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GOING ON STRIKE

LEGAL

The court takes an active role in managing cases, and has many powers on which to call, including putting a stop to cases if necessary, writes Sue Lindsey.

It can strike out a claim or a defence, leaving the remaining party in effect unopposed. This can be done either on the basis of various grounds spelt out in the rules, or by the court under its inherent jurisdiction.

This power can sit uncomfortably with a party's right to have a fair hearing.

As a result, the power to strike out is used infrequently. The court often finds a lesser order to make. For example, a delay that is in breach of the court's orders might be met by a suspension of interest on a claim for the period of delay.

But, at the extreme, there remain circumstances in which a strike out is the only answer.

The facts in one recent case where the court struck out a defence were certainly at the limits. The extremity of the facts and the way in which the court considered the tests are perhaps illustrative of how unusual it is now to strike out a case. Also notable is the caution exercised by the judge through inviting the Attorney General to appoint an advocate to achieve a better balance in representation, the defendant having opted to act in person.

The parties, who were two individuals, were arguing over a series of loans related to the property owned by the claimant. Proceedings were slow, with much reformulation of both claim and defence.

About six years into the action, the claimant was murdered.

The defendant was initially convicted of his manslaughter, but that was overturned on appeal. However, for the purposes of the ongoing civil action (which was continued by the claimant's representative), the judge held that the defendant was responsible for the claimant's murder, the motive being to put a stop to the civil proceedings on terms favourable to the defendant.

The claimant's representative applied to strike out the defence and for there to be judgment for the claimant.

They argued that the issues turned on the credibility of claimant and defendant, but the claimant was no longer there to give evidence.

In striking out the defence and preventing the defendant from arguing the case, the judge acknowledged that this was a draconian step only appropriate in extreme circumstances and as a last resort. He concluded that the defendant had jeopardised a fair trial in such a way that there were no counterbalancing measures that could ensure a just result.

So, there was nothing short of a strike out that could achieve justice. Furthermore, the order was necessary as there was no greater challenge to the administration of justice than murdering the opposing party in order to gain an advantage.

As to the human-rights point, the judge said, in concluding, that a strike out was the only appropriate order, he had balanced the personal right of the defendant to a fair hearing against the same right that had been the claimant's, in the general interest of the community.

There is no upbeat conclusion to be drawn from this case, other than perhaps a hope that such litigation, reaching such depths, remains exceptionally rare.

Sue Lindsey is a barrister at Crown Office Chambers in London. Visit www.crownofficechambers. com

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