Abbotsley Limited & Anor v Pheasantland Limited & Ors

The power to strike out a statement of case may be exercised at any stage, including after the evidence has been heard, but striking out an entire claim is a draconian last resort. The court should refuse the application where, despite serious disclosure failures or misleading conduct, it can still conduct a fair trial and determine the issues on the evidence properly before it. A litigant cannot decide unilaterally which documents are relevant or disclosable. Disclosure must be conducted through reasonable searches and proper review. Article 6 rights are not infringed merely because evidence is admitted to rebut allegations made by a party.

The claimants brought proceedings concerning alleged trespass, harassment and the forfeiture of a lease. The proceedings were consolidated and tried over approximately 19 days of evidence. At the close of the evidence, the first defendant applied to strike out both claims, alleging serious failures in disclosure, late production of documents and deliberate attempts by the second claimant to mislead the court.

The court considered whether those matters made a fair trial impossible, and whether the exceptional power to strike out the claims should be exercised after the evidence had substantially been heard.

1. Application refused. The court declined to strike out either claim. It found that the application was highly unusual, but that the issues could fairly be determined on the evidence and submissions already received.
2. The court accepted the power, affirmed in Summers v Fairclough Homes Limited [2012] UKSC 26, to strike out the whole or part of a statement of case at any stage, including at the end of a trial. That power is exceptional, and striking out is a last resort.
3. The claimant’s disclosure had been seriously deficient. Disclosure is a fundamental part of adversarial litigation because the opposing parties must know the case they have to meet and must have a fair opportunity to investigate and challenge the evidence. A client cannot determine relevance or potential relevance independently. The court relied on Square Global Limited v Leonard [2020] EWHC 1008 for the principle that the solicitor must review the client’s files and decide which documents are relevant and disclosable.
4. Despite the disclosure failures, late documents and instances in which the second claimant had given evidence that was untrue, the court concluded that the parties had been able to present their cases and that a fair trial remained possible. The court therefore proceeded to determine the substantive issues in a separate judgment.
5. The contention that the admission of dashcam footage rebutting allegations infringed the second claimant’s article 6 rights was rejected. A party who makes allegations cannot prevent the court from considering evidence bearing on whether those allegations are made out.
6. No costs were awarded in respect of the strike-out application or its refusal, subject to submissions on that issue.