Failure to adequately plead or prosecute a claim may lead to it being struck out.
The court has refused an appeal to reinstate a property claim which was struck out because the judge decided it was going nowhere, in Brem v Clark and another [2023] EWHC 1358 (KB).
The claim arose from the claimant’s purchase from the first defendant of premises in Basildon, Essex, in September 2018.
The second defendant were his solicitors on the purchase. The claimant initially rented the property from the first defendant and then negotiated to buy it. His mortgagee, Santander, valued the property at £325,000 in July 2018.
The claimant claimed that as a tenant he used the whole of the back garden area and that he understood that it was all to be conveyed to him.
He alleged that the property was worth £18,000 less than he paid for it which sum he claimed from both defendants and a further £16,000 from the first defendant.
Allegations of fraud and collusion were also made against the solicitors. They were subsequently withdrawn in correspondence but still appeared in the particulars of claim.
The defendants argued that the back garden area was truncated with a fence marking the area to be purchased.
The solicitors had written to the claimant in August 2018 with a plan asking him to confirm that it correctly identified the land to be purchased. The claimant denied receiving the letter.
The surveyors who undertook the valuation for Santander also confirmed that their valuation was for the property with the truncated garden as the fence was in place at the time.
The solicitors sought to strike out the claim and the claimant subsequently sought to amend his particulars of claim. Following two adjournments at the claimant’s request, the applications were listed for hearing on 4 February 2022.
On that day the claimant’s counsel was unwell and he was unrepresented. The judge refused a further adjournment and, without hearing the claimant, struck out the claim because he was unlikely to prove his loss. The claimant appealed.
Refusal to adjourn a hearing is a case management decision which should only be reversed or interfered with where it is plainly wrong. The judge’s decision was within his discretion and not wrong.
The strike out decision was influenced by the pitiful state of the pleaded case and the incompetent way in which the litigation had been conducted. The judge was entitled to take the view that the claim was going nowhere.
Louise Clark is a property law consultant and mediator
