Weekly Case Updates – Civil Litigation
Our Weekly round up of cases from the Civil Litigation team
A claim form which does not include ‘a concise statement of the nature of the claim’ is defective and cannot be validated the Letter of Claim or the Particulars of claim
Free Leisure Ltd (t/a “Cirque Le Soir”) v Peidl And Company Ltd & Anor  EWHC 792 (Comm)
Charles Hollander KC, sitting as a High Court judge considered the appropriate course when the “facts” section of the claim form was blank.
The Claimant issued a Claim Form which contained no facts at all, contrary to CPR 16.2(1) in an attempt to protect limitation. The Defendant invited the court to strike out the claim form on the grounds of (a) the claim form disclosed no reasonable grounds for bringing the claim against the Defendants (CPR 3.4(2)) (b) in the alternative, failure to comply with CPR 16.2(1) and (c) the issuing of a bare claim form in an attempt to stop limitation running and thus to deprive a Defendant of any potential limitation defence amounts to an abuse of process. Other alternative arguments were advanced as set out in the judgment linked below.
The Claimant accepted that the Claim Form was defective in accordance with CPR 16.2(1) but, with reference to CPR 2.3, argued that it is wrong to consider whether the Claimant had disclosed reasonable grounds for bringing the claim using the Claim Form in isolation and that it should be viewed in light of the other documents constituting the Statement of Case, such as the pre-action correspondence, the Letter of Claim and the Particulars of Claim which had been served. The Claimant relied on the cases of Evans v Cig Mon Cymru Ltd  EWCA Civ 390 and Travis Perkins Trading Co Ltd v Caerphilly County Borough Council 2014 EWHC 1498 (TCC)
The court struck out the Claimant’s claim on the basis that the other documents referred to by the Claimant could not be used to interpret or construe the Claim Form in this case. It also found that the court had no jurisdiction to permit amendments to the Claim Form without leave as contended for by the Claimant as a remedy to any breach of 16.2(1). In respect of each of the documents relied upon the court found as follows:
“§29 In my view the position is as follows
- There are no facts set out in the Claim Form.
- The Letter of Claim cannot be used to interpret or construe the Claim Form because it does not in any sense interpret or construe it; the present case is quite different from Evans.
- But in any event, the Letter of Claim was created after limitation had expired when the Claim Form was served. If in Muduroglu the court had no jurisdiction to permit amendments made to the Claim Form without leave after issue prior to service but after limitation had expired, the Claimant can hardly be in a better position by drafting a Letter of Claim and sending it with the Claim Form at the time of service of the Claim Form but after limitation has expired.
- In any event there are problems in any circumstances in relying on a Letter of Claim as an aid to interpretation of a pleading, at least other than in an extreme case.
- The Particulars of Claim cannot be relied upon to explain the Claim Form; in Evans the Particulars of Claim were served at the same time as the Claim Form. Here they were not even served at the same time the Claim Form is served; they were served after limitation had expired.
- The Particulars of Claim plead new causes of action; it cannot be said that they plead the same causes of action as the Claim Form because the Claim Form pleads no effective cause of action.
- Thus it would be necessary to obtain leave to amend the Claim Form because it could not otherwise be permissible to serve non-conforming Particulars of Claim.
- However there is no jurisdiction to amend the Claim Form because limitation has expired and the amendments raise new causes of action which are not on substantially the same facts as those already contained in the Claim Form.
§30. In those circumstances the claim cannot continue. I do not think it matters which of the various strike out routes is adopted. The claim must be struck out.”
The full judgment can be accessed here.
This is yet another reminder from the courts of the importance of compliance with the Civil Procedure Rules when drafting court documents and statements of case. The effects of failure to comply can and do, as evidenced here, result in the striking out of claims, defences and key witness statements.
Court considers whether cross examination conducted remotely is as effective as cross-examination in person
Al Jaber v Al Ibrahim and another  EWHC 719 (Comm)
The Defendants applied to give evidence remotely by video link from Saudi Arabia in circumstances where the Defendants purported to be detained by the Saudi Arabian authorities as part of an investigation by a committee headed by Crown Prince Mohammed bun Salman and established by royal decree. The committee responsible for oversight of the process had imposed a travel ban on the Defendants as permitted by royal decree.
The Claimant opposed the application on the basis that the only evidence supplied to the court in support of the Defendants’ application was the Defendants’ own oral assertion and the court was invited to consider the application with a degree of scepticism.
Following consideration of the the above positions, His Honour Judge Pelling KC, (sitting as a High Court Judge) granted permission for the Defendants to give oral evidence remotely by video link from Saudi Arabia. Here, the court considered the pros and cons of remote cross-examination and suggests measures to be imposed to improve the effectiveness of remote evidence.
The judgment is considered to be of particular interest as it seems that remote hearings are more common following the pandemic. An interesting point was the qualifications added to the permission for the Defendants to give evidence remotely which were as follows:
“§14. In those circumstances I will make the order. However, the order will be subject to qualifications. The order will require that there be a solicitor present at all times when the defendants’ evidence is being given in the room where the evidence is being given from. I also direct that there should be a 360-degree camera which enables all in court to view the whole of the room from where the evidence is being – something which was adopted in a case I heard very recently and which was remarkably effective.”
The full judgment can be accessed here.
For any other enquiries, or to discuss instructing the Civil Team at Atlantic Chambers, please contact email@example.com