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Injury Law - Strike Out - alive and well under the CPR

By : Emily Formby

Rumours of the demise of "strike out" provisions under the CPR have been much exaggerated.

While the focus of the courts has been, perhaps understandably, on the other, newer, powers afforded by the CPR, it was never the intention of Lord Woolf that the ultimate sanction would disappear.

From the earliest cases (such as Biguzzi v Rank Leisure [1999] 1 WLR 1926) the Court of Appeal has made it clear that the court retained an unqualified discretion to strike out a claim pursuant to CPR 3.4. However, the range of other weapons in the court's armoury - disallowing interest, striking out elements of claim, making specific or interim costs orders and so forth - has meant that the ultimate sanction has been under used. All too often, when faced by default or failures on the part of one or other of the parties, the court has held that a fair trial can still be held and that the overriding objective requires the claim to continue.

A hardening of approach can be seen in the dealing of claims stayed automatically pursuant to CPR 51PD-19. Soon after the automatic stay date of 25th April 2000 the Queen's Bench Masters let it be known that the lifting of such a stay was, really, little more than a formality. No longer is that the case. Reliance National Insurance Company v Ropner (Court of Appeal, The Times January 21, 2001) made it clear that simply writing a letter to the court was not sufficient to bring proceedings before the court so as to avoid the stay provisions.

The courts at first instance have gone further. In considering whether to lift the automatic stay, it is clear that regard should be had to the criteria in CPR 3.9 and in particular CPR 3.9(1)(a)- (i). The automatic stay is a sanction of the court that should be treated seriously. An application to lift the stay is analogous to an application to strike out the claim. The correct practice is set out in Bank of Credit and Commerce International SA v Bugshan QBD 14th March 2001 (unreported) and Stacey v Joint Mission Hospital Equipment Board Ltd QBD 16th October 2001 (unreported).

When faced with an application to lift an automatic stay, the first question for the court is whether there is good reason for the claim to have stagnated during between 26th April 1999 and April 2000 and so for the stay to have arisen in the first place. If the claimant shows good reason, then the burden will be on the defendant to show why the stay should remain and the claim be struck out. The claimant's application may still fail, and the claim be struck out, but this will be more unusual. However, if the claimant does not have a good explanation for the initial delay he or she will face an uphill task having to explain away this behaviour as well as persuade the court it is just and proportionate for the claim to continue. Such a two-stage test is an echo of the old Birkett v James type of want of prosecution claims - first consider the cause of any delay and then the merits of continuing the claim.

The Court of Appeal has extended this approach to applications to strike out for delay. In Purdy v Cambran (19th December 1999, Court of Appeal, unreported) it was made clear that the CPR provided ample power to strike out for delay: CPR 3.4(2)(c); 3.1(m); 3.1(l) and 1.2(a) & (b). The overriding objective - to deal with cases justly - includes justice for the defendant and requires cases to be dealt with expeditiously and fairly. Delay, therefore, is an obvious breach of the overriding objective and the "enemy of justice", per Lord Justice May in Purdy.

By focussing on the justice of each case with regard to its own particular circumstances, the court may find that other case management powers enable claims to be put back on track. However, in any given case, if the circumstances warrant it, strike out is still very much an option.