Nargis Firdous v Ecclesall Design Limited & Ors

A statement of case may be struck out where it is legally unwinnable, or is so vague and incoherent that it impedes the fair and efficient conduct of proceedings. Strike out remains a draconian remedy, but repeated failures to identify the factual basis of alleged breach, causation and loss may justify it.

Summary judgment may be granted where the claimant has no real, rather than fanciful, prospect of success and no compelling reason for trial. The court must avoid a mini-trial, but may reject implausible or unsupported evidence and consider whether the pleaded case is coherent.

Permission to amend should be refused where proposed amendments do not cure fundamental defects, lack a realistically arguable evidential basis, or would cause disproportionate waste of court and party resources.

The claimant brought claims concerning building works and the collapse of a retaining wall against an architectural and development company, its former director, a structural engineer’s company and its insurer, and a construction contractor. Claims against the former director had been discontinued or struck out before the applications were heard.

The remaining applications concerned strike out, summary judgment and permission to re-amend the Amended Particulars of Claim. The defendants argued that the pleading failed to identify coherent causes of action, alleged breaches, causation and recoverable loss, and that the claimant had failed to comply with relevant procedural requirements.

The central questions were whether the existing pleading should be struck out or summarily determined, and whether the proposed amendments cured the defects.

1. Disposition. The claims against the First, Fourth and Fifth Defendants were struck out. The court stated that it would alternatively have granted summary judgment against the claimant. Permission to re-amend, including general permission to produce a further pleading, was refused.
2. Applicable principles. Strike out and summary judgment overlap. Strike out is a draconian last resort, but may be appropriate where a pleading advances an unwinnable case or is so vague and incoherent that it obstructs the just disposal of proceedings. A pleading must set out a clear and concise factual case so that the opponent and the court can understand the case to be met, including the alleged breach, causation and loss.
3. Summary judgment and amendment. The responding party must show a real, rather than fanciful, prospect of success. The court must not conduct a mini-trial, but need not accept a party’s case at face value. It may consider the evidence available, evidence reasonably expected at trial, contemporaneous documents, implausibility and whether the party’s own factual case could establish entitlement to the remedy. A proposed amendment must also have a realistically arguable factual basis and must plead the cause of action coherently and with proper particularity.
4. Application. The claimant attributed all losses to all defendants without explaining the distinct contractual or tortious breaches alleged against each defendant or how those breaches caused the losses. The proposed fourth version remained materially deficient. The expert evidence did not supply the missing factual foundation and, in material respects, was speculative. The court also treated the deliberate failure to comply with the pre-action and disclosure requirements as relevant to proportionality and the overriding objective.
5. Final orders. Costs and ancillary orders were reserved for a form of order hearing if not agreed.