David Alan Kyte v McLaren Automotive Limited & Anor

A claim alleging contractual breach or negligence must identify the relevant defect, breach or negligent act, and explain how it caused the loss. Alternative causes may be pleaded, but each must be linked to a defendant’s particularised breach or negligence.

Damage by fire and an asymmetry of information do not create a special pleading rule. They may justify common-sense inferences at trial where the underlying breach and causal circumstances are established. They do not excuse pleading the essential facts.

A claimant cannot rely on disclosure to discover the essential elements of an otherwise deficient claim. A defective pleading may usually be amended where there is a real prospect of doing so, but not where the claimant cannot identify a proper amendment.

The claimant alleged that a McLaren sports car was destroyed by fire after rebuilding work by the first defendant and repair, service and maintenance work by the second defendant. He claimed damages for breach of contract and negligence.

The defendants applied to strike out under CPR rule 3.4(2), contending that the Particulars of Claim failed to identify adequately the alleged defects, breaches, negligent acts and causal mechanisms. The claimant relied on alternative causes, fire damage, asymmetry of information, strict contractual obligations and res ipsa loquitur.

The issues were whether the claim was sufficiently particularised, whether a more permissive approach applied, and whether the claimant should receive an opportunity to amend.

1. Applicable pleading standard. Under CPR rule 16.4(1)(a), the claimant had to plead concisely the essential facts supporting each cause of action. The claim had to identify the alleged defect, the contractual breach or negligent act or omission, and how that matter caused the Fire and the claimed loss. Realistic and minimalist pleading did not permit vague assertions or recitals of contractual duties.
2. Causation and strict liability. The claimant could plead alternative causes, but had to explain how each alleged cause flowed from an identified breach or negligent act. The approach in Dana UK Axle Ltd v Freudenberg FST GmbH was confined to proof of the mechanism by which an established defect arose. It did not remove the need to plead the respects in which parts were defective or the way in which the defect caused the Fire.
3. Fire and information asymmetry. There was no special pleading rule for fire damage. A court might draw robust common-sense inferences where positive evidence established a breach and damage of the kind likely to result from it. That did not dispense with pleading the underlying breach. The information imbalance in this case did not justify departure from the ordinary requirements.
4. Res ipsa loquitur. The maxim was only a guide to whether a case to answer arose. It could assist where the occurrence would not ordinarily happen without negligence and the defendant had sole control at the relevant time. The Vehicle’s subsequent use and the substantial intervals after both defendants’ work meant that the Fire did not itself infer negligence.
5. Application. The allegations against both defendants largely recited contractual obligations in negative form or alleged failures to investigate, diagnose, repair or test without identifying the relevant parts, works, defects, dates, acts or omissions. They did not disclose adequately particularised claims.
6. Amendment. Although the court normally leans towards allowing a meritorious claim to be remedied, the claimant supplied no draft amendment or further particulars and had no real prospect of curing the deficiencies through later disclosure. The applications succeeded and the claim was struck out.

First-instance decision. The defendants’ applications under CPR rule 3.4(2) succeeded and the claim was struck out.