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

Deficiency of pleading

The Claimant’s grounds of complaint under this heading as developed in its Skeleton Argument and orally by Mr MacDonald Eggers KC are essentially twofold. The criticism is focussed on para. 36A(9) of the Re-Amended Reply which reads:

“[…] …in issuing the switch bills of lading in early May 2021, the Claimant impliedly represented that it did not know of any facts or matters impacting on the apparent good order and condition of the Cargo and/or that it had not acted in breach of its duties under the bills of lading. Further or alternatively, it was under a duty to speak as to its knowledge of the state of the Cargo.”

First, it is submitted that it is unclear how the implied misrepresentation is said to have been made “in issuing the switch bills of lading”. It is argued that there is no hint of how the alleged misrepresentations are supposed to be implied from the fact of issuing those bills.

In my view, this criticism is misplaced. For good or ill, the Defendants’ pleaded case is that the Switch Bills which were issued impliedly represented that the Claimant did not know of any facts or matters impacting on the apparent good order and condition of the Cargo and/or that it had not acted in breach of its duties under the bills of lading. Whether that is ultimately sustainable at trial is a separate matter, but it cannot be said that the Claimant is unaware of the case it has to meet. The facts relied upon by the Defendants as giving rise to the implied representation as to the condition of the Cargo / absence of problems with the Cargo is the fact of the issuance of the Switch Bills (or their circulation in draft) in the terms in which they were issued.

Secondly, it is submitted that it is wholly insufficient to plead a case of fraudulent misrepresentation or of knowing breach of a duty to speak out without identifying the relevant natural person whose state of dishonest or reckless mind is in issue or who knowingly breached the duty to speak. Here the Claimant is on surer ground.

It is axiomatic that “if a claim in deceit is to be made […] it is necessary to plead (a) who it is alleged made the implied representation relied on, by what means and to whom it was made […]” and that “if such an allegation is to be made then it is necessary for the pleader to plainly and distinctly allege fraud against the individual against whom such an allegation is to be made and then set out full particulars of all the primary facts and matters from which the claimant will invite a court at trial to infer deceit” : see Michael Wilson & Partners Ltd v Emmott [2022] EWHC 1481 per HHJ Pelling at [71] and [72].

Surprisingly, when further information was sought by the Claimant, the Defendants’ initial response was that there is no specific requirement to identify a natural person when pleading deceit, which strikes me as being wrong on first principles. However, the Defendants have by Further Information now particularised their case as follows.

In relation to the Request by the Claimant “Please identify the natural person or persons whose relevant ‘knowledge of the state of the Cargo’ is to be imputed to the Claimant”, the Defendants have responded:

“Not entitled. The matter is sufficiently and clearly pleaded. The (self-evident) answer is all of those people on board the Vessel and/or in the Claimant’s shoreside team who were aware of the state of the cargo. Thus, on the basis of limited and unsatisfactory information and evidence thus far provided by the Claimant, this would appear to include at least (but is not necessarily limited to) the Master and crew members identified in the Claimant's Reply to the Defendants’ RFI of December 2024 and whoever it is on the shore that they reported to, which appears to have included at least Capt Karelas, and anyone to whom he (and anyone else reported to) then imparted the information. For the avoidance of doubt, it is only the Claimant who currently knows exactly who else will have been aware of the state of the Cargo and this response extends to any such person as well.”

This has been repeated in the Surrejoinder at para. 19.2.

Accordingly, the present case of the Defendants is that the relevant natural persons for the purposes both of the duty to speak and the implied misrepresentations are the Master and Captain Karelas. That is sufficient to allow the Claimant to know what case it has to meet. Again, I leave aside the merits of the case as pleaded which will be for trial, but it cannot as at today’s date be said that the relevant natural persons have not been identified.

However, the sweeping portmanteau plea that the natural persons “would appear to include at least (but is not necessarily limited to) the Master and crew members identified in the Claimant's Reply to the Defendants’ RFI of December 2024 and whoever it is on the shore that they reported to” is in my view far too wide and embarrassing. It is difficult to contend seriously that a crew member who sees the condition of the cargo is under any duty to speak out to the cargo owner or plays any part in any implied representation which may or may not be made by the issuance of a bill of lading. It may be that further particulars will be forthcoming after disclosure. But at present it does not seem to me that that wider plea is properly maintainable without proper particularisation giving fuller details. I refrain from striking it out at this stage but would be open to making it the subject of a direction to require the Defendants either to particularise it fully after disclosure or to abandon it.

I accordingly dismiss the Claimant’s first application to strike out.