Is Part 24 CPR Consistent With Right to a Fair Trial?

17 Aug

TITLE

Are applications for summary judgment under part 24 of the Civil Procedure Rules consistent with the need to have a fair trial under article 6(1) of the European Convention on Human Rights?

ABSTRACT

It is questionable whether summary judgment under Part 24 of the Civil Procedure Rules is consistent with Article 6(1) of the 1950 European Convention on Human Rights. This article will examine what summary judgment is and how it is applied under CPR, before identifying areas of potential conflict between CPR Part 24 and Article 6(1). For example, judgment without a full trial under CPR Part 24 may create a potential conflict with Article 6(1) by denying a litigant’s right of access to court while disposing of the case. This article will distinguish between ‘effective denial of access to court’ and ‘denial of effective access to court’ to determine if the potential for the right to a fair trial is undermined by the summary judgment procedure. This article will also analyse cases that are concerned with the application of CPR Part 24 and cases that are concerned more generally with the impact of the right of access under Article 6(1) on the CPR. Finally, this article will focus on whether the potential for denial of effective access to court under the summary judgment procedure is a violation of the implied right of access under Article 6(1), and will explore the possibility that the overriding objective of the CPR to enable courts to deal with cases justly involves considerations similar to legitimacy of aim and proportionality.

INTRODUCTION

This article seeks to answer the question of whether applications for summary judgment made under Part 24 of the Civil Procedure Rules (‘CPR’) are consistent with the need to have a fair trial under Article 6(1) of the 1950 European Convention on Human Rights (‘ECHR’). In answering this question, it will first be necessary to look at what summary judgment is and how it is applied for under the CPR. It will then be necessary to look at what the relevant aspects of the requirement to have a fair trial entail under Article 6(1). Once this has been done it will then be possible to identify any areas of potential conflict between CPR Part 24 and Article 6(1).

Summary judgment and the right to a fair trial

Entering summary judgment is used where a purported claim or defence can be shown to have no real prospect of success and there is no other compelling reason why the case should be disposed of at a full trial.[1] Among other things, the summary judgment procedure enables a claimant or defendant to obtain judgment at an early stage without the time and expense involved in proceeding to a full trial.[2] Perhaps the most high-profile recent example of this was in the case of HRH Duchess of Sussex v Associated Newspapers Ltd.[3] In February 2021, the High Court granted the Duchess of Sussex summary judgment in respect of her privacy claim and the majority of her copyright claim against Associated Newspapers (known for publishing The Daily Mail, The Mail on Sunday and Mail Online in the UK). A court will only grant summary judgment against a defendant if it considers that it has no reasonable prospect of successfully defending a claim and this decision was upheld when Associated Newspapers lost its appeal against this ruling.

Article 6(1) of the ECHR provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” Although Article 6(1) does not provide an express right of access to court (i.e. a right to actually get to court, in order to have the ‘fair trial’ promised by the Article), the European Court of Human Rights (‘ECtHR’) held in the seminal case of Golder v UK,[4] that such a right is implicit in the Article’s guarantee of a right to a fair trial. Judgment at an early stage without a full trial under CPR Part 24 therefore gives rise to a potential conflict with Article 6(1), since the judge in such a case has competing obligations to dispose of a case without a full trial but to ensure that, in so doing, a litigant’s right of access to court as secured by this Article (and incorporated into UK law under the Human Rights Act 1998) is not thereby breached.

It should be noted that even where summary judgment is granted, both the applicant and the respondent will have had access to court, however minimal. It will therefore be necessary for the purposes of this article to distinguish between ‘effective denial of access to court’ (where an individual has not had access to court at all) and ‘denial of effective access to court’ (where an individual has had access to court but it has not been fully effective).[5] The former circumstance of effective denial of access to court – which does not appear to apply to summary judgment, where there has been access to court, however minimal – may be argued to be a clear infringement of the right of access to court. The latter circumstance of denial of effective access to court – which does appear to apply to summary judgment – may also be argued to be a potential infringement of the right of access to court or may raise an issue in relation to whether the trial has been fair.

The potential for the right to a fair trial to be undermined by the summary judgment procedure has excited debate among academics. On one side Sime states, by reference to Three Rivers DC v Bank of England (No. 3) (Summary Judgment),[6] that applications for summary judgment have been said to be consistent with the need to have a fair trial under Article 6(1).[7] On the other, Dwyer considers the discretion of a judge, under CPR Part 24, to issue summary judgment to be an area of the CPR that appears a likely candidate for an Article 6 challenge on the basis that “… the court may decide a claim, or a particular issue within a claim, without a trial, and without necessarily receiving all the evidence. Summary judgment may therefore breach a number of express and implied rights arising under Article 6.”[8] In between, Gambrill notes the need for summary judgments made under CPR Part 24 to meet the requirements of Article 6(1) without drawing a conclusion on one side of the argument or the other.[9]

Aspects of the right to a fair trial to be explored

An analysis will be undertaken both of cases concerned with the application of CPR Part 24 and cases that are concerned more generally with the impact of the right of access under Article 6(1) on the CPR. Consideration of the case law of national courts in this country may be helpful in determining whether summary judgment is justifiable and therefore does not infringe an individual’s right of access to the court under Article 6(1). Where applicants claim violation of their rights of access to court or to a fair trial under Article 6(1) they will bring their case before the ECtHR once they have exhausted national remedies. Consideration of ECtHR case law is therefore essential, since this is likely to provide useful guidance on how the ECtHR would approach an application that claims that summary judgment is in violation of Article 6(1). It will be demonstrated by reference to the case law of the ECtHR that, in contrast to the absolute right to a fair trial, the right of access to court is not absolute. The potential justifications for summary judgment will be considered in determining whether the procedure is fair. For example, the possibility that the overriding objective of the CPR to enable courts to deal with cases justly[10] involves considerations similar to legitimacy of aim and proportionality will be explored.

This article will focus on consideration of whether the potential for denial of effective access to court under the summary judgment procedure is a violation of the implied right of access under Article 6(1). From a basic reading of the Article, however, it is clear that this is only one aspect of the right to a fair trial. What is also guaranteed is a ‘public hearing’, ‘within a reasonable time’, before ‘an independent and impartial tribunal established by law’. For the purposes of this article, it is considered that CPR Part 24 is consistent with all of these elements. As will be demonstrated, a summary judgment hearing is a public hearing,[11] there is a duty on the parties for it to take place at the earliest opportunity,[12] and it will take place before an independent and impartial court of law.[13]

The rest of this article is divided into sections, beginning with consideration of what summary judgment is and how it is applied for, the functions and features of summary judgment, the standard of proof, whether a summary judgment hearing can be considered a full trial, and domestic cases where summary judgment has had an impact. The requirement to have a fair trial will then be explored, including the applicability of this requirement to the summary judgment procedure, the margin of appreciation, and whether there is an interference with any article rights in this context. Finally, the question of whether summary judgment is consistent with the right to a fair trial will be addressed by an analysis of CPR Part 24 in the context of Article 6(1).

1. WHAT IS SUMMARY JUDGMENT AND HOW IS IT APPLIED FOR?

A. The function and features of summary judgment

CPR Part 24 deals with applications for summary judgment. Entering summary judgment is used where a purported claim or defence can be shown to have no real prospect of success and there is no other compelling reason why the case should be disposed of at trial.[14] Summary judgment applications are dealt with at oral hearings, which normally take place before a Master or a district judge.[15] CPR 24 Practice Direction (‘PD’) 5.1 provides that the range of orders available on a summary judgment application include judgment on the claim, striking out or dismissal of the claim, dismissal of the application and a conditional order. Summary judgment may be applied for by either party or used by the court of its own initiative and may be used for determination of some rather than all of the issues in a case.[16] It should be emphasised that summary judgment is for cases where the defendant does respond[17] and one side believes there is no real merit in the other’s case.

It is often necessary or desirable to seek orders or directions from the court in advance of the final, substantive hearing of a case. For example, in cases where the defendant fails to defend, it is usually possible to enter a default judgment under CPR Part 12. Also, the court can use its power to strike out the whole or any part of a statement of case under CPR Part 3 for non-compliance with a rule or court order. Entering summary judgment is a procedure that is related to striking out – indeed CPR 3A PD 1.7 recognises that there will be cases where applications for summary judgment and striking out may be sought in the alternative. The crucial difference between the two procedures is that in an application for striking out, the court is concerned only with the statement of case, while in the case of summary judgment the court also looks at the underlying evidence (this point was made clear in Swain v Hillman[18] by Lord Woolf’s comment that “… under rule 3.4, unlike rule 24.2, the court generally is only concerned with the statement of case which it is alleged discloses no reasonable grounds for bringing or defending the claim”).[19] The opportunity for access to court, in the context of CPR Part 24, is therefore dictated by the strength of a litigant’s case, rather than merely by the degree of compliance with rules and court orders. Applications for default judgment, striking out and summary judgment are all sought in advance of the final, substantive hearing of a case, when all of the relevant law, facts and evidence are considered.

In the absence of summary judgment, a claimant or defendant could conceivably go through the motions in order to delay the time when judgment may be entered. Summary judgment, therefore, has an important function: that of stopping weak cases from proceeding, thereby saving unnecessary time and expense for the parties and the court. As well as saving the time and expense of a trial where this is unnecessary, a further important feature of the summary judgment procedure is the fact that it is aimed at encouraging speedy disposal of a case. This is illustrated by the fact that under CPR 26 PD 5.3(1), a party intending to make such an application should do so at an early stage in proceedings i.e. before or when filing his allocation questionnaire. This provision puts a Respondent on notice at the earliest opportunity that the Applicant considers his case to be so weak that an early judgment may be obtained against the Respondent without a full trial, thereby allowing him to prepare accordingly (including, if appropriate, the Respondent dropping his claim or defence altogether at this stage without incurring further time or expense). In addition, under CPR 23A PD 2.7 there is a general obligation that every application should be made as soon as it becomes apparent that it is necessary or desirable to make it.

B. Standard of proof

(i) ‘Real prospect of success’

It will be demonstrated that the respondent to summary judgment has the additional protection of a lower standard of proof than that required at a full trial. Under CPR Part 24 the test in a summary judgment application is whether the Respondent’s case has a real prospect of success or there is a compelling reason for a trial.[20] The question of whether there is a real prospect of success is not approached by applying the balance of probabilities standard of proof required at trial. In Swain Lord Woolf MR stated that the word ‘real’ directed the court to see whether there was a ‘realistic’, as opposed to a ‘fanciful’, prospect of success.[21]

This raises the question of when it might be considered that a ‘real prospect of success’ exists. O’Hare and Browne state that “…the respondent to a summary judgment application is not required to prove his case to a very high standard”.[22] To illustrate this, it may be helpful to set out some examples:

“On an application for summary judgment by a claimant, the defendant may seek to show a defence with a real prospect of success by setting up one or more of the following:

(a) a substantive defence, e.g. volenti non fit injuria, frustration, illegality, etc.;

(b) a point of law destroying the claimant’s cause of action;

(d) further facts answering the claimant’s cause of action, e.g. an exclusion clause, or that the defendant was an agent rather than a principal.”[23]

When might there not be a real prospect of success? By reference to Three Rivers, a claim or defence may be fanciful where it is entirely without substance, or where it is clear beyond question that the statement of case is contradicted by all the documents or other material on which it is based. This might also be the case where there are no primary facts to support the alleged defence (P&S Amusements Ltd v Valley House Leisure Ltd);[24] the defence consists entirely of admissions or bare denials (Broderick v Centaur Tipping Services Ltd);[25] and where a defence which might have had a real prospect of success is destroyed by clear, written admissions made by the defendant (ED&F Man Liquid Products Ltd v Patel).[26] On an application for summary judgment in a claim for a discretionary remedy, under CPR Part 24.2 the court needs to approach the application in two stages. First, it needs to decide whether the applicant has shown the respondent has no real prospect of mounting a successful defence to the facts on which the claim is based and then, if the applicant succeeds on that, the second stage is to exercise the equitable discretion whether to grant the remedy (Abaidilinov v Amin).[27]

The cases referred to above are instructive in the context of the meaning of ‘no real prospect of success’. The comments of Hobhouse LJ in Three Rivers make it clear that the judge, in assessing the prospects of success of the relevant party, is to take a panoramic view of the application and the evidence before him: “… it is the assessment of the whole that is called for. A measure of analysis may be necessary but the ‘bottom line’ is what ultimately matters.”[28] It is equally clear from the relevant case law that the burden of proving that there is ‘no real prospect of success’ rests on the party who is applying for summary judgment. In ED&F Potter LJ said that “the overall burden of proof rests upon the claimant to establish that there are grounds for his belief that the respondent has no real prospect of success.”[29] While it may be enough, in order to defeat an application for summary judgment, for a defendant to demonstrate that his case has a prospect of succeeding, in Apvodedo NV v Collins[30] Henderson J reiterated that “… the burden on the defendant is at most an evidential one. The overall burden of proof rests on the claimant to establish, if it can, the negative proposition that the defendant has no real prospect of success…”[31] Finally, it has been established that, if determination of an issue before trial only has the consequence that there is one fewer issue for trial, then it is not suitable for summary judgment (ADL Advanced Contractors Ltd v Patel).[32]

(ii) ‘A compelling reason for a trial’

Even if an application for summary judgment is not defeated under the ‘real prospect of success’ limb, a Respondent may still be able to show that there is ‘a compelling reason for a trial’. Again, this raises the question of when it might be considered that a compelling reason for a trial exists. Again, it may be useful to set out some examples in this context:

“Reasons for going to trial include:

(a) The respondent is unable to contact a material witness who may provide material for a defence.

(b) The case is highly complicated such that judgment should be given only after mature consideration at trial.

(d) The applicant has acted harshly or unconscionably, or the facts disclose a suspicion of dishonesty or deviousness on the part of the applicant, such that judgment should be obtained only in the light of publicity at trial…”[33]

On the basis of the examples as set out above, this appears to be a very wide-ranging test, which apparently has no formal limits prescribed either by case law or the CPR. However, it should be noted that in Commerz Real Investmentgesellschaft mbh v TFS Stores Ltd,[34] Chief Master March commented that the addition of the word “compelling” was clearly intended to limit the very wide discretion that previously applied under the pre-CPR rules. The circumstances that will be regarded as providing evidence that there is some other compelling reason for a trial are not, therefore, limitless. For example, in Phonographic Performance Ltd v Planet Ice (Peterborough) Ltd,[35] seeking an adjournment to negotiate with the claimant was not regarded as a compelling reason for trial. In Beiersdorf AG v Ramlort Ltd[36] the claimants’ failure to make certain inquiries so that the defendants could mount such defence as the investigations might have disclosed, was also not regarded as a compelling reason why the case should be disposed of at trial. O’Hare and Browne state, by reference to the case of James E McCabe Ltd v Scottish Courage Ltd,[37] that “The fact that an application for summary judgment is made very late in the proceedings is not by itself a compelling reason why there ought to be a trial.”[38] In this case summary judgment was granted to a defendant on an application under CPR Part 24 that had been made only four months before the date already fixed for trial.

C. Can a summary judgment hearing be considered a full trial?

Identifying at the outset whether a summary judgment hearing can be considered a full trial is useful because at a summary judgment hearing an individual has had access to court but, because it has not been fully effective, there might still be a potential infringement of the right of access to court or an issue in relation to whether the trial has been fair. The concern that summary judgment hearings do not amount to trials is a matter that appears to have exercised both practitioners and academics. Caplin emphasises the importance of a trial in any legal system: “The paradigm of legal redress in action is the trial: A hearing, live witnesses, cross-examination, wigs, gowns, all the trimmings”.[39] This sentiment is echoed by Le Sueur: “The ideal which underlies fundamental rights of access to justice is the fully-argued case before a judge, with ample opportunities to adduce all relevant evidence, to challenge the evidence put forward by the other party and to make submissions as to the law”.[40] It therefore follows (states Le Sueur) that “Because trials are the ideal, summary determination of cases without a full hearing on the merits, are also less than the ideal.”[41] Lord Hope in Three Rivers provides a definition of the trial ‘ideal’: “The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence.”[42]

The issue that it is logical to explore at this stage, therefore, is whether the features of a trial as identified by Caplin, Le Sueur and Lord Hope are present or absent in summary judgment hearings. The range of orders available on a summary judgment application includes judgment on the claim, striking out or dismissal of the claim, dismissal of the application and a conditional order. This raises important issues under Article 6(1), such as whether deciding a case through summary judgment interferes with an individual’s right to a fair trial because, if successful, a claim would be disposed of without a full trial. It may be argued in any case that the right to a fair trial does not require a full trial: what is central to Article 6(1) is the express guarantee of a fair trial and the implied right of access to court. Another issue is whether a summary judgment hearing can nonetheless be considered a ‘mini-trial’, which may comply with the full procedural requirements of Article 6(1), or may not because it is not a full trial. Henderson J in Apvodedo describes a mini-trial, as distinct from a full trial, as a trial “…on the documents, without discovery and without oral evidence”[43] (there is no suggestion that any of the other elements of a civil trial, such as the balance of probabilities standard of proof, are missing in a mini-trial). In not holding a full trial, the issue that arises is what aspects of the right to a fair trial are potentially undermined through the summary judgment procedure.

In addition, there are several features of summary judgment procedure that do not seem to bring it within the strict description of a full civil trial. For example, a different, lower standard of proof applies to summary judgment applications than for full civil trials. Because under CPR Part 24 the test of whether the Respondent’s case has a real prospect of success is not approached by applying the harder, balance of probabilities standard of proof required at trial, it is potentially easier for a Respondent to defeat an application at a summary judgment hearing than for a Defendant to defeat a claim at a full civil trial. The difference between summary judgment applications and trials is further highlighted by the fact that, even if an application for summary judgment is not defeated under the ‘real prospect of success’ limb, a Respondent may be able to do this by demonstrating that there is ‘a compelling reason for a trial’, which appears to be a very wide-ranging test, as illustrated at 1.B(ii).

As distinct from full trials, summary judgment hearings take place without the benefit of pre-trial processes such as discovery and trial processes such as cross-examination of witnesses.[44] In addition, the fact that a party intending to make a summary judgment application should do so at an early stage in proceedings is a feature that is more consistent with an interim hearing than a full trial, which will only take place after all the evidence has been filed and served. However, the fact that for summary judgment the period of notice that an Applicant must give a Respondent is 14 clear days[45] does distinguish this kind of application from most other types of interim hearing, for which there is usually a notice period of 3 clear days.[46]

Case law seems to support the categorisation of summary judgment as a type of hearing that is distinct from a mini or full trial. This was perhaps made most clear in Swain, where Lord Woolf stated: “the proper disposal of an issue under [CPR] 24 does not involve the judge conducting a mini trial.”[47] In the same case Lord Woolf said that summary judgment applications have to be kept within their proper role: they are not meant to dispense with the need for a trial where there are issues which should be investigated at the trial.[48] If the Respondent’s case has some prospects of success, summary judgment should be refused. In ED&F Potter LJ stated that, under CPR Part 24: “where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial.”[49] Summary judgment hearings should therefore not be allowed to degenerate into mini-trials of disputed facts; they are simply summary hearings to dispose of cases where there is no prospect of success. A court will thus not normally award summary judgment in favour of a lawyer who is sued in professional negligence, for instance, since such cases invariably involve disputed factual issues, so it is rare for a court to find there is no real defence once liability is denied (Sciortino v Beaumont).[50]

The cases on summary judgment seem to suggest that one of the reasons why such applications cannot be regarded as trials is because a different standard of proof applies to summary judgment applications than for full civil trials. Under CPR Part 24 the first limb of the test in a summary judgment application is whether the Respondent’s case has a real prospect of success and this question is not approached by applying the balance of probabilities standard of proof required at trial. As stated by Lord Woolf, the word ‘real’ directs the court to see whether there is a realistic, as opposed to a fanciful, prospect of success.[51] The White Book, the guidebook of civil justice practitioners, makes clear this distinction between full and mini-trials and summary judgment applications by stating: “At a trial, the criterion to be applied by the court is probability: victory goes to the party whose case is the more probable (taking into account the burden of proof). This is not true of a summary judgment application.”[52] Lord Hobhouse in Three Rivers repeated this view: “The criterion which the judge has to apply under [CPR] Part 24 is not one of probability; it is absence of reality.”[53]

It seems clear that summary judgment hearings lack a number of the most crucial aspects of full, and even mini, trials. Are concerns about access to court in the context of summary judgment due to the absence of a trial therefore justified? This is an issue that is best explored by reference to domestic cases to determine whether the absence of the trial ‘ideal’ has had an impact.

D. Domestic cases where summary judgment has had an impact

It seems appropriate, in view of the academic opinions cited above, to now look at UK case law to ascertain the impact that the granting or refusal of summary judgment has had, and in particular what rights have been affected, adversely or otherwise, in the process. Lord Hope made the risks of summary judgment plain in Three Rivers. This was a case that concerned depositors who had lost money following the collapse of the Bank of Credit and Commerce International. The depositors appealed against a decision upholding an order striking out their action against the Bank of England alleging misfeasance in public office. The Bank argued that the claim should be struck out due to the inadequacy of the pleadings. The appeal was allowed. In treating the Bank’s application for the claim to be struck out as an application for summary judgment, Lord Hope stated that there was a risk of pre-judging the claim if the court in determining its prospects of success prior to the hearing of evidence, took into account the plausibility or improbability of the case against the Bank as regulator.[54] The Bank’s application for summary judgment was consequently rejected by Lord Hope on the basis that it would only be right to strike out the whole claim if it could be said of every part of it that it has no real prospect of succeeding, and that could not be said in this case.[55]

The risk made plain in Three Rivers – that of the court pre-judging a claim in determining its prospects of success without a full trial – is a genuine matter of concern with regard to the summary judgment procedure. If CPR Part 24 did not exist then there would be no such risk (obviously other similar procedures such as striking out and applying for default judgment would also have to not exist). By extension, the benefit of CPR Part 24 not existing, in this context, would be that appeals on similar grounds to that in Three Rivers would not take place and the time and money of all concerned would be saved. This does, though, have to be weighed up against the fact that the time and money involved in going to court to decide a claim at a full trial would of course not be saved.

This counter view is to some extent expressed in ICI Chemicals & Polymers Ltd v TTE Training Ltd,[56] a case, in contrast to Three Rivers, which concerned an appeal against the decision to dismiss an application for summary judgment. This appeal was also allowed, on the basis that an application for summary judgment should have been granted where a short point of law or construction arose. This case is instructive both in relation to when summary judgment is appropriate and when it is inappropriate. Moore-Bick LJ stated that if the court was satisfied that it had before it all the evidence necessary for the proper determination of the question and that the parties had had an adequate opportunity to address it in argument, it should decide that point. Moore-Bick LJ succinctly justifies the use of summary judgment for early determination of a claim in this way as follows: “if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better.”[57]

Even though the appeal was allowed in ICI Chemicals, Moore-Bick LJ also sounded a note of warning about the use of the summary judgment procedure in stating that where it was possible to show that other evidence was likely to exist that would put documents in another light at trial it would be wrong to grant summary judgment.[58] In the circumstances of this particular case there was no basis on which the judge could be satisfied that any evidence bearing on the construction of the new agreement was likely to emerge at trial and for this reason the application for summary judgment should have been granted at first instance.

These two cases alone perhaps illustrate a concern expressed by Mummery LJ in Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd:[59] “In my experience there can be more difficulties in applying the ‘no real prospect of success’ test on an application for summary judgment… than in trying the case in its entirety.”[60] That the test is not an easy one to get right is perhaps illustrated by the successful appeals in both Three Rivers and ICI Chemicals. Mummery LJ points to several ways in which a judge at a summary judgment hearing is at a disadvantage in determining the prospect of success of an application as compared with a judge at a full trial. For example, a judge at a summary judgment hearing does not have the assistance of pre-trial procedures, such as disclosure of documents, and does not have the benefit of trial procedures, such as cross-examination, in order to test the case and the evidence before him.[61] Mummery LJ also makes the point that “The decision-maker at trial will usually have a better grasp of the case as a whole, because of the added benefits of hearing the evidence tested, of receiving more developed submissions and of having more time in which to digest and reflect on the materials.”[62] In addition Mummery LJ states that “The outcome of a summary judgment application is more unpredictable than a trial. The result of the application can be influenced more than that of the trial by the degree of professional skill with which it is presented to the court…”[63]

The concerns expressed by Mummery LJ with regard to the summary judgment procedure require serious consideration. Is it fair, under Article 6(1) and in a more general sense, that a party’s case should be disposed of without the benefits of more rigorous testing of evidence, more detailed submissions and the increased amount of time, which are all available at trial? The particular concern expressed by academics and in case law, in a nutshell, seems not to relate to parties not having had access to court at all (i.e. effectively being denied access to court) but that there may have been restrictions on the access that they have had to court (i.e. the denial of effective access to court). This is an issue that will be explored in greater depth in the context of Article 6(1).

2. WHAT IS THE REQUIREMENT TO HAVE A FAIR TRIAL UNDER ARTICLE 6(1)?

A. The applicability of Article 6(1) to the summary judgment procedure

An applicant who argues that his Article 6(1) rights have been violated due to the summary judgment procedure must first show that Article 6(1) is applicable. It therefore appears appropriate to ask what exactly the right to a fair trial under Article 6(1) entails and when it is applicable. The ECHR protects the fundamental civil and political rights and freedoms of all members of the signatory states. On 2 October 2000, the Human Rights Act 1998 (‘HRA’) came into force, incorporating key parts of the ECHR into UK law. All public bodies, including the courts, now have a duty to act in accordance with the ECHR,[64] and individuals who have their rights infringed have a remedy in the domestic courts. Also, the courts must construe all legislation, so far as possible, in a way which is compatible with the rights set out in the ECHR.[65] If it is not possible to interpret the legislation in accordance with these rights, then the legislation should be enforced as it stands and a declaration of incompatibility issued.[66] In interpreting the extent of the rights protected in the HRA, the decisions of the ECtHR will be taken into account by the courts.[67] Despite the intensifying debate at national level in recent times concerning the appropriate role of the ECtHR, it has been said that the coming into force of the HRA, giving further effect to the ECHR in national law, means that for the time being the UK has much more effective protection of human rights through law than it had previously.[68]

In relation to the right to a fair trial, Article 6(1) of the ECHR provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” On reading these words it appears clear that the first thing that Article 6(1) guarantees to everyone is the entitlement to a ‘fair’ hearing and that every word that follows in the remainder of the Article is an ingredient of a fair hearing. It also appears self-evident from the wording of the Article that for there to be a fair trial, it is necessary for an actual hearing to take place. Golder, the case in which it was stated that the basic principle underlying Article 6(1) is that civil claims must be capable of being submitted to a judge for adjudication, seems to support the idea that for there to be a fair trial, there must be an actual hearing. In the court’s judgment, “Article 6(1) secures to everyone the right to have any claim relating to his civil rights and obligations brought before a court or tribunal. In this way the Article embodies the ‘right to a court’, of which the right of access, that is the right to institute proceedings before the courts in civil matters, constitutes one aspect only.”[69]

This right to a court extends only to ‘contestations’ (disputes) over (civil) ‘rights and obligations’ that can be said, at least on arguable grounds, to be recognised under domestic law.[70] The ECtHR gave guidance as to the meaning of this phrase in Ringeisen v Austria,[71] and was prepared to take a reasonably flexible approach – in the court’s view it was not necessary that both parties to the proceedings were private persons, provided the result of the proceedings were decisive of private rights and obligations.[72] Summary judgment is not given due to the absence of a civil right or obligation – that is a matter for the striking out procedure under CPR Part 3. Summary judgment is concerned rather with those disputes where there is a legal basis for a civil right or obligation but, as set out at 1.B, where there is no real prospect of success on the facts and no other compelling reason for a trial. There therefore seems no doubt that an application for summary judgment made under CPR Part 24 is concerned with a dispute over a civil right or obligation recognised under domestic law. Having established that Article 6(1) is applicable, an individual who seeks to argue that there has been a violation of his Article 6(1) rights must then show that there has been a state interference with that right. The issues relevant to these considerations will be discussed in the next sections.

B. The margin of appreciation

It was concluded in 1.D that a potential concern with regard to the summary judgment procedure, both under Article 6(1) and more generally, related to the possibility of denial of effective access to court rather than effective denial of access to court. What then is the conflict between the restrictions on access parties have had to court under CPR Part 24 (i.e. the disposal of a party’s case without the benefits available at trial) and Article 6(1)? In relation to this issue it will be demonstrated that, while the express right to a fair trial guaranteed by Article 6(1) is absolute, the implied right of access to court for a hearing may be qualified. It is first necessary, however, to understand the importance of the concept of the margin of appreciation in this context. The margin of appreciation is defined as follows: “The central idea of the margin of appreciation is that there are some areas where different states may legitimately take different approaches to particular rights.”[73] Foster explains the approach of the ECtHR under the margin of appreciation as follows: “[The European Court] is prepared to accept that in certain cases it would be wrong for it to interfere with the laws and decisions of a member state when those laws or decisions have a proper legal basis, fulfil a legitimate aim, and where the domestic authorities have made a genuine and reasonable effort to balance the Convention right with those other rights or interests.”[74]

Simply put, therefore, the margin of appreciation means allowing a “measure of understanding or leeway”[75] – the principle that individual states have a certain measure of autonomy under the ECHR and that there are some areas where different states may legitimately take
different approaches to Convention rights as long as there is some
justification for this. In this sense the margin of appreciation can be seen as recognition by the ECtHR that national courts or legislatures may be best placed to protect Convention rights at the domestic level. This point was made express in Handyside v UK,[76] where the ECtHR stressed that the machinery of the Convention is subsidiary to the national systems safeguarding human rights.[77] For the sake of completeness it should be mentioned that the margin of appreciation doctrine has attracted criticism as well as support in relation to its legitimacy, application and effect (critics of it include academics such as I de la Rasilla del Moral and judges such as Lord Lester). Much of the criticism of the doctrine relates to its use in relation to articles of the ECHR other than Article 6(1), however, and the application of the doctrine is accepted in the authorities cited in this section as far as the right of access to court under Article 6(1) is concerned.

The application of the margin of appreciation doctrine, however, is not random. In practice there do appear to be guidelines determining the extent of the discretion which the ECtHR will allow to each member state under the margin of appreciation, which are defined as follows: “…the status and importance of the right in question, whether the restriction infringes the enjoyment of entirely private rights, and whether there is a discernible common European standard that the Court is able to apply…”[78] Hoffman and Rowe appear to agree with this view, stating: “…it should be emphasised that states will not be given a margin of appreciation on all issues, only where the European Court [of Human Rights] considers that there is a genuine difference of opinion across Europe on a moral issue and/or the right in question is one which permits different interpretations to be applied.”[79] It therefore seems that much will depend on both the nature of the Convention right in question and its interpretation.

Is Article 6(1) a right to which different interpretations may be applied? The answer to this question depends in large part on whether the right provided by Article 6 (i.e. the right to a fair trial) is regarded as an absolute right or whether it is subject to any qualification. In the ECHR Articles 8 to 11, for example, are expressly qualified – grounds on which they can be limited are set out in the Convention itself. Article 6 does not appear to be a qualified right, in the sense that it does not contain the qualifying paragraph evident in Articles 8 to 11. Hoffman and Rowe, however, make the point that “…some rights under Article 6 may be qualified, when the qualification is proportionate to its aim, in the circumstances of the particular case.”[80] The Privy Council addressed the question of whether restrictions can be placed on Article 6 rights in Brown v Stott.[81] In this case it was held that, although the right to a fair trial is an absolute right that cannot be compromised, there might be exceptional cases in which the defendant’s procedural rights have to give way to the greater interests of the public that justice be done.[82] It therefore seems clear that qualification of the rights implied under Article 6(1) is acceptable in certain circumstances and that the right of access to court is not absolute. The two questions that then naturally arise are whether there is any interference with the right of access as far as summary judgment is concerned and, if so, whether this is justified. In this context the ECtHR has provided some helpful guidance.

C. Is there an interference with Article 6(1) rights?

If the conclusion reached in 1.D is accepted, then there is an argument on the basis of domestic case law that in the summary judgment procedure there is an absence of some of the main ingredients of a trial. Does this constitute an interference with an individual’s rights under Article 6(1)? Whilst it may be a likely candidate for challenge, the question of whether the summary judgment procedure specifically constitutes a state interference with an individual’s Article 6(1) rights does not appear to have been considered by the ECtHR. In its most recent guide on Article 6 the ECtHR seems to suggest, in relation to the applicability of Article 6 to proceedings other than the main proceedings, that Article 6 may apply to summary judgment to some extent.[83] This suggestion comes from the assertion in the guide by reference to case law that Article 6 is applicable to interim measures that pursue the same purpose as the pending main proceedings[84] and can be considered effectively to determine the civil right or obligation at stake.[85] This guidance is therefore of some relevance in the context of CPR Part 24, although it is debatable to what extent this description of ‘interim measures’ in the guide actually applies to summary judgment proceedings and the question of when Article 6 will thereby be infringed is not dealt with expressly.

The analogous strike out procedure has, however, been considered specifically by the ECtHR. In this context the relevant case law seems to suggest that the issue of whether an applicant’s right of access to a court has been violated is limited to the question of whether there has been access in fact or whether the access has been prevented. Where there has been access in fact, the issue is then whether the proceedings before the national court have complied with the standard requirements such as fairness, timeliness and so on expected of a hearing – i.e. the quality of access to court. In this context it is instructive to consider cases where the principles underlying Article 6(1) were considered by the ECtHR. In the case of Osman v UK,[86] the ECtHR held that a procedure akin to summary judgment – striking out by the Court of Appeal of the applicant’s statement of claim under CPR 3.4 – was a breach of the Article 6(1) right of access to a court. In the subsequent judgment in Z v UK,[87] however, the ECtHR affirmed that striking out a claim was not inherently contrary to the right of access to a court.

Z is the later case and will now be considered in more detail. Having established that Article 6(1) was applicable in the Z case, the ECtHR proceeded to examine whether there had been compliance with the procedural requirements of Article 6(1). The ECtHR established that there had, indeed, been access to the national courts to determine the existence of the right. Moreover, the striking out proceedings concerned had complied with the procedural guarantees afforded by Article 6(1). According to the ECtHR, the applicants could not claim that they had been “deprived of any right to a determination on the merits of their negligence claims.”[88] They had indeed had ‘access’ to determine the existence of the right in their particular situation. Moreover, their claims had been “properly and fairly examined in light of the applicable domestic legal principles concerning the tort of negligence.”[89] Thus, there had been no violation of Article 6(1).

In the Z case, therefore, the applicants had not been denied access to the courts because they were able to bring their claims before the domestic courts and have the House of Lords consider whether the law of negligence should be expanded to allow actions in negligence against public authorities when they had allegedly failed to protect individuals from sexual abuse (in Z the ECtHR stressed that Article 6 was concerned with unfair procedure rather than substantive law). Strike out applications under CPR Part 3 are akin to summary judgment applications under CPR Part 24 in the sense that they are both sought in advance of the final, substantive hearing of a case, when all of the relevant law, facts and evidence are considered. In the context of this article, therefore, the Z case is relevant to the extent that it appears to establish that a procedure akin to summary judgment is not an infringement of the right of access to a court. Thus, provided the applicant is given an opportunity to raise the appropriate legal issues in a court of law, it will not automatically be a violation of Article 6 that the case is struck out by applying a rule which insists that a person has to prove that they have a sustainable action in law.

D. Summary

This section has explored whether Article 6(1) is applicable to the summary judgment procedure and, if so, whether the procedure amounts to an interference with an individual’s Article 6(1) rights. It was concluded in sub-section A that there seems to be no issue as far as the applicability of Article 6(1) to the summary judgment procedure is concerned on the basis that such applications involve disputes over civil rights or obligations recognised under domestic law. In sub-section C it was concluded that the summary judgment procedure does not inherently constitute an interference with the right of access to court under Article 6(1) on the basis that it affects the effectiveness and quality of an individual’s access to the court, rather than denying access. Whether summary judgment complies with the standard requirements such as fairness, timeliness and so on expected of a hearing in the context of Article 6(1) will be considered in the next section.

3. ANALYSIS OF CPR PART 24 IN THE CONTEXT OF ARTICLE 6(1)

There is some authority to support the proposition that lies at the heart of this article, i.e. that applications for summary judgment under CPR Part 24 are consistent with Article 6(1), much of it for reasons that relate to the overriding objective. The overriding objective of the CPR is to enable courts to deal with cases justly.[90] Since this includes the exercise of powers under CPR Part 24,[91] the aim of this provision must be analysed in the light of the overriding objective. The overriding objective includes, so far as is practicable, ensuring that the parties are on an equal footing, saving expense, dealing with the case in ways which are proportionate, ensuring that it is dealt with expeditiously and fairly, and allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.[92]

The idea that Article 6(1) has ‘nothing to add’ to the overriding objective as far as considerations of fairness under the CPR generally are concerned appears to be supported by Zuckerman. He states “…once we have agreed that the current system of procedure is reasonable and fair, it is misguided to then question individual rulings by reference to a different and narrower concept of fairness. The content of fairness having been already defined by the rules, it must be applied, otherwise there is no point in having the rules in the first place.”[93] Zuckerman’s view is advanced in the context of the striking out procedure, to which the overriding objective equally applies. If this view is accepted in relation to the summary judgment procedure, there would be no need to look to Article 6(1) to ensure fairness, given that this is already provided for by the CPR. Specific consideration must be given to the summary judgment procedure and the relevant authorities in order to determine if this is a valid view.

O’Hare and Browne support the view that CPR Part 24 gives effect to the overriding objective, specifically by stating that “Part 24 enables the court to carry out its duty of active case management.”[94] This is a reference to CPR 1.4, which includes “(b) Identifying the issues at an early stage [and] (c) deciding promptly which issues need further investigation and trial and accordingly disposing summarily of the others.”[95] It was expressly recognised by Lord Woolf in Kent v Griffiths[96] that “there is no question of any contravention of [Article 6]” where the court acts in such a manner as to identify issues which will resolve or help to resolve litigation at an early stage of the proceedings so as to achieve expedition and save expense.[97] Although Lord Woolf’s comments seem to suggest that considerations relating to the overriding objective match closely the requirement under Article 6(1) for a hearing to take place ‘within a reasonable time’, they were not made specifically in the context of summary judgment. It is therefore necessary to look at the considerations of the court in specific summary judgment cases to in order to determine, if it is the overriding objective that is being considered, whether those considerations match the concept of fairness as defined in Article 6(1).

On the issue of whether applications for summary judgment under CPR Part 24 are consistent with Article 6(1) it has been stated: “In recent cases… the Court of Appeal has been keen to assert that there is no incompatibility and that a summary hearing can be a fair hearing.”[98] This is a view that appears to be supported by Hoffman and Rowe’s statement that “The Court of Appeal has indicated that, in general terms, the requirements of following the Civil Procedure Rules are likely to involve similar considerations to the detail of Article 6 as it would apply to civil cases.”[99] These views were made in reference to cases such as Daniels v Walker[100] and S v Gloucestershire CC.[101] In his judgment in Daniels Lord Woolf stated, by reference to the overriding objective, that “Article 6 could not possibly have anything to add to the issue on this appeal” and that “the proper use” of the CPR could not contravene Article 6.[102] In Gloucestershire CC the Court of Appeal confirmed that judicial scrutiny of a case on an application for summary judgment satisfied the requirement for a ‘fair hearing’ under Article 6(1).[103] What has led so many academics and practitioners to reach such a definite view?

Sime states, by reference to Three Rivers, that applications for summary judgment have been said to be consistent with the need to have a fair trial under Article 6(1).[104] In this case the HL ruled that, for the purposes of CPR 24.2, whether the action had a real prospect of success had to be determined having regard to the overriding objective of dealing with the case justly.[105] Reference was made in Three Rivers to previous statements in the Court of Appeal in which the powers contained in CPR Part 24 were described as giving effect to the overriding objective in these terms: “It saves expense; it achieves expedition; it avoids the court’s resources being used up on cases where this serves no purpose, and… it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position.”[106] This appears closely to match the concept of fairness as defined in Article 6(1). This is reflected in other summary judgment cases such as ED&F, where Potter LJ referred to the fact that CPR 24.2 has provisions “…for the purposes of doing justice between the parties…”[107] and Doncaster Pharmaceuticals, where Mummery LJ agreed that “…the summary disposal of rubbishy defences is in the interests of justice.”[108]

In Kim Munn v North West Water Limited,[109] a defendant’s application for summary judgment was dismissed on appeal where, on the facts alleged against the defendant in the claimant’s evidence, the claimant was judged to have an arguable claim which had a real prospect of success at trial, even though due to the inadequacy of the pleadings the claim had at first appeared weaker than it was. The operation of the overriding objective in this case is demonstrated by Mantell LJ looking beyond the pleadings and stating that, whilst CPR Part 24.2 was severe in magnitude, “...it was never intended to drive a claimant from the judgment seat where there were issues of fact which, if determined in the claimant's favour, might result in a successful outcome.”[110] It can be seen, therefore, that in the summary judgment procedure the concern of the court is effectively on responding in a manner proportionate to the failure to comply, adapting the measure in order to fashion an appropriate response and balancing the interests of the litigants against each other, other litigants and the administration of justice in general. The proposition that, in general terms, the requirement of giving effect to the overriding objective under the CPR is likely to involve similar considerations to those under Article 6(1) is given further weight by the fact that the CPR was drafted with some consideration of Article 6.[111]

Much will of course depend on the circumstances of the particular case and the approach and reasoning applied by the court. One thing that can be said with a degree of certainty is that, provided that judges make their decisions within the general framework provided by CPR Part 24 and the overriding objective, and considering all the circumstances and available possibilities, they are unlikely to fall foul of the ECHR with regard to Article 6(1). This will involve the courts considering and balancing both the individual interests of litigants and the public interest in the administration of justice, correctly identifying relevant issues at an early stage and disposing of other issues, saving expense, dealing with matters expeditiously, and so on. The interpretation by the courts of CPR Part 24 in the light of both the overriding objective and the test under CPR 24.2 leads the courts to discuss the appropriateness of the response and to consider the relevant circumstances of the case. This is an interpretation that can be considered compatible with the right to a fair trial under Article 6(1).

CONCLUSION

As summarised in the Introduction and at 1.D, both academics and practitioners have raised concerns about the restricted access to court provided by the summary judgment procedure. This is potentially an issue under Article 6(1), which both expressly sets out in its wording the right to a fair and public hearing and implies the right to actually get to court in order to have such a hearing. In order for rights of access to apply, there has to be a legal right that can found a claim and it was concluded at 2.A that Article 6(1) is applicable to the summary judgment procedure. As discussed at 2.B, the implied right of access to court is not absolute and contracting states have a measure of leeway in interpreting it. At 2.C the conclusion was reached that the summary judgment procedure is not inherently an infringement of the right of access to a court. Provided the applicant is given an opportunity to raise the appropriate legal issues in a court of law, the issue is then whether the proceedings before the national court have complied with the standard requirements such as fairness, timeliness and so on expected of a hearing – i.e. the quality and effectiveness of access to court. So, for example, referring back to the court's decision regarding summary judgment and the subsequent appeal by Associated Newspapers Ltd in the Duchess of Sussex case,[112] the court's assessment of the evidence, the application of legal principles, and the consideration of the parties' rights at first instance all contributed to ensuring that the proceedings were conducted in a fair and impartial manner, thus playing a crucial role in safeguarding the right to a fair trial.

As concluded above, the general obligation that civil trials should be fair is enshrined in the CPR, which starts with the overriding objective that cases should be dealt with justly. As discussed in section 3, this seems to also ensure that domestic courts account for parties’ Article 6(1) rights. In dealing with cases justly the concern of the court is effectively on responding in a manner proportionate to the failure to comply, adapting the measure in order to fashion an appropriate response and balancing the interests of the litigants against each other, other litigants and the administration of justice in general. It is perhaps not surprising, in light of this, that there is such a weight of authority, as discussed in section 3 that, in general terms, provided judges make their decisions in accordance with the overriding objective under CPR 1.1(1), they are unlikely to fall foul of the ECHR with regard to Article 6(1).

FOOTNOTES

[1]CPR 24.2.

[2]CPR 24 PD 5.1(1).

[3][2021] EWCA Civ 1810.

[4](1975) 1 EHRR 524.

[5]Shirley Shipman, ‘Alternative Dispute Resolution, the Threat of Adverse Costs, and the Right of Access to Court’ in Deirdre Dwyer (ed), The Civil Procedure Rules Ten Years On (OUP 2009) 341.

[6][2001] UKHL 16.

[7]Stuart Sime, A Practical Approach to Civil Procedure (25th edn, OUP 2022) 41.

[8]Deirdre Dwyer, ‘The Interpretation of the English Civil Procedure Rules in the context of Article 6 of the European Convention on Human Rights’ in Henk J. Snijders and Stefan Vogenauer (eds), Content and Meaning of National Law in the Context of Transnational Law (European law publishers 2009) 47.

[9]Deputy District Judge Richard Gambrill, ‘Summary Judgment – The New Procedure’ [2002] NLJ vol 152 no 7016 page 112.

[10]CPR 1.1(1).

[11]CPR 24 PD 3(1).

[12]CPR 26 PD 5.3(1); CPR 23A PD 2.7

[13]CPR 24 PD 3(1).

[14]CPR 24.2.

[15]CPR 24 PD 3(1).

[16]CPR 24.4(3)(b).

[17]CPR 24.4(1).

[18][2001] 1 All ER 91 (CA).

[19]Swain v Hillman [2001] 1 All ER 91 (CA) 92.

[20]CPR 24.2.

[21]Swain v Hillman [2001] 1 All ER 91 (CA) 92.

[22]John O’Hare and Kevin Browne, O’Hare and Browne: Civil Litigation (19th edn, Sweet & Maxwell 2019) 297.

[23]Stuart Sime, A Practical Approach to Civil Procedure (25th edn, OUP 2022) 275-276.

[24][2006] EWHC 1510 (Ch).

[25][2006] LTL 22/8/06.

[26][2003] EWCA Civ 472.

[27][2020] 1 WLR 5120.

[28]Three Rivers DC v Bank of England (No. 3) (Summary Judgment) [2001] UKHL 16, [158].

[29]ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 [9].

[30][2008] EWHC 775 (Ch).

[31]Apvodedo NV v Collins [2008] EWHC 775 (Ch) [32].

[32][2021] EWHC 220 (Comm).

[33]Stuart Sime, A Practical Approach to Civil Procedure (25th edn, OUP 2022) 283.

[34][2021] EWHC 863 (Ch)

[35](2003) LTL 2/2/04.

[36][2004] EWHC 117 (Ch).

[37][2006] EWHC 538.

[38]John O’Hare and Kevin Browne, O’Hare and Browne: Civil Litigation (19th edn, Sweet & Maxwell 2019) 297.

[39]Ian Caplin, ‘Bar Talk’ (The Lawyer, 5 March 2001) <http://www.thelawyer.com/bartalk/81352.article>.

[40]Andrew Le Sueur, ‘Access to justice rights in the United Kingdom’ [2000] EHRLR 457, 460.

[41]ibid 458.

[42]Three Rivers DC v Bank of England (No.3) (Summary Judgment) [2001] UKHL 16 [95].

[43]Apvodedo NV v Collins [2008] EWHC 775 (Ch) [32].

[44]Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661 [4] (Mummery LJ).

[45]CPR 24.4(3).

[46]CPR 23.7(1)(b).

[47]Swain v Hillman [2001] 1 All ER 91 (CA) 95.

[48]ibid.

[49]ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 [10].

[50][2021] Ch 365.

[51]Swain v Hillman [2001] 1 All ER 91 (CA) 92.

[52]Lord Justice Jackson (ed), Civil Procedure: The White Book Service 2022 Volume 1 (Sweet & Maxwell London 2022) [24.2.3].

[53]Three Rivers DC v Bank of England (No. 3) (Summary Judgment) [2001] UKHL 16 [158].

[54]Three Rivers DC v Bank of England (No. 3) (Summary Judgment) [2001] UKHL 16 [100].

[55]ibid [107].

[56][2007] EWCA Civ 725.

[57]ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725 [12].

[58]ibid [14].

[59][2006] EWCA Civ 661.

[60]Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661 [5].

[61]ibid [4].

[62]ibid [5].

[63]ibid [6].

[64]HRA 1998, s 6.

[65]HRA 1998, s 3.

[66]HRA 1998, s 4.

[67]HRA 1998, s 2.

[68]Merris Amos, ‘The Value of the European Court of Human Rights to the United Kingdom’ (2017) 28 European Journal of International Law 763.

[69]Golder v UK (1975) 1 EHRR 524 [36].

[70]ibid [32].

[71](1971) 1 EHRR 455.

[72]Ringeisen v Austria (1971) 1 EHRR 455 [94].

[73]David Hoffman and John Rowe, Human Rights in the UK (4th edition, OUP 2013) 54.

[74]Steve Foster, Human Rights and Civil Liberties (3rd edition, Pearson 2011) 66.

[75]Hoffman and Rowe (n 73) 55.

[76](1976) 1 EHRR 737.

[77]Handyside v UK (1976) 1 EHRR 737 [48].

[78]Steve Foster, Human Rights and Civil Liberties (3rd edition, Pearson 2011) 68.

[79]David Hoffman and John Rowe, Human Rights in the UK (4th edition, OUP 2013) 55.

[80]ibid 211.

[81](2003) 1 AC 681 (PC).

[82]Brown v Stott (2003) 1 AC 681 (PC) 727-728.

[83]Council of Europe, ‘Guide on Article 6 of the European Convention on Human Rights’ (August 2022) <https://www.echr.coe.int/documents/d/echr/guide_art_6_eng>.

[84]RTBF v Belgium (ECHR, 29 March 2011) App no. 50084/06.

[85]Micallef v Malta (ECHR, 15 October 2009) App no. 17056/06.

[86](2000) 29 EHRR 245.

[87](2002) 34 EHRR 3.

[88]Z v UK (2002) 34 EHRR 3 [101].

[89]ibid.

[90]CPR 1.1(1).

[91]CPR 1.2(a).

[92]CPR 1.1(2).

[93]Adrian Zuckerman, ‘Dismissal for disobedience of peremptory orders – an imperative of fair trial’ [2001] CJQ 12, 16.

[94]John O’Hare and Kevin Browne, O’Hare and Browne: Civil Litigation (19th edn, Sweet & Maxwell 2019) 297.

[95]CPR 1.4(2).

[96][2000] 2 WLR 1158 (CA).

[97]Kent v Griffiths [2000] 2 WLR 1158 (CA) 1169.

[98]‘The right to a fair hearing and summary disposal’ [2000] CJQ 341, 342.

[99]David Hoffman and John Rowe, Human Rights in the UK (4th edition, OUP 2013) 241.

[100][2000] 1 WLR 1382 (CA).

[101][2000] 3 All ER 344 (CA).

[102]Daniels v Walker [2000] 1 WLR 1382 (CA) 1386.

[103]S v Gloucestershire CC [2000] 3 All ER 344 (CA) 373 (May LJ).

[104]Stuart Sime, A Practical Approach to Civil Procedure (25th edn, OUP 2022) 41.

[105]Three Rivers DC v Bank of England (No. 3) (Summary Judgment) [2001] UKHL 16 [94].

[106]Swain v Hillman [2001] 1 All ER 91 (CA) 94 (Lord Woolf).

[107]ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 [8].

[108]Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2006] EWCA Civ 661 [10].

[109](2001) CP Rep 48.

[110]Kim Munn v North West Water Limited (2001) CP Rep 48 [10].

[111]David Hoffman and John Rowe, Human Rights in the UK (4th edition, OUP 2013) 241.

[112]HRH Duchess of Sussex v Associated Newspapers Ltd [2021] EWCA Civ 1810.

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