Stuart v Goldberg Linde (a firm) and another [2008] EWCA Civ 2, [2008] All ER (D) 73 (Jan)
In determining whether or not a claim is an abuse of process on the ground that it should have been included in a previous action, it would be in an extreme case that the merits, in the sense of prospects of success, of the second action could be relevant to deciding whether or not bringing it separately is an abuse of process.
If the prospects of success are uncertain, but the case is not suitable for summary judgment for either party under CPR, Pt 24, it is inappropriate to attempt to weigh the prospects of success in the balance in deciding whether or not it is an abuse of the process to bring the claim in later proceedings, rather than as part of the earlier proceedings.
Moreover, delay of itself is not relevant to whether or not the second claim is an abuse of process; unless there is a defence under the Limitation Act 1980, or an equitable defence
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