Aktas v Adepta (A Registered Charity) [2010] EWCA Civ 1170 (22 October 2010)

Aktas v Adepta (A Registered Charity) [2010] EWCA Civ 1170 (22 October 2010)

A second personal injury action, commenced after the first was struck out for late service, is not automatically an abuse of process. The court must consider the section 33 Limitation Act 1980 discretion, and failure to serve in time in the first action does not preclude the second action from proceeding. The...

Source-derived case information.

Citation
[2010] EWCA Civ 1170
Parties
Appellant / Claimant: Aktas; Respondent / Defendant: Adepta (a registered charity); Appellant / Claimant: Dixie; Respondent / Defendant: British Polythene Industries plc
Jurisdiction
England and Wales
Judgment Date
22 October 2010
Procedural Posture
Appeal (conjoined Appeals From County Court Decisions) / Court of Appeal Judgment
Outcome
Appeals allowed; second actions not struck out as abuse of process.
Legal Topics
Limitation Periods, Abuse of Process, Service of Claim Form, Section 33 Limitation Act 1980, Civil Procedure Rules (cpr)
Civil Procedure Personal Injury Limitation Law Limitation Periods Abuse of Process Service of Claim Form Section 33 Limitation Act 1980 Civil Procedure Rules (cpr)

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Parties

Aktas

Appellant / Claimant

Adepta (a registered charity)

Respondent / Defendant

Dixie

Appellant / Claimant

British Polythene Industries plc

Respondent / Defendant

Procedural Posture

Appeal (conjoined Appeals From County Court Decisions) / Court of Appeal Judgment

Legal Issues

  1. 1 Whether a second personal injury action, commenced after the first was struck out for late service, can proceed under section 33 Limitation Act 1980 or is an abuse of process.
  2. 2 Whether failure to serve a claim form in time in the first action constitutes an abuse of process precluding a second action.

Ratio Decidendi

A second personal injury action, commenced after the first was struck out for late service, is not automatically an abuse of process. The court must consider the section 33 Limitation Act 1980 discretion, and failure to serve in time in the first action does not preclude the second action from proceeding. The statutory discretion under section 33 is wide and unfettered, and procedural failure alone does not justify striking out the second action as abusive.

Court Disposition

Appeals allowed; second actions not struck out as abuse of process.

Orders

  • The orders striking out the second actions are set aside.
  • The section 33 discretion is to be exercised afresh in accordance with the principles set out in this judgment.