Kevin Demirci Properties Limited v Huw Griffiths Architects Limited

Striking out for litigation misconduct is a protective and exceptional remedy. Under Summers v Fairclough Homes Ltd [2012] UKSC 26, the court must ask whether strike-out is a just and proportionate response, having regard to the need to protect the integrity of the court process and the overriding objective. There is no general rule that pleading a false fact requires dismissal. The court should consider the individual circumstances, including whether the misconduct continues to impair a fair determination on the merits and whether costs or amendment can provide an adequate response.

Permission for contempt proceedings requires a strong prima facie case, a public-interest requirement, proportionality and consistency with the overriding objective. A party may amend after limitation has expired where the applicable procedural requirements are met and the court’s discretion favours amendment. Where an order permits expert evidence by discipline without naming the expert, changing the expert does not require permission.

The claimant brought a professional-negligence and breach-of-contract claim concerning architectural services for a proposed student-accommodation development. Its Particulars of Claim falsely alleged that it had entered into a joint venture with Sir Robert McAlpine and claimed losses exceeding £13.5 million on that basis.

The defendant applied to strike out the claim for litigation misconduct and for lack of privity, and sought permission to bring contempt proceedings against the claimant’s director. The claimant applied to amend its pleading and to rely on a different architect expert. The central issues were whether the false allegation justified strike-out or contempt proceedings, whether the contractual claim could be summarily rejected, whether the amendments were permissible, and whether a new expert could be selected.

1. Disposition. The defendant’s applications to strike out the claim and to bring contempt proceedings were dismissed. Permission was granted to amend the Particulars of Claim. The claimant was declared entitled to select an architect expert of its choosing.
2. Strike-out for misconduct. The power under CPR 3.4(2)(b) is draconian and may engage Article 6 of the Convention Rights. It is protective rather than punitive. The court must decide whether strike-out is just and proportionate in the circumstances, having regard to protecting the integrity of the process, the ability to do justice and the overriding objective in CPR 1.1. The starting point remains determination of the substantive merits by fair procedure. There is no rule of thumb requiring strike-out for a particular type of dishonesty or improper conduct.
3. The false joint-venture allegation was attributable principally to chaotic and incompetent drafting and inadequate inquiry by the claimant’s former barrister. The claimant and its director knew the factual position, but the judge found no intention to plead facts known to be false, dishonesty or recklessness. The error could be corrected by amendment and the defendant compensated in costs, with no continuing impairment of a fair trial. Strike-out was therefore disproportionate.
4. Contempt. Under CPR 32.14, contempt requires a false statement in a document verified by a statement of truth made without an honest belief in its truth. Permission should not be granted unless there is a strong prima facie case, the public interest requires proceedings, and bringing them would be proportionate and consistent with the overriding objective. Each element would ultimately require proof to the criminal standard. Neither threshold was met: the director’s actus reus and lack of honest belief were doubtful, and proceedings would be disproportionate in the circumstances.
5. Privity and amendment. Whether the defendant contracted with the claimant or the director personally was a mixed question of fact and law unsuitable for summary determination. The claimant’s pleading disclosed a cause of action, and there was arguable evidence of corporate involvement and an undisclosed-principal case. Applying the four-stage approach in Geo-minerals GT Ltd v Downing [2023] EWCA Civ 648, the amendments either particularised the existing claim or arose from substantially the same facts. The overriding objective favoured permission despite expired limitation and delay.
6. Expert evidence. The case-management order permitted architect evidence without naming the expert. Permission was therefore unnecessary to select a different architect. If permission had been required, it would have been granted because the change caused no prejudice and there was no reason to suspect suppression of unfavourable evidence.