THE JUDGE WAS WRONG TO STRIKE OUT A PROPERLY PLEADED CLAIM IN A PERSONAL INJURY CASE: JUDGE’S SHOULD BE ASTUTE TO DEAL WITH APPLICATIONS TO STRIKE OUT WHICH ARE, IN REALITY, APPLICATIONS FOR SUMMARY JUDGMENT

The judgment of Mr Justice Choudhury in Kasongo v CRBE Ltd & Anor [2023] EWCA Civ 557 demonstrates the danger when a defendant makes an application to strike out a statement of case.  The judge allowed an appeal where a defendant had initially been successful in striking out the claimant’s action, and getting QOCS disapplied.  It was held that the first instance judge had allowed the application to strike out to develop into an application for summary judgment. The two applications are quite distinct and judges in personal injury cases should be particular wary of a strategy of defendants attempting to strike out in circumstances where it was, in reality, an application for summary judgment.

“Given this significance, courts should be especially astute in personal injury claims in ensuring that an application that is made under CPR 3.4(2), but which ought properly to have been brought under CPR 24, is dealt with as if brought under the latter. Such a course is permitted, as confirmed by CPR 3.4.21 and the cases cited therein:”

THE CASE

The claimant brought an action for damages for personal injury having tripped over a pole in a loading bay whilst at work.  Each defendant filed defences stating that they were not the occupier of the loading bay.  The first defendant subsequently admitted it was the occupier of the loading bay.

THE SECOND DEFENDANT’S STRIKE OUT APPLICATION

The matter was listed for trial in July 2021, that trial was adjourned until March 2022.

The second defendant then applied to strike out the action against.

THE BASIS OF THE SECOND DEFENDANT’S APPLICATION

1. 1. On 5 October 2021, TfL applied to strike out the claim against it with costs. It also sought an order for the enforcement of any costs order in its favour “to the full extent of such order without the permission of the Court in accordance with CPR 44.15.” The relevance of CPR 44.15 is that it provides an exception to the qualified one-way costs shifting (‘QOCS’) regime that applies where proceedings have been struck out on the basis that there were no reasonable grounds for bringing them. The effect of the exception is that the claimant, who would otherwise be protected from having to pay the defendant’s costs, becomes liable for costs in the usual way.

1. 1. The basis for the application was:

(i) That the accident occurred in an area over which TfL had no control and to which it could not authorise the claimant’s entry;

(ii) TfL had no involvement in the delivery of the poles, but the claimant was aware of the presence of the poles having been aware of their delivery the previous day;

(iii) As the first defendant is the responsible occupier, it is not clear why TfL remains in the proceedings.

(iv) It had become apparent that the accident occurred while the claimant was attempting to climb over a metal barrier into the retail waste area (that being another term used for the loading bay);

(v) The claimant has no real prospect of succeeding with his claim against TfL and has no reasonable grounds to bring the claim against it.

THE SECOND DEFENDANT’S SUCCESS AT FIRST INSTANCE

At first instance the second defendant’s application was successful.  The action was struck out and QOCS disapplied.

THE CLAIMANT’S SUCCESSFUL APPEAL

The claimant’s appeal against striking out was successful.   On appeal it was held that the second defendant had, in reality, applied for summary judgment.  Striking out an action was confined to a limited range of circumstances, none of which applied here.

1. 1. CPR 44.15 only bites where the proceedings have already been struck out on one of the prescribed grounds. Where proceedings have been so struck out, orders for costs against the claimant may be enforced to their full extent without the permission of the court. In other words, CPR 44.15 does not confer on the Court any separate additional power to strike out a claim. Instead there is an automatic removal of the costs protection under QOCS where the proceedings have been struck out on one of the prescribed grounds. Those grounds reflect the grounds on which claims may be struck out pursuant to CPR 3.4(2). There are some differences in phraseology, but it does not seem to me that these give rise to any substantive difference. For example, CPR 44.15 refers to the “proceedings” having been struck out, whereas CPR 3.4(2) refers to the striking out of a “statement of case”. It was confirmed in the Achille case that the term “proceedings”, as used in CPR 44.15, referred to all of the claims made by a claimant against a single defendant, when one such claim was a claim for personal injury. Thus, the striking out of a statement of case in respect of a claim against a defendant will amount to the striking out of proceedings against that defendant within the meaning of CPR 44.15. A further difference of language is that 44.15 refers to the “claimant” disclosing no reasonable grounds whereas CPR 3.4 refers to the “statement of case” not doing so. Mr Rodgers submits that that difference is explained by the fact that the latter provision must cater for defences as well, whereas CPR 44.15 only affects the position of claimants whose proceedings have been struck out. I agree with that submission.

1. 1. The position, therefore, is that CPR 44.15 will only apply where there has been a strike out pursuant to CPR 3.4, whereas the entering of summary judgment against a claimant pursuant to CPR 24 will not have that effect. The significance of this for claimants and defendants in personal injury claims is obvious: a successful application to strike out a claim will result not only in the dismissal of the claim, but also in an enforceable costs order against the claimant. The obtaining of summary judgment would only result in the dismissal of the claim.

1. 1. Given this significance, courts should be especially astute in personal injury claims in ensuring that an application that is made under CPR 3.4(2), but which ought properly to have been brought under CPR 24, is dealt with as if brought under the latter. Such a course is permitted, as confirmed by CPR 3.4.21 and the cases cited therein:

“Many cases fall within both rule 3.4 and Part 24, and it is often appropriate for a party to combine the striking out application with an application for summary judgment. Indeed, the court may treat an application under rule 3.4(2)(a) as if it was an application under Part 24 – Moroney v Anglo-European College of Chiropractice [2009] EWCA Civ 1560, and see Taylor v Midland Bank Trust Company Limited (No 2) [2002] WTLR 95 (see Moroney at 23).”

If the courts were to too readily permit applications for summary judgement to be pursued as strike out applications that would erode the protection to claimants afforded by QOCS.

1. 1. In the present case, Mr Rodgers submits that the Judge went far beyond any consideration of the statement of case (as is appropriate for a CPR 3.4 application) and conducted an evaluation of the evidence. Had the focus remained on the statement of case, it would have been clear that it did disclose reasonable grounds for bringing the claim and the application ought to have been dismissed, or alternatively, the application ought to have been treated as having been made under CPR 24.2.

1. 1. The particulars of claim in the present case are in standard form. This case does not fall into any of the examples set out in Practice Direction 1.4 of cases that would fall within CPR 3.4(2)(a). Thus, the particulars of claim do set out facts indicating what the claim is about. They are not incoherent, and those facts do disclose a legally recognisable claim. These examples are, of course, only illustrations but they do serve to indicate the kind of deficiency on the face of the pleadings that could lead to a strike out. There were no such deficiencies here.

1. 1. It was not suggested in the defence of either defendant that the particulars of claim were defective on their face. Indeed, that suggestion has not been made at any stage. The Judge also considered (at 17 of the note of the judgment) that the particulars of claim “take a proportionate approach whereby allegations are brought against the first and second defendants jointly.” The Judge also appeared to consider that the particulars of claim disclosed reasonable grounds, at least when the claim was first initiated. Thus at 51, the Judge stated that his conclusion that the claim was unsustainable “may be more obvious now that when the claim was initiated”, and at 53 that “the claimant had persisted with the claim after – in this case, long after – the fundamental foundations of the statement of case are manifestly unsustainable.”

1. 1. The question here is whether it was appropriate to go beyond the particulars and consider, as the Judge did, such matters as the CCTV footage, on this application to strike out. I have already said that the court is not confined to looking solely at the statement of case on a CPR 3.4 application, but the extent to which it may do so is limited. Mr Rodgers submitted that the mere fact that CCTV footage was being considered ought to have alerted the Judge that this was going beyond a strike out application based on the statement of case. I do not think it would be correct to take that approach. There may well be cases where such evidence is akin to a contemporaneous written document which wholly undermines an otherwise plausible assertion of fact in the pleaded case. For example, CCTV footage demonstrating conclusively that there was no accident at all could be taken into account in assessing whether the Statement of case was obviously ill-founded.

1. 1. The Judge in the present case took the view that the CCTV footage fell into that category, saying that the circumstances of the accident are beyond any reasonable scope of sensible contradiction. Having viewed the footage, it is difficult to be as confident as the Judge was. The footage shows the presence of poles on the floor in the loading bay. It also shows that the claimant placed his foot near the poles as he stepped over the barrier with his other foot to enter the bay. That much is not in dispute. What is in dispute is the cause of the fall. The claimant pleaded that it was the poles, and he maintains that view. The Judge took the view that it was the claimant failing to clear his trailing foot over the barrier. That, it seems to me, evidences a dispute of fact and causation on which the Judge decided against the claimant. It does not establish that the statement of case disclosed no reasonable grounds for bringing the claim in the first place. The Judge’s findings might well suffice in showing that the claim has no real prospect of success, or that its chances of success are fanciful. I express no view on that at this stage; but, given the necessary focus on the statement of case, the grounds for striking out on that basis are not present. In my judgment, the Judge was wrong to take the approach that he did; that is to say, the Judge wrongly applied an approach appropriate for a summary judgment application to a rule 3.4 application to strike out. The Judge acknowledged at para.33 that others might have pursued this as an application for summary judgment. Having so acknowledged, it was incumbent on the Judge, especially in the context of a personal injury claim where QOCS protection can fall away in the event of a strike out, to consider whether the application ought in fact to be treated as one made under CPR 24.2 (see the discussion above).

1. 1. It was not only the CCTV footage that led the judge to conclude as he did, but also his finding that TfL was not the occupier of the loading bay in which the accident occurred. It seems to me that the points made in the preceding paragraph apply a fortiori to this aspect of the judgment. Once again there was no suggestion prior to the application that the pleaded case was defective in asserting liability on the part of both defendants jointly. Indeed, the judge himself considered that to be proportionate. Moreover, this is a case where the first defendant had initially pleaded in its defence that the loading bay is under the control of the second defendant. If the first defendant could reasonably hold that view, albeit subsequently amended, then it can hardly be said that the claimant, in asserting the same, disclosed no reasonable grounds for doing so.

1. 1. The judge concluded that it “appears obvious that the blue rectangle [in the lease plan] is not a part of the property that forms any section under the control or supervision of the second defendant”, and that “both defendants recognise that the second defendant is not therefore an occupier of the relevant blue part of the floor.” As already mentioned, that was not the first defendant’s position at the outset. On that basis, and not, it would appear much else, apart from the absence of any positive evidence from the claimant as to the occupier of the part marked in blue, the Judge felt able to conclude that “the fact that the second defendant is not an occupier of the blue area is a fact beyond the reach of any sensible argument to the contrary.” In my view, the Judge was entitled to conclude that the second defendant was not the occupier, but that did not mean that the statement of case disclosed no reasonable grounds for asserting that it was. The Judge has, once again, reached a view on the merits, having reviewed the evidence, an exercise which is appropriate to a summary judgment application, and incorrectly applied that to this strike out application. In doing so, the Judge erred in law.

1. 1. These errors arose at least in part because of the way in which the application was made. This was one of those cases, unlike the position in the Independents’ Advantage case, where the defendant was seeking to rely on additional facts over and above those asserted in the claimant’s statement of case. The appropriate course, therefore, was for the defendant to make a summary judgment application under CPR 24 instead of, or in addition to, the strike out application under CPR 3.4. Mr Rodgers submits that the reason for not taking that course was tactical and suggested that this is a course often taken by defendants in personal injury claims. I heard no evidence as to that and I make no findings as to the defendant’s motive for pursuing only a strike out. However, it is clear that it may be an advantage for some defendants in approaching what is really a summary judgment application as a strike out application given the costs consequences under QOCS. As I have said already, the court should be astute in this context to deal with applications which are, in reality, applications on the merits for summary judgment on the basis that there is no real prospect of success, as applications under Part 24 are not as applications under CPR 3.4.

1. 1. Mr Cohen did make a number of points in support of a submission that it was “perfectly clear that even at the point that the claim was brought, there were no reasonable grounds for bringing it”. He submits that the claimant knew that his accident was neither caused nor contributed to by the poles and that, as such, he knew his claim was groundless. He further submits that it would have been obvious to the claimant before issuing proceedings that TfL was not the occupier of the loading bay. These would appear to be allegations that the claimant knowingly brought an untruthful or dishonest claim. The same was asserted below. However, the Judge made no findings on honesty. At 45 of the note of the judgment, the Judge said this:

“I do want to underscore what I said in the course of submissions. Allegations are made of fundamental dishonesty. I am not trespassing on that territory. There is still room for someone to be simply mistaken about how something happened, particularly in the circumstances of this case, and then to be shown to be mistaken by clear, unarguable, CCTV evidence. It is quite possible we are in that territory in this case. I make no findings about it today.”

1. 1. Accordingly, these points which appear to go to the honesty of the claimant, or the good faith in which the claim was brought, do not advance Mr Cohen’s submission that the particulars of claim disclosed no reasonable grounds for bringing the claim. If allegations of dishonesty are made out, whether after trial or otherwise, then of course the claimant is liable to lose QOCS protection under CPR 44.16.

1. 1. In summary, this is a case where the pleaded statement of case disclosed all the necessary elements of a cause of action under the OLA 1957 and in negligence. Being unable to make good his pleaded case on the evidence does not detract from that. Where a defendant in a personal injury claim considers that a claim is weak and has no real prospect of success, the appropriate course will generally be to make an application under CPR 24.

1. 1. Whilst it is implicit in parts of the judgement that the particulars of claim were considered to disclose reasonable grounds for bringing the claim, the Judge took the view, in determining that CPR 44.15 applies, that the concept of “bringing the proceedings” within the meaning of that rule encompasses the continuation of them. The Judge reasoned as follows:

“53 …The rule-makers clearly envisaged this to extend to where the claimant has persisted with the claim after – in this case, long after – the fundamental foundations of the statements of case are manifestly unsustainable.”

1. 1. The natural and ordinary meaning of the term “bringing proceedings” denotes their commencement. The continuation of proceedings denotes a separate act post-commencement. If the intention had been to include that separate act within the meaning of the provision, then the rule could readily have said so.

1. 1. Mr Cohen submitted that another equally plausible interpretation is that it includes the initiation and maintaining of those proceedings. However, I was not taken to any contextual material or rule of statutory interpretation that would entitle the court to read in such words which would, in my judgment, significantly expand the scope of the natural and ordinary meaning of the term. It was suggested that if the term were not broadened to include continuation of a claim that proved, as a result of disclosure or evidence, to be unmeritorious, then there would be little protection against weak claims being maintained without regard to cost and inconvenience to other parties. However, that is not the case, as the defendant could, in those circumstances, make an application for summary judgment. Similarly, if the court is faced with an application to strike out which is, in reality, a claim that a statement of case that was adequate when brought has been rendered inadequate by subsequent developments, the appropriate course might be to treat it as an application for summary judgment, or alternatively, that the pursuit of the claim amounts to an abuse of process within the meaning of rule 3.4(2)(b). That is especially so in the personal injury context where there are, as discussed, material costs consequences dependent on which rule is invoked.

1. For these reasons, Ground 2 of the appeal is upheld.