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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Produced in partnership with Ali Tabari of St Philips Chambers
Published on LexisPSL on 21/01/2021

The following Dispute Resolution Q&A produced in partnership with Ali Tabari of St Philips Chambers provides comprehensive and up to date legal information covering:

  • 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?

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 struck out or barred as res judicata, the substantive issues must have been determined by a competent tribunal already; alternatively, there must have been a determination which could properly have dealt with the subject matter of the new claim but did not. See Practice Note: Key requirements to est

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