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Being tried for the same tort twice: Double jeopardy in the civil courts

Bryan Patterson-Whitaker considers the recent case of Andrew Deighton v (1) Andrew Collett (2) Roberts Express Deliveries Ltd (2016).

The High Court dismissed an appeal against a judge’s refusal to strike out as an abuse of process a Claimant’s personal injury claim despite the Claimant being aware of parallel proceedings against the same Defendant, brought by a different claimant arising out of the same incident, which were ultimately decided in the Defendant’s favour.

The claim arose out of a road traffic accident that occurred when a vehicle (driven by the First Defendant and owned by the Second Defendant) collided with a lorry. The lorry hit the Claimant’s car. The lorry operator brought an unsuccessful claim against the Defendants who had succeeded on an automatism defence. The Claimant in the later proceedings relied on new evidence. The Defendants sought to strike out on the basis that it was manifestly unfair and an abuse of process to bring further proceedings as the matter had already been litigated. The judge refused the application, finding (1) that the Claimant had not been privy to the original proceedings and (2) it was not unfair and abusive to allow him to proceed.

On appeal, there were two issues to be decided; (1) whether the Claimant had been privy to the first action and (2) whether letting the claim continue would be an abuse.

Mr Justice Jay held that a mere curiosity or concern with the outcome of previous litigation was not sufficient to establish privity (Gleeson v Wippell & Co Ltd [1977] 1 WLR 510 applied). The absence of an identifiable antecedent relationship was fatal to privity (with an involvement in the same accident being insufficient). Although the Claimant had attended the original hearing, merely standing by was insufficient to create an estoppel by conduct. The presence or absence of privity could not depend on loose behavioural factors.

Secondly, where there was an absence of privity then it would only be an abuse of process to challenge the factual findings of the judge if (1) it would be manifestly unfair to a party in the later proceedings that the same issues should be re-litigated, or (2) permitting re-litigation would bring the administration of justice into disrepute (Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321 followed). In the instant case the judge had not been satisfied as to manifest unfairness; the new evidence may well lead to a different outcome. The Claimant should have been involved in the original trial but that was not a factor that weighed so heavily in the balance that the claim should be struck out. The Claimant had sustained serious injuries and his case could not be described as ‘very weak’.

As a general rule, not least because of the overriding objective, the courts discourage parties from re-litigating decided issues. However, Deighton re-confirms that whether such litigation constitutes abuse is by no means a foregone conclusion.

Bryan Patterson-Whitaker

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