England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		17 July 2009

1. MR JUSTICE BURNETT: The claimant, Hi-Lite Electrical Limited (Hi-Lite) seeks an indemnity or contribution from Wolseley UK Limited (Wolseley) in respect of its liability to Obsession Hair and Day Spa Limited (Obsession) arising from a fire which occurred on 24 January 2006 at their premises in Birmingham. This is the trial of a preliminary issue whether Wolseley's pleaded non-admission of being the cause of the fire amounts to an abuse of process.
2. Obsession sued Hi-Lite. Hi-Lite had fitted a submersible water pump known as a W300 in Obsession's premises. It was Obsession's case that the pump was the cause of the fire. Hi-Lite denied that. The pump had been purchased from Wolseley who traded through a chain of retail outlets known as Pipeline Centre. Wolseley were not joined as Part 20 defendants in the proceedings between Obsession and Hi-Lite.
3. On 11 December 2008 HHJ McKenna, sitting as a Deputy High Court Judge, gave judgment for Obsession against Hi-Lite with damages to be assessed. He concluded that the pump was the cause of the fire, in particular because of a fracturing of a wire in the float cable of the pump which resulted from the cable being shortened by an employee of Hi-Lite. The trial had occupied four days from 16 to 18 June 2008, two days in September, 22 and 23 September and two days in October, 15 and 23 October.
4. These proceedings for indemnity or contribution were issued on 17 March 2009. The Particulars of Claim summarise the nature of the claim in paragraph 49:

"On the basis of the judgment the fire and any damages payable by the claimant to OHDS was caused on the basis of the judgment by Wolseley's breach of the sale contract and/or statutory duty and/or the EUCC and/or the machinery directive."

5. The statutory duty referred to was that arising under the Electrical Equipment (Safety) Regulations 1994, the machinery directive is Directive 98/37/EC and the EUCC is the European Union Certificate of Conformity. By paragraph 43 of its defence, Wolseley plead as follows:

"Wolseley is investigating the cause of the fire. It is not admitted that the fire was caused by the W300 or that, if it was caused by the W300, the mechanism of the fire was as found by HHJ McKenna. Hi-Lite is required to prove the cause of the fire."

6. It is that pleading which gives rise to the trial of the preliminary issue before me. Hi- Lite contends that it is an abuse of process in the light of the history of the claim by Obsession for Wolseley to dispute the findings of fact made by Judge McKenna as to the cause of the fire.
7. Before turning to the features of that history which Hi-Lite rely upon, a number of other matters should be noted. First, although Obsession's damages are yet to be assessed, the claim including interest has been advanced at £4.5 million. The costs claimed by Obsession in respect of the trial on liability exceed £600,000. They will be subject to a detailed assessment.
8. Secondly, evidence filed on behalf of Wolseley in these proceedings shows that an expert was instructed on their behalf to investigate the cause of the fire in February 2009. That expert's investigations continue. It was for that reason no doubt that Mr Moody, who appears for Wolseley, used the language of non-admission rather than denial in the defence. It is clear from Judge McKenna's judgment that there was a very real issue about the cause of the fire, keenly contested by the experts called by Obsession and Hi-Lite.
9. Thirdly, Wolseley retailed the pump but did not manufacture it. The manufacturers were a company called Leader Pump Group of Italy. A letter before action has been written on behalf of Wolseley to the Leader Group and Part 20 proceedings will, I am told, be issued. In essence, as one would expect in a case of this sort, any liability resulting from a defect in the equipment would, if possible, be passed up the chain.
10. Fourthly, in 2006 there was correspondence involving Wolseley's insurers, solicitors for Obsession and Hi-Lite's insurers. It culminated in a letter dated 9 October 2006 from Wolseley's insurers to those of Hi-Lite. It included the following:

"We understand from solicitors acting for Obsession that their expert evidence does not suggest any manufacturing defect with the pump although we have not seen the evidence they rely on.

If you have any evidence to support an argument that the product was defective we await to hear from you, failing which this would seem to be a claim for you to attend to." (Quote unchecked)

11. The reference to Obsession's expert evidence reflected the fact that, whilst they suggested that the pump caused the fire, that was because an employee of Hi-Lite shortened its float cable. There matters rested. Proceedings were issued in 2007 and progressed relatively quickly towards a trial date which in due course was set for 16 June 2008, with a time estimate of three days. Wolseley had no involvement whatsoever in those proceedings.
12. Mr Black QC, who appears for Hi-Lite, relies upon three letters written by Hi-Lite's solicitors to Wolseley's insurers in May, June and July 2008 as the foundation for his argument on abuse. On Friday, 30 May 2008, the solicitors wrote to the insurers. That letter arrived on Monday, 2 June, as is recorded by a received date stamp on the copy provided by the defendant, Wolseley. That that was precisely two weeks before the start of the trial. Having recited the background and noted the earlier correspondence to which I have already referred, the letter continued:

"Obsession's principal allegations are that the pump was not suitable for the use for which it was supplied and was not properly installed. Hi- Lite denies these allegations. Their defence is supported by expert forensic evidence which advises that the pump was not the seat of the fire and furthermore was both suitable and correctly installed. In the light of this evidence Hi-Lite has refrained from commencing a Part 20 claim against Wolseley Plc.

Obsession's claim has recently been listed for a trial on liability only on 16, 17 and 18 June. If, notwithstanding its defence, Hi-Lite is found liable then, subject to the specific findings of fact (such as that the pump was defective) upon which the court bases its judgment, Hi-Lite intends to pursue Wolseley Plc for an indemnity against its liability to Obsession.

You will appreciate that it is in the interests of both yourselves and our client that Obsession's claim should fail. In the circumstances we invite you to suggest any other matters which may be raised in defence of Obsession's claim, other than those which have been pursued to date in the light of Hi-Lite's forensic evidence. Please note that insofar as you fail to respond to this request but then raise matters in any subsequent claim brought by Hi-Lite against Wolseley Plc (or any subsidiary company) which could have been raised at this stage, we specifically reserve our client's right to:

contend that you should be estopped from relying upon such matters; and

refer this correspondence to the court when it considers the costs of any proceedings between Hi-Lite and Wolseley Plc.

To assist your consideration of this matter we enclose copies of the pleadings and the forensic evidence, as listed in the attached schedule. Furthermore, if it will also be of assistance, we will provide copies of the parties' disclosure and lay witness evidence. For the avoidance of doubt all of this material is disclosed to you so that you may consider Obsession's claim against Hi-Lite and then indicate whether there are any additional matters which Hi-Lite should raise in its defence; accordingly it should not be used for any other purposes."

That quotation is from pages 17 and 18 of the bundle for the preliminary hearing.

13. So it was that exactly two weeks before the commencement of the trial, in which Wolseley was not a party, the insurers were being invited to suggest other matters that might assist Hi-Lite's defence. Wolseley had no solicitors acting for it, had not investigated the fire and had no expert to hand. It was, in my judgment, both unrealistic and unreasonable to expect Wolseley to respond in a handful of days to such a request. Furthermore, had they produced any other material a handful of days before trial, it is very difficult indeed to see how that might have been used in a trial given the nature of the claim and the stage it had reached. It is verging on the inconceivable that Hi-Lite would have been given leave to introduce new material or been given an adjournment to allow them to do so on proper notice. To be fair Mr Black, in the course of his submissions, recognised that difficulty. The key to this letter, as it seems to me, is in the threat of indemnity proceedings should Obsession's claim be successful and the attempt to foreshadow the precise argument now being run by Hi-Lite.
14. That letter was not acknowledged or responded to. It should have been.
15. On 20 June 2008 the solicitors wrote again noting that the trial had been adjourned to 22 September. Although the letter did not state that the trial had been adjourned part- heard we know that the adjournment had occurred after four days of evidence. That letter too was not acknowledged as it should have been. On 22 July 2008 a third letter was sent. It contained a request in the following terms (page 21 of the bundle):

"As a matter of courtesy we are writing to advise that our expert witness will shortly be contacting your insured to enquire whether, with the exception of this particular case, they have ever known of a fire being caused by anything related to a submersible pump and in particular whether they have any knowledge of fires being caused in such pumps by arcing and/or fracturing of the float switch cable.

Neither our lay client nor our expert witness has ever known of a fire occurring in a submersible pump. Due to the very fact that such pumps are submersed in water, it seems improbable that they should catch fire. Therefore to test the credibility of the allegation that the above fire originated in a submersible water pump (supplied by your insured) our expert witness is undertaking an extensive survey to see whether he can find any evidence of similar occurrences. To date he has found no such evidence and if your insured is able to answer the above question in the negative, then that is likely to assist our client's defence and reduce the risk that our client will have to commence a contribution claim against your insured."

16. That letter also was not acknowledged. However, it is clear from a supplementary report prepared by Hi-Lite's expert that he was indeed in touch directly with Wolseley and provided with the information he requested. There was no further correspondence until after Judge McKenna had delivered his judgment.
17. On 22 December 2008 the solicitors for Hi-Lite wrote to the insurers of Wolseley explaining what had happened and seeking an indemnity. On 31 December 2008, that letter was responded to by Messrs Kennedys who have since then been acting for Wolseley. Hi-Lite sought permission to appeal the decision of Judge McKenna. In the course of their attempts to seek permission, they sought assistance from Wolseley and even requested that Wolseley fund the appeal proceedings. Laws LJ refused permission in circumstances which are far from surprising given the nature of Judge McKenna's judgment.
18. Mr Black submits that by failing to acknowledge or reply to the three letters in the summer of 2008, Wolseley's conduct was such that their current stance in these proceedings of not admitting the cause of the fire amounts to an abuse. He submits that it makes no difference that the course of the trial before Judge McKenna would very probably have been no different. It is abusive, he submits, for Wolseley now to investigate the cause of the fire when they were put on notice in June 2008 that they might need to do so. His criticisms of Wolseley's conduct were distilled to six propositions contained in his Skeleton Argument:

"(1) Wolseley has produced no reasoned basis for disputing any of the findings. Wolseley merely claims to be investigating the cause of the fire. In particular it has not produced any expert evidence to challenge the expert evidence accepted by the judge or to indicate that his findings of fact based upon inferences arising from that expert evidence are arguably wrong. It has not produced any factual evidence to contradict the judge's primary non-inferential findings of fact.

(2) Wolseley's insurers have had over three years since at least mid- 2006 to investigate the cause of the fire but appear to have refused to do so.

(3) Wolseley's insurers ignored repeated requests by Hi-Lite's solicitors for technical assistance in defending the Obsession action, in particular when Wolseley was the importer/distributor of the pump and had access to knowledge and information that was not available to Hi-Lite.

(4) If it considered that Hi-Lite was not taking all appropriate points with regard to the cause of the fire, Wolseley could have applied to be joined as a party to the Obsession action. It did not do so. It must therefore be assumed that Wolseley was content that Hi- Lite was taking all the necessary points. Wolseley did not supply any assistance to Hi-Lite in its attempts to obtain permission to appeal the judgment in the Obsession action, in particular it failed to respond to Hi-Lite's invitation to comment on the draft grounds of appeal and supporting Skeleton Argument.

(5) Wolseley neither confirmed that it did not challenge the judge's findings of fact, nor did it agree to indemnify Hi-Lite in respect of the costs of an oral application to the Court of Appeal for permission to appeal."

(Quote unchecked)

Those are found in paragraph 14 of the Skeleton Argument starting at page 11.

19. In my judgment, the limit of legitimate criticism that can be made of Wolseley is that their insurers did not acknowledge the three letters to which I have referred. The failure to acknowledge the last was immaterial, given that Hi-Lite's expert made contact with Wolseley direct and received the assistance he required. It is to my mind inconceivable that anything useful would or could have been provided by Wolseley to Hi-Lite for the trial in 2008. It must have been obvious to those advising Hi-Lite that the two week timeframe was on any view inadequate to obtain any detailed answer.
20. I see nothing unreasonable in Wolseley investigating the cause of the fire now as it is currently doing. It began its investigations after it had been notified that contribution or indemnity proceedings were to be started. There is nothing, in my judgment, in the point that as at the date of the defence and as at today's date Wolseley are in the position of not admitting the cause rather than denying it. Mr Black readily accepted that if the pleading contained a denial (whatever its basis) his application would be the same.
21. There was no reason, given the correspondence to which I have referred, for Wolseley to investigate the fire in 2006. To suggest that Wolseley ignored repeated requests for help rather overstates the position. To suggest that Wolseley should have applied to be joined as a party following receipt of the letter dated 30 May 2008 is, in my judgment, unreal. There was no reason for Wolseley to involve itself in Hi-Lite's attempts to appeal Judge McKenna's judgment. I note in any event that the correspondence shows that Hi-Lite itself recognised that an appeal would be a very difficult row to hoe.
22. In reality, as I have said, the criticism of Wolseley can be distilled to the proposition that it failed to respond to what I consider to be a rather opportunistic letter which it received two weeks before the trial in which Wolseley had had no prior involvement and in respect of which any response could not in the timescale have made any difference. A response to the chasing letter of 20 June, while the trial stood adjourned, similarly could have made no practical difference to the course of the trial.
23. Mr Black understandably has focused upon Wolseley's failure to acknowledge the correspondence. However, it should be remembered that this whole problem would not have arisen had Wolseley been joined as Part 20 defendants in the earlier proceedings. There may well have been good reason why that did not happen. The expansion of proceedings in this way is not always desirable and the question of joining Part 20 defendants calls for careful consideration and judgment on the part of the legal advisors concerned. Alternatively, Hi-Lite might have followed another common practice of seeking agreement from the potential Part 20 defendant to be bound by the decision and findings in the prior action. An unhelpful response to such a request might then itself have prompted the Part 20 proceedings.
24. Mr Black recognised that in the absence of the letters written on behalf of Hi-Lite in May, June and July 2008 he would have no argument on abuse. He did not submit that Wolseley could be bound by Judge McKenna's findings in the absence of some abusive conduct on their part. So, as it seems to me, the first question is whether the failure to answer the correspondence amounted to behaviour which can properly be described as abusive. It was, as I have noted, discourteous not to acknowledge the correspondence.
25. Mr Black submitted that a simple analysis required consideration of Wolseley's conduct between June and perhaps September 2008. That amounted to standing back and doing nothing when alerted to the possibility of indemnity proceedings and faced with a request for further points that might assist Hi-Lite. I see nothing abusive in Wolseley's conduct. They were not parties to the proceedings. They had not investigated the fire. There was no reason for them to have done so. They were, in my view, faced with an attempt to bounce them into the position of being bound by the findings in the proceedings in just the same way as if they were Part 20 defendants, when they were not. They were entitled, in my judgment, to keep their powder dry and to see what happened.
26. That being my conclusion, the preliminary issue must be determined in favour of Wolseley. Although it may not be strictly necessary for me to do so, I shall consider

relatively briefly the legal submissions advanced by both counsel relating to the proper approach in cases such as these. This case is unusual in that the party against whom it is being said that he is bound by earlier judicial findings was not a party to the earlier proceedings. Counsel's researchers have not discovered a case where any attempt has been made to suggest that it would be abusive for a party to dispute the conclusions of earlier proceedings in which he was not a party, at least if he is a defendant in subsequent proceedings.

27. The authorities to which counsel referred me spring from two lines of cases, both concerning abuse but stemming from different circumstances. The first line was born of Henderson v Henderson [1843] 3 Hare 100 and concerns cases in which a litigant brings a second set of proceedings arising from the same subject matter as the first. The second line of authority concerns cases in which a party to proceedings mounts a collateral attack upon earlier proceedings in which he has been involved. Hunter v The Chief Constable of West Midlands Police and Others [1982] AC 529 is the most well known example of the latter.
28. The rule in Henderson's case was authoritatively considered by the House of Lords in Johnson v Gore Wood [2002] 2 AC 1. It concluded that the rule had been understood to require parties in litigation to bring their whole case before the court so that all aspects could finally be decided. In the absence of special circumstances, the parties could not return to court in new proceedings to deal with matters that could have been raised in the earlier proceedings. The rule had been applied with increasing rigour in the years before the House of Lords considered its application in Johnson. Lord Bingham's conclusions, with which Lord Goth of Cheveley, Lord Cooke of Thorndon and Lord Hutton agreed, are found at pages 30 and 31 of the report:

"It may very well be as has now been convincingly argued .... that what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V-C made, which was addressed to res judicata. But Henderson v Henderson abuse of process is now understood, although separate and distinct from the 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 alleging abuse) 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 to 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 of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not .... While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances."

29. Relying on that passage, Mr Black submits that in all cases of suggested abuse the court should adopt a broad merits based approach recognising that the categories of abuse are not closed. It is nonetheless important in my judgment to remember that Lord Bingham's attention in this passage was directed towards factual circumstances which arise in Henderson type cases and his object was to emphasise that the approach to abuse should not be mechanistic.
30. The preliminary issue before me is not based upon the rule in Henderson's case. Lord Bingham's formulation, namely to ask whether in all the circumstances a parties' conduct is an abuse, is no doubt of general application but other authorities show that in circumstances where abuse arguments are advanced outside the Henderson arena particular considerations inform that general question in given circumstances. Hunter was a case in which a collateral attack was mounted on a criminal conviction. Indeed, as Lord Diplock noted, the purpose of the action was not in truth to obtain damages from the Chief Constable but to undermine the conviction. The plaintiff had been the defendant in the criminal proceedings. The question identified by Lord Diplock at 536E in his speech was whether it would be manifestly unfair to the chief constable to have to meet in the civil action the same case as was met in the Crown Court trial, first in a voir dire before the judge and then again before the jury. The conclusion was that it was not.
31. In the course of his speech Lord Diplock referred to section 11 of the Civil Evidence Act 1968. That effected a statutory reversal of Hollington v Hewthorn [1943] KB 587 in which the Court of Appeal had concluded that a conviction was inadmissible against a defendant in subsequent criminal proceedings. To use the language of the day, they considered it res inter alios acta. Section 11 made the conviction admissible as evidence but did not make it conclusive evidence. The statute allows the defendant to prove the contrary if he can.
32. While there is no authority which deals with circumstances similar to those which arise in the case before me, there are a number of previous decisions in which a party has sought to rely upon a finding made in previous proceedings to which he had not been a party. In Secretary of State for Trade and Industry v Bairstow [2004] Ch 1 the Secretary of State attempted, in the course of director's disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he was a party but the Secretary of State not. In Conlon v Simms [2008] 1 WLR 484 the defendant had been in partnership with the claimants in a solicitors' practice. The claimants sought to rely upon findings of dishonesty made against the defendant in proceedings before the Solicitors Disciplinary Tribunal. In Nesbitt v Holt [2007] PNLR 24 the claimant sued the Citizens Advice Bureau for negligence in connection with the settlement of an Employment Tribunal claim. It was the claimant's contention that the settlement had been agreed without his consent or authority. He had unsuccessfully sought to set aside that settlement in the Employment Tribunal on the same basis and failed. The Citizens Advice Bureau sought to strike out his claim as an abuse on the grounds that it amounted to a collateral attack upon the Employment Tribunal's conclusions.
33. In each of those three cases the party suggesting that it was abusive for the other to question the conclusion in earlier proceedings failed. That, it must be emphasised, was in circumstances where that other had been a party to the earlier proceedings. The principal identified in Bairstow is found at paragraph 38 in the judgment of Sir Andrew Morritt Vice-Chancellor:

"In my view these cases establish the following propositions:

A collateral attack on an earlier decision of the court of competent jurisdiction may be but is not necessarily an abuse of the process of the court.

If the earlier decision is that of a court exercising a criminal jurisdiction then, because of the terms of sections 11 to 13 of the Civil Evidence Act 1968, the conviction will be conclusive in the case of later defamation proceedings but will constitute prima facie evidence only in the case of other civil proceedings.

If the earlier decision is that of a court exercising a civil jurisdiction then it is binding on the parties to that action and their privies in any later civil proceedings.

If the parties to the later civil proceedings were not parties to or privies of those who were parties to the earlier proceedings, then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if:

it would be manifestly unfair to a party to the later proceedings that the same issues should be relitigated; or

to permit such relitigation would bring the administration of justice into disrepute."

(Quote unchecked)

34. Mr Black suggests that Bairstow was wrongly decided and was per incuriam because, not least, Johnson does not appear to have been cited. It was not referred to. The difficulty he faces at least at this level is that both Conlon and Nesbitt considered the Vice-Chancellor's formulation in Bairstow and applied it. The discussion of the applicable principles in Conlon are found in the judgment of Jonathan Parker LJ at paragraphs [137] to [154] and Moore-Bick LJ at paragraphs [165] to [174]. In Nesbitt v Hall Smith LJ, having cited paragraph 38 of Bairstow, went on to say this:

"It seems to us that that passage helpfully emphasises where the onus lies in the case in which a party alleges that the litigation is an abuse of process but there has not yet been any litigation between the parties. Indeed, Lord Bingham had made it plain that the onus lay on the party alleging abuse even where there had been litigation between the parties. In those cases, he said that there should be a "broad merits-based judgment". But in the present case, there has been no previous litigation between the parties and it seems to us the onus lying on the party alleging abuse is substantially heavier as a result. Bairstow shows that, where there has been no other litigation between the parties, there will only be an abuse of process if it would be manifestly unfair to the defendant to allow the action to proceed."

35. The Court of Appeal in Nesbitt was recognising that in Henderson type cases the starting point was that a party was facing litigation for the second time at the instigation of another arising out of the same facts. A broad-based merits test to the question whether the second action was an abuse was called for. In cases such as Bairstow, Conlon and Nesbitt where a stranger to the earlier litigation was seeking to rely upon its findings, the starting point was different. So too, therefore, were the material considerations. That does not, in my judgment, mean that Lord Bingham's formulation in Johnson that one should ask, "Whether in all the circumstances a parties' conduct is an abuse" is to be overlooked in such cases. However, a critical circumstance in these cases was that the parties seeking to rely upon an earlier finding were strangers to those earlier proceedings. That, as it seems to me, fully justifies the approach suggested in Bairstow.
36. Great Wealth Telecom Limited v Simtel Communications Limited is a decision of HHJ Mackie QC sitting as a deputy judge of the High Court in the Chancery Division. Great Wealth sued Simtel, their administrators, and four other defendants for money paid to Simtel which had been lost when the company went into administrative receivership. The essence of the claim was that the receivership had been unlawfully crafted to catch their money with the result that Great Wealth received neither the goods for which they had paid nor received their money back. In earlier High Court proceedings, to which Great Wealth were not a party, an identical issue had arisen. The precise circumstances of how it arose are immaterial. The fifth to seventh defendants had been witnesses in that earlier action and their evidence had been accepted by Forbes J. To succeed in its action, Great Wealth would have to cover precisely the same ground with precisely the same witnesses but achieve a different result.
37. The judgment of HHJ Mackie suggests that there would be no more evidence available, indeed could be no more evidence available. So it was that the defendants sought to strike out the claim as an abuse suggesting that it was manifestly unfair to expect them to have to give evidence of the same matters again with the risk of a different outcome. Their application was unsuccessful. Judge Mackie concluded that because Great Wealth had not been a party to the earlier litigation, they could not be stopped from proceeding even though to succeed in the action would require another judge to take a different view of the same issues. His conclusion followed a review of relevant authority. In short, he said:

"A jurisdiction to stop someone having a second go does not, as the law

stands, prevent a party from having a first go."

38. Mr Black was critical of that broad conclusion. It had depended upon the learned judge's analysis of paragraph 38 of Bairstow in the light of the anterior discussion in that judgment. His conclusion was that Bairstow was concerned only with cases which involved a party having a second go. That plainly was what was in issue in Bairstow itself since the director, Mr Bairstow, was seeking to dispute the earlier findings in the wrongful dismissal case albeit doing so as a defendant in the case before the Vice Chancellor. Mr Black's submission was that the language in Bairstow, itself an unwarranted gloss on Lord Bingham's formulation in Johnson, was of general application and it mattered not whether the party concerned had been involved in earlier proceedings.
39. I have already concluded that I do not consider that Wolseley's behaviour in this case was abusive. Furthermore, looking at it through the language of Bairstow, I do not consider that it would be 'manifestly unfair' to Hi-Lite to allow Wolseley to challenge in these proceedings Judge McKenna's earlier conclusions on causation. On the contrary, I consider that it would be unfair not to allow them to do so, given that they were not parties to the earlier litigation and to have had no real opportunity to challenge those conclusions hitherto.
40. The unfairness to Wolseley would be exacerbated by the real possibility that they might be fixed with Judge McKenna's findings viv a vis Hi-Lite, but that the Leader Group, who are to be joined in Part 20 proceedings, would be free to challenge them. Furthermore, the problem faced by Hi-Lite, if it turns out to be one once Wolseley's evidence has been collected, is one which is of their own making. Hi-Lite made a conscious decision, no doubt for good reason, not to join Wolseley in the earlier proceedings or otherwise take steps to protect their position. There is no unfairness in exposing Hi-Lite to the risk of having to relitigate that issue in the course of these new proceedings. I am also unable to see that the administration of justice would be brought into disrepute by allowing Wolseley to dispute those findings. I should note that Mr Black's submissions rested heavily on the proposition that his client would or might spend a lot of money relitigating that issue. He submitted that, whilst if they were successful in doing so, they could expect to recover their costs that would only provide partial recovery. That too seems to me to be a consequence of the earlier decision taken by Hi-Lite not to involve Wolseley sooner.
41. In approaching these questions through the Bairstow test, I have assumed it applies to cases where the person against whom abuse is alleged was not a party to the earlier proceedings. I am not to be taken as suggesting that it is the necessarily the correct legal approach without some gloss, nor am I to be taken to be disagreeing with the conclusion of Judge Mackie. I have approached it in that way without accepting Mr Black's invitation to express my agreement or disagreement with Judge Mackie's conclusions. In the light of my approach to the questions raised, it is unnecessary for me to do so. In particular it is not necessary for me to decide whether a non-party to the earlier proceedings could never be denied the opportunity on grounds of abuse to litigate an issue determined earlier. It may be that considerations of fairness and the repute of the justice system applied in the context of a party never having had 'a first go' may deliver a similar outcome.
42. For these reasons I determine the preliminary issue in favour of Wolesley. Their pleading does not amount to an abuse of process. They are entitled to question the findings of Judge Mckenna in these proceedings.
43. There is an application for costs of the preliminary issue. Mr Black submits that given that the issue concerns enabling Wolseley to dispute causation there remains the possibility that Wolseley will either (a) abandon the point on causation, or (b) maintain it but lose in due course. In those circumstances he submits that the proper order should be either costs in the case or defendant's costs in the case.
44. Mr Moody, on the other hand, submits that it was the claimants, Hi-Lite, who sought to shut his clients out from the possibility of disputing causation, that is why there has been a preliminary issue hearing. They lost and they should pay the costs. It seems to me that this is a discrete issue that was raised by Hi-Lite first in the pleadings and then pursued to a preliminary hearing. They have on my findings been unsuccessful in the preliminary hearing and in my judgment Wolseley are entitled to their costs of the preliminary hearing. The costs claimed amount to £15,381.20. No issue is raised on quantum and in those circumstances I assess Wolseley's costs at £15,381.20 payable within 28 days.