0370 270 6000

Underwood v Harris

7 August 2000
The issues

Striking out as a res judicator – prejudice to the Defendant – effect of the Civil Procedure Rules on Henderson v Henderson

The facts

The Claimant brought an action against the Defendant for damage to his car following a road traffic accident. The Defendant had third party insurance. The insurers instructed solicitors to defend in respect of the insured losses. A defence was filed but no counter claim. The Defendant informed the Claimant that he wished to bring a claim for damages for personal injuries but no agreement was made that his claim would be included in the proceedings. The case was dealt with as a Small Claims case and liability was apportioned 75/25 in favour of the Claimant. The Defendant subsequently issued a second action for damages for personal injury. The Claimant applied for the claim to be struck out for abuse of process relying on Henderson v Henderson – religitation of matters which could or should have been raised in the first action.

The claim was struck out. The Claimant argued that: –

The overriding objective had to be applied. Previous authority had to be regarded in the light of the overriding objective. See Biguzzi v rank Leisure Plc. It would not be just to strike out the claim because: –

a) if the present claim had been included in the original proceedings it could not have been properly formulated

b) there was no attempt to go behind the findings as to liability in the earlier action

c) it was sensible to resolve the issue of liability whilst matters were reasonable fresh in the parties mind to deal with damages for personal injuries at a later date

d) there had been no prejudice cause say perhaps for the issuing in respect of two Court fees.

The decision

Henderson was still good law. However, part 1 of the new rules modified the effect of Henderson which was a procedural and not a substantive law case. There was no prejudice in the claim or none such as to compare with the prejudice to the Defendant. The rules required and allowed greater flexibility on procedural matters and on the facts of the case it was just to allow the Appeal

Focus on...

Legal updates

Court of Appeal confirms exclusive English jurisdiction clause in excess liability policies in Canadian pipeline dispute

On 10 June 2022 the Court of Appeal upheld an anti-suit injunction granted in favour of insurers by Mr Justice Jacobs in September 2021 restraining proceedings from being brought in Canada and enforcing the exclusive English jurisdiction clause in excess liability policies.



Payment Fraud landscape shaped by technology in 2021

Payment systems across Europe are under increased pressure to mitigate fraud risks and defend against persistent attacks from enablers using ever more sophisticated and malicious viruses and malware.


Legal updates

Gosden and another v Halliwell Landau and another [2021] EWHC 159 (Comm)

This claim addressed the question, of when the date for assessment of damages in cases of negligence should be determined and shows that when appropriate the Courts will depart from the default position.


Legal updates

Assessing the scope of employers liability – Chell v Tarmac

These were the opening remarks of Mr Justice Martin Spencer when handing down his Judgment in the recent case of Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613, the latest in a series of appeals dealing with the scope of vicarious liability.


The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up