Peter Richard Andreewitch v Magali Moutreuil & Anor
[2024] EWHC 2326 (Ch)
Peter Orji & Anor v Sukhdip Nagra & Anor
6 November 2023
[2023] EWCA Civ 1289
Court of Appeal
The Orjis sued their landlords for trespass and later for malicious prosecution. The lower courts threw out the second case, saying they should have included it in the first. The appeals court reversed this, saying the first case wasn't finished, and there was no evidence of trickery or unfairness by the Orjis.
Key Facts
- •Mr and Mrs Orji (appellants) brought a trespass claim against Mr and Mrs Nagra (respondents) after altercations in March 2018.
- •The appellants were initially convicted of assault and public order offences, but most convictions were overturned on appeal in December 2019.
- •In May 2020, the appellants sent a pre-action protocol letter indicating their intention to bring a separate malicious prosecution claim.
- •In August 2020, the appellants obtained permission to amend their trespass claim (excluding malicious prosecution). A disputed note of the hearing suggests the appellant gave an oral assurance that this was the final version of their claim.
- •In October 2020, the appellants issued the malicious prosecution claim.
- •The respondents applied to strike out the malicious prosecution claim as an abuse of process.
- •DDJ Payne struck out the claim, relying on the rule in Henderson v Henderson.
- •HHJ Berkley dismissed the appeal against DDJ Payne’s decision.
- •Warby LJ granted permission for a second appeal.
Legal Principles
Henderson v Henderson rule: A party must bring forward their whole case in a given matter; they cannot later litigate matters that could and should have been raised in earlier proceedings.
Henderson v Henderson [1843] 3 Hare 100; Johnson v Gore Wood & Co [2002] 2 AC 1
Abuse of process: Using court process for a purpose significantly different from its ordinary and proper use; conduct so objectionable that a party forfeits their right to participate in a trial.
Attorney General v Barker [2000] 1 F.L.R. 759; Arrow Nominees Inc v Blackledge [2000] B.C.L.C. 167
Striking out a claim is a draconian remedy and should be proportionate; alternative remedies should be considered first.
Biguzzi v Rank Leisure PLC [1999] 1 WLR 1926; Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607
Delay alone usually does not justify striking out a claim; additional factors are needed, such as wholesale disregard for litigation norms.
Habib Bank Ltd v Jaffer [2000] C.P.L.R. 438; Icebird Ltd v Winegardener [2009] UKPC 24
Outcomes
Appeal allowed.
The Henderson v Henderson rule did not apply because there was no prior determination of any substantive issue. The alleged abuse of process was not made out; there was no dishonesty or oppression, and the delay was not solely attributable to the appellants.