Practice and Procedure


PUBLISHED October 30, 2003

The Master had erred in law in failing to properly carry out a balancing exercise in determining whether a claim should be struck out.Consolidated appeals from the decision of Master Eyre of 29 May 2003 in which he ordered that the claimant's claim against Medical Sickness ('MS') and his writ against Finers ('F') be dismissed. The claimant worked as a dentist but in 1987, he developed a neck condition which was subsequently diagnosed as thoracic outlet syndrome. In December 1990 the claimant took early retirement on medical grounds. The claimant had a policy with MS that entitled him to a monthly stipend if he was suffering from an illness. Whilst the claimant was receiving monies from MS, he formed two companies in which he held half the shares and acted as Managing Director. The claimant received no remuneration from the companies. In 1990, F who were the claimant's solicitors, advised the claimant that he was not obliged to inform MS of the formation of the two companies and his involvement with them, as he derived no remuneration from them. In 1994 MS learnt of the existence of the two companies and the claimant's involvement with them and terminated the claimant's policy on the grounds that the non-disclosure of their formation had amounted to material non-disclosure under the claimant's policy and voided that policy. In October 1996, the claimant issued a writ against F alleging that they had wrongly advised him. He subsequently brought a claim against MS for the payment of the stipend. In 1999 the claimant and F agreed that proceedings between them would be stayed pending the claimant's case against MS. In October 2000 the claimant's claim was automatically stayed. In June 2002 the claimant applied to have his claim reinstated and the defendants cross-applied to have the respective claims struck out. On 29 May 2003 Master Eyre ordered that the claim form against MS and the writ against F be struck out as there could not be a fair trial of the issues involved. The claimant appealed and submitted that the Master had erred in law.HELD: The Master had erred in law as he had considered the application as an application for a relief from sanction under CPR 3.9 rather than as an application to strike out, which was the true application. That error had resulted in the onus being on the claimant rather than on the defendants to show why the claim and writ should be struck out. The correct approach was to apply Tracey Woodhouse (Widow & administratix of the estate of Mark Woodhouse, deceased) v Consignia plc : Martin Stelliou v Nicola Jane Compton (2002) 2 All ER 737 and to carry out a balancing exercise. On the facts of the present case that balance lay in favour of the claimant as it was possible for a fair trial of the issues involved.Appeal allowed.