The CPR are More Flexible

AXA Insurance Co Ltd v Swire Fraser Ltd (CA TLR 19 January)

The fundamentally different procedure laid down in the new rules, outlined by the Court of Appeal in Biguzzi v Rank Leisure plc ([1999 1 WLR 1926 and 18/LL p98) required that notwithstanding substantial delay by a claimant in progressing his claim, striking out should only be ordered if it was just or proportionate to do so, it being for the court to show disapproval when making orders as to costs. Rule 3.4(2)(c) conferred a wide discretion on the court and did not require proof of prejudice. There could not be read into Biguzzi any remit to consider a claimant’s delay or failure to comply with the rules any more leniently than in the old days. The new rules simply enabled the courts to adopt a more flexible approach. To show the court’s disapproval of the delay and to protect the defendant as far as possible from the consequences of the fact that the case could not now be heard with two other claims making similar allegations against them, the claimants should pay the costs of the strike-out proceedings and some of the allegations in its points of claim were struck out so as to confine the scope of the further trial. There were a number of allegations which went wider than those made in the other two actions.