The abuse of dominance is any abuse by one or more undertakings of a dominant position they hold within the internal market or in a substantial part of it, which may affect trade between member states, and which is prohibited under article 102 of TFEU, as incompatible with the Internal Market.

There is an abuse of process where the prosecutor can be said to have manipulated or misused the rules of procedure or where inordinate delay has prejudiced the defendant to a situation where a fair trial is no longer possible.

Dispute Resolution analysis: The Privy Council has clarified the rules for setting aside a judgment or a settlement agreement on the basis that it had been obtained by fraud. Specifically, the focus of the Privy Council was on the situation where the claimant is seeking to rely on evidence that had not been adduced in the original proceedings. The Privy Council found that the claimant needed to show that the ‘evidence is new in the sense that it has been obtained since the judgment or settlement or…if the evidence is not new in this sense, any matters relied on to explain why the evidence was not deployed in the original action’: otherwise, if the evidence was not ‘new’ then the claim would likely be seen as an abuse of process (para [72]). The Privy Council in particular reflected on the decision of the Supreme Court in Takhar v Gracefield Developments Ltd and the obiter comments of Lord Sumption. Written by James Bradford, Barrister at 39 Essex Chambers.

This Practice Note considers abuse of process in criminal proceedings. It explains the two main limbs of abuse of process and sets out some examples of when an abuse may arise. For detailed guidance on how the below principles apply in the context of private prosecutions, see Practice Note: Abuse of process in private prosecutions. The procedure for making an application to stay proceedings due to abuse of process is governed by Criminal Procedure Rules 2025 (CrimPR 2025), SI 2025/909, r 3.28. For more information, see Practice Note: Abuse of process procedure and Application to stay on the grounds of delay—checklist. Staying a prosecution for abuse of process The principle of abuse of process is founded on the fact that there should be a fair trial according to the law that is fair to both the defendant and the prosecution. The courts have an overriding duty to promote justice and prevent injustice. From this duty arises an inherent power to stay an indictment (or stop a prosecution in the magistrates' court) if the court is of

Dispute Resolution analysis: This decision affirms the established approach on abuse of process in claiming against solicitors following failed litigation claims. It illustrates that a professional negligence claim in respect of failures of preparation of the original action is permissible, but that a claim that the result of the original action was wrong on the evidence before the court is liable to be struck out. The decision also provides helpful guidance on the measure of loss in such claims, affirming that the measure of loss is the difference between the actual result on the original claim and the best result which was reasonably achievable on it. Heather McMahon, a barrister at Hailsham Chambers, considers the decision in Ahmad v Clive Graham Wood and another.

The legal basis for an abuse of process application in the context of private prosecutions The legal principles relating to a stay on the ground of abuse of process apply to private prosecutions in the same way as they do to public prosecutions (see D Ltd v A). The court’s inherent jurisdiction to stay a prosecution for abuse of process is only exercised in exceptional circumstances (see Practice Note: End of criminal proceedings—an introduction to the possible means of disposal—Stay for abuse of process (Crown Court and magistrates’ court)). There are two possible limbs to an abuse of process challenge: • it would be impossible for the defendant to have a fair trial as a result of something which has happened, or • it would not be fair for the defendant to be tried, or it would offend the court's sense of justice to permit the prosecution to proceed The first limb focuses on the trial process; the second on whether the accused should be standing trial at all. Arguments relating to conduct

For an explanation of when abuse of process applications may arise in criminal proceedings, see Practice Note: Abuse of process in criminal proceedings. The application procedure for making an abuse argument is governed by the Criminal Procedure Rules 2025 (CrimPR 2025), SI 2025/909. The burden of proof is on the applicant, on the balance of probabilities, to show that there has been some impropriety in the decision to prosecute or the manner in which the prosecution has been proceeded which means that either a fair trial is no longer possible (the first limb) or it is no longer fair to try the accused (the second limb). Evidence can be called by both the defence and prosecution. The prosecution is under an obligation to disclose relevant unused material. The judge will make a determination on this evidence. A ruling on an abuse of process argument in the magistrates’ court may be challenged in the High Court by way of case stated or by judicial review. Alternatively, the issue may be raised on an appeal to the Crown

This Practice Note provides guidance on when delay in proceedings can become an abuse of process. It highlights the difference between deliberate ‘warehousing’ of claims, where a claimant issues proceedings with no intention of ever concluding them, and delay which falls short of deliberate warehousing but is nevertheless capable of being an abuse of process. It explains that delay on its own is not abusive, but can be if certain additional factors are present. It also sets out the options for the court when it finds delay to be abusive. For general guidance on abuse of process, see Practice Note: Strike out for abuse of process (civil) (CPR 3.4(2)(b)). ‘Warehousing’ of claims as an abuse of process In Grovit v Doctor, the House of Lords made it clear that to participate in litigation with no intention to bring that litigation to a conclusion can constitute an abuse of process. This is generally known as ‘warehousing’ a claim, but note the observations of the court in Morgan Sindall Construction and Infrastructure Ltd v Capita

As explained in Practice Note: Strike out for abuse of process (civil) (CPR 3.4(2)(b)), the nature of abuse of process means that it is highly fact-specific and each case will turn on its particular circumstances. However, the courts have been considering abuse of process arguments for a long time and so certain categories and themes have arisen. Set out in the sections below is a selection of scenarios or categories of behaviour which the courts have held can amount to an abuse of process. The list is not exhaustive and it is not suggested that the presence of these matters in proceedings would automatically amount to an abuse of process sufficient to warrant the striking out of a statement of case. Instead, it is intended to provide an indication of the breadth of matters which are capable of amounting to an abuse—if you are considering making an application to strike out on the basis of an asserted abuse of process it is worth reflecting on some of the established categories set out below to determine

This Practice Note discusses circumstances where bringing proceedings may be an abuse of process because of how they interact with a previous set of proceedings. It considers proceedings which amount to a collateral attack on previous proceedings and what happens where the same proceedings are issued again after being struck out. It also discusses parallel proceedings. For general guidance on abuse of process, see Practice Note: Strike out for abuse of process (civil) (CPR 3.4(2)(b)). Abuse where there is a second set of proceedings Where one set of proceedings exists or has previously existed, attempts to bring additional proceedings involving the same issues and/or parties can raise a number of difficulties. There is a collection of substantive doctrines which militate against bringing back to court matters that have already been (or should have been) determined in prior proceedings, including: • res judicata and Henderson abuse—see Practice Note: Res judicata and Henderson abuse • issue estoppel—see Practice Note: Issue estoppel • cause of action estoppel—see Practice Note: Cause of action estoppel For an introduction

ARCHIVED: this Practice Note is no longer maintained as it covers the implementation of EU free movement law in the UK prior to IP completion day, on which date domestic legislation implementing EU free movement law was revoked, subject to certain savings and modifications. For further details, including of the relevant savings and the position of CJEU case law, see Practice Note: Brexit and the end of EU free movement law in the UK. The Practice Note has been retained in archived form for historical interest, because EU law as previously implemented in the UK remains relevant in certain limited situations. For historical versions of the Immigration (European Economic Area) Regulations 2016, SI 2016/1052, including immediately prior to revocation, see Legislation.gov.uk. For the ongoing development of EU free movement law in EU Member States, see: Immigration, employment & share incentives (EU Law)—overview. In EU law, the principle of abuse serves as a residual anti-evasion doctrine to ensure fulfilment of the purposes of the

EU Law analysis: The Court of Justice has delivered a ruling in Brillen Rottler regarding the boundaries of the right of access under Article 15 of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR). The court clarified that an initial request for access can be deemed ‘excessive’ if the data subject acts with an ‘abusive’ intent, marking a significant shift from a quantitative to a qualitative assessment of whether a request is excessive. While the Court of Justice dogmatically clarified the scope of liability under Article 82(1) of the EU GDPR to include administrative breaches (such as the wrongful refusal of an access request without a direct processing operation) it established a ‘causality brake’ to prevent the EU GDPR from being weaponised for purely pecuniary interests. Compensation is not due where the data subject’s own provocative conduct is the ‘decisive cause’ of the damage. Here the court was specifically referring to the artificial creation of a breach to seek financial gain. This judgment provides some protection against systematic ‘data trolling’ and the degradation of the EU GDPR into a ‘penalty machine’. Written by Susan Lipeyko and Alexander Schmalenberger at Taylor Wessing.