England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London WC2 Friday, 23rd February 2001

1. LORD JUSTICE TUCKEY: This is an application by the defendant, Edelgard Boethern, for permission to appeal from an order of Judge Uziell-Hamilton made in the West London County Court on 13th October 2000 in which she dismissed the applicant's appeal from an order of District Judge Madge striking out five paragraphs of her Part 20 claim. So this is a second appeal where permission will only be given if the case raises an important point of principle or practice or there is some other compelling reason for doing so.
2. The defendant is the claimant's tenant of a flat in a block at 5 Queensberry Place, London SW7 and has been for a number of years. In 1998 the claimant started proceedings for possession against the defendant which she successfully defended. In those proceedings she counterclaimed, making a series of allegations about the state of her flat going back to 1992, including allegations about the consequences of building work which had started in October 1997 which she said had caused constant noise and dirt and left her without heating or hot water for a time. Her statement - exchanged for the purposes of that case - gave details of these complaints. Of the building works, which were not completed until May 1998, she said:

"Throughout the period of works there was constant dust and noise. In addition, an extension was built above my kitchen which blocked out some of the light to my flat."

3. On 8th June 1999 those proceedings were settled on terms that the claimant consented to judgment against them for £6,000 on the counterclaim and agreed to carry out a number of specified repairs to the flat. The judgment was satisfied and the repairs were carried out to the defendant's satisfaction.
4. In the present proceedings the claimant again claimed possession of the flat. Their claim was dismissed by consent but again the defendant counterclaimed. Further complaints about the state of the flat since July 1999 are made. The paragraphs which were struck out relate to things which happened before that time. It is alleged that four extensions have been built which interfere with the defendant's light and because they overlook her flat destroy her privacy and quiet enjoyment. These extensions are alleged to have been built before 1996, in 1996 and (two) in March 1998 during the works referred to in the earlier proceedings.
5. The claimant applied to strike out these allegations on the principle in Henderson v Henderson, that is to say, these were allegations which could and should have been made in the earlier proceedings where they had been touched on, so it was an abuse of process to rely on them in the present proceedings. The district judge struck out the offending paragraphs on this basis. The judge agreed. Her reasons for doing so are, to say the least, equivocal. She appears to have thought that part of the present claim had been compromised by the earlier orders, but she did say:

"It is my judgment that in seeking to raise them again in these proceedings, it is in effect an abuse of process, in the same way as District Judge Madge adjudged it to be. For that reason it seems to me that the appeal fails."

6. She also accepted that as interference with a right to light is a continuing nuisance it was open to the defendant to make a claim on this basis.
7. In his skeleton argument in support of this application Mr Janusz analyses recent authority in support of the submission that the Henderson v Henderson principle is not inflexible. He was right about this, as the House of Lords held in Johnson v Gore Wood [2001] 2 WLR 72. At page 90 Lord Bingham said:

"But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same;that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party allegedly abused) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a 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 for what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts in the case, focusing attention on the crucial question whether, in all the circumstances, a party is abusing the process of the court by seeking to raise before it the issue which could have been raised before."

8. Lord Bingham also made it clear in a later passage in his speech that the principle applied equally to claims like this which resulted in compromise rather than judgment.
9. Mr Janusz submits that this is not a case of abuse. The new claims were quite different in character from those made in the earlier proceedings. No claim for interference with the right to light was made and the building of the earlier extensions was not mentioned at all. He says that the district judge did not really consider the merits of the application at all, but merely said that the case should be struck out because the allegation could have been made and therefore it should have been, and that the circuit judge misunderstood the position and reached her decision largely on the basis that the claims had been compromised when that obviously was not the case. So he submits that there have not been two decisions because the first was inadequate and the second was flawed and this court should be more willing to accede to his application albeit that this a second appeal. Moreover, he submits that there are compelling reasons why permission should be granted because of the consequences of these decisions in terms of costs orders which have been made against the applicant and the fact that what is left of the claim, which is the allegations relating to problems since July 1999 and the claim for continuing nuisance as a result of her being deprived of the right to light, put this claim on the small claims track where she will be unable to recover costs if successful. Finally, Mr Janusz submits that this court should consider so as to decide whether striking out pleadings on the basis that they are an abuse of process offends against Article 6 of the Convention on Human Rights.
10. Attractively and cogently though these arguments are put, I do not accept them. The earlier counterclaim contained a catalogue of complaints going back to 1992. The effect of the works involved in building the 1998 extensions was relied on and the claimant's statement referred to a loss of light. It was incumbent, in my judgment, for the defendant to bring all her complaints of this kind forward at the same time and her attempt to do so next time was an abuse in the way in which this concept is now understood and defined. Both judges reached this conclusion, and I think they were right. The consequences of those decisions do not provide a compelling reason for this court to consider the matter further.
11. Neither Lord Bingham nor Lord Millett, in the passage which Mr Janusz has referred to in Johnson v Gore Wood, suggest that the court's power to strike out claims for abuse of process in appropriate cases offend against Article 6. So I do not think this point justifies consideration by this court.
12. For those reasons I remain of the view expressed on paper that this is not a case in which the applicant should have permission to appeal. Her application is therefore refused.
Order: Application refused