The Court of Appeal has today handed down its long-awaited judgment in the cases of Aktas v Adepta and Dixie v British Polythene Industries plc.

Kennedys was instructed by the Defendant in Dixie at first instance and on appeal. We argued that it was an abuse of process for the Claimant to seek to bring exactly the same claim again in subsequent proceedings following strike out of earlier proceedings, the Claimant having failed to serve his claim form within the four month period prescribed by CPR 7.5, which is a mandatory provision. To allow such a claim to proceed would, we argued, bring the administration of justice into disrepute and it should not be right that there would be no sanction at all for failure to comply with the specific and strict court rules regarding service of proceedings.

Background

The Claimant, an employee of British Polythene Industries plc (BPI) suffered an accident at work on 27 February 2005. Solicitors were instructed in August 2005 and liability was admitted by the Defendant’s insurers in October 2005. Disputes as to contributory negligence, causation and quantum ensued and the claim form was issued on 22 February 2008, five days prior to the expiration of the primary limitation period. The Claimant made no attempt to serve the claim form until 7 July 2008, more than two weeks after the expiration of the period for service. The Defendant successfully applied to strike out the proceedings on the basis that CPR 7.5 provided a maximum period of four months for service and there was, in this case, no power or reason to extend the time for service.

Two weeks later, relying on the same facts and causes of action, the Claimant issued a second set of proceedings. The Claimant acknowledged that these proceedings were outside the primary limitation period and requested that the Court exercise its discretion under s.33 of the Limitation Act. The Defendant applied to strike out the second set of proceedings as an abuse of process.

First instance decision

HHJ Mitchell concluded as follows:

  •  Following the robust approach to time limits taken in previous Court of Appeal decisions such as Vinos v Marks & Spencer plc [2000] and Anderton v Clwyd County Council [2002], the time limit for service of the claim form as provided for in the CPR was to be strictly observed.
  •  Cases of this nature were comparable to those in which proceedings had been struck out for breach of a peremptory order, where it is settled law that issuing a second set of proceedings would amount to an abuse of process.
  •  The operation of s.33 and pertinent case law, including the decision in Horton v Sadler [2006], focused on what was equitable as between the parties, not what amounted to an abuse of process as between a claimant and the court.

He therefore held that the only appropriate conclusion he could reach was that the second set of proceedings should be struck out.

The Claimant was granted leave to appeal to the Court of Appeal. The appeal was heard in March 2010.

Court of Appeal decision  

  •  Most importantly, the Court of Appeal accepted BPI's main point of principle that there could and should be the right for defendants to apply to strike out such claims on the basis that there had been an abuse of process, prior to and without recourse to s.33.
  •  However, the Court of Appeal indicated that, in order to be successful, a defendant would need to demonstrate conduct amounting to a real abuse of process. The Court of Appeal was not satisfied that a claimant’s failure to serve the proceedings in accordance with the CPR amounted to an abuse of process in itself. The Court indicated that in order to establish a real abuse of process a defendant would need to show that there had been “inordinate and inexcusable delay, intentional and contumelious default, or at least wholesale disregard of the rules” in the failure to serve or in some other aspect of the first action; not merely an oversight by the claimant’s solicitor.
  •  Consideration was given to whether increase/duplication of court resources necessitated by the additional claim could render such an abuse of process. However, this was rejected. The Court of Appeal highlighted that the alternative would be a negligence claim by the Claimant against his own solicitor. The Court concluded that such actions would result in an increased use of court resources in any event and would not be the preferable way to run the claim.
  •  On the facts of Dixie, an abuse of process was not established. The Court was not satisfied that the Claimant’s solicitor’s oversight in failing to serve the claim form on time was sufficient to amount to an abuse of process.
  •  The Court was not persuaded by the Defendant’s alternative arguments that the discretion under s.33 should not be exercised as such would effectively allow the Claimant to right his earlier procedural error. Horton was interpreted as implying that a claimant who had commenced a personal injury claim at the end of the primary limitation period, yet failed to serve in time resulting in that claim being struck out, is entitled to commence a second action on the same grounds and outside of the limitation period by virtue of s.33. The Court of Appeal concluded that defendants should not be allowed to benefit from a windfall of s.33 automatically being exercised in a defendant’s favour due to an error with service. If, however, there were real grounds for a defendant to object to s.33 being exercised in a claimant’s favour, there was nothing to preclude such points being taken in the second action.

The first instance decision was overturned and the Claimant’s second set of proceedings were remitted to the County Court for directions.

Comment

Although some claims are issued late yet are allowed to proceed under s.33, insurers need certainty that when they close their file and reserve in a claim after three years and four months in the case of adult claimants of full capacity, that that would be an end to it.

Practitioners on both sides have known ever since the advent of the CPR in 1999 that proceedings effectively have to be served within three years and four months from the date of the accident. CPR 7.5 says the claim form must be served within four months of it being issued. We sought to argue that matters should be left there. It is surprising that we still, after all these years, find claimants not serving within time, but we tried to establish that when they do, that should be that and any attempt to have a second bite of the cherry should be struck out.

Regrettably, in our view, although an element of clarification is achieved by this decision; it is now clear that failure to serve a claim form in accordance with the CPR provisions will not in itself amount to an abuse of process and prevent the claimant having a second stab. This will leave insurers in a situation where they will not know if the claim will come back to life. There is bound to be more litigation on the issue which is obviously unsatisfactory.

The decision does not sit comfortably with the wording of the CPR and the Courts’ previous robust approach to enforcing time limits for service. Whilst the judgment emphasised the need for strict enforcement of those time limits, arguably the effect of the judgment is to relax them further. Effectively, in cases where liability is admitted or the defendant cannot identify “forensic prejudice” (within Cain v Francis [2008] and McDonnell v Walker [2009]) there is now a licence for claimants to ignore the service provisions in the CPR and serve out of time. Defendants will no longer have the security of knowing that three years and four months after an accident they are able to close their file with a high degree of certainty that there would be no further matters to address. Further, there will now be little purpose in defendants seeking to strike out a claim for a procedural defect within the limitation period where a claimant still has time to bring a further claim, or even where such a claim would be outside the primary limitation period where there has been no real abuse.

We won on the important point of ensuring that defendants could still apply to strike out for abuse but the Court did not specify what conduct would be sufficient to amount to abuse that would be worthy of a strike out. Notwithstanding CPR 7.5 it is clear from the facts of Dixie that a mere short term negligent oversight on the part of the claimant’s solicitor resulting in late service will not be sufficient. However, parties will require clarity as to when such oversights will become inordinate and inexcusable and sufficient to constitute an abuse of process. Arguably the effect of the decision is, in these circumstances, to place the onus on defendants to prove an abuse of process where the circumstances have been caused by failings of the claimant, which is in our view unsatisfactory.