Craig Lee Hall v The Ministry of Defence

Hearing date: 12 December 2013

Approved Judgment

The Claimant appeals the Order of Deputy Master Eyre, dated 1 August 2013, striking out these proceedings as an abuse of process, permission to appeal having been granted by Oppenshaw J. on 9 October 2013

This is the second claim brought by the Claimant against the Defendant alleging negligence in the medical treatment he received between the 3 September 2007 and the 2 July 2008 in respect of injuries suffered whilst in the Army.

The claim form in the first proceedings ("the First Claim") was issued on 27 August 2010 but was not served by 28 April 2011, the date to which the Defendant had agreed to extend time for service (although that offer of an extension was not formally accepted). The Claimant applied for an extension of time on that date, and that application was treated as being made prior to expiry of time for service of the claim under CPR 7.6(2).

The Claimant's solicitors, however, did not inform the Defendant that an application had been made to extend time for service until 11 April 2012, almost a year later. Due to oversights on the part of the court, the application had not been heard by that date and was, in the event, listed for 30 July 2012. At that hearing Master Yoxall refused to extend time for service of the claim form and struck out the First Claim, ordering the Claimant to pay £3000 on account of the Defendant's costs pending a detailed assessment.

On 5 December 2012 the Claimant issued the claim form in these proceedings ("the Second Claim") and served them on 14 February 2013. Particulars of Claim were served on 1 March 2013. It is not disputed by the Claimant that the Second Claim is brought outside the applicable three year limitation period so that, assuming the Defendant takes the point, the Claimant will have to apply under s. 33 of the Limitation Act 1980 to disapply the limitation period in order for the claim to proceed.

The Defendant, however, takes a prior point, contending that the Second Claim is in any event an abuse of process given the history of the matter. The Defendant issued an application to strike out on that basis on 23 April 2013 and it was on that application that Deputy Master Eyre made the Order which is subject to this appeal.

The Relevant Legal Principles

The Court of Appeal in Aktas v Adepta [2011] QB 894 (CA) considered the circumstances in which a second claim would be considered an abuse of process where a first claim had failed because the claim form had not been served within the required period. After a comprehensive analysis, Rix LJ (with whom the other members of the Court agreed) concluded that a "mere" negligent failure to serve a claim form in time, resulting in the failure of the action, was not in itself an abuse of process. Since the House of Lords in Horton v Sadler [2007] 1 AC 307 had established that section 33 of the Limitation Act 1980 applied even where an earlier action had been issued within the limitation period and had failed by reason of late service, to say that a second action was necessarily an abuse of process would be to ignore the will of Parliament.

Whilst it is therefore clear that a second claim is not in itself an abuse because a first claim has not been served in time, the question arises as to whether a second claim can ever be an abuse of process so a claim can be struck out without the need to consider s. 33 and, if so, in what circumstances. Rix LJ went on to state at paragraph 98:

" A question might arise, although it does not in either of these cases, as to whether a second action, in aJanov v Morris [1981] I WLR 1389situation 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. In my judgment, in an appropriate case, the second action could be struck out for abuse of process without entering on the section 33 discretion. The courts are entitled to control access to them in a situation of real abuse, and logic suggests that if there is or has been abuse which, having been found, ought to disentitle a claimant from proceeding with his claim, then the courts are entitled, in the exercise of their discretion, to say so. Such an action would be struck out for abuse of process, and the section 33 issue, which is an issue in that action, would never be reached. If a second action which is started within the limitation period can be struck out for abuse of process in the first action, it ought to follow that a second action which is commenced out of time can also be struck out in limine for the same reason. However, in theArbuthnot Lathamcase [1998] I WLR 1426Lord Wolf MR seems to suggest that the fact that there has been abuse in the first action is not an automatic bar to the commencement of a second action, although "some special reason has to be identified to justify a second action being allowed to proceed": see p 1437A. If, therefore, despite the finding of abuse of process, the exercise of the court's discretion, whether to strike out the second action or not, becomes something which cannot be determined in the abstract, without considering the section 33 circumstances as a whole, then it might become necessary to consider the question of abuse of process as part and parcel of "all the circumstances of the case" under section 33 (as Cox J did inLeeson v Marsden 103 BMLR 49)."

Earlier in his Judgment Rix LJ had referred to the cases analysing the test for whether proceedings were an abuse of process, including Janov v. Morris, stating (paragraph 90):

"… all the cases make clear that for a matter to be an abuse of...