Summary of Recent Cases – Civil Procedure


Though the court had inherent jurisdiction to strike out a statement of case at any stage of proceedings, even when it had already been determined that a Claimant was in principle entitled to damages. However that power was only likely to be exercised when it was just and proportionate to do so, and that was likely to be only in very exceptional circumstances.

Summers v Fairclough Homes Ltd [2012] UKSC 26

It was held that the court did have jurisdiction to strike out a statement of case for abuse of process, or under its inherent jurisdiction, even after a trial in which the court had made a proper assessment of liability and quantum. The fraudulent exaggeration of a claim was an abuse of process, and the language of the CPR supported the existence of a jurisdiction to strike out a claim for abuse of process even where to do so would defeat a substantive claim. The power to strike out after a trial was to be exercised only in very exceptional circumstances. A party who fraudulently exaggerated a claim would have difficulty persuading a judge that any of his evidence should be accepted, and he could expect to be penalised in costs. While a Part 36 offer was of no real assistance to a D who wished to protect his costs position, there was no reason why he could not make some form of Calderbank offer to settle the genuine claim and to settle the costs on the basis that the C would pay the D’s costs in respect of the fraudulent aspects of the case on an indemnity basis. A person who fraudulently exaggerated a claim could expect to face criminal charges or committal to prison for contempt of court.

Where the parties to personal injury litigation had raised serious issues about directions for accountancy and medical evidence 2 months before the trial it was appropriate to treat the applications as a pre-trial review and order costs in the case

Van Niekerk v Carnival Plc & Anor [2012] QBD, 13/06/12

Permission was granted to obtain expert accounting evidence and for the cause of death experts to produce a joint statement. Although the C had succeeded on her application to admit accounting evidence, it had been necessary because there was a deficiency in her case which the D had pointed out some months earlier, and she had sought to adduce additional evidence close to the trial and in circumstances where it raised serious questions about whether the trial could proceed in the event that permission were granted. However the issue about a joint expert’s report had been a serious issue. Taking those issues into account, the proximity to trial and the matters on which the parties had argued, it was appropriate to consider the hearing as a pre-trial review. In those circumstances, the appropriate order for costs was costs in the case.

August 1, 2012 В· Editorial Team В· Comments Closed
Posted in: Cases