Saeed & Anor v Ibrahim & Ors

On a late strike-out application, the court must identify the jurisdiction relied on and give the respondent a fair opportunity to meet it. An application under CPR 3.4(2)(a) ordinarily turns on the statement of case. Evidence-based conclusions are generally unsuitable for that jurisdiction and belong, where appropriate, under Part 24 or at trial.

Illegality is a policy question governed by the structured approach in Patel v Mirza, not a pleading objection ordinarily suitable for summary determination. Limitation issues involving deliberate concealment and reasonable diligence are fact-sensitive. They should not be struck out where the pleaded case has reasonable grounds. The application was dismissed.

The claimants alleged that the first claimant and the first defendant had dishonestly transferred or dealt with family assets to place them beyond the second claimant’s reach in matrimonial proceedings. They advanced trust-based claims against several defendants. The applicants, being the first, third, fourth and fifth defendants, sought to strike out most of the particulars of claim under CPR 3.4(2)(a), relying on illegality and limitation. They also sought summary judgment under Part 24, although that relief was not identified in the application notice.

The issues were whether the application could be treated as a Part 24 application, whether illegality could dispose of the claims at this stage, and whether the second claimant’s limitation case based on deliberate concealment had no reasonable grounds.

1. The application was treated only as one under CPR 3.4(2)(a). Although strike-out and summary-judgment jurisdictions overlap, the applicant must make the jurisdiction sufficiently clear. The unexplained reliance on Part 24 in the skeleton argument created a real risk of unfairness, particularly because the application was made shortly before trial. A strike-out application under CPR 3.4(2)(a) will usually be determined by the statement of case. Reliance on evidence to draw conclusions ordinarily points to Part 24.

2. The illegality issue could not properly be determined on the application. Applying the structured public-policy approach stated in Patel v Mirza, the court must consider the purpose of the prohibition, other relevant public policies and proportionality. Those delicate policy questions were unlikely to be suitable for determination on a strike-out application and might require a trial.

3. The second claimant’s pleaded claims appeared difficult. Her alleged relationship with the defendants was consistent with remedial liability such as knowing receipt rather than an institutional trust. On the pleaded facts, it was difficult to see how common-intention or resulting trusts could have arisen between her and defendants with whom she had no relevant dealings or knowledge. If the claims were remedial, she could not rely on the trustee provisions in section 21 of the Limitation Act 1980, nor on section 32(2) through a breach of duty by the defendants.

4. Those observations did not justify striking out the limitation case. The allegation of deliberate concealment was pleaded, and the questions of who concealed what, the second claimant’s actual knowledge, and what she could have discovered with reasonable diligence were fact-sensitive. The pleading therefore could not be said to disclose no reasonable grounds. The different positions of the co-claimants were unusual but not so contradictory as to require strike-out.

5. The application was dismissed. The court indicated that further particulars of the limitation case should be provided and invited submissions on whether the second claimant’s common-intention and resulting-trust claims should proceed to trial. The dismissal gave no encouragement as to the ultimate merits.