Stephen John Finnan v Charles Russell Speechlys LLP [2026] EWHC 1940 (Ch)

[2026] EWHC 1940 (Ch)Case No BL-2026-000332
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 28/07/2026
Before
MR JUSTICE ADAM JOHNSON
Between
MR STEPHEN JOHN FINNANClaimantCHARLES RUSSELL SPEECHLYS LLPDefendant
The Claimant appeared in person for in personJack Steer (instructed by Reynolds Porter Chamberlain LLP) for DefendantHearing Hearing dates: 21 st and 22 nd July 2026
Approved JudgmentThis judgment was handed down in court at 2pm on Tuesday 28 July 2026 and bycirculation to the parties or their representatives by e-mail and by release to the NationalArchives..............................

I. Introduction

[1]In 2022, Mr Stephen Finnan brought a claim for breach of contract and/or negligence against his former solicitors, Charles Russell Speechlys. He alleged that they had failed to advise him properly in connection with a dispute with his brother Sean Finnan in 2016.[2]In December 2023, Master McQuail struck out the claim. She thought Stephen’s pleadings did not make out a sufficiently clear case on causation. In light of what she saw as Stephen’s unhelpful conduct in failing to clarify his case despite being afforded repeated opportunities to do so, including by means of an Order made at a Costs and Case Management Conference dated 14 December 2022, the Master refused to give Stephen any further time to propose amendments which might rescue his position.[3]On appeal in December 2024, Roth J reached the same result. Although he determined that the Master had fallen into error in one part of her reasoning, he too considered that the case advanced by Stephen was “clearly deficient in failing to set out, properly and coherently, any case on causation of the actual loss suffered …” (see at [27]). Like the Master, Roth J also rejected the idea that Stephen should be given more time to amend his pleadings. At [32] of his Judgment he said, “… Mr Finnan has been given every opportunity to set out his case in clear terms. There comes a point where it is just too late to seek to remedy these deficiencies, after Mr Finnan has, on numerous occasions had explained to him what needed to be done.”[4]A request to the Court of Appeal for permission to bring a second appeal was rejected by Arnold LJ on 17 April 2025. Arnold LJ did not think that the appeal raised any important point of principle or practice, and so was not suitable for a second appeal. All the same, he said the following as to Stephen’s proposed Appeal Ground 3, which asserted that he was not given the opportunity to put right the defects in his pleaded case:
“… in fact he was expressly given that opportunity by the order dated 14 December 2022. Moreover, both the master and the judge gave careful consideration to the question of whether the Appellant should be given a further opportunity and decided that he should not for the reasons they explained. Still further, there is no reason to think that, if the Appellant had provided draft amendments which satisfied the applicable requirements, at either hearing he would not have been permitted to rely on them.”
[5]On 16 June 2025, Arnold LJ refused a further application by Stephen to re-open his intended appeal under CPR, rule 52.30. Arnold LJ certified that application as totally without merit. In August 2026 the Supreme Court rejected a further attempt at an appeal, on the basis that it had no jurisdiction to entertain an appeal against a decision of the Court of Appeal refusing to reopen a final appeal under CPR, rule 52.30.[6]By the present proceedings issued in March 2026, Stephen seeks to make essentially the same claim against Charles Russell Speechlys, although he has added an expanded description of a proposed case on causation and loss (together with certain other changes).[7]The question which arises is whether the new action should be allowed to continue, or should also be struck out, either as an abuse of process, and/or because Stephen’s claims are now time-barred, and/or because the case on causation and loss is still inadequate. In the alternative, if there is a viable claim, Charles Russell Speechlys say it should be stayed until various costs orders already made against Stephen are complied with. They also ask the Court to make an Extended Civil Restraint Order (“ECRO”) against Stephen.

Summary Conclusions and Reasons

[8]I have decided that the proceedings should be struck out, in summary because i) there has already been an adjudication of Stephen’s claim, in the sense that there has been a determination of the substantive question whether he had put forward a viable cause of action, and that question having been answered in the negative it is now an abuse for Stephen to seek to resurrect his claim by advancing in new proceedings a more developed case on causation which could and should have been raised in the earlier action: see Henderson v. Henderson (1843) 3 Hare 100, and Johnson v. Gore Wood [2002] 2 AC 1; ii) in any event, even if there was no relevant adjudication in the earlier proceedings such as to bring the principle in Henderson v. Henderson into play, the attempt by means of the new claim belatedly to rectify defects in the old one is still an abuse given the overall circumstances, including the fact that Stephen’s attempted appeals in the original case failed, and to allow the new claim to proceed on the terms sought would entirely subvert that outcome by producing the same result as if they had succeeded; iii) furthermore, Stephen’s claims are time-barred: his claims in tort are time-barred because any loss was suffered at the latest by the time of a settlement agreement entered into in the original action in March 2018, more than six years before the present action commenced in March 2026; and his claims in contract are time-barred because any breaches of contract must have occurred, at latest, prior to termination of Charles Russell Speechlys’ retainer in January 2018, and again that is more than six years before the present claim commenced in March 2026.[9]I have also decided that I should make an ECRO against Stephen. That is because the evidence shows a degree of persistence by Stephen in pursuing claims and applications of no merit. That justifies the Court intervening in the public interest and imposing a restraint on his continued use of the Court’s resources.[10]On one view, the claim is a straightforward one to resolve, but the points were fully argued by both sides, including by Stephen acting in person, who was courteous and thoughtful in his presentation, and out of deference to the parties’ efforts I will set out the background and my full reasoning in some detail. II. Background The original dispute

II. Background

[11]Stephen is a former professional footballer. He later went into business with his brother Sean. They were 50/50 shareholders in two companies, Wimbledon Developments Limited (“WDL”) and Finnan Developments Limited (“FDL”); and FDL in turn had a subsidiary, Finnan Land & Property Limited (“FL&P”).[12]The companies were involved in property development. Funding was obtained both from Stephen, who by early 2016 had outstanding loans to the companies of about £3m (see Roth J’s Judgment at [6]), and from commercial lenders – the abbreviated accounts for all three companies as at October 2015 show substantial borrowings by way of loans or overdrafts secured by charges over the companies’ assets.[13]In 2016, the brothers had a falling out. Stephen’s position is that he wished to recover the loans he had made and to exit the joint business. Early correspondence between the brothers included a letter from Sean dated 27 May 2016, in which he made various proposals, including the idea of selling two particular properties to generate cash, namely 5 the Green Wimbledon, which was owned by WDL, and 3a Thornton Hill, owned by FL&P.

The unfair prejudice petitions and the 2018 settlement

[14]Stephen instructed Charles Russell Speechlys to act for him. In September 2016, they issued two Petitions under section 994 Companies Act 2006 alleging that he had been unfairly prejudiced in his position as shareholder in WDL and FDL/FL&P.[15]On 18 January 2018, shortly before the trial of the Petitions, Charles Russell Speechleys’ retainer was terminated, and they were replaced by CANDEY LLP as Stephen’s solicitors. In March 2018, in the early part of the trial, the parties reached a settlement. This involved Stephen obtaining sole ownership of WDL (and thus of 5 The Green Wimbledon), while relinquishing control of FDL (and thus FL&P) to Sean. However, under the terms of the settlement, FDL, FL&P and Sean gave a joint commitment that they would pay Stephen £4m in instalments, those commitments being secured by charges over the development properties owned by FDL and FL&P.[16]As Stephen explained in the hearing before me, the settlement appeared very attractive at the time. In the end, however, it produced only limited value for him. No money was paid by either FDL, FL&P or Sean, and Sean was later made bankrupt. As set out in the Master’s Judgment at [39], Stephen recovered only £187,570 following the eventual sale of WDL, including its asset, 5 The Green, Wimbledon, and then some £89,345 following sale of the headlease of Village Court, one of the properties owned by FDL. As explained to me, at least part of the issue with WDL arose from the fact that in early 2018, shortly before the trial of the Petitions, Sean had let 5 The Green to a tenant on terms that required payment of 18 months’ rent up-front. This led to two additional problems. One was that, according to Stephen, Sean took £100,000 of the funds raised for his own use; and the other was that the arrangement involved a breach of the existing mortgage terms with Newcastle Building Society. They later appointed a receiver.[17]Against that background, Stephen’s basic complaint comes down to this: that if he had been properly advised by Charles Russell Speechlys in 2016, things would never have escalated and he would never have ended up in a dispute with his brother Sean. Instead, some form of accommodation would have been reached which would have resulted in a much better financial outcome than that Stephen eventually achieved, by means of the 2018 settlement.

The original claim

[18]In the original proceedings, Stephen claimed damages in a minimum sum of £6,000,000, comprising:(i) “immediate losses” in the period September-October 2016;(ii) the total of his directors’ loans, put in the pleaded case at £3,335,541;(iii) the value of his shareholdings in the three companies, pleaded at a minimum of £2,662,079;(iv) the amount of the costs liability arising from the s.994 Petitions, pleaded at £396,194; and(v) interest and fees accrued in respect of loans taken out to fund legal fees, pleaded at a minimum of £30,000.[19]The challenge faced by Stephen before the Master and then before Roth J was in giving some content to this general assertion. Stephen faced two, inter-related issues. The first was identifying what non-negligent advice he said Charles Russell Speechlys should have given him; and the second was identifying what the result of following that advice would have been – and specifically, why Stephen maintained it would have carried with it a chance of a better financial outcome than the one he eventually achieved.

The Requests for Information

[20]The Particulars of Claim provided little assistance, and so Charles Russell Speechlys served a Request for Information, to which Stephen provided a set of Responses on 6 September 2022.[21]On 20 October, however, Charles Russell Speechley’s solicitors, RPC, sent a letter saying that Stephen’s pleaded position was still unclear. On the question of what alternative advice should have been given, the letter said that Stephen had given a “variety of conflicting responses”, including (to give two examples) “to accept the second offer in Sean Finnan’s 27 May letter and also discuss the continuing management of the Companies (primarily the Ridgway project)”, and “to negotiate the offers put forward by Sean Finnan”.[22]The letter asked Stephen to respond more fully to RFIs 28 and 29. RFI 28 was directed to the question of what non-negligent advice Stephen was saying he should have been given, and RFI 29 to the question of what he would have done with that advice and why it would have produced the opportunity for a better financial outcome.[23]Stephen dealt with this by serving an expanded set of Responses to RFIs 28 and 29 on 25 November 2022. A main point developed was that the process of engagement with Sean should have started with asking for Stephen’s loans to be repaid, rather than threatening Sean with litigation and then locking him into a fight by issuing the s.994 Petitions.

(b) , Stephen said:

“As mentioned above, all the Defendant had to do was advise the Claimant to demand repayment of directors loans … Any solicitor acting with reasonable skill and care would have advised the client to send a letter to the Companies demanded repayment of those loans … Whatever the separation between the Claimant and Sean Finnan, this could only have started with the repayment of directors loans, whether that be by selling properties and/or splitting assets (not by a buy out of shares from an impecunious individual).”
[24]In an email of 30 November 2022, RPC saw this as a helpful clarification, and summarised what they saw as Stephen’s case on causation, i.e. that RPC should have advised him to demand payment of his directors’ loans, rather than to issue the s.994 Petitions. But given the background, which included Stephen’s September RFI having set out “a variety of different counter-factual positions”, they said they would press for an order at the forthcoming CCMC requiring him to amend his existing pleadings in order to “accurately reflect the case on causation you are now asserting.”

The December 2022 CCMC and Order

[25]This was debated before the Master at a CCMC in December 2022. The transcript shows the Master seeking to give some guidance to Stephen as to what was required by way of an effective pleading. For example, she said: “So the first bit is you have got to say, ‘They did this wrong’. That is the breach of duty or contract. And if they had done it correctly there would have been an alternative historical world where a different thing would have happened …”.[26]The Master made an Order dealing with the pleading issue. This put in place a structure under which Stephen would be given permission to state a revised case on causation by 11 January 2023, based on his 25 November 2022 Responses; but subject to Charles Russell Speechlys having a chance to object. If they objected, Stephen would need to make his own application to amend.[27]Thus, the relevant parts of the Order provided as follows:
“3. The Claimant has permission to amend his Particulars of Claim in order to accurately reflect his revised position on causation, as set out in his responses dated 25 November 2022 to the Defendant’s request for further information, to be provided in draft to the Defendant by 4.00pm on 11 January 2023. 4. The Defendant shall indicate whether it agrees to the Claimant’s proposed amendments to the Particulars of Claim by 4.00pm on 25 January 2023. If the Defendant does not agree with the Claimant’s proposed amendments and the amendments cannot be agreed between the parties, and the Claimant wishes to make the proposed amendments, then an application to the court for permission to rely on the amended Particulars of Claim would be required.”

The draft Amended Particulars of Claim

[28]Stephen provided draft Amended Particulars of Claim on 11 January 2023, but still hedged his bets. A proposed new para. 142 began, “Save for any other advice the Claimant has pleaded the Defendant should have given, the Defendant should have advised the Claimant to demand repayment of directors loans from the relevant companies by sending letters to those companies …”.[29]More substantively, a new para. 143 suggested that such demands would have produced a number of possible (and positive) consequences, including Stephen himself withdrawing “a reasonable amount of monies from the Companies had there been monies available” (para.143.1 ), and/or him withdrawing “a reasonable amount of monies from the Companies on completion of sale of properties/assets that were at the time of the process being sold” (para.143.2 ), and/or Stephen starting “the process of selling additional properties/assets …” (para.143.3 ).

Charles Russell Speechleys refuse consent

[30]In their letter of 20 January 2023, RPC (on behalf of Charles Russell Speechlys) refused to agree to the amendments, in light of what they saw as a number of fundamental problems. One was the cash position of the three companies, which meant that the possible outcome described at para. 143.1 was unrealistic: expert evidence produced in the s.994 Petitions showed the cash position of the companies as follows, as at 30 April 2016: WDL – nil cash; FDL - £10,051 cash; and FL&P - £163,469 cash.[31]As to the possibility of selling assets described in paras 143.2 and 143.3, RPC said it was again unclear how Stephen would have been able to do that unilaterally (as his draft pleading contemplated), and unclear also what impact it would have had on the three companies given their cash position, their external borrowings and the charges in favour of third-party lenders. Their letter suggested that asset sales would “seemingly have resulted in the insolvency” of at least FDL and FL&P.[32]To put it shortly, the objection was that the draft pleading was still vague, and still did not present a coherent picture of how a better financial outcome would in fact have been achievable, even if non-negligent advice had been given to demand immediate repayment of Stephen’s directors’ loans. RPC invited Stephen to reconsider.

Stephen’s letter of 24 January 2023

[33]Stephen sent a long letter on 24 January 2023, but there was no change to the basic position.[34]I should set out two brief extracts from this letter, since they are important in the analysis which follows.[35]Under the heading “Conclusion”, Stephen said (emphasis added):
“For the reasons given above, and what your client is clearly aware of, it is not possible for the Claimant to amend his particulars of claim pursuant to the Court order your client specifically sought. Therefore, no application can in fact be made by the Claimant. In any event, the Claimant would not proceed with an application that does not allow him to plead causation in his original particulars of claim.”
[36]Later in the same section of the letter, he went on:
“If your client were to make an application on this issue, the Claimant will be arguing he is entitled to plead his own case … The claimant also considers he is entitled to amend his particulars of claim on any matter (such as further allegations of breach of duty) if the Court agrees to the amendments as opposed to the Court order your client obtained at the CMC.”
[37]This correspondence did not move matters further forward, and in consequence on 25 January 2023 RPC said they could not consent to what was proposed and said that Stephen would need to make an application to the Court, in accordance with the mechanism in the Order from the CCMC.

Stephen refused to make any application to amend

[38]What happened next had a material impact on the decisions later taken by Master McQuail and by Roth J. What happened was that despite further letters from RPC inviting him to do so dated 31 January and 9 February 2023, Stephen in fact made no application to amend his Particulars of Claim.

The strike-out application

[39]In light of that, Charles Russell Speechlys issued a strike-out application on 22 May 2023. That was the application then dealt with by Master McQuail in September 2023, resulting in her decision to strike out Stephen’s claim, and which a year later gave rise to Roth J’s Judgment on appeal.

The Master’s decision

[40]The position before the Master was somewhat unusual. Stephen had put forward a possible revised pleading by way of his January 2023 draft, but had not made any application to amend to reflect those revisions and, from the Master’s Judgment, it appears he positively did not wish to do so (see for example the Judgment at [94], where the Master said: “In his skeleton argument, the claimant stated that the draft amended particulars of claim are ‘not proposed by the claimant and never will be …’”). This seems to have been because of some perceived unfairness by Stephen in the way the CCMC Order was intended to operate (Judgment at [17]).[41]Consequently, the first stage of the Master’s analysis was to look at Stephen’s case as presently pleaded, the most recent iteration of which was that in his RFI Responses of November 2022 (see above at [23]), which had focused on the proposition that he should have been advised to demand repayment of his directors’ loans. The Master identified a number of problems with this, perhaps the most significant of which was that Stephen’s own evidence was to the effect that demands of Sean had already been made in any event (Judgment at [20]), but had not resulted in the loans being repaid. Thus, as the Master put it at [107], this part of the pleaded case was not really a counterfactual (i.e., a statement of what would have happened had different advice been given), but instead a statement of what had in fact occurred, and the outcome was known, which was that the directors’ loans had not been repaid. Moreover, even looking beyond that at the substance, the Master did not think that any coherent explanation had been advanced as to how a different overall outcome could have been achieved. Again at [107], she said:
“There is no evidence of the means, against the background of the known cash position and the known eventual working out of the Settlement Agreement, by which the making of any such demands would or could have led to a better result than that which the claimant actually achieved.”
[42]As to whether Stephen should be given more time, the Master thought not. Her main reasons were as follows. First, the draft amendments put forward in January 2023, even as later amplified in the evidence and submissions by Stephen, still failed to identify a viable case on causation, in particular given that(a) demands for repayment had in fact been made but had not been complied with,(b) the companies’ cash position was precarious,(c) it was not within Stephen’s gift simply to repay himself from the companies’ assets, and(d) the evidence suggested a “lack of any value available to be extracted from the companies or Sean” (Judgment at [118] and [121]). Second, and perhaps most significantly, Stephen was not in fact asking for permission to amend in the form of his January 2023 draft; in fact, he was positively disavowing reliance on it (see above at [40]). Neither had he put forward any alternative draft pleading, although he plainly knew that was an option open to him (Judgment at [122]). In all the circumstances, there was no good reason to give Stephen any further opportunity to amend, and so the Master did not propose to do so (see at [124]).

Roth J’s decision

[43]On appeal, Roth J came to the same end point, but by a different route. He thought that in assessing the viability of Stephen’s existing case on causation at para. [107] of her Judgment, the Master had failed to account sufficiently for the value of the property assets owned by the companies: Roth J thought she had focused too much on the cash position alone, and had not properly allowed for the possibility of asset sales, which had been flagged by Stephen in his RFI Responses of November 2022 (see above at [23]). Moreover, Roth J said that in the hearing before him, Stephen had clarified his case to say that a particular complaint was the failure to capitalise on Sean’s suggestion in his letter of 27 May 2016 of selling 5 The Green, Wimbledon and 3a Thornton Hill.[44]In light of that, Roth J considered the Master had fallen into error (see his Judgment at [27]). All the same he considered that(1) even when one took account of the possible value from the property assets owned by the companies, the existing case on causation as set out in the RFI Responses was still “clearly deficient in failing to set out, properly and coherently, any case of causation of the actually loss suffered …”; and(2) it would not be appropriate to allow more time for possibly corrective amendments to be proposed, because Stephen had been given “every opportunity to set out his case in clear terms”, but had failed to do so, and it was simply too late to seek to remedy the existing deficiencies.[45]As to why Stephen had failed to avail himself of the opportunity afforded by the CCMC Order, this was explored during the hearing. Stephen’s answer emerged from the following extract from the transcript:
“ … at paragraph 3, it says I have permission to amend in order to accurately reflect my revised position in causation and that is my second response. So, I did only have permission to try and amend my particulars of claim to include the issue on the demand on the loans, which I obviously believed that (inaudible) and made that clear. So, I think if the order itself simply said that I had permission to amend my particulars of claim on causation, I would have done that, I would have included all the responses in my first response to the RFI and then pleaded what would have happened after that but I was restricted to only this pleading, which I opposed because the loans were demanded and I just felt I am only going to say well, what has already happened and I found it almost impossible to actually make the amendment.”
[46]What Stephen appears to have been saying was that he considered he was somehow hamstrung by the CCMC Order of December 2022, because it limited him to making out a case on causation he did not want to make, by reference only to his November 2022 RFI Response – instead he wanted a freer hand to be able to rely on “all the responses” in his original, September 2022 RFI Response (see above at [20]-[21]).[47]It is clear that Roth J was not impressed by this point, because at [31] of his Judgment he said:
“I pressed Mr Finnan as to why he had repeatedly failed to give any proper response. His only answer, it seemed to me, was that he did not think he was entitled to go further than his existing pleading, although in the end he accepted, somewhat reluctantly, that he could have asked for permission to amend.”

Attempt at a second appeal

[48]I have mentioned already above that Stephen’s later attempts to appeal the Order of Roth J by way of a second appeal were rejected by Arnold LJ in April and June 2025.

Stephen’s new claim

[49]To bring matters up-to-date, the present action was commenced by Stephen in March 2026. His basic complaint is the same as that made previously, namely that he was badly advised by Charles Russell Speechlys in his dealings with Sean in 2016; and if he had been differently advised, he would have had the chance of a much better financial outcome.[50]The heads of loss claimed are the same as at [18] above, although the numbers are slightly different:(i) “immediate losses” are described in the Particulars of Claim (“PoC”) at paras 118-123, including some £20,076 said to have been diverted by Sean to his personal account;(ii) the figure for directors’ loans at para. 219 is given as £2,764,004;(iii) the combined value of the three companies is given at para. 220 as £7,114,830, making Stephen’s half-share worth £3,557,415;(iv) the figure for legal costs is given as £553,061.14; and(v) the costs of funding the loans taken out to cover legal fees are given as in excess of £50,000.[51]According to the PoC at para. 226, the primary case on causation and loss is now essentially the one explained to Roth J, namely that Stephen should have been advised to accept Sean’s offer in his letter of 27 May 2016 to sell assets, in particular 5 The Green, Wimbledon and 3b Thornton Hill. Para. 226(c) then refers to another property as well: “Once 5 The Green (then in WDL), 3b Thornton Hill and 3 Village Court (held in FDL/FL&P) were sold, C [i.e. Stephen] would have been paid entirely his directors’ loans … Thereafter, C and Sean would have agreed a split of the remaining assets … “. In argument before me, Stephen referred to valuations of 5 The Green and of 3b Thornton Hill, prepared by Vail Williams in connection with the Petitions, which gave a value for the former as at April 2016 of £7.5m, and a value for the latter of £2.8m.[52]Paras 227-255 then set out various other counterfactual permutations, including (at para. 228) that if Stephen had been advised to remove Sean as a director of the three companies, that would have happened, and then (para. 228(c)), “[t]he person managing the Companies or C would have immediately put all the assets in FDL/FL&P and WDL on the market for sale.”[53]Paras 242-247 contain what I was told is an entirely new element. The premise is an allegation (developed at paras 127-129) that in February 2017, Stephen was not told of discussions between solicitors and counsel about the possibility of trying to secure a trial date in November 2017. That opportunity was lost when directions were given at a CCMC on 16 February 2017 for a trial date in March the following year. The counterfactual scenario then discussed at paras 242-247 is that, if Stephen had known about the option of an earlier trial date he would have pressed for it, and that would have avoided the situation in which Sean was able to enter into a rental agreement on behalf of WDL in February 2018, and that in turn would have avoided both Sean’s abstraction of £100,000 from the rental proceeds received, and the default by WDL on its mortgage terms with Newcastle Building Society (see above at [16]). In his Skeleton Argument (para. 60), Stephen explained that he had only come to learn about the discussions concerning an earlier trial date in April 2023, during disclosure in his first claim against Charles Russell Speechlys.[54]Before me, Stephen gave the same explanation he had given to Roth J as to why he had refused between January and September 2023 to make any application to amend his Particulars of Claim: he somehow considered that the CCMC Order of 14 December 2022 imposed a straitjacket on him, and had the effect of forcing him to put forward a particular counterfactual case on causation based on demanding repayment of his loans which was too restrictive. He considered that was unfair.

III. Outline of Stephen’s position

[55]It is clear that where a matter has already been finally adjudicated upon, it cannot be raised again between the same parties: it is res judicata. And even if a particular issue has not been dealt with because it was not raised, it can still be an abuse of process for a party to seek to raise it by way of later proceedings, if it could and should have been raised in the original action. That is because a party is normally required to bring forward his whole case for adjudication at the same time: see Henderson v. Henderson and Johnson v. Gore Wood.[56]In the present case, Stephen argues that neither principle is engaged, because he says there was never any relevant adjudication of his claim by either Master McQuail or Roth J. All they did was to strike out his then proceedings because of their supposed procedural deficiencies. Thus, the effect of their decisions was in fact to prevent any final adjudication of his claim. Having chosen to take that course, Charles Russell Speechlys have to live with the consequences, including the fact that it is now open to him to seek the adjudication he was deprived of.[57]Stephen acknowledges that where a claim has been struck out for procedural default, without any final adjudication of the merits, it can nonetheless still be an abuse of process for the claimant to seek to bring essentially the same claim again. Relying however on the decision of Morris J in Davies v. Carillion Energy Services Limited [2017] EWHC 3206 (QB) (see esp. at [55]), Stephen argues that that will be so only if the original claim was itself struck as an abuse of process or if the claimant’s conduct was otherwise inexcusable (which Stephen says was not the case here). And even then, according to Davies v. Carillion Energy, the second claim can still be allowed to continue if there are “special reasons” justifying it (which Stephen says there are). As an overarching point Stephen emphasises that the Court should not be blinded to the overriding need to do justice.[58]On the issue of limitation, Stephen had a number of points. To begin with, Stephen made the general argument that there can be no actionable damage until there has been a measurable loss: and there was no measurable loss here until efforts were made to sell both WDL and the properties owned by FDL and FL&P. That did not start to happen until August 2020 (when WDL was sold, on 28 August), and 2021 (when the headlease of the Village Court property was sold, on 24 September). Taking these as the relevant dates for limitation purposes, a claim commenced in March 2026 was in time.[59]Specifically as to his claims for breach of contract, Stephen also relied on s.32(1), paras (b) and (c) of the Limitation Act 1980, to argue that: i. time for bringing all his proposed claims for breach of contract (including that at (ii) below) should be extended under s.32(1)(c), because that was necessary to provide “relief from the consequences of a mistake”, and a significant number of mistakes had been made in the original action, including (for example) the Court making the mistake of not granting his appeal against the Order of Master McQuail striking out the claim; and ii. time for bringing his claim based on failure to advise as to an earlier trial date (see [53] above) should in any event start to run only from 5 April 2023, because the relevant discussions with counsel had been deliberately concealed from him until then (when he came to know of them during disclosure in the original action), and so commencement of the limitation period was extended under s.32(1)(b).

IV. Abuse of Process

[60]Although I have some sympathy with Stephen’s overall position – he has been left in a most unfortunate state as a result of his dealings with his brother and everything that has followed from those dealings – I am not persuaded that his new claim should be allowed to continue. I consider it should be struck out, for the following reasons.

Has there already been an adjudication?

[61]To begin with, I do not agree with Stephen’s point that his original claim was not the subject of any relevant adjudication, so as to engage the principle in Henderson v. Henderson.[62]This submission is based on the idea that the original claim was rejected on purely procedural grounds, but in my view that is not a correct characterisation. Both the Master, and more significantly Roth J, did not consider that Stephen had put forward a properly coherent case on causation and loss. This was not a purely procedural matter. It was a determination, albeit reached on a summary basis before trial, that even taken at its highest the claim could not be allowed to proceed, because an essential element in it was missing. In Orji v. Nagra [2023] EWCA Civ. 1289, Nugee LJ said at [84] that an adjudication can arise from an interlocutory determination. What seems to be required is that there should have been a determination on a point of substance: see again Orji v. Nagra, per Coulson LJ at 49, indicating there is no adjudication if there has been “no determination by the court of any substantive issue.”[63]The precise finding made by Roth J at [27] of his Judgment (already mentioned at [44] above) was that, “Mr Finnan’s pleaded case is clearly deficient in failing to set out, properly and coherently, any case of causation of the actual loss suffered …”. That was not, in my view, a finding of a procedural deficiency only, but a finding that the case Stephen wished to advance had no merit. Looking at the substance, the result was a determination that the claim was substantively deficient and so had to be dismissed. That is not the same as a claim being struck out because of failure to comply with a procedural rule, for example as regards disclosure. It was an adjudication that no reasonable grounds had been shown for bringing a claim at all.

Henderson v. Henderson abuse

[64]Charles Russell Speechleys do not seek to suggest that any cause of action or issue estoppel arises, only that Stephen is caught by the rule in Henderson v. Henderson, as later explained by the House of Lords in Johnson v. Gore Wood. That is to say, they argue that Stephen is caught by the principle that a party is required to bring forward his whole case in one action; and if he fails to do so and the case is subject to an adjudication, the party may then be prevented from bringing a new claim relying on additional matters which could and should have been brought forward before.[65]In the Johnson v. Gore Wood, Lord Bingham summarised the relevant principles as follows (emphasis added): “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. 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”.[66]In my opinion, Charles Russell Speechleys were correct to submit that this principle is in play here.[67]I say that because what Stephen seeks to do by means of his new claim is now to advance a more complete position on causation which not only could, but should, have been advanced before in his original action.[68]Lord Bingham invites a broad, merits-based assessment. It seems to me that the key factors here are these. First, the hearing before the Master, and the subsequent appeal before Roth J, only came about because Stephen had not made out any clear case on causation at the time, despite being given positive encouragement to do so. Instead, he declined to make any amendment application at all. Second, the reason he now gives for failing to do so – namely, that he somehow felt hamstrung by the CCMC Order of 14 December 2022 – is both difficult to follow, and in any event is the same explanation given to Roth J, which Roth J rejected. Third, both the Master and Roth J at the time asked whether it would be fair to give Stephen more time to plead out his case, but given the history determined it would not, and Stephen’s later attempts to challenge Roth J’s determination by way of second appeal were rejected.[69]What Stephen now seeks to do, it seems to me, is to obtain a result – i.e., admission of a reformulated case on causation – which it was plainly open to him to seek in the original claim, and which he should have tried to seek in that claim. Indeed, this latter point itself is one that the Court has already decided, because the logic of both the Master and Roth J in refusing to allow Stephen more time was that he could and should already have taken steps to regularise his case.[70]I can put the point another way. To permit the new case to proceed would create the same practical effect as allowing an appeal against Roth J’s Order. That seems to me a highly undesirable outcome, in circumstances where an attempted second appeal was rejected by the Court of Appeal not once but twice. In my view it is a misuse of the Court’s resources for a claimant to seek to achieve by a different route an outcome which he has already been denied under the process which was the proper means of redress for the wrong complained of.[71]In the Johnson case, Lord Bingham said that the public interest underlying the Henderson v. Henderson form of abuse is “that there should be finality in litigation and that a party should not be twice vexed in the same subject matter” (see at p. 31A-B). To permit Stephen’s new case to continue would cut across both these principles. In the circumstances, I conclude it amounts to an abuse and should be struck out on that basis.

Other abuse of process

[72]In case I am wrong on the question whether there has already been an adjudication in respect of Stephen’s claim, I should consider whether the new claim involves an abuse of process nonetheless.[73]This is the point analysed by Morris J in Davies v. Carillion Energy Services. At [29]-[30] of his Judgment, Morris J drew a distinction between two categories of case. One is the type of case dealt with above: where a party seeks to raise in a second action issues or facts which could and should have been, but were not, raised in a first action, which had resulted in a substantive adjudication or settlement. But the other type of case is the opposite: where a party brings a second action in respect of matters which were raised in a first action, but where that action had been struck out on procedural grounds and without any consideration of the merits.[74]As regards the latter type of case, Morris J’s detailed review of the authorities led him to the following conclusions (I summarise from his more detailed analysis at [52] and [55]):(1) where an earlier claim has itself been struck out as an abuse of process, a second action covering the same subject matter will also be struck out, absent “special reason”;(2) where the earlier claim was struck out in circumstances not amounting to an abuse of process, a second action may also be struck out absent “special reason”, but it will be necessary to consider the circumstances of the first case carefully and it will normally be necessary for the conduct in the first to have been “inexcusable” in order to justify striking out the second;(3) post Mitchell [2014] 1 WLR 795 and Denton [2014] 1 WLR 3926, the “special reason” exception in (1) falls to be “more narrowly circumscribed” than before, and likewise in (2), assessing whether prior conduct has been “inexcusable” might “fall to be assessed more rigorously in the defendant’s favour”.[75]Here, Stephen’s basic submission was that his original claim had not been struck out as an abuse under CPR, rule 3.4(2)(b), but instead had been struck out as disclosing no reasonable grounds for bringing the claim, and because the Court determined he should not have more time to present any amendments. Moreover, he argued that his conduct had not been inexcusable and that there were special reasons why he should be afforded some latitude: he set out 26 such reasons at para. 168 of his Witness Statement, including that “D repeatedly stated I must obey the court order they had procured”, and “Master McQuail intentionally omitted from her judgment that part of my case was that I should have been advised to of sold properties so as to be paid back my directors (sic.) loans and shares.”[76]My view in light of these submissions is as follows.[77]To begin with, I would respectfully question whether it is useful to seek to compartmentalise too closely different patterns of possibly abusive conduct. I am not sure that that was Morris J’s intention, but in any event I note that in Johnson v. Gore Wood, Lord Bingham said at p. 31 D-E that: “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”.[78]Lord Bingham went on to say, at p. 31E-F:
“While the result may often be the same, it in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse rather 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.”
[79]True, these comments were made in a case concerned with abuse of the Henderson v. Henderson type, but they seem to me to be intended as statements of general principle. I note that in Orji v. Nagra, Nugee LJ echoed Lord Bingham’s first point, when he said at [86]:
“There are many types of abuse of process, of which Henderson v. Henderson abuse is only one example, and the Court’s power (if not duty) to strike out proceedings that have been conducted abusively is an important and valuable one.”
[80]The difficulty presented by too rigid a categorisation is perhaps illustrated by the present case, because if it does not involve a Henderson v. Henderson type abuse, I nonetheless have some difficulty in seeing that it falls within the other category identified by Morris J, because that involves a party who brings a second action in respect of matters which were raised in a first action (above at [73]). Here, however, the core problem is that the missing case on causation was not properly raised in the first action, which was struck out as a result.[81]Assuming (contrary to my finding above) that the present case did not involve any adjudication, I would nonetheless still strike it out as an abuse, but would prefer to state my reasons as follows.[82]Looking at all the circumstances, continuation of the Stephen’s new case would be an abuse because by means of it, he seeks to rectify defects in his original claim which had been identified by at latest the Autumn of 2022, and which he had numerous opportunities to resolve. By the time of the hearing before Master McQuail in September 2023, the problem had been in the open for over a year. The CCMC Order of 14 December 2022 provided a platform for Stephen to improve and rectify his case, including by means of making his own application to amend, if proposed amendments could not be agreed. Despite a number of communications from RPC encouraging him to take action, he refused to make any amendment application and that prompted the strike out application against him. Still no amendment application was made, as a result of which the Master struck out his claim; and matters had not moved on a year later, when the appeal from the Master’s Order was heard by Roth J. No satisfactory explanation was given for the failure to take action. The explanation provided was that Stephen had felt limited by the terms of the 14 December CCMC Order, but(1) the terms of that Order were limited for good reason, because the background was a legitimate attempt by Charles Russell Speechlys to have Stephen focus his otherwise scattergun approach to his case on causation, and in any event(2) there was nothing to stop Stephen making whatever amendment application he wanted, as he appeared to indicate in his letter of 24 January 2023 (see above at [35]-[36]), and as he eventually acknowledged to Roth J (as recorded in Roth J’s Judgment at [31]). Roth J having made the decision he did, Stephen’s proper recourse at that stage was to seek permission for a further appeal. That he did, but the request for permission was rejected. At that point, he reached the end of the road. It is an abuse for him now to put forward a new case which seeks to address the very deficiencies which resulted in his original case being struck out. To allow the new claim to proceed would produce the same result as if his attempted appeals in the original action had succeeded, whereas in fact they failed. There is a public interest in finality in litigation, so as to ensure that the Court’s limited resources are properly and fairly deployed for the benefit of all litigants; and a public interest in the principle that defendants should not be vexed twice in the same matter. Both principles are engaged here, and the overall balance of public and private interest factors requires the new claim to be struck out.[83]If, contrary to that analysis, it is necessary for my reasoning to reflect the categories in Morris J’s judgment in the Davies v. Carillion Services case, I would say that(1) I agree with Stephen that the original claim was not, as such, struck out as an abuse of process; but(2) in disagreement with him, I would say that his conduct in the original action was “inexcusable” for the reasons given above (i.e., it was out of the norm and there was no good reason for it), and moreover would say that there is no “special reason” which justifies the new action continuing. The idea of a “special reason” to my mind suggests some feature of the overall situation which would make striking out the proposed new claim unjust; but here I can identify no such feature, and indeed consider that the opposite is true, and that there would be injustice in permitting the new claim to continue.

V. Limitation

[84]My conclusion on the abuse of process question makes the further objections raised by Charles Russell Speechlys academic. I will though comment briefly on the limitation issue, taking in turn the two ways in which Stephen puts his case. My view is that Stephen’s new claim is time-barred in any event, and that provides an independent reason why it should be struck out.

Claim in Tort

[85]Under s.2 of the Limitation Act 1980, a claimant must bring any claim in tort within 6 years of the date of the loss he has allegedly suffered.[86]As noted above. Stephen’s main point was that his losses did not crystallise until steps were taken to extract value from WDL and FDL/FL&P, starting in August 2020. Thus, he argued, the limitation period only began to run at that point.[87]I do not agree with this argument.[88]Although it is true that in some cases, where the defendant’s negligence exposes a claimant to a risk of loss, the cause of action accrues only when the risk eventuates (see, for example, Law Society v. Sephton & Co [2006] UKHL 22), that does not seem to me to describe the present case.[89]In this case, what Stephen says he lost as a result of Charles Russell Speechlys negligence – expressed in general terms at least – was the opportunity of achieving a better result through less aggressive engagement with Sean, as opposed to which he gave instructions for the issue of the two s.994 Petitions in September 2016.[90]It seems to me possible to say there was an immediate loss at that point – i.e., by September 2016 – because by then the alternative course of action had already, on Stephen’s case, been foregone. Even if that is incorrect, however, and one were to say that the value of the lost opportunity could not be quantified until there was something to compare it with, that something had materialised by March 2018, when the Petitions were resolved by means of the settlement. By then, it should have been possible for Stephen to compare the value of what he had actually achieved against the value of the opportunity he had lost, and to measure the difference between the two. It seems that he did, and to begin with was quite happy with what the settlement had brought (see above at [16]). Consequently, and in agreement with the submissions of Mr Steer, I do not see any justification for extending accrual of any cause of action in tort beyond March 2018. By then, the die was cast; the consequences of the decision to forego an alternative course of action were known and were measurable (the companies could, for example, have been valued at that point). Nothing further needed to happen, and there was no remaining contingency left to occur.[91]One can put the point slightly differently, but with the same result. The most favourable interpretation to Stephen is that Charles Russell Speechly’s negligence did no more than expose him to a risk of future loss, so that time would not start to run until the risk materialised. The relevant risk though would have to be the risk of achieving a later outcome through litigation on less favourable terms than might have been achieved before September 2016 through negotiation. But if that was the risk, then it had plainly materialised by March 2018, because by then the outcome of the litigation was known and was capable of quantification and measurement. That outcome included Stephen’s expenditure on legal fees and funding costs, which he now seeks to claim as damages in his new action.[92]The result is that any claim in tort should have been brought by March 2024; but the present claim was brought only two years later, in March 2026.

Claims in contract

[93]The position here is a little more straightforward.[94]Under s.5 of the Limitation Act 1980, a claim for breach of contract must be brought within 6 years of the relevant breach. Termination of Charles Russell Speechlys’ retainer on 18 January 2018 provides a long-stop date; but even taking that as the latest point, any claim should have been commenced by 18 January 2024.[95]Perhaps in acknowledgment of this, Stephen sought to rely on ss. 32(1)(b) and (c) of the Limitation Act, to argue that the limitation period in respect of his contract claims did not start to run until much later.[96]Stephen sought to rely on s.32(1)(c) in relation to all of his claims for breach of contract. That provision extends the date of commencement of the six-year limitation period, in cases where the action “is for relief from the consequences of a mistake”, to the date when the claimant discovered the relevant mistake or could with reasonable diligence have discovered it.[97]I am afraid that Stephen’s reliance on this provision was misconceived. It is now settled that, for a mistake to be a relevant mistake for the purposes of the section, it must constitute an essential element of the cause of action: see Test Claimants in the FII Group Litigation v. Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2012] UKSC 19, [2012] 2 AC 337. So the provision will bite, for example, where monies are paid over under a mistake of fact, which only comes to light much later on.[98]In this case, none of the mistakes relied on by Stephen are mistakes of this type. They are set out in his Skeleton Argument at para. 62. They include matters such as the Court making the mistake of “making the wrong court order at the CMC on 14 December 2022”, and the Court making “the mistake of conducting a mini trial on the evidence.” But these are alleged errors in the conduct of the original claim. Stephen’s causes of action are in tort and contract. The mistakes Stephen refers to are not essential elements in either.[99]The final point is Stephen’s argument based on s.32(1)(b) of the Limitation Act 1980. This provision serves to extend the period for commencement of the limitation period in a case where “any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant.”[100]In Canada Square Operations Ltd v. Potter [2023] UKSC 41, however, Lord Reed explained that for a concealment to be a “deliberate concealment” within the meaning of the section, concealment from the claimant must be an intended result. Accordingly, the defendant “must have considered whether to inform the claimant of the relevant fact and decided not to” (see at [108]), and the claimant must show “an intention on the part of the defendant to conceal the fact or facts in question” (see at [109]).[101]In this case I do not see any proper basis for saying there was an intention of the relevant type.[102]The draft PoC at paras 127-129 makes the point that counsel for Stephen sent an email to Charles Russell Speechlys on 8 February 2017 suggesting the possibility of compressing the proposed timetable so as to arrive at a November or December 2017 trial date.[103]It is correct that the point was not raised with Stephen. The relevant email chain looked at as a whole, however, is not consistent with the idea that there was any deliberate attempt to conceal the point from him. The suggestion from counsel to Charles Russell Speechlys was tentative only:
“ … we also discussed the possibility of compressing the timetable slightly …”
. The reply the following day indicated that the fee earners at Charles Russell Speechlys had considered the point but did not think it advisable, “,,, on balance, [we] would prefer that it was left to be listed in early 2018 owing to our own availabilities and so that cost pressures for Steve can be spread out …”. This looks like a routine exchange between advisers resulting in a settled position which no-one thought needed to be communicated further. I do not see a proper basis for inferring that someone at Charles Russell Speechlys took a deliberate decision not to disclose to Stephen something they thought he needed to know about, as opposed to them forming a professional judgment about the advisability of a possible course of action and moving on.

VI. Other matters

[104]In the circumstances, I do not propose to express any final view on the other arguments raised by Charles Russell Speechlys – namely, that the draft PoC are still inadequately pleaded, and that in any event, any new claim (if allowed to proceed) should be subject to a stay pending payment of outstanding costs.[105]I have some sympathy with the former point, because the draft PoC are lengthy and to some extent internally inconsistent (for example, certain of the counterfactual scenarios set out from para. 225 onwards appear to contradict each other: e.g., those at paras 225-227 assume that Sean would have remained a director of the three jointly-owned companies, but that at 228 assumes the opposite). It is not necessary for me to express a concluded view on this issue, however. Since I consider that the claim should be struck out, the question of stay does not arise.

VII. Extended Civil Restraint Order

[106]The final matter to address is whether to make an ECRO against Stephen.[107]As a preliminary point, I should say I am not persuaded that the present claim was totally without merit, although I have agreed it should be struck out. In Sartipy v. Tigris Industries Inc [2019] EWCA Civ. 225, the Court of Appeal indicated that “totally without merit” refers to an application or claim in respect of which no rational argument was our could have been raised. Although close, on balance I do not think that describes the present case. Stephen’s argument that there had been no relevant adjudication of his earlier claim was a rational one in my view. Likewise, he was entitled to put forward his argument based on Morris J’s Judgment in Davies v. Carillion Services, to the effect that since his old case had not been struck out for abuse of process, it was not a forgone conclusion that his new one should be struck out as well. On limitation, the analysis above of Stephen’s argument in respect of his tort claims shows that he had a rational basis for at least trying to argue that such claims were brought in time.[108]That is not the end of the story, however. There is a wider picture. A number of previous applications by Stephen have been dismissed as totally without merit. These are as follows: i) An application made to Master McQuail to rely on the content of without prejudice discussions with RPC. ii) An application made to recuse Master McQuail after the handing-down of her Judgment but before the consequentials hearing, and a related application for a stay in the meantime. iii) An application dealt with by Roth J for permission to appeal the Master’s decision on use of the without prejudice discussions with RPC. iv) The initial application made on the papers to Roth J, for permission to appeal the Master’s decision on the strike-out question, which resulted in Roth J determining that 12 of Stephen’s Grounds of Appeal were totally without merit. v) The application made to Arnold LJ to reopen the appeal proceedings under CPR, rule 52.30. vi) An appeal brought by Stephen in ongoing bankruptcy proceedings against him, arising out of unpaid costs liabilities: Stephen sought to appeal an Order of DJ Revere made on 25 June 2025, but the appeal was dismissed by Mellor J on 6 November 2025 at a rolled-up hearing. Mellor J in the course of his Judgment said, “I have formed a strong view that his [Stephen’s] appeal simply amounts to an attempt on his part to delay any hearing of this petition for as long as possible.”[109]In the Sartipy decision, the Court of Appeal said that although at least three without merit claims or applications are the minimum required for the making of an ECRO, the real question is whether the party concerned is acting “persistently”, and that requires an evaluation of the party’s overall conduct.[110]Although I have some sympathy with Stephen’s position, the evidence plainly supports the view that he has been persistent in his actions. The point is only reinforced if one considers the broader context, which includes his attempt to appeal Arnold LJ’s decisions to the Supreme Court, and the fact that in the period between Master McQuail circulating her draft Judgment and then handing it down, he initiated contempt of court proceedings against Mr Jamie Cartwright, the individual who had signed Charles Russell Speechly’s Defence in the original action. That application was dismissed by Fancourt J on 31 January 2024.[111]In the hearing before me, Stephen said that he was effectively at the end of the road with his various challenges, and that subject to a possible appeal against my Judgment – for which he would need permission anyway – there would be little more he could do; and so there would be no utility in an ECRO.[112]In my opinion, however, that is not an answer to the picture presented by the evidence, which is of an intelligent and determined person who is now fighting a rigorous rearguard action, and who has shown some creativity in pursuing it. The overall picture suggests a degree of compulsion in pursuing points repeatedly, which goes beyond the norm, and which requires some intervention. That is so not only for the benefit of Charles Russell Speechlys, but is also in the public interest: the Court has a responsibility to marshal its resources in a proper manner for the benefit of all Court users, and to that end is justified in imposing an additional restraint on some litigants where without it, they would take up a disproportionate amount of the Court’s time: see, for example, Nowak v.(1) The Nursing and Midwifery Council, and(2) Guy’s and St Thomas’ NHS Foundation Trust [2013] EWHC 1932 (QB).[113]In the end, therefore, I have determined that Stephen should be made subject to an ECRO. I emphasise that this is not intended to prevent access to the Courts, but only to require any further claim or application to be subject to a review at the outset, to determine whether it should be allowed to proceed.

VIII. Conclusion and Disposal

[114]The result is that the present claim will be struck out. Additionally, I will make an ECRO in the terms proposed by the Defendant.