Asiansky Television Plc and Another v Bayer-Rosin: CA 19 Nov 2001

The court considered the circumstancs allowing a striking out.
Held: Consideration should be given to the question whether striking out the claim or defence would be disproportionate and, except perhaps where striking it out would be plainly proportionate, the judge should give reasons why it was proportionate in the particular case. Only in a case of ‘flagrant’ abuse would a court be likely to strike out an action where a fair trial was still possible. ‘The essential question in every case is: what is the just order to make, having regard to all the circumstances of the case? As May LJ put it [in Purdy v Cambran [2000] CP Rep 67 at para 51] it is necessary to concentrate on the intrinsic justice of a particular case in the light of the overriding objective. The cases to which I have referred emphasise the flexible nature of the CPR and the fact that they provide a number of sanctions short of the draconian remedy of striking out the action. It is to my mind important that the Master or Judge exercising his discretion should consider alternative possibilities short of striking out.’
As to a review, Clarke LJ said: ‘On a review of a decision like that of Master Eyre which involved the exercise of discretion the appeal court, subject to one proviso [ where the appeal court receives fresh evidence], is limited to considering whether he took account of irrelevant considerations, or failed to take account of relevant considerations, or whether he was wrong in the sense described by Lord Fraser in G v G in the passage quoted by Brooke L.J.’


Clarke, Mance, Dyson LJJ


[2001] EWCA Civ 1792, [2002] CPLR 111, [2001] EWCA 1792




Civil Procedure Rules


England and Wales


CitedPurdy 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 by:

CitedDi Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
See AlsoAsiansky Television Plc and Another v Bayer-Rosin CA 11-Nov-2003
. .
See AlsoAsiansky Television Plc and Another v Bayer-Rosin (A Firm) CA 22-Nov-2005
Renewed application for permission to appeal. . .
CitedRaja v Van Hoogstraten and others ChD 12-Jun-2006
The claimant sought the strike out of the defendants pleadings. The first defendant was found to have been responsible for the killing of the deceased. The proceedings had been prolonged by procedural challenges by the defendant.
Held: The . .
CitedC v V CoP 25-Nov-2008
The court heard an appeal objecting to the appointment of a sibling as Deputy for the parents now lacking capacity. Both daughters had at one time been appointed under Enduring Powers of Attorney, acting jointly, but the daughters became estranged. . .
CitedFairclough 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 . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 13 June 2022; Ref: scu.201463