AddThis SmartLayers

Law Column: No second bite of the cherry…


In an encouraging decision, the High Court has confirmed that it will take a firm stance in situations where it appears that a party to legal proceedings appears to be attempting to relitigate an issue that has already been decided conclusively in a separate case.

The judgment concerned a dispute that had arisen between the Claimant, then an executive director of Stobart Group Limited (“Stobart”), and the Defendants, all of whom were members of what was termed the “Ongoing Board”.

The Claimant believed that the Chairman of Stobart should not continue in his position, something which was disputed by the Defendants who, in their capacity as the Ongoing Board, issued a statement concerning the actions of the Claimant in May 2018.

The Claimant responded by issuing proceedings for libel and malicious falsehood against the five individual Defendants, and by writing to the shareholders and employees of Stobart criticizing the actions of the Defendants and urging them to join him in his attempt to remove the current Chairman by voting against him in the upcoming election.

On 14 June 2018, the Claimant’s employment with Stobart was terminated and Stobart commenced a claim against him in the Commercial Court based around allegations that by his actions he had committed a breach of duty (the “Commercial Action”).

The Claimant launched a counterclaim, and in February 2019 the Court found in favour of Stobart and upheld the dismissal.

Whilst all of this was going on, the Claimant’s libel and malicious falsehood claim had continued separately and following a preliminary issue hearing to determine meaning that took place in December 2018, the Claimant took the decision to abandon the libel element of his claim and pursue malicious falsehood as the sole cause of action.

So far so good.  But what’s so interesting about this?

Since the introduction of the serious harm test in defamation claims in January 2014, legal practitioners have become all too familiar with the tactical strategy adopted by some claimants where they have opted to plead a number of “fall back” causes of action alongside claims for libel where it’s questionable whether they will be able to attain the necessary threshold of harm to succeed.

It’s also not uncommon to see the defamation element of a claim fall away in the course of the proceedings with focus shifting to one of the other originally pleaded causes of action where the strength of the original primary cause of action appears to have dissipated.

What’s particularly interesting about the Stobart case is that following the abandonment of the libel claim, and some amendments made by the Claimant, the Defendants made an application to strike-out the remaining action on several bases, including that the Claimant had failed to advance a properly reasoned argument in support of his malicious falsehood claim, and, importantly, that for this claim to proceed, it would be necessary to relitigate the issues already decided in the Commercial Action, which would itself amount to an abuse of the court process.

Accordingly, Mr. Justice Nicklin ordered that the Claimant’s claim should indeed be struck-out on the basis that it would be a serious abuse of process to allow the claim to continue in light of the fact that the heart of the matter concerned an issue already settled in the Commercial Court.

Giving his reasoning, Nicklin J said, “resolving this issue in the malicious falsehood action would involve relitigating a significant part of the [Commercial Action] … to that extent, it would involve a collateral attack on the decision.”

This judgment provides a welcome affirmation of the court’s inherent power to strike-out cases where it appears that an attempt is being made to misuse court procedure.

A founding principle of our justice system is being able to rely on the certainty of decisions reached and therefore, the issue of preventing claimants from being able to take a second bite of the proverbial cherry, where a first attempt at litigation has failed is of great importance.

Publishers and legal practitioners alike should take comfort from this restatement of the principle that the word of the Court is final.