CL-2021-000431 - [2025] EWHC 1940 (Comm)

Claim pleaded in a Reply

It is common ground that, pursuant to CPR PD 16.9.2,

“A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example, a reply to a defence must not bring in a new claim. Where new matters have come to light the appropriate course may be to seek the court’s permission to amend the statement of case.”

Mr Pearson for the Claimant contends that as the Defendants have sought to plead the new Misrepresentation Claims in the Re-Amended Reply, then this is an appropriate case for strike-out under CPR 3.4.2(c), under which strike out is available where “there has been a failure to comply with a rule, practice direction or court order”.

I have held that the Misrepresentation Claims are not amenable to summary judgment and are properly arguable.

Given the procedural history which I have summarised above and the chronology by which the discarding claim and disclosure relevant thereto has emerged piecemeal, it would seem to me to be excessively formalistic and contrary to the overriding objective to strike out those Claims and to require them now to be re-pleaded de novo in the Counterclaim. The Misrepresentation Claims have already been fully pleaded to by both parties in the Rejoinder and Surrejoinder and in Further Information. I agree with Ms Hosking for the Defendants that nothing would usefully be served by exercising a strike out power at this stage.

While the Claimant relies on the decision of Pepperall J in Martlet Homes Ltd v Mulalley & Co Ltd [2021] EWHC 296 (TCC), I do not consider that the judge in that case was dealing with a case such as the present. Further, CPR PD 16.9.2 gives a discretion to that Court, hence the words, “Where new matters have come to light the appropriate course may be to seek the court’s permission to amend the statement of case.” [Emphasis mine] I see no benefit or good reason to disturb the present state of the pleadings where both parties are fully aware of the issues involved in the Misrepresentation Claims.