DELAY -- THREAT OF STRIKE OUTIt is the policy of the CPR that a claimant who is guilty of delay and in breach of a court order is in default at his own peril; the court will rule against him if the issues in his case, for whatever reason, can no longer be fairly tried.

Under the CPR and, in particular, the overriding objective, a claimant can no longer rely on the fact that (1) his delay has not caused the inability for a fair trial of the issues or (2) the defendants are equally in breach of the rules.

West Riding Automobile Co Ltd & Ors v West Yorkshire Passenger Transport & Anor, LTL 28/10/99 Ch.D (Bernard Livesey QC).(A fair trial of the issues could not take place in this case as, among other things, important documents had gone missing which meant the gaps had to be filled by oral evidence, which was dependent on the recollections of particular witnesses.

The argument by the claimants that the defendants had also failed to comply with directions fell on stony ground -- two wrongs do not make a right?).EXPERTS -- ARE THEY NECESSARY?The spirit and effect of the CPR require the court to look even more closely at the need for expert evidence in registered design cases.

In registered design actions, the court should take care before allowing expert evidence.Thermus v Aladdin Sales, LTL 26/10/99, Ch.D Patents Court (Jacob J)EXPERTS -- CLINICAL NEGLIGENCE CASESWhile, in general, a limitation on experts and a requirement for joint instruction are to be applauded under the CPR, such a restriction is inappropriate at the early stages of a complex clinical negligence case, as it would hinder the proper pleading of the case.S (A Minor) V Birmingham Health Authority, LTL 23/11/99 QBD (Curtis J).INTERIM INJUNCTION -- SHOULD JUDGE SUMMARILY ASSESS COSTS?Where a judge decides an interlocutory matter on a 'balance of convenience' basis, he should reserve the costs to the trial judge.Richardson v Desquenne et Giral UK Ltd, NLD, 23 November 1999, CAOLD CASES DO NOT RULE -- OK?Decisions, even on identical wording under the old rules, will not necessarily be followed in future in interpreting the CPR.Lombard Natwest Factors Ltd V Sebastian Arbis LTL 1/11/99 Ch.D (Hart J).

(A wonderfully clear statement of the approach to be taken).Bank Of Credit & Commerce International Sa (In Compulsory Liquidation) V (1) Munawar Ali (2) Sultana Runi Khan & Ors Sub Nom The Stigma Claims (BCCI Employees No.4), LTL 4/11/99 Ch.D (Lightman J).OFFERS TO SETTLE -- DUTY OF DISCLOSURE -- COSTSIf, due to non-disclosure or lack of proper disclosure, the parties cannot properly assess whether to make or accept CPR part 36 offers, that is a material matter for the court to take into account when considering what costs order is to be made.Cheryl Lynne Ford V (1) Gkr Construction Ltd (2) Ieuan Rees (3) Jane Swaffield The Times, 5 November 1999, CA (Lord Woolf MR, Pill LJ, Judge LJ).PART 36 OFFERS -- APPROACH TO 'BONUS' AWARDS OF INTERESTThe impact of part 36 offers is having a major effect on the conduct of post-Woolf litigation and all litigators will be interested in the first reported case on enhanced interest awards under r.36.21.

The starting point is to consider an award of 10% above base rate on the whole judgment, excluding interest, from the earliest date when it could be awarded.

It is then appropriate to evaluate the effect of so doing in deciding whether an injustice has been created, or a disproportionate advantage or disadvantage to the claimant or defendant has resulted.Little & Ors V George Little Sebire & Co, The Times, 17 November 1999 QBD (David Foskett QC).PROPORTIONALITY -- DISOBEDIENCE OF COURT ORDERS -- SECURITY FOR COSTSThe court is obliged to make a proportionate response to the disobedience of its orders.

Accordingly, in this case, the court lifted, on terms, a stay which it had imposed on the first defendant for breach of a freezing order and preventing him from taking further steps in the action without the court's consent.Federal Bank Of The Middle East Ltd v Charles Hadkinson & Ors, LTL 1/11/99 Ch.D (Arden J)PROPORTIONALITY -- ABUSE OF PROCESS -- STRIKING OUTThe principle above also applies to applications to strike out for abuse of process.

In this there had been a wholesale disregard of the rules of court and inordinate and inexcusable delay; nevertheless, the decision to strike out the claimant's action as an abuse of process was disproportionate, given that there was no prejudice to the defendant and the defendant was pursuing a substantial counterclaim.Tekna Design Ltd V Davenport Properties Ltd LTL 3/11/99 CA.

(For a similar strike-out case see Gerard McCann v Wimpey Construction (UK) Ltd, LTL 11/11/99 CA).SECURITY FOR COSTS OF APPRAL -- OLD PRINCIPLES STILL APP LYThe approach of the court to applications for security for the costs of an appeal is no different under the CPR from what it used to be under RSC ord 59.Federal Bank of the Middle East v.

Charles Hadkinson and others, LTL 1/11/99 Ch.D (Arden J.).STRIKE OUT FOR ABUSE -- A TWO-STAGE PROCESSAn application to strike out a statement of case under CPR r.3.4(2) comprises a two-stage process involving a consideration of CPR 3.4(2)(a) and CPR r.3.4(2)(b).Savings & Investment Bank Ltd (In Liquidation) V (1) Kenneth John Fincken (2) Bradenham Holdings Ltd, LTL 29/10/99.

(In this Act, r 3.4(2)(a) states that the statement of claim discloses no reasonable grounds; r.3.4(2)(b) states that the statement of case is an abuse of process.

While those grounds are alternative grounds, they are effectively two limbs of the issue which had to be considered in this particular case).SUMMARY JUDGMENT -- APPROACH -- GUIDANCE FROM LORD WOOLFA judge can summarily dispose of a claim or defence under CPR r.24.2 if it does not have a realistic, as opposed to a fanciful, prospect of success.In deciding whether to exercise such a power, a judge should not conduct a mini-trial of issues which should be investigated at a trial.

'It is important that judges should, in appropriate cases, use the powers contained in CPR part 24, since they give effect to the overriding objectives in CPR part 1 by saving expense, by achieving expedition, by avoiding the courts' resources being used up in cases where no purpose would be served, and generally in the interests of justice.If the claimant has a case which is either bound to fail or bound to succeed, it is in his interest to know as soon as possible.' So said Lord Woolf MR when giving the judgment of the Court of Appeal in Swain v Hillman, The Times, 4 November 1999, CA.