Aktas v Adepta (A Registered Charity)

A negligent failure to serve a claim form within the time required by the Civil Procedure Rules is dealt with strictly, but it is not, without more, an abuse of process. Abuse requires materially more serious conduct, such as intentional and contumelious default, inordinate and inexcusable delay, or wholesale disregard of the rules.

A personal-injury claimant whose first timely action fails for late service may bring a second action and seek the equitable discretion under section 33 of the Limitation Act 1980. The statutory discretion cannot be excluded by treating the mere service failure as abuse. The court must instead consider all the circumstances, particularly comparative prejudice.

These conjoined appeals concerned personal-injury claims in which liability had been admitted, but the claimants’ solicitors failed to serve protective claim forms in time. In each case, the first action consequently failed after the primary three-year limitation period had expired.

Mrs Aktas issued a second claim form after her first claim had been set aside. District Judge Dignan struck out the second action as an abuse of process. Mr Dixie also issued a second action after his first claim had been struck out. HHJ Mitchell struck it out as an abuse and, alternatively, declined to disapply the limitation period under section 33 of the Limitation Act 1980.

The central issue was whether a negligent failure to serve the first claim form could prevent a claimant from invoking section 33 in a second action.

1. Both appeals were allowed. Rix LJ, with whom Longmore and Aikens LJJ agreed, held that a mere negligent failure to serve a claim form in time is not an abuse of process. The service rules are rigorous and normally cause the first action to fail, but they do not convert an isolated oversight into abuse.

2. Conduct sufficient to amount to abuse requires something more serious, such as intentional and contumelious default, inordinate and inexcusable delay, or wholesale disregard of procedural rules. The claimants had committed no breach beyond the late service. The defendants knew of the claims, had admitted liability, and had not suffered the type of misuse of judicial process found in the authorities concerning abandoned or contumeliously conducted actions.

3. Horton v Sadler [2006] UKHL 23 governed the effect of section 33 of the Limitation Act 1980. It restored the broad statutory discretion in a second personal-injury action after a first action had failed procedurally. Treating late service alone as an abuse which barred recourse to section 33 would recreate the anomaly rejected in Walkley v Precision Forgings Ltd [1979] 1 WLR 606 and would defeat Parliament’s purpose.

4. In a genuine case of abuse, the court may strike out a second action without reaching section 33. That observation did not assist the defendants because these cases involved no such abuse.

5. Mrs Aktas’ case was remitted for determination of the section 33 discretion. In Mr Dixie’s case, the court exercised that discretion itself. BPI had early and detailed notice, had admitted liability, and had suffered no real forensic prejudice. The limitation defence was therefore a windfall, and the section 11 time bar was disapplied.

• Court of Appeal (Civil Division): Allowed both appeals in [2010] EWCA Civ 1170. It set aside the orders striking out the second actions. Mrs Aktas’ section 33 application was remitted. Mr Dixie obtained a direction disapplying section 11 of the Limitation Act 1980.

• Aktas proceedings: District Judge Dignan struck out the second action as an abuse of process. HHJ Tetlow referred the appeal to the Court of Appeal.

• Dixie proceedings: HHJ Mitchell struck out the second action as an abuse of process and, alternatively, refused relief under section 33 of the Limitation Act 1980.