Monks v National Westminster Bank Plc & Anor

The Henderson principle requires a broad, merits-based assessment of whether later proceedings amount to an abuse of process. The fact that a claim could have been brought earlier does not automatically mean that it should have been. The court must consider the circumstances, including whether the later cause of action had crystallised and whether adding it earlier would have hindered the fair and efficient determination of the existing claim. An abuse application is not ordinarily the occasion to decide the underlying merits of claims which may survive. Unrecognised causes of action and claims against a party with no proper basis may nevertheless be struck out.

The claimant brought earlier proceedings concerning inaccurate mortgage-account records and adverse credit-reference reporting. He obtained declaratory relief and an order requiring correction of the records, but did not claim damages or other financial remedies.

He later commenced proceedings against National Westminster Bank Plc and Royal Bank of Scotland Plc, alleging defamation, malicious falsehood, breaches of the Data Protection Act, negligent misstatement and other wrongdoing. The defendants applied under CPR 3.4(2), contending that the claims disclosed no reasonable grounds or constituted an abuse of process because they could and should have been included in the earlier proceedings.

1. The application was allowed only in part. The claim against Royal Bank of Scotland Plc had no proper basis. The claim under the Misrepresentation Act 1967 could not succeed because the claimant relied on matters arising after, rather than before, any contract. The allegations described as “adverse conduct” disclosed no recognised cause of action and the relevant passages were struck out.

2. The remaining claims were not struck out as an abuse of process. The principle in Henderson v Henderson (1843) 3 Hare 100, as restated in Johnson v Gore-Wood [2002] 2 AC 1 at [31], requires a broad merits-based assessment. It is not enough that a claim could have been brought in earlier proceedings. The court must ask whether, in the circumstances, it should have been brought then.

3. The adverse reports had been made periodically from December 2009 until July 2015. Causes of action based on later publications could not have been included before they arose. Even for earlier publications, an application to amend might have delayed the existing trial and increased costs. The claimant’s choice to obtain rulings on the underlying indebtedness and the accuracy of the reports first was not, in the circumstances, an abuse.

4. Questions concerning serious harm, the single-publication rule, limitation, malice and the viability of the various causes of action went to the merits and were not determined on this application. In accordance with Stuart v Goldberg Linde [2008] 1 WLR 823, the court should not anticipate those disputes when deciding abuse of process.

5. The post-hearing material showed continuing disagreement about the implementation of the earlier judgment and the mortgage-account calculations. That material did not alter the conclusions on the application, which was dismissed insofar as it alleged abuse of process.