The High Court has determined that a Defendant is not permitted to take a tactical decision to hold back a part of their case in reserve for use in future litigation against the same or related parties.

Details of the case

  • A Receiver, who had previously had the validity of his appointment upheld by the Supreme Court, was served with proceedings seeking to challenge his position on the basis of arguments not raised in the previous litigation.
  • The Receiver, along with the security holder, brought an application to the High Court seeking to have the new proceedings struck out as an abuse of process on the basis that the arguments being made could have and should have been raised in the previously concluded proceedings
  • The Plaintiffs defended the application by arguing that their claims could not have been raised in the earlier proceedings because they did not arise or exist at the time of the High Court hearing and they were entitled to access to the Courts in respect of arguments not yet made before it

Decision of the Court

  • The Court held that on the evidence before it the proceedings amounted to an abuse of process and should be struck out.
  • The Court held that it is an abuse of process for a party to litigation to bring a claim in a later case that could have and should have been brought in earlier proceedings.
  • The Court further emphasised the importance of the finality of litigation and the existence of an abuse of process if there are attempts to endlessly litigate the same issue or attempts to attack Orders previously made by the Court.
  • The Court, in reaching its decision to strike out the proceedings, did not make a determination on the merits of the arguments being made. Instead, it determined that the Plaintiffs were not entitled to raise these arguments at all on the basis they had been held back in previous litigation.

What can we learn from this case?

While Plaintiffs enjoy rights in relation to access to the Courts, it is clear that cases will be struck out when they seek to re-litigate the same issues with a view to delaying the rights of other parties, which in this case involved the right of a Receiver to take possession of a property over which he was appointed.

Based on the facts of any given case, it may be possible for a Defendant to avoid incurring significant legal costs by having proceedings struck out at an early stage if it can be shown that an abuse of process has occurred.