Murray v Cassidy

Abuse of process is determined by a broad, merits-based assessment of all the circumstances. The fact that a claim or defence could have been raised in earlier proceedings does not make later proceedings abusive automatically. Relevant considerations include finality, avoidance of repeated vexation, litigation efficiency, costs, the practical mischief caused by allowing the later claim, and the parties’ conduct. A later claim may be abusive where persistence would require a needless trial of issues previously abandoned or compromised. Where the potentially abusive claim has been resolved in an agreed sum, and its continuation creates no material cost or procedural mischief, striking it out may be unjustified.

The appellant was involved in a road traffic accident with the respondent. The respondent first brought a claim relating to her child’s injuries. The appellant blamed the respondent, sought to bring Part 20 proceedings against her, and then abandoned that course when the child’s claim was compromised.

The respondent later brought her own claim, which was resolved by consent. The appellant maintained Part 20 claims for damage to his vehicle and for the sum paid in settlement of the child’s claim. The Deputy District Judge struck them out as an abuse of process. His Honour Judge Appleton upheld that decision. The central issue was whether pursuing the Part 20 claims in the respondent’s later action was abusive.

1. Appeal allowed. The Court of Appeal entered judgment for the appellant on the Part 20 claims in the agreed sum of £4,387.68, inclusive of interest, and made consequential costs orders.

2. Lord Justice Sedley applied the approach stated by Lord Bingham in Johnson v Gore-Wood [2001] 2 WLR 72. Abuse of process requires a broad, merits-based judgment taking account of public and private interests and all the circumstances. The mere fact that a claim or defence could have been raised earlier is insufficient by itself.

3. The previous proceedings involved more than a simple failure to raise a claim. The appellant had blamed the respondent, sought Part 20 proceedings, abandoned them, and later sought to pursue related claims in the respondent’s action. That history could justify a finding of abuse if continuation would require a needless trial of issues already compromised, particularly the parties’ respective responsibility for the child’s claim.

4. However, the lower court had not been told that the parties had already agreed the amount payable on the Part 20 claims, subject only to the abuse issue. That fact removed the principal practical mischief identified by the Deputy District Judge: a full trial merely to determine the respondent’s contribution to the settlement of the child’s claim. The appeal judge should have reconsidered the decision in light of it.

5. Charles J regarded the additional fact as relevant but not crucial. He considered that a reasonably informed and fair-minded observer would have concluded, when the first action was settled, that the appellant could raise in the respondent’s later action the matters previously advanced by defence and contemplated in the Part 20 claim. Schiemann LJ also agreed, emphasising the modest size of the claims, the absence of additional costs to the respondent, and the fact that the respondent could have sued earlier.

• Court of Appeal (Civil Division): Allowed the appeal from the decision of His Honour Judge Appleton, who had upheld the striking out of the appellant’s Part 20 claims.
• Preston County Court: The Deputy District Judge struck out the Part 20 claims as an abuse of process. His Honour Judge Appleton upheld that decision.