We recently represented a member in a case that involved a very important element of the Civil Procedure Rules. Our member, who had faced a previous claim that had been discontinued, faced a fresh claim on the same facts as the first. A little underused rule within the Civil Procedure Rules was used with great effect.
Civil Procedure Rule 38.7 provides that:
(1) A claimant who discontinues a claim needs the permission of the court to make another claim against the same defendant if –
a) they discontinued the claim after the defendant filed a defence or, in a Part 8 claim, filed an acknowledgment of service or written evidence, and
b) the other claim arises out of the facts which are the same or substantially the same as those relating to the discontinued claim.
In our member’s case, the Claimant had discontinued their first claim by serving a notice of discontinuance, which places an end to the claim. Within a relatively short period, the Claimant issued a new claim placing reliance on the same facts as the first and providing lengthy particulars of the claim. It would appear the Claimant had again taken advice from Stormcatcher, those who follow our legal updates will be aware that this company/person appears to be conducting litigation without authority, which is exceptionally risky for anyone who takes advice from them. Despite the rather lengthy particulars of the claim, the Claimant and his advisor failed to properly understand the civil procedure rules that govern all legal proceedings in the civil courts.
Hidden away in chapter 38 is this rule mentioned above, the Claimant failed to seek permission from the court, whether that is by way of an application before proceedings are commenced or whether a Claimant pleads permission within the claim as suggested in 38.7(2) below:
(2) if the Claimant considers that permission is needed, the application for permission shall be included in the claim form and a claim will proceed only if permission is granted.
As the Claimant failed to seek permission and/or plead permission subject to the court granting the same, it was evident that the claim was simply a nullity. There are some interesting court decisions in this area that centre around a second claim being manifestly unfair, an abuse of process to bring a second claim. It would appear from those cases that the burden of proof lies with the Defendant to argue that the second claim would be “manifestly unfair” and whether the court should shut out a Claimant from pursuing a second claim unless it is an abuse of process. The courts should consider a “broad merits test” approach to the claims.
What was evident in our member’s claim, was that the Claimant wanted a second bite of the cherry after withdrawing their previous claim, presumably on the advice of their unregulated advisor. We stood firm on our position for our member, and the Claimant eventually discontinued the second claim after having failed to get the permission of the court.
Rules are rules, and even more so when dealing with court cases. You must always make sure your legal advisors are authorised and experienced not just to conduct litigation, but to conduct it well. Within the motor trade, there is no company more experienced than Lawgistics to look after the motor trade community’s legal needs.
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