Kerry Underwood

NO LETTER BEFORE CLAIM: WRONGLY ISSUED AS PART 8: NO STRIKE OUT

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Halal Meat Sellers Committee Ltd & Anor v HMC (UK) Ltd [2020] EWHC 2190 (Comm)

the Commercial Court, part of the High Court, struck out the claim on the facts pursuant to CPR 3.4(2)(a) on the ground that the claimants’ Claim Form disclosed no reasonable grounds for bringing the claim.

What is interesting and significant about the case is the grounds on which the High Court refused to strike out the claim.

Here it was common ground that the claimants had failed to comply with the Civil Procedure Rules Pre-Action Protocol in that they had failed to issue a letter before action.

The claimant had also served a Part 8 Claim Form in circumstances where there were substantial issues of fact between the parties, and therefore the proceedings should have been issued under Part 7 and here the claimants had applied to have the proceedings transferred from Part 8 to Part 7.

CPR 3.4(2) empowers a court to strike out a statement of case, including a Claim Form if it appears to the court that:

 

(1) The statement of case discloses no reasonable grounds for bringing or defending the claim.

(2) The statement of case is an abuse of the Court’s process or is otherwise likely to obstruct the just disposal of the proceedings.

(3) There has been a failure to comply with a rule, practice direction or Court order.

 

In relation to the failure to issue a letter before action the High Court said that it would require “the most extreme circumstances” to warrant striking out a Claim Form for that reason:

 

“84. In my judgment, a failure to issue a letter before action should not be penalised by striking out the Claim Form. The absence of such a letter other than, perhaps, in the most extreme circumstances would not warrant such a drastic step. If the claim were clearly or arguably a meritorious one, such a step would be unduly disproportionate and any absence of a pre-action letter can be dealt with, if necessary, by other sanctions. If the claim were a plainly an unmeritorious claim, the claim itself would no doubt be exposed to striking out or summary judgment.”

 

In relation to issuing Part 8 proceedings instead of Part 7 proceedings the court had this to say:

 

“85. The second ground relied on by HMC that the Part 8 procedure was inappropriate again is not sufficient in my judgment to warrant striking out a claim, especially as in the present case the Claimants have applied to alter the Part 8 Claim Form to a Part 7 Claim Form.”

 

Comment

Quite right.

Such misconduct can be punished in costs.

In relation to Part 8 and Part 7, the Civil Procedure Rules themselves allow for a claim to be transferred from Part 8 to Part 7 and there can never be any justification for striking out a claim in such circumstances, where no one is prejudiced and the matter can simply be transferred to the right Part, again with costs consequences.

A refreshing decision taking an overall view and doing justice, rather than a nit-picking decision.

Written by kerryunderwood

August 12, 2020 at 12:47 pm

Posted in Uncategorized

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