The claimant strikes back

To err is human. Judges and even parties to litigation are human and they can err. Although to forgive is said to be divine, the Court of Appeal can at least tolerate an errant party and put right an errant judge's judgment. A recent Court of Appeal case, Glauser International vs Khan (2002 BLR volume 5) reveals a more tolerant approach to a party that does not comply with court orders.

The Civil Procedure Rules, which govern court actions, enable the court to manage cases, to make orders and generally ensure that they are disposed of as economically and as quickly as possible. Of course, there are sanctions to encourage parties to comply. One sanction is cost: a party whose defaults cause an increasing cost may well have to pay for that increase. Another sanction is that the court can strike out (or dismiss) a claim or defence where the relevant party abuses the process or otherwise procedurally misbehaves or delays.

The Glauser case involved a claim for more than £1m in relation to a building project in which engineers had been retained by Glauser; the allegations related to alleged defective work and delay.

Proceedings began in May 2000. The claim was inadequately pleaded because it did not identify proper causation links between alleged breaches, the delays and the losses. After Khan had served its defence in August 2000, the judge in early October 2000 ordered a 10-day trial to begin in March 2001; he also ordered that Glauser amend its written case to plead causation properly. Although the amendment was due by 1 November 2000, Glauser, for various good reasons, could not meet the deadline and had to apply for a 10-day extension to lodge it.

The judge, however, struck out the claim on 3 November on the grounds that there had been non-compliance with his earlier order and because it was unfair that a professional defendant should be treated in that way.

Glauser commenced new proceedings in respect of the same subject matter in April last year. Although the case was properly pleaded, the judge struck out the second action in June. Glauser appealed.

The Court of Appeal decided that the judge had been wrong in November 2000 to strike out the claim. He should have been prepared to consider whether the period he had allowed initially for the amended claim to be served was realistic. The court's power to strike out is discretionary and must be fact-specific. Striking out a claim or defence is and should be considered as a last resort for the court.

There would have been no prejudice if the judge had allowed a 10-day extension of time for serving the amended pleading: the trial date could still be maintained. In broad terms, the judge should have granted that short extension; his failure to do so and the striking out of the claimant's case was wholly disproportionate and wrong.

As the Court of Appeal said in this case, in striking out a first action the court must bear in mind that it will be extremely difficult for a party to pursue a second action in respect of the same subject matter.

Established authorities (Securum Finance and Arbuthnot Latham Bank) make it clear that a second action will only be permitted in those circumstances if there is a special reason for so doing.

The judge in the first action must bear in mind that article 6 of the European Convention on Human Rights guarantees the right to a fair trial. Striking out an action inevitably denies a fair trial to a claimant, even though the other party's interests must also be balanced. The right to a fair trial is the right of both parties.

A lesson to be learned from the Glauser case is that, generally, one should only commence claims (particularly in construction cases) when one is ready and prepared to do so. If the case that is presented in writing initially is inadequate, the court will order that it be properly set out. Failure to comply with such orders can lead to striking out although this case suggests that it should be a matter of final resort.