Popek v National Westminster Bank Plc

An application to strike out a pleading at the commencement of trial, after preparation costs have been incurred, should be entertained only in a most exceptional case and with a valid explanation for the delay. The principle has particular force where the claimant is unrepresented. Where an expert report appears adverse, the claimant may nevertheless be entitled to test the expert’s conclusions by questioning the expert. A court should not determine the strike-out application without hearing the opposing party where the circumstances raise a real concern about fairness or the adequacy of the process.

The claimant sought permission to appeal against an order by Mr Recorder Stewart QC striking out his statement of claim and dismissing his action under Part 3.4 2(a) of the Civil Procedure Rules 1998. His claim alleged that the defendant bank had failed to advise him to restructure his borrowing, causing financial loss and bankruptcy.

The recorder relied substantially on an adverse joint expert report and struck out the claim after the claimant had opened his case. The defendant was not represented at the permission hearing. The court considered the lateness of the strike-out application, the claimant’s lack of representation, and whether he had been denied an opportunity to question the expert. The application before the court was whether it should be adjourned for inter partes consideration and, if permission were granted, for the appeal to follow.

1. The application was adjourned so that the defendant bank could be represented and heard. It was directed that the appeal should follow if permission were granted, unless the defendant objected, in which event the application would be dealt with separately. The matter was to be heard by a two-judge court.

2. The court treated the principle stated in Halliday v Shoesmith [1993] 1 WLR 1 as applicable: a strike-out application made at the commencement of trial, after preparation costs had been incurred, should be entertained only in a most exceptional case and on receipt of a valid explanation for the lateness. The principle appeared even stronger where the claimant was unrepresented.

3. An adverse expert report did not necessarily conclude the claimant’s case. It remained open to him to question the expert and test the conclusions. If the action was struck out without a trial, he would also lose the opportunity to question the bank’s branch manager.

4. The court identified a further limitation issue and directed that the full court should be addressed on it, particularly in relation to Cia de Seguros Imperio v Heath (REBX) Ltd (2001) 1 WLR 112.

5. A transcript was directed to be supplied to the claimant at public expense.

• Court of Appeal (Civil Division): The claimant sought permission to appeal from the order of Mr Recorder Stewart QC, sitting as a deputy judge of the Queen’s Bench Division, which struck out the statement of claim and dismissed the action under Part 3.4 2(a) of the Civil Procedure Rules 1998. The permission application was adjourned for an inter partes hearing, with the appeal to follow if permission was granted.