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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

Claim No. CV 2012-04235

BETWEEN

DAVID WALCOTT

Claimant

AND

SCOTIABANK TRINIDAD AND TOBAGO LIMITED

Defendant

Before the Honorable Mr. Justice V. Kokaram

Date of Delivery: 2nd

May 2013

Appearances:

Mr. David Walcott in person

Mr. Kirk Bengochea instructed by Ms. Kaveeta Persad for the Defendant

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JUDGMENT

1. Before the Court are two procedural applications: the Claimant’s application for

judgment on admissions and the Defendant’s application to, among other matters, strike

out the claim on the ground that it is an abuse of process. The procedural applications

raise the question whether a Claimant should be permitted to re-litigate the same issue

which was raised or could have been raised in earlier proceedings and which were not

determined on their merits. The Claimant contends that the Defendant cannot be

permitted to “hide” behind the procedural bar of res judicata and deny the Claimant his

constitutional right to access to justice and be given the opportunity of litigating his case

on the merits. Accordingly he forcefully contends that the Court must deal with his

application for judgment on admissions without any procedural fetter created by res

judicata either as cause of action or issue estoppel.

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2. The application brings to sharp focus the application of the doctrine of res judicata and

the well known principles of “Henderson v Henderson abuse of process”. These

principles are critical in the civil process to bring finality to litigation and to avoid the

oppression of a defendant by subjecting it to unnecessary successive actions. There are in

fact two competing interests in play in considering the Henderson v Henderson abuse of

process or as it is known res judicata in the “wider sense”: that of the litigant’s right to

access to justice and the public’s interest in bringing finality to litigation and to avoid a

multiplicity of proceedings. It is a matter of public policy to protect the civil litigation

process from abuse and this is reinforced by the Court’s new mandate under the CPR

which places emphasis on the efficiency and economy in the conduct of litigation and

balancing it with the interest of parties and the resources of the Court key considerations

of the overriding objective: Rule 1.1 CPR. A proper examination of whether the

multiplicity of actions is an abuse of process falls neatly within the Court’s case

management powers to give effect to that overriding objective. In a classic David and

Goliath analogy it may be a strange thing to say that a financial institution such as a bank

in this case the Defendant, is being harassed by a simple client in the form of David

Walcott, the Claimant, who in this case chose to be unrepresented, nevertheless the

principles of Henderson v Henderson abuse of process are pellucid and apply without

discrimination.

3. In my view, it is an abuse of the process for this court to manage and try a claim which is

identical to a claim previously dismissed for itself being as an abuse of process and which

claim raises issues which could have been articulated in yet an earlier action. Although

there has been no prior determination of the merits on those issues, that is not

determinative of the question whether the successive action is an abuse of process. There

are many circumstances in which a successive action which articulates the same issues as

an earlier action is an abuse of process where there has not been a determination on the

merits in the earlier action. This case is but one example. Here the Claimant has made a

conscious choice not to appeal the earlier decision dismissing his claim as an abuse of

process, when it was open to him to do so, but rather to litigate the identical matter

afresh. This is to encourage the circumvention of an appellate process which in itself

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enshrines and protects the litigant’s right to access to justice. It makes a mockery of the

appellate process if litigants when faced with an unfavourable decision on a procedural

issue or which results in its dismissal to simply re-file the claim. It brings the

administration of justice into disrepute. Compounding matters, in the usual course of

filing these proceedings the Claimant is obliged to indicate that the new claim is related

to an earlier proceeding to allow for the Court Office to appropriately list the new claim

in the docket of the judge who is dealing with the related matter. Ordinarily therefore this

new matter should have been heard before the Judge who in fact had dismissed his prior

action as an abuse of process. In those circumstances, the fact that this same question is

being adjudicated by another judge of concurrent jurisdiction in itself highlights the

nature of the Claimant’s abuse and an unpardonable manipulation of the Court’s process.

Such litigation must be smothered in its infancy, as to permit such re-litigation is wholly

inconsistent with the overriding objective of dealing with cases justly having regard to

the principles of equality, proportionality and economy. It is no excuse that the subject

matter of this claim has not been adjudicated upon previously. The fact is the Claimant

had ample opportunity to pursue his claims in previous proceedings and it is vexatious

and an abuse for him to do so now in these fresh proceedings.

4. The Claimant’s claim arose out of an erroneous “auto-debit” made by the Bank from the

Claimant’s chequing account on 11th

December 2008 to service the Claimant’s loan

account. The sum was re-credited to the Claimant’s account on the same day. As a result

of this erroneous credit the Claimant claims damages in trespass, negligence, breach of

duty, breach of contract and breach of trust. The total claim is in the sum of $94,000.00

even though the installment debited and credited was in the sum of $3,399.87. On the

face of the pleadings the damages claimed appear to be plucked from the air without any

nexus to any actual damage or loss sustained by the Claimant.

5. However these same facts formed the basis of the Claimant’s claim in two previous High

Court actions CV2009-02819, the first action and CV2009-04203, the second action.

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6. In the first action the Claimant similarly complained of erroneous debits from his account

purportedly to service his loan account. The claim then was for damages for Breach of

Contract; Detinue; Defamation; Breach of Express Agreement; Breach of Court Process;

Special Damages; and a Mandatory Injunction. In its claim form the Claimant referred to

three occasions when the Bank “unlawfully entered into the Claimant’s chequing account

and withdrew the sum of $3,399.79.” Although the claim centred on a debit from the

account in the sum of $4,300.00 on the 31st July 2009, the Statement of Case also makes

reference to the erroneous debits made subsequent to 11th

November 2008.

7. On August 6, 2009, the Claimant sought and obtained leave during the court vacation to

make the following application for injunctive relief:

a. A mandatory injunction to command the Defendant to reinstate the sum of

$4,300.00 to the Claimant’s Checking Account, which claim was abandoned at

the hearing of the Injunctive Application;

b. Prohibitory injunctions against the Defendants to restrain them from

i. making any deductions from the Claimant’s Checking Account;

ii. placing any holds on the Claimant’s Checking Accounts;

iii. dishonouring any of the Claimant’s cheques unlawfully;

iv. adding any additional interest and penalty charges to the Claimant’s Loan.

8. On August 13, 2009, the Honourable Mr. Justice des Vignes refused the prohibitory

injunctions sought on the ground that none of the issues raised with respect to the reliefs

sought gave rise to an issue to be tried. The learned Judge observed that the injunction in

the face of the Claimant’s admitted indebtedness on his loan account, would have

prevented the Defendant from exercising their contractual and common law rights of a

general lien on all securities deposited with them. The learned Judge also ordered that the

Claimant pay the Defendant’s costs in the Application in the amount of $25,000.00.

9. The Claimant’s appeal against this judgment was withdrawn with costs to be paid to the

Defendant in the sum of $2,500.00. Despite the Claimant’s indication that he would file

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an application for an extension of time to file the Record of Appeal and for a stay of

execution of the Order of the Honourable Mr. Justice Des Vignes, he has not yet done so.

It would appear that this matter is still alive. It was assigned to the docket of the

Honourable Madame Justice Joan Charles; the Defendant filed its Defence on October

21, 2009 and the Claimant its Reply on the June 14, 2010. There were six CMC’s with

the matter eventually being withdrawn on 31st October 2012.

10. On 12th

November 2009, while the pleadings in the first action had not yet been closed,

the Claimant launched his second action claiming, inter alia, damages for breach of

contract for imposing an automatic debit facility on the Claimant’s chequing account in

order to gain un-authorized access to the Claimant’s funds and to provide additional

security for an unsecured loan; damages for wrongful and unlawful trespass on December

11, 2008, when the Defendant debited the Claimant’s chequing account for the monthly

installment; and damages against the Defendant for failure to inform the Claimant after

one month of the mistaken establishment of the automatic debit facility.

11. This claim also came on for hearing at a Case Management Conference on December 2,

2010, before the Honourable Madame Justice Joan Charles. Similarly as is the case in this

present claim the Claimant had also filed an application for Judgment of Admission and

the Defendant had filed an application to strike out the claim as an abuse of process.

12. On May 26, 2011, the Honourable Madame Justice Joan Charles dismissed the Claim

Form and Statement of Case in the Second Action as being frivolous, vexatious and an

abuse of process of the Court. Significantly the Claimant advanced identical arguments

before that Court as he is doing now in these proceedings which in the main are that the

Defendant ought not to be heard as it filed no defence to the claim, that this amounted to

a judgment on admission, that he is therefore entitled to judgment and that to strike out

the Statement of Case would amount to a denial of his right of access to the court and a

breach of his constitutional rights. The Court applied the test set out in Henderson v

Henderson and held that the second action was an abuse as the facts upon which the

second action was based were well known to the Claimant at the time of the filing of his

first action. Significantly that Court noted that the first action had not been adjudicated

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upon and the Claimant still had an opportunity to amend his claim. The filing of the

second action before the determination of the first action and during its subsistence

amounted to an abuse of process and was frivolous and vexatious. Costs were awarded in

the sum of $10,150.00 to the Defendant.

13. The subject of the present claim is the very same transaction which was the subject of the

second action, namely, the debiting of the Claimant’s chequing account on the 11th

of

November 2008. Against this backdrop I fail to see how the Claimant can expect another

result other than this claim also being struck out for an abuse of process where it is being

pursued in the face of the substituting first action and in obvious defiance to the judgment

in the second action. In the second action the Court struck out the claim as an abuse of

process as the Court was of the view that the claims advanced could have been raised in

the first action. There was no appeal of that decision. On what logical basis can the

Claimant now launch and continue these very same proceedings if not for the purpose of

circumventing the time limits imposed for filing an appeal against the judgment in the

second action. In these circumstances the principles of “Henderson v Henderson abuse

of process” apply. Wigram VC explained the governing principles as:

“I believe I state the rule of the court correctly, when I say, that where a given

matter becomes the subject of litigation in, and of adjudication by, a court of

competent jurisdiction, the court requires the parties to that litigation to bring

forward their whole case, and will not (except under special circumstances)

permit the same parties to open the same subject of litigation in respect of matter

which might have been brought forward as part of the subject in contest, but

which was not brought forward only because they have, from negligence,

inadvertence, or even accident, omitted part of their case. The plea of res judicata

applies, except in special cases, not only to points on which the court was actually

required by the parties to form an opinion and pronounce a judgment, but to

every point which properly belonged to the subject of the litigation and which the

parties, exercising reasonable diligence, might have brought forward at the

time”.1

1 [1843-60] All ER 378 at 381-382

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14. A plea of res judicata, therefore, is not confined to the issues which the court is actually

being asked to decide, but it covers issues or facts which are so clearly part of the subject

matter of the litigation and so clearly could have been raised that it would be an abuse of

process of the court to allow a new proceeding to be started in the respect of them. See

Greenhalgh v Mallard [1947] 2 All ER 255. The plea of res judicata has however

developed fine distinctions between cause of action estoppel and issue estoppel as

explained in Bradford and Bingley Building Society v Seddon [1999] 1 WLR 1482.

“In my judgment, it is important to distinguish clearly between res judicata and

abuse of process not qualifying as res judicata, a distinction delayed by the

blurring of the two in the courts’ subsequent application of the above dictum [of

Sir James Wigram VV in Henderson v Henderson. The former, in its cause of

action estoppel form, is an absolute bar to relitigation, and in its issue estoppel

form also, save in ‘special cases’ or ‘special circumstances’: see Thoday v

Thoday [1964] p 181, 197-198, per Diplock LF, and Arnold v National

Westminster Bank plc [1991] 2 AC 93. The latter, which may arise where there is

no cause of action or issue estoppel, is not subject to the same test, the task of the

court being to draw the balance between the competing claims of one party to put

his case before the court and of the other not to be unjustly hounded given the

earlier history of the matter…

“Thus, abuse of process may arise where there has been no earlier decision

capable of amounting to res judicata (either or both because the parties or the

issues are different) for example, where liability between new parties and/or

determination of new issues should have been resolved in the earlier proceedings.

It may also arise where there is such an inconsistency between the two that it

would be unjust to permit the later one to continue.””

15. Indeed in a commendable attempt to simplify the application of the doctrine of res

judicata or “Henderson v Henderson abuse of process” May LJ in Manson v Vooght

[1999] BPIR 376 explained:

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“In my view, the use in this context of the phrase ‘res judicata’ is perhaps

unhelpful, and this not only because it is Latin. We are not concerned with cases

where a court has decided the matter; but rather cases where the court has not

decided the matter, but where in a (usually late) succeeding action someone

wants to bring a claim which should have been brought, if at all, in earlier

concluded proceedings. If in all the circumstances the bringing of the claim in the

succeeding action is an abuse, the court will strike it out unless there are special

circumstances. To find that there are special circumstances may, for practical

purposes, be the same thing as deciding that there is no abuse, as Sir Thomas

Bingham MR came close to holding on the facts in Barrow v Bankside Agency Ltd

[1996] 1 WLR 257. The bringing of a claim which could have been brought in

earlier proceedings may not be an abuse. It may in particular cases be sensible to

advance cases separately. It depends on all the circumstances of each case. Once

the court’s consideration is directed clearly towards the question of abuse, it will

be seen that the passage from Sir James Wigram VC’s judgment in Henderson v

Henderson 3 Hare 100 is a full modern statement of the law so long as it is not

picked over semantically as if it were a tax statute.”

16. The Claimant repeatedly advanced in his submissions his right and entitlement to re-

litigate his claim as it was never determined on the merits. However as May LJ explained

the court is engaged in an exercise of determining if special circumstances exist for a

succeeding action not to be held to be an abuse. There is no clear entitlement in those

circumstances or any legitimate expectation as argued by the Claimant.

17. The Henderson v Henderson abuse of process is recognized as a wider form of res

judicata and equally applies to claims that have not been litigated on the merits

previously and following the change in culture in the court’s approach to case

management, it is no longer acceptable to seek to litigate, in subsequent proceedings,

issues already raised but not adjudicated upon in earlier proceedings which had

themselves been struck out on grounds of delay or abuse of process. In deciding whether

to permit the second action to proceed, the court will bear in mind the overriding

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objective and will consider whether the claimant’s wish to ‘have a second bite at the

cherry’ outweighed the need to allot the court’s limited resources to other cases. See

Caribbean Civil Court Practice 2011, D. Mambro Note 23.27.

18. Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 underscored the

underlying public interest in the Henderson v Henderson abuse of process in simple

terms:

“But Henderson v Henderson abuse of process, as now understood, although

separate and distinct from cause of action estoppel and issue estoppel, has much

in common with them. The underlying public interest is the same: that there

should be finality in litigation and that a party should not be twice vexed in the

same matter. This public interest is reinforced by the current emphasis on

efficiency and economy in the conduct of litigation, in the interests of the parties

and the public as a whole. The bringing of a claim or the raising of a defence in

later proceedings may, without more, amount to abuse if the court is satisfied (the

onus being on the party alleging abuse) that the claim or defence should have

been raised in the earlier proceedings if it was to be raised at all. I would not

accept that it is necessary, before abuse may be found, to identify any additional

element such as a collateral attack on a previous decision or some dishonesty, but

where those elements are present the later proceedings will be much more

obviously abusive, and there will rarely be a finding of abuse unless the later

proceeding involves what the court regards as unjust harassment of a party. It is,

however, wrong to hold that because a matter could have been raised in earlier

proceedings it should have been, so as to render the raising of it in later

proceedings necessarily abusive. That is to adopt too dogmatic an approach to

what should in my opinion be a broad, merits-based judgment which takes

account of the public and private interests involved and also takes account of all

the facts of the case, focusing attention on the crucial question whether, in all the

circumstances, a party is misusing or abusing the process of the court by seeking

to raise fore it the issue which could have been raised before. As one cannot

comprehensively list all possible forms of abuse, so one cannot formulate any

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hard and fast rule to determine whether, on given facts, abuse is to be found or

not.”

19. Recently the Caribbean Court of Justice in Garraway v Williams and Rambarran GY

2011 CCJ#5 examined the doctrine of res judicata and in reference to the classical

exposition of the governing principles set out in Henderson v Henderson observed:

“[17] The fundamental rule in Henderson v Henderson (supra) has stood the test

of time, albeit it has been restated in more flexible terms in more recent times.

There remains a basic obligation on a litigant to present the entirety of his case

all at once rather than in a piecemeal fashion. Failure by one party to present the

whole case at once is detrimental to the interests of the other parties and the

efficiency of the judicial system. In assessing whether a defence of res judicata

will succeed in barring new proceedings, the courts adopt a broad merits-based

approach which takes into account all the relevant facts in order to decide

whether in all the circumstances of the case a party is misusing abusing the

processes of the court by bringing proceedings in respect of issues that should

reasonably have been brought in earlier proceedings (see Lord Bingham of

Cornhill in Johnson v Gore Wood & Co [2002] AC 1 at p. 24).”

20. Such a broad merits based approach is the modern approach and it is salutary as it

recognizes that one of the purposes of an estopppel is to work justice between the parties

and it is quite open to recognizing that in special circumstances an inflexible application

of the rule of res judicata or issue estoppel may have the opposite effect.

21. Some of the local cases in which the principle was applied and which have been drawn to

my attention were Teddy Mohammed v. Gold and Gold Limited HCA No S447 of

2002 Danny Balkissoon v. Roopnarine Persad and JSP Holding Limited CV 2006-

00639 Urtis Mendoza v Daily News Ltd CV2008-03176.

22. The first action was in relation to the Defendant’s debiting of the Claimant’s chequing

account in relation to his loan from the Defendant in circumstances where the Claimant

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claimed the Defendant was not entitled to debit the said account. Certainly then, the

debiting of the Claimant’s chequing account on November 11, 2008, should have formed

part of that Claim and could have been litigated in that action. Although the Claimant

was fully aware of the debiting of his checking account, such transaction was not,

however, pursued in the first action through ignorance or inadvertence. That claim was

then withdrawn, after promises of filing an appeal against Justice de Vignes order. That

issue was then pursued in the second action which was dismissed as an abuse of process.

Now, the third action seeks to rehash the very same issue in the second claim. In specific

answer therefore to the Claimant’s concern that his claim has not yet been heard on the

merits, the backdrop of this action reveals that not only had the Claimant the opportunity

to litigate his claim on the merits in the first action but that the identical claim had

already been struck out as an abuse in the second action and he cannot now with a fresh

action mount a collateral attack on that judgment.

23. In Securum Finance Ltd v Ashton [2001] Ch 291 and D C (A Child Suing by Her

Father and Litigation Friend) v CPS Fuels Ltd (supra) the courts explained why a

successive abuse can be struck out as an abuse of process where there was a dismissal of

an earlier claim which was not determined on the merits. In Securum Finance Ltd v

Ashton, it was held that:

“It was no longer open to a litigant whose action was struck out for delay to rely

on the principle that a second action commenced within the limitation period

would not be struck out save in exceptional circumstances; that in actively

managing litigation, and in deciding whether to strike out a claim under CPR r

3.4, the court had to consider the overriding objective in rule 1.1(1) of doing

justice and decide whether the claimant's wish to pursue a second case against

the same opponent outweighed the need to allot the court's limited resources to

other cases…”

24. As Chadwick LJ correctly observed the brining of a successive action in the

circumstances of this case may fall loosely in a category of abuse of a disproportionate

use of by the Claimant of the court's resources. With the change of culture that has taken

place in the last seven years with the advent of the CPR the court must now address this

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new action with the overriding objective in mind and it must in the words of Chadwick

LJ "consider whether the Claimant's wish to have a second bite at the cherry outweighs

the need to allot its own limited resources to other cases. Some special reason has to be

identified to justify a second action being allowed to proceed.”

25. Similarly in D C (A Child Suing by Her Father and Litigation Friend) v CPS Fuels

Ltd, a prior matter was struck out after the failure of the claimant in those proceedings to

comply with directions of the court. The Court held that it was an abuse of the process

for the Claimant to seek to litigate in the present action the same issues as were raised,

but not adjudicated upon, in the first action which was struck out as a result of

inexcusable failures to comply with the rules and court orders. To proceed to adjudicate

on a similar claim in light of the procedural default in the earlier action there must be

some special reason which, having regard to the overriding objective, would mean that it

was just to allow the present action to proceed.

26. Such special circumstances were absent in Wendell Steele v. Lennox Petroleum

Limited CV2009-04789 and Mendoza v. Daily News Limited and others CV2008-

3176. In both cases, the local Courts struck out the second actions on the ground that they

were an abuse of the court’s process taking a broad based merits approach and

determining whether the pursuit of the second action would further the overriding

objective set out in Part 1.1 (1).

27. The Claimant advanced "four pillars of opposition" to the Defendant's applications which

are ultimately baseless. He claimed to have a "legitimate expectation" to have an

adjudication on the merits. From the discussion above plainly any such expectation is not

absolute and must be weighed in the balance with procedural and substantive principles

such as Henderson v Henderson abuse of process preserving the integrity of the court's

process from abuse. Second he contends that his constitutional right to access to justice is

infringed by such an application. The Claimant cannot complain that he had not had

access to justice. He had it on two previous occasions. He has simply failed to take his

dispute to another level, to the Court of Appeal. He is himself the author of his own

misfortune in not having the matters determined on their merits. Third he relies on the

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1953 Convention for the Universal Protection of Human Rights and Freedoms. This too

fails on the basis of the preceding argument. Fourthly he relies on the judgment of

Charles J herself in dismissing his previous action. In my view it is scandalous for the

Claimant to make allegations against the judge hearing that matter and seek to re-litigate

the issues rather than file an appeal. This is tantamount to brining the administration of

justice into disrepute if the Claimant is permitted to advance exactly the same claim that

was rejected by Charles J. the proper course as I have explained earlier was to appeal and

have the decision reversed by a superior and not of concurrent jurisdiction. Such an abuse

was recognized by Lord Diplock in Hunter v Chief Constable of the West Midlands

Police [1982] AC 529. This approach of dismissing successive actions where it will bring

the administration of justice into disrepute was also endorsed by Lord Justice Buxton in

Taylor Walton v David Eric Laing [2007] EWCA Civ 1146.

28. The Claimant had strongly contended that this Court should deal with the Claimant’s

application for judgment on admission first. I fail to see the logic in that when there is an

earlier application to strike out the entire claim, but even if I am to consider both

applications together I cannot grant judgment on admission for the main reasons that the

Claimant cannot be allowed three bites at the same litigation cherry, there is no admission

of liability and the Claimant has been bold enough to admit that it decided to re-litigate

the very same issue due to rather spurious and untenable reasons which do not amount to

an exceptional case to institute or continue these proceedings.

29. Even if I am wrong to strike out this claim as an abuse of process, the two costs orders

already made in the previous two actions still remain unpaid and the action must be

stayed pending the payment of those costs. This action therefore falls squarely within the

parameters of Part 26.2 of the Civil Proceedings Rules, 1998 which provides as follows:

“Where (a) the court has struck out a claimant’s statement of case; (b) the

claimant is ordered to pay costs to the defendant; and (c) before the claimant

pays those costs, he starts a similar claim against the same defendant the court

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may on the application of the defendant stay the subsequent claim until the costs

of the first claim have been paid.2

30. In short parties must know that civil litigation is not a game. It is not a procedural casino

for litigants to gamble with the Court’s resources or that of the Defendant. Parties are to

properly formulate their claims with the genuine interest of seeking a resolution of their

dispute. The cost sanctions regime of wasted costs and the discretion to award costs

proportionately built into the rules underscores that the pursuit of litigation must be bona

fide and seek to promote the legitimate aim of bringing forward all its claims for

determination. Failure to do so must be accompanied by good reason and special

circumstances. In light of a public policy which calls for the economical disposition of

disputes and the preservation of the integrity of the court’s process there is very little

tolerance for claimants seeking to re-litigate claims where there were clear opportunities

open to do so in earlier proceedings.

31. The fact remains the Claimant has boldly admitted that he does not wish to pursue an

appeal against the judgment of Charles J who dismissed the second action for an abuse of

process. Such an appeal according to him will be a waste of time. He would rather

gamble on filing yet another action, identical to the second action. The Claimant has lost

such a gamble and will be penalized in costs, yet again.

32. The claim is dismissed with costs to be paid to the Defendant by the Claimant on a sum

2 Wahab v. Khan and others (2011) EWHC Ch (908) [TAB J], Mr. Justice Briggs carefully considered the law as it

relates to striking out claims on the ground of abuse of process and said at paragraphs 19 to 22: “Where the first claim has neither been adjudicated upon nor compromised, but merely struck out for specific procedural default or more generally for want of prosecution, then different types of potential abuse may arise. The first is where the claimant brings the second claim without complying with any relevant order for costs made against him in the first. In such a case the potential for abuse lies in the unfairness of putting the defendant to the expense of fresh proceedings while his costs of the previous proceedings remain unpaid: see Investment Invoice Financing Ltd v. Limehouse Board Mills Ltd. (2006) 1 WLR 985, at paragraphs 34 and 47 per Moore- Bick LJ. It has been recognized since the mid-nineteenth century that the normal response of the court to such a case is to stay the second claim until the costs ordered in the first claim have been paid. The jurisdiction to stay is discretionary, and depends upon a consideration of all the circumstances: see per Moore-Bick LJ at paragraph 46. In such a case the abuse lies not in bringing the second claim at all, but in doing so without first paying the defendants’ cost of the first claim. It may be appropriate to provide, in addition to a stay, for a striking out of the second claim if the costs of the first claim are not paid by a certain date: See Investment Invoice Financing (supra) at paragraph 48.”

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quantified by this court on the prescribed scale in default of agreement.

Vasheist Kokaram

Judge

The Court subsequently quantified costs in the sum of $10,300.00.