Computers had been supplied by the second defendant to the claimant and first defendant at different times for exclusive distribution in the UK. Defects were alleged. The case concerned applications made for dismissal of a case as an abuse of process, and for discovery. A previous action had been settled against the second defendant. Allegations were made of computers being sold when they were known to be defective. Time sought to encourage the first defendant to join in IBM as Part 20 defendant, and agreed to limit its claim to assist.
Held: Pursuing one defendant and limiting the claim to what that defendant might recover from a third party, was not necessarily wrong. Abuse was possible when an issue was pursued which could have been dealt with in earlier proceedings. Time had not joined the first defendant in the first action. That rule is now capable of applying, even where the parties were different. When abuse is revealed, the court has a duty, not a discretion, to dismiss the action.
Held: Here the claimant was acting in a devious way, and the claim was an abuse and was to be struck out.
Judges:
His Honour Judge Bowsher QC
Citations:
[2002] EWHC 126 (Technology)
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Bradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm) CA 11-Mar-1999
There was an unsatisfied judgment on a claim by a defendant in an earlier action against a third party. In a subsequent action against the defendant the latter issued third party proceedings against the original and different third parties.
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited by:
Appeal from – Computer 2000 Distribution Ltd and others v ICM Computer Solutions Plc CA 17-Nov-2004
The claimant delivered computer equipment against a fraudulent invoice issued in the name of the defendant.
Held: The loss here had to fall on an innocent party. Having delivered the equipment to the site requested, the claimant had done all . .
Lists of cited by and citing cases may be incomplete.
Contract, Litigation Practice
Updated: 16 September 2022; Ref: scu.167600