Peter Orji v Sukhdip Nagra
| Jurisdiction | England & Wales |
| Judge | Lord Justice Coulson,Lord Justice Stuart-Smith,Lord Justice Nugee |
| Judgment Date | 06 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1289 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-001946 |
[2023] EWCA Civ 1289
Lord Justice Coulson
Lord Justice Stuart-Smith
and
Lord Justice Nugee
Case No: CA-2022-001946
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COUNTY COURT AT WINCHESTER
Deputy District Judge Payne
His Honour Judge Berkley
Claim No's: G72YJ027 & E00SO286
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Granville Stafford (instructed by way of Direct Access) for the Appellants
Marcus Croskell (instructed by way of Direct Access) for the Respondents
Hearing Date: 17 October 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 6 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
INTRODUCTION
Although the history of these proceedings has been agonisingly convoluted, the point at the heart of the appeal is straightforward. To what extent, if at all, can a claim which is in time, and found to be arguable on its merits, be struck out as an abuse of process, because of what was said (and not said) at an earlier hearing in separate but related proceedings?
Following incidents on 25 and 26 March 2018, Mr and Mrs Orji, the claimants and appellants (whom I shall call “the appellants”) commenced proceedings against Mr Sukhdip Nagra and Mr Navraj Nagra, the defendants and respondents (whom I shall call “the respondents”) and two others, claiming damages for trespass. Subsequently, the appellants were convicted of a number of charges arising out of those incidents but, on 23 December 2019, they successfully appealed all but one of those convictions. Their successful appeal led to a pre-action protocol letter, sent by the appellants to the respondents dated 15 May 2020, announcing their intention to bring a second claim for malicious prosecution. Three months later, on 12 August 2020, at a time when that second claim had not been commenced, DJ Stewart granted the appellants permission to reamend their particulars of claim in the ongoing trespass action. Those amendments did not seek to include the claim for malicious prosecution.
On 8 October 2020, the appellants issued their malicious prosecution claim. On 31 March 2021, some five and a half months later, the respondents applied to strike out the malicious prosecution claim because of what they alleged the appellants had said to DJ Stewart at the hearing on 12 August 2020, and the order he made permitting the reamendments. Exactly one year after the hearing before DJ Stewart, on 12 August 2021, DDJ Payne struck out the malicious prosecution claim as an abuse of process, relying on the rule in Henderson v Henderson. The appellants appealed against that order. On 7 December 2021, HHJ Berkley granted permission to appeal but, on 14 September 2022, dismissed the appeal. On 23 January 2023, Warby LJ granted permission to the appellants to bring this second appeal.
It follows, therefore that, whilst proper consideration of the judgment of HHJ Berkley is required, what really matters is the original decision to strike out the claim by DDJ Payne. It is his reasoning which matters most; HHJ Berkley was simply dismissing the appeal from DDJ Payne's decision.
I have no alternative but to set out the procedural history in some detail (Section 2 below), and then focus in particular on the hearing of 12 August 2020 before DJ Stewart (Section 3). Having identified the two judgments below concerned with the strike out (Section 4), and the two issues to which they give rise on this appeal (Section 5), I summarise the law relating to the rule in Henderson v Henderson, and analyse this case by reference to it (Section 6). I then go on to consider whether what happened on 12 August 2020, even if it did not trigger the rule in Henderson v Henderson, was nonetheless an abuse of process which justified striking out the malicious prosecution claim (Section 7). In undertaking this analysis I should express my thanks to both counsel for their clear written and oral submissions. In my view, had they been involved at the critical time, it is overwhelmingly likely that none of the subsequent difficulties would have arisen.
THE PROCEDURAL HISTORY
The appellants were the respondents' tenants of a property in Southampton. The tenancy was terminated and was due to expire on 25 March 2018. A warrant for possession was granted and was due to be executed on 25 April 2018. It is alleged that there were rent arrears.
The respondents visited the property on 25 and 26 March. There is a major issue as to whether they knew that the property was still occupied. On both occasions, they encountered the appellants and an altercation ensued. The respondents made a complaint to the police. This was referred to the CPS and the appellants were prosecuted for assault and public order offences.
On 5 April 2018, the appellants commenced a claim for trespass arising out of these events. There was a brief summary of the claim on the second page of the claim form. I note that, with the exception of two skeleton arguments prepared by Mr Granville Stafford and his attendance at a telephone hearing in May 2020 before Judge Berkley, on which very little now turns, the first appellant drafted all the relevant documents and appeared in person at all the relevant hearings.
After the commencement of the trespass claim, there was a delay of some months which no one could explain. However, at a hearing on 7 November 2018, DDJ Alexandre made an order adding various parties, and amending the name of another. His order envisaged, not only that a detailed particulars of claim would be served, but also that the appellants may make further amendments to the trespass claim.
The next month, the appellants produced new particulars of claim running to 15 paragraphs. There were some further modifications to the names of the parties. The claim was valued at a maximum of £50,000. At a hearing before DJ Sparrow on 22 December 2018, the appellants were given permission to make these amendments and rely on these particulars of claim. It has been called “Version 2” in the papers before us. The claim was allocated to the fast track.
On 30 January 2019, the appellants were convicted at the Magistrates' Court of various offences arising out of the incidents on 25 and 26 March 2018. Following sentence, they immediately appealed against their convictions. On 30 April 2019, in consequence of those convictions, the respondents sought to strike out the trespass claim (“the first strike out application”). It is unclear why the respondents waited three months after conviction before making that application. During that period, a month or so was lost as a result of an unsuccessful application by the appellants for specific disclosure.
On 6 September 2019, DDJ Collins dealt with the first strike out application. He refused to strike out the trespass claim, although he did strike out certain paragraphs of Version 2. It appears that this was because of the inadequate and unclear nature of those paragraphs, rather than the fact of the appellants' convictions. The principal element of the claim that was struck out concerned a lengthy list of allegedly damaged or stolen goods. The order of DDJ Collins went on to identify other paragraphs in Version 2 which the court would consider striking out, if the appellants' appeals against their convictions failed. His order also indicated that the respondents could apply for judgment in default on their counterclaim for rent arrears and damage to property, on the basis that no defence to the counterclaim had been filed.
On appeal, the appellants were acquitted of all but one of the original offences at the Crown Court on 23 December 2019. The primary ground for the successful appeal was the Crown Court's conclusion that the respondents' evidence was unsatisfactory and therefore did not meet the criminal standard of proof. The only conviction that was upheld was the second appellant's conviction for assaulting a police officer, which was the one charge that did not depend on the respondents' evidence.
Following their successful appeal against conviction, on 6 January 2020, the appellants provided an amended claim form and particulars of claim, which added a claim for malicious prosecution to the trespass claim. The first appellant's witness statement in support of the proposed amendment indicated that he wanted all matters to be dealt with together. However, no formal application to amend was made and, although the respondents were aware of these amendments, and although this version of the particulars of claim, referred to as “Version 4”, was included in at least one court bundle, Version 4 was never formally brought to the attention of the various judges who were dealing with the trespass claim in the first part of 2020.
The trespass claim was before these judges because, as had been anticipated the previous September (paragraph 12 above), the respondents had entered judgment on their counterclaim, in default of a defence to that counterclaim. At a hearing before DDJ Kirkconel on 13 January 2020, the appellants' application for an adjournment was refused, and judgment was entered on the counterclaim in the sum of £12,128.22.
In addition, DDJ Kirkconel valued the trespass claim at £6,475 and allocated the case to the small claims track. His valuation relied on the original claim form, which put the value of the claim at not more than £50,000, and his view that, as a result of the earlier decision (paragraph 12 above) to strike out the appellants' claim for damaged or stolen property, which he said was worth £43,525, that sum fell to be deducted from the £50,000, thus leading to a value of the trespass claim of £6,475. The only...
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