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Rowan Turrall
Rowan Turrall,
SENIOR ASSOCIATE - SOLICITOR
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Update on discontinuance
12 June 2012

In a recent article we commented on the Court’s decision in the case of Westbrook Dolphin Square Limited and Friends Life Limited [2011]. Westbrook appealed the judge’s decision which struck out proceedings it had brought against Friends Life.

As set out in our previous article, Westbrook had discontinued one set of proceedings against Friends Life and commenced a second set based on largely the same set of facts and circumstances. The judge at first instance decided that the second set of proceedings should be struck out, relying on Part 38 of the Civil Procedure Rules. The Court of Appeal disagreed with his decision.

The claim was based upon notices served under the Leasehold Reform, Housing and Development Act 1993. The Court of Appeal decided that as the Act envisaged the right to serve successive notices it must follow that the tenant could bring successive applications to court in respect of those notices.

The Master of the Rolls summarised the principle as follows:-

“where a rule of court appears to be otherwise inconsistent with a statutorily conferred right, then, unless it would be contrary to its express terms, the rule should be construed as not applying to proceedings brought in accordance with that right.”

Westbrook therefore succeeded in its appeal and its application was reinstated.

In our previous article we highlighted the perils of discontinuing proceedings where a claimant might wish to start a second claim based on substantially the same facts. Although Westbrook was successful in this case, the case is based on a particular statutory provision and so the case is not of widespread application. As a result although the court’s decision in this case has changed it should not be seen as a green light allowing parties to discontinue claims and then issue fresh proceedings without the risk of strike out. 

For more information about this issue or to find out how the construction team can help you please contact Rowan Turrall on 0118 952 7206 or email [email protected].

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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