The claimant had asked the court to revoke the probate granted in his brother’s estate. He appealed now against a strike out of his request. He alleged that the will was a forgery. The executor’s and defendants were not relations of the deceased, but acquaintances. An earlier claim had been struck out, and the costs order then made remained unpaid. The defendants said this was a repeat of the claim and an abuse of process.
Held: Apart from the non-payment of the costs awarded, the court could not identify any clear way in which the claim was an abuse. The first claim had been struck out not on any assessment of the merits, but for a technical failure. The matter could proceed on payment of the oustanding costs within 14 days.
Briggs J
[2011] EWHC 908 (Ch)
Bailii
England and Wales
Citing:
Cited – Arbuthnot Latham Bank Limited; Nordbanken London Branch v Trafalgar Holdings Limited; Ashton and Ashton CA 16-Dec-1997
The issue was the appropriateness of a Court striking an action out where there has been considerable delay if: (i) the cause of action relied upon by the plaintiff in the proceedings would be statute barred if the action were to be struck out, but . .
Cited – Ashton and Another v Securum Finance Ltd CA 21-Jun-2000
In the new litigation culture it was correct to strike out a second action which fundamentally re-litigated a case which had previously been struck out on the grounds of abuse of process or delay. The court’s case management required it to consider . .
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 – Aldi Stores Ltd v WSP Group Plc and others CA 28-Nov-2007
Aldi appealed against an order striking out as an abuse of process its claims against the defendant on a construction dispute. The defendant said the claims should have been brought as part of earlier proceedings.
Held: The appeal succeeded. . .
Cited – Dexter Ltd v Vlieland-Boddy CA 2003
The court discussed the significance of Johnson v Gore Wood.
Clarke LJ said: ‘The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood and Co [2002] 2 AC 1, can be summarised as follows:
Cited – Investment Invoice Financing Ltd v Limehouse Board Mills Ltd CA 18-Jan-2006
It was proper for a court to prevent a second action on a matter where an order for payment for the costs of a first action between the parties had not been discharged by the claimant. In such a case the potential for abuse lies in the unfairness of . .
Cited – Re Flynn Deceased ChD 1982
An application was made to dismiss a challenge to a codicil on the basis that the claim disclosed no cause of action. The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack . .
Cited – Grovit and Another v Doctor and Others CA 28-Oct-1993
A delay in the prosecution of a libel case can be interpreted as an abuse of process. A claimant must pursue his case with vigour, and the court should be ready to resist the use of actions to gag defendants. The court asked whether the appellant’s . .
Cited – Grovit and others v Doctor and others HL 24-Apr-1997
The plaintiff began a defamation action against seven defendants. Each had admitted publication but pleaded justification. The claims against the fourth to seventh defendants were dismissed by consent, and the third had gone into liquidation. The . .
Lists of cited by and citing cases may be incomplete.
Wills and Probate, Litigation Practice
Updated: 02 November 2021; Ref: scu.432734