Aktas v Adepta (A Registered Charity)

Aktas v Adepta (A Registered Charity)

A negligent failure to serve a claim form in time, resulting in the loss of the first action, is not an abuse of process that bars a second action under section 33 of the Limitation Act 1980. The section 33 discretion must be considered on its merits in the second action, and the mere fact of prior procedural failure does not preclude its exercise.

Parties
Appellant / Claimant: Mrs Aktas; Respondent / Defendant: Adepta (a registered charity); Appellant / Claimant: Mr Dixie; Respondent / Defendant: British Polythene Industries plc
Jurisdiction
England and Wales
Judgment Date
22 October 2010
Procedural Posture
Civil Appeal (personal Injury) / Appeal From County Court and Civil Justice Centre to Court of Appeal
Outcome
Appeals allowed
Legal Topics
Abuse of Process, Limitation Periods, Section 33 Discretion, Service of Claim Form, Striking Out Proceedings
Civil Procedure Limitation Law Personal Injury Abuse of Process Limitation Periods Section 33 Discretion Service of Claim Form Striking Out Proceedings

Case Brief

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Parties

Mrs Aktas

Appellant / Claimant

Adepta (a registered charity)

Respondent / Defendant

Mr Dixie

Appellant / Claimant

British Polythene Industries plc

Respondent / Defendant

Procedural Posture

Civil Appeal (personal Injury) / Appeal From County Court and Civil Justice Centre to Court of Appeal

Legal Issues

  1. 1 Whether failure to serve a claim form in time and subsequent striking out of the first action constitutes an abuse of process barring a second action under section 33 of the Limitation Act 1980
  2. 2 Whether the section 33 discretion can be exercised in favour of claimants in second actions after failure to serve in time in the first action

Ratio Decidendi

A negligent failure to serve a claim form in time, resulting in the loss of the first action, is not an abuse of process that bars a second action under section 33 of the Limitation Act 1980. The section 33 discretion must be considered on its merits in the second action, and the mere fact of prior procedural failure does not preclude its exercise.

Court Disposition

Appeals allowed

Orders

  • Set aside the orders striking out the appellants’ second actions
  • In Mrs Aktas’ case, remit to trial court for consideration of section 33 discretion