Hossain & Ors v Sonali Bank & Anor

A later claim may be an abuse of process where it advances a broader formulation of an issue previously litigated. The court must assess all the circumstances, including private and public interests, and ask whether the process is being misused. The substantive strength of the later claim is ordinarily of little relevance unless it is cast-iron or hopeless. A party who had an opportunity to amend but deliberately chose not to do so cannot ordinarily avoid the consequences by recasting the same issue in fresh proceedings. On a second appeal, permission also requires an important point of principle or practice or another compelling reason.

Former employees of Sonali Bank and Sonali Trade and Finance UK Ltd brought employment tribunal claims concerning pension-gratuity calculations. The tribunal decided the pleaded issue in Mr Hossain’s favour, holding that personal protected pay had to be included. An appeal to the Employment Appeal Tribunal failed.

Mr Hossain and other claimants later brought High Court proceedings seeking substantially larger payments on a broader basis. Master Foster struck out the claims for abuse of process. Eady J upheld that decision on 19 June 2007. The Court of Appeal considered whether permission should be granted for a second appeal.

1. Application refused. The proposed High Court claim concerned the same essential issue previously before the employment tribunal: the pay relevant to the pension formula. It was a broader formulation, but not a genuinely new question. The claimants had considered amendment, had been invited to amend, and deliberately chose not to do so.
2. The correct approach to abuse of process is the broad, merits-based assessment identified in Johnson v Gore Wood [2002] 2 AC 1. The court must consider all the circumstances and both private and public interests. Following Stuart v Goldberg Linde [2008] EWCA Civ 2, [2008] 1 WLR 823, substantive prospects ordinarily have little relevance. They may matter only in an extreme case where the claim is cast-iron or hopeless.
3. Mr Hossain’s case could not be treated as overwhelming. Its legal basis and the relevance of Bangladeshi law and documents had not previously been considered, and the broader case had always been available to him. The public interest in finality meant that allowing the claim to proceed would itself produce injustice.
4. This was a second appeal. It raised no important point of principle or practice and disclosed no other compelling reason for permission. Lady Justice Smith and Lord Justice Goldring agreed with Lord Justice Rix’s reasons.

The respondent’s costs were assessed at £15,000.

• Court of Appeal (Civil Division): Permission for a second appeal was refused.
• High Court, Queen’s Bench Division: Eady J upheld Master Foster’s strike-out decision on 19 June 2007.
• Master Foster: Struck out the later claim for abuse of process on 11 May 2006.
• Employment Appeal Tribunal: Dismissed the appeal from the employment tribunal’s decision; there was no further appeal.
• Employment Tribunal: Decided the pleaded pension-calculation issue in Mr Hossain’s favour.