Land Securities plc and others v Fladgate Fielder (a firm)

Abuse of process – Claim for damages in tort – Claim alleging collateral or improper purpose on part of defendant in seeking judicial review of planning permission for claimants’ developments – Whether tort of abuse of process arising – Whether a collateral or improper purpose to seek to obtain financial advantage compensating for adverse effect of development on defendant’s property – Defendant applying to strike out claim against it – Application grantedThe defendant firm of solicitors occupied offices facing a site, near Oxford Street, London W1 (site A), that the claimants wanted to develop. In 2006, the defendant learnt that the claimants had applied for planning permission for the demolition of the existing building on the site and to replace it with a 10-storey structure. The works were expected to take three years. The defendant was concerned that this would adversely affect both its turnover and its plans to relocate to larger premises by damaging the marketability and value of the residue of its lease, which was to expire in 2013.The defendant decided that it might have recourse to judicial review in respect of the local planning authority’s proposal to waive the requirement of 30% affordable housing by “crediting” the claimants with over-provision on another site (site B). It formulated objections to the planning application, and entered into discussions with the claimants with a view to resolving the situation, by, for instance, assigning the residue of the lease to the claimants or by the claimants delaying the development until after the defendant vacated its premises. No resolution was reached.The defendant applied for judicial review of the grant of planning permission for site B. The claimants withdrew their reliance upon the affordable housing credit and submitted fresh planning applications for both developments in which they proposed a payment to the local planning authority’s affordable housing fund. The applications were granted. The defendant withdrew its application for judicial review in respect of site B but obtained permission for judicial review of site A.The claimants brought a claim for damages of £17m against the defendant on the ground that it’s objections and review claims were an abuse of process, having been motivated by the collateral and improper purpose of procuring a financial benefit. The defendant applied to strike out the claim, contending that there was no tort of abuse of process, as opposed to the power of the court to stay proceedings on that ground.Held: The application was granted.The tort of abuse of process did exist and had not fallen into desuetude: Grainger v Hill (1838) 4 Bing NC 211 applied. It was not necessary, in order to establish that tort, to show malice or want of reasonable or probable cause or that the proceedings had been terminated in favour of the claimant. It was not appropriate for the court to define further the limits of the tort in the instant application; the authorities differed as to whether it required some element of extortion, oppression or pressure to achieve an improper object, or whether it was confined only to ancillary, as opposed to originating, civil process: Goldsmith v Sperrings Ltd [1977] 1 WLR 478, Speed Seal Products Ltd v Paddington [1985] 1 WLR 1327, Metall & Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 and Hanrahan v Ainsworth (1990) 22 NSWLR 73 considered.The tort of abuse of process could apply to judicial review proceedings even though they were different in certain respects from other forms of civil legal process and did not directly enforce private law rights. The defendant in the instant case had no private law rights arising out of the claimants’ application for planning permission. However, in place of a private right of action vested in the owner of an affected property, the planning regulatory system provided a system of public law remedies, including the remedy of judicial review, to provide such level of protection as the policy of the law deemed appropriate to such persons. A property owner was entitled to use judicial review proceedings for the protection of its interest in and enjoyment of property, even though the remedy was often of limited scope and prima facie might appear to bear no relation to the property being protected. The property owner was entitled to compare the diminution in the value of its interest and enjoyment of its property with the countervailing, and perhaps substantial, development gain that the developer would enjoy from that development. It was not a “collateral purpose” to seek to use any negotiating position it might have to restore the lost value by obtaining it from the developer who caused it.Accordingly, the defendant had not been pursuing a collateral or improper purpose in seeking to use its negotiating position to obtain a financial advantage from the claimants that would enable it to “slip away” and leave the claimants to continue the development. The fact that the defendant had not objected against the site A development in principle, but objected only because of the negative effect upon its own property, did not affect that conclusion. The defendant’s attack on the site B development, and the affordable housing “credit”, was a natural way for it to defend its own premises owing to its importance as an essential link in the planning application for the site A development. The defendant had not acted out of an ulterior purpose unrelated to the subject matter of the litigation but had pursued an objective that was reasonably related to the provision of some sort of redress for its grievance: Goldsmith applied.Christopher Nugee QC and Jonathan Evans (instructed by Linklaters LLP) appeared for the claimants; Alan Steinfeld QC and Tom Leech (instructed by Barlow Lyde & Gilbert LLP) appeared for the defendant.Sally Dobson, barrister