Orji and another v Nagra and another

Practice and procedure – Claim – Strike out – Abuse of process – Appellant tenants bringing proceedings against respondent landlords alleging trespass – Appellants successfully appealing against public order offences and indicating intention to bring malicious prosecution claim – Claim struck out as abuse of process – Appellants appealing – Whether high hurdle for abuse of process met – Appeal allowed The appellants were the tenants of a property in Southampton owned by the respondents. The tenancy was terminated and due to expire in March 2018. A warrant for possession was granted and due to be executed in April 2018. It was alleged that there were rent arrears. The appellants commenced proceedings against the respondents claiming damages for trespass. Subsequently, the appellants were convicted of offences arising out of incidents at the property but they successfully appealed all but one of those convictions. That led to a pre-action protocol letter, sent by the appellants to the respondents, announcing their intention to bring a second claim for malicious prosecution. In August 2020, before that second claim had been commenced, a district judge granted the appellants permission to re-amend their particulars of claim in the ongoing trespass action. Those amendments did not seek to include the claim for malicious prosecution. In October 2020, the appellants issued a separate malicious prosecution claim. The respondents applied to strike out that claim as an abuse of process because, at the hearing in August 2020, the claimants had confirmed to the judge that the amended particulars were the final draft version of the claim. The malicious prosecution claim was not mentioned, although both parties knew that a specific claim was intended to be made. The claim was struck out as an abuse of process, relying upon the case of Henderson v Henderson [1843] 3 Hare 100. An appeal against that order was dismissed but permission was granted to bring a second appeal. Held: The appeal was allowed. (1) The principle based on the rule in Henderson v Henderson precluded a party from raising in subsequent proceedings matters which were not, but could and should have been, raised in the earlier case. The underlying public interest was that there should be finality in litigation and that a party should not be twice vexed in the same matter. That was reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public. Bringing a claim, or raising a defence, in later proceedings might amount to abuse if the court was satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings, if it was to be raised at all. However, it was wrong to hold that a matter which could have been raised in earlier proceedings should have been, so as to render the raising of it in later proceedings necessarily abusive. That was too dogmatic an approach to a broad, merits-based judgment which took account of the public and private interests involved and all the facts, focusing attention on the crucial question whether, in all the circumstances, a party was misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before: Johnson v Gore Wood & Co [2002] 2 AC 1 considered. (2) The rule in Henderson v Henderson had no application to the facts of the present case because there was no relevant determination by the district judge which could legitimately prevent the appellants’ subsequent pursuit of the malicious prosecution claim. At the hearing before the district judge, there was a trespass claim which had not gone beyond the pleading stage, and a later malicious prosecution claim, arising out of the same incident (but with many different features), which was still at the pleading stage. There had been no determination by the court of any substantive issue. The only determination that the district judge made was allowing the appellants permission to re-amend the trespass claim. On its face, that had nothing to do with the separate malicious prosecution claim, which had not even been commenced. On that basis, it was impossible to see how the rule could have any general applicability. (3) It was common ground that this appeal was concerned with the power in CPR 3.4(2)(b) to strike out the statement of case as an abuse of the court’s process or otherwise likely to obstruct the just disposal of the proceedings. The categories of abuse were not closed and a flexible approach to CPR 3.4(2)(b) had to be adopted. A party seeking to obtain a finding that there had been an abuse of process faced a high hurdle. It needed to show that the conduct of the party in question was so objectionable that they should forfeit their right to take part in a trial, such as where that party was determined to pursue proceedings with the object of preventing a fair trial. In the context of more than one set of proceedings, a later action would usually only amount to abuse of process if it involved unjust harassment or oppression. A party who learned of a second intended action and considered that it might be oppressive (and therefore an abuse) should say so promptly, rather than waiting and then applying to strike out under that ground: Dexter Ltd v Vlieland-Boddy [2003] EWCA Civ 14 and Aldi Stores Ltd v WSP Group plc [2007] EWCA Civ 1260; [2007] PLSCS 244 considered. (4) Striking out a claim was a draconian remedy. Even in a case where abuse might be made out, it did not necessarily follow that the claim should be struck out. The remedy of striking out had to be proportionate in all the circumstances. There were numerous alternative remedies, so the striking out of a valid claim should always be the last option: Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 and Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607 considered. The three elements of possible abuse alleged in the present case – deception, oppression and delay – had not been made out. So, if the rule in Henderson v Henderson did not apply, there was no freestanding abuse of process. Moreover, this case had not come close to surmounting the high hurdle on striking out. This was not a case of abuse of process that could justify the striking out of an arguable, in-time claim. Accordingly, the claim for malicious prosecution would be reinstated. Andrew Granville Stafford (instructed by Direct Access) appeared for the appellants; Marcus Croskell (instructed by Direct Access) appeared for the respondents. Eileen O’Grady, barrister Click here to read a transcript of Orji and another v Nagra and another