SIX YEARS ON: YOU SHOULD KNOW THE CASE YOU WANT TO PLEAD: CLAIMANT’S ACTION STRUCK OUT BECAUSE OF INABILITY TO PARTICULARISE CASE
The judgment of HHJ Platts in Wrightson -v- Flor Projects Limited  EWHC 3036 (QB) provides, amongst other things, an important warning on the need to plead and particularise a case properly. The case shows that when a claimant has difficulties in identifying defendants the most prudent thing to do is to seek to use the pre-action procedure, and disclosure, to clarify the position. The alternative – of relying on largely speculative Particulars of Claim, is likely to cause a claimant profound problems. In this case the claimant’s inability to properly particularise a case, six years after an accident occurred, led to the claim being struck out.
“… to wait six years post-accident before even attempting to find out the proper legal basis for the claim which is to be made, it seems to me, cannot be said to be reasonable. It is not reasonable after this length of time for the defendants to have to continue to investigate this case on the basis of an un-particularised allegation that they owed a duty of care without any proper assertion as to how that duty of care arose.”
The claimant was working in the Guinea Republic. In 2012 he was injured when he drank bleach from an unmarked bottle left on his desk by a cleaner.
Proceedings were issued in November 2014. The claimant issued against 16 defendants. However the first case management conference was not held until April 2018. It appears that the delay was due to the claimant’s solicitors waiting for the medical position to finalise. (As it turns out this time may have been better spent on trying to clarify the claimant’s case on liability).
THE MASTER’S ORDER
The Master was concerned about the manner in which the claim was pleaded. This led to an order being made:-
“The claim is generally stayed until one of the following events (the costs incurred by such events not being the subject of the stay) either:
(a) The claimant by 4pm on 28 May files and serves an application:
(i) to amend the particulars of claim, or
(ii) such other directions as enable the claim to be pleaded and to proceed in a comprehensible and efficient manner, and
(iii) any application to discontinue in respect of such defendants who have not been served to date; or
(b) By 18 June 2018, any defendant, if so advised, issues such application to strike out in whole or in part the claim as pleaded,
or (c) In the event of no application being made by the claimant by 25 June 2018, the claim shall stand as struck out.”
It is important to note that this Order was not necessarily draconian. It gave the claimant a choice. The claimant had the option of seeking “other directions as enable the claim to be pleaded in a comprehensive and efficient manner”. As it happened the claimant elected not to do this, but drafted an amended Particulars of Claim.
The claimant made an application to amend, the sixth and tenth defendant made an application to strike out the claim.
THE ORIGINAL PLEADING: BASED ON “SUSPICION”
The judge noted that, in reality, the proposed amended Particulars did not improve the position.
7. The draft amended pleading contains many deletions from the original particulars of claim with the only material additions being to paras.26, 27 and 28. In para.3, it was originally pleaded and remains pleaded that: “The claimant does not know the precise contractual relationships between the defendants, having asked for documentation in relation to the same, but having been refused the same. However, the following represents his understanding of the complex relationships between the parties insofar as they are relevant to this case.”
8 That paragraph appears to accurately set out the position, because the claimant today does not advance any case other than that it is his understanding or, to use the words of Ms Prager, “suspicion” or “belief” that the defendants who are now before the court have the liabilities which are claimed against them.
THE CLAIMANT’S DELAY
The judge had some sympathy for the claimant’s difficulties. However the claimant had elected to plead an amended claim rather than apply for directions which could have assisted.
21. It seems to me that the difficulty with the claimant’s position today is that he has not taken any steps, save by pre-action request, to obtain such disclosure, even though he asserts that he needs it in order to properly plead his case. That position is compounded by the order of Master Thornett when the claimant was given full opportunity to apply for directions in order to clarify his pleaded case and he chose not to, rather, it seems, relying on the pleading as it now stands and looking to the next stage of the procedural process for disclosure to take place within the litigation.
22 I accept that the claimant has little knowledge of the true position, but, even if he only has a suspicion or belief on which he wishes to found his claim, the basis of that suspicion or belief has not been set out when it could have been, so that the defendants know where they stand. Pleadings or statements of case are intended to be “a concise statement of the facts on which the claimant relies.” CPR 16.4(1)(a). They are intended to let an opponent know the case which he has to meet. They are also intended that the issues of fact or law can be identified at an early stage the statements of case and hopefully narrowed. This pleading in its amended form contains a bare assertion against a backdrop of denials from each defendant, both as to occupation and as to employment. It seems to me that the defendants are no better off today in knowing the cases that they have to meet in relation to each of those issues than they did when the original particulars of claim were served in 2015.
SIX YEARS ON AND NO FURTHER FORWARD
The judge went on to observe:
“23. It is now six years since the accident. It is four years since proceedings were commenced. It is three and a half years since the original particulars of claim were served. In this procedural context, the claimant has been given ample opportunity to amend and to seek directions to enable him to clarify his case, but he has failed to do that. In those circumstances, there being no factual basis pleaded on which the bare assertions of employment and occupation are made, I am afraid I cannot conclude that the grounds for bringing the claim which are pleaded are reasonably pleaded or are reasonable. As I say, it does not now lie well in the mouth of the claimant to say that he made need disclosure when he has had that opportunity for several years and was given it lastly by Master Thornett in April of this year.”
THE CONSEQUENCE: CLAIMANT’S CLAIM STRUCK OUT
Rather than allow the claimant to amend the Particulars of Claim the judge struck the action out.