Davies v Carillion Energy Services Ltd & Anor

Where a first action is struck out for procedural failure, the court should generally apply the Securum/Collins approach when deciding whether a second action is abusive. The court must examine the circumstances leading to the first strike-out. A second action may be abusive where the conduct in the first action amounted to abuse of process or was inexcusable. The exception allowing the second action to proceed is narrowly confined, particularly after the Jackson reforms and Mitchell v News Group Newspapers and Denton v T H White Ltd. Nevertheless, a single failure to comply with an unless order is not, by itself, enough. The overriding need to do justice remains important, and a litigant in person’s circumstances may be relevant to whether the conduct was abusive or inexcusable.

The claimant brought a first action concerning the defective installation of a central-heating system. The action was struck out after the claimant failed to comply fully with an unless order requiring further particulars. He did not obtain relief from sanctions or appeal.

He later commenced a second action against the same defendant and another company. The District Judge refused to strike out the second action as an abuse of process, applying the broader balancing approach associated with Aldi Stores Ltd v WSP Group plc. The defendant appealed, arguing that the stricter approach in Securum Finance Ltd v Ashton and Collins v CPS Fuels Ltd applied.

1. Applicable approach. Where a first action has been struck out for procedural failure, the court should apply the approach in Securum Finance Ltd v Ashton and Collins v CPS Fuels Ltd. The circumstances leading to the first strike-out must be examined. A second action may be abusive where the conduct in the first action was itself abusive or was inexcusable.
2. Where the first action involved abuse of process or inexcusable conduct, the special-reason exception is narrowly confined. In light of amendments to the overriding objective and the approach in Mitchell v News Group Newspapers and Denton v T H White Ltd, very unusual circumstances may be required. However, efficient use of court resources does not displace the overriding need to do justice.
3. A single failure to comply with an unless order is not, of itself, sufficient to make a second action abusive.
4. The claimant’s conduct did not amount to wholesale disregard of the rules, want of prosecution or contumelious conduct. His failure to comply fully with part of the final unless order was understandable and not inexcusable. Relevant considerations included his attempts to comply, the technical or contestable nature of earlier deficiencies, the absence of contemporaneous objection, and his status as a litigant in person.
5. The failure to seek relief from sanctions did not alter that conclusion. On the particular facts, the claimant lacked funds and emotional capacity to continue the first litigation, and his conduct was otherwise neither abusive nor inexcusable.
6. Although the District Judge had applied the wrong analytical approach, the second action was not abusive. Alternatively, the District Judge had properly balanced the relevant factors under the Aldi Stores Ltd v WSP Group plc approach. The defendant’s appeal was dismissed.

1. High Court (Queen’s Bench Division): The appeal from the District Judge’s refusal to strike out the second action as an abuse of process was dismissed. The District Judge had erred in applying the Aldi Stores Ltd v WSP Group plc approach, but the claim was not abusive on the correct analysis.