Asiansky Television Plc & Anor v Bayer-Rosin (A Firm)

Under the Civil Procedure Rules, an appeal is ordinarily a review. A rehearing is exceptional and depends on whether justice in the individual case requires it; fixed criteria should not be imposed.

On an application to strike out for delay or non-compliance, the court must make a broad assessment under the overriding objective. It must consider proportionate alternatives to strike-out, the prospect of a fair trial, prejudice, the parties’ conduct and the administration of justice. Strike-out remains available where justice requires it, but it is a draconian remedy and should not be ordered where the claim can be fairly tried and lesser sanctions can meet the default.

A defendant should make a necessary or desirable strike-out application promptly, rather than allow delay to accrue and later attribute all resulting prejudice to the claimant.

The claimant companies sued their former solicitors for breach of contract, negligence and negligent misrepresentation arising from the purchase of land intended for a substantial development. They alleged that the solicitors failed to advise them to investigate access rights retained for road contractors, causing losses said to arise from purchasing both the land and a related pavilion.

Master Eyre struck out the action for failure to set it down for trial and delay. Steel J dismissed the claimants’ appeal from that order. The claimants appealed to the Court of Appeal.

The central issues were whether the appeal to Steel J should have been a review or rehearing, whether the Master’s exercise of the strike-out discretion was flawed, and whether strike-out was proportionate under the Civil Procedure Rules.

1. Appeal allowed unanimously. Lord Justice Clarke gave the principal judgment. Lord Justice Mance agreed. Lord Justice Dyson agreed that the appeal should be allowed for Clarke LJ’s reasons and added observations on review and rehearing. The orders striking out the action were set aside, subject to limited strike-outs and amendments to the pleaded case.

2. Under rule 52.11 of the Civil Procedure Rules, the normal appeal is a review. A rehearing may be ordered where the interests of justice in the individual case require it, but the rule admits of no fixed preconditions. In this case a review was sufficient. Dyson LJ added that a rehearing may be necessary where inadequate reasons or a serious procedural irregularity prevents a just determination on review.

3. On a review of a discretionary decision, the court asks whether irrelevant matters were taken into account, relevant matters omitted, or the decision fell outside the generous ambit within which reasonable disagreement is possible. Fresh evidence received on review may bear on that assessment. The Master’s reasoning was flawed because material evidence undermined his conclusions about the genuineness of the claimants’ wish to proceed and mediate.

4. Applying the flexible approach required by Biguzzi v Rank Leisure Plc [1999] 1 WLR 1926 and subsequent authority, the court held that strike-out was not the starting point after non-compliance. The overriding objective required a broad assessment of all circumstances, including available sanctions short of strike-out and proportionality.

5. The claimants’ failures, particularly the delay and inadequate particularisation of loss, justified criticism. They did not amount to an abuse of process. The core liability, causation and quantum issues could still be fairly tried, largely by documents and expert evidence. The defendant had also delayed for about 14 months before applying, despite the expectation in the Part 23 Practice Direction that applications be made promptly.

6. Strike-out was disproportionate given the size and continuing viability of the claim, the security for costs, the payment into court, and the availability of costs and case-management measures. The court directed further pleadings, disclosure, expert steps and a case-management conference. It made consequential costs orders and deprived the claimants of interest for part of the period of delay.

• Court of Appeal (Civil Division): Allowed the claimants’ appeal and set aside the strike-out of the action, subject to limited strike-outs and amendments to the statement of claim.
• High Court of Justice, Queen’s Bench Division (Steel J): Dismissed the claimants’ appeal from the Master’s strike-out order.
• Master Eyre: Struck out the action for failure to set it down for trial and delay in prosecuting it.