Case Management Powers - The Royal Brompton Hospital Case: Judge’s Case Management Criticised By Court Of Appeal

The Overriding Objective of the CPR is to enable the court to deal with cases justly and this includes so far as practicable –

• ensuring that the parties are on an equal footing;
• saving expense;
• dealing with the case in ways that are proportionate –
• to the amount of money involved;
• to the importance of the case;
• to the complexity of the issues; and
• to the financial position of each party;
• ensuring that it is dealt with expeditiously and fairly; and
• allotting to it an appropriate share of the court’s resources while taking into account the need to allot resources to other cases

Part 3.3 of the CPR gives the court power to make orders of its own initiative, while part 3.4 sets out the following grounds on which a court may strike out a statement of case:

• if it appears to the court that it discloses no reasonable grounds for bringing or defending the claim, or
• that is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings, or
• that there has been a failure to comply with a rule, a practice direction, or order.

The court may carry out part of its duty of active case management by summarily disposing of issues which do not need full investigation and trial in accordance with part 24. This rule allows the court to enter summary judgment against a claimant where, on all the facts, the claim has no reasonable prospect of success.

His Honour Judge Seymour of the Technology and Construction Court exercised his case management powers in the case of The Royal Brompton Hospital National Health Service Trust v. Hammond and Others ALL [2001] 130. The judge held that the claimant’s evidence did not prove its case on certain allegations made and he ordered that those allegations should be struck out and other claims excluded. He was extremely critical of the claimant’s failure to (in his view) prepare its case adequately in time for the first hearing before him some 7 years after commencement of proceedings. He remarked that, even after considering the 146 page re-amended statement of case the claimant’s allegations were still very vague and he was critical of the rather mobile quality of the claimant’s interpretation of the re-amended statement of case in a case overburdened by pleadings. The Court of Appeal overturned his judgment in April 2001 together with his judgment on the trial of the surviving claims in relation to extensions of time.

The judge considered whether, without an application to do so, he could strike out some parts of the re-amended statement of case. He also questioned whether it would be right to strike out parts of the pleading when witnesses and experts were ready to attend at court and give evidence. He concluded that it could not be right for a court to submit to a ritual of evidence being called, simply because the parties or the witnesses had some expectation of that happening when it was appropriate to determine the case or some issue(s) on documentary material only or on the basis of submissions. The factors he took into account were as follows:

• the sub trial was expected to last another 6 weeks;
• the cost to the parties must already be substantial;
• the case against each of the Defendants depended, to a considerable extent, on expert evidence; and
• any saving of time would be a benefit to the parties.

He decided that in this case it would be acceptable to dismiss, summarily claims that the court was confident could not succeed.

The Court of Appeal disagreed. The Judge had failed to apply the part 24 test, namely, was there a real prospect of success? Rule 1.4(2)(c) gives the court wide powers, including summary disposal, but the rule does not contemplate a preliminary trial adopting the standard of proof applicable to a full trial namely, the balance of probabilities. Rather, summary disposal under rule 1.4(2)(c) is equivalent to and additional to that provided for under rule 24.2. Having analysed the evidence in the claimant’s witness statements the judge had concluded that the claimant had not discharged the onus of proof required at a trial, and given judgement accordingly. This was the wrong approach. The Court of Appeal overturned both judgments because the judge had given judgment, without a trial, using the standard of proof applicable to a trial. By contrast, the test required by part 24 was whether there was a real prospect of success.

The Court of Appeal also referred to the part 24 Practice Direction which makes clear that the Court when deciding whether to strike out a claim should consider the evidence which can reasonably be expected to be available at trial or the lack of it. It would seem that the judge had allowed himself to be influenced by his frustrations with what he considered to be an inadequately prepared case. As a result, he exercised his case management powers incorrectly.

Whilst judges have been granted power to manage cases this does not equate to the power to dismiss them summarily even if after 7 years a claimant has failed to plead its claim properly or to provide supporting evidence, that is, unless the judge has clearly satisfied himself that the claims do not have a real prospect of success.

"© Herbert Smith 2002

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