Shettar v Soni (t/a A & E Estate Agent)

A claim may be struck out where a claimant, despite repeated opportunities and an express order, fails to particularise the cause of action, dates, relief and material facts sufficiently for the defendant to know the case to meet. Limitation remains effective despite the claimant’s bankruptcy during the relevant period where the trustee could have pursued the claim. An allegation of fraud does not postpone limitation where the claimant knew of the transactions and non-repayment from the outset. A proposed appeal based on acknowledgment of the debt or a loan repayable only on demand requires supporting evidence. Without such evidence, permission to appeal may properly be refused.

The applicant claimed £108,613 arising principally from alleged loans, together with claims concerning a car and antique furniture. The Wandsworth County Court ordered amended particulars identifying the causes of action, relevant dates and relief. The amended pleading remained inadequate, and Mr Recorder Widdup struck out the claim on 3 June 1999 and refused permission to appeal.

On the renewed application, the Court of Appeal considered whether there was an arguable basis concerning acknowledgment of the debt, repayment on demand, bankruptcy, alleged fraud or the absence of bank statements. It also considered whether the persistent failure to particularise the claim independently justified strike-out.

Mr Justice Lloyd gave the judgment, with which Lord Justice Latham agreed. The court refused permission to appeal and refused an extension of time.

1. Because there was no satisfactory record of the recorder’s judgment, the court proceeded on the material before him and asked whether the decision was within the jurisdiction open to him on that material.
2. The limitation issue provided a sufficient basis for refusing permission. Bankruptcy during the limitation period did not extend that period, since the trustee in bankruptcy could have pursued the claim. The allegation that the loans and delivery of goods were procured by fraud did not defer limitation because the claimant knew from the outset of the transactions and their non-repayment.
3. The two potentially arguable grounds identified earlier—an acknowledgment within the six-year period and loans repayable only on demand—were unsupported by evidence. The claimant’s pleadings merely referred to repayment within a few weeks, and the supporting affidavit did not address acknowledgment. That absence of evidential material justified the recorder’s decision on limitation.
4. There was also an independent procedural basis for strike-out. The claimant had repeatedly failed to provide properly particularised particulars of claim and had not complied with the specific order requiring the nature and timing of the causes of action, the relief and other material matters to be stated. The defendant had been given sufficient opportunities, and continuation of the proceedings would have been unjust.
5. Disclosure of bank statements could not cure the claimant’s inability to identify a viable cause of action or overcome the limitation difficulties. The application was therefore refused.

• Court of Appeal (Civil Division): On 9 May 2001, the renewed application for permission to appeal and an extension of time was refused: [2001] EWCA Civ 786.
• Wandsworth County Court: Mr Recorder Widdup struck out the claim on 3 June 1999 and refused permission to appeal.
• Earlier appellate application: Lord Justice Roch directed that the application be heard on notice, with an appeal to follow immediately if permission were granted. A later listing was dismissed after non-attendance and the matter was subsequently relisted.