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Aktas v Adepta : Dixie v British Polythene Industries Plc, Court of Appeal, 22 October 2010

1 November 2010
The issues

Striking out – failure to serve Claim Form within 4 months of issue – whether second action is an abuse of process – limitation.

The facts

Two Appeals were heard together, both involving the same point, namely whether a claim whose Claim Form has been issued toward the very end of the limitation period and had then been struck out owing to a failure to serve it in time, could be resurrected in a second action which invokes the discretionary provisions of Section 33 of the Limitation Act 1980. Both cases were personal injury cases in which liability had been admitted. In each case, the solicitors had failed to serve the Claim Form within the 4 months allowed by CPR 7.5(1). In the case of Aktas the Claim Form was set aside and in the case of Dixie, the Claim Form was struck out. In neither case were there other defaults on the part of the Claimant or their solicitors. The Defendants argued that where a first action had been commenced in these circumstances, it was an abuse of process to commence a second. For the Defendant therefore the issue of the discretion where a second claim was issued outside of limitation did not arise. The Claimant argued that after the decision of the House of Lords in Horton v Sadler, that was an inappropriate way to deal with matters of default.

The decision

There was nothing in the authorities to support the Defendant’s submission that a failure to serve a Claim Form in time was an abuse of process. It was nowhere in the authorities said to be. What was said was that the Rules were strict and would be strictly applied. The negligence of the Claimant’s solicitor would be no excuse. It was not a good reason for an extension of time, even where the extension was applied for in time. As to second actions, where the first had failed due to lack of timely service, the authorities said nothing that went beyond an explicit acceptance that if the Claimant, having lost the benefit of his first action was out of time to start a second action, then he had lost his claim. There was nothing in the cases to suggest that if there were still time to start a new action, it could not be done. The authorities were to the effect that the loss of a first action for reasons otherwise than on the merits was no bar to a second action within time, save where there had been conduct which could be described as an abuse of process. That would be the case, whether such conduct was intentional or contumelious or a want of prosecution or whole sale disregard of Rules of Court.

A mere negligent failure to serve a Claim Form in time for the purposes of CPR 7.5/6 was not an abuse of process. The word “mere” was used not to diminish the seriousness of the Rule with regard to service but to distinguish such cases from cases involving more serious disregard of the Rules. Parliament had enacted that personal injury claims should be treated in a special way with a shorter limitation period than the general run of claims, but with the benefit of a discretion to be found in Section 33 of the 1980 Limitation Act to displace the 3 year time limit. The teaching of Horton was that for these purposes it did not matter whether the claim in question was brought in an action for the first time, commenced outside the 3 year limit, or was brought outside that limit in a second action after the first action had failed, because, although commenced in time, the Claim Form was served too late or, indeed, never served.

To say therefore that a second action could never reach the Section 33 discretion because the mere bringing of it was an abuse of process was to ignore the will of Parliament. The question might arise, though it did not in either of these cases, as to whether a second action in a situation of real abuse, could be stopped in its tracks by being struck out or whether even so it would be necessary to filter that question through the overall Section 33 discretion. The answer was that in an appropriate case, the second action could be struck out for abuse of process without entering into the Section 33 discretion. The Courts were entitled to control access to them in a situation of real abuse, and logic suggested that if there was or had been abuse, which having been found, ought to disentitle a Claimant from proceeding with his claim, then the Courts were entitled in the exercise of their discretion to say so. If a second action, started within the limitation period could be struck out for abuse of process in the first action, then it ought to follow that a second action which was commenced out of time could also be struck out for the same reason. In Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd, Lord Woolf had appeared to suggest that the fact there had been abuse in the first action was not an automatic bar to the commencement of a second action, although “some special reason had to be identified to justify a second action being allowed to proceed”. In such cases, it might be necessary to consider the question of abuse of process as part and parcel of the “all the circumstances of the case” under Section 33.

Appeals allowed. In the case of Dixie, Section 33 discretion applied; in the case of Aktas, matter remitted to the Judge.

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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.

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