CASE WOULD NOT HAVE BEEN STRUCK OUT BECAUSE OF THE ABSENCE OF A LETTER BEFORE ACTION AND INCORRECT USE OF THE PART 8 PROCEDURE

In Halal Meat Sellers Committee Ltd & Anor v HMC (UK) Ltd [2020] EWHC 2190 (Comm) the court struck out the claimants’ claim as an abuse of process. It is interesting to note that the court indicated that there were a number of reasons why it would not have struck out the claim.

THE CASE

The claimants brought an action against the defendant charity. The defendant provides a service whereby it certifies the sale of Halal meat and poultry. The claimant alleged it had been acting unfairly and issued proceedings under Part 8.  The action was struck out as an abuse of process, mainly on the facts, of the case.  There were a number of matters however where the judge indicated that the defendant’s application would not have been successful.

GROUNDS ON WHICH THE APPLICATION WOULD NOT HAVE BEEN STRUCK OUT

Alleged procedural failures

    1. HMC submitted that the Claim Form should be struck out on the grounds that the Claimants have failed to follow the Court’s procedures set out in a rule or practice direction, because:
(1) The Claimants have failed to comply with CPR Pre-Action Protocols in failing to issue a letter before action.
(2) The Claimants served a Part 8 Claim Form in circumstances where there are substantial issues of fact between the parties.
(3) The Claimants have also not complied with the requirements of CPR rule 19.6 with respect to representative proceedings, because there is a lack of evidence of the interests of the representative and the represented parties in that respect.
  1. In my judgment, a failure to issue a letter before action should not be penalised by striking out the Claim Form. The absence of such a letter other than, perhaps, in the most extreme circumstances would not warrant such a drastic step. If the claim were clearly or arguably a meritorious one, such a step would be unduly disproportionate and any absence of a pre-action letter can be dealt with, if necessary, by other sanctions. If the claim were a plainly an unmeritorious claim, the claim itself would no doubt be exposed to striking out or summary judgment.
  2. The second ground relied on by HMC that the Part 8 procedure was inappropriate again is not sufficient in my judgment to warrant striking out a claim, especially as in the present case the Claimants have applied to alter the Part 8 Claim Form to a Part 7 Claim Form.
  3. As to the third ground, Mr Masood has stated in evidence that NHFL can act in a representative capacity. Under CPR rule 19.6(1), the claimant may commence proceedings as a representative (without an order of the Court) and it would then be incumbent on the defendant to seek an order that the representative should not act as such (CPR rule 19.6(2)-(3)). Other than the above submission, no such application has been made. I am not satisfied that such an order should be made.