Garnham v Millar & Ors

A claim may be an abuse of process where it re-litigates matters already decided, even if the parties are not precisely identical. The court must make a broad, merits-based assessment of all the circumstances, including the degree of identification between the parties, whether the proceedings constitute a collateral attack, and whether re-litigation would cause unjust harassment or bring the administration of justice into disrepute. An extended civil restraint order may be made where a litigant has persistently issued claims or applications that are totally without merit. Earlier applications may be considered even if they were not certified as totally without merit when made.

The claimant brought proceedings against solicitors, individuals connected with them and executors of an estate. The claim repeated allegations concerning the late disclosure and alleged manipulation of a recording used in earlier litigation. Related proceedings had previously been dismissed by Proudman J, and permission to appeal had been refused by Lewison LJ and Vos LJ.

The defendants applied under the Civil Procedure Rules 1998 for strike-out and for an extended civil restraint order. The issues were whether the present proceedings were an abuse of process, whether they were bound to fail, and whether the claimant had persistently issued claims or applications that were totally without merit.

1. The claim was struck out against all defendants. The court also certified it as totally without merit.

2. Under CPR 3.4, the court may strike out a statement of case where it discloses no reasonable grounds or constitutes an abuse of process. The question whether later proceedings are abusive requires a broad, merits-based judgment which considers all the circumstances. It is not determined mechanically by asking whether the issue could have been raised earlier.

3. The present proceedings substantially repeated the 2012 Proceedings and were rooted in the same facts. They also amounted to a collateral attack on the decisions of Proudman J and Vos LJ. Although the defendants were not precisely the same, there was an exceptionally high degree of identification between the parties. Allowing the claimant to re-litigate the issues would be manifestly unfair to the defendants and liable to bring the administration of justice into disrepute.

4. The proceedings were also bound to fail. There was no good reason to suppose that the recording had been fabricated, that its late disclosure was deliberate, that a document list had been created to defeat a later application, or that the recording caused the settlement. There was likewise no good reason to suppose that the solicitors had participated in the alleged misconduct.

5. Under CPR 3.11 and paragraph 3.1 of Practice Direction 3C, an extended civil restraint order may be made where a party has persistently issued claims or made applications that are totally without merit. Persistence requires more than two such claims or applications. Earlier applications may be taken into account even if they were not certified as totally without merit at the time.

6. The claimant had issued at least five applications that were totally without merit. His conduct showed a refusal to accept earlier decisions. An extended civil restraint order was therefore made for two years, excluding proceedings brought against him by Palmers in the Basildon County Court.

The present decision was at first instance. The judgment records that related proceedings had been dismissed by Proudman J on 8 October 2012, and that permission to appeal was refused by Lewison LJ and, after renewal, by Vos LJ.