Summary of Recent Cases – Civil Procedure


A second action making claims similar to those made in an earlier action was an abuse of process where the first action had ultimately been struck out on the merits

Peter Abrahams v (1) Alex Begun (2) Levani Khundadze (3) Blix Ltd (4) Suncrest Ltd (5) Rock Dove Ltd (6) Barella Ltd (2012), QBD, 03/04/12

It was held that the particulars of claim mirrored those of the first action, so were an abuse of process unless there was proper justification for commencing the instant action. The first action was ultimately struck out on the merits. Consequently, the instant action was an abuse of process and the particulars of claim would be struck out and the claim dismissed.

In refusing an application to strike out a claim for damages for occupational asbestos exposure for abuse of process, a Master had not erred in concluding that alleged failings in the conduct of the claim by the late Claimant’s solicitor would not prejudice a fair trial of the issue of causation because of a clear diagnosis of asbestosis during the Claimant’s lifetime.

J Preston & Sons Ltd v Julie Hurst (Personal Representative of the Estate of Gordon Anderson, Deceased) [2012] EWHC 870 (QB), 03/04/12

It was held that the Master had correctly reasoned that none of the complaints could prejudice a fair trial because of the clear diagnosis of asbestosis in the deceased’s Claimant’s lifetime. Given that diagnosis, there was no need to rely on the deceased Claimant’s exposure history or on pathology samples. The appellant company had not adduced medical evidence to dispute the medical expert’s conclusions, or indicated any intention to have its own expert examine the deceased Claimant before he died, even when it became aware that his was a lung cancer case. The Master had been entitled to draw conclusions based on the medical expert’s evidence, consistent as they were with the view of the deceased Claimant’s doctors. There had been no abuse of process making a fair trial impossible.

When determining whether a previous compromise agreement to settle a PI claim could be set aside for want of capacity, the proper question was not whether the claimant had capacity to enter into that compromise but whether she had capacity to litigate 

Joanne Dunhill (By her Litigation Friend Paul Tasker) v Shaun Burgin [2012] EWCA Civ 397, 03/04/12

The central issue was whether a previous compromise agreement could be set aside for want of capacity. The judge had erred in treating the relevant transaction as the actual compromise negotiated outside court. The proper question was whether the claimant had the necessary capacity to conduct the proceedings or the capacity to litigate. Capacity to litigate involved the capacity to understand a large variety of issues that arose between deciding to litigate the claim up to the point of judgment. If a claimant was incapable of managing and administering her property and affairs but nonetheless brought a claim without having a litigation friend to conduct the proceedings on her behalf, any steps taken before she had a litigation friend would be of no effect. In the instant case, it was necessary to determine whether the litigation would have been conducted differently. With proper advice it was held that her claim would never have been advanced for the limited sums pleaded and if she had been recognised as a patient, the court would never have approved such a settlement.

June 1, 2012 · Editorial Team · Comments Closed
Posted in: Cases