KB-2025-001160 - [2025] EWHC 2369 (KB)

In a passage which is often cited, Lord Diplock provided the following summary of the concept of abuse of process in Hunter v Chief Constable of West Midlands Police [1982] AC 529 at 536B:

“My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute amongst right-thinking people. The circumstances in which abuse of process can arise are very varied … It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power”. (emphasis added)

Although the categories of abuse of process are not closed, Mr Oudkerk relied on a particular species of abuse in the present case. This is referred to in various ways in the authorities but he particularly relied on LA Micro Group (UK) Ltd v LA Micro Group Inc [2022] 1 WLR 336 where the Court of Appeal considered estoppel by conduct. At [19] Sir Christopher Floyd noted that in Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 at 1018 Viscount Radcliffe said in relation to this type of estoppel that:

“a litigant may be shown to have acted positively in the face of the court, making an election and procuring from it an order affecting others apart from himself, in such circumstances that the court has no option but to hold him to his conduct and refuse to start again on the basis that he has abandoned.”

Sir Christopher then considered Gandy v Gandy (1885) 30 Ch D 57 and said at [22]:

“22.

The phrases used in these cases suggest that it is not every change of position by a party or a witness which will create this form of estoppel. In Kok Hoong…., Viscount Radcliffe's formulation requires (a) that the party's stance in the earlier proceedings was the means by which he procured an order, and (b) the circumstances must be such that the court has no option but to hold him to his former stance. In Gandy, Cotton LJ says that the earlier decision was in favour of the husband “on the ground that” the deed provided a continuing obligation. Bowen LJ said that the husband had succeeded “on the footing” of that construction of the deed. These phrases suggest that it must be apparent from the earlier judgment that the stance taken by the party was a reason for the judgment which he obtained, and that it would in all the circumstances be unjust to allow the party to resile from the stance taken earlier.”

Sir Chrisopher then considered the decision of Ginsberg J in New Hampshire v Maine (2001) 532 US 742 where a similar doctrine was recognised by the law of the United States and said:

“24.

The purpose of the rule was said to be to protect the integrity of the judicial process, by prohibiting parties from deliberately changing positions according to the exigencies of the moment and preventing parties “from playing fast and loose with the court”. Whilst observing that the equitable doctrine was not “reducible to any general formulation of principle”, Ginsburg J identified a number of factors which typically inform a court's decision as to whether to apply the doctrine in any individual case. First, a party's later position must be clearly inconsistent with its earlier position. Secondly, the court may enquire whether the party has succeeded in persuading a court to accept the party's earlier position, so that judicial acceptance of an inconsistent position in later proceedings would create the perception that either the first or the second court was misled. Thirdly, the court may ask whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.”

At [25] Sir Christopher agreed that there was no reason to think that the position was different under the law of England and, at [26], said:

“26.

It is clear, therefore, that this form of estoppel by conduct is one which is approached by means of a broad, merits-based assessment, and is not constrained by strict rules (as, for example, issue estoppel). The matters to consider include, but are not limited to, those enumerated by Ginsburg J in the New Hampshire case. It is material to ask the question whether it is apparent that the earlier decision was obtained on the footing of, or because of, the stance taken by the party in the earlier proceedings. Absent that factor, whilst the change of position may affect the credibility of the party or the witness concerned, there will not be an impression that one or other court was misled into giving its decision, so that the administration of justice risks being brought into disrepute.” (emphasis added)

In Iftikar Malik v Vaqar Malik [2024] EWCA Civ 1323 at [34] Zacaroli LJ applied the test in LA Micro. He noted that a very similar principle had been described in the authorities as preventing a person from approbating and reprobating, or as a species of abuse of process, or as a form of estoppel. His view was that it was not necessary to consider these cases in detail given that the variations in how the principle was described reflected the circumstances in which the point had arisen, and it was unlikely that the results in those cases would have been different if approached “on the broad-based approach adopted in LA Micro”:

“36.

Ultimately, the label is unimportant. Although Sir Christopher Floyd did not use the phrase, the form of estoppel by conduct in issue can readily be seen as a species of abuse of process.”

My attention was also drawn to State Bank of India & Others v Mallya [2025] EWHC 858 (Ch) where Sir Anthony Mann applied the approach in LA Micro as further explained in Malik. At [79] he said:

“Three particular points deserve emphasis. First, the formulation in Malik is that a party cannot adopt "two inconsistent attitudes towards another " (my emphasis)…. Second, Mr Beswetherick pointed out that the inconsistency, and abuse of process, alleged in the present case arises out of cases in different jurisdictions, which he says goes beyond any of the authorities. He would say that that is because something in this jurisdiction cannot be an abuse of the process of another. Third, it is not sufficient that inconsistent positions be adopted. The New Hampshire case demonstrates that it is a relevant factor to consider whether the party adopting an inconsistent position would derive an unfair advantage or impose an unfair detriment on the other party if not prevented from doing so.

80.

All those three factors are capable of being relevant, but they all have to be viewed through the prism of abuse of process which can be said to underpin the doctrine. It seems to me that if there is sufficient evidence of an abuse (bringing the justice system into disrepute) then that might, in an appropriate case, trump each of the three requirements…”

Both sides also referred to the decision of the Singapore Court of Appeal in BWG v BWF [2020] SGCA 36 although, with respect, I am not sure that it added a great deal to the authorities to which I have already referred: