“GIVEN THE INCOMPETENT WAY THE LITIGATION HAD BEEN CONDUCTED TO DATE”: CIRCUIT JUDGE WAS RIGHT TO REFUSE AND ADJOURNMENT AND RIGHT IN STRIKING OUT THE CLAIM
In Brem v Clark & Anor  EWHC 1358 (KB) Mr Justice Martin Spencer dismissed an appeal against a decision to strike out an action. The claimant’s counsel failed to attend at the hearing, but the judge was correct to refuse an adjournment. The case had been badly prepared, had already led to adverse costs orders against the claimant, and the judge was right to strike it out.
“… it seems to me clear that the learned judge was entitled to take the view that this litigation was going nowhere. Given the incompetent way that the litigation had been conducted to date, he saw little prospect of the matter being put into a state whereby it was fit to be tried without further wasted costs. In particular, he was entitled to take a view about the value of the claim (which was modest), the overall merits and the costs that had been incurred to date which the claimant would have to pay in any event (which were substantial).”
The claimant brought an action for damages against the first defendant and negligence against the second defendant firm of solicitors. It was alleged they failed to advise him that the garden of the premises he bought was, in fact, smaller than the garden he used when he was in the premises as a tenant. The difference in value was said to be £18,000.
THE CLAIMANT’S PLEADED CASE
The claimant’s case was pleaded in an unusual way. Among other things assertions of fraud had been disavowed in a letter prior to proceedings. Assertion of fraud, however, made their way into the Particulars of Claim.
The proceedings were issued on 5 February 2021, accompanied by Particulars of Claim. It must be said that the Particulars of Claim are somewhat eccentrically drawn with the Particulars of Claim against the First Defendant, including the “Prayer” at paragraphs 16 to 65, followed by the Particulars of Claim against the second defendant at paragraphs 66 to 115. Furthermore, worryingly, in the section dealing with the claim against the second defendant, there remain allegations of collusion, despite the second Letter of Claim withdrawing any allegation of fraud. Thus, it is pleaded that the solicitor at Rudd’s “deliberately delayed matters as per the claimant’s instruction” (by which it is clear is meant “contrary to the claimant’s instruction”) and that such deliberate delay was “to give the first defendant sufficient time to register the sub-titles of the separated land as is now shown on the letter from the Land Registry dated 17 January 2020.”
Furthermore, in the claim against the second defendant, it is pleaded (at paragraph 95) that the claimant:
“is content [sic] to believe that the second defendant was complicit with the first defendant knowingly that the claimant will suffer loss of property.
96. Email communications from [the solicitor] to the claimant clearly shows that there were intentions to mislead.”
In the Prayer, it is stated:
“AND the claimant claims:
(a) Declaration that an agent of the second defendant was complicit with the first defendant.”
The defendants applied to strike out the case, the claimant applied for permission t amend. The claimant was ordered to pay the costs of the adjournment.
THE ABSENCE OF COUNSEL AT THE ADJOURNED HEARINGS
The claimant’s counsel could not attend one hearing for personal reasons and the parties agreed to an adjournment. The claimant’s counsel could not attend the adjourned hearing because the had contracted Covid. There was some disagreement as to what happened at the hearing. However the result was that the action was struck out.
THE JUDGMENT AT FIRST INSTANCE
At first instance the Circuit Judge refused the claimant’s application for an adjournment and the matter was struck out.
5. In case managing these proceedings, I have bent over backwards to try and ensure that the case is properly dealt with by giving opportunities to the claimant to deal with this matter properly. But here I am faced with a situation where there is no-one on the record appearing for the claimant. There is no adequate explanation for their lack of attendance, apart from the fact that Mr Brem understands that the solicitor dealing with the matter is away on holiday. This application has been listed for some considerable period with three hours set aside for it, and yet no one (apart from the lay client) has attended for the claimant. At the same time, the first and second defendants have invested a considerable amount of time and expense in attending this hearing, and they have both, quite properly, instructed counsel.
6. So this leaves various questions of what do I do with today’s hearing? Do I adjourn it and give the claimant a further opportunity, or do I agree to Mr Clapp’s submission that I proceed?
7. It is my view that the compromise which was reached between some of the parties last night was not a compromise because there is subsequent correspondence from the claimant’s solicitors indicating that the terms of the consent order were not in fact agreed in that form. That, coupled with the fact that the application for an adjournment has not been supported by a fee, means that there is no formal application in front of me. Moreover, the first defendant simply does not give their consent
8. I must apply these matters in terms of case management properly, and that is to consider the overriding objective set out in CPR 1.1 which I must (under CPR 1.2 consider). One of those considerations is dealing with the case at proportionate cost. I am also aware of the need to deal with such proceedings expeditiously and fairly – requiring enforcement of the rules, practice directions and orders (CPR 1.1 (2)(f).
9. It seems to me that by adjourning this case further, it will simply incur greater (and dare I say, needless costs), and that is simply unacceptable. They will be disproportionate to the claim. I say that against the background that, having considered the claimant’s claim – and I accept that I not heard submissions as to this yet – it does seem to me on the face of it that there are considerable practical difficulties with regard to the claimant proving his loss.
10. First, there appears to be a claim for distress and inconvenience which is going to be difficult to argue bearing in mind that this head of damages is relatively small in practice and should largely be confined to matters of, for example, holiday cases and so on and so forth, where there is plenty of authority. So, I think that is highly unlikely to succeed. But moreover, going back to the facts that the claimant is seeking to prove, that his own expert valuation evidence from e.Surv with the truncated garden is given at £325,000, and that in fact is what the property was sold for. So I am struggling in the absence of I think it is Mr Aura’s report to understand exactly where there is any loss. Mr Aura’s report has a number of significant deficiencies in it, and they are outlined in Miss Elliott’s skeleton argument, and I refer in particular to those matters which she has set out at paragraph 31 of her skeleton which I adopt for the purpose of this short judgment.
11. This really places this claim into context. In those circumstances, and applying the appropriate requirements of the CPR, it is my view that applying it on a case management basis this is a case which simply should not go further forward. And upon that basis, I strike out the claim in its entirety and order that the claimant do pay the first and second defendants’ costs of the action.”
THE CLAIMANT’S UNSUCCESSFUL APPEAL
The claimant’s appeal against the striking out was unsuccessful.
Discussion and Decision
As recognised by all the parties, in order for the claimant to succeed on this appeal, he must meet the test set out by r.52.21(3) and show that the decision of the lower court was either wrong or unjust because of a serious procedural or other irregularities in the proceedings in the lower court. Where the decision was a case management decision, the appellate court should not reverse or interfere with the order of the lower court unless that order was:
“plainly wrong in the sense of being outside the generous and it where reasonable decision-makers may disagree”
see Global Torch Ltd v Apex Global Management Ltd (No 2)  UKSC 64.
In Hadmor Productions Ltd v Hamilton  1 AC 191, Lord Diplock observed that an appellate court should:
“defer to the judge’s exercise of his discretion and must not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently.”
So far as the decision of the learned judge not to grant the claimant’s application for a further adjournment, this was plainly a case management decision falling squarely within the guidance set out in the above cases. The fact that Judge Saunders agonised over the decision whether or not to adjourn the hearing is reflected in his judgment and it is abundantly clear that he was acutely aware of the difficulty which the claimant, Mr Brem, found himself in through no fault of his own. However, as the courts have continuously recognised, the court’s resources are precious and continuous adjournments are highly undesirable, not least because of the knock-on effect on other cases. This was, in effect, the claimant’s third bite at the cherry and the learned judge was entitled to come to the conclusion that enough was enough and the case should proceed. This was a decision well within the ambit of his discretion and I cannot possibly say that the decision was wrong, even if I would have exercised my discretion differently.
As to the decision to strike out the claim, this was clearly influenced by the somewhat pitiful state of the pleaded case and the fact that, despite having been given ample opportunity to do so, the pleadings remained incoherent with matters of fraud remaining pleaded despite the second Letter of Claim eschewing any intention to rely on fraud or collusion. I have found this a difficult case to decide because, on the basis of Mr Peachey’s able and persuasive submissions, I have a lurking suspicion that, having decided not to adjourn the hearing, the claimant was left at sea and unable to deal with the issues that needed to be addressed. I suspect that Mr Peachey is right that greater care should have been taken to explain to the claimant the issues arising from the applications for strike-out and summary judgment and he should have been given clearer opportunity to make submissions on the substantive points. However, as Ms Elliott pointed out, the claimant was ill-equipped to deal with the substantive matters and even if he had been given greater opportunity, it is highly doubtful that this would have made any difference.
In the end, it seems to me clear that the learned judge was entitled to take the view that this litigation was going nowhere. Given the incompetent way that the litigation had been conducted to date, he saw little prospect of the matter being put into a state whereby it was fit to be tried without further wasted costs. In particular, he was entitled to take a view about the value of the claim (which was modest), the overall merits and the costs that had been incurred to date which the claimant would have to pay in any event (which were substantial). He was entitled to take into account the criticisms of the report of Mr Orah set out in Ms Elliott’s skeleton argument in considering the prospects of success, particularly in the light of the report and subsequent letter from E.Surv and the continuing reliance on that report by the claimant. He was entitled to take the view that enough of the court’s resources had been expended on this litigation and enough leeway had been afforded to the claimant’s advisers to enable them to get their “ducks in a row”, to no avail. Whilst I agree that the learned judge should have taken greater care in setting out his reasons for granting the applications for strike-out/summary judgment which, as Ms Elliott pointed out, were “concise” and in particular there was some elision between these two separate grounds which have different tests and considerations applicable to them, I do not consider that this failure has in fact resulted in injustice to the Claimant.