BPA v NXT

Applications to strike out and for summary judgment apply the same test: whether the claim has a realistic, rather than fanciful, prospect of success and is bound to fail. The court must avoid a mini-trial, but may reject factual assertions that have no real substance, particularly where contradicted by contemporaneous documents. Defective pleadings should not automatically be struck out where the defects may be cured by amendment. The claimant should generally be given a fair opportunity to particularise the existing case, although an unless order may be appropriate where prior opportunities have been ignored.

Coercive or controlling behaviour is not itself a tort, but may constitute harassment under the Protection from Harassment Act 1997. Anonymity is exceptional and requires clear and cogent evidence that non-disclosure is strictly necessary, with substantial weight given to open justice.

The claimant brought proceedings alleging sexual assault, harassment and coercive control, together with alleged breaches of the Human Rights Act 1998 and professional duties. She claimed psychiatric injury, financial losses, homelessness and other consequential losses.

The defendant applied to strike out the claim, alternatively for reverse summary judgment, and sought anonymity. The court considered the adequacy of the Particulars of Claim and Schedule of Loss, the need for medical evidence, the applicability of the Human Rights Act, and the competing interests of open justice and privacy.

1. Disposition. The court granted the defendant anonymity; struck out the claims based on alleged breaches of the Human Rights Act 1998, coercive control and professional duties; directed the claimant to serve amended pleadings within four weeks and medical evidence within eight weeks, each subject to an unless order; adjourned the remaining strike-out and summary-judgment applications; and reserved costs.
2. Strike out and summary judgment. Under CPR 3.4(2)(a) and CPR 24.3, the applicable question was whether the claim had a realistic prospect of success, rather than a fanciful one, and was bound to fail. The court should not conduct a mini-trial or generally determine contested facts summarily. It may nevertheless assess whether factual assertions have real substance, including by reference to contemporaneous documents and evidence reasonably expected to be available at trial.
3. Pleading defects. The allegations of non-consensual intercourse and harassment lacked sufficient particulars as to incidents, dates, locations, conduct and the acts relied upon. The alleged causal links to business disruption, homelessness, education and other losses were also unclear. The Schedule of Loss did not sufficiently explain the basis and nature of several heads of claim. These defects meant that the defendant and the court could not adequately understand the case.
4. Opportunity to amend. The deficiencies were potentially curable. Since the claimant was a litigant in person and sought an opportunity to amend, striking out at that stage would be unnecessarily draconian. Four weeks was allowed for amended pleadings and the Schedule of Loss. The amendment was confined to particularising existing claims and could not introduce new causes of action. Given the history of non-compliance, unless orders were justified.
5. Substantive claims. Coercive control may constitute a criminal offence under section 76 of the Serious Crime Act 2015, but is not itself a tort. Controlling or coercive behaviour may, depending on the circumstances, amount to harassment under the Protection from Harassment Act 1997. The claimant accepted that the defendant, a private barrister, was not a public authority for the purposes of the Human Rights Act, so those claims were struck out.
6. Anonymity. The defendant’s Article 8 rights were engaged. The court started with a clear presumption in favour of open justice and required clear and cogent evidence that anonymity was strictly necessary and that no lesser measure would suffice. Weighing Article 8 against Article 10 and the public interest in open justice, the seriousness of the allegations, the defendant’s non-initiation of proceedings, the inadequacy of the pleaded case, potentially undermining evidence, the claimant’s statutory anonymity and the absence of any third-party challenge cumulatively justified anonymity until further order, subject to review.
7. Summary judgment and costs. Summary judgment was adjourned until after the claimant had the opportunity to amend. The court would not conduct a mini-trial at the renewed hearing. Costs were reserved.