“Erasure/permanent hard deletion of all of the evidence logs complained of. Undertaking not to disclose again to any third party. Compensation of£25k to reflect the extreme distress, hurt and depression he has suffered for the last two years as a result of the ill-advised disclosures to Herts, and the knowledge that the prospect of further disclosures shut him out of his chosen career. Private message of apology from a senior officer on the vetting side at [Avon & Somerset] ...”
“[W]here a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time...Now, undoubtedly the whole of the case made by this bill might have been adjudicated upon in the suit in Newfoundland, for it was of the very substance of the case there, and prima facie, therefore, the whole is settled. The question then is whether the special circumstances appearing upon the face of this bill are sufficient to take the case out of the operation of the general rule.”
“…Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is 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. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not….”
“…There is, therefore, only one question to be considered in the present case: whether it was oppressive or otherwise an abuse of the process of the court for Mr. Johnson to bring his own proceedings against the firm when he could have brought them as part of or at the same time as the Company's action. This question must be determined as at the time when Mr. Johnson brought the present proceedings and in the light of everything that had then happened. There is, of course, no doubt that Mr. Johnson could have brought his action as part of or at the same time as the Company's action. But it does not at all follow that he should have done so or that his failure to do so renders the present action oppressive to the firm or an abuse of the process of the court….it may in a particular case be sensible to advance claims separately. Insofar as the so-called rule in Henderson v. Henderson suggests that there is a presumption against the bringing of successive actions, I consider that it is a distortion of the true position. The burden should always rest upon the defendant to establish that it is oppressive or an abuse of process for him to be subjected to the second action.”
“…Res judicata and abuse of process are juridically very different. Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court’s procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. As Lord Keith put it in Arnold v National Westminster Bank at p 110G, “estoppel per rem judicatam, whether cause of action estoppel, or issue estoppel is essentially concerned with preventing abuse of process.”
“54. Mr Warburton says it is as the other side had lawyers and they used the wrong settlement method. It is not fair to deprive him of his remedy in respect of the data breaches. Mr Warburton is a lawyer by training and knew and understood the Part 36 offer. He knew from the emails that the money offer was to compensate him for all disclosure of data. He was clear that he wanted the data deleted and at the time the offer was accepted, he had made clear he retained that right. He is not deprived of his rights to pursue a claim in relation to retention of data logs. He can make such a claim as it is not res judicata. However I am satisfied looking at all the factors in this case that there is no question that it would be an abuse of process to allow him to continue with the claim for damages up to and including the period to date of settlement. 55. It is trite that had he brought forward all of his claims in the original claim at the outset, none of this would have arisen. He knew that Avon and Somerset’s offer was intended to settle quantum in respect of data breaches. He accepted the offer to settle the claim knowing that the money offer was intended to compensate not for defamation but the underlying breach of data issues that had been identified. It is unconscionable to permit him to bring new proceedings seeking further damages for breach of DPA in these circumstances. Adapting the words of Lord Bingham in Gore Wood v Johnson, the crucial question is whether in all the circumstances Mr Warburton is misusing or abusing the process of the court by seeking to raise the issue which could have been raised before. I am satisfied having looked at all factors, that by bringing this claim for damages for breach of data that arose prior to the settlement in July 2019, Mr Warburton is abusing the process of this court as he has been compensated for the same which were integral to the defamation claim and none of this would have arisen if he had brought the totality of his claims to court in the first instance. He has never explained why he did not do so.”