Practice and procedure – Claim form – Defect – Claimant operating nightclub from basement premises – Fire breaking out at premises causing substantial damage – Claimant bringing claim against first defendant contractor and second defendant insurer alleging negligence and breach of contract – Second defendant applying to strike out claim form and for summary judgment – Whether defective claim form validated by other documents – Application granted
The claimant operated a nightclub from the basement of 15-21 Ganton Street, London W1. Until it was dissolved in October 2021, the first defendant had provided the services of “handymen”, carrying out maintenance, repairs and similar work. The second defendant provided a policy of insurance to the first defendant.
The first defendant carried out work to install a Christmas set at the club, which involved attaching strings of lights to the ceilings and walls using a staple gun, as well as the use of fabric drapes. A fire subsequently broke out in the installation causing substantial damage.
In March 2022, the claimant served a claim form on the defendants and sent a letter of claim setting out the nature of the claim in negligence and breach of contract against the first defendant and the claim against the second defendant under the Third Party (Rights against Insurers) Act 2020. It was alleged that a staple had been driven through the wire to the lights, causing localised heating of the wire and ignition of drape material.
The second defendant applied to strike out the claim form as disclosing no reasonable grounds or for reverse summary judgment; alternatively, it argued that the claim form should be struck out for failure to comply with CPR 16.2(1).
The claimant accepted that, as the “facts” section of the claim form was blank, it was defective. However, it was not a nullity and could be validated by other documents served at the same time which gave details of the claim and against which it could be interpreted.
Held: The application was granted.
(1) CPR 16.2(1) required a claim form to: “(a) contain a concise statement of the nature of the claim; (b) specify the remedy which the claimant seeks”. It was impermissible for a claimant to indorse a writ merely with a claim for damages for breach of contract or damages for negligence without giving the defendants some indication of the contract which he alleged had been broken, or some idea of the duty which the defendants had allegedly failed to perform. A “concise statement of the nature of the claim” meant that, where the claim arose out of a contract, the endorsement should give details of the relevant contract, and where the claim arose out of a tort, it should give the date and place of the occurrence and the nature of the tort. It was necessary to at least give some idea or inclination of the duty which it was alleged the defendant had failed to perform. Documents intended to be read together could be read together and obvious mistakes could be corrected as a matter of interpretation. In construing or understanding what was intended by the wording used, the court could and where necessary should have regard to the context or factual matrix in which the claim had been prepared. It was legitimate to have regard to correspondence and applications sent or served at the same time as the claim: Marshal v London Passenger Transport Board [1926] 3 All ER 83, Libyan Investment Authority v King [2020] EWCA Civ 1690 and Nomura International plc v Granada Group Ltd [2007] EWHC 642 (Comm) considered.
(2) By reference to CPR 2.3, the claimant had argued that it was wrong to consider whether it had disclosed reasonable grounds for bringing the claim using the claim form in isolation; instead, it had to 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. However, the other documents referred to by the claimant could not be used to interpret or construe the claim form because they did not in any sense interpret or construe it: Evans v Cig Mon Cymru Ltd [2008] EWCA Civ 390 and Travis Perkins Trading Co Ltd v Caerphilly County Borough Council [2014] EWHC 1498 (TCC) considered.
(3) In any event, the letter of claim was created after limitation had expired when the claim form was served. In Muduroglu v Stephenson Harwood [2017] EWHC 3926 (TCC), a claim form issued at the edge of limitation was amended without leave in accordance with the rules before service but outside the period of limitation. The deputy judge held that the court had no jurisdiction to permit the amendments unless they fell within the regime under section 33(3) and (4) of the 1980 Limitation Act.
If in Muduroglu the court had no jurisdiction to permit amendments made to the claim without leave after issue prior to service but after limitation had expired, the claimant could not 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 had expired. In any event, there were 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.
(4) The particulars of claim could not 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 only not served at the same time the claim form was served; they were served after limitation had expired. The particulars of claim raised new causes of action; it could not be said that they raised the same causes of action as the claim form because the claim form asserted 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 was no jurisdiction to amend the claim form as a remedy to any breach of 16.2(1) because limitation had expired six years after the fire and the amendments raised new causes of action which were not on substantially the same facts as those already contained in the claim form. In those circumstances the claim had to be struck out.
Stephen Innes (instructed by Edwin Coe) appeared for the claimant; Timothy Killen (instructed by Keoghs) appeared for the second defendant.
Eileen O’Grady, barrister
