Land Securities Plc & Ors v Fladgate Fielder (A Firm)

This is an appeal from an order dated 25 March 2009 of Mr Bernard Livesey QC, sitting as a Deputy Judge of the Chancery Division, by which he gave summary judgment for the Defendants against the Claimants under CPR 24.2 and dismissed the action.

The Claimants allege that the Defendants are liable for substantial damages in tort for threatening and bringing proceedings against Westminster City Council (“Westminster”) for Judicial Review of the grant of planning permission for development of a site in Victoria, London, SW1 (“The Wilton Plaza Development”). The essence of the claim is that the Defendants’ predominant purpose for threatening and bringing those proceedings was not to obtain relief against Westminster by quashing the permission, but in order to put pressure on the Claimants to assist the Defendants to relocate their offices. The issue before the Deputy Judge, and on this appeal, is whether the Claimants’ claim is sufficiently arguable to be allowed to proceed to trial.

The Claimants (“LS”) are part of a group of property development companies. It is not necessary, for the purpose of this appeal, to distinguish between them.

The Defendants are a firm of solicitors, practising from offices at 25 North Row, just south of Oxford Street, London. At the material time the Defendants occupied the offices under a lease dated 5 April 1988 for a term of 25 years from 25 March 1988, and so expiring on 24 March 2013, at an annual rent of £820,000. By the end of 2005 the Defendants’ management committee had decided to make plans for the future expansion of the firm into larger and newer premises with a longer term. In January 2006 they decided to instruct property agents to arrange disposal of the residue of their existing lease and to find those other premises.

Opposite the Defendants’ offices, on the other side of the road, which was a narrow one, was a 1960s retail and residential block with a prominent tower, called Park House. On 31 January 2006 LS applied for planning permission to develop Park House by the erection of a modern retail, office and residential block with two basements and 10 floors above ground level. The work of demolition and reconstruction was expected to take in the region of three years, following which fitting out was to take place.

The Defendants received notice of that application in early February 2006. They were concerned that the proposed development would adversely affect the marketability and value of the residue of their lease, and would frustrate their plans for relocation.

A planning partner of the Defendants, Mr Harnett, inspected the planning file in relation to Park House at Westminster’s offices. He discovered that, in addition to the application for the development of Park House, LS had on 13 August 2005 made an application for the Wilton Plaza Development. He considered that there was a connection between the two developments concerning affordable housing. In an email to the Defendants’ managing partners, he explained that a certain percentage (usually approximately 30 per cent) of affordable housing must be provided on site in connection with any residential development. LS were proposing, however, that no affordable housing should be provided on site at Park House. They were intending to “over-provide” affordable housing on the Wilton Plaza Development, and to secure Westminster’s agreement that the “over-provision” would be used to offset the failure to provide affordable housing on other schemes of LS, such as Park House (“the housing credit policy”). Mr Harnett said in the email that he would like to discuss the possibility of taking Judicial Review proceedings in respect of the planning application for the Wilton Plaza Development. He continued:

“I believe that we should give serious consideration to attacking this for the following reasons:

1.

The idea of an affordable housing credit is novel and I believe that there may be reasonable grounds for challenging this in the High Court;

2.

The concept is important in connection with the proposed development of Park House. If affordable housing will have to be provided on site at Park House the profitability of the scheme will be significantly affected.

3.

The idea of the affordable housing credit is strategically important for a developer such as Land Securities who would seek to use it in connection with other schemes also.

4.

It is an early shot across the bows of Land Securities and would give a firm signal of our intentions.”

Mr Harnett attached to the email a note on strategy (“the Strategy Note”) in which he said that he thought that LS would ultimately obtain a consent, but that a planning objection and Judicial Review, with an attack on the housing credit policy, would cause potential problems with the development of Park House, including delay and making the development less valuable because of the need to accommodate more low value elements, such as social housing and community facilities. The Strategy Note included the statements: “Need persuade LS that… we can cause problems they can avoid”, and “the AH credit scheme key to Park House development and strategically important for LS generally – it is novel and believe prospect could be declared unlawful – prospects moderate”, and “Note – Don’t collaborate with the other objectors – makes deal more difficult”.

On 23 February 2006 Westminster’s Planning Committee resolved to grant permission for the Wilton Plaza Development. The resolution included a paragraph specifically agreeing the housing credit policy (“the Credit Resolution”). The broad effect intended to be achieved by the Credit Resolution is reflected in the following passage of the planning officer’s report:

“A high proportion of affordable housing is proposed, above normal policy requirements. The applicant, Land Securities, is requesting that the increase in both market units (over and above the floorspace in the previous permission on this site) and affordable units proposed, form a “residential credit” under a “land banking strategy” to be used against other mixed use/commercial/housing schemes by Land Securities in the future (subject to planning), where it is not viable /feasible to provide the full requirement of market housing and/or affordable housing sought under mixed use policies on site. The principle of a “credit” has been accepted by the Council on previous occasions”.

The Defendants took advice from Mr Lockhart-Mummery QC. He advised in writing on 13 March 2006 that he could see no basis on which the Credit Resolution could possibly be lawful, and set out the grounds for an application for Judicial Review. He summarised the position in paragraph 12 of his Opinion as follows:

“For the above reasons, it is my opinion that the formulation of the land banking strategy is unlawful. The essential grounds for any application for judicial review would, in brief, be (1) that it is unlawful to formulate such a planning strategy which is not a general land use strategy but one designed to benefit exclusively one individual, and (2) that in any event, the substance of the strategy, and the process by which it is evolving, constitutes an unlawful departure from established processes for the making of land use policy.

On 31 March 2006 LS applied to Westminster for permission to develop Park House, intending to make use of the Credit Resolution.

At the end of March 2006 the Defendants approached LS for a meeting. Before the meeting the Defendants sent LS a copy of Mr Lockhart-Mummery’s Opinion. A meeting took place on 5 April 2006 between Messrs Cohen, Harnett and Goreing of the Defendants and Mr Hussey of LS. What was said at the meeting forms a critical part of LS’s allegations.

Witness Statements of those who attended the meeting show similarities to a significant degree, but also some differences of emphasis. Mr Cohen said in his witness statement:

“I also said that the firm was anticipating three years of “hell” while the development was under construction. Mr Hussey asked me what we wanted. I remember him saying “Do you want money?” to which I replied: “Absolutely not”.

I suggested that one way out would be for Land Securities to take an assignment of our lease. I said that this would enable us to “slip away” with Land Securities’ assistance. Otherwise an alternative would be to delay the development of Park House until the end of our lease in 2013. ……… Mr Goreing asked Mr Hussey if Land Securities had any stock in W1 (which would have enabled us to swap our existing building for other premises)”.

Mr Hussey said in his witness statement, however, that he thought that the Defendants were looking for a financial payment and a windfall. He said:

“My view is that the financial co-operation they sought, whilst unidentified, was intended by them to go beyond assistance in their plans to relocate, although it was presented in part in that context. …. I believe that when they discovered that Land Securities were applying for planning permission to redevelop Park House in February 2006, Fladgate Fielder saw an opportunity to use the possibility of judicial review (and other tactics as in Mr Harnett’s note) as a weapon to force us to the negotiating table, with a view to assisting them to implement their plans by financial payment. In spite of Mr Cohen’s denials, I do think they were looking for a windfall”.

The Defendants communicated with Mr Hussey either directly or through LS’s solicitors on various dates in April and May 2006, holding out the hope that the Defendants would not have to issue proceedings and that there could be a mutually acceptable solution.

On 19 May 2006 the Defendants issued an application against Westminster, settled by leading and junior counsel, for permission to apply for Judicial Review of the planning consent for the Wilton Plaza Development on the ground that the Credit Resolution was unlawful. LS were joined to the proceedings as an Interested Party. In their Statement of Facts and Grounds for Judicial Review the Defendants explained their standing to bring the proceedings, and in particular their proximity to Park House, LS’s application for planning permission in relation to that site, and the likely reliance of LS on the Credit Resolution in relation to that development.

LS filed Summary Grounds of Opposition, in which they submitted that permission to apply for Judicial Review should be refused because (1) the Defendants did not have sufficient interest in the matter to which the application related, and (2) the claim had no realistic prospect of success. The issue of the standing of the Defendants to bring the proceedings was addressed in paragraphs 4-12 of the Summary Grounds. It was there stated that the Defendants’ premises were not located near the Wilton Plaza Development; the Defendants could not demonstrate that they had any interest in the Wilton Plaza Development; the Defendants’ only interest would be in relation to a future planning permission for Park House; at the meeting in April 2006 between representatives of LS and the Defendants, Mr Cohen of the Defendants stated that the proposed development of Park House looked fine, and this was simply a business transaction in that the Defendants wished to move from their current location opposite Park House and saw this as an opportunity to negotiate some financial settlement with the Interested Party; and that was the Defendants’ true motivation.

The Defendants responded to those allegations in a letter to the Court dated 23 June 2006, in which the Defendants set out their interest in bringing the proceedings due to the proposed development of Park House. They said that at the April 2006 meeting Mr Cohen had made it expressly clear that the Defendants were not looking for a cash settlement but simply looking to ensure that their business did not suffer. They denied that the bringing of the claim to protect their business interests was a collateral purpose amounting to an abuse of process.

On about 5 July 2006 Messrs Cohen, Harnett and Goreing circulated to all their partners a memorandum headed “Proposed redevelopment of Park House” (“the July Memo”). The July Memo explained the background to the Judicial Review proceedings. It expressed views about the consequences of the failure or success of those proceedings. In that respect, the July Memo said as follows:

“nevertheless there clearly is a risk that the court may refuse to hear our application on the basis that our principal concern is with another development, namely Park House. However, if the court refuses to grant “standing” for this reason this may pave the way for a further application for a reconsideration of the issue when the Park House scheme falls to be considered by Westminster Council.

….

If the application is successful, then Land Securities will have to reconsider how it intends to proceed. To some extent, the options available to it will depend upon the action taken by the court. It may for example decide to quash the council’s declaration of the affordable housing credit but refuse to quash the permission itself. Alternatively, it may of course take the opposite action or quash both decisions. In any event, a successful action would require Land Securities to substantially rethink its proposals for Park House which would result in a considerable delay to the implementation of its scheme. This has already been partially achieved to the extent that Westminster City Council has put on hold its consideration of the planning application for the redevelopment of Park House until the outcome of this challenge is known. We have put in a holding objection to the grant of planning permission for Park House and will put in further detailed objections in due course.

There are a number of reasons why delaying the development is the best feasible option available to the firm, all of which relate to the achievement of our long term ambitions.

We have identified during the business plan process we can only thrive as a business with continued growth. We require increased critical mass and spread of expertise in order to continue to attract the high value or complex transactions we are targeting.

We are approaching capacity in our building and have identified the need to expand our premises in order to accommodate our plans.

…

Relocation … would allow us to maintain the efficiencies we enjoy here but with increased facilities and project the positive image of a thriving firm required to attract those who will contribute to our development.

Unfortunately these plans are now untenable due to the Park House development. These premises have effectively become un-assignable given their size, the length of the lease and the effect of the development.

We have explored our options and concluded that leaving these premises vacant or paying compensation to withdraw from our obligations are both currently too expensive.

Each month that passes towards the expiry of our lease reduces these potential obligations by some £100,000.

It follows therefore that the longer we can delay the development the greater the options open to us albeit with a short term requirement for overflow space.”

Also on 5 July 2006 Newman J granted unconditional permission for the Judicial Review proceedings under CPR 54.5.

LS then revised their application for planning permission for the development of Park House by proposing a financial contribution towards Westminster’s affordable housing fund rather than the provision of off-site affordable housing on the Wilton Plaza Development. That would make the Credit Resolution irrelevant to the application in respect of Park House. LS proposed to Westminster that the financial contribution should be £5.7m. On learning of the proposal, the Defendants suggested to Westminster that, if a financial contribution was to be paid, it should be a considerably higher figure, namely some £11.4m.

Westminster’s planning committee considered the revised Park House application in September 2006. Planning permission was subsequently formally granted on 10 November 2006.

In January 2007 the Defendants agreed to withdraw their Judicial Review application in relation to the Wilton Plaza Development, and a draft consent order to that effect was lodged on 13 February 2007.

In the meantime, by letter dated 9 February 2007 addressed to each of the Defendants’ partners personally, LS’s solicitors indicated a claim against each of them for losses in the region of £17m on the ground that the partners who had conducted the meeting with Mr Hussey on 5 April 2006 had “demonstrated the illegitimate motivation of the Judicial Review – driven by financial motives – not any concern as to the Wilton Plaza planning permission”.

In early February 2007 the Defendants issued an application for permission to claim Judicial Review of the Park House consent. They were granted permission to proceed on 29 March 2007 by Sir Michael Harrison. Following a further application for planning permission for Park House, and the granting of permission pursuant to that application in May 2008, the Defendants claimed Judicial Review of that second consent in June 2008. Those applications for Judicial Review of Park House were heard by Collins J on 27 February 2009. He dismissed the claim in respect of the second Park House consent. He held that there had been a defect of procedure in relation to the earlier consent, but declined to quash the permission.

Paragraphs 5 to 8 of the amended Particulars of Claim contain an overview of the claim as follows:

“5.

The Claimants claim substantial damages for the tort of abuse of civil process.

6.

The Defendant threatened to issue and then issued and pursued two applications for judicial review of planning permissions obtained by the Second and Third Claimants in respect of Wilton Plaza and Park House respectively. In so doing, the Defendant sought to pressurise the Claimants into making financial contributions and assisting it to relocate its business from its premises opposite Park House. The Defendant was not motivated by concern about the lawfulness of the planning permissions and its purpose was not to prevent the developments from taking place, but rather to force the Claimants to assist it to move. That objective was beyond the scope of the judicial review proceedings and amounted to an improper and collateral advantage. That conduct by the Defendant amounts to an abuse of civil process and is tortious.

7.

The acts of the Defendant relied on as constituting the tortious conduct are set out in more detail below, but by way of summary:

The Defendant’s dominant purpose in threatening and then issuing and pursuing the judicial review proceedings was not to prevent either development, but to bring pressure to bear on the Claimants to force them to assist the Defendant to relocate its business.

The Defendant had no interest in preventing the development at Wilton Plaza, which was some distance away from its premises and would not affect the Defendant at all, but rather objected to that development as a means of bringing pressure on the claimants by impeding the Second Claimant’s proposed development of Wilton Plaza and the third Claimant’s proposed development of Park House.

In relation to the proposed development at Park House, the Defendant stated in terms that the development itself “looked fine” and that it “wished [the Claimants] well with it”.

Although the Defendant expressed concern at the potential of the development at Park House to disrupt and adversely affect its business, it took no steps to discuss the development project with the Claimants in an attempt to minimise that disruption, as would be normal in such circumstances.

The Defendant has never contended that either redevelopment would result in an actionable nuisance in respect of noise and disturbance to the Defendant.

The Defendant sought by means of threatening and then issuing and pursuing the judicial review proceedings to obtain protection from alleged future disturbance of its use and enjoyment of its premises in circumstances where no such protection was available in the law of nuisance or otherwise and sought thereby to exert pressure on the Claimants to facilitate a relocation from its premises.

8.

The Claimants have suffered substantial loss as a result of the delay to both developments caused by the Defendant’s actions and seek to recover such loss as damages.”

LS claim damages caused by delay in carrying out the two developments as a result of the Judicial Review proceedings. The loss is estimated in the region of £17m.

In their amended Defence the Defendants allege that the Credit Resolution had a direct effect on the grant of planning permission for the development of Park House, and their primary and dominant purpose in issuing and pursuing the two Judicial Review applications was to avoid the damage which the development of Park House would have on their business.

The Defendants issued an Application Notice on 31 July 2008 which, as subsequently amended, applied for an order striking out the claim pursuant to CPR 3.4(2)(a) and/or (b); alternatively, for “reverse” summary judgment against the Claimants pursuant to CPR 24.2. The grounds were that (a) the tort of abuse of process does not exist; (b) if the tort does exist, it does not apply to an application for Judicial Review; and (c) if the tort does exist and applies to Judicial Review claims, it applies only if the application for Judicial Review fails and the defendant had no reasonable or probable cause for bringing that application; (d) LS should have opposed the applications for Judicial Review or applied to strike them out as an abuse of process; and (e) on the evidence, LS have no real prospect of succeeding on their claims because the Defendants’ primary or dominant purpose was as set out in the Defence, namely to avoid the damage which the re-development of Park House would have on their business, and was not unlawful.

Witness statements in support of the Application Notice were made by Mr Cohen, Mr Harnett and Mr Goreing of the Defendants. Mr Hussey made a witness statement on behalf of LS.

The Deputy Judge dismissed the application to strike out the claim, but he granted the Defendants summary judgment pursuant to CPR 24.2.

He concluded that there were virtually no issues of fact which needed to be determined before the issue of law at the heart of the applications could be considered. The factual basis on which he proceeded to consider the merits of the applications was summarised in paragraph 40 of his judgment as follows:

“What appears plain is that Fladgate saw that it had a valuable negotiating position vis a vis the claimants and sought to use it to assist to get relocated and that it intended that the assistance should be at some material cost to the claimants and of financial benefit to themselves: it is fair to assume for the purposes of this application that it was this purpose which was driving their actions. It may also have had the additional intention, in the event that it did not reach satisfactory terms with the claimants, to oppose the application to delay it, but I do not have this in mind for the purposes of considering the applications.”

The Deputy Judge summarised the principal authorities relied upon by both sides. He concluded that there is no general tort of maliciously instituting civil proceedings; but that there is a tort of abuse of process, which was first formulated in Grainger v Hill (1838) 4 Bing. (N.C.) 211, and for which it is not necessary to prove malice or want of reasonable and probable cause or that the proceedings have been terminated, let alone in favour of the plaintiff. He accepted LS’s case that the tort can apply to proceedings for Judicial Review. In view of the different ways in which the elements of the tort have been described in the authorities, the Deputy Judge did not consider it appropriate for him to define the ingredients and limits of the tort. For those reasons he refused to strike out the claim on the ground that it did not disclose a cause of action. He said that the heart of the case was whether the Defendants, in bringing the Judicial Review proceedings, were acting for an improper or collateral advantage. He concluded that there was no realistic prospect of LS succeeding on that issue. His conclusion on the point was stated in paragraphs 84 and 85 of his judgment as follows:

“84.

The factor which in my judgment breaks down the claimants’ argument is the fact that there is an obvious connection between the Credit Resolution passed in relation to the Wilton Plaza application and the use intended to be made of it in relation to the third claimant’s application to redevelop Park House. That it was a real connection is evident from the fact that the claimants did not seek to defend the Judicial Review proceedings to the end but instead severed the connection by offering to make payment of some £5.769 million in lieu of affordable housing at Park House to the Westminster Affordable Housing fund and amended both planning applications accordingly.

85.

The matters in the preceding paragraphs do to my mind greatly affect what amounts to a collateral purpose for the purposes of the application of the tort to judicial review proceedings. If, as I am satisfied is the case, a property owner is entitled to use judicial review proceedings for the protection of his interest in and enjoyment of his property, why should he not compare the diminution in the value of his interest and enjoyment of his own property, which is likely to attend the development, with the countervailing (and perhaps very substantial) development gain which the developer will enjoy from the same development? Why should it be a collateral purpose if the property owner seeks to use any negotiating position he may have to restore the value he believes he will lose by the development by getting it from the person who caused it – who happens also to be the only person who might be prepared to pay it?”

Finally, the Deputy Judge held that the Defendants had no basis for striking out the proceedings on the ground that LS should have opposed the Judicial Review proceedings or applied to have them struck out because they were an abuse of process. He reached that conclusion on the basis that the procedure in Judicial Review proceedings does not give a proper opportunity for the determination of contested questions of abuse of process.

LS appeal on the grounds that the Deputy Judge wrongly characterised and identified the Defendants’ predominant purpose in bringing the Judicial Review proceedings; wrongly formulated the legal test for “collateral purpose”; wrongly applied the “collateral purpose” test; and wrongly applied the principles for granting summary judgment. LS say that the Defendants’ predominant purpose should have been assumed to be simply that which the Judge himself had set out in paragraph 40 of his Judgment; and that assumed purpose was outside the scope of the Judicial Review proceedings, and was not reasonably related to the grievance of which the Defendants complained in the Judicial Review proceedings; the Defendants’ actions therefore were, or arguably were, tortious on the basis of Grainger. LS say that, in any event, this is not an appropriate case for summary judgment because the law is both difficult and uncertain, and there are material facts in dispute, on which the court cannot properly reach a conclusion until after disclosure and a full trial.

The Defendants have served a Respondents’ Notice to uphold the judgment on the various points and arguments on which the Deputy Judge found against them. They include the Defendants’ contention that there is no general tort of abuse of process, and any such tort as exists is limited in ways which make it inapplicable on the facts of the case; in particular, that it is limited to ancillary process within existing proceedings, and it cannot apply to Judicial Review proceedings.

LS’s starting point is that Grainger established the existence of a tort of abuse of process.

The facts in that case were that the plaintiff was the master and owner of a ship. In September 1836 he was loaned £80 by the defendants, repayable on 28 September 1837. The loan was secured by a mortgage of a ship. In the meantime, the plaintiff retained the ship’s register so as to continue to use the ship for his profit. In November 1836 the defendants became concerned as to the sufficiency of their security, and decided to obtain possession of the register. Having threatened to arrest the plaintiff unless he repaid the money, they commenced an action of assumpsit, made an affidavit of debt, and procured a writ of capias, indorsed for bail in the sum of £95.17s.6d. That was a writ directing the sheriff to arrest the defendant to ensure his attendance at court. They sent two sheriff’s officers with the writ to the plaintiff, who was lying ill in bed from the effects of a wound. The officers told the plaintiff that they had not come to take him, but to get the ship’s register, but that, if he failed to deliver the register or to find bail, they would either have to take him or leave one of the officers with him. He was unable to procure bail. After being imprisoned for 12 hours, and “being much alarmed”, he gave up the register. He subsequently came to an arrangement with the defendants, was discharged from arrest, paid the costs, and repaid the loan. No further steps were taken in the action of assumpsit. The plaintiff brought proceedings against the defendants for the loss caused generally by his inability to carry on business due to the defendants’ conduct, as well as a specific claim in trover in respect of the ship’s register. A verdict having been given for the plaintiff at the trial, the defendants applied to enter a non suit on various grounds, including that the action could not be maintained unless the writ of capias had been issued without reasonable and probable cause, which had not been averred, and which could never be established without showing that the action of assumpsit had determined against the defendants.

The Court of Exchequer Chamber (Tindal CJ, Park, Vaughan and Bosanquet JJ) dismissed the nonsuit. Tindal CJ held that it was not necessary to prove the termination of the assumpsit proceedings and the absence of reasonable and probable cause for those proceedings because the action was not one for malicious arrest or malicious prosecution, for which those would have been necessary elements. He said, at p. 221, that the action was, rather, “for abusing the process of the law, by applying it to extort property from the Plaintiff”. The directions given to the plaintiff to compel him to give up the register were not part of the duty imposed by the writ of capias. The complaint of the plaintiff was “that the process of the law has been abused, to effect an object not within the scope of the process”. Park J, at p. 222, said that the case was not one for a malicious arrest, but “a case primae impressionis, in which the Defendants are charged with having abused the process of the law, in order to obtain property to which they had no colour of title.” He said that, as to the count in trover, the compulsion under which the register was detained was tantamount to a conversion. Vaughan J said, at p. 223, that what the plaintiff complained of was “an abuse of the process of law, for the purpose of extorting property to which the Defendants had no claim”, and that, as to the claim in trover in respect of the register, the “taking was as much a forcible taking as if a pistol had been presented to the Plaintiff’s head”. Bosanquet J said, at p. 224, that the action was not one of malicious arrest or prosecution, or for maliciously doing that which the law allows to be done. Rather, “the process was enforced for an ulterior purpose; to obtain property by duress to which the Defendant had no right”. The action was “not for maliciously putting process in force, but for maliciously abusing the process of the Court”. He said that “the register was illegally obtained by duress, under an abuse of the process of the Court”. Tindal CJ and Park J expressly acknowledged that there was no prior precedent for the cause of action of abuse of process on which the plaintiff succeeded.

A similar conclusion was reached by the Court of Common Pleas in Gilding v Eyre (1861) 10 CBNS 592, 142 ER 584. In that case, following judgment against the plaintiff for a debt, and substantial repayment of it by him, the defendant issued a writ of execution for the full amount of the debt, in consequence of which the plaintiff was arrested by the sheriff’s officers. The plaintiff brought proceedings to recover the amount which he had over-paid on the basis of malicious arrest. The Court (Williams, Byles and Keating JJ) rejected the defendant’s contention that the claim was not sustainable because the original proceedings had not terminated in the plaintiff’s favour. The single judgment of the court distinguished cases of malicious prosecution, emphasising that the proceedings had, subject to execution, actually terminated, and that the defendant “by means of a regular writ of execution extorted money which he knew had already been paid and was no longer due on the judgment” (p.604). Grainger was not mentioned.

If Gilding is properly to be regarded as an example of a Grainger case of tortious abuse of process, then it is the last reported case in which such a claim has succeeded in this jurisdiction. If not, then Grainger itself is the first and last such case. Accordingly, the last reported successful action in this jurisdiction for the tort abuse of process was either about 140 or 170 years ago.

Both Grainger and Gilding were cases which concerned the abuse of process within existing proceedings. In each case the process was issued without any judicial permission or intervention. The process was intended for a specific purpose in support of the proceedings, but the defendants used the process for an improper purpose outside its scope. In both cases the improper use to which the process was applied involved compulsion amounting to duress, namely arrest and imprisonment. The difference between the facts in the two cases and the matters on which the claim is based in the present proceedings is striking. In the present case, the claim concerns the bringing of proceedings for public law remedies by way of Judicial Review, for which permission of the court was necessary and was obtained. In the case of the Judicial Review proceedings in respect of the Wilton Plaza Development, the standing of the Defendants to bring those proceedings, their motives for doing so, and the prospects of success of the proceedings were expressly raised by LS in opposing the grant of permission, but the Judge nevertheless gave unconditional permission. It is not now suggested that the Defendants did not have standing to bring the Judicial Review proceedings or that they had no prospect of success. How then are LS able to argue, on the basis of Grainger, that the present proceedings have a sufficient prospect of success to be permitted to proceed to trial? They claim to be entitled to do so on the basis of statements in subsequent cases in this jurisdiction as to the existence and ambit of the tort of abuse of process and also in the context of applications to stay or strike out proceedings on the ground of abuse of process. They also rely on Australian cases in which the tort has been successfully invoked. In my judgment, none of those statements or authorities provides an arguable basis for the claim in the present case or, on the Statements of Case and the evidence, any reason to permit this action to proceed to trial. I turn to consider the further cases on which LS rely.

Mr Christopher Nugee QC, for LS, referred to Parton v Hill (1864) 10 LT 414. I do not find this of any assistance in clarifying the extent of the Grainger tort. It concerned an allegation of the malicious issue of an attachment of a debt owing from a third person to the plaintiff, without reasonable or probable cause. It was, therefore, similar to an action for malicious prosecution. It was not a Grainger abuse of process case at all. There is a brief and uninformative reference in the judgment of Blackburn J to “the doctrine laid down by Tindal CJ in Grainger”, but it is unclear from the very short and rather confusing report whether or not he was there simply repeating a comment of counsel for the unsuccessful plaintiff.

Re Majory [1955] Ch 600 was a case in which the debtor disputed a bankruptcy petition and opposed the making of a receiving order on the ground that the creditor had attempted in connection with the proceedings to extort £8 15s from the debtor in excess of the sums lawfully due under a court judgment. It was contended that this was “extortion” in bankruptcy law, that is to say the oppressive use or threat of proceedings in order to obtain some collateral advantage, such that the court would not permit the creditor to make use of the process which he had abused. In the course of delivering the judgment of the Court of Appeal, Evershed MR made the following general observation at pages 623-4:

“(3)

The so-called “rule” in bankruptcy is, in truth, no more than an application of a more general rule that court proceedings may not be used or threatened for the purpose of obtaining for the person so using or threatening them some collateral advantage to himself, and not for the purpose for which such proceedings are properly designed and exist; and a party so using or threatening proceedings will be liable to be held guilty of abusing the process of the court and therefore disqualified from invoking the powers of the court by proceedings he has abused.”

Evershed MR did not refer to Grainger. His observation was expressly limited to abuse which would disqualify a party from invoking court proceedings. It said nothing about a cause of action in tort for abuse of process.

In Goldsmith v Sperrings Ltd [1977] 1WLR 478 the plaintiff commenced proceedings for damages for libel and an injunction against the publishers, the editors and the main distributors of Private Eye. In addition, he issued writs against a large number of other wholesale and retail distributors of the paper for the same relief. Some of the distributors applied for an order that the actions against them should be stayed or dismissed as an abuse of process of the court on the ground that the plaintiff’s purpose in pursuing the actions against them was not to protect his reputation but for the collateral purpose of destroying the paper by cutting off its retail outlets. The case was not, therefore, one in which damages were claimed for the tort of abuse of process. The judgments of the Court of Appeal contain, however, the most detailed analysis of the “collateral advantage” principle in the context of abuse of process.

All three Judges, Lord Denning MR, Scarman LJ and Bridge LJ, cited both Grainger and Majory, but they all differed in their analysis. Lord Denning MR dissented in the result. Scarman LJ said (at page 498F) that “if Sir James Goldsmith’s purpose in initiating or pursuing his actions against the secondary distributors be to destroy “Private Eye”, namely to use his wealth so as to suppress it, he is abusing the process of the court”. Such a wide statement of principle goes beyond anything in Grainger or, indeed, Majory, is inconsistent with subsequent authority, and was not supported by Mr Nugee. It appears to merge motive and purpose.

Bridge LJ said (at page 503D) that, for the purpose of Lord Evershed’s general rule in Majory, the phrase “collateral advantage” cannot embrace every advantage sought or obtained by a litigant which is beyond the court’s power to grant him. He said (at page 503F-H) that one can certainly go so far as to say that, when a litigant sues to redress a grievance, no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for the ulterior purpose, he would not commence proceedings at all, that is an abuse of process. Bridge LJ said that those two cases were plain, but acknowledged that there is a difficult area in between. He postulated the situation of a litigant with a genuine cause of action, which he would wish to pursue in any event, who could be shown also to have an ulterior purpose in view as a desired by-product of the litigation. Bridge LJ very much doubted whether such a litigant could be debarred from proceeding. The Deputy Judge sought to apply Bridge LJ’s analysis to the facts of the present case, but Mr Nugee submitted that he failed to apply it correctly.

Mr Nugee next referred us to Speed Seal Products Ltd v Paddington [1985] 1WLR 1326. The question in that case was whether the defendant should be permitted to amend to add a counterclaim asserting that the action was brought in bad faith for the ulterior motive of damaging the defendants’ business, and not for the protection of any legitimate interest of the plaintiffs. Fox LJ, with whom the other two members of the Court of Appeal agreed, decided that the decision in Grainger provided a basis for an arguable case that there had been an actionable abuse of the process of the court. He said (at page 1335H) that he expressed no view as to the strength of the defendant’s case.

In Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391 the plaintiffs claimed, among many other heads of relief, damages for abuse of process. The defendants applied to have the order for service of the writ out of jurisdiction set aside on the ground, among other things, that the claim for abuse of the process was misconceived. The substance of the complaint against the defendants, in relation to this head, was that they had abused the process of the court by adducing false evidence and submitting a false case for the primary purpose of defeating claims to the return of the plaintiffs’ metal and other assets and to prevent the grant of an injunction restraining the defendants from dealing with such assets in the meantime. Slade LJ, giving the judgment of the Court of Appeal, said that those matters did not expose the defendants to an action for damages in tort under the Grainger principle. Having acknowledged (at page 469B) that the Court of Appeal in Speed Seal Products had established that “it is at least well arguable that there exists a tort of abuse of the process of the court of a nature established by the decision … in Grainger”, said that a person alleging such abuse had to show that the predominant purpose of the other party in using the legal process had been one other than that for which it was designed. Holding that the requirements of the tort were not satisfied on the facts of the case, he said at page 470 E-F:

“Relief in tort under the principle of Grainger v Hill is not, in our judgment, available against a party who, however dishonestly, presents a false case for the purpose of advancing or sustaining his claim or defence in civil proceedings. This may well cause hardship to an injured party who cannot be sufficiently compensated by an appropriate order for costs. However, if there is a gap in the law it rests on sound considerations of public policy, as does the rule of law which gives immunity to witnesses against civil actions based on the falsity of evidence given in judicial proceedings. If the position were otherwise, honest litigants might be deterred from pursuing honest claims or defences and honest witnesses might be deterred from giving evidence…”

Those comments have a particular resonance in proceedings for Judicial Review to challenge the unlawful conduct of public bodies.

In Broxton v McClelland (31.1.95 unreported) the defendants issued various applications to strike out the claim, including a claim of abuse of process. The action was being financially maintained by a third party. The defendants contended that the maintainer’s purpose was to oppress and ultimately bankrupt the defendants, and for that reason the action should be struck out as an abuse of process. Simon Brown LJ, with whom the other two members of the Court of Appeal agreed, referred to Grainger, Goldsmith and Speed Seal Products, and said that the proceedings should not be struck out since the plaintiffs were not seeking to achieve a collateral advantage beyond the scope of the action. He said that the motive for bringing proceedings is irrelevant, and that a plaintiff is entitled to seek the defendant’s financial ruin if that would be the consequence of properly prosecuting a legitimate claim. That was a clear rejection of the approach of Scarman LJ in Goldsmith. Simon Brown LJ appears to have preferred and followed the analysis of Bridge LJ in Goldsmith.

Mr Alan Steinfeld QC, for the Defendants, laid emphasis on two further English authorities relevant to the tort of malicious prosecution. In The Quartz Hill Consolidated Goldmining Company v Eyre [1883] 40 QBD 674 the Court of Appeal held that there was a cause of action for falsely and maliciously presenting a winding up petition. The Court (Brett MR and Bowen LJ) considered that there was no general cause of action for maliciously bringing civil proceedings without reasonable and probable cause. An action for malicious prosecution could, however, be brought in specific cases. Both Brett MR and Bowen LJ endorsed the three heads of damage capable of giving rise to a claim for malicious prosecution set out by Holt CJ in Savill v Roberts (1698) 12 Mod. Rep. 208. Brett MR set out the principles as follows at page 683:

“When we look back to the decision of the judges of earlier times … we find it laid down by Holt CJ in Savill v Roberts that there are three heads of damage which will support an action for malicious prosecution. There is damage to a man’s person, as when he is taken into custody, whether that be, as in former times, upon mesne process or upon final process, or whether it be upon a criminal charge. To take away a man’s liberty is damage, of which the law will take notice. Secondly, to cause a man to put to expense is damage, of which the law will take notice. But Holt CJ adds a third head of damage, and that is where a man’s fair fame and credit are injured. This is also a head of damage of which the law will take notice. Under the old law as to bankruptcy it was held that where a man was falsely and maliciously and without reasonable or probable cause made a bankrupt, two kinds of legal injury were inflicted upon him: first, in order to get rid of the bankruptcy, he was obliged to incur expense, and that was an injury; secondly, it was held that to allege of a trader that he was insolvent and liable to be made a bankrupt, was injury to his fair fame and credit, of which the law would take notice. Therefore under the old system of bankruptcy a trader had a good cause of action, if he was made a bankrupt falsely and maliciously and without reasonable or probable cause.”

Mr Nugee submitted that the reference to “expense” in that description of the second head of damage is to general economic loss of the kind claimed in the present proceedings. That is not correct. In Savill the Court of Common Pleas held that the plaintiff, Roberts, was entitled to recover £11 damages in proceedings for malicious prosecution, the defendant having maliciously caused Roberts to be indicted for causing a riot, and Roberts having been acquitted. The £11 was the cost incurred by Roberts in successfully defending himself on the indictment. Holt CJ, giving the judgment of the Court, explained the right to recover “charges and expenses” as damages for malicious prosecution very briefly in the following way, at page 209:

“Thirdly, that a man put to answer an indictment is put to charges is notorious; and if so, it is an injury to his property; and if this injury be occasioned by a malicious prosecution, it is reason and justice he should have an action to repair him the injury …”

Holt CJ appears there to have limited damages for purely pecuniary loss in an action for malicious prosecution to the costs of defending the maliciously prosecuted proceedings. There is nothing whatever in Savill to indicate that general economic loss is recoverable in such an action.

Indeed, Mr Nugee’s gloss on Savill would be contrary to the whole approach in Gregory v Portsmouth City Council [2001] 1 AC 419. In that case the House of Lords refused to extend the tort of malicious prosecution for civil proceedings beyond the heads of damage recognised in Quartz Hill. Lord Steyn, with whom the other members of the Judicial Committee agreed, said at pages 426F – 427A:

“The inquiry must proceed from the premise of the law as it stands. The tort of malicious prosecution is narrowly defined. Telling lies about a defendant is not by itself tortious: Hargreaves v Bretherton [1959] 1 QB 45. A moment’s reflection will show what welter of undesirable relitigation would be permitted by any different rule… Damage is a necessary ingredient of the tort. This element of the tort was explained in a dictum of Holt CJ in Savill v Roberts (1698) 12 Mod. Rep. 208. Holt CJ defined the interest protected by the tort as follows:

“there are three sorts of damages, any one of which is sufficient to support this action. First, damage to [the plaintiff’s] fame, if the matter whereof he be accused be scandalous. Secondly, to his person, whereby he is imprisoned. Thirdly, to his property, whereby he is put to charges and expenses."

Lord Steyn explained his refusal to contemplate the extension of the tort of malicious prosecution to civil proceedings generally as follows, at pages 432G and 433A:

“… for essentially practical reasons I am not persuaded that the general extension of the tort to civil proceedings has been shown to be necessary if one takes into account the protection afforded by other related torts…. Instead of embarking on a radical extension of the tort of malicious prosecution I would rely on the capacity of our tort law for pragmatic growth in response to true necessities demonstrated by experience.”

Mr Nugee referred to, and relied upon, various Australian cases. In particular, he cited Varawa v Howard Smith Company Ltd [1911] HCA 46, Dowling v The Colonial Mutual Life Assurance Society Limited [1915] HCA 56, QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R 245, Hanrahan v Ainsworth [1990] 22 NSWLR 73, and Williams v Spautz [1992] 174 CLR 509. Varawa was a case of alleged abuse of process by malicious arrest, in proceedings for breach of contract, in which the court held that the evidence did not support the case for damages for abuse of process. Dowling was an application to dismiss a petition for sequestration (in insolvency), and so was not a claim for damages in tort. The Court held that, on the facts, there was no abuse of process since the petitioning creditor wished to use the process for the very object for which it was designed by law, namely sequestration. In QIW Retailers the claim was for abuse of process in seeking an order for the winding up of the plaintiff, which had been dismissed as an abuse of process. In upholding the claim for abuse of process, the Judge proceeded expressly by way of analogy with the Quartz Hill categories of damage. In Hanrahan the parties had conceded that the tort of abuse of process was part of the common law of Australia, and the only question was whether the adjudication of the claim of abuse of process should have been left to the jury. Williams v Spautz concerned an application to stay proceedings for criminal conspiracy to defame and to injure on the ground of abuse of process, and so was not a claim for damages in tort.

On the basis of the authorities, LS formulated the relevant law as follows:

“It is a misuse of legal proceedings for a person to use or threaten them for the predominant purpose of obtaining some collateral advantage to himself beyond the proper scope of the proceedings. Such a misuse (traditionally labelled “abuse of process”) is both a ground for staying or striking out the proceedings (if the relevant purpose can be established to the necessary standard on a stay/strike out application); and is a wrongful act which, if it causes damage, is actionable as a tort on the Grainger v Hill principle.”

Mr Nugee accepted that not all the statements of principle in the cases can be easily reconciled. He submitted that the authorities do not make any clear distinction between the jurisdiction to stay and dismiss cases and the tort of abuse of process. He said that, in the context of both, the question is not one of motive but of purpose. If the claimant wishes to obtain relief within the proper scope of the proceedings, the reason why is irrelevant. On the other hand, if the predominant purpose is to achieve an objective not within the proper scope of the proceedings, it is irrelevant whether or not the proceedings have been successful, or even brought to a conclusion, and whether or not the claimant had reasonable grounds to believe that they would be successful.

Mr Nugee submitted that the Defendants’ predominant purpose in bring the Judicial Review proceedings can only be established at trial. He said that the witness statements show a difference of recollection and of tone, and in some cases outright contradiction, in relation to the critical meeting on 5 April 2006. He submitted that the evidence as a whole discloses a well arguable case that the dominant purpose of the Defendants was not to quash the planning permissions but to put pressure on LS to assist the Defendants to relocate their business, and to threaten LS with the prospect of financial loss. He submitted that there was no relevant difference between that and simply asking for a cash payment. He emphasised that the Defendants were already actively seeking to relocate before they became aware of LS’s application for planning permission for the development of Park House. He particularly stressed the significance of LS’s evidence that at the meeting of 5 April 2006 the Defendants’ representatives had said that they wished LS well with the development of Park House and that their opposition was “purely a business transaction”, and Mr Harnett’s statements in his Strategy Note that he expected that LS would ultimately be successful in obtaining planning permission and that there should be no collaboration with other objectors. He pointed out that the Defendants were sending to LS, rather than Westminster, various documents from time to time in connection with the Judicial Review proceedings, with suggestions that there should be a meeting. He further emphasised that there had never been any suggestion by the Defendants that LS were or would be likely to be in breach of any private law obligations in relation to the development of Park House, and in particular that LS would be likely to carry out the development in such a manner as to cause actionable nuisance. He submitted that the Defendants had no interest in a successful outcome to the Judicial Review proceedings. It was the threat of the proceedings, he said, which enabled the Defendants to have a negotiating position. Success in the proceedings would not have advanced their objectives. In short, LS say that they have an arguable case that the Defendants were, through the threat of the Judicial Review proceedings, seeking to obtain assistance in relocation, which was not something within the scope of the proceedings. That factual case, LS contend, is sufficiently strong to be permitted to go to trial, which would give LS the advantage of full disclosure of documents and the opportunity for cross-examination.

Mr Nugee submitted that it is irrelevant that the purpose of the Defendants in challenging the planning consent for the Wilton Plaza Development in the Judicial Review proceedings was raised expressly by LS in opposing the grant of permission for those proceedings, and that, notwithstanding LS’s objections, Newman J granted unconditional permission. Mr Nugee emphasised that the standing to bring Judicial Review proceedings has been steadily relaxed. He also submitted that, bearing in mind the normal practice of the Administrative Court, Newman J was not in a position to hear extensive argument and evidence, including oral evidence, on the matter of collateral advantage, which was put in issue by the denial of the Defendants that the real reason they were applying for Judicial Review was to obtain money from LS. He submitted that, if the Defendants had admitted that the purpose of the Judicial Review proceedings was merely to obtain money from LS, or if the court had considered all the relevant evidence and the arguments, Newman J could and should have refused permission for the Judicial Review proceedings.

Mr Nugee made the general commercial point that, if the Defendants’ conduct was permissible, it would be possible for others, without any genuine interest in a land development, to bring Judicial Review proceedings for the purpose of extracting money. He said that LS, in particular, were exposed to such claims since they carry out large and complex developments in central London and, as the present case shows, any delay in the implementation of planning permission can cause significant financial damage.

Finally, Mr Nugee emphasised that the Deputy Judge found against LS on the summary judgment application on the single ground that the Defendants’ purpose in bringing the Judicial Review proceedings was not sufficiently collateral. He submitted that, in reaching that conclusion, the Deputy Judge did not adhere to his assumptions of fact in paragraph 40 of his judgment; and, moreover, the Deputy Judge selected one of the many different judicial formulations of the ingredients of the tort, namely that of Bridge LJ in Goldsmith, but he did not even apply that test correctly.

In summary, Mr Nugee submitted that the present case raises difficult, novel and arguable points of law which, in the light of the arguable factual case advanced by LS, should only be finally determined after trial: Three Rivers District Council v Governor & Company of the Bank of England (No. 3) [2003] 2 AC 1 at paras [95] ff (Lord Hope) and Equitable Life Assurance Society v Ernst & Young [2003] EWCA Civ 1114.

Notwithstanding Mr Nugee’s eloquent and attractive submissions, I do not consider that the Deputy Judge was wrong to grant summary judgment against LS.

The authorities provide no basis for extending a tort of abuse of process to the Defendants’ proceedings for Judicial Review. The following points appear clearly from the authorities. First, there is no general tort of malicious prosecution of civil cases. On policy grounds, the tort of malicious prosecution in relation to civil cases is confined to the three well established heads of damage recognised in Quartz Hill and Gregory. Second, essential ingredients of a claim for malicious prosecution are the absence of reasonable and probable cause and that the proceedings have ended in favour of the person maliciously prosecuted. Third, Grainger has never been overruled. It is authority for a tort of abuse of process. The only other case within this jurisdiction, in which the tort has arguably been successfully invoked, is Gilding, over 140 years ago. Both cases concerned a blatant misuse of a particular process, namely arrest and execution, within existing proceedings. In both cases the abuse of that process involved compulsion by arrest and imprisonment to achieve a collateral advantage. Fourth, in cases of abuse of process, it is irrelevant whether or not there was reasonable or probable cause for the proceedings, or in whose favour they ended, or whether they have ended at all. Fifth, statements in the English authorities describing a broader application of the test of abuse of process than the critical factual elements of Grainger and Gilding were all obiter. In particular, Majory, which has been cited in support of a wider formulation, was not a claim in tort, but of opposition to a receiving order; it was in any event one of the Quartz Hill special circumstances; and the opposition to the receiving order failed on the facts. There was no reference to Grainger, and Evershed MR referred only to the sanction of prohibiting the abuser from invoking the power of the court by the proceedings he had abused. Sixth, as to the broader statements of principle, there is no clearly accepted approach for identifying what is sufficiently collateral to establish the tort of abuse of process. The analysis which appears to receive most support is that of Bridge LJ in Goldsmith.

It is not necessary on this appeal, as it was not necessary for the Deputy Judge, to define the precise limits of the tort of abuse of process. I consider, however, that, even if the tort can be committed outside circumstances of compulsion by arrest, imprisonment or other forms of duress, there is no reasonably arguable basis for extending the tort beyond the other particular heads of damage which must exist for invocation of the tort of malicious prosecution. A different conclusion would not only go beyond the factual context of Grainger and Gilding, but would be inconsistent with the refusal of the House of Lords in Gregory to extend the tort of malicious prosecution to all civil proceedings. It makes no sense severely to limit the cause of action for malicious prosecution, an essential ingredient of which is that the proceedings had been brought without reasonable or probable cause, to three particular heads of damage, but to extend to all cases of economic loss a tort of abuse of process which can apply even where the alleged “abuser” had a good cause of action. The dangers of parallel litigation and - echoing the concerns of Slade LJ in Metall - deterring the pursuit of honest claims are obvious. The wider descriptions of the tort of abuse of process in cases prior to Gregory must be re-appraised in the light of the decision of the House of Lords in that case and the policy considerations underlying it.

I do not consider that, having regard to their particular facts, the Australian cases assist the analysis further.

Those points apply with particular force to proceedings for Judicial Review. We were not referred to any case in any jurisdiction in which it has been held or suggested that the tort of abuse of process can apply to Judicial Review proceedings, for which the court has given permission, let alone when the damage relied upon is general economic loss outside the limited categories of damage for which the tort of malicious prosecution may be invoked. There is a public interest in bringing judicial scrutiny and remedies to bear on improper acts and decisions of public bodies. The permission stage of Judicial Review is intended to weed out claims without sufficient prospects of success. In R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2004] 1 WLR 1761 Dyson LJ, with whom the other members of the Court of Appeal agreed, specifically addressed the question of abuse of process in the context of Judicial Review proceedings. He said:

“23.

In my judgment, if a claimant has no sufficient private interest to support a claim to standing, then he should not be accorded standing merely because he raises an issue in which there is, objectively speaking, a public interest. As Sedley J said in R v Somerset County Council, Ex p Dixon [1997] JPL 1030, when considering the issue of standing, the court had to ensure that the claimant was not prompted by an ill motive, and was not a mere busybody or a trouble-maker. Thus, if a claimant seeks to challenge a decision in which he has no private law interest, it is difficult to conceive of circumstances in which the court will accord him standing, even where there is a public interest in testing the lawfulness of the decision, if the claimant is acting out of ill-will or for some other improper purpose. It is an abuse of process to permit a claimant to bring a claim in such circumstances. If the real reason why a claimant wishes to challenge a decision in which, objectively, there is a public interest is not that he has a genuine concern about the decision, but some other reason, then that is material to the question whether he should be accorded standing.”

The effect of LS’s submissions in the present case is that, even though an allegation of abuse is expressly raised as an objection to permission for Judicial Review and the Judge nevertheless grants unconditional permission, as did Newman J in the Judicial Review proceedings concerning the Wilton Plaza Development, it would nevertheless be possible for someone in the position of LS to institute immediately proceedings for abuse of process. They could do so since the tort does not depend upon the absence of reasonable and probable cause in bringing the “abusive” proceedings or their failure or indeed their termination. Further, the logic of LS’s submissions is that, even if the Defendants had succeeded in the Judicial Review proceedings for which Newman J had given permission, the economic loss caused to LS from their successful outcome would be recoverable from the Defendants in tort for abuse of process. There is nothing whatever in the authorities to justify such a remarkable conclusion.

Accordingly, both for those reasons and because the damages claimed by LS are general economic loss outside the Quartz Hill categories of damage, LS’s claim has no real prospect of success.

Furthermore, even if a wider formulation of the tort of abuse of process was adopted than I consider to be justified on the authorities, whether the wider formulation be that of Bridge LJ in Goldsmith or otherwise, the Deputy Judge was fully entitled to conclude that the interest of the Defendants in relation to their property relocation was insufficiently collateral to the Judicial Review proceedings as to render those proceedings abusive. What, in my judgment, emerges clearly from the authorities is that the tort is not committed by a person who institutes proceedings with a genuine interest in, and an intention to secure, their successful outcome, even if the claimant’s motives are mixed and they hope that they may also achieve an objective not itself within the scope of the proceedings. That is often the situation in Judicial Review proceedings concerning planning matters, as was recognised by the Court of Appeal in R (on the application of Mount Cook Land Ltd) v Westminster City Council [2004] 2 P&CR 22. In that case Auld LJ, with whom the other two members of the Court of Appeal agreed, said at paragraph [46]:

“… judicial review applications by would-be developers or objectors to development in planning cases are, by their very nature, driven primarily by commercial or private motive rather than a high-minded concern for the public weal.”

LS themselves have alleged in paragraph 7.6 of the amended Particulars of Claim that the intention of the Defendants, in issuing and then pursuing the Judicial Review proceedings, was to obtain protection from alleged future disturbance of the use and enjoyment of their premises. Further, it is not alleged in the amended Points of Claim or the Reply that the Judicial Review proceedings were instituted without any intention of bringing them to a conclusion. On the contrary, it is perfectly clear from the July Memo sent to all the Defendants’ partners that the Defendants did indeed address the possibility and consequences of succeeding in the Judicial Review proceedings, recognising that success in striking down the Credit Resolution would be likely to have a direct impact on LS’s proposals for the development of Park House to the advantage of the Defendants. Whatever may have been said at the 5 April 2006 meeting, it has not been suggested, and it would be fanciful to suggest, that the July Memo was not a genuine document intended to be taken at face value by all the Defendants.

For all those reasons, I would dismiss this appeal.

I agree with the judgment of Etherton L.J. and add a few words of my own in view of the importance of the issues raised in this appeal.

Although the concept of abuse of process is well-known to the law, both in civil and criminal proceedings, it has rarely been treated as giving rise to a cause of action. More commonly it is relied on as a ground for terminating proceedings that constitute an abuse and as such is a flexible concept for preventing injustice. The circumstances in which the court will regard conduct as amounting to an abuse of process are not narrowly defined, nor should they be. Although certain types of abuse are well-recognised, it is necessary for the courts to have the power to control their own proceedings and to prevent abuse, whatever guise it may take.

It has been recognised for over 150 years, however, that in some circumstances abuse of process is actionable as a tort at common law. The existence of such a cause of action can be traced back to Grainger v Hill (1838) 4 Bing. (N.C.) 211, in which the defendant had obtained a writ of capias, not for the purposes of ensuring the plaintiff’s attendance at trial, but in order to extort from him under the pressure of arrest the register of the vessel upon which the defendant’s loan was secured. At the time the writ was issued the loan had not fallen due and no cause of action had arisen to recover it. The defendant had no interest in obtaining the arrest of the plaintiff; he simply wanted to put pressure on him to hand over the document. Possession of the register was essential to enable the plaintiff to trade the vessel and it had been left in his hands so that he should be in a position to do so. The plaintiff sought to recover the losses that he had suffered as a result of being unable to trade.

The defendant argued that the plaintiff had not alleged, and could not show, that the action had been terminated in his favour (as would be necessary to sustain a claim for malicious prosecution), but Tindal C.J. held that to be irrelevant since

“. . . this is an action for abusing the process of the law, by applying it to extort property from the Plaintiff, and not an action for a malicious arrest or malicious prosecution, . . . In the case of a malicious arrest, the sheriff at least is instructed to pursue the exigency of the writ: here the directions given, to compel the Plaintiff to yield up the register, were no part of the duty enjoined by the writ. If the course pursued by the Defendants is such that there is no precedent of a similar transaction, the Plaintiff's remedy is by an action on the case, applicable to such new and special circumstances; and his complaint being that the process of the law has been abused, to effect an object not within the scope of the process, it is immaterial whether the suit which that process commenced has been determined or not, or whether or not it was founded on reasonable and probable cause.”

Vaughan J. said:

“It is an action for abusing the process of law, by employing it to extort property to which the Defendants had no right: that is of itself a sufficient cause of action . . . ”

As Etherton L.J. has observed, the only other case in which a successful claim has been made in England to recover damages for abuse of process is Gilding v Eyre (1861) 10 C.B. (N.S.) 592, another case in which the defendant obtained the arrest of the plaintiff, this time under a writ of capias ad satisfaciendum, a process which issued without the need for judicial intervention. In that case also the defendant’s purpose was to extort property from the plaintiff (in that case a sum of money in excess of that which remained due under a judgment) under pressure of arrest. Grainger v Hill does not appear to have been cited, but the court had no difficulty in holding that the pleading disclosed a good cause of action.

Re Majory [1955] 1 Ch. 600 concerned abuse of a rather different kind. A debtor admitted his liability to the creditor and offered to pay the debt by instalments. The creditor issued a judgment summons for the debt and costs in the sum of £12 5s., having warned the debtor that he would do so. Having entered judgment, the creditor demanded payment of the debt in two substantial instalments with £21 costs. He then issued bankruptcy proceedings which the debtor opposed on the grounds that they amounted to an attempt to extort from him a greater sum than was due. The case is of interest mainly because of the discussion of the meaning of “extortion” in the context of bankruptcy, but it is clear that the court was not concerned with a claim of the kind considered in Grainger v Hill. Rather, the question was whether the creditor should be prevented from pursuing the proceedings because they involved an abuse of the process. I agree, therefore, that it does not shed any light on the question that we have to decide in this case.

The other English cases on which the appellants rely are likewise dealing with abuses of a kind that might cause the court to stay or set aside the proceedings. In Goldsmith v Sperrings Ltd [1977] 1 W.L.R. 478 the plaintiff brought an action for libel against the publishers, editor and main distributors of ‘Private Eye’ claiming damages and an injunction. He also issued 111 writs against individual wholesale and retail distributors of the magazine seeking similar relief. Many of the distributors applied for an order that the actions be stayed or dismissed on the grounds that they were an abuse of process, being brought for the collateral purpose of destroying the magazine by cutting off its commercial outlets.

Lord Denning M.R. expressed himself in characteristically broad terms. At page 489C-E he said:

“In a civilised society, legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer.”

However, Mr. Nugee Q.C. relied on this case principally for passages in the judgments of Scarman and Bridge L.JJ. Scarman L.J. said at page 498H:

“In the instant proceedings the defendants have to show that the plaintiff has an ulterior motive, seeks a collateral advantage for himself beyond what the law offers, is reaching out “to effect an object not within the scope of the process”: Grainger v Hill (1838) 4 Bing. (N.C.) 212 , 221 per Tindal C.J. In a phrase, the plaintiff's purpose has to be shown to be not that which the law by granting a remedy offers to fulfil, but one which the law does not recognise as a legitimate use of the remedy sought: see In re Majory [1955] Ch. 600 , 623.”

When Scarman L.J. referred to “a legitimate use of the remedy sought” I think he must have intended to refer to the process by which the remedy afforded by the law is obtained, because he said at page 499G:

“Men go to law to redress a grievance. They may not know or understand the limits of the remedies provided by law — though no one suggests that Sir James Goldsmith’s advisers could be said to suffer from ignorance of the law. But, equally, a man, while pursuing the remedies offered by law, may negotiate to secure, by arrangement with the parties sued, terms more favourable than, or different from, what he would get in the absence of agreement. Such a negotiation, undertaken taken by properly advised parties, each of whom may have a legitimate interest in avoiding litigation and may be prepared to concede more than the law requires of them to achieve that end, does not necessarily mean that the plaintiff by his litigation is reaching out to secure a collateral advantage. In the context of libel, he may reasonably see in settlement a more effective way of protecting his reputation than by action; and, whether he pursues his litigation to judgment, or settles it, he may in either case be seeking no more than the way he thinks best in the circumstances to protect his reputation. Since that is the object of the law of libel (see Gatley on Libel and Slander, 7th ed. (1974), Chap. 1, p. 1, para. 1) it would, in my judgment, need strong evidence that the plaintiff was in fact seeking something beyond the protection and vindication of his reputation before the court could stay his action as an abuse of process.”

That certainly appears to have been the view of Bridge L.J. who said at page 503F:

“For the purpose of Lord Evershed’s general rule [sc. the rule in Re Majory], what is meant by a “collateral advantage”? The phrase manifestly cannot embrace every advantage sought or obtained by a litigant which it is beyond the court's power to grant him. Actions are settled quite properly every day on terms which a court could not itself impose upon an unwilling defendant. An apology in libel, an agreement to adhere to a contract of which the court could not order specific performance, an agreement after obstruction of an existing right of way to grant an alternative right of way over the defendant's land — these are a few obvious examples of such proper settlements. In my judgment, one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process. These two cases are plain; but there is, I think, a difficult area in between. What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired byproduct of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it. But on the view I take of the facts in this case the question does not arise and it is neither necessary nor desirable to try to lay down a precise criterion in the abstract.”

In Speed Seal Products Ltd v Paddington [1985] 1 W.L.R. 1327 the plaintiff sought an injunction to restrain the use by the defendants of allegedly confidential information. The defendants sought to make a counterclaim for damages for abuse of process, alleging that the proceedings had been brought for the purpose of deterring potential customers from dealing with them rather than for the protection of any legitimate interests. They relied on Grainger v Hill. Fox L.J., with whom the other members of the court agreed, held that the decision in that case provided the basis for an arguable case that there had been an actionable abuse of the process so as to justify giving leave to amend. However, I do not regard this decision as shedding much light on the question we have to decide. The court was required to do no more than determine whether the claim was sufficiently arguable to go to trial. The threshold for those purposes is not very high and there is no discussion in the judgments of issues of the kind that arise in this case.

In Broxton v McClelland (C.A.) (unreported, 30^th January 1995) Simon Brown L.J. identified as the essential element in abuse of process the misuse of the court’s process to achieve something not available in the course of (or, I would say, by means of) properly conducted proceedings. I respectfully agree. It seems to me that whether the question is one of staying or striking out the proceedings themselves or of the existence of a cause of action, the claimant must be able to establish that the defendant’s predominant purpose in bringing the proceedings is not to obtain the remedy that the law offers (disregarding for this purpose the use he may seek to make of that remedy once he has obtained it) but to achieve some other object that lies outside the range of remedies that the law grants. At the level of this principle I see no difficulty in assimilating the decisions on abuse of process as a tort with the decisions concerning staying or striking out the proceedings.

Abuse of process in the sense described above and malicious prosecution are at one level related since both involve the misuse of the court’s process, but at another level they clearly differ, because a claim for malicious prosecution depends on establishing that the claim was not well-founded (the claimant must show that the proceedings were determined in his favour and that the defendant had no reasonable and probable cause for bringing them), whereas abuse of process is not concerned with the merits of the claim but with the purpose for which the proceedings are brought. The distinction was well drawn by Isaacs J. in Dowling v The Colonial Mutual Life Assurance Society Ltd [1915] H.C.A. 56 in these terms:

“In English law there has long been recognized a form of wrong by malicious use of process—such as by malicious arrest. But in order to maintain an action for malicious use of the process there must have been a termination of the suit in plaintiff's favour. If, however, there has been an abuse of the process, as distinguished from the use of it, it is unnecessary to show any such termination of the suit. If the object sought to be effected by the process is within the lawful scope of the process, it is a use of the process within the meaning of the law, though it may be malicious, or even fraudulent, and in the circumstances the fraud may be an answer; if, however, the object sought to be effected by means of the process is outside the lawful scope of the process, and is fraudulent, then—both circumstances concurring—it is a case of abuse of that process, and the Court will neither enforce nor allow it to afford any protection, and will interpose, if necessary, to prevent its process being made the instrument of abuse. Grainger v. Hill 4 Bing. (N.C.) 242 laid down the distinction.”

In QIW Retailers Ltd v Felview Pty Ltd [1989] 2 Qd R. 245 the first defendant sought a winding up order against the plaintiff and the second defendant arranged for an article referring to the proceedings to be published in a trade magazine. The primary purpose of doing so was, as the court found, to force the plaintiff’s board to enter into negotiations for control of the company to be ceded to the first defendant. The issue and publicising of a petition for a winding up order was held to be sufficient to support a claim for damages by analogy with the cases on malicious prosecution.

Finally, it is necessary to refer to the case of Hanrahan v Ainsworth (1990) 22 NSWLR 73. In that case the claimant, a police officer, brought proceedings against the defendant alleging that he had started an action for defamation against him for the purposes of intimidation and in order to coerce him into abandoning a criminal investigation. The court held that there was sufficient evidence of abuse to go to the jury and that, if abuse was established, the claimant was entitled to claim damages in respect of it and was not confined to the remedy of having the proceedings struck out.

If abuse of process consists in making use of proceedings in order to achieve some object other than one of the remedies which it lies in the court’s power to grant, it might seem obvious that proceedings for judicial review could be abused as much as proceedings of any other kind. In principle that may be so, but it is much less likely to be the case in practice. There are at least two reasons for that. The first is that it is necessary to obtain permission to proceed with a claim for judicial review and that requires the court to consider whether the claim has a real prospect of success and, more generally, whether the applicant should be allowed to pursue the claim. If the defendant or an interested party considers that the proceedings constitute an abuse, that can be drawn to the attention of the court which will consider the position before permission is given. The remarks of Dyson L.J. in R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2004] 1 W.L.R. 1761, to which Etherton L.J. has referred, make that clear.

The second reason lies in the public law nature of the proceedings themselves, the essential nature of which is to ensure that a public body complies with the law. That does not mean that the claimant will not be seeking to serve a private interest of his own; in very many cases he will and will be expecting to further that interest as a direct or indirect result of obtaining the relief that he seeks. Whatever may be the claimant’s private purpose in commencing and continuing the proceedings, however, the public has an interest in ensuring that breaches of the law by public bodies are identified and, where appropriate, corrected. It is difficult, therefore, to contemplate a case in which the Crown, in whose name the proceedings are brought, does not have a proper interest in obtaining whatever remedy the court may see fit to grant.

Although rarely applied, I do not think that the principle in Grainger v Hill has ever been seriously doubted. It is treated as good law in the leading textbooks on tort and has been applied in Australia, as the cases to which I have referred show. I am therefore unable to accept the broad submission made by Mr. Steinfeld Q.C. that the issue and pursuit of civil proceedings can never amount to a tort, even where the predominant purpose of the claimant is to obtain a “collateral benefit”, by which I understood him to mean some object other than the relief available from the court or some other advantage that depends on obtaining such relief. However, it does not follow that any conduct of that kind will be actionable as an abuse of process. Indeed, for reasons to which I shall come in a moment, I am satisfied that the tort has a very limited application under modern conditions.

In Gregory v Portsmouth City Council [2000] 1 A.C. 419 the claimant, a local councillor, brought an action for malicious prosecution against the council as a result of his having been subjected to internal disciplinary proceedings which were eventually resolved in his favour. The claim was struck out as disclosing no reasonable cause of action. Lord Steyn, with whom the other members of the Appellate Committee agreed, said at page 427B:

“In English law the tort of malicious prosecution is not at present generally available in respect of civil proceedings. It has only been admitted in a civil context in a few special cases of abuse of legal process. Sometimes these cases are described as constituting a separate tort of abuse, but in my view Fleming, The Law of Torts, 9th ed. (1998), p. 687 is correct in observing that they “resemble the parent action too much to warrant separate treatment.” ”

It is not clear from that passage whether Lord Steyn was intending to refer only to the malicious institution of unfounded civil proceedings or to the malicious abuse of process more generally. Clerk & Lindsell on Torts 19^th ed., para 16-05 treats his remarks as extending to the latter, but Grainger v Hill was not cited to the House and the various examples of the tort to which Lord Steyn refers all involve acting maliciously and without reasonable and probable cause. In fact, in the same paragraph of Fleming the author draws a distinction between those torts which are said to resemble the parent action too much to warrant separate treatment and those cases in which a legal process, not itself devoid of foundation, has been perverted for some predominant extraneous purpose. Grainger v Hill is cited as the leading example. Gregory v Portsmouth City Council is not, therefore, direct authority for the scope of the tort of abuse of process, but even so, it has profound implications for any development of the tort of the kind which would be required to enable the claimants to succeed in this case.

The origins of the tort as an action on the case (see Grainger v Hill) mean that damage is of the essence of the claim and it is therefore relevant to enquire whether an action will lie in respect of damage of any particular kind. In both Grainger v Hill and Gilding v Eyre the damage consisted of an interference with the plaintiff’s liberty. No English case appears to have gone beyond that, but I think it is arguable that damage of any kind that would support a claim for malicious prosecution of civil proceedings (which is a different form of abuse of process) would suffice. If so, the tort would extend to cases of injury to person, damage to property and damage to reputation (“fair fame and credit”): see Quartz Hill Gold Mining Co. v Eyre (1883) 11 Q.B.D. 674. To hold that it extends to damage of other kinds, however, would involve a significant departure from the position hitherto recognised. Although the early authorities recognise that damage to property includes pecuniary loss, they do not support the conclusion that it extends to consequential economic loss rather than the immediate loss of property obtained by coercion and the cost of defending the proceedings. Before a general right to recover costs was created the expense incurred by a defendant in contesting the proceedings was damage of a kind that would support a claim for malicious prosecution (see Savill v Roberts (1698) 12 Mod. Rep. 208), but that is no longer the case since, as Bowen L.J. pointed out in Quartz Hill, an award of costs is deemed to provide a complete indemnity in respect of the reasonable costs of the action.

As Mr. Nugee Q.C. has demonstrated, there are arguments in favour of recognising other kinds of damage, including consequential economic loss, at least in cases where the predominant purpose of instituting proceedings has been to inflict such loss as a means of coercion, but there is no clear authority which supports such a development of the law. As Etherton L.J. has noted, most of the Australian cases were concerned with other questions. There is some discussion in the judgment of Macrossan J. in QIW Retailers v Felview of the nature of the damage that will support an action for abuse of process, in particular whether it is limited to those kinds of damage that support an action for malicious prosecution, but it was unnecessary for the judge to reach a firm conclusion on the question because he was satisfied that the nature of the proceedings were such that the case was covered by the principles set out in Quartz Hill and earlier cases, which he applied by way of analogy. Only Hanrahan v Ainsworth might be said to support the proposition that the tort has a wider scope. It is difficult to identify the nature of the damage in respect of which the claimant in that case sought to recover, but all the members of the court appear to have accepted that damage of any kind would suffice to support a claim. The only English case that lends any support to the proposition that a claim for abuse of process may lie in respect of economic loss is Speed Seal Products Ltd v Paddington. The precise nature of the loss which the defendants sought to recover by their counterclaim in that case is not clearly identified in the report, but since they were complaining that the action was being used as a weapon to persuade potential customers not to deal with them, I think it can safely be inferred that they were seeking to recover economic loss in one form or another resulting indirectly from the institution of the proceedings. The case appears to have been put primarily as one of malicious prosecution and alternatively (and perhaps as something of an afterthought) as one of abuse of process, relying on Grainger v Hill. In his judgment Fox L.J. discussed the essential elements of the tort but without referring to the nature of the damage that would support it. The decision in Gregory v Portsmouth County Council still lay well in the future. For that reason and for the reasons mentioned earlier, I do not think that the decision provides any support for the claimant’s case.

It may be that the development of the tort of abuse of process has taken a different path in Australia from that which it has taken in England. In my view, however, there are strong policy reasons for limiting to a necessary minimum the range of circumstances in which the prosecution of well-founded civil proceedings will give rise to a cause of action. In general, people should be free to take action to vindicate their rights without facing the threat of collateral proceedings. In Gregory v Portsmouth City Council their Lordships did not think it necessary or appropriate to extend the tort of malicious prosecution to civil proceedings generally or (it would seem) to any kinds of damage other than those that had been recognised in Quartz Hill and the earlier cases. That was partly because they considered that there were other remedies capable of providing adequate protection to a person against whom civil proceedings had been taken maliciously and without reasonable and probable cause. In my view similar considerations apply in the case of abuse of process. There is an effective remedy available in the exercise of the court’s inherent power to stay the proceedings and to award costs against the claimant on an indemnity basis. I am unable to accept Mr. Nugee’s submission that this case proves the contrary. The fact is that the claimants could have taken more vigorous steps to persuade the court that the claim for judicial review was being used as an aid to extortion and therefore as nothing more than a device to cause them harm, and if the court had been persuaded that the proceedings were improper, relief would have been granted.

I am not persuaded that there are sufficient grounds for extending the scope of the tort of abuse of process in order to recognise damage of a kind that has not hitherto been regarded as supporting a cause of action. The result is that the abolition of arrest in support of civil proceedings and the introduction of a power to award costs when it is in the interests of justice to do so means that the tort of abuse of process now has a much reduced role. I should not wish to exclude the possibility that a claim could be made for personal injury in the form of psychiatric harm resulting from abusive proceedings, but such cases are likely to be very rare. Although the tort may still live on in the context of bankruptcy and winding up proceedings, even there the likelihood is that its role will be limited. In those circumstances Mr. Steinfeld’s broad submission, to which I referred earlier, is not wholly wide of the mark.

Mr. Nugee submitted that the matter should be allowed to go to trial in order for the issues of law to be determined on the basis of the judge’s eventual findings of fact. In many cases that would be a powerful argument, since a clear understanding of the facts is essential to enable the court to reach a sound conclusion on the law. In the present case, however, I do not think that it would be right to take that course. The nature of the loss which the claimants seek to recover is not in doubt; nor is it in doubt that it is not the kind of loss that has hitherto been accepted as supporting a claim for abuse of process. The critical question on which the claim turns is whether the scope of the tort should be extended to economic loss of the kind in issue and that can be answered without the need for a trial.

For the reasons I have given I do not think it should and I therefore agree that the appeal should be dismissed.

I agree with both judgments. Etherton LJ’s judgment on the arguments and the authorities is comprehensive. This judgment is confined to a few brief general points on the excellent arguments from each side about the current size of the tort of abuse of legal process.

First, on the breadth of the tort, I see that Oxford Principles of English Law: English Private Law (2^nd Ed - Andrew Burrows) treats “harassment by legal process” as an instance of an intentional wrong. The discussion covers both malicious prosecution and, “on a somewhat lower plane”, the tort of abuse of legal process. The statement that the tort “is committed when litigation is instituted in pursuit of an ulterior motive” is qualified-

“17.

368 …..The exact shape of this tort remains uncertain and even its existence has been viewed with scepticism. Nevertheless its existence is warranted by Grainger v. Hill where the defendant was made liable for using arrest for debt as a means to force the claimant to give up the registration documents of his vessel without which he could not sail.”

The definition proposed by Mr Christopher Nugee QC is very broad: instituting legal proceedings for the predominantly collateral or ulterior purpose of obtaining a benefit for which the proceedings were not designed. Its potential scope was demonstrated by Mr Nugee’s assertion that the action lies even in cases where (a) the defendant to the tort claim has been successful in the allegedly abusive legal process and (b) the only compensation sought, as here, is for pure economic loss. Liability stems from the presence of an improper ulterior purpose in the legal process. Unlike malicious prosecution, liability does not depend either on the outcome of the earlier litigation or on the special nature of the damage inflicted-damage to reputation, to person or to property, and including the pecuniary costs and expenses of defending malicious criminal or civil proceedings.

Secondly, recovery for pure economic loss. There is no generalised tort in English law of intentionally inflicting economic loss on another person. No case was cited of recovery for pure economic loss intentionally inflicted by malicious criminal or civil proceedings or by abuse of legal process.

Thirdly, the relevance of ulterior purpose. The institution and pursuit of legal proceedings is an exercise of the fundamental right of access to the courts. As a general rule, the exercise of a legal right is not an unlawful abuse of that right merely by reason of a predominant improper or ulterior purpose: Bradford Corpn v. Pickles [1895] AC 587.

Fourthly, the importance of procedural law. In legal proceedings the interests of the parties and of the public are protected by procedural law, not just by substantive law. The right of access to the courts does not confer an unlimited licence to litigate. The courts have a range of wide discretionary powers to control the conduct of the parties, to safeguard the public interest and to protect the courts themselves from misuse of legal process e.g. powers to stay or strike out proceedings, to impose a range of conditions on the conduct of the litigation, and to order payment of legal costs and expenses. There is no pressing need to supplement procedural law by expansive substantive tortious liability in order to protect litigants in civil proceedings from malicious or abusive claims.

Fifthly, the settled shape of an action for malicious prosecution of civil proceedings. An action for malicious prosecution of civil proceedings only lies if the abusive legal proceedings have failed; if they were brought without reasonable cause and maliciously; and if there has been special damage to reputation, person or property, and including the pecuniary costs and expenses of contesting the malicious proceedings. As the House of Lords in Gregory v. Portsmouth City Council [2000] 1 AC 419 recently declined to expand the tort of malicious prosecution to cover civil proceedings generally, it does not seem to me to be consistent with current legal policy to mould a tort of abuse of legal process into a shape as large as Mr Nugee QC contended.

Sixthly, the special character of judicial review proceedings. I doubt whether it is sensible to lump together and make broad generalisations about all kinds of legal process treating their abuse as giving rise to the same policy or practical considerations. In this case the process was judicial review challenging the lawfulness of an exercise of planning powers by a public authority. Access to a court for that purpose is an important right of every citizen affected by the decision or act under challenge. It would be unfortunate if a person could be pressured into desisting from such action by the threat of third party civil liability for substantial damages, even if the judicial review application succeeded.

The special judicial review procedure under CPR Part 54 governing claims of abuse of power has robust in-built protections from abuse of process for those directly affected by the claim. Unlike the case of an ordinary action, the prior permission of the court is required to proceed with a claim for judicial review. There is a short limitation period. There is no automatic right to disclosure of documents or to test evidence by cross examination. Interested parties can be joined or can apply to be joined in the application at any stage. As in this case the interested parties in judicial review proceedings are usually beneficiaries of the exercise of power the lawfulness of which is challenged. A person receives the benefit of a planning decision. The lawfulness of the permission is liable to be judicially reviewed. The recipient of the planning permission naturally wishes to support the validity of the decision under challenge. It is essential that such a person has the right to participate and be heard in the protection of his interests. It is also desirable that the applicant for judicial review should not be deterred from pursuing an application, once permission has been obtained for an arguable case that is considered fit for further consideration, for fear that, win or lose, there may be exposure to a liability to compensate the interested party for pure economic loss suffered in consequence of the claim.

Finally, on the authorities, the wrong complained of in the seminal case of Grainger v. Hill is very far removed from the claim in the present case. I do not doubt the correctness of that early decision on its facts. I only doubt the width of the legal principle which eminent writers, such as Professor Prosser, and distinguished judges, such as Lord Denning, have managed to extract from it. That case was one of blatant and unjustifiable misuse of a coercive and intimidating process violating the personal freedom of an individual for an improper and ulterior purpose – arrest and extortion of valuable property to which the plaintiff in the first action was not entitled. It is nothing like a claim for pure economic loss alleged to have been suffered as the result of an application for judicial review challenging the validity of a public authority’s grant of planning permission. I hesitate about placing too much reliance on it, 170 years later, as a good guide to the shape of a tort for abuse of process by an application for judicial review.