ABSTRACT
In UCB Corporate Services Ltd v Halifax (SW) Ltd,6 it was held that, under the CPR, it was appropriate to strike out an action as an abuse of process where there was a wholesale disregard of the Rules or court orders, and it was just to do so. Lesser sanctions were available in less serious cases. There was no need, unlike in the Birkett v James7 principle applicable under the RSC, to show prejudice to the defendant or that a fair trial was no longer possible. Striking out on the ground of disobedience per se would avoid much time and expense being incurred in investigating questions of prejudice, and would allow the striking out of actions whether or not the limitation period had expired. The question of whether a fresh action could be commenced would be at the discretion of the court when considering any application to strike out such action and any excuse given for the misconduct in the previous action. In the UCB case, the English Court of Appeal rejected the argument that, following Biguzzi v Rank Leisure plc,8 a sanction other than striking out (for example, an order to pay money into court, a costs sanction or deprivation of interest on an award of damages) should be imposed. The court held that the correct approach in cases of wholesale disobedience of the rules or court orders was that established in the pre-CPR case of Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd,9 which the trial judge had rightly applied. Lord Lloyd said:10
The judge regarded the flouting of the rules and court orders as sufficiently serious to justify striking out. In his view, it was the course justice required … That approach is entirely in line with the underlying purpose of the new rules. It would be ironic indeed if the Civil Procedure Rules and Biguzzi led judges to treat cases of delay with greater leniency than under the old procedure. That could not have been the intention of the Master of the Rolls in Biguzzi. He was pointing out that there were lesser sanctions in less serious cases, but in more serious cases striking out was appropriate where justice required it.
