|All England Commercial Cases, All ER Commercial Cases 1999 Volume 1|
Hall v Paulet (1892) 66 LT 645.
Henderson v Henderson (1843) 3 Hare 100, [1843-60] All ER Rep 378, 67 ER 313.
Hind v Whitmore (1856) 2 K&J 458, 69 ER 862.
Hines v Birkbeck College (No 2)  4 All ER 450,  Ch 33,  3 WLR 557, CA.
M'Cabe v Bank of Ireland (1889) 14 App Cas 413, HL.
Martin v Earl Beauchamp (1883) 25 Ch D 12, CA.
Morton v Palmer (1882) 9 QBD 89, DC.
Payne, Re, Randle v Payne (1883) 23 Ch D 288, CA.
Society of Lloyd's v Fraser  CA Transcript 1611; affg  CLC 127.
Society of Lloyd's v Leighs  CLC 1398, CA; affg  CLC 1012.
Society of Lloyd's v Wilkinson (23 April 1997, unreported), QBD.
Thames Investment and Securities plc v Benjamin  3 All ER 393,  1 WLR 1381.
Theakston v Matthews (1998) Times, 13 April,  CA Transcript 515.
Wickham, Re, Marony v Taylor (1887) 35 Ch D 272, CA.
Anthony Grabiner QC and David Foxton (instructed by Freshfields) for Lloyd's.
Michael Freeman of Grower Freeman & Goldberg for the defendant names.
'If an infant sues by a next friend and the suit is dismissed with costs, it would not be right to prevent him from bringing a new suit by another next friend on the ground that the costs of the former suit had not been paid. But a married woman has a power of selecting her next friend. She has to a certain extent a voice in the suit, and she is under an obligation to select a responsible person as next friend who may be answerable to the Defendant for costs if the suit should be dismissed. I see no reason why the same rule should not apply to her as to persons who sue without a next friend, namely, that if a suit is dismissed with costs the same plaintiff cannot proceed in another suit for the same objects until the costs of the first action have been358 paid. Undoubtedly it would have been hard upon the new next friend to order him to pay the costs of the first action personally. But that is not what is now asked for, but only that the second action may be stayed till the costs of the first have paid by somebody or other. There is no case in point except Hind v. Whitmore ((1856) 2 K&J 458), in which there is an expression of opinion by Vice-Chancellor Wood that the rule ought not to be extended to such a case as we have before us. But a married woman stands now on a different footing from that on which she stood at that time. She can sue without a next friend by leave of the Court under Order XVI, rule 8, with or without security for costs, as the Court may direct. Therefore, it cannot be said that she is prevented from suing because she cannot find a next friend. We must, therefore, lay down the rule that a married woman cannot be allowed to bring a fresh action till the costs of the former suit are paid. She must take care to select a next friend who is a responsible person. If she does not do so she will be at this disadvantage, that if she fails in her suit she cannot bring a new one until the costs in the former are paid.'
'We must therefore act on principle, and the principle is that a person ought not to be harassed by vexatious litigation. There are several ways in which a married woman can bring an action. If she is a pauper, she can bring an action without a next friend; and if she is not a pauper she can have recourse to Order XVI, rule 8, and obtain leave of the Court to sue without a next friend, in which case she would generally have to give security for costs. But if she cannot sue in either of these methods, she must select a next friend who is not a pauper, but is able to be answerable for costs. If she does not do so, is it right that she should be entitled to bring another action by another next friend without paying the costs of the first action? I am disposed to say, No, and I must so decide unless there is an authority to the contrary ... I am therefore of opinion that we ought to decide this case so as to protect the Defendants against vexatious litigation, and that this second action cannot go on till the costs of the first action are paid.'
'The rule is established that where a plaintiff having failed in one action commences a second action for the same matter, the second action must be stayed until the costs of the first action have been paid. Here the Defendant is only one of the Defendants in the old suit, but he is sued in the same character as before. The Plaintiff in the former suit sued as personal representative of Elizabeth Bunch, he now sues as administrator de bonis non of William Jennens. But though he is not suing in the same character as that in which he formerly sued, he is suing substantially by virtue of the same alleged title. If he recovers any part of this estate from the Defendant he will recover it as a trustee for the estate of Elizabeth Bunch, and I am of opinion that he is to be treated as bringing a second suit for the same matter as the former.'
'Now, my Lords, I find that it was laid down in a recent case in the Court of Appeal, Martin v. Earl Beauchamp ((1883) 25 Ch D 12), that "the rule is established that where a plaintiff having failed in one action commences a second action for the same matter the second action must be stayed until the costs of the first action have been paid;" and even although the actions were not between precisely the same parties or persons suing in the same capacity, the case was held to be within the rule inasmuch as the plaintiff there was "suing substantially by virtue of the same alleged title." It cannot be denied that in the present case the parties are the same, and that the plaintiff is "suing substantially by virtue of the same alleged title;" and therefore I think that the present case has been properly disposed of in accordance with that rule, which I apprehend is not in any respect confined to the Courts in England but applies as well to the Courts in Ireland, arising as it does out of the inherent power which resides in the Court to prevent a second suit being brought upon the same cause of action until the costs incurred in the first action have been paid. It is impossible for us to interfere with that which the Court of Appeal have done, which was entirely within their jurisdiction, and which I can see no reason to doubt has been right.'
'In the light of M'Cabe v Bank of Ireland I conclude that when a plaintiff is ordered to pay the costs of an action and then brings a second action against the same defendant concerning the same subject matter then, on application by the defendant for a stay, the stay will be ordered as of course, unless no doubt there are some wholly exceptional circumstances. I certainly see no exceptional circumstances in this case, so that it is appropriate to order stay.' (See  4 All ER 450 at 457,  Ch 33 at 45.)
'Before this court the plaintiff sought to argue for a less stringent rule, for which purpose he relied mainly on Morton v Palmer (1882) 9 QBD 89 and Re Wickham, Marony v Taylor (1887) 35 Ch D 272. However, each of those cases was concerned with the question whether a stay should be granted until the payment of costs which had been ordered to be paid in the same action. I can well see that a different rule may apply where there has been no final disposal361 of the action. That is not a state of affairs with which we are here concerned. M'Cabe's case is clear and binding authority for the rule to be applied where an action has been finally disposed of and the costs of it have not been paid. In my view the judge correctly extracted the principle of that decision and it cannot be said that he erred in applying it to the present case.' (See  4 All ER 450 at 457-458,  Ch 33 at 45-46.)
'I am of the opinion that the judge erred in principle in making an order which, at one and the same time, allowed part of the counterclaim to proceed and then stayed it until payment of costs which had only been ordered to be paid by that very same order; cf Morton v Palmer (1882) 9 QBD 89 and Re Wickham, Marony v Taylor (1887) 35 Ch D 272. The case is entirely different, for example, from the more familiar one where a plaintiff having failed in one action, commences a second action for the same matter. In such a case, the invariable practice of the court is to stay the second action until the costs of the first action have been paid; cf M'Cabe v Bank of Ireland (1889) 14 App Cas 413. However, that is a principle which cannot apply to this case.'
'... where an application has been made for particular relief and has been dismissed with costs because of some fault or lack of success on the part of the applicant, then, generally speaking, the application ought not to be allowed to apply again for identical or equivalent relief if he is guilty of failure to pay the costs of the previous application.' (See  3 All ER 393 at 394,  1 WLR 1381 at 1383.)