a property developer, sued a firm of solicitors in negligence forhaving failed to draft two agreements so as to reflect what had been agreed byhim with another developer. There had been previous proceedings between the twodevelopers (which largely turned on what or had not been agreed) in which thetrial judge heard evidence from the developers and rejected the presentclaimant's case. There was no appeal against the decision of the trial judge.In the present case, the claimant could only succeed if he was able toestablish that the underlying agreements were as he alleged—a contention whichhad been rejected by the trial judge. The Court of Appeal found that everythingsubmitted to them could have been submitted to the trial judge and could havebeen the subject of an appeal which was never brought. What was sought to beachieved in the second claim was not the addition of matter which was omittedfrom the first case, but a re-litigation of the case on the basis of exactlythe same material as was or could have been before the trial judge. The Courtof Appeal held that the second action involved an impermissible challenge tothe facts found by the trial judge and was an abuse of process. The claimantcould not establish that his solicitor's drafting of the agreements wasnegligent without challenging the judge's findings as to credibility and fact.The Court of Appeal contrasted the situation with the more normal professionalnegligence claim in which the impugned conduct of the lawyer was independent ofthe factual conclusions of the court—cases where the claimant attempts todemonstrate that the previous conclusion of the court would have been differentbut for the negligence of the lawyer.

In Eco-Power UK Ltd v Transport for London [2010] EWHC 1683(Admin), the claimant, having brought judicial review proceedings which wereunsuccessful, later sought, in respect of the same facts, remedies in damagesfor negligence, misfeasance in public office and malicious falsehood andapplied for permission to continue the claim as if it had started by claim formunder Pt 7. The claim was struck out: although judicial review proceedingscould not be relied upon to found an issue estoppel, the courts have aninherent jurisdiction to prevent issues being tried repeatedly in the interestsof justice where the point had already been argued before a court withoutsuccess; the claim for remedies mounted a collateral attack on the findings ofthe judge in the judicial review claim; other issues raised had no reasonableprospects of success.

Kind regards

The Mould

[hesanmp]

hi mould

 

excellent work.

 

to recap. these are issues that have been decided and judgment's entered. i am looking to enforce those judgments. the defendant and his sol have decided to muddy the waters with their new claim, the same court is well aware of the existing judgments. the judge at the order for sale hearing (a new judge to the court simply said if there is outstanding litigation get on with it - oct 2012.). obviously there isn't any outstanding litigation. the hearing for the order for sale is within the next week, if the papers come down from the judge tomorrow could they have made an order that shows there is no further litigation and therefore the order for sale can be granted? i hope that makes sense?

[The Mould]

hi mould

 

excellent work.

 

to recap. these are issues that have been decided and judgment's entered. i am looking to enforce those judgments. the defendant and his sol have decided to muddy the waters with their new claim, the same court is well aware of the existing judgments. the judge at the order for sale hearing (a new judge to the court simply said if there is outstanding litigation get on with it - oct 2012.). obviously there isn't any outstanding litigation. the hearing for the order for sale is within the next week, if the papers come down from the judge tomorrow could they have made an order that shows there is no further litigation and therefore the order for sale can be granted? i hope that makes sense?

 

Hello again hesanmp

 

Well, just have to wait and see. I shall be following your case with interest.

 

By the way, you might wish to research the above authorities for the purpose of a strike out (if you decide to make such an app), the case transcripts thereof (most of them) can be found on bailii.

 

Kind regards

 

The Mould

[hesanmp]

copy that..

 

will keep you informed.

 

cheers

[hesanmp]

mould are you there??

 

judge said he could not issue an order for sale as he said there was still live proceedings yet to be decided. he said the issues may have been decided previously but we were in court for an order for sale hearing not a strike out application. he practically asked us why we hadn't applied for a strike out, if the other false claim was struck out then there would be an order for sale. needless to sy we applied in the afternoon and the application under cpr 3.4 is in front of the beak tomorrow!!

 

lets wait and see what he/she order???????

[hesanmp]

can i assign a debt that has not been proven and is disputed?

[AndyOrch]

If the debt is not proven and in dispute why would you wish to assign it? Further info?

[hesanmp]

sorry!! i have 2 judgments against somebody which i am trying to enforce. i owe some money to a third party which is in dispute i.e. its not repayable now and the amount is in dispute. however they have assigned some of the 'alleged debt' to my judgment debtor. my question is can they assign the debt and thereby prevent me from enforcing my judgments?

[AndyOrch]

In connection with this? :- http://www.consumeractiongroup.co.uk/forum/showthread.php?372512-Re-abuse-of-process-false-county-court-claim

[AndyOrch]

The usual way of assigning the benefit of any debt or other legal thing in action under section 136 of the Law of Property Act 1925. Under that section, the basic requirements for a legal assignment are as follows:

Only the benefit of an agreement may be assigned.

 

The assignment must be absolute.

 

The rights to be assigned must be wholly ascertainable and must not relate to part only of a debt.

 

The assignment must be in writing and signed under hand by the assignor.

 

Notice of the assignment must be received by the other party or parties for the assignment to take effect.

 

An assignment which does not fulfil the statutory criteria for a legal assignment. An equitable assignment may be made in one of two ways:

The assignor can inform the assignee that he transfers a right or rights to him.

 

The assignor can instruct the other party or parties to the agreement to discharge their obligation to the assignee instead of the assignor.

 

Only the benefit of an agreement may be assigned. There is no requirement for written notice to be given or received. The only significant difference between a legal assignment and an equitable assignment is that an equitable assignee often cannot bring an action in its own name against the third party contractor, but must fall back on the rules governing equitable assignments and join the assignor as party to the action.