Lee McLoughlin v Chief Constable Of Kent Police
[2024] EWHC 990 (KB)
Damian Warburton v The Chief Constable of Avon and Somerset Constabulary
2 March 2023
[2023] EWCA Civ 209
Court of Appeal
A lawyer sued the police twice for the same thing. The court said that's not fair and threw out the second lawsuit because he should have included everything in the first one. He knew he was trying to get more money even though he'd already been compensated for the issue.
Key Facts
- •Mr Warburton sued Avon & Somerset Constabulary for alleged breaches of the Data Protection Acts 1998 and 2018.
- •The claim related to data held by the Constabulary, some predating a defamation settlement in July 2019.
- •A judge struck out the pre-July 2019 claim, deeming it an abuse of process; it could have been included in the defamation case.
- •Mr Warburton appealed, arguing he'd 'raised' the data protection claim in the defamation proceedings despite not formally pleading it.
- •The settlement involved a Part 36 offer which, per Hertel v Saunders, only settled the pleaded defamation claim.
- •Mr Warburton, a trained lawyer and legal academic, argued that pursuing the unpleaded claims was not abusive, especially given Avon & Somerset's alleged litigation mistake.
- •Avon & Somerset argued the claim was abusive under the Henderson v Henderson principle (abuse of process).
Legal Principles
Henderson v Henderson abuse of process: A party cannot raise matters in later proceedings that could and should have been raised in earlier ones.
Henderson v Henderson (1843) 3 Hare 100, Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, Virgin Atlantic Airways Ltd v Zodiac Seat UK Ltd [2013] UKSC 46
Part 36 offers settle only pleaded claims. Claims not formally pleaded are excluded from the settlement, even if mentioned in correspondence or draft amendments.
Part 36.5(1)(d), Hertel v Saunders [2018] EWCA Civ 1831
Outcomes
Appeal dismissed.
The Court of Appeal found the pre-July 2019 claim was an abuse of process under the Henderson principle. Mr Warburton had the opportunity to include the data protection claim in the earlier defamation proceedings.
Pre-July 2019 DPA claim struck out.
Mr Warburton knew the Part 36 offer covered the data protection issues, and his attempt to recover additional damages for the same matter was deemed abusive.
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