The plaintiff alleged a conspiracy to deprive him of his shares and interest in a company. Each side filed affidavit evidence raising issues of fact. With no oral evidence or cross examination on the affidavits, the Master, after a four day hearing, made a striking out order which was upheld on appeal to the Judge in Chambers.
Held: The strike out was an impermissible trial of the facts on affidavit. That usurped the function of the trial judge. The strike out procedure was not intended to be used in cases which involved a minute and protracted examination of documents and facts to see if the plaintiff had a case. The jurisdiction was confined to ‘plain and obvious’ cases, such as where a plaintiff was attempting to resurrect a matter which had already been litigated or where the grievance was ‘mythical’. It was not sufficient to justify striking out a case that the plaintiff’s claim was ‘highly improbable’ or that it was difficult to believe that it could be proved. It was a jurisdiction that was to be used ‘sparingly’ and only in ‘very exceptional cases’: ‘The position under two former rules has been incorporated in the present RSC Ord. 18, r. 19. There is no doubt that the inherent power of the court remains, but this summary jurisdiction of the court was never intended to be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action. To do that is to usurp the position of the trial judge, and to produce a trial of the case in chambers, on affidavits only, without discovery and without oral evidence tested by cross-examination in the ordinary way. This seems to me to be an abuse of the inherent power of the court and not a proper exercise of that power.’
Judges:
Danckwerts LJ
Citations:
[1965] 1 WLR 1238, [1965] 2 All ER 871
Jurisdiction:
England and Wales
Citing:
Cited – Lawrence v Lord Norreys HL 1890
The plaintiff brought an action for recovery of possession of an estate, relying on events which had occurred 70 years earlier. The plaintiff had already brought a case which was dismissed on the grounds that it was statute-barred. The plaintiff . .
Cited by:
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Guinness Peat Group Plc v British Land Company Plc and others CA 18-Dec-1998
The claimant, a minority shareholder, had said that the defendant had acted prejudicially in transferring the company’s only substantial asset to another company. The respondent said that since the shares had always been of nil value they could not . .
Cited – Hess v Horncastle Properties Limited WA Horncastle (Builders) Limited CA 6-Nov-1998
It was alleged that signatures on plans attached to a conveyance were not those of the party. A witness said that only the document itself had been signed. They now appealed against a strike out of their claim.
Held: ‘it will be only in the . .
Cited – Seray-Wurie v The Charity Commission of England and Wales QBD 23-Apr-2008
The defendant sought an order to strike out the claimant’s allegations of defamation and other torts. The defendants claimed qualified privilege in that the statements complained of were contained in a report prepared by it in fulfilment of its . .
Cited – Vedanta Resources Plc and Another v Lungowe and Others SC 10-Apr-2019
The claimants alleged negligence causing them personal injury and other losses arising from pollution from mining operations of the defendants in Zambia. The company denied jurisdiction. In the Court of Appeal the defendants’ appeals were dismissed. . .
Lists of cited by and citing cases may be incomplete.
Litigation Practice, Company
Updated: 30 January 2022; Ref: scu.184848