THE COURT OF APPEAL, STRIKING OUT AND PLEADING THE CASE PROPERLY: PARTICULARS OF CLAIM SHOULD HELP NOT HINDER

September 7, 2022 · by · in Appeals, Statements of Case, Striking out

There has already been much publicity surrounding the Court of Appeal decision in HXA v Surrey County Council [2022] EWCA Civ 1196.  The Court of Appeal overturned decisions where actions were struck out, holding that the issues in question should be determined at trial and not at an interlocutory application.  Here I want to look at the Court’s observations about the way in which the actions were pleaded.

“I must record that the task facing this Court, and I am sure the courts below, has been hindered by the manner in which both claims have been pleaded.”

THE CASE

The Court heard appeals in two cases relating to the duty of care owed by a local authority towards children to whom it was providing a child protection services.  The actions were struck out at first instance, as not having any cause of action.   The Court of Appeal allowed the claimants’ appeal, stating that these matters should determined at trial.

THE COURT OF APPEAL JUDGMENT ON THE CLAIMANTS’ PLEADED CASE

    1. Before considering the issues, I return briefly to the way in which the two claims have been pleaded. Without being unduly critical, I must record that the task facing this Court, and I am sure the courts below, has been hindered by the manner in which both claims have been pleaded.
    1. Particulars of Claim must include a concise statement of the facts upon which the claimant relies: see CPR 16.4. In each of these two cases, the claim is that the defendant owed a duty of care at common law to protect the claimant from harm from parents or others in the household. In each case, it is said that the defendant assumed responsibility for protecting the claimant from that harm. In that context, the claimant should therefore identify the facts which are alleged to amount to an assumption of responsibility and the scope and extent of the alleged duty. Put simply, the claimants must identify clearly and concisely what it is said that the defendant has assumed responsibility for, and what facts are relied upon as establishing that the defendant has assumed that responsibility. In addition, the claimant should identify the dates upon which the alleged duty arose and, if relevant, the period or periods during which the duty was owed. The claimant must also identify the facts and matters said to establish breach, causation and loss.
    1. In the present cases, the particulars of claim were deficient. They did not include a concise statement of the facts upon which the claimants relied. Instead, they each set out a lengthy “sequence of events”. In YXA’s case, the date on which the local authority started accommodating the child under section 20 is stated to have been 28 April 2008 at paragraph 5.2(g) of the Particulars of Claim but August 2007 at paragraph 6.10. In both cases, it has not been easy to discern the precise basis on which it is claimed that there was an assumption of responsibility. In addition, while the Civil Procedure Rules do not prohibit the pleading of law, that is unnecessary in cases such as these where the legal structure is clear (broadly, duty of care, breach, causation and loss). In my view, it was unnecessary to include selective quotations from cases and other legal material which are relied upon, or which try to anticipate potential defences. The appropriate place for those citations is in a skeleton argument.

 

THE RESULT

The Court of Appeal allowed the appeal, however only the relevant paragraphs were restored.

 

  1. The question for a court considering an application to strike out a claim is, to adopt Lord Reed’s words at paragraph 89 of his judgment in Poole, whether “the particulars of claim … set out any basis on which an assumption of responsibility might be established at trial”. Before this Court the only pleaded matters relied on by counsel for the claimants were those set out in paragraphs 14(l) and 14 (vv) of HXA’s claim and paragraphs 5.2 of YXA’s claim. If my Lord and my Lady agree, the outcome of this appeal will be that those paragraphs are restored, together with the relevant paragraphs relating to assumption of responsibility, breach and damage. I would invite counsel to agree precisely which paragraphs should be restored in the light of our decision and to submit a draft order reflecting their agreement.