Simon Paul Read v North Middlesex Hospital Trust

This is the reserved judgment following the hearing of respectively the Defendant’s Application dated 12 February 2024 to strike out the Claim or for summary judgment and the Claimant’s subsequent 3 May 2024 Application for permission to rely upon a Re-Amended Particulars of Claim (Footnote: ¹), along with consequential directions. There was no issue between the parties on the relevant procedural principles of each Application and so there is no need to repeat the relevant provisions of the CPR here.

These applications come before the High Court very late owing to what appears to have been at least an initial misunderstanding by one or both parties whether the claim had reverted to its original place of issue in the County Court or had instead remained in the High Court, following a proposed appeal in November 2023. The Applications were not formally processed by the High Court, therefore, until February 2025 and the hearing date 28 March 2025 provided.

Following the hearing on 28 March 2025, a draft judgment was circulated on 1 May 2025 and a handing down listed for 26 June 2025. However, it became clear from further skeleton arguments submitted shortly before proposed handing down that an issue had arisen between the parties as to the interpretation and potential application of CPR 44.15, having regard to certain findings expressed in the draft. Further submissions were heard on 26 June 2025 about the interpretation of r.44.15 and, because the parties both agreed there appeared no direct authority on the point, the court agreed that further and final written submissions should be provided by 14 July 2025. It was agreed that the court would then proceed to hand down its final and concluded judgement in response. This is that judgment.

Until around October 2023, the Claimant had acted in person. He had written a “Letter of Claim” on 26 May 2019 alleging various matters. There was further detailed correspondence between the parties. For the purposes of the current Applications, the relevant issues exchanged between the parties were, briefly summarised, as follows.

The Claimant had presented to the Defendant’s A&E on 30 November 2016 with back pain owing to a fall the previous day but was not examined during the 4 ½ hours he waited there before deciding to leave. He then presented again to A&E on 4 January 2017 but there was a failure by a named doctor “to carry out medical acceptable level of clinical examination and radiography resulting in discharge from A&E with negligence diagnosis”. The Claimant alleged that he had severe spinal compression prior to surgery later on in January 2017. He alleged that the surgery had been only partly successful such that, post-surgery, he was experiencing paraesthesia in both feet and kyphotic deformity.

The Claimant nonetheless proceeded to issue a claim in the County Court on 26 June 2020. The endorsement to the Claim Form alleges clinical negligence “resulting from breaches of duty owed to the Claimant at his presentations at Accident and Emergency Dept on three separate occasions from 30^th November 2016 to 6^th January 2017 and subsequent orthopaedic ward from 7^th January to 15^th January 2017”.

The Claimant relied upon a 16-page Particulars of Claim. Much of this document features general comment upon the issues exchanged during the Protocol correspondence. It does not present as a cohesive Statement of Case complying with the requirements of CPR 16. An attempt to derive a Part 16 compliant overall summary of the claim is almost impossible.

With that qualification in mind, however, I note that within Paragraph “A Overview (ii)” the allegation that but for the delay between 30 November 2016 and 6 January 2017 the Claimant “would have had medical intervention significantly earlier and before neurological damage had progressed”. His outcome would therefore have “been significantly better if medical intervention had been carried out at an earlier date closer to the time of initial presentations…”. Under “B) Events giving rise to the claim and Claimant’s case”, referring to the presentations on 30 November 2016 and 4 January 2017, he alleged that “The failure to investigate and diagnose the Claimants clinical condition at each of these points in time resulted in lost opportunities to mitigate the disease by early medical attention”.

The first Particulars of Claim were plainly insufficient in terms of presenting a clinical negligence claim; and not just because of the glaring attempt to introduce a claim for lost chance of full recovery or a loss of a chance of achieving a better outcome. It is therefore of no surprise that in an Application dated 5 August 2020, the Defendant applied to oblige the Claimant to better particularise his claim or otherwise for it to be struck out.

The County Court made such an order on “unless” terms on 21 October 2020. The Claimant appealed that Order and further applications followed. The precise details and sequence of these are not relevant to elaborate, suffice it to say that an appeal was listed before Ritchie J on 16 November 2023, by which time the Claimant had become represented by both solicitors and counsel. The feature of the Claimant by then having legal representation is, I find, significant, in terms of interpreting and applying the Consent Order as concluded.

The appeal did not proceed because it was compromised between the parties on the day, on the following directions:

The Defendant’s Application emphasises that a substantial element in the Defendant's agreement to compromise the appeal was the representation of the Claimant, through counsel, that he possessed supportive expert evidence on breach and causation. So, the Defendant not unreasonably assumed, any amended Particulars of Claim would not only be more comprehensive and coherent in pleading terms but had the support of independent considered expert opinion.

I entirely agree that in clinical negligence claims, as elaborated below, this is a virtual requirement and is the basis on which at least represented parties typically proceed (Footnote: ²). The Claimant’s representation as led to the agreed terms would, I follow, have been material to the Defendant.

It is therefore unfortunate to note after the events leading to the compromised appeal and its Order that the Claimant had in fact obtained not a report from an Accident and Emergency Consultant, and perhaps additional Orthopaedic Surgery, as most would readily assume to be the relevant disciplines on breach on these facts, but instead a Consultant Neurosurgeon and Spinal Surgeon. It is difficult to follow how opinion from a Neurosurgeon and Spinal Surgeon could ever be appropriate to the question how the Claimant should clinically have been considered and processed in the Accident and Emergency Department(s) on the dates in question.

I note that the Claimant, through legal representation, indeed now accepts that Accident and Emergency and perhaps Orthopaedic Surgery would instead be the appropriate disciplines on breach.

The Defendant submits that because the Claimant’s allegations as to breach in the neither the first Particulars of Claim nor the Amended Particulars of Claim are now known not to have the support of relevant expert evidence, they are speculative, without self-evident foundation and so should be struck out.

Not only with the benefit of the Defendant’s explanation but as an ordinary matter of interpreting the 21 October 2020 Order, I am satisfied that the clear implied meaning and intent of the phrase “further and better particulars of the allegations of breach of duty and causation of injury” was that the amendment should have the cogency and authority of supporting expert evidence on breach and so present in sufficiently coherent terms the Claimant’s case on breach. In other words, mindful of CPR 3.4(2)(a) and (b) as defines the jurisdiction of the court to strike out a claim in certain circumstances, the proposed amendment going to breach of duty and causation must present reasonable grounds for bringing the claim and would not constitute an abuse of the court’s process or otherwise obstruct the just disposal of proceedings. This requirement should be obvious in any pleading but particularly so in a case, as here, where the previous pleading had been entirely vulnerable to submissions that rule 3.4(2)(a) and/or (b) were made out. Had the Claimant and his legal team been asked the question on the day, I have no doubt they would have affirmed positively.

Further, the direction obviously also obliged an amendment that would lead to a freestanding fully particularised allegations of breach of duty and causation. A point I settled during he hearing was that there was no place for permitting the phrase “further and better particulars” to facilitate cross-reference to the previous Statement of Case or indeed any other general material.

Even if, however unlikely, the amendment was open to cross-referencing, the Claimant had elected to substitute and rely upon an entirely new Statement of Case in the form of the Amended Particulars of Claim dated 11 December 2023. Its first paragraph states “These amended particulars of claim are in substitution for the Particulars of Claim”.

The Amended Particulars of Claim therefore constitutes a freestanding new document filed and served in intended compliance with the Order, such that the Defendant’s Application appropriately focuses only upon the Amended Particulars of Claim.

The Claimant complied with the requirement to serve a condition and prognosis report, serving a report from Mr Todd, Consultant Neurosurgeon and Spinal Surgeon. Whilst such reports in clinical negligence claims are plainly by their definition not intended to focus upon matters of breach, such reports conventionally feature the essence of the injury or condition alleged to have been sustained because obviously this is the issue upon which the opinion on condition and prognosis emanates. If a relevant prior condition has to be considered in this context, that too is conventionally introduced.

The Defendant’s Application primarily submits that the Amended Particulars of Claim does not in substance satisfy the terms of the Consent Order, even though as filed and served by the required date, so the claim should be treated as automatically struck-out.

In the alternative, if treated as at least sufficing for the purposes of compliance with the Consent Order, the Amended Particulars of Claim as presented justify being struck-out pursuant to CPR 3.4(a) or (b) and/or (Footnote: ³) the Defendant being given summary judgment in response.

The supporting witness statement of Mr Richard Bantin dated 12 February 2024, briefly summarised, makes the following points:

In support of the Claimant’s cross-Application dated 3 May 2024 there is a witness statement dated 4 May 2024 from the Claimant’s solicitor, Mr Bailey. Mr Bailey points out that the Claimant was representing himself until 16 October 2023 when the Claimant had instructed his firm “for the limited purpose of obtaining expert medical evidence from a consultant neuro/spinal surgeon”. Following the November 2023 appeal as compromised, his firm has represented the Claimant generally in the claim. Mr Bailey comments that since filing the Amended Particulars of Claim, the Claimant has obtained “further liability evidence”, following which the Claimant now seeks to re-amend the claim. The Re-Amended Particulars of Claim are exhibited, the particulars of which, Mr Bailey comments, are “fully supported by the expert evidence of consultants in (a) emergency medicine and critical care; (b) orthopaedic surgery; (c) neuro/spinal surgery.

I note that despite these assertions, the Claimant has elected not to elaborate by providing details of his apparently supportive underlying expert opinion, even though the Defendant’s Application was issued nearly a year ago.

Mr Bailey’s statement works on the assumption that the Amended Particulars of Claim complied with the November 2023 unless order and that the need for a Re-Amended Particulars of Claim is only because of further obtained supportive expert evidence. The evidential interplay between having instructed a neuro/spinal surgeon in preparation for the appeal of a neuro/spinal surgeon and the three disciplines from whom reports have now since been obtained is not explained. Neither is explained why each of these three disciplines are relevant in a claim concerning A&E visits and hence the scope and range of expected response from those working in that department.

In terms of its procedural sufficiency, the court accordingly has to look at the Amended Particulars of Claim in isolation. This was an explicit requirement of the November 2023 Order and is also generally: Particulars of Claim in a clinical negligence need to have been prepared with the assistance of expert evidence that establishes the allegations are coherent and arguable.

Although the Claimant’s 2 May 2024 N244 is endorsed as seeking permission to “file and serve amended Particulars of Claim”, it is clear from Mr Bailey’s witness statement that the Claimant actually seeks permission to rely upon a Re-Amended Particulars of Claim.

So, the necessary procedural sequence seems to me to be:

The Amended Particulars of Claim in more detail

The Amended Particulars of Claim is, despite the input of legal advice, surprisingly brief. Particularly given that the Claimant relies upon acts of omission, rather than commission, as leading to some form of actionable loss. A process of forensic analysis in the context of the Defendant’s Application is, in my judgment, entirely necessary because of this concision. Mr Copnall expressed surprise during the hearing at the court’s concern about the ostensible lack of developed discussion in the pleading going to breach, commenting that in his experience such were matters for exploration and discussion by Part 35 experts as permitted rather than for the Statements of Case.

Concision of expression is a good thing, of course. However, even in the most laconic of clinical negligence pleadings it is essential to still be able to recognise central allegation (or allegations) of breach that are intelligible to any clinical experts instructed to comment, rather than the pleading rest on a level of lay or abstract statements of fault.

The Amended Particulars of Claim does not, I find, readily present its allegations in terms immediately recognisable in clinical negligence termsusually encountered, at least in this Division. One is obliged, even if it perhaps ought not to be necessary, to return to fundamental principles of pleading in such claims to ascertain if at least an acceptable minimum standard has been achieved.

First, there must be a clear allegation or allegations of breach of duty, the particulars of which will then be assessed by reference to the Bolam test (Footnote: ⁵). Given the Claimant’s intended allegations focus upon acts of omission rather than commission, it follows that the pleaded claim must particularise what steps or practice should have been taken or been applied. So, what diagnosis of what condition, with what referral or treatment, the consequence of that referral or treatment and what result such would have achieved. It is not enough to say that a claimant should have seen a doctor, following which he or she would have been cured.

I therefore do not agree with, as submitted by Mr Copnall, that the elucidation of what should have taken place can be passed off as a matter for subsequent expert opinion and that any expectation for this to appear in the Statement of Case constitutes an unreasonable and inappropriate requirement for the Claimant to plead a counter-factual hypothesis. Quite simply, stating what did not happen is rarely if ever sufficient proof of what should have happened if the events relied upon are acts of omission. It is not sufficient to invite inference as to what a defendant should have done and what would have happened but for the omissions identified.

These are the fundamental requirements of CPR 16.4(1)(a), namely the “a concise statement of the facts on which the claimant relies”, without which a defendant cannot possibly be expected to know how to prepare its case. Anything less would amount to an inappropriate attempt to pass the burden of proof onto a defendant instead to identify, propose and justify what it contends should (or might) have happened.

This expectation is clear in the judgment of Mr Justice Coulson (as he then was) in Pantelli Associates Ltd v Corporate City Developments Number Two Ltd [11], who went on to comment at [17]:

The distinction between there being no requirement (at least in the absence of a specific direction) to produce a report from an independent expert supporting the allegations of negligence and the requirement that pleaded allegations must have the support of such an expert (but whose report is not itself disclosed) affords no assistance to a claimant who has not sufficiently pleaded their case at all.

The Defendant referred me to Quaatey v Guy's & St Thomas' NHS Foundation Trust a clinical negligence case where Mrs Justice Lambert, having been referred to Pantelli, remarked at [22]:

“As Master Eastman and Master Cook stated, an allegation of professional negligence must be supported by a written report by an appropriately qualified professional, absent which the claim is liable to be struck out as an abuse of the court’s process”.

Secondly, there has to be a clearly articulated causal link between the alleged negligence (as particularised in the terms described above) and an identified consequence. So, in this case, the Claimant must allege what should have happened, with what favourable consequence had the treatment(s) taken place and, in contrast, the injury or condition the Claimant has sustained in the absence of such treatment(s). The need to identify an injury or condition either caused or materially contributed to by the alleged negligence is fundamental. Damages are not recoverable for a loss of a chance of full recovery or a loss of a chance of achieving a better outcome or avoiding a particular injury or condition. The Defendant relied upon Gregg v Scott to ensure there can and should be no doubt on this point.

Mr Copnall was quick to confirm at the commencement of the hearing that the claim did not seek to undermine the principle in Gregg.

Acceptance of legal principle, of course, does not assist if the Statement of Case as actually pleaded still invites analysis because it seems to emphasise only the possible rather than probable in terms of causation. I am not satisfied that the claim as pleaded does acceptably navigate away from presenting a claim for lost opportunity or a better chance of clinical improvement.

Mr Copnall’s skeleton argument states that there “is, or can be, no real dispute that there was a delay in diagnosing and treating the Claimant’s condition” and suggests that the “live issues” accordingly become:

“a.

Was that delay negligent?

b.

To what extent (if at all) would earlier treatment have improved the outcome?”

The simplicity of this summary elides the requirement to identify what is the Claimant’s actual case as to his underlying condition, how it should have been treated and the consequence alleged to have arisen because of the alleged “delay”. Mr Copnall’s questions are but two points within a range of issues, the scope of which only become clear if central allegations of breach and causation have been sufficiently pleaded.

From these initial points of concern, I deal with each relevant constituent element of the Amended Particulars of Claim as follows.

Paragraph 3

“The Claimant suffered spondylodiscitis (“the condition”).

This sentence has been directly copied from the report of Mr Todd and is presented as if a self-explanatory state of the Claimant’s health. Although specific medical definition was not explored in the hearing, I can take judicial note that this condition concerns an infection involving the intervertebral disc and adjacent vertebrae, often caused by bacteria that have spread through the bloodstream.

A clear statement of the Claimant’s physical condition at the time of the alleged negligent events is always crucially important (Footnote: ⁶). If a party relies upon a progressive condition such as this, its aetiology and hence state of progress or manifestation as at the operative dates relied upon is essential. To state the obvious, if this should be necessary, the Defendant’s practitioners did not cause “the condition”. An actionable claim has to show that they either made matters worse or at least made a material contribution to the continuance of “the condition” between specified dates. What would (or would not) have been the path of this infectious condition but negligence as alleged specific terms?

Without knowing when the Claimant asserts he developed “the condition” (or at least when sufficient symptoms as would have enabled diagnosis became manifest) and accordingly what was his state upon first presentation, any allegations of breach will be devoid of relevant clinical context. They become unacceptably present in a vacuum.

The pleading is defective for this first reason alone.

Paragraph 5 : “Particulars of Negligence” : “The First Attendance”

Paragraph 6 : The First Attendance

I have already concluded that the generic presentation of “the condition” pleaded at Paragraph 3 is insufficiently precise in terms of connoting how the Claimant presented on this occasion and so what course of clinical response was obviously required. I accordingly accept Mr O’Brien’s submissions that obvious questions immediately arise that the Amended Particulars of Claim does not deal with at all:

These are questions, I am satisfied, naturally arise and as one would expect to be explored and answered as part of the fundamental burden of any claimant pleading such a claim. They are not mere rhetorical observations of a defendant as fall subsequently to be explored by Part 35 experts.

Accordingly, the factual basis for the triage being negligent is absent, as is what different course of action and treatment would or ought to have taken place. The causal consequence of these necessary counter-propositions is similarly absent.

I have already dealt with the impression of “the condition” as if an objective term of reference. Hence, the allegation that there was a loss of chance of the condition “being diagnosed and treated” unacceptably seeks to attribute undefined negligence at an equally undefined point in the course of an infectious condition.

The imprecision of “being diagnosed and treated” provides no support for the consequential allegation that the Claimant had a chance of “making a full, alternatively better, recovery”. This last phrase strikes the informed reader as not much more than a lay statement of aspiration. Unless, of course, it is instead an impermissible attempt to rely upon loss of chance as a cause of action per Gregg.

The allegations of negligence in respect of “the First Attendance” are, I conclude, inadequate.

Paragraph 5 : “Particulars of Negligence” : “The Second Attendance”

In terms of causation, Paragraph 7 alleges that “in the absence of negligence” (i) the Claimant would have undergone an MRI of the spine; (ii) “The Condition would have been diagnosed and treated”; (iii) “The Claimant thereby lost the chance of making a better recovery”.

Very similar questions again arise on the bare facts and allegations as pleaded, given the insufficiency of the phrase “the condition” as obviously connoting what course of treatment or investigation was required in response. In short:

The Claimant’s pleaded claim in respect of the Second Attendance is, for the same reasons as already explored in respect of the First Attendance, inadequate.

Paragraph 9 : “Particulars of Injury”

The Claimant’s election to no longer proceed to rely upon the Third Attendance accordingly removes from this analysis the allegation at Paragraph 8a “the Claimant would have undergone surgery sooner”.

Paragraph 9 refers to the Claimant suffering “unnecessary surgery and subsequent convalescence and rehabilitation and is left with permanent neurological damage…”.

The obvious and minimum starting point here is that if surgery is alleged to have taken place that was “unnecessary”, what surgery was this, when did it take place and how and why did this surgery place the Claimant in a different position to the “treatment” the Claimant alleges should have taken place, upon either the First or the Second attendances. Further, to echo questions already raised but as again become relevant in this context, should the respective lost treatments on those attendances have contemplated surgery or not? If not, what else? If surgery, the same or different surgery and why?

The next obvious and unanswered question is what has caused the permanent neurological damage, given the Claimant implies he did at some undefined point undergo surgery but raises no allegation of negligence in respect of that surgery? If the Claimant’s case is that that something was caused or rendered incapable of subsequent treatment as a result of one or both of the attendances relied upon, precisely what is that damage or loss?

In summary, I am unable to follow what meaningful ultimate consequence is alleged to have emanated from one or both of the two attendances relied upon. Whilst not a substitute for the correct pleading of breach and causation, such identification might at least have assisted in understanding the underlying claim in principle.

The Claimant’s Application for permission to Re-Amend the Particulars of Claim

Particulars of Negligence at Paragraph 5 in respect of the first attendance delete reliance on the category 2 level of triage classification and instead substitute an allegation of failure to triage “as ‘urgent’ alternatively failed to act on a triaging of ‘urgent’”. Further new particulars follow that mirror comments featured in the tabulated chronology. That is there was a failure to provide the Claimant with pain relief, an opportunity to lie down, no assessment by a doctor “for nearly 4 hours” and informing the Claimant “that he may not been seen for several more hours when “that was incorrect and there was no reasonable basis for that representation”.

Particulars of negligence at Paragraph 6 continue to rely upon same the four alleged consequential events [that he was not seen by a doctor before he chose to leave the hospital, he did not undergo an MRI scan, neither receive a diagnosis and treatment of “the condition”, nor make “a full, alternatively better, recovery”] but are now presented as benefits the Claimant would have had “in the absence of negligence”. The phrase “lost chance” is deleted.

The change of emphasis therefore appears to be that it is alleged that the four events at Paragraph 6 would have taken place but for the negligence rather than constituting chances as lost. Hence why the new Paragraph 6A clarifies that “for the avoidance of doubt, upon the Claimant establishing that he has suffered some recoverable loss” the extent of that loss and damage would have been avoided “is to be determined on the basis of loss of chance”.

This change may seem superficially attractive but only if clearly linked to (i) sufficiently pleaded allegations of breach; and (ii) identified causal outcome(s). The proposed re-amended claim has to be read in this context if the court is to be satisfied that it has real prospects of success and hence the re-amendment be permitted.

Neither a failure to provide pain relief or an opportunity to lie down could have led to the four events proposed at Paragraph 6. These are collateral and comparatively minor episodes that, if actionable at all, would present in a Small Claims Track claim. If the Claimant purports to have a much greater and more serious claim than this, it needs to be apparent.

Similarly, neither could the statement of an unidentified representative that the Claimant may not be seen for several more hours deprive him of medical examination and treatment. It was, after all, the Claimant’s choice to leave rather than stay. The words as relied upon are not portrayed as, neither could reasonably be taken to be, a comment as to the Claimant’s need for treatment, of what type and when.

Arguably, only a failure to triage as urgent and a failure to be seen by a doctor sooner might have led to specific events at least of a kind to the four relied upon. However, an allegation that the Claimant would have “had the benefit of” them requires specific explanation. Mere assertion is not sufficient.

Without doubt, had the Claimant remained in A&E, he would indeed have been seen by a doctor. According to the Claimant’s own version of events, it would seem very shortly after he had chosen to leave. The proposition is that he should have been seen sooner owing to his presenting symptoms and the Defendant had been negligent in not recognising them, having wrongly not triaged him as an urgent claim.

The proposed amendment still fails sufficiently to detail the Claimant’s presenting symptoms and so, accordingly, the propositions that he was wrongly triaged and should have seen a doctor sooner are insufficiently explained. Put another way, it is difficult on the case even as amended to see how any defendant could prepare and respond to this.

The fact (at least according to the chronology at Paragraph 1) the Claimant underwent an MRI scan on 07.01.17 is obviously not self-proving that one was clinically called for on 30.11.16. The proposed amended claim makes no attempt to explain why it was. Hence, even if one assumes that the incorrect triage and failure to receive attention sooner might succeed, there is a void of explanation how and why an MRI scan would have entailed.

Lord Phillips in Guest illustrated how chance can still play a part in clinical negligence claims but if and only in so far as the claim is based on a specific adverse proposition. So, at Paragraph 173, he posited four such examples: i) A claim that negligence has caused a discrete injury; ii) A claim that the injury so caused may, in the future, cause further injury; iii) A claim that the injury so caused has reduced the claimant's expectation of life; iv) A claim that negligence has reduced the prospect of cure of a fatal illness.

In neither the Amended Particulars of Claim nor the proposed Re-Amended Particulars of Claim is any such central proposition evident. Both Statements of Case would present any defendant and their representatives with an almost impossible task unless the burden of proof were to shift to expecting them as defendants to offer and discuss the range of possibilities that might have eventuated had the Claimant not voluntarily chosen to leave A&E on his first attendance.

Whilst the Claimant complied with the November 2023 Order in so far as he served and filed an “Amended Particulars of Claim”, I am not persuaded that the Amended Particulars of Claim satisfied the requirements of the November 2023 Order by providing “further and better particulars” of the Claimant’s allegations of breach of duty and causation. For the reasons discussed, I conclude the amended particulars insufficiently particularised to an extent that prevents meaningful response by way of Defence. Neither is this a pleading amenable to clarification by way of a Part 18 Request. A request for further information on an issue or issues is not the same as a request to a party to identify the fundamentals of their claim. Part 18 Requests are not intended to facilitate a party wholly to re-plead their claim.

As such, the Claimant substantively breached the intention of the November 2023 Order and so was automatically struck out. It is irrelevant if the analysis leading to this conclusion happens to be applied much later in time. The objective question (as to compliance) remains the same.

In the absence of an application by the Claimant to be reinstated, this has to be the end of the claim.

The parties disagree whether this conclusion, as I expressed in the original draft reserved judgement, engages CPR 44.15 such that QOCS has been disapplied.

CPR 44.15 provides:

The Claimant submits that a conclusion that there was non-compliance with the November 2023 Order means that the claim must have been struck out pursuant to CPR 3.4(2)(c) and rule 44.15 does not contemplate a strike arising from r.3.4(2)(c).

Rule 3.4 provides for different circumstances in which, by operation of at least that rule, the court has power to strike out a case:

The Claimant submits rule 44.15 only contemplates sub-paragraphs (a) and (b) in rule 3.4 and so a failure to comply with an unless order, as leads to a strike out pursuant to sub-paragraph (c), accordingly does not fall within the meaning of any of “grounds” described in CPR 44.15. Once this conclusion is reached, QOCS is retained the court has no discretion to otherwise disapply QOCS. The QOCS regime is “essentially mechanical rather than discretionary” (Footnote: ⁸).

Mr Copnall gave examples of cases (albeit admittedly not in the same procedural circumstances) where the court had been disinclined to extend or expand the effect of QOCS regime. He accepted there appears no reported case to support his proposition that r.44.15 impliedly excludes cases as struck out for non-compliance with an unless order but submits that the word “grounds” must be restrictively read in the QOCS context in which it appears and having regard to the policy considerations that underpin it. Those policy considerations preclude a wider construction.

The Defendant submits that the underlying reasons and hence “grounds” for concluding the claim was automatically struck out fall within the very substance contemplated by rule 44.15. The Claimant’s breach was not merely in failing to comply with a rule, practice direction or court order as could lead to strike-out under CPR 3.4(2)(c). Indeed, taken in the limited context that “an” amended pleading was filed by the due date, the Claimant would survive a challenge that he had failed “to comply with a…court order”. The Defendant points to the central feature of the November 2023 Order that it featured a condition (“further and better particulars”) and it was that condition that formed the basis of the unless order. The condition was obviously to avoid the wrongs contemplated in r.3.4(2)(a) and (b). In breach, r.44.15 is very obviously engaged.

The Defendant submits that rule 44.15 is engaged when the grounds it sets out have occurred. However, the word “grounds” in rule 44.15 does not contemplate and incorporate only the grounds listed in subparagraphs (a) and (b) in Rule 3.4(2), such that the rule implicitly excludes the “ground” in Rule 3.4(2)(c). Rule 44.15 must instead be approached independently. It requires the court to interpreted substantively the question why a claim came to be struck out. From that, it can be concluded whether QOCS will have been disapplied. The process requires a simple objective qualitative analysis of the reasons for the strike-out. That analysis does not directly mirror the considerations of r.3.4(2), even though the overlap is very often present.

The feature of the rule engaging after a strike-out, rather than somehow adding or supplementing the provisions to strike-out, was affirmed in Excalibur & Keswick Groundworks Ltd v Michael McDonald [2023] EWCA Civ 18 where, at [52], the court affirmed that “CPR 44.15(c)….creates no new principle, rather it prescribes what happens to QOCS protection when the case has been struck out. Consistent with the point that no new principle is created is the fact that it contains the same phrase (“likely to obstruct the just disposal of the proceedings”) as that contained in CPR 3.4(2)(b). It adds nothing to the interpretation of the earlier provision.…”.

The Defendant likewise relies upon the self-standing and clear guidance in Achille v Lawn Tennis Association Services Limited [2022] EWCA Civ 1407 at [4]:

“CPR 44.15 allows a defendant to enforce a costs order made against a claimant to its full extent without needing permission from the court in three categories of case. These are (1) where the claimant has disclosed no reasonable ground for bringing the proceedings, (2) where the proceedings are an abuse of the court’s process and (3) where the claimant is personally responsible for conduct which is likely to obstruct the just disposal of the proceedings”

Nowhere in the discussion in Achille appears any necessary cross-referencing and reliance upon only the “grounds” listed in r.3.4(2)(a) and (b) as the genesis for rule 44.15.

That rule 44.15 should be approached and applied on its own terms is, Mr Bantin (who appeared at the hearing on 26 June) submits, is supported by observation how in Achille the court similarly approached the word “proceedings” as used in the QOCS rules. The court accepted that the meaning of “proceedings” must be read in the context of giving effect to the purpose of the QOCS regime and not by reference to its use elsewhere in the CPR. So, per Lord Justice Mills at [29-30] “The deterrent aspect of CPR 44.15 is confined to claims which have been struck out on one of the three grounds set out in the rule. Essentially these are claims which should not have been brought in the first place, or where the claimant’s conduct of the claim merits the severe sanction of striking out….”.

The Defendant in any event recognises no clear cut and exclusive distinction between a strike out owing to failure to comply with a rule, Practice Direction or Order per r.3.4(2)(c) and other forms of strike out for, say, abuse of process. The Court of Appeal in Cable v Liverpool Victoria Insurance Ltd [2020] EWCA Civ 1015 was satisfied that the sub-paragraph (c) and (b), for example, were capable of overlap rather than entirely distinct:

“….a failure to comply with the CPR or its Practice Directions can constitute an abuse of process: see for example Lewis v Ward Hadaway (a firm) [2015] EWHC3503 (Ch), and Liddle v Atha & Co Solicitors [2018] EWHC 1751 (QB), [2018] 1WLR 4953. These cases involved the deliberate understating of the value of the claim on the claim form in order to avoid paying higher court fees. In both cases, it was found that this amounted to an abuse of process.”

The Court of Appeal similarly in Maqsood v Mahmood & Ahmad [2012] EWCA Civ 251 dismissed an appeal against a strike-out pursuant to CPR 3.4(2)(c) by including in its reasoning qualitative findings as to the appellant’s conduct and default, remarking at [44] that he had failed “to ensure that the case was dealt with expeditiously and fairly”. If a strike out pursuant to CPR 3.4(2)(c) established an independent route that was immune to any consideration of conduct or abuse then it seems remarkable that the court entertained it, even to the extent of reviewing and reconsidering afresh the view of the judge at first instance as to merits.

The power of the court to strike out a case, and moreover to strike out for reasons (“grounds”) reflecting the contemplation of rule 44.15 is in any event not exclusively limited to Rule 3.4, as r.3.4(5) expressly acknowledges. For example, the High Court has an inherent jurisdiction to strike claims out. The White Book at 3.4.20 comments that “the court has an inherent jurisdiction to strike out….proceedings which amount to an abuse of the court’s process…..This jurisdiction is preserved by r.3.1(1) and r.3.4(5). It duplicates but is not limited to the express powers to strike out which are conferred by r.3.4 (2)…”.

I am therefore satisfied that “grounds” in rule 44.15 refers to, no more and no less, than the underlying reason explanation why a claim came to be struck out. The way in which a claim can come to be struck out can procedurally various. Rule 44.15 encompasses those wide reasons and then classifies those relevant for the purposes of QOCS disapplication. Those reasons are not exclusively those listed at r.3.4(2). Indeed, as is commonly encountered in strike out applications, might touch and overlap more than one reason for strike out. Hence the “grounds” under rule 44.15 may straddle one or more of CPR 3.4 (2) (a), (b), (c) or CPR 3.4 (5) or, indeed, other procedural mechanisms. Rule 44.15 obliges the court to determine the actual, substantive reason(s) why a claim was struck out in order to then decide whether QOCS have come to be disapplied. It is not to be read within the exclusive prism of rule 3.4(2)(a) and (b).

Sub-paragraph (c) always provide a convenient run-off escape route, irrespective of the underlying nature of the failure under sub-paragraph (c) to comply with the (as here) court Order. I reject the Claimant’s submission that r.44.15 only incorporates the provisions of rule 3.4(2)(a) and/or (b) as the to recognise a strike out, such that r.3.4(2)(c) can never facilitate a strike out “ground” relevant for the purposes of r.44.15. I agree with the Defendant that such a restrictive interpretation could lead to unjust consequences. Such as the example provided of a claimant who egregiously fails to comply with an unless order obliging them to preserve documents by instead destroying them. Would the obvious abuse of process here mean the claimant was nonetheless immune from the application of rule 44.15 strictly because their claim had been struck out pursuant to rule 3.4(2)(c)? This surely would neither fair nor correct.

However, if I am wrong both in my interpretation of the November 2023 Order such that the Claimant was not automatically struck out for non-compliance, then the Defendant’s 12 February 2024 Application and draft Order is such that I am entitled to consider whether the Amended Particulars of Claim as filed should be struck out.

For the same reasons discussed, I am satisfied on the Defendant's Application that the Amended Particulars of Claim should be struck out pursuant to the provisions of CPR 3.4(2)(a) and/or (b). The Statement of Case discloses no reasonable grounds for bringing the claim. Further or alternatively, it is an abuse of the courts process or is otherwise likely to obstruct the just disposal of the proceedings. Likewise, for the reasons discussed I am satisfied that the claim has no real prospect of succeeding, neither has any other compelling reason been provided for it being disposed of at trial.

For the reasons discussed, the Claimant’s application to re-amend is dismissed. Save for the withdrawal of allegations in respect of the second and third attendances, the proposed amendments provide no further assistance to the just consideration and disposal of the first attendance. Even with re-amendment, the claim would still have no real prospect of success.