THE PARTICULARS OF CLAIM WERE TOO LONG, TOO CONFUSING AND DID NOT COMPLY WITH THE RULES.

In Halsion Limited v St Thomas Street Development Limited [2023] EWHC 2045 (TCC) HHJ Cawson KC, sitting as a High Court Judge, struck out the claimant’s Particulars of Claim.  The Particulars were too long and rambling and failed to comply with the Rules. Pleading evidence, submissions and rhetoric are likely to lead to this outcome.

“… the circumstances of the present case fall well on the wrong side of the line between mere “infelicities” on the one hand, and serious and significant non-compliance with the relevant provisions of CPR Part 16 and the TCC Guide on the other hand, such that it can properly be said that there have been serious and significant breaches of a rule and practice direction sufficient to justify invoking the power to strike out of the Particulars of Claim as a whole pursuant to CPR 3.4(2)(c)…”

THE CASE

The claimant brought proceedings against the defendant following a dispute about construction of a generator. There had been several adjudications in which the claimant was ultimately unsuccessful. The claimant issued proceedings stating that the adjudicator was wrong and that the defendant was liable to the claimant.

The defendant’s solicitors wrote to the claimant’s solicitors stating that the Particulars of Claim did not comply with the CPR and asking the claimant to amend them. The claimant refused.

THE DEFENDANT’S APPLICATION

The application was two-fold. Firstly in relation to the way the case was pleaded. Secondly that it disclosed no reasonable cause of action.  Here we look at the issues relating to the statement of case.

1. 1. The Application is brought pursuant to CPR 3.4(2)(a), (b) and (c). It is thus STSD’s case that the APOC disclose no reasonable grounds for bringing the claim, amount to an abuse of the court’s process, and fail to comply with a rule, practice direction or court order.

1. 1. The challenge to the APOC is advanced on two bases, namely that:

i) The APOC fails to comply with CPR 16.4(1)(a), if not also paragraph 1.3 of CPR PD16, and with various provisions of the October 2022 TCC Guide (“the TCC Guide“), and does so to such a serious extent that the only appropriate course is for the Particulars of Claim to be struck out and for Halsion to be required to re-plead its case in so far as it is capable of being re-pleaded; and

ii) The way in which Halsion’s case as to each of the proper construction of the Trade Contract, rectification and estoppel by convention has been pleaded is such as to fail to advance reasonable grounds for pursuing the claim based thereupon, if not also such as to be abusive.

1. 1. The Application thus requires a consideration of the way that the APOC as a whole has been pleaded, as well as a consideration of the way in which Halsion’s case as to each of the proper construction of the Trade Contract, rectification and estoppel by convention claims respectively have been pleaded.

1. 1. In addition, STSD maintains its contention that it is entitled to summary judgment pursuant to CPR Part 24 in respect of Halsion’s claims for declaratory relief regarding the true construction of the Trade Contract and for declaratory relief with regard to the effect of Adjudications 4 and 5.

THE WAY THE CLAIMANT’S CASE WAS PLEADED

Failure to comply with a rule, practice direction or court order

1. 1. CPR 16.4(1)(a) provides that a statement of case must include a “concise statement of the facts on which the claimant relies”.

1. 1. Paragraph 1.3 of PD16 provides that if a statement of case “exceptionally” exceeds 25 pages, it must include an appropriate short summary at the start.

1. 1. The TCC Guide acknowledges, at paragraph 2 of Appendix I thereto, that there is no general rule or maximum length for statements of case in the TCC, because some TCC cases by their nature require more detailed particulars than other cases. However, paragraph 2 goes on to provide that, where practicable, schedules and appendices should be used to ensure that: “excessive detail does not detract from an understanding of the essential facts necessary for the purpose of formulating a complete cause of action set out in the body of the pleading.”

1. 1. Paragraph 1 of Appendix I to the TCC Guide identifies a number of “principles” that apply to all statements of case, including: “(a) The document must be as concise as possible“; “(c) The document must deal with the case on a point by point basis to allow for a point by point response. In particular, each separate cause of action, or defence, should be pleaded separately wherever possible“; “(d) So far as possible each paragraph or sub-paragraph should contain no more than one allegation“; “(e) Special care should be taken to set out… only those factual allegations which are necessary to establish the cause of action… being advanced, to enable the other party to know what case it has to meet. Evidence should not be included, and a general factual narrative is neither required nor helpful (and is likely to contravene paragraphs (f), (h) and/or (k) below)“; “(k) Where it is necessary to give lengthy particulars of an allegation, this should be set out in schedules or appendices“; “(m) Where it is necessary for the proper understanding of the statement of case to include substantial parts of a lengthy document the passages in question should be set out in a schedule rather than in the body of the statement of case.”

1. 1. It is submitted on behalf of STSD that there is no inconsistency between CPR Part 16 and the TCC Guide, both requiring pleadings to be as concise, focussed and thus as short as practically possible. Whilst the TCC Guide is not a practice direction, it is submitted on behalf of STSD that it accurately reflects the comments in the authorities as to what is required under CPR 16.4, and by PD 16, and thus can be taken into account when considering the application of CPR 3.4(2).

1. 1. As to comments in the authorities, STSD relies upon the following:

i) Clarke LJ in Hague Plant Ltd v Hague [2014] EWCA Civ 1609 (a 65 page pleading) at [76]: “…. Particulars of Claim must include a concise statement of the facts on which the claimant relies: CPR 16.4(1)(a). But they need not, and should not, contain the evidence by which they are to be proved or the opposing party’s pleadings or admissions…” and [78]: “Pleadings are intended to help the court and the parties. In recent years practitioners have, on occasion, lost sight of that aim. Documents are drafted of interminable length and diffuseness and conspicuous lack of precision…”

ii) Leggatt J (as he then was) in Tchenguiz v Grant Thornton UK LLP [2015] EWHC 405 (Comm) (a 94-page pleading):

“1. Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial.

2. As commercial transactions have become more complex and more heavily documented (including electronically), adhering to the basic rules of pleading has become both increasingly difficult and all the more important…”

iii) Males J (as he then was) in Grove Park Properties v Royal Bank of Scotland [2018] EWHC 3521 (Comm) relied at [24] on paragraph [1] in Tchenguiz and added: “It is wrong in principle to plead matters which do not support or relate to any of the remedies sought… To do so is likely to complicate or confuse the fair conduct of proceedings.”

iv) Snowden LJ in In the Matter of Kings Solutions Group Limited [2021] EWCA Civ 1943 at [62] (a “very lengthy document running to 69 pages” at [35]), referred with approval to all the above authorities.

1. 1. Having regard to the above considerations, STSD makes the following observations regarding the APOC:

i) The first 28 pages including in particular paragraphs 12 to 71 are said to consist of a lengthy recitation of evidence and factual narrative;

ii) It is observed that the first mention of the terms of the Trade Contract is at paragraph 72 on page 29. Various terms are recited up to page 39, but no reference is made to them again in the remainder of the pleading.

iii) Paragraphs 91 to 92 on pages 40 and 41 describe Adjudications 4 and 5 in some detail when, so STSD submits, they are wholly irrelevant.

iv) The pleading of Halsion’s actual claim as to the construction of the Trade Contract starts at paragraph 93 on page 41, under the heading “The proper construction of the Trade Contract.” It runs to paragraph 99 and when referring to relevant objective facts at paragraph 94, refers back to “the matters set out in paragraphs 12 to 68 above.”

v) Halsion’s rectification case runs from paragraph 100 on page 44 to paragraph 108 on page 47. It is based on common mistake or in the alternative unilateral mistake and in both cases refers back to the matters pleaded in paragraphs 12 to 67 (see paragraphs 100(c) and 103 of the APOC).

vi) Halsion’s estoppel by convention case runs from paragraph 109 on page 48 to paragraph 111 on page 50. This case relies on “paragraphs 12 to 67 and/or paragraphs 68 to 71” (see paragraph 109 of the APOC).

1. 1. As to non-compliance, STSD submits that the APOC does not comply with any of the principles stated in the relevant provisions of CPR Part 16, the authorities or the TCC Guide, the particular concern being paragraphs 12 to 71 of the APOC. Ms Garrett and Mr Sareen have produced an Appendix 1 to their Skeleton Argument that sets out the specific grounds of complaint by reference to the numbered paragraphs of the APOC. Ms Garrett and Mr Sareen submit that “particularly egregious” examples include:

i) What they maintain is unnecessary recitation of the wording of the RIBA Outline of Work and BSRIA Guide at paragraphs 14 to 16 (covering 3 pages).

ii) What they maintain is an enormously protracted factual narrative, including very extensive and wholly unnecessary pleading of evidence, dealing with “The negotiations between the parties” at paragraphs 22 to 68 (covering 14 pages). As to this section of the APOC:

a) They submit that this narrative also includes recitation of facts that are of no possible relevance to Halsion’s causes of action, including in particular at paragraphs 22 – 23, 29 – 34, 35, 39, 41 and 44 dealing with matters such as a description of “mid-bid” meetings held and Tender Addenda issued (paragraph 35 covering an entire page and what are said to be irrelevant descriptions of the exchange of early versions of the Design Responsibility Matrix (“DRM“) (see paragraph 41 of the APOC).

b) They submit that the same section of the APOC also mixes up the factual matters which are or may be relevant to Halsion’s different causes of action contrary to paragraph 1(c) of Appendix I to the TCC Guide. They submit that the entire section on pre-contract negotiations cannot be relevant to Halsion’s case as to the proper construction of the Trade Contract for the reasons considered below, and they say that there are multiple paragraphs that cannot possibly be relevant to Halsion’s rectification and estoppel cases for the reasons referred to below.

c) STSD submits that this section also includes multiple paragraphs which consist solely of submissions/rhetoric as identified in their Appendix 1.

d) STSD points to the fact that the effect of the inclusion of this lengthy and protracted factual narrative is that one does not reach the first pleading of a contractual term until paragraph 72 on page 29. It is submitted that this is extraordinary for a claim in which the claimant’s primary case is said to be based simply on the wording of the contract.

iii) It is not in dispute that a key plank of Halsion’s case relates to the DRM incorporated into the Trade Contract. Halsion’s pleading of the history of the negotiation of and the ultimately agreed wording of the DRM which was incorporated into the Trade Contract at Rev 8 is at paragraphs 43 to 67 (covering 7 pages). STSD submits that this section of the pleading is also replete with the unnecessary pleading of evidence (multiple email exchanges and the contents of documents are set out at length) and submissions/rhetoric as to the import of the factual narrative set out (for example at paragraphs 47, 56 and 59).

1. 1. STSD says that it is not necessary for Halsion to plead out the contents of documents in order to plead the facts on which it relies to establish its case and that, in any event, recitation thereof should be in schedules and not the main body of the pleading. Because it is not, so it is submitted, the APOC is confused and confusing for the reader.

1. 1. STSD submits that the failures to comply with the relevant provisions of CPR Part 16 and the TCC Guide are not technical points. Ms Garrett and Mr Sareen submit that the purpose thereof is to ensure that there is a clear statement of a party’s case which is capable of defining the issues (including defining the scope of disclosure, factual witness evidence and expert evidence) and which can function as an agenda for the trial. Thus, pleadings which do not comply are liable to increase costs for both parties, and consume a disproportionate amount of the Court’s time, and in addition to engaging CPR 3.4(2)(c), amount to an abuse of process pursuant to CPR 3.4(2)(b).

1. 1. As to the approach to be taken by the Court in a case such as the present, Ms Garrett and Mr Sareen refer to the recent decision of Constable J (sitting in the TCC) in Resource Recovery Solutions v Derbyshire County Council [2023] EWHC 708, a decision also relied upon by Halsion. In Resource Recovery (supra) at [75] , Constable J, accepted that the facts of Tchenguiz (supra) were “extreme”, but made clear that the general statements at paragraphs 1-5 in that case set out important principles which should be followed, and that the powers available to the Court were both clear and wide. At [76] , he went on to say:

“It is, however, also important to note that in applications such as this, the Court must ultimately take a proportionate and practical view. It is very likely that any pleading, particularly viewed through the eyes of the opposing party, may contain what Akenhead J [in Charter UK Ltd v Nationwide Building Society [2009] EWHC 1002 (TCC)], describes as ‘infelicities’. A pleading may well stray at times onto the wrong side of the important Guidelines set out in the TCC Guide and other equivalent documents. That is not to be encouraged, but in reality it may happen in complex litigation. There will plainly be occasions where the ‘infelicities’ aggregate to a level which is clearly, and objectively, unacceptable. This will almost certainly be the case where the aggregate effect is to impair the ability of the pleading, or significant parts of it, to serve any useful purpose, or where essential elements (such as a cause of action) are missing. It will also be the case if the pleading is embarrassing or vexatious. Where essential elements are missing, or where the pleading is embarrassing or vexatious, the need for the matter to be cured is obvious and immediate. Where the complaint is that there is immaterial, irrelevant or unnecessary verbiage in a pleading, or that evidence has been pleaded rather than facts, the precise point at which it is necessary and proportionate for the Court to require offending elements to be struck out is more difficult to define. As Akenhead J said, mere infelicities in pleadings will not usually justify striking out. Whilst unnecessary and irrelevant material is in breach of the Guidelines and plainly unhelpful, it is also right that the general administration of justice is not advanced by parties combing the other sides’ pleadings for transgressions which do not in fact materially impact a parties’ ability to understand the case they have to meet or the Court’s ability to manage the case effectively.”

1. 1. It is STSD’s case that the present case involves significantly more than mere “infelicities”, and that the whole construct of the APOC involves a wholesale failure to comply with the principles stated in the CPR, the TCC Guide and the authorities with the result that one has in the APOC a document that does not provide a clear statement of Halsion’s case to enable the issues to be properly defined, and presents Halsion’s case in a confused and confusing manner such that unless the defects are cured, insofar as capable of being cured, the APOC is liable to result in unnecessary and disproportionate costs for both parties, and frustrate the effective case management of the present claim. On this basis, so it is submitted, the Particulars of Claim as a whole should be struck out.

1. STSD points to the fact that the APOC is, in large part, a cut-and-paste from a Response submitted by Halsion in respect of Adjudication 5, a document prepared to perform a very different function than a statement of case in litigation in the TCC.

THE JUDGMENT ON THE WAY THE CLAIMANT’S CASE WAS PLEADED

The judge agreed with the defendant’s submissions and the Particulars of  Claim were struck out.

Discussion

1. 1. The authorities referred to in paragraph 22 above make clear the need for statements of case to be concise, and not prolix, and to plead only material facts, i.e., only those facts necessary for the purposes of formulating a cause of action or defence, and thus not, generally speaking, background facts, evidence, argument, reasoning or rhetoric. The authorities referred to in paragraph 22 above further highlight the tendency of statements of case, in recent years, to be of exorbitant and unnecessary length.

1. 1. That statements of case should be concise and limited to material facts is important, particularly in complex cases, for a number of reasons, including:

i) To better enable the other party to discern and understand the case that it has to meet and to respond to it in concise terms;

ii) To assist in identifying the issues between the parties, including:

a) Identifying issues for disclosure under CPR PD 57 AD;

b) Identifying the matters that each party will need to prove at trial for the purpose of preparing trial witness statements in accordance with CPR PD 57AC and obtaining expert evidence; and

c) Identifying the issues for trial;

iii) Helping to ensure the efficient and effective case management of the claim.

1. 1. An important consideration so far as a claimant’s particulars of claim are concerned is that the particulars of claim are very likely to set the pace as to the form and contents of subsequent statements of case. Therefore, prolix and unclear particulars of claim are liable to lead to prolix and unclear defences and subsequent statements of case.

1. 1. CPR 16.4(1)(a) sets out the basic requirement that particulars of claim should comprise “a concise statement of the facts on which the claimant relies”. Further, CPR PD 16, paragraph 1.3, provides that statement of case should only “exceptionally” exceed 25 pages, including an appropriate short summary at the start. The TCC Guide is not a Practice Direction, and so breach thereof does not, per se, engage CPR 3.4(2)(c). However, I consider that the relevant provisions of the TCC Guide must be treated as serving to inform how CPR 16.4(1)(a) and paragraph 1.3 of CPR PD 16 should be applied in the context of a case in the TCC such as the present. A statement of case that significantly fails to comply with the TCC Guide so far the requirement to be “concise” is concerned, is therefore, as I see it, liable to fall foul of these rules.

1. 1. As Constable J recognised in Resource Recovery Solutions v Derbyshire County Council (supra) at [75], it is necessary, so far as the application of Court Guides such as the TCC Guide are concerned, for the Court to take a proportionate and practical view of “infelicities”, not least given the scope for an opposing party to take immaterial procedural points for tactical reasons. However, as Constable J further identified, there will be occasions where “infelicities” aggregate to a level which is clearly, and objectively, unacceptable, e.g., where the aggregate effect is to impair the ability of the statement of case, or significant parts of it, to serve any useful purpose, or where essential elements are missing.

1. 1. The issue between the parties on the present Application is as to whether STSD is, as Halsion contends, seeking to use CPR 3.4(2) as a route for debating pleading points which do not materially affect the understanding of the claim, or whether, as STSD contends, the Particulars of Claim are so fundamentally flawed and/or in breach of the relevant provisions of CPR Part 16 and the TCC Guide, that they not only materially affect a proper understanding of the claim, but are liable to lead to other serious and significant difficulties in responding to the Particulars of Claim, identifying the issues for determination, and more generally case managing the present claim.

Breach of CPR Part 16 and the TCC Guide

1. 1. I am satisfied that there have been serious and significant breaches of the relevant provisions of CPR Part 16 and the TCC Guide with regard to the Particulars of Claim in the present case.

1. 1. I consider that the fundamental point is that the APOC cannot, on any proper view, be described as containing a “concise” statement of the facts on which Halsion relies as required by CPR 16.4(1)(a), particularly considered in the context of the application of the TCC Guide to the present proceedings and, in particular, the requirement thereof that the Particulars of Claim should be “as concise as possible” as required by paragraph 1(a), and further the requirements of sub-paragraphs 1(c), (d), (e), (f), (k) and (m) of Appendix I to the TCC Guide referred to in paragraph 20 above.

1. 1. The principal concerns that I have with the Particulars of Claim as presently drafted in the form of the APOC are the following:

i) They are, I consider, unduly prolix, one of the consequences being that no reference is made to the contractual provisions, the proper effect of which forms the basis of the dispute between the parties, until paragraph 74 of the APOC, at page 30 thereof.

ii) The use of a lengthy factual narrative which, as identified in paragraph 1(d) of Appendix I to the TCC Guide is neither required nor helpful. The position is, as I see it, compounded by the fact that Halsion’s case is put on three alternative basis, namely the proper construction of the Trade Contract, rectification and estoppel by convention which each turn on discrete facts and considerations. However, as reflected initially in paragraph 12 of the APOC, and as the factual narrative is the developed, the various factual matters relied upon in support of the respective bases upon which the case is put are elided, and when the alternative ways in which the case is put are pleaded out, extensive use is made of the factual narrative without clearly identifying the particular parts relied upon. This does, as I see it, make it difficult to properly identify and understand how Halsion puts its case, and makes STSD’s task of seeking to respond thereto by its Defence difficult, if not practically impossible.

iii) It is, as I see it, necessary and important in pleading Halsion’s case in any particulars of claim for the factual matters said to support the respective ways (construction, rectification and estoppel) in which Halsion’s case is put to be separately and distinctly identified and pleaded out, if necessary by the use of appropriate schedules tied to the particular heads of claim. Unfortunately, because the factual narrative is not so linked to the respective ways in which Halsion’s case is put, apart from resulting in the case as to the respective heads being elided and therefore becoming confused, the factual narrative contains what I consider to be irrelevant matters, and deals with certain relevant matters in excessive and unnecessary detail, e.g.:

a) Paragraphs 22-23, 29-34, 35, 39, 41 and 44 dealing with “mid-bid” meetings held, Tender Addenda issued, and descriptions of the exchange of early versions of the DRM;

b) The detailed references to the RIBA Work Stages and BSRIA Guide in 15-15 of the APOC. Whilst these may well be relevant to the factual matrix on the construction issue, and relevant to the common intention on the rectification issue, they should more appropriately be referred to in brief and more pertinent terms when dealing with those particular heads of the claim.

c) The more general pleading out of the contents of documents in order to plead the facts upon which Halsion seeks to rely, being facts which, in any event, ought more appropriately to be included in schedules rather than the main body of the APOC.

d) The lengthy references to Adjudications 4 and 5 in paragraphs 91 and 92.

iv) The inclusion of submissions and rhetoric at various parts of the APOC.

1. 1. The above considerations have, as I see it, led to Halsion seeking to rely upon a statement of case (the APOC) which presents Halsion’s case in a prolix and confusing way, and therefore in a way in which:

i) Makes it difficult to follow Halsion’s case;

ii) Makes it difficult if not impossible for STSD to respond to Halsion’s case in a concise, compliant and effective way; and

iii) Seriously hinders the ability of the Court to effectively case mange the claim and to identify the issues that arise for determination.

1. 1. Unfortunately, it is evident that the problems have arisen because Halsion, rather than drafting particulars of claim from scratch in a compliant way, has sought to utilise its response submissions prepared for Adjudication 5. However, submissions to an adjudicator are intended to perform a very different function than statements of case prepared for litigation in the TCC, or indeed any court.

1. 1. I certainly consider that the circumstances of the present case fall well on the wrong side of the line between mere “infelicities” on the one hand, and serious and significant non-compliance with the relevant provisions of CPR Part 16 and the TCC Guide on the other hand, such that it can properly be said that there have been serious and significant breaches of a rule and practice direction sufficient to justify invoking the power to strike out of the Particulars of Claim as a whole pursuant to CPR 3.4(2)(c), if the Court can be satisfied that that would be a proportionate and practical response to the breaches established.

Proportionate and practical response

1. 1. I consider that the proportionate and practical response that the Court ought to adopt in light of the above is one that must have regard not merely to the serious and significant breaches of the rule and practice direction that have been established, but to my findings in respect of STSD’s complaints in respect of the ways, respectively, that the case as to proper construction of the Trade Contract, rectification and estoppel by convention has been pleaded.

OVERALL CONCLUSION

1. 1. Having regard to the pleading deficiencies that I have identified with regard to each of the proper construction, rectification and estoppel by convention elements of the claim, and my finding that the Particulars of Claim more generally breach CPR 16.4(2)(a) and paragraph 1.3 of CPR PD 16, as given expression though the relevant provisions of the TCC Guide, I am satisfied that the deficiencies are so marked, and the consequences thereof so serious, that the only proportionate and practical response is for the Particulars of Claim as a whole to be struck out pursuant to CPR 3.4(a), (b) and (c).

1. 1. However, STSD concedes, and I accept that the pleading deficiencies are likely to be capable of being cured, but in my judgment that can only effectively be achieved by a wholesale redrafting of the Particulars of Claim in a compliant way that does comply with the relevant provisions of CPR Part 16 and the TCC Guide, does not seek to rely upon a pre-contract negotiations or communications for the purpose of drawing inferences about what the Trade Contract should be understood to mean, or for the purpose of interpreting specific provisions, and does not seek to claim declaratory relief in respect of the effect of Adjudications 4 or 5, or as to the proper construction of the Trade Contract.

1. 1. On the assumption that Halsion would wish to make an application to amend, and for the Court to consider a redrafted version of its Particulars of Claim, I would, subject to further submissions, propose that I consider the precise form of order to be made on the Application at a consequentials hearing to be listed within a reasonable period of time, when redrafted Particulars of Claim are available.

1. 1. No attendance is required on the hand down of this judgment. I adjourn the determination of consequential matters, including any application for permission to appeal, to the consequentials hearing.