Q&As

If both a claim and counterclaim are struck out by a judge due to the claimant’s default, is the defendant allowed to resurrect its counterclaim by issuing a new claim?

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Published on: 21 January 2021
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The court’s discretion to Strike out a case as an abuse of process under CPR 3.4(2)(b) incorporates a number of different rules, including those that may loosely be termed res judicata and Henderson abuse, namely: (i) the rule against relitigating matters already decided (the res judicata of cause of action estoppel and issue estoppel), and (ii) the rule against litigating matters which ought to have been raised in previous proceedings but were not (the rule in Henderson v Henderson). These two doctrines are often brought in the context of applying to strike out proceedings as abusive under CPR 3.4(2)(b) and, although there is a degree of overlap, the two concepts are distinct. See Practice Note: Res judicata and Henderson abuse.

Generally, for a claim to be

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Ali Tabari chambers

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Jurisdiction(s):
United Kingdom
Key definition:
Counterclaim definition
What does Counterclaim mean?

A claim brought by a defendant in response to the claimant's claim, which is included in the same proceedings as the claimant's claim.

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