Saeed Akbar v Mohammed Sajead Ghaffar & Anor

CPR 16.5 is not a self-contained code. A material failure to plead to allegations may justify strike out under CPR 3.4(2)(b) or (c), although the consequences prescribed by CPR 16.5 remain relevant to proportionality. The court must assess the seriousness of the breach, any good reason for it, and all the circumstances. Strike out is appropriate where unremedied pleading failures prevent the defendant’s case and the issues from being properly understood. A final opportunity to amend may nevertheless be proportionate where the claim involves serious allegations and the defendant is acting in person. Declaratory relief may be granted on a default basis where the court has sufficient evidence, the defendant has had a fair opportunity to participate, and the declarations will not bind third parties.

The claimant brought proprietary claims concerning substantial sums allegedly entrusted to the defendants for property and other investments. The defence was served pursuant to an unless order but allegedly failed to address numerous allegations as required by CPR 16.5.

The claimant applied to strike out the defence under CPR 3.4(2)(b) and (c), and sought judgment on the proprietary claims. The defendants had previously been given an opportunity to amend but did not do so. The court considered which deficiencies were significant, whether strike out was proportionate, and whether declaratory relief could properly be granted without a trial.

1. The court had jurisdiction to strike out for breach of CPR 16.5. CPR 16.5(3) and (5) did not exclude CPR 3.4(2)(c), although the consequences provided by CPR 16.5 were highly relevant when deciding whether strike out was reasonable and proportionate. A deficient defence could also amount to an abuse of process or obstruct the just disposal of proceedings under CPR 3.4(2)(b) ([94]-[95]).

2. The Mitchell and Denton considerations were relevant and important: seriousness of the breaches, whether there was a good reason, and all the circumstances. The question differed from relief from an existing sanction because the proportionality of strike out itself was in issue ([93], [126]-[140]).

3. The responses concerning Thackery Court and Flat 21 Bramerton advanced positive cases sufficiently intelligible for the deficiencies not to justify strike out. The remaining allegations involved significant and, in several respects, serious failures to plead to the terms of the alleged trusts, the handling of the money, prior inconsistent accounts, and the relief claimed. Those failures materially obstructed identification of the issues and rendered the relevant parts of the defence abusive or likely to obstruct the just disposal of the proceedings ([106], [111]-[125], [139], [146]).

4. Paragraphs 30 to 69 of the defence were therefore ordered to be struck out under CPR 3.4(2)(b) and (c). However, because of the seriousness of the allegations, the defendants’ personal status and limited evidence concerning the first defendant’s health, the court allowed one final opportunity. Judgment could not be entered for 14 days. If an application to amend, supported by a draft compliant defence, was served within that period, entry of judgment would be stayed pending an expedited hearing ([148]-[150], [156]-[157]).

5. Declaratory relief was permissible on the default basis. The court could rely on the evidence supporting the earlier injunction and the statements of truth in the pleadings. The declarations would not bind third parties, and default resulted from the first defendant’s failure to engage. Relief was confined to the primary trust claims and was not expressed in alternative contractual or partnership terms ([151]-[155]).