“As you will know, this claim was foreshadowed in the Letter of Claim dated26 June 2023 , albeit it is now limited to a claim of unfair data processing contrary to Article 5(a) of the UK GDPR. Whether the Claim Form is served will likely be influenced by the outcome of your client’s extant application in the libel proceedings (Claim No. KB -2023-003818). Accordingly, we do not consider it necessary or proportionate to enter into dialogue about the new claim about this stage.”
“… 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.”
“49. The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood & Co[2002] 2 AC 1 , can be summarised as follows: 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.”
“81. … As this label (“a thing adjudicated on”) indicates, the essence of the principle, like other aspects of res judicata, is that once a particular matter has been determined by a court, that may preclude a party from having a second go. Or to put it in colloquial terms a litigant is entitled to their day in court, but once they have had it, is not in general entitled to a second bite at the cherry. … 83. The cases show that the Henderson v Henderson principle is a very flexible one. In Henderson v Henderson itself the issue was whether a claim could be brought in England for items said to be due on an account where there had already been an account taken in previous proceedings in Newfoundland in which those items could have been raised but were not. In Yat Tung Investment Co Ltd v Dao Heng Bank Ltd[1975] AC 581 a mortgagor sought unsuccessfully to avoid the exercise by a mortgagee of a power of sale in two successive actions, contending on the first occasion that the sale was a sham and that there was no real sale, and on the second that the sale was fraudulent. That was undoubtedly a different claim but if it was going to be taken at all it should have been taken in the first set of proceedings. The doctrine can apply even though the second claim is brought by a different party (as was the case in Johnson v Gore Wood), or against a different party (as in Aldi Stores v WSP Group), although in fact in each of those cases the second claim was not found to be abusive. Whether in any particular case the second claim is abusive depends on whether it not only could but should have been brought first time round, and that requires a broad merits-based judgment as explained by Lord Bingham in Johnson v Gore Wood. 84. But what all the cases have in common is that the second claim is an attempt to reopen something that has already been decided. That is where the abuse lies. That does not mean there must have been a trial of the first claim. The principle is capable of applying if the previous proceedings have been settled by agreement. A settlement by the parties is just as much a final resolution of a claim as a judgment by a court, and it can be just as abusive to seek to circumvent it by putting forward a second claim. The principle is also capable of applying where there has been an interlocutory decision in the very same proceedings, as illustrated by the case referred to by Coulson LJ in paragraph 46 above of Seele v Tokio (in fact a decision of his own although he modestly does not say so). But if there has not been any previous decision, there is nothing for the principle to bite on. It cannot be said that a litigant is being abusive in seeking to have a second bite at the cherry if they have not yet had their first.”
“18. First, it is important that Aldi had not behaved in any way that was culpable, let alone improper, even though neither impropriety nor culpability is a necessary finding before a claim can be struck out. Aldi had made a judgment that it would be in its interests to try and make a recovery against excess layer underwriters on the judgment that it had obtained rather than to continue to participate in the action by bringing claims against WSP and Aspinwall. In my view that was a decision which was open to Aldi as a sensible and cost effective way of proceeding in the light of the fact that (a) the trial of the Aldi Part 20 claims and the B&Q and Grantchester actions would last several weeks; (b) the costs would be considerable, given the fact there were 8 separately represented parties; (c) the issues which WSP and Aspinwall were raising on their liability and on quantum were issues that Aldi had not been concerned with in its claim against Holmes; (d) the interest of Aldi in monetary terms was a fraction of that of B&Q. Aldi had been singularly successful in the strategy it had pursued against Holmes and its success was a factor which the judge failed to take into account in judging Aldi's decision on its strategy. … 25. Furthermore, there is a real public interest in allowing parties a measure of freedom to choose whom they sue in a complex commercial matter and not to give encouragement to bringing a single set of proceedings against a wide range of defendants or to complicate proceedings by cross-claims against parties to the proceedings. That freedom can and should be restricted by appropriate case management.”
“headlines, prominent photographs, and captions to such photographs appearing in articles published in the mainstream popular UK press summarise and encapsulate in an accurate and informative way what is going to be said in the rest of the article, such that they knew they did not need to read any further than to understand what the article was saying”. c. A substantial number of readers would have read the “statement complained of” in the knowledge of the ‘facts’ identified in (b) above. Those readers would have understood that the newspaper was saying that he was “guilty of, or had been reasonably been accused of, sexual harassment, such that the Labour Party had repaid the claimant a£100,000 donation that he had made to them”. … 24. Mr Busuttil says there is no principle in English law, derived from Charleston or otherwise, to the effect that innuendo readers of a defamatory article – in contrast to ‘natural and ordinary’ readers – must be taken to have read the whole article if they are to be regarded as reasonable readers, regardless of their special knowledge or characteristics. He says innuendo readers with special knowledge or characteristics which have caused them to read the text differently must be taken to have read only what they have read, and to have read it reasonably. 25. The claimant’s case is, therefore, focussed on what Mr Busuttil says is a special class of readers (owing to their special characteristics and knowledge), how they go about reading defamatory material and whether they read all, or only some, of the material presented to them. … 40. I cannot see any principled basis for the principles in Charleston not being applicable in in this case. The House of Lords considered the position of readers who only look at headlines and photographs, referred to by Lord Bridge at 70C as “limited readers”