Heather Archibald & Ors v East Sussex County Council

Abuse of process under the rule in Henderson v Henderson is determined by a broad, merits-based assessment of all the circumstances. A later claim may be abusive where it arises from the same subject matter as earlier proceedings and could, realistically, have been raised in them. The fact that it advances a different cause of action or seeks a different remedy is not decisive. Relevant considerations include finality, protection against repeated harassment, the parties’ conduct, and the efficient use of court resources.

For misfeasance in public office, whether an employee is a public officer depends on the position held, the duties undertaken in that position, and whether those duties represent a governmental responsibility engaging a public interest beyond the interests of persons directly affected.

The appellants challenged the respondent local authority’s child-protection decisions concerning Rudi Archibald in judicial review proceedings. Those proceedings were settled by consent, with the decision to convene an Initial Child Protection Conference declared unlawful.

After settlement, the appellants issued a county court claim for damages for alleged breaches of Article 8 and misfeasance in public office, and sought to amend the claim to add the governing body of West Rise Junior School. The County Court struck out the claim as an abuse of process and refused the amendments. The appeal concerned whether the later claims arose from the same subject matter and whether the headteacher could be a public officer for the purposes of misfeasance in public office.

1. Appeal dismissed. The County Court had correctly struck out the second county court claim as an abuse of process under CPR 3.4(2)(b) and the rule in Henderson v Henderson.
2. Under Johnson v Gore Wood & Co (a firm), the court must make a broad, merits-based judgment on all the circumstances. The question is whether bringing the later issue amounts to misuse of the court process. It is not enough that the issue could have been raised earlier, but the same subject matter, repeated harassment, finality, and efficient use of judicial resources are material considerations.
3. The damages claims arose from the same events and subject matter as the judicial review claim. The appellants knew of the Article 8 and misfeasance allegations before the judicial review was compromised. They could have pleaded the damages claims in that claim, and there was no evidence that later disclosure was necessary to formulate them. If required, the damages issues could have been case-managed or transferred after determination of the judicial review.
4. The appellants had no duty to warn the respondent of a potential later claim. Their failure to disclose their known intention to pursue damages was nevertheless a relevant circumstance. Their explanation that they would first obtain a settlement or quashing order was unjustified on the evidence. The respondent reasonably understood the consent order to conclude the dispute.
5. The judge had considered the material factors, applied the correct test, and reached a conclusion open to him. There was no material error of principle, omission, or plainly wrong conclusion.
6. The misfeasance amendment and proposed joinder therefore failed independently because the underlying claim had been struck out. In any event, the headteacher was not shown to be a public officer. Applying R v Mitchell and Brent London Borough Council v Davies, his duty to report safeguarding concerns was an employment duty owed to the child, not a governmental responsibility engaging the additional public interest required by the test.

• High Court (King’s Bench Division): dismissed the appeal from the County Court at Brighton. The order striking out the claim as an abuse of process and refusing the proposed amendments was upheld.
• County Court at Brighton: HHJ Simpkiss struck out the claim on 16 December 2024, following judgment handed down on 7 August 2024, and refused the applications to amend and join the governing body.