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When can a Claimant be allowed a Second Bite at a Cherry? - Aidan Ellis, Temple Garden Chambers

23/10/18. Following the Jackson reforms, the renewed emphasis on efficiency and compliance with rules, practice directions and orders led to an increased number of claims being struck out. Those technical knockouts, however, would provide only temporary relief to defendants, if claimants could simply issue a second set of proceedings. In such circumstances, is a second set of proceedings vulnerable to strike out as an abuse of process or is it permissible to take a second bite of the cherry.

In Davies v Carillion Energy Services, the High Court was faced with just such a situation. The first action was struck out when the Claimant failed to comply with an unless order requiring him to particularise his claim. The failure was, on one view more culpable than an ordinary litigation mistake because the Claimant had responded to the unless order with a witness statement insisting that contrary to the order it was unnecessary for him to repeat what was already adequately set out in his Particulars of Claim. No application was made for relief from sanctions. The Claimant issued a second set of proceedings, which the Defendant sought to strike out as an abuse of process.

The High Court, on appeal, reviewed the authorities and concluded that where the first action was struck out as an abuse of process, the second action should be struck out save in “very unusual circumstances”. Where the first action was not struck out as an abuse of process, the Court may strike out the second action as an abuse of process but in the exercise of its discretion must consider the reasons for the original strike out. The second action is only likely to be abusive if the conduct of the first action was “inexcusable”. As a result of the Jackson reforms, more conduct may be regarded as “inexcusable” than under the old regime. However, a single breach of an unless order in the first action is not, of itself, a reason to conclude that the second action is abusive. On the facts, the second action was allowed to proceed.

Whilst this decision highlights the difficulty that claimants rightly face in launching a second action after a first action has been struck out as abusive, it also suggests that in the many other cases in which an action has been struck out for procedural reasons, a second action is likely to be allowed to proceed. Many Claimants may thus feel emboldened to launch second sets of proceedings; in personal injury claims even limitation is not necessarily a barrier, since the second proceedings may be accompanied by an application to disapply the primary limitation period.

It might be suggested that this outcome is inconsistent with the Jackson reforms. The reforms emphasised the need to comply with rules, orders and practice directions. The ultimate sanction for failing to comply is strike out. But, the sting is rather drawn from a strike out, if Claimants can simply re-issue a fresh set of proceedings (in personal injury cases, depending on the precise basis of the strike out, the Defendant may not even have the benefit of an enforceable costs order). More pressingly, the impact on Court resources and other cases would tend towards discouraging second actions; where the Courts are already stretched, it may be difficult to justify the allocation of resources to a second action where the first has failed for procedural reasons. For the moment, however, the decision in Davies suggests that Claimants should give serious consideration to launching fresh proceedings if struck out for failing to comply with directions.

Aidan Ellis
Temple Garden Chambers

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