Sean Drummond v Keolis Amey Docklands Ltd
[2023] EWHC 853 (KB)
Andrew Kasongo v CRBE Limited & Anor
28 March 2023
[2023] EWHC 1464 (KB)
High Court
Someone sued Transport for London after falling at work. A judge threw out the case early based on a video, but a higher court said the judge shouldn't have looked at the video before giving the person a proper chance to explain. The case will now start again.
Key Facts
- •Andrew Kasongo (claimant) appealed a judgment striking out his claim against Transport for London (TfL) (second defendant).
- •The accident occurred on August 30, 2018, at Kasongo's workplace.
- •Kasongo tripped and fell, claiming it was due to poles left in a loading bay.
- •TfL denied being the occupier of the loading bay and claimed Kasongo fell by tripping over a barrier.
- •CCTV footage showed Kasongo falling after his foot hit a barrier while climbing over it.
- •The first defendant admitted to being the occupier of the loading bay where the poles were placed.
- •The judge struck out the claim against TfL, finding no reasonable grounds for bringing the claim and ordering Kasongo to pay TfL's costs.
- •The appeal challenged the judge's reliance on CCTV evidence and the application of CPR 3.4(2)(a).
Legal Principles
CPR 3.4(2)(a) allows striking out a statement of case if it discloses no reasonable grounds for bringing the claim.
CPR 3.4(2)(a)
The court should generally focus on the statement of case itself when applying CPR 3.4(2)(a), avoiding mini-trials.
Swain v Hillman
There's an overlap between CPR 3.4 and CPR 24 (summary judgment), but CPR 3.4 focuses on the statement of case, while CPR 24 considers the merits and evidence.
CPR 3.4, CPR 24
In personal injury claims, QOCS protection is lost if the claim is struck out under CPR 3.4(2)(a) but not if summary judgment is granted under CPR 24.
CPR 44.15
The court can consider matters beyond the statement of case in CPR 3.4(2)(a) applications, but only if they are plainly unsustainable, such as contradictory evidence.
Notes to CPR 3.4
"Bringing proceedings" in CPR 44.15 refers to the commencement, not the continuation, of proceedings.
CPR 44.15
Outcomes
The appeal on Ground 2 (misapplication of CPR 3.4(2)(a)) was upheld.
The judge improperly considered evidence beyond the statement of case, conducting a mini-trial inappropriate for a CPR 3.4(2)(a) application. The appropriate procedure would have been a CPR 24 summary judgment application.
The appeal on Ground 1 (failure to hear the claimant) was dismissed.
While it would have been preferable to hear the claimant, the judge's findings on the CCTV evidence were not unreasonable.
The order striking out the claim against TfL was set aside.
The judge's reliance on the CCTV and his conclusions about TfL's occupancy were inappropriate for a CPR 3.4(2)(a) application.
The case was remitted to the County Court for further directions.
The improper application of CPR 3.4(2)(a) necessitates further proceedings.