Strike Out: Abuse Of Process

Article by Peter Mansfield and Giles Tagg

The Court of Appeal has recently considered the issue of strike out for abuse of process. At first instance WSP and Aspinwall succeeded in striking out a claim by Aldi on the grounds that the claim should have been brought in previous litigation. However, Aldi successfully appealed the decision. The Court of Appeal also provided guidance for the future, indicating its preference for a pragmatic rather than strict approach.

There is a real public interest in allowing parties a measure of freedom to choose whom they sue, and when, in a complex commercial matter. Encouragement should not be given to bringing a single set of proceedings against a wide range of defendants or to over-complicate proceedings by cross-claims.

In future, the proper course is for the claimant or defendant to raise the issue of prospective future claims with the court, to enable the court to express an opinion. Indeed, there can now be no excuse for failure to do so.

To view the article in full, please see below:

Full Article

The Court of Appeal has recently considered the issue of strike out for abuse of process. At first instance WSP and Aspinwall succeeded in striking out a claim by Aldi on the grounds that the claim should have been brought in previous litigation. However, Aldi successfully appealed the decision. The Court of Appeal also provided guidance for the future, indicating its preference for a pragmatic rather than strict approach.

There is a real public interest in allowing parties a measure of freedom to choose whom they sue, and when, in a complex commercial matter. Encouragement should not be given to bringing a single set of proceedings against a wide range of defendants or to over-complicate proceedings by cross-claims.

In future, the proper course is for the claimant or defendant to raise the issue of prospective future claims with the court, to enable the court to express an opinion. Indeed, there can now be no excuse for failure to do so.

Background

The appeal concerned an attempt by WSP and Aspinwall to strike out a claim by Aldi for abuse of process, on the basis that the claim could and should have been brought in previous litigation. It arose in complex commercial litigation that concerned damage to a retail store site. At first instance, WSP and Aspinwall succeeded in striking out Aldi's claim on grounds of abuse of process. Jackson J handed down this first instance decision, employing the...