There are instances where the courts will permit claimants a second attempt at bringing a claim and will not strike the second claim out as an abuse of process. A recent case has analysed the position.

In Wahab v Khan and ors, the judge held that:

  • Where the claim or issue in dispute had already been adjudicated upon between the same parties in the earlier case, the second claim will generally be barred as being res judicata or issue estopped.
  • Where the claim or issue raised in the second claim is one that should and could have been raised in the earlier claim which has been adjudicated upon or settled, then again, the second claim will generally be barred as there needs to be finality in litigation. A party cannot keep going back to court for relief on the same issues.
  • Where there has been a procedural default or a want of prosecution in the first claim, that abuse may not be fatal to the second claim.
    • If the abuse is that a costs order in relation to the first claim has not been complied with, the court may stay the second claim pending compliance. It would be unfair for the defendant to have to meet the additional costs of a second claim where the costs of the first claim remain outstanding.
    • Where there has been inordinate and inexcusable delay leading to the striking out of the first claim, the abuse in bringing a second claim might be judged to be a disproportionate use of court resources. Generally some special reason is required to justify a second action in such cases.

The claimant's conduct in the earlier case, the reason for it being struck out, any disproportionate burden that might be imposed on the court's resources as well as the reason why the second claim has been made, need all to be balanced by the court in exercising its discretion.

In this case, there had been procedural delay and abuse, not an adjudication or compromise. There had been no disproportionate use of the court's resources in the first case and no duplication of hearings was likely in the second. Costs were unlikely to be duplicated by the defendant as the first action had become inactive very quickly. There had been a technical breach of the rules in the first case and no inordinate delay in bringing the second claim. Neither claim had been vexatious and there would be no unfair burden on the defendant if the second claim proceeded.

Leave to proceed with the second case was given, but the claim was stayed pending the payment of an outstanding costs order in the first claim and the payment of the defendant's costs of the first claim. If not paid, the claim would be struck out.

Things to consider

This is another useful judgment for lenders facing multiplicity of claims where the issues have been tried before, or should have been included in an earlier claim and weren't. It will also be useful for lenders with the benefit of outstanding costs orders in earlier proceedings which claimants are attempting to avoid.