Chowdhury Mueen-Uddin Secretary of State for the Home Department

Abuse of process is a fact-sensitive jurisdiction. The court must conduct a close merits-based assessment and weigh the overall balance of justice, including fairness, finality and the practical value of continuing the proceedings.

A foreign criminal conviction may be relevant to abuse and reputation, although it is not conclusive proof of the underlying facts. Long-standing reputation, earlier uncontradicted publications and previous convictions may help show that a libel claim cannot achieve useful vindication.

Under the Jameel jurisdiction, a valid claim should be struck out only where no proportionate method of adjudication can be found. Data-protection claims may proceed alongside defamation claims, but may be abusive where their lawfulness depends on the same accuracy issue and they serve no independent useful purpose.

The appellant brought libel and data-protection claims against the Secretary of State concerning a report which stated that he had been found guilty of crimes against humanity following a trial in absentia in Bangladesh. The High Court struck out the claims as an abuse of process, relying on both Hunter and Jameel principles.

The appeal concerned whether reliance on the foreign conviction was permissible despite alleged procedural unfairness and the appellant’s lack of participation, whether the passage of time and existing publications made a fair justification trial impossible or rendered the claim disproportionate, and whether the data-protection claims should be treated differently from the libel claim.

The central issue was whether continuation of the proceedings would constitute an abuse of the court’s process.

1. Disposition. By a majority, Dingemans LJ and Sharp P dismissed the appeal. Phillips LJ dissented. Permission was granted to rely on the eighth ground of appeal.
2. The right of access to a court is important, and striking out for abuse is draconian. It is nevertheless subject to substantive and procedural limits protecting the finality and integrity of litigation. The court’s inherent jurisdiction is not confined to fixed categories. It requires a close merits-based assessment of the overall balance of justice, including whether proceedings would be manifestly unfair or bring the administration of justice into disrepute. This approach was derived from Hunter v Chief Constable of the West Midlands Police [1982] AC 529 and the authorities discussed in the judgment.
3. The majority held that a foreign criminal conviction could be taken into account. It was not conclusive proof of the underlying facts, and the appellant’s inability to appear, the trial in absentia and criticisms of the Bangladeshi tribunal were relevant. They did not prevent abuse where they formed part of a wider assessment. The conviction and long-standing reputation were also relevant to whether the claim could provide meaningful vindication.
4. Under Jameel v Dow Jones [2005] EWCA Civ 75, continuation may be abusive where there is no real and substantial tort or the litigation is not worth the candle. A claim of modest value or one where vindication matters should be struck out on that basis only where no proportionate method of adjudication can be found. In this case, the combination of the foreign conviction, earlier publications, the nature and limited duration of the impugned footnote, the passage of more than 50 years and the practical impossibility of a fair justification trial meant that the proceedings were manifestly unfair, brought the administration of justice into disrepute and offered no worthwhile vindication.
5. The data-protection claims could in principle run alongside the libel claim. However, accuracy was relevant to whether processing was lawful and in the public interest under Article 6(1)(e) of the General Data Protection Regulation and section 8(d) of the Data Protection Act 2018. The claims therefore substantially overlapped with the abusive libel claim and were abusive for the same reasons.
6. Phillips LJ would have allowed the appeal. He considered that the appellant had no full opportunity to defend the foreign proceedings, that an appeal could not cure an inherently unfair process, and that the serious publication by the Government gave the appellant a legitimate interest in vindication. He rejected a rolled-up combination of partial Hunter and Jameel considerations as an independent basis for strike-out.

• Court of Appeal (Civil Division) dismissed the appeal by majority in [2022] EWCA Civ 1073.
• Queen’s Bench Division, Media and Communications List struck out the libel and data-protection claims as an abuse of process in [2021] EWHC 3026 (QB).