Stewart Harper applauds courts for striking out hopeless cases

Chris Jackson in The Lawyer, 6 June 1995 suggested a reverse Order 14 procedure be introduced to give defendants the chance to dispose of groundless claims at an early stage. However, such a procedure is already in place.

Over the last six years I've been involved in the well-publicised litigation arising out of the prescription of benzodiazepine drugs. The litigation against each of the drug manufacturers comprised thousands of individual claims.

Some claims immediately appeared stronger than others, but it quickly became clear that a large number were groundless. Those were shared by others representing different drug manufacturers.

The defendants therefore took out applications to strike out such claims, not under Order 14, but under the inherent jurisdiction of the court and pursuant to RSC Order 18, Rule 19. Those applications came before Mr Justice Kennedy, were successful and subsequently taken to appeal.

The Court of Appeal in upholding the decision at first instant made it plain that each court had an inherent jurisdiction to strike out cases in this way. While the court's comments reflected the particular demands of group litigation, the court expressly left open the issue of whether the principles which they had outlined applied equally to non-group litigation. The issue the court had to decide in those particular cases was whether it was appropriate to allow plaintiffs to proceed with their actions when they had no reasonable prospect of succeeding. The fact that most of the plaintiffs were funded by legal aid also underlined the court's concern at the use of public funds for non-meritorious claims.

However, the court set out some important principles which practitioners should not be afraid to exercise. While there is an obvious reluctance for a court to dismiss a plaintiff's action without giving the plaintiff the opportunity to call evidence, there will be cases where the issue on causation and damage are so difficult for the plaintiff that no court is likely to find in their favour.

With the restraints on public funding it is my hope that the courts will be robust in exercising this discretion.

Stewart Harper is the senior litigation partner at Lace Mawer in Manchester.