Summary

A particulars of claim which had been amended so as to add a second cause of action amounted to a "new particulars of claim" within the meaning of an unless order. Although the second cause of action was poorly drafted,a defective particulars of claim could still amount to particulars of claim for the purposes of the CPR. In any event, the first cause of action still remained and the whole matter could therefore proceed to trial.

Facts

The appellant company (H) appealed against the dismissal of its claim against the respondent construction company (D).

H's action began life as a simple claim for expenses amounting to just over £300,000. H and D had entered into a written option agreement in respect of potential development land owned by H. H claimed that under the agreement it was entitled to be reimbursed by D for expenses that it had incurred in pursuing a planning application. D denied having any obligation to pay. On the day of trial, H had sought to extend the scope of its claim. The judge made an unless order which provided that H's claim would be dismissed unless "a new particulars of claim" was served within 56 days. H served a document (version two) purporting to be a new particulars of claim. The expenses claim was maintained, and a claim for diminution in the value of the land was added. That claim was expressed to be "in excess of £50 million". The following year, H reviewed version two and took the view that it was inadequately pleaded. It sought permission to amend, submitting a wholesale re-amendment (version three) which valued the diminution of value claim at somewhere in the region of £30 million. D sought to enforce the unless order on the basis that version two did not comply with its terms. The judge decided that version two did not meet the requirements of CPR Pt 16.4, was susceptible to being struck out in its entirety, and was therefore not compliant with the unless order. He dismissed the action. The issue was whether version two was "new particulars of claim" within the meaning of the unless order.

Held

(1) It was common ground that the unless order had to be construed objectively and in the context in which it was made. It was also agreed that the question of version two's compliance had to be judged by reference to the contents of versions one and two. Version three was irrelevant for that purpose: to what extent permission would be given for the version three amendments was an issue that was separate from the question of whether version two complied with the unless order. The judge had applied the test of whether version two was susceptible to being struck out. It was doubtful that that was the correct test but, even if it was, the judge had erred in applying it to version two as a whole rather than to each of the two claims individually. While the diminution in value claim was far from well-drafted and might well have been vulnerable to a strike-out application, it did not stand alone. The original expenses claim still remained, and while its draftsmanship could be criticised, it met the requirements of the CPR and was robust enough to proceed to trial. A defective particulars of claim could still amount to particulars of claim for the purposes of the CPR. The fact that, as a whole, the document did not meet the exacting standards of a properly qualified and experienced pleader did not mean that it was a nullity, and the fact that some parts of the claim might face a strike-out challenge did not render the whole document a nullity. The judge had therefore been wrong to conclude that version two did not comply with the terms of the unless order (see paras 25-26, 28-32 of judgment). (2) (Per Mummery LJ) It was strongly recommended that unless orders in the form used in the instant case should not be used in future. There were other well known ways of dealing with litigants who attempted to make extensive amendments to their pleadings on the first day of the trial. Those other methods were, in general, less likely to give rise to the trouble that arose in the instant case (para.36).

Appeal allowed