“ 4.—(1) An eligible student qualifies for support in connection with a designated course subject to and in accordance with these Regulations. (2) Subject to paragraph (3), a person is an eligible student in connection with a designated course if in assessing that person’s application for support the Secretary of State determines that the person falls within one of the categories set out in Part 2 of Schedule 1…”
“5.—(1) Subject to paragraphs (3), (4), (5) and (6) a course is a designated course for the purposes of section 22(1) of the 1998 Act and regulation 4 if it is— (a) mentioned in Schedule 2; (b) one of the following— (i) subject to paragraph (3), a full-time course; (ii) a sandwich course; or (iii) a course for the initial training of teachers which— (aa) begins before1st September 2010 ; or (bb) begins on or after1st September 2010 where the student transfers to the current course pursuant to regulation 7 from a course for the initial training of teachers which began before1st September 2010;. (c) of at least— (i) one academic year’s duration; or (ii) six weeks’ duration in the case of a flexible postgraduate course for the initial training of teachers; (d) wholly provided by a publicly funded educational institution or institutions in the United Kingdom or provided by such an institution or institutions in conjunction with an institution or institutions outside the United Kingdom; and (e) for a course beginning on or after1st September 2012 which falls within paragraph 1, 2, 4, 6, 7 or 8 of Schedule 2, a course leading to an award granted or to be granted by a body falling within section 214(2)(a) or (b) of theEducation Reform Act 1988 (1). (2) In paragraph (1)(e) “award” means any degree, diploma, certificate or other academic award or distinction…. (10) For the purposes of section 22 of the 1998 Act and regulation 4(1) the Secretary of State may designate courses of higher education which are not designated under paragraph (1).”
“11. To receive a loan a student must enter into a contract with the Secretary of State.”
“113.—(1) The Secretary of State must pay the fee loan for which an eligible student qualifies to an institution to which the student is liable to make payment. (2) The Secretary of State may pay the fee loan in instalments. (3) The Secretary of State must not pay the fee loan or instalment of fee loan until the Secretary of State has received from the academic authority— (a) a request for payment; and (b) confirmation (in such form as may be required by the Secretary of State) of the student’s attendance on the course for the period to which the instalment relates. (4) In this regulation, “confirmation of the student’s attendance” means confirmation from the academic authority that the student- (a) has enrolled for the academic year and has begun to attend (or in the case of a distance learning course undertake) the course for that academic year, where the confirmation relates to payment of the fee loan or the first instalment of the fee loan for the academic year; or (b) remains enrolled and continues to attend (or in the case of a distance learning course undertake) the course, where the confirmation relates to payment of an instalment of the fee loan other than the first instalment. (5) The academic authority must inform the Secretary of State if a student ceases to attend or undertake the designated course during the academic year.”
“If providers of specifically designated courses do not continue to meet the terms and conditions of specific course designation and/or there are concerns raised during monitoring then the Department will consider whether the course(s) should continue to be specifically designated. Such cases will be considered on an individual basis taking into account the particular circumstances. Possible action could include the issuing of an improvement notice, a freeze or cut in student numbers and possible withdrawal of designation for the course or courses in question.”
“18. Students applied to the Claimant to attend courses and the student either agreed to pay for the course tuition fees privately or if they were eligible students under the 2011 Regulations, they applied through the SLC portal and following the SLC providing confirmation that the student was entitled to funding support (eligible students received a letter from the SLC confirming their entitlement to funding), the students were accepted onto the course by the Claimant. The vast majority of the students taught by the Claimant following its receipt of designation in 2011 were funded by way of tuition payments authorised in this way the SLC. 19. By the process of the Claimant applying for designation of its DTLLS course and the Defendant promising to pay the tuition fees on behalf of students who took up the DTLLS courses provided by the Claimant (reliance on the Defendant’s promise of payment), the Claimant and the Defendant had entered into an agreement with each party providing consideration, In the premises a contract had been made between the Claimant and the Defendant. 20. In particular the Claimant will say that it was a term of the contract that the Defendant would pay or cause to be paid each students tuition fees on the appropriate dates, following confirmation by the Claimant to the SLC of the attendance (or the continuing attendance for the second and third tranches) by the student on the DTLLS course.”
“a I confirm I have read and understood ‘Student Loans: A guide to term and conditions’ available online at www.directgov.uk/studentfinance b I acknowledge and agree that any loan(s) made to me by the Secretary of State for Business Innovation and Skills, ‘the lender’ which includes any persons exercising functions on behalf of the Secretary of State pursuant tosection 23(4) of the Teaching and Higher Education Act 1998 … will be on the terms set out in these declarations and in Regulations which are made undersection 22 of the Act as amended from time to time. c I undertake to repay the lender any loan(s) made to me together with all in any interest, penalties and charges which apply. d I agree that any loan(s) made to me as a consequence of the acceptance of my application by the lender is a/are contract(s) between me and the lender which binds me from the payment to me of the first loan advance and that the repayment of any such loan(s) together with all and any interest, penalties and charges which apply, will be due to buy me to the lender as a debt. e I agree that I shall be obliged to make repayment of my loans… f I agree that any action for repayment and/or in respect of or in connection with my loans… will be brought before the ordinary civil courts and shall be governed by the general rules of civil procedure g [governing law is that of place of student’s home address if in UK or otherwise English law] h [jurisdiction clause in favour of place of student’s home address if in UK or otherwise UK courts] i [obligation of student to notify changes in personal details] j [obligation of student to notify if leaves UK] k I agree to take all future action requested by the lender and provide the lender with all information required to ensure repayments in accordance with the regulations referred to in paragraph b. l If I breach any of the terms under which any loan(s) will be made I agree that I will be obliged to pay any charges and penalties which may apply… m [student accepts that checks may be carried out] n [data sharing provision]” e I agree that I shall be obliged to make repayment of my loans… i [obligation of student to notify changes in personal details] j [obligation of student to notify if leaves UK] m [student accepts that checks may be carried out] n [data sharing provision]”
“Courses leading to DTLLS… qualifications will no longer be considered as eligible… courses for the purpose of student support. The Secretary of State is therefore revoking the designation of the above courses with effect from1 September 2014 . Should you choose to continue offering the above courses, new students starting these courses on or after1 September 2014 will not be eligible to apply for… student support”
“Legacy courses – Annex A provides a list of… courses that CCP currently has promoted on the Student Loans Company HEI portal for academic year 2013/14”
“It is the Department’s firm expectation that in all cases existing eligible students who are already in receipt of student support will be able to continue doing so until they complete the course - however, we reserve our right to revoke designation in respect of existing students in exceptional circumstances, for example, where there is serious misconduct by the provider.”
“You are also responsible for ensuring that new students understand that any previously designated courses are no longer designated for student support purposes and they should therefore not submit applications to SLC for those courses. SLC will be monitoring applications to “legacy”, courses on a regular basis and any applications from new students will be made in eligible.”. “It is the Department’s firm expectation that in all cases existing eligible students who are already in receipt of student support will be able to continue doing so until they complete the course - however, we reserve our right to revoke designation in respect of existing students in exceptional circumstances, for example, where there is serious misconduct by the provider.”. “You are also responsible for ensuring that new students understand that any previously designated courses are no longer designated for student support purposes and they should therefore not submit applications to SLC for those courses. SLC will be monitoring applications to “legacy”, courses on a regular basis and any applications from new students will be made in eligible.”. 41. There was thus provision in relation to legacy courses for student support still to be provided to, “existing eligible students who commenced one of these courses in the academic year 2013/14 and who are already in receipt of student support.”
“4. The Defendant provided such designated courses to students on agreement that the Defendants fees would be paid, the agreed payment mechanism was that the students applied for loans to cover their tuition fees the loans to be paid directly by the SLC to the Defendants in consideration of the Defendant providing the tuition. The SLC made the payments on confirmation by the Defendant that the student had commenced the relevant course. The Defendant will say that this was a contract made between itself, the students and the Claimant acting through the SLC. 33. The defendant repeats paragraphs 2 to 29 herein. The Defendant was entitled to be paid tuition fees by the Claimant for all students enrolled on the DTLLS course prior to the1st September 2014 . The system was that payments would be made in three tranches. In the event the claimant failed to pay all tuition fees for the 2014 enrolled students the Defendant seeks the sum of£379,745 in unpaid tuition fees.”
“67. There is a distinction between a student's entitlement to receive fee support for attendance on a designated course, and the evidence which a college is required to produce in order to make good its claim to be paid the tuition element of that financial support. After the introduction of the new requirement in sub-paragraph (3A) of Regulation 113, alternative providers were required to register the student with the awarding body before the first tranche of fees could be claimed or received. I accept Mr Coulter's point that the introduction of this new requirement was to fill a gap that had previously existed. 68. I should finally add this: it has never been part of the DfE's case that some part of the fees should be recovered, for instance fees paid in respect of the period after students had been registered with Pearson for the DET qualification. The case has remained that registration in December 2014 acted retrospectively, as well as prospectively, to remove the students' entitlement to receive funding support in respect of their DTLLS courses. For the reasons I have given I do not accept that the 2011 Regulations, taken together with the 2013 Guidance, had that effect.”
“ 69. I have concluded that the DfE's claim to recover tuition fees paid to CCP in respect of students taught on a DTLLS course but registered for the DET qualification must be dismissed.”
“3.4… (2) 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; or (c) that there has been a failure to comply with a rule, practice direction or court order.”
“7.5 Where a claim is based upon an agreement by conduct, the particulars of claim must specify the conduct relied on and state by whom, when and where the acts constituting the conduct were done.”
“24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; or (ii) that defendant has no real prospect of successfully defending the claim or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
“no real prospect of succeeding/successfully defending”
“21. The authorities therefore make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that -even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial. 22. So, when faced with a summary judgment application it is not enough to say, with Mr Micawber, that something may turn up.”
“41. For the amendments to be allowed the Appellants need to show that they have a real as opposed to fanciful prospect of success which is one that is more than merely arguable and carries some degree of conviction: ED&F Man Liquid Products Ltd v Patel[2003] EWCA Civ 472 . A claim does not have such a prospect where (a) it is possible to say with confidence that the factual basis for the claim is fanciful because it is entirely without substance; (b) the claimant does not have material to support at least a prima facie case that the allegations are correct; and/or (c) the claim has pleaded insufficient facts in support of their case to entitle the Court to draw the necessary inferences: Three Rivers District Council v Bank of England (No. 3)[2003] 2 AC 1 . 42. The court is entitled to reject a version of the facts which is implausible, self- contradictory or not supported by the contemporaneous documents and it is appropri- ate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action relied upon.”
“… a clear prospect that new material will become available before the trial which is likely to give the claimants a real prospect of success”, but rather to ask whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success.” there is no real substance in factual assertions made, particularly if contradicted by 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 or permissible on summary judgment. Thus the court should hesitate about making a the application, where reasonable grounds exist for believing that a fuller investigation 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 truth have no real prospect of succeeding on his claim or successfully defending the claim In King v Stiefel[2021] EWHC 1045 (Comm) Cockerill J held as follows: is by no means barred from evaluating the evidence, and concluding that on the evidence Micawber, that something may turn up.” opposed to fanciful prospect of success which is one that is more than merely arguable and carries some degree of conviction: ED&F Man Liquid Products Ltd v Patel [2003] confidence that the factual basis for the claim is fanciful because it is entirely without that the allegations are correct; and/or (c) the claim has pleaded insufficient facts in support of their case to entitle the Court to draw the necessary inferences: Three Rivers contradictory or not supported by the contemporaneous documents and it is appropri- ate for the court to consider whether the proposed pleading is coherent and contains the properly particularised elements of the cause of action relied upon.” 87. As I have said, CCP also now seeks to amend the particulars of claim to include as an alternative to the direct claim, a claim that the CCP can enforce an obligation of the Secretary of State to each student to provide a tuition fee loan by way of a payment to CCP. 88. That application requires permission under Civil Procedure Rule 17.1(2)(b), which reads: “(2) If his statement of case has been served, a party may amend it only – (a) with the written consent of all the other parties; or (b) with the permission of the court.”
“1.1 (1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders. and which I read into this judgment.”
“(1) This rule applies where – (a) a party applies to amend their statement of case in one of the ways mentioned in this rule; and (b) a period of limitation has expired under – (i) the Limitation Act 19801; (ii) the Foreign Limitation Periods Act 19842; or (iii) any other enactment which allows such an amendment, or under which such an amendment is allowed. (2) The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as are already in issue on as a claim in respect of which the party applying for permission has already claimed a remedy in the proceedings…”
“New claims in pending actions: rules of court. (1) For the purposes of this Act, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced— (a) in the case of a new claim made in or by way of third party proceedings, on the date on which those proceedings were commenced; and (b). in the case of any other new claim, on the same date as the original action. (2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either— (a). the addition or substitution of a new cause of action; or (b). the addition or substitution of a new party; (c) and “third party proceedings” means any proceedings brought in the course of any action by any party to the action against a person not previously a party to the action, other than proceedings brought by joining any such person as defendant to any claim already made in the original action by the party bringing the proceedings. (3) Except as provided by section 33 of this Act or by rules of court, neither the High Court nor the county] court shall allow a new claim within subsection (1)(b) above, other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Act which would affect a new action to enforce that claim. For the purposes of this subsection, a claim is an original set-off or an original counterclaim if it is a claim made by way of set-off or (as the case may be) by way of counterclaim by a party who has not previously made any claim in the action. (4) Rules of court may provide for allowing a new claim to which subsection (3) above applies to be made as there mentioned, but only if the conditions specified in subsection (5) below are satisfied, and subject to any further restrictions the rules may impose. (5). The conditions referred to in subsection (4) above are the following— (a) in the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action; and (b) in the case of a claim involving a new party, if the addition or substitution of the new party is necessary for the determination of the original action…”
“15. For Baird counsel submits that where, as alleged in paragraph 9, one party intentionally induces a particular belief in another, on which the other relies, such conduct attracts legal responsibility. The responsibility relied on is (1) to give reasonable notice to terminate the relationship and (2) during the subsistence of the relationship, to acquire garments from Baird in such quantities and at such prices as were in all the circumstances reasonable. More specifically he contends that the judge was wrong in three respects, namely (a) necessity is not the test for the implication of a contract from conduct, (b) there is a sufficient prospect of success in establishing an intention to create the legal relations relied on, and (c) the obligations are sufficiently certain to be enforceable as part of the alleged contract. 16. In connection with the wide proposition counsel referred to academic discussion with regard to “relational contracts” and the legal implications to which they may give rise. But the articles which he produced did not suggest that the normal rules as to the implication and formation of contracts or the usual requirements of certainty did not apply to “relational contracts”
“… it would, in my view, be contrary to principle to countenance the implication of a contract from conduct if the conduct relied upon is no more consistent with an intention to contract than with an intention not to contract. It must, surely, be necessary to identify conduct referable to the contract contended for or, at the very least, conduct inconsistent with there being no contract made between the parties. Put another way, I think it must be fatal to the implication of a contract if the parties would or might have acted exactly as they did in the absence of a contract.” 19. Counsel for Baird relied on the fact that in Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council[1990] 1 WLR 1195 , a case concerning the implication of a contract from a request for tenders and a submission in response, Bingham LJ put the matter somewhat differently. In that case he referred (pp. 1201 and 1202) to the “confident assumptions of commercial men” and the need to “be able to conclude with confidence both that the parties intended to create contractual relations and that the agreement was to the effect contended for”. 20. For M&S it was submitted that it would be odd if the principle for the implication of a contract at all should be different or less onerous than the principle for the implication of a term in a contract. Reliance was placed on Wilson v Partenreederei Hannah Blumenthal[1983] AC 854 and The Gudermes [1993] 1 Ll.R.311 . The former concerned the question whether a contract to abandon an arbitration might be implied from conduct, or more precisely lack of conduct. Lord Brandon of Oakbrook considered (p.914) that an actual abandonment, as opposed to an estoppel precluding an assertion of continuance, required proof of conduct of each party, as evinced to the other party and acted on by him, as “leads necessarily to the inference of an implied agreement” between them to abandon the contract. Lord Roskill referred (p.923) to “the only possible inference [being] that the agreement to arbitrate has been rescinded by mutual consent”
“48. I agree with the judgment of the Vice Chancellor on the contractual issue generally, and in particular his analysis of the problems of ascertaining with any sufficient precision the parties' mutual obligations, and also, by reason of the uncertainty, of establishing a mutual intention to create a legally enforceable relationship.”
“59. The Vice-Chancellor has set out paragraph 12(1) and (2) of the judgment below, in which Morison J summarised the relevant legal principles as he saw them. For a contract to come into existence, there must be both (a) an agreement on essentials with sufficient certainty to be enforceable and (b) an intention to create legal relations. 60. Both requirements are normally judged objectively. Absence of the former may involve or be explained by the latter. But this is not always so. A sufficiently certain agreement may be reached, but there may be either expressly (i.e. by express agreement) or impliedly (e.g. in some family situations) no intention to create legal relations. 61. An intention to create legal relations is normally presumed in the case of an express or apparent agreement satisfying the first requirement: see Chitty on Contracts (28 th Ed.) Vol. 1 para.2–146. It is otherwise, when the case is that an implied contract falls to be inferred from parties' conduct: Chitty, para.2–147. It is then for the party asserting such a contract to show the necessity for implying it. As Morison J said in his paragraph 12(1), if the parties would or might have acted as they did without any such contract, there is no necessity to imply any contract. It is merely putting the same point another way to say that no intention to make any such contract will then be inferred. 62. That the test of any such implication is necessity is, in my view, clear, both on the authority of The Aramis [1989] 1 Ll.R. 213 , Blackpool and Fylde Aero Club Ltd. v. Blackpool B.C.[1990] 1 WLR 1195 , The Hannah Blumenthal[1983] AC 854 and The Gudermes [1993] 1 Ll.R. 311 cited by the Vice-Chancellor, and also a matter of consistency. It could not be right to adopt a test of necessity when implying terms into a contract and a more relaxed test when implying a contract — which must itself have terms. 63. Here it is sought by the claimant to argue in reverse. First, the issue of intention to create legal relations is addressed and it is suggested that the judge gave only one reason (based on paragraph 9.28 of the claim) for negativing any such intention. Then, having sought to show that reason as ill-founded, it is argued that the only barrier to an enforceable contract is “essentially one of interpretation” and of giving effect to an intention on the part of the parties to contract. 64. It is, in my judgment, more appropriate to take the requirements in the order in which I have set them out, and to recognise their potential inter-relationship. If there is no sufficient agreement on essentials, that is on any view fundamental, and it may well also reflect an absence of intention to create legal relations…. 69. Objectively, the only sensible analysis of the present situation is in my judgment that the parties had an extremely good long-term commercial relationship, but not one which they ever sought to express, or which the court would ever seek to express, in terms of long-term contractual obligations. The upshot is that I agree with the judge's conclusion that there was never here any agreement on essentials. 70. In addition, I consider that the fact that there was never any agreement to reach or even to set out the essential principles which might govern any legally binding long-term relationship indicates that neither party can objectively be taken to have intended to make any legally binding commitment of a long-term nature. Their conduct in this regard contrasts with their conduct in entering into short-term commitments relating to each season, as well as their conduct in entering into other particular contracts, such as that made by both M & S and Baird with the clothing designer, Matthew Williamson, dated27th March 1998 .”
“66. The judge also alternatively found that there was promissory estoppel. Mr Harper submitted that if the appeal was allowed on convention estoppel the case should be remitted to the judge on the question of promissory estoppel as the facts on which he upheld this claim are not clear. We would have been in favour of this course if we had thought that there was a reasonable prospect of promissory estoppel now being shown. However it follows from the above that in our view ARC would have to satisfy the court that there was some clear and unequivocal representation by LBH to ARC that its claim was a valid one and in addition that LBH would not rely on any statutory limitation defence. The earliest point in time for a relevant representation is said to be the letter of17 September 1990 . In our judgment this does not amount to a representation of the type required and no such representation is to be found in any later communication, when for the most part LBH rejected ARC's claim or emphasised that its claim had to be substantiated. Moreover ARC has not sought to show that the condition imposed by Mr Rippingale's letter was fulfilled i.e. that the matter was adequately dealt with by the information provided by LBH to ARC. On any view the letter dated18 March 1994 gave notice that LBH would be relying on a limitation defence and the point made above in relation to estoppel by convention so far as that notice is concerned is as valid in relation to promissory estoppel.”
“67. We now turn to the question of unconscionability. This question does not as we see it arise but as we have heard a number of submissions on this question we will set out our conclusions on it. 68. Unconscionability can potentially involve a wide range of factors, including causation on which Mr Harper has particularly relied. The judge does not refer to this argument in his judgment and it may be that this point was not in fact taken as a separate issue at the trial. In a convention estoppel case, the assumption arises by inference or implication rather than from anything said expressly and this presents difficulties when it comes to showing that the party seeking to rely on the estoppel took some course on the faith of the assumption as communicated to him by the party to be estopped. Moreover the difficulties for ARC in this case are increased because on the facts found by the judge it never occurred to Mr Smith and Mr Thompson (representatives of ARC) that there might be a statutory limitation point. In those circumstances, reliance, which is here a matter of inference, cannot be shown. The further points on causation made by Mr Harper are in our judgment also sound, namely that ARC was really acting on the basis of the widely-held view of the law rather than anything LBH is shown to have said or done. In this connection, it is worthy of note that ARC's position was at all times prior to the decision of the Court of Appeal in this case on7 April 1999 that its claim to compensation was not statute-barred, and that the question of estoppel was not raised at any time in correspondence and only emerged in ARC's skeleton argument lodged for the hearing before Mr Burnton QC. 69. Another aspect of unconscionability is the question of detriment suffered by the party asserting estoppel. In the present case the convention estoppel is not alleged to have arisen before the expiration of the limitation period in respect of phase 1. Accordingly Mr Harper submits that detriment cannot be shown. The claim to compensation was time-barred and worthless, and LBH had promised to pay ARC's surveyors' fees. There is no evidence as to the amount of loss which ARC suffered apart from the loss of its phase I claim. It may have lost a considerable amount of management time dealing with the claim or it may have to pay Strutt & Parker for the difference between their fees on Ryde's scale (which we were told vary according to the amount of compensation obtained) and fees determined on some other basis. The phase II claim may be for a significant amount. Assuming for the moment that such loss could be shown and is not trivial, it would not in our judgment be an insuperable hurdle for ARC that any estoppel arose after the expiration of the limitation period for phase 1. But clearly the amount of any such detriment would *28 be a factor to be taken into account if it had been necessary to determine the issue of unconscionability. 70. Mr King relies on the fact that if there is no estoppel LBH will be able to acquire land compulsorily for no payment. We do not consider that that is a strong point because ARC had ample opportunity to refer its claim for compensation to the Lands Tribunal before the limitation period expired. 71. Mr Harper submitted that ARC had done nothing that it would not have done to pursue its claim in any event. In so far as Mr Harper was suggesting that ARC could have incurred no detriment as a result of any convention estoppel we do not accept his point. If LBH had communicated an assumption to ARC that it would not rely on any statutory limitation period, ARC would for the reasons given above be able to claim that it had incurred expenditure that it would not otherwise have incurred. In our judgment Mr Harper's stronger point is that ARC did not rely on any communication from LBH, and that its loss was not caused by any act of LBH.”
“52. In October 2014 following an investigation in response to a whistle blowing allegation received by SLC in August 2014, SLC’s Counter Fraud Services (SLC CFS) discovered over 100 students or potential students at CCP that had a number of indicators of suspicious behaviour. SLC suspended payments to those students on a case by case basis under its own delegated powers while investigations took place. I understand that SLC communicated with CCP on25 September 2014 and8 October 2014 , in order to ascertain attendance evidence for students that were registered on the SLC Portal as studying with CCP. Once SLC CFS had completed their investigations into these students, 115 of them were made ineligible for student support.”
“1 Right of third party to enforce contractual term. (1) Subject to the provisions of this Act, a person who is not a party to a contract (a “third party”) may in his own right enforce a term of the contract if— (a) the contract expressly provides that he may, or (b) subject to subsection (2), the term purports to confer a benefit on him. (2) Subsection (1)(b) does not apply if on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by the third party. (3) The third party must be expressly identified in the contract by name, as a member of a class or as answering a particular description but need not be in existence when the contract is entered into. (4) This section does not confer a right on a third party to enforce a term of a contract otherwise than subject to and in accordance with any other relevant terms of the contract. (5) For the purpose of exercising his right to enforce a term of the contract, there shall be available to the third party any remedy that would have been available to him in an action for breach of contract if he had been a party to the contract (and the rules relating to damages, injunctions, specific performance and other relief shall apply accordingly). (6) Where a term of a contract excludes or limits liability in relation to any matter references in this Act to the third party enforcing the term shall be construed as references to his availing himself of the exclusion or limitation. (7) In this Act, in relation to a term of a contract which is enforceable by a third party— “the promisor” means the party to the contract against whom the term is enforceable by the third party, and “the promisee” means the party to the contract by whom the term is enforceable against the promisor.”
“The submissions Dolphin 66 The LOU [letter of understanding i.e. the settlement contract] does not expressly provide that Dolphin may enforce it. Dolphin submits that it has a good arguable case that the contract purports to confer a benefit on it and that it does not, on its proper construction, appear that the parties did not intend the term providing for payment to Dolphin not to be enforceable by it. 67 As to the former, Dolphin stood to benefit from the receipt of money to itself because such a payment would give it security for its claim to commission. As to the latter, there is, it is submitted, nothing in the LOU to indicate that the parties did not intend it to be enforceable by Dolphin. The fact that the LOU is addressed to Dolphin is a strong indication that it was intended to be enforceable by Dolphin. 68 In developing his submissions in this respect Mr Bright postulated three different situations: (i) A agrees with B to pay C$ 8,500,000 ; (ii) A agrees with B to pay B by making a payment of that amount to a specified account of B at C’s bank; (iii) The present case. 69 In the first case the payment is plainly for the benefit of C and, all other things being equal, C is entitled to enforce the term against A. In the second case, as he submits, whilst in a sense the payment benefits C (since the bank may have a right of set-off in respect of monies paid into the bank account and will, in any event, benefit from having the funds deposited with it) most people would regard the agreement as providing simply for payment to B. It would not be in their immediate contemplation that the bank would benefit and the bank would not, generally, be entitled to recover. Thus the prospect of a flood of potential claims by banks and other designated recipients (solicitors, agents, etc), which Mr Thomas relies on as sound reason for rejecting any claim to the applicability of the Act, can be disregarded. 70 In the present case the negotiations for the LOU took place, not between A (the underwriters) and B (the Club) but between C (Dolphin), on A’s behalf, and B. Dolphin is the addressee of the LOU. The LOU calls for payment to Dolphin on the underwriters’ behalf– not to the underwriters (B) at their bank. Further the LOU must like all contracts be construed in its factual matrix. There is evidence in Mr Brown’s witness statement that provisions such as those found in the standard terms are standard practice for recovery agents and are adopted so that they do not run the risk of not receiving their fees. If that is so, it lends support to Dolphin being entitled to enforce against the Club. The Club 71 Mr Thomas submits that the LOU does not purport to confer a benefit on Dolphin and that, on its true construction, the parties did not intend its terms to be enforceable by Dolphin. A distinction is to be made between an intention to confer a benefit and the mere fact that a person may incidentally gain some benefit from the performance of a particular term in the contract between two others. The present case falls into the latter category. Discussion 72 In Prudential Assurance Co Ltd v Ayres[2007] EWHC 775 Lindsay J held that section 1 (1) (b) of the Act was satisfied if, on a true construction of the term in question, its sense had the effect of conferring a benefit on the third party in question, and that there was within section 1 (1) (b) no requirement that the benefit on the third party should be the predominant purpose or intent behind the term. In that case the term in question was a provision in a deed between a landlord and the assignee of a lease, which was a firm, that the liability of the assignee for future rent should not extend to the personal assets of the partners and that any recovery by the landlord against the assignee or “any previous tenant” for default under the lease was limited to the assets of the partnership. The previous tenant sought to enforce this provision when sued by the landlord for arrears of rent (the assignee having failed to pay). Lindsay J held that the previous tenant was entitled to enforce this provision against the landlord (itself a lessee of a superior landlord). 73 The Court of Appeal reversed this decision holding that the relevant provision, properly interpreted, did not purport to confer a benefit on the previous tenant but to restrict the rights of the landlord and the previous tenant against the assignee. In those circumstances no question of the application of the 1999 Act arose. Section 1 (1) (b) 74 A contract does not purport to confer a benefit on a third party simply because the position of that third party will be improved if the contract is performed. The reference in the section to the term purporting to “confer” a benefit seems to me to connote that the language used by the parties shows that one of the purposes of their bargain (rather than one of its incidental effects if performed) was to benefit the third party. 75 In my judgment the term in question does not purport to confer a benefit on Dolphin in the sense meant by section 1 (1) (b) of the 1999 Act. The provision in the LOU that payment should be made to Dolphin or underwriters’ solicitors was an agreement as to the means by which the Club’s obligation to underwriters was to be discharged. It was not an indication that the agent payee was an intended beneficiary of the promise. The intended beneficiaries were the underwriters on whose behalf the payment was to be received. 76 A provision for payment of a sum to an agent on his principal’s behalf is to be contrasted with an agreement by A and B that A will pay C (C not being A’s agent or trustee)4. Further, the fact that payment is to be made either to one company (Dolphin) or any firm or company in a specified category (underwriters’ solicitors) seems to me to indicate that it is not the purpose of the provision to benefit Dolphin or the solicitors rather than to specify the appropriate mode of payment. 77 Even if it be established that recovery agents usually deduct their commission from the recovery and agree with their clients that the recovery should be paid to them that would not in my judgment transform this agreement into one whose purpose was to confer a benefit on Dolphin. There are, no doubt, many agents who habitually deduct their fees or commission from the recovery that they make. That is not, in my judgment, sufficient to make an agreement to pay an agent on behalf of his principal an agreement which purports, so far as the contracting parties are concerned, to confer a benefit on the agent for the purposes of section 1 (1) (b) of the 1999 Act. Section 1(2) 78 If I am wrong on that, then the next question is whether, on a proper construction of the contract it appears that the parties did not intend the term to be enforceable by Dolphin. The practical efficacy of any right of enforcement would necessarily be dependent on the settlement monies not being paid to any solicitor appointed by the underwriters. Payment to such a solicitor would not be contrary to the LOU which expressly contemplates such a payment. The question also arises as to whether the LOU prohibits the Club making payment to the underwriters’ own bank account and whether, if payment is so made, it would operate as a discharge of the Club’s obligations. 79 It seems to me unreasonable to suppose that the parties to the LOU intended the provision for payment to Dolphin or some solicitor of the underwriters to preclude payment to the underwriters direct. If, however, the contract must be construed as having that effect, the next question is whether the parties could vary that agreement by agreeing to make and receive payment direct. Dolphin must necessarily contend that section 2 of the Act prevents such a variation since, if the parties were entitled to vary the agreement, they must be taken to have done so by asking for and making payment to the underwriters. 80 It appears to me unrealistic to suppose that, by agreeing that the Club would pay Dolphin or any solicitors appointed by the underwriters (an expression which Mr Bright suggested should be interpreted as extending to US attorneys in view of the action commenced in New York), the Club and the underwriters intended that Dolphin should, where no solicitors had been appointed by the underwriters, have an enforceable right to require payment of the settlement monies to it, with the result that, although the underwriters could, consistently with the LOU, appoint solicitors and ask the Club to pay them, they could not without breaching Dolphin’s rights under the LOU legitimately agree with the Club that it should be paid direct. 81 If such a right was intended to exist it is unclear what the position would be if a solicitor or solicitors were in fact appointed by the underwriters. It would be surprising if, Dolphin, assuming it had a right beforehand, would now have no right at all. If, in those circumstances, it had any right it would, presumably, be a right held jointly with the solicitor(s) to have the settlement monies paid either to Dolphin or an appointed solicitor. Whether or not that right would be of any value would presumably depend on whether it could be established that, if Dolphin had not paid the underwriters direct, it would be more likely to have paid Dolphin. It is unrealistic to suppose that the parties contemplated this issue ever arising. 82 In short, I do not regard it as well arguable that the parties to the LOU intended (or do not appear not to have intended) that the provision for payment to Dolphin or the solicitors should be enforceable by Dolphin and/or any appointed solicitors. On the contrary that provision appears in its commercial context to be a standard provision as to the mode of discharge of an obligation undertaken for the benefit of the underwriters. The parties were not concerned to give Dolphin or any appointed solicitors some right of enforcement. They simply wished to provide for how the benefit to be conferred on the underwriters under any judgment or agreement was to be made. 83 The fact that the LOU was addressed to the cargo interests care of Dolphin does not, in my view, indicate any intention that Dolphin should be a kind of quasi-party, as Mr Bright put it. On the contrary it appears to distinguish between (i) those who are parties and beneficiaries of the obligations contained in the LOU, namely the Club and the Cargo Interests, and (ii) a company which acts on the underwriters’ behalf for the purposes of receipt of the monies due under the LOU. 84 In short, although Mr Bright seeks to put this case in his third category it is, as it seems to me, in the same category as that of A who agrees to pay B at B’s bankers, C.”
“Submissions 66. Mr Sheldon submitted that the term in the contract of employment was not intended to be enforceable by PCS. First, he submitted that on a proper construction of section 1(2) of the 1999 Act, having regard tosection 6(c) of the Interpretation Act 1978 , “parties” meant “either party”
“Discussion 68. The issue in this case involves the proper interpretation of section 1 of the 1999 Act. That involves considering the words of the statutory provision, read in context and having regard to the purpose underlying the statute, and bearing in mind any legitimate aids to statutory interpretation,”
“75. The following observations can be made. First sub-sections 1(1)(b) and (2) of the 1999 Act need to be read together. The ultimate question is to determine whether the parties to a contract intended that a contractual term should be enforceable by a third party. Sub-section 1(1)(b) concerns whether the term purports to confer a benefit on a third party. Sub-section 1(2) concerns the qualification, namely that the contractual term will not be enforceable if the parties to the contract did not intend the term to be enforceable by a third party. It is unlikely that the fact that the qualification is expressed in the negative (“that the parties did not intend the term to be enforceable by the third party”) will materially affect the outcome in a particular case. The likelihood is that courts will be in a position to determine whether, on the proper construction of the contract, the term was or was not intended to be enforceable by the third party. 76. Secondly, it should be borne in mind when considering the applicability of subsections 1(1)(b) and (2) that the contract may not expressly deal with the question of whether the contractual term is intended by the parties to be enforceable by a third party. If the contract did expressly provide that the term was to be enforceable, the situation would fall within section 1(1)(a). If the contract expressly provided that the term was not intended to be enforceable that would provide a clear answer to the question posed in subsections 1(1)(b) and (2). Those subsections, however, are also intended to include situations where the contract does not expressly deal with the question of enforceability of a term by a third party. 77. Thirdly, against that background, the question is what was the common intention of both parties, objectively ascertained, “on a proper construction of the contract”
“The Proper Approach to the Interpretation of the Contract 78. The process for interpreting contracts is well established. As Lord Hoffmann observed in Investors Compensation Scheme Ltd. v West Bromwich Building Society[1998] 1 WLR 896 at pages 912 to 923, the process of interpreting contracts involves: “… the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.” 79. Similarly, in the context of construing a settlement agreement, Lord Bingham observed in Bank of Credit and Commerce International SA v Ali[2002] 1 AC 251 at paragraph 8 that: “….. In construing this provision, as any other contractual provision, the object of the court is to give effect to what the contracting parties intended. To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties' relationship and all the relevant facts surrounding the transaction so far as known to the parties. To ascertain the parties' intentions the court does not of course inquire into the parties' subjective states of mind but makes an objective judgment based on the materials already identified course.” 80. To like effect, in the context of the construction of leases, Lord Neuberger said at paragraph 15 of his judgment in Arnold v Britton[2015] UKSC 36 ,[2015] AC 1619 that: “15. When interpreting a written contract, the court is concerned to identify the intention of the parties by reference to “what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean”, to quote Lord Hoffmann in Chartbrook Ltd v Persimmon Homes Ltd[2009] AC 1101 , para 14. And it does so by focussing on the meaning of the relevant words, in this case clause 3(2) of each of the 25 leases, in their documentary, factual and commercial context. That meaning has to be assessed in the light of (i) the natural and ordinary meaning of the clause, (ii) any other relevant provisions of the lease, (iii) the overall purpose of the clause and the lease, (iv) the facts and circumstances known or assumed by the parties at the time that the document was executed, and (v) commercial common sense, but (vi) disregarding subjective evidence of any party's intentions. In this connection, see Prenn[1971] 1 WLR 1381 , 1384-1386; Reardon Smith Line Ltd v Yngvar Hansen-Tangen (trading as HE Hansen-Tangen)[1976] 1 WLR 989 , 995-997, per Lord Wilberforce; Bank of Credit and Commerce International SA v Ali[2002] 1 AC 251 , para 8, per Lord Bingham of Cornhill; and the survey of more recent authorities in Rainy Sky[2011] 1 WLR 2900 , paras 21-30, per Lord Clarke of Stone-cum-Ebony JSC.”.” 189. In this context I add paragraphs 118 to 119 of Underhill LJ, judgment: “118. Section 1 (2) provides explicitly that the question of what appears to have been the parties’ intention about third-party enforceability is to be determined “on a proper construction of the contract”, i.e. applying the ordinary rules for ascertaining the objective meaning of a contract. I agree with Lewis LJ that it follows that we must reject Mr Sheldon’s argument that if it appears that only one of the parties would not have intended third-party enforceability that is sufficient for the purpose of the subsection. The intention in question must be the common intention of both parties. 119. Since, ex hypothesi, in a section 1 (2) case the express words of the contract do not provide for third-party enforceability, the Appellants’ case that it “appears that” the parties did not have the necessary intention has to be established by reference to the context, or factual matrix, to the extent that that is in accordance with the usual contractual principles. As to that, Lewis LJ identifies the key authorities at paras. 78-80 above, but perhaps reference should be made also to Wood v Capita Insurance Services Ltd[2017] UKSC 24 ,[2017] AC 1175 , which is the culmination of the recent series of cases on this topic in the Supreme Court.” 190. Lewis LJ then considered the application of those principles to the facts of that case, albeit also referring to general principle as he did so in paragraphs 81 to 83 of that judgment: “The Application of the 1999 Act to the Facts of the Present Appeals 81. Against that background, I consider the application of section 1(1)(b) and (2) of the 1999 Act to the facts of these appeals. It is accepted that the contractual term in question purports to confer a benefit. The issue then is to ascertain the intention of the parties, having regard to the factual context and the wording of the contract. 82. First, the factual background is a relevant factor in the ascertainment of the intention of the parties. In that regard, the context is that the employer and the union entered into a non-legally enforceable collective agreement. So far as the provisions of the collective agreement were intended to give rise to rights that were to be enforceable by individual employees, the terms of the collective agreement would need to be incorporated into the individual contracts of employment. The context therefore was not, in truth, a situation where the parties to the contract of employment were seeking to confer a benefit on a third party. Rather, the situation was the reverse. The third party and the employer had agreed that certain benefits should be conferred on the employee and the contract of employment incorporated the relevant provisions of the collective agreement in order to ensure that the employees were able to enforce their right to those benefits. That factual background is a relevant, albeit not conclusive, factor in the construction of the contract of employment. It would not be correct to take the view that, as a collective agreement was not intended to be enforceable by a trade union, then the parties to a contract of employment could never have intended that provisions included in that contract but originating in the collective agreement were to be enforceable by the trade union. The judges below erred, however, in considering that the fact that the contractual provisions originated in a collective agreement, that was not intended to be enforceable by the union, was irrelevant. The context is relevant and is a pointer that the parties to the contract of employment were not intending that the provisions be enforceable by the trade union. Rather, the parties were concerned with a different issue, namely ensuring that the provisions would be enforceable by the employees against the employer. 83. Secondly, it is important to consider the words of the contractual term. It is appropriate first to consider the nature of the contractual term. Here the term provides that the employer will offer a facility to the employee, that is, if the employee wishes, he or she may authorise the deduction of money for payment to specified bodies, including trade unions. The contractual provision therefore concerns the offering of a facility to the employee. It is not concerned, for example, with providing that a sum of money will be paid to a named, identified beneficiary or class of beneficiaries. It may well be (as the employers accept) that the offering of a facility to the employee may purport to confer a benefit on the unions because, if employees do authorise deductions for payment of union subscriptions, the employer will hand over the subscription to the union. The nature of the contractual provision, however, is to ensure that the employer offers a facility to the employee.” 191. He applied his approach of principle to the contractual terms for deductions to be made to third parties in paragraphs 84 to 85 of that judgment: “84. The nature of the contractual term appears from the language used in the provisions that were incorporated into the individual contracts of employment. In the Code, for example, paragraph 4051 talks of a “civil servant who wishes to authorise deductions from his pay for any of the purposes or organisations listed”
“100. There is no doubt about the mischief that the 1999 Act was intended to address. The mischief was the hardship caused by the common law’s strict adherence to the third party rule that, subject to limited exceptions, a contract made between A and B as the parties to the contract did not confer rights on someone else (C) who was not a party to the contract but was a third party. That appears from the heading of section 1 (“Right of third party to enforce contractual term”) without the need to refer to the Law Commission’s Report which, as Lewis LJ explains, identifies the purpose of the Law Commission’s proposals in similarly clear terms. 101. Equally, there is no doubt about the means by which the 1999 Act sought to address the mischief. For present purposes, it did so by section 1(1) and (2), the terms of which are clear even if their application may give rise to difficulties. I agree that there are two mutually exclusive categories of case that are of interest in this appeal. The first is those that arise under section 1(1)(a), which enables the third party to enforce a term of the contract if the contract expressly provides that they may. By contrast, sections 1(1)(b) and 1(2) are directly applicable to the facts of the present case because it is common ground that (i) the relevant term of the Claimants’ various contracts with their departmental employers purported to confer a benefit upon the third party PCS; but (ii) the contracts do not expressly provide that the third party may enforce the relevant term. The consequence is that the term is enforceable by PCS unless “on a proper construction of the contract [i.e. the Claimants’ various contracts with their departmental employers] it appears that the parties [i.e. the Claimants and their respective departmental employers] did not intend the term to be enforceable by the third party [i.e. PCS].”” and set out his approach to the 1999 Act in paragraphs 102 to 104: “102. This provision has been described, correctly in my view, as establishing a “rebuttable presumption.”
“105. The nub of the dispute, and where I disagree with the majority, is whether on a proper construction of the contract it appears that the parties did not intend the term enforceable by the third party. I agree that the contractual provision in question concerns the offering of a facility to employees, the facility being that their employers would deduct their subscriptions at source and pay them direct to PCS. But this does not determine the issue we have to decide, because it is common ground that, in addition, it purported to confer a benefit on PCS, namely the right to receive the proceeds of check-off in cases where members have taken the necessary steps to avail themselves of the facility. It is that purporting to confer a benefit on PCS that brings the Act into play and generates the rebuttable presumption. Put in slightly different words: the consequence of the contractual check-off obligation owed by the departmental employers to the claimants was a rebuttable presumption that PCS was entitled to enforce the term. It is not right, in my view, to treat the check-off provisions as being solely concerned with offering the facility to the employee. Since the passing of the Act, the critical question is not simply what the term in question offers to the other party to the contract; rather it is whether the term in question purports to confer a benefit upon the third party. In these appeals it does, with the result that a right to enforce the contract was conferred on PCS unless, on a proper construction of the contract, it appears that it was the (joint) intention of the employers and employees that it should not be.”
“117. The issue which the Courts had to decide in these cases was whether “it appear[ed] that the parties did not intend [the requirement to provide check-off arrangements] to be enforceable by” the Union. That language, and the structure of sections 1 (1) (b) and (2) generally, creates what the Law Commission describes as a “rebuttable presumption” in favour of third-party enforceability in any case where the contract purports to confer a benefit on the third party: see para. 72 of Lewis LJ’s judgment. I agree with his observation at para. 75 that in the generality of cases the court is likely to be able to reach a conclusion one way or the other about the parties’ intentions, so that the burden of proof created by the statutory language will not be determinative; but that is not necessary to my reasoning in this case.”
“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 [2000] UKHL[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. At page 31, Lord Bingham summarised the main principles in these terms: “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 v Vlieland-Boddy[2003] EWCA Civ 14 , where he summarised the principles to be derived from Johnson v Gore-Wood at paragraphs 49-53. “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.”
“The fact that the limitation period has not expired, does not figure to the same degree in a case where there has been contumelious conduct on behalf of a plaintiff or where the proceedings which are being struck out constitute an abuse of process: see Grovit v. Doctor [1997] 1 W.L.R. 640 . In such circumstances, the plaintiff may well find that if he brings fresh proceedings after the original proceedings are struck out they are stayed because of his conduct.”
“18 The real question under head (1) of the summons of10 March 1999 , as the judge appreciated, is whether it is an abuse of process to seek to litigate, in subsequent proceedings, issues which have been raised (but not adjudicated upon) in earlier proceedings which have themselves been struck out. The question arises because, in order to succeed on its claim for payment under the covenant in the legal charge, the bank must establish the two points which I have already identified—namely: (i) whether there was a debt owed by Trafalgar to the bank and (ii) whether the guarantee was enforceable—which were in issue in the earlier proceedings but which were not adjudicated upon in those proceedings because those proceedings were struck out.read paragraph 18 into this judgment. Chadwick, LJ, then considered the case law prior to the Civil Procedure Rules, where applications had been made to strike out a second claim where a first claim had been struck out for delay, and then the post-CPR position, concluding in paragraphs 34 to 36, which I read into this judgment.” 251. After carrying out a further analysis, Chadwick, LJ, concluded at paragraphs 52 to 56: “Should the present action be struck out? 52 In my view, for the reasons which I have sought to give, it is open to this court to strike out the claim for payment made in the present action. That is a claim which, in substance, is indistinguishable from the claim for payment made in the first action. If that claim stood alone it could be said with force that to seek to pursue it in a second action when it could and should have been pursued, properly and in compliance with the rules of court, in the first action is an abuse of process. It is an abuse because it is a misuse of the court's limited resources. Resources which could be used for the resolution of disputes between other parties will (if the second action proceeds) have to be used to allow the bank "a second bite at the cherry". That is an unnecessary and wasteful use of those resources. The bank ought to have made proper use of the opportunity provided by the first action to resolve its dispute in relation to the claim for payment. 53 But the claim for payment does not stand alone. It is conjoined with claims to enforce the security under the legal charge. It is important to keep in mind that, by striking out the claim for payment, the court does not extinguish the underlying debt. Nor, of course, is the underlying debt extinguished by the expiry of a limitation period. The debt (if it exists) remains secured on the mortgaged property. I can see no basis on which the claims to enforce the security under the legal charge can be struck out on the grounds of abuse of process. Those claims were not made in the first action; and, for the reasons which I have already given, there was no reason why they should have been. 54 The bank does not need to establish its claim for payment in order to obtain an order for possession. It is entitled to possession by virtue of its legal estate; subject to the court's powers undersection 36 of the Administration of Justice Act 1970 —in a case to which that section applies. *316 The defence to the claim for possession—and to the claims for the appointment of a receiver, for sale and foreclosure—is that the mortgage ought to be discharged on the basis that there is no debt. That, also, is the basis of the Ashtons' counterclaim. The effect, as it seems to me, is that the issue whether or not there is a debt secured by the legal charge will have to be resolved whether or not the claim for payment under the covenant is struck out. That issue will have to be fought on the claim for possession; it will have to be fought on the counterclaim if Mr and Mrs Ashton are to achieve their objective of freeing their property from the fetter of the mortgage. That, of course, is an objective which they could have pursued at any time by pursuing their counterclaim, either in the first action or in the present action. If they are prejudiced by delay, the delay in pursuing the counterclaim to obtain the discharge of the mortgage is delay for which they must bear responsibility. 55 If the issue whether or not there is a debt secured by the legal charge will have to be resolved in litigation in any event, then the need to have regard to the appropriate allocation of resources as between the litigation between these parties and litigation between other parties has little weight. Whether or not the claim for payment is struck out makes little or no difference to the resources which will be needed in relation to the litigation between these parties. 56 I have considered whether the claim for payment should be struck out, nevertheless, in order to mark the court's disapproval of the delay that occurred in the prosecution of the first action. There would, or might, be some benefit to the Ashtons in that course, in that the bank would not then obtain a money judgment on which to found a petition for bankruptcy. It would be unable to recover more than the value of its security. But I am satisfied that to strike out the claim for payment on that basis would be a wrong exercise of discretion in the present case. It would, I think, be seen as a further punishment inflicted on the bank for a course of conduct which, although the subject of disapproval by this court in the first action, was not then stigmatised as an abuse; in circumstances in which it was said by this court that the new approach would not be applied retrospectively to delays which had already occurred.”
“52. First, the line of cases of Arbuthnot, Securum and Collins [Collins v CPS Fuels Ltd[2001] EWCA Civ 1597 ] are authority for the following: (1) Where a first action has been struck out as itself being an abuse of process, a second action covering the same subject matter will be struck out as an abuse of process, unless there is special reason: Securum §34, citing Arbuthnot , and Aktas §§ 48, 52. (2) In this context abuse of process in the first action comprises: intentional and contumelious conduct; or want of prosecution; or wholesale disregard of rules of court: Aktas §§72 and 90. (3) Where the first action has been struck out in circumstances which cannot be characterised as an abuse of process, the second action may be struck out as an abuse of process, absent special reason. However in such a case it is necessary to consider the particular circumstances in which the first action was struck out. At the very least, for the second action to constitute an abuse, the conduct in the first action must have been “inexcusable”