B v B

Where earlier proceedings have been stayed, later proceedings are not invariably an abuse of process. The court must consider the circumstances and the public interests in avoiding duplicated litigation, securing finality, and ensuring that undetermined claims are justly tried.

In deciding whether to lift an automatic stay, the overriding objective of determining cases justly is dominant. The court must assess the relevant factors, including the explanation for delay, responsibility for it, prejudice to each party, and the effect on the administration of justice. Delay within the limitation period, without irreparable prejudice to the defendant, does not by itself justify refusing relief.

The claimant alleged sexual abuse by her father. In 1997 she issued proceedings seeking injunctive relief and, because the procedure then required it, also claimed damages. The parties subsequently gave cross-undertakings, and the proceedings made no further progress.

In 2003, shortly before expiry of the limitation period, the claimant issued fresh proceedings for damages. The defendant applied to strike them out as abusive, contending that the 1997 proceedings still existed. The claimant alternatively sought to lift the stay automatically imposed on the earlier proceedings under Civil Procedure Rules 1998 Part 51. The county court refused both routes, and the circuit judge dismissed the appeal. The central issues were whether the fresh proceedings were abusive and, if so, whether the earlier stay should be lifted.

1. Appeal allowed. The fresh proceedings were permitted to continue and the matter was remitted to the Bristol County Court for a case management conference.
2. The rule against bringing two actions in respect of the same cause of action is founded on public policy, including avoidance of inconsistent decisions and finality in litigation. It is not absolute. As explained in Buckland v Palmer [1984] 1 WLR 1109, where the first action has not been determined, it may be revived and amended so that the whole claim can be adjudicated. The overriding concern is that undetermined claims should be justly tried.
3. Fresh proceedings were not invariably abusive merely because the earlier proceedings continued to exist or had been stayed under Civil Procedure Rules 1998 Part 51. The court in Overseas and Commercial Developments v Cox [2002] EWCA Civ 635 had lifted the stay; its comment that a second action would have real prospects of being struck out did not establish an absolute rule.
4. On the facts, the 1997 proceedings had effectively been disposed of by cross-undertakings and the damages claim had been included because of the procedural requirement then in force. The claimant’s solicitors had also acted reasonably in examining the court file and concluding that the claim would be treated as withdrawn if no notice of intent to proceed was served. The fresh proceedings were therefore not abusive.
5. Alternatively, if the fresh proceedings had been abusive, the stay should have been lifted. The district judge had applied the factors in Civil Procedure Rules 1998 Part 3.9 without giving sufficient weight to the overriding objective in rule 1.1(1), namely that cases should be determined justly. The delay was satisfactorily explained, was not attributable to fault, and caused no identified effect on a trial date. Both parties faced some prejudice, but the defendant had not shown irreparable prejudice. The claimant’s legal-aid status and the delay did not outweigh the need for determination.
6. For that reason, the orders striking out the 2003 proceedings and refusing to lift the stay were set aside. The defendant was ordered to pay the claimant’s costs of the relevant applications and appeals, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): Appeal allowed. The claimant’s 2003 proceedings were permitted to continue, and the case was remitted for a case management conference.
• Bristol County Court: District Judge Bird held that the 2003 proceedings were abusive and refused to lift the stay on the 1997 proceedings. His Honour Judge Bursell QC dismissed the appeal.