Mr Dixie sustained an injury at work on 27 February 2005. On 22 February 2008 he issued a claim form. The particulars of claim and claim form were posted to the Defendant’s solicitors on 3 July 2008, outside of the four months the Civil Procedure Rules allow for service. On 13 August 2008 the claim was struck out for failing to serve the claim form in time, with costs awarded to the Defendant. On 29 August 2008 a second claim form was issued. The particulars of claim, served with the claim form by letter of 2 September 2008, requested that the court exercise its discretion to allow the claim to proceed under s.33 Limitation Act 1980. The Defendant made an application to strike out the second claim as an abuse of process.

Held The Defendant’s application was heard in Central London County Court by His Honour Judge Mitchell. He accepted that whether something was or was not an abuse of process was not a matter of discretion. Further, there was a long line of Court of Appeal authorities, which highlighted the importance of the time limit for service of a claim form and it could not have been the court’s intention in Horton v Sadler [2007] to make those decisions redundant. He also accepted that strike out for failing to serve a claim form in time was analogous to breach of a peremptory order and was therefore an abuse of process. Leeson v Marsden [2008] was wrongly decided and Horton v Sadler was distinguishable on the facts (the latter case relating to notification to the MIB).

The Judge was also clear that, in his opinion, claimants could not rely on the discretion afforded to the court by virtue of s.33 Limitation Act 1980, to put right the failure of their solicitors to serve the initial set of proceedings in time, notwithstanding that liability had already been admitted. He therefore held that the only appropriate conclusion he could reach was that the second set of proceedings should be struck out.

Comment This is a positive decision for defendants and their insurers and indicates that courts can be willing to take a strong line where there is procedural delay on the part of the claimant.

Kennedys acted for the Defendant in this case. We argued that it was an abuse of process for a claimant to seek to bring exactly the same claim again in subsequent proceedings following strike out of earlier proceedings. To allow such a claim to proceed would bring the administration of justice into disrespect and it could not be right that there be no sanction at all for failure to comply with the specific court rules regarding service of proceedings. The Judge agreed with our approach. He commented that he was at a loss to understand why, in the in post-Walkley era, claimants’ solicitors are still failing to issue and serve claim forms in time.

The Claimant is appealing the decision. Given its importance, His Honour Judge Mitchell had in fact already confirmed that in his view the issue should be considered by the Court of Appeal. It is anticipated that the appeal will be heard early next year.