Express Newspapers v Telegraph Group Limited

A claim is determined by the case actually advanced in the pleading. Where the pleaded case is that an offer was accepted, the pleading does not also contain a separate contractual claim based on failure to restore directors to the board unless that alternative case is made clear. The court may examine the structure and contents of the pleading, including the relevant paragraphs, and contrast it with other pleadings in the litigation. An intended alternative claim should be expressly identified.

Express Newspapers appealed from a decision of the High Court, Chancery Division, concerning the scope of its pleaded case. It argued that its pleading contained a separate allegation of breach of contract arising from the failure to allow the directors back on the board. Telegraph Group Limited argued that the sole pleaded case was acceptance of an offer. The Court of Appeal had to determine whether the pleading advanced that additional contractual claim.

The appeal was dismissed unanimously. Lord Justice Aldous delivered the judgment, with Lord Justice Robert Walker and Lady Justice Hale agreeing.

1. Construction of the pleading. The primary and sole case pleaded was that there had been acceptance of the offer. This was apparent from the layout of the pleading, particularly paragraphs 27 to 30.
2. No separate contractual allegation. The pleading did not contain a self-standing allegation that the contract had been breached by failure to allow the directors back on the board. The court contrasted the pleading with the petition, which did make that point.
3. Alternative cases. If an alternative case had been intended, the pleading would have made that clear. It did not do so in this case.

The formal order was: “The action is dismissed.”

• Court of Appeal (Civil Division): The appeal was dismissed. The court held that the pleading advanced only a case based on acceptance of the offer and did not include a separate claim for breach arising from failure to allow the directors back on the board.
• High Court of Justice, Chancery Division: Appeal brought from a decision of the Vice-Chancellor, Sir Andrew Morritt. No citation for that decision was stated in the judgment.