ABSTRACT
I conclude that it is not a proper exercise of the Court’s power under the rules or its inherent power to strike out a claimant’s case where the claimant has been found to be in contumacious breach of the rules or an order of the Court or even is guilty of conduct amounting to a fraud on the Court and so a gross contempt, if it can be shown that notwithstanding the claimant’s conduct there is no substantial risk that a fair trial of his claim cannot follow ... I agree with the conclusion of Mr Justice Laddie in the Swaptronics case that to conclude that a contemnor should have his case struck out by reason of his contempt notwithstanding that the Court takes the view that a fair trial can follow is likely to be a breach of Article 6.1 of the European Convention on Human Rights as being a breach of the contemnor’s right to ‘the determination of his civil rights and obligations’ at ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by the law’. Plainly to strike out a contemnor’s case where the Court takes the view that the acts constituting a contempt lead to a real risk that a fair trial cannot happen would not constitute a breach of the article.
