Bam Glory Mill Ltd v Balicrest Ltd & Anor

A claim should not be struck out for inadequate particularity where its essential factual and legal basis is identifiable, even though further detail is required. Abuse of process is established where proceedings are issued merely to stop limitation running, without a settled intention to pursue the claim and without being able, even in rudimentary form, to identify the alleged breach or formulate particulars of claim. Whether that principle applies is highly context-sensitive. A claimant may be ordered to provide defendant-by-defendant and item-by-item particulars of breach, responsibility, loss and damage, with failure potentially leading to an unless order and strike-out.

The claimant sought to enforce deeds of collateral warranty against two defendants concerning alleged failures to remove underground structures and obstructions. The defendants applied to strike out the particulars of claim for lack of particularity and abuse of process, relying on Nomura International Plc v Granada Group Ltd & Ors [2007] EWHC 642 (Comm). By the hearing, the claimant had served extensive further information identifying approximately 72 items, but responsibility between the defendants and the claimed loss remained insufficiently particularised.

1. The strike-out application was refused. The further information identified the alleged obstructions and their locations sufficiently for present purposes. Disputes about whether reported material constituted an obstruction or whether earlier works had removed defects were matters for evidence, not strike-out.
2. The claimant’s case against the second defendant, that remediation obligations included removal of underlying structures and obstructions, might be ambitious but was sufficiently intelligible to be advanced. The claim was confined to the items listed in the table in the further information. Any additional claim concerning contamination would require amendment, subject to limitation issues.
3. Nomura International Plc v Granada Group Ltd & Ors [2007] EWHC 642 (Comm) concerned a conditional and speculative claim issued without a settled intention to pursue it, where the claimant could not identify the alleged complaint even in rudimentary form. This case was materially different: the claimant intended to proceed and had identified the essential complaint, namely failure to remove promised obstructions and structures. The abuse question was highly context-sensitive and was not engaged here.
4. The claimant was ordered to state, for each defendant and each of the 72 items, whether breach of contract was alleged and all supporting facts and matters. It was also ordered to provide full particulars of loss and damage. The court would not require a defence until those particulars were supplied; non-compliance could lead to an unless order and ultimately strike-out.