WHEN YOU HAVE TWO IDENTICAL ACTIONS ON THE GO AT ONCE: COURT CONSIDERS THIS AN ABUSE OF PROCESS

In Dixon v Santander Asset Finance Plc & Anor [2021] EWHC 1044 (Ch) HHJ Saffman (sitting as a High Court Judge) granted the defendant summary judgment on the basis that the claim against it was clearly statute barred. The judge also observed that earlier proceedings had been issued but not proceeded with. The existence of these earlier proceedings, in themselves, could represent an abuse of process.

THE CASE

The claimant brought an action alleging breach of contract by the defendants. The events in question took place in 2008. The defendants succeeded in their application for summary judgment on the grounds that the action was statute barred.  However the judge also made observations in relation to an application to strike out on the basis that identical proceedings had been issued earlier but not proceeded with.

THE EARLIER PROCEEDINGS

Proceedings had been issued in 2014 and served in 2015. However nothing happened after the claim form was served.

The 2014 Claim Form: On 13 August 2013, Simpson, Sissons & Brooke LLP (“SSB”), solicitors instructed by Mr Dixon, sent a letter to Santander entitled ‘letter before action’ stating that they were investigating a claim against Santander for personal injury and associated financial loss; and the issues being investigated “include allegations made by you against our client that he committed fraud, forgery and deception in the management of his business, Just Vans Self Drive Ltd… Our Client alleges that the investigations made by you were based on information which was incorrect and that you have been negligent in obtaining the same.” On 17 September 2014 Mr Dixon and Just Vans issued a claim against the Defendants (“the 2014 Claim Form”), which to all intents and purposes is identical to the claim form issued in these proceedings on 1 October 2019. On 5 December 2014 SSB issued an application for time for service of the 2014 Claim Form to be extended to 17 July 2015. It is understood that that application was refused. The 2014 Claim Form was served on 16 January 2015 under cover of a letter from SSB which stated that “We will be issuing a further application for the proceedings to be stayed and will write to you again in the very near future.” [1/8/A542] No application was ever served by SSB or Mr Dixon/Just Vans, and nor were Particulars of Claim served.

THE CASE WOULD HAVE BEEN STRUCK OUT AS AN ABUSE OF PROCESS BECAUSE OF THE EXISTENCE OF THE FIRST CLAIM

There was no need for the judge to give a detailed judgment on this issue. However it was clear that the existence of the earlier proceedings would have led to the second action being struck out as an abuse of process in any event.

1. 1. Both Santander and Handelsbanken argue that this claim is an abuse of process because it is an impermissible attempt to resurrect the 2014 claim which has been wholly neglected since the claim form was served on Handelsbanken and Santander in January 2015. Nothing has happened since then. No particulars of claim have been served and no other steps have been taken to advance that litigation.

1. In the light of my findings that these claims are time-barred I do not think that I need to deal with this particular issue save to say that I can think of no basis, and no real basis was suggested to me by Mr Myerson QC, for taking the view other than that it is an abuse to issue proceedings which are identical to earlier proceedings which have been subject to inordinate and inexcusable delay but which presumably are still technically extant. As I understand it, those 2014 proceedings are indeed still on foot despite the fact that nothing has been done to advance them since 2015. If that is indeed the case the answer is not to issue new proceedings but to seek to serve particulars of claim consequent upon the claim form issued in May 2014. It is unclear to me why Mr Dixon did not take that step. It may very well be that, had he done so, he would have been met with an application for that claim to be struck out because of the delay in advancing it but, as it turns out, he is in no better position with regard to these claims issued in 2019 in which it must have been foreseeable that the defendants would raise a limitation defence and seek strike out on that basis.