A second bite of the cherry - Jackson and abuse of process

As lawyers digest the Court of Appeal decision in Mitchell v Newsgroup Newspapers Ltd about relief from sanctions under the new CPR 3.9, there is one big question left unanswered - can a claimant, whose claim is dismissed for a failure to comply with the rules or a direction, begin another action with impunity, as long as he is within the limitation period? Or does the need for fair and efficient sharing of the courts’ increasingly limited resources lead to the logical conclusion that second actions should be prohibited as an abuse of process?

Abuse of process

As long ago as 2001 the Court of Appeal acknowledged the change of culture brought about by the introduction of the overriding objective. In Securum Finance Ltd v Ashton Chadwick LJ said that it was:

“no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the limitation period will not be struck out save in exceptional cases”.

The effect of the overriding objective was to require the court to consider “whether the claimant’s wish to have ‘a second bite at the cherry’ outweighs the need to allot its own limited resources to other cases”.

A new definition of justice

In the 18th Jackson Implementation Lecture, Lord Neuberger MR said:

“The tougher more robust approach to rule compliance and relief from sanctions is intended to ensure that justice can be done in the majority of cases. This requires an acknowledgement that the achievement of justice means something different now”.

Master Macleod echoed this in Mitchell when she said “judicial time is thinly spread and the emphasis must be … upon allocating a fair share of time to all as far as possible and requiring strict compliance with Rules and orders even if that means justice can be done in the majority of cases but not all”. Her approach has now been endorsed by the Court of Appeal and the appeal against her robust decision dismissed.

When might striking out be appropriate?

It is hard to see the courts taking the extreme line that a claimant who fails to serve his particulars of claim on time would be faced with a strike out of a second action as an abuse of process. He has not wasted the court’s time since the action never got going; on the contrary, the court system and therefore other litigants get the benefit of a second issue fee.

In Aktas v Adepta (2010), the claimant had issued a claim form at the very end of the limitation period and then failed to serve it in time. She began a second action and applied for the limitation period for personal injury claims to be disapplied under s33 of the Limitation Act 1980. The judge struck out the second action as an abuse of process.

The Court of Appeal allowed the appeal and set aside the order striking out the second action. They acknowledged the proper concern for efficient use of the court’s limited resources but warned that using abuse of process in this context would lead to “a disciplinarian view of the law of civil procedure which risks overlooking the overriding need to do justice”.

Disproportionate use of the court’s resources

What though if the claimant has got as far as the case management conference (CMC) and then breaches orders for disclosure, with the result that his claim is struck out for breach of an unless order? In such a scenario, the claimant has used up a good part of his fair share of the court’s resources and disobeyed orders. Should he be allowed to start again?

In Wahab v Khan (2011) the court considered the question of whether there had been a disproportionate use of the court’s resources in the first action. In that case there had been three short interim hearings concerning injunctive relief which were unlikely to be repeated in a second action.

The judge noted that there had been no CMC, and no other case management that was likely to be duplicated in the second claim because the first claim was allowed to go to sleep immediately after interim relief had been obtained. He refused to strike out the second action as an abuse of process but the claimant had to pay the costs of the earlier action before proceeding.

Right to claim against solicitors

The fact that the claimant can bring a negligence claim against his solicitor is a factor the courts consider regularly in applications for relief following breach of an unless order. In Michael v Middleton (2013) the judge acknowledged that, if he refused to give relief from sanctions, the claimants would be disadvantaged if left to bring a loss of chance claim against their solicitors because it would not amount to the full value of the claim potentially recoverable from the defendants.

However, the judge refused to give the claimant relief from sanctions. He upheld the order striking out the claim for a failure to comply with an unless order to serve witness statements, largely on the basis that the claimants could begin again, since it appeared that there was unlikely to be a problem with a limitation defence or any argument about abuse of process. He concluded that this substantially cut the force of any argument that the claimants would be disadvantaged if they were unable to obtain relief from sanctions.

Comment

If Michael v Middleton is anything to go by, the courts are not as yet thinking that Securum abuse of process should be refashioned and developed to meet the needs of the Jackson era. It is only a matter of time though before the logic of extending abuse of process to reflect the new definition of what it means to achieve justice dawns on both litigants and the judiciary.

Allowing a claimant to begin a second action after having had decent portion of the court’s resources in the first action makes no sense in the cash-strapped court system of 2013. Second bites of the cherry will be harder to come by in future.