Hall v The Ministry of Defence

A second claim is not automatically an abuse of process merely because an earlier claim failed through late service. A strike-out requires conduct going beyond a single negligent oversight, such as inordinate and inexcusable delay, intentional and contumelious default, wholesale disregard of the rules, or conduct showing that the claimant had lost interest in pursuing the claim. A long delay alone is insufficient. Where the second claim is out of time, the court may consider the abuse issue in the context of the discretion under Limitation Act 1980, section 33. Failure to pay costs ordered in the first claim does not, without more, make the second claim abusive where other enforcement remedies are available.

The claimant appealed against an order of Deputy Master Eyre dated 1 August 2013 striking out his negligence proceedings as an abuse of process. The claimant had brought an earlier claim concerning medical treatment received while serving in the Army. That claim was struck out after the claim form was not served within time and an extension was refused. The claimant then issued and served a second claim, which was outside the primary limitation period and would require an application under section 33 of the Limitation Act 1980.

The central issue was whether the history of the first claim, including delay and non-payment of £3,000 ordered on account of costs, justified striking out the second claim without consideration of section 33.

1. Appeal allowed. The application to strike out the second claim for abuse of process was dismissed.

2. Following Aktas v Adepta [2011] QB 894 (CA), the mere failure to serve a claim form within the prescribed period does not itself amount to abuse of process. A second claim may nevertheless be struck out in a case of real abuse, without reaching section 33, but the conduct must involve more than a single negligent oversight.

3. The relevant threshold may be expressed as inordinate and inexcusable delay, intentional and contumelious default, or wholesale disregard of the rules. A long delay for which the claimant is responsible is not enough by itself. There must be something transforming the delay into abuse, such as evidence that the claimant had lost interest in the proceedings and had no intention of prosecuting them to judgment, as recognised in Icebird Ltd v Winegardner [2009] UKPC 24.

4. The Deputy Master had applied the wrong question. Failure to act promptly and fairly towards a defendant is distinct from delay so serious that the claim must be struck out. The failure to pay the £3,000 costs payment was neither intentional and contumelious nor a wholesale disregard of the rules, and was insufficient alone or cumulatively with the delay to constitute abuse. The defendant could seek a stay or enforce the costs order.

5. The delays in this case did not reach the required threshold. The second claim itself was not abusive, and the delay in resolving the first claim was substantially affected by court administration. Even if abuse had been established, the discretion whether to strike out could have been considered with the section 33 circumstances. The judgment said nothing about the merits of any future section 33 application.

• High Court (Queen's Bench Division): On appeal from the order of Deputy Master Eyre dated 1 August 2013, Mr Justice Phillips allowed the appeal and dismissed the application to strike out the second claim for abuse of process.