The decision of the Court of Appeal in the cases of Aktas v Adepta and Dixie v British

Mark Henley e

Mark Henley

Polythene Industries Limited [2010] EWCA Civ 1170 sets a demanding test for Defendants seeking to strike out “second” Claim Forms where service of a “first” Claim Form has failed.

I appeared on 1.3.18 before District Judge Burrow who dismissed an application to strike out a “second” Claim Form as an abuse of process, on the basis that Aktas remains good law, even after the cases of Mitchell and Denton, and that the facts of the case before him could not be distinguished from Aktas, on the grounds explained below.

The Court of Appeal in Aktas and in Dixie held that in the negligent failure to serve a Claim Form in time for the purposes of CPR rules 7.5 and 7.6 was not, in itself, an abuse of process.

In particular, Rix LJ stated, at paragraph 90 of the judgment, that:

“A mere negligent failure to serve a Claim Form in time for the purposes of CPR rr 7.5/7.6 is not abuse of process.  It has never been held to be in any of the many cases cited to this Court, nor in my judgment should it be described as such, nor is it tantamount to such.  I say a, “mere” negligent failure to serve in time in order to distinguish a typical case of such failure to be found in these appeals and of any others in the reports from any more serious disregard of the rules; but not in order to be in any way dismissive of the proper strictness with which a failure to serve in time, without good reason for doing so, is and has been rigorously dealt with by the Courts, whether under the CPR or under the previous regime of the RSC.  However, 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 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 facts of this case were that the Claimant, two days before the expiry of the four month period from the filing of the N1 Claim Form pursuant to CPR 7.5, purported to serve Particulars of Claim for noise induced hearing loss against the Secretary of State for Business, Energy and Industrial Strategy (“the Secretary of State”) directly on the Secretary of State’s government department, and not on the Treasury Solicitors, contrary to the rules for service on government departments pursuant to CPR 6.10.  At the invitation of the solicitors acting for the Secretary of State a Notice of Discontinuance was served in respect of the Claimant’s claim against the Secretary of State (although a claim against an additional, Second, Defendant continued).  The Claimant then filed a “second” Claim Form, in identical terms, against the Secretary of State, which was correctly served, and sought to have this claim consolidated with the original claim, which proceeded against the other Defendant.  The Secretary of State made an application seeking the striking out of the “second” claim, as an abuse of process.

District Judge Burrow found that the facts of this case could not be properly distinguished from Aktas, and that paragraph 90 of that judgment, by Rix LJ applied to this case.

The District Judge found that the facts of Aktas and of Dixie, which involved attempting to serve late, in breach period set by CPR 7.5, could not be distinguished form the facts of this case, which involved a failure to effect any service at all which complied with CPR 6.10.

The District Judge found that the failure of the Claimant’s solicitors to comply with CPR 6.10 as regards to service amounted to a single negligent failure, and that there was no intentional or contumelious default, or any wholesale disregard of the rules, as required by Aktas to justify a finding of abuse of process.

The District Judge found that the delay in this case by the Claimant’s solicitors (who took 14 days after the correspondence inviting them to discontinue before serving a Notice of Discontinuance, and another nine days thereafter before filing a “second” N1 Claim Form, and another 35 days thereafter before serving Particulars of Claim in relation to the “second” claim on the Secretary of State) was not serious enough to amount to inordinate or inexcusable delay, as was required by Aktas to justify a finding of abuse of process.

The District Judge held that this was not a case in which the Claimant had to seek any relief from any sanction: but was a case in which the burden of proof was on the Defendant to persuade the Court to strike out the claim, and that this burden was a high one, which the Defendant could not meet.

This judgment illustrates the grave difficulties posed to Defendants seeking to strike out a “second” set of proceedings, where there has been a failure to serve in the original proceedings, by the clear case law in Aktas, which makes clear that something much more significant than the initial negligent failure to serve the original proceedings pursuant to CPR 7.5/7.6 is necessary in order to justify the striking out of subsequent proceedings as an abuse of process.

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