LM-2021-000173 - [2025] EWHC 2645 (Comm)

The proceedings were issued on 3 August 2021, the “Post-Gee Claim”.

Default judgment was initially entered and then set aside by consent. By that stage, Browne Jacobson LLP had been instructed by HDI to act for Fortitude.

Particulars of Claim were filed in February 2022 and Fortitude filed a Defence in July 2022.

In February 2023, MLS issued a second claim, the “Pre-Gee Claim”.

MLS amended its Particulars of Claim in the Post-Gee Claim at the same time as serving its Particulars of Claim in the Pre-Gee Claim in July 2023, and permission was given for the amendments in the Post-Gee Claim in August 2023.

MLS says that the original Particulars of Claim alleged a freestanding tortious duty, but that duty was (it is common ground) undoubtedly pleaded at paragraph 18A of the August 2023 Amended Particulars of Claim.

Fortitude’s Amended Defence, dated 27 October 2023, denied the allegation that such a duty was owed.

There followed various stays of the proceedings which, MLS submits, related to the coverage arbitration.

Browne Jacobson LLP stopped acting for Fortitude on 10 October 2024, pursuant to their application dated 4 October 2024 to come off the record. The evidence filed by HDI in support of this application was that HDI understands Browne Jacobson applied to come off the record because they considered they were unable to continue acting for Fortitude in circumstances where Mr Hanison had ceased all contact with them and was not providing any instructions. MLS did not argue otherwise.

On 11 October 2024, MLS applied for the Pre-Gee Claim and the Post-Gree Claim to be consolidated, for permission to amend its statements of case, and for an order requiring Mr Hanison/Fortitude to provide an address for service.

On 24 October 2024, the Court made an order requiring Mr Hanison/Fortitude to provide an address for service by 31 October 2024.

The Case Management Conference took place on 1 November 2024. By the order sealed on 6 November 2024 but made at that hearing, the Court ordered that unless Mr Hanison/Fortitude provided the Court and MLS in writing with an address for service by 15 November 2024, he would be debarred from defending the claims. The order further provided that, even if he was debarred from defending, he would not thereby be relieved of his obligation to disclose known adverse documents.

Mr Hanison/Fortitude failed to comply with that order and it was common ground at the hearing of this application that he has therefore (automatically by operation of the 1 November 2024 order) been debarred from defending.

MLS says that it has since complied with its obligations under the directions given at the CMC, to give extended disclosure and serve witness statements.

On 17 February 2025, HDI’s solicitors wrote to MLS’s solicitors asking whether Mr Hanison had been debarred from defending and whether MLS had applied, or intended to apply, for a trial date (and what MLS’s intentions were in relation to the proceedings on the assumption Mr Hanison was taking no part in the proceedings). MLS’s solicitors did not reply.

On 28 March 2025, HDI’s solicitors followed up their letter of 17 February 2025 by email, saying they looked forward to hearing from MLS’s solicitors. MLS’s solicitors did not reply.

On 16 April 2025, HDI’s solicitors followed up by letter asking MLS’s solicitors to “address the queries raised in our 17 February 2025 letter without further delay”. MLS’s solicitors did not reply.

On 9 May 2025, MLS applied for a trial of limited issues.

On 2 June 2025, HDI’s solicitors telephoned MLS’s solicitors to follow up on the unanswered correspondence. HDI learned from that telephone call that Mr Hanison/Fortitude had been debarred from defending the claims brought by MLS in these proceedings. It also learned that MLS had applied for a hearing intended to dispose of the Post-Gee Claim (the issues to be disposed of including the Freestanding Tortious Duty issue) and that a hearing had been listed for four hours on 21 October 2025.

On 4 June 2025, HDI’s solicitors wrote to MLS’s solicitors, informing them that HDI intended to apply to the Court to be joined as a second defendant and seeking MLS’s consent to the joinder. By letter dated 10 June 2025, MLS’s solicitors stated that MLS did not consent to HDI’s joinder.

On 23 June 2025, HDI issued this application that it be joined to the proceedings as a second defendant. This application was subsequently listed to be heard on 3 October 2025.

Also on 23 June 2025, the Court granted MLS’s application for a trial of limited issues (alternatively, for summary judgment), with the trial being listed for the 4 hour hearing on 21 October 2025 and directions given, including a right for Fortitude to serve evidence in response to the summary judgment element of that application.