SERVICE POINTS 48 : A DEFAULT JUDGMENT IN THE FIRST ACTION (AGAINST A DEFENDANT WHO WAS NEVER SERVED) LEADS TO A SECOND ACTION BEING STRUCK OUT
This is a sorry tale. Someone who may have had a perfectly good claim for damages for personal injury has their case struck out because of procedural mishaps by their own solicitors. It all stems from a failure to serve…
THE COURT WAS WRONG NOT TO STRIKE THE DEFENCE OUT: A FAILURE TO DISPUTE A POINT IN THE JERSEY COURTS MEANT IT WAS NOT OPEN TO A DEFENDANT TO ARGUE IT IN A SECOND ACTION
This is a case where, on appeal, it was held that it was not open to a defendant to bring an action because they had already had the ability to raise issues with a court in Jersey. The judge held…
THE DEFENDANT’S ACCEPTANCE OF A PART 36 OFFER FROM THE CLAIMANT DID NOT PREVENT A SECOND ACTION IN RELATION TO A DIFFERENT (BUT RELATED) ISSUE
This is a case where the Court of Appeal allowed an appeal (in part) in relation to the striking out of a “second” action between the parties. The Court held that part of the second action was not an abuse…
THE DEFENDANTS’ APPLICATION WAS AN ABUSE OF PROCESS: THE DANGERS OF TRYING SIMILAR THINGS A SECOND TIME AROUND: “THE HENDERSON AND HUNTER PRINCIPLES APPLY TO INTERLOCUTORY HEARINGS AS MUCH AS TO FINAL HEARINGS”
This is an interesting case on the relevance of the “Henderson” principles to applications, in this case for reverse summary judgment/to strike out the claim. A similar application had been made much earlier in the litigation. The judge found for…
ASKING THE JUDGE TO DETERMINE ISSUES OF OWNERSHIP WAS NOT AN ABUSE OF PROCESS: THE SAME ARGUMENT RAN TWICE (UNSUCCESSFULLY ON BOTH OCCASIONS…)
Here we consider an argument that it was an abuse of process for a litigant to argue issues that were directly related to another action between the parties that had been stayed. The judge held that this was not an…
WAS THIS “SECOND” ACTION AN ATTEMPT TO RE-OPEN MATTERS HAD HAD BEEN DETERMINED IN AN EARLIER HEARING? IF SO WHAT SHOULD THE COURT DO?
When a party is dissatisfied with the result of a hearing and has exhausted the appeal process there is often little they can do. One potential remedy is to bring a second action seeking to set aside the first on…
THE AUTOMATIC STAY UNDER CPR 15.11: WAS IT IMPOSED IN THIS CASE? WHAT CRITERIA SHOULD THE COURT CONSIDER WHEN AN APPLICATION IS MADE TO LIFT IT? WAS THE DELAY AN ABUSE OF PROCESS
If a claimant serves proceedings and then does nothing the rules impose an automatic stay on proceedings. CPR 15.11 states that a stay takes effect from 6 months after the date on which a defence should have been filed. Here…
ANOTHER FALSE AND “HALLUCINATED” CITATION CASE: A SOLICITOR IS ACCOUNTABLE FOR WORK DONE BY THEIR STAFF: WASTED COSTS ORDER MADE
We have yet another case of “hallucinated” cases caused by artificial “intelligence” being cited in court. These have the capacity to, and indeed do, land lawyers in very hot water. Here false cases were put before the court in an…
THE SOLICITOR AND THE STING OPERATION (2): WHY THE JUDGE DID NOT ACCEPT THAT THE CLAIMANTS WERE UNAWARE OF THE STRATEGY BEING USED
We are returning again to the case where the claimants arranged the taping of meetings with the defendants’ solicitors. The judge was sceptical of the claimants’ assertions that they were not fully aware of the methods being used. (This case…
THE DEFENDANTS’ SOLICITOR HAS BEEN “SET UP”, SECRETLY RECORDED AND TOLD US THINGS HE SHOULD NOT: NOW WE WANT SUMMARY JUDGMENT BASED ON THOSE RECORDINGS: QUITE A CASE THIS…
Here we have an extraordinary case. The claimants’ employed a private enquiry agent to meet, on a pretence, with the defendants’ solicitor. That meeting was used by the enquiry agent to obtain information about the defendants’ case. It was videoed…
COST BITES 265: THE PERILS OF WORKING UNDER A CFA: THE COSTS JUDGE CORRECTLY ASSESSED COSTS AT NIL: THE DEFENDANT WAS ENTITLED TO TAKE A POINT THAT WAS NOT TAKEN AT AN EARLIER HEARING: THEY WERE SIMPLY FOLLOWING THE COURT’S ORDERS
Here we have a case that could well bring tears to the eyes of any litigator who works on a conditional fee basis. For the second time, on appeal, the claimant solicitor’s costs have been unsuccessful. The defendant former client…
COMMITTAL PROCEEDINGS “BROUGHT FOR COLLATERAL PURPOSES” DISMISSED: NOTICE TO SHOW CAUSE ISSUED AGAINST THE CLAIMANT’S SOLICITORS: WHY THIS IS A VERY DANGEROUS STRATEGY
There are many ways in which a litigant, dissatisfied with a judgment of the court can respond. They can apply to set the judgment aside; they can appeal; they can issue fresh proceedings attempting to argue that the action was…
THE WRONGFUL SHARING OF EMBARGOED JUDGMENTS: “A WARNING TO ALL SOLICITORS”: ANOTHER LAYER OF RESPONSIBILITY AND ISSUES TO CONSIDER
Cases relating to the wrongful sharing or disclosure of embargoed judgment have become a surprisingly common feature of litigation in recent times. Here we look at another High Court decision where this has happened. The judge states that there are…
BITCOINS IN THE TIP: DEFENDANT COUNCIL GRANTED SUMMARY JUDGMENT: CLAIMANT’S ARGUMENT ON LIMITATION DESCRIBED AS “DESPERATE”
In Howells v Newport City Council [2025] EWHC 22 (Ch) HHJ Keyser KC granted summary judgment to the defendant council in an unusual case. The claimant was seeking to recover a computer hard drive which had been put in the…
SECOND ACTION STRUCK OUT AS AN ABUSE OF PROCESS: HIDING AN INTENTION TO START FRESH PROCEEDINGS IS A HIGHLY DANGEROUS STRATEGY
In BCLI v Commissioner of the Police for the Metropolis [2024] EWHC 3018 (KB) HHJ Karen Walden-Smith (sitting as a Judge of the High Court) struck out a claimant’s second action against the defendant police force. The action failed because,…
BOTH THE GENERAL DENTAL COUNCIL AND STOCKPORT BOROUGH COUNCIL IN CONTEMPT OF COURT: THE UNLAWFUL DISCLOSURE OF DOCUMENTS CONSIDERED
In General Dental Council v KK & Anor [2024] EWHC 3053 (Fam) Mrs Justice Knowles considered a case where documents in the family court had been unlawfully disclosed to the General Dental Council. The judge commented that there had been…
STRIKING OUT FOR DELAY: THE DANGERS FOR A COUNTERCLAIMING DEFENDANT IN LETTING SLEEPING DOGS LIE
In Western Avenue Properties Ltd & Anor v SONI & Anor [2024] EWHC 2124 (KB) Master Davison struck out a counterclaim on the grounds of delay. The claim had already been struck out for delay. In these circumstances the principles…
THE NEED FOR COURT APPROVAL IN A FATAL ACCIDENT CASE INVOLVING CHILDREN: SUBSEQUENT ACTION FOR PERSONAL INJURY IS NOT AN ABUSE OF PROCESS
The judgment of Mr Justice Pepperall in Bayless & Ors v Norfolk and Norwich University Hospitals NHS Foundation Trust [2023] EWHC 2986 (KB) provides a warning, to both claimants and defendants, that offers under the Fatal Accidents Act, that involve…
A SECOND ACTION ON A DIFFERENT ISSUE TO THE FIRST SHOULD NOT HAVE BEEN STRUCK OUT: COURT OF APPEAL NOT TOO KEEN ON “SHADOW BOXING” IN CIVIL LITIGATION
In Orji & Anor v Nagra & Anor [2023] EWCA Civ 1289 the Court of Appeal overturned a decision that an action should be struck out as an abuse of process. The Court rejected the defendant’s contention that the action…
CLAIMANT’S APPLICATION FOR PERMISSION TO CONTINUE WITH THIRD SET OF PROCEEDINGS REFUSED: CPR 38.7 CONSIDERED IN DETAIL
In Danielewicz v Cannon & Anor [2023] EWHC 948 (KB) Master Thornett refused the claimant’s application for an order under CPR 38.7. The claimant had issued proceedings twice before, but discontinued those actions. The judgment contains a detailed consideration of…
HALLOWEEN FOR LAWYERS: SCARY THINGS: RESURRECTING NIGHTMARES FROM THE PAST
Halloween may, and should, be more muted this year. I had planned to write a post on delays in the civil courts, which can be really scary. I will save this from another date. Instead I have resurrected contributions from…
A SECOND APPEAL IN COMMITTAL PROCEEDINGS WAS AN ABUSE OF PROCESS, AND DISMISSED FOR THAT REASON
In Nambiar v Solitair Ltd [2022] EWCA Civ 1135 the Court of Appeal held that an appeal against a committal order should be struck out as an abuse of process. Prior to sentencing the appellant had issued an earlier, identical,…
COURT OF APPEAL OVERTURNS DECISION TO STRIKE OUT “UNMANAGEABLE” COURT PROCEEDINGS
In Municipio De Mariana & Ors v BHP Group (UK) Ltd & Anor [2022] EWCA Civ 951 the Court of Appeal overturned a decision to strike out a claim. The Court doubted whether an action could ever be described…
ACTION STRUCK OUT WHEN CLAIMANT GIVES WRONG ADDRESS ON THE CLAIM FORM
I am grateful to solicitor Hamish Cameron Blackie for sending me a copy of the judgment of HHJ Bloom in Conlon -v- Ringway Infrastructure Services Ltd (County Court at Luton, 2nd December 2021) where the judge struck out an action…
CASE STRUCK OUT DUE TO CLAIMANT’S INACTIVITY: YOU CAN’T “WAREHOUSE” A COURT ACTION
In Alfozan v Quastel Midgen LLP [2022] EWHC 66 (Comm) HHJ Pearce (sitting as a High Court judge) struck out an action on the grounds of the claimant’s delay. The case had been “warehoused” and the claimant had not adduced…
THE DANGEROUS USE OF “PRECEDENTS”: WHEN 28 DIVORCE PETITIONS MAKE IDENTICAL ALLEGATIONS THEN SOMETHING IS NOT QUITE RIGHT..
The judgment of Mr Justice Moor in Yorston & Ors, Re (Matrimonial Causes Act 1973: Improper Petitions) [2021] EWFC 80 makes interesting reading. The judge was considering a referral from a court which found that 28 divorce petitions, based on…
AN EXTRAORDINARY CASE: DRAFT JUDGMENTS ARE SACROSANCT: ALLEGATIONS OF DISCLOSURE, AND OF “JUDGE’S OFFICE” LEAKING LIKE A SIEVE WERE TOTALLY MISFOUNDED
The judgment in Optis Cellular Technology Inc & Anor v Apple Retail UK Ltd & Ors [2021] EWHC 2694 (Pat) is one of the most extraordinary I have read. It concerns the important principle that draft judgments sent out by…
DELAY IN PURSUING PROCEEDINGS IS AN ABUSE OF PROCESS: LOCAL AUTHORITY’S INSOUCIENCE A CAUSE FOR CONCERN
In London Borough of Havering & Ors v Persons Unknown & Ors [2021] EWHC 2648 (QB) Mr Justice Nicklin had some clear warnings to give in relation to cases where local authorities had failed to pursue cases promptly after obtaining…
CLAIMANT NOT ALLOWED TO PURSUE POINTLESS COMMITTAL PROCEEDINGS: “THE DISPROPORTIONATE PURSUIT OF POINTLESS LITIGATION IS AN ABUSE”
In Pharmagona Ltd v Taheri & Anor [2021] EWHC 2537 (Ch) Mr Justice Snowden refused an application by a claimant to issue an application for committal. A breach, if established, would be of the most technical kind. Further the defendants…
PERSONAL INJURY ACTION BROUGHT AFTER EMPLOYMENT TRIBUNAL SETTLEMENT NOT AN ABUSE OF PROCESS: THE DEFENDANT HAS GOT WHAT IT SIGNED UP TO…
In Farnham-Oliver v RM Educational Resources Ltd [2021] EWHC 2418 (QB) Master Dagnall rejected an argument that personal injury proceedings, brought after employment proceedings had been settled, were an abuse of process. The settlement agreement had specifically stated that it…
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…
LYING IN A WITNESS STATEMENTS PASSES THE CUSTODY THRESHOLD: WHEN A PARTY ASSERTED THEY DID NOT KNOW A WITNESS
In Axa Insurance UK Plc v Reid (Rev 1) [2021] EWHC 993 (QB) Mrs Justice Eady found that telling lies in a witness statement in a personal injury case passed the custody threshold. A claimant in a personal injury, who…
WHEN JUDGE READS A DRAFT STATEMENT AND A FINAL STATEMENT (& THERE ARE SOME IMPORTANT DIFFERENCES): LITIGANT REFUSED PERMISSION TO RELY ON EVIDENCE THAT COULD HAVE BEEN BEFORE THE COURT AT THE ORIGINAL HEARING
The judgment of Mr Justice Francis in Brack v Brack [2020] EWHC 2142 (Fam) is an example of a case where the judge has the opportunity to see a draft statement and a final statement. The judge struck out an…
THE TORT OF “BRINGING PROCEEDINGS FOR AN IMPROPER PURPOSE”: MAY STILL BE ALIVE, BUT NOT VERY WELL…
The judgment of Andrew Lenon QC in Kings Security Systems Ltd v King & Anor [2021] EWHC 325 (Ch) contains a detailed consideration of the tort of “bringing proceedings for an improper purpose”. This tort (may well) still exist, however…
USING PART 8 PROCEEDINGS INSTEAD OF APPEALING IS AN ABUSE OF PROCESS: A TAXING ISSUE OF SOME INTEREST
In Revenue And Customs v MCX Dunlin (UK) Ltd [2021] EWCA Civ 186 the Court of Appeal held that the use of Part 8 proceedings, rather than a statutory route of appeal was an abuse of process. “… it seems…
THE CORRECT COURT FEE WHEN ADDITIONAL PARTIES ARE JOINED INTO AN ACTION: NOT £55 BUT £10,000 (OH, AND YOU CAN’T RELY ON WHAT THE COURT TOLD YOU…)
There are not many cases where a judge is asked to determine what the appropriate court fee should be. However this is precisely what occurred in the judgment of HHJ Pearce in Walayat & Ors v Berkeley Solicitors Ltd [2021]…
STRIKING OUT A MULTI-PARTY CASE AS AN ABUSE OF PROCESS: WHEN CASE MANAGEMENT IS “AKIN TO TRYING TO BUILD A HOUSE OF CARDS IN A WIND TUNNEL”
Returning to the substantive issue in the judgment of Turner J in Município De Mariana & Ors v BHP Group Plc & Anor [2020] EWHC 2930 (TCC). The judge struck out the claims of 202,600 claimants on the grounds that…
CASE WOULD NOT HAVE BEEN STRUCK OUT BECAUSE OF THE ABSENCE OF A LETTER BEFORE ACTION AND INCORRECT USE OF THE PART 8 PROCEDURE
In Halal Meat Sellers Committee Ltd & Anor v HMC (UK) Ltd [2020] EWHC 2190 (Comm) the court struck out the claimants’ claim as an abuse of process. It is interesting to note that the court indicated that there were…
USING RTA PROTOCOL AND PART 8 PROCEDURE INAPPROPRIATELY DID NOT LEAD TO ACTION BEING STRUCK OUT: COURT OF APPEAL DECISION TODAY
The Court of Appeal today gave judgment in Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015 and overturned the decision to strike out an action because it had been issued inappropriately using the portal and Part 8…
HIGH COURT UPHOLDS DECISION TO STRIKE OUT CLAIMANT’S PERSONAL INJURY ACTION (AND CLAIMANT HAS TO PAY THE COSTS AS WELL)
In Akay v Newcastle University [2020] EWHC 1669 (QB) Mr Justice Lavender upheld an earlier decision that a personal injury action be struck out as an abuse of process. “If it was to be alleged that the judge failed…
CLAIMANT’S HUMAN RIGHTS CLAIM FOR LOSS OF CHERISHED NUMBER PLATES NOT STRUCK OUT:
I am grateful to solicitor Ian Bailey from PGB Gitlin Baker for sending me a copy of the decision of HHJ Roberts in Phillips -v- Secretary of State for Transport. (County Court at Central London 24/02/2020 – a copy of…
EXPERT’S CONDUCT DID NOT LEAD TO EVIDENCE BEING DISALLOWED: CLAIMANT’S CASE REMAINS ON TRACK
In Blackpool Borough Council v Volkerfitzpatrick Ltd and Range Roofing and Cladding Ltd & Ors [2020] EWHC 387 (TCC) HHJ Davies (sitting as a High Court judge) carried out a detailed consideration of the conduct of an expert when considering,…
COURT OF APPEAL DECISION TODAY: “WAREHOUSING” A CLAIM IS NOT AN ALWAYS ABUSE OF PROCESS (AND SHOULD NOT HAVE BEEN STRUCK OUT IN ANY EVENT)
In the judgment today in Alibrahim v Asturion Fondation [2020] EWCA Civ 32 the Court of Appeal confirmed that the court should not have struck out a claim that had been left dormant for a period. “Striking out was a…
CIVIL CONTEMPT: THE KANGAROO COURTS OF THE JUSTICE SYSTEM: THE DANGERS OF NOT FOLLOWING THE CORRECT PROCEDURE
In January this year I wrote “I am starting to lose count of the number of times the Court of Appeal has overturned decisions committing people to prison because of very basic and fundamental failures of procedure. It is as…
PART 8 PROCEDURE USED FOR CLAIM FOR £2.6 MILLION: THE CLAIMANT COMES TO GRIEF – IS ANYONE SURPRISED?
A common practice has occurred of issuing Part 8 proceedings under the MOJ Protocol and “parking” cases there for an extended period. This is an extremely dangerous practice. It is even more dangerous if the case that has been parked…
CASE NOT STRUCK OUT AFTER A FOUR YEAR DELAY: ALTERNATIVE “SANCTION” ORDERED INSTEAD
In Alba Exotic Fruit SH PK v MSC Mediterranean Shipping Company S.A. [2019] EWHC 1779 (Comm) HHJ Rawlings considered the appropriate sanction where there had been a four year delay by the claimant in pursuing an action. This case is…
A SECOND – IDENTICAL – APPLICATION WAS AN ABUSE OF PROCESS AND DISMISSED ON THAT GROUND ALONE
In Lambert v Forest of Dean District Council & Ors [2019] EWHC 1763 (Ch) ICC Judge Mullen rejected an application on the grounds that it was an abuse of process. An identical application had been made earlier and struck out…
ATTEMPTING TO OBTAIN EXTENSIONS OF TIME BY INFORMAL EMAIL : THE COURT TAKES A “SINGULARLY DIM VIEW” OF ATTEMPTS BY PARTIES TO CIRCUMVENT THE RULES (OH, AND BUNDLES AGAIN)
In Saint Benedict Land Trust Ltd v London Borough of Camden & Anor [2019] EWHC 1433 (Ch) (17 May 2019) Mr Justice Marcus Smith took a very dim view indeed of an attempt by a litigant to obtain an extension…
ATTEMPTS TO HARASS THE TRIAL JUDGE IS A CRIMINAL ACTIVITY: DIVISIONAL COURT DECISION
In Hilson v McCarthy [2019] EWHC 1110 (Admin) the Divisional Court confirmed that the appellants had harassed a judge unlawfully and amounted to harassment. It is an important case for anyone involved in the legal system. “in examining the nature…
PROVING THINGS 148: FUNDAMENTAL DISHONESTY PROVEN: NO NEED TO WAIT FOR ASSESSMENT OF DAMAGES
In Patel v Arriva Midlands Ltd & Anor [2019] EWHC 1216 (QB) HHJ Melissa Clarke (sitting as a High Court Judge) accepted the defendant’s argument that the claimant was fundamentally dishonest. The claim was struck out under Section 57 of…
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