A recent unreported decision in Oxford County Court provides a useful refresher on some of the key case law on abuse of process, and we are grateful to Gordon Exall of Civil Litigation Brief for bringing the original case to our attention.
The claimant issued a personal injury claim against the Crown via the Damages Claims Portal (DCP). The claim form and all supporting documents were not served on the defendant via the DCP, but were instead served in a traditional, CPR-compliant fashion, via post.
Following receipt of the pleadings, the defendant argued that pursuant to (the recently updated) Practice Direction 51ZB, the DCP could not be used to issue proceedings against the Crown. The defendant consequently decided not to file an acknowledgement of service, and so judgment was duly requested and entered.
The defendant promptly applied to set aside the judgment. In doing so it also argued that the court did not have jurisdiction to try the claim, which it maintained should be struck out for abuse of process. Additionally, the defendant sought that the claimant lose its QOCS protection so that if successful, the defendant’s costs would need to be paid by the claimant himself.
Shortly after the defendant’s application was made, the claimant’s solicitors assessed its position and put forward what they (and indeed the court) considered to be a sensible and very reasonable compromise. They proposed that default judgment be set aside, and that the claimant’s claim simply continue as if it had been issued via CPR Part 7. However, the defendant dug in its heels and refused to back down, choosing instead to try to continue to strike out the claimant’s claim.
The matter was heard by DDJ Stonham, who had to consider whether the claimant’s actions did indeed amount to an abuse of process. As a starting point, DDJ Stonham revisited Lord Bingham’s definition of “abuse of process” in Attorney General v Barker [2000] 1 FLR 759, i.e. to be considered an abuse, the use of the court process must be in a way that is “significantly different from the ordinary and proper use of the court process”. With this in mind, the claimant’s counsel accepted that using the DCP to issue this particular claim may have been a “misuse” of process, but he argued that it did not amount to an “abuse”. Further, he averred that even if the court considered it an “abuse”, given the impact of this had been so minor, it should not warrant the claim being struck out (which was disproportionate).
The claimant’s counsel referred DDJ Stonham to further relevant case law, particularly that of Hannigan v Hannigan [2000] 2 F.C.R. 650; [2006] W.T.L.R. 597. Here there had been a procedural error following the introduction of the new CPR, but the claim had been allowed to continue and the Court of Appeal had determined that a claim should not be struck out if the procedural error is capable of being rectified under CPR 3.10.
The last case to be considered was Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015, in which the Court of Appeal held that striking out a claim for non-compliance with the Pre-Action Protocol was a disproportionate response. Interestingly, in this particular case the claimant’s failure to comply had actually amounted to an abuse of process.
Faced with this and weighing up the specific facts of the case, DDJ Stonham took a fairly hard line with the defendant.
Ultimately, he refused to declare that the court did not have, or should not exercise, jurisdiction pursuant to CPR 11. DDJ Stonham agreed with the claimant that issuing the claim form online via the DCP had in this case been a misuse of process only, and even if it had been an abuse the error had not prejudiced the parties and, in his view, it would not serve anyone, including the court, to strike out the claim form. Following Hannigan v Hannigan [2000] 2 F.C.R. 650; [2006] W.T.L.R. 597, DDJ Stonham provided that pursuant to CPR 3.10, the claim should continue as if it had been issued under CPR Part 7. This essentially mirrored the proposal put forward by the claimant following receipt of the defendant’s application, but which the defendant had promptly, and unreasonably, rejected.
Not only was the defendant unsuccessful with its arguments on abuse of process and strike out, but it also lost in respect of its request for costs. On this note, DDJ Stonham accepted that the defendant could have avoided attending the hearing and incurring such costs had it only consented to the claimant’s pragmatic proposal. Consequently, it was the defendant who ended up with a costs order.
It remains early days and parties are in many ways still navigating their way around the DCP. As such, it is inevitable that procedural errors will be made. However, this case should act as a stark reminder to all parties in litigation that opportunistic applications, or unreasonable stances generally, will not be tolerated by the court.
The moral of the story is that parties should be prepared to act reasonably and take a pragmatic approach. It is important that careful consideration is given before taking a point on, or taking advantage of, an opponent’s procedural error. This is particularly so where, as we have seen here, the procedural error is one that had minimal impact on the claim and can easily be rectified under CPR 3.10.
Sometimes it is better to keep your powder dry and simply focus on fighting the claim!
Caroline Cowan
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