England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2013

Mr Justice Phillips :

1. The Claimant appeals the Order of Deputy Master Eyre, dated 1 August 2013, striking out these proceedings as an abuse of process, permission to appeal having been granted by Oppenshaw J. on 9 October 2013
2. This is the second claim brought by the Claimant against the Defendant alleging negligence in the medical treatment he received between the 3 September 2007 and the 2 July 2008 in respect of injuries suffered whilst in the Army.
3. The claim form in the first proceedings ("the First Claim") was issued on 27 August 2010 but was not served by 28 April 2011, the date to which the Defendant had agreed to extend time for service (although that offer of an extension was not formally accepted). The Claimant applied for an extension of time on that date, and that application was treated as being made prior to expiry of time for service of the claim under CPR 7.6(2).
4. The Claimant's solicitors, however, did not inform the Defendant that an application had been made to extend time for service until 11 April 2012, almost a year later. Due to oversights on the part of the court, the application had not been heard by that date and was, in the event, listed for 30 July 2012. At that hearing Master Yoxall refused to extend time for service of the claim form and struck out the First Claim, ordering the Claimant to pay £3000 on account of the Defendant's costs pending a detailed assessment.
5. On 5 December 2012 the Claimant issued the claim form in these proceedings ("the Second Claim") and served them on 14 February 2013. Particulars of Claim were served on 1 March 2013. It is not disputed by the Claimant that the Second Claim is brought outside the applicable three year limitation period so that, assuming the Defendant takes the point, the Claimant will have to apply under s. 33 of the Limitation Act 1980 to disapply the limitation period in order for the claim to proceed.
6. The Defendant, however, takes a prior point, contending that the Second Claim is in any event an abuse of process given the history of the matter. The Defendant issued an application to strike out on that basis on 23 April 2013 and it was on that application that Deputy Master Eyre made the Order which is subject to this appeal.

The Relevant Legal Principles

7. The Court of Appeal in Aktas v Adepta [2011] QB 894 (CA) considered the circumstances in which a second claim would be considered an abuse of process where a first claim had failed because the claim form had not been served within the required period. After a comprehensive analysis, Rix LJ (with whom the other members of the Court agreed) concluded that a "mere" negligent failure to serve a claim form in time, resulting in the failure of the action, was not in itself an abuse of process. Since the House of Lords in Horton v Sadler [2007] 1 AC 307 had established that section 33 of the Limitation Act 1980 applied even where an earlier action had been issued within the limitation period and had failed by reason of late service, to say that a second action was necessarily an abuse of process would be to ignore the will of Parliament.
8. Whilst it is therefore clear that a second claim is not in itself an abuse because a first claim has not been served in time, the question arises as to whether a second claim can ever be an abuse of process so a claim can be struck out without the need to consider s. 33 and, if so, in what circumstances. Rix LJ went on to state at paragraph 98:

"A question might arise, although it does not in either of these cases, as to whether a second action, in a Janov v Morris [1981] I WLR 1389 situation of real abuse, could be stopped in its tracks by being struck out, or whether even so it would be necessary to filter that question through the overall section 33 discretion. In my judgment, in an appropriate case, the second action could be struck out for abuse of process without entering on the section 33 discretion. The courts are entitled to control access to them in a situation of real abuse, and logic suggests that if there is or has been abuse which, having been found, ought to disentitle a claimant from proceeding with his claim, then the courts are entitled, in the exercise of their discretion, to say so. Such an action would be struck out for abuse of process, and the section 33 issue, which is an issue in that action, would never be reached. If a second action which is started within the limitation period can be struck out for abuse of process in the first action, it ought to follow that a second action which is commenced out of time can also be struck out in limine for the same reason. However, in the Arbuthnot Latham case [1998] I WLR 1426 Lord Wolf MR seems to suggest that the fact that there has been abuse in the first action is not an automatic bar to the commencement of a second action, although "some special reason has to be identified to justify a second action being allowed to proceed": see p 1437A. If, therefore, despite the finding of abuse of process, the exercise of the court's discretion, whether to strike out the second action or not, becomes something which cannot be determined in the abstract, without considering the section 33 circumstances as a whole, then it might become necessary to consider the question of abuse of process as part and parcel of "all the circumstances of the case" under section 33 (as Cox J did in Leeson v Marsden 103 BMLR 49)."

9. Earlier in his Judgment Rix LJ had referred to the cases analysing the test for whether proceedings were an abuse of process, including Janov v. Morris, stating (paragraph 90):

"… all the cases make clear that for a matter to be an abuse of process, something more than a single negligent oversight in timely service is required: the various expressions which have been used are inordinate and inexcusable delay, intentional and contumelious default, or at least wholesale disregard of the rules".

10. In the present case, the only breach of the rules upon which Mr Deakin, counsel for the Defendant, relies in relation to the First Claim is the failure to serve the first action within the time prescribed in CPR 7.5, which (as Aktas firmly establishes) does not in itself amount to an abuse of process. The only other breach relied upon by Mr Deakin is the failure of the Claimant to discharge the interim payment of £3,000 on account of costs of the First Claim, a payment which would almost certainly be the responsibility of his solicitors (or their insurers). In those circumstances it would be hard to argue that the Claimant was guilty of intentional and contumelious default or a wholesale disregard of the rules. It is therefore not surprising that Mr Deakin put the matter before Deputy Master Eyre on the basis that this was a case of inordinate and inexcusable delay.
11. It was common ground between the parties on this appeal that a long delay for which the Claimant can be held responsible is not in itself sufficient to amount to an inordinate and inexcusable delay justifying a strike-out for abuse of process: see Icebird Ltd v Winegardner [2009] UKPC 24 at paragraph 7. There must be something that transforms the delay into an abuse such as evidence that the Claimant had lost interest in the proceedings and had no intention of prosecuting them to Judgment.

The Deputy Master's Judgment

12. The Deputy Master set out the chronology of the two actions and then, after summarising the party's respective cases, set out is his views as to how a section 33 Application would be considered. He then concluded at paragraph 4(b):

"Whether or not section 33 is relevant, the Claimant's indifference both to the court's order for a payment on account and the need to conduct himself promptly and fairly towards the Defendant in this action, rendered this action an abuse of process".

13. Even adopting a liberal interpretation of the Deputy Master's conclusions and attempting to read them in the light of the test which both parties were inviting him to apply, it is difficult to ascertain that the right question was addressed. As far as the failure to make the payment on account is concerned, the Deputy Master did not consider whether, let alone determine, whether the breach was such that it could be described as intentional and contumelious or otherwise a wholesale disregard of the rules. In my judgment it could not amount to either. Further, the question of whether a clamant failed to act promptly and fairly towards the defendant (which may well be a matter for criticism and for sanction in appropriate cases) is significantly different to the question of whether the claimant was guilty of inordinate and inexcusable delay. It may be that the Deputy Master had the latter test in mind, but on the face of matters he considered whether the Claimant had failed to meet the high standards required of parties as regards promptness and fairness, not whether the Claimant had fallen so far below those standards so that the claim must be struck out.
14. In the circumstances I shall consider the matter afresh on the basis of whether the Claimant has been guilty of inordinate and inexcusable so as to have abused the process of the court.

Application of the Relevant Test

15. Looked at in isolation, the Second Claim is not open to serious criticism. It was commenced in December 2012, served in February 2013 and thereafter (following the service of Particulars of Claim) has been the subject of the present application and appeal. The Second Claim is plainly brought outside the limitation period, but the reasons for that delay can be subject to consideration in the context of a section 33 application in the usual way. Given that there is nothing about the Second Claim which is in itself abusive, the question must be whether the conduct of the First Claim was so wrongfully delayed that the issue of the Second Claim is in itself an abuse.
16. The First Claim was bought within the limitation period and an application was made for an extension of time for service of the claim form within the extended period or service to which the Defendant had agreed. The Defendant's primary complaint as to delay relates to the period from the issue of the application to the determination of that claim by Master Yoxall, a period of some 15 months. However, the application would have taken some months to determine even if progressed promptly and the delay in listing the hearing was due to court administration in any event. The Defendant asserts that, had it been told about the application by the Claimant's solicitors prior to April 2012, steps could have been taken to chase the court and obtain an earlier date. Whilst that may be true, the period of delay attributable to the Claimant's default is a matter of speculation and is in any event delay in disposing of the First Claim for failure to serve in time, not in progressing that claim.
17. The Defendant also relies upon the four and a half months which elapsed between the striking-out of the First Claim and the issue of the Second Claim. However, that period cannot be said to be an abuse in relation to the conduct of the First Claim, which had been terminated at that point, and cannot in my judgment be regarded as abusive delay going beyond what would be considered in a section 33 application in relation to the Second Claim. Therefore, whilst I fully recognise that there were delays in the overall progress of the Claimant's claim, I do not consider that such delays can be said to be inordinate and inexcusable such that the Second Claim should be struck out as an abuse of process rather than delays and conduct which fall to be considered within the context of section 33.
18. The failure of the Claimant to pay the £3,000 ordered to be paid on account of the costs of the First Claim is not, in my judgment, either in itself or in combination with the other delays in this case, sufficient to constitute the Second Claim an abuse of process. The Defendant is not without a remedy in relation to the Claimant's failure, being entitled to apply for a stay of the Second Claim pending payment or to take steps to enforce the order.
19. Even if I had taken the view that the Second Claim was an abuse of process, the question would still arise as to whether it was appropriate to strike-out the claim as a matter of discretion. Had I arrived at that point in this case, I would have directed that that issue be determined in the context of an overall consideration of section 33 of the Limitation Act, the question of abuse of process being one factor in all the circumstances.
20. I therefore allow the appeal and dismiss the application to strike-out for abuse of process. I should make it plain that I say nothing about the merits of any future application to disapply the limitation period under section 33 of the Limitation Act 1980.