Peter Orji & Anor v Sukhdip Nagra & Anor

The rule in Henderson v Henderson depends upon a previous judicial determination or other final resolution. It cannot prevent a litigant from raising a claim merely because the claim could and should have been advanced earlier in proceedings which remain undetermined.

A freestanding abuse of process requires highly objectionable conduct. Delay alone will rarely suffice. Striking out an arguable claim brought within the limitation period is a draconian and proportionate-last-resort remedy. An intended claim which was known to the opposing party was not abusive merely because a litigant in person failed to mention it expressly when obtaining permission to amend a related, unresolved claim.

The appellants brought a trespass claim following altercations with their former landlords. After most related criminal convictions were overturned, they notified the respondents of an intended, separate malicious prosecution claim and later issued it within the limitation period.

Deputy District Judge Payne held that the claim was arguable but struck it out as an abuse under the rule in Henderson v Henderson and rule 3.4(2)(b) of the Civil Procedure Rules. His Honour Judge Berkley dismissed the first appeal and found that the appellants had misled the court when previously obtaining permission to reamend the trespass claim.

The Court of Appeal considered whether the Henderson principle could apply without a prior substantive determination and whether deception, oppression or delay otherwise justified striking out the claim.

1. Appeal allowed. The malicious prosecution claim was reinstated. Coulson LJ gave the principal judgment. Stuart-Smith and Nugee LJJ agreed, and Nugee LJ added observations about the scope of the Henderson v Henderson principle.

2. The Henderson principle requires a previous adjudication or other final resolution. It may operate following an interlocutory determination within the same proceedings, and it may extend to an issue which could and should have been raised before. It cannot apply where no relevant matter has yet been decided. The order permitting reamendment of the unresolved trespass claim did not determine anything about the intended malicious prosecution claim: paras 44–54, 81–85.

3. The lower courts also overlooked causation. Had the intended claim been raised expressly at the amendment hearing, the court would probably have permitted a combined pleading or directed that the two claims be managed together. Commencing the second claim two months later therefore did not vex the respondents twice or reopen any decided matter: paras 51–54.

4. A freestanding abuse under rule 3.4(2)(b) of the Civil Procedure Rules requires a high threshold. The categories remain flexible, but striking out an arguable claim is draconian, must be proportionate and should be the last available option. In litigation involving successive proceedings, unjust harassment or oppression will ordinarily be required: paras 55–59.

5. No deception was established. The litigant in person accurately confirmed that the pleading was final as regards the trespass claim. The intended malicious prosecution claim had previously been disclosed, was known to the respondents and was never expressly abandoned. No advantage from concealment was identified. The Court nevertheless accepted that deliberately misleading a court to obtain an advantageous order, followed by conduct contrary to the representation, may amount to abuse: paras 61–69.

6. The later claim was neither oppressive nor abusive through delay. It had accrued less than a year earlier, and the two-month interval caused no material oppression while the first claim remained at the pleading stage. Delay alone ordinarily requires an additional factor before striking out is justified. Much of the delay was attributable to unsuccessful applications by the respondents, and active case management provided proportionate alternatives: paras 70–77.

1. Court of Appeal (Civil Division): Allowed the second appeal and reinstated the malicious prosecution claim: [2023] EWCA Civ 1289.
2. County Court at Winchester, His Honour Judge Berkley: Dismissed the appellants’ first appeal on 14 September 2022 and upheld the strike-out order.
3. County Court at Winchester, Deputy District Judge Payne: On 12 August 2021, rejected the contention that the malicious prosecution claim disclosed no reasonable grounds but struck it out as an abuse of process.