THE ROYAL BROMPTON HOSPITAL NATIONAL HEALTH SERVICE TRUST v HAMMOND AND ORS

A court may dispose of a claim without trial by striking out the statement of case or by giving summary judgment under the Civil Procedure Rules 1998. It cannot conduct a preliminary trial on the balance of probabilities.

Under Rule 24.2, the question is whether the claimant has a realistic rather than fanciful prospect of success. The same standard applies whenever summary disposal is considered, including during trial or on the court’s own initiative. The court must consider evidence which may reasonably become available at trial.

The power to exclude an issue does not justify leaving an arguable pleaded claim unresolved. A contractual requirement to provide information when necessary ordinarily refers to actual, objectively assessed need, rather than the contractor’s perceived need.

The Royal Brompton Hospital National Health Service Trust v Hammond and others concerned claims arising from the delayed construction of a hospital. The Trust alleged contractual breaches and professional negligence against project managers, architects and mechanical and electrical engineering consultants.

During a split trial in the Technology and Construction Court, the judge examined the Trust’s written evidence and, applying the balance of probabilities, struck out or excluded several claims concerning the quality and timing of co-ordination drawings, professional advice and the application of Hydrotite. In a later judgment, he determined a limited contractual question concerning the timing of the drawings and dismissed the remaining timing claim against the engineering consultants.

The Trust appealed both orders. The central questions were whether the judge had used a permissible procedure and the correct standard for summary disposal, whether the affected claims had a real prospect of success, and whether the contractual timing obligation depended on actual or perceived need.

Both appeals were allowed unanimously. Aldous LJ delivered the leading judgment. Clarke LJ agreed and gave additional reasons concerning summary disposal and case management. Laws LJ agreed with both judgments.

1. The Civil Procedure Rules 1998 contemplate three relevant courses: striking out under Rule 3.4, summary judgment under Rule 24.2, or determination at trial. They do not authorise an initial merits determination on the balance of probabilities without permitting the ordinary trial to take place. Active case management and the power to exclude an issue do not create a separate method of summary merits disposal.

2. Under Rule 24.2, a claim may be summarily defeated only if it has no real prospect of success. Following Swain v Hillman [2001] 1 All ER 91, a real prospect is realistic rather than fanciful. The test remains the same whether the question arises before trial, after trial has begun, or on the court’s own initiative. The court must consider evidence which is available or can reasonably be expected at trial, including the possible clarification of ambiguities and completion of expert work.

   The judge had instead assessed the Trust’s present written evidence on the balance of probabilities. The quality claim concerning the co-ordination drawings was not bound to fail. The evidence supplied an arguable standard of professional performance, identified defects and clashes, and contemplated further expert examination. The related timing, advice and Hydrotite claims likewise raised issues of fact, causation and professional responsibility which had real prospects of success and required trial.

3. The contractual requirement to provide drawings as and when necessary imposed an objective obligation based on when they were actually needed. A contractor’s perceived need would usually be relevant but was not necessarily conclusive. Here, the lead time depended on the quality of the drawings, which remained disputed. The quality and timing issues were therefore intertwined and should not have been tried separately.

4. The orders striking out or excluding claims and dismissing the timing claim were set aside. All affected issues were remitted for trial, preferably together with the remaining liability issues so that their interrelationship could be assessed. Permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): In The Royal Brompton Hospital National Health Service Trust v Hammond and others [2001] EWCA Civ 550, the court unanimously allowed both appeals, set aside the orders below and remitted the affected issues for trial. Permission to appeal to the House of Lords was refused.
2. Technology and Construction Court, 18 December 2000: His Honour Judge Richard Seymour QC answered the limited contractual timing question in the negative and dismissed the relevant claims against the engineering consultants. Permission to appeal was refused.
3. Technology and Construction Court, 8 November 2000: The judge struck out or excluded several allegations concerning the quality and timing of co-ordination drawings, professional advice and Hydrotite.