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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> McNally v McWilliams & Anor [2001] NIQB 8 (23 February 2001)
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Cite as: [2001] NIQB 8
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Neutral Citation no. [2001] NIQB 8
Ref:
SHEE3341
Judgment: approved by the Court for handing down
Delivered:
23.02.2001
(subject to editorial corrections)
BETWEEN:
Plaintiff
Defendants
SHEIL J
This matter comes before the court by way of trial of a preliminary issue as to whether the plaintiff's action, 1999 No. 00137, should be struck out as an abuse of the process of the court.
The plaintiff's action arises out of a road traffic accident which occurred on 21 January 1996 when a motor car driven by Mary McWilliams was in collision with a motor car driven by the plaintiff's husband, Ciaran McNally, who died at the scene of the accident as a result of the injuries sustained by him. The plaintiff was a passenger in the car driven by her late husband. She sustained personal injuries, loss and damage which are the subject of the present action (hereinafter referred to as "the 3rd action") in which she alleges negligence against the first defendant and also against the estate of her late husband, the second defendant. The writ of summons was issued on 13 January 1999, just prior to the expiration of the three year primary limitation period.
There had been two other actions arising out of this accident. In action 1996 No. 2470 (hereinafter referred to as "the 1st action") Mary McWilliams brought an action in negligence against the estate of Ciaran McNally deceased claiming damages for personal injuries, loss and damage sustained by her by reason of the alleged negligence of the deceased. In the second action, 1997 No. 1240 (hereinafter referred to as "the 2nd action"), Deirdre McNally as personal representative of the estate of her late husband, Ciaran McNally, and as his sole dependant, brought an action against Mary McWilliams for alleged negligence confined to damages :
(a) on behalf of the estate of the deceased for loss and damage to the said estate pursuant to the Law Reform (Miscellaneous Provisions) Act (Northern Ireland) 1937;
(b) on her own behalf as the sole dependant of the deceased pursuant to the provisions of the Fatal Accidents (Northern Ireland) Order 1977; and
(c) for damages for bereavement pursuant to the said Order of 1977.
She did not include a claim in respect of her own personal injuries and consequential loss and damage in the 2nd action in which she named Mary McWilliams as sole defendant..
The 1st and 2nd actions came on for hearing on 29 September 1998 before the same judge, it having been agreed that they would both be heard together. The 1st action was stayed on terms endorsed on counsels' briefs. The 2nd action was settled for £75,000.
From early on in the course of the litigation arising out of this accident, it was appreciated by all concerned that Deirdre McNally, the plaintiff in the present action (the 3rd action), had a claim in respect of her own personal injuries and consequential loss and damage sustained by her in the accident on 21 January 1996 as appears from the correspondence produced to the court. On 7 March 1997, Harrison, Leitch & Logan, solicitors for the deceased's motor insurers wrote to Jack McCann & Son, solicitors for the present plaintiff, Deirdre McNally, referring them to the decision of the Court of Appeal in Talbot v Berkshire County Council [1993] 4 All ER 9, and stating that any action brought by Deirdre McNally in respect of her own injuries, loss and damage (the 3rd action) should be litigated at the same time as the 1st and 2nd actions and that, in default of that being done, any subsequent claim by Deirdre McNally would be barred by estoppel. On 12 October 1998 Harrison, Leitch & Logan in a letter to Jack McCann & Son referred again to the decision in Talbot v Berkshire County Council and the consequences which they submitted would follow if the 3rd action was not instituted so as to enable all three actions to be heard together. After some further correspondence Jack McCann & Son wrote to Harrison, Leitch & Logan on 21 October 1998 stating that "the decision in Talbot v Berkshire County Council has never and will not ever be applied in Northern Ireland". As already stated, the present plaintiff did not commence the 3rd action until 13 January 1999, following the agreed stay in the 1st action and the settlement of the 2nd action on 29 September 1998.
In this present action, the 3rd action, Harrison, Leitch & Logan represent both defendants, they having settled their differences inter se, and now both defendants seek to have this 3rd action by the present plaintiff stayed as being an abuse of the process of the court. It is now accepted by Mr Ringland QC, who appears on behalf of the both defendants, that in this 3rd action he cannot rely on estoppel because the 1st action was stayed on terms endorsed on counsels' briefs, while the 2nd action was settled for the sum of £75,000, and accordingly there was no res judicata. Mr Ringland QC submits however that this 3rd action should be stayed on the grounds of abuse of process, to which subject I now turn.
It is clear that the plaintiff's claim in respect of her own personal injuries, loss and damage, as constituted in the 3rd action, could have been instituted well before 13 January 1999, when the writ was issued, and allowed to proceed so as to enable it to be listed and heard the same day or days as the 1st and 2nd actions were due to be heard. The plaintiff's advisers made a conscious decision, as appears from the correspondence, not to do so but rather to await the outcome of the 1st and 2nd actions.
In Talbot v Berkshire County Council [1993] 4 All ER 9, a claim arising out of a road traffic accident, the Court of Appeal held that the principle enunciated in Henderson v Henderson (1843) 3 Hare 100 applied to personal injuries litigation. In Henderson v Henderson Wigram VC at 114-115 stated the law as follows:
"In trying this question I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, at which the parties, exercising reasonable diligence, might have brought forward at the time."
In Talbot v Berkshire County Council Stuart-Smith LJ, having referred to the above passage in Henderson v Henderson went on to say at 13j:
"The rule is thus in two parts. The first relates to those points which were actually decided by the court; this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second is not a true case of res judicata but rather is founded upon the principle of public policy in preventing multiplicity of actions, it being in the public interest that there should be an end to litigation; the court will stay or strike out the subsequent action as an abuse of process: see per Lord Wilberforce in Brisbane City Council v AG for Queensland [1978] 3 All ER 30 at 36, [1979] AC 411 at 425."
At page 15a Stuart-Smith LJ continued:
"In my judgment there is no reason why the rule in Henderson v Henderson should not apply in personal injury actions. Indeed there is every reason why it should. It is a salutary rule. It avoids unnecessary proceedings involving expense to the parties and waste of court time which could be available to others; it prevents stale claims being brought long after the event, which is the bane of this type of litigation; it enables the defendant to know the extent of his potential liability in respect of any one event; this is important for insurance companies who have to make provision for claims and may also affect their conduct of negotiations, their defence and any question of appeal."
In Ulster Bank Limited v Fisher & Fisher [1999] NI 68 Girvan J, having referred to res judicata, estoppel and former recovery (merger), went on to refer to the extended doctrine of res judicata in the following terms:
"The court as part of its inherent jurisdiction to control its own proceedings may strike out as an abuse of process proceedings which the court considers should not proceed on a wider view of res judicata and on occasions the court will strike out as an abuse of process proceedings where defences of former recovery (merger), cause of action estoppel and issue estoppel are not strictly available."
At pages 81c-82c Girvan J set out eight conclusions which he considered could be drawn from the case law on the question of the so-called wider principle of res judicata. He questioned whether Talbot v Berkshire County Council was correctly decided, doubting whether the width of that decision could be supported. Girvan J's decision in Ulster Bank Limited v Fisher & Fisher is at present under appeal to the Court of Appeal.
In Wain v F Sherwood & Sons Transport Limited [1999] PI QR 159 the Court of Appeal had to consider whether non-actionable adviser error was capable of constituting a special or exceptional circumstance so as to justify the court in refusing to apply the principle in Henderson v Henderson; the court held that it was not. In the course of his judgment at page 165 Chadwick LJ referred to the problem of "the court reaching a conclusion in the present proceedings which was inconsistent with the conclusion reached in the earlier proceedings". That problem does not arise in this, the 3rd action, as the only issue in the 3rd action is that of damages, the plaintiff having been an innocent passenger in the car driven by her late husband and both defendants having now admitted liability with no plea of contributory negligence.
Mr Hill QC, who appeared with Mr McCann for the plaintiff, placed reliance upon the decision of the Court of Appeal in Northern Ireland in Shaw v Sloan & Others [1982] NI 393. That case however was one of estoppel in the true sense unlike the present case where, as already stated, Mr Ringland QC accepts that the plaintiff is not estopped as there was no res judicata, the 1st action having been stayed on terms endorsed on counsels' briefs and the 2nd action having been settled for the sum of £75,000.
Much of the case law to which counsel referred in the course of their submissions has now to be looked at in the light of the very recent decision of the House of Lords in Johnson v Gore Wood & Company [2001] 2 WLR 72. In that case the facts, as appear from the head note, were as follows. The plaintiff, a businessman, conducted his affairs through a number of companies, including WWH Limited, in which he held all but two of the issued shares. On behalf of WWH Limited he instructed the defendants, GW, a firm of solicitors, who from time to time also acted on behalf of him personally and of others of his companies, to act for WWH Limited in connection with a proposed purchase of land, which it had planned to develop. It had an option to purchase the land, and the defendants, GW, were instructed to serve a notice exercising the option. In subsequent proceedings in the Chancery Division an order for specific performance was made against the vendor. By the time the conveyance was completed WWH Limited had suffered substantial loss because of the cost of the Chancery proceedings, in which the vendor had been legally aided, its inability to recover damages and costs from the vendor, the collapse of the property market and interest charges that it had occurred. In January 1991 WWH Limited started proceedings against their former solicitors, GW, for professional negligence in connection with the exercise of the option. Before the action came to trial, solicitors representing WWH Limited notified the solicitors acting for GW that the plaintiff also had a personal claim against GW arising out of the same matters, which he would pursue in due course. Subsequently, a solicitor acting for the plaintiff and a solicitor representing GW discussed the plaintiff's personal claim on the telephone and the plaintiff's solicitor explained that it had been thought better to wait until the company's claim against GW had been concluded before dealing with the personal claim. An overall settlement of WWH Limited's claim and the plaintiff's claim was discussed. WWH Limited's proceedings were eventually compromised during the trial on payment by GW to WWH Limited of a substantial proportion of the sum claimed by it. In April 1993 the plaintiff issued a writ in respect of his personal claim against GW. In December 1997 GW applied for the action to be struck out as an abuse of the process of the court. The judge at first instance declined to strike out the plaintiff's claim. On appeal by GW the Court of Appeal held that the later proceedings did constitute an abuse of the process of the court and ordered that they be struck out. On appeal by the plaintiff, the House of Lords took a contrary view, holding that in all the circumstances the later proceedings were not an abuse of the process of the court. Lord Bingham in the course of his judgment reviewed all the authorities, including Talbot v Berkshire County Council. In the course of his opinion Lord Bingham stated at page 90A:
"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 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 proceedings 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. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised therein, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it has sought to claim. While the result may often be the same, it is 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. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."
Dismissing the argument that the rule in Henderson v Henderson did not apply to Mr Johnson since he had not been the plaintiff in the first action against the defendants, his former solicitors, Lord Bingham continued at page 91D:
"A formulaic approach to an application of the rule would be mistaken. WWH was the corporate embodiment of Mr Johnson. He made decisions and gave instructions on its behalf. If he had wished to include his personal claim in the company's action, or to issue proceedings in tandem with those of the company, he had the power to do so. The correct approach is that formulated by Sir Robert Megarry VC in Gleeson v G Wipell & Company Limited [1977] 1 WLR 510 at 515:
`Second, it seems to me that the substratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff pursuing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that, having due regard to the subject matter of the dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one party should be binding in proceedings to which the other is a party. It is in that sense that I would regard the phrase "privity of interest".' "
Lord Bingham stated that on the facts of the case then before the House that test was clearly satisfied.
Lord Bingham also dismissed the argument that the rule in Henderson v Henderson did not apply to Mr Johnson because the first action against his solicitors had culminated in a compromise and not a judgment, stating at page 91H:
"This argument was also rightly rejected. An important purpose of the rule is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter. A second action is not the less harassing because the defendant has been driven or thought it prudent to settle the first; often, indeed, that outcome would make a second action be more harassing."
In Johnson v Gore Wood & Company the House of Lords held that both parties when negotiating settlement of WWH's action, proceeded on the basis of an underlying assumption that a further proceeding by Mr Johnson would not be an abuse of process and that it would be unfair and unjust to allow Gore Wood & Company to go back on that assumption (estoppel by convention): see Lord Bingham at 92G. Gore Wood and Company were estopped from going back on that assumption by estoppel convention, as to which see Halsbury's Laws of England, 4th Edition, Volume 16 Re-Issue at paragraph 1070. In the case at present before this court the position is quite otherwise because, as already stated, the solicitors acting for the insurers of Ciaran McNally deceased had raised very early on in the progress of the 1st and 2nd actions the decision in Talbot v Berkshire County Council, which had applied the principle in Henderson v Henderson.
In Johnson v Gore Wood & Company at page 93D Lord Bingham went on to say that in the case then before the House Mr Johnson had reasons which he regarded as compelling to defer prosecution of his personal claim. Lord Bingham continued:
"I agree with GW that it would certainly have been preferable if the judge who tried the company's action, and thereby became familiar with much of the relevant detail and evidence, had been able at the same time or shortly thereafter to rule on the personal claim. That would have been efficient and economical."
In the present action before this court (the 3rd action), that point does not arise because the plaintiff's claim is confined to one of damages, liability being now admitted by both defendants. Lord Bingham in concluding his opinion on that part of the case dealing with abuse of process stated at page 93G:
"In my opinion, based on the facts of this case, the bringing of this action was not an abuse of process. The Court of Appeal adopted too mechanical an approach, giving little or no weight to the considerations which led Mr Johnson to act as he did and failing to weigh the overall balance of justice. I would allow Mr Johnson's appeal."
In the present case I do not consider that the defendant has established that the 3rd action constitutes an abuse of the process of the court, the onus being on the defendant to do so. I do not consider that it was unreasonable for the plaintiff or her legal advisors to await the outcome of the 1st and 2nd actions before instituting her own personal claim in the 3rd action. It was at all times clear that the plaintiff, as an innocent passenger in the car driven by her deceased husband, would recover damages against his estate and/or against the driver of the other car, Mary McWilliams. I do not consider that the institution of the 3rd action after the disposal of the 1st and 2nd actions constituted an "unjust harassment" of the defendants, to adopt the phrase used by Lord Bingham at page 90C in Johnston's case. The plaintiff, as appears from the affidavit sworn by her solicitor on 11 October 2000, considered that her late husband, who died beside her in the accident, was in no way to blame for the accident and, in my opinion, it was not unreasonable for her and her legal advisers to await the outcome of the 1st and 2nd actions before proceeding with the 3rd action. It cannot in my opinion, again to use the words of Lord Bingham, be said 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."
Accordingly on the preliminary issue now before the court that the 3rd action should be struck out as an abuse of the process of the court, I dismiss that application.
Hill QC and McCann for the Plaintiff
Ringland QC for the Defendants
Hearing: 21 December 2000
5 February 2001
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
BETWEEN:
Plaintiff
Defendants