The appellants appealed against a refusal to strike out as an abuse of process the respondent’s claim against them for professional negligence in the drafting of development agreements.
Buxton LJ considered the nature of the enquiry on such an application: ‘The court . . has to consider, by an intense focus on the facts of the particular case, whether in broad terms the proceedings that it is sought to strike out can be characterised as falling under one or other, or both, of the broad rubrics of unfairness or the bringing of the administration of justice into disrepute. Attempts to draw narrower rules applicable to particular categories of case (in the present instance, negligence claims against solicitors when an original action has been lost) are not likely to be helpful.
As to the proper approach of this court, TW sought to draw from Lord Diplock’s disavowal of the word discretion the conclusion that, since the issue was not one for the discretion of the judge, in any appeal this court should start again, and simply decide whether the trial judge had been right or wrong. I do not think that the matter is so straightforward. In the passage relied, on Lord Diplock was indicating that to strike out a case brought without infraction of the rules of procedure was a serious step, not to be taken unless the circumstances were sufficiently extreme as to demonstrate that the judge had a duty to act. That is a much more stringent test than simply to say that the circumstances must fall within a category that entitles the judge to decide for himself whether or not to take action. It is therefore correct that this court, in reviewing the judge’s decision, is not limited to considering whether the facts fell within a wide ambit of discretion. At the same time, however, the issue although not one of discretion is one of judgment in determining whether the duty referred to by Lord Diplock arises. In reviewing such an exercise of judgment this court will always give considerable weight to the opinion of the judge, and particularly so when that opinion has been formed by a commercial judge of many years’ experience.’
Judges:
Buxton LJ, Laws LJ, Moses LJ
Citations:
[2007] EWCA Civ 1146, [2008] PNLR 11
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Appeal From – Laing v Taylor Walton (A Firm) QBD 20-Feb-2007
The claimant sought to pursue an action for professional negligence against his solicitors. They said that the action was an abuse being an attempted relitigation of matters already settled when a judge had decided that the defendants had not owed a . .
Cited by:
Cited – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
Explained – Kotonou v National Westminster Bank Plc CA 30-Oct-2015
Appeal against summary dismissal of claim against the bank based on Henderson v Henderson.
Gloster LJ, commented on Buxton LJ’s observations in the Taylor Walton case: ‘Thus, in my view, what is required in the present case is ‘an intense focus . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice
Updated: 12 July 2022; Ref: scu.261316