High court refuses a protected party permission to revive (twice) discontinued litigation

The High Court has delivered judgment DANIELEWICZ v [1] CANNON [2] MOTOR INSURERS' BUREAU [2023] EWHC 948 (KB), striking out a protected party’s 3rd claim against (1) a negligent (and uninsured driver) and (2) the Motor Insurers’ Bureau following the court’s refusal to grant necessary permission for the 3rd claim to proceed given 2 prior claims had been discontinued, per CPR, r. 38.7.

In Danielewicz V [1] Cannon [2] Motor Insurers' Bureau [2023] EWHC 948 (KB), the High Court considered the proper approach to applications for permission to bring subsequent legal proceedings against the same defendant following earlier decisions to discontinue two actions. Therefore, the court’s permission would be required for the 3rd (and indeed 2nd) action to proceed, per CPR, r. 38.7, which materially provides: 

Discontinuance and subsequent proceedings 

(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… and 

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

The facts 

All three claims arose out of the same road traffic accident in June 2015 and the claimant was represented by the same firm of solicitors throughout.  

Despite asserting that the claimant was a protected party in the 1st claim against an uninsured driver, the claimant’s solicitor failed to nominate a litigation friend to conduct the proceedings when a claim form was issued three years later in June 2018, contrary to CPR r. 21.2(1).  

Subsequently, in October 2018 – towards the end of the four-month period of the claim form’s validity – the claimant’s solicitor purported to serve the uninsured driver, albeit at an address where the driver had never previously resided, contrary to CPR, r. 6.9. 

An insurer – which neither insured the driver or the vehicle – was later made an additional defendant to the 1st claim, although those proceedings were discontinued shortly before a hearing to determine preliminary issues after the insurer cited failures to serve the uninsured driver at a “last known address” and to serve statutory notice upon the insurer at its own (separate) address. 

In September 2020, a 2nd claim was issued against the same two defendants, although the Motor Insurers’ Bureau (MIB) was now named as an additional defendant. 

Despite the claimant’s solicitor now being in possession of correct addresses for the uninsured driver and insurer, albeit the claim was being managed by a different lawyer, they appear to have repeated the procedural errors made during the 1st claim. Additionally, no permission was sought to issue the 2nd claim, contrary to CPR, r. 38.7. 

As a result of the procedural defects in the 2nd claim, the 2nd claim was discontinued in December 2021. 

Finally, in March 2022, the 3rd claim was issued against the uninsured driver and MIB only. As was the case for the 2nd claim, the court’s permission was required for the 3rd claim to proceed, per CPR, r. 38.7.  

The 2nd defendant relied upon the Court of Appeal’s judgment in Hague Plant Limited v Hague & Others [2014] EWCA Civ 1609: 

"[60]... The real question for the judge was whether, having abandoned the… claim ... a sufficient explanation was offered for its re-introduction to overcome the court's natural disinclination to permit a party to re-introduce a claim which it had after careful consideration decided to abandon." 

That judgment was recently approved in Astley v Mid-Cheshire Hospitals NHS Foundation Trust [2022] EWHC 337 (QB), where the court refused a claimant permission to bring a new clinical negligence claim after discontinuing proceedings 14 years earlier. 

The Judgment 

Applying the judgments cited above, and considering the approach to CPR, r. 38.7 of the High court in Wickham v Riley [2020] EWHC 3711 (Fam) at [30], the High court refused permission and struck out the 3rd claim, determing: 

[23]      … The most significant factors have to be the circumstances in which two sets of proceedings for the same cause of action were discontinued… 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… The unfortunate errors in the First Claim were entirely amenable to correction and remedy in the Second Claim. 

… 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. 

What does this mean for you? 

Firstly, one must have every sympathy for a seriously injured claimant who, through no fault of their own, finds themselves without recourse to the courts via conventional means. 

Nonetheless, the High Court was satisfied that “the concept of unfairness (manifest or otherwise) was quite clearly not intended as an exclusive… test but one of various factors” to be considered by a court in exercising its discretion under CPR, r. 38.7 and determining whether to permit subsequent litigation to proceed.

However, motor insurers – much less funds of last resort – must not bear the cost of underwriting liability arising from professional negligence; their existing resources simply could not sustain the additional financial burden.

Please do not hesitate to contact our motor practice, or your usual contact, should you wish to explore any issues arising.