The litigation in Land Securities plc v Fladgate (a firm) [2009] EWCA Civ 1402; [2009] PLSCS 352 made legal headlines last year. It caught the attention of the property industry because, if the action had been successful, it would have provided developers with a powerful weapon against anyone seeking to use the public law remedy of judicial review to challenge the validity of a planning permission.
The developer issued proceedings against the defendant law firm, claiming that it had abused the legal process by pursuing proceedings for judicial review of planning permission for development obtained by the developer. It alleged that the defendant’s real objective in issuing the proceedings was to put pressure on it to help the defendant’s relocation to new offices. The developer claimed that this constituted an abuse of the judicial process and sought damages in the sum of £17m for the delay caused by the application.
The Court of Appeal found in favour of the defendant. It accepted that a claimant could bring an action for malicious prosecution of civil proceedings, so long as the abusive legal proceedings were brought maliciously and unreasonably, and had failed, and the claimant had suffered special damage to reputation, person or property as a result: Grainger v Hill (1838) 4 Bing (NC) 211.
None the less, the court ruled that the tort is of limited application under modern conditions. Consequently, it refused to extend the scope of the tort to judicial review proceedings for which the court has given permission or to encompass a tort of intentionally inflicting pure economic loss on another person by malicious criminal or civil proceedings or by abusing the legal process.
Their lordships held that the institution and pursuit of legal proceedings is a fundamental legal right, and were clearly concerned that a ruling to the contrary could be used to pressurise objectors into desisting from applying for judicial review of the grant of planning permission for development.
The court noted that applicants must act quickly after the grant of planning permission. If the defendant or an interested party considers that proceedings for judicial review would constitute an abuse of process, they can draw this to the attention of the court so that it can consider the position before it allows the action to proceed. The courts also have a range of discretionary powers to control the conduct of the parties, to safeguard the public interest and to protect the courts from misuse of the legal process.
Finally, even if the court were to allow a wider formulation of the tort, the court agreed with the trial judge that a tort is not committed by a person who institutes proceedings with a genuine interest in and an intention to secure a successful outcome, even if the claimant hopes to achieve other objectives, that are not themselves within the scope of the proceedings. Consequently, the proceedings issued by the defendant would not have been abusive, despite any mixed motives behind them.
Allyson Colby is a property law consultant
