Underwood v Harris

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

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.

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

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