Stephen John Finnan v Charles Russell Speechlys LLP

A claim may be an abuse of process where an earlier strike-out determined that no viable cause of action had been shown and the claimant later seeks to plead a fuller case that could and should have been advanced earlier. Abuse must be assessed broadly by reference to all public and private interests, including finality and protection against repeated vexation; rigid categories are inappropriate. An interlocutory merits determination can engage that principle. Negligence loss accrues when a lost opportunity is foregone or, at latest, when its value is measurable. Contract claims accrue on breach. The statutory extensions for mistake and deliberate concealment require their conditions to be met. Persistent meritless applications may justify an Extended Civil Restraint Order even where the current claim is not totally without merit.

In 2022, Stephen Finnan sued his former solicitors for breach of contract and negligence concerning advice given during a 2016 dispute with his brother. Master McQuail struck out the claim in December 2023 because no coherent case on causation had been pleaded and refused further time to amend. Roth J reached the same result on appeal in December 2024. Further appellate attempts were refused.

In March 2026, Finnan commenced a substantially similar action with an expanded case on causation and loss. The defendant sought strike-out for abuse of process and limitation, together with a stay and an Extended Civil Restraint Order. The central issue was whether the new action could proceed despite the earlier strike-out and failed appeals.

1. Disposition. The new claim was struck out. An Extended Civil Restraint Order was made. The judge did not determine whether the draft Particulars of Claim were independently inadequate or whether a stay for unpaid costs should be imposed, because the claim failed on abuse and limitation grounds.
2. Prior adjudication and Henderson abuse. The original strike-out was not purely procedural. The Master and, on appeal, Roth J determined that the pleaded case lacked a coherent case on causation and loss. Applying Orji v. Nagra [2023] EWCA Civ. 1289, an interlocutory decision can amount to an adjudication where the court determines a substantive issue. The finding that an essential element was missing was therefore a substantive determination. The principle in Henderson v. Henderson (1843) 3 Hare 100, as explained in Johnson v. Gore Wood [2002] 2 AC 1, applied. The assessment was broad and merits-based. Finnan had opportunities to amend, declined to make an amendment application, and failed in subsequent appeals. Allowing the new case would have replicated the result of a successful appeal and undermined finality.
3. Alternative abuse. Even if there had been no relevant adjudication, the action would still be abusive. The court questioned the usefulness of rigidly compartmentalising the categories discussed by Morris J in Davies v. Carillion Energy Services Limited [2017] EWHC 3206 (QB) and preferred an assessment of all the circumstances. The defects had been known for over a year, the December 2022 order provided a route to amendment, and no satisfactory explanation was given for refusing to use it. The conduct was inexcusable and there was no special reason justifying a second action.
4. Limitation. Under section 2 of the Limitation Act 1980, the tort loss accrued when the lost opportunity was foregone in 2016 or, at latest, when the March 2018 settlement made the loss measurable. Later asset sales did not postpone accrual. The risk-based approach illustrated by Law Society v. Sephton & Co [2006] UKHL 22 did not apply. Under section 5, the contractual claims accrued no later than termination of the retainer on 18 January 2018. Section 32(1)(c) did not assist because, applying Test Claimants in the FII Group Litigation v. Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2012] UKSC 19, a relevant mistake must be an essential element of the cause of action. Section 32(1)(b) did not apply because, under Canada Square Operations Ltd v. Potter [2023] UKSC 41, deliberate concealment requires an intention to conceal, which was absent.
5. ECRO. The present claim was not totally without merit under Sartipy v. Tigris Industries Inc [2019] EWCA Civ. 225. Nevertheless, the wider history showed persistent pursuit of claims and applications lacking merit. At least three such claims or applications were the minimum threshold, but the decisive consideration was the overall conduct and the public interest in protecting court resources. The ECRO was a screening mechanism, not a prohibition on access to the courts.

1. Supreme Court: The judgment records that a further attempted appeal was rejected for want of jurisdiction.
2. Court of Appeal: Arnold LJ refused permission for a second appeal on 17 April 2025 and refused an application to reopen the appeal proceedings on 16 June 2025.
3. High Court: Master McQuail struck out the original claim in December 2023. Roth J reached the same result on appeal in December 2024, although he corrected part of the Master’s reasoning and refused further time to amend.
4. Present High Court (Business List): The new claim was struck out as abusive and time-barred, and an Extended Civil Restraint Order was made.