The Court of Appeal has dismissed an appeal against a High Court decision refusing to strike out a claim for procedural failures even though, in the judge's position, it would have struck a different balance between the competing factors: The Commissioner of Police for the Metropolis v Abdulle & Ors  EWCA Civ1260.
The decision emphasises that the court will not lightly interfere with a case management decision, whether that is to grant or refuse relief from sanctions or to grant or refuse an application to strike out a claim.
The underlying claim was against a police authority relating to alleged unlawful detention and use of force against the claimants when their car was stopped on the basis of a mistaken belief that there was an assault rifle in the boot of the car.
There were various delays in progressing the claim and various procedural failings on the part of the claimants. Ultimately they failed to file the pre-trial checklist, pay the listing fee, and prepare trials bundles. This resulted in the trial date being vacated. The defendant applied to strike out the claim, relying on CPR 3.4(2)(c) which provides that the court may strike out a statement of case if it appears to the court that there has been a failure to comply with a rule, practice direction or court order.
At first instance, the judge (Hickinbottom J) refused to strike out the claim. He recognised that the exercise of his discretion under CPR 3.4 differed from the exercise of a discretion to grant relief from sanctions under CPR 3.9, not least because the proportionality of the sanction (ie striking out the claim) was an important factor under CPR 3.4 whereas that ought not to be at issue under CPR 3.9 (because it will have been considered when the sanction was imposed). However, he was guided by the three-stage approach to applications for relief from sanctions set out in Denton (see post).
The judge said he had not found it an easy application. The behaviour of the claimants' solicitors was worthy of real criticism. However, the case was all but ready for trial, and it was clear that it was a serious and not insubstantial claim. The judge said it was a "fine judgment", but in his view the balance was in favour of the case being allowed to proceed on terms, rather than struck out. The defendant appealed.
The Court of Appeal dismissed the appeal (Lewison LJ giving the lead judgment, with which Kitchin and Moore-Bick LJJ agreed).
The defendant submitted that the loss of the trial date was particularly serious and, where it was caused by the claimants' own default without good reason, should have outweighed the countervailing factors. If the general delay in progressing the case was also taken into account, the defendant said, the judge's decision was outside the range of reasonable case management decisions.
Lewison LJ said that if he had been the first instance judge he would have accepted the defendant's submissions, giving more weight to the history of delay, the apparent incompetence of the claimants' solicitors and the loss of the trial date. But that was not the question for an appeal court.
There was no submission that the judge had overlooked any relevant factor, or taken into account irrelevant factors, or misdirected himself in law. The defendant's case amounted to a submission that the judge's decision was perverse, which the Court of Appeal rejected.
Lewison LJ re-emphasised the need for the Court of Appeal to respect the balance struck by the first instance judge, particularly where the balance is a fine one. The same approach applies, he said, to decisions on strike out as well as relief from sanctions, and regardless of the conclusion reached at first instance (whether to grant or dismiss the application).
Lewison LJ echoed the hope expressed in Chartwell Estate Agents Ltd v Fergies Properties SA  EWCA Civ 506 (see post), that if parties understand the approach the Court of Appeal will take to discretionary interlocutory decisions of first instance judges then satellite appeals should be avoided. Whether that will ultimately be reflected in any changes in the court's approach to granting or refusing permission for such appeals remains to be seen.