Neil Spurgeon & Ors v Capita PLC

A pleading is the lawyers’ formulation of a client’s case, not the client’s evidence. Counsel may clarify instructions, formulate generic allegations and put proposed factual formulations to clients for confirmation, provided there is a proper factual basis and the clients assent to the pleaded case. Alleged imperfections in pleading do not ordinarily justify striking out an entire multi-claimant action. Abuse of process requires a sufficiently serious misuse of procedure, assessed in all the circumstances and with proportionality. Striking out is a draconian last resort, particularly where liability is admitted or the alleged abuse concerns only the pleading of damage. However, unclear or potentially misleading wording may obstruct the just disposal of proceedings and should be clarified or reformulated through case management.

This was an application by Capita PLC under CPR 3.4(2)(b) to strike out claims brought by 3,973 individuals arising from an alleged data security breach. The defendant alleged that the claimants’ solicitors had embellished and levelled up the pleaded distress and had thereby tainted the claimants’ beliefs and future evidence. It also alleged that the claimants had participated in the abuse by assenting to the Particulars of Claim, tables and schedules.

The claimants accepted that the pleadings had been put to each claimant, that amendments had been made where requested, and that each claimant had assented to the final version. The central issue was whether the formulation and authorisation of the pleaded claims constituted an abuse of process requiring the entire action to be struck out.

1. Application refused. The claims were not struck out on either the Authority Ground or the Abuse Ground.
2. Pleadings are drafted by lawyers and state the facts relied upon to advance a legal claim. They are not witness statements or evidence. The factual evidence of each claimant would be tested later through witness statements, cross-examination and trial.
3. Counsel has wide latitude when formulating a pleading. Counsel may seek clarification, advise on the facts necessary to establish a claim, and put proposed formulations to a client for confirmation. A pleading may use generic or repetitive wording in a large multi-claimant action where there is a real factual basis and each claimant assents to its application to their case.
4. The court found no abuse of process. The expressions criticised by the defendant, including “tormented”, “violation of the security” and “betrayal of trust”, had a plausible basis in the data breach, the warnings given to claimants and the claimants’ answers indicating anxiety or distress. The court had insufficient material to conclude that any claimant had acted improperly or that future evidence had been permanently tainted by confirmation bias.
5. The word “tormented” was capable of materially different interpretations and, together with the other expressions, was likely to obstruct the just disposal of the proceedings. The parties were therefore directed to consider clarification or reformulation, including possible replacement wording, at the consequentials stage.
6. Even if an abuse had been established, striking out all claims would have been disproportionate. It would deny claimants a remedy for alleged or admitted wrongdoing because of the manner in which their lawyers formulated damage. Alternative safeguards included further information, early witness statements, trial evidence, cross-examination and costs orders.