The recent decision in Brem v Clark & Anor  EWHC 1358 (KB) is a good reminder of the matters that the court will consider when determining an application to strike out a ‘dubious’ claim in unusual circumstances and a subsequent appeal against the decision to strike out.
The Claimant had brought a claim for damages against the 1st Defendant and a claim for negligence against the 2nd Defendant.
The pleadings had been “eccentrically drawn” and did not align with the Claimant’s position in his letters before action (there were two). The Claimant was offered an opportunity to amend the Particulars of Claim but chose not to and therefore the 2nd Defendant issued an application to strike out, or in the alternative summary judgment.
A hearing was listed. The Claimant then issued an application to amend the Particulars of Claim. HHJ Saunders determined that the Claimant’s application could not be dealt with within the time estimate and adjourned the matter with the Claimant paying the Defendants’ costs.
The matter was re-listed with 6 months’ notice. Less than a month prior to the hearing, the Claimant sought a further adjournment as their counsel could not attend for personal reasons. The adjournment was agreed and re-listed nearly 6 months later.
Roughly two weeks prior to the hearing, the Claimant’s counsel became unwell with Covid-19. Despite searching for alternative counsel, the Claimant did not notify the court or the Defendants until 2 days prior to the hearing when they requested an adjournment (no formal application). They made a formal application the day prior to the hearing but did not pay the fee.
It appears that a consent order was then agreed with the Claimant paying the 2nd Defendant’s costs. The Claimant then reneged on this agreement as their counsel had recovered.
Judgment at first instance
At the adjourned hearing, the Claimant’s counsel did not attend (later she confirmed she had fainted and was not in a fit state to attend the hearing and informed her instructing solicitor).
The claim was struck out due to:
Costs were ordered on an indemnity basis.
The Claimant appealed against the strike out. Mr Justice Martin Spencer dismissed the appeal and key points of his judgment are summarised below:
This case is a helpful reminder when drafting pleadings (or responding to them) that it is important for them to be concise, drafted accurately, supported by evidence, and have a legal basis for the claim, otherwise you may be on the receiving end of a strike out application (plus costs!).
The civil team at Becket Chambers provides representation and advice in respect of applying for strike out or defending an application to strike out your claim. If you require advice or assistance, do not hesitate to contact our team at email@example.com.