Christine Bangs v FM Conway Limited

In an application for relief from sanctions, the merits of the underlying claim are generally irrelevant. The recognised exception is where the case is so strong that summary judgment could be expected to succeed, and that conclusion can be reached without detailed investigation. Any further exception would be genuinely exceptional.

A party relying on this exception must give clear advance notice. The opposing party need only show sufficient factual or legal dispute to make summary judgment inappropriate. Where a missed deadline is followed by strikeout, the strikeout is a sanction requiring relief, even if the procedural rule does not expressly prescribe one.

Christine Bangs claimed against FM Conway Limited for damage to basement vaults allegedly caused by roadworks. An insurer’s loss adjuster admitted liability and later withdrew the admission. After proceedings were issued in the Commercial Court, Particulars of Claim were served 81 days late. Mr Justice Bright struck out the claim.

In [2024] EWHC 494 (Comm), Mr Justice Jacobs set aside the strikeout, extended time and relied partly on the apparent strength of the claim on liability. FM Conway appealed. The central issue was whether the judge was entitled to assess the merits and treat them as decisive in the absence of advance notice that the merits would be relied on.

Lord Justice Males gave the leading judgment. Lord Justice Snowden and Lady Justice King agreed. The appeal was allowed, the order granting relief from sanction was set aside and the order striking out the claim was restored.

1. Applicable regime. Although CPR 7.4 and CPR 58.5 did not expressly prescribe a sanction for late service, the claim was struck out in consequence of the non-compliance. The strikeout was therefore a sanction and relief had to be sought under CPR 3.9. The court accepted the parties’ common ground that the Denton three-stage test applied, as explained in [2023] EWCA Civ 891.
2. Merits in case management. The general rule is that the merits of the underlying claim are irrelevant to a case-management decision. The only recognised exception is where the case is so strong that summary judgment could be expected to succeed, and that can be demonstrated without detailed investigation. The phrase very strong does not establish a lower threshold. The court relied on Global Torch Ltd v Apex Global Management Ltd (No. 2) [2014] UKSC 64 and R (Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633.
3. Notice and procedural fairness. A party wishing to rely on the summary-judgment exception must give clear notice sufficiently before the hearing to allow the other party to decide what evidence to deploy. Notice given only shortly before the hearing or in a skeleton argument is likely to be too late. The opposing party need not produce trial evidence; it need only show sufficient matters in dispute to make summary judgment inappropriate.
4. Application. Ms Bangs had not given notice that she would rely on the merits or contend that her claim was suitable for summary judgment. Her submissions concerned only whether the withdrawn admission remained effective. FM Conway was therefore not given a fair opportunity to deploy evidence on liability. The judge’s merits assessment caused injustice, and it was decisive in granting relief. The admission had been capable of withdrawal under the rules then applicable; the current version of CPR 14.1 takes a different approach.
5. Other grounds. If proper notice had been given and the evidence had remained unchanged, the judge’s assessment might have satisfied the summary-judgment threshold. In reality, proper notice would have enabled FM Conway to adduce evidence showing that summary judgment was inappropriate. The challenge to the balancing of the remaining factors was rejected; appellate interference would have been unjustified unless the decision were plainly wrong.

• Court of Appeal (Civil Division). Allowed FM Conway’s appeal, set aside the order granting relief from sanction and restored the strikeout order.
• High Court of Justice, Commercial Court. In [2024] EWHC 494 (Comm), Mr Justice Jacobs set aside Mr Justice Bright’s strikeout order and extended time for service of Particulars of Claim.
• High Court of Justice. Mr Justice Bright had struck out the claim against FM Conway for failure to serve Particulars of Claim in time.