Windsor-Cliv & Ors v Rees

A defence or claim is not abusive merely because an issue could have been raised in earlier proceedings. The court must undertake a close, merits-based assessment of all the circumstances, balancing private and public interests. An equitable estoppel claim concerning relief against possession may properly be raised in possession proceedings where its subject matter differs from the validity of notices to quit. Defective particulars justify strike-out only where they disclose no reasonable defence. Non-compliance with a costs order made in connected proceedings may be considered under CPR 3.4(2)(c), but strike-out must remain proportionate. Ordinarily, an unless order requiring staged payment is appropriate.

The claimants, as freeholders, sought possession of a farm from their former agricultural tenant. Notices to quit had been upheld in arbitration under the Agricultural Holdings Act 1986, and an appeal against the relevant award had been dismissed.

The defendant raised an equitable estoppel defence and Part 20 claim, alleging promises concerning the timing of possession, the farmhouse, succession to the tenancy, replacement land and compensation. The claimants applied to strike out or dismiss the defence and Part 20 claim for abuse of process, lack of reasonable grounds, and failure to comply with a costs order made in related proceedings.

1. Abuse of process. The applicable question under CPR 3.4(2)(b) was whether, in all the circumstances, the defendant was misusing the court’s process by raising an issue that could have been raised earlier. The court applied the merits-based approach summarised in Koza Ltd v Koza Altin Iseltmeleri AS [2020] EWCA Civ 1018. There is no automatic assumption that later proceedings are abusive. The private interest in avoiding repeated litigation and the public interest in protecting the administration of justice must be weighed together.
2. The alleged estoppel might arguably have been raised in the arbitrations. However, the earlier estoppel issues concerned the validity of the notices to quit, whereas the present claim concerned promises about when possession would be taken, continued farming, alternative land and compensation. The court was not satisfied that the defence and Part 20 claim should have been raised in the arbitrations. The abuse ground therefore failed.
3. Pleading sufficiency. Some alleged promises were unclear and might ultimately be incapable of founding an estoppel. Nevertheless, the pleading was not so defective that it disclosed no reasonable defence under CPR 3.4(2)(a). The proposed argument that the allegations could not in law create a proprietary interest sufficient to defend possession was not pursued and failed in any event.
4. Costs non-compliance. The court accepted that CPR 3.4(2)(c) ordinarily contemplates non-compliance with an order made in the proceedings sought to be struck out. That did not deprive the court of jurisdiction to consider non-compliance with an order in closely connected proceedings. Relevant considerations included the right to a fair trial under Article 6, alternative enforcement methods, the adequacy of evidence concerning inability to pay, and proportionality.
5. The unpaid £100,000 costs order arose between the same parties, concerned the same farm and related issues. The defendant supplied no adequate financial evidence or explanation for non-payment. Immediate strike-out would nevertheless be disproportionate. The defence and Part 20 claim were ordered to stand struck out only upon default of a monthly instalment of £10,000. The parties were directed to submit a draft order within 14 days.

Not stated in the judgment as an appeal from the present decision. The judgment records that an earlier arbitration award was appealed and dismissed in October 2020, and that a related Court of Appeal costs order remained unpaid.