Not worth the wick

There is no definition of abuse. In Hunter v Chief Constable of the West Midlands [1982] AC 529, it was described as the 'misuse of [the court's] procedure in a way which, although not inconsistent with the literal interpretation of its procedural rules, would nevertheless be manifestly unfair to a party in litigation before it, or would bring the administration of justice into disrepute among right-thinking people'.

The court has power to strike out a statement of case (CPR 3.4(2)(b)). It must balance individual access to justice against not diverting the resources of the courts to deal with unmeritorious claims. The court will consider if there are alternative remedies, for example: adverse costs (CPR 44.3); ordering a party to pay money into court; or awarding interest at a higher/lower rate.

Multiplicity of proceedings

Parties should not be allowed to litigate issues that have already been determined; they should also bring forward the whole of their respective cases in one action (Henderson v Henderson [1843] 3 Hare 100; Johnson v Gore-Wood [2002] EWHC 776 (QB)). Under CPR 1.4(2)(i), the court must deal with as many aspects of the case as it can on the same occasion.

In Stuart v Goldberg and Linde [2008] EWCA Civ 2, S entered into heads of agreement with V, following several meetings with V's solicitor, L. V did not proceed with the agreement. In the first action, in 2000, S successfully sued L for breach of a solicitor's undertaking by L to S. S's subsequent claim, in 2005, against L was two-fold:

• an inducement claim: S alleged L had induced V to break the contract by untrue statements about S. S became aware of these statements three months before the 2000 claim trial, from L's witness statement; and
• a misrepresentation claim: S alleged L had made false statements, which influenced S to enter into the agreement. S only discovered this after the 2000 claim trial.

The CA held that although the nature of the 2000/2005 claims were very different (therefore not constituting re-litigation), and although S knew of facts giving rise to the inducement claim just before the 2000 claim trial, it was not 'incumbent' on him to risk delaying the trial by informing L of the inducement claim. Nevertheless, S should still have notified L that he was considering bringing a later action:

• L should have been aware, when giving evidence in the 2000 claim, that it might be relevant to the 2005 claim; and
• 'putting cards on the table' means informing not only the defendant, but also the court (Aldi Stores Ltd V (1) WSP Group Plc (2) WSP London Ltd (3) Aspinwall & Co Ltd [2007] EWCA Civ 1260).

Despite S's failure to notify L, the 2005 claim did not constitute an abuse. The information had come from L who was therefore 'as well able to draw conclusions as to its possible relevance as [S] was': there was no 'disparity of knowledge'. Second, the claims were very different. However, the court might conclude differently if, for example, the parties' knowledge was not identical; if the claims are essentially the same; or if the information comes to a claimant's attention much earlier.

The facts underlying Stuart were obviously very relevant to the CA's decision; however, it is clear that the prudent and sensible course in all cases is for both parties to inform the court.

Equal knowledge

The issue of the parties' equal knowledge as to the facts underlying the second claim was also relevant in the court's decision in Henley v Bloom [2010] EWCA Civ 202. This underlines the importance of the defendant being alive to possible subsequent claims and being proactive by entering into a dialogue with the claimant. The court in Henley said that it was as much up to B as it was to H to raise the matter at the relevant time. Once a defendant becomes aware of facts that underlie a possible claim, doing nothing will undermine a later allegation by the defendant of abuse.

In Booth v Booth [2010] EWCA Civ 27, the court also decided that the second action was not abusive, mainly because the procedural history of the case meant that the defendant had already 'suffered the bulk of any harassment'. The claimants had previously unsuccessfully challenged the validity of a will. They commenced fresh proceedings, based on different facts. The CA accepted that the claimants had been aware of the facts underlying the second claim at the date of the first. However, there was no abuse because several points had already been dealt with by way of preliminary matters, establishing important facts relevant to the second claim, which had already travelled a fair 'distance down the road'.

The court clearly considered the matter from both the claimants' and the defendant's point of view; it took a pragmatic decision, based primarily on the fact that the damage had already been done in terms of the harassment of the defendant. The court also implied that the defendant would have had more luck if he had got on with the application much earlier in the day, rather than waiting until service of his defence to allege abuse.

In Challinor v Staffordshire County Council [2011] EWCA Civ 90, SCC served an enforcement notice against C to remove waste products and plant/machinery from his land. When C failed to comply, SCC took direct action and sued C to recover its losses. C counterclaimed but did not pursue it. At trial, in 2006, SCC's actions were broadly held to be lawful. In 2009, C issued proceedings relating to the value of the items removed and the manner of removal. The CA held that the evidence for striking out for abuse was 'overwhelming':

• C had failed to pursue his counterclaim in 2006;
• the removal of C's property and its value, together with the legality of SCC's action, was extensively canvassed in 2006; and
• SCC was entitled to believe that the 2006 trial was the forum at which C's claims arising out of SCC's direct action would be resolved.

Would a defendant, who, unlike C, does not make a counterclaim in the first proceedings be prevented from suing in the second proceedings? This would probably depend on the nature of the second proceedings; if they were very different (as in Stuart) then the court would be much less likely to take the approach that the defendant ought to have considered pursuing a counterclaim in the first proceedings. However, in Challinor, the two sets of proceedings were so similar that, even if C had not initially served a counterclaim, the remaining factors would still, cumulatively, probably have been sufficient to amount to abuse. By contrast, in Henley, the claimant in the second proceedings had also been the defendant in the first proceedings (but did not counterclaim); the claims were very different and this contributed to the second proceedings not being an abuse.

Pointless or wasteful litigation

Litigation may be considered pointless or wasteful if the potential benefit to the claimant is of such limited value and the costs so disproportionately high. Most cases in this category are defamation actions because they have to be heard by a jury in the High Court, regardless of how much is at stake.

In Jameel v Dow Jones [2005] EWCA Civ 75, the action concerned an article with very limited publication in which limited damages were sought. The defendant contended that pursuing this expensive action was disproportionate and an abuse of process. The CA, while recognising that J had a 'technical' cause of action, nevertheless struck out the claim, noting that, if J were to succeed, he would only be entitled to 'very modest damages', disproportionate to the likely cost of the exercise: 'The game will not merely not have been worth the candle, it will not have been worth the wick.'

In the loop

A notable theme among recent cases is that, in addition to being open and transparent with the other side, the need to keep the court in the loop is paramount in order that it can apply its resources justly and proportionately. Other categories of abuse also point to this, for example, where the particulars of claim are incoherent or vague. While a defendant needs to know what case it has to answer, it is also important for the court to know what the case is 'so that it may fairly and expeditiously decide the case and in a manner which saves unnecessary expense' (Towler v Wills [2010] EWHC 1209 (Comm)). As the court commented in Jameel: 'An abuse of process is of concern not merely to the parties but to the court.

It is no longer the role of the court simply to provide a level playing field and to referee whatever game the parties choose to play upon it. The court is concerned to ensure that judicial and court resources are appropriately, and proportionately, used in accordance with the requirements of justice.'

It is also clear that the courts continue to take a balanced and pragmatic approach, looking at all matters in the round; in each of the cases examined above, it was the combined effect of several factors that led to the court's decision, rather than one single decisive factor. If this balancing act tips the scales in favour of the defendant, then, although strike out is a very draconian step, the court will clearly not shy away from using it in the right circumstances.

Copyright & permissions