Miller v Gardiner & Anor

Claims alleging fraud, dishonesty and unlawful interference must identify a properly particularised cause of action and the factual basis for each defendant’s alleged knowledge and wrongdoing. Claims which merely repeat issues already decided may be barred by cause of action or issue estoppel. New evidence can justify setting aside a judgment for fraud only through the appropriate procedure; it does not permit a party to disregard an existing judgment. Judicial proceedings immunity generally protects statements of case, witness evidence and documents placed before the court. An extended civil restraint order may be made where a litigant has persistently issued claims or applications which are totally without merit. Persistence requires more than two such claims or applications, and earlier proceedings may be assessed for that purpose.

Lawrence Miller brought two claims against solicitors, a barrister and Janie Hendrix. He alleged that the defendants had used fabricated evidence and a deed of assignment to deceive courts in earlier litigation concerning rights in Jimi Hendrix recordings. The defendants applied for strike-out, summary judgment and an extended civil restraint order.

The applications followed summary judgment against Mr Miller in Claims 826 and 827, a refusal of permission to appeal described as totally without merit, and further related proceedings. The central issues were whether the present claims disclosed properly particularised causes of action, whether they were barred by earlier decisions, whether the defendants were protected by judicial proceedings immunity, and whether Mr Miller’s conduct justified an extended civil restraint order.

1. Claims 122 and 123 struck out. The pleadings did not identify properly particularised claims against any defendant. They did not adequately explain the alleged deception, the defendants’ knowledge, or how the documents relied on were fabricated. The claims therefore failed at the pleading stage and had no real prospect of success.

2. The earlier decisions were also materially relevant. The court accepted that the issue concerning title to the relevant performers’ rights had already been determined. The principles of cause of action estoppel and issue estoppel described in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46, [2014] AC 160 prevented Mr Miller from going behind the earlier decisions in relation to at least Ms Hendrix and Mr Gardiner. Although new evidence can, in an appropriate case, support setting aside a judgment for fraud, the judgment remains binding unless and until it is set aside, as illustrated by Royal Bank of Scotland plc v Highland Financial Partners LP [2013] EWCA Civ 328, [2013] 1 CLC 596.

3. Any loss alleged in connection with the dissolved company’s business would have been suffered by the company rather than Mr Miller personally. The reflective-loss principle stated in Johnson v Gore Wood & Co [2002] 2 AC 1 therefore provided a further difficulty.

4. Judicial proceedings immunity protected the defendants in respect of the giving of evidence, statements of case and other documents placed before the court. The scope of the immunity was addressed by reference to Williamson v Umphray and Robertson (1890) 17 R 905, Singh v Reading BC [2013] EWCA Civ 909, [2013] 1 WLR 3052, and Crawford v Jenkins [2014] EWCA Civ 1035.

5. Under Civil Procedure Rules 1998, the claims were recorded as totally without merit. The court found at least five relevant claims or applications to have been totally without merit. Applying Lilley v Euromoney Institutional Investor plc [2014] EWHC 2364 (Ch), earlier proceedings not so characterised at the time could nevertheless be taken into account. Mr Miller had persistently refused to accept adverse decisions, within the approach described in Bhamjee v Forsdick [2003] EWCA Civ 1113, [2004] 1 WLR 88.

6. Claims 122 and 123 were struck out. An extended civil restraint order was made against Mr Miller for two years.

This was a first-instance decision. The judgment recorded that Claims 826 and 827 had previously been summarily determined against Mr Miller by His Honour Judge Hodge QC, sitting as a High Court judge, in [2014] EWHC 2695 (Ch). Permission to appeal was refused by Floyd LJ on 4 December 2014, and the application was characterised as totally without merit.