Kasongo v CRBE Ltd & Anor: Striking Out Claims and Costs Implications under CPR 3.4(2)(a)

Introduction

Kasongo v CRBE Ltd & Anor ([2023] EWCA Civ 557) is a significant appellate decision rendered by the England and Wales Court of Appeal (Civil Division) on March 28, 2023. The case revolves around the appellant's challenge to the striking out of his claim against Transport for London ('TfL') under the Civil Procedure Rules (CPR) 3.4(2)(a). The core issues pertain to the proper application of CPR rules distinguishing between striking out a claim and granting summary judgment, alongside the implications of Qualified One-Way Costs Shifting (QOCS) in personal injury litigation.

The appellant, employed as a Security Officer subcontracted to TfL, sustained injuries in an accident at his workplace. He alleged negligence under the Occupiers Liability Act 1957 (OLA), citing a tripping hazard—specifically, a pole left in the loading bay area by the first defendant. Both defendants initially denied responsibility over the specific loading bay and the pole placement.

The initial trial judge, HHJ Saggerson, struck out the claimant's case against TfL on the grounds that the claim disclosed no reasonable grounds under CPR 3.4(2)(a), and imposed costs on the claimant under CPR 44.15. Permitted appeals challenged both the factual basis for striking out and the misapplication of CPR rules, leading to the appellate court's comprehensive analysis.

Summary of the Judgment

The appellant initiated claims against both defendants following an accident resulting from a purported tripping hazard. Amid proceedings, changing admissions from the first defendant and the application by TfL to strike out the claim against it brought the case to a critical juncture. The trial judge ruled in favor of TfL's application, asserting that the claim lacked reasonable grounds and consequently ordered the appellant to bear associated costs.

Upon appeal, the Court of Appeal meticulously evaluated whether the trial judge appropriately applied CPR 3.4(2)(a). The appellate court concluded that the trial judge erred by delving into factual assessments—such as interpreting CCTV footage—to determine the unsustainability of the claim, a function reserved for summary judgment under CPR 24.2. Consequently, the Court of Appeal upheld the appellant's primary ground of appeal, setting aside the trial judge's order and remitting the case for further directions. However, the second ground concerning procedural fairness was dismissed.

Analysis

Precedents Cited

The judgment references several pivotal cases and procedural guidelines that frame the Court's reasoning:

• Swain v Hillman [2001] 1 All ER 91: Emphasizes assessing whether a claim has a 'realistic' prospect of success, distinguishing it from 'fanciful' claims.
• Harris v Bolt Burdon [2000] CPLR 9: Highlights scenarios where a claim may be deemed unwinnable and appropriate for striking out.
• Bridgeman v McAlpine-Brown (2000): Discusses the limitations of striking out in the presence of genuine disputes of fact requiring trial.
• Independents' Advantage Insurance Co Ltd v Cook [2003] EWCA Civ 1103: Explores the overlap between CPR 3.4(2)(a) and CPR 24.2, advocating for correct procedural application based on the claim's merits.
• St Clair v King [2018] EWHC 682 (Ch): Addresses procedural fairness in summary judgment applications tied to striking out claims.

Additionally, the Court extensively referred to the White Book—the authoritative guide on CPR—particularly the Practice Directions concerning rule 3.4 and summary judgments, to delineate the boundaries between striking out claims based on pleadings and evaluating claims on their merits.

Legal Reasoning

The Court of Appeal's reasoning rests on a fundamental distinction between CPR 3.4(2)(a) and CPR 24.2. Rule 3.4(2)(a) empowers the court to strike out claims that disclose no reasonable grounds based solely on the statement of case. In contrast, CPR 24.2 pertains to summary judgments, which evaluate the real prospects of a claim's success based on evidence presented.

In the present case, the appellate court determined that the trial judge improperly conflated these two rules by assessing the strength of the evidence (e.g., CCTV footage) to strike out the claim. Such an approach is characteristic of applying summary judgment rather than merely evaluating the pleadings for reasonable grounds. This misapplication directly impacts the claimant's QOCS protections, as striking out under CPR 3.4(2)(a) forfeits these protections, whereas summary judgment under CPR 24.2 does not.

Moreover, the appellate court underscored that while CPR 3.4(2)(a) considers the statement of case, it does not extend to a full evaluation of evidence, which should remain within the purview of summary judgment or trial proceedings. By erroneously performing a fact-finding exercise under rule 3.4, the trial judge overstepped procedural boundaries, justifying the appellate court's decision to set aside the order.

The judgment also addressed the interpretation of "bringing proceedings" under CPR 44.15, concluding that it should primarily refer to the initiation phase, not the continuation based on developing facts—reinforcing the need for procedural fidelity in applying CPR rules.

Impact

This judgment reinforces the necessity for precise application of CPR rules, especially distinguishing between striking out claims based on pleadings and evaluating claims on their merits. Key implications include:

• Protection of QOCS: Ensures that claimants in personal injury cases retain QOCS protections unless their claims fundamentally lack reasoned grounds at the initiation stage.
• Procedural Clarity: Encourages parties to utilize appropriate CPR rules—striking out under 3.4 versus summary judgment under 24—to align procedural actions with their strategic objectives without unintended cost consequences.
• Judicial Precaution: Courts are reminded to limit their evaluations under striking out applications to the statement of case, avoiding involuntary fact-finding that could undermine procedural fairness.
• Future Litigation: Provides a precedent for appellate courts to scrutinize lower courts' procedural applications, promoting consistency and adherence to established CPR guidelines.

Overall, the decision serves as a critical guide for both litigants and practitioners in navigating the procedural intricacies of striking out claims and seeking summary judgments, particularly within the sensitive context of personal injury litigation where cost implications are significant.

Complex Concepts Simplified

CPR 3.4(2)(a) – Striking Out Claims

This rule allows the court to dismiss a claim if the initial pleadings (the statement of case) do not present reasonable grounds for pursuing the claim. It focuses purely on the legal and factual basis as set out in the pleadings, without delving into detailed evidence or facts outside of what is formally presented.

Summary Judgment (CPR 24.2)

Summary Judgment enables the court to resolve a claim or specific issues within it without a full trial. This is applicable when one party clearly lacks a plausible chance of winning the case based on the evidence, thereby saving time and resources for both the court and the parties involved.

Qualified One-Way Costs Shifting (QOCS)

QOCS is a mechanism designed to protect personal injury claimants from being burdened with the defendant's legal costs if their claims fail. However, if a claim is struck out under specific grounds (like CPR 3.4(2)(a)), this protection is forfeited, making the claimant liable for the defendant’s costs in full.

Abuse of Court's Process

This occurs when a party uses legal procedures in a manner that is unfair or intended to harass the other party, such as filing frivolous claims or repeatedly pursuing baseless legal actions to waste the court’s time and resources.

Statement of Case

The statement of case is the formal document submitted by the claimant outlining the facts, legal grounds, and remedies sought. It serves as the foundation for the dispute and must clearly and coherently present the basis for the claim.

Conclusion

The Court of Appeal's decision in Kasongo v CRBE Ltd & Anor provides a crucial clarification on the application of CPR rules pertaining to striking out claims and summary judgments. By enforcing a strict separation between evaluating the reasonableness of a claim's foundation under CPR 3.4(2)(a) and assessing the merit of a claim under CPR 24.2, the judgment safeguards the QOCS protections for claimants while ensuring procedural fairness.

This ruling underscores the importance for litigants and their legal representatives to accurately identify and apply the appropriate CPR provisions based on the nature of their claims. Misapplying these rules, as initially done in this case, can lead to unintended cost liabilities and unjust dismissal of legitimate claims. Consequently, the judgment serves as a guiding precedent, promoting adherence to procedural correctness and reinforcing the protective frameworks within personal injury litigation.