Vravron Shipping Company Ltd v Boethern

On a second appeal, permission should be granted only where the case raises an important point of principle or practice, or there is another compelling reason. The Henderson v Henderson abuse of process principle is not inflexible. It requires a broad, merits-based assessment of all the circumstances, including the public and private interests involved. The fact that a matter could have been raised earlier does not automatically make later proceedings abusive. Nevertheless, a party may abuse the process by raising in later proceedings complaints which should, in the circumstances, have been advanced in earlier proceedings. The principle applies where the earlier proceedings ended by compromise. Appropriate case-management decisions to strike out abusive claims do not, without more, offend Article 6.

The defendant was the tenant of a flat owned by the claimant. In earlier possession proceedings she brought a counterclaim concerning complaints about the condition of the flat and the effect of building works, including loss of light. Those proceedings were compromised, with judgment for £6,000 on the counterclaim and an agreement to carry out repairs.

In later possession proceedings, which were dismissed by consent, the defendant brought a further counterclaim. Several allegations concerned extensions and interference with light and privacy which pre-dated the earlier proceedings. A district judge struck out those paragraphs as an abuse of process, applying Henderson v Henderson. A circuit judge dismissed the defendant’s appeal.

The defendant sought permission for a second appeal, contending that the later claims were different, that the earlier decisions were inadequate, and that striking out the claims raised an Article 6 issue. The central questions were whether the claims were abusive and whether there was an important point of principle or another compelling reason for a second appeal.

1. Application refused. This was a second appeal. Permission would be given only if the case raised an important point of principle or practice, or if there were some other compelling reason.

2. The Henderson v Henderson principle, as explained in Johnson v Gore Wood [2001] 2 WLR 72, is flexible. It is not enough that a matter could have been raised earlier. The court must make a broad, merits-based judgment, taking account of all the circumstances and focusing on whether the later proceedings constitute an abuse of the court’s process.

3. Applying that approach, the defendant should have advanced in the earlier counterclaim all complaints of the same general kind arising from the building works, including the alleged interference with light. The earlier proceedings had already included complaints about those works and loss of light. Raising the pre-existing allegations in the later proceedings was therefore abusive.

4. The principle applies equally where earlier proceedings ended by compromise rather than by a judgment after determination. The consequences for costs and the track on which the remaining claim would proceed did not amount to a compelling reason for a further appeal.

5. The court saw no sufficient Article 6 issue. Neither Lord Bingham nor Lord Millett, in the passages relied on from Johnson v Gore Wood, suggested that striking out claims for abuse of process in appropriate cases was incompatible with Article 6.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): Permission for a second appeal was refused. The court upheld the conclusion that the pre-existing allegations had been struck out properly as an abuse of process.
• West London County Court: Judge Uziell-Hamilton dismissed the defendant’s appeal from the district judge’s order.
• District Judge Madge: Five paragraphs of the defendant’s Part 20 counterclaim were struck out as an abuse of process.