High Court Examines Issue Estoppel and Abuse of Process in Skatteforvaltningen v MCML Limited Case

Citation: [2024] EWHC 148 (Comm)
Judgment on

Introduction

In the case of Skatteforvaltningen (SKAT) v MCML Limited: EWHC-KBD-Commercial 2024, a decision made by the High Court of Justice on February 2nd, 2024, offers a nuanced examination of the doctrines of issue estoppel and Henderson v Henderson abuse of process. This case analysis elaborates on the legal principles that played a crucial role in the judgment rendered by Mr. Justice Bright, which delved into whether a new fraud claim could be brought against MCML Limited after previous litigation based on negligent misrepresentation.

Key Facts

In a series of actions named the Original Proceedings, SKAT alleged that tax refund payments were illegitimately procured through misrepresentations. One action targeted MCML Limited (ED&F Man) for negligent misrepresentation without alleging fraud. Subsequent new proceedings in 2022, initiated by SKAT, accused ED&F Man of deceit (fraudulent misrepresentation).

The case turned on whether the 2022 deceit claim should be struck out, based on principles of res judicata, specifically issue estoppel and whether SKAT’s actions constitute an abuse of process under Henderson v Henderson.

Issue Estoppel

Issue estoppel prevents a party from re-litigating an issue already decided by a competent court and is a fundamental part of res judicata. Justice Bright referred to the Thoday v Thoday [1964] definition and reaffirmed the doctrine as explained by Lord Keith in Arnold v National Westminster Bank Plc [1991]. It requires a strict identification of the identical issue previously decided, and it does not extend to similar issues or those that can be inferred or deduced (New Brunswick Railway Company v British and French Trust Corporation Ltd [1939]).

Henderson v Henderson Abuse of Process

Henderson v Henderson abuse of process is driven by the principle that litigation should have finality, and a party should not be vexed twice over the same matter. This principle has evolved to focus on a broad, merits-based judgment approach to assess potential abuse (Johnson v Gore-Wood [2002]). Lord Bingham emphasized the CPR overriding objective’s role in this regard (Aldi Stores Ltd v WSP Group plc [2007]). The court is unlikely to consider subsequent litigation as abusive in the absence of unjust harassment or oppression. Notwithstanding a breach of the Aldi guidance, a claim will not be struck out merely because of such failure unless extreme circumstances are present (Re Lehman Brothers Holdings Plc [2023]).

Outcomes

In this case, Mr Justice Bright found that SKAT’s failure to allege fraud in the Original Proceedings did not create an issue estoppel against the 2022 claim, citing that the issues in question were similar but not identical.

Regarding the alleged Henderson v Henderson abuse, while acknowledging SKAT did not comply with the Aldi guidance—failing both to include fraud in its original claim and to inform the Court of Appeal of its intention to do so—it did not qualify as abuse. The court held that ED&F Man did not suffer any unjust harassment, oppression, or significant prejudice due to the claim’s delay but that SKAT’s conduct would impact the adjudication of costs. The claim was allowed to be adjudicated for reasons that included considerations of justice, the public interest, and the severity of the fraud allegations.

Conclusion

The case of Skatteforvaltningen v MCML Limited represents a judicious application of issue estoppel and Henderson v Henderson abuse of process. Mr Justice Bright’s ruling reinforces the careful consideration of whether claims are truly identically issued and the importance of a thoughtful, broad assessment on claims of abuse of process. ED&F Man’s application to strike out the 2022 proceedings was denied, permitting SKAT’s fraud claim to proceed, albeit with possible consequences for SKAT regarding costs. This decision reiterates the court’s hesitancy to deprive claimants of their legitimate right to trial, especially when allegations of fraud are at stake.

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