Daniel Lightman QC & Stephanie Thompson put the case for a robust approach to costly side issues
In brief
- The costs of determining side issues raised in statements of case and evidence can often be disproportionate to their assistance in deciding a claim.
- Where one party raises potentially costly side issues, the other party should consider invoking the court’s case management powers: (i) to strike out the relevant passages from a statement of case; (ii) to exclude those issues from consideration; (iii) to prevent evidence on these issues being included in witness statements; and/or (iv) to prevent cross-examination on these issues at trial.
While the law reports are replete with examples of statements of case being struck out for failing to disclose reasonable grounds for bringing or defending a claim—or for abusing the court’s process, failing to comply with the CPR or inadequate particularisation —there are far fewer cases of parts of a pleading being struck out on the basis that their contents are ‘likely to obstruct the just disposal of the proceedings’ (CPR 3.4(2)(b)). Even rarer
