Payone GmbH v Jerry Kofi Logo

The claimant sought to strike out a document styled as a witness statement which the defendant said amounted to a defence and counterclaim. The court applied the strike‑out principles under CPR 3.4(2), considering whether the document disclosed reasonable grounds of defence, whether it was an abuse of process or otherwise likely to obstruct the just disposal of proceedings, and whether any defect could be cured by amendment.

The judge held that the witness statement was not in CPR form, was incoherent as a defence, frequently gave evidence where a defence should plead facts, and advanced numerous subsidiary complaints unconnected to the narrow relief sought (a permanent injunction to protect the claimant's confidential information). The defendant’s public‑interest and delay defences, reliance on a Polkey remedy, and many factual assertions (about mobile phones, Apple ID use, policies, recordings and translations) disclosed no reasonable ground of defence to the injunction claim.

Accordingly the witness statement was struck out in its entirety as disclosing no reasonable grounds and as abusive or disproportionate in many respects, but the defendant was granted limited permission to file a narrowly confined counterclaim relating to the pension matters pleaded in the revised witness statement (paras 183 and 197(c)), with the claimant allowed to file a defence to that counterclaim.

Background and parties: The defendant was a former employee who, after termination, retained and disseminated material said by the claimant to include confidential information and personal data. The claimant obtained an interim injunction from Linden J restraining use of confidential information but allowing disclosure to specified regulators and to be retained for certain litigation. The claimant then applied to strike out a witness statement served by the defendant which he said was in effect a defence and counterclaim.

Nature of the application: The claimant sought strike out under CPR 3.4(2) of the defendant’s witness statement/amended witness statement on grounds that it disclosed no reasonable defence, was an abuse of process and failed to comply with the CPR. The claimant sought to have the document removed from the court file so that the final injunction could be determined without reliance on it.

Issues framed:

• Whether the witness statement complied with the CPR and, if not, whether the defects could be cured by amendment;
• Whether the material in the witness statement disclosed any reasonable grounds of defence to the claimant’s application seeking a final injunction to protect confidential information;
• Whether elements of the defendant’s purported counterclaims were abusive, res judicata or otherwise bound to fail; and
• Whether any limited counterclaim ought to be permitted.

Key findings and reasoning: The court found the witness statement was not in the form required, mixed evidence with pleading, and failed to make coherent connections between many allegations and the narrow relief sought. The judge applied settled strike‑out authorities and emphasised that striking out is a remedy of last resort but appropriate where a statement discloses no reasonable grounds or is abusive and cannot realistically be cured. The court rejected the defendant’s reliance on public interest and regulatory disclosure as insufficient to defend the injunction claim, held that delay and a Polkey argument did not provide a realistic defence, and treated many proposed counterclaim heads as either already pursued elsewhere, estopped by Employment Tribunal findings, legally inappropriate (for example payslips under the Employment Rights Act), de minimis, or otherwise lacking reasonable prospect of success. The pensions allegation was treated differently: because some aspects were not plainly bound to fail and the claimant accepted certain pension failings and potential compensation, the court permitted a limited counterclaim solely on the pension matters pleaded at paras 183 and 197(c) of the revised witness statement, with 14‑day timetabled pleadings.

Procedural outcome: The witness statement was struck out in its entirety, but the defendant was given 14 days to file a counterclaim limited to the pension-related allegations and the claimant was given 14 days to file a defence to that counterclaim.

The claimant's strike‑out application was allowed in large part: the defendant's witness statement was struck out in its entirety because it did not comply with the CPR, disclosed no reasonable grounds of defence to the narrow injunction claim, and in many respects constituted an abuse of process. However the defendant was given permission to file, within 14 days, a counterclaim limited to the pension allegations pleaded at paragraphs 183 and 197(c) of the revised witness statement; the claimant may file a defence to that counterclaim within 14 days of service.