STRIKING OUT, SUMMARY JUDGMENT AND THE PART 8 PROCEDURE: YOU CAN’T RELY ON MATTERS THAT HAVE NOT BEEN PLEADED: CLAIMANT’S CASE STRUCK OUT
I am grateful to barrister Toby Bishop for sending me a copy of the judgment of Master Marsh in Bhusate -v- Patel  EWHC 2362 (Ch). Re Bhusate JUDGMENT copy Toby’s discussion of the substantive issues that arose in the claim can be seen here.
The action related to the death of Mr Bhusate who died in 1990. The claimant, who was one of the administrators, continued living in the family home for 28 years. The home remained was registered in Mr Bhuaste’s sole name. The estate was never administered. The property remained in Mr Bhusate’s name. The claimant brought an action seeking declaration as to her ownership of the property and a (very out of time) application under the Inheritance (Provision for Family and Dependants) Act 1975. The court deferred the hearing for an extension of time to bring a claimunder the IPFDA until after this judgment.
Some of the defendants made an application to strike out the claimant’s case in part and for summary judgment in relation to the claimant’s case and for the removal of the claimant and the sixth defendant as personal representative of the estate.
THE TEST FOR STRIKING OUT
The judgment contains a succinct summary of the principles relating to striking out and summary judgment. There is also an interesting observation that defendant’s seeking summary judgment in relation to a Part 8 claim can assume that the evidence filed with the claim amounts to the totality of the evidence in the matter.
9. The test for an application to strike out a statement of case under CPR 3.4(2)(a) need hardly be stated. The 2nd to 5th defendants must satisfy the court that the Part 8 claim form does not show reasonable grounds for bringing the claim; put in simpler terms, they must show that the claim is bound to fail. Sometimes, a respondent to an application to strike out a statement of case will apply to amend the statement of case to cure possible defects. Where this happens, the court will normally consider both applications together to form a view about whether the claim, or defence, is bound to fail with the case put at its highest. In this case, the claimant and the 6th defendant stand by their claims in their original form. However, the court may decline to strike out a claim, even if it considers on the current state of the law it is bound to fail, if it can fairly be said that the legal basis of the claim is in an area of developing jurisprudence and the strength of the claim ought to be tested against facts found at a trial: see Richards (t/a Colin Richards & Co) v Hughes  P.N.L.R. 706 per Peter Gibson LJ at )
10. Under CPR 24.2, the applicants must show that the claim has no real prospect of success and that there is no compelling reason why the claim should be tried. The jurisprudence relating to CPR Part 20.2 is well-established. A convenient summary of the principles can be found in the judgment of Lewison J (as he then was) in Easyair Limited v Opal Telecom Limited  EWHC 339 (Ch) (approved by the Court of Appeal in A C Ward & Son v Caitlin (Five) Limited  EWCA (Civ) 1098). It is unnecessary for me to set out those principles in this judgment although, where necessary, I will refer to them in the course of discussing the issues that arise for determination.
11. There is some overlap between the court’s powers under CPR 3.4(2)(a) and CPR 24.2. In the case of the former, the focus is on the statement of case and the court will normally assume the respondent will be able to establish the facts that are pleaded. Under the first limb of CPR 24.2, the court is entitled to evaluate the respondent’s case in a broader manner, provided it avoids conducting a mini-trial. The threshold for success on a strike out is considerably higher than on an application for summary judgment. That a claim is bound to fail is much harder to establish than that it has no real prospect of succeeding.
12. I would add an observation in relation to an application for summary judgment brought by a defendant to a Part 8 claim. Part 8 requires the claimant to provide the evidence that is relied upon with the claim. Although there may be cases in which a claimant will be permitted to file supplementary evidence, the court has the claimant’s complete case. It is a reasonable starting point for the court that the claimant’s case has been put at its highest and, unless the claimant is able to point to material evidence that has not been brought forward, there is no reason to consider what further evidence might be available.
A POINT NOT PLEADED CANNOT BE ADVANCED
Another part of the judgment records how the claimant could not raise a point that had not been pleaded.
39. It seems to me, however, that it is unnecessary for the court to consider, in relation to the claimant’s first case, whether or not an equitable assent might have occurred because the point has not been pleaded. The claimant has not put forward an amended claim for the court to consider and so the point does not arise. In that regard, it is just in this case to apply the rules in CPR 16.5(3) and (5) by analogy. The claimant has the assistance of solicitors and counsel. It is not right that the claimant should be able to put forward a new case based upon submissions contained for the first time in Mr Dubbery’s skeleton argument.
The applications of the 2nd 5th defendants was allowed. The claim was struck out. The claimant and the sixth defendant were removed as administrator and a professional administrator appointed.