LATE SERVICE OF THE PARTICULARS OF CLAIM: RELIEF FROM SANCTIONS REFUSED: DETAILS OF CLAIM DO NOT CONSTITUTE PARTICULARS OF CLAIM

In Chelsea Bridge Apartments Ltd -v- Old Street Homes Ltd (Deputy Master Cousins, 4th September 2017*) Deputy Master Cousins refused the claimants’ application for relief from sanctions in failing to serve Particulars of claim on time.

“I find that the Claimants have not and are not conducting the litigation efficiently, or at a proportionate cost. I agree with the submissions made on behalf of the Defendants that it was the Claimants who embarked upon this litigation and chose to do so with an ill-thought-out and precipitate application on a without notice basis attempting to seek a freezing order, which was then not granted”

KEY POINTS

• The failure to file particulars timeously was a serious and significant failure.
• The claimants had not provided any good reason.
• The claimants were not conducting the litigation in a proportionate manner.
• An argument that the “brief details of the claim” on the claim form itself constituted Particulars of Claim was rejected.

THE CASE

Two claimants brought an action alleging that they were entitled to a percentage share from the proceeds of sale of certain properties.  The Particulars of Claim should have been served by the 6th January 2017. The claimants did not make an application for an extension of time/relief from sanctions until the 22nd March 2017 after being told to this by the Deputy Master who made a peremptory order to this effect.  Draft Particulars of Claim were attached to that application.  The documents required to be served with the Particulars of Claim were sent on the 30th March 2017.

THE JUDGMENT

“31.Having regard to all the circumstances, and the legal principles set out above, I consider that this is a case where the Court should refuse Relief from Sanctions. My reasons are as follows:

 (1) As to the First Stage of Denton, I find that the failure on the part of the Claimants to serve the draft Particulars of Claim at the latest by 6th January 2017, and not to have done so in fact until at least 22nd March 2017, is a serious and significant failure. Confusingly there are two different versions of the draft both dated 22nd March 2017, but seemed to have been produced at different times. In any event the accompanying documents in support of the Particulars of Claim were not provided until 30th March 2017. This draft pleading was therefore at least three months late on any reckoning. No application for an extension of time was made until 22nd March 2017;

(2) As to the Second Stage of Denton relating to the reasons why the failure or default occurred, having regard to the analysis set out in paragraph 13(4) as to the two periods of time, and the actions and inactions on the part of the Claimants 13 [2016] EW CA Civ. 153. 13 that occurred, I find that the failure to appreciate the requirement to serve the Particulars of Claim by a certain date, or at all, is not a good reason;

(3) I further find that it is not a good reason to assert that the Claimants’ solicitors were under pressure at the time in the conduct of the case on behalf of their clients. In any event, as has been submitted on behalf of the Defendants, there does not appear to have been any particularly onerous or unusual aspects to the case;

(4) Further, these submissions still do not explain the reasons for what appears to be some considerable tardiness between 7th February 2017 and the 22nd March 2017 whilst the Claimants were represented by their present solicitors. It was not until the latter date that the Application for an Extension of Time was made on behalf of the Claimants to file the draft Particulars of Claim out of time, and for Relief from Sanctions. Somewhat disingenuously it is now submitted on behalf of the Claimants that in an ideal world this Application could have been made sooner. In this context, it seems to have been suggested that the Claimants’ solicitors (as it is put) “changed the way” that the case was being handled;

(5) In my judgment, the Claimants have failed to demonstrate that this is a (rare) instance where the contextual framework is such that this could be put forward as a good reason;

(6) As to the Third Stage of Denton, in all the circumstances of the case, and in particular having regard to (a) the efficient conduct of litigation at proportionate costs, and (b) the enforcement of compliance with the CPR, I find that the Claimants have not and are not conducting the litigation efficiently, or at a proportionate cost. I agree with the submissions made on behalf of the Defendants that it was the Claimants who embarked upon this litigation and chose to do so with an ill-thought-out and precipitate application on a without notice basis attempting to seek a freezing order, which was then not granted. The poorly drafted Claim Form was issued and served pursuant to the Claimants’ undertaking to the Court to do so, and then the Claimants immediately sought a stay. They then apparently refused to mediate.

32. Thus, in my judgment, that there has been serious and substantial default on the part of the Claimants, for which inadequate reasons have been provided. There has been substantial disruption in the progress of the action as a direct result of the Claimants lack of action.

33. Accordingly, I find that the Claimants have failed to demonstrate any good or sufficient reasons for this serious and significant failure, and I adopt the framework set out in accordance with CPR 3.9 relating to Relief from Sanctions. For the reasons stated I therefore refuse to grant the Claimants such relief.

34. Further, I consider that in the exercise by the Court of its general discretionary power under CPR 3.1(2)(a) to extend time for compliance, or otherwise, I am entitled to refuse the Claimants an extension of time on their application for an extension of time as they have failed to comply with the time limits imposed by CPR 7.4 for service of the Particulars of Claim.

35. I also disagree with the submission made to the effect that the Brief Details of Claim are sufficient to constitute Particulars of Claim. In my judgment by no stretch of the imagination is it possible for the Brief Details of Claim to somehow be considered of sufficient standing to constitute Particulars of Claim. This pleading is generalised in its nature, and is lacking in intellectual rigour. It is unclear, in my judgment, as to precisely what it is that the Claimants seek in this document. Indeed, in contrast it is to be noted that a draft Particulars of Claim dated 22nd March 2017 was produced by Counsel in which the various points relied upon are pleaded with more particularity, but very late in the day.

36. Finally, a number of assertions have been made including one relating to a “completion statement” as to the sale of Chronicle Heights, all of which, so it is said, demonstrate that the Defendants, and their legal representatives, have behaved in an improper manner, and, in effect, have misled the court. In my judgment, it would be quite inappropriate for me, at this stage, to make any findings in this regard. The application before me is whether the Claimants are in breach of the Rules and should be granted Relief from Sanctions. I have found that has been serious and substantial default on the part of the Claimants, for which inadequate reasons have been provided, and the merits of the Claimants’ case are at the highest, scanty. It cannot be said, in my judgment that on the case as presented to me during lengthy submissions, that the Claimants have reasonably good prospects of success.”

• The full transcript is available on Lawtel.