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Davda and Another v Odyssey RE (London) Limited, Chancery Division, 30th June 2003

28 August 2003
The issues

Striking out – re-issued claim – abuse of process.

The facts

The Defendants made a claim on their insurance policy following flood damage to stock. Odyssey repudiated liability. Proceedings were begun against Odyssey in September 1998. They were automatically stayed under CPR Part 51 and the claim was subsequently struck out. Odyssey were unable to recover costs against the Claimants because the Limited Company run by the Claimants had been dissolved in March 1998.

Fresh proceedings were begun by the Claimants for the same loss and based on the same facts. This time the claim was brought in the name of the Directors of the Company that had been dissolved rather than the Company itself. Odyssey applied to strike the claim out for abuse of process.

The decision

1. This claim was distinguishable from a situation where the claim should have been brought at the same time as the earlier proceedings. In fact, it was a case, which should have been brought instead of the earlier proceedings.

2. Neither was it merely a case of a party trying to re-litigate a claim. Rather, this was an attempt to re-litigate the claim in the name of the correct parties.

Following Johnson v Gore Wood & Co 2002, the Court had to ask itself whether it was a proper use of the process of the Court to allow the Claimants to bring in their own names the same claim as had been brought incorrectly in the name of the Limited Company and whether special circumstances existed to justify the use of the Court’s resources the second time.

3. The factors militating against striking out were the importance of the public interest in access to the Court and the Claimant’s private interest in pursuing what they believed was a well-founded claim. However, those factors were overborne by the equal public interest in securing finality in litigation, the importance of the efficient use of the Court’s resources, and the prevention by the Court of a party being vexed twice in the same matter.

The fact that the essence of the claim was a good one did not amount to a sufficient special reason where the original claim had been struck out because of delay and non-compliance.

The second set of proceedings amounted to an abuse of process and Summary Judgment would be granted.

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