What is Abuse of Process?

It is well known that a court may use its case management powers to strike out a case if the action amounts to an abuse of process. What is much harder is defining what exactly amounts to an abuse of process. Following the amendment to the Overriding Objective recommended by the Jackson Reforms, it was widely assumed that an action that would cost a disproportionate amount in legal fees to pursue would amount to an abuse. This has now been called into question by the High Court in Burrell v Clifford [2015] EWHC 2001 (Ch).

In this case the claimant brought an action against the defendant for breach of confidence and privacy. The defendant applied for the claim to be struck out on multiple grounds. One of these grounds was that the claim should be struck out as an abuse of process as the cost of pursuing the claim would be much higher than any amount of damages the claimant could hope to recover. The claimant’s estimated costs to trial exceeded £260,000 and the defendant’s exceeded £125,000.

The court rejected this argument and refused to strike out the claim as an abuse of process. Mr Justice Mann held that damages, although low, were unlikely to be so low that they would not be worth pursuing. Following Sullivan v Bristol Film Studios Ltd [2012] EMLR 27 the real issue was whether the claimant had an alternative proportionate method of redress. Mann J decided the claimant did not and therefore to strike out the claim because it was disproportionate would not be in the interests of justice.

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