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How to lose a meritorious case

Mark Warwick QC and Justina Stewart revisit abuse of process and consider a number of cases delineating the scope of the Henderson principle

19 July 2017

This article is concerned with abuse of process of the Henderson v Henderson (1843) variety. This is the fifth variety of res judicata identified by Lord Sumption in Virgin Atlantic Airways v Zodiac Seats UK Limited [2014] AC 160. It is the principle that ‘a litigant should in general bring forward all his claims in one proceeding rather than successively’ (per Lord Justice Longmore in Dickinson v UK Acorn Finance Limited [2016] HLR 17).

Generally speaking, if a claim or a defence is an abuse of process within the Henderson principle, then that claim or defence should be struck out regardless of its merit. The only exception is if the claim or defence is ‘cast iron’, or otherwise suitable for summary judgment (see Stuart v Goldberg Linde [2008] 1 WLR 823).

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