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Reported Case

Case listed for re-trial after decision to strike out claim is set aside in Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1 (15 January 2019) (4 February 2019)

Date: 04/02/2019
Duncan Lewis, Reported Case Solicitors, Case listed for re-trial after decision to strike out claim is set aside in Hughes Jarvis Ltd v Searle & Anor [2019] EWCA Civ 1 (15 January 2019)

Following the strike out of the claim that the Landlord (Property Development Company) brought against our client, an assured tenant of the property, the Court of Appeal has set aside the County Court judgments and the case has been listed for re-trial at Central London County Court.

Case History

Our client, Mr Searle, is the defendant in these proceedings.

The Landlord brought a claim for possession of Mr Searle’s property on the grounds that suitable alternative accommodation is available with plans to demolish and redevelop the property along with other neighbouring buildings.

Mr Searle insists that the alternative accommodation is not suitable and he has not been given any assurances that he would have equivalent security of tenure.

As part of the redevelopment, Mr Searle claims the landlord has damaged his property, whilst also blocking his right of way.

As a result of these issues, our client has brought multiple counterclaims against the Landlord.

County Court Judgment

In April 2018 the County Court judge, Her Honour Judge Clarke, made a striking out order against the Landlord’s claim after he contravened orders not to contact his lawyers mid-evidence. More information on this stage of the case is detailed in this article.

HHJ Clarke found him guilty of three counts of contempt: seeking to communicate with counsel and with his solicitor, and speaking to a third party by telephone. The Landlord was jailed overnight. HHJ Clarke rejected the submission that an award of costs would deal with the matter, saying this would ‘not make an unfair trial fair’. As a result, she acceded to our client’s application to strike out the claim and the Landlord’s defence to a counterclaim.

The Landlord received a suspended sentenced for contempt of court.

Court of Appeal Judgment

The Landlord appealed the contempt, sentencing and the strike out to the Court of Appeal. He successfully set aside the County Court Judgments and the case has now been transferred to Central London County Court for a re-trial.

The implications of this judgment are potentially far reaching. HHJ Clarke relied on the judgment in Chidzoy v BBC (2018) in order to determine whether the Landlord was in contempt. It was accepted that through his actions the Landlord had caused the trial to become unfair and that no reasonable measures could be taken to resolve this unfairness in order to continue proceedings.

As laid out in the Court of Appeal judgment, Lord Justice Leggatt deduced that HHJ Clarke had not taken the correct approach in striking out the claim, stating [para.57]:

‘When…an incident occurs during a trial which gives the trial judge cause for concern that the integrity of a witness's evidence might have been compromised, a measured approach is called for. The aim should almost always be to investigate the facts as far as necessary but otherwise to complete the trial with as little interruption as possible, leaving any question of whether there has been a contempt of court or whether any further action is warranted to be considered at the end of the proceedings after judgment has been given.’

LJ Leggatt held that this particular example of striking out a claim ‘could well serve as a case study in how not to deal with such a situation’.


Legal representation for Mr Searle included Housing Director Manjinder Kaur Atwal, of Duncan Lewis, and Oliver Hyams, of Hardwick chambers.

Director, Manjinder has over 10 years’ experience in housing and property litigation law, dealing with a wide variety of dispute cases including possession claims and eviction matters, landlord and tenant disputes, homelessness, housing disrepair, bringing Judicial Review matters, review/appeals relating to local authority housing decisions, bringing and defending injunctions, boundary disputes, property nuisance/negligence claims, consumer and contractual matters, debt recovery and enforcement.

Contact Manjinder on 020 3114 1269, or via email on manjindera@duncanlewis.com.


Find full details of this case on Bailii’s website here.
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