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B v B [2005] EWCA Civ 237

The court’s overriding concern, to ensure that a claimant’s undetermined claims were justly tried, might be achieved in this case either by allowing second proceedings to continue or lifting the stay on earlier proceedings.

B v B [2005] EWCA Civ 237

Court of Appeal: Longmore LJ (10 March 2005)

Summary
The court's overriding concern, to ensure that a claimant's undetermined claims were justly tried, might be achieved in this case either by allowing second proceedings to continue or lifting the stay on earlier proceedings.

Background
The claimant, Ms B, had asserted that between 1990 and 1996 she was sexually abused on a regular basis by her father, Mr B. A trial took place in January 1997 at which Mr B was acquitted on certain counts but the jury could not agree on other counts. A retrial was planned for a date in April 1997 but did not take place since Ms B was not able to give evidence at that time. The judge therefore directed an acquittal.

Ms B reached the age of 18 on 31 May 1997 and could, if she wanted to bring civil proceedings against her father, have begun those proceedings at any time up to 30 May 2003. She had issued a claim form on 29 July 1997, in light of the fact that her father had moved to an address near to her; she claimed a non-molestation injunction and, as the law then required her to do, she also claimed general damages. There was no further progress in those proceedings as regards the claim for damages; and, if they still existed, they were automatically stayed on 25 April 2000 pursuant to CPR 1998, Part 51.

On 23 May 2003, Ms B issued proceedings for damages for the sexual abuse which she claimed to have suffered. Mr B argued that the earlier proceedings did continue to exist and that it was an abuse of process to have started second proceedings which should, therefore, be struck out. Ms B denied any abuse of process but claimed that, if the second proceedings were to be struck out, the stay of the first proceedings should be lifted. In May 2004, the judge at first instance decided in favour of Mr B, holding that it was far too late now to lift the stay imposed by the new Civil Procedure Rules; and a circuit judge dismissed Ms B's appeal.

In this second appeal, the court considered the relative claims of the parties, and weighed the considerations under CPR 1998, rr 1.1(1) and 3.9(1).

Judgment
Held, allowing the appeal, that the overriding concern of the court should be to ensure that the claimant's undetermined claims be justly tried. The proper conclusion was to resolve the issues, preferably within the 2003 proceedings; however, if those proceedings were to be struck out, the stay on the 1997 proceedings should be lifted.

Arden and Brooke LJJ made specific mention of the duty imposed on the claimant's solicitors under CPR 1998, r 1.3 (to help the court to further the overriding objective), and considered that lengthy and costly litigation could have been avoided if they had communicated with the defendant's solicitors shortly after the new proceedings commenced.

Read the full text of the judgment