Importance of Including all Claims When Litigating Property Disputes

14 October 2014

Considerations of the importance of including all heads of loss when litigating property disputes following judgment in recent case McAuley v. McElhone [2014] NIQB 94, Weatherup

In this matter, Colm McAuley purchased farm lands in 2007. Subsequently, a dispute arose regarding a right of way over lands between Mr McAuley and Aidan Grimley. County Court proceedings were issued by Grimley against McAuley in 2009, with Grimley claiming an injunction and damages against McAuley. McAuley counterclaimed in respect of trespass.

HH Judge Finnegan QC found in favour of McAuley in respect of the disputed stretch of the right of way but dismissed all other aspects of the claim and counterclaim.

In 2014, McAuley issued High Court proceedings for £500,000 against Grimley and others in respect of allegations that the Defendants, up to 2008, had used various means to thwart his planned sale of the lands, ostensibly to blight the sale so that they might acquire it below market value. The Defendants applied to have the Plaintiff’s claim struck out, contending that it should have been properly included in the earlier County Court counterclaim. The Plaintiff on the other hand contended that the issue of blight was not raised in the earlier proceedings and that the claim in respect of blight required the joining of additional parties and removal to the High Court.

HH Judge Weatherup did not consider that these matters were so complex or difficult as to prevent the blight being included in the earlier proceedings. He agreed with the Defendants’ application that all issues should have been raised in the earlier proceedings and struck out the Plaintiff’s claim. HH Judge Weatherup confirmed that the res judicata principle applied and that a matter may not, generally, be re-litigated once it has been judged on the merits and that every issue should be raised in the same set of proceedings; omitting a claim from earlier proceedings did not give the parties the right to issue further proceedings at a later date.

The above case demonstrates that it is vital when taking both claims and counterclaims that all possible heads of loss are included, even if this requires removal to a different Court. If not, the issues will be barred from inclusion in later proceedings.

David Wilson is a Partner in the Telecommunications & Renewable Energy Department at Worthingtons Solicitors and advises commercial and institutional clients and private investors on all aspects of commercial property.

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