HT-2024-LDS-000013 - [2025] EWHC 90 (TCC)

Fecha: 04-Oct-2024

The Law

The Law

10.

In respect of strike out, CPR 3.4(2) provides:

“(2)
The court may strike out a statement of case if it appears to the court—
(a)
that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b)
that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c)
that there has been a failure to comply with a rule, practice direction or court order.”

11.

In respect of summary judgment, CPR 24.3 provides:

“The court may give summary judgment against a Claimant or Defendant on the whole of a claim or on an issue if—
(a)
it considers that the party has no real prospect of succeeding on the claim, defence or issue; and
(b)
there is no other compelling reason why the case or issue should be disposed of at a trial.”

12.

The Overriding Objective provides at CPR 1.1:

“(1)
These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2)
Dealing with a case justly and at proportionate cost includes, so far as is practicable—
(a)
ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;
(b)
saving expense;
(c)
dealing with the case in ways which are proportionate—
(i)
to the amount of money involved;
(ii)
to the importance of the case;
(iii)
to the complexity of the issues; and
(iv)
to the financial position of each party;
(d)
ensuring that it is dealt with expeditiously and fairly;
(e)
allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases;
(f)
promoting or using alternative dispute resolution;
(g)
enforcing compliance with rules, practice directions and orders.”

13.

In respect of permission to amend a statement of case, CPR 17 provides that a statement of case may be amended with the permission of the court once the statement of case has been served. If permission is granted, further directions will be given by the court if necessary in relation to other statements of case and service of the amended pleading.

14.

The parties referred me to the following authorities:

(1)

Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 W.L.R. 3296

(2)

Harris v Bolt Burdon [2000] C.P. Rep. 70; [2000] C.P.L.R. 9;

(3)

Ashraf v Dominic Lester Solicitors [2023] EWHC 2800 Ch (Smith J);

(4)

Towler v Wills [2010] EWHC 1209 (Comm);

(5)

Soo Kim v Young [2011] EWHC 1781 (QB);

(6)

Atos Consulting Ltd v Avis Europe Plc [2005] EWHC 982 (TCC) ;

(7)

JSC VTB Bank v Skurikhin [2020] EWCA Civ 1337;

(8)

Cable v Liverpool Victoria Insurance Co Ltd [2020] EWCA Civ 1015; [2020] 4 W.L.R. 110;

(9)

Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607;

(10)

AC Ward & Sons Ltd v Catlyn (Five) Ltd [2009] EWCA Civ 1098; [2010] Lloyd’s Rep I.R. 301;

(11)

Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550;

(12)

Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;

(13)

ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725;

(14)

MT Hojgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Ltd [2017] UKSC 59.

(15)

Swain v Hillman [2001] 1 All E.R. 91;

(16)

ED & F Man Liquid Products v Patel [2003] EWCA Civ 472;

(17)

Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 A.C. 1;

(18)

Elite Property Holdings Ltd v Barclays Bank Plc [2019] EWCA Civ 204;

(19)

SPR North Ltd v Swiss Post International (UK) Ltd [2019] EWHC 2004 (Ch);

(20)

Amersi v Leslie [2023] EWHC 1368 (KB);

(21)

Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch);

(22)

The Front Door (UK) Ltd (t/a Richard Reid Associates) v The Lower Mill Estate Ltd [2021] EWHC 2324;

(23)

Sofer v Swiss Independent Trustees SA [2020] EWCA Civ 699;

(24)

Ward v Associated Newspapers Ltd and another [2020] EWHC 2797 (QB);

(25)

MT Hojgaard A/S v E.ON Climate and Renewables UK Robin Rigg East Ltd [2017] UKSC 59;

(26)

CNM Estates (Tolworth Tower) Limited v Simon Peter Carvill-Biggs Freddy Khalastchi [2023] EWCA Civ 480;

(27)

Slater & Gordon (UK) Ltd v Watchstone Group plc [2019] EWHC 2371;

(28)

Pearce v East and North Hertfordshire NHS Trust [2020] EWHC 1504 (QB);

(29)

Kawasaki Kisen Kaisha Ltd v James Kemball Ltd [2021] EWCA Civ 33;

(30)

Sayn-Wittgenstein-Sayn v His Majesty Juan Carlos Alfonso [2022] EWCA Civ 1595;

(31)

RG Carter Projects Ltd v CUA Property Limited [2020] EWHC 3417.

15.

From those authorities, the following principles can be derived:

(1)

There is a considerable degree of overlap between strike out and summary judgment. Both allow the court to dispose of claims which are obviously without merits or pursued in such a way as to obstruct the just disposal of a claim in a way which does not accord with the Overriding Objective.

(2)

Striking out a claim is a draconian remedy and one which is seen as a last resort.

(3)

Strike out is generally appropriate if the statement of case raises an unwinnable case and the continuance of proceedings would waste resources on both sides.

(4)

The claim does not necessarily have to be bad in law. However, unreasonably vague and/or incoherent statements of case drafted in such a way as to be likely to obstruct the just disposal of proceedings may also be struck out on this basis.

(5)

The purpose of pleading a statement of case is to inform the other party what case is being brought against him. The pleading of a claim affects disclosure matters and affects the drafting of a Defence in response to it. In order for a party to be able to respond to a case properly and efficiently, it is necessary for the party (and indeed the court) to understand the Claimant’s case. That requires a clear and concise statement of the facts relied upon.

(6)

The court will always consider whether a vague and incoherent statement of case might be cured by amendment and may give the Respondent an opportunity to amend if there is reason to believe that the party will be able to amend in such a way that its case becomes clear.

(7)

The court must balance injustice to the applicant if an amendment is refused with injustice to the opposing party and other litigants in general if amendment is permitted. The court must determine cases justly and in accordance with the Overriding Objective.

(8)

Even if it may be possible to draft a properly particularised case against another party with appropriate legal advice, if that has not been done and further amendments are unlikely to result in the other parties or the court having a better understanding of the case, it may still be appropriate to strike out the claim.

(9)

If a proposed amendment is a retreat from what was previously alleged, the test of real prospect of success cannot be applied to what is an abandonment of a previous position. The court should not leave in play allegations which are no longer in issue.

(10)

An incoherent and vague pleading may amount to an abuse of the court’s process or be otherwise likely to obstruct the just disposal of the proceedings. Obstruct has been construed to mean “impede to a high extent” in this context.

(11)

The court will not strike out a case simply because it is untidy or includes some irrelevant issues. However, if the pleading is such that the usual litigation processes such as disclosure or preparation of witness evidence may be impeded, it may be struck out. This may be the case even if there has been no unlawful conduct, no breach of procedural rules, no collateral attack on a previous decision and no dishonesty or other reprehensible conduct.

(12)

A breach of a pre-action protocol where serious may amount to an abuse.The court must consider whether strike out for a breach is proportionate. If not proportionate, cost sanctions may still be imposed if a flagrant or significant disregard for the protocol has been demonstrated by a party.

(13)

For summary judgment, the party responding must show a real as opposed to fanciful prospect of success. The claim must have some degree of conviction and be more than merely arguable.

(14)

The court must not conduct a mini trial but does not have to take a party’s case at face value. The court must take into account both the evidence actually placed before it and also evidence which can reasonably be expected to be available at trial. The court should hesitate to make a final decision without trial if reasonable grounds exist for believing that a full investigation into the facts would add to or alter the evidence available to the trial judge. The court is entitled to reject implausible evidence or that which is not supported by contemporaneous documents. Summary judgment may be given if, on the parties own factual case, they would not be entitled to the remedy sought.

(15)

The court is entitled to consider whether the case has been put coherently. In considering whether to permit an amendment of a statement of case, the real prospect of success test should also be applied. If that test is failed and the proposed pleading remains incoherent or does not contain properly particularised elements of the cause of action relied upon, permission to amend should not be given. The proposed amendments must also be supported by evidence which establishes a realistically arguable factual basis to meet the merits test.