Practice

Abuse of process - action struck out for delay - second action raising same issues could be struck out as abuse of processSecurum Finance Ltd v Ashton and Another: CA (Chadwick LJ and Rattee J): 21 June 2000.

In 1989 a bank commenced proceedings against a debtor for the repayment of a loan, and against the two guarantors of the loan, a husband and wife who had granted the bank a legal charge over their property.In 1997 those proceedings were struck out for delay: see Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426.

In 1998 the claimant, as the bank's assignee, brought a second action against the guarantors, claiming to enforce the bank's rights to payment under the legal charge and to enforce its security over the mortgaged property.

The defendant guarantors contended that the second action involved re-litigating issues raised in the first, and was an abuse of process.

The judge declined to strike it out and the defendants appealed.James Guthrie QC and Peter Knox (instructed by Coldham Shield & Mace) for the defendants.

Anthony Mann QC and Anthony de Garr Robinson (instructed by Sheridans) for the claimant.Held, dismissing the appeal, that it was no longer open to a litigant whose action was struck out for delay to rely on the principle (derived from Birkett v James [1978] AC 297) that a second action commenced within the limitation period would not be struck out save in exceptional circumstances; that the court must now consider the overriding objective under CPR, r.1.1(1) and decide whether the claimant's wish to have a 'second bite at the cherry' outweighed the need to allow the court's limited resources to other cases; but that, although the claim to payment might be an abuse of process, the claims to enforce the security under the legal charge, not raised in the earlier proceedings, were not.