Citation: [2025] EWHC 2996 (TCC)
Background
The Defendant (‘BT’) applied for strike-out or summary judgment following earlier case-management directions in which the court ordered the claim (originally commenced under Part 8) to proceed as a Part 7 claim, noting that it required proper particularisation. After the Claimant (‘IES’) served its Particulars of Claim, BT challenged their adequacy on several grounds:
- IES had failed to clearly and coherently set out the cause of action relied on. The need for clarity was particularly important: IES had repeatedly changed the nature of the cause of action advanced, both during and after adjudication. BT argued that this demonstrated the inherently unclear and unstable nature of the claim and that, absent significant intervention by the court, the claim was likely to remain a moving feast.
- The pleaded cause of action was said to be unsustainable as a matter of law insofar as it advanced a claim for damages based on a zero interim valuation.
- IES sought to rely on matters that were inadmissible and/or irrelevant.
- The claim, insofar as it was based on an alleged variation by conduct and/or estoppel by convention, was inadequately particularised.
- IES had failed to particularise its alleged loss and damage.
- The continued claim for declaratory relief in the alternative to damages was said to be of no utility.
- IES had failed to provide proper particulars in accordance with BT’s Requests for Further Information, particularly regarding (i) the cause of action relied on, and (ii) IES’s reliance on post-contractual conduct.
- Wrongly, IES had stated an intention to particularise its case in witness evidence in due course. Further, IES wrongly contended it could raise at trial the matters set out in its draft Reply (which was out of time, contested by BT and in respect of which IES did not wish to apply).
Decision (His Honour Judge Stephen Davies)
HHJ Stephen Davies ordered that the existing Particulars of Claim, including the Replies to the Request for Further Information, be struck out and that BT was entitled to its costs to date on an indemnity basis. He further directed that unless IES paid a substantial sum on account of costs, and filed and served a fully particularised draft replacement pleading setting out each element of its claim, by specified dates, the entire claim would be struck out.
The judge accepted a number of the criticisms of the pleaded case. He found that the Particulars of Claim failed to explain how the alleged entitlement to payment for a idle poling gangs could be reconciled with the detailed provisions of the BT standard form contract or how such sums could properly have been invoiced within the contractual payment regime. The pleading also relied on pre- and post-contract conduct without making its relevance clear and included material that appeared directed to broader issues not directly tied to the pleaded causes of action.
However, the judge declined to strike out the claim entirely. He was not satisfied that the claim was unarguable on any basis, or that the defects in the pleading could not be cured by proper amendment.
Jennie Wild acted for the successful Defendant, instructed by DWF Law LLP.
