Abuse Of Process: Lessons Learnt
Key Contact: Katherine David
Author: Katherine David
Within a recent County Court case, the court took a robust decision and struck out a claim where it was determined that the issues in dispute had already been determined.
The Defendants brought an application to strike out the claim following similar issues being determined by the court a year prior, on 13 July 2022.
The Claimant argued that no strike out should be made as:
- No claim had previously been issued. An injunction application had been made but refused, and no formal claim had been put before the court.
- The claim had been discontinued as a notice of discontinuance had been emailed to the court and Defendants’ solicitors the day before the hearing.
- The merits of the claim had not been determined as there was no full claim in front of the court, no defence in front of the court and the court did not consider the merits of the claim within its order of dismissal.
In response, the Defendants argued that:
- The Claimant provided no evidence beyond the assertion that no claim had been issued to clarify the procedural position. The assertion was ultimately irrelevant as the court had made the order dismissing the claim, and it was that which the Claimant had to contend with, rather than what had happened prior to the order being made.
- Supreme Court authority from the case of R (on the application of Majera) (formerly SM (Rwanda)) v Secretary of State for the Home Department  SC 4 summarises the legal principles and makes it clear that “a court order must be obeyed until or unless it has been set aside or varied by the court” and that “there is a legal duty to obey a court order which has not been set aside.”
- The claim had not been discontinued, as under CPR 38.3 (1) a claimant must both file a notice of discontinuance with the court and must also serve a copy of it on every other party in the proceedings. Whilst the notice of discontinuance had been filed at court, it had not been served on the Defendants as there was no agreement for email service. Copying the Defendants’ solicitor into an email to court was therefore not valid service.
- An order dismissing the claim was sufficient to be considered a determination of the merits of the claim. By way of just one example, Lennon v Birmingham City Council  EWCA Civ 435 set out that an adjudication is not “limited to a trial on the merits” and that “what matters is that there has been an actual decision of a competent court dismissing the process.”
- In the alternative, there had been an abuse of process as the Claimant had failed to pay the outstanding fees of the Defendants of around c.£6,000 that were ordered on 13 July 2022. If the court was not minded to dismiss the claim, it was asked that the claim be stayed (put on pause) until these fees were paid. This was as per the case of Motorola Solutions Inc v Hytera Communications Corp Ltd  EWHC 1393 (Comm), which confirms that the court’s inherent jurisdiction to stay proceedings for non-payment of costs orders extends to costs orders made in previous proceedings, “where the proceedings relate to the same underlying subject matter”.
The court held that:
- The order of 13 July 2022 indicated that a claim had been issued. That order had not been set aside, appealed or varied and therefore must be obeyed.
- The notice of discontinuance was not valid as it had not been validly served on the Defendants’ solicitors.
- An order made by the court at a hearing, dismissing the application, was sufficient to be considered a determination of the merits of the claim.
- Even if the court was wrong that the order was sufficient to count as a determination of the merits, the failure to pay the court fee for over a year was in itself sufficient to amount to an abuse of process and the court was able to use its discretion to strike the claim out on these grounds alone.
On that basis, the court ordered that the claim be struck out in full and made a summary assessment for the Defendants’ costs of the claim.
The Claimant’s counsel requested permission to appeal the decision on the basis that there was no valid notice of discontinuance and that the 13 July 2022 decision was sufficient to amount to a decision on the merits. Permission to appeal was denied.
In terms of lessons learnt, the above shows:
- If a claim is ever dismissed, the correct approach is to apply to set aside or appeal that order. If this is not done, the claimant could lose their right to bring a future claim based on similar facts.
- It is very important that key documents such as a notice of discontinuance are validly served, for example by being sent by post to the other parties if permission to serve by email has not been given.
- A determination of the merits for the purposes of considering abuse of process is not limited to a trial on the merits. There need only be a decision of a competent court dismissing the process.
- Failing to pay fees in an abandoned claim with the same subject matter is sufficient by itself to amount to an abuse of process, which could be sufficient to strike out the claim.