Waite v Denby

A court should not strike out an entire pleading merely because it is lengthy, particularly where it is coherent, the opposing party has pleaded to it, and the case is complex. Civil Procedure Rules 1998, rule 16.4(1)(a) requires a concise statement of the facts relied on, but excessive length can be addressed by ordering a summary or schedule. Appellate interference with case-management decisions is reserved for cases where intervention is clearly justified. A new basis for striking out, not raised or decided below, cannot ordinarily be considered on appeal. An alleged vendetta is not, by itself, a proper basis for striking out a properly pleaded claim with real prospects.

The claimant sought £195,000 for fraudulent and negligent misrepresentation, alleging that he had been induced to buy a 25 per cent interest in a company. The defendant’s amended defence responded in detail to the 31-page Particulars of Claim.

At a case management hearing on 19 September 2008, HHJ Simon Brown QC struck out the Particulars of Claim and the consequential Defence, and imposed a further stay. The claimant appealed. The respondent also sought to rely on an alleged evidential defect that had not been raised or decided below. The central issues were whether the pleading was properly struck out for length or unintelligibility, and whether the new contention could be considered on appeal.

Appeal allowed. Lord Justice Dyson gave the judgment, with Lord Justice Rimer agreeing.

1. The Court of Appeal is slow to interfere with case-management decisions and does so only where the case for intervention is clearly made out. That threshold was satisfied.
2. Civil Procedure Rules 1998, rule 16.4(1)(a) requires a concise statement of the facts relied on. The Particulars of Claim were undoubtedly long, but they were carefully drafted, coherent and intelligible. They set out the alleged representations and explained why each was said to be false.
3. In assessing the pleading, the judge should have considered that the defendant’s counsel had pleaded to it in detail; no complaint had been made during the earlier case management conferences; the judge had raised the issue only at a late stage; and the claimant was acting in person. Striking out the whole pleading was inappropriate, even if the claimant had been legally represented.
4. If the pleading was considered too long, the court could require a summary of the allegations, possibly in a schedule cross-referenced to the Particulars of Claim. The claim was intrinsically complex because it involved numerous discrete alleged misrepresentations. No case had been made that particular paragraphs lacked prospects of success.
5. The judge’s observations about a possible vendetta could not justify striking out a properly pleaded claim with real prospects. Since the judge had not ultimately struck out the claim on that basis, the observation was not the ground of decision.
6. The respondent’s proposed contention that the claim depended on false evidence had not been raised below, and no decision had been made on it. It was therefore not open to the Court of Appeal to consider it.

Paragraphs (1) to (4) of the order dated 19 September 2008 were set aside. The stay imposed on 30 June 2008 continued in force until further order.

• Court of Appeal (Civil Division) — Appeal allowed. The court set aside paragraphs (1) to (4) of the order dated 19 September 2008: [2009] EWCA Civ 592.
• Queen’s Bench Division, Commercial Court — On 19 September 2008, HHJ Simon Brown QC struck out the Particulars of Claim and consequential Defence and imposed a further stay.