Factual and Procedural Background
This case concerns an action commenced on 4 December 2015 ("the Second Action") by the Plaintiff against two defendants, Company A and Company B, for breach of contract related to the supply and installation of a central heating system at the Plaintiff's property in The City. The Plaintiff had previously commenced an earlier action ("the First Action") against Company B in 2010, which was struck out for failure to comply with an unless order made on 20 June 2011.
The Defendant appealed against the dismissal of its application to strike out the Second Action on the basis that it constituted an abuse of process due to the prior striking out of the First Action. The First Action involved procedural disputes over particulars of claim, compliance with court orders, and witness statements. The First Action was struck out after the Plaintiff failed to comply fully with an unless order requiring him to file and serve fully pleaded particulars of claim. The Plaintiff did not seek relief from sanctions or appeal that order.
In the Second Action, the Plaintiff is represented by legal counsel and has served detailed particulars of claim. The Defendant applied to strike out the Second Action on grounds including abuse of process. The application was heard by Judge [Last Name], who concluded the Second Action was not an abuse of process and dismissed the strike-out application. The Defendant now appeals that decision.
Legal Issues Presented
- Whether the Second Action constitutes an abuse of process due to the striking out of the First Action for failure to comply with an unless order.
- What is the correct legal approach to determining abuse of process in a second action following the striking out of a first action on procedural grounds.
- Whether the Plaintiff’s conduct in the First Action amounted to an abuse of process or was otherwise inexcusable.
- Whether the Defendant’s appeal court should interfere with the first instance judge’s discretion in refusing to strike out the Second Action.
Arguments of the Parties
Defendant's Arguments
- The first instance judge erred in law by applying the Aldi approach rather than the stricter Securum and Collins approach to abuse of process in cases of non-compliance with an unless order.
- Post-Jackson reforms and relevant Court of Appeal decisions require a very strict approach, demanding very special or wholly exceptional circumstances before allowing a second action to proceed.
- The Plaintiff’s conduct in the First Action involved multiple procedural failings amounting to wholesale disregard of court rules and orders, justifying strike out of the Second Action.
- The Plaintiff did not seek relief from sanctions or appeal the striking out of the First Action, which further supports the conclusion that the Second Action is an abuse of process.
- The Plaintiff’s status as a litigant in person is not a special reason to allow the Second Action.
Plaintiff's Arguments
- The first instance judge correctly applied the Aldi approach and properly balanced all relevant factors, concluding the Second Action is not an abuse of process.
- No rule or procedural provision prohibits a second action after a first has been struck out, provided costs are paid.
- The Plaintiff’s conduct in the First Action was neither abusive nor inexcusable, and special reasons exist to allow the Second Action to proceed.
- The Plaintiff made genuine efforts to comply with court orders and the failure to comply with the unless order was technical and not intentional.
- The failure to apply for relief from sanctions was due to lack of funds and emotional exhaustion, not deliberate disregard.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Securum Finance Ltd v Ashton [2001] 1 Ch 291 (CA) |
Second action struck out unless special reason shown where first action struck out for abuse of process. |
Guided the court to assess whether the first action’s striking out was an abuse of process and whether special reason justified the second action. |
| Johnson v Gore Wood [2000] UKHL 65, [2002] 2 AC 1 |
Abuse of process in relation to re-litigation of matters that could have been raised earlier; protects defendants from harassment. |
Distinguished the present case as not involving re-litigation of adjudicated matters but procedural failure. |
| Aldi Stores Limited v WSP Group plc [2007] EWCA Civ 1260 |
Balancing exercise to determine abuse of process in second actions; decision involves weighing multiple factors. |
Initially applied by first instance judge but court found this approach less appropriate than Securum/Collins in procedural failure cases. |
| Cranway Ltd v Playtech Ltd [2008] EWHC 550 (Pat) |
Court must consider reasons and stage of striking out when deciding if second action is abuse of process. |
Supported the view that striking out at an early stage without abuse of process does not bar second action. |
| Stuart v Goldberg Linde [2008] EWCA Civ 2 |
Second action abuse of process analysis follows Johnson/Aldi principles; appeal courts defer to first instance judge’s balancing. |
Used to assess appellate interference with first instance judge’s decision. |
| Aktas v Adepta [2010] EWCA Civ 1170 |
Clarifies distinction between abuse categories; procedural failures may or may not amount to abuse of process. |
Supported nuanced approach distinguishing intentional abuse from mere negligence in first action. |
| Elliott v Stobart Group [2015] EWCA Civ 449 |
Being a litigant in person is not an excuse for failing to comply with rules or orders. |
Referenced in assessing Plaintiff’s conduct and allowances for litigant in person status. |
| Collins v CPS Fuels Ltd [2001] EWCA Civ 1597 |
Second action after striking out of first for procedural default is presumptively abuse absent special reason. |
Key precedent post-Jackson reforms; court applied this stricter approach to procedural non-compliance cases. |
| Maritime Transport Ltd v Mills (2017) |
Applied Collins and Securum approach strictly, emphasizing proportionality and court resource efficiency. |
Used to illustrate strict approach to second actions after striking out for procedural failures. |
| Mitchell v News Group Newspapers [2013] EWCA Civ 1537 |
Emphasizes strict compliance with procedural rules and consequences for non-compliance. |
Supported argument for stricter approach post-Jackson reforms. |
| Denton v T H White Ltd [2014] EWCA Civ 906 |
Refined approach to relief from sanctions and procedural default consequences. |
Referenced in submissions advocating stricter enforcement of procedural compliance. |
Court's Reasoning and Analysis
The court undertook a detailed analysis of the applicable legal principles and case law concerning abuse of process in second actions following striking out of first actions for procedural failures. It identified two categories of abuse of process cases: one involving second actions after procedural striking out without adjudication on merits (Securum/Collins line), and another involving re-litigation of matters adjudicated or settled in the first action (Johnson/Aldi line).
The court concluded that the first category and its stricter approach, as exemplified by Securum and Collins, applies to cases of procedural failure such as the present. However, it recognized that post-Jackson reforms and recent case law require a more rigorous application of the "special reason" exception allowing second actions.
Applying this framework to the facts, the court found that the Plaintiff’s conduct in the First Action involved only one clear failure to comply with a court order (the unless order), which was technical and not intentional. The Plaintiff made genuine efforts to comply, including filing detailed particulars and witness statements, and was a litigant in person for most of the proceedings. The failure to apply for relief from sanctions was due to financial and emotional constraints rather than deliberate disregard.
The court rejected the Defendant’s assertion of a "whole series" of procedural failings, finding most alleged breaches to be technical or contested and noting lack of contemporaneous complaints from the Defendant or the court. The Plaintiff’s conduct was neither abusive nor inexcusable.
Even assuming the Aldi approach was correct, the first instance judge had properly balanced all relevant factors, including the use of court resources, the absence of trial on the First Action, and the Plaintiff’s circumstances, and concluded the Second Action was not an abuse of process. The appellate court found no basis to interfere with this discretion.
Holding and Implications
The court’s final decision is to DISMISS the Defendant’s appeal.
This means that the Second Action may proceed and is not struck out as an abuse of process. The judgment clarifies that a single procedural failure in a first action, especially by a litigant in person, does not automatically bar a second action absent exceptional circumstances. The decision does not establish new precedent but applies and reconciles existing authorities, emphasizing the need to balance efficient use of court resources with the overriding objective to do justice.