A second bite of the cherry — Jackson and abuse of process

As lawyers digest the Court of Appeal decision in Mitchell v Newsgroup Newspapers Ltd about relief from sanctions under the new CPR 3.9, there is one big question left unanswered: can a claimant, whose claim is dismissed for a failure to comply with the rules or a direction, begin another action with impunity, as long as he is within the limitation period? Or does the need for fair and efficient sharing of the courts’ increasingly limited resources lead to the logical conclusion that second actions should be prohibited as an abuse of process?

As long ago as 2001, the Court of Appeal acknowledged the change of culture brought about by the introduction of the overriding objective. In Securum Finance Ltd v Ashton, Chadwick LJ said that it was ‘no longer open to a litigant whose action has been struck out on the grounds of inordinate and inexcusable delay to rely on the principle that a second action commenced within the limitation period will not be struck out save in exceptional cases’.

The effect of the overriding objective was to require the court to consider ‘whether the claimant’s wish to have “a second bite at the cherry” outweighs the need to allot its own limited resources to other cases’…

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