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Editorial: Striking Out Claims and the Right to a Fair Hearing - Aidan Ellis, Temple Garden Chambers

15/08/13. The initial indications, many of which have drawn comment in this journal, are that the Courts are using the new emphasis on proportionality together with the narrower approach to relief from sanctions in CPR 3.9 to impose significant sanctions including strike out for breaches of the procedural rules and Court orders. Finding little assistance from the amended Civil Procedure Rules, Claimants may turn to the European Convention on Human Rights in search of some protection.

Article 6(1) provides that in the “determination of his civil rights” everyone is entitled to a “fair and public hearing.” Plainly this suggests a right of access to the courts to determine civil claims, which could potentially be infringed by an overly zealous approach to striking claims out.

However, the European Court of Human Rights concluded in Ashingdane v United Kingdom (28 May 1985) that the right of access to the courts is not absolute and that States may impose such regulations as accord with the needs and resources of the community and individuals. Such limitations will not be compatible with Article 6(1) unless they pursue a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. In a different context, these findings were summarised with apparent approval by the Supreme Court in Fairclough Homes Ltd v Summers [2012] UKSC 26.

The amended Rules were enacted so as to protect the needs and resources of the community as a whole. Therefore it may well be accepted that they pursue a legitimate aim. In appropriate cases, however, there is scope for Claimants to fortify their position by arguing that striking out a claim is a disproportionate interference with their right of access to the Court. Where a fair hearing remains possible and the breach is relatively minor, such arguments are likely to carry particular weight.

Aidan Ellis
Temple Garden Chambers 

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