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There have been several cases dealing with whether a claim which is inconsistent with an
earlier claim or evidence given by the claimant in earlier proceedings (such as an affidavit used
in an application to discharge a freezing injunction) should be struck out as an abuse of
process. Further, a party to litigation is required to bring forward his whole case, and is
generally not permitted to bring later proceedings raising matters that could have been
resolved in the earlier proceedings (the rule in Henderson v Henderson (1843) 3 Hare 100). It is
clear from cases such as Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482 that
there are two main elements:
(a) that the second claim is one that could have been brought in the first claim, or is in
conflict with an earlier claim or evidence; and
(b) an additional element, such as a collateral attack on the earlier decision, or dishonesty,
election, or unjust harassment.
Thus, in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 a claim against the
police was struck out as it was held to be no more than a collateral attack upon the decision of
another court of competent jurisdiction.
33.14 Issue estoppel Where the issues raised in an earlier claim are identical to the issues raised
in a later claim, there is an absolute bar on the later proceedings unless fraud or collusion
is alleged (Arnold v National Westminster Bank plc [1991] 2 AC 93). Where an issue decided in a
previous claim between the parties is central to a second claim between the same parties, the
whole second claim will be struck out (Kennecott Utah Copper Corporation v Minet Ltd [2002]
EWHC 1622 (Comm), [2003] PNLR 18). Issue estoppel applies where an order is made, and it does
not matter whether the order was made by consent or after argument (Lennon v Birmingham City
Council [2001] EWCA Civ 435, LTL 27/3/2001). Issue estoppel also arises to prevent a party
reopening a liability issue after a judgment for damages to be decided by the court on the
assessment of damages (Item Software (UK) Ltd v Fassihi (2003) LTL 28/1/2003). There is no issue
estoppel if there is no definitive decision on the issue in the first claim (Tannu v Moosajee [2003]
EWCA Civ 815, LTL 20/6/2003).
Where the parties in the two claims are not the same, issue estoppel does not apply (Sweetman
v Nathan [2003] EWCA Civ 1115, The Times, 1 September 2003), and further, the factual findings in
the first claim are not admissible evidence in the second claim (Hollington v F. Hewthorn and Co.
Ltd [1943] KB 587). A person claiming title to goods or land is treated as being privy to the
interests of those through whom title is claimed, and so will be bound by the decision in
proceedings in which any predecessor in title was a party, but only if judgment in those
proceedings was given before the presently claimed title was acquired. A person who
purchased title before judgment is not regarded as a privy (Powell v Wiltshire [2004] EWCA Civ
534, [2005] QB 117).
33.15 Issue which should have been raised in earlier proceedings It is an abuse of process to raise
in a second claim an issue which should have been raised against someone who was a party to
earlier proceedings (Henderson v Henderson (1843) 3 Hare 100; Talbot v Berkshire County Council
[1994] QB 290). Where it is alleged that an issue was or should have been raised in earlier
proceedings, it is first necessary to consider whether issue estoppel applies, which can only be
negatived by fraud or collusion (see 33.14). It is only if there is no such estoppel that it is
appropriate to consider whether raising the issue now would be an abuse of process under the
principle in Henderson v Henderson (see Coflexip SA v Stolt Offshore MS Ltd [2004] EWCA Civ 213,
[2004] FSR 34; Kennecott Utah Copper Corporation v Minet Ltd [2003] EWCA Civ 905, [2004] 1 All ER
(Comm) 60; Bim Kemi AB v Blackburn Chemicals Ltd [2004] EWCA Civ 1490, The Times, 22 November
2004). In Johnson v Gore Wood and Co. [2002] 2 AC 1 the House of Lords held that when
considering whether a second claim is an abuse of process a broad, merits-based judgment has
to be made, taking into account all the public and private interests involved, and all the facts.
Chapter 33 Striking Out
347
A second claim should be struck out only if, in all the circumstances, it should, rather than
merely could, have been brought in the first claim. Mr Johnson was a shareholder in a
company which had sued the defendant solicitors. That first claim was settled, with the
compromise agreement containing a clause seeking to limit the defendants’ liability to Mr
Johnson personally. Mr Johnson then sued the solicitors in his personal capacity, and the
defendants applied to strike out his personal claim as an abuse. Certain heads of claim were
struck out, as they merely reflected losses suffered by the company in which Mr Johnson held
shares, but others were arguably recoverable by Mr Johnson in his own right, and it was held
that even though his personal claim could have been joined with the first claim by the
company, it was not on the facts an abuse to have brought the personal claim by separate
proceedings. Contrast Giles v Rhind [2002] EWCA Civ 1428, [2003] Ch 18, where a shareholder’s
claim was allowed to proceed because it was not reflective of the company’s loss. The question
of reflected losses is discussed further at 14.41.
In Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14, LTL 24/1/2003, the defendant in the second
claim was the brother of the defendant in an earlier claim based on the same facts. It was held
that the burden was on the defendant to show that the second claim was abusive. Applying a
broad merits-based approach, taking into account the fact the defendants were different and
that the first claim resulted in an unsatisfied judgment, the second claim was allowed to
proceed.
It will only be an abuse of process to challenge the findings in the earlier claim if it would be
manifestly unfair to a party in the later claim for the issues to be relitigated, or if relitigating
will bring the administration of justice into disrepute (Secretary of State for Trade and Industry v
Bairstow [2003] EWCA Civ 321, [2004] Ch 1). Where an issue, which is raised on taking accounts
following judgment, was before the trial judge, but was not decided definitively, the question
is whether a party is misusing or abusing the process of the court in raising the issue again
(Tannu v Moosajee [2003] EWCA Civ 815, LTL 20/6/2003).
Where the first and second claims are of a different nature, compelling reasons are required
before the later claim will be struck out (Specialist Group International Ltd v Deakin [2001] EWCA
Civ 77, LTL 23/5/2001). In Heffernan v Grangewood Securities Ltd [2001] EWCA Civ 1082, LTL 19/6/
2001, proceedings were commenced by a mortgagee which were compromised in 1995 on
terms that the mortgagors would pay the arrears over the remaining term of the mortgage. In
1997 the mortgagors commenced their own claim seeking a declaration that the original
mortgage was not binding. This second claim was struck out because the mortgagors should
have raised this issue in the first claim.
Estoppel preventing application to strike out In Johnson v Gore Wood and Co. [2002] 2 AC 1 33.16
the House of Lords considered whether a court should refuse to strike out a second claim,
which is alleged to be an abusive relitigation of an earlier claim, because of the defendant’s
previous conduct, in particular where the second claim was taken into consideration when
reaching a settlement of the first claim. This is best considered as an estoppel by representation,
with the key question being whether it would be unconscionable for the defendant to apply
for striking out.
Fresh evidence Claims have been allowed even though they involve questioning the 33.17
decision of a court of competent jurisdiction if fresh evidence has come to light since
the earlier decision, or where the second claim is a professional negligence claim against the
solicitors acting for the claimant in the first claim, see Walpole v Partridge and Wilson [1994]
QB 106. A damages claim was permitted to proceed, subject to stringent conditions, in
Sweetman v Shepherd (2000) The Times, 29 March 2000, despite the fact that it could have been
brought by contribution proceedings in an earlier claim.
Reviving earlier claim In Buckland v Palmer [1984] 1 WLR 1109 it was held to be an abuse of 33.18
process to commence a second claim in respect of the same cause of action as was raised in an
Part H Interim Applications
348
earlier claim. The claimant’s car had been damaged in a motor accident. Repairs cost £1,142.
She claimed on her insurance, and brought proceedings against the defendant claiming the
£50 excess not paid by her insurer. This claim was stayed when she accepted a payment into
court. The insurer then commenced a second claim in the name of the claimant claiming
£1,092, and this claim was struck out as an abuse of process. However, it was possible for the
insurer to apply for the first claim to be revived (as it had not proceeded to judgment) and for
the original claim to be amended to include the full costs of repairs. A comment was made
in Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482 that abuse of process cases of
this nature will perhaps be less frequent under the CPR, because of the requirement that the
claimant must sign a statement of truth in relation to the second claim, which might be
difficult given an earlier, inconsistent, claim.
earlier claim or evidence given by the claimant in earlier proceedings (such as an affidavit used
in an application to discharge a freezing injunction) should be struck out as an abuse of
process. Further, a party to litigation is required to bring forward his whole case, and is
generally not permitted to bring later proceedings raising matters that could have been
resolved in the earlier proceedings (the rule in Henderson v Henderson (1843) 3 Hare 100). It is
clear from cases such as Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482 that
there are two main elements:
(a) that the second claim is one that could have been brought in the first claim, or is in
conflict with an earlier claim or evidence; and
(b) an additional element, such as a collateral attack on the earlier decision, or dishonesty,
election, or unjust harassment.
Thus, in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 a claim against the
police was struck out as it was held to be no more than a collateral attack upon the decision of
another court of competent jurisdiction.
33.14 Issue estoppel Where the issues raised in an earlier claim are identical to the issues raised
in a later claim, there is an absolute bar on the later proceedings unless fraud or collusion
is alleged (Arnold v National Westminster Bank plc [1991] 2 AC 93). Where an issue decided in a
previous claim between the parties is central to a second claim between the same parties, the
whole second claim will be struck out (Kennecott Utah Copper Corporation v Minet Ltd [2002]
EWHC 1622 (Comm), [2003] PNLR 18). Issue estoppel applies where an order is made, and it does
not matter whether the order was made by consent or after argument (Lennon v Birmingham City
Council [2001] EWCA Civ 435, LTL 27/3/2001). Issue estoppel also arises to prevent a party
reopening a liability issue after a judgment for damages to be decided by the court on the
assessment of damages (Item Software (UK) Ltd v Fassihi (2003) LTL 28/1/2003). There is no issue
estoppel if there is no definitive decision on the issue in the first claim (Tannu v Moosajee [2003]
EWCA Civ 815, LTL 20/6/2003).
Where the parties in the two claims are not the same, issue estoppel does not apply (Sweetman
v Nathan [2003] EWCA Civ 1115, The Times, 1 September 2003), and further, the factual findings in
the first claim are not admissible evidence in the second claim (Hollington v F. Hewthorn and Co.
Ltd [1943] KB 587). A person claiming title to goods or land is treated as being privy to the
interests of those through whom title is claimed, and so will be bound by the decision in
proceedings in which any predecessor in title was a party, but only if judgment in those
proceedings was given before the presently claimed title was acquired. A person who
purchased title before judgment is not regarded as a privy (Powell v Wiltshire [2004] EWCA Civ
534, [2005] QB 117).
33.15 Issue which should have been raised in earlier proceedings It is an abuse of process to raise
in a second claim an issue which should have been raised against someone who was a party to
earlier proceedings (Henderson v Henderson (1843) 3 Hare 100; Talbot v Berkshire County Council
[1994] QB 290). Where it is alleged that an issue was or should have been raised in earlier
proceedings, it is first necessary to consider whether issue estoppel applies, which can only be
negatived by fraud or collusion (see 33.14). It is only if there is no such estoppel that it is
appropriate to consider whether raising the issue now would be an abuse of process under the
principle in Henderson v Henderson (see Coflexip SA v Stolt Offshore MS Ltd [2004] EWCA Civ 213,
[2004] FSR 34; Kennecott Utah Copper Corporation v Minet Ltd [2003] EWCA Civ 905, [2004] 1 All ER
(Comm) 60; Bim Kemi AB v Blackburn Chemicals Ltd [2004] EWCA Civ 1490, The Times, 22 November
2004). In Johnson v Gore Wood and Co. [2002] 2 AC 1 the House of Lords held that when
considering whether a second claim is an abuse of process a broad, merits-based judgment has
to be made, taking into account all the public and private interests involved, and all the facts.
Chapter 33 Striking Out
347
A second claim should be struck out only if, in all the circumstances, it should, rather than
merely could, have been brought in the first claim. Mr Johnson was a shareholder in a
company which had sued the defendant solicitors. That first claim was settled, with the
compromise agreement containing a clause seeking to limit the defendants’ liability to Mr
Johnson personally. Mr Johnson then sued the solicitors in his personal capacity, and the
defendants applied to strike out his personal claim as an abuse. Certain heads of claim were
struck out, as they merely reflected losses suffered by the company in which Mr Johnson held
shares, but others were arguably recoverable by Mr Johnson in his own right, and it was held
that even though his personal claim could have been joined with the first claim by the
company, it was not on the facts an abuse to have brought the personal claim by separate
proceedings. Contrast Giles v Rhind [2002] EWCA Civ 1428, [2003] Ch 18, where a shareholder’s
claim was allowed to proceed because it was not reflective of the company’s loss. The question
of reflected losses is discussed further at 14.41.
In Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14, LTL 24/1/2003, the defendant in the second
claim was the brother of the defendant in an earlier claim based on the same facts. It was held
that the burden was on the defendant to show that the second claim was abusive. Applying a
broad merits-based approach, taking into account the fact the defendants were different and
that the first claim resulted in an unsatisfied judgment, the second claim was allowed to
proceed.
It will only be an abuse of process to challenge the findings in the earlier claim if it would be
manifestly unfair to a party in the later claim for the issues to be relitigated, or if relitigating
will bring the administration of justice into disrepute (Secretary of State for Trade and Industry v
Bairstow [2003] EWCA Civ 321, [2004] Ch 1). Where an issue, which is raised on taking accounts
following judgment, was before the trial judge, but was not decided definitively, the question
is whether a party is misusing or abusing the process of the court in raising the issue again
(Tannu v Moosajee [2003] EWCA Civ 815, LTL 20/6/2003).
Where the first and second claims are of a different nature, compelling reasons are required
before the later claim will be struck out (Specialist Group International Ltd v Deakin [2001] EWCA
Civ 77, LTL 23/5/2001). In Heffernan v Grangewood Securities Ltd [2001] EWCA Civ 1082, LTL 19/6/
2001, proceedings were commenced by a mortgagee which were compromised in 1995 on
terms that the mortgagors would pay the arrears over the remaining term of the mortgage. In
1997 the mortgagors commenced their own claim seeking a declaration that the original
mortgage was not binding. This second claim was struck out because the mortgagors should
have raised this issue in the first claim.
Estoppel preventing application to strike out In Johnson v Gore Wood and Co. [2002] 2 AC 1 33.16
the House of Lords considered whether a court should refuse to strike out a second claim,
which is alleged to be an abusive relitigation of an earlier claim, because of the defendant’s
previous conduct, in particular where the second claim was taken into consideration when
reaching a settlement of the first claim. This is best considered as an estoppel by representation,
with the key question being whether it would be unconscionable for the defendant to apply
for striking out.
Fresh evidence Claims have been allowed even though they involve questioning the 33.17
decision of a court of competent jurisdiction if fresh evidence has come to light since
the earlier decision, or where the second claim is a professional negligence claim against the
solicitors acting for the claimant in the first claim, see Walpole v Partridge and Wilson [1994]
QB 106. A damages claim was permitted to proceed, subject to stringent conditions, in
Sweetman v Shepherd (2000) The Times, 29 March 2000, despite the fact that it could have been
brought by contribution proceedings in an earlier claim.
Reviving earlier claim In Buckland v Palmer [1984] 1 WLR 1109 it was held to be an abuse of 33.18
process to commence a second claim in respect of the same cause of action as was raised in an
Part H Interim Applications
348
earlier claim. The claimant’s car had been damaged in a motor accident. Repairs cost £1,142.
She claimed on her insurance, and brought proceedings against the defendant claiming the
£50 excess not paid by her insurer. This claim was stayed when she accepted a payment into
court. The insurer then commenced a second claim in the name of the claimant claiming
£1,092, and this claim was struck out as an abuse of process. However, it was possible for the
insurer to apply for the first claim to be revived (as it had not proceeded to judgment) and for
the original claim to be amended to include the full costs of repairs. A comment was made
in Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482 that abuse of process cases of
this nature will perhaps be less frequent under the CPR, because of the requirement that the
claimant must sign a statement of truth in relation to the second claim, which might be
difficult given an earlier, inconsistent, claim.
From a very useful text book
