Bobby Talalay appeared in the Court of Appeal in a case concerning Part 36 and the principles of res judicata

2 March 2023

Bobby Talalay was instructed by the Respondent Chief Constable in Warburton v Chief Constable of Avon and Somerset Constabulary [2023] EWCA Civ 209, an appeal concerning the ambit of res judicata and specifically of the principle Henderson v Henderson (1843) 3 Hare 100. The judgment can be found here.

The case concerned the scenario where (a) there were prospective amendments being discussed prior to a claim being settled, (b) it was settled by way of Part 36 before the amendments were granted permission, and (c) a fresh claim was brought covering the same ground as those amendments. Mr Warburton sued the Chief Constable in defamation in respect of disclosures made to the vetting department of another force in 2017. Those proceedings were eventually compromised by the parties in 2019 by way of Part 36 for £20,000. In the background at the time of settlement were draft amended particulars of claim containing claims under the Data Protection Act 1998 (DPA) covering the same disclosures, but the claim was settled before the claim was formally amended. The Circuit Judge later found as a matter of fact that parties settled on the common basis that the damages covered primarily breaches of the DPA. Just over a year later, Mr Warburton brought a fresh claim that, among other things, sought £20,000 for breaches of the DPA in respect of the exact same disclosures.

The Chief Constable applied to strike out this fresh claim as being res judicata and/or an abuse of process. After initially failing at first instance, the claim was struck out by HHJ Bloom. Mr Warburton appealed to the Court of Appeal.

The first argument advanced by Mr Warburton on appeal was that a claim that had been ‘raised but not brought’ (i.e. that had been brought to the other side’s attention but not formally pleaded) fell between the principles of estoppel and Henderson and was thus not an abuse. The Court rejected that submission as sophistry, found that the principles of res judicata provided overlapping protection against abusive claims, and strongly discouraged this kind of legal analysis.

The second argument was that where a claim was settled by way of Part 36 the Court should not look at the pre-settlement correspondence to determine the intention of the parties. The Court again rejected that as contrary to authority and principle and upheld the reasoning of HHJ Bloom.

Bobby has extensive experience of acting on behalf of police forces and other organisations in complex civil data protection and privacy litigation, as well as other areas such as claims for false imprisonment, assault, stress at work, malicious prosecution, human rights, and other civil actions.


Authors

Robert Talalay

Call 2010

Related areas

Data Protection
Police Law

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