Ganesmoorthy v Ganesmoorthy

A later claim may constitute an abuse of process even though the issue was never litigated earlier. The question is whether, applying a broad merits-based assessment of all the circumstances, the claim ought to have been raised in the earlier proceedings. Relevant considerations include the relationship between the claims, the parties’ expectations arising from a settlement, non-disclosure, and the risk of oppressive or unjust re-litigation. Where a matrimonial financial claim and a proposed tort claim concern the same conduct and substantially the same fund, the later tort claim may be abusive, particularly where the financial proceedings were compromised on a clean-break basis.

The appellant and respondent were former wife and husband. During ancillary relief proceedings under the Matrimonial Causes Act 1973, the wife alleged that the husband had seriously assaulted her and relied on the alleged conduct in support of her financial claim. She also instructed Direct Legal Ltd about a possible civil claim in tort but did not disclose that fact to her ancillary relief solicitors.

The ancillary relief proceedings were compromised and a clean-break order was made. The wife later issued a tort claim concerning the assault. His Honour Judge Simpson struck it out as an abuse of process applying Henderson v Henderson. The central issue was whether the subsequent tort proceedings should have been disclosed and brought into play during the ancillary relief proceedings.

1. Appeal dismissed. The wife’s tort claim was an abuse of process. The order striking it out was upheld. The appellant was ordered to pay the costs, and a section 11 order was made against the Legal Services Commission.

2. Lord Justice Thorpe held that the wife had a clear duty to disclose both her intention to pursue the tort claim and her agreement with Direct Legal Ltd. The suggestion that the husband’s solicitors should have protected against an unformulated and undisclosed tort claim by inserting an express exclusion in the compromise was untenable.

3. Lord Justice May adopted the principles stated in Johnson v Gore Wood and Co. Abuse is not confined to matters previously litigated. It may extend to a claim which could have been raised, and ought to have been raised, in concluded proceedings. The inquiry is a broad assessment of whether, in all the circumstances, the later claim misuses the court process or oppresses the other party.

4. The relevant circumstances included the central relevance of the alleged assault to the ancillary relief proceedings; the overlap between tort damages and financial relief, including future loss of earnings and maintenance; the fact that the alleged conduct had already been placed in issue; the husband’s reasonable assumption that the clean-break compromise ended contentious financial matters; and the unacceptable prospect of reopening the ancillary relief proceedings if the tort claim succeeded.

5. The Court of Appeal accepted that the Family Court’s jurisdiction under sections 23 and 24 of the 1973 Act did not extend to determining the tort claim itself. That limitation did not prevent the proposed claim from being relevant to the ancillary relief proceedings or require it to be pursued later. Lord Justice Bodey wholly agreed with the reasons given by Lord Justice Thorpe and Lord Justice May.

• Court of Appeal (Civil Division) — Appeal from the order of His Honour Judge Simpson in the Mayor’s and City of London Court, dated 10 December 2001. Appeal dismissed.
• High Court, Mayor’s and City of London Court — The wife’s tort claim was struck out as an abuse of process.