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Striking Whilst the QOCS is Hot - Andrew Roy, 12 King's Bench Walk

18/05/18. In XY v (1) Ingenious Media Holdings Limited (2) Ingenious Media Limited [2018] EWHC 350 (QB) HHJ Walden-Smith, sitting as a Judge of the High Court, dismissed an appeal by a litigant in person against an order striking out his stress at work claim.

The appeal raised a novel point as to whether, to what extent and in what circumstances impecuniosity can satisfy the first limb of the Ladd v Marshall [1954] 1 WLR 1775 test for admitting new evidence on appeal, that the evidence could not have been obtained with reasonable diligence for the hearing below.

The cases also illustrates (1) the scope of release clauses in prior agreements and (2) an often overlooked means by which QOCS can be displaced.


The Claimant alleged that he suffered psychiatric injury due to occupational stress whilst employed by the Second Defendants as a chartered accountant and chartered tax adviser between July 2000 and June 2009. (The First Defendant is the Second Defendant’s parent company; they were treated indistinguishably for these purposes).

The Second Defendant and the Claimant had previously been involved in litigation against each other arising out of the Claimant’s employment. This prior litigation did not include any injury claim although, on the Claimant’s evidence he knew at the time that he had a psychiatric injury (depression) which he attributed to the Second Defendant. The litigation was settled in January 2011 by way of a compromise agreement. The crucial provision of the agreement read:

This Settlement Agreement is in full and final settlement of all claims of any kind, known and unknown, which the Parties have or may have against each other, and whether referred to in the litigation hereby compromised or otherwise.

The Claimant pleaded that he was not bound by this because he lacked capacity at the relevant time due to hypomania caused by anti-depressant medication. He also argued that the claim was not within the scope of the agreement as he was not aware at the time that he had hypomania. He later added an allegation of sharp practice as a third basis of impugning the agreement, alleging that the Second Defendant had planted an impostor witness in his camp to give him bad advice to accept the compromise agreement.

Strike out at first instance

The Defendants applied under CPR 3.4(2)(a) to strike out the claim on the basis the statement of case disclosed no reasonable grounds for bringing the claim. The application relied upon the fact that the Claimant had not produced any evidence to show that he lacked capacity at the relevant time. Although he had report from a consultant psychiatrist, this did not so state. The expert instead indicated the need for a...

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