Moroney v Anglo-European College of Chiropractice

Civil Procedure Rules 1998 rule 3.4 and Part 24 provide overlapping routes to summary disposal. Where relevant material beyond the pleading permits an assessment of the merits, a strike-out application may properly be considered under the Part 24 realistic-prospect test. The court must avoid a mini-trial, but may dispose of a claim that has no realistic prospect of success.

Procedural fairness depends on whether the Part 24 route and the material factual case have been clearly raised, and whether the claimant has had a fair opportunity to answer them. No further invitation to address conclusions arising from arguments already made is required.

The appellant, a former student, claimed contractual damages after he was required to withdraw from a chiropractic course. The Southampton County Court struck out the claim. Permission to appeal was granted and the statement of case was amended to advance alleged material irregularities concerning the examination process.

Underhill J dismissed the appeal. He held that the remaining complaints had no realistic prospect of success and, alternatively, that the proceedings were an abuse because the challenge should have been pursued by judicial review without the substantial delay that had occurred.

Permission to appeal to the Court of Appeal was confined to whether it had been unfair for Underhill J, when considering a strike-out under rule 3.4, to apply the Part 24 approach without notice.

1. Appeal dismissed unanimously. Ward LJ, with whom Richards and Goldring LJJ agreed, held that the appellant had not been treated unfairly.

2. Civil Procedure Rules 1998 rule 3.4 and Part 24 are distinct powers but have an established overlap. The court could consider whether the claim had a realistic prospect of success when determining the strike-out appeal. The pleadings-only analysis in Independents’ Advantage Insurance [2004] PNLR 44 did not govern this case, because the College relied on a witness statement and, especially, the contemporaneous documents.

3. The authorities, including Taylor [1999] EWCA Civ 1917, S v Gloucestershire County Council [2000] 3 All ER 346 and Three Rivers [2003] 2 AC 1, permitted that course. The realistic-prospect inquiry does not authorise a mini-trial. Serious factual issues requiring oral evidence, disclosure or trial must not be decided summarily. It does permit disposal where the available material shows no real prospect of success.

4. The Part 24 point had been expressly raised in the College’s skeleton argument and oral submissions. The factual basis for the two remaining complaints was also advanced. Underhill J was entitled to regard the substantive merits as the focus of the argument. The appellant therefore had a fair opportunity to respond, even though counsel did not directly do so. No further specific opportunity to address the judge’s evident conclusions was required.

5. Further, even if the procedural complaint had succeeded, the claim would still have failed because permission had not been granted to challenge Underhill J’s independent conclusion that the proceedings were an abuse of process. The order dismissing the appeal stood.

• Court of Appeal (Civil Division). Dismissed the appellant’s limited procedural-fairness appeal: [2009] EWCA Civ 1560.
• High Court of Justice, Queen’s Bench Division, Divisional Court. Underhill J dismissed the appeal from the county court on 7 November 2008. He found no realistic prospect of success and held alternatively that the proceedings were an abuse of process. The citation is not stated in the judgment.
• High Court of Justice, Queen’s Bench Division. Owen J granted permission to appeal and leave to amend the statement of case.
• Southampton County Court. HHJ Boggis QC struck out the claim on 24 April 2007.