Harris v Bolt Burdon (a firm)

Under the Civil Procedure Rules, applications to strike out for procedural default are governed by the overriding objective and the need to do justice, rather than the technical restrictions developed under the former law. Relevant considerations include the reasons for default, the length and effect of delay, prejudice and whether a fair trial remains possible. The apparent weakness of a claim may also be considered, particularly where it has no real prospect of success. Exceptionally, a claim may be struck out where continuation would serve no legitimate purpose because it is bound to fail. A claimant cannot remedy an unfavourable competent expert opinion by shopping for a more favourable view.

The claimant instructed Bolt Burdon to pursue a clinical negligence claim arising from complications after childbirth. Bolt Burdon issued, but failed to serve, a writ. The claimant then brought negligence proceedings against the solicitors.

Those proceedings were struck out by District Judge Hassan and the order was upheld by Judge Cowell in the Central London County Court. The courts below relied on delay, alleged prejudice to a fair trial and procedural default. The claimant appealed. The Court of Appeal considered the effect of the Civil Procedure Rules, the significance of the delay, and whether the underlying clinical negligence claim had any realistic prospect of success.

1. Appeal dismissed. The Court of Appeal upheld the strike-out, although for reasons materially different from those relied on below.
2. Under CPR 3.4(2)(c), the court has an unqualified discretion to strike out for failure to comply with a rule, practice direction or court order. The discretion must be exercised according to justice and is not confined by the technical restrictions developed under Birkett v James. The considerations may include the reason for non-compliance, the period and explanation of delay, prejudice and the possibility of a fair trial. The approach in Biguzzi v Rank Leisure [1999] 1 WLR 1926 governed the modern approach.
3. The delay and non-compliance would not, by themselves, have justified striking out this claim. The alleged prejudice caused by the passage of time was insufficiently established, and much of the later delay resulted from the defendants’ mistaken assertion that the action had already been struck out.
4. The decisive consideration was that the underlying claim was incapable of success. Under section 14 of the Limitation Act 1980, knowledge of the cause of the injury, rather than knowledge that negligence had occurred, was material. On the pleaded facts, the claimant had known the relevant cause before the limitation period expired.
5. The medical evidence available when the solicitors were negligent did not establish breach of the Bolam standard or causation. A claimant who has obtained a competent opinion answering the relevant questions unfavourably cannot simply seek further opinions until a favourable one is found. The failure to serve the writ had therefore caused no recoverable loss.
6. Lord Justice Stuart-Smith added that a manifestly weak claim may properly be taken into account under the strike-out jurisdiction, and that an application under CPR 24.2 might have been the more direct procedural route. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): appeal from the Central London County Court dismissed; leave to appeal to the House of Lords refused.
• Central London County Court: Judge Cowell upheld District Judge Hassan’s order striking out the claim.
• District Judge Hassan: application to strike out granted on 11 May 1999.