Practice and procedure – Claim – Strike out – Appellant bringing claim against respondents concerning purchase of property – Judge refusing to adjourn hearing, striking out claim and awarding costs on indemnity basis – Appellant appealing – Whether judge erring in striking out claim – Whether procedural irregularity making strike out of claim wrong and unjust – Appeal dismissed
The appellant purchased from the first respondent premises at 61 Kings Road, Basildon, Essex, for £325,000. The second respondent acted as the appellant’s solicitor on the purchase. The appellant had originally moved into the property as a tenant of the first respondent.
The appellant argued that, while a tenant, he had enjoyed the use of the whole of the back garden area and believed that that was part of the property conveyed to him. However, the respondents said that the area of garden to be purchased was truncated, with a fence demarcating the area being purchased by the appellant.
It was the appellant’s case that the value of the property as actually conveyed, with the truncated garden, was £307,000, £18,000 less than the amount he paid. He claimed that sum against the second respondent. In addition, he claimed against the first respondent a total of £16,000 of asserted losses which were not connected with the claim in respect of the value of the house.
The judge refused the appellant’s application for the hearing to be adjourned because his counsel had fallen ill and struck out the claim. The appellant was also ordered to pay the respondents’ costs on an indemnity basis summarily assessed at £16,577 in the case of the first respondent and £17,225 in the case of the second respondent.
The appellant appealed, contending, among other things, that there had been serious procedural irregularities which made the striking out of the claim unjust and wrong.
Held: The appeal was dismissed.
(1) In order for the appellant to succeed, he had to meet the test set out in CPR 52.21(3) and show that the decision of the lower court was either wrong or unjust because of a serious procedural or other irregularity 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 ambit where reasonable decision-makers may disagree: Global Torch Ltd v Apex Global Management Ltd (No 2) [2014] UKSC 64; [2014] 1 WLR 4495 applied.
An appellate court had to defer to the judge’s exercise of his discretion and not interfere with it merely upon the ground that the members of the appellate court would have exercised the discretion differently: Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 applied.
(2) As regards the decision of the judge not to grant the appellant’s application for a further adjournment, this was plainly a case management decision falling squarely within that guidance. The fact that the judge agonised over the decision whether or not to adjourn the hearing was reflected in his judgment, and it was clear that he was acutely aware of the difficulty which the appellant found himself in through no fault of his own.
However, as the courts had continuously recognised, the court’s resources were precious and continuous adjournments were highly undesirable, not least because of the knock-on effect on other cases. This was, in effect, the appellant’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 the court could not possibly say that the decision was wrong, even if it would have exercised its discretion differently.
(3) The decision to strike out the claim 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.
This was a difficult case to decide because, on the basis of the appellant’s submissions, as the judge had decided not to adjourn the hearing (having granted a previous adjournment), the appellant was unrepresented and unable to deal with the issues that needed to be addressed. Greater care should probably have been taken to explain to the appellant 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, the appellant was ill-equipped to deal with the substantive matters and even if he had been given greater opportunity, it was highly doubtful that that would have made any difference.
(4) In the end, it was clear that the 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 appellant would have to pay in any event (which were substantial).
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 appellant’s advisers to enable them to get their “ducks in a row”, to no avail. While the judge should have taken greater care in setting out his reasons for granting the applications for strike out/summary judgment, which were concise – and, in particular, where there was some elision between the two separate grounds which had different tests and considerations applicable to them – that failure had not in fact resulted in injustice to the appellant. Accordingly, the appeal would be dismissed.
David Peachey (instructed by Chipatiso Associates Ltd) appeared for the appellant; Rowan Clapp (instructed by BTMK Todmans Solicitors of Rayleigh) appeared for the first respondent; Clare Elliott (instructed by Browne Jacobson LLP) appeared for the second respondent.
Eileen O’Grady, barrister
