Striking out has always been a useful tool for insurers, in certain circumstances, to prevent claimants from dragging their heels needlessly, while stacking up costs. The Court of Appeal decision of Biguzzi v Rank Leisure Plc, 26 July 1999 was the first case to determine the way courts will deal with these cases under the new civil procedure rules. It laid down three fundamental principles.

Judges must apply the principles of the CPR and not those of the old regime.

Striking out was only to be reserved for the most serious breaches of the rules. But Lord Woolf emphasised that failure to comply does not mean that this should necessarily lead to a strike out. If a more just result can be achieved by other means, such as payment of indemnity costs and interest or an order requesting the defaulting party to pay into court either damages or costs, then the court should take this route.

"Is there anything unfair in letting this case go to trial?" is now the fundamental question in determining whether a case should be struck out.

Strike out upheld
In Biguzzi, the claimants obtained a trial date which was re-adjourned because they were not ready. The court ordered that a certificate of readiness should be served by March 19 1997. The claimants took no action until the court ordered a hearing to take place between February and May 1999. The judge decided a fair trial could still take place, concluding that the best course was to have it heard at the first convenient date.

This gave claimants hope that other sanctions would be imposed, not a strike out. But, on December 23 1999, in the case of UCB Corporate Services Limited v Halifax Limited (unreported), the Court of Appeal upheld a robust order for a strike out. It indicated it would be ironic if the new rules required judges to afford greater leniency towards a claimant than under the old rules. The delay was so serious that the court felt the matter justified a striking out order.

We believe that, where a fair trial is possible, such an approach is less likely to be followed as it may contravene Article 6 of the European Convention on Human Rights and Fundamental Freedoms. This gives a right to a fair trial and is effective from October 2.

Whether a fair trial could take place was considered in Axa Insurance Co LTD v Swire Fraser LTD (19 January 2000). While there had been substantial delay by the claimant in not pursuing this action, the defendant's application to strike out failed because there were two similar claims running, which had not, at the time, been heard. The court decided it would not have been too late for Axa to join the other actions. But cost penalties were imposed upon the claimant.

Relying on the principles in Biguzzi, we applied to strike out in a case where the claimant alleged bullying/stress while in employment from 1987 to 1989. The claimant's solicitors issued in July 1992 and served in 1993. A general extension of time for the service of the defence was granted. The defence was served in 1996, after which automatic directions applied. Discovery by the claimants occurred over a year later, with no steps being taken to exchange witness evidence or expert evidence or set the matter down.

The case revolved around the evidence of two witnesses, the claimant and his manager. The case was successfully struck out and the decision later appealed by the claimant's solicitors. The claimant's counsel argued, on appeal, that the moratorium for filing the defence meant that the period between 1993 and 1996 should not be considered. In that time, the claimant's manager died. The claimant argued that the defendants could have protected themselves by obtaining witness statements. The judge stated that, where claimants issue at the end of the period, it is necessary to move fast. The claimant's solicitors should not have let the moratorium continue. The defendants tactically let sleeping dogs lie. In a case involving conflicts between two men, where there was no documentation, speed was of the essence. That the manager had died, and thus the court could not hear his oral evidence or get a feel for his demeanour, and would only have secondary evidence to consider, meant a fair trial could not take place.

It seems likely, with the Human Rights Act 1998 coming into force this year, that judges will be less inclined to strike out cases for pure delay unless a fair trial is not possible. A strike out order in any other situation may be considered to be a breach of the Act. The position will be less favourable for defendants, but sanctions may be more readily imposed. However, it must be acknowledged that the Human Rights Act is a new area of law which has been seized on eagerly. It may have little effect on the courts' decision-making process. Only time will tell.