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.