This was an appeal from Judge McFarland’s decision to dismiss the second defendant’s application to stay or strike out a claim by the plaintiff on the grounds that his Civil Bill claim for damages was in breach of the doctrine of cause action estoppel and/or constituted an abuse of process.
These proceedings arose from a road traffic accident which occurred on 15 September 2005. The second named defendant had issued a Civil Bill on 8 May 2008 against the plaintiff for damages in respect of the damage caused to his vehicle in the collision concerned. His Honour Judge Grant dismissed the Civil Bill on 3 April 2009.
The second named defendant did not pursue an appeal within the time prescribed which expired on 26 April 2009. Thereafter solicitors for the plaintiff wrote to the second named defendant’s solicitors on 27 April 2009 seeking recovery of the plaintiff’s insurance policy excess and repair costs of his vehicle. This claim was brought by the plaintiff’s solicitors by way of subrogation on behalf of the plaintiff’s insurers. On foot of this the second named defendant applied to the Master to extend time for an appeal against the decision in the initial proceedings but the application was refused by Master Bell on 22 June 2009. No such payment was made for the repairs and excess and a Civil Bill was issued by the plaintiff for recovery of the insurers outlays on 15 April 2010.
The second named defendant brought an application to stay or strike out the proceedings which was heard by Judge McFarland on 25 June 2010. The judge dismissed the application.
The plaintiff asserted that at the hearing before Judge McFarland the first named defendant accepted that he was aware that he had caused damage to the plaintiff’s car and that he offered to pay several hundred pounds to the plaintiff at the scene for the damage. Consequently it is contended that the second named defendant was always at risk to financial exposure if he was unsuccessful or partly successful in the initial proceedings.
The first named defendant claimed that he was only aware of hitting the tow bar of the plaintiff’s vehicle and was not aware at any time of extensive damage to the plaintiff’s vehicle. He claimed that s that he pursued an action in the County Court against the plaintiff without receiving any indication from the plaintiff that he intended to make a claim for his own damage. He claimed that it was an abuse of process under the doctrine of cause of action estoppel to bring fresh proceedings on behalf of the plaintiff for damage to his vehicle. It is argued that there is no reason as to why the plaintiff did not raise a counterclaim for the damage to his vehicle at the initial hearing and that the subsequent proceedings constituted unnecessary duplication of costs and time. He further claimed that, relying on the fact that no such claim had been made, he was induced to make an economic assessment that on balance it was not financially astute to appeal against the decision of Judge Grant.
The respondent asserts that he had left the matter in the hands of his insurers. The insurers had allowed the proceedings before Judge Grant to determine the overall liability and relied on that determination to clear up any outstanding matters including the damage to the plaintiff’s car. It was an attempt to save the costs of a counterclaim and to ensure proper use of court resources and time.
In dismissing the defendant’s application Judge McFarland had held:
Mr Justice Gillan, considered that the doctrine of estoppel in the context of res judicata had two aspects. The first relates to those points actually decided by the original court which was, he considered, not relevant in this instance. The second aspect of estoppel in a wider sense arose where there are points which might have been brought forward at the time of the initial proceedings but were not. This second aspect, he considered, was not a true case of res judicata but rather was grounded on the principle of public policy - that there is finality of litigation and a defendant should not be vexed twice over the same matter.
Referring to the cases of Johnson v Gore Wood and Co (2002), Talbot v Berkshire County Council (1994) QB 290 and McNally v McWilliams (2001) NI 106, he felt that there was no hard and fast rule to be applied. Mr Justice Gillan felt that the preferable way to approach the matter was to ask whether in all the circumstances a party’s conduct is an abuse and if it is, to ask whether the abuse is excused or justified by special circumstances.
Mr Justice Gillan dismissed the appeal. Approaching this case on a broad merits based manner, he found nothing unreasonable about the plaintiff leaving the issues in the hands of his insurers and awaiting the outcome of the initial proceedings before attempting to recover the insurance excess and damage to the car. He discerned that there was no attempt on the part of the plaintiff to mislead the court or to act in bad faith and rejected the appellant’s contention that it amounted to “a trap being set.” He was not been persuaded that the presence of a claim by the plaintiff would have materially influenced the decision of the defendant not to enter an appeal to the initial proceedings.
In conclusion Mr Justice Gillan felt that it would be unjust to deprive the plaintiff and his insurers of the opportunity to seek recovery of damages in those circumstances.