Westbrook Dolphin Square Ltd v Friends Life Ltd

A statutory scheme that permits a further notice after a defined waiting period ordinarily carries the right to pursue the statutory court process on that notice. A general procedural rule governing discontinued claims should be construed consistently with that substantive right, unless its express terms require otherwise. Under the Leasehold Reform, Housing and Development Act, withdrawal or deemed withdrawal of an initial notice triggers a 12-month bar, not a one-strike rule. A similar later application is not, merely for that reason, an abuse of process.

Westbrook appealed against the decision of Arnold J, reported at [2011] EWHC 2302 (Ch), striking out its application under section 22 of the 1993 Act. The application followed the withdrawal of an earlier collective enfranchisement claim and the service of a fresh initial notice after the statutory 12-month period.

The central issues were whether the second application arose from the same or substantially the same facts for the purposes of CPR 38.7, whether the procedural rule was displaced by the statutory scheme, and whether the second application was an abuse of process.

1. Appeal allowed. The second application made under section 22 was reinstated.
2. The statutory scheme confers a substantive right to collective enfranchisement, rather than merely a right to serve an initial notice. Section 13(8) and (9), read with section 29, prevents a further notice for 12 months after withdrawal or deemed withdrawal, but plainly permits a further notice once that period has expired. Section 29 specifically contemplates that proceedings may be withdrawn.
3. The right to serve a successive notice necessarily carries the right to pursue a successive court application where the claim is disputed. A procedural rule should not be construed as cutting down that statutory right unless its express terms require that result. The reasoning in Safeway Stores plc v Tate [2001] QB 1120 supported and applied that approach: a general procedural rule could not override a specific statutory right.
4. The court did not decide whether the two applications arose from the same or substantially the same facts under CPR 38.7. It proceeded on the assumption that they did, because the statutory issue provided a satisfactory basis for disposing of the appeal. CPR 38.7 therefore had no application to the second proceedings in the circumstances, and the alternative conclusion was that permission should be granted.
5. The second application was not an abuse of process merely because a similar earlier application had been discontinued. The statutory waiting period, restrictions on further notices and recovery of the landlord’s costs provided the protection Parliament had chosen. The court also noted that an initial notice could be set aside, or its service restrained, where there was no genuine intention to acquire the freehold.
6. Lewison LJ agreed with the Master of the Rolls. Longmore LJ agreed with both judgments.

1. Court of Appeal (Civil Division): Allowed the appeal and reinstated the application made on 19 August 2010.
2. High Court of Justice, Chancery Division: Arnold J held that permission was required under CPR 38.7 and that permission should be refused because the second application was an abuse of process: [2011] EWHC 2302 (Ch).