HIGH COURT UPHOLDS DECISION TO STRIKE OUT CLAIMANT’S PERSONAL INJURY ACTION (AND CLAIMANT HAS TO PAY THE COSTS AS WELL)
In Akay v Newcastle University  EWHC 1669 (QB) Mr Justice Lavender upheld an earlier decision that a personal injury action be struck out as an abuse of process.
“If it was to be alleged that the judge failed to take a relevant matter into account, then that matter ought to have been identified in the grounds of appeal. A ground of appeal such as ground 5 which asserts that, “The learned Judge should have … weighed in the balance arguments in the … Appellant’s favour” cannot be used as a Trojan horse in order to smuggle in to the appeal all of the arguments deployed at the hearing below.”
The claimant brought proceedings for personal injury, post-traumatic stress disorder, allegedly caused by the defendant’s conduct. A claim had been issued in the Employment Tribunal on the basis of, essentially, the same facts, however the claimant did not make a claim for damages for personal injury in the Tribunal. Those proceedings were resolved by a compromise agreement that contained the following terms:-
“The Claimant confirms that he is aware of no other cause of action which he has made against the Respondent (save for the personal injury claim referred to in clause 7) …
The Claimant is not precluded by this agreement from bringing any personal injury claim against the Respondent where he is not and could not reasonably have been, aware of any such claim at the date of this Agreement. For the avoidance of doubt nothing in this Agreement prevents the Claimant from pursuing the personal injury claim that he has already made. The making and pursuing of this claim is not a breach of this agreement.”
THE SUBSEQUENT PERSONAL INJURY PROCEEDINGS
The claimant issued proceedings for personal injury in 2016. The defence asserted that the action was an abuse of process and that it may apply to strike out the action. The matter proceeded, without a strike out application, until November 2018 when it made an application to strike out as an abuse of process.
THE DECISION OF THE CIRCUIT JUDGE
“(1) rejected the Claimant’s contention that the Compromise Agreement precluded the Defendant from seeking to strike out the claim as an abuse of process or res judicata; and
(2) held that it was appropriate to strike out the claim as an abuse of process; but
(3) held that the claim was not res judicata.”
THE DECISION ON APPEAL
Mr Justice Lavender rejected the argument that the Circuit Judge had failed to take all relevant matterse into account.
(1) The judge took account of the public and private interests involved when he considered the case in the light of the various aspects of the overriding objective.
(2) The judge certainly took account of the facts of the case, which he set out in the first 4½ pages of his judgment. As I have explained, he considered, inter alia; (a) the evidence as to why the Claimant did not bring a personal injury claim as part of the Employment Claim; (b) the nature of the Claimant’s conduct of the 2013 Harassment Claims and the reason why they were struck out; and (c) the meaning and effect of the Compromise Agreement.
(3) The judge considered both whether the Claimant had abused the process of the Employment Tribunal and whether there was any special reason why it did not follow that the Claimant was abusing the process of the County Court when he brought a claim which could and should have been brought before the Employment Tribunal.
For all of these reasons, I do not accept that there was any error in the structure of the judge’s reasoning. That disposes of much of grounds 2 and 5, but there remains the assertion in those grounds that the judge should have taken account of all of the facts and arguments. Mr Buchan took issue with the second sentence of paragraph 103 of the judgment and contended that applying the overriding objective was not synonymous with making a broad, merits-based judgment. However, this would be a sterile exercise in semantics unless the judge can be shown to have failed as a result to take a relevant factor into account. As to that, Mr Buchan listed in paragraph 67 of his skeleton argument sixteen factors which he contended that the judge should have expressly considered and to which he contended that the judge should have attached some weight.
This is an unsatisfactory way of presenting an appeal. If it was to be alleged that the judge failed to take a relevant matter into account, then that matter ought to have been identified in the grounds of appeal. A ground of appeal such as ground 5 which asserts that, “The learned Judge should have … weighed in the balance arguments in the … Appellant’s favour” cannot be used as a Trojan horse in order to smuggle in to the appeal all of the arguments deployed at the hearing below. For instance, in paragraph 67(xiii) of his skeleton argument Mr Buchan contended that the judge’s construction of the Compromise Agreement was wrong. If that was to be alleged on appeal, then it should have been the subject of an express ground of appeal.
Moreover, Mr Buchan’s contention that the Judge ought to have expressly considered all sixteen of these matters falls foul of the proposition that a judge is not obliged in his judgment to address every argument advanced before him. In any event, however, there is no merit in any of these sixteen points:
(1) Six of them (numbers (i), (iv), (v) (in part), (xiii), (xiv) and (xv)) concern the Compromise Agreement. I will return to the Compromise Agreement and explain in more detail why I do not consider that it was a factor to be accorded any weight.
(2) One point (number (ii)) effectively repeats ground 1.
(3) Two points (numbers (iii) and (xi)) concern the reason why the Claimant did not include a personal injury claim in the Employment Claim, which I have already dealt with.
(4) One point (number (v) (in part)) concerns the delay in making the strike-out application. In Johnson v Gore Wood & Co (No 1) Lord Bingham said (at 34C-D) that a failure to take action to strike out a claim can be potent evidence that the claim is not perceived to be, and is not, an abuse of process. In the present case, however, the 2013 Employment Claims were struck out as an abuse of process, the Defendant had asserted in its Defence that this claim was an abuse of process and HHJ Freedman directed that that be tried as a preliminary issue.
(5) One point (number (vi)) is without foundation. Mr Buchan asserts that the judge was obliged to assume that the personal injury claim had reasonable prospects of success. There is no indication in the judgment that the judge did otherwise.
(6) One point (number (vii)) was abandoned in the hearing before me.
(7) Two points (numbers (viii) and (xvi)) involve an assertion that the claim ought to be permitted to proceed because it involves an area of developing jurisprudence. That is not a factor which carries any weight in this case.
(8) One point (number (ix)) is that the burden of establishing abuse of process was on the Defendant. The judge did not decide this case by relying on the burden of proof.
(9) One point (number (x)) is that the Employment Tribunal did not have jurisdiction over the 2013 Harassment Claims, because they were out of time, and so those claims must be treated as if they were not made. Mr Buchan relied in this respect on Nayif v High Commission of Brunei Darussalam  ICR 517, a case which was not cited before the judge and in which the claimant’s first claim was dismissed on limitation grounds alone, and not for abuse of process. In the present case, whether or not the 2013 Harassment Claims were brought in time, the Claimant’s conduct of them was an abuse of process.
THE ARGUMENT AS TO COSTS
Costs are a matter of discretion and the judge had a wide discretion. The general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order: CPR 44.2(2). In deciding what order to make about costs, the court will have regard to all the circumstances, including the conduct of the parties, which includes the manner in which a party has pursued a particular issue: CPR 44.2(4)(a) & (5)(c).
Mr Buchan contended that the Defendant’s failure to issue a strike-out application after 27 January 2017 was contrary to paragraph 2.7 of CPR Practice Direction 23A, which provides that “Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it”, and that that was such a significant factor that the judge was obliged to depart from the general rule and to deprive the Defendant of some of its costs of the action.
The judge undoubtedly took account of this submission. However, he considered that the Defendant had acted reasonably, in that it had raised the abuse of process issue in its defence and had taken the view that that issue could be dealt with at trial, which the judge considered was not an unreasonable approach in a low-value case. In effect, the judge considered that this way of proceeding was consistent with the overriding objective, and in particular CPR 1.1(2)(c)(i). The judge also noted that there was a cost and case management conference at which the district judge made directions for a single trial.
I note that the allegation that the action was an abuse of process remained part of the Defendant’s defence throughout the period from 19 September 2016 and I have seen no evidence that the Claimant objected to the course ordered at the CCMC of a single trial of all issues, notwithstanding the duty on the Claimant as well as the Defendant under CPR 1.3 to help the court to further the overriding objective, which includes saving expense: see CPR 1.1(2)(b).