CR-2022-BRS-000101 - [2025] EWHC 2291 (Ch)

In Kim v Park [2011] EWHC 1781 (QB) at [40], Tugendhat J held that, where a statement of case is found to be defective, it is normal for the court to refrain from striking out without first giving the party concerned an opportunity to amend, provided that there is reason to believe that the party will be in a position to put the defect right. This was referred to with approval by the Court of Appeal in Alton v Powszechny Zaklad Ubezpieczen [2024] EWCA Civ 1435, [34], as “a reflection of what will in many cases fulfil the Overriding Objective”. But it is not always appropriate to do this: see eg Gamatronic (UK) Ltd v Hamilton [2013] EWHC 3287 (QB), [53]; Webster v Penley[2021] EWHC 3386 (Ch), [72]-[74].

If this were a first attempt at pleading this case, and particularly if the petitioners had previously been acting in person but had now instructed a lawyer, it would have been sensible to give the petitioners an opportunity to put their house in order. However, it is not a first attempt. This petition was first presented on 21 September 2022, now almost 3 years ago. The petitioners were represented at the outset by solicitors and counsel, though they changed solicitors (and indeed counsel) during the course of the proceedings. They then had a significant period when they were acting in person, I am afraid to very little effect, until quite recently, since when new counsel (with litigation rights) has taken over both the conduct of the litigation and the advocacy. The petition as originally presented is no longer persisted in, and a number of iterations of draft amended petitions have been put forward (including two in quick succession most recently). The question for me is whether I think that, if the petitioners are given a further opportunity to put things right, they will be able to do so.

The first thing to say is that I do not think that there are any problems of standing now remaining, even though the amendments raising equitable claims have been disallowed. The second, much more serious problem is the lack of specificity of attribution of unfairly prejudicial conduct amongst the active respondents. Since the petitioners have had three years to think about this, I have some doubts about the likelihood of greater specificity in attributing conduct to one or more of the active respondents than there has been up to date.

Moreover, the overriding objective (of enabling the court to deal with cases justly and at proportionate cost) set out in CPR Part 1 requires the court to take account of a number of matters, including allotting to a particular case an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases. Here these petitioners have had more than their fair share of judicial resources in the last three years, with numerous hearings (and judgments to write), meaning that other litigants have to wait longer for their cases to be heard.

Nevertheless, I do not think I should drive the petitioners from the judgment seat until they have had a final opportunity to put right the problems of specificity of attribution now identified in this judgment. I think I ought at least to give the petitioners a brief opportunity to redraft the petition with that greater specificity.