Practice

Defendant applying to strike out claim form on ground of breach of rules of procedure - strike out inappropriate penalty - relief from sanctions granted in favour of claimant on stringent costs terms

Parnall v Hurst and others: ChD (Judge Peter Langan QC, sitting as a High Court judge): 15 May 2003

The first and second defendants, as executors of the testator's will, were granted probate of the will under which his whole estate was left to the third defendant, with no provision for his ex-wife, the claimant.

The claimant issued a CPR, part 8 claim form in proceedings under the Inheritance (Provision for Family and Dependants) Act 1975, but failed to serve with it a witness statement in breach of, among other things, CPR, rule 8.6, which provided that a claimant could not rely on any written evidence at the hearing unless it had been served with the claim form or the court had given permission.

The defendants applied to strike out the claim on the basis of a breach of the rules of procedure and the claimant applied for relief from sanctions.

Robert Toone (instructed by Tierney & Co, Rotherham) for the claimants; Daniel Lightman (instructed by Irwin Mitchell, Sheffield) for the defendants.

Held, refusing to strike out the proceedings and granting the claimant relief from sanctions, that where, on an application to strike out, the court could deal with the matter justly by the imposition of some penalty less grave than striking out, it should do so; and that the claimant would accordingly be entitled to rely on her witness statement on stringent terms as to costs.