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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Hall v The Ministry of Defence [2013] EWHC 4092 (QB) (19 December 2013) URL: http://www.bailii.org/ew/cases/EWHC/QB/2013/4092.html Cite as: [2013] EWHC 4092 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
CRAIG LEE HALL |
Claimant |
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- and - |
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THE MINISTRY OF DEFENCE |
Defendant |
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Mr A. Deakin (instructed by the Treasury Solicitor) for the Defendant
Hearing date: 12 December 2013
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Crown Copyright ©
Mr Justice Phillips :
The Relevant Legal Principles
"A question might arise, although it does not in either of these cases, as to whether a second action, in a Janov v Morris [1981] I WLR 1389 situation 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 the Arbuthnot Latham case [1998] I WLR 1426 Lord 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 in Leeson v Marsden 103 BMLR 49)."
"… all the cases make clear that for a matter to be an abuse of process, something more than a single negligent oversight in timely service is required: the various expressions which have been used are inordinate and inexcusable delay, intentional and contumelious default, or at least wholesale disregard of the rules".
The Deputy Master's Judgment
"Whether or not section 33 is relevant, the Claimant's indifference both to the court's order for a payment on account and the need to conduct himself promptly and fairly towards the Defendant in this action, rendered this action an abuse of process".
Application of the Relevant Test