Claim No. A00CL702
IN THE CENTRAL LONDON COUNTY COURT

Date: 21 April 2016
BEFORE RECORDER HANCOCK Q.C.

B  E T W E E N :-

THE HOME OFFICE
Appellant/Defendant

-	and –

HUSSAIN KHAZAR
Respondent/Claimant

_____________________
JUDGMENT
_____________________

Introduction.

1.	This is an appeal against a judgment of District Judge Jackson given on 4th November 2015.   The Appellant, the Home Office, (to whom I shall refer simply as “the Home Office”) alleges that the judge erred in a number of fundamental respects.

The facts.

2.	The facts of the matter can be briefly stated and are taken from the parties’ helpful skeleton arguments.

(1)	Mr Khazar (“the Claimant”) is a foreign national criminal who was subject to immigration detention following the completion of his custodial sentence for wounding with intent and unlawful wounding.

(2)	By an action brought on 8th July 2008 in the Scottish Courts (Scotland being where he was then being held) the Claimant challenged his detention and claimed damages of £30,000 for wrongful imprisonment.

(3)	The Claimant was released following a ruling of the Scottish Courts on what would appear to have been an interlocutory hearing.   After that release, the claim in Scotland continued, until it was discontinued on the Claimant’s application on about 26th October 2011.  The circumstances and effect of this “discontinuance” are discussed below.

(4)	The claim in England was issued in the County Court at Central London on 14th March 2015.   That claim was for damages in an unspecified amount in respect of false imprisonment.   The Claimant is publicly funded in the English proceedings, as he was in the Scottish ones.

(5)	By application dated 30th January 2015, the Appellant applied to strike out the claim as an abuse of process, pursuant to CPR Part 3.4(b).   The application was adjourned, when late evidence was produced by the Claimant, on 3rd June 2015, and was then heard, as I have noted, on 4th November 2015, when it was dismissed.

(6)	The Home Office now seeks to overturn that decision.

The decision of DJ Jackson.

3.	The learned judge’s judgment proceeded as follows:-

(1)	She recorded that whilst the basis for the application was confusing, she understood at the time of judgment that it was based on the principle in Henderson v Henderson (1843) 3 Hare 100.

(2)	However, she accepted the submission made by Counsel for the Claimant that the principle in Henderson did not apply because this was not a case in which new facts 

(3)	were alleged which should have been brought forward in an earlier action; this was instead a case where the Claimant was bringing forward the same issue in the later action, in circumstances in which that issue had not been adjudicated upon in the earlier proceedings.

(4)	Alternatively, she held that, looking at the facts, she would apply a broader based principle, namely that she needed to take into account whether a party should be vexed twice on the same grounds on public policy and private grounds, and needed to look at the whole facts.   As she put it, in paragraph 11, she had to take a broad merits approach as adumbrated by Lord Bingham in Johnston v Gore Wood & Co (A firm) [2002] 2 AC 1, and focus on the critical question of whether the Claimant was misusing or abusing the process of the Court.   She held that there was on the facts of this case no abuse of process.

The standard of review.

4.	The parties were in agreement as to the appropriate standard of review.   Thus, in Aldi Stores Ltd v WSP Group PLC and others [2008] 1 WLR 786, at paragraph 16, Thomas LJ said:

16 In considering the approach to be taken by this court to the decision of the judge, it was rightly accepted by Aspinwall that the decision to be made is not the exercise of a discretion; WSP were wrong in contending otherwise. It was a decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process. Nonetheless an appellate court will be reluctant to interfere with the decision of the judge where the decision rests upon balancing such a number of factors; see the discussion in Assicurazzoni Generali v Arab Insurance Group [2002] EWCA Civ 1642) [2003]1 WLR 577 and the cases cited in that decision and Mersey Care NHS Trust v Ackroyd [2007] EWCA Civ 101 at paragraph 35. The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms. However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him. In this case, I consider that the judge, despite the weight that must be accorded his view given his great experience in this type of litigation and the conspicuous success with which he has managed the TCC, reached a decision which was impermissible by taking into account factors which he should not have done and omitting factors which he should have taken into account.

5.	This statement was added to by the statement of Sedley LJ in Stuart v Goldberg Linde [2008] 1 WLR 823, at para 76:

76 First, while the Aldi approach gives the judgment below a substantial margin of respect so long as the judge has not committed any of the classic errors of reasoning, it does not mean that the appellate role is confined to correcting such errors. As the words “reluctant” and “generally” imply, the appellate court also has a broader role which entitles it to intervene if, notwithstanding the absence of either a mistaken inclusion or exclusion of factors or a perverse conclusion, the decision at which the judge has arrived is plainly wrong. To reserve more to this court would be to render the exercise of judgment at first or second instance merely provisional; but to reserve less would be to abdicate part of the appellate function.

The challenge to the decision.

6.	Mr Mitchell, for the Home Office, submitted that the district judge had erred in 5 respects, as follows:-

(1)	The judge found, wrongly, that the claim was not barred simply because it had not been adjudicated upon.

(2)	The judge failed to make any proper enquiry as to the conduct of the Claimant and the Claimant’s solicitors to determine whether there was an abuse of process.

(3)	The judge relied on propositions of Scots law which were inaccurate.

(4)	The judge paid regard to the perceived merit of the underlying claim.

(5)	The judge erred in stating that the application was not initially based on Henderson v Henderson.

Discussion and conclusions.

7.	I will deal with each point in turn.

Was the claim permissible because it had not been ruled on?

8.	As regards the first point, in my judgment the suggested distinction made by Mr Wagner, which the district judge appeared to accept, between a case such as this, where a point was raised but not pursued, and the precise situation dealt with in Henderson, where a point was not, but should have been, raised, is not a good one.   Whilst the precise factual situation in this case does not fall fairly and squarely within the principle in Henderson, Henderson is itself simply an illustration of the broader concept of abuse of process.   This was made clear in the speech of Lord Sumption in Virgin Atlantic Airways v Zodiac Seats [2013] UKSC 46, where he said:-

17 Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”. It is properly described as a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings. Secondly, there is the principle, which is not easily described as a species of estoppel, that where the claimant succeeded in the first action and does not challenge the outcome, he may not bring a second action on the same cause of action, for example to recover further damages: see Conquer v Boot [1928] 2 KB 336 . Third, there is the doctrine of merger, which treats a cause of action as extinguished once judgment has been given upon it, and the claimant's sole right as being a right upon the judgment. Although this produces the same effect as the second principle, it is in reality a substantive rule about the legal effect of an English judgment, which is regarded as “of a higher nature” and therefore as superseding the underlying cause of action: see King v Hoare (1844) 13 M & W 494 , 504 (Parke B). At common law, it did not apply to foreign judgments, although every other principle of res judicata does. However, a corresponding rule has applied by statute to foreign judgments since 1982: see Civil Jurisdiction and Judgments Act 1982, section 34 . Fourth, there is the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties: Duchess of Kingston's Case (1776) 20 St Tr 355 . “Issue estoppel” was the expression devised to describe this principle by Higgins J in Hoysted v Federal Commissioner of Taxation (1921) 29 CLR 537 , 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181 , 197–198. Fifth, there is the principle first formulated by Wigram V-C in Henderson v Henderson (1843) 3 Hare 100 , 115, which precludes a party from raising in subsequent proceedings matters which were not, but could and should have been raised in the earlier ones. Finally, there is the more general procedural rule against abusive proceedings, which may be regarded as the policy underlying all of the above principles with the possible exception of the doctrine of merger….

24…The principle in Henderson v Henderson has always been thought to be directed against the abuse of process involved in seeking to raise in subsequent litigation points which could and should have been raised before. There was nothing controversial or new about this notion when it was expressed by Lord Kilbrandon in Yat Tung . The point has been taken up in a large number of subsequent decisions, but for present purposes it is enough to refer to the most important of them, Johnson v Gore-Wood & Co [2002] 2 AC 1 , in which the House of Lords considered their effect. This appeal arose out of an application to strike out proceedings on the ground that the plaintiff's claim should have been made in an earlier action on the same subject-matter brought by a company under his control. Lord Bingham took up the earlier suggestion of Lord Hailsham of St. Marylebone LC in Vervaeke v Smith [1983] 1 AC 145 , 157 that that the principle in Henderson v Henderson was “both a rule of public policy and an application of the law of res judicata”. He expressed his own view of the relationship between the two at p 31 as follows: 
“ 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 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.”

25.	The rest of the Committee, apart from Lord Millett, agreed in terms with Lord Bingham's speech on this issue. Lord Millett agreed in substance in a concurring speech. He dealt with the relationship between res judicata and the Henderson v Henderson principle at pp 58H-59B as follows: 
“Later decisions have doubted the correctness of treating the principle as an application of the doctrine of res judicata, while describing it as an extension of the doctrine or analogous to it. In Barrow v Bankside Members Agency Ltd [1996] 1 WLR 257, Sir Thomas Bingham MR explained that it is not based on the doctrine in a narrow sense, nor on the strict doctrines of issue or cause of action estoppel. As May LJ observed in Manson v Vooght [1999] BPIR 376 , 387, it is not concerned with cases where a court has decided the matter, but rather cases where the court has not decided the matter. But these various defences are all designed to serve the same purpose: to bring finality to litigation and avoid the oppression of subjecting a defendant unnecessarily to successive actions. While the exact relationship between the principle expounded by Sir James Wigram V-C and the defences of res judicata and cause of action and issue estoppel may be obscure, I am inclined to regard it as primarily an ancillary and salutary principle necessary to protect the integrity of those defences and prevent them from being deliberately or inadvertently circumvented.”

9.	In my judgment, these extracts from the various judgments emphasise the question which is at the root of the policy enquiry.   That question is whether the party is misusing or abusing the process of the court.   In the strict Henderson case, the abuse will consist in seeking to raise a point which should have been raised in previous litigation.   In the case in question here, the question is whether the Claimant, having failed to pursue his claim in Scotland, is abusing or misusing the process of the Court by seeking to raise it in this Court.   However, in both cases, the underlying question is whether there is indeed an abuse of process.

10.	Insofar as the district judge took the view that continuation with this case was permissible simply because it had been raised but not ruled on, and that it was unnecessary to look further at questions of potential abuse, I would, with respect, hold that she was wrong to do so.   However, as I read her judgment, she went on to consider the question of abuse of process and to balance the various factors that were said to be of relevance in this regard in her judgment, at paragraph 9ff.

11.	Accordingly, whilst I see force in Mr Mitchell’s first submission, I do not think it is in any way dispositive.   It is necessary for me to go on to consider whether, when she came to balance relevant factors in assessing whether there would be an abuse of process in allowing the claim to proceed, the judge erred.

Failing to make appropriate enquiry into the conduct of the Claimant and his solicitors.

12.	Mr Mitchell submitted that the facts surrounding the withdrawal were unclear and should have been clarified by the Claimant.   He further submitted that the district judge was wrong in failing to “grasp the nettle” but holding, as she did, that she should not proceed to determine the matter based on inadequate evidence.

13.	I start by considering what the evidence was that was before the district judge.  The circumstances surrounding this withdrawal are not clear, as the district judge indicated in her judgment, and various conflicting accounts have been given at different times.   I consider the following to be an accurate account of the evidence.

(1)	The original claim brought in Scotland was for an order for release and for damages for detention.

(2)	The Scottish Court of Session held, on an interlocutory application, that the Claimant should be released from the detention centre.  That Order was made on 3rd March 2009.

(3)	As I understand matters, no further steps were taken in the Scottish action.   In 2011, the Court enquired what was happening.   The immediate response was that counsel was awaiting a Supreme Court decision which was anticipated would clarify whether the petition could continue.  In the event, counsel clearly advised the Scottish solicitors that in the light of recent Supreme Court jurisprudence, the petition should be discontinued and, by letter dated 24th October 2011, Hamilton Burns, the Claimant’s Scottish solicitors, told him that counsel’s advice was to this effect.  In the event, the action was discontinued at the motion of the Claimant.   The discontinuance was effected on 26th October 2011.

(4)	The extent to which the Claimant was involved in this decision and the extent to which he understood the potential ramifications of the decision is not at all clear, as the district judge correctly pointed out.

(5)	The Home Office argue that inconsistent accounts have been given by or on behalf of the Claimant in various documents.

(a)	In the first witness statement of Ms Willman, it was stated that the claim was discontinued on the advice of the Claimant’s Scottish solicitor, on the basis that the objective evidence no longer supported the contentions in the petition.

(b)	In the second witness statement of Ms Willman, it is said that the claimant had not received the letter of advice from his Scottish solicitor and that the decision to discontinue was made without his instructions and without consulting him.  The Home Office argued that the two witness statements were inconsistent.

(c)	In his witness statement of 18th June 2015, the Claimant stated that he had moved away from the address to which his Scottish solicitors had sent the advice, and that he had not therefore received the advice letter of 24th October 2011.   He only found out in 2012 that his action had been discontinued.

(d)	He also went on to say that he did not take proceedings in England immediately because he could not find solicitors willing to do the work until he found his now current solicitors.

(6)	Next, there is the witness statement of Mr Knox, of Hamilton Burns.   He was not in the employ of Hamilton Burns back in 2011 or 2012, but became a member of the firm in 2014.  Mr Knox gives certain evidence as to Scottish law (which I consider below) and as to the handing over of relevant documents to the English solicitors.   However, since he was not at Hamilton Burns at the time that the Scottish action was discontinued, he is not in a position to assist in this regard with first hand evidence as to whether the Claimant did in fact give instructions to his solicitors to discontinue or as to what the Claimant understood the consequences of such a step to be.

(7)	In the light of the inconsistencies in the evidential position, and before the hearing in front of the district judge, the Treasury Solicitor wrote to both Scottish solicitors who had been involved, to ask for a further explanation as to the circumstances in which the earlier action had been discontinued.   There has been no further response from Hamilton Burns.   However, Drummond Miller did respond to say that they were only agents, and that they complied with the instructions that they were given on 24th October.   This was the same day as the letter was dated which was sent to the Claimant’s address in Plymouth from which he says he had moved.

14.	I turn to the evidence of Scottish law, in the light of the evidence in Mr Knox’s witness statement and the helpful note of Senior Counsel produced for the Treasury Solicitor.   For present purposes, what is of concern is why advice might have been given not to pursue the claim further; and what the effect of the order in fact made would have been.

15.	The advice given at the time of the decision not to continue with the Petition for Judicial Review was, it would appear, based on the conclusion that the evidence in support of the contention that deportation would be unlikely due to the risk to the Claimant in being taken back to Iraq had become less forceful.  Thus the application for liberation was less likely to succeed and was not pursued.  There is no indication to any thought having been given as to how this would impact on the claim for damages.

16.	The evidence of Mr Knox is to the effect that the discontinuance of the petition for judicial review would not have precluded the claim for damages being pursued either in the same action, or in a new action for damages.   I am not qualified in Scots law and so I do not know procedurally how this would have worked.   However, I have no reason to reject this evidence, and nothing in Mr McIlvride QC’s opinion goes to this issue.

17.	Whilst I accept Mr McIlvride QC’s opinions as set out in his note, as I read them they do not run counter to the propositions I have set out in the preceding paragraphs.   Mr McIlvride QC does not seem to have been asked to comment on the question of whether a later action in Scotland would be barred by reason of the discontinuance of the judicial review petition in Scotland.

18.	In my judgment, firstly, the approach taken by the district judge was correct in principle; and secondly, even if she had “grasped the nettle” re this evidence, it would not and should not have made any difference to her conclusion.

(1)	First, as regards the approach in principle, in my judgment the district judge was quite right to conclude that she should not determine matters on the basis of unsatisfactory evidence.   The burden of establishing that the claim should be struck out as an abuse of process is clearly on the applicant, and if the evidence does not establish this, then the application must fail.   If the evidence is unsatisfactory because it needs to be examined further, either in the light of disclosure or witness evidence, then the matter must proceed to enable such an examination to take place.

(2)	In any event, however, I do not accept the suggestion that the evidence, viewed as a whole, establishes that allowing the Claimant to proceed in England would be an abuse of process.

(a)	It is clear that either the Claimant or his solicitor decided not to continue further with the petition in Scotland back in 2011.   Mr Mitchell contended that it did not matter whether the decision was taken by the Claimant himself or the Claimant’s representative; the Claimant was fixed with any fault on the part of his representative.   In this regard, he relied on the statement of Eady J in Barnett v Nigel Hall Menswear Ltd [2013] EWHC 91.  I fully accept that proposition as a general rule.   That case was very different, on the face of it, from the current one, however, since it involved what appeared to be a conscious decision to risk losing the right that it was later sought to revive.   In any event, I do not regard the statement of Eady J as laying down an inflexible rule, rather than valuable general guidance.   It may be that if a party has been confused by the advice that he has been given, this is a relevant factor to be brought into the balance in deciding whether it is unfair to allow that party a “second bite at the cherry”.   Further, if the Claimant has never played any part in the taking of the decision to discontinue (not the case in the Barnett case, but suggested to be possible here) then the case for allowing a second action may be even stronger.

(b)	Perhaps more importantly, there seems to be a very important issue as to the impact as a matter of Scots law of a discontinuance of a petition such as this one.   As I have stated, it is the evidence of Mr Knox, which is not at present challenged in terms by the Home Office, that it would be open to the Claimant to reopen his damages claim in Scotland.   As I understand it, from what I was told by Counsel, no legal aid would be available for the Claimant in relation to a Scottish action, because he is not resident in Scotland; had he been, the action could have been continued there.  The difference is thus that, because of the existence of legal aid funding, the English proceedings, which are to the same effect as the Scots proceedings, can be brought whereas the Scots ones, as a matter of practicality, cannot.

(c)	The Defendant is of course the Home Office, and the Home Office would have been Defendant in the Scottish proceedings for damages had they gone ahead, and would also have been Defendant in any new Scottish proceedings.

(d)	It is true that there is prejudice to the public purse if these proceedings are allowed to go ahead.   However, the policy decision to allow funding for such proceedings indicates that it is thought important that they should be allowed, if sufficiently meritorious.   I do not regard this as a factor militating against the continuation of the proceedings.

(e)	It is also true that the proceedings are to hold a government department to account for wrongdoing which it has admitted.   Mr Mitchell rightly says that the damages may be nominal, particularly given the fact that much of the period of admittedly wrongful detention cannot give rise to a claim for damages because of time bar considerations.   However, in my judgment it is relevant to bring into the balance the undesirability of allowing a party that has admitted wrongdoing to escape any inquiry into damages.

(f)	Weighing all of the above in the balance, in the manner that Lord Bingham suggests is appropriate in the case of abuse of process, applying a broad, merits based approach, I conclude, as did the district judge, that allowing the Claimant to proceed in England does not involve any abuse of the Court’s process.

Reliance on propositions of Scots law which were inaccurate.

19.	In relation to this ground, Mr Mitchell identified two propositions of Scottish law which were put forward by the Claimant which were in fact inaccurate.

(1)	First, he suggested that the Claimant had indicated that there was no right to recover damages in the petition for judicial review.   A note from Senior Counsel stated that this was inaccurate, and I did not understand Mr Wagner to contest this (before me or any other time).   However, the district judge placed no reliance on the suggested principle of Scots law; and the relevant question, in my view, is a different one, namely whether, having withdrawn the application for judicial review because of changed evidential circumstances, this would mean that no claim for damages for wrongful detention could be made.   This question does not seem to have been posed to Senior Counsel.

(2)	Secondly, Mr Mitchell suggested that the proposition that was ascribed to the Claimant that damages had never been awarded in a wrongful detention claim was wrong, again in reliance on Senior Counsel’s note.  I understand that in fact this proposition had never been contended for by the Claimant.  Certainly, at the hearing before me, the parties seemed to be in agreement that damages could be awarded for wrongful detention; that at the time of the withdrawal of the petition, damages had not been awarded in the immigration context; but that in the case of Shehadeh, after the date of the withdrawal, such damages were awarded.   Again, however, the district judge placed no reliance on this evidence as to the position in Scotland; and again, the point does not seem to me to be directed towards the really relevant question on this application, which is as to the effect of the withdrawal of the petition on any claim for damages.

20.	Accordingly, I conclude that this ground of criticism of the district judge has no merit.

Paying regard to the perceived merit of the underlying claim.

21.	The next point that Mr Mitchell made was that the district judge had paid regard to the perceived merits of the underlying claim, and that this was impermissible save in exceptional cases.   The short answer to this, in my judgment, is that there is no sign at all in the judgment of the district judge that she considered the underlying merits.   The question that was posed is simply whether allowing the claim to proceed would be an abuse of process.

The statement that the application was not initially based on Henderson v Henderson.

22.	Finally, in this regard, I accept Mr Mitchell’s point that the application was, and always had been, based on Henderson v Henderson and other similar considerations of abuse of process.   It is not wholly clear why the District judge thought that this was not the case, but this is not, in my judgment, of any real importance since it is clear from her judgment that by the time she came to decide the application, the district judge knew that the basis for the application was Henderson v Henderson and abuse of process.   Accordingly, this criticism takes the Home Office nowhere.

Conclusion.

23.	For the above reasons, I conclude that the judgment of the district judge (which, despite being extempore, was clear and well reasoned) was correct.  This appeal will be dismissed.   My thanks are due to Counsel for their assistance.