Awan & Ors v EMW Law & Anor

An application to vary a sealed order is an abuse of process where the same point was previously advanced and rejected on appeal. A party cannot use CPR 2.8 to displace explicit calendar dates stated in the order. A procedural order contains no slip where it accurately records the judge’s intention. A second claim in substantially identical form may also be struck out as an abuse of process where it is issued for a tactical purpose after the original proceedings and appeals have concluded. Finality in litigation is a fundamental consideration.

The claimants applied to vary an order setting a timetable for service of particulars of claim. They argued that, under CPR 2.8, the dates should be treated as clear days, although the sealed order specified calendar dates. The claim had previously been struck out after relief from sanctions was conceded to be one day late. A first appeal was dismissed, and a proposed second appeal also raised and rejected the variation argument.

The claimants also issued a substantially identical claim in the Chancery Division. It was transferred to the King's Bench Division and assigned to the same judge. The central issues were whether the original order contained a slip, whether the variation application was an abuse of process, and whether the second claim should be allowed to proceed.

1. Variation application dismissed. The application was totally without merit and an abuse of process.
2. The sealed order specified dates as calendar dates. CPR 2.8 did not assist the claimants because the order itself contained explicit dates. The dates had been missed, and the proceedings had previously proceeded on that footing.
3. The same variation argument had already been advanced before the Court of Appeal in connection with the attempted second appeal and had been dismissed. Reopening it before the first-instance judge amounted to having another go. The point could also have been raised before perfection of the order, at the strike-out hearing, or on the first appeal. The circumstances raised the principle associated with Henderson v Henderson (1843) 3 Hare 100, 67 ER 313.
4. There was no slip in the order. It reflected the judge’s intention when the order was made and sent for sealing.
5. Second claim struck out. Although a procedural strike-out did not automatically make a new claim abusive, the second claim was issued in identical form after the proceedings had passed through the appeal process. Its evident tactical purpose was to create material suggesting that a dispute remained for use before the Insolvency Judge in connection with a statutory demand. That conduct was an abuse of process because a party is entitled to know when litigation is over and litigation must have finality.
6. The court refused to extend time for service and, in any event, struck out the second claim for abuse of process. It was also totally without merit.

• Court of Appeal: The first appeal was dismissed. An application and arguments concerning variation of the order were also rejected in the attempted second appeal.
• High Court (King's Bench Division): The variation application was dismissed as an abuse of process. The second claim was struck out.