Hossain & Ors v Sonali Bank & Anor

Abuse of process under the Henderson v Henderson principle requires a broad, merits-based assessment of all the circumstances. The fact that an issue could have been raised in earlier proceedings does not automatically make later proceedings abusive. The party alleging abuse must show that the issue could, and should, have been raised earlier and that pursuing it later misuses the court’s process. Motive is generally immaterial; the question is judged objectively. Where an issue could and should have been raised earlier, it will be unusual for the underlying merits of the later claim to outweigh the injustice and harassment caused by reopening the dispute.

The appellants had previously brought employment proceedings concerning the calculation of pension payments following their redundancies. The Employment Tribunal declined to take account of housing and foreign allowances because no application had been made to amend the claim. The Employment Appeal Tribunal upheld that approach.

The appellants later issued proceedings seeking to raise the allowances issue. Master Foster struck out the claim as an abuse of process. The appellants appealed, contending that the issue had not previously been determined, that late disclosure of a memorandum explained the omission, and that the Master had applied an inflexible approach. The central issue was whether the later claim could, and should, have been raised in the employment proceedings.

1. Appeal dismissed. The appeal was approached by way of review rather than rehearing. The Master had not misdirected himself in law or reached findings unsupported by the evidence.
2. The governing principles were those in Henderson v Henderson (1843) 3 Hare 100, as explained and redefined in Johnson v Gore Wood [2002] 2 AC 1. The fact that an issue could have been raised earlier does not, by itself, establish abuse. The court must make a broad, merits-based judgment, considering the public and private interests and all the circumstances. The burden lies on the party alleging abuse.
3. On the facts, the appellants had the opportunity to raise the allowances issue before the Employment Tribunal. The relevant memorandum had been considered before closing submissions, and an amendment could have been sought then. There was no sufficient explanation for the failure to do so. The Master was entitled to find that the opportunity should have been taken.
4. The principal merits to be assessed were those of the abuse application, including whether the respondents were being impermissibly harassed by the later proceedings. The strength of the underlying claim could be considered, but it would be unusual for it to outweigh abuse where the claim could and should have been raised earlier. Motive or purpose in omitting the amendment was not germane; the issue was to be judged objectively.
5. The court considered, although it was unnecessary to the result, that issue estoppel could also apply because the earlier proceedings concerned the appellants’ full entitlement to pension payments. The claim was therefore properly struck out.

1. High Court (Queen's Bench Division): Eady J dismissed the appeal from Master Foster's decision striking out the claim as an abuse of process.
2. Employment Appeal Tribunal: dismissed the earlier appeal and held that, because no amendment had been made, the Employment Tribunal had not determined the housing and foreign allowances issue.
3. Employment Tribunal: declined to take the housing and foreign allowances into account because no application to amend had been made.