Abuse of process

Stuart v Goldberg Linde (a firm) and another CA TLR 23 January

A claimant who keeps a second claim against the same defendant up his sleeve while prosecuting on the first is at high risk of being held to have abused the court’s process. ‘Putting his cards on the table’ does not simply mean warning the defendant that another action was or might be in the pipeline. It meant making it possible for the court to manage the issues so as to be fair to both sides. Parties are not to keep future claims secret merely because a second claim might involve other issues. The proper course is for the parties to put their cards on the table, so that no one was taken by surprise and the appropriate course in case management terms could be considered by the judge. In particular, parties are not to keep quiet in the hope of improving their position in respect of a claim arising out of similar facts or evidence in the future. Nor should they do so simply because a second claim might involve other complex issues. On the contrary, they should come clean, so that the court could decide whether one or more trials was required and when. The time for such a decision to be taken is before there was a trial of any of the issues. In that way the underlying approach of the Civil Procedure Rules, namely that of co-operation between the parties, robust case management and disposing of cases, including particular issues, justly could be forwarded and not frustrated. In the present case, the claimant ought to have notified the defendants and the court of one of the proposed claims. However, the question was not whether the claimant acted unreasonably in not raising the claim, but whether his failure to do so, was an abuse of process. Having regard to all the circumstances, judged at the time the second action was brought, the court was not persuaded that the action was an abuse. The strength or weakness of the claim, and any delay in bringing it, were generally not relevant to the question whether the claim was an abuse of process because it should have been included in earlier proceedings. Neither was there a general principle that a potential claimant is under a duty to exercise reasonable diligence, not yet having brought proceedings asserting a particular claim, to find out the facts relevant to whether he had or might have such a claim. Further it was not right to say as a general proposition of law, that where a claimant in existing proceedings came to know, in the course of those proceedings, from information provided by the defendant, of an additional cause of action against the defendant, which was quite different from that asserted in his existing claim and one which it would not be reasonable in the circumstances, to expect him to seek to combine with that existing claim, he had to inform the defendant of the fact that he was contemplating bringing such a claim in future before he brought his existing proceedings to trial. Different facts might lead to a different conclusion. Accordingly in the present case, it was not an abuse of the process of the court for the claimant to bring the second claims, having brought the earlier action and despite his having been aware, before the trial of the first action, that some of the facts relevant to the claims, and not having warned the defendant of the possibility of later proceedings for a claim of that kind.