Perkins & Anor v Devoran Joinery Company Ltd & Ors

Perkins & Anor v Devoran Joinery Company Ltd & Ors

The proceedings do not represent an abuse of process because the claims for deceit and defective design had not previously been adjudicated upon, the claimants could not reasonably have raised them earlier due to concealment by Devoran, and it would be unjust to deprive them of the opportunity to have these serious allegations determined. The Recorder erred in law and fact in striking out the claim, and the claimants are entitled to access to justice.

Parties
Appellant/claimant: Alan Perkins; Appellant/claimant: Pauline Perkins; Respondent/defendant: Devoran Joinery Company Ltd; Respondent/defendant: Kirby and Cove Ltd; Respondent/defendant: Kirby Adair Partnership Ltd
Jurisdiction
England and Wales
Judgment Date
22 March 2006
Procedural Posture
Civil Appeal / Appeal From Order Striking Out Claim for Abuse of Process
Outcome
appeal allowed
Legal Topics
Abuse of Process, Strike Out Applications, Deceit, Breach of Contract, Right of Access to Court
Civil Procedure Contract Law Tort Law Abuse of Process Strike Out Applications Deceit Breach of Contract Right of Access to Court

Case Brief

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Parties

Alan Perkins

Appellant/claimant

Pauline Perkins

Appellant/claimant

Devoran Joinery Company Ltd

Respondent/defendant

Kirby and Cove Ltd

Respondent/defendant

Kirby Adair Partnership Ltd

Respondent/defendant

Procedural Posture

Civil Appeal / Appeal From Order Striking Out Claim for Abuse of Process

Legal Issues

  1. 1 Whether the claimants' proceedings against Devoran Joinery Company Ltd constituted an abuse of process
  2. 2 Whether the claimants should be permitted to litigate issues of deceit and defective design not previously adjudicated upon
  3. 3 Whether the Recorder erred in striking out the claim for abuse of process

Ratio Decidendi

The proceedings do not represent an abuse of process because the claims for deceit and defective design had not previously been adjudicated upon, the claimants could not reasonably have raised them earlier due to concealment by Devoran, and it would be unjust to deprive them of the opportunity to have these serious allegations determined. The Recorder erred in law and fact in striking out the claim, and the claimants are entitled to access to justice.

Court Disposition

appeal allowed

Orders

  • The order striking out the claim for abuse of process is set aside.
  • The claim is to proceed to trial.