Summary

The tort of abuse of process was of limited application and there was no reasonably arguable basis for extending it beyond the heads of damage that had to exist for invocation of the tort of malicious prosecution. In particular, there was no basis for extending it to applications for judicial review for which the court had given permission and in which the damage relied on was general economic loss.

Facts

The appellant development companies (L) appealed against the dismissal ((2009) EWHC 577 (Ch), (2009) 13 EG 143 (CS)) of their action against the respondent firm of solicitors (F). L had obtained planning permission to develop a site opposite to the building occupied by F pursuant to a lease. Although it was proposing the erection of a retail, office and residential block, it did not intend to provide any affordable housing. Rather, it proposed that the lack of affordable housing was to be offset by an over-provision of affordable housing in another of its developments. F, who was planning to move offices and was attempting to dispose of the residue of its lease, became concerned that the proposed development would adversely affect its marketability and value. It applied for judicial review of the decision to grant planning permission, challenging the legality of the policy enabling L to offset its failure to provide affordable housing at the first site. L then brought an action in damages against F, claiming that the purpose of the judicial review proceedings was not to prevent the development, but was rather to pressure them into giving F financial help. They claimed that the issue of the proceedings therefore constituted the tort of abuse of process. F applied either to strike out the claim, or for summary judgment to be entered. Although the judge declined to strike out L's claim, he entered summary judgment in favour of F. He found that while the tort of abuse of process could apply to proceedings for judicial review, the question was whether, in bringing the proceedings, F had been acting for an improper or collateral advantage. He concluded that L had no reasonable prospect of establishing that. L submitted that the judge had wrongly characterised F's predominant purpose in bringing the judicial review proceedings; wrongly formulated the test for collateral purpose; wrongly applied the 'collateral purpose' test; and wrongly applied the principles for granting summary judgment.

Held

The judge had not been wrong to enter summary judgment against L. The authorities provided no basis for extending a tort of abuse of process to F's application for judicial review. Firstly, there was no general tort of malicious prosecution of civil cases. On policy grounds, the tort was confined to the three well-established heads of damage recognised in the Quartz Hill Consolidated Gold Mining Co v Eyre (1882-83) LR 11 QBD 674 CA and Gregory v Portsmouth City Council (2000) 1 AC 419 HL, Quartz Hill and Gregory considered. Secondly, the essential ingredients of a claim for malicious prosecution were the absence of reasonable and probable cause, and the conclusion of the action in favour of the person maliciously prosecuted. Thirdly, the decision in Grainger v Hill 132 ER 769 QB, which was authority for a tort of abuse of process, had never been overruled. Both Grainger and Gilding v Eyre 142 ER 584 CCP concerned a blatant misuse of a particular process within existing proceedings and in both cases the abuse involved compulsion by arrest and imprisonment to achieve a collateral advantage, Grainger and Gilding distinguished. Fourthly, in cases of abuse of process it was irrelevant whether or not there was reasonable or probable cause, or in whose favour the proceedings ended. Fifthly, statements in the authorities describing a broader application of the test of abuse of process than the critical factual elements of Grainger and Gilding were all obiter. Majory (A Debtor), Re (1955) Ch 600 CA, cited in support of a wider formulation, was not a claim in tort and was one of the Quartz Hill special circumstances, Majory considered. Finally, as to the broader statements of principle, there was no clearly accepted approach for identifying what was sufficiently collateral to establish the tort of abuse of process. Even if the tort of abuse of process could be committed outside circumstances of compulsion by arrest, imprisonment, or other forms of duress, there was no reasonably arguable basis for extending it beyond the other particular heads of damage that had to exist for invocation of the tort of malicious prosecution. Any different conclusion 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 made no sense to limit the cause of action for malicious prosecution to three particular heads of damage, but to extend to all cases of economic loss a tort of abuse of process which could apply even where the alleged abuser had a good cause of action. All those factors applied with particular force to judicial review proceedings, and the court had not been referred to any authority in which the tort of abuse of process had properly been said to apply to such proceedings for which the court had given permission, let alone when the damage relied on was general economic loss outside the limited categories of damage for which the tort of malicious prosecution could be invoked.

Appeal dismissed