JOHN N CROKE & Anor v NATIONAL WESTMINSTER BANK PLC & Ors

A claim form does not preserve proceedings where particulars of claim are served outside the period of validity of the claim form. Retrospective relief is governed by the Denton framework. In deciding whether to grant relief, the court may consider whether the statement of case discloses reasonable grounds, complies with the procedural rules, or constitutes an abuse of process.

Particulars of claim must plead material facts concisely and clearly. Allegations of fraud or deceit require the facts supporting the alleged representation, dishonesty and reliance to be identified. A mortgagee’s statutory power to appoint receivers is not ordinarily subject to a Braganza-type implied contractual duty of rationality.

The claimants brought a claim against NatWest, two LPA receivers and, incorrectly, the proposed replacement defendant RBS. The claim alleged deceit, lawful and unlawful means conspiracies, improper purpose and bad faith, irrationality, unconscionability, and breach of an implied contractual term.

The claim form was issued on 27 May 2021 and served within its validity period. The particulars of claim were served one day late. The claimants sought substitution of the first defendant, validation or extension of time for service, and an opportunity to amend. The defendants sought a declaration that the court had no jurisdiction and strike-out relief. The central issue was whether retrospective relief should be granted in light of the defective pleading and the history of the parties’ earlier litigation.

1. Service. The particulars of claim were served one day late. Email service was ineffective because the defendants had not consented under paragraph 4.1 of Practice Direction 6A. In any event, documents sent after 4.30 pm were deemed served on the following day under CPR rule 6.26. CPR rule 6.15 did not assist because it concerns claim-form service.
2. Relevant approach. The application for an extension of time was governed by the relief-from-sanctions framework in CPR rule 3.9 as interpreted in Denton. Although CPR rule 3.4(2) was not applied directly, the court could consider whether the particulars disclosed reasonable grounds, complied with the CPR, or amounted to an abuse of process.
3. Pleading defects. The particulars were materially defective. They were prolix, failed to identify the material facts supporting the causes of action, and did not comply with the requirements for pleading fraud, deceit and allegations concerning knowledge or dishonesty. The deceit claim did not identify the representation in context, and the conspiracy claims omitted essential allegations of combination, acts pursuant to the combination and the requisite intention.
4. Receivers and contractual duties. The appointment of LPA receivers arose from statute and involved a unilateral mortgagee’s right, rather than an assessment made in the continuing performance of a bilateral contract. The court therefore rejected the proposed Braganza-type duty of rationality. The mortgagee remained subject to the duty to exercise its power in good faith, but purity of purpose was unnecessary.
5. Relief. The breach was serious in context. The claimants’ explanations were incomplete, they had a history of non-compliance, the 2021 claim substantially overlapped the struck-out 2015 claim, and the particulars were seriously deficient. The balance of the circumstances, including finality in litigation and the defendants’ costs, firmly favoured refusal of relief. The court dismissed the claimants’ application, declared that it had no jurisdiction because the particulars were served outside the claim form’s period of validity, and considered a strike-out order unnecessary.