A qualified barrister who sued a police force over matters that had already been resolved has failed with an appeal. 

Damian Warburton, called to the bar in 2010, was a probationary constable in 1998 when he was investigated for allegedly performing a striptease in a student bar and engaging in racial abuse - allegations he continues to vigorously deny. He left the police to join the army before any action was taken.

In 2004, he applied to become a special constable at Avon & Somerset police force. Vetting checks revealed the allegations made in 1998. His application was eventually refused, by which time he had left the force to become a legal academic.

In 2017, Warburton applied to be a constable with Hertfordshire Constabulary. He passed vetting and was due to start when Avon & Somerset disclosed files which included the 1998 allegations. Hertfordshire Constabulary withdrew its offer.

Warburton sued Avon & Somerset police for defamation and alleged data breaches. He eventually accepted a settlement of £20,000 in July 2019 under a Part 36 offer.

Warburton sued the force again in respect of personal data held or formerly held by Avon & Somerset. The claim was struck out and a reserved judgment described it as an ‘abuse of the process of the court’ as claims should have been brought, if at all, in earlier defamation proceedings and proceedings had been settled.

Most of Warburton’s claim was dismissed but he appealed. Avon & Somerset applied for strike-out and summary judgment.

In Damian Warburton v The Chief Constable of Avon and Somerset Constabulary, Lord Justice Phillips said Warburton’s particulars of claim ‘advance essentially the same data protection claims…and seek exactly the same relief in respect of them’. 

The judge, when analysing the scope of the Henderson abuse principle in Henderson v Henderson (1843), said: ‘Mr Warburton’s argument is an attempt to escape the wide scope of a well-understood principle by latching on to certain words in the leading judgments and ascribing to them a meaning they will not bear textually and an effect which would run counter to the very principles and policies explained in those judgments. It is an approach to legal analysis which, in my judgment, should be seriously discouraged.’

Dismissing the appeal, Lord Justice Phillips said Warburton’s claims were ‘an abuse of the process of the court’.

He added: ‘[Warburton] admits and avers that he was taking advantage of a litigation mistake. Such conduct fully justified the judge in finding that bringing the pre-July 2019 DPA claim in these proceedings was not only within the scope of the Henderson abuse principle, but was an abuse of the process of the court.’

Lord Justice Males agreed, describing the claim as ‘plainly an abuse of process’.

He added: ‘Mr Hirst submitted, as he did before the judge, that some leeway should be afforded to Mr Warburton because he conducted at least some of the defamation proceedings as a litigant in person. Whatever traction such an argument might have in another case, as to which I say nothing, it has none here.

‘As the judge pointed out, Mr Warburton is a trained lawyer (he was called to the bar in 2010) and legal academic. Far from being ignorant of the law, Mr Warburton was seeking to take advantage of his superior knowledge of a technical point under Part 36 to obtain a benefit which he knew that Avon & Somerset did not intend.’