Hurst v Leeming

A claim may be struck out as an abuse of process where it seeks to raise matters that formed part of, or could reasonably have been raised in, earlier litigation. The court must make a broad, merits-based assessment of all the circumstances, including the public interest in finality and the private interests of the parties. A claimant cannot avoid that rule by recasting an earlier complaint as a later allegation of professional negligence. Summary judgment is appropriate where the claim has no real prospect of success and there is no compelling reason for a trial. A claim may also be statute-barred where the claimant had the relevant knowledge outside the applicable limitation period.

The claimant, a solicitor, brought a negligence action against the defendant barrister concerning advice and advocacy in earlier partnership proceedings. The present claim alleged that the defendant should have advised that a schedule of accounting complaints was unsustainable and should not have pursued an appeal concerning an account.

The defendant applied to strike out the claim, alternatively for summary judgment, a stay pending payment of costs awarded in an earlier action, and an order restricting further proceedings without permission. The claimant sought summary judgment. The central issues were whether the claim was abusive because it substantially repeated an earlier action, whether it was time-barred, and whether it had any real prospect of success.

1. Applications and disposition. The claimant’s application for summary judgment failed. The defendant’s application succeeded: the claim was struck out as an abuse of the process of the court and, alternatively, summary judgment would have been entered because the claimant had no real prospect of success and there was no compelling reason for a trial.
2. Abuse of process. The court applied the broad, merits-based approach in Johnson v Gore Wood & Co. [2002] 2 AC 1. The question was whether, in all the circumstances, the claimant was misusing the court’s process by raising an issue that had been raised, or could and should have been raised, in earlier proceedings. The rule was not automatic merely because a matter could have been raised earlier. Here the first action already challenged the defendant’s conduct of the same appeal. The claimant accepted that he could have amended that action to allege the failure to give the advice now relied upon. Recasting the complaint did not avoid the abuse.
3. Limitation. The substance of the claim was statute-barred. The alleged failure to advise occurred in 1995 and the principal damage alleged was the loss of an opportunity to settle. The extended period under section 14A of the Limitation Act 1980 did not apply. At the latest, the claimant had the relevant knowledge when the Court of Appeal rejected the account argument in February 1997.
4. Merits. The schedule was an unparticularised list of headings and references to documents, most of which had already been explored at trial. The claim that advice about one aspect of one head of relief would have changed the claimant’s entire litigation strategy was fanciful. The court was satisfied that he would have followed the same course with the same consequences.
5. Further proceedings. If the claim had not been struck out, the court would have stayed it until payment of the £55,000 costs order from the earlier action, relying on its inherent jurisdiction if necessary. The claimant had consented to an order of the Ebert v Venvil [2000] Ch 484 type restricting further proceedings against the defendant without permission.