Tomasz Danielewicz v Jessica Cannon & Anor.

the other claim arises out of facts which are the same or substantially the same as those relating to the discontinued claim.

7.1 This was issued in the County Court Money Claims Centre on 20 June 2018 by the Claimant in his own right i.e. not as a Protected Party and against only Ms Cannon. The claim was limited to £25,000 and, treating the Claimant then not as a Protected Party, would have been only a few days’ before expiration of primary limitation. The date of the accident as at issue was endorsed as “26/06/18” which plainly would be impossible if issue was on 20 June 2018. However, nothing seems to have ever hinged on this. The Claimant’s solicitors purported to serve the Defendant with the Claim Form by covering letter dated 17 October 2018 i.e. just before expiration of the Claim Form at an address 136 Wakefield Street, East Ham, London, E6 1NQ. The covering letter refers to the solicitors having “been in correspondence with your insurers TradeEX…to whom you may care to refer these papers straight away”.

7.2 Tradex, as potential insurers of the vehicle, agreed to be added as a Second Defendant in February 2019 but raised various questions about service of documents upon the (now to be treated as) First Defendant.

In the Amended Claim Form adding Tradex as a Defendant, the Statement of Value of the claim was increased to £75,000 and the date of the accident corrected. Amended Particulars of Claim asserted that the Second Defendant insured the First or alternatively that the Second Defendant was “the relevant road traffic insurer pursuant to s.148 and s.152 of the Road Traffic Act 1988”.

7.3 The Defence of the Second Defendant denied that it had issued a policy of insurance to the First Defendant or that it had issued any policy covering the accident vehicle at the time of the accident. It denied, therefore, any cause of action was possible under the (as then applied) European Communities (Rights against Insurers) Regulations 2002. Further, it denied that the Claimant had given it any notice as required under s.152(1) of the 1988 Act and, as such, the Second Defendant could not be found liable as an insurer “whether pursuant to s.151 of that Act or at all”. The Defence expressly sought a direction that there be a split trial on the issue of whether it could be liable under either the 2002 Regulations or the 1988 Act.

7.4 Plainly, the issues then relied upon by the Second Defendant were fundamental and significant. What had led to such issues arising at all is only as can be pieced together from copy correspondence annexed to Ms Rothwell’s first statement. In an e-mail dated 9 January 2020 to the Claimant’s solicitors, the Second Defendant made clear that, from its viewpoint:

- The 7.6.18 letter produced by the Claimant’s solicitors purportedly giving notice to the Second Defendant for the purposes of the 1988 Act had featured no addressee and had been sent to the old registered office for Tradex. That had changed back in November 2017. Whilst Tradex had arranged for correspondence to be forwarded upon changing their address, this particular letter was never received because it was not addressed to anyone (i.e. Tradex or otherwise);

- The address used for the First Defendant for the purposes of service was inapplicable. The Second Defendant was unaware of any evidence of her ever having lived at 136 Wakefield Street, East Ham, London, E6 1NQ and, to the contrary, it appeared that on release from prison in May 2017 the First Defendant had returned to her parent’s address at 200 South End Road, Rainham, Essex RM13 7XT.

7.5 The claim proceeded to a hearing on 14 January 2020 when the claim was transferred for hearing of the preliminary issue sought by the Second Defendant to the County Court Hearing Centre at Central London. On 3 March 2020, the Claimant’s solicitors asked the Second Defendant’s solicitors to “confirm the correct address for Jessica Cannon”. The Second Defendant’s Solicitors replied on 13 March 2020 to confirm that “the only address” they held for Jessica Cannon was 200 South End Road, RM13 7XT.

7.6 On 24 March 2020, the Claimant’s solicitors e-mailed the Second Defendant’s solicitors to state “Upon discussing with Counsel and due to the procedural errors on this case we have decided to discontinue current proceedings and have re issued fresh proceedings. We have served our notice upon Miss Cannon, Tradex and MIB”. A formal Notice of Discontinuance in the County Court at Central London, dated 25 March 2020, appears in Ms Rothwell’s first statement.

Further, it should have been clear that any second claim would require the permission of the court pursuant to r.38.7.

11.1 Nearly six months after discontinuing, the Claimant issued the Second Claim on 22 September 2020. I am not told how that period was spent in preparation for the Second Claim. I repeat, however, the conclusion that the faults of the First Claim must already have been apparent upon its discontinuance.

11.2 Service upon the Second Defendant in January 2021 (and so, again, up to the deadline for service of the Claim Form and thereby negating any saving amendments or other relevant Application) led to the Second Defendant’s Defence dated 10 February 2021. That relied upon various points, including:

- The failure of the Claimant to serve the First Defendant at an address at which she was resident;

- The absence of permission under r.38.7 to pursue the proceedings, given discontinuance of the First Claim;

- The non-payment of the Second Defendant’s costs due from the First Claim;

- The absence of any operative insurance for the car being driven by the First Defendant at the time of the accident and so the inapplicability of any contemplated liability of the Second Defendant.

11.3 The Third Defendant, having been added subsequently as a defendant, clarified that its proper title was the “Motor Insurers’ Bureau”, but agreed the correct could be treated as carried over without the need for formal amendment, in its defence dated 30 April 2021. At Para 7, the Defence required the First Defendant to be correctly served, referring (as had the Second Defendant) to the address on the Claim Form as not being the First Defendant’s residence and relying upon CPR 6.9(3). The absence of permission under r.38.7 was expressly pleaded.

11.3 The Claimant had certified service upon the First Defendant in an N215 dated 13 January 2021 but it is now accepted that, owing to repeated use of the 136 Wakefield Street address, was incorrect. I note within Exhibit GRW 6 of Ms Rothwell’s first statement is a copy of the recorded delivery envelope sent (and frank marked 13-01.21) by the Claimant’s solicitors enclosing the Claim Form and supporting documents. That has a Royal Mail stamp “unable to deliver this item” with either (Footnote: ¹ ) the box “address incomplete” or “addressee gone away” hand endorsed.

11.4 According to Ms Rothwell, this documentary confirmation of non-service on the intended address for the First Defendant came about only when the Claimant’s solicitors disclosed to the Second and Third Defendants on 7 April 2021 a number of documents pertaining to service. The various documents are itemised by Ms Rothwell and seem to lead to the conclusion that the Claimant may have been attempting to serve the First Defendant at various other addresses at the time but, critically, the damaging evidence was of ineffective service at the (only) address cited on the Claim Form.

11.5 It will be readily apparent to any litigator that by choosing to serve the Claim Form in the Second Claim close to the expiry date for service was particularly courting with disaster in this case where, as far back as December 2019, the Claimant’s solicitors had been informed that the First Defendant’s address was likely to be that of her parents in 200 South End Road, Rainham, Essex and not 136 Wakefield Street.

11.6 In support of the Third Defendant’s 1 December 2021 Application to strike out the Second Claim, Ms Rothwell describes investigatory steps taken by the Second Defendant to undertake enquiries as to the First Defendant’s residence. That research had established that the First Defendant had associations with 200 South End Road evidenced from October 2019 but, conversely, no evidenced links to 136 Wakefield Street. The Third Defendant had also conducted its own independent research, which established links between the First Defendant and 200 South End Road between 2010 and 2021. She was also recorded on the electoral role from 2020 to 2021 at another address 142 Macon Way, Upminster. There were no references to her being associated with 136 Wakefield Street in their research either.

The statement predictably refers to the provisions in CPR 6 for service at a defendant’s last known address but the obligation at r.6.9(3) to take reasonable steps to ascertain the address of a defendant if the claimant has reason to believe that a defendant no longer resides at the apparent “last known address”. The Application submitted that the Claimant had failed to take any reasonable steps to ascertain a suitable address for service upon the First Defendant.

11.7 I comment that is very difficult to understand why the very steps taken by the Second and Third Defendant’s could not have been taken before issue of the Second Claim, given the very clear indications during, and the experience of having to discontinue, the First Claim.

11.8 Mr Cowley’s commentary on the Second Claim is similarly brief in assisting the court on such questions. He suggests at Para 16 that the MIB had been added to the Second Claim “as there was now [my emphasis] a dispute as to whether the vehicle itself was insured”, and makes no reference to this having been a pleaded point in the First Claim. He explains that “initially” the r.38.7 requirement had been “not appreciated by the handler at the time”. The r.38.7 Application was not issued until 10 November 2021: so about ten months after service, over twelve months after issue and so over eighteen months after the First Claim had been discontinued.

11.9 The Claimant’s r.38.7 Application never proceeded to the hearing listed for 7 January 2022, neither the Second Defendant’s strike out application. Without elaboration, Mr Cowley simply states at Para 24 “This second set of proceedings against the three Defendants, Miss Cannon, Tradex and the MIB were subsequently discontinued on 21 ^st December 2021”.

“The Third Claim”: QB-2022-000886

Procedure

13.1 Rule 38.7 is silent how or when a claimant should seek permission. The notes in the White Book refer to conflicting views as to whether the Application has to be concluded before issue in order for any issued proceedings to be valid. In the current case the Claimant made the application after issue but prior to service, anticipating that the application could be heard prior to service. This did not occur, the Claimant explaining that time was needed for him ”to serve proceedings to comply with CPR 7”.

13.2 Fortunately, no point taken by the Defendant that the Application is too late.

13.3 There are various reported authorities providing assistance on the operation of the Rule. Counsel have directed me each to their selections. There seems little fundamental difference between the parties on the guidance available, save that Mr Exall seeks to refine the criteria for permission by relying upon – as “the appropriate approach” – the following passages in Western Power Distribution (South Wales) Plc v South West Water Limited [2020] EWHC 3747 (TCC).

Joanna Smith QC, sitting as High Court Judge:

13.4 Mr Exall accordingly submits that (i) the burden is on the Defendant to establish why bringing this claim is “manifestly unfair” and (ii) the court will not lightly shut out a party from pursuing a genuine claim unless abuse of process can clearly be made out (iii) the court should approach the matter by taking a “broad merits-based” approach. The Claimant submits that the present action cannot be treated as an abuse of process on the basis of the procedural errors in the earlier proceedings. The Claimant submits that because of the absence of evidential prejudice to the Defendant and limitation continuing to run owing to the Claimant being a Protected Party, the merits of permitting the present claim to continue justify permission. Mr Exall elaborated that because the Claimant cannot give evidence owing to his condition and the First Defendant being highly unlikely to be co-operative, the issue of the circumstances of the accident and hence accident reconstruction on the issue of contributory negligence are no different to what they always have been: the same evidence is there to be assessed.

Mr Exall sought initially to mollify the obvious adverse impression presented by the catalogue of errors in the previous claims by pointing out that they did not arise by reason of any attempt deliberately to flout the rules. I was referred to Para 17 of Mr Cowley’s witness statement suggesting that it seemed that the fee earner at the time of the Second Claim (who has since passed away) simply lacked the relevant procedural knowledge “initially”.

At [61] Briggs LJ noted that the then edition of the White Book used the phrase “exceptional circumstances” as characteristic of the sort of explanation likely to be required in an application for permission under Pt 38.7 and commented

“... the way the court should consider the matter was to consider the relevant conduct of the parties, to consider prejudice and to consider whether there is any indication of harassment or other matters. In short, it seems to me that it is right that the court should look at the circumstances in which the discontinuance took place; but the court is also entitled to look at the position in the round, to have regard to the interests of justice and also to have regard to the not unimportant factor of the proper use of court resources.”

Paragraphs [39] and [40] relied upon by the Claimant therefore have to read in context. The Deputy Judge there was dismissing a submission from the defendant that the well known principle in Henderson v Henderson had a direct application in a r. 38.7 application and thus a second claim had to be treated as an abuse of process. Hence consideration, and the singling out, of the procedural concept of unfairness was in the context of considering abuse of process; as explored in Playboy Club London Ltd, a decision concerning whether a claim in deceit should have been relied upon in a previous claim and so whether the subsequent claim amounted to an abuse of process.

On my reading, at [40] the concept of unfairness (manifest or otherwise) was quite clearly not intended as an exclusive or dispositive test but one of various factors listed as falling within the requisite “broad merit-based judgment” accepted at the very commencement of [40].

In passing, I remark, that if strict analogy with the reasoning in Western Power is relied upon, several of the factors listed in the case as relevant at [40] are very different indeed from this case and so undermine the Claimant’s intended approach:

The very early discontinuance of the first action;

Minimal inconvenience to the defendant;

An actual payment towards the defendant’s costs; and

The absence of what might constitute “unjust harassment” of the rejoined defendants.

Hence, it was “in accordance with the overriding objective” to permit the new claim [42].

“i) The application is to be considered in the light of the overriding objective to deal with cases justly.

ii) Applications for permission to bring a new claim made after the expiry of a relevant limitation period should normally be refused whether or not the claim itself was issued before the expiry of the limitation period or afterwards.

iii) The nature of the limitation period will be relevant. If the limitation period is a purely discretionary one the approach will be different to cases where the limitation period is more rigid.

iv) There is a public interest in finality in litigation which must be relevant to the question of whether permission should be granted.

v) The court must consider whether a sufficient explanation has been offered for the reintroduction of a claim which had been abandoned. The circumstances in which the claim was abandoned will be relevant. If the claimant had been misled or tricked by the defendant, where important new evidence had come to light or where there had been a retrospective change in the law it is likely the court would give permission.

vi) The merits of the underlying claim will be relevant. Where the claim has no reasonable prospect of success or is an abuse of process this will be relevant.

“The Johnson v Gore Wood requirement that the court is to make a broad merits based assessment and the need for finality and for the avoidance of abuse of process which underly the Henderson v Henderson principle can of course be relevant when the court is considering giving permission under Pt 38.7. Looking at the merits broadly and considering manifest unfairness will often be relevant factors. It may well be on occasion relevant as a check to see whether, if the earlier proceedings had been resolved in a way different from discontinuance, there would be an abuse in bringing fresh proceedings. However, none of that, in my judgement, is the actual test to be applied. Instead, those are matters which go into the circumstances to be considered when the court is looking at matters in the round and applying, as it should, in my assessment, Briggs LJ’s test to see if there is sufficient explanation given to overcome the court’s disinclination to allow further proceedings arising out of the same circumstances. Consideration of the merits broadly and potential abuse are elements in the process described by Chief Master Marsh in the Captain Saulawa case but they are not the governing criteria. They will often be very potent factors in what is an exercise of discretion but the test must be that laid down by Briggs LJ”.

I am asked to note the distinction between the errors of his solicitors and the absence of any events caused by him personally or his family. I have no direct evidence of this and comment that the feature of a Protected Party having a Litigation Friend is to ensure compliance with court rules and procedure.

Further, owing to limitation still running Mr Exall submits that it would remain open to the Claimant to issue a fourth claim if he wanted.

I look at matters in the round and balancing the various factors. No one factor is conclusive but the most significant factors have to be the circumstances in which two sets of proceedings for the same cause of action were discontinued. Here, explanation is key, whether as seen specifically in the context of r.38.7 or in the added context of Denton considerations. On the latter test, it is openly conceded by the Claimant that the breaches are serious and significant, not trivial.

It is regrettably a very striking feature of this case that there is no explanation for the catalogue of errors in this case other than ignorance of procedural rules and a failure to establish evidence in a way that other defendants had proved could relatively easily be obtained. Evidence, moreover, that had then been provided to the Claimant before issue of the Second Claim. Ignorance of procedure is hardly a persuasive explanation, even from a litigant in person. Neither would overwork or lack of reasonable resource to investigate if, by inference, those are taken to be an implied explanation. In my judgment, the unfortunate errors in the First Claim were entirely amenable to correction and remedy in the Second Claim. On the facts and evidence as explored, the failure to explain in this claim how and why in the Second Claim there were repeated the same (in the case of retaining an established incorrect address for service for the First Defendant) or similar errors in the First Claim is serious and profound.

Frankness of acknowledgment of error is not a complete substitute for adequate explanation. Were it to be, then practically every application for relief would be granted.

I am unpersuaded by the suggestion that the Claimant theoretically can still continue to bring claims owing to limitation still running. Whilst the authorities are careful to draw distinctions in analogies between the operation and considerations of r.38.7 to those in abuse of process Applications, it seems to me that the repeated issue of claims arising from precisely the same cause of action would amount to an abuse of process in its own right. Either way, however, the submission has little appeal in seeking the exercise of discretion in this third claim.

I am unpersuaded that the absence of evidential prejudice in a claim whereby the Claimant is acknowledged in principle to be entitled to receive certain damages is sufficient to justify the continued engagement of resources by either the court or the defendant(s). I agree with the Defendant’s submission that, although not always a palatable one, on the facts of this case the Claimant has an obvious cause of action against his present solicitors. Here the very points relied upon about undenied entitlement of damages in principle and lack of evidential prejudice are at least as compelling in concluding that permission should not be granted to continue with this claim as they are why the Claimant should instead consider looking to his solicitors via their indemnity insurance.

In conclusion, having regard to the resources which have already been taken up in dealing with this claim, the overriding objective and the court’s natural disinclination to permit repeated litigation without convincing explanation and justification, the Application is dismissed. The claim should be struck out.