The recent decision in Brem v Clark & Anor [2023] 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.
Background
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:
- Other than the lay client, no one appeared for the Claimant and no adequate explanation was provided.
- Claimant’s application to adjourn was not supported by a fee. Therefore, no formal application was before the Judge.
- It appeared that the consent order was not agreed by the Claimant’s solicitors.
- The 1st Defendant did not consent to an adjournment.
- Adjourning the case further would incur greater (and needless) costs which is unacceptable and disproportionate to the claim.
- On the face of it, the Claimant had considerable practical difficulties proving his loss.
Costs were ordered on an indemnity basis.
Appeal dismissed
The Claimant appealed against the strike out. Mr Justice Martin Spencer dismissed the appeal and key points of his judgment are summarised below:
- To succeed, the Claimant must meet the test set out in CPR Rule 52.21(3) and show that the decision of the lower court was either wrong or unjust because of a serious procedural or other irregularities in the proceedings in the lower court. Where the decision was a case management decision, the appellate court should not reverse or interfere with the order of the lower court unless that order was “plainly wrong in the sense of being outside the generous ambit where reasonable decision-makers may disagree”.
- The decision not to grant a further adjournment was plainly a case management decision and within the Judge’s discretion.
- Judge Saunders agonised over the decision of whether to adjourn or not and this was clear in his judgment.
- This was in effect the Claimant’s third bite at the cherry and the court was acutely aware that the court’s resources are precious, and adjournments are undesirable due to knock on effect on other cases.
- The decision to strike out was influenced somewhat by the pitiful state of the pleadings and despite having been given ample opportunity, the pleadings they remained incoherent.
- Greater care should have been taken to explain to the Claimant the issues arising from the strike out / summary judgment, and he should have been given a clear opportunity to make submissions on substantive points (although it is highly doubtful that this would have made a difference).
- The learned Judge was entitled to take the view:
- that the proceedings were going nowhere due to the incompetent way in which litigation has been conducted to date
- about the value of the claim, overall merits and costs incurred when considering his decision
- that enough of the court’s resources had been used and enough leeway afforded to no avail
- Even if greater care could have been taken in setting out the Judge’s reasons for granting the application, this was not a failure that resulted in injustice to the Claimant.
Conclusion
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 clerks@becket-chambers.co.uk.
