John Glare v Clydesdale Bank

A claimant cannot use a differently presented cause of action to re-litigate losses or counterfactual issues sufficiently encompassed by earlier proceedings. Issues determined by a court of competent jurisdiction are conclusive and cannot be re-opened for alleged error. The Henderson v Henderson principle also prevents re-litigation of issues which should have been raised in earlier proceedings. A failure to comply with costs orders, coupled with the absence of a proper explanation, may independently justify striking out. Claims based on evidence given in parliamentary proceedings may also be barred by Article 9 of the Bill of Rights 1689. The claim was struck out and recorded as totally without merit.

John Glare brought proceedings against Clydesdale Bank claiming damages for alleged misrepresentations concerning Tailored Business Loan break costs and evidence given by the bank’s chief executive to the Treasury Select Committee.

The bank applied to strike out the claim under Rule 3.4 of the Civil Procedure Rules 1998 and sought summary judgment under Rule 24. The bank argued that the material issues had already been determined in Scottish proceedings and subsequent Liverpool proceedings, and that the new claim was also an abuse of process. The central issues were whether the claimant could re-open the counterfactual and break-cost issues, rely on parliamentary evidence, and continue proceedings while in breach of costs orders.

1. The application was allowed and the claim was struck out under Rule 3.4 of the Civil Procedure Rules 1998.

2. The claimant’s new case was precluded by res judicata. Although the current pleading was presented differently, the loss claimed was sufficiently wide to have been encompassed by the earlier Scottish proceedings. The counterfactual concerning what the claimant would have done, and the resulting financial position, had already been determined.

3. In any event, it was an abuse of process under the Henderson v Henderson principle to re-litigate the counterfactual and the bank’s entitlement to charge break costs. A judgment of a court of competent jurisdiction was conclusive on matters adjudicated and could not simply be impeached for error.

4. The claimant’s continuing breach of several costs orders, without a proper explanation or undertaking to pay, independently warranted striking out. The court was entitled to exercise its discretion on that basis.

5. The court also concluded that the claimant was barred by Article 9 of the Bill of Rights 1689 and parliamentary privilege from advancing a case based on evidence given to the Parliamentary Select Committee. The court applied the guidance in Office of Government Commerce v Information Commissioner [2010] QB 98 and treated Prebble v Television New Zealand [1994] AC 321 as persuasive authority deserving the greatest respect.

6. Had the claim not been struck out, the court would have granted reverse summary judgment under Rule 24. The claim was recorded as totally without merit under Practice Direction 3C, but no civil restraint order was made.