STATEMENTS OF CASE: KEEP THEM SIMPLE: NO NEED TO PLEAD A REFERENCE TO SIR CHRISTOPHER WREN IN A CASE ALLEGING BREACH OF CONTRACT

In Portland Stone Firms Ltd & Ors v Barclays Bank Plc & Ors [2018] EWHC 2341 (QB) Mr Justice Stuart-Smith had some telling observations about the way in which statements of case should be drafted.

“The applications before the Court have been made unnecessarily complicated by the prolix and repetitive nature of the Original and draft Amended Particulars of Claim in their successive iterations. The exorbitant length was not justified by any complexity in the underlying claim: it could and should have been pleaded in a fraction of the length. Nor was it justified by any absence of knowledge on the part of the Claimants because, as I have indicated, they had the necessary knowledge to plead a case succinctly from the outset, if there was any merit in it.”

THE CASE

The claimants brought an action against its former bankers and others, alleging that their conduct had led to the claimants going into liquidation. The defendants were successful in their application to strike out the claims. In response to the application the claimants sought to amend the particulars of claim.  One criticism the judge made was of the way in which the claimants’s case was pleaded, both originally and in the proposed draft.

THE RULES RELATING TO PLEADING

  1. It should not need repeating that Particulars of Claim must include a concise statement of the facts on which the Claimant relies: CPR 16.4(1)(a). The “facts on which the Claimant relies” should be no less and no more than the facts which the Claimant must prove in order to succeed in her or his claim. Practice Direction 16PD8.2 mandates that the Claimant must specifically set out any allegation of fraud, details of any misrepresentation, and notice or knowledge of a fact where he wishes to rely upon them in support of his claim. The Queen’s Bench Guide provides guidelines which should be followed: they reflect good and proper practice that has been universally known by competent practitioners for decades. They include that “a statement of case must be as brief and concise as possible and confined to setting out the bald facts and not the evidence of them”: see 6.7.4(1). A statement of case exceeding 25 pages is regarded as exceptional: experience shows that most cases can be accommodated in well under 25 pages even where the most serious allegations are made. Experience also shows that prolix pleadings normally tend to obfuscate rather than to serve their proper purpose of identifying the material facts and issues that the parties have to address and the Court has to decide.
  2. Where statements of case do not comply with these basic principles, the Court may require the Claimant to achieve compliance by striking out the offending document and requiring service of a compliant one: see Tchenquiz v Grant Thornton [2015] EWHC 405(Comm) and Brown v AB [2018] EWHC 623 (QB). It has always been within the power of the Court to strike out either all or part of a pleading on the basis that it is vague, irrelevant, embarrassing or vexatious.

THE PROPOSED AMENDED PARTICULARS

The judge was equally critical of the proposed amended Particulars.

  1. In my judgment the revised claim in contract is as incoherent and ill-founded as the original claim that has now been withdrawn, because the Claimants have not pleaded any recognizable contractual framework. [52] and [53] refer to the relationship between the parties over the years in strictly non-contractual terms. [52] alleges that, over the years that the Group were customers of Barclays “Mr Smith, [the Group] and Barclays intended to develop and developed a long-term relationship the essential incidents were” a number of characteristics, none of which give rise to contractual obligations. [53] pleads that Barclays, Mr Smith and the Group shared “stated and unstated understandings” about their relationship in terms which, once again, do not demonstrate the existence of any particular contractual obligations. What is completely lacking is any recognition that the terms of the relationship were subject to actual contractual obligations arising, for example, under the terms of the 2004 loan agreement. Nor is there anything identified that would indicate that the Group’s relationship with Barclays was anything other than a normal, contractual, arm’s length commercial arrangement between banker and business customer. As a result, there is nothing in the original or the proposed amended pleading that could be described as a recognizable contractual framework to provide the basis for the newly proposed implied terms that are pleaded at [54]-[55] of the 2 July 2018 draft or for any claim based upon alleged breaches of those terms.

THE JUDGE’S CLOSING OBSERVATIONS ON THE PLEADINGS

“Other Observations on the Pleadings

  1. I would therefore refuse the amendments on the merits after full argument, quite apart from the limitation reasons which I have set out.  This has clear implications if the Claimants were minded to issue new proceedings; but it is not for me to rule prospectively on the viability of potential future proceedings and I do not do so.
  2. The applications before the Court have been made unnecessarily complicated by the prolix and repetitive nature of the Original and draft Amended Particulars of Claim in their successive iterations. The exorbitant length was not justified by any complexity in the underlying claim: it could and should have been pleaded in a fraction of the length. Nor was it justified by any absence of knowledge on the part of the Claimants because, as I have indicated, they had the necessary knowledge to plead a case succinctly from the outset, if there was any merit in it.
  3. There is one additional deficiency in the Particulars of Claim which requires mention because it contributed to making an over-long pleading even longer. Section C was entitled “Background”. It included pages of background information of which the great majority was irrelevant and should not have appeared in a pleading. It may be of anecdotal interest to know that Sir Christopher Wren’s specification for St Paul’s Cathedral included the use of Portland stone, but it could not be relevant to a claim by a customer alleging fraudulent misrepresentation or breach of contract against its banker and a financial adviser in the 21st Century. Nor could it be relevant that a previous owner of the quarries had been Hanson Industries and that Mr Smith understood their operation on Portland to have been only marginally profitable. These are particularly egregious examples, but they are illustrative of a wider problem of lack of discrimination that pervades the pleadings in general and Section C in particular.
  4. If it mattered, I would have struck out most of Section C and much else on my way to directing the Claimants to provide a compliant pleading to replace those that had been produced thus far. In the light of my conclusions set out above, there is now no need.”