VE Vegas Investors IV LLC v Evelyn Partners LLP & Ors

Where a claimant relies on specific individuals or entities as potential purchasers, those persons must be identified in the statement of case. Particularisation serves not only to plead the essential elements of a cause of action, but also to prevent surprise and enable proper disclosure and preparation for trial.

A claimant need not, at an interlocutory stage, adopt a disputed distinction between a special market and a general market. Whether that distinction is principled and applicable is ordinarily a matter for trial. A new claim must be introduced by amendment to the particulars of claim, but material already pleaded is not transformed into a new claim merely because it is developed in a response to a request for further information.

The claimant, as assignee of claims belonging to VE Interactive Limited, brought professional negligence claims against its former advisers and administrators concerning the pre-packaged sale of the company’s business.

The defendants applied for orders requiring the claimant to identify every individual or entity relied upon as a potential purchaser and to strike out parts of the claimant’s responses to requests for further information. They argued that the claimant’s case depended on a special market requiring identification of particular purchasers, and that a market-based case had been introduced impermissibly through the responses.

The application therefore concerned the level of particularisation required and whether the responses advanced a new unpleaded claim.

1. The application was allowed in part. The court declined to require the claimant to provide a closed list of all potential purchasers or to prevent reliance on descriptive categories of purchasers.

2. Where, however, the claimant relied on individual potential purchasers, those individuals or entities had to be identified in the statement of case. The requirement was necessary to ensure that the defendants knew the case they had to meet and could address it in disclosure and evidence. Adequate particularisation therefore extended beyond pleading the essential elements of the cause of action: King v Stiefel [2021] EWHC 1045 (Comm), at [145]-[148], and Towler v Wills [2010] EWHC 1209 (Comm), at [18]-[19].

3. The court did not determine whether a principled distinction existed between a special market and a general market, or which description applied to the business. Those were matters for the trial judge. The claimant could not be compelled at this stage to plead its case within a framework it did not accept.

4. The court accepted the general procedural principle that a new claim must be added by amendment to the particulars of claim and cannot be introduced in a reply or response to a Part 18 request: Martlet Homes Ltd v Mulalley & Co Ltd [2021] EWHC 296 and Costa v Dissociadid Ltd [2022] EWHC 1934 (IPEC). The claimant’s references to the market, however, were already present in the particulars of claim. The challenged passages therefore did not constitute a new unpleaded market-based case.

5. The application to strike out the challenged passages was dismissed. The issue of particularisation was dealt with on the basis that any specific individuals or entities on whom the claimant intended to rely must be identified in the statement of case.