MITCHELL AND ABUSE OF PROCESS: ANOTHER EXAMPLE OF A CASE STRUCK OUT

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Mitchell, in terms of the importance of case management, was mentioned in the High Court case of Vaughan –v-London Borough of Lewisham.  The facts were unusual, but the reference to case management powers and the importance of the economy and efficiency of litigation are significant.

 THE FACTS OF VAUGHAN

The claimant had issued, then discontinued, a number of claims in the employment tribunal. She then attempted to proceed with a High Court Action in relation to, substantially, the same set of facts.  This action was struck out on the Defendant’s application. Sir David Eady stated:

 “26.   She does not have an unqualified right now to proceed to trial in the High Court, whether by reason of Article 6 of the ECHR or otherwise. Her rights are subject to taking proper account of the overriding objective, and the need for economy and proportionality. The situation is in some respects analogous to that which arose in Schellenberg v BBC [2000] EMLR 296. There were parallel libel claims, all in the High Court, each of which offered the Claimant the opportunity of resolving the same or very similar issues and of achieving the vindication he was seeking. He chose to settle those brought against The Guardian and The Sunday Times, on disadvantageous terms which did not achieve that objective, several weeks into the trial. He then wished to press on with a claim against the BBC which turned upon very similar issues, but which had not even reached the trial stage. He was not permitted to take that course, despite arguing that he had a constitutional right to trial by jury, not least because he should have availed himself of the opportunity of resolving all the relevant disputes in the other claims while he had that chance. That approach would appear to be compatible with later appellate decisions, such as Wallis v Valentine [2003] EMLR 8, at [32]-[33] and Dow Jones & Co v Jameel, cited above.

The case on abuse of process

27. In developing his submissions on abuse of process, Mr Bennett took me to first principles and cited the words of Lord Diplock in Hunter v Chief Constable of West Midlands Police [1982] AC 529, where he referred to the court’s duty to prevent the misuse of procedure in a way which would be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute.

28. Here, it is said, a fair minded onlooker would surely think the worse of a procedural system which enabled a litigant to cast aside one set of proceedings, in which the court has held that she may be able to obtain all necessary or proportionate redress, and on which thousands of pounds has already been spent by the other party, simply because she thinks it gives her a tactical advantage in some respect, or may offer some marginally different form of remedy. Both fairness to the Defendants in this case, and the more general requirements of proportionality, would seem to oblige the Claimant to avail herself of the opportunities in the ET proceedings first, as Sharp J contemplated, and before compelling the Defendants to incur the very substantial and additional cost of resolving this High Court litigation. Mr Bennett cited a well known passage from the speech of Lord Bingham in Johnson v Gore-Wood & Co [2002] AC 1, at 31, where he referred to the public interest that there should be finality in litigation and that a party should not be twice vexed in the same manner. He added that the public interest was reinforced by the current emphasis on efficiency and economy in the conduct of litigation. See also more recently  Mitchell  v News Group Newspapers Ltd[2013] EWCA Civ 1537.

My conclusions on abuse of process

29. It surely cannot be right that this (or any other) litigant can decide for herself that such large sums of public money already spent should simply be written off and the Defendants required, from now on, to commit even more to the current proceedings. If this were permitted, the court would be abdicating its duty of case management and abandoning the interests of one party to the untutored whims of the other. That would be quite contrary to the principles underlying the CPR and, in particular, inconsistent with the overriding objective. The Claimant’s decision, taken immediately after Sharp J announced her decision on 25 March 2013, and without even waiting to listen to her full reasons, can only be characterised as tactical and precipitate. When the reasoning behind the decision was fully set out on 11 April, it became clear (if it was not already) exactly why the ET proceedings should have been allowed to run their course. But, in acting as she did, the Claimant appeared determined to pre-empt the court’s judgment and to decide the far-reaching case management issues solely by reference to what she perceived to be her own interests. (Mr Bennett used the expression “playing the system”.) That is unacceptable. To allow this to happen would certainly “bring the administration of justice into disrepute”. On this ground, I am satisfied that the claim should now be struck out because its continuance in these circumstances would be an abuse.”

COMMENTS

Note that the facts of this case are different to other Post-Mitchell decisions on abuse of process.  The significant point here was that Mitchell indicates a new era of efficiency and economy of litigation.

FINDING THE CASE

The case can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2013/4118.html&query=mitchell&method=boolean#disp1

RELATED POSTS

Posts in relation to abuse of process can be found at:

http://civillitigationbrief.wordpress.com/2013/12/11/can-a-struck-out-claimant-issue-again-exercise-of-the-section-33-discretion-after-a-first-action-has-been-dismissed/