Gilford Motor Co v Horne

This is an application by the Second to Seventh Defendants to strike out the claim against them and/or for reverse summary judgment. The application was made on 21 September 2021 although it was not ultimately listed for hearing until 11 October 2022.

On 5 October 2022, the day on which the applicants’ skeleton argument was due to be served, and 11 months after evidence in relation to the application had been exchanged, the Claimants served proposed draft Amended Points of Claim. At just after 1600 the same day, the Second to Seventh Defendants were notified that an application to amend had been issued, albeit not served, and that I would be asked to determine both applications at the forthcoming hearing.

On behalf of the Second to Seventh Defendants, Mr Lance Ashworth KC (who appeared with Mr Gregor Hogan) complained vociferously (and with no little justification) about the lateness of the application generally and, specifically, about short service in breach of the CPR which gave his clients no opportunity to file evidence in response. He therefore objected to any suggestion that I should determine the amendment application.

This led to a lively debate as to whether I could hear the strike out application in isolation without reference to the proposed amendments at all and, if not, whether I should adjourn both applications (a course to which Mr Ashworth objected) or whether it was possible to find a way of proceeding which enabled the court to make some headway but preserved the Second to Seventh Defendants’ right to object to the proposed amendments.

“The application to strike out was based on CPR 3.4(2)(a) which excludes consideration of the evidence. Although it is true that the Claimant seeks permission to amend the Particulars of Claim, the only basis upon which the application is resisted is that the amended statement of case would also be strikeable. There is no application for summary judgment dismissing the whole claim as having no real prospect of success on the facts.”