Abdulle and others v Commissioner of Police for the Metropolis
Despite solicitors for three claimants failing to pay the relevant court fees, failing to file a pre-trial checklist, and failing to prepare a trial bundle (which caused the trial window to be lost) it was nonetheless inappropriate to strike out the claim- the case was all but ready for trial and the claim was not insubstantial.
Three Claimants alleged that they had been subjected to excessive force at the hands of Metropolitan Police Officers. At a case management conference, it was ordered that the trial would commence between 6th May and 12th May 2014, both parties would be required to file and serve pre-trial checklists and the Claimants would be required to file and serve trial bundles in advance of the date fixed for trial.
The Commissioner duly filled out and returned his pre-trial checklist, but the Claimants failed to do so. When the Claimants failed to pay the required court fees a week before the trial window, the listing office attempted to serve a notice of default on them by fax. The Claimants continued to fail to pay the relevant court fees or file the trial bundles. Consequently the trial window came and went.
The Commissioner applied to strike out the Claimants’ claim. The Court declined to do so as there was insufficient evidence to show that the notice of default had been successfully transmitted to the Claimants. Rather, it ordered the Claimants to pay the costs of the Commissioner’s application. The Claimants subsequently failed to pay those costs. The Commissioner again applied to strike out the Claimants’ claim in light of the continued non-compliance and the non payment of costs.
The Court again refused the Commissioner’s application. Mr Justice Hickinbottom considered that whilst the Claimants had committed a number of serious breaches with particularly significant procedural consequences, namely the loss of the trial window, on balance it was not appropriate to strike out their claim. Although the behaviour of their solicitors was worthy of scathing criticism, the case was all but ready for trial and was not insubstantial. The appropriate course was to allow the claim to proceed, but to stay it until the Claimants had satisfied the outstanding costs order, failing which their claim would be automatically struck out.
Whilst Claimants’ claim was not struck out in this case, one can appreciate how substantial procedural errors which cause significant disruption to the Court diary could have drastic consequences. Had the Claimants’ claim not been ‘trial ready’ it may have fallen foul of Mitchell/Denton and been struck out. Whilst this may indicate a continuing trend of leniency the view of this author is to ensure compliance wherever possible. Don’t take the risk of being struck out and don’t gift the other side procedural arguments.