The court considered a strike out application.
Held: Although there might be many cases where the possibility or otherwise of a fair trial is highly important to the exercise of discretion under CPR 3.9. it does not follow that where a fair trial is still possible, relief will necessarily be granted: ‘CPR 3.9 deals generally with the relief from sanctions imposed for failure to comply with a rule, practice direction or court order. It could not be the case that whenever such a sanction has been imposed and however flagrant or persistent the failure, the defaulting party could have it set aside by showing that a fair trial was still possible. The present appeal does not, however, involve flagrant or persistent misconduct, but, rather, all too familiar inefficiency and lack of diligence. And in such a case it is likely to be very material that a fair trial is still possible. But this cannot necessarily be decisive. All the circumstances must be considered. Prejudice to professional defendants is among them and it may exist even though it does not involve prejudice to the fairness of the trial process. In the present case, prejudice in the form of the detriment involved in having litigation hanging over professional defendants’ heads was a decisive factor identified by the master and judge.’
Lord Justice Keene Lord Justice Mance
[2003] EWCA Civ 1801
Bailii
Civil Procedure Rules 3.9
England and Wales
Cited by:
Cited – Tisson v Telewest Communications Group Ltd EAT 19-Feb-2008
The claimant’s claim had been struck out for his failure to comply with an order to serve a list of documents.
Held: The appeal failed. The principles applied under the Civil Procedure Rules should be applied in Employment Tribunals. The . .
Cited – Sunley v HMP Durham EAT 12-Mar-2009
EAT PRACTICE AND PROCEDURE – Striking-out/dismissal / Review
Review of strike-out decision. Employment Tribunal misunderstanding of agreed fact on material to exercise of discretion. EAT allowed appeal and . .
Cited – Welsh v Parnianzadeh (T/A Southern Fried Chicken) CA 10-Dec-2004
The respondent had claimed in damages after an alleged personal injury sustained at the premises of the claimant. After several procedural failures, the claim was struck out, but on appeal, it was ordered: ‘The appellant’s appeal is thus dismissed . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Civil Procedure Rules, Litigation Practice
Updated: 31 October 2021; Ref: scu.191203
