Andrew Kasongo v CRBE Limited & Anor

On an application under CPR 3.4(2)(a), the primary focus is ordinarily the statement of case and whether it discloses a legally recognisable claim. The court may consider matters outside the pleading where an essential allegation is plainly and unarguably unsustainable, but the inquiry must remain limited. A disputed evaluation of evidence or causation is generally appropriate for summary judgment under CPR 24, not strike out. Courts should be particularly careful in personal injury claims because strike out may remove QOCS costs protection under CPR 44.15. Where proceedings were adequately pleaded when commenced, their subsequent weakening does not ordinarily mean that they disclosed no reasonable grounds for bringing them.

The claimant appealed against HHJ Saggerson’s order striking out his claim against Transport for London under CPR 3.4(2)(a), and ordering him to pay £12,500 in costs. The claim arose from an accident at workplace premises. The claimant pleaded that he tripped over poles in a loading bay and that the defendants were liable in negligence and under the Occupiers Liability Act 1957. Transport for London denied occupying the loading bay and relied on CCTV suggesting that the claimant caught his heel on a barrier.

The appeal concerned whether the judge had wrongly decided disputed factual and causation issues on a strike-out application, and whether the pleaded case disclosed no reasonable grounds for bringing the claim.

1. Appeal allowed in part. Ground 2 succeeded. Ground 1 failed. The order striking out the claim against Transport for London was set aside and the matter was remitted to the County Court at Central London.
2. CPR 3.4(2)(a) principally requires examination of the statement of case. A pleading that sets out coherent facts amounting to a legally recognisable cause of action ordinarily discloses reasonable grounds. The court is not confined in every case to the face of the pleading, but may consider matters known to it where an essential allegation is plainly and unarguably unsustainable.
3. The court must keep that exceptional wider inquiry within strict limits. A dispute about whether CCTV establishes the cause of an accident, or whether a defendant occupied particular premises, is ordinarily a merits issue. It does not show that the pleading disclosed no reasonable grounds when issued. The judge therefore erred by treating evidence which arguably supported Transport for London as establishing that the claim was legally groundless.
4. There is substantial overlap between strike out and summary judgment, but they remain distinct powers. Where the defendant relies on additional facts and contends that the claim has no real prospect of success, the appropriate course is generally an application under CPR 24, alone or alongside CPR 3.4. The court may treat an application brought under CPR 3.4 as one under CPR 24 where appropriate.
5. This distinction mattered because CPR 44.15 removes QOCS protection following a qualifying strike out, whereas summary judgment does not have that automatic consequence. The phrase “bringing proceedings” in CPR 44.15 refers to their commencement and does not ordinarily include their later continuation. If later developments make an adequately pleaded case unsustainable, the defendant may seek summary judgment or, where appropriate, rely on abuse of process under CPR 3.4(2)(b).
6. The judge was entitled to express views on the CCTV and lease plan at the interlocutory hearing, although the claimant had not been heard on the precise causation issue. Those conclusions were open to him and did not meet the high threshold for appellate interference with an interlocutory factual assessment. They did not, however, justify strike out under CPR 3.4(2)(a).

• High Court (King’s Bench Division): appeal from HHJ Saggerson’s order dated 8 February 2022. Ground 2 was upheld, Ground 1 was dismissed, the strike-out order was set aside, and the case was remitted to the County Court at Central London.
• Permission to appeal: initially refused on paper by Eyre J and granted on oral renewal by Ritchie J on 9 September 2022.