WHAT WE ACHIEVED
“The Court allowed the Plaintiff’s appeals as it ruled that a pleading as vital as the Statement of Claim should not have been struck out as a fair trial was still eminently possible. “
[Civil Procedure – whether a claim should be struck off]
At the High Court, despite Mr Silvester’s attempts at arguing otherwise, the learned High Court judge deemed the Plaintiff’s repeated breaches of the unless orders as intentional and contumelious, and as such, the Plaintiff’s Statement of Claim was struck out. The High Court also did not accept the reasons given by the Plaintiff for the non-compliance with the unless orders, viewing them as excuses. The High Court also did not accept the Plaintiff’s reasoning that their lawyers were unable to cope with the voluminous amount of Japanese documents.
At a first glance, having the Statement of Claim struck out would utterly defeat the Plaintiff’s claim. However, assessing that an appeal should at least be attempted, an appeal on this case was brought by Mr Silvester to the Court of Appeal. Upon appeal, Mr Silvester argued that the pleading should not be struck out merely for those grounds. The Court of Appeal found that even when there is an “intentional and contumelious breach” of an unless order, it does not automatically warrant a striking out of a pleading as vital as the Statement of Claim as the Court still has to be guided by principles of proportionality while taking into consideration all the circumstances of the case. Mr Silvester’s judgment call led to a successful appeal which allowed for the Plaintiff to have a fair trial.