STRIKING OUT A SECOND ACTION: DIFFERENT CLAIMANT BUT ESSENTIALLY THE SAME ACTION: HIGH COURT DECISION TODAY
In the judgment today Samuel v Samuel & Ors  EWHC 3513 (Ch) Master Teverson struck out an action as an abuse of process. There had been earlier proceedings of a similar nature that had been compromised. Although there was a different claimant the action was almost identical to that earlier action and this was held to be an abuse of process.
” It is in my view a misuse of court procedure for Merlina to bring a second almost identical claim having been a party to the first, relying on the same expert evidence, and having known of the broad facts giving rise to the claim. That is open to the objection that a second claim is being brought where one should have sufficed; to a defendant being twice vexed; to court resources having to deal with the same claim a second time and to all this being pursued, in effect, free from sanction.”
The defendants were the executors of a will made in 2008. In 2012 one of the beneficiaries to that will brought an action for a declaration that the deceased had, in fact, died intestate “”the first action”. That first action was eventually compromised in 2013 that it was discontinued with no order for costs.
The claimant issued another action “the second action” in 2018. The claimant in the second action sought an declaration that an earlier will (made in 2003) l was valid.
THE CLAIMANT’S ROLE IN THE FIRST ACTION
The claimant in the second action (Merlina) had been served with proceedings in the first action. She did not acknowledge receipt. An order was made in the first action that if Merlina did not acknowledge recept then she would be debarred. No acknowledgment was served. Merlina did, however, attend a mediation hearing which was not successful.
STRIKING OUT THE SECOND ACTION
The relief sought in the second action was similar to that in the first, however Merlina sought to argue that an earlier will was valid, rather than the deceased was intestate.
MERLINA’S FAILURE TO RESPOND IN THE FIRST ACTION
There were arguments put forward by the executors relating to Merlina’s failure to act in the first action.
i) It was a mandatory requirement under CPR r57.4(1) that Merlina file an acknowledgment of service following service on her of Christopher’s probate claim;
ii) Thereafter, Merlina was required to serve a counterclaim if she contended that she had any claim or was entitled to any remedy relating to the grant of probate of the will: r.57.8(1)
iii) In addition, if Merlina contended that at the time of the execution of the will, her mother did not know and approve of its contents, she was required to give particulars of the facts and matters relied upon; r.57.7(3);
iv) Further, if Merlina contended that the 2008 Will was not duly executed or that at the time of execution of the will her mother lacked testamentary capacity, she was likewise required to set out that contention specifically in her statement of case; r.57.7(4).
v) The purpose of these rules was so that the court could deal with finality with all questions as to the validity of a will which any person interested in the estate wishes to propound.
vi) These requirements were not onerous; Merlina could simply have stated that she adopted the grounds relied upon by Christopher in his Particulars of Claim;
vii) However, Merlina failed to comply with these mandatory requirements and took no formal part in the 2012 proceedings;
viii) Had Merlina complied with these procedural requirements, the claim would not have been settled as it was and Master Price would not have permitted the claim to be discontinued without the grounds of challenge being determined by the court;
ix) It is, accordingly, an abuse of process for Merlina to seek to challenge the 2008 Will in the present claim on grounds which were known to her and which she should, and was required by the rules, to set out in the 2012 proceedings;
x) Likewise it would be an abuse of process to seek the same relief as Christopher had done in relation to the Declaration of Trust and transfer;
xi) Syleta should not be subjected again to the expense, anxiety and uncertainty of litigation on issues which Merlina was required to set out in the 2012 claim; nor should the resources of the court be further taken up with such matters.
THE RELEVANT PRINCIPLES: GORE WOOD CONSIDERED
The Master considered the relevant principles.
Lord Bingham in the well-known passage in Johnson v Gore Wood & Co  2 AC 1 at p. 31:-
“But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involves what the court regards as unjust harassment of a party. It is, however, 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. That is to adopt too dogmatic an approach to what should in my opinion 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, focusing 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. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would not accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”
THE MASTER’S JUDGMENT
The Master struck out this second action.
A court will only strike out a claim as an abuse of process after the most careful consideration. It has to balance a claimant’s right to bring before the court a claim whose merits have yet to be determined against a defendant’s right to be protected from being harassed by a second set of proceedings where one should have sufficed.
Merlina’s claim has the unattractive feature that it arises out of the very same facts as those relied on by Christopher. It is to all and intents and purposes the same claim. In circumstances in which Merlina was a party to the original proceedings that points strongly to the conclusion that one set of proceedings should have sufficed.
In my view, Merlina has misused the process of the court. She did not put the court on notice in any formal way in 2012 or 2013 that she was herself claiming any remedy relating to the grant of probate. Had she done so, the court would have been alerted to the fact that there was another claim. It would then have been in a position to ensure that all claims relating to the estate were determined.
Merlina has instead, in effect, granted to herself the right to bring her own claim in her own time without regard to the underlying public interest in disputes being determined in one set of proceedings. The effect is that Syleta is being required to defend for the second time the same claim. By the time of settlement, the 2012 proceedings had reached the stage of standard disclosure.
On behalf of Merlina, it was submitted that Syleta took the risk of a further challenge by Merlina by choosing to settle with Christopher. I accept that the way in which the proceedings were compromised is a material consideration and in some cases is a highly material consideration as found on the facts in Aldi Stores Ltd v WSP Group plc  EWCA Civ 1260. Merlina was however a party to the proceedings which involved all 7 siblings. This was a dispute between siblings over their mother’s will and property. She attended the mediation to support Christopher. She was closely involved.
Merlina must have known or discovered that the proceedings had been settled without reference to her and that as a result her entitlement to a legacy of £12,000 payable within 10 years of her mother’s death was to remain unchanged. Had Merlina applied back to the probate court promptly, there would have been at least a reasonable prospect of her being allowed to claim relief.
Merlina was a party to the 2012 proceedings. She did not participate in them or put her position on record at any stage in those proceedings. She was not a party to the negotiations following the mediation and may well have felt that a deal had been done behind her back. But she must have been cognisant of the fact that the proceedings were not proceeding to trial and that her legacy was not being increased.
In my view the present proceedings should be characterised as a misuse of the court’s process. Merlina failed to put on record that she herself wanted to claim a remedy in relation to the grant of probate. Having failed to do that, she failed to apply back to the court for permission to pursue her own remedy in those proceedings.
It is in my view a misuse of the court’s process for Merlina instead to bring a second claim at the time of her choosing claiming the same or substantially the same relief as was being sought by Christopher in the 2012 proceedings in circumstances in which the facts giving rise to the claim were broadly known to Merlina at the time. Merlina’s email to Jolene Hutchison of Blaser Mills sent on 3 June 2012 makes that clear. Merlina says (as written):-
“I have been in contact with my brother Christopher and I have to agree my mum did not write that 10 page will. 4 brain tumours! House signes over a month before.
I am now after justice for Lauradel E Samuel. The sigiture was fake. I am not interested in money. Since selling my flat and the will action. I felt my life under threat. I am staying at a place of safety but we only have a single bed. Plus michael distress.
Not sure what to do but I want to speak to my brothers solicitor, to start action plus the police.
The fact that Merlina was a litigant in person and did not at the time have the funds needed to enable Edwards Duthie to represent her in the 2012 proceedings does not in my view overcome the misuse of the court process. The misuse lies in the bringing of a second claim in circumstances where Merlina was a party to the first claim. She did not formally put the court on notice that she was claiming any remedy in relation to the grant of probate in the first claim. Nor once she found out that Christopher was not pursuing his claim did Merlina go back to the court and seek to raise her claim. Lack of funds is I accept a factor that may be taken into account when looking at all the circumstances but in this case it cannot in my view be allowed to outweigh the other private and public interests.
Although not covered by Rule 57.8(1), the claim to set aside the Declaration of Trust and transfer was part of the relief claimed by Christopher in the 2012 proceedings, and a claim that could and should have been pursued by Merlina in those proceedings. In my view the attempt to pursue that claim in the present proceedings is as much a misuse of the court process as the attempt to pursue the revocation claim.
There is a public interest in there being finality in litigation especially between family members who are disputing a will and transfer of a share in a family home. All the members of the family were parties to the first set of proceedings. Whether or not they could afford legal representation, it was their opportunity to come before the court and notify the court of any relief or remedy they sought to claim. Merlina’s failure to put her position on the record meant that the court was not alerted to the fact that she too wished to assert a claim in relation to the 2008 Will and the transfer.
Relief might have been granted to Merlina if she had returned to court promptly after finding out that Christopher’s claim was compromised and not being pursued. At that point the court would have looked at all the circumstances and considered in effect whether to grant relief from sanction. It is in my view a misuse of court procedure for Merlina to bring a second almost identical claim having been a party to the first, relying on the same expert evidence, and having known of the broad facts giving rise to the claim. That is open to the objection that a second claim is being brought where one should have sufficed; to a defendant being twice vexed; to court resources having to deal with the same claim a second time and to all this being pursued, in effect, free from sanction.