Streather & Anor v Bodker

A fresh claim is an abuse where it seeks to determine an issue that arises in existing proceedings and could be dealt with there, particularly where the fresh claim cannot resolve the wider dispute. The court must consider the litigation as a whole, including the issues, parties and remedies involved. A claim framed as one of pure contractual construction may still require evidence on estoppel by convention or an agreed private meaning. The court’s duty to avoid multiplicity of proceedings supports managing the issue within the existing claim.

The claimants, administrators of an estate, brought a Part 8 claim seeking declarations about the meaning of “market value” in pre-emption agreements relating to property. The defendant applied to strike it out under CPR rule 3.4 and the court’s inherent jurisdiction, relying on existing Part 7 proceedings concerning rescission of the same transactions for misrepresentation, undue influence and unconscionability.

The Part 8 claim concerned only one property interest and the defendant, whereas the Part 7 claim covered both agreements and also involved the company that had granted the leases. The central issue was whether the later claim was an abusive attempt to determine an issue that could be addressed in the earlier proceedings.

1. Application granted. The Part 8 claim was struck out as an abuse under CPR rule 3.4(2)(b).
2. The defendant bore the burden of establishing abuse: Johnson v Gore-Wood [2002] 2 AC 1. The governing procedural principles require a claimant ordinarily to bring forward its entire case in one action and avoid inconsistent remedies. Those principles were discussed in De Crittenden v Bayliss [2005] EWCA Civ 1425, where the Court of Appeal affirmed that a second claim may be abusive when the necessary issues could and should have been raised in the first.
3. The Part 8 claim could not determine the Part 7 litigation. Even if “market value” were construed, issues of estoppel by convention, a possible private dictionary, misrepresentation, undue influence and unconscionability remained. The Part 7 claim also involved the garages and the company, which were not parties or subject matter in the Part 8 claim.
4. The court rejected the submission that construction alone made the other issues irrelevant. Bahamas International Trust Co Ltd v Threadgold [1974] 1 WLR 1514 established that the court decides the legal effect of a written document for itself, but did not prevent parties from contracting on an agreed basis giving rise to estoppel by convention or using an agreed private meaning. Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 1101 was cited for those possibilities.
5. Section 49(2) of the Senior Courts Act 1981 reflected, or at least confirmed, the procedural principle that matters should be finally determined and multiplicity of proceedings avoided. On the facts, there was no sufficient reason for the fresh claim. The court did not decide the alternative allegation that the claim had been brought to harass the defendant.

First-instance decision. No earlier judgment or appeal is stated in the judgment.