[2024] UKUT 151 (LC)

Fecha: 04-Jun-2024

Ground 2: Was On Tower’s application under Part 4 of the Code an abuse of process and should the reference be dismissed?

Ground 2: Was On Tower’s application under Part 4 of the Code an abuse of process and should the reference be dismissed?

46.

Because of the conclusion I have already reached on ground 1, I can deal with ground 2 briefly.

47.

I was referred to a number of authorities of relevance to this ground of appeal.

48.

The leading modern case on abuse of process is Johnson v Gore Wood & Co [2002] 2 AC 1 which concerned the problem of successive civil actions arising from the same facts. Having considered the different categories under which that problem had previously been analysed Lord Bingham said this (at 31 A-D):

“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 proceeding involves what the court regards as the 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.”

49.

One significant feature of this case is that On Tower is seeking to bring new proceedings having suffered the dismissal of its original claim on purely procedural grounds, rather than after an examination of its merits. In that regard it is clear from Aktas v Adepta [2011] QB 894 that a merely negligent failure to serve a claim form in time is not to be regarded as an abuse of process and is not a reason in itself why a second claim raising the same cause of action should be struck out (even where the expiry of the primary limitation period means that the claimant needs a discretionary extension of time).

50.

If I am wrong in my conclusion on the first ground of appeal, and if the proper interpretation of the Code is that an operator who has tried unsuccessfully to obtain a renewal of its Code rights by proceedings under the 1954 Act is not barred from making a further claim under Part 4 of the Code after its first claim has been dismissed, then I would not be prepared to strike this claim out as an abuse of process. That is for two reasons. First, because if Mr Radley Gardner is right, the opportunity to bring a second claim is part of the design of the Code, and it would require something more than simply bringing the claim to amount to abuse. And secondly, if it is not an abuse of process to claim the same remedy in a second civil action after a first has been dismissed on procedural grounds which do not themselves involve any misconduct or abusive behaviour, I do not see how it can be an abuse of process to claim a different remedy, albeit one similar to the first, in a second set of proceedings unless there is something else in the circumstances which amounts to an abuse, such as attempting to relitigate an issue which has been decided in the first action.

51.

If I had had to decide the second ground of appeal, I would therefore have refused it. As it is, the second ground does not arise.

52.

As a postscript I would add that the public interest in securing finality in litigation, which Lord Bingham referred to in the passage from Johnson v Gore Wood cited above, provides further support for the interpretation of the Code which I have preferred in dealing with the first ground of appeal.