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Hannigan v Hannigan, Court of Appeal

26 May 2000
The facts

The Claimant’s case had been struck out by the District Judge. The Claimant appealed to the Judge who upheld the striking out. The case arose out of a squabble arising out of the administration of the Claimant’s husband’s estate. Proceedings were issued under The Inheritance Act in the form of Part 8 CPR. The Claimant relied on evidence contained in her witness statement filed with the claim. The Executors Solicitor applied for an Order pursuant to CPR 3.4(ii) that the Statement of Case should be struck out for failure to comply with rules and practice directions. The complaints were as follows:-

(i) That the claim was issued on the wrong form – although the Claimant stated that Part 8 applied they did not use a Part 8 form (but used an obsolete form from the old Green Book);

(ii) The Statement of Case was not verified by a Statement of Truth;

(iii) There was a failure to include The Royal Coats of Arms;

(iv) The First Defendant was incorrectly named;

(v) That the witness statement was signed in the name of the firm rather than by the Claimant;

(vi) That the witness statement did not have the necessary rubric in the top right hand corner;

(vii) That the witness statement failed to have marginal notes or a 3.5 centimetre margin;

(viii) The exhibit to the witness statement failed to have the rubric or a front page listing the documents and the date of the exhibits or to paginate the documents;

(ix) There was a failure to serve an Acknowledgement of Service form on the Defendants.

The decision

(i) It was common ground that the Judge on Appeal had the power under CPR 3.9 and 3.10 to grant relief for the District Judge’s Order and to make an Order remedying the error made by the Claimant’s Solicitor;

(ii) The issue before the Court was whether the Judge was plainly wrong in the manner he exercised his discretion. The Court noted that the Judge had been particularly critical of the Claimant’s use of an out of date form. “The whole form that the Application was drawn in was wrong even pre 26th April”. He went onto say “I do not%u2026 interpret Civil Procedure Rule 3.10 as giving me, in effect as an Appellate Court, the power to rectify such omissions which I consider to be serious simply by saying let us accept those and get on with it%u2026 Discretion will be exercised where appropriate but there is too much wrong with these Proceedings to exercise a discretion in the Appellants favour”. In exercising his discretion the Judge considered each of the factors numerated in CPR 3.9 and in particular – the interest of the administration of justice

– Whether there was a good explanation for failure
– The effect which the granting of relief would have on each party

The decision taken by the Judge was nonetheless seriously flawed because he failed wholly to take into account the fact that the Defendants had been given in the Proceedings that had been served all the information they required in order to be able to understand what Order the Claimant was seeking from the Court and why she was seeking it. The Judge concentrated on technical mistakes and “lost sight of the wood for the trees”. The sanction was disproportionate.

The paramount consideration is the achiever of the new Rules is the achievement of justice. It would have been better for the Defendant’s Solicitors merely to have pointed out the mistakes and let the Claimant correct them. “The over-riding objective is not furthered by arid squabbles about technicalities such as have disfigured this litigation and eaten into the quite slender resources available to the parties”.

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