Henley v Bloom

A later claim is not an abuse of process merely because it could have been raised in earlier proceedings. The court must make a broad, merits-based assessment of all the circumstances, including whether the claims raise different issues, the scope of any settlement, and each party’s knowledge of the possible claim.

A claim outside the express scope of a consent settlement is not barred merely because it concerns the same property or parties. A strike-out for impossibility of a fair trial requires an unequivocal affirmative conclusion that there is a substantial risk that a fair trial is impossible. Ordinary evidential imbalance, even where one party has better expert evidence, will not ordinarily meet that standard.

The respondent landlady had brought possession proceedings against the appellant, her former tenant. Those proceedings ended in a consent order under which the tenant surrendered possession and received payments stated to settle claims for improvements or enhancements made by him.

After leaving the flat, the tenant brought a damages claim alleging breach of the landlady’s repairing obligations, water ingress and damp. The landlady applied to strike out the claim. District Judge Taylor held that it was an abuse of process and that a fair trial was impossible after refurbishment of the flat. His Honour Judge Simpkiss upheld both conclusions on appeal.

The tenant appealed to the Court of Appeal. The central questions were whether the later disrepair claim abused the process of the court and whether the available evidence permitted a fair trial.

Appeal allowed unanimously. Lord Neuberger MR gave the leading judgment, with which Longmore and Smith LJJ agreed.

1. The fact that the tenant could have raised, and could probably have brought, the disrepair claim while the possession proceedings were pending did not itself make the later claim abusive. Applying Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 and Stuart v Goldberg Linde (a firm) [2008] 1 WLR 823, the question was whether he should have raised it. That required a broad assessment of all the circumstances.

2. The possession and disrepair claims raised materially different issues. The possession proceedings did not determine whether the flat was out of repair, whether any disrepair was the landlady’s responsibility, or whether it had caused the tenant loss. The recital requiring delivery up in good tenantable condition concerned the tenant’s end-of-tenancy obligation, not the landlady’s past repairing liability.

3. The consent order expressly settled only claims concerning improvements or enhancements carried out by the tenant. It did not purport to settle a disrepair claim. The landlady was also aware, or capable of being aware, of the possible disrepair from the council notices, inspections and complaints. Her settlement was therefore not undermined by an unsuspected outstanding claim. The tenant’s delay and apparent tactical conduct could be relevant to costs, but did not justify striking out the claim as an abuse.

4. Applying Taylor v Anderson and Taylor Brothers Plant Hire Ltd [2002] EWCA Civ 1680, a claim should be struck out only if there is a substantial risk that a fair trial is impossible. The landlady lacked a contemporaneous expert report equivalent to the tenant’s reports, but had other documentary and expert material, could cross-examine the tenant’s expert, and could seek adverse inferences if appropriate. The evidential disadvantage was neither extraordinary nor incapable of judicial management.

The strike-out could not stand and the disrepair claim was to proceed.

• Court of Appeal (Civil Division): Allowed the tenant’s second appeal and held that the disrepair claim was neither abusive nor incapable of fair trial: [2010] EWCA Civ 202.

• Brighton County Court (His Honour Judge Simpkiss): Dismissed the tenant’s appeal from the District Judge and upheld the strike-out of the disrepair claim.

• Brighton County Court (District Judge Taylor): Struck out the disrepair claim as an abuse of process and on the ground that a fair trial was impossible.