High Court of Justice in Northern Ireland Queen's Bench Division Decisions

"The defendant denies that any monies are due by way of stated and settled account.

The defendant denies that the plaintiff is entitled to any interest or that any sum due and owing to the plaintiff either in the circumstances or at all.

The defendant denies each and every allegation of fact contained in the specially endorsed writ of summons as if the same were herein set forth and traversed seriatim.

If the plaintiff sold and delivered goods to the defendant at the request of the defendant as alleged in the statement of claim, which is denied, all of this was done on foot of an agreement between the parties whereby the plaintiff promised various inducements to the defendant and in breach of this agreement the plaintiff failed to deliver such inducements.

In consequence of the plaintiff's breach of agreement the defendant has suffered loss and damage and the defendant counterclaims in respect of same."

4. Mr David Ross for the plaintiff company was well aware that I wanted to retire in and around the start of 1997 and he met with me and prevailed upon me to stay until a Mr Gary Laffin could be trained and be made familiar with the run. This I reluctantly agreed to do and it was made clear to me that if I did so there would be a set off for any monies due and owing to the plaintiff company. In fact I distinctly remember Mr Ross telling me on 24 December 1996 that 'the good will of 24 years will outdo what is owing to the creamery and you will have money in hand."

"This is a rather sad case. Clearly this defendant has been getting deeper and deeper into debt over the years and it has mounted up. He did not take any definitive action until 24 December 1996 when he decided to give up the milk run. To do this he would theoretically have had to give one month's notice in any event. The debt is not disputed in any way meaningfully in the affidavits and the defence appears to revolve around whether or not the balance debt has been written-off in consideration for three weeks work from the defendant. I find this incredible and unarguable. I find that there is no trial issue between the parties and consequently I make an order for £18,320.01 together with interest of £1,120.28 and costs of the Order 14 procedure to include Counsel."

"4. On three occasions between 1992 and 1997 the defendant made a direct approach to the plaintiff's manager, Mr David Ross, and explained to him that the milk round was no longer economically viable. On each occasion Mr Ross promised that he would introduce changes to make the run economic and profitable to operate and promised the defendant if he kept the milk round going that he would receive a 'golden handshake' and that he would be 'looked after at the end of day'. In December 1996 Mr Ross stated to the defendant 'the goodwill of 24 years will outdo what is owing to the creamery and you will have money in hand'."

"He has confirmed that the Master did not take too kindly to the arguments being advanced on your behalf and accordingly allowed judgment to be marked. I would advise that you have a right of appeal against this decision and this may be exercised within five days of this date. However your Barrister has advised that he does not see much prospect of success on appeal and in view of the fact that costs were awarded against you today an appeal would only serve to increase the cost without little chance of success."

It appears that the defendant was refused legal aid prior to the hearing by the Master. No further steps were taken on behalf of the defendant who suffered from a fair degree of ill-health for some time.

"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."

"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 of 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 then, 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 is sought to claim. 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. 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."