Practice

Case management - claims struck out in complex commercial action on balance of probabilities - not proper approachRoyal Brompton Hospital National Health Service Trust v Hammond and others: CA (Lords Justice Aldous, Clarke and Laws): 11 April 2001The claimant, a hospital trust, brought an action for damages for breach of contract against the the architects, project managers, and the electrical and mechanical engineering services consultants involved in the building of a hospital.

The judge ordered a split trial of liability.

At the first trial the judge doubted whether some of the alleged breaches were established by the evidence in the witness statements of the claimant's expert witnesses.

After four days of submissions the judge struck out certain allegations and other claims were excluded.

The claimants appealed, among other things, against those orders.Anthony Edwards-Stuart QC and Mark Cannon (instructed by Masons) for the claimants.

Marcus Taverner QC and Richard Edwards (instructed by Fishburn Morgan Cole) for the architects.

Adrian Williamson (instructed by Davies Arnold Cooper) for the project managers.

Andrew Bartlett QC and Jane Davies (instructed by Berrymans Lace Mawer) for the services consultants.Held, allowing the appeal, that in considering whether to strike out claims Civil Procedure Rules 1998, rule 24.2 required the judge to decide whether there was a real prospect of success; that the judge should therefore have regard not only to the witness statements but to the issue of whether supplemented by evidence at trial the claim was bound to fail even though unchallenged by any evidence for the defendants; that, since the judge had decided to strike out the claims applying the standard of a balance of probabilities to the claimants' evidence, the wrong test had been applied; and that, since the result would not have been the same had the proper test been applied, the orders would be set aside.