Daar v Chief Constable of Merseyside Police

Abuse of process through relitigation requires a broad, merits-based assessment of all the circumstances. The fact that an issue could have been raised earlier does not automatically make later proceedings abusive.

A previous criminal acquittal does not establish innocence, but it is materially relevant where a later anti-social behaviour order application invited proof of the same allegations. In that setting, subsequent civil claims are not necessarily abusive. The result remains fact-sensitive, particularly where the allegations formed only part of the evidential basis for the order.

Ali Daar brought civil claims arising from police arrests, prosecutions and alleged assault. The Chief Constable sought to strike out the claims under CPR Part 3.4 as an abuse of process.

The claims followed criminal proceedings in which Daar was acquitted of the April allegations. A later anti-social behaviour order application relied on those allegations and on an untried July incident, and the order was made. HHJ McKay dismissed the strike-out application at St Helen’s County Court. The appeal concerned whether continuation of the civil claims would constitute a collateral attack on the ASBO proceedings or otherwise bring the administration of justice into disrepute.

Disposition. The Court of Appeal unanimously dismissed the appeal. The Chief Constable’s application to strike out the civil claims as an abuse of process was therefore unsuccessful.

1. Relitigation abuse is not governed by hard-and-fast rules. The court must make a broad, merits-based assessment of the public and private interests and all the circumstances, including finality, avoidance of double vexation, efficiency, economy and the possible misuse of the court’s process. The existence of a collateral attack may make abuse more apparent, but it is not an essential additional requirement: [2002] 2 AC 1.
2. ASBO proceedings are civil proceedings, although they have a close affinity with criminal proceedings and require proof to the criminal standard. In civil proceedings, the ordinary doctrines of res judicata, issue estoppel and abuse of process generally address collateral challenges, subject to the policy identified in Hunter guarding against unforeseen gaps: [2003] 1 AC 787; [2002] AC 615; [1982] AC 529.
3. The earlier acquittals did not prove that the allegations were false. They nevertheless made it difficult to characterise the claimant’s civil proceedings as an affront to justice where the later ASBO application had itself invited the District Judge to determine the same allegations substantively. The court did not decide that the ASBO proceedings were abusive, or that similar civil claims would never be abusive in the absence of an acquittal.
4. R v Z concerned the admissibility of similar-fact evidence and the fairness of requiring a defendant to meet factual allegations again. It did not determine whether proceedings seeking an ASBO, or subsequent civil proceedings, were abusive. The present case was therefore distinguishable: [2000] 2 AC 483.
5. Moore-Bick LJ emphasised that the acquitted allegations were only some of the matters supporting the ASBO. Reopening them did not necessarily challenge the order, since sufficient material remained apart from them. The court declined to separate the April and July matters, although the July matter might have produced a different result if it had stood alone. The appellant was ordered to pay the respondent’s costs, subject to detailed assessment.

1. Court of Appeal (Civil Division): appeal against dismissal of the strike-out application dismissed on 13 December 2005; costs awarded to the respondent, with detailed assessment ordered. [2005] EWCA Civ 1774
2. St Helen’s County Court: HHJ McKay dismissed the application to strike out the two civil claims as an abuse of process on 17 May 2005.