Gregory & Anor v Moore & Ors

An appellate court may uphold the exclusion of peripheral or irrelevant pleading under its inherent case-management jurisdiction, including where the express strike-out provisions are not engaged. The court must apply the overriding objective, including proportionality, relevance and the efficient use of court resources. Strike-out is an extreme remedy and alternatives should be considered, but it is not confined to exceptional circumstances and the court need not always exhaust every alternative. An appeal against case-management discretion succeeds only where the decision is wrong in principle, plainly wrong, or outside the generous ambit of reasonable disagreement.

The second and third defendants appealed against an order made by Chief Master Marsh striking out parts of their points of claim in proceedings concerning whether the first defendant was subject to the forfeiture rule following the death of her husband. The deleted material concerned an alleged Ukrainian court claim and allegations that the first defendant had taken financial advantage of the deceased during the marriage.

The Chief Master retained allegations concerning financial benefit and alleged misuse of money for property refurbishment, but considered the deleted material peripheral, insufficiently particularised and disproportionate. The appeal concerned the scope of the court’s power to prune pleadings and whether that discretion had been exercised wrongly.

1. Appeal dismissed. Under CPR 52.21(3), an appeal requires an error of principle, or a decision that is otherwise wrong. In the context of case management, the decision must be plainly wrong or outside the generous ambit within which reasonable disagreement is possible.
2. The court possesses an inherent jurisdiction to strike out or prune irrelevant or peripheral material from a statement of case. That jurisdiction exists alongside the express powers in the CPR. The court may limit the issues to those that really matter.
3. The starting point is the overriding objective in CPR 1.1. Proportionality, relevance, expense, complexity, the importance of the case and the appropriate allocation of court resources are relevant considerations. Strike-out is an extreme remedy and alternatives should be considered, but the power is not confined to exceptional circumstances and the court need not always exhaust every alternative.
4. The Chief Master was entitled to find that the allegation concerning the Ukrainian court proceedings was peripheral and marginal, and that the general allegation of financial exploitation would require extensive investigation without materially advancing the case. He retained the more directly relevant allegations concerning financial benefit, the refurbishment money and the alleged motive for the killing.
5. The criticisms that the decision was premature and that the court should have awaited further pleading or evidence did not establish that the discretion had been exercised wrongly. The high appellate threshold was not met.

• High Court (Chancery Division): Chief Master Marsh struck out paragraph 8(17) and specified words in paragraph 8(18) of the second and third defendants’ points of claim. The appeal was dismissed.