Laing O’rourke Delivery Limited v Sweett (UK) Limited

Strike out is reserved for a statement of case that discloses no legally recognisable claim, is unreasonably vague or incoherent, abuses the court’s process, or cannot fairly be tried. The court must assess the pleading as it stands and avoid a mini-trial where factual or expert issues require investigation at trial. A case with a real prospect of success should generally proceed despite imperfections, limited vagueness, inconsistencies or a preferable alternative form of pleading. The claimant must nevertheless plead the facts completing its cause of action, including the alleged acts or omissions, the relevant contractual requirements, causation and loss. Amendments may be allowed where the pleaded case is arguable, coherent and supported by a real prospect of success. Cross-referencing between pleadings is permissible where it does not impede the fair and efficient conduct of the litigation.

The claimant sought to recover from the defendant, an independent tester whose liabilities had been novated to it, losses arising from alleged fire-safety, roofing, en-suite door and vanity-unit defects at a hospital constructed under a PFI project. The defendant applied under CPR 3.4(2) to strike out parts of the claim and opposed the claimant’s proposed amendments. It argued principally that the claimant had conflated the independent tester’s obligations with those of the architect, had failed to plead complete causes of action, and had advanced incoherent or hopeless allegations. The claimant contended that its latest pleadings identified the relevant Schedule 8 non-compliances and the defendant’s distinct review and inspection duties. The central issues were whether the current pleadings disclosed reasonable grounds, whether they constituted an abuse of process or breached pleading requirements, and whether the amendments should be permitted.

1. Applications dismissed and amendments allowed. The strike-out application failed in relation to all challenged parts of the claim. The latest draft Amended Particulars of Claim and response to the request for further information were permitted to proceed, subject to consequential matters. The parties were directed to agree an order reflecting the judgment.
2. On an application under CPR 3.4(2), the court must concentrate on the current pleading, not earlier drafts. Strike out is appropriate for a claim that is incoherent, discloses no legally recognisable cause of action, is abusive, or cannot fairly be tried. It is not a sanction for imperfection, avoidable detail, or a pleading that could have been expressed more clearly.
3. The court must not conduct a mini-trial. Whether the alleged non-compliances existed, whether the independent tester’s contractual duties extended to identifying the absence of a risk assessment, whether the roofing and door allegations involved non-compliance with Schedule 8, and whether breach caused loss were matters requiring evidence and expert assessment at trial. Each allegation had at least a real prospect of success.
4. The pleaded case adequately distinguished the architect’s design obligations from the defendant’s obligations to review or monitor design compliance and to inspect the works. The pleading, read as a whole, identified the relevant contractual requirements, alleged non-compliances, the defendant’s acts or omissions, and the resulting loss. It was unnecessary to reproduce every cited code or standard in full where the relevant provisions were sufficiently identified.
5. The vanity-unit claim was properly characterised principally as a monitoring and inspection claim. Although it might require refinement, it was not a knock-out case and should be tested at trial. Cross-references to the response to the request for further information did not, in the circumstances, impede the fair conduct of the litigation.
6. The court assumed, without deciding, that the real-prospect requirement applied equally to the proposed amendments whether they introduced a new claim or supplied further particulars. On that basis, the amendments and underlying claims were sufficiently arguable and coherent.