Land Securities plc and others v Fladgate LLP

Tort – Abuse of process – Appellants’ proposed development having potentially adverse effect on value of respondent’s property – Respondent seeking judicial review of planning permission – Appellants alleging collateral or improper purpose on part of respondent in seeking judicial review – Whether tort of abuse of process existing – Whether respondent committing tort – Appeal dismissedThe respondent firm of solicitors occupied offices facing a site, near Oxford Street, London W1 (site A), that the appellants wanted to develop. In 2006, the respondent learnt that the appellants had applied for planning permission to demolish the existing building and to replace it with a 10-storey structure over a three-year period. It was concerned that this would adversely affect both its turnover and its plans to relocate by damaging the marketability and value of the residue of its lease, which was due to expire in 2013.It decided that it might have recourse to a judicial review of the local planning authority’s (LPA)proposal to waive the requirement of 30% affordable housing by crediting the appellants with over-provision on another site (site B). It formulated objections to the planning application and held discussions with the appellants to resolve the situation, but to no avail.The respondent applied for judicial review of the grant of planning permission for site B. The appellants withdrew their reliance on the affordable housing credit and made fresh planning applications, proposing a payment to the LPA’s affordable housing fund. The applications were granted. The respondent withdrew its application for judicial review in respect of site B but obtained permission to apply for judicial review of site A.The appellants claimed damages of £17m against the respondent on the ground that its objections and review claims were an abuse of process, motivated by the collateral and improper purpose of procuring a financial benefit. The respondent applied to strike out the claim under CPR 3.4(2)(a), contending that there was no tort of abuse of process. The High Court held that such a tort existed and could be applied to judicial review proceedings and accordingly refused to strike out the claim for failure to disclose a cause of action. However, it granted summary judgment to the respondent on the ground that no abuse had been established on the facts: [2009] EWHC 577 (Ch); [2009] 13 EG 143 (CS). The appellants appealed.Held: The appeal was dismissed.There was no basis for extending a tort of abuse of process to the respondent’s proceedings for judicial review. There was no general tort of malicious prosecution of civil cases. On policy grounds, the tort was confined to the three well-established heads of damage recognised in Quartz Hill Consolidated Gold Mining Co v Eyre (1883) LR 11 QBD 674 and Gregory v Portsmouth City Council [2000] 1 AC 419. The essential ingredients of a claim for malicious prosecution were the absence of reasonable and probable cause and that the proceedings had ended in favour of the person maliciously prosecuted. Although a tort of abuse of process existed, it had been invoked only in cases involving a blatant misuse of the process of arrest and execution within existing proceedings, with compulsion by arrest and imprisonment being used to achieve a collateral advantage: Grainger v Hill (1838) 4 Bing NC 212 and Gilding v Eyre (1861) 5 LT 136 considered. In cases of abuse of process, it was irrelevant whether there was reasonable or probable cause for the proceedings or in whose favour they ended or whether they had ended. There was no clearly accepted approach for identifying what was sufficiently collateral to establish the tort of abuse of process. Even if the tort could be committed outside circumstances of compulsion by arrest, imprisonment or other forms of duress, there was no reasonably arguable basis for extending the tort beyond the other particular heads of damage that had to exist for invocation of the tort of malicious prosecution.Even if a wider formulation of the tort of abuse of process were adopted, a tort would not be committed by a party that instituted proceedings with a genuine interest in, and an intention to secure, their successful outcome, even if the claimant’s motives were mixed and it hoped to achieve an objective not within the scope of the proceedings. That was often the situation in judicial review proceedings concerning planning matters: R (on the application of Mount Cook Land Ltd) v Westminster City Council [2003] EWCA Civ 1346; [2004] 1 PLR 29 considered.There was a public interest in bringing judicial scrutiny and remedies to bear on improper acts and decisions of public bodies. The permission stage of judicial review was intended to weed out claims without sufficient prospects of success.Christopher Nugee QC and Jonathan Evans (instructed by Linklaters LLP) appeared for the appellants; Alan Steinfeld QC and Tom Leech (instructed by Barlow Lyde & Gilbert LLP) appeared for the respondent.Eileen O’Grady, barrister