- Second action following discontinuance—CPR 38.7 and Henderson abuse considered (Ward (acting as a liquidator) v Hutt)
- What are the practical implications of the case?
- Is a new claim necessary?
- The court’s permission should be obtained pursuant to CPR 38.7
- Beware of limitation
- Does res judicata apply?
- What constitutes an abuse of process?
- What was the background?
- What did the court decide?
- Case details
Dispute Resolution analysis: The High court was asked to strike out/enter summary judgment in favour of two directors (Hutt and Loughlin) who were the subject of a liquidator’s (Ward’s) claim for a declaration that a payment of £160,000 was void as a preference, despite a previous claim against them for breach of statutory duty and misfeasance arising out of the same facts, which had been discontinued. The court held that CPR 38.7 applied (permission required for making another claim following discontinuance) but had not been complied with and refused permission under that rule. The court also struck out the claim on the grounds that it was an abuse of process. The case throws up some interesting procedural points regarding the operation of CPR 38.7 (particularly where limitation is at issue) and the circumstances in which res judicata will apply.
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