THE CURRENT IMPORTANCE OF PLEADINGS 8: “ASSERTED LOSS” DID NOT COMPLY WITH THE RULES AND THE CLAIM WAS STRUCK OUT

We are looking at a case where the entire case was struck out on various grounds. The claimant did not attend the hearing to dispute the issues.  However I have isolated one ground of the judgment which relates to a common theme in recent weeks – the failure to plead damages properly and, in any event, to provide any clarification of the claim or evidence to support it.

“The starting point for consideration of this Ground is CPR rule 16.4(1)(a) and the requirement that “Particulars of claim must include— (a)a concise statement of the facts on which the claimant relies…” In the case of this claim, the Particulars of Claim at paragraph 73 provide a list of asserted loss “as a result of the Defendant’s breaches of confidentiality and their consequences for his life”. It is of note that this list does not purport to be comprehensive, and therefore on its face this list of asserted loss does not meet the requirements of rule 16.4. However, by reference to the pleaded list, there are a number of important respects in which the loss pleaded, on any proper analysis, cannot relate to the alleged breach of contract and/or confidentiality even if this were to be established.”

KEY PRACTICE POINT

This case shows that a claimant has to plead a case on liability fully and properly. It also shows that the claim for damages must be pleaded fully. The claimant was unable to resist the application for reverse summary judgment.

THE CASE

In KKK v Tsirilna (t/a Blokh Solicitors) [2025] EWHC 1017 (KB)  the claimant brought an action against his former solicitors.   The defendant had represented the claimant successfully in a claim for an asylum in the UK. The claimant instructed the defendant again in relation  to a submission of the claim to the European Court of Human Rights.  That claim was not successful because the defendant did not file documents timeously.  Subsequently the Legal Ombudsman did not find a breach of contract but suggested a financial remedy of £50,000, this was accepted by the claimant.

THE CLAIMANT’S ACTION AGAINST THE DEFENDANT

The claimant’s action against the defendant was for breach of contract and confidentiality.  This was for disclosing the claimant’s address to third parties.

The Claimant seeks £2,431,658.97 from the Defendant “for breach of contract and confidentiality” which he alleges “resulted in significant financial and emotional harm, and endangerment to his family and witnesses“. The claim relates to an allegation that the Defendant disclosed the Claimant’s address, and that of his children, to her legal representatives in the context of the LeO complaint, and to other third parties, which disclosure, it is alleged, “put the lives of the Claimant and his family at risk“. The third parties identified, beyond the Defendant’s legal representatives, are the Home Office and the ECtHR. It is this claim for breach of contract and confidentiality that is the primary matter for this Court now to consider.

THE DEFENDANT’S SUCCESSFUL APPLICATION FOR REVERSE SUMMARY JUDGMENT

The defendant applied for reverse summary judgment. The claimant did not attend the application.  The judge, Duncan Atkinson KC, sitting as a Deputy High Court Judge,  determined that the hearing should proceed.  The defendant argued that the action was time barred and was inadequately particularised.

THE CLAIMANT’S PLEADED CASE

39. In his statement in support of the application to strike out the claim, Mr Leathley at paragraphs 65-66 identifies respects in which the Claimant has failed to comply with CPR r.16.4. This requires the Claimant to provide a concise statement of the facts on which his claim relies. However, it is contended here that the Claimant has failed to identify or particularise the following important matters:

(a) The documents and/or information that he alleges were disclosed in breach of confidentiality;

(b) The basis for his assertion that any such disclosure posed a risk to the safety of himself and/or his family;

(c) The basis for his claim that he is prohibited from disclosure of pertinent information by the Official Secrets Act, or other restriction imposed by the Security Services;

(d) The basis for his claim to loss arising from the sale of a property for less than its commercial value because disclosure of information and created a risk to his family;

(e) The basis for his other claims to loss (to which I will return in more detail when I consider ground D below).

40. In approaching this ground, I remind myself that the Claimant is a litigant in person. However, first, I note the observations in this regard of Lord Sumption in Barton v Wright Hassall LLP [2018] UKSC 12 at paragraph 18: “The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights, under the Limitation Acts for example. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”

41. Secondly, I note that the Defendant raised the various areas in which there had been a failure of necessary particularity in the Request for Further Information that was provided on 16 September 2024, and the Claimant did not avail himself of that opportunity to fill the gaps in the information necessary to the proper statement of his case.

42. Moreover, as Mr Leathley identifies in his witness statement at paragraph 66, there is additionally a requirement pursuant to paragraph 7.4 of Practice Direction 16 for a Claimant to particularise the words of any oral agreement, and to set out by whom, when and where those words were spoken. The Particulars of Claim aver (for example at paragraphs 37, 41, 46 and 49) that the Claimant asserted a particular need for confidentiality of material relating to his family’s safety, which was accepted by the Defendant. There is, however, a failure to particularise the words by which this oral agreement was reached, by whom, or on what occasion. In short, I accept that there have been failures by the Claimant to satisfy the requirements of CPR r.16.4 and Practice Direction 16, paragraph 7.4. This would entitle me to strike out the application by reference to CPR r.3.4(2)(c). However, despite the exhortation of Lord Sumption quoted above, I would be reticent in doing so in relation to a litigant in person if it were the only ground for such a determination. However, in combination with Ground F that the claim is time-barred, I do consider that a proper basis has been established to strike out the claim pursuant to CPR r.3.4(2)(c).

THE PLEADING OF THE CLAIM FOR DAMAGES

Ground C: Causation and Ground D: Evidence of Loss

77. Despite the conclusion I have reached on Grounds A and B, it is appropriate to consider the remaining grounds for the Defendant’s Application, lest it be argued that the Court’s conclusion as to Grounds A and/or B is in error. It is submitted on behalf of the Defendant that a causative link is not established between any disclosure by the Defendant and any loss suffered by the Claimant. It is further submitted that in any event, there is no proper evidence to conclude that the Claimant has in fact suffered loss which should be compensated as a result of the present Claim. It seems logical to take those two grounds together.

78. It is central to the Claimant’s case that there was a real threat to him and his family which would arise from disclosure to the authorities of a third-party state of his location and address. I have considered above a series of occasions on which the Claimant or his wife shared personal information such as his address with third party agencies. I agree with the Defendant’s submission that it is not credible for the Claimant to allege that he was put at risk by the sharing of such data by the Defendant where he was prepared to share it in this way himself. I also note that whilst in his Claim, it was asserted “due to the potential presentation of security related information, I kindly request to restrict the publicity of the hearings. Facts that may be consider in court could potentially impact national security” no information to substantiate this assertion has been provided. This could have been achieved either by the Claimant through a statement in support of his Particulars of Claim or in any statement or other document from any third party served on his behalf.

79. Whilst the Claimant may have needed to be circumspect in this regard before the Davison Order, the in camera measures in place by virtue of that Order have removed any such need for circumspection. The Claimant could have provided a statement in response to the present application in this regard, but has not done so. In that regard, I have noted that in his response to the listing of the present application, the Claimant asserted that he could not respond to the Defendant’s application until his Part 82 CMP application had been granted, but I agree with the defence submission that the Davison Order affords the Claimant sufficient protection to address in necessary detail both the national security issues to which he alludes and the risk to himself and his family which is essential to his Claim. In his application for CMP he asserts that he is bound by the Official Secrets Act, but again no material has been provided either by him or on his behalf from any relevant third party to that effect.

80. The Defendant submits that the combination of this lack of evidence, and the positive evidence of the Claimant and/or his partner providing their address to third parties in public documents is sufficient to demonstrate that there is here no evidence of any threat to the Claimant as a result of any disclosure by the Defendant. Allied to that, it is submitted by the Defendant that there is here no evidence that the Claimant was occasioned loss as a result of any such disclosure.

81. The starting point for consideration of this Ground is CPR rule 16.4(1)(a) and the requirement that “Particulars of claim must include— (a)a concise statement of the facts on which the claimant relies…” In the case of this claim, the Particulars of Claim at paragraph 73 provide a list of asserted loss “as a result of the Defendant’s breaches of confidentiality and their consequences for his life”. It is of note that this list does not purport to be comprehensive, and therefore on its face this list of asserted loss does not meet the requirements of rule 16.4. However, by reference to the pleaded list, there are a number of important respects in which the loss pleaded, on any proper analysis, cannot relate to the alleged breach of contract and/or confidentiality even if this were to be established. In particular:

(a) The first category of loss is the “emergency sale” of what the response to the Request for Further Information confirms to be the Bagshot address, at “below market value”. As already addressed above, I am satisfied that the evidence does not begin to demonstrate that this Bagshot address, which was acquired on 20 December 2016 and thus after the retainer between the Claimant and the Defendant had come to an end on 22 September 2016, could have the subject of any disclosure by the Defendant who would have had no knowledge of it. Moreover, in his Particulars of Claim (paragraph 55), the Claimant stated that he learned of the breach of confidentiality on 20 September 2018. However, in his response to the Request for Further Information, the Claimant stated that the Bagshot address was sold on 9 August 2019. The delay of 11 months between his discovery of the revelation of the address and the risk to his family and the sale of the premises is inconsistent with one being the result of the other. On a proper analysis of the material, by reference to the Claimant’s own chronology, I am satisfied that causation of this loss cannot be made out. I am fortified in that view by the fact, to which I have already referred, that the TR1 document for the Bagshot address shows it to be registered in the name of the Claimant’s wife with no beneficial ownership identified in the name of the Claimant. It follows that even if loss were to have been established, it would not have been that Claimant’s loss.

(b) The Claimant next pleads “rent expenses incurred due to the need to change residence for safety reasons”. Notwithstanding the requirements of CPR rule 16.4, and the request for further detail in the Request for Further Information, there is no detail as to what premises were rented, at what rent, for what period. In his response to the Request for Further Information, the Claimant averred that he could not provide further detail because of the potential risk to his family. I confess to not understanding how information about the rental of premises in which neither the Claimant nor his family were still residing could lead to any such risk. In any event, the Davison Order presents necessary protection against any such risk. In any event, the need to rent premises is predicated on the need to vacate the Bagshot premises, which, for reasons just addressed, cannot be made out on the material that I have seen to be a consequence of any breach by the Defendant.

(c) The Claimant includes in his list of categories of loss a number of expenses which on any proper analysis were incurred not as a result of any breach by the Defendant but as a result of her earlier performance of the contact with the Claimant. Specifically, this relates to legal expenses incurred in relation to the Claimant’s successful asylum application (paragraph 73c), preparation for the ECtHR claim (paragraph 73e), and additional representations relating to that claim (paragraph 73f). There is no logical basis for any of these expenses to be connected to any breach of confidence, even if one could be established.

82. In other respects, the pleaded list of alleged loss is too vague as to detail for a loss properly to be established, and this remains the case despite these alleged losses being the subject of the Request for Further Information from the Defendant. In particular, he lists legal expenses which he neither itemises nor particularises (paragraph 73d), legal services which he does not describe further at all (paragraph 73g) and translation services (paragraph 73h) which are not explained any further. In his response to the Request for Further Information, the Claimant declined to provide further detail. Instead, he stated: “The Claimant also reminds that the Defendant has previously violated confidentiality obligations multiple times, creating additional security risks. Under the circumstances, the Claimant does not deem it possible to disclose this information until the court takes measures to protect his family’s safety”. Again, I do not understand how information about the legal or translation expenses could lead to any risk to the Claimant or his family. In any event, the Davison Order presents necessary protection against any such risk.

83. I am satisfied, therefore, that both of the Defendant’s Grounds C and D are made out. There is no evidence before the Court of any real threat to the Claimant so as to cause him loss, and his claim as to loss within his Particulars of Claim is not made out. I remind myself that I should not in this context embark on a mini-trial on these issues, and also that the Claimant was not present at the application on 17 March. However, I also remind myself that the Claimant has had the opportunity to put evidence in relation to these issues before the Court, for example through his response to the Request for Further Information and/or through a statement in response to the present application, with the protection of the Davison Order for any confidential information. But I am satisfied that the Claimant has no realistic prospects of success in these crucial respects.