Kensell v Khoury & Anor

The Henderson v Henderson principle can apply when a party seeks to introduce a new claim at a later stage of the same proceedings, including after summary judgment or strike-out. Its application is more limited where the earlier decision was summary, because finality is less complete and amendment may still be available. The question remains whether, viewed broadly and on the merits, the conduct amounts to abuse or unjust harassment. Even where abuse is not established, the court must separately balance the injustice caused by permitting or refusing amendment. Delay, prejudice, health consequences and the weakness of proposed relief are relevant. An amendment may therefore be allowed while excluding a mandatory injunction whose grant would be highly improbable and disproportionately prejudicial.

The respondents, neighbouring property owners, sought to amend their existing claim against the appellant. Their original claims for enforcement of restrictive covenants had been struck out after summary judgment, leaving a common-law nuisance claim. They later sought to rely on section 56 of the Law of Property Act 1925 as a new basis for enforcing the covenants. The County Court permitted the amendments and awarded the respondents the costs of the amendment application. The appellant challenged both decisions, arguing abuse of process, excessive delay and improper exercise of discretion. The central issues were whether Henderson applied within the same proceedings after summary judgment, and how the amendment discretion should be exercised.

1. Abuse of process. The judge erred in concluding that the Henderson principle could never apply within existing proceedings or where the covenants were prospective. The authorities, particularly Tannu v Moosajee, established that the principle may apply at a later stage of the same litigation. It is a rule of law, not merely a discretionary case-management consideration.
2. The principle may apply after summary judgment or strike-out, but less readily than after a trial. Summary judgment does not provide the same finality as a determination after trial, and a party may have greater opportunity to amend. The court must apply the broad, merits-based approach stated in Johnson v Gore Wood & Co, asking whether, in all the circumstances, the conduct misuses the court process or amounts to unjust harassment.
3. On the facts, the respondents should have raised the section 56 argument earlier. The appellant had sought finality, had incurred delay and expense, and had suffered substantial stress. Nevertheless, the claim remained alive in nuisance, the new argument had been raised before the first appeal was heard, the failure resulted from former advisers’ failure to appreciate its merits, and the proposed claim involved little new factual evidence. Abuse was not established.
4. The County Court’s discretion had been materially affected by the mistaken view that the respondents could freely commence fresh proceedings. The High Court therefore re-exercised the discretion. The amendments were permitted, but the claim for a mandatory injunction requiring demolition was excluded. Damages in lieu of an injunction remained available because demolition was highly improbable and would cause disproportionate injustice.
5. The costs order was also set aside. It was reasonable for the appellant to oppose the amendment on delay and abuse grounds, although it was unreasonable to contest the merits as if they were a preliminary issue. The substituted order was no order as to costs.

• High Court (Chancery Division): allowed the appeal against aspects of the County Court’s amendment and costs orders and re-exercised the relevant discretion.
• County Court at Central London: HHJ Gerald permitted the respondents to amend their particulars of claim and ordered the appellant to pay the respondents’ amendment costs.
• County Court at Brighton: HHJ Simpkiss granted summary judgment for the appellant and struck out the covenant claims.