Pickthall v Hill Dickinson Llp & Anor

A person who knowingly begins proceedings on a cause of action vested in someone else abuses the court’s process. An intention or reasonable prospect of acquiring the cause of action later does not legitimise the proceedings, particularly where they were issued to avoid expiry of a statutory limitation period.

Although a subsequent assignment may ordinarily be pleaded by amendment, permission should be refused where amendment would reward the abuse inherent in knowingly commencing proceedings without title to sue. The position may differ where the claimant is genuinely uncertain or unaware that the cause of action belongs to another person.

The claimant brought negligence and breach of contract proceedings against his former solicitors shortly before the limitation period expired. He knew that the cause of action belonged to the Official Receiver following his bankruptcy, but hoped to obtain an assignment. The assignment was completed after expiry of the limitation period.

HH Judge Waksman QC held that the assigned claim was statute-barred and that the assignment had to be pleaded. He nevertheless held that commencing the proceedings was not an abuse and permitted amendment because the claimant had always intended to pursue the claim.

The solicitors appealed on whether the proceedings were an abuse of process and whether amendment should have been permitted.

Appeal allowed unanimously. Mr Justice Mann gave the judgment, with which Lord Justice Thomas and Lord Justice Laws agreed.

1. A person who begins proceedings knowing that the asserted cause of action is vested in someone else ordinarily abuses the court’s process. Even if every pleaded fact and legal contention were established, that person would fail because he had no right to sue. Only the owner of the cause of action, or someone with an appropriate interest in the proceedings, may properly assert it.

2. The position may differ where a claimant does not know, or is genuinely uncertain, whether the cause of action is vested in him. Until title has been authoritatively determined, characterising such proceedings as abusive may be inappropriate. That qualification did not assist a claimant who knew that he lacked title.

3. An intention or realistic prospect of obtaining a later assignment does not prevent abuse. The claimant was asserting another person’s cause of action before that person had assigned it. Issuing proceedings to prevent an impending limitation defence aggravated the abuse because it sought unilaterally to avoid the period prescribed by Parliament. The proceedings were therefore a plain abuse and had to be struck out.

4. The assessment was an application of principle to simple facts, rather than the multi-factor balancing exercise considered in Aldi Stores Group Ltd v WSP Group plc [2008] 1 WLR 748. The usual appellate reluctance to interfere with a judge’s evaluative balancing therefore did not apply.

5. Existing authority showed that proceedings begun without an effective title may, as a practical matter, sometimes be amended after a later assignment, including where limitation has meanwhile expired. Smith v Henniker-Major & Co [2002] BCC 544 and its appeal, [2003] Ch 182, did not, however, address proceedings begun with knowledge that the claimant lacked the cause of action.

6. Permission to plead the later assignment was refused. Amendment would have rewarded rather than cured the abuse. The preliminary issues were answered by ordering that the claim be struck out as an abuse of process and that the proposed amendment be disallowed.

1. Court of Appeal (Civil Division): The appeal was allowed unanimously. The court held that the claim was an abuse of process, struck it out and refused permission to plead the subsequent assignment.
2. High Court, Chancery Division, Liverpool District Registry: HH Judge Waksman QC held that the assigned claim was statute-barred and that the assignment had to be pleaded. He found no abuse of process and permitted amendment. The limitation ruling and the need to plead the assignment were not challenged on appeal.