A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or falsified documentation in discovery. The forgery was admitted.
Held: If a party to litigation behaved in such a way as make it impossible safely to grant a judgment in his favour, or, where the behaviour amounted to an abuse of the processes of the court, the court must decline to allow that party to be heard, and to give judgment against him. The object of the rules of discovery was to secure a fair trial. A failure in disclosure might normally not defeat a claim, but a determined attempt to prevent a fair trial should do so: ‘A decision to stop the trial in those circumstances is not based on the court’s desire (or any perceived need) to punish the party concerned; rather it is a proper and necessary response where a party has shown that his object is not to have a fair trial which it is the court’s function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise.’
As to pre-CPR cases: ‘The old authorities are of interest only as the straws in the gale force winds of change which blew in Lord Woolf’s reforms.’ and ‘The attempted perversion of justice is the very antithesis of parties coming before the court on an equal footing. ‘
Further, in this context, a fair trial is a trial which is conducted without an undue expenditure of time and money; and with a proper regard to the demands of other litigants upon the finite resources of the court. The court does not do justice to the other parties to the proceedings in question if it allows its process to be abused so that the real point in issue becomes subordinated to an investigation into the effect which the admittedly fraudulent conduct of one party in connection with the process of litigation has had on the fairness of the trial itself. That, as it seems to me, is what happened in the present case. The trial was ‘hijacked’ by the need to investigate what documents were false and what documents had been destroyed. The need to do that arose from the facts (i) that the petitioners had sought to rely on documents which Nigel Tobias had forged with the object of frustrating a fair trial and (ii) that, as the judge found, Nigel Tobias was unwilling to make a frank disclosure of the extent of his fraudulent conduct, but persisted in his attempts to deceive. The result was that the petitioners’ case occupied far more of the court’s time than was necessary for the purpose of deciding the real points in issue on the petition. That was unfair to the Blackledge respondents; and it was unfair to other litigants who needed to have their disputes tried by the court.
In my view, having heard and disbelieved the evidence of Nigel Tobias as to the extent of his fraudulent conduct, and having reached the conclusion (as he did) that Nigel Tobias was persisting in his object of frustrating a fair trial, the judge ought to have considered whether it was fair to the respondents – and in the interests of the administration of justice generally – to allow the trial to continue. If he had considered that question, then – as it seems to me – he should have come to the conclusion that it must be answered in the negative. A decision to stop the trial in those circumstances is not based on the court’s desire (or any perceived need) to punish the party concerned; rather, it is a proper and necessary response where a party has shown that his object is not to have the fair trial which it is the court’s function to conduct, but to have a trial the fairness of which he has attempted (and continues to attempt) to compromise.’
Roch, Ward, Chadwick LJJ
Times 07-Jul-2000, [2000] CP Rep 59, [2000] EWCA Civ 200, [2001] BCC 591, [2000] BCLC 167, [2000] WL 775004
Bailii
Companies Act 1985 459
England and Wales
Citing:
Appeal from – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Cited – In re Saul D Harrison and Sons plc CA 1995
The ‘legitimate expectations’ of a party were a label for the ‘correlative right’ to which a relationship between company members may give rise when, on equitable principles, it would be regarded as unfair for a majority to exercise a power . .
Cited – O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
Cited – Allen v Sir Alfred McAlpine and Sons Ltd CA 1968
The court described the peculiarly difficult position of a solicitor sued for the negligence of losing litigation for his client by reason of having his client’s claim struck out: ‘It is true that if the action for professional negligence were . .
Cited – Landauer Ltd v Comins and Co (a firm) CA 14-May-1991
The first instance Judge had struck out a claim under the provisions of order 24 rule 16(1) in circumstances where a number of relevant documents did not appear on the plaintiffs list of documents and were found to have been destroyed, the . .
Cited – Logicrose Ltd v Southend United Football Club Ltd CA 5-Feb-1988
The agent required the contractual counterparty to pay a bribe of pounds 70,000 to an offshore account.
Held: The bribe was held to be recoverable by the principal whether the principal rescinded or affirmed the contract because it was a . .
Cited – Biguzzi v Rank Leisure Plc CA 26-Jul-1999
The court’s powers under the new CPR to deal with non-compliance with time limits, were wide enough to allow the court to allow re-instatement of an action previously struck out. The court could find alternative ways of dealing with any delay which . .
Cited – UCB Corporate Services Ltd (formerly UCB Bank plc) v Halifax (SW) Ltd CA 6-Dec-1999
It was proper to strike out a claim for abuse of process where the party had been involved in a wholesale disregard of the Civil Procedure Rules and of court orders. The court has a range of remedies appropriate to the degree of such disregard. . .
Cited – Purdy v Cambran 17-Dec-1999
It is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. ‘For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at . .
Cited – Birkett v James HL 1977
Exercise of Power to Strike Out
The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
Cited – Arbuthnot Latham Bank Limited; Nordbanken London Branch v Trafalgar Holdings Limited; Ashton and Ashton CA 16-Dec-1997
The issue was the appropriateness of a Court striking an action out where there has been considerable delay if: (i) the cause of action relied upon by the plaintiff in the proceedings would be statute barred if the action were to be struck out, but . .
Cited – Choraria v Sethia CA 15-Jan-1998
Inordinate and inexcusable delay flouting court rules could itself constitute abuse of process irrespective of the absence of prejudice. A ‘complete, total or wholesale disregard, put it how you will, of the Rules of Court … is capable of . .
Cited – Miles v Mcgregor CA 23-Jan-1998
Increase in findings of inordinate delay accompanied increased reluctance to strike out in absence of established prejudice to other party: ‘The abuse of process route is for cases … when the conduct amounts to an affront to the court and its . .
Cited – Lace Co-Ordinates Ltd v Nem Insurance Co Ltd CA 19-Nov-1998
Referring to the new Civil Procedure Rules: ‘These guidelines … create an entirely new climate in which the court is required to examine the plaintiff’s conduct by reference to the overall interests of justice and fairness (including . .
Appeal From – Arrow Nominees Inc, Blackledge (L) v Blackledge (G), Blackledge (M), Blackledge (GR and MM) ChD 21-Jan-2000
The claimants had begun proceedings claiming unfair prejudice by the defendants in the management of the business. The defendants sought to have the petition struck out saying that the claimants had used falsified documents to base their petition. . .
Cited by:
Cited – Douglas, Zeta-Jones, Northern and Shell Plc v Hello! Ltd, Hola Sa, Junco, The Marquesa De Varela, Neneta Overseas Ltd, Ramey ChD 27-Jan-2003
The claimants sought an order striking out the defendants’ defence on the grounds that, by destroying documents, the possibility of a fair trial had been prejudiced.
Held: Refusing the order, save as to certain paragraphs of the defence, the . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
See Also – Arrow Nominees Inc, Blackledge (L) v Blackledge (G), Blackledge (M), Blackledge (GR and MM) ChD 21-Jan-2000
The claimants had begun proceedings claiming unfair prejudice by the defendants in the management of the business. The defendants sought to have the petition struck out saying that the claimants had used falsified documents to base their petition. . .
Cited – Ridsdill and others v Smith and Nephew Medical, Duffy, Whittleton EAT 22-Jun-2006
EAT Practice and Procedure – Striking-out/dismissal.
Chairman’s decision to strike out claims which had not been actively pursued and when there had been failure to comply with Tribunal orders. The appeal . .
Cited – Abegaze v Shrewsbury College of Arts and Technology CA 20-Feb-2009
In 2000 the claimant succeeded in his claim for discrimination, but had not pursued his remedy. He now appealed against a refusal to allow him to take it further. He had initially failed to pursue the matter for ill health. He later refused to . .
See Also – Arrow Nominees Inc and others v Blackledge and others CA 28-Feb-2002
. .
Cited – Burns v Royal Mail Group Plc (No 2) (Formerly Consignia Plc), Humphrey EAT 14-Jan-2004
The hearing was an adjourned second hearing. The appeal on sex discrimination had been dismissed, and the balance of the claim for constructive unfair dismissal was adjourned. At that adjourned hearing the claimant now sought to re-open the claims . .
Cited – Shah v Ul-Haq and Others CA 9-Jun-2009
The defendant appealed against a refusal to strike out the claimant’s action saying that the claimant had been involved in a fraud upon the court in an earlier associated claim.
Held: The Rule gave no power to strike out a claim on such a . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Cited – Secretary of State for Business, Innovation and Skills v Doffman and Another ChD 11-Oct-2010
The defendants applied for directors’ disqualification proceedings for the claim to be struck out or dismissed on the ground that the respondent had breached their rights to a fair trial under Article 6 of the European Convention on Human Rights . .
See Also – Arrow Nominees Inc and Another v Blackledge and others CA 13-Jul-2004
. .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Cited – Summers v Fairclough Homes Ltd CA 7-Oct-2010
The claimant was said to have fraudulently exaggerated the damages associated with a valid personal injury claim. The defendant argued that the claim should be struck out entirely as a punishment.
Held: The defendant’s appeal failed. The Court . .
Cited – Zahoor and Others v Masood and Others CA 3-Jul-2009
It was argued that the judge should have struck the claim out as an abuse of process on the ground that some at least of the claims were based on forged documents and false written and oral evidence.
Held: Arrow Nominees was authority for the . .
Cited – Bilta (Uk) Ltd v Nazir and Others ChD 24-Nov-2010
The company had been wound up by the Revenue on the basis that it had been used for a substantial VAT fraud. The liquidators now sued those said to have participated. A defendant denied the jurisdiction because of a disputed arbitration agreement. . .
Cited – Hughes Jarvis Ltd v Searle and Another CA 15-Jan-2019
The claimant and director appealed from orders associated with a finding of contempt of court. The Director, the case having been adjourned overnight during the course of his evidence, and despite warnings to the contrary had sought to communicate . .
Cited – Emuemukoro v Croma Vigilant (Scotland) Ltd and Another (Practice and Procedure) EAT 22-Jun-2021
Response Properly Struck Out – Non-compliance
On the first day of a five-day hearing to consider the Claimant’s claims of unfair dismissal, wrongful dismissal and holiday pay, the Tribunal struck out the Respondents’ Response for failing to comply with the Tribunal’s orders. Those failures . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Company
Updated: 19 November 2021; Ref: scu.77874