Bad Pleading - Tejani v Fitzroy

I have written about Bad witness statements. I am also increasingly seeing bad pleadings: Particulars of Claim, Defences, Counterclaims and Replies. Pepperall J provided some useful guidance in Tejani v Fitzroy Place Residential Ltd [2020] EWHC 1856 (TCC).

T bought a brand new, very expensive flat. He claimed it is uninhabitable due to an irregular noise of  unknown source. He claimed big losses. The Defendants applied to strike out part of the Particulars of Claim on the grounds that:

1. T failed to show any causative link between the alleged breaches of contract/duty and losses.
2. No expert evidence had been provided.
3. T pleaded no details of steps taken to mitigate his losses.
4. The Particulars of Claim contained allegations not supported by T’s evidence.
5. The claimed losses included double recovery.

The application was dismissed and held to have been bad due to the following matters:

• Under CPR 3.4(2) the court may strike out a statement of case if it discloses no reasonable grounds for bringing or defending the claim or is an abuse of process.
• The principles for the determination of an application under CPR 3.4(2) are:
• A statement of case may be struck out if it does not disclose a ground of claim or defence known to law or the court is certain the claim or defence is bound to fail.
• The court looks at the statement of case, not the evidence (unlike summary judgment under CPR 24), and must assume the truth of the pleaded case.
• A statement of case may be struck out for bad drafting but this is a last resort and the court should usually allow the party an opportunity to file a coherent and intelligible document.
• The argument that T’s statement of case should be struck out for failing to plead evidence was hopelessly misconceived. “Every bar student is taught that they should plead facts and not evidence, but it is regrettably a distinction that is all too often lost sight of and is increasingly responsible for extraordinary prolixity in pleadings.” Not only was there no merit in the complaint that T did not plead evidence but he was right not to do so.
• This equally applies to expert evidence. CPR PD para 4.3 requires PI claimants to serve a medical report but that is the exception. There is no general rule requiring the service of expert evidence at the pleading stage.
• There was also no merit in the complaint that T did not plead the steps he had taken to mitigate his losses. It is for the Defendants to plead and prove any alleged failure to mitigate. T had no obligation to plead anything about this unless he sought damages for losses incurred in his mitigation attempts.
• T’s pleading was sufficiently clear. “One instinctively suspects that he overstates the position, but that is an issue for evidence and not a strike-out application under r.3.4. It is a perfectly intelligible case with which the Defendants can engage.”
• The Defendants were right to observe that T appears to be double-counting his losses but that is a matter for pleading in reply and trial, not strike-out.

There is a lot more to good pleading than just these principles but the fact is that these points do need re-stating.