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Abuse of process

Litigation Letter

Abuse of process

Walbrook Trustees (Jersey Ltd) and others v Fattal and others [2009] EWCA Civ 297; LSG 15 October p16

To strike out a claim for abuse of process it is not enough to simply show that the claim could have been brought in earlier proceedings. It is wrong to hold that because the matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach. The court must consider two competing interests: the public interest in ensuring that there is finality in litigation and the private interest of the claimant who is seeking access to the courts. The crucial question is whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it an issue that could have been raised before. The court will consider applications to strike out for abuse of process by balancing the competing interests while at the same time taking into account a range of relevant factors including matters such as whether the new issues raised depend on facts of which the parties seeking to rely on them was, for some genuine reason, unaware at the time of the initial proceedings and how quickly that party reacted in bringing those proceedings after discovering the new facts which gave rise to the further claim.

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