Westbrook Dolphin Square Ltd v Friends Provident Life and Pensions Ltd

A claimant who discontinues proceedings cannot ordinarily relitigate substantially the same dispute by issuing a fresh claim. Under CPR r. 38.7, permission is required where the later claim arises from the same or substantially the same facts. The court applies principles analogous to Henderson v Henderson abuse of process, with the burden on the claimant seeking permission. A statutory right to serve successive notices does not authorise successive claims on the same underlying facts where there has been no material change. A desire to obtain a more favourable valuation date is not sufficient justification for abandoning the first claim shortly before trial and requiring the parties and court to incur the costs of a second determination.

The claimant sought collective enfranchisement of Dolphin Square under the Leasehold Reform, Housing and Urban Development Act 1993. It had previously brought proceedings under section 22 concerning whether companies within its structure were qualifying tenants. The claim was discontinued shortly before trial after property values fell.

The claimant later served a fresh initial notice and issued substantially identical proceedings, relying on a new relevant date and a different method of executing the notice. The defendant applied to strike out the claim under CPR r. 3.4(2)(b) and (c), and contended that permission was required under CPR r. 38.7. The central issues were whether the claims arose from substantially the same facts, whether permission should be granted, and whether the fresh claim was an abuse of process.

1. CPR r. 38.7. The present claim arose from substantially the same facts as the discontinued claim. The relevant facts were those concerning the structure and whether the SPVs were qualifying tenants, not merely the dates and contents of the two initial notices. The different relevant dates, the absence of any material change in the structure, and the different method of execution did not alter the substance of the dispute.
2. The principles of finality in litigation and protection against being vexed twice in the same matter inform an application under CPR r. 38.7. The approach is analogous to Henderson v Henderson abuse of process, although the burden differs: under r. 38.7 the claimant must show why permission should be granted.
3. The Act permits successive initial notices after the prescribed interval where an earlier notice has been withdrawn or deemed withdrawn. That statutory facility does not contemplate successive claims seeking to establish the same entitlement, absent a material change in the facts relied upon. The claimant could have pursued the first claim to judgment and, if successful, withdrawn the notice and later served a fresh one for valuation purposes.
4. The fall in property values was a legitimate reason to withdraw the first initial notice and serve another after twelve months. It was not a legitimate reason to discontinue the claim concerning the underlying entitlement and relitigate that issue. The claimant had had a full opportunity to obtain a determination and both could and should have pursued the first claim to trial.
5. Permission was refused. The fresh proceedings also constituted an abuse of process because they imposed further irrecoverable costs, uncertainty and demands on scarce court resources. The claim was struck out.