piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Limitation Periods and Abuse of Process

The Court of Appeal has recently attempted to bring some clarity to this area of the law which had become extremely complex.   The Historical Perspective The House of Lords in Horton -v- Sadler (2006) UKHL 27, overturned Walkley -v- Precision Forgings Ltd (1979) 1 W.L.R. 606, and held that s.33 of the Limitation Act 1980 gave a wide and unfettered discretion in relation to the second action to disapply the time limit of three years contained in s.11 of the Act, having regard to the degree to which the parties would be prejudiced and taking into account all circumstances. In Janov v Morris (1981) 1 W.L.R. 1389, the court found that delay in prosecuting an action could amount to an abuse where the default was "intentional and contumelious" or the delay had been "inordinate and inexcusable". This was not followed in Gardner v Southwark London Borough Council (No.2) (1996) 1 W.L.R. 561 (CA), which held: "...a plaintiff who for reasons of negligence, dilatoriness, lethargy or mistake fails to apply for a hearing date before the guillotine date and so suffers the consequences of Ord. 17, r. 11(9), cannot be treated as if he were guilty of wilful or contumacious disobedience" (my emphasis). In Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd (1998) 1 W.L.R. 1426 (CA), Lord Woolf held a "wholesale disregard of the rules is an abuse of process...". This found favour with Chadwick LJ in Securum Finance Ltd v Ashton (2001) Ch. 291 (CA), who held: "whether the claimant's wish to have a 'second bite of the cherry' outweighs the need to allot its own limited resources to other cases. The courts should now follow the guidance given by this court in the Arbuthnot Latham case. " Aldi Stores Ltd -v- WSP Group Plc (2007) EWCA Civ 1260; and Stuart -v- Goldberg Linde (2008) EWCA Civ 2 held that, although the decision whether to strike out a claim on the ground of abuse is ultimately a matter for the court's discretion, the finding of abuse was a judgment which was either right or wrong, albeit it involved an assessment of a large number of factors and might for that reason be hard for an appellate court to dislodge. The CPR introduced a stricter regime for compliance with court orders. May LJ in Vinos -v- Marks & Spencer Plc (2001) 3 All E.R. 784 (CA) and Godwin -v- Swindon BC (2001) EWCA 1478  held that there is nothing unjust in a system of limitation and parties who do not issue in time risk having their cases struck out.   The Present Case In Aktas -v- Adepta; Dixie -v- British Polythene Industries Plc [2010] EWCA Civ. 1170 (22/10/2010) the Court of Appeal (Rix LJ, Longmore LJ, Aikens LJ) specifically considered the question of when a failure to serve proceedings within the limitation period could by itself amount to an abuse of process. The court could find nothing to suggest that failure to serve in time is tantamount to abuse, nor in various other cases put forward by the defendants. Rix LJ, held that, even in this post-Horton era, the abuse of process point could succeed. He held: ·         A mere negligent failure to serve a claim form in time was not an abuse of process; it had never been held to be in any of the many cases cited to the court, nor in Rix LJ’s judgment should it be described as such, nor as being tantamount to such; ·         All the cases made clear that for a matter to be an abuse of process, something more than a single negligent oversight in timely service was required; the various expressions used are: inordinate and inexcusable delay / intentional and contumelious default /  wholesale disregard of the rules; ·         Abuse could not be assumed for failure to comply simply because the rules of service are strict; ·         Nor was misuse of court resources enough to turn such behaviour into an abuse; ·         Lateness in service in breach of the rules did not by itself amount to an abuse of process; ·         On the facts of the instant case, the breach did not prevent the court from exercising its s.33 discretion to allow the action to proceed.

No Human Rights Act duties in Fatal Accidents Act claims

In Morgan v Ministry of Justice [2010] EWHC 2248 QB the High Court has rejected an attempt to introduce Human Rights Act type duties into Fatal Accidents Act claims. The deceased claimant committed suicide whilst receiving treatment in the hospital wing of prison. The hospital wing was run by the NHS and not the Prison Service. The deceased’s estate brought a claim against the Prison Service under the Fatal Accidents Act. The estate argued that the Prison Service was subject to a non-delegable duty under the Human Rights Act to ensure that, whilst he was a prisoner of the State, reasonable care would be taken in respect of all aspects of the arrangements that were made for the deceased’s welfare. By that means, argued the estate, the Prison Service was liable for the NHS’ failure to carry out adequate assessments of the risk that the deceased would commit suicide. It was argued that it did not matter whether the medical staff were the servants or agents of the Prison Service: the non-delegable duty contended for made that issue irrelevant.  The High Court held that the Prison Service did not owe a duty of care either at common law or under the Human Rights Act in respect of the actions of NHS staff. It also held that the Crown Proceedings Act 1947 precluded claims against the Crown in respect of the actions of non-Crown bodies, and that the NHS was a non-Crown body.  

Lies, fraud, exaggeration and costs

Laws LJ suggested in Molloy v Shell UK Limited [2001] EWCA Civ 1272 that lying or grossly exaggerating claimants could be guilty of “a cynical and dishonest abuse of the court’s process” and questioned whether, when “faced with manipulation of the civil justice system on so grand a scale, the court once it knows the facts should entertain the claim at all save to make the claimant pay the defendant’s costs”. Since then, the Court of Appeal made clear in Shah v Wassim Ul-Haq [2009] EWCA Civ 542 that there was no general rule of law that the dishonest exaggeration of a genuine claim should necessarily result in the dismissal of the whole claim. Rather, if the claimant still manages to prove some loss, he will receive compensation for that.   But what about costs where a party has lied or exaggerated but been wholly or partly successful?     The starting point is that costs should follow the event. But this is not the end of the matter. The court can make a different order, having regard to all the circumstances. This specifically includes conduct before, as well as during the proceedings. Conduct includes the manner in which a party has pursued or defended his case or a particular allegation or issue, and notably whether there has been exaggeration – see CPR 44.3(4)-(5).   So the court has power to deprive a successful party of part or all of his costs – or even order that party to pay the other side’s costs – for reasons of conduct, including lying or exaggerating. The points that emerge from case law are as follows:-   1)     The court will start by looking at who’s “won”. 2)     In some cases, where a trial is all about exaggeration, the claimant can win “on paper”, and recover some money or beat a Part 36 offer, but the defendant can, in reality, be the winner and recover its costs (See Painting v University of Oxford [2005] EWCA Civ 161). 3)     Thereafter, the court will look at the matter in the round to see whether a different order should be made. 4)     The Court is entitled to mark its disapproval of lies by reducing the costs otherwise recoverable or even in a serious case ordering the successful party to pay the other side’s costs (See Widlake v BAA Ltd [2009] EWCA Civ 1256, v AXA and Direct Line [2009] EWCA Civ 1331). This is so even if the lies have not caused costs to increase. 5)     Often, costs will have increased because of the lies. For example exaggeration may well prevent a case from settling at an early stage, or lies might prolong a trial. Where this has been the effect, the court can make the party at fault pay for these increased costs (Painting, Widlake).