Summary

Thomas Grant QC and Ryan Turner have successfully resisted an application to strike out claims in fraudulent misrepresentation and unlawful means conspiracy on the basis that the proceedings were an abuse of process in a Henderson v Henderson sense.

For parties to a civil action involving fraud, the judgment demonstrates how the modern approach to Henderson v Henderson abuse that was established by the House of Lords in Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 may play out in the context of a claim in fraud where a previous claim alleging a different fraud was litigated against a related party of the defendants.

Facts

The proceedings arise out of the defective construction of the New Lawrence House development in Manchester and the inspection process carried out by surveyors employed by Zurich Insurance plc (“Zurich”) for the purpose of issuing “Cover Notes” and certificates of insurance. As a result of failures in the construction process, the development is uninhabitable, having been the subject of prohibition notices issued by the Greater Manchester Fire Authority in the week after the tragic Grenfell Tower fire in London.

Certain of the long leaseholders brought a successful claim against Zurich under their individual new home warranty insurance policies and an unsuccessful claim in fraudulent misrepresentation against a related party of Zurich that had issued certificates under primary and secondary legislation (reported at [2019] EWHC 140 (TCC) and [2019] EWCA Civ 2163). After the trial of the claim (but before the hearing in the Court of Appeal), a second set of proceedings were commenced by some of the original claimants alleging claims in fraudulent misrepresentation and unlawful means conspiracy against Zurich.

Held

His Honour Judge Stephen Davies, sitting as a Judge of the High Court, has dismissed the defendants’ application to strike out the claims in his judgment handed down today, which has been reported as Goldman v Zurich Insurance plc [2020] EWHC 192 (TCC).

Thomas Grant QC and Ryan Turner were instructed by Martin Scott, Paul Hargreaves, and Hayley Hayes of Walker Morris LLP.