CJR Interim Report, Section K. Possible Reforms In Specific Areas, K6. Summary disposal of cases or issues in cases

K6.2. As Implemented

301.	In relation to striking out, CPR 3.4(2) provides :-


		(a)	that the statement of case discloses no reasonable grounds for bringing or defending the claim;

		(b)	that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or

		(c)	that there has been a failure to comply with a rule, practice direction or court order."


302.	It follows that :


	*	Under paragraph (a), to survive a striking out application, a claim or a defence must be more than merely arguable - they must rest on reasonable grounds.

	*	Paragraph (b) maintains the court's inherent jurisdiction to strike out proceedings which are an abuse.

	*	However, under paragraph (c), the English Court of Appeal ^{(Note 246)} has stressed that a striking out should not be the first port of call where there has been non-compliance with time-limits or other rules or orders. Many other available alternatives exist and should first be considered.


		"(a)	the defendant has a real prospect of successfully defending the claim; or

		(b)	it appears to the court that there is some other good reason why -


			(i)	the judgment should be set aside or varied; or

			(ii)	the defendant should be allowed to defend the claim." ^(Note 248)


304.	Summary judgments are dealt with by Part 24 which establishes "a procedure by which the court may decide a claim or a particular issue without a trial." ^{(Note 249)}

305.	The test is again the real prospect of success test, applicable either to the plaintiff's or the defendant's case and formulated as follows :-


		(a)	it considers that -


			(i)	that claimant has no real prospect of succeeding on the claim or issue; or

			(ii)	that defendant has no real prospect of successfully defending the claim or issue; and


		(b)	there is no other compelling reason why the case or issue should be disposed of at a trial." ^{(Note 250)}


306.	This is on its face a less stringent test than presently exists in Hong Kong under Order 14 or Order 18 r 19. The House of Lords took comfort in the availability of this broader power as a means of dispatching unmeritorious claims which disgruntled clients might be tempted to institute against their barristers following loss by advocates of their immunity from suit as a result of Arthur J S Hall & Co v Simons [2000] 3 WLR 543.

306.1	Lord Steyn states :-

		"Unmeritorious claims against barristers will be struck out. The new Civil Procedure Rules 1999, have made it easier to dispose summarily of such claims: rules 3.4(2)(a) and 24.2." ^{(Note 251)}

306.2	Lord Hoffmann puts it as follows :-

		"Under the old rules, a defendant faced with what appeared to be a bad claim had a very heavy burden to satisfy the court that it was 'frivolous and vexatious' and ought to be struck out. Now rule 24.2 provides that the court may give summary judgment in favour of a defendant if it considers that 'the claimant has no real prospect of succeeding on the claim.' The defendant may file written evidence in support of his application. In Swain v Hillman, ^{(Note 252)} Lord Woolf MR encouraged judges to make use of this 'very salutary power ... It saved expense; it achieved expedition; it avoided the court's resources being used up in cases where it would serve no purpose; and, generally, was in the interests of justice.' " ^{(Note 253)}

307.	However, it has been suggested ^{(Note 254)} that the new rules have had little impact, possibly because elaboration of the "real prospect of success" test by Lord Woolf in Swain v Hillman (applied in subsequent cases) has meant that such test does not significantly differ from the test previously applicable. Lord Woolf stated :-

		"Under r 24.2, the court now has a very salutary power, both to be exercised in a claimant's favour or, where appropriate, in a defendant's favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words 'no real prospect of being successful or succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or, as Mr Bidder QC submits, they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success." ^{(Note 255)}

	If one can succeed summarily only where the other side's case is "fanciful", one may well ask whether this differs from requiring the other side's case to be unarguable or less than triable. On the other hand, the citation of Lord Hoffmann above clearly shows that his Lordship considered the present test to impose a lighter burden than that previously applicable.

308.	In any event, the learned editors of the White Book point out that the "real prospect of success" test does not require a plaintiff or defendant to show that his claim or defence will probably succeed at trial. It may have a real prospect of success even if it is improbable, although in such a case, the court may allow the case to proceed subject to the imposition of conditions. ^{(Note 256)}

309.	The rules envisage the possibility, in exceptional cases, of oral evidence being permitted (by order of the court) within the summary procedure. Written evidence is generally permitted.^{(Note 257)}

Notes

246	Biguzzi v Rank Leisure plc [1999] 1 WLR 1926. <back>

247	CPR 13.2. <back>

248	CPR 13.3. <back>

249	CPR 24.1. Special provisions applicable to defamation claims are dealt with by CPR 53.2 made necessary by the right to trial by jury. <back>

250	CPR 24.2. <back>

251	At 554. <back>

252	The Times, 4 November 1999; Court of Appeal (Civil Division) Transcript No 1732 of 1999. <back>

253	At 562-3. <back>

254	Harry Anderson, Herbert Smith, Conference on "Civil Procedure: Latest Developments and Prospects of Change" Hong Kong on 8 June 2001. <back>

255	The House of Lords in Three Rivers District Council and others v Bank of England (No 3) [2001] 2 All ER 513 cited this test with apparent approval. See also Royal Brompton Hospital National Health Service Trust v Hammond [2001] EWCA Civ 550 (11 April 2001). <back>

256	White Book 24.2.3. Conditions may be imposed pursuant to CPR 3.1(3), as indicated in CPR 24.6. <back>

257	White Book 24.5.2. <back>