Jasmine Murphy and Charles Bagot managed to strike out a second action as an abuse of process at Southampton County Court. The first claim in the matter of Ms Jane Padley v CDI Anderselite Limited, an employer’s liability claim for personal injury in which the damages sought exceeded £150,000, was automatically struck out for breach of an unless order in respect of filing a Directions Questionnaire.
Jasmine and Charles' win was down to three key arguments:
- Aktas v Adepta  EWCA Civ 1770 was distinguished on the basis that it dealt with a second action brought after the claim form was not served in time in the first action. In Aktas the claimant “had not managed even a single bite of the cherry”. It was distinguished from the earlier line of authority on “second bites of the cherry” abuse of process in bringing a second claim that began with Janov v Morris  1 W.L.R. 1389. It is more relevant than ever in light of Mitchell to consider whether court resources have been used in the first claim prior to the bringing of the second claim.
- Hall v Ministry of Defence  EWHC 4092, the only post-Mitchell reported decision so far to tackle the issue of second claims and abuse of process, is also distinguishable from the Janov line of cases because, as in Aktas, the first claim form was never served. Further, the judgment in Hall makes no reference to Mitchell at all. It is therefore per incuriam and should not be followed.
- The Claimant had not challenged the original sanction of the Unless Order, whether by applying to set it aside or appealing it. She had also chosen not to apply for relief from sanctions, and therefore she had not exhausted her potential recourse in the first claim. Issuing a second claim in those circumstances was an abuse of process.