Senna v Henderson & Ors

A claim may be struck out as an abuse of process where the claimant’s misconduct in the litigation is so serious that permitting the claim to continue would affront the court and the claimant has forfeited the right to an adjudication. The remedy is exceptional and must be approached cautiously, particularly where misconduct concerns only part of a claim. However, repeated threats of violence, attempted subornation of false evidence, contemptuous conduct and deliberate disobedience of court orders may cumulatively justify striking out the whole proceedings.

Claims may also be struck out where pleadings are vague, incoherent, fail to identify contractual terms, breaches and loss, or fail properly to plead fraud. Summary judgment is appropriate where the claim has no realistic prospect of success and there is no compelling reason for trial.

The claimant brought two proceedings against the defendants arising from his relationship with the third defendant and alleged business arrangements concerning music promotion, modelling and related activities. He alleged breach of contract, procuring breach of contract, tortious interference, harassment, fraud and, possibly, defamation.

The defendants applied under CPR r 3.4(2) to strike out the claims and under CPR r 24.2 for summary judgment. They relied on serious litigation misconduct, including threats of violence, alleged attempts to procure false evidence, repeated meritless applications, defective pleadings and non-compliance with court orders. The claimant also made several applications concerning representation, default judgment and the conduct of the proceedings.

The central issues were whether the claims constituted an abuse of process, whether the pleadings disclosed legally recognisable causes of action, and whether the claimant had any realistic prospect of success.

1. Strike out for abuse. Applying Masood v Zahoor [2010] 1 WLR 746 and Alpha Rocks Solicitors v Alade [2015] 1 WLR 4534, the court approached the draconian remedy cautiously. The relevant question was whether misconduct in relation to the proceedings was so serious that it would affront the court to permit the claimant to continue and whether he had forfeited the right to an adjudication.
2. The claimant authored the “Shrek email” and attempted to induce the third defendant to provide a false witness statement in return for a share of damages. This, together with repeated threats of violence against parties and lawyers, threats to interfere with legal representation, and deliberate disobedience of an order regulating communications, amounted to sufficiently serious misconduct. The claimant had been warned, and no lesser order would be adequate. Both claims were therefore struck out under CPR r 3.4(2)(b).
3. Defective pleadings. The claims also failed under CPR r 3.4(2)(a), (b) and (c). The contractual claims did not identify the agreements, terms, breaches, causation or loss coherently. The claim for procuring breach of contract necessarily failed because breach of the underlying contracts was not properly pleaded. The tortious-interference claim did not plead the necessary independent tort or unlawful act against the third defendant, intention and loss.
4. The harassment allegations did not disclose the required course of conduct or reach the necessary threshold. The alleged police report fell within the crime-prevention exception in section 1(3) of the Protection from Harassment Act 1997. The fraud allegations failed to plead primary facts capable of supporting an inference of dishonesty, contrary to Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1.
5. The court alternatively granted summary judgment under CPR r 24.2 because the claims had no realistic prospect of success. The claimant’s applications were dismissed, certified totally without merit, and an extended civil restraint order was made for two years.

First instance decision. No appellate history was stated in the judgment.