Abuse of process and multiple proceedings

One topic that arises from time to time in credit hire claims, is an argument that a claim is bound by a result in earlier proceedings, whether by judgment or by compromise.  There may have been earlier proceedings between the same parties, but for different heads of claim. This scenario commonly arises where there are insured and uninsured losses pursued by different representatives. In such circumstances arguments about res judicata and abuse of process can arise, either at trial, or more commonly on an application to strike out arguing that the further set of proceedings is abusive or barred.

An authoritative analysis of the principles of res judicata, the rule in Henderson v Henderson and abuse of process is to be found in the case of Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160 where Lord Sumption explained the categories as follows:

17 Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336 . Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given on it, and the claimant’s sole right as being a right on the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M & W 494 , 504 (Parke B). At common law, it did not apply to foreign judgments, although every other principle of res judicata does. However, a corresponding rule has applied by statute to foreign judgments since 1982: see section 34 of the Civil Jurisdiction and Judgments Act 1982 . Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston’s Case (1776) 20 State Tr 355 . “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537 , 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181 , 197–198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100 , 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger.

The most authoritative restatement of the Henderson v Henderson principle in modern times is to be found in the case of Johnson v Gore Wood [2002] 2 AC 1. The significance of the Johnson case, was that the former rigidity that was applied to this doctrine was swept away in respect of a a broad merits based test: per Lord Bingham:

It may very well be, as has been convincingly argued (Watt, “The Danger and Deceit of the Rule in Henderson v Henderson : A new approach to successive civil actions arising from the same factual matter” (2000) 19 CLJ 287 ), that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V-C made, which was addressed to *31 res judicata. 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.

(emphasis added)

Per Lord Millett:

However this may be, the difference to which I have drawn attention is of critical importance. It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen’s right of access to the court conferred by the common law and guaranteed by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) . While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression. In Brisbane City Council v Attorney General for Queensland [1979] AC 411 , 425 Lord Wilberforce, giving the advice of the Judicial Committee of the Privy Council, explained that the true basis of the rule in Henderson v Henderson 3 Hare 100 is abuse of process and observed that it “ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation”. There is, therefore, only one question to be considered in the present case: whether it was oppressive or otherwise an abuse of the process of the court for Mr Johnson to bring his own proceedings against the firm when he could have brought them as part of or at the same time as the company’s action. This question must be determined as at the time when Mr Johnson brought the present proceedings and in the light of everything that had then happened. There is, of course, no doubt that Mr Johnson could  have brought his action as part of or at the same time as the company’s action. But it does not at all follow that he  should  have done so or that his failure to do so renders the present action oppressive to the firm or an abuse of the process of the court. As May LJ observed in Manson v Vooght [1999] BPIR 376 , 387, it may in a particular case be sensible to advance claims separately. In so far as the so-called rule in Henderson v Henderson suggests that there is a presumption against the bringing of successive actions, I consider that it is a distortion of the true position. The burden should *60 always rest upon the defendant to establish that it is oppressive or an abuse of process for him to be subjected to the second action.

 (emphasis added)

But an argument on abuse of process cannot be warehoused. It must be addressed promptly and as soon as possible, or the other party to litigation who defends it on its merits, will be taken to have acquiesced to the bringing of proceedings. In Johnson Lord Millett observed as follows:

This makes it unnecessary to deal with Mr Johnson’s submission that it is too late for the firm to raise the issue. If necessary, however, I should have regarded the delay as fatal. Indeed, I should have regarded it as more than delay; I think it amounted to acquiescence. There is no proper analogy with the case which discloses no cause of action. Although it is obviously desirable to apply to strike out a claim which is doomed to fail at the earliest opportunity, there is no point in proceeding with a trial which serves no useful purpose. Even if the point is taken at the trial itself, it is a matter for the trial judge to decide whether to hear the evidence and adjudicate on the facts before deciding whether they give rise to liability, or to assume that the plaintiff will establish his allegations and decide whether, as a matter of law, they give rise to liability.

But the premise 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. A defendant ought to know whether the proceedings against him are oppressive. It is not a question which calls for nice judgment. If he defends on the merits, this should be taken as acquiescence. It might well be otherwise if the ground on which the proceedings are alleged to be an abuse of process were different. But in a case of the present kind the court is not so much protecting its own process as the interests of the defendant



  1. Trying to get my head round this, Am i right in thinking that, just because an insurer has recovered it’s losses that have been subrogated to by it’s customer, it does not preclude the customer(plaintiff) for making a claim for their un-insured losses?
    A Claim cannot be made at this point for something that has already been claimed in the previous action by the insurer, but the consumer cannot be denied the entitlement for something for which has not yet been claimed?
    Where would this stand with a Claim for “diminution” where the insurer has claimed for the diminished value to the chattel and evidenced the cost of repair, but the consumer then wishes to claim for “diminution in loss” re “payton v brooks”. Could a consumer be Estoped from making a claim under this header? My understanding is that this would need to be claimed at the same time, but as Insurer’s do not cover Diminution as part of the contract of insurance,they will not claim back from an at fault insurer,would this not be prejudicing the claimants later claim?

    1. One claimant has one claim. If his insurers use his name as they are entitled to do under subrogated rights, to make a claim and don’t include his uninsured losses within that claim, and if that claim proceeds to trial and judgment, he can’t bring a second set of proceedings for his uninsured losses. Where it gets interesting is when the first set of proceedings is compromised before trial, and whether that precludes a second set of proceedings from being brought either because the second set will be an abuse of process or the compromise as made was a once and for all settlement of everything. And that will depend on the facts of an individual case.

  2. Many thanks for that. I see many an insurer acting in Conflict to the insured interest for example in agreeing on 50% 50% as they cannot be bothered defending a claim, that has the potential to affect PI claims, Loss of use and Diminution. It also gets very confusing when at fault insurers also advise they are defending on the basis of “fundamental dishonesty” on one part of the claim(for example, not happy with repairs on a vehicle being related) and how that affects exactly what you have mentioned above in precluding a second set of proceedings from being brought for PI. Thanks for my continuing education! I have learned a lot from you.

  3. Andrew,

    If you promptly write to the defendant and clearly set out that you are issuing proceedings for say loss of use and vehicle damage only initially but that later you will be issuing proceedings for general damages would that not be acceptable as there was no attempt to drip feed unending litigation nor ambush or surprise the Defendant over the subsequent proceedings. Hence the second set of proceedings are not an abuse of process.

    1. If in an accident, a vehicle is damaged and a person suffers personal injury, then he has two causes of action. See Boot v Conquer [1928] 2 K.B. 336. However an element of both causes of action is the same: alleged negligent driving on the part of the defendant. If two sets of proceedings are issued, then the first one to proceed to judgment will establish an issue estoppel, on whether the defendant was in fact negligent, which will bind the second action. But I don’t think matters get that far. The logical thing is for a direction to be made for both proceedings to be tried at the same time or consolidated. The claimant will be at risk of a strike out however if the first action is settled and then the second issued. I don’t think the “broad merits based test” gives a claimant carte blanche to issue as and when convenient.

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