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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.

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