The Crown Prosecution Service & Anor v Motasim

On an application under CPR 3.4(2)(a), the court assesses the pleaded claim, not disputed evidence or speculative inferences. Strike-out is appropriate only where the pleaded facts, even if true, disclose no legally recognisable claim, or where the claim is certain to fail. A claim based on sensitive undisclosed material is not necessarily speculative merely because the claimant does not know its contents, where procedural rules provide mechanisms for disclosure and judicial examination of the material. The merits should not ordinarily be determined summarily until the critical material and appropriate disclosure or closed-material procedures have been addressed.

The respondent brought proceedings for damages against the Crown Prosecution Service and the Metropolitan Police concerning his continued detention during criminal proceedings, alleging breaches of article 5(1)(c) and article 5(3) rights under Schedule 1 to the Human Rights Act 1998.

A Master dismissed the appellants’ application to strike out the claim under CPR 3.4(2)(a). The appellants appealed before serving a defence. They also sought summary judgment under CPR 24. The central issues were whether the claim was speculative because the respondent did not know the contents or effect of sensitive material, and whether the applications could be determined before disclosure issues were resolved.

1. Strike-out appeal dismissed. The appeal concerned whether the Master’s refusal to strike out the statement of case under CPR 3.4(2)(a) was wrong or unjust. The court examined the pleaded claim without assessing evidence or drawing disputed inferences.
2. CPR 3.4(2)(a) requires assessment of the pleaded claim. The court may strike out where the pleading contains no facts indicating the nature of the claim, is incoherent, or sets out facts which, even if true, disclose no legally recognisable claim. Strike-out is a stricter procedure than summary judgment, and a claim should not be struck out unless it is certain to fail: [2004] EWCA Civ 266.
3. The respondent’s lack of knowledge of the sensitive material did not make the claim pure speculation. The material existed and might support or remove an essential element of the claim. The Civil Procedure Rules provided mechanisms for pre-action disclosure, specific disclosure, withholding disclosure and closed-material proceedings. The court could examine the material and assess its significance.
4. The court did not decide whether the Master was correct to hold that the appellants bore a legal or evidential burden in a Convention-based claim for damages for deprivation of liberty. That issue was left for determination by another court.
5. The CPR 24 application was adjourned to a Master. Its merits could not realistically be determined until the withheld material and the associated disclosure and closed-material procedures had been addressed. Directions were given for applications under CPR 31.12 and CPR 31.16.
6. Where sensitive material is central to such a claim, a claimant should ordinarily seek pre-action disclosure under CPR 31.16 before issuing proceedings. If proceedings are issued, an application for specific disclosure should be made as soon as possible, consistently with the overriding objective.

• High Court (Queen’s Bench Division): The court dismissed the appeal from Master Davison’s order refusing strike-out under CPR 3.4(2)(a). The application for summary judgment under CPR 24 was adjourned to a Master.
• Master Davison: On 15 August 2017, the Master dismissed the appellants’ strike-out application and made consequential costs orders.