Relitigating claims that have been the subject of a settlement between the parties is an abuse of process which will be penalised in costs.
In Andrew Hicks Engineering Ltd v Jenk Associated Ltd and another [2023] EWHC 2031 (Ch) the court has considered the claimant’s claim for the costs of injunctive proceedings in a dispute between the occupiers and owners of an industrial estate.
The case concerned Western Barn Industrial Estate in Winkleigh, Devon, a small industrial estate of four units divided by an access road. The claimant held a 20-year lease of unit 4, the freehold being owned by Mr and Mrs Hicks, its directors and shareholders. The remainder of the freehold of the estate was acquired by the first defendant in 2020. There were discussions as to terms on which the Hicks and the claimant might relocate and the whole estate be developed but no agreement was reached. The defendant sought to develop the remainder of the site.
In June 2021, Hicks and the claimant brought proceedings against the defendants for breach of and wrongful interference with rights of access, parking rights and rights to use electricity cables and sewers. The claims were defended and the claimants accused of ransoming the proposed development of the site. Those proceedings were settled by the defendants’ acceptance of the claimants’ Part 36 offer to pay £500,000 in return for the transfer of the freehold of unit 4. The claimants were entitled to their costs of the proceedings. The freehold was transferred in August 2022.
Subsequently each party complained of the other’s conduct. The claimant issued a second claim in September 2022 for substantial interference with its rights and easements over the industrial estate as lessee and sought an interim injunction. That application went to a hearing in October 2022 when undertakings were given to protect the claimant’s rights of way over the access road, rights of parking, turning and storage as well as the passage of electricity. Subsequently the lease of unit 4 was surrendered.
The parties agreed the claimant would discontinue the proceedings without liability for costs but the claimant sought its costs of the injunction. The court concluded that the claims in the second proceedings were all raised in the first proceedings and denied by the defendants. They were settled by the compromise between the parties. The second proceedings were an attempt to relitigate matters which had been litigated and settled and were an abuse of process. The claimant was ordered to pay the defendants’ costs of the application.
Louise Clark is a property law consultant and mediator
