HT-2022-000180 - [2024] EWHC 1088 (TCC)

The strike out application has been mooted since June 2023. This judgment could contain a lengthy account of correspondence between the parties about complaints and responses in respect of LOR’s pleadings, as well as complaints about Sweett’s pleadings. There is material in the skeleton arguments on both sides comprising a stage-by-stage account of four versions of the Amended Particulars of Claim and four versions of the Further Information provided by LOR in answer to the RFI. Sweett has prepared a composite document which shows the changes made between the various versions of the Amended Particulars of Claim in different colours. The key shows the date of those amendments. Sweett makes allegations of shortcomings in the pleadings at each stage and LOR has provided its responses.

It is evident that there has been an unhappy history in this process. Sweett submits that the pleadings have been dogged by a lack of clarity and specificity as well as by confusion or error on the part of LOR in the case that it is pursuing. Sweett’s case is that this is evidenced and magnified by the different versions and inconsistencies of the case in the various documents. LOR submits that, at best, the complaints about the pleadings have been unnecessary and, at worst, there has been a course of conduct unreasonably to prevent LOR from advancing its case. LOR submits that its various versions reflect attempts on its part to avoid controversy and to make progress with the case. It denies that they evidence any shortcomings in its case.

The examination of the genesis of pleadings to date is a distraction from examining the current pleading. It is necessary to consider the application not as it would have been months ago, but as it now stands. The written arguments in part obscure an examination of the pleadings in their current form by harking back to previous versions of the pleadings. Any benefit in examining the history of the pleadings in order to test if it evidences shortcomings of either party’s case is outweighed by the distraction which it entails. The Court must concentrate on the issue which it has to decide, namely (i) whether the pleadings as they stand are adequate (ii) insofar as they are not, whether further attention and a further opportunity should be afforded (iii) if not, whether parts of the pleadings should be struck out, and (iv) whether and to what extent the proposed amendments are to be allowed.

The Court has been informed that several hundreds of thousands of pounds have been incurred in costs in dealing with the pleadings. It is difficult to escape the impression that one reason for dwelling on the history of the drafts was so as to set the scene for submissions which may be made as to costs irrespective of the result, particularly if the various versions have generated large costs. If that were a reason for the repeated references in the skeletons to the history, it is not helpful at the adjudication stage in respect of the adequacy or deficiencies of the pleadings. The Court will not test whether there is anything in this impression because it will judge matters for the purpose of determining the applications as they now stand and without having in mind any costs consequences.

The parties agreed for the purpose of hearing on the applications to confine their observation to the current status quo. Whilst tempted occasionally to refer to the past history, both parties exercised commendable restraint in refraining from so doing.