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Court of Appeal gives judgment concerning the test to be applied when CPR 44.15(c) is engaged

This was a second Appeal, brought with the permission of Lewison LJ, concerning the power of the court to strike out a claim under CPR 44.15(c). The District Judge interpreted this provision purposively in light of the overriding objective, and took the view that Respondent’s conduct merited a strike out. However, on appeal, HHJ Freedman held that a strike out was available under CPR 44.15(c) only if the relevant conduct rendered a fair trial impossible. This set the bar extremely high. A transcript of HHJ Freedman’s  had been circulated widely and a decision was taken to seek to clarify the circumstances in which CPR 44.15(c) was engaged.

The Appellant submitted that HHJ Freedman had applied the wrong test, and that conduct that impeded or hindered the just disposal (i.e. process of resolution) of the proceedings to a high degree qualified. See, for example, Atos Consulting Limited v Avis Europe PLC  [2005] EWHC 982 (TCC) in which Jackson J used that test. It was not necessary that the conduct rendered a fair trial impossible.

The Court of Appeal agreed that HHJ Freedman had applied the wrong test, Nicola Davies LJ stating at paragraph 49:

I accept the contention made on behalf of the defendant that the approach of the court to this issue, as identified by the Court of Appeal in Arrow Nominees, was not whether the litigant’s conduct rendered a just or fair trial impossible.  Reflecting the approach of the court in Arrow Nominees, in particular as stated at [54], I would formulate the question thus: is the litigant’s conduct of such a nature and degree as to corrupt the trial process so as to put the fairness of the trial in jeopardy?’

This test lowers the bar for CPR 44.15(c) strike out applications from the position identified by HHJ Freedman.

The Court of Appeal dismissed the appeal on the facts of the case, but the judgment provides welcome clarification concerning the test to be applied when considering whether CPR 44.15(c) is engaged.

The judgment can be found here.

Paul Higgins acted on behalf of the Appellant, instructed by Damian Rourke, Clyde & Co.


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