“I am writing on behalf of my above named client, telent, to lodge a claim for VAT under recovered in the VAT periods 08/12 to 08/16 in the sum of£1,312,309 plus interest. The claim relates to VAT incurred on costs incurred by telent, relating to the operation of an escrow fund, which we consider to be a non-economic activity for VAT purposes.”
“I would draw your attention to the fact that your client accepted in a previous appeal relating to this same subject (TC/2015/05402) that telent’s escrow activity was a business or ‘economic’ activity (this view was confirmed in a letter that was dated 28May 2015). The appeal progressed on that basis until it was withdrawn prior to being heard… There is one further point I should make about the claim: it includes periods 08/12 to 05/14 inclusive, the various amounts claimed for those periods totalling£855,754 . These amounts are identical to the amounts previously assessed by HMRC, forming part of the tax in dispute in the previous appeal, from which, as I have mentioned, your client withdrew. In these circumstances, I can confirm now that, if any repayment were made in advance of the Court of Appeal’s decision in the University of Cambridge case, it would exclude the amount of£855,754 . Moreover, in the event that hefinal decision were in telent’s favour, repayment of the£855,754 would be a matter for HMRC’s discretion, given that the tax in question had been subject to an appeal process from which your client had formally withdrawn.”
“In my letter of 3 November I suggested that any repayment HMRC may eventually be required to make in connection with this matter should be restricted to£456,556 , the amount that had not been part of the tax at stake in the previous appeal. I have since considered the relevance of the High Court’s judgment in Matalan (as per PwC’s letter of 5 December) and now accept that, if it is ultimately determined that a repayment should be made, that repayment should be of the full claim in the sum of£1,312,309 .”
“On17 November 2014 , an assessment was raised in respect of the input tax related to the escrow funds in question for VAT periods 11/10 to 05/14. You queried this assessment, but the decision was upheld on review. I understand that telent submitted but subsequently withdrew an appeal to the Tribunal.The issue for this period is therefore considered by HMRC to be closed. A review was offered at the time underVAT Act 1994 Section 83A , and this review was performed as requested. There is no allowance in law for a second review of a matter, and indeed VATA Section 83A (3) specifically states that the offer of a review does not apply to the notifications of the conclusions of a review. Furthermore, Section 83C(4) states that HMRC shall not review a decision if the matter has been appealed to the Tribunal. I therefore regret that I am unable to review the part of the claim relating to VAT periods 08/12 to 05/14, on the grounds that these periods have already been subject to review. I agree that there is no impediment to you discussing the issue further with HMRC. However, if you wish to reinstate the claim for these earlier periods then, in the absence of the withdrawal of the assessment, your only option is to apply to the Tribunal for a reinstatement of the appeal submitted in 2015. Reinstating an appeal is at the discretion of the Tribunal,and HMRC will be asked whether there is any objection to such action. This issue is outside of the scope of my review. Although your claim dated30 September 2016 covers all VAT periods from 08/12 to 08/16, I am, for the reasons given above, only able to review the claim as it relates to VAT periods 08/14 to 08/16.”
“After consulting the advisory committee on value added tax…each Member State may regard as a single taxable person any persons established in the territory of that Member State who, while legally independent, are closely bound to one another by financial, economic and organisational links.”
“Where under sections 43A to 43D any bodies corporate are treated as members of a group, any business carried on by a member of the group shall be treated as carried on by the representative member, and— (a) any supply of goods or services by a member of the group to another member of the group shall be disregarded; and (b) any supply which is a supply to which paragraph (a) above does not apply and is a supply of goods or services by or to a member of the group shall be treated as a supply by or to the representative member; … and all members of the group shall be liable jointly and severally for any VAT due from the representative member.”
“It is clear from the statutory words in s 43(1) of VATA that the UK chose to achieve the end which the Directive authorised not by deeming the group to be a quasi-person but by treating the representative member as the person which supplied or received the supply of goods or services.”
“The representative member of s 43 must, in our view, be understood as a continuing entity (perhaps akin to a corporation sole whose role is fulfilled by whoever holds the relevant office at any time). Thus actions, liabilities and rights of an old representative member must be ascribed to the new representative member on a change of representative member.”
“It is clear from the words of s 80(1) that HMRC's liability to credit or repay the overpaid output tax is owed to the person who accounted to them for VAT in the relevant accounting period or periods…Subsection (4), which imposes a time limit on claims, also is drafted on the basis that the claim will result in the giving of a credit or repayment to the person who accounted for or paid the VAT in the first place. It therefore follows from the operation of s 43 of VATA that where there have been overpayments of VAT by the representative member of a VAT group, the person entitled to submit a claim during the currency of a VAT group, unless the claim has been assigned, is either the current representative member of the VAT group or a person acting as agent of that representative member.”
“Mr Scorey on behalf of [Taylor Clark] submits that the only taxable person is the VAT group, which alone has fiscal personality, and that any company within the VAT group can claim repayment of unduly levied VAT on behalf of the group. For the reasons set out above, I do not accept that submission. Nor do I see any basis for the assertion by the Extra Division (para [27]) that a claim by an individual member of a VAT group must normally be construed as a claim made on behalf of the representative member, as otherwise the claim would have no meaning. An assignee of the representative member may make a valid claim in its own right (as Carlton purported to do in this case). Alternatively, a party may make a claim to which it is not entitled.”
“The FTT held (para [55]) that TCL 'neither instructed nor authorised' Carlton to submit any of the claims and (para [57]) that TCL was unaware that it had a potential claim under s 80 of VATA and that HMRC's payment of£667,069 to it on27 April 2009 'came out of the blue'. Similarly, there is no basis for an argument that TCL ratified Carlton's claims which had been made on its behalf, thereby conferring retrospective authority. First, Carlton's letters to HMRC did not purport to be written as agent of TCL. On the contrary, they were claims which Carlton pursued for its own benefit. That is fatal to the claim of ratification…Secondly, there are no findings of fact that TCL ratified Carlton's actions as its agent.”
“I have since considered the relevance of the High Court’s judgment in Matalan (as per PwC’s letter of 5 December) and now accept that, if it is ultimately determined that a repayment should be made, that repayment should be of the full claim in the sum of£1,312,309 .” (2) The Appellant referred to this change of position in its Grounds of Appeal to the Tribunal, and it was therefore clear from the outset of the Tribunal proceedings that the appeal was proceeding on the basis that that HMRC’s original objection was no longer in play. (3) The Statement of Case was issued on25 May 2018 . It did not include any submission that the Appellant’s withdrawal of the Assessment blocked the part of the Claim relating to the Overlap Period. (4) HMRC did not revive their submission about the Overlap Period until15 July 2021 , when they wrote to PwC saying they wished to revisit that “jurisdictional issue”
“For the next 4½ years the proceedings brought by Mr Johnson followed the normal course. The parties served and amended their pleadings and exchanged witness statements. Mr Johnson served expert evidence. The firm made a payment into court. A trial date was obtained. But then came a sudden change of tack. The firm instructed fresh leading counsel. In December 1997 the firm's solicitors indicated, for the first time, that it intended to apply inter alia for an order to strike the action out as an abuse of the process of the court.”
“The terms of the settlement agreement and the exchanges which preceded it in my view point strongly towards acceptance by both parties that it was open to Mr Johnson to issue proceedings to enforce a personal claim, which could then be tried or settled on its merits, and I consider that it would be unjust to permit GW to resile from that assumption.”
“If, contrary to my view, GW is not estopped by convention from seeking to strike out Mr Johnson's action, its failure to take action to strike out over a long period of time is potent evidence not only that the action was not seen as abusive at the time but also that, on the facts, it was not abusive.”
“It could, however, be appropriate subject matter for an estoppel by representation, whether in the form of promissory estoppel or of acquiescence, on account of which the firm is, by reason of its prior conduct, precluded from enforcing its strict legal rights against Mr Johnson (to claim that his personal proceedings against the firm constituted an abuse of the process of the court). Such an estoppel is not, as I understand it, based on a common underlying assumption so much as on a representation by the representor that he does not intend to rely upon his strict legal rights against the representee which is so acted on by the representee that it is inequitable for the representor thereafter to enforce those rights against him.”
“If necessary, however, I should have regarded the delay [by GW in raising the issue] as fatal. Indeed, I should have regarded it as more than delay; I think it amounted to acquiescence…the premise [put by GW] in the present case is that Mr Johnson has a good cause of action which he should have brought earlier if at all. I do not consider that a defendant should be permitted to raise such an objection as late as this.”
“If an estoppel can operate in circumstances where a party can realise that they've been under a mistake and point to the truth of the matter, then you would have thought it would a fortiori apply where a party thinks one thing about the law then decides that they'd like to think something else.”
“Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”
“it is noteworthy that, in Johnson v Gore Wood & Co[2002] 2 AC 1 , estoppel by convention was applied by the House of Lords, albeit as obiter dicta, by Lord Bingham (with whom Lord Cooke and Lord Hutton expressed agreement on this aspect of the case).”
“These sources make clear that in determining what arguments the tribunal may permit to affect its decision the guiding principle must be fairness in the circumstances of the case. Fairness does not require formality, and Rule 2(2)(b) expressly requires formality to be avoided. Fairness does not require, for example, that to advance an argument not present in its statement of case or the notice of appeal a party must always formally apply to amend its earlier pleading. On the other hand it does require that the other party is given adequate opportunity in the circumstances to meet the point, whether by argument or with evidence. 38. If a new argument is a pure point of law it might be addressed, as the case may be, after: a few minutes' thought; an evening's consideration; or one or more days' research. Provided that the other party has an appropriate opportunity to meet the point, it would generally not be unfair for the tribunal to take that argument into account. 39. When the argument gives rise to the possibility that it may be rebutted by further evidence, the other party must have a fair opportunity to bring that evidence to the tribunal…We do not wish to be thought to be laying down any particular rules, as what fairness requires will depend on all the circumstances of the case, and cases in the FTT vary enormously from informal appeals that take a very short time to elaborately argued cases that last for many days. 40. On the other hand, there will be circumstances where it is simply too late for a point to be raised. Where it is not reasonably possible in the circumstances of the case – having regard in particular to the resources of the parties and the need to avoid delay – for the other party to have a fair opportunity to rebut a new point, that is likely to mean that it would be unfair for a new point to be taken.”
“The Appellant submits that the parties have sufficient time between now and 6 December to prepare for a hearing on the ‘jurisdictional issue’, which turns on a discrete point of law. The Appellant has started preparing for a hearing on the ‘jurisdictional issue’ and has served a draft hearing bundle index on the Respondents per the extant case management directions. It does not consider that the late service of an amended statement of case by the Respondents justifies vacating the hearing...”
“Some detriment must thereby have been suffered by the person alleging the estoppel, or benefit thereby have been conferred upon the person alleged to be estopped, sufficient to make it unjust or unconscionable for the latter to assert the true legal (or factual) position.”
“There are useful but not conclusive dicta in reported authorities about the way in which, in general, statutory deeming provisions ought to be interpreted and applied. They are not conclusive because they may fairly be said to point in different directions, even if not actually contradictory…They include the following guidance, which has remained consistent over many years: (1) The extent of the fiction created by a deeming provision is primarily a matter of construction of the statute in which it appears. (2) For that purpose the court should ascertain, if it can, the purposes for which and the persons between whom the statutory fiction is to be resorted to, and then apply the deeming provision that far, but not where it would produce effects clearly outside those purposes. (3) But those purposes may be difficult to ascertain, and Parliament may not find it easy to prescribe with precision the intended limits of the artificial assumption which the deeming provision requires to be made. (4) A deeming provision should not be applied so far as to produce unjust, absurd or anomalous results, unless the court is compelled to do so by clear language. (5) But the court should not shrink from applying the fiction created by the deeming provision to the consequences which would inevitably flow from the fiction being real. As Lord Asquith memorably put it in East End Dwellings Co Ltd v Finsbury Borough Council[1952] AC 109 , at 133: ‘The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs’.” ‘The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs’.”
“Where an amount has been assessed and notified to any person under subsection (1), (2)…above it shall, subject to the provisions of this Act as to appeals, be deemed to be an amount of VAT due from him and may be recovered accordingly, unless, or except to the extent that, the assessment has subsequently been withdrawn or reduced.”
“(1) … an appeal shall lie to the tribunal with respect to any of the following matters… (p) an assessment (i) under section 73(1) or (2) in respect of a period for which the appellant has made a return under this Act;… or the amount of such an assessment…” (p) an assessment (i) under section 73(1) or (2) in respect of a period for which the appellant has made a return under this Act;… or the amount of such an assessment…”
“The tribunal should remember that its primary task is to find the correct amount of tax, so far as possible on the material properly available to it, the burden resting on the taxpayer.”
“The Commissioners hereby withdraw the disputed decision. The Appellant is hereby invited to withdraw its appeal and is reminded in that regard that such withdrawal would not prevent its making application to the tribunal in respect of costs (rule 16 of the tribunal Rules).”
“The letter of20 April 2006 by which the Commissioners informed Matalan that the original BTI was rescinded and invited it to withdraw the appeal (and seek its costs), Matalan's acceptance of that proposal and the Commissioners' making good of the rescission of the original BTI by the issue of a replacement amounted, she said, to an agreement withinsection 85 of the Value Added Tax Act 1994 , which relates to appeals to this tribunal, and which provides that such agreements have the same consequences as a determination of the tribunal. It was not open to the Commissioners to litigate the same issue again in these appeals since there was a deemed decision by the tribunal that classification within 10 was correct, and the matter was res judicata….”
“The withdrawal of the decision by the commissioners was not conditional on the withdrawal of the appeal by Matalan and had occurred before Matalan did so. The withdrawal of the appeal followed the withdrawal of the decision but was not made as the price of that withdrawal.”
“Matalan contends that, in the light of the withdrawal by HMRC of the review decision it is estopped from disputing that all of Matalan's imported swimwear throughout the period 2001–07 should attract the '10' classification; or, alternatively that it would be an abuse of process for it to be allowed to do so.”
“[100] The withdrawal of the first appeal did not constitute a determination (explicit or implicit) of any issue between Matalan and HMRC. The tribunal made no order and the parties made no compromise. At the same time the only basis upon which HMRC can have withdrawn its decision, Matalan withdrawn its appeal and HMRC issued the second BTI was that swimwear with no rubber in the synthetic fibre content but with rubber amounting to 5% or more of the garment as a whole ('the qualifying swimwear') was properly to be given a '10' and not a '90' classification. Unless that proposition ('the essential proposition') was correct there could be no basis for withdrawing either the review decision (or the original decision) or for issuing the second BTI with a '10' classification. [101] If the essential proposition was correct it would follow that Matalan was entitled to have the duty on all its qualifying swimwear treated as having a '10' classification for tariff purposes. This would not be because of any BTI but because that result would be a necessary consequence of the essential proposition. Matalan could then recover the duty that it had overpaid subject to the relevant time limits. Matalan would only be out of time in relation to imports which were made prior to three years before23 August 2004 .”
“whatever Matalan's expectations were, there was no agreement that the outcome of the first appeal would determine the classification for tariff purposes of Matalan's qualifying swimwear.”
“WHEREAS [HMRC] have rejected the Appellant's claim, pursuant tosection 80 of the VAT Act 1994 , for the recovery of output tax overpaid in the sum of£4,443,162.12 , contained in a letter dated5 February 2002 (“the Claim”) NOW in consideration of the terms set out herein IT IS HEREBY AGREED between the parties as follows: 1. [HMRC] will repay the Appellant's Claim, subject to the receipt of satisfactory evidence to support the quantum and method of calculation of the Claim. 2. …”
“Following representations on behalf of Littlewoods, on27 June 2008 HMRC accepted that the logic of their argument did not cover cases in which commission was taken in goods. They therefore agreed to repay the amounts of VAT attributable to commission so taken, and this agreement was recorded in a further s 85 agreement dated23 September 2008 .”
“the determinations by the Tribunal and the FTT respectively which are deemed to exist by virtue of the 2004 and 2008 s 85 Agreements have the necessary qualities of finality and jurisdictional competence.”
“Cause of action estoppel arises where the cause of action in the latter proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decidedunless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be reopened…The principles upon which cause of action estoppel is based are expressed in the maxims. nemo debet bis vexari pro una et eadem causa and interest rei publicae ut finis sit litium. Cause of action estoppel extends also to points which might have been but were not raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action.”
“Where the existence or non-existence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the re-litigation of identical claims.”
“Clearly a decision giving rise to a right of appeal is analogous to a cause of action. A further decision gives rise to a further right of appeal.”
“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to reopen that issue.”
“In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result.”
“Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised.”
“The whole point of an issue estoppel on a question of law is that the parties remain bound by an erroneous decision.”
“Issue estoppel is a well-established part of the law of res judicata. It is common ground that, in order for an issue estoppel to arise, three conditions need to be satisfied: (i) the same question must previously have been decided; (ii) the judicial decision which is said to create the estoppel must have been a final decision of a court of competent jurisdiction; and (iii) the parties to the prior judicial decision (or their privies) must have been the same persons as the parties to the subsequent proceedings in which the estoppel is raised (or their privies).”
“A question of liability to tax for one year was always to be treated as inherently a different issue from that of liability for another year…even though there might appear to be similarity or identity in the questions of law on which they respectively depended, and the principle of res judicata did not apply.”
“no doubt that the Caffoor principle remains good law in England and Wales, at least in relation to income tax, corporation tax, capital gains tax and other annually assessed (or, nowadays, self-assessed) taxes, where the basic question for determination is the correct amount of tax payable for the relevant year or period of assessment.”
“22. …attention should be drawn to the importance, both for the Community legal order and for the national legal systems, of the principle of res judicata. In order to ensure stability of the law and legal relations, as well as the sound administration of justice, it is important that judicial decisions which have become definitive after all rights of appeal have been exhausted or after expiry of the time-limits provided for in that regard can no longer be called into question (Case C‑224/01 Köbler[2003] ECR I-10239 , paragraph 38, and Case C‑234/04 Kapferer[2006] ECR I-2585 , paragraph 20). 23. Accordingly, Community law does not require a national court to disapply domestic rules of procedure conferring finality on a decision, even if to do so would make it possible to remedy an infringement of Community law on the part of the decision in question (see Kapferer, paragraph 21).”
“Community law precludes the application, in circumstances such as those of the case before the referring court, of a provision of national law, such as Article 2909 of the Italian Civil Code, in a dispute concerning value added tax and relating to a tax year for which no final judicial decision has yet been delivered, to the extent that it would prevent the national court seized of that dispute from taking into consideration the rules of Community law concerning abusive practice in the field of value added tax.”
“A mere passing remark or a statement or assumption on a matter that has not been argued is one thing, a considered judgment on a point fully argued is another, especially where, had the facts been otherwise, it would have formed part of the ratio. Such judicial dicta, standing in authority somewhere between a ratio decidendi and an obiter dictum, seem to me to have a weight nearer to the former than the latter.”
“the activities of SITA relating to the provision of telecommunications facilities within the UK is therefore taxable at the standard rate, and you should account for output tax on those services.”
“…The public policy behind the general application of issue estoppel is to ensure the finality of litigation. In taxation and rating cases, however, that aspect of public policy has been override[n] by a different element of public policy. Recovering Probably a typographical error for “recurring” business transactions, which fall to be assessed period by period, as is the case of supplies of a VAT registered trader, are involved here. Administrative flexibility is needed to enable the even-handed management of the revenue. To impose on a trader the unalterable privilege or disadvantage of a particular tax treatment of his supplies its the result of a decision of a tribunal or court [sic] might lead to inequity as between him and other traders making similar supplies the liability of which had been determined at a later date. The principle of public policy that applies in that situation, and in particular through the taxation of business transactions, is that of ensuring that the tax operates uniformly…”
“Here SITA and its services are unique. Nonetheless there can, we think, be no real public policy in securing finality in litigation on the strength of a decision reached with the consent of both parties some 30 years ago. Moreover, to regard the 1973 Decision as ensuring zero-rating in perpetuity for SITA while the supply of other telecommunications outlets are either exempt or standard rated could lead to inequality of treatment. This is all the more so when it is recalled that the 1973 Decision was a tribunal decision produced without pleading, without argument, and without any reasoning.”
“A different, but reduced, feature of VAT cases is that the jurisdiction of this tribunal is limited to determining the taxability of past supplies. See Odhams Leisure v Customs and Excise Commissioners[1992] STC 332 . That is the effect ofsection 83(b) of VAT Act 1994 which limits the tribunal's jurisdiction to “the tax chargeable on the supply of any [goods] The text has “foods and services” and this is plainly a typographical error or services”
"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…."
“An important purpose of the rule is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter. A second action is not the less harassing because the defendant has been driven or thought it prudent to settle the first; often, indeed, that outcome would make a second action the more harassing.”
“I agree that [abuse of process] is capable of applying even where the first action concluded in a settlement. Here it is necessary to protect the integrity of the settlement and to prevent the defendant from being misled into believing that he was achieving a complete settlement of the matter in dispute when an unsuspected part remained outstanding.”
“[25] Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the court's procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. That purpose makes it necessary to qualify the absolute character of both cause of action estoppel and issue estoppel where the conduct is not abusive. As Lord Keith put it in Arnold v National Westminster Bank plc[1991] 2 AC 93 , 110G ‘estoppel per rem judicatam, whether cause of action estoppel or issue estoppel, is essentially concerned with preventing abuse of process’. [26] It may be said that if this is the principle it should apply equally to the one area hitherto regarded as absolute, namely cases of cause of action estoppel where it is sought to reargue a point which was raised and rejected on the earlier occasion. But this point was addressed in Arnold, and to my mind the distinction made by Lord Keith remains a compelling one. Where the existence or non-existence of a cause of action has been decided in earlier proceedings, to allow a direct challenge to the outcome, even in changed circumstances and with material not available before, offends the core policy against the re-litigation of identical claims.”
“it is not sufficient to establish that a point could have been taken on an earlier occasion, but a recognition that where it should have been taken then, a significant change [of circumstances or new facts will be required if raising it on a subsequent application is not to be abusive.”
“It was clear from the contentions of the parties – and, indeed, self-evident from the very existence of the jurisdiction – that a claim can be struck out as an abuse of process underCPR 3.4 (2)(b) even though there are reasonable grounds for bringing the claim and the claim has a real prospect of succeeding…”