Awan & Ors v EMW Law & Anor
[2023] EWHC 3514 (KB)
Tomasz Danielewicz v Jessica Cannon & Anor.
26 April 2023
[2023] EWHC 948 (KB)
High Court
Someone got hurt in 2015 and tried to sue three times. Each time, their lawyer messed up. The judge said, 'Enough! You've had your chances, and you haven't explained why you kept messing up. Case dismissed!'
Key Facts
- •Claimant (protected party) issued three claims for personal injuries sustained in a 2015 accident.
- •The first two claims were discontinued due to procedural errors related to service of documents and lack of permission under CPR 38.7.
- •The third claim seeks permission under CPR 38.7 to proceed.
- •The errors involved using an incorrect address for the defendant driver and failing to obtain court permission for subsequent claims after discontinuance.
- •The claimant's solicitors consistently failed to obtain the correct address for service despite prior indications of the correct address.
- •The claimant's solicitors' procedural errors were admitted, but explanations lacked detail.
Legal Principles
CPR 38.7: A claimant who discontinues a claim needs court permission to make another claim against the same defendant if (a) they discontinued after the defendant filed a defence; and (b) the other claim arises out of the same or substantially the same facts.
Civil Procedure Rules (CPR)
The court will not lightly shut out a party from pursuing a genuine claim unless abuse of process is clearly made out.
Western Power Distribution (South Wales) Plc v South West Water Limited [2020] EWHC 3747 (TCC) and Playboy Club London Limited v Banca Nazionale del Lavoro SPA [2018] EWCA Civ 2025
Sufficient explanation must be offered for re-introducing a claim previously abandoned. The circumstances of abandonment are relevant. The court considers the overriding objective, finality of litigation, and court resource usage.
Hague Plant Limited v Hague and Others [2014] EWCA Civ 1609, Captain Saulawa & Anor v Captain Abeyratne & Anor [2018] EWHC 2463 (Ch)
The court should consider the relevant conduct of the parties, prejudice, and harassment. It should look at the circumstances in which the discontinuance took place and the proper use of court resources.
Captain Saulawa & Anor v Captain Abeyratne & Anor [2018] EWHC 2463 (Ch)
CPR 6.9(3): The obligation to take reasonable steps to ascertain a defendant's address if the claimant believes the defendant no longer resides at the last known address.
Civil Procedure Rules (CPR)
A broad merits-based assessment, finality, and avoidance of abuse of process are relevant factors when considering permission under Pt 38.7, but are not the governing criteria.
Astley v Mid-Cheshire Hospitals NHS Foundation Trust [2022] EWHC 337 (QB)
Outcomes
The Application for permission to continue with the third claim was dismissed.
The repeated discontinuances of claims arising from the same cause of action, due to the claimant's solicitors' negligence and failure to provide sufficient explanation, constituted an abuse of process. The court emphasized the importance of explaining the errors and the lack of justification for the repeated litigation.
The third claim was struck out.
The court found the claimant's explanation for the repeated errors to be inadequate and insufficient to justify further engagement of court resources. The lack of explanation, despite acknowledging significant errors, weighed heavily against granting permission.