The Court of Appeal has ruled that a litigant who missed a deadline should not have been granted leniency merely because she appeared to have a strong case.
Giving the lead judgment in Bangs v FM Conway Limited, Lord Justice Males said the general rule was that the merits of an underlying claim were ‘irrelevant’ when the court had to make a case management decision.
He set aside an order from Mr Justice Jacobs, which had granted the claimant relief from sanction, and restored the initial order to strike out the claim.
‘For the judge to go on, as he did, to consider the merits of the underlying claim, did unwittingly cause an injustice to FM Conway,’ said Males. ‘It is, perhaps, understandable that he did so, but the result was that FM Conway did not have a fair opportunity to deploy its case.’
The decision clarifies that it is not disproportionate to strike out a late claim even if the case appears to be very strong.
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Claimant Christine Bangs had made the £30,000 claim against loss adjustor FM Conway after resurfacing works outside her Westminster basement flat had resulted in flooding and damage to her underground vault.
FM Conway initially admitted liability but withdrew this when Bangs said the value of the claim had risen to £200,000.
The claimant’s solicitors had until 6 July 2023 to file particulars of claim, but nothing was forthcoming. When the defendant’s solicitors raised this the next day, there was still no reaction. Males said the only explanation was that the claimant’s solicitors were hoping, having demonstrated serious intent by issuing proceedings, that the claim would settle.
Mr Justice Bright struck out the claim on 27 July and the particulars were not served until 22 September.
When the claimant challenged the strike-out decision, the High Court identified two factors in favour of granting relief from sanctions. One was the defendant’s admission being made and then withdrawn; the second was that the claim was not yet time-barred, so Bangs would in any case be able to start again. The judge said that the second factor alone would not have been sufficient, meaning that the admission and the merits of the claim on liability were ultimately decisive.
However the appeal judgment found that it had been unnecessary for the parties to deploy extensive evidence designed to show that they had a strong case on the merits and they should not seek to do so. ‘Such evidence is likely to be a distraction from what the court needs to decide and is positively unhelpful,’ Lord Justice Males added.
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