Vaughan v London Borough of Lewisham & Ors

Continuing parallel litigation may be an abuse of process where a claimant abandons earlier proceedings that offered substantially the same factual and remedial opportunities in order to pursue a tactical advantage elsewhere. The court must apply the overriding objective, considering fairness, proportionality, economy, delay and the public interest in finality. A claim may also be abusive where any recoverable damages or vindication would be minimal compared with the cost of trial. In a defamation claim, publications made in the preparation and conduct of an employment disciplinary hearing may attract qualified privilege. However, a pleaded case of malice will not ordinarily be summarily rejected where resolving it requires investigation of what the defendants knew when they published the words.

The claimant brought a primarily libel claim against her former employer and employees concerning statements made during an internal hearing preceding her dismissal. The same underlying events were also the subject of Employment Tribunal proceedings alleging unfair dismissal and discrimination.

The Employment Tribunal claims were withdrawn after Sharp J had stayed the High Court proceedings pending their resolution. The stay was later lifted. The defendants applied to strike out the High Court claim as an abuse of process or for summary judgment on qualified privilege and malice. The claimant applied to strike out the defences.

The central issues were whether the claimant could abandon the overlapping Tribunal proceedings and insist on trial of the High Court claim, whether the limited publications disclosed a real and substantial tort, and whether qualified privilege and malice could be determined summarily.

1. The claim was struck out. The claimant had withdrawn overlapping Employment Tribunal proceedings immediately after Sharp J announced a stay, without waiting for the full reasons. The decision was tactical and precipitate. The Tribunal proceedings had offered an appropriate forum for resolving the employment issues and obtaining relevant vindication. The claimant’s unilateral choice to abandon them did not create an unqualified right to proceed in the High Court.
2. The court applied the overriding objective and principles of fairness, proportionality, economy and finality. Allowing the claimant to write off substantial public and defence expenditure and require further expenditure on substantially the same dispute would amount to an abuse of process. The approach was consistent with Hunter v Chief Constable of West Midlands Police [1982] AC 529 and Johnson v Gore-Wood & Co [2002] AC 1.
3. The claim was independently abusive because, given the very limited publication to two note-takers and to Unison, any damages or vindication would at best be minimal at disproportionate cost. The court applied the “worth the candle” approach illustrated by Dow Jones & Co Inc v Jameel [2005] QB 946, Cammish v Hughes [2012] EWCA Civ 1655 and Khader v Aziz [2010] EWCA Civ 716.
4. If necessary, the publications to the note-takers and the transmission of the bundle to Unison would have been within qualified privilege. The disciplinary hearing provided a classic privileged occasion, and the publications were incidental to its proper conduct. The pleaded case of malice could not, however, be rejected summarily, since it required investigation of the relevant history and the defendants’ states of knowledge, consistently with Seray-Wurie v Charity Commission of England & Wales [2008] EWHC 870 (QB).
5. The claimant’s application to strike out the defences was dismissed. No referral concerning the defendants’ legal advisers was made to the Attorney-General.

High Court (Queen’s Bench Division): Sharp J previously stayed the High Court proceedings pending the Employment Tribunal claims and later gave fuller reasons at [2013] EWHC 795 (QB). The stay was subsequently lifted. In the present judgment, Sir David Eady struck out the claim as an abuse of process and dismissed the claimant’s application to strike out the defences.