In a recent claim handled by BLM, the issue of abuse of process was considered by the court.
BLM had been instructed to act on behalf of a defendant in respect for a claim for noise induced hearing loss. In short, the claimant alleged that during the course of his employment with two employers between 1978 and 1999 he had been exposed to excessive levels of noise.
Whilst the allegations of noise exposure were typical of what one might expect to see in a claim of this nature, the procedural background was not. In February 2017 the claimant sought to bring what was the third set of proceedings against the defendant in respect of the same claim. In each set of proceedings the claim had been identically pleaded. This was not the second but the third bite at the cherry.
The first proceedings (issued in September 2015) were defective in that they were not served in time. A second set of proceedings were issued in February 2016 but the claimant failed to comply with the mandatory requirement of CPR 7.4 (1) (failure to serve particulars of claim in time). In relation to those proceedings, BLM had made a successful application to strike out the claim in February 2016 (with an application made by the claimant’s solicitors for relief from sanctions being refused). The District Judge at that time referred to the claimant’s solicitors having “abjectly failed to conduct the claim efficiently” and held that the court would not condone litigation being conducted in such a manner. The district judge also felt that the claimant’s solicitor’s failings in respect of the first set of proceedings were relevant circumstances to be taken into account when applying the three stage test enunciated in Denton v TH White 2014 EWCA Civ 906.
A third set of proceedings was then issued in February 2017. BLM opted to contest jurisdiction (a point which was not initially taken by the co-defendant’s solicitors). We followed this up with an application for strike out on the basis of an abuse of process.
The thrust of our arguments as to why the court should exercise its broad discretion to strike out the claim as an abuse of process were based on the following:
That it should exercise its discretion in a manner which gives effect to the overriding objective in CPR 1.1 (2) and in particular the need to take into account proportionality, enforcing compliance with the rules and allotting to the case an appropriate share of the Court’s resources;
The claim was a low value claim limited to £10,000 and this was the third set of proceedings. On proportionality alone the case should be struck out;
The availability of a remedy against the claimant’s solicitors was a factor that can be taken into account by the court when exercising its discretion to strike out.
It is acknowledged in Attorney General v. Barker (2000) 1 FLR 759, that there is no definition, (there was not then and still is not now), of exactly what constitutes an abuse of the court's process. It is not defined in any rule or practice direction. It has been explained within the Civil Procedure Rulesas "using that process for a purpose or in a way significantly different from its ordinary and proper use."
In BLM’s application we referred to the cases of Ashton v Securum 2000 EWCA Civ 197 and Aktas v Adepta 2010 EWCA Civ 1170, which gave consideration to the legal principles governing the exercise of discretion. In particular, where previous actions relating to the same claim had been struck out on the basis of procedural failings or misconduct and a claimant seeks to commence a second (or in this case, a third) action, the court should start from the assumption that some special reason has to be shown in order to allow the subsequent action to proceed.
The matter came before Crewe County Court in July 2017. The co-defendant made a late application to join in with our application.
In delivering his judgment, the District Judge had held that:
The court must deal with cases justly and at a proportionate cost and ensure the parties are on an equal footing;
Cases must be dealt with in a way that is proportionate to the amount of money involved, the importance of the case, the complexity of the issues and to the financial position of each party;
There is also a need to allot the appropriate share of the court's resources whilst taking into account the need to allot resources to other cases;
Further, as clearly has always been the case but is now enshrined within the overriding objective, there is the importance of enforcing compliance with the court's own rules, practice directions and orders;
The question whether a fresh action can be commenced is a matter for the discretion of the court when considering any application to strike out that action and any excuse given for the misconduct of the previous action;
In exercising its discretion as to whether to strike out the second action, the court should start with the assumption that if a party has had one action struck out through abuse of process, some special reason has to be identified to justify a second action being allowed to proceed;
In addressing any application to strike out a claim with the overriding objective of the Civil Procedure Rules, the court must consider whether the claimant's wish to have a second bite at the cherry outweighs the need to allot its own limited resources to other cases;
There has to be an understanding of an individual or an organisation which comes before the court that there is a responsibility for their own actions and their own conduct. They have to understand that there is no infinite recourse to the courts. The court will and does provide a structure and opportunity for individuals to bring those matters, but at all stages it has its duty and responsibility, not just to that party, but to all parties within that claim and, as is clear, a reflection and recognition of the impact and effect of its orders upon other users.
As such, the district judge granted BLM’s application to strike out the statement of the case as an abuse of the court's process. It was held that there had been no proportionality of approach by the claimant having regard to the amount of money involved, the importance of the case, the complexity issues and the financial position regarding the parties; there was no proportionality. The claimant had issued three sets of claims in relation to effectively the same issue.
What this means for you
It is clear from this case that the court will carry out a balancing act exercise when considering any application for strike out for abuse of process. Each case will turn on its own facts. Applications for abuse of process should therefore only be made when, having carried out such balancing exercise, it is plain and obvious that the claim is unsustainable.
It is important that any applications are made without delay and supported by evidence.
It should also be borne in mind that QOCS protection is automatically lost if the proceedings were an abuse of the court’s process. As such, QOCS should be carefully considered and employed where appropriate.