The Dekagram 15th May 2023

• Published date: 24 May 2023
• Subject Matter: Litigation, Mediation & Arbitration, Transport, Rail, Road & Cycling, Personal Injury, Professional Negligence
• Law Firm: Deka Chambers
• Author: Ms Sarah Prager and Lucy Lodewyke

We trust our readers enjoyed the Eurovision on Saturday every bit as much as we did; with the Deka Chambers Eurovision Sweepstake Shield up for grabs, there could hardly have been more to play for. Similarly, in a recent case Master Thornett struck out a claim in quite unusual circumstances; we consider the judgment below. We were also interested to read of an Israeli case on the operation of Article 31 of the Montreal Convention - it's not binding, of course, but it is an interesting signpost to how the courts of other signatories to the Convention might approach a similar set of facts.

Mr Tomasz Danielewicz (A Protected Party Proceeding By His Litigation Friend Miss Justyna Kosinska) v Miss Jessica Cannon, Motor Insurers' Bureau [2023] EWHC 948 (KB)

Under CPR 38.7(1) a Claimant who discontinues a claim needs the permission of the Court to make another claim against the same Defendant in certain circumstances. These being (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 facts which are the same or substantially the same as those relating to the discontinued claim.

This case, heard by Master Thornett, considered the applicable test the Court should have in mind when considering whether to grant permission under CPR 38.7.

This claim, or more accurately, claims, had a rather protracted procedural timeline. By the time Master Thornett considered this case under CPR 38.7 the Claimant had issued two previous claims which had been discontinued and the Court was then considering the third claim issued by the Claimant arising out of the same road traffic accident.

In short, the Claimant was a pedestrian injured in a road traffic accident.

The first claim was issued initially against the First Defendant driver only. It later sought to add the purported road traffic insurer as the Second Defendant. Procedural errors on the Claimant's part, including using an inapplicable address to purportedly serve the driver, led him to discontinue those proceedings.

There then followed a second claim. This claim was issued against three defendants, the Defendant driver, the purported road traffic insurer and the MIB. No permission under CPR 38.7 was sought at the time of issue or service of the second claim. For reasons unknown, the same inapplicable address was used to attempt service via first class post on the First Defendant. This was raised by the Second Defendant in its defence to the second claim.

There was an application to strike out the Claimant's second claim. There followed an application by the Claimant for permission to make the claim under CPR 38.7. This application was not issued until 10^th November 2021. This being approximately ten months after service, over twelve months after...