SECOND ACTION AGAINST A DIFFERENT DEFENDANT STRUCK OUT FOR ABUSE OF PROCESS: ALCOCK -v- PARK BUSINESS CENTRES LIMITED
Should a second action, issued because the first was struck out for some reason, be struck out? I am grateful to Charles Bagot of Hardwicke Chambers for sending me a copy of the transcript of a decision by District Judge Baldwin in Alock -v- Park Business Centres Limited (Liverpool CC, 4th September 2014) where a second action was struck out. One important element here is that this was a second action against a different defendant. The judgment is reproduced below.
THE KEY POINTS IN BRIEF
- The claimant was injured in 2008 in a slipping accident. He instructed solicitors only 11 days prior to the expiry of the limitation period.
- Two sets of proceedings were issued against six potential defendants. These proceedings were then consolidated.
- The claimant indicated, in the directions questionnaire, that it intended to add Park as a defendant. Despite prompting from the judge and an order that an application be made to join additional parties by a specified date, he failed to do so.
- Eventually the first action was struck out. The claimant did not appeal.
- Fresh proceedings were then issued against Park. 9 months after the dismissal of the first claim and 6 years after the accident.
- The judge held this was not a case were a conscious decision was made not to include this defendant in earlier proceedings. Rather the claimant indicated an intention to do so.
- A timetable for joining Park into the earlier proceedings had been set by the court which the claimant failed to follow.
- The conduct of the claimant in failing to avail himself of the opportunity to join Park into the original action was inexcusable.
- The claimant’s failure to engage with the order of the court at that time, or any time thereafter, was a breach of the rules more serious than any technical failings.
- The judge was not satisfied that there was any “harassment or oppression” of the defendant in bringing the second claim.
- However the factors identified meant that this was “one of the rare cases where a second set of proceedigns against a different Defendant can and in this case does amount to an abuse of process”.
Case No: A59YJ559
IN THE COUNTY COURT
SITTING AT LIVERPOOL
35 Vernon Street
Hearing Date: Thursday 4th September 2014
DISTRICT JUDGE BALDWIN
|NIGEL DAVID ALCOCK||Claimant|
|– and –|
|PARK BUSINESS CENTRES LIMITED||
MR T. GRACE, Counsel appeared for the Claimant
MR C. BAGOT, Counsel appeared for the Defendant
– – – – – – – – – – – – – – – – – – – – –
1. This is the residue of an application by the Defendant dated the 4th July 2014 , that is to strike out this claim as an abuse of process pursuant to CPR r.3.4(2)(b), Deputy District Judge Travers having already set aside a default judgment herein dated the 23rd June 2014 on the 26th August 2014 .
- I reiterate my thanks to both Counsel for the assistance with which I was provided throughout the day-long hearing.
- I have had the benefit of the Defendant’s hearing bundle, paginated up to  and a further bundle from the Claimant comprising pages [448 – 1321]. I have also had skeleton arguments and/or written submissions from both Counsel and accompanying bundles of authorities. In addition, at my request, I was supplied with a copy of the Claimant’s application to join in a Second Defendant in 1LV22388 dated the 11th June 2013 together with the witness statement of Norman Leslie Jones, in support, of the same date. Further, I was supplied in the course of the hearing with copy letters from Manchester County Court together with the Claimant’s solicitors’ responses covering the period the 17th August 2012 – 20th November 2012.
- The primary witness statements in relation to this application are:-
- Leigh Jarvis (4/7/14 – Defendant) [5 – 79]
- Norman Leslie Jones (“Mr Jones”) (29/8/14 (as amended) – Claimant) [449 – 625]
- I also have an immensely detailed separately bundled unpaginated chronology from the Claimant.
Background and important chronological steps
- The claim arises out of a slipping accident which befell the Claimant on the 20th March 2008 when he attended premises known as the Regus Building at Manchester Business Park (“the premises”) as a lawful visitor [393 – 395]. The value of the claim has been variously put from time to time at as low as £15,000 , but as of the 28th May 2014 stands at in excess of £300,000 and, so I am told, is in reality put at in excess of £2 million.
- The fundamental problem which has bedevilled the entire litigation arising out of the accident to date has been the Claimant’s identification of the correct Defendant (or Defendants), that is the entity (or entities) with likely or sufficiently likely responsibility at law for the safety of the Claimant whilst visiting the relevant part of the premises.
- The Claimant instructed his current solicitors on the 9th March 2011, only 11 days prior to the expiry of the primary three year limitation period. Between the 17th and the 21st March 2011 two initial sets of proceedings were issued out of Liverpool County Court against a total of six Defendants with alleged potential for liability. The first set of proceedings was limited to £100,000 .
- On the 5th May 2011 a letter from Goodman Real Estate to the Claimant’s solicitors  informed them that the landlord of the premises accepted no responsibility as the premises were fully let to the current Defendant (“Park”), including common passageways where the accident was believed to have taken place. It was also suggested that Park’s insurers were Chubb.
- The two sets of proceedings were consolidated by order of DJ Coffey of the 23rd September 2011 . His order also provided for an extension of time for service of the Particulars of Claim until the 23rd January 2012, with specific disclosure to take place in the meantime. This period was further extended by consent to the 5th March 2012 on which date the proceedings were served. By this time, the claim was no longer proceeding against the Second and Third Defendants. Notice of discontinuance was filed against the Fifth Defendant on the 14th June 2012 , leaving three Defendants extant at this stage.
- The Claimant filed his allocation questionnaire dated the 3rd July 2012 [189 – 192] on or about that date. At section I, in response to the question, “Do you intend to make any applications in the immediate future?” the Claimant stated:-
“Yes…To join Park Business Centres Limited as a Defendant”
When then asked to provide further information to help the judge to manage the claim, the Claimant stated:-
“D1 + D4 (Combined Defence par 3) places Park Business Centres Limited as having overall control & management of the property where the Claimant fell – hence the application”.
- Via Bolton, the claim was transferred to Manchester County Court on the 17th July 2012 . On the 17th August 2012 the Court wrote to the Claimant’s Solicitors,
“…the District Judge…made the following comments:
“When does the Claimant intend to make the application contemplated in its allocation questionnaire? “(sic) Please reply in 14 days.” ”
This letter does not appear to have been responded to. However, an application on behalf of the Sixth Defendant for replies to Part 18 requests was listed on the 28th September 2012, in relation to which the Claimant’s solicitors wrote to the Court on the 25th September 2012,
“…we will be seeking from the Court an Order that the application be adjourned generally pending the Claimant’s application for permission to amend the Particulars of Claim.”
The Claimant served a witness statement of Mr Jones dated the 25th September 2012 [701 – 718] indicating the complexities encountered in terms of determining the correct Defendant, that enquiries were continuing, that the advice of Counsel had been sought and exhibiting a provisional Amended Particulars of Claim, effectively to substitute four new Defendants, including Park. Further information was said to be awaited before the document could be perfected. At a hearing, no order was made on the Part 18 application and no directions made as to any timescale for proceeding with any application to amend .
- The Court wrote again on the 22nd October 2012, indicating that a reply to the August letter appeared not to have been received and asking for clarification of the position in relation to the proposed Claimant’s application to amend within 14 days, at which time the file was to be referred back to the District Judge. The Claimant’s solicitors replied by letter dated the 30th October 2012, making reference to the above statement and exhibit and indicating that a conference with Chancery Counsel was set for the next day. It was confirmed that an application would be made to amend, but not utilising the draft amended statement of case before substantial Defendant disclosure had been reviewed, as
“further Defendants are likely to be added”.
- By letter dated the 20th November 2012, the Court responded, again by letter, with the comments of the District Judge,
“Any application for permission to join any other parties and permission to amend must be made by 4pm on the 4th December 2012.”
- This letter was never formalised as an Order of the Court, such that District Judge Khan on the 16th January 2013 made an Order [230 – 231] listing a CMC before him on the 24th April 2013 and including:
“7. Any application to be made by the Claimant as referred to in his Allocation Questionnaire must be filed and served by 24 January and returnable at the CMC.”
- No such application was filed.
- On the 18th February 2013 the First and Fourth Defendants issued an application to strike out the claims against them or in the alternative for summary judgment [232 – 301]. Seemingly on the 13th March 2013 the Sixth Defendant issued a similar application, such that District Judge Khan made a further order on the 4th April 2013 [305 – 306], amended pursuant to the slip rule on the 25th April 2014 [307 – 308], providing for those applications to be heard both together and before any further case management directions were to be given, hence vacating the CMC listed on the 24th April 2013. The order also recorded, at recording 4b., that:-
“Case management directions are debarred until after the hearing (of those applications)”.
The strike out applications were listed to be heard on the 14th June 2013.
- It should not go unremarked that, coincidentally, at this stage of the proceedings, the Jackson reforms were implemented.
- Having sought advice from Chancery and Common Law Counsel, the Claimant issued an application dated the 4th June 2013 [310 – 384] to vary that recording in order to permit further case management directions to be given (I do not express any view here as to the status of such a recording in any event) for the purpose of adjourning the applications to strike out and further adjourning the adjourned CMC and for:
“The Claimant’s claim (to) be stayed until 17th September 2013 to allow the Provisionally Proposed New Defendants to have time to investigate the Claimant’s claim and answer the Claimant’s pre-action letters; and for investigations to be made by the Claimant of the Provisionally Proposed New Defendants…”
- The witness statement in support of that application, from Mr Jones, dated the 4th June 2013, at paragraph 16  referred the court to his previous witness statement dated the 30th April 2013 for a commentary as to the basis for pursuing claims against, inter alia, the Seventh Defendant (Park).
- At paragraph 30 of that witness statement  Mr Jones indicates that Chancery Counsel had identified Park as a potential Seventh Defendant and that Park has been granted a lease of the demised premises and were defined as a tenant, paragraphs 31A(3) and (6) . The witness statement also sought to stress that Park had singularly failed to respond to relevant correspondence between June 2011 and April 2013, as summarised at paragraph 45 .
- The application was given an urgent listing before HHJ Hodge QC on the 7th June 2013. He dismissed the application with costs [386 – 387] (the parties agree that the different date on the face of this order is an error).
- On the 11th June 2013 the Claimant issued 2 further applications, one to adjourn the hearing on the 14th June 2013 (despite no appeal against the order of HHJ Hodge QC) and one to join 5 further Defendants, including Park as Seventh Defendant. My understanding from Mr Jones’ witness statement in opposition to the instant application at paragraph 33  is that these applications, or at least the application to amend were on the file at the time of the hearing on the 14th June, but had not been served on the parties by the Court along with a Notice of Hearing Date. I remind myself, however, of CPR r.23.5 which provides that it is timely receipt by the Court of the application notice which amounts to the application being “made” within the meaning of the rules and therefore, in my judgment that application, being on the court file, was “made” within the meaning of the rules. I also note PD23A paragraph 2.7 which provides that:-
“Every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.”
- Thus the strike out applications came before DJ Obodai on the 14th June 2013. She granted summary judgment to all three remaining Defendants and dismissed the claim with costs, refusing permission to appeal . The emphasis placed by the parties on the learned District Judge’s thought processes upon dismissing the claim differs to an extent.
- The instant Defendant (through the same firm of solicitors and actual solicitor utilised by the erstwhile First and Fourth Defendants) notes  that she accepted that proceedings had been issued against the wrong Defendants and that the Claimant had failed to remedy the situation “when ordered to apply to add (Park) …by…24 January 2013”. I should note here that the Claimant, in my view, was never ordered to apply (the actual making of any application surely being a matter for a party’s individual decision), but rather that a timescale, ultimately by order of the Court, was set during which any such application was to be made if it was intended to be made or indeed permitted to be made at all, within the court’s case management powers.
- The Claimant, in paragraph 33  referred to above, notes that the learned District Judge was not prepared to consider the merits of the application to amend, struck out the whole of the Claimant’s claim and went on to say that the Claimant would need to bring a new claim against (Park) when the Court would no doubt consider limitation and Section 33 (of the Limitation Act 1980) issues arising from the fresh proceedings.
- In my view, the wording of the Court Order is clear, namely that the claim was dismissed and not struck out and that with such dismissal would have automatically been included a dismissal of the Claimant’s application to amend, it having been “made” within the meaning of the rules, as I have already so found. Insofar as the Court on this occasion needs to be or can, without a transcript, be clear about any of the learned District Judge’s thought processes, her reasons for refusing permission to appeal against summary judgment and dismissal are set out at . She was, to my mind, clearly satisfied on a summary basis that the evidence pointed only in one direction, namely that Park was tenant of the premises outside which the Claimant says he fell and that Park had exclusive possession and control of those premises.
- Her order was not appealed.
- These proceedings were then commenced against Park on the 7th March 2014  nearly 9 months after the dismissal of the first claim and nearly 6 years after the alleged accident and ultimately this application was listed for a full day some 6 months later. A draft defence is in the bundle [407 – 410] strictly without prejudice to this application, which pleads limitation, admits occupancy but denies negligence and/or breach of the common duty of care owed as occupier.
- The parties are in agreement, and I remind myself as such, that the question of whether these proceedings are an abuse of process is susceptible only to a right or a wrong answer. As such, it follows that there is no room for the exercise of discretion in reaching a conclusion on that point. An exercise of discretion, however, is, I would accept, subsequently engaged when, if having decided the first question in the affirmative, the question of deciding whether to strike out comes to be addressed. There is also no disagreement that the Defendant bears the burden of establishing the existence an abuse of process on the balance of probabilities.
- The parties are not in agreement, however, as to the test which should be applied by the court on deciding that first crucial question, in the circumstances of this case.
(a) The Defendant
- The essence of the thrust of the Defendant’s argument is that the instant proceedings are an abusive attempt to litigate matters which the Claimant unjustifiably failed to ensure were properly considered in the first set of proceedings despite ample fair opportunity being afforded to him in this regard, which this court should not countenance in all the foregoing circumstances and in the post-Jackson era. Despite it being a different Defendant, a different legal entity, in these proceedings from any previously joined, so Park says, nevertheless this can and should be seen as an impermissible “second bite of the cherry”, given the consideration actually given by both the Claimant and the court to joining in Park in the original proceedings.
- As such, the Defendant essentially relies upon the line of authority concerning attempts to relitigate matters already pursued against the same Defendant, making reference to the authorities annexed to its skeleton argument and also to the case of Gladman v Fisher  EWCA Civ 1466, upon which I invited submissions.
- Although the majority of the authorities relied upon by the Defendant concern attempts to relitigate against the same Defendant, the Defendant argues that nevertheless this is the relevant approach here. I draw the following propositions from Mr Bagot’s submissions:-
- The failure of the Claimant to avail itself of the mandatory opportunity to make a timely application to join in Park in the first set of proceedings (or make any proper application for relief) is tantamount to disobedience of a peremptory order of the type seen in Janov v Morris  1 WLR 1389 CA, such that caution should be exercised in permitting a second action arising out of the same cause of action (whether or not against the same Defendant) to continue;
- The failure of the Claimant essentially to grasp the nettle in a timely fashion in the first set of proceedings such that those proceedings were ultimately dismissed without application to join Park having been specifically adjudicated upon is an equivalent situation to that seen in Arbuthnot v Trafalgar  1 WLR 1426 CA, on the eve of the introduction of the Civil Procedure Rules, namely that the failures in the first action should be seen as abusive, giving rise to the need for a “special reason” to permit this claim to continue, which reason does not exist here;
- The change in culture following the introduction of the Civil Procedure Rules meant that not only delay, but the failure to exhaust remedies in the first action and the impact upon the court’s limited resources were important factors to be considered, see for example Securum Finance v Ashton  Ch 291 CA @ 315E – F;
- The Claimant here can be shown to be guilty of much more that a single negligent oversight or the type excused in Aktas v Adepta  QB 894 CA, in terms not only of the failure to make application in accordance with the mandatory order of DJ Khan, but also the need for two unconnected unless order to be made and a breach of rules in relation to understating the value of the claim;
- The further change in culture heralded by the introduction of the Jackson reforms in April 2013, in particular the amendment to the overriding objective and the change in the Court’s approach to non-compliance situations, puts the Claimant’s conduct in the first action into sharper perspective. The court now has at the forefront of its mind the need for claims to be conducted at proportionate cost and in compliance with rules practice directions and court orders. Although the approach adopted by the Court of Appeal to relief from sanctions applications under CPR r.3.9 in Mitchell v News Group  1 WLR 795 CA has subsequently been clarified and amplified in Denton v TH White  EWCA Civ 906, this does not detract in any way from the new emphasis to be derived from the amendment to the overriding objective itself;
- A specific example, post Jackson, of a second action against a different Defendant, arising out of the same factual background, being struck out as an abuse, after the first action had been struck out for failure to comply with court orders and no relief from sanction had been granted, can be seen in the decision at Circuit Judge level of Robins v NIG Insurance (13/6/13 unreported) (HHJ Lochrane;
- To allow this claim to continue would send completely the wrong message in terms of the robustness of the new approach to the ignoring of court orders.
- The Claimant
- The Claimant adopts what might be characterised as a more traditional approach drawing upon the notes to r.3.4(2)(b) at 22.214.171.124 of the White Book 2014 Volume 1 at p.82 ff. The Claimant effectively submits that the situation here is a world away from the strike-out cases relied upon by the Defendant, in that the flavour of this claim, to be drawn from consideration of the entirety of the activity engaged in by the Claimant or his advisers during the first action, has none of the aspects of abusive or oppressive conduct redolent of the conduct so strongly disapproved of and with such draconian results. It is said that there is no question here of manipulating the court process or the expressed intention of the court to the Claimant’s own ends in order to achieve any sort of unjust or unfair advantage.
- The Claimant accepts that, in the context of issue estoppel, the well-known case of Henderson v Henderson (1843) 3 Hare 100 decided that parties engaged in litigation should ventilate the entirety of the relevant issues at the same time. However, in accordance with the leading case of Johnson v Gore Wood  AC 1 HL, as summarised by Clarke LJ in Dexter v Vlieland-Boddy  2 AC 1, the following propositions are said to apply:-
- Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process;
- A later action against B is much more likely to be held to be an abuse of process than a later action against C;
- The burden of establishing abuse of process is on B or C as the case may be;
- It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive;
- The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process;
- The court will rarely find that later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C.
- Clarke LJ, at paragraphs 50 – 51, went on to observe that there may be entirely legitimate reasons for a claimant deciding to being an action against B first and, only later (and if necessary) against others, for example reasons of public interest in efficiency and economy of litigation and whether such interest is best served by one action against all such parties. He continued at paragraph 52,
“courts should be astute to ensure that it is only in a case where C can establish oppression or an abuse of process that a later action against C should be struck out.”
In addition I note the seminal part of the speech of Lord Bingham in Johnson itself at page 31 C – F, namely that there should be
“a broad merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before…(It was to be) preferable to ask whether in all the circumstances a party’s conduct is an abuse”.
- The Claimant then refers to the more recent application of these principles in the case of Aldi v WSP Group  EWCA Civ 1260 where the Court of Appeal overturned the first instance judge’s decision to strike out a claim against a new party which could have been brought in the original compromised action. The Court of Appeal confirmed that the broad merits-based approach was applicable and that the fact that a different party was being sued was a powerful factor against a finding of abuse, although not a complete bar. The task for the judge was to make an assessment of all relevant factors and to come to a correct decision on abuse, one way or the other. The judge had erred by not adequately taking into account the fact that it could not be said that the Claimant had behaved in any way culpably or improperly.
- I note the following from the judgment of Thomas LJ in Aldi, when assessing the public interest factors for and against allowing the second set of proceedings to persist, at paragraphs 24 – 25,
“(P)ublic interest extends not only to finality and preventing a party being vexed twice, but also to economy and efficiency in litigation…I do not see how the mere fact that this action may require a trial and hence take up judicial time (which could have been saved if Aldi had exercised its right to bring an action in a different way) can make the action impermissible. If an action can properly be brought, it is the duty of the state to provide the necessary resources; the litigant cannot be denied the right to bring a claim…on the basis that he could have acted differently and so made more efficient use of the court’s resources.
…there is a real public interest in allowing parties a measure of freedom to chose whom they sue in a complex commercial matter and not to give encouragement to bringing a single set of proceedings against a wide range of defendants.”
- It is additionally noteworthy, however, in my judgment that Thomas LJ also provided guidance at paragraphs 24 – 25 and 29 – 30 on the sort of approach to be adopted in future cases of that sort,
“…the problems that have arisen in this case should have been dealt with through case management…
That freedom (to choose whom they sue) can and should be restricted by appropriate case management…
In circumstances such as those that arose in this case, the proper course is to raise the issue with the court…
Parties are sometimes faced with the issue of wishing to pursue other proceedings whilst reserving a right in existing proceedings…The court would, at the very least, have been able to express its view as to the proper use of its resources and on the efficient and economical conduct of the litigation…It may be that the court would have said that it was for Aldi to elect whether it wished to pursue its claim in the proceedings, but if it did not, that would be the end of the matter.”
- As set out above, I also invited the parties’ submissions on the case of Gladman, referred to in the White Book (a post-Jackson decision). In Gladman the Court of Appeal upheld the judge’s decision to treat the Claimant’s failure to raise a contemplated future claim at the case management stage in the first set of proceedings as a failure to follow a mandatory guideline and thus a relevant factor in pointing to a correct conclusion of the second proceedings being an abuse of process.
- Briggs LJ’s judgment considered the implications of the above guidance in Aldi later referred to in the case of Stuart v Goldberg  1 WLR 823 CA, firstly at paragraph 77 by Sedley LJ,
“The parties should have raised the possible difficulties of a further set of proceedings with the court at a stage when the matter could have been sorted out in a proper way at a case management conference and not left it to fester in a way that has now made the difficulties problematic, time-wasting and expensive at a later stage”
and then at paragraph 96 by Sir Anthony Clarke MR who said that to raise such matters for case management in the first claim was to forward the underlying approach of the CPR, namely
“co-operation between the parties, robust case management and disposing of cases, including particular issues, justly”.
- He concluded, at paragraph 65, that it was right to categorise the guidelines as mandatory future conduct, in the context of the stakeholders in the conduct of civil proceedings being not only the parties themselves, but other litigants waiting for their cases to be tried and the public at large, with an interest in the efficient and economic conduct of litigation. He then continued, at paragraph 67, with his observation on any contention that it was purely a matter for the parties to decide whether to pursue a dispute in one or more related sets of proceedings, regardless of its effect upon the burdens facing the court:
“If that was ever a legitimate view…civil litigants need to understand that it is not now.”
Firstly, I reject the Defendant’s novel but ingenious approach contended for in this case, as invited from the line of authorities relied upon. In my judgment, there could not be a clearer case than this where the line of authorities relied upon by the Claimant, referred to as they are in the relevant notes to the White Book, is directly applicable. This is beyond peradventure a case where A has initially chosen to sue B, C, D, E, F and G and, that claim having concluded, has now decided to sue H, when the case against H could have been included in the first action.
- I therefore accept and proceed on the basis that it is for the court to adopt a broad-merits based approach, the Defendant bearing the burden of establishing that the bringing of these proceedings per se amounts to an abuse of process. Such an approach, in my judgment leads me to consider and to weigh the private interests of the parties and the interests of the public in permitting the second set of proceedings to persist and to weigh all the relevant factors in coming to my conclusion.
- In terms of the relevant private interests, it may be trite to observe that it is in the Claimant’s interests for these proceedings to persist, but more importantly the first claim had none of the flavour of sensibly wishing to keep one’s powder dry in order to keep the claim manageable, rather a sense of the opposite pervades in terms of initial issuing, flagged up intention and the hoped-for ultimate further proliferation of Defendants. However, in terms of any private mischief to the Defendant, I am not persuaded that this is a case where there is any harassment or vexation per se in bringing these proceedings against this Defendant, in the context of what went before in the first claim. I am satisfied, on balance, that the Defendant, for reasons best known to itself but probably not altogether divorced from its corporate nexus with the First and Fourth Defendants in the first claim, chose not to engage in the pre-litigation process at that time, despite being invited to do so on multiple occasions in correspondence from the Claimant and, as such in my view, cannot legitimately claim to have been vexed or oppressed in any material way by the fact of being forced ultimately to join issue with the Claimant in this claim.
- I move then to the public interest in finality and in litigation being conducted economically and efficiently. I am careful not to apply the post-Jackson rigours to the pre-Jackson period of the progress of the first claim when considering the facts of the case and the decisions taken by the Claimant in terms of the issue of the potential joinder of Park within the first claim, but to maintain the broad merits-based approach.
- What is strikingly different, to my mind, when comparing this claim with others to which this court has been referred in argument, is that this is not a situation where a conscious positive decision was made not to include this Defendant within the first set of proceedings. Rather, the Claimant expressed an early positive intention to do so, albeit that that position vacillated markedly as time passed. The Claimant’s approach to joining Park was identified by the Claimant variously as an immediate intention in or about July 2012, as a pending application in or about September 2012, as a provisional application on the 4th June 2013 and in terms of an actual application made, as I have found, on the 11th June 2013. Even though the Claimant’s solicitors were instructed late in the day and even though they were being faced with a wall of silence, it is difficult to resist an inference of an overly or hyper- cautious approach over time as to the strong potential for liability to lie with this particular Defendant, in light not least of the early letter from Goodman of the 5th May 2011 followed up by the Defence of the First and Fourth Defendants. The Claimant, to my mind, seemed ultimately to wish for an entirely unjustifiable degree of certainty as to potential liability prior to making a formal application to join in Park, which attitude did not seem to replicate the approach towards the first six Defendants.
- I do not doubt for a moment that extensive work was going on behind the scenes, in terms of correspondence and the obtaining of advice, not least from chancery counsel, but this does nothing, in my judgment to excuse the Claimant’s approach to the requests from the court, culminating in the Court Order of the 16th January 2013 for the Claimant to “put up or shut up” in terms of its averred intention to join Park as a Defendant, in particular in the context of his averred position in his Allocation Questionnaire and the seemingly relatively advanced stage reached in the application process by September 2012. The Court Order seems to me to be just the sort of approach envisaged by Thomas LJ in Aldi referred to at the end of paragraph 40 above.
- A timescale for the making of any relevant application to join was set by the Court and this was in no uncertain terms ignored, in my judgment. Whether that was symptomatic of the pre-Jackson culture which the reforms have sought to address, it is perhaps not necessary for me to decide, but the knock-on effect of ignoring the order of the court is, in my view, an important factor in my decision-making process in the context of an application of this sort. The response to any suggestion that the time limit imposed by the court in January 2013 for making any application to join Park was impracticably short is, in my view, easily made, namely that the Claimant had already been in receipt of a windfall of additional time throughout the back end of 2012, when the court was attempting to case manage this issue through forceful correspondence, thus in reality putting the Claimant on notice that this issue needed to be addressed and addressed urgently.
- The importance of the Claimant’s decision not to make any application in accordance with District Judge Khan’s first order (and, indeed, not to apply specifically for any extension of time so to do, on the basis, as I find to be the case, that in effect relief from the inevitable sanction attached to a failure to comply with a mandatory order would have had to have been sought,) has to be seen in the context of the above guidance laid down in Aldi (and later approved of in Gladman), namely that these situations should be the subject of case management in the first action, rather than be left to emerge from the woodwork, as it were, at a later stage.
- In my view, whether the guidance in Aldi should be seen as mandatory or not in the context of this type of personal injury claim (and for what it is worth, in my view the complexities of joinder of up to 10 Defendants are sufficient for this case to fall within a sufficiently similar category of claim), the conduct of the Claimant in failing to avail himself of the opportunity afforded by the court in January 2013 is inexcusable. The court was attempting to case manage matters at an appropriate stage, rendering the making of the application, if it was ever going to be made, in my judgment “necessary” within the meaning of CPR PD23A paragraph 2.7. I am further persuaded on the evidence before the court that there was also sufficient information known to the Claimant at this time as to the apparent role of Park to render the making of the application “desirable” in the same context. Thus the Claimant’s failure to engage with that order of the court at that time or at any time properly thereafter was also, in my view, a breach of the rules of court much more serious than any technical failings in relation to the valuation of the claim and the payment of the requisite issue fee.
- The fact that the material parts of the first claim span the implementation of the Jackson reforms is perhaps less relevant in fact, given the pre-Jackson emphasis, dating back to Aldi, on economy and efficiency in the conduct of litigation of this sort. I am satisfied that the Claimant’s failure to respond to the January 2013 order has led directly to inefficiencies, in terms of multiple applications and an extra hearing late in the day in June 2013 and further impacted significantly upon the interests of the court-using public, both in terms of the court time and scarce resources used in addressing this issue in the first and in the instant claim, before any further issue of limitation even falls to be considered. The decision to pursue the extant Defendants to the bitter end in June 2013 and only to attempt to bring in Park at the last minute of the eleventh hour was a highly uneconomic and inefficient strategy, in my view, and indeed a highly risky one in the circumstances.
- In the post-Jackson era and in particular in the context both of the need to encourage compliance with orders, rules and practice directions and the seemingly ever-diminishing or hard-pressed court resources, it is not surprising that the decision in Gladman was handed down. In the Claimant’s first claim District Judge Khan was clearly right to require the Claimant to seek case management of this issue in early 2013 and without doubt did not envisage nor would he have countenanced that essentially the same issue would still be troubling the Courts in the second half of 2014. The decision of District Judge Obodai to dismiss the claim and, as I have found, with it the application to join Park as Seventh Defendant, can, in my judgment, be seen as no indication that she was of the view that the Claimant would inevitably be permitted or even be likely to be permitted, without more, to bring a second action this time against Park, nor would that view, if so expressed, be in any way binding upon this court. Insofar as it might be seen as a factor encouraging the Claimant not to appeal the order of DJ Obodai and exhaust all his remedies in the first claim, I find that to be an unimpressive argument, as the decision whether or not to appeal clearly has to be made on the merits of the decision itself and not in the context of any obiter comments. The Claimant chose not to appeal her order dismissing the entirety of that claim prior to the application to join having been heard and as such cannot complain that the instant application has been made in the second action.
- Therefore, in conclusion, whilst rejecting the approach advocated by the Defendant and thus applying the broad merits-based approach contended for by the Claimant and also not being satisfied that there is any harassment or oppression of the Defendant in bringing this second claim, nevertheless, the above factors which I have analysed and found to be important above have driven me to find in the context of the matters complained of by the Defendant, that this is one of the rare cases where a second set of proceedings against a different Defendant can and in this case does amount to an abuse of the court process.
- I should perhaps say that I am not influenced in reaching my decision by the Robins case discussed above, which seems to me to be sensibly confined to its own peculiar circumstances, namely the special situation permitted by the European Communities (Rights Against Insurers) Regulations 2002, wherein the new Defendant was effectively obliged by regulation to stand in the shoes of the old Defendant, which is clearly not the case here. I am also not persuaded that the court should be concerned about sending out the wrong sort of message in this sort of case in the post-Jackson era. The importance of issues of this sort being grappled with by the relevant party sooner rather than later was already emphasised in Aldi, long before April 2013 and the test, focussing as it does upon a decision overall as to whether the particular circumstances in fact amount to an abuse, is a clear one which I have endeavoured to apply.
- Having so found, I am also driven to the conclusion that the correct exercise of my discretion would then be to strike out the claim, as it would not be right, just, or in accordance with the overriding objective as amended to permit such proceedings nevertheless to continue.
15th September 2014