Abuse of process : failing to revive a struck out claim


R Limited v Ageas Insurance Limited [2019]


The above case, in which the author represented the Defendant insurer, serves as a timely reminder of the need to conduct litigation efficiently and the consequences of not doing so.




The claim related to a road traffic collision which occurred on 8 August 2015. The collision was caused by the Defendant’s insured and liability was admitted before proceedings were issued. The claim proceeded in relation to quantum only and specifically the Claimant claimed the pre-accident value of their vehicle (£12,578.78), the applicable policy excess (£250.00) and miscellaneous expenses (£60.00).


The Claimant issued proceedings on 1 November 2017, and, after obtaining an extension of time, we filed a Defence, limited to quantum, on 21 December 2018. The Court sent out a Notice of Proposed Allocation to the Fast Track on the same date. The Notice required the parties to file the completed Directions Questionnaires and Proposed Directions by 22 January 2018. We filed the Defendant’s Directions Questionnaire and Proposed Directions at Court on 18 January 2018 and requested a stay in order to negotiate settlement of the claim. These documents were sent to the Claimant’s solicitors on the same date. The Court made an ‘Unless’ Order on 25 January 2018 due to the Claimant’s failure to file a Directions Questionnaire. The Order required the same to be filed at Court and served on the Defendant within 7 days of service of the Order (ie – on or before 5 February 2018), failing which the claim would be struck out. In the absence of receiving a Directions Questionnaire, the Court confirmed, in correspondence dated 14 February 2018, that the claim was struck out on 12 February 2018. We closed our file of papers.


Unexpectedly, on 19 October 2018, we received a General Form of Judgment or Order, dated 4 October 2018, which referred to the claim being transferred to Oxford County Court to list an Application. We had not been served with any such Application. We wrote to the Court and the Claimant’s solicitors and it transpired that the Claimant had made an Application on 21 September 2018 for relief from sanctions and for the claim to be reinstated.


Claimant’s Application for Relief


The Claimant’s Application was heard on 3 December 2018. We opposed the Application on the basis that it did not meet the three stage approach as set out in the Court of Appeal Judgment in Denton v TH White Ltd [2014] EWCA Civ 906 for assessing Applications for relief from sanctions made under CPR Part 3.9(1).


Firstly, CPR Part 3.9(1)(b) requires a Court, when considering an Application for relief from sanctions, to consider the need to enforce compliance with Rules, Practice Directions and Orders. We argued that the Claimant had failed to comply with two Court Orders, specifically the Notice of Proposed Allocation and, thereafter, the ‘Unless’ Order which specified the significance of the failure to comply (ie – the claim would automatically be struck out without further order of the Court). We argued that the breach was serious and significant. The Claimant’s solicitors did not dispute receiving the Orders. According to the Witness Statement filed in support of the Application, the default occurred due to inadequate/poor internal procedures at the Claimant’s solicitors.

Both Orders were said to have been filed away by administrative personnel and not passed to the appropriate fee earner to deal with. We argued that this was not a good reason for why the default occurred. Finally, in consideration of all the circumstances of the case, we noted that the Application was made on 21 September 2018. This was over 7 months after the claim had been struck out. That indicated that the fee earner could not have reviewed the file for at least 7 months. We argued that a failure to review or progress a file for such a period of time is not an efficient way of conducting litigation. There was also no explanation provided by the Claimant’s solicitors for the failure to make the Application sooner.


Counsel for the Claimant submitted that while the breach was serious and there did not seem to be a good reason for the breach, it would be unjust not to grant relief in the circumstances. She sought to underplay the administrative errors made on the part of the Claimant’s solicitors as unfortunate, but not the fault of the Claimant. The Claimant’s Counsel argued that it was in the interests of justice to grant relief. Further, it was submitted that there would be no prejudice to the Defendant if the claim was reinstated because the insurers had admitted liability and should relief not be granted, the Defendant would receive a windfall.


District Judge Buckley-Clarke found that the breaches were serious and significant and there was no good reason for them. She noted that they were part of a broader context of default and that the filing of the Directions Questionnaire was a standard part of proceedings for which the Claimant’s solicitors ought to have been prepared. She noted that the Claimant had also failed to provide a letter of claim and documentation to support the losses claimed. The Judge was particularly influenced by the long delay before making the Application and the failure of the Claimant’s solicitors to explain the delay.


The Judge stated that she had considered all three limbs of the Denton test and, in respect of the third of those, namely "all the circumstances of the case", justice pointed away from granting relief. The Judge acknowledged that the errors were not those of the Claimant, but suggested that the Claimant would have redress against their solicitors. The Judge would not grant relief and dismissed the Claimant’s Application, ordering the Claimant to pay the Defendant’s costs of the Application which were summarily assessed in the sum of £1,200.00.


A Second Bite of the Cherry


We had not received payment for the Defendant’s costs when we became aware that the Claimant had issued a second set of proceedings on 6 January 2019 to recover damages for £12,331.29 (a different sum than in the first action) arising from the same road traffic accident. On 5 February 2019, we made an Application to the Court to strike out the proceedings pursuant to CPR Part 3.4(2)(b) on the basis that the Claimant was effectively seeking a second bite of the cherry and the new proceedings were an abuse of the Court’s process.


The Application was heard before District Judge Devlin in the Oxford County Court on 25 March 2019. There were lengthy submissions by both Counsel on the authorities regarding the proper approach to identifying an abuse of process. We provided a chronology of events, from the inception of the first action onwards (noting the particular deficiencies of the Claimant’s second set of pleadings) and with close reference to the Court of Appeal’s decision in Collins v CPS Fuels [2001] EWCA Civ 1597 and the more recent High Court authority of Davies v Carillion Energy Services Ltd & Anor [2017] EWHC 3206 (QB) which reminded the Judge that the circumstances leading to the strike out of the first action was relevant to the Court’s balance of factors. We submitted that the law in this area is far from settled, that the first action was not in itself an abuse of process and that the mere act of bringing a second set of proceedings does not per se constitute an abuse of process but, in the context of the conduct of the Claimant’s solicitors throughout, the bringing of this second set of proceedings did constitute an abuse. We provided the Court with a copy of the Witness Statement in support of the Claimant’s Application for relief from sanctions and submitted the reasons why that decision had been made, in particular the focus on features for which there was neither excuse nor explanation. We invited the Judge to note the Claimant’s failure to address the substantive issues at that stage and, while accepting that there was no agreed note or transcript of the Judgment, it was clear that the Application had failed. We, therefore, submitted that the question as to whether the claim should be permitted to proceed had already been determined by the Court. We referred to the need to take into account the apportionment of the Court’s limited resources (noting the time already taken up in this matter) and that the usual arguments around prejudice to the Claimant did not stand up, particularly in contrast to the circumstances in Collins where the potential prejudice to an innocent child who was injured in an accident was significantly greater, but in which the claim was still struck out for an abuse of process. We submitted that there needed to be a special reason for the claim to be pursued and that, in the circumstances of the case, no such special reason was present, nor had there been any Witness Statement filed or served on the Claimant’s behalf.


The Claimant submitted that that there did not need to be a special reason because the first action was not an abuse of process. They sought to persuade the Judge that although the conduct of the Claimant’s solicitors had not been ideal, it had been neither contumelious nor sufficient in any other way to constitute an abuse of process. It was submitted that the kinds of examples cited in the White Book are of a much greater magnitude and that it would be unjust to grant the Defendant’s Application. The Claimant argued that there could not be said to have been inexcusable conduct or inexcusable delay and, as such, the criteria for abuse of process could not be met. It was submitted that the efficient use of Court resources did not trump the need to do justice (per Davies – see below). We responded by asking the Judge in what context the Claimant’s solicitors’ conduct could be said to have been excusable, giving the term its ordinary meaning in the absence of any definition in either the CPR or the case law. The Judge looked up the word in his dictionary noting that it was defined as something so bad as to be unjustifiable or intolerable.


Abuse of Process?


The Judge confirmed that, in his view, there had been inexcusable delay. He had noted the deficiencies in the Claimant’s Witness Statement in support of the Claimant’s initial Application for relief from sanctions and further observed the lack of any Witness Statement in response to the Defendant’s Application. The Judge commented that the Claimant did not seem to have been bothered to respond on this occasion to the Defendant’s Application.


Having found that there had been inexcusable delay in relation to the first action, noting the Claimant’s breaches, including a failure to send a letter of claim, the failure to file the Directions Questionnaire, the failure to comply with the ‘Unless’ Order, a 7 month delay before applying for relief from sanctions, the failure to address the reasons for the breaches, together with the failure to apply to appeal the decision of Judge Buckley-Clarke (a feature noted as significant in Collins), District Judge Devlin found that there did need to be a special reason for the claim to proceed. The Judge found that no such reason existed nor had any been put forward by the Claimant. For those reasons, he was satisfied to grant the Defendant’s Application and the second action was struck out as an abuse of process. The Claimant was also ordered to pay the Defendant’s costs of the Application in the sum of £3,158.40.



The Civil Procedure Rules do not expressly prohibit a second action where a first action, based on the same set of facts, had not been successful. Moreover, in the post Jackson and post Mitchell era, the High Court found in Davies that a second claim brought by a litigant in person, after his first action had been struck out, was not an abuse of process with Morris J commenting "...even post Jackson, ultimately, the importance of the efficient use of resources does not, in my judgment, trump the overriding need to do justice. I am satisfied that the Claimant’s conduct in the first action was neither an abuse of process nor inexcusable and, thus, that the second action should not be struck out as an abuse of process."


The Judge in the instant case was able to distinguish from Davies and found that the conduct of the Claimant was inexcusable. The situation might have been different had the Claimant been a litigant in person or his solicitors had acted with more alacrity once the claim had been struck out in February 2018. However, there is no certainty in litigation and this case demonstrates that a failure to file a Court form on time, then failing to rectify the position promptly, could have devastating consequences in a claim where a recovery of damages seems almost certain.