Two actions had been brought by a contractor against the partners in a farming partnership. Those actions were consolidated. One of the partners died and when the plaintiff found that out he discontinued his claims against the deceased partner and Mrs Wentworth-Stanley, the wife of that deceased partner, and proceeded solely against the third partner, O. The consolidated actions were settled for an agreed sum payable by O which O failed to pay. Thereafter the plaintiff accepted a lump sum from O’s son in final satisfaction of the judgment. The plaintiff then brought proceedings against Mrs Wentworth-Stanley for the same relief but reduced by the amount of pounds 45,000. The Divisional court had held that irrespective of its decision on accord and satisfaction the prosecution of the fresh proceedings against a defendant against whom the original proceedings had been discontinued was an abuse of process.
Held: The releasing of the party from the earlier proceedings amounted to an election and breach of that election by bringing a further action amounted to fraud. The principle underlying abuse of process decisions may be applied where a plaintiff fails to join a defendant who should have been joined in earlier proceedings.
A discharge of one joint debtor by accord and satisfaction, unless there is an expressed or implied agreement that the creditor’s rights against them are preserved, discharges all joint debtors in accordance with a general principle that a joint liability creates only a single obligation.
Judges:
Potter LJ
Citations:
[1998] EWCA Civ 1427, [1999] QB 1004, [1999] 2 WLR 470
Jurisdiction:
England and Wales
Citing:
Approved – MCC Proceeds Inc (Incorporated Under the Laws of the State of Delaware, USA As Trustee of the Maxwell Macmillan Realization Liquidating Trust) v Lehman Brothers International (Europe) CA 19-Dec-1997
The owner only of an equitable interest in goods may not assert his interest against a bona fide purchaser of the legal title to the goods. International Factors v. Rodriguez was decided per incuriam to the extent that it held that equitable rights . .
Cited – Hirachand Punamchand v Temple CA 1911
The defendant, a British army officer in India, had given a promissory note to the plaintiff moneylenders. Unable to pay, he suggested they apply to his father, Sir Richard Temple. In reply, Sir Richard Temple’s solicitors wrote saying they were . .
Cited by:
Mentioned – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Barrett v Universal-Island Records Ltd and others ChD 15-May-2006
The claimant was entitled to share in the copyright royalties of Bob Marley and the Wailers, and claimed payment from the defendants. The defendants said that the matters had already been settled and that the claim was an abuse of process, and also . .
Cited – Foster v Bon Groundwork Ltd EAT 17-Mar-2011
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Contract
Updated: 25 November 2022; Ref: scu.144906