Lord Bingham of Cornhill Lord Goff of Chieveley Lord Cooke of Thorndon Lord Hutton Lord Millett
| |
LORD BINGHAM OF CORNHILL
|
| |
My Lords,
|
| 1. |
There are two parties before the House. The first is Mr. Johnson, the
plaintiff in the action, who appeals against a decision of the Court of
Appeal dismissing the action as an abuse of the process of the court. The
other is Gore Wood & Co., a firm of solicitors, who cross-appeal against
a decision of the Court of Appeal, on a preliminary issue of law, that
certain heads of damage pleaded by Mr. Johnson should not be struck out as
irrecoverable. Both appeal and cross-appeal raise questions of legal
principle which your Lordships' House has not, in recent years, had occasion
to consider.
|
| |
The facts
|
| 2. |
Mr. Johnson is a business man who conducted his business affairs through a
number of companies. One of his businesses was property development, which
he carried on through a company, Westway Homes Limited (WWH), of which he
was managing director and holder of all but two of the issued shares. For
all practical purposes WWH was the corporate embodiment of Mr. Johnson.
|
| 3. |
Acting on behalf of
WWH, Mr. Johnson instructed Gore Wood & Co. (GW), through a partner in
the firm named Robert Wood, to act as solicitors for WWH in connection with
a proposed purchase of land at Burlesdon in Hampshire from a Mr. Moores.
WWH planned to develop the land, but the project was one of some complexity,
since the title of Mr. Moores was to some extent doubtful and access to the
land was dependent on acquisition of a strip of land owned by a third party.
WWH had an option to purchase Mr. Moores' land, and WWH instructed GW to
serve a notice exercising this option.
|
| 4. |
Mr. Johnson contends that from early April 1987, even before GW was formally
instructed to act as solicitor for WWH, Mr. Johnson engaged the firm,
usually acting through Mr. Wood, to advise him personally and act on behalf
of certain of his companies in addition to WWH, as a result of which GW and
in particular Mr. Wood gained a detailed knowledge of his financial affairs
and those of the companies concerned. He further contends that GW through
Mr. Wood knew and intended that advice given to him in connection with any
business matter would or might be acted upon by him in relation to the
conduct of his business affairs generally, including his personal financial
affairs. Since the present proceedings have not progressed beyond
determination of the preliminary issues giving rise to this appeal and
cross-appeal there has been no detailed investigation of the facts, some of
which are in dispute between the parties. But GW accepts that from time to
time the firm acted on behalf of Mr. Johnson personally and some of his
companies other than WWH.
|
| 5. |
In February 1988 GW served notice exercising WWH's option on Mr. Moores'
solicitors. Mr. Moores and the solicitors acting for him asserted that the
notice had not been validly served since it had not been served upon Mr.
Moores personally. Having obtained the advice of counsel WWH instructed GW
to issue proceedings against Mr. Moores for specific performance of the
contract created by the exercise of the option. This was done in March
1988. An alternative claim was made against Mr. Moores' solicitors alleging
breach of warranty of authority. GW continued to act for WWH in those
proceedings until the end of November 1989. The proceedings came on for
trial in the Chancery Division in January 1990, when an order for specific
performance was made against Mr. Moores and an inquiry into damages ordered.
The alternative claim against Mr. Moores' solicitors was dismissed. Mr.
Moores had been legally aided from an early stage of the litigation and now,
because of his mental condition, was acting through a guardian ad litem. He
appealed against the judge's decision, but his appeal was dismissed by the
Court of Appeal on 20 February 1991, although on different grounds.
|
| 6. |
For reasons outside the control of Mr. Johnson or WWH there was further
delay before the land was conveyed to WWH. It was April 1992, more than
four years after the exercise of the option, before the conveyance was
completed. By this time WWH had suffered substantial loss because of the
cost of the Chancery proceedings, the inability of WWH to recover damages
and costs from Mr. Moores, who had no assets save for the balance of the
purchase price of the Burlesdon land, the collapse of the property market
and the high interest charges borne by WWH. On 8 January 1991 WWH started
proceedings for professional negligence against GW. In those proceedings GW
admitted that it owed WWH a duty to exercise reasonable care in connection
with the exercise of the option, but denied that that duty had been broken
or that the damages claimed were recoverable. WWH applied for summary
judgment. This application succeeded at first instance but failed on
appeal. WWH was now in serious financial difficulty.
|
| 7. |
WWH's action against GW came to trial before a deputy judge on 26 October
1992. The hearing was estimated to last 10-12 days. This estimate was
greatly exceeded. In the sixth week of trial, the company's evidence on
liability had been completed and Mr. Wood was in the course of giving
evidence for GW when the action was compromised upon payment by GW to WWH of
£1,480,000, which represented a very substantial proportion of the sum
claimed by WWH, and costs in the agreed sum of £320,000.
|
| 8. |
Mr. Johnson claims that because he had retained GW to advise and act for him
personally as well as for WWH, the firm owed him as well as WWH a duty of
care in contract and tort in relation to the exercise of the option, the
advice which Mr. Johnson contends was given to him personally as well as to
WWH concerning the prospects of success in and the likely duration of the
Chancery proceedings and the conduct of the Chancery proceedings. He claims
that GW breached that duty and so caused him substantial loss. Whether GW
owed Mr. Johnson personally such a duty and whether (if so) it breached that
duty will be live issues in this action if it proceeds. But for purposes of
the issues now before the House, GW accepts that the facts pleaded by Mr.
Johnson are capable of supporting his case on these issues if established at
trial.
|
| 9. |
Mr. Johnson did not initiate proceedings to enforce any personal claims
against GW at the time when WWH began its action against the firm. In an
affidavit sworn on 6 March 1998 he deposed to his reasons for not doing so
at that stage. His reasons were:
|
| |
| (1) |
that he was in no position to bring a personal claim against GW until he was
granted full legal aid in October 1992, his previous certificate having been
limited;
| | (2) |
that advancing his personal claims would have substantially delayed the
progress and ultimate resolution of WWH's action against GW, which would
have led to WWH going into liquidation before the trial of its action;
| | (3) |
that the financial resources of both Mr. Johnson and WWH had been exhausted
by this litigation, said to have been caused by GW's negligence;
| | (4) |
that joining the personal claim to WWH's claims would have led to an
adjournment of the October 1992 trial date fixed for WWH's action;
| | (5) |
that the more complicated nature of Mr. Johnson's personal claims would have
had an adverse effect on the costly and time-consuming work required to
prepare WWH's case for trial; and
| | (6) |
that the time which Mr. Johnson could devote to the conduct of litigation
was restricted by his need, from June 1991, to find new employment.
|
|
| 10. |
GW does not deny that these were the reasons which led Mr. Johnson not to
proceed personally at that time, but does not accept that they provided
valid or reasonable grounds for not doing so.
|
| 11. |
On 17 January 1991, well before WWH's action came to trial, solicitors
representing that company notified the solicitors for GW that Mr. Johnson
had a personal claim against the firm which he would pursue in due course.
No details of the claim were given. On 6 December 1991 solicitors
representing Mr. Johnson informed GW that he had received a Legal Aid
certificate to take proceedings against the firm for damages for negligence.
The letter, couched in general terms, contended that GW had owed a duty to
Mr. Johnson personally as well as to WWH. While making no admission, GW's
insurers in January 1992 invited Mr. Johnson's solicitors to give full
details of the quantum of his personal claim. Mr. Johnson's solicitors
replied in February 1992, outlining certain heads of claim and giving
estimates in round figures of claims approaching £2 million. In
October 1992, on the eve of trial of WWH's action against GW, Mr. Johnson's
solicitors wrote to GW's solicitors, referring to his Legal Aid certificate
and giving notice that his personal claim would be pursued whether the
company's claim culminated in judgment or settlement. Since a substantial
payment into court had been made on behalf of GW, Mr. Johnson and WWH
expected a favourable outcome of the company's action. On 19 November 1992,
when trial of the company's action against GW was well advanced, Mr. Pugh (a
solicitor representing Mr. Johnson) spoke to Mrs. MacLennan (the solicitor
representing GW) on the telephone and discussed Mr. Johnson's personal
claim: Mr. Pugh said that it had been thought better to wait until the
company's claim had been concluded before dealing with the personal claim;
Mrs. MacLennan asked whether Mr. Pugh would object to an overall settlement
of the company's claim and Mr. Johnson's personal claim; he said that he
would have to take instructions but could not himself see any objections
"provided the figures were all right." He gave her a rough idea of the
heads of claim and the figures. Mr. Johnson instructed Mr. Pugh that he
would not be adverse to an overall settlement provided it was reasonably
satisfactory. Mrs. MacLennan indicated that GW (or its
insurers) also were not adverse to an overall settlement if the figures
could be agreed. On 1 December 1992 Mr. Pugh met Mrs. MacLennan at court to
try to negotiate a settlement of his personal claim. His attendance note of
this meeting read:
|
| |
| |
"She mentioned an overall cap and said that she could not settle for more.
I said that John Johnson's claim was a separate one and she said that so far
as it was not related to the actual company's claim it might well be
different. After some discussion it was agreed that so far as his claim as
shareholder and only relating to a loss of dividends income and capital
distribution there would be a cap at a figure to be agreed. This would not
affect all the other claims on the list as previously discussed. Mrs.
McClenan [sic] reiterated her previous view but said it would be a separate
claim and it would really be a matter for separate negotiation in due
course. A cap was agreed at £250,000 excluding interest and costs."
|
|
| 12. |
The settlement agreement made between WWH and GW on 2 December 1992 was
signed by solicitors for both sides; the solicitors representing WWH also,
for this purpose, represented Mr. Johnson.
|
| 13. |
By the settlement agreement GW agreed to pay the sums already mentioned with
no admission of liability, in full and final satisfaction of all claims of
WWH against GW and vice versa. The sum of £1 million which GW had paid
into court was to be paid out to WWH's solicitors. WWH undertook that any
of its liabilities personally guaranteed by Mr. Johnson would be discharged
out of the sums received under the settlement agreement, the object plainly
being to limit the quantum of any claim which Mr. Johnson might thereafter
make personally. Clause 3 of the settlement agreement provided:
|
| |
| |
"Mr.
Johnson undertakes that the amount of any claim made by him personally in
any action against [GW] in respect of any losses suffered by him by reason
of loss of income, dividends or capital distribution in respect of his
position as a shareholder of [WWH] will not exceed £250,000 not
including interest accruing in respect of any period after the date of this
agreement nor costs. This undertaking does not limit any other of Mr.
Johnson's rights against [GW]."
|
|
| |
A confidentiality clause in the agreement contained an exception "In
connection with any action which Mr. Johnson may bring against [GW]."
|
| 14. |
Mr. Johnson issued his writ in the present proceedings against GW on 7 April
1993. Over the next four-and-a-half years the parties pleaded and
re-pleaded their respective cases. A payment into court was made by GW.
Witness statements were exchanged. Mr. Johnson served his accountancy
evidence. On 20 November 1997 the action was fixed for trial in January
1999. On 3 December 1997 GW's solicitors intimated, for the first time,
that it intended to apply to strike out the action as an abuse of the
process of the court. Notice was also given that GW would seek the
determination of preliminary issues whether it had owed Mr. Johnson a duty
of care and whether the damages which he claimed were in principle
recoverable on the facts pleaded. On 25 February 1998 it was ordered that
preliminary issues be tried, the second of which was:
|
| |
| |
"to what extent
(if at all) on the basis of and assuming the truth of the facts pleaded as
set out above are any of the heads of damage pleaded in paragraphs 23 and 24
of the Re-Amended Statement of Claim irrecoverable as a matter of law by
[Mr. Johnson] by way of damages for the pleaded breaches of the duties owed
to him."
|
|
| 15. |
In paragraph 6 of his re-amended statement of claim Mr. Johnson pleaded an
implied term of his personal retainer of GW that it would exercise all due
skill and care in execution of that retainer, and a like duty of care in
tort. In paragraph 9 it was pleaded:
|
| |
| |
"Without prejudice to the generality of paragraph 6 above it was the duty of
[GW], in carrying out its retainer on behalf of [Mr. Johnson] in accordance
with the implied term pleaded in the said paragraph, or alternatively in
discharging its duty of care in tort owed to [Mr. Johnson], to
| | |
| (a) |
exercise all due skill and care in connection with the exercise of the said
option to purchase land and/or any further steps which were necessary to
obtain possession of the land;
| | (b) |
advise [Mr. Johnson] fully and accurately of all developments in connection
with the exercise of the said option which might affect the financial
requirements and prospects of [WWH];
| | (c) |
advise [Mr. Johnson] of the implications of such developments for his
personal financial situation and other business projects, including his
existing liabilities and new financial commitments contemplated;
| | (d) |
advise and/or warn [Mr. Johnson] fully and accurately of any delay or
difficulty in exercising the said option to purchase land, which might
adversely affect [Mr. Johnson's] personal financial situation and other
business projects, including his existing liabilities and new financial
commitments contemplated;
| | (e) |
advise and/or warn [Mr. Johnson] fully and accurately of the implications of
any advice given or steps taken by [GW] on behalf of [WWH] which might
adversely affect [Mr. Johnson's] personal financial situation and other
business projects."
|
|
|
| 16. |
In paragraph 12 it was pleaded that GW had acted in breach of the terms
pleaded in paragraphs 6 and 9 in connection with the exercise of WWH's
option to purchase the Burlesdon land, and in paragraph 16 it was pleaded
that between February 1988 and November 1989 GW had acted negligently or in
breach of the implied terms of its retainer pleaded in paragraphs 6 and 9 in
advising Mr. Johnson from time to time as to the likely duration and outcome
of the earlier proceedings against Mr. Moores. The claims for damages made
by Mr. Johnson in paragraphs 23 and 24 of his re-amended statement of claim
are the subject of detailed consideration below.
|
| 17. |
The preliminary issues came for hearing at first instance before Pumfrey J.
who, in a careful judgment delivered on 21 May 1998, resolved them in favour
of Mr. Johnson. On the abuse issue he found that GW was estopped by
convention from contending that the action was an abuse. Applying
Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd[ [1982] Q.B. 84M] he concluded:
|
| |
| |
"that in reaching the settlement, [GW] and Mr. Johnson did act on the common
assumption that the personal claim would be made, and would be entertained
by the court. I think that it is now unconscionable for [GW] to allege that
the personal claim is an abuse of process in the light of Henderson v Henderson." |
|
| 18. |
He resolved the duty issue in favour of Mr. Johnson. He concluded that the
heads of damage claimed by Mr. Johnson were not irrecoverable as a matter of
law as damages for the breaches alleged by Mr. Johnson.
|
| 19. |
GW appealed. In a judgment of the court (Nourse, Ward and Mantell L.JJ.)
given on 12 November 1998, the Court of Appeal agreed with the judge that on
the facts pleaded a duty of care had arguably been owed by GW to Mr.
Johnson. The Court of Appeal shared the judge's view on the difficulty of
the damage issue but agreed with his conclusion that the pleaded heads of
damage were arguably recoverable, save as to one head of damage which it
would have struck out.
|
| 20. |
The Court of Appeal held, differing from the judge, that there had been no
estoppel by convention. But it also held that there had been an abuse under
the rule in Henderson v Henderson[ (1843) 3 Hare 100]. It said (at
page 40 of the transcript of the judgment):
|
| |
| |
"Mr. ter Haar submits that the rule has no application because different
issues arise in the two sets of proceedings. In this action there are
entirely new questions about the extent of the duty owed to the plaintiff
personally and the losses he has suffered. On the other hand, there was in
our view a substantial similarity, particularly as to whether or not [GW's]
conduct as solicitors fell below the required standard in connection with
the exercise of the option and the conduct of the Chancery litigation
[against Mr. Moores] as well as the overlapping loss suffered by the
company. This encompasses practically the whole of the ground traversed for
six weeks in the company action. In our judgment, narrowly to circumscribe
the application of the rule would defeat its purpose. Mr Johnson was the
alter ego of the company: he controlled the company's decisions and
through him the company's claim was brought. Within days after that writ
was issued, he was intimating his personal claim. He could have brought it
then. Although his Legal Aid was then limited in some way which is not
clear to us, no explanation has been given for the delay in removing
whatever limitations had been imposed and he had full cover by October, long
before the trial. For reasons which appeared good to him, he preferred not
to delay the company action but to pursue it vigorously before the company
was forced into liquidation. That does not, in our judgment, excuse him
from failing to launch his own claims. If he could have done so, he should
have done so." |
|
| |
Abuse of process
|
| 21. |
The rule of law depends upon the existence and availability of courts and
tribunals to which citizens may resort for the determination of differences
between them which they cannot otherwise resolve. Litigants are not without
scrupulous examination of all the circumstances to be denied the right to
bring a genuine subject of litigation before the court (Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [[1975] A.C. 581] at 590
per Lord Kilbrandon, giving the advice of the Judicial Committee;
Brisbane City Council v Attorney-General for Queensland [ [1979] A.C.
411] at 425 per Lord Wilberforce, giving the advice of the Judicial
Committee). This does not however mean that the court must hear in full and
rule on the merits of any claim or defence which a party to litigation may
choose to put forward. For there is, as Lord Diplock said at the outset of
his speech in Hunter v Chief Constable of the West Midlands Police[
[1982] A.C. 529] at 536, an
|
| |
| |
"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 among right-thinking people. The
circumstances in which abuse of process can arise are very varied; those
which give rise to the instant appeal must surely be unique. 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." |
|
| 22. |
One manifestation of this power was to be found in RSC Order 18 rule 19
which empowered the court, at any stage of the proceedings, to strike out
any pleading which disclosed no reasonable cause of action or defence, or
which was scandalous, frivolous or vexatious, or which was otherwise an
abuse of the process of the court. A similar power is now to be found in
rule 3.4 of Part 3 of the Civil Procedure Rules.
|
| 23. |
GW contends that Mr Johnson has abused the process of the court by bringing
an action against it in his own name and for his own benefit when such an
action could and should have been brought, if at all, as part of or at the
same time as the action brought against the firm by WWH. The allegations of
negligence and breach of duty made against the firm by WWH in that action
were, it is argued, essentially those upon which Mr. Johnson now relies.
The oral and documentary evidence relating to each action is substantially
the same. To litigate these matters in separate actions on different
occasions is, GW contends, to duplicate the cost and use of court time
involved, to prolong the time before the matter is finally resolved, to
subject GW to avoidable harassment and to mount a collateral attack on the
outcome of the earlier action, settled by GW on the basis that liability was
not admitted.
|
| 24. |
This form of abuse of process has in recent years been taken to be that
described by Sir James Wigram V.-C. in Henderson v Henderson[ (1843)
3 Hare 100] at 114 where he said:
|
| |
| |
"In trying this question I believe I state the rule of the Court correctly
when I say that, where a given matter becomes the subject of litigation in,
and of adjudication by, a court of competent jurisdiction, the Court
requires the parties to that litigation to bring forward their whole case,
and will not (except under special circumstances) permit the same parties to
open the same subject of litigation in respect of matter which might have
been brought forward as part of the subject in contest, but which was not
brought forward, only because they have, from negligence, inadvertence, or
even accident, omitted part of their case. The plea of res judicata
applies, except in special cases, not only to points upon which the Court
was actually required by the parties to form an opinion and pronounce a
judgment, but to every point which properly belonged to the subject of
litigation, and which the parties, exercising reasonable diligence, might
have brought forward at the time." |
|
| 25. |
Thus the abuse in question need not involve the reopening of a matter
already decided in proceedings between the same parties, as where a party is
estopped in law from seeking to re-litigate a cause of action or an issue
already decided in earlier proceedings, but (as Somervell L.J. put it in
Greenhalgh v Mallard[ [1947] 2 All E.R. 255] at 257) may cover
|
| |
| |
"issues or facts which are so clearly part of the subject-matter of the
litigation and so clearly could have been raised that it would be an abuse
of the process of the court to allow a new proceeding to be started in
respect of them." |
|
| 26. |
A series of cases, mostly in recent years, has explored this form of abuse.
Reference need not be made to all of them. In the Yat Tung case
abuse was found where a claimant who had unsuccessfully sued a bank on one
ground brought a further action against the same bank and another party on a
different ground shortly thereafter. Giving the advice of the Judicial
Committee of the Privy Council, Lord Kilbrandon said at page 589:
|
| |
| |
"The second question depends on the application of a doctrine of estoppel,
namely res judicata. Their Lordships agree with the view expressed by
McMullin J. that the true doctrine in its narrower sense cannot be discerned
in the present series of actions, since there has not been, in the decision
in no. 969, any formal repudiation of the pleas raised by the appellant in
no. 534. Nor was Choi Kee, a party to no. 534, a party to no. 969. But
there is a wider sense in which the doctrine may be appealed to, so that it
becomes an abuse of process to raise in subsequent proceedings matters which
could and therefore should have been litigated in earlier proceedings."
|
|
| 27. |
In Brisbane City Council v Attorney-General for Queensland, above,
the Privy Council expressly endorsed Somervell L.J.'s reference to abuse of
process and observed, at page 425:
|
| |
| |
"This is the true basis of the doctrine and it ought only to be applied when
the facts are such as to amount to an abuse: otherwise there is a danger of
a party being shut out from bringing forward a genuine subject of
litigation." |
|
| 28. |
In Hunter case, above, in which Henderson v Henderson was
not cited, the plaintiff sought to challenge in civil proceedings a decision
in a criminal case against which he had not appealed on the ground which he
sought to raise in the civil proceedings. The proceedings were struck out.
|
| 29. |
In Vervaeke v Smith[ [1983] 1 A.C. 145] the
appellant, who had failed in English proceedings to annul her marriage, had
succeeded in doing so in Belgium on different grounds and sought recognition
in England of the Belgian decree. Lord Hailsham of St. Marylebone L.C. at
page 157 described the rule in Henderson v Henderson as "both a rule
of public policy and an application of the law of res judicata" and said of
it:
|
| |
| |
". . . whatever the limits of Henderson v Henderson[ (1843) 3 Hare
100] (which I regard as a sound rule in ordinary civil litigation) may
ultimately turn out to be, I believe that it must apply to a case like the
present, where the petitioner in the first proceedings not merely does not
rely on the grounds then already in theory available to her, but
deliberately conceals the real facts (on which she now relies) from the
court in order to put forward a bogus case which is radically inconsistent
with them." |
|
| 30. |
Ashmore v British Coal Corporation[ [1990] 2 Q.B. 338] involved an
attempt to reopen issues which had been decided adversely to the appellant's
contentions in rulings which, although not formally binding on her, had
been given in sample cases selected from a group of claims of which hers had
been one. The Court of Appeal held that it was not in the interests of
justice to allow her to pursue her claim. Reliance was placed on Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd[ [1982] 2
Lloyds Rep. 132] in which Kerr L.J. at page 137 said:
|
| |
| |
"To take the authorities first, it is clear that an attempt to relitigate in
another action issues which have been fully investigated and decided in a
former action may constitute an abuse of process, quite apart
from any question of res judicata or issue estoppel on the ground that the
parties or their privies are the same. It would be wrong to attempt to
categorize the situations in which such a conclusion would be appropriate."
|
|
| 31. |
In House of Spring Gardens Ltd v Waite[ [1991] 1 Q.B. 241] the
plaintiffs sued three defendants in England to enforce a judgment which they
had obtained against those defendants in Ireland. The defendants pleaded in
defence that the Irish judgment had been obtained by fraud. That was a
contention which two of the defendants, but not the third (a Mr. McLeod) had
raised in Irish proceedings to set aside the judgment, but the allegation
had been dismissed by Egan J. Summary judgment was given against the three
defendants in England but Mr. McLeod appealed against that judgment. The
Court of Appeal held that Mr. McLeod, like the other defendants, was
estopped from mounting what was in effect a collateral challenge to the
decision of Egan J. It also held that Mr. McLeod's defence was an abuse of
process. At page 255 Stuart-Smith L.J. said:
|
| |
| |
"The question is whether it would be in the interests of justice and public
policy to allow the issue of fraud to be litigated again in this court, it
having been tried and determined by Egan J. in Ireland. In my judgment it
would not; indeed, I think it would be a travesty of justice. Not only
would the plaintiffs be required to re-litigate matters which have twice
been extensively investigated and decided in their favour in the natural
forum, but it would run the risk of inconsistent verdicts being reached, not
only as between the English and Irish courts, but as between the defendants
themselves. The Waites have not appealed Sir Peter Pain's judgment, and
they were quite right not to do so. The plaintiffs will no doubt proceed to
execute their judgment against them. What could be a greater source of
injustice, if in years to come, when the issue is finally decided, a
different decision is in Mr. McLeod's case reached? Public policy requires
that there should be an end of litigation and that a litigant should not be
vexed more than once in the same cause." |
|
| 32. |
Arnold v National Westminster Bank Plc[ [1991] 2 A.C. 93] was a case
of issue estoppel. Tenants invited the court to construe the terms of a
rent review provision in the sub-underlease under which they held premises.
The provision had been construed in a sense adverse to them in earlier
proceedings before Walton J., but they had been unable to challenge his
decision on appeal. Later cases threw doubt on his construction. The
question was whether the rules governing issue estoppel were subject to
exceptions which would permit the matter to be reopened. The House held
that they were. At page 109 Lord Keith of Kinkel said:
|
| |
| |
"In my opinion your Lordships should affirm it to be the law that there may
an exception to issue estoppel in the special circumstance that there has
become available to a party further material relevant to the correct
determination of a point involved in the earlier proceedings, whether or not
that point was specifically raised and decided, being material which could
not by reasonable diligence have been adduced in those proceedings. One of
the purposes of estoppel being to work justice between the parties, it is
open to courts to recognise that in special circumstances inflexible
application of it may have the opposite result, as was observed by Lord
Upjohn in the passage which I have quoted above from his speech in the
Carl Zeiss [ case [1967] 1 A.C. 853], 947." |
|
| 33. |
In the passage referred to Lord Upjohn had said:
|
| |
| |
"All estoppels are not odious but must be applied so as to work justice and
not injustice and I think the principle of issue estoppel must be applied to
the circumstances of the subsequent case with this overriding consideration
in mind." |
|
| 34. |
Talbot v Berkshire County Council[ [1994] Q.B. 290] arose out of a
motor accident in which both the driver and his passenger were severely
injured. The passenger sued the driver. The driver's insurers, without
notice to the driver, made a third party claim against the Berkshire County
Council, claiming contribution as between joint tortfeasors but including no
claim for the driver's own injuries. Not until after the expiry of the
limitation period for bringing a personal claim did the driver learn of the
third party claim against the county council. At trial, the passenger
succeeded in full, damages being apportioned between the driver and the
county council. The driver then sued the county council to recover damages
for his own injuries. On the trial of preliminary issues, the judge held
that the driver was prima facie estopped from bringing the action but that
there were special circumstances which enabled the court to permit the
action to be pursued. The county council successfully challenged that
conclusion on appeal. At page 298 Stuart-Smith L.J. said:
|
| |
| |
"There can be no doubt that the [driver's] personal injury claim could have
been brought at the time of [the passenger's] action. It could have been
included in the original third party notice issued against the council
(R.S.C., Ord. 16, r. 1(b)(c)); it could have been started by a separate writ
and consolidated with or ordered to be tried with [the passenger's] action:
Ord. 4, r. 9. The third party proceedings could have been amended at any
time before trial and perhaps even during the trial to include such a claim,
notwithstanding that it was statute-barred, since it arose out of the same
or substantially the same facts as the cause of action in respect of which
relief was already claimed, namely, contribution or indemnity in respect of
[the passenger's] claim: Ord. 20, r. 5. In my opinion, if it was to be
pursued, it should have been so brought." |
|
| 35. |
Stuart-Smith L.J. considered that the insurers' solicitors appeared to have
been negligent but that the claim against the county council should be
struck out unless there were special circumstances, and concluded that there
were not. With his conclusions Mann and Nourse L.JJ. agreed. Since the
driver's claim against the county council was held by the judge to be
statute-barred, a claim against the solicitors may have offered the driver
his only hope of recovery.
|
| 36. |
The plaintiff in C (A Minor) v Hackney London Borough Council[ [1996]
1 W.L.R. 789] lived in the house of which her mother was tenant. She
suffered from Down's Syndrome and claimed in this action to have suffered
personal injury caused by the negligence and breach of statutory duty of the
borough council as housing authority. Her mother had previously made a
similar claim which had been the subject of a consent order in the county
court. The borough council applied to set aside a judgment entered in the
plaintiff's favour in default of defence and to strike out the claim on the
ground that the plaintiff's action was an abuse of the process of the court.
Reliance was placed in particular on the Yat Tung case and Talbot v Berkshire County Council. This argument was accepted by the judge,
who held that the plaintiff's action should have been advanced at the same
time as her mother's, the more so as the plaintiff was dependent on her
mother. The plaintiff's appeal against this decision succeeded. Simon
Brown L.J. said, at page 794:
|
| |
| |
"I therefore reject entirely the submission that Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [ [1975] A.C. 581] justifies extending the
Talbot v Berkshire County Council[ [1994] Q.B. 290] principle - that
an unlitigated monetary claim is barred if it could have been advanced and
established in earlier proceedings (itself to my mind an extended
application of the res judicata doctrine) - to those not themselves party to
the earlier proceedings.
| | |
"It follows from all this that in my judgment the doctrine of res judicata
even in its widest sense has simply no application to the circumstances of
the present case and that the judge erred in ruling to the contrary. One
does not, therefore, reach the point of asking here whether special
circumstances exist to exclude it; C's erstwhile solicitors' suggested
negligence is, frankly, an irrelevance. Nor, in my judgment, does this case
come within measurable distance of any other form of abuse of process based
on public policy considerations analogous to those underlying the res
judicata doctrine: see, for instance, the Court of Appeal's decision in
Ashmore v British Coal Corporation[ [1990] 2 Q.B. 338].
| | |
"All that said, this judgment should not be taken as any encouragement to
lawyers or their clients to follow the course in fact adopted here. As the
judge rightly recognised, in circumstances such as these, it is plainly in
the public interest to have a single action in which the claims of all the
affected members of the household are included rather than a multiplicity of
actions . . ." |
|
| 37. |
Barrow v Bankside Agency Ltd[ [1996] 1 W.L.R. 257] was one of the
flood of cases which arose out of losses in the Lloyd's insurance market.
Mr. Barrow was a member of an action group which had successfully sued a
number of members' agents for negligent underwriting. Having substantially
succeeded, but recovered only a proportion of the damages he had claimed,
Mr. Barrow issued fresh proceedings against his members' agent on a
different ground. It was clear that this claim, even if made earlier, would
not have been tried at the same time as the earlier action, since the
scheduling of cases was the subject of detailed management by the Commercial
Court. The members' agent contended that to bring this further claim, not
raised at the time of the earlier proceedings, was an abuse. In the Court
of Appeal it was said, at page 260:
|
| |
| |
"The rule in Henderson v Henderson [ (1843) 3 Hare 100] is very well
known. It requires the parties, when a matter becomes the subject of
litigation between them in a court of competent jurisdiction, to bring their
whole case before the court so that all aspects of it may be finally decided
(subject, of course, to any appeal) once and for all. In the absence of
special circumstances, the parties cannot return to the court to advance
arguments, claims or defences which they could have put forward for decision
on the first occasion but failed to raise. The rule is not based on the
doctrine of res judicata in a narrow sense, nor even on any strict doctrine
of issue or cause of action estoppel. It is a rule of public policy based
on the desirability, in the general interest as well as that of the parties
themselves, that litigation should not drag on for ever and that a defendant
should not be oppressed by successive suits when one would do. That is the
abuse at which the rule is directed." |
|
| 38. |
At page 263, the rule was described as a salutary one, and the court
suggested that its application should not be circumscribed by unnecessarily
restrictive rules. On the facts it was held that the procedure adopted by
Mr. Barrow was not an abuse. The court also held that if, contrary to its
opinion, the case did fall within the mischief at which Henderson v Henderson was directed, there were special circumstances which justified
non-application of the rule.
|
| |
In Manson v Vooght[ [1999] BPIR 376], the plaintiff had sued administrative
receivers of a company of which he had been managing director and principal
shareholder in a 1990 action which culminated in a judgment adverse to him
in 1993. There were other proceedings leading to other judgments, also given
in 1993, relating to certain of the same issues: proceedings to disqualify
the plaintiff as a director, in which findings adverse to him were made; and
summonses issued in the liquidation of the company, when the court refused
to allow issues which had been decided in the disqualification proceedings
to be re-litigated. In 1994 the plaintiff issued a further writ making
claims against the administrative receivers and others. His proceedings
against the administrative receivers were struck out on the ground that
these claims should have been raised, if at all, in the 1990 action. This
decision was upheld by the Court of Appeal. Giving the leading judgment May
L.J. said, at page 387:
|
| |
| |
"In my view, the use in this context of the
phrase 'res judicata' is perhaps unhelpful, and this not only because it is
Latin. We are not concerned with cases where a court has decided the
matter; but rather cases where the court has not decided the matter, but
where in a (usually late) succeeding action someone wants to bring a claim
which should have been brought, if at all, in earlier concluded proceedings.
If in all the circumstances the bringing of the claim in the succeeding
action is an abuse, the court will strike it out unless there are special
circumstances. To find that there are special circumstances may, for
practical purposes, be the same thing as deciding that there is no abuse, as
Sir Thomas Bingham M.R. came close to holding on the facts in Barrow.
The bringing of a claim which could have been brought in earlier proceedings
may not be an abuse. It may in particular cases be sensible to advance
cases separately. It depends on all the circumstances of each case. Once
the court's consideration is directed clearly towards the question of abuse,
it will be seen that the passage from Sir James Wigram V.-C.'s judgment in
Henderson is a full modern statement of the law so long as it is not
picked over semantically as if it were a tax statute.
| | |
"The extent
of any coincidence of causes of action, facts or even the capacities in
which parties are sued, though relevant, will not necessarily determine the
outcome . . ."
|
|
| 39. |
At page 388, May L.J.
continued:
|
| |
| |
"[Counsel for Mr. Manson] submits that the kind of abuse of
process relied on by the first defendant in this appeal is to be narrowly
confined and precisely defined so that legitimate claims are not stifled and
so that potential litigants know where they stand. Otherwise they may be
driven to include in one proceedings related but distinct claims which might
sensibly be left for later consideration. The law should not thus encourage
premature litigation which may prove unnecessary. He further submits that
delay is the subject of the law of limitation and should not feature
additionally as an element of abuse.
| | |
"It is of course axiomatic
that the court will only strike out a claim as an abuse after most careful
consideration. But the court has to balance a plaintiff's right to bring
before the court genuine and legitimate claims with a defendant's right to
be protected from being harassed by multiple proceedings where one should
have sufficed. Abuse of process is a concept which defies precise
definition in the abstract. In particular cases, the court has to decide
whether there is abuse sufficiently serious to justify preventing the
offending litigant from proceeding. In cases such as the present, the abuse
is sufficiently defined in Henderson which itself is encapsulated in
the proposition that the litigant could and should have raised the matter in
question in earlier concluded proceedings. Special circumstances may
negative or excuse what would otherwise be an abuse. But there may in
particular cases be elements of abuse additional to the mere fact that the
matter could and should have been raised in the earlier proceedings."
|
|
| |
On page 389 May L.J. added:
|
| |
| |
"Mr Manson relies on special
circumstances to negative or excuse the abuse. He says that the scope of
the 1990 action was limited because he had legal expenses insurance for that
action which only covered some of his claims and that the insurers were not
prepared to support the claims which he now wants to bring. Although this
may be an explanation, in my view it does not excuse the abuse nor does it
amount to special circumstances. It is commonplace for litigants to have
difficulties in affording the cost of litigation. But lack of means cannot
stand as an excuse for abuse of process."
|
|
| 40. |
Last in this series of cases comes Bradford & Bingley Building Society v Seddon[ [1999] 1 W.L.R. 1482], a decision later in time than
the Court of Appeal's judgment in the present case but given by two of the
same Lords Justices. Mr. Seddon had made an investment on the advice of an
accountant, Mr. Hancock, which he had financed by taking a mortgage loan
from the Bradford & Bingley Building Society. The investment failed.
Mr. Seddon claimed damages or an indemnity against Mr. Hancock, who admitted
liability to indemnify Mr. Seddon to the extent of about 75 per cent. of Mr.
Seddon's claim. Judgment was entered in Mr. Seddon's favour for this
admitted sum and Mr. Hancock was given leave to defend as to the balance.
Mr. Seddon was unable to enforce his judgment as Mr. Hancock had no money,
and the residual claim was not pursued. The building society then proceeded
against Mr. Seddon to enforce the debt owed to it under the mortgage loan.
Mr. Seddon sought to join as third parties Mr. Hancock, in order to pursue
the residual claim, and two of his partners, Mr. Seddon's contention being
that the advice tended to him had been given by the firm to which Mr.
Hancock and his partners belonged. An application to strike out the third
party claim was upheld by the judge and Mr. Seddon appealed. In the course
of a judgment with which Nourse and Ward L.JJ. agreed, Auld L.J. said at
page 1490:
|
| |
| |
"In my judgment, it is important to distinguish clearly between res judicata
and abuse of process not qualifying as res judicata, a distinction delayed
by the blurring of the two in the courts' subsequent application of the
above dictum [of Sir James Wigram V.-C. in Henderson v Henderson].
The former, in its cause of action estoppel form, is an absolute bar to
relitigation, and in its issue estoppel form also, save in 'special cases'
or 'special circumstances': see Thoday v Thoday[ [1964] P. 181],
197-198 per Diplock L.J. and Arnold v National Westminster Bank Plc[ [1991] 2 A.C. 93]. The latter, which may arise where there is no
cause of action or issue estoppel, is not subject to the same test, the task
of the court being to draw the balance between the competing claims of one
party to put his case before the court and of the other not to be unjustly
hounded given the earlier history of the matter . . .
| | |
"Thus, abuse of process may arise where there has been no earlier decision
capable of amounting to res judicata (either or both because the parties or
the issues are different) for example, where liability between new parties
and/or determination of new issues should have been resolved in the earlier
proceedings. It may also arise where there is such an inconsistency between
the two that it would be unjust to permit the later one to continue . . ."
|
|
| 41. |
At page 1492 Auld L.J. continued:
|
| |
| |
"In my judgment mere re-litigation, in circumstances not giving rise to
cause of action or issue estoppel, does not necessarily give rise to abuse
of process. Equally, the maintenance of a second claim which could have
been part of an earlier one, or which conflicts with an earlier one, should
not, per se, be regarded as an abuse of process. Rules of such rigidity
would be to deny its very concept and purpose. As Kerr L.J. and Sir David
Cairns emphasised in Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd[ [1982] 2 Lloyd's Rep. 132], 137, 138-139 respectively, the
courts should not attempt to define or categorise fully what may amount to
an abuse of process; see also per Stuart-Smith L.J. in Ashmore v British Coal Corporation[ [1992] Q.B. 338], 352. Sir Thomas Bingham M.R.
underlined this in Barrow v Bankside Agency Ltd[ [1996] 1 W.L.R.
257], stating, at page 263B, that the doctrine should not be circumscribed by
unnecessarily restrictive rules" since its purpose was the prevention of
abuse and it should not endanger the maintenance of genuine claims; see also
per Saville L.J. at page 266D-E.
| | |
"Some additional element is required, such as a collateral attack on a
previous decision (see e.g. Hunter v Chief Constable of the West Midlands Police [ [1982] A.C. 529]; Bragg[ case [1982] 2 Lloyd's
Rep. 132], per Kerr L.J. and Sir David Cairns, at pp. 137 and 139
respectively, and Ashmore [ case [1990] 2 Q.B. 338]), some dishonesty
(see e.g. per Stephenson L.J. in Bragg case, at p. 139, and
Potter L.J. in Morris v Wentworth-Stanley[ [1999] 2 W.L.R. 470], 480
and 481; or successive actions amounting to unjust harassment (see e.g.
Manson v Vooght . . .))." |
|
| |
The Court of Appeal held that Mr. Seddon's third-party proceedings were not
an abuse of process, and the appeal succeeded.
|
| 42. |
It may very well be, as has been convincingly argued (Watt, "The Danger and
Deceit of the Rule in Henderson v Henderson: A new approach to
successive civil actions arising from the same factual matter," 19 Civil
Justice Quarterly, (July 2000), page 287), that what is now taken to be
the rule in Henderson v Henderson, has diverged from the ruling
which Wigram V.-C. made, which was addressed to res judicata. 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 unjust harassment of a
party. It is, however, wrong to hold that because a matter could have been
raised in early 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. As one cannot comprehensively list all
possible forms of abuse, so one cannot formulate any hard and fast rule to
determine whether, on given facts, abuse is to be found or not. Thus while
I would accept that lack of funds would not ordinarily excuse a failure to
raise in earlier proceedings an issue which could and should have been
raised then, I would not regard it as necessarily irrelevant, particularly
if it appears that the lack of funds has been caused by the party against
whom it is sought to claim. While the result may often be the same, it is
in my view preferable to ask whether in all the circumstances a party's
conduct is an abuse than to ask whether the conduct is an abuse and then, if
it is, to ask whether the abuse is excused or justified by special
circumstances. Properly applied, and whatever the legitimacy of its
descent, the rule has in my view a valuable part to play in protecting the
interests of justice.
|
| 43. |
Mr. ter Haar, for Mr. Johnson, submitted (as the judge had held) that GW was
estopped by convention from contending that the bringing of an action to
enforce his personal claims was an abuse of process. In resisting GW's
complaint of abuse, Mr. ter Haar relied, as he did in the courts below, on
three features of this case in particular. The first was the acute
financial predicament in which Mr. Johnson personally and WWH found
themselves as a result, as Mr. Johnson alleges, of GW's negligence. The
burden of financing the continuing operation of WWH, and of its very
expensive litigation against GW, fell on him. His means was stretched to
the utmost. The only hope of financial salvation lay in an early and
favourable outcome to the company's claim against GW. Mr. Johnson did not
have a full legal aid certificate to pursue a personal claim. In any event,
the addition of a personal claim would have complicated and delayed the
trial of the company's claim, which might well have jeopardised the
company's survival. Secondly, Mr. ter Haar relied on the conduct of the
parties after the settlement agreement was made (if, contrary to his earlier
submission, there was no estoppel by convention). He pointed out that
four-and-a-half years elapsed from the issue of Mr. Johnson's writ in this
action before GW first intimated their intention to apply to strike out the
proceedings as an abuse of the court's process, during which period
pleadings and evidence were exchanged, considerable costs were incurred, a
substantial payment into court was made and a trial date fixed. This
procedural history, he submitted, was evidence of the expectation of the
parties at the time when the company's action was settled, and was in itself
ground for rejecting GW's application; Halliday v Shoesmith[ [1993] 1
W.L.R. 1] at 5. Thirdly, Mr. ter Haar submitted that, to the extent that
issues litigated in the company's action were to be re-litigated in this
action, it was because GW had insisted on this and rejected the invitation
of Mr. Johnson to treat the evidence given in the earlier action as if given
in this action.
|
| 44. | Two subsidiary
arguments were advanced by Mr. ter Haar in the courts below and rejected by
each. The first was that the rule in Henderson v Henderson did not
apply to Mr. Johnson since he had not been the plaintiff in the first action
against GW. In my judgment this argument was rightly rejected. A formulaic
approach to application of the rule would be mistaken. WWH was the
corporate embodiment of Mr. Johnson. He made decisions and gave
instructions on its behalf. If he had wished to include his personal claim
in the company's action, or to issue proceedings in tandem with those of the
company, he had power to do so. The correct approach is that formulated by
Sir Robert Megarry V.-C. in Gleeson v J. Wippell & Co Ltd[
[1977] 1 W.L.R. 510] at 515 where he said:
|
| |
| |
"Second, it seems to me that
the substratum of the doctrine is that a man ought not to be allowed to
litigate a second time what has already been decided between himself and the
other party to the litigation. This is in the interest both of the
successful party and of the public. But I cannot see that this provides any
basis for a successful defendant to say that the successful defence is a bar
to the plaintiff suing some third party, or for that third party to say that
the successful defence prevents the plaintiff from suing him, unless there
is a sufficient degree of identity between the successful defendant and the
third party. I do not say that one must be the alter ego of the other: but
it does seem to me that, having due regard to the subject matter of the
dispute, there must be a sufficient degree of identification between the two
to make it just to hold that the decision to which one was party should be
binding in proceedings to which the other is party. It is in that sense
that I would regard the phrase 'privity of interest . . . .'"
|
|
| |
On the present facts that test was clearly satisfied.
|
| 45. |
The second subsidiary argument was that the rule in Henderson v Henderson did not apply to Mr. Johnson since the first action against GW
had culminated in a compromise and not a judgment. This argument also was
rightly rejected. An important purpose of the rule is to protect a
defendant against the harassment necessarily involved in repeated actions
concerning the same subject matter. A second action is not the less
harassing because the defendant has been driven or thought it prudent to
settle the first; often, indeed, that outcome would make a second action the
more harassing.
|
| 46. |
On the estoppel by convention issue, Mr. Steinfeld Q.C. for GW submitted
that the Court of Appeal had been right and the judge wrong. There had been
no common understanding between the parties on the issue of abuse, a topic
which had never been raised. There was nothing to suggest that GW had
tacitly agreed to forgo any defence properly open to it. Mr. Steinfeld
further submitted that the present proceedings did amount to an abuse, as
the Court of Appeal had rightly held. Mr. Johnson could have advanced his
personal claim at the same time as the company's claim and therefore should
have done so. The consequence of his not doing so was to expose GW to the
harassment of further proceedings canvassing many of the same issues as had
been canvassed in the earlier action, with consequential waste of time and
money and detriment to other court users. The facts relied on to excuse his
earlier inaction were not accepted. He should have sought a full legal aid
certificate earlier. He could not rely on lack of means. Any loss caused
to Mr. Johnson by GW's delay in applying to strike out could be compensated
in costs.
|
| 47. |
Neither party challenged the correctness in principle of Lord Denning M.R.'s
statement in the Amalgamated Investment case, above, at page 122
which, despite its familiarity, I quote:
|
| |
| |
"The doctrine of estoppel is one of the most flexible and useful in the
armoury of the law. But it has become overloaded with cases. That is why I
have not gone through them all in this judgment. It has evolved during the
last 150 years in a sequence of separate developments: proprietary estoppel,
estoppel by representation of fact, estoppel by acquiescence, and promissory
estoppel. At the same time it has been sought to be limited by a series of
maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a
cause of action, estoppel cannot do away with the need for consideration,
and so forth. All these can now be seen to merge into one general principle
shorn of limitations. When the parties to a transaction proceed on the
basis of an underlying assumption - either of fact or of law - whether due
to misrepresentation or mistake makes no difference - on which they have
conducted the dealings between them - neither of them will be allowed to go
back on that assumption when it would be unfair or unjust to allow him to do
so. If one of them does seek to go back on it, the courts will give the
other such remedy as the equity of the case demands."
|
|
| 48. |
The question is whether the parties to the settlement of WWH's action
(relevantly, Mr. Johnson and GW) proceeded on the basis of an underlying
assumption that a further proceeding by Mr. Johnson would not be an abuse of
process and whether, if they did, it would be unfair or unjust to allow GW
to go back on that assumption. In my judgment both these conditions were
met on the present facts. Mr. Johnson was willing in principle to try to
negotiate an overall settlement of his and the company's claims but this was
not possible in the time available and it was GW's solicitor who said that
the personal claim "would be a separate claim and it would really be a
matter for separate negotiation in due course." It is noteworthy that Mr.
Johnson personally was party to the settlement agreement, and that the
agreement contained terms designed to preclude (in one instance) and limit
(in another) personal claims by him. Those provisions only made sense on
the assumption that Mr. Johnson was likely to make a personal claim. GW did
not, of course, agree to forgo any defence the firm might have to Mr.
Johnson's claim if brought, and the documents show that GW's solicitor was
alert to issues of remoteness and duplication. Had Mr. Johnson delayed
unduly before proceeding, a limitation defence would have become available.
But an application to strike out for abuse of process is not a defence, it
is an objection to an action being brought at all. The terms of the
settlement agreement and the exchanges which preceded it in my view point
strongly towards acceptance by both parties that it was open to Mr. Johnson
to issue proceedings to enforce a personal claim, which could then be tried
or settled on its merits, and I consider that it would be unjust to permit
GW to resile from that assumption.
|
| 49. |
If, contrary to my view, GW is not estopped by convention from seeking to
strike out Mr. Johnson's action, its failure to take action to strike out
over a long period of time is potent evidence not only that the action was
not seen as abusive at the time but also that, on the facts, it was not
abusive. The indicia of true abuse are not so obscure that an experienced
professional party, advised by leading counsel (not, at that stage, Mr.
Steinfeld), will fail to recognise them. It is accepted that Mr. Johnson
had reasons which he regarded as compelling to defer prosecution of his
personal claim. If, as he contended, the urgency of obtaining an early and
favourable decision in the company's action was itself a result of GW's
breach of duty to the company and to him, it would seem to me wrong to
stigmatise as abusive what was, in practical terms, unavoidable. I agree
with GW that it would certainly have been preferable if the judge who tried
the company's action, and thereby became familiar with much of the relevant
detail and evidence, had been able at the same time or shortly thereafter to
rule on the personal claim. That would have been efficient and economical.
But there were reasons accepted at least implicitly by both parties at the
time for not proceeding in that way, and GW could, if it wishes, limit the
extent to which issues extensively canvassed in the earlier action are to be
reopened. It is far-fetched to suggest that this action involves a
collateral attack on GW's non-admission of liability in the first action
when that action was settled by insurers on terms quite inconsistent with
any realistic expectation that GW would not be found liable.
|
| 50. |
In my opinion, based on the facts of this case, the bringing of this action
was not an abuse of process. The Court of Appeal adopted too mechanical an
approach, giving little or no weight to the considerations which led Mr.
Johnson to act as he did and failing to weigh the overall balance of
justice. I would allow Mr. Johnson's appeal.
|
| |
The recoverability of the damages claimed by Mr. Johnson
|
| 51. |
By its notice of cross-appeal GW challenged the Court of Appeal's ruling
that all the heads of damage pleaded on behalf of Mr. Johnson (with one
exception) were or might be recoverable in principle if the pleaded facts
were fully proved.
|
| 52. |
GW's first argument before the House, applicable to all save two of the
pleaded heads of damage, was in principle very simple. It was that this
damage, if suffered at all, had been suffered by WWH and Mr. Johnson, being
for this purpose no more than a shareholder in the company, could not sue to
recover its loss. As the Court of Appeal pointed out in Prudential Assurance Co Ltd v Newman Industries Ltd (No. 2)[ [1982]
Ch. 204] at 210:
|
| |
| |
"A derivative action is an exception to the elementary principle that A
cannot, as a general rule, bring an action against B to recover damages or
secure other relief on behalf of C for an injury done by B to C. C is the
proper plaintiff because C is the party injured, and, therefore, the person
in whom the cause of action is vested."
|
|
| |
Here, it was argued, Mr. Johnson was seeking to recover damage which had been suffered by WWH.
|
| 53. |
Mr. Johnson's response was equally simple. It was accepted, for purposes of
the application to strike out the damages claim, that GW owed a duty to him
personally and was in breach of that duty. Therefore, subject to showing
that the damage complained of was caused by GW's breach of duty and was not
too remote, which depended on the facts established at trial and could not
be determined on the pleadings, he was entitled in principle to recover any
damage which he had himself suffered as a personal loss separate and
distinct from any loss suffered by the company.
|
| 54. |
On this issue we were referred to a number of authorities which included
Lee v Sheard[ [1956] 1 QB 192]; Prudential Assurance v Newman,
above; Heron International Ltd v Lord Grade, Associated Communications Corp. Plc.[ [1983] BCLC 244]; R. P. Howard Ltd & Richard Alan Witchell v Woodman Matthews & Co (a firm)[
[1983] BCLC 117]; George Fischer (Great Britain) Ltd v Multi Construction Ltd, Dexion Ltd (third party)[ [1995] 1 BCLC 260];
Christensen v Scott[ [1996] 1 NZLR 273]; Barings Plc. (in administration) & another v Coopers & Lybrand (a firm)[
[1997] 1 BCLC 427]; Gerber Garment Technology Inc. v Lectra Systems Ltd & another[ [1997] RPC 443]; Stein v Blake[ [1998] 1
All ER 724]; and Watson & Another v Dutton Forshaw Motor Group Ltd,[ Court of Appeal, unreported, 22 July 1998].
|
| 55. |
These authorities support the following propositions:
|
| |
| (1) |
Where a company suffers loss caused by a breach of duty owed to it, only the
company may sue in respect of that loss. No action lies at the suit of a
shareholder suing in that capacity and no other to make good a diminution in
the value of the shareholder's shareholding where that merely reflects the
loss suffered by the company. A claim will not lie by a shareholder to make
good a loss which would be made good if the company's assets were
replenished through action against the party responsible for the loss, even
if the company, acting through its constitutional organs, has declined or
failed to make good that loss. So much is clear from Prudential,
particularly at pages 222-3, Heron International, particularly at
pages 261-2, George Fischer, particularly at pages 266 and 270-271,
Gerber and Stein v Blake, particularly at pages 726-729.
| | (2) |
Where a company suffers loss but has no cause of action to sue to recover
that loss, the shareholder in the company may sue in respect of it (if the
shareholder has a cause of action to do so), even though the loss is a
diminution in the value of the shareholding. This is supported by Lee v Sheard, at pages 195-6, George Fischer and Gerber.
| | (3) |
Where a company suffers loss caused by a breach of duty to it, and a
shareholder suffers a loss separate and distinct from that suffered by the
company caused by breach of a duty independently owed to the shareholder,
each may sue to recover the loss caused to it by breach of the duty owed to
it but neither may recover loss caused to the other by breach of the duty
owed to that other. I take this to be the effect of Lee v Sheard,
at pages 195-6, Heron International, particularly at page 262, R. P. Howard, particularly at page 123, Gerber and Stein v Blake, particularly at page 726. I do not think the observations of
Leggatt L.J. in Barings at p. 435B and of the Court of Appeal of New
Zealand in Christensen v Scott at page 280, lines 25-35, can be
reconciled with this statement of principle.
|
|
| 56. |
These principles do not resolve the crucial decision which a court must make
on a strike-out application, whether on the facts pleaded a shareholder's
claim is sustainable in principle, nor the decision which the trial court
must make, whether on the facts proved the shareholder's claim should be
upheld. On the one hand the court must respect the principle of company
autonomy, ensure that the company's creditors are not prejudiced by the
action of individual shareholders and ensure that a party does not recover
compensation for a loss which another party has suffered. On the other, the
court must be astute to ensure that the party who has in fact suffered loss
is not arbitrarily denied fair compensation. The problem can be resolved
only by close scrutiny of the pleadings at the strike-out stage and all the
proven facts at the trial stage: the object is to ascertain whether the loss
claimed appears to be or is one which would be made good if the company had
enforced its full rights against the party responsible, and whether (to use
the language of Prudential at page 223) the loss claimed is "merely a
reflection of the loss suffered by the company." In some cases the answer
will be clear, as where the shareholder claims the loss of dividend or a
diminution in the value of a shareholding attributable solely to depletion
of the company's assets, or a loss unrelated to the business of the company.
In other cases, inevitably, a finer judgment will be called for. At the
strike-out stage any reasonable doubt must be resolved in favour of the
claimant.
|
| 57. |
I turn to consider the heads of claim now pleaded by Mr. Johnson.
|
| |
| (1) |
CPV and Adfocus. The claim is for sums which Mr. Johnson, acting on GW's
advice, invested in these companies and lost. This claim is unobjectionable
in principle, as Mr. Steinfeld came close to accepting.
| | (2) |
Cost of personal borrowings: loan capital and interest. The claim is for
sums which Mr. Johnson claims he was obliged to borrow at punitive rates of
interest to fund his personal outgoings and those of his businesses. Both
the ingredients and the quantum of this claim will call for close
examination, among other things to be sure that it is not a disguised claim
for loss of dividend, but it cannot at this stage be struck out as bad on
its face. The same is true of Mr. Johnson's claims for bank interest and
charges and mortgage charges and interest (which will raise obvious
questions of remoteness).
| | (3) |
Diminution in value of Mr. Johnson's pension and majority shareholding in
WWH. In part this claim relates to payments which the company would have
made into a pension fund for Mr. Johnson: I think it plain that this claim
is merely a reflection of the company's loss and I would strike it out. In
part the claim relates to enhancement of the value of Mr. Johnson's pension
if the payments had been duly made. I do not regard this part of the claim
as objectionable in principle. An alternative claim, based on the
supposition that the company would not have made the pension payments, that
its assets would thereby have been increased and that the value of Mr.
Johnson's shareholding would thereby have been enhanced, is also a
reflection of the company's loss and I would strike it out.
| | (4) |
Loss of 12.5 per cent. of Mr. Johnson's shareholding in WWH. Mr. Johnson
claims that he transferred these shares to a lender as security for a loan
and that because of his lack of funds, caused by GW's breach of duty, he was
unable to buy them back. This claim is not in my view objectionable in
principle.
| | (5) |
Additional tax liability. If proved, this is a personal loss and I would not strike it out.
|
|
| 58. |
The second limb of GW's argument on the cross-appeal was directed to Mr.
Johnson's claim for damages for mental distress and anxiety. This is a
claim for general damages for "the mental distress and anxiety which he has
suffered as a result of the protracted litigation process to which he has
been subjected, the extreme financial embarrassment in which he and his
family have found themselves, and the deterioration in his family
relationships, particularly with his wife and son, as a result of the
matters complained of in the Re-Amended Statement of Claim." Closely allied
to this was a claim, pleaded at length, for aggravated damages "by reason of
the fact that the manner of the commission of [GW's] tort was such as to
injure his pride and dignity." GW contended that damages for mental
distress and anxiety did not lie for breach of a commercial contract such as
the present and that this was not a class of case in which aggravated
damages were in principle recoverable. Mr. ter Haar took issue with both
these points.
|
| 59. |
The general rule laid down in Addis v Gramophone Co Ltd[ [1909]
A.C. 488] was that damages for breach of contract could not include damages
for mental distress. Cases decided over the last century established some
inroads into that general rule (see, generally, McGregor on Damages,
16th ed. (1997) at paras. 98-104). But the inroads have been limited and
McGregor describes as a useful summary a passage in Watts v Morrow[ [1991] 1 W.L.R. 1421] at 1445:
|
| |
| |
"A contract-breaker is not in general liable for any distress, frustration,
anxiety, displeasure, vexation, tension or aggravation which his breach of
contract may cause to the innocent party. This rule is not, I think,
founded on the assumption that such reactions are not foreseeable, which
they surely are or may be, but on considerations of policy. But the rule is
not absolute. Where the very object of a contract is to provide pleasure,
relaxation, peace of mind or freedom from molestation, damages will be
awarded if the fruit of the contract is not provided or if the contrary
result is procured instead." |
|
| 60. |
Your Lordships' House had occasion to touch on this question in Ruxley Electronics & Construction Ltd v Forsyth[ [1996] A.C. 344], an unusual
case in which the issue concerned the measure of compensation recoverable by
a building owner against a contractor who had built a swimming pool which
was 18 inches shallower at the deep end than the contract specified. At
page 374, Lord Lloyd of Berwick said:
|
| |
| |
"Addis v Gramophone Co Ltd established the general rule that in
claims for breach of contract, the plaintiff cannot recover damages for his
injured feelings. But the rule, like most rules, is subject to exceptions.
One of the well established exceptions is when the object of the contract is
to afford pleasure, as, for example, where the plaintiff has booked a
holiday with a tour operator. If the tour operator is in breach of contract
by failing to provide what the contract called for, the plaintiff may
recover damages for his disappointment: see Jarvis v Swans Tours Ltd[ [1973] Q.B. 233] and Jackson v Horizon Holidays Ltd[ [1975]
1 W.L.R. 1468].
| | |
"This was, as I understand it, the principle which Judge Diamond applied in
the present case. He took the view that the contract was one 'for the
provision of a pleasurable amenity'. In the event, Mr. Forsyth's pleasure
was not so great as it would have been if the swimming pool had been 7 feet
6 inches deep. This was a view which the judge was entitled to take. If it
involves a further inroad on the rule in Addis v Gramophone Co Ltd[
[1909] A.C. 488], then so be it. But I prefer to regard it as a logical
application or adaptation of the existing exception to a new situation."
|
|
| 61. |
I do not regard this observation as throwing doubt on the applicability of
Addis in a case such as the present. It is undoubtedly true that
many breaches of contract, cause intense frustration and anxiety to the
innocent party. I am not, however, persuaded on the argument presented on
this appeal that the general applicability of Addis should be further
restricted.
|
| 62. |
I would strike out Mr. Johnson's claim for damages for mental distress and
anxiety. I would also strike out his claim for aggravated damages: I see
nothing in the pleaded facts which would justify any award beyond the basic
compensatory measure of damages.
|
| |
Conclusion
|
| 63. |
For these reasons I would allow Mr. Johnson's appeal and dismiss GW's
cross-appeal, save that I would strike out his claims (identified in (3)
above) for pension payments and the enhanced value of his shareholding, and
for damages for mental distress and anxiety and aggravated damages. I would
order GW to pay Mr. Johnson's costs before the Court of Appeal and the
judge, and the costs of the appeal and the cross-appeal to this House.
|
| |
LORD GOFF OF CHIEVELEY
|
| |
My Lords,
|
| |
|
| |
|
| 64. |
On the question whether there was an abuse of process on the part of the
appellant, my noble and learned friend Lord Bingham of Cornhill has reviewed
the facts and the relevant authorities in lucid detail. I find myself to be
in complete agreement with his analysis of the authorities, and with his
conclusion that on the facts there was no abuse of process on the part of
the appellant; and I do not propose to burden this opinion with a repetition
of his reasoning. I only wish to add a few words on the separate question
of estoppel, with regard to the nature of the estoppel on which the
appellant could, if necessary, have relied.
|
| |
|
| 65. |
The conclusion of the learned judge, and the contention of Mr. ter Haar for
the appellant, was that the relevant estoppel was estoppel by convention.
Reliance was placed in particular on a well-known passage in the judgment of
Lord Denning M.R. in Amalgamated Investment & Property Co Ltd v Texas Commerce International Bank Ltd[ [1982] Q.B. 84] at p. 122, where
he said:
|
| |
| |
"The doctrine of estoppel is one of the most flexible and useful in the
armoury of the law. But it has become overloaded with cases. That is why I
have not gone through them all in this judgment. It has evolved during the
last 150 years in a sequence of separate developments proprietary estoppel,
estoppel by representation of fact, estoppel by acquiescence, and promissory
estoppel. At the same time it has been sought to be limited by a series of
maxims: estoppel is only a rule of evidence, estoppel cannot give rise to a
cause of action, estoppel cannot do away with the need for consideration,
and so forth. All these can now be seen to merge into one general principle
shorn of limitations. When the parties to a transaction proceed on the
basis of an underlying assumption - either of fact or of law - whether due
to misrepresentation or mistake makes no difference - on which they have
conducted the dealings between them - neither of them will be allowed to go
back on that assumption when it would be unfair or unjust to allow him to do
so. If one of them does seek to go back on it, the courts will give the
other such remedy as the equity of the case demands." |
|
| 66. |
This broad statement of law is most appealing. I yield to nobody in my
admiration for Lord Denning; but it has to be said that his attempt in this
passage to identify a common criterion for the existence of various forms of
estoppel - he refers in particular to proprietary estoppel, estoppel by
representation of fact, estoppel by acquiescence, and promissory estoppel -
is characteristically bold; and that the criterion which he chooses, viz.
that the parties to a transaction should have proceeded on the basis of an
underlying assumption, was previously thought to be relevant only in certain
cases (for example, it was adopted by Oliver J. (as he then was) in his
important judgment in Taylors Fashions v Liverpool Victoria Trustees Co Ltd) and, in particular, in the case of estoppel by convention, a
species of estoppel which Lord Denning does not mention. Furthermore, if he
intended that his broad statement of principle should apply in the case of
estoppel by convention, a further problem arises in that, in relation to
that doctrine, it has been authoritatively stated in Spencer Bower and
Turner on Estoppel by Representation, in the scholarly and much admired
Third Edition (1977) by Sir Alexander Turner, at pp. 168-9, that:
|
| |
| |
"Just as the representation which supports an estoppel in pais must
be a representation of fact, the assumed state of affairs which is
the necessary foundation of an estoppel by convention must be an assumed
state of facts presently in existence . . . No case has gone so far as to
support an estoppel by convention precluding a party from resiling from a
promise or assurance, not effective as a matter of contract, as to future
conduct or as to a state of affairs not yet in existence. And there is no
reason to suppose that the doctrine will ever develop so far. To allow such
an estoppel would amount to the abandonment of the doctrine of
consideration, and to accord contractual effect to assurances as to the
future for which no consideration has been given." |
|
| 67. |
I myself suspect that this statement may be too categorical; but we cannot
ignore the fact that it embodies a fundamental principle of our law of
contract. The doctrine of consideration may not be very popular nowadays;
but although its progeny, the doctrine of privity, has recently been
abolished by statute, the doctrine of consideration still exists as part of
our law.
|
| 68. |
I myself was the judge of first instance in the Amagamated Property Co v Texas Bank case. I remember the doctrine of estoppel by convention
being urged upon me; but the case was concerned with the scope of a
guarantee, which was a matter of law, and, in the light of the passage in
Spencer Bower and Turner which I have just quoted, I hesitated to adopt the
doctrine. Cautiously, and I still think wisely, I founded my conclusion on
a broader basis of unconscionability. In the Court of Appeal, however, both
Eveleigh L.J. and Brandon L.J. (as he then was) expressly founded the
relevant parts of their judgments on the doctrine of estoppel by convention.
They did so relying on the statement of principle from Spencer Bower and
Turner which I have already cited, which limits the doctrine to cases where
there has been an agreed assumption as to facts, but nevertheless
applied that statement to a case where the agreed assumption (as to the
scope of the guarantee) was one of law. If Lord Denning's statement of
principle is to be read as applying to the case of estoppel by convention,
he implicitly rejected the statement of the law in Spencer Bower &
Turner, holding that there could be an estoppel whether the common
underlying assumption was one of fact or of law.
|
| 69. |
I accept that in certain circumstances an estoppel may have the effect of
enabling a party to enforce a cause of action which, without the estoppel,
would not exist. Examples are given in my judgment in Amalgamated Property Co v Texas Bank[ [1982] Q.B. 84] at pp. 105-7. But in my
opinion it is not enough for that purpose that the estoppel may be
characterised as an estoppel by convention, or that it can be said to be
founded upon a common assumption by the parties.
|
| 70. |
Against this background I am, despite my great admiration for Lord Denning,
reluctant to proceed on the basis of estoppel by convention in the present
case. The function of the estoppel is here said to be to preclude the
respondent firm from contending that Mr. Johnson, by personally advancing a
separate claim to damages against the respondent firm instead of doing so at
the same time as pursuing his company's claim, was abusing the process of
the court. That, as I see it, must relate to a matter of law. It could,
however, be appropriate subject matter for an estoppel by representation,
whether in the form of promissory estoppel or of acquiescence, on account of
which the firm is, by reason of its prior conduct, precluded from enforcing
its strict legal rights against Mr. Johnson (to claim that his personal
proceedings against the firm constituted an abuse of the process of the
court). Such an estoppel is not, as I understand it, based on a common
underlying assumption so much as on a representation by the representor that
he does not intend to rely upon his strict legal rights against the
representee which is so acted on by the representee that it is inequitable
for the representor thereafter to enforce those rights against him. This
approach, as I see it, is consistent with the conclusion of my noble and
learned friend Lord Millett, who considers that the firm would be so
precluded by virtue of its acquiescence in the manner in which Mr. Johnson
had conducted the litigation hitherto. In the context of the present case,
moreover, I can see no material difference between invoking promissory
estoppel or acquiescence as the ground on which the respondent firm should
be precluded from asserting that the appellant had abused the process of the
Court. The truth of the matter is that the respondent firm, by its conduct
and in particular by participating in negotiations for settlement of the
company's claim against it on the basis that Mr. Johnson would thereafter be
free to pursue his own personal claim against it, lulled Mr. Johnson into a
sense of security that he was free to pursue such a claim against the firm,
without objection, in separate proceedings, with the effect that it became
unconscionable for the firm to contend that his personal proceedings
constituted an abuse of the process of the court. In the end, I am inclined
to think that the many circumstances capable of giving rise to an estoppel
cannot be accommodated within a single formula, and that it is
unconscionability which provides the link between them.
|
| 71. |
For these reasons I would, like the remainder of your Lordships, allow the
appeal; and I now turn to the cross-appeal of the respondent firm.
|
| |
|
| 72. |
Here the question is whether certain heads of claim advanced by the
appellant, Mr. Johnson, against the respondent firm, should be struck out.
The relevant heads of claim are usefully recorded in the opinion of my noble
and learned friend, Lord Bingham of Cornhill. I do not propose to repeat
them in this opinion. The Court of Appeal held that each of the heads of
damage pleaded in paragraphs 23 and 24 of the Re-Amended Statement of Claim
is recoverable as a matter of law by the appellant by way of damages for the
breaches of duty pleaded by him, and so should not be struck out. It is
against that decision that the respondent firm now cross-appeals to your
Lordships' House.
|
| 73. |
The principal ground on which it is said by the respondent firm that some of
these heads of claim should be struck out is derived from the well-known
case of Prudential Assurance Co Ltd v Newman Industries Ltd[ [1982]
Ch. 204]. I agree with the analysis of that case, and of the other cases
following upon it, set out in the opinion of my noble and learned friend
Lord Millett (which I have had the opportunity of reading in draft). I
accordingly agree with his conclusion that:
|
| |
| |
"On the assumption which we are bound to make for the purpose of this
appeal, which is that the firm was in breach of a duty of care owed to Mr.
Johnson personally, then he is in principle entitled to recover damages in
respect of all heads of non-reflective consequential loss which are not too
remote."
|
|
| 74. |
On that basis I, like Lord Millett, agree with my noble and learned friend
Lord Bingham of Cornhill that the heads of damage specified by him as items
1, 2, 4 and 5 are unobjectionable and should not be struck out. Item 3
relates to the diminution in value of the appellant's pension policy set up
by the company and accruing to the benefit of the appellant as part of his
remuneration in his capacity as director of the company. In so far as the
claim relates to payments which the company would have made into a pension
fund for the appellant, I agree that the claim is merely a reflection of the
company's loss and should therefore be struck out. But in so far as it
relates to enhancement of the value of his pension if the payments had been
made, it is unobjectionable and should be allowed to stand.
|
| 75. |
The second ground relates to the appellant's claims for general damages for
mental distress, and for aggravated damages based on the fact that the
manner of commission of the respondent firm's wrong was "such as to injure
his pride and dignity". I agree with my noble and learned friend Lord
Bingham of Cornhill that, as a matter of principle, damages on these grounds
are not generally recoverable: see Addis v Gramophone Co[ [1909]
A.C. 488]; Watts v Morrow[ [1991] 1 W.L.R. 1421], 1445, per
Bingham LJ; McGregor on Damages, 16th ed. (1997) paras. 98-104. It
is true that there has in recent years been a softening of this principle in
certain respects (see McGregor on Damages, ubi sup., and Mahmud v Bank of Credit & Commerce International S.A.[ [1998] A.C. 20]), but
none of these developments has, so far as I can see, gone so far as to allow
recovery on the broad grounds here pleaded. I also would therefore strike
out these two heads of claim.
|
| 76. |
For these reasons, I agree with the order proposed by my noble and learned
friend Lord Bingham of Cornhill as to the disposal of both the appeal and
the cross-appeal. I also agree with the order proposed by him as to costs.
|
| |
LORD COOKE OF THORNDON
|
| |
My Lords,
|
| 77. |
Having had the advantage of reading in draft the speech of my noble and
learned friend Lord Bingham of Cornhill, I agree with all that he says on
the subject of abuse of process. The course adopted by the parties of
settling Westway Homes Limited's claim against Gore Wood & Co., but
leaving open any personal claim by Mr Johnson against the same solicitors,
subject to a cap on certain heads of damages and an undertaking concerning
personal guarantees, strikes me as a sensible one: the personal claim
against the solicitors plainly involves different and more difficult issues.
The belated raising by the defendants of the contention, more ingenious than
realistic, that the settlement had the effect of preventing the personal
claim seems to me closer to abuse of process than the plaintiff's conduct in
pursuing the claim. The defendants are saved from that stigma by the
acceptance of their contention by the Court of Appeal, but I agree that on
this part of the case the appeal of the plaintiff must be allowed.
|
| 78. |
On the recoverability of personal damages, I have much more difficulty, for
the following reasons. It will be convenient to deal first with the claim
for quantifiable financial loss, secondly with the claim based on other
forms of suffering.
|
| |
Damages for Quantifiable Financial Loss
|
| 79. |
As the present is an action by one claiming to be a personal client against
solicitors, not an action by a shareholder against a company and directors,
the case of Prudential Assurance Co Ltd v Newman Industries Ltd [(No.
2) [1982] Ch. 204], including the well-known passage at 222-223, has only a
limited bearing. The cash box illustration given by the Court of Appeal
(Cumming-Bruce, Templeman and Brightman L.JJ.) is not helpful in this case
because it does not envisage any loss except of the company's £100,000.
It is by no means self-evident that, if the controlling shareholder had lost
a valuable business opportunity for want of prompt access to the company's
money, he would have been unable to recover damages for that loss caused by
the defendant's deceit and theft of the cash box. The court did give as a
possible instance of a recoverable personal loss the cost caused to the
shareholder in consequence of a fraudulent circular, such as the cost of
attending a meeting; but this single specific example is not fully
illuminating. Nothing that I am about to say involves any criticism of the
decision in the Prudential case or anything said in it. My point is
simply that it was not concerned with the kind of issue arising in the
present case and contains no observations about this kind of issue. The
same applies to Stein v Blake[ [1998] 1 All E.R. 724].
|
| 80. |
I respectfully agree that the three numbered propositions set out in the
speech of Lord Bingham of Cornhill are supported by the English authorities
cited by him. But these authorities and the propositions are not
comprehensive. Nor, as my noble and learned friend also indicates, do they
resolve the crucial question arising on a strike-out application in a case
such as the present. This is a case about solicitors' negligence. The
English authorities cited include only one relating to the not uncommon
situation of a solicitor acting both for a client personally and for a
company controlled by the latter. This is R.P. Howard Ltd & Richard Alan Witchell v Woodman, Matthews & Co[ [1983] B.C.L.C. 117]. In
that case the solicitor was negligent in failing initiate a timely
application for statutory protection of the company's lease. The company
negotiated with the landlord a new lease on terms less favourable than could
have been obtained with the bargaining power of an extant application (loss
A). The new lease also stipulated that the shareholder could not sell his
shares without the landlord's consent (loss B). Against the solicitor
Staughton J. (as he then was) awarded the company loss A and the shareholder
loss B. Although it flowed from the company's loss of bargaining power,
loss B was not suffered by the company. So, too, in the present case Mr
Johnson claims that at least the greater part of the losses for which he
sues were not suffered by the company.
|
| 81. |
As the report of Christensen v Scott [[1996] 1 N.Z.L.R. 273] may not be
readily available in England, it is as well to reproduce here the whole of
the relevant passage in the judgment of the Court of Appeal delivered by
Thomas J. I must not conceal that I was a member of the court of five on
behalf of whom the judge spoke, although I confess to little independent
recollection of the case. It was a case in which the defendants, firms of
chartered accountants and solicitors, acted for the plaintiffs personally
and in the course of doing so advised on channelling their assets into a
company taking a lease of farm land. Naturally the defendants came to act
for the company as well. By reason of alleged negligence on the part of the
defendants the consent of the landlord's mortgagees was not obtained, nor
was a caveat registered against the title. Consequently the land was lost
and the company failed. The company's claim against the defendants was
settled by the liquidator for a sum alleged by the plaintiffs to be totally
inadequate. The Court of Appeal held that the personal claims should not be
struck out before trial. Thomas J. said at 280-281 -
|
| |
| |
"We do not need to enter upon a close examination of the Newman Industries decision. It has attracted not insignificant and, at times,
critical comment. See eg L C B Gower, Gower's Principles of Modern
Company Law (5th ed, 1992) at pp 647-653; L S Sealy, "Problems of
Standing, Pleading and Proof in Corporate Litigation" (Ed, B.G. Pettit) at p
1 esp at pp 6-10; and M J Sterling, "The Theory and Policy of Shareholder
Actions in Tort" (1987) 50 MLR. 468, esp at pp 470-474. It may be accepted
that the Court of Appeal was correct, however, in concluding that a member
has no right to sue directly in respect of a breach of duty owed to the
company or in respect of a tort committed against the company. Such claims
can only be bought by the company itself or by a member in a derivative
action under an exception to the rule in Foss v Harbottle[ (1843) 2
Hare 461]. But this is not necessarily to exclude a claim brought by a
party, who may also be a member, to whom a separate duty is owed and who
suffers a personal loss as a result of a breach of that duty Where such a
party, irrespective that he or she is a member, has personal rights and
these rights are invaded, the rule in Foss v Harbottle is irrelevant.
Nor would the claim necessarily have the calamitous consequences predicted
by counsel in respect of the concept of corporate personality and limited
liability. The loss arises not from a breach of duty owed to the company
but from a breach of duty owed to the individuals. The individual is simply
suing to vindicate his own right or redress a wrong done to him or her
giving rise to a personal loss.
| | |
We consider, therefore, that it is certainly arguable that, where there is
an independent duty owed to the plaintiff and a breach of that duty occurs,
the resulting loss may be recovered by the plaintiff. The fact that the
loss may also be suffered by the company does not mean that it is not also a
personal loss to the individual. Indeed, the diminution in the value of Mr
and Mrs Christensen's shares in the company is by definition a personal loss
and not a corporate loss. The loss suffered by the company is the loss of
the lease and the profit which would have been obtained from harvesting the
potato crop. That loss is reflected in the diminution in the value of Mr
and Mrs Christensen's shares. They can no longer realise their shares at
the value they enjoyed prior to the alleged default of their accountants and
solicitors. (For a discussion of the policy issues which arise in
considering these questions, see Sterling (supra) at pp 474-491.)
| | |
In circumstances of this kind the possibility that the company and the
member may seek to hold the same party liable for the same loss may pose a
difficulty. Double recovery, of course, cannot be permitted. The problem
does not arise in this case, however, as the company has chosen to settle
its claim. Peat Marwick and McCaw Lewis accepted a compromise in the
knowledge that Mr and Mrs Christensen's claim was outstanding. It may well
be, as was acknowledged by Mr Pidgeon in the course of argument, that an
allowance will need to be made for the amount already paid to the liquidator
in settlement of the company's claim.
| | |
It is to be acknowledged, however, that the problem of double recovery may
well arise in other cases. No doubt, such a possibility is most likely with
smaller private companies where the interrelationship between the company,
the directors and the shareholders may give rise to independent duties on
the part of the professional advisers involved. But the situation where one
defendant owes a duty to two persons who suffer a common loss is not unknown
in the law, and it will need to be examined in this context. It may be
found that there is no necessary reason why the company's loss should take
precedence over the loss of the individuals who are owed a separate duty of
care. To meet the problem of double recovery in such circumstances it will
be necessary to evolve principles to determine which party or parties will
be able to seek or obtain recovery. A stay of one proceeding may be
required. Judgment, with a stay of execution against one or other of the
parties, may be in order. An obligation to account in whole or in part may
be appropriate. The interest of creditors who may benefit if one party
recovers and not the other may require consideration. As the problem of
double recovery does not arise in this case, however, it is preferable to
leave an examination of these issues to a case where that problem is
squarely in point.
| | |
Essentially, Mr and Mrs Christensen are alleging that as a result of Peat
Marwick and McCaw Lewis's breach of duty owed to them personally they
suffered a personal loss, that is, a reduction in the value of their assets.
Their assets in this case had been channelled into their company. Thus, it
is arguable that the diminution in the value of their shareholding is the
measure of that loss. It may well be that when the evidence is heard it
will be apparent that Mr and Mrs Christensen's claim is inflated, but that
is a matter for the trial.
| | |
We are not prepared to hold at this stage that they do not have an arguable
case to recover damages for the breach of an acknowledged duty."
|
|
| 82. |
When that passage is read as a whole, two features will be noted. It will
be seen not only that the whole passage is throughout guarded and
provisional, but also that the court recognised both that double recovery
cannot be permitted and that the interests of creditors may require
consideration. In this field, if a client is suing his own solicitor, it
would appear that only the problems of double recovery or prejudice to the
company's creditors would justify denying or limiting the right to recover
personal damages which, on ordinary principles of foreseeability, would
otherwise arise. One other observation should be made about the passage in
Thomas J.'s judgment. Although he did mention that Prudential had
not gone without criticism, he did not find it necessary to examine that
case closely. I would repeat that in no way am I criticising it. On the
contrary I accept it to the full.
|
| 83. |
The next closest of the English reported cases cited is Barings Plc (in administration) v Coopers & Lybrand[ [1997] 1 B.C.C.L.R. 427],
435. In that case (arising from the activities of Mr Leeson) a United
Kingdom company was suing the auditors of its Singapore subsidiary; the
auditors were also responsible for supplying audit information for the group
accounts. On a pre-trial appeal, Leggatt L.J. stated the law in terms
which, albeit briefer, are much the same as those of Thomas J. in
Christensen v Scott, which case was cited by Leggatt L.J.
|
| 84. |
Gerber Garment Technology Inc. v Lectra Systems Ltd[ [1997] R.P.C. 443] is more distant from the present case on the
facts. It was a suit for infringement of patents in which some of the lost
profits for which the plaintiff company claimed damages were suffered by
subsidiary companies in which it held all the shares. The decision was
that, when a shareholder has a cause of action but his company has none, he
can recover damages measured by the reduction in value of his shareholding;
but that the plaintiff must prove the amount of his own loss and that it
cannot be assumed that this is the same as the loss suffered by the company.
Such relevance as the case has lies in the reasoning of Hobhouse L.J. (as he
then was) in the Court of Appeal. At 474 he described Christensen v Scott as "a good illustration of the application of the relevant
principles." After an extensive quotation from the judgment in that case,
he added at 475 -
|
| |
| |
"There is no reason to suppose that this case would have been differently
decided in England. The decision helpfully illustrates that, provided that
the plaintiff can establish a personal cause of action and can prove a
personal loss caused by the defendant's actionable wrong, then the fact that
the loss is felt by the plaintiff in the form of the loss of the value of
the plaintiff's shares in a company is no answer to the plaintiff's claim.
(In that case, as in the present case, no question of remoteness arose.)"
|
|
| |
Thus Christensen v Scott does not appear to have caused problems for
English judges hitherto, and I would hope that this position might continue.
But it is necessary to add some further discussion of principle, as on the
facts the present case is not on all fours with that case or any of the
others cited in argument.
|
| 85. |
Assuming that this is a fairly typical case of a man carrying on business
wholly or partly through a company or companies controlled by him, the first
question at a trial will be whether Gore Wood & Co. owed duties to Mr
Johnson personally as well as to Westway Homes Limited. Such personal
duties could arise from a contract of retainer or in tort because of the
closeness of relations ("proximity"), or from both sources concurrently.
Henderson v Merrett Syndicates Ltd [[1995] 2 A.C. 145] finally
established in English law the legitimacy of recognising that professional
advisers may owe to the same client a duty to exercise reasonable care and
skill derived from both contract and tort law. Conceivably the rules as to
|