Swain v Hillman

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date21 October 1999
Judgment citation (vLex)[1999] EWCA Civ J1021-8
Docket NumberQBENF 1999/0741/B3
Date21 October 1999

[1999] EWCA Civ J1021-8





The Law Courts

Cathays Park

Cardiff CF1 3ND


The Master of the Rolls

(Lord Woolf)

Lord Justice Pill

Lord Justice Judge

QBENF 1999/0741/B3

Terence Paul Swain
T Hillman (Male) and T C Gay

MR N BIDDER QC (Instructed by Messrs Palser Grossman, Cardiff, CF1 5PJ) appeared on behalf of the Appellant.

MR G WALTERS (Instructed by Messrs Petersons, Newport, South Wales) appeared on behalf of the Respondent.


Thursday 21 October 1999


This is an appeal from a decision of His Honour Judge Graham Jones, sitting as an additional judge of the High Court, given on Thursday 17 June 1999 at Cardiff. The judge was dealing with a case management conference in respect of a claim by Mr Paul Swain for personal injuries against Mr Hillman and Mr Gay who are builders. The chronology in this case makes sorry reading.


The accident in relation to which Mr Swain brings his claim occurred on 8 March 1989, over ten years ago. The position is complicated by the fact that in 1992 the claimant also had a traffic accident in relation to which the defendants have admitted liability, so there is a possible problem of causation in relation the claimant's injuries. However, if the claimant is suffering from the injuries he alleges, which cumulatively are fairly serious, it is unfortunate that the claim has not been dealt with before.


As was pointed out by Judge LJ in the course of argument, one of the matters of which the claimant is complaining is depression. Nothing is more likely to aggravate depression than to have a case hanging over the claimant all these years. I would emphasise that the claimant's present legal advisers, both counsel and solicitors, have only been involved in this case since the spring of this year and there can be no criticism made of them for the fact that the claimant's case has not been pursued faster. Fortunately, a relatively early hearing date is anticipated and, if this case is to proceed, it is important that that date should, if at all possible, be adhered to.


His Honour Judge Graham Jones had an application before him that the case should be disposed of summarily. He obviously found the case near to borderline as to whether or not it should be disposed of summarily. I say that because the judge invited the parties to address him as to whether or not he should make a conditional order, which he would only have done if he thought that it was a borderline case. In fact the judge did not make a conditional order, but dismissed the defendants' application that he should dispose of the matter summarily.


The power of a court to make a summary order is now contained in Part 24 of the Civil Procedure Rules ("CPR"). CPR 24.2 provides the grounds for summary judgment:

"The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if—

(a) it considers that—

(i) that claimant has no real prospect of succeeding on the claim or issue; and

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other reason why the case or issue should be disposed of at a trial."


There is a note to Part 24.2 referring to rule 3.4. Rule 3.4 makes provision for the court to strike out a statement of case, or part of a statement of case, if it appears that it discloses no reasonable grounds for bringing or defending a claim.


Clearly, there is a relationship between rule 3.4 and Part 24.2. However the power of the court under Part 24, the grounds are set out in 24.2, are wider than those contained in rule 3.4. The reason for the contrast in language between rule 3.4 and rule 24.2 is because under rule 3.4, unlike rule 24.2, the court generally is only concerned with the statement of case which it is alleged discloses no reasonable grounds for bringing or defending the claim.


Under Part 24.2, the court now has a very salutary power, both to be exercised in a claimant's favour or, where appropriate, in a defendant's favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words "no real prospect of being successful or succeeding" do not need any ampflication, they speak for themselves. The word "real" distinguishes fanciful prospects of success or, as Mr Bidder submits, they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success.


When Part 24 came into force, and when the matter was before the judge, it was supported by a practice direction which has since been amended. It stated in paragraph 4.1:

"Where a claimant applies for judgment on his claim the court will give that judgment if:

(1) the claimant has shown a case which if unanswered would entitle him to that judgment, and

(2) the defendant has not shown any reason why the claim should be dealt with at trial."


Paragraph 4.2 dealt with the obverse position as to a defendant. In similar terms it dealt with a defendant's right to apply for judgment. It provided if:

"(1) the claimant has failed to show a case which, if unanswered, would entitle him to judgment, or

(2) the defendant has shown that the claim would be bound to be dismissed at trial."


I now refer to 4.3, not because it is, in view of the judge's decision, directly relevant, but because it provides confirmation for what I previously referred to as to his state of mind. Paragraph 4.3 states:

"Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order, as described below."


Because the judge was considering making a conditional order in this case, it is fair, as Mr Bidder submits on behalf of the claimants, to take the view that the judge regarded this as a case where he thought that it was possible, but improbable, that the claim or defence would succeed.


Since the judge's decision, the practice direction to Part 24 has been amended by deleting paragraphs 4.1 and 4.2. The reason for that deletion is obvious. It was perceived that there was a conflict between 4.1 and 4.2 and the provisions of Part 24. The practice direction was laying down a different standard which indicated that the approach required was one of certainty. The judge could only exercise his power under Part 24 if he was certain or, to read the actual language of the practice direction, "he thought that a claim would be bound to be dismissed at trial". If that was thought to be the effect of the practice direction, that would be putting the matter incorrectly because that did not give the to the word "real" to which I have already referred.


It is not necessary to have viewed the practice direction in that way. In the (so far) unreported case of Taylor & Ors v Midland Bank Trust company Limited of 21 July (Stuart-Smith and Buxton LJJ and Rattee J),...

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