Damages – Strike out — Abuse of process – Appellant failing to comply with enforcement notice – Respondent local authority taking direct action to remove waste – Respondents recovering costs of direct action – Judge striking out appellant’s action for damages as abuse of process – Whether judge erring in law – Appeal dismissed
In June 1997, the respondent local authority issued the appellant’s father with an enforcement notice requiring him to remove from his land all waste and plant machinery used for the processing, sorting, screening and treatment of waste. He died in August 1997. The appellant, as an executor of his father’s estate, failed to comply with the notice and, in 2003, the respondents took direct action in accordance with their powers under section 178 of the Town and Country Planning Act 1990. They subsequently brought proceedings against the appellant claiming their expenses in connection with that direct action. The appellant initially made a counterclaim founded on unlawful removal of property, which he later abandoned.
The High Court held that the respondents could not recover their costs because they were unable to allocate them to the removal of materials that had been brought onto the site in breach of the enforcement notice. The Court of Appeal disagreed, holding that the appellant was liable for the respondents’ costs, limited to the value of the estate since the appellant had been sued in his capacity as executor: [2007] EWCA Civ 864; [2008] 1 P&CR 10.
The appellant claimed damages resulting from the respondents’ direct action, asserting that they had taken from the land items that they were not authorised to remove, had failed to obtain a proper or any price for the items and had abused their powers so as to amount to misfeasance. He also argued that the direct action had been carried out in an oppressive manner. The judge struck out the claim on the basis that the appellant’s grievances should have been raised during the earlier proceedings. She concluded that the appellant’s statement of case was an abuse of the court’s process and disclosed no reasonable grounds for bringing the claim. The appellant appealed.
Held: The appeal was dismissed.
(1) There was an underlying public interest in achieving finality in litigation and ensuring that a party should not be twice vexed in the same matter. The bringing of a claim or the raising of a defence in later proceedings might, without more, amount to abuse if the court were satisfied that the claim or defence should have been raised in the earlier proceedings. An appellate court would be reluctant to interfere with a judge’s decision with regard to an abuse of process by carrying out the required process of balancing all the relevant factors; it would generally interfere only if the judge had: (i) taken into account immaterial factors; (ii) omitted to take account of material factors; (iii) erred in principle or reached a conclusion that was impermissible. If the judge’s decision was plainly wrong, it would be the duty of the appeal court to interfere. The decision of the judge in the instant case should receive particular respect given her knowledge of the dispute derived from her conduct of the earlier trial: Johnson v Gore Wood & Co (No 1) [2002] 2 AC 1 and Stuart v Goldberg [2008] EWCA Civ 2; [2008] 1 WLR 823 applied.
There was ample material from which the judge could conclude not just that the claim ought properly to have been brought in the earlier proceedings but that any attempt to pursue it would amount to an abuse of the court’s process or harassment or oppression of the respondents. The earlier counterclaim that was founded on an unlawful removal of property had not been pursued. That notwithstanding, the issue of the removal, its legality and the value that ought to have been realised for the property so removed was extensively canvassed at trial and the respondents’ witness had been cross-examined about the matters. It had not been asserted that the appellant had an interest in the property removed and there was no evidential support for such an assertion. The appellant therefore lacked standing to bring the claim. Furthermore, the respondents were entitled to believe that the earlier proceedings were the forum in which all of the appellant’s claims arising out of the direct action would be resolved. Accordingly, the judge had not erred in her approach.
(2) Although it was strictly unnecessary to decide the point, the judge had also been right to strike out the statement of case as disclosing no reasonable grounds for bringing the claim. If and in so far as the direct action was alleged to amount to misfeasance, to have been actuated by malice or to have involved the use of unlawful means, it had already been determined that the respondents’ actions had been lawful. The statement of case disclosed no unlawful action on the basis of which such a claim might reasonably be brought. The same was true, mutatis mutandis, of the claims in trespass to land and goods, conversion and violation of Article 8 of the European Convention on Human Rights.
James Tindal and Stuart Cutting (instructed by Wright Hassall LLP) appeared for the appellant; Ian Dove QC and Nicola Preston (instructed by DLA Piper LLP) appeared for the respondents.
Eileen O’Grady, barrister
