0370 270 6000

Royal Brompton Hospital National Health Service Trust v Hammond and Others

14 May 2001
The issues

Striking Out – CPR – Considerations For The Court

The facts

The work began in 1987 and was completed in May 1990, 43 weeks late. Additional payment for the contract price had been made already by October 1992 and a further 17 million pounds were claimed in May 1990. Brompton brought proceedings to recover damages for breach of contact from the Project Managers and others.

A Liability Trial occurred in October 2000. The Trial Judge expressed a doubt as to whether the evidence in the witness statements established the breaches of contract and the negligence alleged. Submissions followed over 4 days as to whether allegations should be struck out. Certain allegations were struck out and others excluded and the Trial proceeded on a question of law which the Judge answered in the negative dismissing the claim against the consultants.

Brompton appealed both against the initial order striking out and excluding the Judge’s final determination. Brompton’s case was that the claim should not have been struck out and they should either have been heard or tried.

The decision

Part 24 enabled the Court to give summary judgment on a particular claim or issue. The test was whether the Claimant had no real prospect of succeeding on the claim or issue. It was whether there was a real prospect of success in the sense that the prospect was realistic rather than fanciful. It appeared that the Trial Judge had determined the issues on a balance of probabilities. The procedure he had adopted was wrong for 6 reasons.

i) Part 24 provided for summary judgment. The standard was a real prospect of success. It would be surprising if the Court could give judgment out of trial adopting the standard applicable to a trial.

ii) The practice direction to Part 24 made clear that the Court should consider the evidence reasonably expected to be available at trial. The Judge did not consider what might arise during the Trial. He knew or must have known that the totality of evidence the parties wished to bring was unlikely to be in the witness statements.

iii) The procedure set out was intended to deal with making most effective use of the Court’s resources. Striking out hopeless cases at an early stage. To graft that on to a further procedure at trial was only to encourage delay and increased costs.

iv) The Judge’s procedure created difficulties in deciding the effect of the order made. It was uncertain if it was a final judgment binding both parties. If it was an interim decision it amounted to a summary disposal.

v) Despite the wide powers in Rule 1.4 summary disposal did not contemplate a preliminary trial adopting standard proof applicable to a Trial. Summary disposal under that rule was equivalent to an additional to that provided for other Rule 24.

vi) The Judge had power to make an exclusion order. Finality however could only have been achieved by a stay or a strike out. It was not appropriate to exclude a claim that was arguable on the pleadings. Both orders would be set aside.

Focus on...

Legal updates

Court of Appeal confirms exclusive English jurisdiction clause in excess liability policies in Canadian pipeline dispute

On 10 June 2022 the Court of Appeal upheld an anti-suit injunction granted in favour of insurers by Mr Justice Jacobs in September 2021 restraining proceedings from being brought in Canada and enforcing the exclusive English jurisdiction clause in excess liability policies.



Payment Fraud landscape shaped by technology in 2021

Payment systems across Europe are under increased pressure to mitigate fraud risks and defend against persistent attacks from enablers using ever more sophisticated and malicious viruses and malware.


Legal updates

Gosden and another v Halliwell Landau and another [2021] EWHC 159 (Comm)

This claim addressed the question, of when the date for assessment of damages in cases of negligence should be determined and shows that when appropriate the Courts will depart from the default position.


Legal updates

Assessing the scope of employers liability – Chell v Tarmac

These were the opening remarks of Mr Justice Martin Spencer when handing down his Judgment in the recent case of Andrew Chell v Tarmac Cement and Lime Limited [2020] EWHC 2613, the latest in a series of appeals dealing with the scope of vicarious liability.


The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

Mailing list sign up

Select which mailings you would like to receive from us.

Sign up