Richard Cook on the court's reluctance to strike out claims

Richard Cook is a partner at Shoosmiths & Harrison.

A CASE decided more than 150 years ago has recently come into vogue in the civil courts, altering the inherent reluctance of courts to strike out claims.

The 1843 case of Henderson v Henderson decided that where a given matter becomes the subject of litigation, the court requires the parties to that litigation to bring forward the whole case and will not, except under special circumstances, permit the same parties to open the same subject of litigation at a later date.

It has been applied in a number of cases this year in order to strike out claims as an abuse of process, on the basis the claims could and should have brought in earlier litigation regardless of its merits.

On 12 November 1998 in Johnson v Gore Wood, the Court of Appeal struck out an action which began more than five years earlier and only eight weeks from a three-month trial.

Severe financial limitations had prevented the plaintiff from bringing his personal claim at the same time as his company brought its action against a firm of solicitors. His company's claim was successful, and the settlement agreement provided for the pursuit by him of a personal claim.

However, the court struck out the plaintiff's claim as an abuse of process under the Henderson rule. This was despite the fact that the point which caused the "abuse" had been made at a very late stage.

Furthermore, the plaintiff had been a party to the original action and the previous action had been compromised.

The Henderson precedent was followed, in spite of the fact that the terms of the settlement expressly contemplated that a personal action would follow and that the personal action went much further in scope than the previous action.

The plaintiff had also succeeded on certain other preliminary issues which were heard at the same time going to the merits of the action.

The implications are clear – parties with one or more related claims arising from the same subject matter against a particular defendant, must now bring them in one go.

The justification for the Johnson decision is that the whole emphasis of the current civil justice reforms is on saving court time.

However, rather than avoiding duplication of actions, application of this rule may promote injustice, or lead to further litigation against solicitors who fail to advise their clients of the possible application of the rule.

Even if there are financial or tactical reasons for bringing claims separately, that may not be enough to prevent these claims from being struck out, unjust as that may be.