Martina Yvonne Shand v Mishcon De Reya LLP

Under CPR 3.4, a claim may be struck out where its factual basis is hopeless or fanciful, although that power is exceptional and the court normally assumes pleaded facts can be proved. Abuse of process requires a broad assessment of all the circumstances, including finality, matters that could have been raised earlier, and unjust harassment or oppression. Settlement does not prevent that assessment. General business-development activity and public association with a potential opponent do not, without a realistic causal link, establish an own-interest conflict or make a negligence claim viable. Limitation is not postponed for concealment where the relied-on facts were public and readily ascertainable. The claim was therefore struck out as abusive, factually hopeless and out of time.

The claimant issued proceedings in September 2025 against Mishcon and DWF, alleging breaches of duty and conspiracy. Following hearings in November 2025, an earlier judgment dated 18 February 2026 struck out the proceedings as then formulated and declared them totally without merit. The claimant later sought to pursue Mishcon alone on a reformulated own-interest-conflict theory based on the firm’s property-related business activities and associations with Tony Pidgley and the Berkeley Group. The issues were whether the court could revisit its earlier conclusions, permit the amendments, and whether the reformulated claim was abusive, disclosed reasonable grounds, or was time-barred.

The court formally disallowed the amendments made without permission, dismissed the application for further amendments, struck out the unamended claim under CPR 3.4(2)(a) and (b), held that it was out of time, and declared it totally without merit.

1. The court had no power to control whether the claimant reported matters to the SRA. It could revisit the earlier conclusions because no final order had yet been made and the proposed claim had materially changed.
2. For abuse of process, the court applied the broad merits-based approach in Johnson v Gore Wood [2002] AC1, the principles summarised in Dexter v Vlieland-Boddy [2003] EWCA Civ 14, and the approach applied in Aldi Stores v WSP Group PLC [2008] 1 WLR 823. Settlement rather than judgment was not a legal distinction. The Henderson v Henderson principle applied because the conflict theory could have been raised in the earlier litigation, repackaged the previous conspiracy allegations, offended finality and subjected Mishcon to successive oppression.
3. Although strike-out ordinarily proceeds on the pleaded facts, the court may act where the factual case is hopeless or fanciful. That approach is rare. The public business-development activity and associations relied on did not provide a realistic basis for an own-interest conflict, deliberate sabotage, or a causal connection with the negligent handling of the earlier claim.
4. The alleged non-disclosure ended in May 2016, so the primary limitation period expired on 1 June 2022. Section 32(1) of the Limitation Act 1980 did not postpone limitation because the material facts had been publicly available and could have been ascertained earlier. Williams v Fanshaw [2004] EWCA Civ 157 was distinguishable.
5. The claimant was given 21 days to make written submissions on costs and indemnity costs. Time for appealing would not run until a final order was made.

The claim was issued in the High Court on 26 September 2025. Following hearings on 18 and 19 November 2025, the court’s judgment dated 18 February 2026 struck out the proceedings as then formulated and declared them totally without merit. This judgment determined consequential and amendment applications at first instance; it was not an appeal.