Henderson v Henderson Only Applies to Determinations Say Court of Appeal

11 January 2024

Judgment was handed down by the Court of Appeal on 06.11.23 in Orji v Nagra [2023] EWCA Civ 1289 on the application of the rule in Henderson v Henderson and res judicata to repeat proceedings arising out the same incident where the initial proceedings were extant.

The Court of Appeal held that as there had no been ‘determination’ in the extant proceedings and although there was an interim hearing in which the claimant had indicated to the district judge that the amendment at that time was his final set, this was not sufficient to amount to a determination.

This was an important case that has built on the jurisprudence arising from this 19th century principle. The appellant relied on Johnson v Gore Wood & Co (A Firm) [2008] 1 WLR 823, CA and that for the principles of Henderson to apply, there must be finality in the proceedings. The Court of Appeal accepted this principle, however, also agreed with the respondent (represented by Marcus Croskell) that matters did not end there as recent jurisprudence had developed the concept to include interim decisions in cases and therefore extant proceedings including Seele Austria GmbH Co KG v Tokio Marine Europe Insurance Ltd [2009] EWHC 255 (TCC) (a previous judgment by Coulson J – as he was then – who gave the lead judgment in this case), Tannu v Moosajee [2003] EWCA Civ 815, Koza v Koza [2021] 1 WLR 170 and the recent judgment of Nugee LJ (also hearing this appeal) in Wilson v Mcnamara [2022] EWHC 243 (Ch).

For civil practitioners, the take away point is that interim hearings do potentially have the capability of being final determinations – much will turn on the facts of the case and the actual order made. The final position here arose from an ambiguity after the official court recording failed and the respondent solicitor’s note was disputed such that the Court of Appeal was unable to determine whether the claimant made absolute promises to the court amounting to an abuse of process. The result was that there was insufficient evidence of a final determination to strike out the malicious prosecution claim in tort overturning the decisions of the first instance decision at Winchester County Court by Deputy District Judge Payne and on appeal before HHJ Berkley. Marcus Croskell acted for the respondent.

If you would like to instruct Marcus Croskell or another member of the civil and commercial team, please contact the clerks HERE or telephone 01473 214481.

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