In William Andrew Tinkler v Esken Limited and others [2024] EWHC 1490 (Ch), the English High Court provided a useful analysis of the law in relation to: (1) when the court will permit a party to withdraw an admission; and (2) the willingness of the English court to strike out claims which constitute an abuse of process, particularly where a litigant repeatedly seeks to reopen decided issues.

Background 

This long running litigation relates to a boardroom dispute brought by Mr Tinkler regarding his removal as a director of, and dismissal as an employee of, a company for alleged misconduct. 

Four previous phases to this litigation are relevant to understanding the issues in the present judgment:

• in February 2019, the company was successful in seeking a declaration from the court that Mr Tinkler’s dismissal as an employee and removal as a director of the company were lawful (the Declaration Judgment);
• on 13 November 2020, Mr Tinkler issued (i) a claim seeking set aside of the Declaration Judgment on grounds of fraud (the Fraud Claim) and (ii) a conspiracy claim against the company and other directors (the Conspiracy Claim);
• on 27 November 2020, the Conspiracy Claim (together with an application by the Defendants to strike it out) was stayed until after the final determination of the Fraud Claim; and
• on 7 June 2022, the High Court dismissed the Fraud Claim in its entirety (the Fraud Judgment). By November 2023, Mr Tinkler’s appeal in the Fraud Claim had been dismissed by the Court of Appeal, and the Supreme Court had refused permission to appeal the decision further. 

Following the exhaustion of the appeals process for the Fraud Claim, the Defendants invited Mr Tinkler to agree that the Conspiracy Claim should now be struck out, but he refused to do so. They therefore revived their application to court for strike out. 

The Defendants’ primary basis for seeking to strike out the Conspiracy Claim was that Mr Tinkler’s repeatedly “stated position throughout the Fraud Claim was that he had accepted that the Conspiracy Claim was parasitic upon the Fraud Claim and that if he was unsuccessful in setting aside the [Declaration Judgment], then the Conspiracy Claim was an abuse of process” (the Admission). The Defendants relied on evidence that Mr Tinkler or his legal representatives had made the Admission clear in correspondence, in evidence, or directly to the court, on ten occasions.

The court therefore had to consider whether Mr Tinkler should be permitted to withdraw the Admission. If the court did grant such permission, it would then have to decide whether the Conspiracy Claim should nevertheless be struck out because, as the Defendants argued, it constituted an abuse of process and/or had no real prospect of success.

The law on admissions 

The Civil Procedure Rules (the CPR) allow a party to make admissions of fact or law in relation to the whole or part of another party’s claim. After proceedings are issued, the court’s permission is required to amend or withdraw an admission (CPR rule 14.2(11)). 

In deciding whether to permit a withdrawal, CPR rule 14.5 provides that the court should consider all the circumstances of the case including: the reason for seeking the withdrawal; whether there has been any new evidence; the conduct of the parties; potential prejudice to any person; the stage the proceedings have reached; the prospects of success for the claim to which the admission relates; and the interests of the administration of justice. 

Applying those considerations, the Claimant was not allowed to withdraw his Admission. In the court’s judgment, there were numerous reasons for reaching this conclusion.

• The Claimant had not advanced any grounds for withdrawing the Admission. There was no evidence as to when the Claimant changed his mind and decided that he wished to pursue the Conspiracy Claim regardless of the outcome in the Fraud Claim.
• In any event there was no new evidence available since the Admission had been made which could therefore be grounds for seeking to withdraw it. 
• The Claimant had not explained why he did not give immediate instructions to his lawyers to the effect that he wished to withdraw the Admission, which he had significantly delayed in doing. 
• The case fell within what is known as the “Aldi guidelines”, from a Court of Appeal ruling¹ stating that if a party wishes to reserve the right to bring further proceedings in relation to closely related issues, it must raise this with the court so that the court can decide how it wishes to proceed. The Court of Appeal said that in complex commercial multi-party litigation, the question must be referred to the court and there can be no excuse for not doing so, this being important in the public interest as well as that of the parties. Thus, in this case the Claimant ought to have invited the court during the Fraud Claim to consider what case management directions it wished to make if he wished to pursue the Conspiracy Claim separately. (Although the judge added that even if the Claimant had complied with this guideline, permission would have been refused.) 
• Allowing the withdrawal of the Admission would cause significant prejudice to the Defendants, who would then be vexed with a claim closely related to three claims it had already dealt with (the claim for the Declaration Judgment, the Fraud Claim, and a claim in malicious falsehood).
• The court was not persuaded that the Conspiracy Claim’s merits outweighed any of these considerations.
• It would not serve the interests of justice to allow the withdrawal and thus devote further judicial resources to the Conspiracy Claim at the expense of other court users.
• The Admission fell within the description from Cavell v Transport for London.²  That case said that it cannot be in the interests of the administration of justice “to permit the withdrawal of an admission made after mature reflection of a claim by highly competent professional advisors when there is not a scintilla of evidence to suggest that the admission was not properly made.” The Admission was so made, and as such permitting its withdrawal would not be in the interests of justice or other court users.

The fact the Claimant could not withdraw his Admission was sufficient to determine the application in favour of the Defendants. However, the court helpfully went on to discuss the substantive arguments that the Conspiracy Claim should be struck out because it was an abuse of process and/or had no real prospect of success. The judge concluded that even if he were wrong to refuse permission to withdraw the Admission, he would still have struck out the Conspiracy Claim for these reasons.

Strike out and abuse of process

The court may strike out a claim if it is an abuse of the court’s process or if it discloses no reasonable grounds for bringing the claim.

The concept of an abuse of the court’s process encompasses a number of different behaviours and rules.

The court’s power to control abuse of process was discussed by the Court of Appeal in Michael Wilson & Partners Ltd v Sinclair [2017] 1 WLR 2646 – the key points are as follows.

1. The power to strike out a claim for abuse of process is founded on two interests: (1) the private interest of a party not to be vexed twice for the same reason; and (2) the public interest of the state in not having issues repeatedly litigated.  These interests (both or either of which may be engaged) reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other.
2. There may be an abuse of process where new proceedings relate to issues that have been decided in prior proceedings, albeit there is no prima facie assumption that such proceedings amount to an abuse and the court’s power is only used where justice and public policy demand it.
3. The court will engage with a close merits-based analysis of the facts of a case when considering whether proceedings are abusive.

In this case, there were two main bases on which the allegations in the Conspiracy Claim might constitute an abuse of process. These were collateral attack, and Henderson v Henderson abuse.

• Collateral attack refers to the situation where a party seeks to re-litigate an issue which the court has decided in earlier proceedings. The court may find that this constitutes a collateral attack on the earlier decision.  Whether such a collateral attack amounts to an abuse of process depends on the connection between the parties to the respective claims and the extent to which the claim involves the unjust harassment or oppression of the new parties. Collateral attack is closely related to res judicata (a matter already determined by the court) but unlike res judicata, can be found where the parties are different and were not privy to the first decision.
• Henderson v Henderson abuse can be found where a party attempts to litigate a claim or issue which it could or should have raised in earlier proceedings.  The purpose of this rule is to prevent a defendant from being sued repeatedly on related matters when the claimant could have brought just one case. If the claimant already had all the information and evidence it needed to bring an issue before the court in its earlier claim, it may be prevented from trying to raise that issue in a later claim on the grounds that this is abusive. The court will consider closely whether the conduct is truly abusive, and this will depend on the particular facts.

If a claim is found to be an abuse of process, the court will decide whether it should exercise its discretion to strike it out. The Court of Appeal has recently stated³ that strike out is a draconian remedy and needs to be used proportionately. As such, it should be the remedy of last resort.

Nevertheless, in this case strike out was found to be the appropriate remedy. The court considered each of the seven alleged new issues that the Claimant wished to bring to trial in the Conspiracy Claim.  The court gave detailed consideration to each one; it found that on all seven, permitting a trial would be an abuse of process. In reality, each issue in the Conspiracy Claim had already been considered and determined during the earlier proceedings. It was not open to the Claimant to attempt to re-frame those points and seek to have them determined differently now. 

Accordingly, the court would have struck out the Conspiracy Claim as an abuse of process and/or because it had no real prospect of success, had it not already struck it out on the basis of the Admission that could not be withdrawn. 

Conclusion 

This judgment is a reminder to claimants and defendants that admissions should be deployed carefully, with precision and with an eye to the wider strategic aims and possibilities of the case. A party is most unlikely to be permitted to withdraw an admission that was properly made with the benefit of professional advice. 

The case is also comforting to parties anxious to avoid interminable litigation. The courts will take a dim view of a party who seeks to re-open matters already decided and is not afraid to find such conduct abusive of the court’s process.

¹ From Aldi Stores Ltd v WSP Group plc [2008] 1 WRL 748  

² [2015] EWHC 2283 (QB)

³ Orji v Nagra [2023] EWCA Civ 1289 at [58]