“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; …”
“The court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if— (a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“Statements of case which are suitable for striking out on ground (a) include those which raise an unwinnable case where continuance of the proceedings is without any possible benefit to the respondent and would waste resources on both sides (Harris v Bolt Burdon [2000] C.P. Rep. 70; [2000] C.P.L.R. 9). A claim or defence may be struck out as not being a valid claim or defence as a matter of law (Price Meats Ltd v Barclays Bank Plc [2000] 2 All E.R. (Comm) 346, Ch D). However, it is not appropriate to strike out a claim in an area of developing jurisprudence, since, in such areas, decisions as to novel points of law should be based on actual findings of fact (Farah v British Airways, The Times,26 January 2000 , CA referring to Barrett v Enfield BC [2001] 2 A.C. 550; [1989] 3 W.L.R. 79, HL). A statement of case is not suitable for striking out if it raises a serious live issue of fact which can only be properly determined by hearing oral evidence (Bridgeman v McAlpine-Brown,19 January 2000 , unrep., CA). An application to strike out should not be granted unless the court is certain that the claim is bound to fail (Hughes v Colin Richards & Co[2004] EWCA Civ 266 ; [2004] P.N.L.R. 35, CA (relevant area of law subject to some uncertainty and developing, and it was highly desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts)). Where a statement of case is found to be defective, the court should consider whether that defect might be cured by amendment and, if it might be, the court should refrain from striking it out without first giving the party concerned an opportunity to amend (In Soo Kim v Youg[2011] EWHC 1781 (QB) ).”
“i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman [2001] 1 All E.R. 91; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No.5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] F.S.R. 3; vii) On the other hand it is not uncommon for an application under Pt 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd[2007] EWCA Civ 725 .”
“1. The Discloser [YLL] intends to disclose information (the Confidential Information) to the Recipient [CIL] for the purpose of obtaining litigation funding advice on behalf of Claimants in a large Group Action (the Purpose). 2. The Recipient undertakes not to use the Confidential Information for any purpose except the Purpose, without first obtaining the written agreement of the Discloser. The Recipient further undertakes not to accept instructions for or to act on behalf of any other group of Claimants in the contemplated Group Action without the express permission of the Discloser. 3. The Recipient undertakes to keep the Confidential Information secure and not to disclose it to any third party except those who know they owe a duty of confidence to the Discloser and who are bound by obligations equivalent to those in clause 2 above and this clause 3. 4. The undertakings in clauses 2 and 3 above apply to all of the information disclosed by the Discloser to the Recipient, regardless of the way or form in which it is disclosed or recorded but they do not apply to: a) Any information which is or in future comes into the public domain (unless as a result of the breach of this Agreement); or b) Any information which is already known to the Recipient and which was not subject to any obligation of confidence before it was disclosed to the Recipient by the Discloser.” “1. The Discloser [YLL] intends to disclose information (the Confidential Information) to the Recipient [CIL] for the purpose of obtaining litigation funding advice on behalf of Claimants in a large Group Action (the Purpose). 2. The Recipient undertakes not to use the Confidential Information for any purpose except the Purpose, without first obtaining the written agreement of the Discloser. The Recipient further undertakes not to accept instructions for or to act on behalf of any other group of Claimants in the contemplated Group Action without the express permission of the Discloser. 3. The Recipient undertakes to keep the Confidential Information secure and not to disclose it to any third party except those who know they owe a duty of confidence to the Discloser and who are bound by obligations equivalent to those in clause 2 above and this clause 3. 4. The undertakings in clauses 2 and 3 above apply to all of the information disclosed by the Discloser to the Recipient, regardless of the way or form in which it is disclosed or recorded but they do not apply to: a) Any information which is or in future comes into the public domain (unless as a result of the breach of this Agreement); or b) Any information which is already known to the Recipient and which was not subject to any obligation of confidence before it was disclosed to the Recipient by the Discloser.”
“Final advices on liability and quantum, alongside a full litigation pack were sent to Mr Fairley on 2 and3 April 2016 . [YLL] sent those documents, including privileged and confidential documents and which represented the product of substantial work analysing and preparing the claim, pursuant to the NDA and in the expectation that it would be provided to third parties only in circumstances permitted by clause 3 of the NDA.”
“39. Pursuant to clause 3 of the [YLL/CIL] NDA, CIL undertook not to disclose the Confidential Information to any third parties except those who had undertaken obligations to CIL to the same effect, including in particular an obligation not to accept instructions to act on behalf of any other group of claimants in the proposed group action without [YLL’s] express permission. 40. The agreement between CIL and Therium contained no such clause and did not prevent Therium from funding another group of claimants in the proposed group action without [YLL’s] express permission, contrary to the assurances given to [YLL] by Mr Fairley. 41. Accordingly, CIL’s disclosure of the Confidential Information was a breach of clause 3 of the [YLL/CIL] NDA.”
“[66]……….. Ultimately, Mr Foxton’s argument turned on his suggestion that clauses 1–4, and 7 read as a whole made it clear that the Restriction was limited to actions brought, based on the disclosed confidential information. He reached that conclusion by arguing that, otherwise, neither clauses 3 nor 4 made sense, because they referred respectively to the “obligations” and “undertakings” in clause 2. Since the plurals were used, the references back in clauses 3 and 4 must be taken to refer to both the first sentence of clause 2 concerning confidential information and the Restriction inhibiting competition. “ 67.In our view this ingenious argument proves too much. It requires the addition to the Restriction of the words ‘based on the confidential information disclosed’ which are simply not present. The restriction does not say that [Harcus Sinclair] undertakes not to accept instructions for or to act on behalf of any other group of Claimants in a contemplated Group Action based on the confidential information disclosed. The last six words are not present, even though they could easily have been added. Moreover, the more obvious interpretation is to read clauses 3 and 4 of the NDA as if they are only referring back to the main provisions of the NDA concerning disclosure of confidential information. That does no violence to clause 3, where the words ‘obligations equivalent to those in clause 2 above and this clause 3’ can properly refer to the first sentence of clause 2 and the whole of clause 3 itself. It is true that the words ‘The undertakings in clauses 2 and 3 above’ in clause 4 do, on the judge’s interpretation, need to be read as if they refer only to the undertakings in the first sentence of clause 2 and in clause 3. As it seems to us, however, that is a perfectly natural reading of an agreement that includes two types of obligation: those related to the disclosure and use of confidential information on the one hand, and a non-compete clause on the other hand. (underlining added) 68. We accept Mr Foxton’s [counsel for Harcus Sinclair] point that the Restriction seems rather broad on the judge’s construction. We accept that the Restriction is a single provision in an agreement that is otherwise wholly concerned with the protection of confidential information disclosed for the purposes of obtaining what is seemingly intended to be preliminary legal advice. But we find it impossible to escape the conclusion that the clear words of the Restriction mean what they say. We agree with the judge when he said at para 274 that the Restriction is not ambiguous. …”
“Since the decision of the court on the meaning of a contract decides a question of law, the doctrine of stare decisis theoretically means that any inferior court is bound by the point of law decided. However any contract is a consensual arrangement between particular parties made against the background of particular circumstances. In those circumstances it has proved a relatively simple task for the court to distinguish a decision made in relation to a different contract when it so desires. Indeed some judges have asserted that the decision of a superior court on a question of interpretation of a written contract does not bind even an inferior court”
“[249] First, there is the question of what the words in sentence 2 mean. What is their effect? The defendant says that the meaning of sentence 2 is clear. It prohibits “Harcus Sinclair” from acting for any group of claimants in the “VW litigation” other than the defendant’s group of claimants. In its skeleton argument for trial the expression “Harcus Sinclair” was used to identify both claimants, without distinction. The expression the “VW litigation” was not defined, but I take it to mean the same litigation in the Queen’s Bench Division which I am referring to as the emissions litigation. [250] The claimants say that sentence 2 had a much narrower meaning, which is helpfully summarised in paragraph 16 of the claimants’ very helpful, and full note in closing. What is said in para 16 is as follows: “As set out in section D of Harcus Sinclair’s skeleton argument, on its proper construction, sentence 2: (1) was confined to Harcus Sinclair llp, (2) was confined to the group action that was contemplated in the information in respect of which confidence was to be preserved, which Your Lawyers intended to disclose to Harcus Sinclair llp in anticipation of discussions between them about a possible collaboration; (3) did not preclude Harcus Sinclair llp from representing clients of their own; and (4) governed the position only until the parties agreed to collaborate.”
“47. First, under clause 5.2 of the CIL/Therium Agreement: “Where a case has been introduced first to the Company [Therium] by the Introducer [CIL], the Company agrees not to: 5.2.1 accept the referral by any other introducer; or 5.2.2 treat the case as a direct referral and thereby circumvent the Introducer’s involvement or its potential entitlement to Introducer’s Commission (in accordance with clause 3 above).” 48. Also, clause 13 of the CIL/Therium Agreement provides that: “Non Circumvention and Good Faith 13.1 Both parties agree that neither party shall circumvent the other party with regards to any transaction, opportunity, investment or relationship involved in or resulting from the disclosure of confidential information, pursuant to clause 6, from one party to the other party or the contents of such information. 13.2 The parties agree that they each owe the other a duty of good faith in relation to the performance of their respective obligations.” 49. Those provisions have the effect of preventing Therium from accepting any referrals in the VW emissions litigation from anyone other than CIL following CIL’s first introduction. 50. Second, since by virtue of the non-compete obligation in the second sentence of clause 2 of the YLL/CIL NDA, CIL itself required YLL’s express permission to accept instructions for or to act on behalf of any group of claimants other than the YLL claimants, Therium could not itself act on behalf of any other group of claimants without YLL having given its express permission to CIL to enable that to occur.” “Where a case has been introduced first to the Company [Therium] by the Introducer [CIL], the Company agrees not to: 5.2.1 accept the referral by any other introducer; or 5.2.2 treat the case as a direct referral and thereby circumvent the Introducer’s involvement or its potential entitlement to Introducer’s Commission (in accordance with clause 3 above).” “Non Circumvention and Good Faith 13.1 Both parties agree that neither party shall circumvent the other party with regards to any transaction, opportunity, investment or relationship involved in or resulting from the disclosure of confidential information, pursuant to clause 6, from one party to the other party or the contents of such information. 13.2 The parties agree that they each owe the other a duty of good faith in relation to the performance of their respective obligations.”
“401. … none of the information contained in the Confidential Documents has been used by [Harcus Sinclair LLP] in such a way as to breach the duty of confidence owed by [Harcus Sinclair LLP] in respect of the Confidential Documents. I find that the Confidential Documents have not acted as any kind of springboard in the formulation of the claim which is now being pursued on behalf of the HS Group. 402. … It seems to me that the claim which is now being pursued on behalf of the HS Group derives from [Harcus Sinclair LLP’s] own work and the work of [Harcus Sinclair LLP’s] counsel, not from the Confidential Documents. … 407. I therefore conclude that [Harcus Sinclair LLP] has not misused the information in the Confidential Documents, or any of that information in breach of its non-contractual duty of confidence to [YLL]. … 409. … On the basis of the same reasoning I do not think that it can be said that [Harcus Sinclair LLP] has used, or is using the information in the Confidential Documents for a purpose not authorised by [the first sentence of clause 2 of the Harcus Sinclair NDA]. In my view there has been, and is no such use.”
“28. At the hearing on24 August 2017 it was agreed between the parties that standard disclosure should be dispensed with and that, in place of standard disclosure, there should be directions permitting each party to request specific disclosure of documents, with provision for application to court to be made in the event of documents being requested and not provided. In the event there were applications for specific disclosure made by each side, which I dealt with at a pre-trial review in the action, held on15 September 2017 , and in a pre-trial hearing, held on26 September 2017 . 29 The action came on for trial on27 September 2017 . The expedited nature of the trial meant that a very large of amount of work had to be done, in a short space of time, in order to prepare for trial. I pay tribute to the legal teams on both sides for all their hard work in ensuring that the action was ready for trial on27 September 2017 , particularly given the large number of documents which eventually came to occupy the trial bundles. As a result of all this hard work, for which I am extremely grateful, I consider that I am in as good a position to determine the issues in this action as I would have been if the action had followed a conventional path to trial.”
“55. In his oral evidence Mr Moore accepted that he regarded these e-mails from Mr Fairley and their attachments as confidential (to the extent that the attached information was not available to the public), save for the Wikipedia information, and that he had no authority to send the confidential material attached thereto on to anyone else. Mr Moore did however qualify this. Mr Moore claimed that he was entitled, under his arrangement with Mr Fairley, to take legal advice from his advisers. 56. Mr Parker met Mr Moore at a lunch on7 April 2016 . Mr Moore mentioned the proposed Volkswagen group claim, and asked Mr Parker what he thought. On the evening of the same day (21.22) Mr Fairley e-mailed Mr Parker, seeking an initial conversation in respect of the proposed group claim, which Mr Fairley did not identify specifically. Mr Parker replied by e-mail the following day (14.28 on8 April 2016 ) asking if he could see the opinions. Mr Parker did not identify what he meant by the reference to the opinions. Mr Parker did say that he would be happy to sign a non-disclosure agreement, and asked if he could ask Therium for the opinions. Mr Fairley e-mailed in reply (14.33) saying that he would get back to Mr Parker on that. 57. On8th April 2016 Mr Moore emailed Mr Parker attaching the litigation pack and saying that he would be interested in the opinion of Mr Parker on the legal merits of the case. The email was marked private and confidential. …… 62. …..Mr Moore’s evidence in cross examination was that he was seeking legal advice from Mr Parker, as his legal advisor, and that he was entitled to do that pursuant to his arrangement with Mr Fairley/CIL. I do not accept that in providing the Litigation pack to Mr Parker Mr Moore was exercising a legal right conferred on him by CLL or [YLL]. This begs the question of where, and in what terms this legal right existed. This also seems to be inconsistent with the circumstances in which Mr Moore met with Mr Parker and provided the Litigation Pack to Mr Parker. The Litigation Pack was provided to Mr Parker not because Mr Moore decided to seek advice from Therium’ solicitors but because Mr Moore bumped into Mr Parker at a lunch and asked him for this thoughts on the proposed group claim. It seems to me that Mr Moore had no right to send the Litigation Pack to Mr Parker without the authority of [YLL]. It also seems to me that Mr Parker should have appreciated that he was being sent a pack of documents which included documents which were confidential, and in some cases, subject to legal privilege”
“Therium put the case up to the investment committee the day before yesterday on the basis of just funding us unfortunately but have fortunately come away with an offer of£5m of funding. I do not think that is a disaster for future co-operation because it leaves open the issue of our collaborating with separate funding and it at least allows us to crack on and move more quickly than (say) Leigh Day…”
“159. I make the following particular findings of fact in respect of the period from October 2016 to November 2016. (1) Mr Parker was subjected to considerable criticism by Mr Coleman for concealing (to use Mr Coleman’ expression) his dealings with Slater and Gordon from [YLL]. I find that those dealings were not disclosed to [YLL] by Mr Parker….I do not however find that this non-disclosure constituted deliberate deception on the part of Mr Parker. I find that the explanation for this non-disclosure was as follows. First, Mr Parker had not read the NDA and thus remained unaware of the restrictions in the NDA…..Second, in October and November 2016 the informal process of collaboration between [YLL] and Harcus Sinclair, while faltering, had not been treated as abandoned by either party….in the circumstances I can understand that Mr Parker as a matter of professional courtesy, felt some embarrassment in having to tell Mr Johal that he was in fact engaged in collaboration negotiation with another firm of solicitors. I find this was the second reason for Mr Parker’s failure to disclose to [YLL] his dealings with Slater & Gordon.”
“..Hollington continues to embody the common law as to the effect of previous decisions: “In principle the judgment, verdict or award of another tribunal `is not admissible evidence to prove a fact in issue or a fact relevant to the issue in other proceedings between different parties”, Land Securities v Westminster City Council[1993] 1 WLR 286 , 288E-F per Hoffman J.””
“With the exceptions with which we have already dealt, an issue of fact in one civil action is seldom the same as an issue of fact in another civil action between different parties. In practice it is only likely to arise where a number of different persons are injured in the same accident by the same acts of negligence. Such cases are most conveniently dealt with by all the injured parties joining in the same action, by consolidation, or by agreeing to treat one action as a test action. It is, however, theoretically possible (and has occasionally happened) that separate actions brought by different passengers in the same vehicle have been tried at different times by different courts with different results. This is undesirable and should be avoided by one or other of the means referred to above. But we do not think that, where there are two civil actions between different plaintiffs against the same defendant or by the same plaintiff against different defendants which do raise the same issue of fact, the finding of the court should be admissible in the second action. As we have already pointed out, in civil proceedings the parties have complete liberty of choice as to how to conduct their respective cases and what material to place before the court. The thoroughness with which their case is prepared may depend upon the amount at stake in the action. We do not think it just that a party to the second action who was not a party to the first should be prejudiced by the way the party to the first action conducted his own case, or that a party to both actions, whose case was inadequately prepared or presented in the first action, should not be allowed to avail himself of the opportunity to improve upon it in the second.” 31. The Committee’s reasoning develops the reasoning in the first of the passages which the Board has quoted from Lord Goddard’s judgment in Hollington. Their Lordships find that reasoning compelling. What is more significant, perhaps, is that Parliament must have found the reasoning convincing since the Civil Evidence Act and its Scottish counterpart made no change to this aspect of the law.”
“This has long been recognised by the Court of Appeal, at least since Gleeson v J. Wippell & Co[1977] 1 WLR 510 . From the authorities, the following principles emerge: i) One party need not be the “alter ego” of the other. But “having regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just” to permit to apply an issue estoppel: Gleeson, at p.515F. ii) “[M]ere curiosity or concern” are not sufficient: Gleeson, at p.515C. iii) The court asks (Resolution Chemicals Ltd v H. Lundbeck A/S[2014] RPC 5 , §31-2): a) Did the new party have “an interest in the subject matter of the previous action”? b) To what extent can, in reality, the new party be said “to have been the party to the original proceedings” by reason of their relationship? c) Against that background, is it “just that the new party should be bound by the outcome of the previous litigation?” iv) The “ultimate question” is whether “it is just to allow the issue in question to be relitigated”: Tyne and Wear Passenger Transport Executive (t/a Nexus) v National Union of Rail, Maritime and Transport Workers[2023] ICR 148 , at §45. v) The “process envisaged is one of evaluation rather than the application of hard-edged criteria…”: Tyne and Wear, at §46. a) Did the new party have “an interest in the subject matter of the previous action”? b) To what extent can, in reality, the new party be said “to have been the party to the original proceedings” by reason of their relationship? c) Against that background, is it “just that the new party should be bound by the outcome of the previous litigation?”
“First, I do not think that in the phrase " privity of interest" the word " interest" can be used in the sense of mere curiosity or concern. Many matters that are litigated are of concern to many other persons than the parties to the litigation, in that the result of a case will at least suggest that the position of others in like case is as good or as bad as, or better or worse than, they believed it to be. Furthermore, it is a commonplace for litigation to require decisions to be made about the propriety or otherwise of acts done by those who are not litigants. Many a witness feels aggrieved by a decision in a case to which he is no party without it being suggested that the decision is binding upon him. Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in proceedings to which the other is party. It is in that sense that I would regard the phrase " privity of interest." Thus in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa. Third, in the present case, I think that the matter may be tested by a question that I put to Mr. Skone James in opening. Suppose that in the Denne action the plaintiff, Miss Gleeson, had succeeded, instead of failing. Would the decision in that action that Wippell had indirectly copied the Gleeson drawings be binding on Wippell, so that if sued by Miss Gleeson, Wippell would be estopped by the Denne decision from denying liability? Mr. Skone James felt constrained to answer Yes to A that question. I say " constrained " because it appears that for privity with a party to the proceedings to take effect, it must take effect whether that party wins or loses. As was said by Buckley J. in Zeiss No. 3[1970] Ch. 506 , 541 (where the question was rather different) "The relationship cannot be conditional upon the character of the decision." In such a case, Wippell would be unable to deny liability to Miss Gleeson by reason of a decision reached in a case to which Wippell was not a party, and in which Wippell had no voice. Such a result would clearly be most unjust. Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicions. A defendant ought to be able to put his own defence in his own way, and to call his own evidence. He ought not to be concluded by the failure of the defence and evidence adduced by another defendant C in other proceedings unless his standing in those other proceedings justifies the conclusion that a decision against the defendant in them ought fairly and truly to be said to be in substance a decision against him.”
“But there is a further point upon which Mr. Lightman relied, and it is the pleading in Mr. McLeod's defence which I have already quoted, referring to the Waites' proceedings to set aside the judgment. Mr. Lightman submitted that that was a plea of estoppel by Mr. McLeod and that since estoppels were mutual, it could be relied upon against Mr. McLeod. Mr. Lightman cited In re Defries; Norton v. Levy (1883) Q 48 L.T. 703, 704, where Pollock B. said: "But the defendants cannot be said to have waived the estoppel by not pleading this judgment, for it was not in existence when the pleadings closed. I think it will be found that there is an old decision that it is sufficient to plead pendency of another action in order to enable the party pleading to put the judgment in such action in evidence by way of estoppel." In my judgment, the plea in the defence was a plea of estoppel; and as I have already said, had the Waites succeeded it was a plea that would have availed Mr. McLeod. It is plain that he was asserting that although he was not a party to those proceedings, he was privy to them. He was right.”
“having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two” embraces two concepts. The first is concerned with the interest which the subsequent litigant, C, has in the subject matter of the first action. In Gleeson, Wippell was very interested, in one sense, in the subject matter of the action against Denne, as its design of shirt was impugned in that action. But that was not a sufficient interest in circumstances where there was what Sir Robert Megarry described as “a trade relationship between the two, in the course of which Denne, at Wippell’s request, copied a Wippell shirt: but that is all”
“[t]he necessary ingredients of the conspiracy alleged are: (1) there must be a combination; (2) the combination must be to use unlawful means; (3) there must be an intention to injure a claimant by the use of those unlawful means; and (4) the use of the unlawful means must cause a claimant to suffer loss or damage as a result”
“[i]f an act is done deliberately and with knowledge of the consequences, I do not think that the actor can say that he did not ‘intend’ the consequences or that the act was not ‘aimed’ at the person who, it is known, will suffer them”. b) Where conspirators intentionally injure the claimant and use unlawful means to do so, it is no defence for them to show that their primary purpose was to further or protect their own interests: Lonrho Plc v Fayed[1992] 1 AC 448 , 465-466 ; see also OBG v Allan[2008] 1 AC 1 at [164-165] . c) Foresight that his unlawful conduct may or will probably damage the claimant cannot be equated with intention: OBG at [166]. iii) In some cases, there may be no specific intent but intention to injure results from the inevitability of loss: see Lord Nicholls at [167] in OBG v Allan , referring to cases where: “The defendant’s gain and the claimant’s loss are, to the defendant’s knowledge, inseparably linked. The defendant cannot obtain the one without bringing about the other. If the defendant goes ahead in such a case in order to obtain the gain he seeks, his state of mind will satisfy the mental ingredient of the unlawful interference tort.” iv) Concerted action (in the sense of active participation) consequent upon the combination or understanding: McGrath at [7.57]. v) Use of unlawful means as part of the concerted action. There is no requirement that the unlawful means themselves are independently actionable: Revenue and Customs Commissioners v Total Network[2008] 1 AC 1174 at [104].” vi) Loss being caused to the target of the conspiracy.”
“If all the facts which make the transaction unlawful were known to the parties, as I think they were, ignorance of the law will not excuse them: see Churchill v Walton[1967] 2 AC 224 at 237……If they had sincerely believed in a factual state of affairs which, if true, would have made their actions legal, this would have afforded a defence (Kamara v Director of Public Prosecutions[1974] AC 104 at 119).”
“……I see intrinsic merit in the proposition that it should be a defence to a claim in unlawful means conspiracy for the defendant to prove that he believed that the means in question were lawful. Take the facts of Belmont v Williams[1980] 1 All ER 393 : it seems quite harsh that the defendants were held liable even though they had obtained counsel’s opinion that the transaction would not contravene section 54, although I acknowledge that they may have had a remedy in professional negligence. Accordingly, if it were open to this court to do so, I would hold that it is a defence to a claim in unlawful means conspiracy for the defendant to prove that they believed that the means were lawful. I would stress, however, that this would require the defendant to establish a positive belief: it should not be sufficient, in my opinion, for the defendant merely to establish that they gave the matter no thought.”
“106 Also on17 August 2016 Mr Parker had an e-mail exchange with Mr Moore. Mr Moore was growing impatient with the delay in what Mr Moore referred to as Mr Johal getting “his ducks in a row”
“As this action demonstrates, group litigation is, or at least can be a competitive business between firms of solicitors. Sentence 2 was intended to ensure that the first claimant, having provided its advice on the claim made by [YLL’s] group of claimants and having had the benefit of insight into that claim, could not then strike out on its own, or in collaboration with another firm, with its own rival group of claimants.”
“In cross examination, Mr Parker accepted that from a commercial perspective, lawyers contemplating bringing a group action do not want there to be other rival groups, and that lawyers contemplating group litigation want to be ahead so that they can obtain the GLO, be lead solicitor and conduct the common costs work. Mr Parker accepted, albeit reluctantly and with some qualification, that the defendant had a legitimate interest in preventing Harcus Sinclair from setting up a rival group.”
“During [October and November 2016] the informal process of collaboration between the first claimant and the defendant in respect of the proposed group claim, pending agreement on the terms of a binding collaboration agreement, was faltering, but was not treated as abandoned by either party, in their dealings with each other, and had not finally been abandoned by either party. Nor had the parties, in their dealings with each other, formally given up on the prospect of collaboration. Mr Parker, by virtue of his dealings with S & G, would have known that this was a remote prospect, but he did not communicate that knowledge to the defendant.”
“[5] The principles applicable to an application to strike out a claim on the basis that it is an abuse of process to bring a claim that could and should have been brought in previous proceedings are set out in the speech of Lord Bingham of Cornhill in Johnson v Gore Wood & Co[2002] 2 AC 1 . It is, in my view, generally neither necessary nor helpful to refer to the accretion of authority before that decision, as the decision clearly sets out the principles the courts are to apply. Lord Bingham summarised the main principles in these terms, at p 31: “But 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. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.” 6 It is, however, helpful to refer to the judgment of Clarke LJ in Dexter Ltd v Vlieland-Boddy[2003] EWCA Civ 14 at [49]—[53], where he summarised the principles to be derived from Johnson v Gore Wood & Co: “49. . . . (i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process. (ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C. (iii) The burden of establishing abuse of process is on B or C or as the case may be. (iv) It is 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. (v) The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process. (vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C. “ “But 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. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.” “49. . . . (i) Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process. (ii) A later action against B is much more likely to be held to be an abuse of process than a later action against C. (iii) The burden of establishing abuse of process is on B or C or as the case may be. (iv) It is 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. (v) The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process. (vi) The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C. “ 50. Proposition (ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B, C, D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others. 51. Those reasons include, for example, the cost of proceeding against more than one defendant, especially where B is apparently solvent and the case against B seems stronger than against others. More defendants mean more lawyers, more time and more expense. This is especially so in large commercial disputes. It by no means follows that either the public interest in efficiency and economy in litigation or the interests of the parties, including in particular the interests of C, D and E, is or are best served by one action against them all. 52. It seems to me that the courts should be astute to ensure that it is only in a case where C can establish oppression or an abuse of process that a later action against C should be struck out. I could not help wondering whether the defendants in this case would have given their lawyers the same instructions on the question whether they should have been sued in the first action if they had been asked before that action began as they have given now that a later action has been begun. 53. It is clear from the speeches of both Lord Bingham and Lord Millett that all depends upon the circumstances of the particular case and that the court should adopt a broad merits based approach, but it is likely that the most important question in any case will be whether C, D, E or any other new defendant in a later action can persuade the court that the action against him is oppressive. It seems to me to be likely to be a rare case in which he will succeed in doing so.”
“29 I also wish to add a word as to the approach that should be adopted if a similar problem arises in the future. In circumstances such as those that arose in this case, the proper course is to raise the issue with the court. Aldi did write to the court, as I have set out at para 2(xiii), but not in terms that made it clear what the court was being invited to do. WSP and Aspinwall knew of Aldi’s position and were before the court on numerous occasions; they did nothing to raise it. 30 Parties are sometimes faced with the issue of wishing to pursue other proceedings whilst reserving a right in existing proceedings. Often, no problem arises; in this case, Aldi, WSP and Aspinwall each in truth knew at one time or another between August 2003 and the settlement of the original action in January 2004 that there was a potential problem, but it was never raised with the court. I have already expressed the view that it should have been. The court would, at the very least, have been able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation. It may have seen if a way could have been found to determine the issues applicable to Aldi in a manner proportionate to the size of Aldi’s claim and without the very large expenditure that would have been necessary if Aldi had to participate in the trial of the actions. It may be that the court would have said that it was for Aldi to elect whether it wished to pursue its claim in the proceedings, but if it did not, that would be the end of the matter. It might have inquired whether the action against excess underwriters could have been expedited. Whatever might have happened in this case is a matter of speculation. 31 However, for the future, if a similar issue arises in complex commercial multi-party litigation, it must be referred to the court seised of the proceedings. It is plainly not only in the interest of the parties, but also in the public interest and in the interest of the efficient use of court resources that this is done. There can be no excuse for failure to do so in the future.”
“1. This is an appeal from the Order of Arnold J. made on13 February 2013 , by which he struck out the claim of the Appellant, Gladman Commercial Properties, for damages for fraudulent or negligent misrepresentation, in connection with its aborted purchase of two adjacent properties in Dunkirk, Nottingham (“the Properties”), from the Nottinghamshire and City of Nottingham Fire Authority (“the Fire Authority”) and Nottingham City Council (“the Council”). For reasons which will become apparent, I will refer to this claim as “the Second Claim”
“The following themes emerge from these cases that are relevant to the present appeal: (1) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated; see Lord Diplock in Hunter’s case[1982] AC 529 , Lord Hoffman in the Arthur J S Hall case[2002] 1 AC 615 and Lord Bingham in Johnson v Gore Wood[2002] 2 AC 529 . . These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other, see again Lord Diplock in Hunter's case. Both or either interest may be engaged. (2) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse: see Bragg v Oceanus[1982] 2 Lloyds Rep 132 ; and the court's power is only used where justice and public policy demand it, see Lord Hoffmann in the Arthur J S Hall case. (3) To determine whether proceedings are abusive the court must engage in a close ‘merits based’ analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court's process, see Lord Bingham in Johnson v Gore Wood & Co and Buxton LJ in Laing v Taylor Walton [2008] PNLR 11. (4) In carrying out this analysis, it will be necessary to have in mind that: (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the case within ‘the spirit of the rules’, see Lord Hoffmann in the Arthur J S Hall case; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in the earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated, see Sir Andrew Morritt V-C in the Bairstow case [2004 Ch 1; or, as Lord Hobhouse put it in the Arthur J S Hall case, if there is an element of vexation in the use of litigation for an improper purpose. (5) It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris.”
“In summary, the power to strike out for abuse of process is a flexible power unconfined by narrow rules. It exists to uphold the private interest in finality of litigation and the public interest in the proper administration of justice, and can be deployed for either or both purposes. It is a serious thing to strike out a claim and the power must be used with care with a view to achieving substantial justice in a case where the court considers that its processes are being misused. It will be a rare case where the re-litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse, but where the court finds such a situation abusive, it must act.”
“ It is the rump of the original defamation action and concerns just one element in a sequence of many interconnected elements, all of which (not least the RNS Announcement itself) were exhaustively examined in the [commercial court] Judgment, whose findings have been effectively recognised by both parties in their pleadings as binding. In both sets of proceedings Mr Tinkler is making the same essential complaint about the same individuals. On the specific facts of this case, that amounts to a collateral attack on the previous findings. These features bring the case into the rare group where litigation is abusive although it is not formally between the same parties or their privies.”