AMENDMENT, PLEADINGS, NEARLY OPPRESSIVE CONDUCT AND PROLIX WITNESS STATEMENTS: MASTER ISSUES AN EARLY WARNING
In Williers -v Joyce  EWHC 1225 (Ch) Chief Master Marsh issued a number of warnings in relation to procedural issues. Amendment, conduct, pleadings, disclosure and witness statements are considered. (The judgment also contains a full copy of the re-amended Particulars of Claim – for students of pleading).
“The Claimant has a tendency to produce witness statements which are prolix and it will be part of the court’s case management function to exercise rigorous control over both disclosure and witness statements”
The claimant is bringing an action for damages, it has already been to the Supreme Court on a preliminary issue. The claimant amended the Particulars of Claim. The defendant applied to strike out certain paragraphs of the re-amended Particulars of Claim.
THE DEFENDANT’S CASE ABOUT THE RE-AMENDED PARTICULARS OF CLAIM
The Master set out the nature of the defendant’s application.
The main substance of the application relates to paragraphs 6 – 22, 36, 41 and part of paragraph 44(2) of Re-Re-amended Particulars of Claim. The Defendants complain that these paragraphs include irrelevant material and are pleaded in a manner which is unnecessarily broad. The court is invited to exercise its case management powers, about which there is no dispute between the parties, to strike out parts of the Re-Re-Amended Particulars of Claim relating to the claim for malicious prosecution with a view to that claim moving forward in a more limited fashion.
The application to strike out sub-paragraphs 46(5) and (6) relates to the alternative claim that the Langstone action was an abuse of process.
Different considerations apply to the application as it relates to sub-paragraphs 45(1) and (2). These two sub-paragraphs concern the Claimant’s alleged loss. It is said in certain specific respects that the claim shows no reasonable grounds and should be struck or alternatively judgment should be entered under CPR part 24.2.
I will deal with the three elements of the application as summarised above in turn.
Paragraphs 6 – 22 of the re-re-amended Particulars of Claim are headed:
“Mr Gubay’s control of the Santon Trust and the Anglo Group“
The Defendants say that the Claimant’s reference throughout these paragraphs to the Santon Trust and to all the companies within the Anglo Group is unnecessarily wide. The Claimant’s case does not turn on Mr Gubay’s control of the trust or all the companies within the group. It turns on his ability to control Langstone.
i. Paragraph 6 where there is a generalised reference to Mr Gubay’s intentions in setting up the Santon Trust;
ii. Paragraph 9 where reference is made to evidence provided by Mr Gubay in proceedings in New York;
iii. Paragraph 10 where reference is made to a witness statement of John Nugent given in proceedings in the Isle of Man;
iv. Paragraph 14 where examples are given of Mr Gubay’s management and control between 1986 and 2009 of the Anglo Group;
v. Paragraph 16 where references are made to a witness statement provided by Mr Gubay in proceedings between him and Mr Willers in the Isle of Man.
Complaints are also made about the relevance of certain facts which are pleaded.
Despite the complaints made by the Defendants, the total length of the re-re-amended Particulars of Claim is some nineteen pages. It is not, therefore, a conspicuous example of an over-lengthy statement of case.
As Jackson J remarked in ATOS Consulting Limited v Avis Europe PLC, it is not for the court to tell a party how to plead its case. There are many different styles of pleading that fall within the spirit, and the letter, of the CPR and it is not to the point that the court may consider that there are infelicities in the drafting. It is not for the court, in effect, to say that it could have drafted the statement of case better than the draftsman and there must be some margin of appreciation about what comprise the essential facts that underpin the claim. The starting point is the Claimant’s view about the facts it relies upon and a degree of latitude must be provided.
THE MASTER’S DECISION
The Master refused the defendant’s application. The application was made late (and apparently after a change of mind). Although it was not an abuse of process it was close to being oppressive.
“The first amendment to the Particulars of Claim was minor. The re-amendment was approved by Miss Tipples QC, an earlier application to amend having been adjourned to the judge to be dealt with at the hearing of the strike out application. No objection to those amendments was made at the time. The re-re-amendment came about following the order of the Supreme Court dated 20 July 2016. Throughout this entire period paragraphs 6 – 22 have remained largely unchanged (paragraph 22 is the exception). No point has been taken in a similar fashion to the application now made.
My conclusion in relation to these paragraphs of the re-re-amended Particulars of Claim is, as to the main basis of complaint, that only Langstone is relevant rather than the Anglo Group and the Trust, the Claimant is entitled to plead his case on a wider basis because he relies on control in relation to the whole Anglo Group and the Trust. It may transpire that this is wider than is strictly necessary, but it would be wrong to insist upon amendments at this stage. And although, if the claim were to be started afresh now, it would be desirable for the statement of case to exclude some, or all, of the extraneous evidence relied upon, it would be wrong at this stage to hold up the progress of the claim and to require yet further amendments to be made in the hope that this may lead to a saving of cost.
In addition, although I do not conclude that the application is an abuse of the courts’ process, it is not far short of being oppressive given that the Defendants have had an ample opportunity to complain previously and I consider that there is some real force in the submission made by Mr Page QC that the Defendants are seeking to delay the progress of this claim and to make it unduly difficult and expensive for the Claimant to pursue it.”
The Master did, however, issue a warning
I have indicated to the parties, however, that the sort of approach about which Mr Justice Vos (as he then was) made remarks in the Langstone claim will not be tolerated in the course of the conduct of this claim. The Claimant has a tendency to produce witness statements which are prolix and it will be part of the court’s case management function to exercise rigorous control over both disclosure and witness statements. As to the former, Mr Mitchell QC referred to a letter from the Claimant’s solicitors dated 22 November 2016 which followed the service of the defence. In addition to requesting copies of documents referred to in the defence, the letter contained a schedule running to six pages of what is described as “early disclosure”. The manner in which that schedule is drafted clearly indicates that the Claimant will be seeking disclosure that is far wider than is necessary for the fair resolution of the issues in this claim. There is a strong sense that the list emanated from the Claimant himself without his lawyers having exercised careful judgment about it. If that surmise is wrong, it would appear that the schedule demonstrates a lack of judgment and possible lack of understanding of the duties owed to the court.