Charles Bagot and Jasmine Murphy have secured permission for a second appeal to the Court of Appeal on second actions and abuse of process post Mitchell/ Denton in the case of Jane Padley v CDI Anderselite Limited. The Court of Appeal has just granted permission for this case to be taken as a second appeal to the Court of Appeal. Sharp LJ noted in granting permission to appeal on paper:
“…in my view the appeal raises an important point that merits consideration by the Court of Appeal, as to the correct approach post Mitchell and Denton to permitting a second action to proceed after an identical action has been struck out for failing to comply with an unless order, where no application for relief from sanctions in respect of that first action is made or pursued.”
The case was successfully struck out at first instance, DDJ Ainsworth in Southampton County Court accepting that pursuing a second action in these circumstances was an abuse of process. On appeal to the Designated Civil Judge, HHJ Iain Hughes QC in Winchester, the first instance decision was overturned and the second action permitted to proceed.
The matter will now be considered on a second appeal before the Court of Appeal. Some authoritative guidance can be expected on the proper approach to the increasing numbers of second (identical) claims being issued, where a first claim is struck out for procedural default.