Hossain & Ors v Sonali Bank & Anor

Permission to appeal should be assessed by reference to whether the proposed appeal raises an important point of principle or practice, or another compelling reason. In an abuse-of-process case based on Henderson v Henderson, the court may consider the nature and fairness of the earlier proceedings, including delayed disclosure and whether a party reserved its position about further proceedings. The broader approach associated with Johnson v Gore Wood requires a merits-based assessment of all the circumstances, including public and private interests. Where the issues and procedural history are materially muddled, an arguable challenge may justify renewal of the permission application before a larger constitution.

The appellants sought permission to appeal from Eady J’s decision of 19 June 2007, which had upheld Master Foster’s order of 11 May 2006 striking out their claim as an abuse of process. The proposed High Court claim concerned the calculation of employment-related pension entitlements after earlier Employment Tribunal proceedings and an unsuccessful Employment Appeal Tribunal appeal.

The respondents relied on Henderson v Henderson, arguing that the wider pension claim should have been raised in the employment proceedings. The appellants contended that the issue had been raised, that amendment may have been refused, and that the earlier proceedings were affected by delay in producing documents. The central issue was whether the proposed challenge to the abuse-of-process ruling met the permission threshold.

1. Permission threshold. Under Part 52.13(2) of the Civil Procedure Rules 1998, permission requires an important point of principle or practice, or another compelling reason. The court was not required to decide the merits of the underlying pension claim at this stage, but it was relevant that the claim could not be characterised as obviously bad.
2. Abuse of process. The application raised an arguable question about the application of Henderson v Henderson. Following its reinterpretation in Johnson v Gore Wood, the rule is applied on a broader basis. The court should make a broad, merits-based judgment taking account of all the circumstances, including the public and private interests involved.
3. Earlier proceedings. Relevant considerations included the possibility that an amendment would have been refused, the submission inviting the Employment Tribunal to address all the appellants’ grievances while reserving the position about a further claim, and the bank’s failure to provide relevant documents promptly. Procedural shortcomings in the earlier proceedings could reduce the blame attaching to a party for not raising a point earlier.
4. Disposition. The application was adjourned for renewal before a court of three Lord Justices, or two Lord Justices and a High Court judge, on notice to the respondent bank. If permission were granted, the appeal was to be heard forthwith.

• Court of Appeal (Civil Division): The application for permission to appeal from the Queen’s Bench Division was adjourned for renewal before a larger constitution.
• Queen’s Bench Division: Eady J, on 19 June 2007, upheld Master Foster’s decision.
• Master Foster: On 11 May 2006, struck out the appellants’ claim as an abuse of process.