Persuading a Judge to strike the claim out (1)



By Francesca O’Neill

This article should act as a warning to Claimants – miss out, or mess up, a procedural step – and your whole claim may be liable to be struck out. Although very severe, judges can be persuaded that strike out is the appropriate sanction, even where it may seem contrary to the principles of fairness. In the last couple of months, I have struck out 4 claims on behalf of Defendants where Judges were persuaded that denying the Claimant the opportunity to pursue their claim was the right thing to do.

In this article, I will consider 2 of those claims – both regarding defective service of the Claim Form or the Particulars of Claim.

It goes without saying that getting a claim off the ground involves properly articulating the basis for it, but also following the strict Civil Procedure requirements.

In a later article, I will consider the other two successful strike outs (both of which involved litigants in person, and so required a very different approach)

(a) C v Ashtons Solicitors (I acted for the Defendant Insurer)
Unfairness and the Denton principles

This was a professional negligence claim against the Claimant’s former solicitors, where there had been a failure to submit relevant appeal documents by the required time limit. As a result, the Claimant had been unable to appeal against various Home Office Penalty Charge Notices in respect of possibly employing illegal immigrants. The Claimant instructed solicitors to pursue the professional negligence claim, pleaded at in excess of £150,000 and pre-action correspondence was exchanged. The Claim Form was served on the 21st May 2019, stating “Particulars of Claim to follow”. Despite, the Defendant’s solicitors writing to ask when they might expect the Particulars of Claim, none were forthcoming. They were eventually served with a covering letter on the 25th July 2019, so approximately 7.5 weeks out of time.

Particulars of claim
7.4—(1) Particulars of claim must—
(a) be contained in or served with the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form.

The Defendant solicitors served an acknowledgment of service disputing jurisdiction and applied to strike the claim out by way of CPR 3.4.(2)(c):

Power to strike out a statement of case
(2) The court may strike out (GL) 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.

In Associated Electrical Industries Ltd v Alstom Ltd [2014] EWCA Civ 4330 (Com), the facts were similar: the Particulars of Claim were served 20 days late. The claimant made an application for an extension of time, the defendant made an application to strike out the claim. After hearing the applications, Mr Justice Smith dismissed the application for an extension and struck the claim out. He followed the decision in Price v Price that the correct test to apply in respect of applications for an extension of time to serve Particulars was akin to an application for relief from sanctions under CPR r3.9.

We relied on the reasoning of Mr Justice Smith in the AEI case, where he said:

However, I cannot accept that, given the approach to non-compliance that decisions of the Court of Appeal require, a default of 20 days in serving particulars of claim is to be categorised as trivial. In Mitchell itself the claimant was five days late with the costs budget but was not considered to have missed the deadline narrowly. In Raayan al Iraq Co Ltd v Trans Victory Marine Inc, [2013] EWHC 2969, I granted an application for a retrospective extension of time when particulars of claim were served two days late, and my decision was criticised in Mitchell …AEI’s failure to apply for an extension before 29 October 2013, or even to ask Pinsent Masons for one, reinforces my view that this is not a case where the de minimis doctrine applies.” [emphasis added]

Further, there was no good reason for the default (taking the next step of the Denton criteria):

But there is another answer to the submission that there was an acceptable explanation for the non-compliance, to which I have already referred. If difficulties in investigating the claim do justify the particulars being late, a timely request for an extension should have been sought from Alstom and if necessary a timely application to the court should have been made.[emphasis added]

A particularly interesting facet of the AEI  judgment was the extent to which the Judge decided that – even if it appeared to be unfair – strike out was the correct approach. The Judge said:

  1.  If my decision depended only on what would be just and fair between AEI and Alstom, I would not strike out the claim form and I would grant a retrospective extension of time for service of the particulars… 
  1. Looking at the position simply between the parties, even disregarding limitation and the prospect of continuing satellite litigation, I would consider an order striking out the claim form to be a disproportionate response to AEI’s non-compliance, given that the delay in serving the particulars, though not insignificant, was remedied after 20 days and that it did not disadvantage Alstom

The claim was struck out.

In the present case, the facts were slightly different. No application had been made for an extension of time at all. In fact, the Claimant’s solicitors had completely failed to respond to any correspondence or do anything at all in the time between the date of the application (August 2019) and the hearing (February 2020).

As a result, not only did the Judge accept that the decision in AEI was persuasive and strike the claim out, she was also persuaded to make a costs order on the indemnity basis – and order the Claimant’s solicitors to show cause as to why they should not be liable for the costs themselves.

(b) U v Northumbria NHS Foundation Trust (I acted for the Defendant Trust)
Beware the “bright line rule” when serving the Claim Form

In this clinical negligence claim, the Claimant asserted that he had contracted a serious infection in hospital such that his hip replacement surgery had to be redone and had caused serious (and unnecessary) pain and suffering. The Claimant’s solicitors had served the Claim Form by email the day before the expiry of the limitation period. The Defendants disputed jurisdiction, on the basis that there was no agreement that the Claim Form could be served electronically. They made an application to strike the claim out, and for the Court to find that there had not been valid service of the Claim Form. On the face of it, this seems unjust. The Defendants were expecting service of the Claim Form, and received the email. Further, a telephone call between the parties’ legal teams had resulted in the Claimant’s solicitors believing that permission had been given for electronic service (backed up by an attendance note). No written permission had been granted. HHJ Saunders agreed with the Defendant, albeit expressing sympathy to the Claimant who may have had a good claim for damages. Why?

CPR Part 6, paragraph 6.3 provides that:

Methods of service

6.3 (1) A claim form may (subject to Section IV of this Part and the rules in this Section relating to service out of the jurisdiction on solicitors, European Lawyers and parties) be served by any of the following methods –

(a)        fax or other means of electronic communication in accordance with Practice Direction 6A;

Practice Direction 6A further provides:

Service by fax or other electronic means

4.1       Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means –
(1)        the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving –
(a)        that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b)        the fax number, e-mail address or other electronic identification to which it must be sent; and
(2)        the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) –
(a)        a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b)        an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c)        a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court.

The Supreme Court considered this very issue in Barton (Appellant) v Wright Hassall LLP (Respondent) [2018] UKSC 12 where it found that inappropriate service of the Claim Form by email was invalid, and the claim could not proceed. Lord Sumption said:

Although the purpose of service is to bring the contents of the claim form to the attention of the defendant, the manner in which this is done is also important. Rules of court must identify some formal step which can be treated as making him aware of it. This is because a bright line rule is necessary in order to determine the exact point from which time runs for the taking of further steps or the entry of judgment in default of them.

More generally, the Courts are tasked with ensuring that claims are dealt with fairly, efficiently and at proportionate cost. Following the rules ensures a level playing field for parties. Failing to follow a “bright line rule” will have very serious consequences.

The claim was struck out.

Francesca O’Neill was instructed by Travelers Legal in Case (A) and by DAC Beachcroft in Case (B)

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