Watson & Anor v Irwin Mitchell (a firm)

A fresh action is an abuse of process where it seeks to relitigate issues already raised, or capable of being pursued, in existing proceedings. The court must make a broad, merits-based assessment of all the circumstances, considering both public and private interests. The fact that an earlier action is stayed, rather than finally determined, does not prevent the later action from being abusive. A claimant cannot use a new action to bypass procedural requirements governing the earlier proceedings.

The claimants had brought an earlier professional-negligence action against the defendant solicitors concerning their conduct of earlier cartel litigation. That action remained stayed after the claimants failed to produce an adequately concise and compliant pleading. The claimants then issued a second action raising allegations which, the defendant submitted, duplicated the first action.

The defendant applied to strike out the second action as an abuse of process and, alternatively, as a breach of an earlier order. The central issue was whether the second action contained anything genuinely new which could not be pursued in the existing proceedings.

1. Application granted. The second action was struck out as an abuse of the process of the court.
2. The applicable principle, derived from Johnson v Gore Wood & Co [2002] 2 AC 1, is a broad, merits-based judgment whether, in all the circumstances, the claimant is misusing the court process by raising an issue which could have been raised in earlier proceedings. There is no hard and fast rule that every claim which could have been raised earlier is abusive.
3. The fact that the first action remained stayed did not prevent the second action from being abusive. The first action remained in existence and could be pursued if the claimants complied with the requirements imposed for lifting the stay.
4. Comparison of the two pleadings showed that the second action repeated the principal allegations in the first, including the alleged failure to identify a limitation date, the allegation concerning Limitation Act 1980, the alleged failure to notify the claimants of a Part 36 offer, and allegations of dishonesty and improper conduct. The allegation that the claims had been deliberately devalued to procure withdrawal of public funding was not genuinely new: the substance of the allegation was already present in the earlier draft pleading.
5. Sinclair v British Telecommunications plc [2001] 1 WLR 38 provided a further example of a fresh action being abusive where it duplicated an earlier action. The alternative contention that issuing the second action breached Master Eyre’s order was rejected. The decision rested solely on abuse of process.