Tomasz Danielewicz v Jessica Cannon & Anor.

Permission under CPR 38.7 to bring a further claim after discontinuance is determined by a broad, discretionary assessment under the overriding objective. No single factor, including alleged unfairness or absence of evidential prejudice, is decisive. The central question is whether the claimant has provided a sufficient and convincing explanation for abandoning and then reintroducing proceedings arising from the same facts. The court may consider the circumstances of the discontinuance, prejudice, the merits, finality in litigation, abuse of process, the parties’ conduct and the proper use of court resources. Repeated procedural errors, unexplained by anything beyond ignorance or inadequate investigation, may justify refusal of permission and strike-out, even where the underlying claim has apparent merit and limitation has not expired.

The claimant, a protected party, sustained serious personal injury as a pedestrian. He had issued and discontinued two earlier claims arising from the same accident. The first claim involved defective service and uncertainty about insurance. The second claim repeated service errors, was pursued without the permission required by CPR 38.7, and was also discontinued. The claimant then issued a third claim against the driver and the Motor Insurers’ Bureau and applied for permission to continue it. The central issue was whether the court should exercise its discretion under CPR 38.7 in circumstances involving repeated procedural failures, unpaid costs, limited explanation and alleged absence of evidential prejudice.

1. Application dismissed. The claim was ordered to be struck out. The court considered the matter in the round under CPR 38.7 and the overriding objective. No single factor was conclusive.
2. The court rejected the claimant’s submission that Western Power Distribution (South Wales) Plc v South West Water Limited [2020] EWHC 3747 (TCC) established a specific test based on manifest unfairness, a broad merits-based judgment, and a reluctance to shut out a genuine claim. Those observations had to be read in context. Unfairness was only one factor among several.
3. The governing approach was that identified by Briggs LJ in Hague Plant Limited v Hague [2014] EWCA Civ 1609: the court must decide whether a sufficient explanation has been offered for reintroducing a claim which had been abandoned, overcoming the court’s natural disinclination to permit repeated litigation arising from the same circumstances. The circumstances of discontinuance, prejudice, finality, abuse of process, merits, conduct and court resources may all be relevant.
4. On the evidence, the claimant had provided no adequate explanation for the repeated errors. The same incorrect address for service had been retained in the second claim despite information obtained during the first claim. Mere acknowledgment of error was insufficient. Ignorance of procedural requirements, overwork or inadequate resources would not provide a persuasive explanation.
5. The absence of evidential prejudice did not outweigh the repeated issue of claims, unpaid costs, the resources already consumed and the absence of convincing justification. The fact that limitation remained available, and that the underlying claim had apparent merit, did not justify a further exercise of discretion in the claimant’s favour.