Claim No: IL-2024-000036 - [2025] EWHC 2172 (Ch)

The parties were ad idem as to the modern interpretation of Henderson v Hernderson, including as set out in Johnson v Gore Wood & Co [2002] 2 AC 1 and Aldi Stores Ltd v WDP Group Plc [2008] 1 WLR 748. In the former, Lord Bingham of Cornhill set out the public policy behind the rule in Henderson v Henderson – that there is a public interest in the finality of litigation both for the public generally and for the defendant.

In Aldi v WDP, Thomas LJ (as he then was) approved at [6] the following summary of Clarke LJ’s comments in Dexter v Vlieland-Boddy [2003] EWCA Civ 14 at [49].

“49…

i)

Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.

ii)

A later action against B is much more likely to be held to be an abuse of process than a later action against C.

iii)

The burden of establishing abuse of process is on B or C as the case may be.

iv)

It is 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.

v)

The question in every case is whether, applying a broad merits based approach, A's conduct is in all the circumstances an abuse of process.

vi)

The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.”

Counsel for Mrs Lish referred me to a series of other judgments applying the principles set out by Clarke LJ, conceding that each was an application of those principles to the particular facts of the case before each court. As Clarke LJ’s statement of the law is clear, I am not convinced that these additional authorities provide significant additional guidance – other than by way of demonstrating how other courts have applied Clarke LJ’s statement of the law to other facts. However, for completeness, I have set them out here, and have had them in mind in reaching my own conclusions on the facts before me.

Counsel for Mrs Lish referred me to Outotec (US) Inc and Anorv MW High Tech Projects UK Ltd [2024] EWCA Civ 844 where Coulson LJ said at [53.3]:

“53.3

The burden rests on the defendant to establish that it is an abuse of process for them to be subjected to the second action (Johnson v Gore Wood & Co, Michael Wilson [[2017] EWCA Civ 3]). Because the focus is on abuse, it will be rare for a court to find that a subsequent action is an abuse unless it involves “unjust harassment or oppression” (Lord Clarke MR in Dexter and Lloyd LJ in Stuart v Goldberg Linde [[2008] EWCA Civ 2]). Putting the same point another way, the courts will not lightly shut out a genuine claim unless abuse of process can clearly be made out (Lloyd LJ in Stuart v Goldberg Linde, and Simon LJ in Michael Wilson).”

The following two paragraphs are also apposite:

“53.4

In ongoing litigation, a party who realises that he may have connected claims which are not currently pleaded must follow the Aldi guidelines, and at least raise with the court the existence of such new claims. A breach of those guidelines will give rise to a “high risk” that the second action will be found to be an abuse of process (Stuart v Goldberg Linde) and will always be a relevant factor to be taken into account in any application to strike out (Gladman [[2013] EWCA Civ 1466]).

53.5

However, a breach of the Aldi guidelines does not automatically mean that the second action is an abuse of process and will be struck out. The Aldi guidelines are simply one facet of the broad merits-based evaluation (Otkritie [[2017] EWCA Civ 274]).”

Counsel for Mrs Lish also referred me to the judgment of Nugee LJ in Orji and Anor v Nagra and Anor [2023] EWCA Civ 1289:

“But what all the cases have in common is that the second claim is an attempt to reopen something that has already been decided. That is where the abuse lies. That does not mean there must have been a trial of the first claim. The principle is capable of applying if the previous proceedings have been settled by agreement. A settlement by the parties is just as much a final resolution of a claim as a judgment by a court, and it can be just as abusive to seek to circumvent it by putting forward a second claim. The principle is also capable of applying where there has been an interlocutory decision in the very same proceedings, as illustrated by the case referred to by Coulson LJ in paragraph 46 above of Seele v Tokio [[2009] EWHC 255 (TCC)] (in fact a decision of his own although he modestly does not say so). But if there has not been any previous decision, there is nothing for the principle to bite on. It cannot be said that a litigant is being abusive in seeking to have a second bite at the cherry if they have not yet had their first.”

Counsel for Mrs Lish also referred me to Playboy Club London Ltd v Banca Nazionale Del Lavoro SpA [2018] EWCA Civ 2025, particularly at [51] and [53]:

“51.

In assessing whether it is an abuse of process for the Club to institute and maintain its deceit claim after the trial of the negligence claim, I consider it is important that the new evidence from Mr Turlon and in relation to the Les Ambassadeurs incident came into the Club’s hands after the material time, i.e. after the commencement of that trial. This is not a case in which a party has deliberately decided for tactical reasons to keep material up its sleeve in relation to a deceit claim until after it sees what happens with its negligence claim, and then institutes later proceedings in deceit relying on material which was already available to it at the earlier stage. To proceed in that way might well be an abuse of process: see Johnson v Gore-Wood at p. 31B per Lord Bingham, quoted above; and Stuart v Goldberg Linde [2008] EWCA Civ 2; [2008] 1 WLR 823, [77] (Sedley LJ) and [79] (Sir Anthony Clarke MR). But in this case, the fair inference is that the Club has proceeded to bring the deceit claim by reason of new evidence becoming available which is highly material and strongly supportive of that claim.

…

53.

The Club was entitled to treat the new evidence as a decisive matter which justified it in bringing its deceit claim after the trial of the negligence claim. The new evidence means that the Club is in a much stronger position to allege deceit on the part of Ms Guidetti, acting for BNL, than it was in prior to that trial.”

Stuart v Goldberg Linde [2008] EWCA Civ 2 is referred to in the authorities above. It raised squarely the question of whether in its assessment of abuse, the court is entitled to consider the claimant’s failure to use due diligence in attending to his/her own interests. At [59], Lloyd LJ said this:

“59.

Failure to use reasonable diligence. As for the relevance of a claimant's failure to use what the court might consider to be reasonable diligence in finding out facts relevant to whether he has a possible claim, it may be that this could possibly be relevant to the enquiry described by Lord Bingham, depending on the circumstances. On the other hand, it does not seem to me that there can be a general principle that a potential claimant is under a duty to exercise reasonable diligence, not yet having brought proceedings asserting a particular claim, to find out the facts relevant to whether he has or may have such a claim. Moreover, I do not see how it can be relevant at all that the claimant may have failed to use due diligence in attending to his own interests at the time of the transaction or the events giving rise to the claims asserted. Unless, on the merits, that is a complete and inevitable defence to the claim, it seems to me to be entirely irrelevant to the enquiry which is necessary under Johnson v Gore Wood. Nothing in Sir James Wigram’s observations in Henderson v Henderson supports that. That, however, is the context of the Master’s comments on lack of reasonable diligence in paragraphs 70 and 72. If relevant at all, an enquiry as to any suggested lack of diligence on the part of the claimant would have to involve considering the circumstances of the particular claimant, including what knowledge he did have of the facts at any relevant stage, in order to decide whether he knew enough to put him on enquiry so as to try to find out more. In this context, as generally, it is also relevant that the onus is always on the defendant to show that the claimant’s conduct is an abuse of process.”

As I said, I have had these authorities well in mind in reaching my own conclusions on the facts before me.