Defamation Claim Issued Against Chief Constable Of Avon & Somerset Constabulary 

Warburton v Chief Constable of Avon and Somerset Constabulary 

Case background

Mr Warburton (Appellant) issued a defamation claim against the Chief Constable of Avon and Somerset Constabulary (Respondent). The Appellant claimed that the Respondent’s disclosure of his employment records had caused another police force to withdraw an offer to him for a constable position (Defamation Proceedings).

Within his original Particulars of Claim, the Appellant made it clear that “this is a defamation claim”, although he did make reference to the Respondent’s actions being in breach of the Data Protection Act 1998 (DPA 1998). He clarified in his reply to defence that he was not pursuing a claim under the DPA 1998 within the Defamation Proceedings.

Following this, the Appellant filed and served draft Amended Particulars of Claim including a defamation claim and a claim under the DPA 1998. Before the application to amend had been heard by the Court, the Appellant accepted a Part 36 Offer to settle the “whole claim”. This resulted in the settlement of the Defamation Proceedings.

The Appellant issued a second set of proceedings in August 2020, advancing broadly the same data protection claims as set out within his draft Amended Particulars of Claim. The Respondent argued that this was in contravention of the principle of res judicata and the Henderson principle and applied for strike out and/or summary judgment as a result. The Respondent was successful in their application and the part of the new proceedings relating to any matters after 11 July 2019 (the day the Part 36 Offer was accepted) was struck out. The Appellant appealed this decision.

When deciding whether to allow the appeal, the Court of Appeal considered the principles in the case of Henderson v Henderson (1843) 3 Hare 100. In Henderson, Wigram V-C stated:

The Appellant argued that his case fell into a gap between the concepts of res judicata and Henderson abuse. He contended that as he had simply flagged the cause of action to the Respondent and had not formally pleaded a claim under DPA 1998, the Henderson principle would not apply (First Ground).

Lord Justice Phillips disagreed with the Appellant’s argument that the claim fell outside of the Henderson principle. Lord Justice Phillips referred to Lord Bingham’s emphasis in Johnson v Gore Wood [2002] 2 AC 1 (a case that had been relied upon by the Appellant) that the Henderson principle was based on “the underlying public interest in the finality of litigation and that a party should not be twice vexed in the same matter”. Lord Justice Phillips dismissed the First Ground of Appeal on this basis.

The Appellant also argued that the effect of the acceptance of the Part 36 Offer was to settle the pleaded claims in the Defamation Proceedings and only those claims (Second Ground). It was therefore inappropriate for the Judge in the first instance to consider the manner in which the Defamation Proceedings were settled.

Lord Justice Phillips also dismissed the Second Ground confirming, “the judge was fully entitled and indeed, obliged, to consider the manner in which the Defamation Proceedings settled”. Because the Appellant knew that the amount of the Part 36 Offer was based on the compensation for all matters but then sought to take advantage of this by applying a technical argument, it was considered an abuse of process.

Comment

This is a helpful reminder that Part 36 offers may be interpreted to extend beyond settlement of a party’s pleaded claim. If a dispute does arise, the Court can look at the correspondence between the parties leading up to the settlement.