Procedural challenges of Defendant strike out at trial

This blog examines the litigation procedures and procedural challenges highlighted in the case of One Hyde Park Ltd v Laing O’Rourke Construction South Ltd [2026] EWHC 155 (TCC). The case provides significant insights into the implications of a defence being struck out under Civil Procedure Rules (CPR) 39.3(1), the evidential status of expert reports and the role of unchallenged expert evidence in determining liability and damages. It also explores the procedural complexities arising when a defendant withdraws from proceedings. The analysis aims to provide a comprehensive understanding of the litigation procedures and their application in this case.

Statement of facts

Legal standards/rules

Analysis

1. Implications of Defence Strike-Out under CPR 39.3(1):

The court’s decision to strike out LOR’s defence under CPR 39.3(1) highlights the procedural consequences of a defendant’s non-attendance at trial. Whilst the defence was struck out, OHP was still required to prove its case, demonstrating the claimant’s burden of proof, even in the absence of a defence. The court’s ability to test evidence was constrained, as cross-examination of witnesses and experts was not possible. This procedural limitation underscores the importance of robust evidence preparation by claimants in cases where defendants withdraw from proceedings.

2. Evidential status of expert reports:

The court’s interpretation of CPR 35.4 clarified that expert reports do not automatically become evidence unless the expert is called to testify at trial. In this case, the defendants’ experts were not called and their reports were excluded from evidence. This distinction emphasises the procedural requirement for experts to verify their reports to ensure their admissibility. The court’s approach reinforces the importance of procedural compliance in the use of expert evidence.

3. Role of unchallenged expert evidence:

The court accepted the unchallenged expert evidence presented by OHP regarding the cause of defects, the scope of remedial works and the quantum of damages. This acceptance was critical in establishing liability and determining the substantial damages awarded. The case demonstrates the evidential weight of unchallenged expert testimony, particularly in situations where the defendant withdraws from proceedings. However, it also highlights the potential risks of relying solely on unchallenged evidence, as the absence of cross-examination limits the court’s ability to test its reliability.

4. Procedural challenges in defendant withdrawal:

LOR’s withdrawal from proceedings shortly before trial created significant procedural challenges. The court criticised LOR’s conduct as ‘commercially amoral’, reflecting the difficulties faced by claimants in pursuing claims against defendants who enter liquidation. The case underscores the importance of procedural safeguards to ensure claimants can still prove their case and obtain remedies despite such challenges.

Conclusion

The case of One Hyde Park Ltd v Laing O’Rourke Construction South Ltd provides valuable insights into litigation procedures, particularly the implications of defence strike-out under CPR 39.3(1), the evidential status of expert reports and the role of unchallenged expert evidence. It also highlights the procedural complexities arising from defendant withdrawal and liquidation. The court’s approach underscores the importance of procedural compliance and robust evidence preparation in construction disputes, ensuring claimants can effectively pursue their claims despite procedural obstacles.