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Hope for defendants seeking strike out or discontinuance pending an appeal

1 February 2018

Following the decision in CN & GN v Poole Borough Council (CN), many claimants’ solicitors are requesting limitation moratoriums or stays in ‘failure to remove’ claims pending any appeal. However, for defendants it may tip the balance in claims that were weak in any event, supporting strike out applications and encouraging discontinuances.

In a recently discontinued case, the claimant was the biological son of Mr and Mrs J, who were foster parents for the defendant. The claimant alleged that he was sexually abused by his father between 1975 and 1989. Prior to the judgment in CN, we informed the claimant of our intention to strike out on the basis that:

  • the particulars were inadequately pleaded
  • the pleaded case lacked any legal foundation, and disclosed no reasonable grounds for bringing the claim (an exception to qualified one-way costs shifting).

The CN judgment reinforced our position in relation to the absence of a legal duty of care, increasing our prospects of strike out and of securing costs. The claimant discontinued soon after the judgment was handed down.

Many claimants are responding to CN by re-pleading claims and seeking stays in the hope that an further appeal may improve their prospects. However, particularly in those cases where duty of care is already dubious, defendants should consider the potential of securing strike out or discontinuance of unmeritorious claims, using the additional leverage afforded by the Court of Appeal decision. 

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