Akay v Newcastle University

A later claim arising from facts already litigated may be an abuse of process even where it is not res judicata. The question is a broad, merits-based assessment of whether the later proceedings misuse the court process, taking account of the public and private interests and all the circumstances. A claimant’s ignorance of the law, or a deliberate choice not to advance a personal injury claim in earlier employment proceedings, will not ordinarily amount to a special reason for permitting duplicative litigation. A special reason may arise where the injury, or its true extent, had not yet come to light. A settlement preserving a separate personal injury claim does not, without more, waive an abuse-of-process objection or create an estoppel by convention.

Professor Galip Akay appealed from orders of HHJ Gargan in the County Court at Teesside striking out his personal injury claim against Newcastle University as an abuse of process and requiring him to pay the defendant’s costs. The claim alleged that workplace harassment and other conduct caused post-traumatic stress disorder, and arose from substantially the same facts as employment tribunal harassment claims that had already been struck out for procedural non-compliance and lack of reasonable prospects.

The employment claims had not included a claim for personal injury. The parties later entered into a Compromise Agreement which expressly preserved the personal injury claim. The appeal concerned whether the lower court had correctly applied the Henderson v Henderson abuse principle, whether there was a special reason not to strike out the claim, whether the Compromise Agreement or an estoppel by convention prevented the objection, and whether the costs order was permissible.

1. Appeal dismissed. The orders striking out the personal injury claim as an abuse of process and requiring the claimant to pay the defendant’s costs were upheld.
2. The employment tribunal harassment claims had been struck out as an abuse of process because the claimant had shown contumelious disregard for orders requiring particulars. The present claim arose from essentially the same underlying facts and should have included the personal injury claim.
3. The applicable inquiry was the broad, merits-based judgment described in Johnson v Gore Wood & Co (No 1) [2002] 2 AC 1. That inquiry is not a separate formula applied instead of the overriding objective. It requires consideration of the public and private interests, all the facts, and whether, in all the circumstances, the later claim misuses or abuses the court process.
4. The claimant’s deliberate decision not to pursue personal injury damages in the employment tribunal was not, on the facts, a special reason. Nor was ignorance of the law ordinarily capable of being such a reason. A case may be different where the injury had not come to light, or its true psychological extent was not properly understood, when the earlier proceedings were brought. The claimant knew enough to bring a personal injury claim before commencing the employment claim.
5. The Compromise Agreement preserved the claimant’s ability to pursue the personal injury claim, but did not contain an express or implied agreement that the claim was not abusive. The lower court’s description of abuse of process as a potential defence was technically wrong: it is an objection to the action being brought at all. That error did not affect the finding that there was no common assumption capable of founding an estoppel by convention.
6. The costs order fell within the lower court’s wide discretion. The defendant had raised abuse of process in its defence, and the case-management decision to leave the issue for trial was not unreasonable in the circumstances.

• High Court (Queen’s Bench Division): appeal from the County Court at Teesside dismissed; the strike-out and costs orders were upheld. [2020] EWHC 1669 (QB)
• County Court at Teesside: HHJ Gargan struck out the personal injury claim as an abuse of process on 1 May 2019 and ordered the claimant to pay the defendant’s costs on 23 July 2019.