PI Brief Update

Attempted second bite of the cherry or a different fruit all together? Outotec and another v MW High Tech Projects UK Limited [2024] EWCA Civ 844 - Andrew Ratomski, Temple Garden Chambers

19/08/24. Date of judgment: 24 July 2024

Perfect for mid-summer reading, this case is about the much litigated question of whether a party was trying to have a second bite of the cherry or having a go at a different summer fruit all together. The issue for the Court of Appeal was whether the first-instance judge erred in concluding that proceedings would not be struck out as an abuse of process in accordance with the principles of Johnson v Gore Wood and Co [2002] 2 AC 1 and in particular whether a breach of the “Aldi guidelines” was sufficient to justify strike out as abuse or whether it was necessary to demonstrate in addition vexation, oppression or harassment? 

Facts

The claim arose from a dispute between contractors relating to the development of a “waste to energy” power plant in Hull. The main contractor terminated its contract with MW, the Respondent to the appeal, on the basis that it had reached a contractual cap on liabilities for liquidated damages and so claimed damages for delays and the consequences of termination. There was a counterclaim and the main action resulted in a liability judgment and later a settlement. However, the day before a second judgment was to be handed down, MW commenced a second set of proceedings alleging misrepresentation. The claimant challenged these new proceedings as an abuse of process and the decision of HHJ Stephen Davies sitting as a Deputy High Court Judge not to strike them out was subject to the appeal.

Coulson LJ concluded that on one hand the new misrepresentation claims were indeed new fruit comprising...

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