Perkins & Anor v Devoran Joinery Company Ltd & Ors

An abuse-of-process application requires a broad, merits-based assessment of all the public and private interests. The court must ask whether, in all the circumstances, the claimant is misusing the court process by raising issues that could have been raised earlier.

It is materially different from relitigating an issue already decided to seek adjudication of a serious issue which has never been determined. A claim should not be struck out where the claimant’s inability to raise it earlier is substantially attributable to the defendant’s alleged concealment or conduct. At the pleading stage, the court must assume the pleaded facts can be proved and must not conduct a mini-trial.

The claimants appealed against the Recorder’s order striking out their proceedings against Devoran as an abuse of process. Earlier proceedings concerned alleged defective workmanship in windows and doors. The present proceedings raised further allegations concerning defective design and deceit.

The earlier litigation had resulted in an appeal and a retrial on a limited issue remained outstanding. The central questions were whether pursuing the new allegations was unjust harassment, whether the pleading disclosed a cause of action in deceit, and how the alleged concealment and the unresolved retrial affected the abuse-of-process assessment.

1. Appeal allowed. The claim was permitted to proceed. The Recorder had erred in striking it out as an abuse of process.
2. Applying Johnson v Gore Wood & Co [2002] 2 AC 1, the court had to make a broad, merits-based judgment, taking account of all the public and private interests and all the circumstances. The relevant question was whether the claimants were misusing or abusing the court process by raising issues which could have been raised earlier.
3. The design-defect allegations had not previously been adjudicated. Preventing a first determination of serious allegations was materially different from preventing relitigation of an issue already decided. The existence of an outstanding retrial, and Devoran’s concession concerning one window, did not make pursuit of the remaining claims unjust harassment.
4. The Recorder had wrongly treated the concession as precluding the claims concerning the other windows. If pursuing the design defects was not unjust before the concession, it did not become unjust merely because the concession was made.
5. The pleaded allegations in paragraphs 40 and 41 of the particulars of claim, if proved, disclosed a cause of action in deceit. It was inappropriate at the strike-out stage to conduct a mini-trial or determine the factual merits.
6. The expert evidence concerning the apparent obviousness and concealment of the defects was relevant to the assessment of all the circumstances, although an expert must not usurp the court’s function. The alleged concealment, if established, meant that Devoran could not fairly rely on the resulting delay or claim unjust harassment. The Recorder’s contrary conclusion fell outside the range of reasonable conclusions open to her.

• High Court (Queen’s Bench Division): On appeal from the order of the Recorder in the Central London County Court dated 28 September 2005, the court allowed the appeal and directed that the claim proceed.
• The judgment records an earlier trial in May 2002 and a Court of Appeal decision in July 2003, which remitted a limited issue for retrial. No citation for that decision is stated in the judgment.