A firm of solicitors succeeded in an application to strike out a claim for damages brought by a property development company. The claim was on the basis that the solicitors' previous judicial review proceedings amounted to the tort of abuse of process.

The developer, Land Securities, had obtained planning permission for the redevelopment of two sites. One was directly opposite Fladgate Fielder's building, and Fladgate Fielder was concerned that the development would diminish the residual value of its lease. (Fladgate Fielder was about to dispose of the lease.)

Fladgate Fielder wished to challenge the grant of permission. In preparing its case, it found that Land Securities proposed not to make any provision for affordable housing on one site but to over provide on the second. Fladgate Fielder issued judicial review proceedings in relation to the overprovision on the second site. Land Securities then made two further applications, which included a contribution to the planning authority in lieu of affordable housing.

Land Securities brought a claim against Fladgate Fielder alleging that it had committed the tort of abuse of process by using judicial review to further its commercial interests.

The court held that while there was no general tort of maliciously instituting civil proceedings, the tort of abuse of process did exist and there was no need to prove malice or want of reasonable and probable cause. Judicial review differs in some respects from other forms of civil process but that does not mean that the tort cannot apply to judicial review.

However, the planning system provides a public law means by which a property owner can protect his interest in the property. It follows that the wider protection of property interests is within the scope of judicial review even though the remedy available is a narrow technical one (i.e. the quashing of a planning permission).

It was sufficient that Fladgate Fielder was seeking to protect its interest in the property. It was unrealistic to say that the challenge brought by Fladgate Fielder was for some improper purpose, and so the developer's claim failed.

Land Securities plc and others v Fladgate Fielder