SHOULD A SECOND ACTION BE STRUCK OUT AS AN ABUSE OF PROCESS? AN ISSUE COMING TO THE COURT OF APPEAL SOON

There is an important note in the news section of Hardwicke Chambers website.  The Court of Appeal has granted permission to appeal in a case where the judge refused to strike out a second action issued after a first action was struck for failure to comply with the CPR.

THE CASE

In Padley -v- Anderselite Limited the claimant’s first action was automatically struck out for failure to comply with an unless order in respect of filing of a Directions Questionnaire.

The claimant issued again and that action was struck out by the District Judge as an abuse of process.  The claimant appealed and that appeal was successful.

PERMISSION TO APPEAL GRANTED BY THE COURT OF APPEAL

The defendant has now received permission to appeal from the Court of Appeal.  The Court of Appeal judge, in granting permission to appeal observed.

“…in my view the appeal raises an important point that merits consideration by the Court of Appeal, as to the correct approach post Mitchell and Denton to permitting a second action to proceed after an identical action has been struck out for failing to comply with an unless order, where no application for relief from sanctions in respect of that first action is made or pursued.”

RELATED POSTS

• Second action against a different defendant struck out for abuse of process: Alcock -v- Park Business Centres Ltd
• Second action struck out as an abuse of process: report of first instance decision.
• Issuing proceedings a second time: not an abuse of process: Hall -v- Ministry of Defence considered
• Can a struck out claimant issue again? Exercise of the section 33 discretion after a first action has been dismissed.