Humphries v Chief Constable of Avon and Somerset Constabulary & Anor

On applications to strike out and for summary judgment, a pleaded claim should proceed only if it has a realistic, rather than fanciful, prospect of success and no other compelling reason requires a trial. Where the strike-out turns on the adequacy of the pleading, the Civil Procedure Rules apply a common threshold. The court must avoid a mini-trial, but may decide a short point of law or construction where the evidence is sufficient.

• Serious allegations of dishonesty or collusion require primary facts capable of making dishonesty more likely than innocence or negligence.
• Permission to amend requires a real prospect of success, clear and focused pleading, evidence, proportionality and a satisfactory explanation for delay.
• A litigant in person remains responsible for complying with rules and orders.

The claimant, acting in person, sued the second defendant, a solicitor who had acted in her criminal defence, over documents seized by the police and later deposited at his firm. She alleged failure to return evidence, loss of chain of custody, collusion and evidence tampering, together with related breaches of retainer and fiduciary duty.

The second defendant applied under the Civil Procedure Rules for strike-out and summary judgment. He argued that the pleadings disclosed no reasonable grounds, were abusive or failed to state a concise case, and that the claims had no real prospect of success. The claimant opposed the application and made an oral application to amend. The central issues were whether the pleaded claims could realistically succeed and whether amendment should be permitted.

Disposition. The claim against the Second Defendant was struck out under CPR 3.4(2)(a) and (b). Permission to amend was refused. The court made no separate finding under CPR 3.4(2)(c). Costs were awarded to the Second Defendant on the standard basis, but not on the indemnity basis.

1. Applicable tests. A claim should be struck out for disclosing no reasonable grounds only where it is bound to fail. Abuse of process requires the two-stage approach identified in Asturion Foundation v Alibrahim [2020] EWCA Civ 32. On a pleading-based application, the strike-out and summary-judgment tests may be considered together. Following Burnford v Automobile Association Developments Ltd BL-2021-000731 and Begum v Maran (UK) Ltd [2021] EWCA Civ 326, the question was whether the claims had a realistic rather than fanciful prospect of success, with no compelling reason requiring a trial.
2. The court was not to conduct a mini-trial, but could decide the issues where the contemporaneous documents provided sufficient evidence. It should allow for further evidence only where there was a real prospect that disclosure or trial would affect the outcome. The evidential burden initially rested on the applicant.
3. Amendment. Although the proceedings were at an early stage, an amendment still required a real prospect of success, a clear and focused pleading, evidence rather than speculation, and a proportionate balance between the parties. The claimant had provided no draft amended pleading and the proposed allegations remained unsupported.
4. Application of the tests. The allegation that the Second Defendant had withheld evidence was hopeless because the documents showed that he repeatedly invited collection and the claimant had not collected all the material. The chain-of-custody allegation also failed. The returned material remained available in the condition in which it had been delivered, while the items said to be missing were absent from the police return list. Any issue concerning the original seizure was not attributable to the Second Defendant.
5. Serious allegations of collusion, dishonesty or breach of fiduciary duty required primary facts capable of making dishonesty more likely than innocence or negligence. The claimant’s reliance on a pronoun in an email and speculation about the timing of delivery did not meet that threshold. The approach in JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm) was applied.
6. A breach-of-retainer claim raised only in the Reply was not properly before the court. The Reply was a responsive document and could not introduce a new cause of action. The court made no determination on the merits of any possible County Court claim.
7. For costs, the claimant’s conduct, the volume of material, the seriousness of the allegations, the parties’ pre-action conduct and their limited ADR engagement were considered. The Second Defendant was wholly successful and received costs on the standard basis. The failure to engage fully before proceedings and in ADR meant that indemnity costs were not appropriate.

not stated in the judgment.