Prospects of Success

Royal Brompton Hospital NHS Trust v Hammond (NO 5) CA TLR 11 May 2001

On the first day of the hearing of a split trial on liability the judge expressed concern that the claimants’ expert evidence might not be capable of establishing the pleaded claims for breach of contract and negligence. There followed four days of submissions on the judge’s observation resulting in various parts of the claim being struck out on the grounds that on the balance of probability they were unlikely to succeed. In allowing the appeal, the court held the judge had erred in adopting the balance of probabilities as the standard of proof: that was the standard applicable after he had heard the evidence. For the purposes of striking out under CPR rule 24 the test was whether the claims had a real prospect of success. Applying that test, it was clear that all of the claims struck out did have a real prospect of success. The Court of Appeal also observed that it was not within the contemplation of the CPR for a form of trial to be conducted at the outset without permitting a trial proper to take place, which was contrary to the overall objectives of the rules.