RICHARD v JOHN’S SANDBLASTING AND PAINTING LTD

The Defendant appealed an Applications Judge’s dismissal of its Application to Strike the Plaintiff’s Statement of Claim as an abuse of process, pursuant to Rule 3.68. The Defendant argued that binding authority prohibited duplicate proceedings for the same cause of action and that the King’s Bench Action therefore had to be struck.

The Plaintiff first commenced a wrongful dismissal Claim in the Court of Justice. He later reassessed his damages and, with the limitation period approaching, commenced the same claim in the Court of King’s Bench. The Court of Justice Action was then discontinued approximately two weeks later. The Defendant was never required to defend both proceedings at the same time.

Justice Mah held that Rule 3.68 is discretionary and must be applied in light of Rule 1.2 and the goal of fair, just, and proportionate results. The authorities relied upon by the Defendant addressed cases of multiple prosecution, where two subsisting Actions were being advanced concurrently against the same Defendant. Justice Mah determined that those cases were distinguishable.

Here, although the two Actions briefly overlapped in time, the first was discontinued before the second was brought to the Defendant’s attention, no steps were taken to advance either Action during the overlap, and the Defendant only ever had to respond to one proceeding. In those circumstances, no abuse of process was established.

The Appeal was dismissed. The Applications Judge had not failed to follow binding authority, and the Plaintiff was awarded costs of the Appeal in line with Schedule C.