Bugbugs Ltd v Transport for London

A later declaratory claim is not automatically an abuse of process merely because an issue could have been raised in earlier proceedings. The court must make a broad, merits-based assessment of all the circumstances, including whether the issue was decided, whether the parties had a sufficient identity of interest, and the public and private interests involved. A non-party’s failure to intervene in litigation will rarely make later proceedings abusive. Public authorities may change policy and seek authoritative clarification of a legal issue affecting the public interest. Delay and regrettable conduct do not necessarily amount to abuse without unjust harassment or misuse of the court’s process.

Transport for London sought a declaration that pedicabs were “hackney carriages” under section 4 of the Metropolitan Public Carriage Act 1869. Bugbugs applied to strike out the claim as an abuse of process, relying on earlier proceedings concerning pedicabs, including Begg and Oddy, and on TfL’s conduct after changing its legal view.

A Master dismissed the strike-out application. Bugbugs appealed, contending that the legal status of pedicabs had already been determined and that TfL should have pursued the issue in the earlier proceedings. The central issue was whether TfL’s claim was barred as an abuse of process.

1. Appeal dismissed. The Master was entitled to dismiss Bugbugs’ application to strike out TfL’s claim.
2. The effect of paragraph 16 of Schedule 1 to the Transport Act 1985 on the definition of “stage carriage” in section 4 of the Metropolitan Public Carriage Act 1869 had not been authoritatively decided. The Stipendiary Magistrate in Begg may not have considered the opening words of paragraph 16. The District Judge and Pitchford J in Oddy did not consider the point. The mere fact that Pitchford J had the Begg decision before him did not establish that he had considered it.
3. Applying Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1, the question was whether, in all the circumstances, TfL was misusing or abusing the court’s process. The inquiry was broad and merits-based. It required consideration of whether the issue could and should have been raised earlier, together with the public and private interests involved.
4. There was no sufficient privity of interest between TfL and the prosecution authority in Oddy. Although TfL had succeeded to relevant functions of the Metropolitan Police Commission, the CPS had acted independently in Begg and was responsible for decisions about the prosecution and any appeal. TfL’s failure to intervene in third-party litigation did not, save possibly in exceptional circumstances, make later proceedings abusive.
5. TfL’s delay in disclosing its changed position was regrettable, but there was no deliberate or dishonest concealment from the court. TfL was seeking clarification of a question affecting public regulation and road-user safety. Its conduct did not amount to unjust harassment. The claim should therefore proceed.

The judgment itself records that the appeal was from the Master’s decision dated 24 January 2007, which dismissed Bugbugs’ application to strike out TfL’s declaratory claim.