JOHN N CROKE & Anor v NATIONAL WESTMINSTER BANK PLC & Ors

This is my judgment on hearing three applications:

Although the claimants’ application was issued first, the defendants’ application directed to the inadequacies of the particulars of claim absorbed much of the hearing. Mr Croke represented himself and the second claimant and I asked Mr Casey, who appeared for the defendants, to address the court first. This took the morning of the first day which left Mr Croke with time to develop his submissions until shortly before the lunch break on the second day. I am grateful to him and Mr Casey for the helpful way in which they dealt with the issues. Mr Croke did not provide a skeleton argument before the hearing. However, his submissions were extremely thorough as well as being well organised and clear.

The claimants’ application dated 11 November 2021 is supported by a witness statement made by Mr Croke that explains over 15 pages (i) why this claim (“the 2021 Claim”) was issued in May 2021, (ii) why he had difficulty completing the particulars of claim within the four month period specified in the CPR and (iii) the steps he took to serve the particulars of claim.

The Defendants’ application dated 14 February 2022 is supported by a witness statement made by Alexander Unger who is a Legal Director at Addleshaw Goddard LLP. He sets out the relevant background to the 2021 Claim and explains why the defendants consider it should be struck out.

The claimants did not respond to Mr Unger’s statement and on 28 April 2022, with the hearing date fast approaching, the defendants applied for and were granted an order dated 3 May 2022 specifying that unless the claimants served a witness statement by 4pm on 4 May 2022 they would be debarred from relying upon any evidence in response to Mr Unger’s statement. The claimants failed to comply with the deadline. Mr Croke filed a witness statement after 4.00 on 4 May 2022 and served the witness statement on the defendants the following day. However, the witness statement itself is very brief and its principal purpose is to exhibit a large volume of documents relating to earlier proceedings between the same parties. Mr Casey took no point about the witness statement being late other than observing it was another example of the claimants failing to comply with a court order. The statement was admitted without the need for the parties to make submissions about the grant of relief from sanctions.

In June 2015 the first defendant (“the Bank”) appointed the second and third defendants as LPA Receivers in respect of loans secured on two developments which have been referred to using the shorthand “Ickfield” and “The Caitlin”. By June 2015 the claimants had been customers of the Bank for nearly nine years and their banking relationship had been under the management of the Bank’s Global Restructuring Group for 6½ years. Mr Croke considers that he has been extremely badly treated by the Bank. Mr Croke says the relationship soured from the time a meeting took place on 16 January 2014 when his then relationship manager Mr Isaacs introduced him to his replacement manager Mr Guy Taylor. It will be necessary to refer to his and the second claimant’s dealings with the Bank in some detail.

The claimants issued a claim against the Bank and the LPA Receivers on 26 November 2015 (“the 2015 Claim”) seeking a wide range of relief including declarations that the claimants had not been in default under the loan agreements and that the appointment of the LPA Receivers was void. The 2015 Claim was struck out as a consequence of the claimants failing to comply with an order dated 11 January 2017 requiring them to provide answers to a Part 18 Request by 31 January 2017.

The 2021 Claim is made against the same defendants as the 2015 Claim (Footnote: ¹). The particulars of claim run to just over 34 pages and the claimants make six claims. Paragraphs 3 to 136 of the particulars of claim set out the background that is relied upon. The remaining paragraphs set out the six claims and the relief that is sought. The claims comprise:

Mr Croke and the second defendant each seek damages of a sum in excess of £3 million and the claimants jointly seek damages in excess of £250,000 in respect of lost chattels. In an unnumbered paragraph, appearing to be a drafting afterthought, a claim for recission of the contracts of sale of Ickfield and The Caitlin is made. No particulars are provided of how the claims for damages have been calculated.

The essential procedural background to the 2021 Claim is that:

The defendants’ case on service of the particulars of claim is straightforward. The last day for service was 27 September 2021. They had not agreed to accept service by email and, even if they had done so, the particulars of claim were sent after 4.30 on that date and would have been deemed served on 28 September 2021 by virtue of CPR rule 6.26. Service was effected by delivery of hard copies of the particulars of claim on that date which was one day out of time.

The question of whether service was out of time can be dealt with briefly without, for this purpose, considering Mr Croke’s evidence about the difficulties he had in finalising the particulars of claim. In his submissions he contended that the deeming provisions in CPR rule 6.26 do not apply. However, the rule is clear and it applies to all documents other than a claim form. The claimants were only entitled to serve by email if, in accordance with paragraph 4.1 of Practice Direction 6A, the recipients had given consent. No consent had been given in this case. In any event, the particulars of claim were sent (without a statement of truth) after 4.30pm and therefore were deemed served on the 28 September 2021. Service took place when the hard copies of the document were delivered on that date. Service was therefore one day late.

Mr Croke invited the court to apply CPR rule 6.15 albeit that the application notice does not make it clear that he was seeking to rely upon its provisions. That rule does not assist the claimants as it only relates to service of a claim form. In any event, there was no “good reason” why the rule should be applied. The claimants’ difficulties related to completing the particulars of claim, not service of it upon the defendants.

It follows that the claimants will be unable to proceed with the claim unless they obtain an order retrospectively extending time for service of the particulars of claim by one day. It is common ground that when the court is considering an application for a retrospective extension of time for service of particulars of claim it must apply the relief from sanctions framework under CPR rule 3.9 as it has been interpreted in Denton. (Footnote: ²)

If the only points for the court to determine were whether the claimants should be permitted to substitute RBS for NatWest due to an error made by the claimants and granting a retrospective extension of time of one day for service of the particulars of claim, it is unlikely the application would have engaged a great deal of court time. However, when the applications are seen in their full context, and alongside the defendants’ application to strike out the claim, they take on a different complexion. Without an extension of time for service of the particulars of claim, the claimants, in effect, have no claim despite the claim form having been served within its period of validity. The claim is in a twilight zone and is only capable of being resuscitated by an order being made on the claimants’ application.

The Defendants submit that the particulars of claim fail to comply with the minimum requirements of the CPR in respect of a statement of case and do not show reasonable grounds for bringing the claim. They also say that the 2021 Claim is an abuse of the court’s process.

There is perhaps a dry point about whether the court is able to strike out a claim at a time when the claim, without life being breathed into it by the court, has no validity and cannot be pursued. Clearly it does not make sense to grant an extension of time for service solely for the purpose of enabling the court to strike it out. It is unnecessary, however, to determine the point I have highlighted because the court is required to apply the Denton three stage test when considering the claimants’ application. Mr Casey submits, and I agree, that the court, when considering all the circumstances of the case including the provisions of CPR rule 3.9(1)(a) and (b), is entitled to and should have regard to whether the particulars of claim provide reasonable grounds for bringing the claim, whether the statement of case is an abuse of the court’s process and whether there has been a failure to comply with a rule, practice direction or court order. The tests contained in CPR rule 3.4(2) therefore fall to be considered as part of the claimant’s application for an extension of time for service of the particulars of claim.

It follows that although the hearing proceeded as if it were principally an application to strike out the claim, in fact jurisdictionally it turns on whether, on the basis as I have determined the Bank is right about service of the particulars of claim, an extension of time for service should be granted applying the Denton test for relief from sanctions.

Although CPR 3.4(2) is not being applied directly, four observations about the general approach to its application are pertinent:

(i) By an agreement dated 2 October 2006 the Bank agreed to lend £1,054,000 to the first claimant for three purposes: (a) to re-finance borrowing from HSBC Bank plc; (b) to fund the development costs of Ickford; and (c) to assist with the purchase of an adjoining property. Clause 6.3 provided that the loan must be repaid with interest by no later than the Repayment Date, meaning the earlier of 31 December 2008 or the sale completion date of Ickford. Pursuant to clause 8.1 the loan was secured by a first legal charge over Ickford.

(i) By an agreement dated 7 September 2006, the Bank agreed to lend £4,997,000 to the second claimant to assist with the purchase of The Caitlin and its development into residential apartments. The borrowing was secured by a first legal charge over The Caitlin.

The first claim (“the 2015 Claim”) was issued on 26 November 2015 against RBS and the LPA Receivers. The claimants were unrepresented litigants. It was, in effect, brought against the same parties as the 2021 Claim. Although the early stages of the 2015 Claim were not considered at the hearing other than in passing, I understand that Mr Croke applied for injunctive relief in relation to the appointment of the LPA Receivers in June 2015 in respect of both Ickford and The Caitlin. His particulars of claim were not served until 24 November 2016.

The particulars of claim run to 50 pages and contain 11 claims. They are described as Claims A to K and I will identify them in the same way. Claim A relates to both Ickfield and The Caitlin, Claims B to H relate to The Caitlin alone and Claims I to K relate only to Ickfield.

Mr Croke made detailed submissions about the defendants’ conduct of the 2015 Claim and submitted that it amounted to an abuse of the court’s process which should be reflected in the approach the court adopts to the claimants’ application in the 2021 Claim. He took the court through the chronology of events in great detail and relied upon documents exhibited to his witness statement dated 4 May 2022. In essence his case on abuse of process is that:

Mr Croke was critical of the conduct of the Bank’s solicitors. Although the making of a Part 18 request had been forecast in correspondence, the request (comprising 33 requests) was not served until 17 October 2016. That was less than two clear days before the Costs and Case Management Conference listed for hearing on 20 October 2016. It is clear that the timing of an answer to the Request was discussed at the CCMC because the date for service of answers was a compromise date between the date proposed by the defendants (26 November 2016) and that proposed by the claimants (16 January 2017). The date for compliance set by the court was 20 December 2016.

The defendants’ solicitors did not agree to an extension of time and an application for an extension was made by the claimants. At the hearing of that application on 11 January 2017 time for a response to the request was extended to 31 January 2017 without a sanction being attached. By then the claimants had had over three months to prepare their response. It was only after a failure to comply with the extended deadline an order was made, without a hearing, imposing an unless order requiring a response by 10 February 2017. Although a lengthy document was served by the deadline it did not substantially comply with the order and a further order was made declaring that the claim was struck out. Due to the order being made without a hearing it permitted the claimants to apply to set it aside. They made an application to do so and for relief from sanctions which came before Deputy Master Pickering on 10 April 2017. He undertook a full review of the request, the orders made and the response and determined that the order should stand.

I can see nothing in the process that is indicative of the Bank’s conduct having been abusive conduct. The period between the making of the request and the court making an order was short. It is evident, however, that consideration was given by the court to the period to be provided for a response. Two months should have been ample. Furthermore, time was subsequently extended without a sanction being imposed to a date that was later than the date initially proposed by the claimants. Although it is right that use of a strike out sanction needs to be carefully considered, and should not be imposed routinely, it was far from an unusual or exceptional approach to case management. The court’s determination that a sanction should be imposed and that the claimants had failed to comply with the order to a substantial degree was reviewed and the same conclusion was reached. If the use of the Part 18 procedure was abusive it would have been open to the court to say so and to rule accordingly.

It was open to the claimants to apply for permission to appeal and an application was made. The application was struck out on the basis of a failure to comply with an order made by Zacaroli J on 14 December 2017 stating that unless a transcript of the judgment given by Deputy Master Pickering was filed by 3 January 2018 the appeal would be struck out. The application for permission to appeal was treated as struck out when, in fact, a transcript of the judgment had been filed by the claimants, albeit on the main case file and not the appeal file. Mr Croke was critical of the defendants’ solicitors in failing to help correct the minor procedural error because they were served with a copy of the transcript. I consider there is nothing in the criticism. The process of seeking permission to appeal is usually unilateral and the putative respondent to the appeal would not know what steps the appellant had taken to file a transcript. Mr Croke said that the order striking out the appeal was not served upon him. Even if that is right, it lay in his hands to prosecute the appeal and had the filing error been pointed out it seems unlikely the striking out order would have stood. At the hearing Mr Croke said he made a decision not to apply to set aside the order striking out his appeal because Ickfield had just been sold and he knew that a “huge claim” was coming. He took a decision not to seek to apply to set aside the order striking out the appeal and must live with the consequences of that decision.

I am satisfied that no element of the defendants’ conduct in the 2015 Claim can be said to have been abusive and that the process adopted by the court was a fair one. The 2015 Claim was struck out due to the claimants’ failure to comply with a court order.

The defendants are highly critical of the particulars of claim and submit that the manner in which the six pleaded claims are put forward in the 2021 Claim does not meet the standard that is required under the CPR and Common Law.

CPR rule 16.4 requires that particulars of claim must include a “concise statement of the facts on which the claimant relies”. The need for concision and the requirements about what particulars of claim must contain have been summarised in many cases, perhaps most succinctly in the judgment of Leggatt J (as he then was) in Tchenguiz & Ors v Grant Thornton UK LLP & Ors [2015] EWHC 405 (Comm) at [1]:

“Statements of case must be concise. They must plead only material facts, meaning those necessary for the purpose of formulating a cause of action or defence, and not background facts or evidence. Still less should they contain arguments, reasons or rhetoric. These basic rules were developed long ago and have stood the test of time because they serve the vital purpose of identifying the matters which each party will need to prove by evidence at trial.”

In Portland Stone Firms Limited & Ors v Barclays Bank PLC & Ors [2018] EWHC 2341 (QB) at [30] Stuart-Smith J made a similar point whilst additionally emphasising the requirements set out in Paragraph 8.2 of Practice Direction 16 for cases in which allegations of fraud, misrepresentation and knowledge are made:

“It should not need repeating that Particulars of Claim must include a concise statement of the facts on which the Claimant relies: CPR 16.4(1)(a). The "facts on which the Claimant relies" should be no less and no more than the facts which the Claimant must prove in order to succeed in her or his claim. Practice Direction 16PD8.2 mandates that the Claimant must specifically set out any allegation of fraud, details of any misrepresentation, and notice or knowledge of a fact where he wishes to rely upon them in support of his claim …. Experience also shows that prolix pleadings normally tend to obfuscate rather than to serve their proper purpose of identifying the material facts and issues that the parties have to address and the Court has to decide.” (Emphasis in the original).

In the same decision the minimum requirements for pleading fraud were discussed at [29]:

“ … if a case alleging fraud or deceit (or other intention) rests upon the drawing of inferences about a Defendant’s state of mind from other facts, those other facts must be clearly pleaded and must be such as could support the finding for which the Claimant contends. This is clear from numerous authorities: see Three Rivers District Council v The Governor and Company of Barclays of England (No 3) [2003] 2 AC 1 at [55] per Lord Hope and [186] per Lord Millett. I endorse and adopt the statement of Flaux J in JSC Bank of Moscow v Kekhman [2015] EWHC 3073 (Comm) at [20] that:

“The Claimant does not have to plead primary facts which are only consistent with dishonesty. The correct test is whether or not, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence. As Lord Millett put it, there must be some fact “which tilts the balance and justifies an inference of dishonesty.” At the interlocutory stage … the court is not concerned with whether the evidence at trial will or will not establish fraud but only with whether facts are pleaded which would justify the plea of fraud. If the plea is justified, then the case must go forward to trial and assessment of whether the evidence justifies the inference is a matter for the trial judge”

One other principle relating to pleading fraud needs to be highlighted. The court adopts a “generous approach” to pleadings involving allegations of fraud because fraudsters will often cloud their work in secrecy: see the discussion at [27] in Portland Stone.

The defendants submit that the particulars of claim are far from being a concise statement of the facts on which the Claimants rely. They say they are (i) both prolix and inadequate, (ii) they combine narrative, evidence, comment, and submission in a way which makes it difficult to identify the material facts and the alleged bases of the claims and (iii) they also lack material which is essential for the defendants to understand the case they have to meet.

Mr Croke accepted that the particulars of claim are inadequate. He said, with a degree of candour which is rare, that all the claims, other than the claim in deceit had been drafted on 27 September 2021 while he was on a train from his home to London and then in a public house where he was intending to use the WiFi facility for the purpose of sending the particulars of claim to the defendants by email. He asked the court give him an opportunity to amend the particulars of claim. He said he wished to use solicitors and counsel to enable him to do so. However, when asked about the arrangements he had made, he said he had not retained solicitors, that he could not afford to do so and would be dependent upon solicitors and counsel being willing to act on a conditional fee basis.

I will first consider the defects to the particulars of claim, secondly consider whether Mr Croke should have an opportunity to cure those defects and thirdly consider whether the claimants should be granted an extension of time for service of particulars of claim applying the Denton criteria.

The particulars of claim commence with a very lengthy introduction of over 25 pages and 134 paragraphs. The six claims are then made in the following nine pages with nearly six pages being devoted to the claim in deceit. The provision of an introductory background section is not objectionable as such provided it contains facts which are relevant to the causes of action that follow. Indeed, it may be helpful for some context to be provided. The problem with these particulars of claim, however, is that the introductory section is far too lengthy and almost impossible to relate to the claims that follow. To do so involves the reader making an attempt to interpret what is said and why it may have been said without the clear signposts that are required when pleading a cause of action.

The essence of Mr Croke’s complaint remains that LPA Receivers were appointed by the Bank after Default Notices were served on him and it is instructive to see how the introductory section to the particulars of claim deals with the events of default that were relied upon by the Bank.

So far as the Ickford lending is concerned, Mr Croke does not assert that the bank was wrong to rely upon a breach of his obligation to place Ickford on the market for sale under clause 8.1.1 of the Ickford Loan and he does not dispute that the loan was repayable in full by 30 April 2015.

The Bank relied upon three events of default in relation to The Caitlin:

Importantly, the claimants do not say in the 2021 Claim either that the Bank lacked the contractual right to enforce the loans when it served notices of Events of Default or that the Bank lacked the power to appoint the LPA Receivers.

Mr Casey relies on the useful summary of the ingredients of a claim in deceit that is set out in the judgment of Jackson LJ at [77] in Eco 3 Capital Ltd v Ludsin Overseas Ltd [2013] EWCA Civ 413:

“What the cases show is that the tort of deceit contains four ingredients, namely:

The defendant makes a false representation to the claimant.

The defendant intends that the claimant should act in reliance on it.

The claimant does act in reliance on the representation and in consequence suffers loss.

Mr Casey also submits that the court must establish the meaning of the statement that was made, or alleged to have been made, in order to determine whether the representation that is alleged was made at all. It is not sufficient merely to plead the words that were used without pleading what the representation is said to have been. This point is made in the judgment of Hamblen J (as he then was) in Cassa di Risparmio delle Reppublica di San Marino v Barclays Bank Ltd [2011] EWHC 484 (Comm) at [215]. The exercise involves:

“(1)

construing the statement [said to constitute the representation] in the context in which it was made; and (2) interpreting the statement objectively according to the impact it might be expected to have on a reasonable representee in the position and with the known characteristics of the actual representee.”

The particulars of claim in its introduction includes a section under the heading: “The Meeting and Representations made at Tower Hill on 16 January 2014”. At paragraph 40 and 41 the claimants say:

“40.

Mr Taylor made it clear in this meeting that the Bank was not going to allow the Company to cure any alleged Interest and/or SWAP costs that had built up or occurred. He did this by making his categoric statement that “We are beyond that”.

41.

The message from Mr Taylor was startlingly clear to Mr Croke, the Bank was not going to permit the Company to cure any past alleged or actual Interest and/or SWAP costs. The future course of events would be dictated by the Bank and Mr Taylor would revert in due course as to what that was going to be.” [Emphasis in the original]

Paragraphs 138 to 152 contain Claim 1 without referring back to the Introduction. The heading “The Representation by Mr Taylor and the Bank was knowingly untruthful” is followed at paragraph 138 by the claimants saying again the representation they rely upon was “we are beyond that”. They say that the representation could only be understood by Mr Croke one way namely that the Bank would not be permitting the Company to cure any interest or SWAP shortfall.

Particulars of dishonesty are set out in paragraph 145 with nine particulars provided. They include that the Bank knew it had agreed with the FCA that no foreclosure action would be undertaken until the FCA had concluded its review into Interest Rate Hedging Products.

Reliance is dealt with at paragraphs 146 to 152.

The core difficulty for the claimants is that the words they rely upon are but a snippet from a conversation and impossible to understand with them being considered in their full context. The words clearly beg for “that” to be explained. It is impossible to know what it is said the Bank was beyond with the words being taken out of context. It seems to me that Mr Casey is right when he submits:

Mr Casey relies upon the well-known summary of the elements of an unlawful means conspiracy in Kuwait Oil Tanks Cp SAK v Al-Bader (No3) [2000] 2 All ER (Comm) 271 at [108]:

“A conspiracy to injure by unlawful means is actionable where the claimant proves that he

has suffered loss or damage as a result of unlawful action taken pursuant to a combination

or agreement between the defendant and another person or persons to injure him by

unlawful means, whether or not it is the predominant purpose of the defendant to do so.”

A lawful means conspiracy must have the same constituents save that the acts carried out pursuant to the conspiracy do not need to be unlawful and the parties must have a predominant intention to injure the claimant. (Footnote: ⁴)

Mr Casey highlights three fundamental problems with the way Claims 2 and 3 are pleaded:

Claim 4 alleges that the continuation of the appointment of the LPA Receivers was a further unlawful means or lawful means conspiracy. The claim is pleaded in one sentence and is wholly inadequate. None of the necessary elements of the torts is set out.

Claim 5 is set out in even briefer terms than Claim 4. The heading asserts that: “The appointment of the Receivers was for an improper purpose, undertaken in Bad Faith, irrational, unconscionable and/or was irrational and unconscionable.” Paragraph 168 says that the material facts are already set out but do not indicate where they are set out.

Plainly Claim 5 is not pleaded adequately and would not survive an application to strike it out. It is unnecessary to seek to analyse a case which has not been set out with any particularity. However, it can be said it is very unlikely that a viable claim of this type could be made.

So far as the allegation of bad faith is concerned, the decision of the Privy Council in Cukurova Finance International Ltd and another v Alfa Telecom Turkey Ltd (Nos 3 to 5) [2016] AC 923 makes it clear that a mortgagee is not required to have purity of purpose – see [78]. Without an allegation that the Bank appointed the LPA Receivers for a reason that was disconnected for a wish to obtain repayment of the loans, the duty of good faith, such as it is, will not assist the claimants: see UBS AG v Rose Capital Ventures and others [2018] EWHC 3137 (Ch) at [38].

The reference to irrationality would appear to be an attempt to rely upon a Braganza type duty that the Bank would not appoint the LPA Receivers arbitrarily. In Rose Capital at [49] the following principles were extracted from the authorities:

“(1)

It is not every contractual power or discretion that will be subject to

a Braganza limitation. The language of the contract will be an important factor.

The types of contractual decisions that are amenable to the implication of

The nature of the contractual relationship, including the balance of power between

The scope of the term to be implied will vary according to the circumstances and the

Mr Casey submits and I agree that the decision to appoint an LPA Receiver is far removed from the circumstances in which a Braganza duty will normally arise:

A mortgagee is under no duty to refrain from exercising its rights to appoint a receiver

Claim 6 comes under the heading: “The appointment of the LPA Receivers was a breach of an Implied term that a party to a contract would not knowingly and intentionally act contrary to its own subjectively assessed Commercial Interests.” Paragraph 169 which follows does little or nothing to plead a cause of action in a manner that comes close to complying with the requirements of the CPR. There is no reference to any of the facts pleaded earlier in the particulars of claim and it is impossible for the defendants to discern (a) the source and scope of the alleged duty (b) whose subjective assessments are to be attributed to the Bank for the purposes of the duty (c) what were the Bank’s subjectively assessed commercial interests and (d) how the duty was breached.

Although this might not be fatal if it were the only defect, the claims for damages and the claim for recission are completely unparticularised.

I conclude that the particulars of claim are materially defective. The claimants have not pleaded claims that show reasonable grounds and none of the six claims complies with the requirements of the CPR and the common law rules for pleading claims relying upon allegations of dishonesty.

I turn therefore to consider whether the claimants should be given an opportunity to re-plead the particulars of claim.

The court, if it decided to give the claimants an opportunity to draft a fresh case could adopt one of two approaches. On the hearing of a conventional application to strike out particulars of claim it would be usual to strike out the particulars of claim but not the claim form, thus leaving the claim in existence albeit in a perilous state. In this case, the approach I would adopt is to adjourn the hearing for a suitable period without making a final determination whether to grant the relief sought by the claimants.

However, I consider there are a number of facts that are present that militate strongly against the claimants being given an opportunity to present a fresh version of the particulars of claim. In summary they are:

The first stage is to assess the serious or significance of the breach. Mr Croke suggested that the breach should be characterised as being insignificant because of his efforts to serve the particulars of claim and the fact that the particulars of claim were served just one day out of time. However, when looked at in the full context it would not be right to make light of the breach. The factors I have in mind are:

The reasons why the default occurred are explained, or at least partially explained in Mr Croke’s witness statement dated 11 November 2021. He says he did not wish to issue the claim in May 2021 but felt constrained to do so because there was, he felt, a potential issue about limitation and the defendants had not agreed to waive their entitlement to rely upon limitation. He does not explain however what if anything he was doing between the date when his application for permission to appeal against the order striking out the 2015 Claim was struck out in early 2018 and May 2021.

Mr Croke’s witness statement explains that almost immediately after he issued the claim in May 2021 he was served with notice of eviction from his home under a suspended order for possession. It is clear that the steps he describes to try to prevent the order being enforced and putting his home in a suitable condition for sale were a major pre-occupation. Nevertheless, he accepts that from mid-July onwards he was able to spend some time on drafting the particulars of claim. The witness statement does not explain why he was unable to produce a draft setting out his claim in a concise way in accordance with the CPR well before the 4 month period was due to expire.

For completeness I should add that Mr Croke had difficulty with his printer in the week before the deadline expired and he misunderstood the CPR’s deemed service provisions. He thought he had until midnight on the final day to serve the particulars of claim. He says making an application for an extension of time for service of particulars of claim before the deadline did not occur to him because he thought he could complete the task within the deadline.

The court is then required to consider all the circumstances including the factors that are specified in CPR rule 3.9(1)(a) and (b). I have in mind in particular:

It is not appropriate in these circumstances to grant relief from sanctions in respect of a statement of case that is seriously deficient against the backdrop of the 2015 Claim. The claimants have had a fair opportunity to bring the claims they wished to make. A considerable amount of court resources has been devoted to both claims and substantial costs incurred by the defendants. Finality in litigation is an important principle and the balance comes down firmly in favour of the claimants’ application being dismissed.

I will make a declaration that the court has no jurisdiction in this claim in light of the failure to serve the particulars of claim within the period of validity of the claim form. It is not appropriate or necessary to make an order striking out the claim. I will consider what further orders should be made on the handing down of this judgment or on a later date.