In Saeed and another v Ibrahim and others, the Chancery Division of the High Court considered the overlap between the court’s powers to strike out under CPR 3.4 and its powers to enter summary judgment under CPR 24.
On the facts, the court refused the application to strike out, partly because it was made just seven weeks before the trial window, but the court also looked at the issues to be taken into account in relation to both CPR 3.4 and CPR 24.
The court said that the applicant should have indicated in its application notice which of the three sub-paragraphs in CPR 3.4(2) it relied on. The court accepted that there is some overlap between its powers under CPR 3.4 and its powers under CPR 24, and that it could treat an application under CPR 3.4(2)(a) as though it were an application under CPR 24, even though the requirements of CPR 24 had not been complied with.
The procedural safeguards in CPR 24 can be dispensed with when they achieve little or nothing, but the court should be slow to disregard them, as a respondent to such an application is entitled to notice of the case against it, so as to be able to prepare for the application for summary judgment.
The applications should state which jurisdiction is relied on, and here the court refused to treat the application under CPR 3.4 as though it was also under CPR 24, as that latter provision was only mentioned in the applicant’s skeleton argument.
There is a real difference between the jurisdictions.
An application under CPR 3.4(2)(a) focusses almost exclusively on the statement of case, whereas an application under CPR 24 allows the court to look at the claim itself, the defence, and all relevant evidence.
If the strike out application relates to a flaw in the pleadings, then that should be clearly flagged up in advance of the hearing, so as to allow the respondent to remedy that defect.
Generally, in applications under CPR 3.4(2)(a), witness statements should not be relied upon.
The authority for the view that the court may treat an application under CPR 3.4(2)(a) as if it were an application under CPR 24 is contained in the decisions of the Court of Appeal in Moroney v Anglo-European College of Chiropractice and Ministry of Defence v AB. In both of those decisions, the Court of Appeal accepted that there was an overlap between the two rules and that there are circumstances in which a court is entitled to treat an application as if it were made under CPR 24, even though the requirements of that rule had not been complied with.
However, that did not mean that an applicant was entitled to request the court to deal with an application as if it had been made under CPR 24, without the application having been made in proper form. Here, the court said:
“It will be rare that an applicant under rule 3.4(2)(a) will be entitled to rely upon such evidence [the claimant’s witness statement] to make out that the statement of case does not show reasonable grounds for bringing the claim. An application will usually succeed or fail by reference only to the content of the statement of case. If conclusions have to be drawn for evidence, part 24 is the appropriate rule to use.”
This is an important case in its own right, but it is also important in the context of qualified one-way costs shifting (QOCS), which currently only applies in personal injury cases.
Under CPR 44.15, an order for costs made against a personal injury claimant may be enforced to the full extent of the order of the court, without the permission of the court, where the proceedings have been struck out on the grounds of:
“(a) the claimant has disclosed no reasonable grounds for bringing the proceedings; or
(b) the proceedings are an abuse of the court’s process; or
(c) the conduct of –
(i) the claimant; or
(ii) the person acting on the claimant’s behalf and with the claimant’s knowledge of such conduct,
is likely to obstruct the just disposal of the proceedings.”
CPR 44.15(a) reflects the test in CPR 3.4(2)(a) and CPR 44.15(b), and (c) reflects CPR 3.4(2)(b). Thus CPR 44.15 effectively disqualifies a personal injury claimant from the protection of QOCS.
CPR 3.4(2) reads:
“(2) the court may strike out a statement of case if it appears the court –
(a) 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.”
Thus, although a claim may be struck out under CPR 3.4(2)(c), that does not deprive a personal injury claimant of QOCS protection. Likewise, summary judgment under CPR 24 never, of itself, deprives a personal injury claimant of QOCS protection. The ability of the court to treat an application under CPR 3.4(2) as an application under CPR 24 is therefore important.
Outside the field of personal injury it makes little difference; either which way, the claim is struck out, or lost, if the applicant is successful. However, if the court declines to strike out the claim under CPR 3.4(2) but exercises its discretion to enter summary judgment for the defendant under CPR 24, even if no such application has been made, then the losing claimant enjoys full protection under QOCS against the costs order being enforced.