Gagging orders - abuse of process?

Interesting discourse earlier today during the Court of Appeal battle between developer Land Securities and law firm Fladgate over the firms legal opposition to the redevelopment of Park House on Oxfrod Street.

After Fladgate filed a Judicial Review application against the plans last year, LandSec issued a £17m damages claim against Fladgate alleging the rarely used tort of "abuse of process".

LandSec argued that the "dominant purpose" behind the JR was to use it to "extract money" from LandSec, which was an objective not within the scope of the JR proceedings and was therefore an abuse of process.

As Mummery, Moore-Bick and Etherton LJJ got their legal teeth into the issues they came across many common legal situations in which there are "mixed motives" for bringing litigation which may, on LandSec's analysis, be susceptible to a claim for abuse of process.

Some of the situations discussed were intellectual property disputes where competitors seek to cause maximum damage to each other, boundary disputes where one neighbour simply doesn't like the other neighbour and wants them to move, and business disputes driven by personal enmity and a desire for revenge.

Mummery LJ then raised the interesting point about so-called gagging orders obtained to stop someone from reporting something which is true.

He brought up the case of Robert Maxwell who regularly sued people to stop them speaking the truth about him. A very rich man stopping the truth from coming out by the threat of legal proceedings.

Mummery LJ said that such a case could therefore be an abuse of process as "the purpose of defamation proceedings is not to stop people telling the truth."

Judgment on the point is likely to be reserved but if the issue goes LandSec's way there could be some interesting damages claims against parties who have brought proceedings in order to prevent the truth from being told - fingers crossed.

Photo by Raul Valderrama via Flickr.