HT-2022-000304 - [2025] EWHC 1601 (TCC)

There is no dispute between the parties that, in principle, the concept of abusive re-litigation may be applicable to bringing criminal contempt proceedings.

The “bringing of a claim … in later proceedings may, without more, amount to abuse if the court is satisfied … that the claim … should have been raised in the earlier proceedings if it was to be raised at all”: Johnson v Gore Wood [2002] 2 AC 1 p31B. When applied to matters which have been compromised, the purpose is to “prevent… the defendant from being misled into believing that he was achieving a complete settlement of the matter in dispute when an unsuspected part remained outstanding” (Johnson, p59).

Both parties also rightly accept that the Court is required to adopt a broad merits-based judgment, taking account of the public and private interests involved and the relevant facts. It is convenient to refer to the recent guidance provided by Coulson LJ in Outotec (USA) Inc & Ors v MW High Tech Projects UK Limited [2024] EWCA Civ 844, [2024] 4 WLR 85. The following paragraphs of his summary of principles of law are of particular relevance:

“.1 Although historically it was said that, absent special circumstances, a second claim could not be brought if it could have been brought in earlier proceedings (Henderson v Henderson), that is too dogmatic an approach (Johnson v Gore Wood).

.2 Instead, what is required is "a broad merits-based judgment which takes account of the public and private interests involved and all the facts of the case, focussing 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" (Johnson v Gore Wood).

.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, Michael Wilson). 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). 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).

…

.6 A decision as to whether a claim is an abuse of process is not a matter of discretion, but the decision will turn on an evaluation which is "very similar" to the balancing exercise undertaken when a judge exercises his or her discretion (Aldi, Stuart v Goldberg Linde).

.7 That evaluation must consider, not only whether there has been a misuse of the court's process, oppression or harassment (Dexter), but also the causative effect of the failure to follow the Aldi guidelines (Otkritie). This may involve, for example, consideration of hypothetical consequences and possible case management outcomes (Barrow, Otkritie).

.8 The evaluation will also consider the public interest, as set out in Johnson v Gore Wood and Aldi, which is unchanging from case to case (the efficient use of court resources, the needs of other users, finality etc.), and the legitimate private interests involved, which will always vary, depending on the particular facts. This may therefore involve a consideration of the consequences of striking out or not, in a broadly similar way to the third part of the test in Denton.

.9 This court will be reluctant to interfere in the evaluation carried out by the judge at first instance, and will only do so if the judge took account of something he or she should not have done, failed to take into account something he or she should have done, erred in principle, or reached a conclusion that was so perverse as to be "plainly wrong" (Aldi, Stuart v Goldberg Linde).”