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Claim struck out - claimant trying to re-issue (abuse of process)- then read on


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PI claim re-issued after first set of proceedings had been struck out for failure to serve in time is itself struck out as an abuse of process: Dixie v British Polythene 8.7.09 HHJ Mitchell, Central London County Court.

 

13/07/2009

 

Personal Injury

Steven Snowden appeared for the Defendant before His Honour Judge Mitchell (Designated Civil Judge for London) who in a reserved judgment held that it is an abuse of process to begin a second set of proceedings when an earlier action on the same facts and causes of action had been struck out for failure properly to serve the Claim Form. That was so even when the second action was issued after the expiry of the limitation period and the Claimant was seeking to obtain an extension under s.33 of the Limitation Act and to rely on the decisions of Horton v Sadler, Richardson v Watson and Leeson v Marsden.

In the case of Dixie v British Polythene, the facts were as follows. The Claimant suffered an accident at work on 27.2.05. He instructed solicitors in August 2005 and liability was admitted by the Defendant's insurers in October 2005. The Claim Form was issued only five days within the primary limitation period and no attempt at service was made until more than two weeks after the last day of the four-month period for service. Despite opposition from the Claimant, the Defendant's application to strike out those proceedings was successful. CPR 7.5 provided a period of four months which was to be strictly enforced. The Claimant was not able to bring the action within any exception.

Two weeks later, the Claimant issued further proceedings claiming exactly the same damages, based on exactly the same facts and causes of action. Those Particulars of Claim expressly recognised that the first set of proceedings had been struck out, that this set was out of time and that an extension of time under s.33 of the Limitation Act would be necessary. The Defendant applied to strike this set of proceedings out as an abuse of process.

 

In a reserved judgment the Judge accepted that:

  • 1. Whether conduct amounted to an abuse of process was not a matter of discretion - it either was or was not.
  • 2. The Court of Appeal had in a long line of decisions commencing with Vinos v Marks & Spencer and running through Anderton v Clwyd and Hashtroodi v Hancock emphasised that the time limit for service of the Claim Form was important and was to be strictly observed; that in general three years to issue and four months to serve was plenty of time; and that it was only in the most exceptional cases that service would be dispensed with or any retrospective extension of time given. Practitioners ought to have been well aware of the need to serve in time, and of the high price to be paid if they did not.
  • 3. It could not have been the implied intention of the House of Lords in Horton that those decisions were all to become redundant.
  • 4. It was settled law that where a first action had been stuck out for breach of a peremptory order or as an abuse of process, issuing a second action on the same facts would be an abuse of process.
  • 5. Cases where the first action was struck out for failure to serve properly were analogous to cases of breach of a peremptory order.
  • 6. The Limitation Act (and the cases of Horton and Richardson dealing with s.33) sought to regulate the position as between the parties - considering what was equitable between them. Questions of abuse of process were more fundamental, and dealt with how a party behaved towards the Court.
  • 7. The cases of Horton and Richardson therefore did not answer the question of whether the second action in this case was an abuse of process.
  • 8. That view was consistent with the case of Collins v CPS Fuels Ltd, in which the first action was struck out for failure to comply with an unless order and the second action, even though still time within the Limitation Act, was struck out.
  • 9. Leeson v Marsden was distinguishable and/or wrongly decided on the basis of a concession that the Court in that case should treat the question of abuse of process and the s.33 decision as both involving the same exercise of discretion. Further, the Court in that case had not been referred to the numerous Court of Appeal cases on failure to serve properly.
  • 10. In all the circumstances, the issue of the second action in this case was an abuse of process.

Recognising the importance of his decision and the likelihood that the point would occur in other cases, the Judge gave the Claimant permission to appeal and ordered that the appeal be "leapfrogged" to the Court of Appeal.

Steven Snowden appeared for the successful Defendant, instructed by Kennedys, Birmingham.

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Collins v CPS Fuels Ltd - [2001] All ER (D) 124 (Oct)

 

Source:All England ReporterPublisher Citation:[2001] All ER (D) 124 (Oct)Court:Court of Appeal, Civil DivisionPanel:Judge, Jonathan Parker LJJ and Bodey JJudgement Dates:9 October 2001Catchwords

Practice – Strike out – Previous action between parties struck out following claimant's failure to follow directions – Claimant bringing second action seeking to re-litigate same issues – Judge striking out second action as an abuse of process – Whether judge in error – Role of judicial discretion within civil justice system.Representation

Guy Mansfield QC and Kevin Grice (instructed by Weightmans, Liverpool) for the claimant.Mark Turner QC and Ian Wood (instructed by James Chapman & Co, Manchester) for the defendant. The Case

 

Where a judge had exercised his discretion and struck out a second action by a claimant as an abuse of process, following the striking out of the claimant's original action for failure to comply with directions, the judge had been acting within his powers, after taking account of the relevant and specific factors of the instant case, and there were no grounds for interfering with that decision.

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  • 2 years later...

Looking at the Dixie v British Polythene case it states :

 

"It was settled law that where a first action had been stuck out for breach of a peremptory order or as an abuse of process, issuing a second action on the same facts would be an abuse of process."

 

Does anybody know which case(s) the settled law comes from?

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Significant cases cited in Dixie:

 

Leeson v Marsden

[2008] EWHC 1011 (QB); [2008] LS Law Medical 393; (2008) 103 B.M.L.R. 49; Official Transcript; QBD

Stuart v Goldberg

[2008] EWCA Civ 2; [2008] 1 W.L.R. 823; [2008] C.P. Rep. 18; (2008) 152(4) S.J.L.B. 28; Times, January 23, 2008; Official Transcript; CA (Civ Div)

Aldi Stores Ltd v WSP Group Plc

[2007] EWCA Civ 1260; [2008] 1 W.L.R. 748; [2008] C.P. Rep. 10; [2008] B.L.R. 1; 115 Con. L.R. 49; [2008] P.N.L.R. 14; (2008) 24 Const. L.J. 334; [2008] C.I.L.L. 2549; (2007) 104(48) L.S.G. 24; [2007] N.P.C. 128; Times, December 4, 2007; Official Transcript; CA (Civ Div)

Richardson v Watson

[2006] EWCA Civ 1662; [2007] C.P. Rep. 13; [2007] R.T.R. 21; [2007] P.I.Q.R. P18; Times, December 13, 2006; Official Transcript; CA (Civ Div)

Horton v Sadler

[2006] UKHL 27; [2007] 1 A.C. 307; [2006] 2 W.L.R. 1346; [2006] 3 All E.R. 1177; [2006] R.T.R. 27; [2006] P.I.Q.R. P30; (2006) 91 B.M.L.R. 60; (2006) 103(26) L.S.G. 27; (2006) 156 N.L.J. 1024; (2006) 150 S.J.L.B. 808; Times, June 19, 2006; Official Transcript; HL

Collier v Williams

[2006] EWCA Civ 20; [2006] 1 W.L.R. 1945; [2007] 1 All E.R. 991; [2006] C.P. Rep. 22; [2006] P.I.Q.R. P18; (2006) 103(7) L.S.G. 23; (2006) 150 S.J.L.B. 128; Times, February 3, 2006; Official Transcript; CA (Civ Div)

Hashtroodi v Hancock

[2004] EWCA Civ 652; [2004] 1 W.L.R. 3206; [2004] 3 All E.R. 530; [2005] C.P. Rep. 17; Times, June 4, 2004; Independent, June 16, 2004; Official Transcript; CA (Civ Div)

Vinos v Marks & Spencer Plc

[2001] 3 All E.R. 784; [2001] C.P. Rep. 12; [2000] C.P.L.R. 570; Independent, July 17, 2000; Official Transcript; CA (Civ Div)

 

I haven't taken the time to actually read the cases, but Dixie is marked as negative judicial consideration having being overturned in Aktas v Adepta [2010] EWCA Civ 1170. I haven't actually read either cases so it may have been overturned on different grounds.

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may i ask

 

WHAT IS THE QUESTION

 

if a claim has been struck out as an abuse of process "estoppel" or "Res judicata" must come into play if the claimant tries to reissue proceedings

 

I was thinking more of where a case is struck out for a breach of a peremptory order

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i very much doubt it

 

Even judicial interpretation will probably end a second claim once the judge became aware of it when a defence has been submitted. It is an inerrant common law right, and judges need to way up Ratio decidendi when comming to a decision.

 

it does not look good for the claimant to reissue a claim that has been struck out in layman's terms

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Thanks.

 

How would you view a new claim after a case was struck out for failure by the claimant to comply with this order:

 

1. the claim be stayed as it makes no serious attempt to comply with CPR16.4(1) by setting out a concise statement of facts. (Stylised particulars do not constitute compliance.) The Claimant must amend or substitute the particulars of claim by setting out the claimants case in plain in english by 4pm 2 weeks from date of order.and in default the claim be struck out without further notice.

 

 

2. the defence be stayed as it makes no serious attempt to comply with CPR16.4(1) (same as above but 4 weeks from date of order)

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please explain

 

has the case been struck out or just stayed, did you get notification from the court that it has been struck out

 

CPR 16.4(1) Is a concise statement of facts

 

as i have stated, to submit a new claim after the original has been struck out is an abuse of process. Estoppel or Res judicata

 

The case law to support this will be Sir James Wigram V.-C. in Henderson v Henderson (1843) 3 Hare 100 at 114

 

Unless the claimant has substantial new evidence which can be proven not to have been available to them at the time (and just failing to obtain paperwork, complete paperwork etc does not meet due diligence), then the claimant should be struck out as an abuse of Court process.

 

I would maintain the court has the power to strike out the second action as an abuse of process under CPR 3.4 (mentioned in CPR 24) where unmeritorious proceedings are begun such as this second action. The basis underlying the abuse is that if for example, the first case was DISMISSED for failure to produce documents in obedience to an order of the court (implying the possibility the decision was not based upon the existence of merit in the claim itself) and the Claimant is now in possession of those documents which it would wish to employ in the second claim, so called 'extended' res judicata principles will apply in the sense that with due diligence, the claimants would not have begun the first proceedings without first having possession of those documents and with due diligence, the first set of proceedings were sufficiently available for the Claimant to litigate the issues.

 

A simple defence stating Res judicata applies and the court number of the previous case should suffice to see the claimant off

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please explain

 

has the case been struck out or just stayed, did you get notification from the court that it has been struck out

 

 

Thanks.

 

It is not my case. I am looking to help a poster on another forum. See here.

 

He also posted on CAG here.

 

I am presuming that the original case was struck out for failure to comply with the Court Order. The OP states "was given a copy of the letter sent to the managing agent stating "no further directions given. The claim is presently struck out for non-compliance with the order"

 

One potential issue that is mentioned on the other forum is that the claimant in regard to the "debt" may have changed since the original claim. This is because there is a new managing agent for the property. I wouldn't have though this mattered, otherwise in general, you could just assign a "debt" to somebody else in order to re-litigate. Am I thinking straight?

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If a case has previously been placed before the court and struck out, RES judicata applies.

 

If a claim has been discontinued after a defence has been submitted, Then permission of the court would be needed to reissue proceedings, highly unlikely CPR 38.7

 

38.7

 

A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –

(a) he discontinued the claim after the defendant filed a defence; and

 

(b) the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

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Thanks.

 

Do you have a view in regard to my comment "One potential issue that is mentioned on the other forum is that the claimant in regard to the "debt" may have changed since the original claim. This is because there is a new managing agent for the property. I wouldn't have though this mattered, otherwise in general, you could just assign a "debt" to somebody else in order to re-litigate. Am I thinking straight?"

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But the Prima Facie of the case would still remain. The facts of the case would still be the same, even if a new owner had acquired the debt

 

Thanks, that was how I was thinking.

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