In The Royal Brompton Hospital National Service Trust vs Hammond and Others (unreported, 11 April 2001), His Honour Judge Seymour of the Technology and Construction Court had engaged in some proactive case management at the start of a hearing of liability issues. He had struck out most of the claims to be tried and excluded another. Only one remaining issue was then tried (and dismissed).
This trenchant style of case management might seem to be exactly in line with the Woolf reforms. However, the Court of Appeal allowed Brompton's appeal against his decisions. The liability issues will now have to be remitted to the TCC for trial, resulting in loss of time and money. What went wrong?
The facts in dispute arose some 10 years ago, yet it was not until last autumn that the first hearing of liability issues was due to take place. Brompton was suing project managers, architects and mechanical and electrical services consultants in respect of additional sums and extensions, awarded to the main contractor, which were said to be owing to their negligence and breach of contract.
The case was opened, and then adjourned so that the judge could continue to read the papers. On resuming, he indicated that he doubted whether the evidence in Brompton's witness statements established some of the allegations of breach of contract and negligence. Four days of submissions followed, resulting in most of the allegations being struck out and one excluded.
Under the CPR, the court can strike out a claim if the statement of case discloses no reasonable grounds for bringing it (CPR 3.4). And under CPR 24, the court may also give summary judgment on the whole of a claim or on a particular issue if it considers that the claimant has "no real prospect of succeeding on the claim or issue". Also, under CPR 3.3 the court can exclude a claim from a hearing. On the face of it, therefore, Judge Seymour had the necessary powers to do what he did. Yet the Court of Appeal said he got it wrong.
It was common ground that the statement of case did disclose reasonable grounds for bringing the claim. Therefore CPR 3.4 was not applicable. The Court of Appeal was initially under the impression that the judge had applied CPR 24 and had summarily dismissed allegations on the basis that there was no real prospect of success – in other words, that they were bound to fail.
However, on further analysis it was found that he had not followed this course. What he had done was to read Brompton's witness statements and conclude that, as they stood, they did not discharge the onus of proof required at trial: namely, on the balance of probabilities. It was on this basis that the claims were struck out.
The judge was held to be wrong mainly for the following reasons. Such a procedure was not permitted by the CPR. For a summary strike-out, a higher standard of proof was required than the balance of probabilities test. The claims had to have no real prospect of success. Further, the judge was aware that the parties would probably want to put before the court more evidence than was in the witness statements, so that any deficiency in evidence might later have been corrected.
The court then considered each issue and decided that none of them should have been struck out. As for the exclusion order, this was not appropriate at such a late stage, as it would not achieve finality. The court also observed that strike-outs and exclusion orders should normally take place at an early stage of proceedings, not at the beginning of a trial.
So, a bold and determined exercise of case management foundered and the issues must now be determined at a full trial. Given this episode, it will be interesting to see what the end result is.
Tim Elliott QC is a barrister specialising in construction at Keating Chambers.