It is a source of curiosity to US and Australian litigation lawyers that we in the UK have so little case law on pre-trial procedures. District Judge Solomon Dredd made an order at a Case Management Conference today which should lead to an interesting appeal.

He struck out the statements of case of both parties at a first CMC for failure to discuss electronic sources of documents. He drew attention to the obligation in this regard in Paragraph 2.A2 of the Practice Direction to Part 31 CPR, and to the power given by Part 3.4(2)(c) CPR to strike out where there has been “a failure to comply with a rule, practice direction or court order”.

He justified this draconian step by pointing both to the express rules and to the overriding objective. As to the rules, he said that there is a Practice Direction and it had not been complied with. The power to strike out was expressed in the clearest terms and had been provided for a purpose.

As to the overriding objective, he had, he said, ensured that the parties were on an equal footing by treating them both alike. His action would undoubtedly save expense. He had dealt expeditiously with the case and, by removing this case from the list he had taken account of the need to allot resources to other cases.

Both parties are likely to appeal. In a joint statement, they said; “This Practice Direction has only been in existence for three years. We do not consider that the overriding objective was intended to override our own objectives in, respectively, bringing and defending this claim”.

Asked to clarify what they thought the overriding objective was for, they said it was for other people.

In a rare move, Judge Dredd made a public statement to justify the position he had taken. “This court”, he said, “does not intend to be made a fool of in this way.”

1 April 2008

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