Tom Bourne-Arton was recently instructed by the first of three Defendants in an Employers’ Liability personal injury claim at the hearing of the Defendants’ respective applications to strike out the claim as an abuse of process. Although not known, this may well be the first successful application to strike out a claim as an abuse of process since the Court of Appeal’s decision in Cable v Liverpool Victoria Insurance Co Ltd  EWCA Civ 1015.
All three Defendants were successful in their respective applications and the claim against them has been struck out.
Before considering this recent case and the reasoning of the District Judge it is worth reminding everyone about the Court of Appeal’s decision in Cable, and the test set out therein.
Cable was a personal injury claim arising out of a road traffic accident. In the early stages it could not be known the claim was worth more than £25,000 and the Claimant’s duly submitted a CNF pursuant to Stage 1 of the low value RTA Protocol. The Defendant’s insurer then admitted liability. Thereafter, progress of the Claimant’s claim to Stage 2 was slow, and unbeknownst to the Defendant the Claimant obtained a Neurology report, followed by a second Neurology report. Around three years after the CNF was submitted the Claimant would have known his claim was worth more than £25,000. Instead of notifying the Defendant of this the Claimant issued a Part 8 claim form (prior to stage 2 commencing) asking for a stay. At this stage the Claimant’s solicitors knew the claim was not suitable for the RTA Protocol nor Part 8. Two days before the Part 8 stay was due to be lifted, and a year after the claim was stayed, the Claimant applied to lift the stay and transfer the claim to a Part 7 claim. The Defendant then made an application to strike out the claim.
At first instance the District Judge struck out the claim as an abuse of process. The abuse relating to the misuse of the Low Value RTA Protocol and the use of Part 8 rather than Part 7. The District Judge’s decision was upheld on appeal by the Circuit Judge and then overturned by the Court of Appeal.
Coulson LJ gave the leading judgment in the Court of Appeal. During his judgment he identified the three abuses as being:
Having considered previous case law Coulson LJ identified the relevant test in such situations as being a two stage test:
“63… First the court has to determine whether the claimant’s conduct was an abuse of process. Secondly, if it was, the court has to exercise its discretion as to whether or not to strike out the claim…It is at that second stage that the usual balance exercise, and in particular considerations of proportionality, becomes relevant.”
Also of relevance are the following parts of Coulson LJ’s judgment:
Coulson LJ had no difficulty in accepting that there had been abuses of the Court’s process in Cable. On considering the second stage of the test Coulson LJ found that the only real prejudice to the Defendant had been a delay of one year or more and that striking the claim out was not a proportionate sanction. Instead, he held that the appropriate sanction was a costs order in the Defendant’s favour and a debarring of interest order on special damages.
Turning now to the recent casein which Tom Bourne-Arton received instructions, the District Judge’s judgment included identifying the following:
In relation to the first stage of the Cable test the District Judge held:
In relation to the second stage of the Cable test the District Judge held:
What lessons can be learned from this recent experience? Tom Bourne-Arton would suggest that successfully applying to strike out a claim as an abuse of process will prove to be difficult, given the draconian nature of the sanction. However, in appropriate circumstances, such as this recent case, where there is real prejudice to the Defendant which cannot be undone by any other type of sanction striking out the claim can be the proportionate sanction to impose. Obviously, each case will turn on its own facts but Tom would suggest that if making such an application the Defendant should be satisfied that the abuse of process is significant and the prejudice caused as a result is so prejudicial that a costs order is not a proportionate sanction to impose. It would also assist if the facts of Cable can be distinguished. For example, in the recent case:
In summary, strike out applications for abuse of process remain possible post Cable; and the appropriate test has been clarified in Cable such that any decision whether to make such an application should be easier to make than before.