Jackson Yamba v BW Legal Services Limited

This appeal relates to case management directions given when dealing with permission to appeal concerning an application to strike out statements of case.

The respondent to this appeal, Mr Jackson Yamba, is a former employee of the appellant BW Legal Services Ltd (“BW”), a debt recovery firm instructed by several parking companies. Mr Yamba qualified in effect as a barrister/solicitor in the Democratic Republic of Congo and is a regulated foreign lawyer in England and Wales, regulated by the SRA. Mr Yamba was employed as a paralegal by BW. He left BW in 2020. Mr Yamba’s position is that he is now a director of a company called Contestor Legal Ltd, trading as Contestor Legal Services (“CLS”) and an employee of a solicitors firm called Lawrence & Associates (“L&A”); and that either via CLS as a lay representative or, for reserved matters as a solicitor’s employee via L&A, Mr Yamba works to draft legal documents and provide advocacy services to individuals and companies disputing parking charges. He says he has been very successful. He also contends that since the inception of CLS, BW has used every opportunity to bully him and to see him out of business, an allegation which is denied by BW.

By a claim form issued on 26 July 2023 Mr Yamba brought proceedings against BW. The claim form identifies three causes of action: malicious prosecution in civil proceedings, the tort of abuse of process, and harassment under the Protection from Harassment Act 1997. The Particulars of Claim in their original form include, amongst other things, allegations based on:

The Particulars of Claim also make allegations of malice on the part of BW and relevant knowledge for the purposes of the harassment claim.

In its Defence filed on 6 November 2023, BW admits sending the various letters and the report but denies any of this amounts to malicious civil prosecution, tortious abuse of process or harassment. The allegations of malice and knowledge are also denied.

In 2023 BW made two further complaints about Mr Yamba to the SRA which, Mr Yamba submits, were dismissed. Mr Yamba sought permission to amend the Particulars of Claim to add these allegations but that application was overtaken by events, below.

By an application notice dated 12 September 2024 BW applied to strike out Mr Yamba’s statement of case and/or for summary judgment on the basis that the Claim Form and Particulars of Claim disclose no reasonable grounds for bringing a claim and/or there are no real prospects of succeeding in the claim and there is no other good reason for it to proceed to trial. In her judgment of 16 October 2024 DJ Buck struck out the whole claim. In relation to harassment the judge held that the SRA report fell within an exception in s1(3)(b) of the Protection from Harassment Act 1997 and could not be relied on. In relation to what had happened in the county courts, the judge held that this conduct did not amount to actionable harassment. The judge concluded that the claimant “does not have any reasonable prospects of successfully making out his claim in regards to harassment” (paragraph 87).

Mr Yamba sought permission to appeal and the matter came before Dias J as an oral application on 21 May 2025. Mr Yamba represented himself and BW were represented by Mr O’Sullivan of counsel. There were other applications to deal with too but they do not matter. Dias J decided that there was no real prospect of success in appealing DJ Buck’s order in relation to the claims based on malicious civil prosecution or tortious abuse of process and so permission to appeal in relation to those was refused.

However in relation to the harassment claim she took a different view. The detailed reasons do not matter for present purposes. They led the judge to conclude at paragraph 37 that it was “certainly not clear” that there were no reasonable grounds for that claim. One dimension to be considered was the distinction between harassment under the 1997 Act and harassment at common law. The exception in the 1997 Act which applied to the SRA report did not (or at least may not) apply at common law and the judge also thought that in any case the SRA report might be relevant as part of a course of conduct even if it could not form a basis for a harassment claim under the Act. BW submitted that while the Particulars of Claim pleaded the 1997 Act, harassment at common law was not pleaded. However the judge noted there was a reference to common law harassment in Mr Yamba’s Reply. She concluded at paragraphs 39 and 40 as follows:

“39 […] At the very least it seems to me arguable that Mr Yamba should have been given the opportunity to replead the harassment claim, both under the Act and at common law.

40.

For these reasons, I consider that there is a real prospect of showing that the judge’s decision was wrong in relation to harassment, alternatively that there is a compelling reason for that aspect of the claim to go to trial. Permission to appeal is accordingly granted on that ground only, although it follows that the Costs Order made by the district judge will also have to be set aside. In order to proceed further, the claim will have to be repleaded properly and I will need to give directions about that.”

After giving judgment there was a discussion between the judge, Mr O’Sullivan and Mr Yamba about the way forward. Mr O’Sullivan suggested that completely fresh particulars would be an appropriate course, and amendments to the claim form. The court’s order at paragraph 2 gives permission to appeal on harassment only (and costs) and then at paragraph 3 makes the following order:

3.

By 4 pm on 18 June 2025, the Appellant shall:

a.

Amend the Claim Form so as to plead a claim in harassment under the Protection from Harassment Act 2017 and/or at common law;

b.

Amend his Particulars of Claim by means of a fresh document to supersede the existing Particulars of Claim in their entirety.

Paragraphs 4 and 5 of the order provide for an amended Defence from BW in July 2025 and amended Reply from Mr Yamba in August 2025. The remaining paragraphs gave directions for the hearing of the appeal in a window between October and December 2025. (In fact we understand it has been listed for March 2026.) Following a request from BW concerning the reasons for the directions about pleadings, the judge added a passage at the end of the order which is not lengthy and is worth setting out in full:

“Judge’s comment

1.

As will be apparent from my judgment, I consider that there is some substance in the Appellant’s complaint of harassment which he should have an opportunity to put before a court.

2.

The Appellant’s current Reply sufficiently raised a claim of harassment at common law, albeit such claim should be more clearly pleaded and particularised in order to be properly addressed. If the claim for harassment under the [1997] Act is to be maintained, that likewise needs to be re-pleaded.

3.

In these circumstances, the overriding objective of dealing with cases expeditiously and fairly is best served by permitting the Appellant to amend his pleadings before the hearing of the appeal. This will ensure that the appellate court considers the claim which the Appellant actually wishes to advance in the light of my judgment and does not waste its time on a claim which he does not wish to advance.

4.

That said, the Appellant has confirmed that the harassment in question ceased upon the issue of proceedings and that his claim is accordingly confined to a claim for damages.

5.

In these circumstances, the parties are strongly encouraged to explore the possibility of amicable settlement as soon as possible in order to avoid incurring costs unnecessarily on repleading the case and proceeding to a full-blown trial.”

BW filed an appellant’s notice seeking permission to appeal paragraphs 3, 4 and 5 of this order. Two grounds were advanced. Ground 1 was that paragraph 3 was a serious procedural irregularity. To order parties to file amended statements of case before the hearing of the substantive appeal was procedurally wrong because it would inevitably lead the appellate court to consider statements of case which were not available to the district judge. The result would be that the appellate court would consider a new claim on which there was been no previous judgment. Ground 2 was that the finding that the Reply sufficiently raised common law harassment was wrong in law because a Reply to a Defence cannot bring in a new claim.

Dealing with it on paper, Warby LJ gave permission to appeal on both grounds. On ground 1 Warby LJ noted that in such a case the court will often direct a party to make an application to amend or to provide a draft amended statement of case, but there was no application or draft. He was concerned that it might be wrong in principle to grant the claimant permission to make amendments which had not yet been formulated, to advance claims the legitimacy of which would be in issue in the appeal. Issues on the appeal may therefore have been inappropriately foreclosed. On ground 2, it seemed less powerful but Warby LJ decided that both grounds should be considered at the appeal.

Subsequently Mr Yamba applied to set aside the grant of permission to appeal on the grounds that BW had misled the court in its application for permission on the basis that the transcript of the hearing before Dias J showed that idea of directing amendments to the pleadings had come from BW and so they could hardly complain about it. Whipple LJ dealt with that on paper, rejecting the application as a basis for setting aside the permission but directing BW to respond to the allegation. BW did so in an explanatory note, and Mr Yamba responded to that material and also put in further material which explains a number of matters of context.

We have read all the material provided, including the contextual material. In relation to what happened before Dias J, the sequence of events was that set out above. In other words the idea of a need to replead was the judge’s own, albeit that the idea of implementing this as a direction to produce a fresh document came from BW’s counsel. Since it is now clear what happened, there is no basis for criticising BW for seeking permission to appeal the order or for the manner in which BW did so. The court was not misled by that application. The appeal will be decided on its merits.

In the meantime the parties complied with the directions to file amended pleadings and so we have an amended Particulars of Claim, amended Defence and an amended Reply.

Before this court BW were represented by Mr Dunn, who did not appear below, only, I believe, because Mr O’Sullivan was unavailable. Mr Yamba represented himself.

The oral submissions on BW’s behalf on ground 1 emphasised the distinction identified by Warby LJ between a direction to produce draft amended pleadings and the actual order made, which created a risk of foreclosing arguments at the appeal. BW also submitted that by directing the pleadings to be amended this turned the appeal from a review into a rehearing, without good reason, contrary to the principles identified by the Court of Appeal in London Borough of Ealing v Richardson [2005] EWCA Civ 1798, particularly Ward LJ at [20] (a re-hearing is an exception to the general rule) and Arden LJ at [36] to [39] (a rehearing requires an unusual factor). On ground 2 counsel emphasised the point that a Reply was not the place to plead a new claim.

Mr Yamba supported the judge’s judgment and submitted there was nothing wrong with the order to amend. It was sensible to replead the statement of case in order to allow the appeal to focus on the harassment claim and to get rid of the causes of action which had been struck out. Mr Yamba referred to CPR r52.20 emphasising that the appellate court has all the powers of the court below and contended that this was an order which could be made.

Mr Yamba showed us his amended Particulars of Claim and compared it to the original Particulars of Claim, showing us the paragraphs in the amended Particulars of Claim dealing with the letters of 26 September 2020 and 4 February 2021, and the report to the SRA of 18 February 2021. He drew our attention to three specific instances which he acknowledged were new. Two were the second and third SRA reports the subject of the unresolved application to amend and the third was a recent instance which he wished to rely on.

On ground 2 Mr Yamba submitted that the rule relating to pleading causes of action was that it was the facts which had to be pleaded, not their legal characterisation. His case was the facts relevant to the common law harassment claim had been pleaded in the original Particulars of Claim. All that the Reply had done was take issue with an assertion in BW’s Defence that common law harassment had not been pleaded.

I can deal with ground 2 now. In my judgment it should be dismissed because, as Mr Yamba submitted, what needs to be pleaded is a concise statement of the facts relied on (CPR r16.4(1)(a)). If the facts relied on amount to a claim of harassment at common law, then the fact the Particulars of Claim do not spell that out does not preclude the claimant from relying on that case to defeat a strike out application. Conversely if the pleaded facts do not make out a case of harassment at common law, then a statement in the Particulars of Claim that the claim is brought at common law is not going to save the claimant from a strike out. Mr Yamba was always entitled to contend that his facts made out a case of harassment at common law even though the Particulars of Claim did not mention it.

I turn to ground 1. In my judgment the question turns on the effect of paragraphs 3 to 5 of the order made. That is how Warby LJ approached the matter. These paragraphs were case management orders made when giving permission to Mr Yamba to appeal the district judge’s striking out the claim based on harassment. If the case management orders had the effect of foreclosing arguments which BW would wish to make on the appeal against the strike out, then they ought not to have been made. However I do not believe the orders have any such effect. Although read in isolation the permission to amend might appear as though it circumvents the appeal or even circumvents the strike out order made by DJ Buck, reading the order in context with the permission to appeal given at paragraph 2, that is not what its effect would be understood to be by an objective reader.

It is plainly intended that Mr Yamba will still have to persuade the judge that the allegations he wishes to rely on amount to a sufficiently arguable claim in harassment to avoid being struck out. He may succeed or he may fail, but the fact he has submitted an amended Particulars of Claim is not going to insulate Mr Yamba from the need to win his appeal against the strike out. It is simply going to allow the judge hearing the strike out appeal to see his harassment claim, put as clearly as Mr Yamba is able, and adjudicate on it. The claim had not been struck out below for lack of clarity, it was struck out as a matter of substance. I suppose in theory the order might be said to be wide enough to permit Mr Yamba to advance an entirely different and wholly novel case on harassment, but the judge clearly did not think that was what was going to happen, did not intend that to happen, and it has not happened. A fair reading is that it was permission to amend to replead the existing case of harassment –– not to invent an entirely new case. It is true that Mr Yamba can now clearly put forward a case based on harassment at common law, but as I explained dismissing ground 2, Mr Yamba was always entitled to make that contention. It is also true that Mr Yamba has added three new points of a similar kind to the conduct already relied on, as he explained to us; but that was not the basis for this appeal and in any case they could have been advanced and taken into account in a draft Particulars of Claim, which would have been unobjectionable.

There will be no difference at the appeal hearing between the effect of the order which has been made, and a direction inviting Mr Yamba to put forward draft Particulars of Claim. If in substance the pleaded material does not make out a claim with a real prospect of success then the strike out of the action will stand. If the case advanced has sufficient merit, then the appeal will be allowed.

I do not agree with BW that the effect of the order is to turn the appeal into a rehearing. It is true that the order means that the form of the Particulars of Claim before the appeal judge will be different from the form the Particulars took before the district judge. However in substance the same thing would happen if draft Particulars of Claim were invited and produced, and in any event appellate courts can permit new points to be taken on appeal (e.g. Singh v Dass [2019] EWCA Civ 360).

Accordingly I would dismiss this appeal. I will only add this. If the case management order had been to produce a draft amended Particulars of Claim this appeal could not have arisen. In future that might be the best course to take and avoid arguments of this kind arising.

I agree that the appeal should be dismissed for all the reasons set out by Lord Justice Birss.