Stays scare me. I suspect they attract obscure law that my opponents know but I don’t. Why does the law need the permanent stay? How is it different from a judgment? When is a stay a permanent stay, and when not? A solicitor friend who is one of the most experienced professional negligence lawyers in Victoria sent me Watson v Irwin Mitchell (a firm) [2009] EWHC 441 (QB); [2009] PNLR 32 because he thought it was up my alley. He is the only person I know who consistently introduces me to new authorities of interest to this blog quicker than I find them. In an effort to conquer my fears, I read it.
Claimants were dissatisfied with the settlement procured by their solicitors. So they sued for negligence, as you do. And no advocates’ immunity over in old Blighty any more. The claimants’ interlocutory defaults led to a costs order against them and a stay. Not a permanent stay, but a stay pending further order. It remained open to the claimants to pay the costs and have the stay lifted. Instead, they started a similar but not identical case against the solicitors who then sought a stay of the new claim on the basis that it was an abuse of process. Though not identical, the Court of Appeal found that it was substantially the same.
The solicitors contended that the second claim:
‘is an abuse of the process of the Court because it is duplicative, being an attempt to re-litigate in a fresh action issues which are already before the court in the existing (albeit stayed) action. Thus, it is an attempt by the claimants to circumvent the procedural problems which have beset that action, particularly the stay, without first overcoming those problems and satisfying the costs obligations which fall upon them.’
The Court of Appeal agreed and stayed the second claim. In Sinclair v British Telecommunications Plc [2001] 1 WLR 38, a claim had been stayed for duplicating a previous proceeding stayed for want of prosecution. But a proceeding stayed for want of prosecution comes to an end, unlike a stay pending further order. So the authority did not determine this case. Justice Clarke resorted to Lord Bingham’s version of abuse of process in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31. It is England’s latest restatement of what they call the rule in Henderson v Henderson and we call Anshun estoppel. That which could have and should have been advanced between two parties in one claim may not be advanced between them in a subsequent claim. It is interesting that the species of abuse of process identified was not the impermissibility of having two claims about the same thing in two different courts at the same time. That would seem to me to be the more obvious analysis given his Honour’s finding that the first case could be revived by payment of the costs. But don’t listen to me. As I said, stays scare me.
