The Commissioner of Police of the Metropolis v Abdulle & Ors

A decision whether to strike out a statement of case for procedural default under CPR 3.4(2)(c) is discretionary. Unlike an application for relief from an existing sanction under CPR 3.9, the court is deciding whether to impose the sanction. Its proportionality is therefore likely to be central.

An appellate court will not lightly interfere with a robust and fair case-management decision. That restraint applies equally where the first-instance judge strikes out a claim or permits it to continue. Where the judge considered all relevant circumstances, applied the correct law and reached a decision within the reasonable range, the appellate court cannot substitute its preferred balance merely because it would have exercised the discretion differently.

Three claimants alleged that police officers had unlawfully detained them and used excessive force. Their solicitors subsequently caused substantial procedural delay, failed to pay the required trial fees, failed to file a pre-trial checklist and failed to prepare trial bundles. The trial window was lost.

Hickinbottom J strongly criticised the solicitors but refused the Commissioner's application to strike out the claim under CPR 3.4(2)(c). He considered the case nearly ready for trial and the substantive claim serious, and allowed it to proceed on terms.

The Commissioner appealed, contending that the loss of the trial date, the absence of a good explanation and the wider history of delay made that decision fall outside the range of reasonable case-management decisions. The central issue was whether the Court of Appeal could interfere with the judge's exercise of discretion.

1. Appeal dismissed unanimously. The decision whether to strike out a statement of case under Part 3.4(2)(c) of the Civil Procedure Rules 1998 was discretionary. It differed from relief against sanctions under CPR 3.9 because no sanction had yet been imposed. The proportionality of striking out was consequently a significant consideration: Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607.

2. The first-instance judge had been entitled to assess the seriousness of the defaults, their causes and all the circumstances. He properly considered the need to enforce procedural rules and use proportionate resources. He also considered the history of delay, the effect of fading memories, the effect on the claimants, the readiness of the case for trial and whether the substantive claim was bound to fail or succeed.

3. The Court of Appeal might itself have given greater weight to the prolonged delay, the solicitors' incompetence and the loss of the trial date. That was not the appellate question. The Commissioner did not establish that the judge had overlooked a relevant consideration, considered an irrelevant matter or misdirected himself in law. The challenge concerned only the weight assigned to competing considerations and therefore required the decision to be shown to be perverse.

4. The principle that an appellate court will not lightly interfere with robust and fair case-management decisions applies whether relief from sanctions is refused or granted. It also applies whether a first-instance judge strikes out a claim or declines to do so under CPR 3.4(2)(c): Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537; Mannion v Ginty [2012] EWCA Civ 1667; Chartwell Estate Agents Ltd v Fergies Properties SA [2014] EWCA Civ 506.

5. The judge had described the balance as fine. Reasonable judges could differ about where that balance lay, and his decision could not be characterised as perverse. Lewison LJ dismissed the appeal. Kitchin LJ and Moore-Bick LJ agreed.

1. Court of Appeal (Civil Division): The Commissioner's appeal was dismissed. The court upheld Hickinbottom J's discretionary refusal to strike out the claim.

2. High Court, Queen's Bench Division: Hickinbottom J refused the Commissioner's application under CPR 3.4(2)(c) and permitted the claim to proceed on terms.

3. High Court, Queen's Bench Division: Stewart J held that the claim had not been struck out automatically because the required notice under CPR 3.7(2) had not been served. He vacated the trial date and ordered the claimants to pay the Commissioner's costs.

4. Earlier proceedings: Cranston J dismissed an earlier appeal from Deputy Master Rose's refusal to strike out the claim.