Land Securities Plc & Ors v Fladgate Fielder (A Firm)

The tort of abuse of civil process has a very limited scope. It does not permit recovery of consequential economic loss caused by well-founded civil proceedings merely because the claimant had a predominant ulterior purpose.

The tort remains distinct from malicious prosecution because it concerns the purpose for which process is used rather than the merits or termination of the proceedings. A genuine intention to obtain the available remedy prevents mixed motives or a hoped-for collateral benefit from constituting actionable abuse.

These limitations apply with particular force to judicial review. Its permission procedure and public function protect against abuse, while preserving access to judicial scrutiny of public bodies.

Property developers claimed about £17 million from a firm of solicitors for alleged abuse of civil process. They alleged that the firm threatened and pursued judicial review proceedings against planning permissions predominantly to pressure the developers into assisting the firm to relocate its offices.

A Deputy Judge of the Chancery Division refused to strike out the claim but entered summary judgment for the firm under Civil Procedure Rules 1998 rule 24.2. He held that the firm’s interest was sufficiently connected with the proposed development and that the claim had no realistic prospect of success.

The developers appealed. The central questions were whether the tort extended to permitted judicial review proceedings, whether it covered consequential economic loss, and whether disputed evidence about the firm’s purpose required a trial.

1. Appeal dismissed. The claim had no real prospect of success, and the Deputy Judge properly entered summary judgment for the respondent firm.

2. Per Etherton LJ, with whom Moore-Bick and Mummery LJJ agreed, English law recognises no general tort of malicious prosecution of civil proceedings. That tort remains confined to established special categories of damage. It also requires want of reasonable and probable cause and termination of the proceedings in the claimant’s favour.

3. Grainger v Hill remains authority for a distinct tort of abuse of process. Its defining example was the misuse of coercive process within existing proceedings to obtain property outside the process’s scope. Reasonable and probable cause and favourable termination are immaterial to that tort. The wider formulations appearing in later English authorities were obiter and did not justify extending the tort to general consequential economic loss.

4. The House of Lords’ refusal in Gregory v Portsmouth City Council to extend malicious prosecution to civil proceedings generally required comparable restraint. Extending abuse of process to all economic loss would expose persons with good causes of action to collateral litigation and might deter honest claims. The developers’ claimed losses fell outside the recognised categories.

5. Those considerations applied especially strongly to judicial review. Permission filters out claims lacking sufficient prospects, and the court can address improper purpose when deciding standing or permission. Judicial review also serves the public interest in scrutinising the legality of public bodies’ acts. An interested party cannot recover economic loss merely because permission was granted despite an allegation of improper purpose.

6. Alternatively, even on a wider formulation, actionable abuse was not established. A person who genuinely intends to obtain the remedy sought does not commit the tort merely because motives are mixed or success may also produce a benefit outside the proceedings. The pleadings and contemporaneous evidence showed a genuine intention to challenge the planning decisions and obtain an outcome affecting the development opposite the firm’s premises.

7. Moore-Bick LJ added that the decisive legal question was whether the tort should be extended to the particular economic loss claimed. The nature of that loss was undisputed, so a trial and further factual findings were unnecessary. Mummery LJ emphasised the fundamental right of access to the courts, the protections supplied by procedural law, and the special public character of judicial review.

1. Court of Appeal (Civil Division): The appeal was dismissed. The order granting summary judgment for the respondent was upheld: [2009] EWCA Civ 1402.

2. High Court, Chancery Division: Mr Bernard Livesey QC, sitting as a Deputy Judge, refused to strike out the claim but granted reverse summary judgment for the respondent under rule 24.2 of the Civil Procedure Rules 1998 and dismissed the action. No neutral citation is stated.