‘Bare Assertions’ of Culpable Defendants in Statements of Case: Wrightson v Flor Projects Ltd & 2 Ors [2018] EWHC 3036 (QB)

In personal injury claims, with ‘complex’ employment history, it may be difficult to identify culpable defendants with certainty. In the case of Wrightson v Flor Projects Ltd & 2 Ors [2018] EWHC 3036 (QB) His Honour Judge Platts considered the effect of advancing ‘bare assertions’ of fact in the statement of case.

The claimant brought a claim for personal injuries, caused by an incident on 16 November 2012. Proceedings were issued against 16 defendants (an entire mining complex), on 27 November 2014. Service was effected on 7 out of 16 original defendants. Following discontinuance against 4 of the 7 remaining defendants, the claim continued against just 3 defendants. Judgment in default was entered against 1 of these defendants, leaving just 2 defendants (the 6th and 10th defendants).

At a costs and case management conference (CCMC), on 12 April 2018, Master Thornett was dissatisfied with the claimant’s pleadings. He ordered that the claim be stayed, until the claimant filed and served an application, seeking either of the following:

‘(i) to amend the particulars of claim, or

(ii) such other directions as enable the claim to be pleaded and to proceed in a comprehensible and efficient manner, and

(iii) any application to discontinue in respect of such defendants who have not been served to date ...’

On 25 May 2018, the claimant made an application to amend the particulars of claim.

In response, the 6th and 10th defendants applied to strike out the particulars of claim, pursuant to CPR 3.4(2)(a) and CPR 1.1(2)(d) and (f), on the basis that the claimant disclosed no reasonable grounds for bringing the claim.

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The claimant’s draft amended pleadings were just as indefinite; they advanced no more than mere ‘suspicion’ or ‘belief’ that the defendants were liable and did not specifically say where the accident occurred. In order to ‘fully plead his case in relation to the basis of the liability now alleged’, disclosure was needed.

At the application hearing, HHJ Platts identified that ‘striking out is a draconian remedy and should only be used as a last resort if there are no other just options available to the court’.

Nevertheless, he considered that if the defendants’ strike out applications were to succeed, in light of the claimant’s draft amended pleadings, then the claim would be struck out. By contrast, if they were to fail, then the amended pleadings would be allowed to stand and the claim would continue.

The defendants submitted ‘that particulars ... [pertaining to the claimant’s] ... employment could and should have been given in the draft amended pleading ...’ Further, they submitted ‘that a bare assertion of employment ... is not sufficient’.

The claimant had ‘not taken any steps, save by pre-action request, to obtain such disclosure to properly plead his case’.

HHJ Platts recognised that, under CPR 16.4(1)(a), the claimant’s particulars are intended to include a ‘concise’ statement of case. The rationale for this is to allow defendants to identify the legal and factual issues ‘at an early stage’.

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However, the ‘bare assertions’ as to occupation and employment, included within the amended particulars, left the defendants ‘no better off ... than ... when the original particulars of claim were served in 2015’.

Despite recognising that claimants do not always ‘have the knowledge to identify the defendants or the basis of liability, in particular, where there are a number of organisations which might or could be related to the employment or the systems of work which a claimant has to deal with’ HHJ Platts concluded, at paragraph 23:

‘It is now six years since the accident. It is four years since proceedings were commenced. It is three and a half years since the original particulars of claim were served. In this procedural context, the claimant has been given ample opportunity to amend and to seek directions to enable him to clarify his case, but he has failed to do that. In those circumstances, there being no factual basis pleaded on which the bare assertions of employment and occupation are made, I am afraid I cannot conclude that the grounds for bringing the claim which are pleaded are reasonably pleaded or are reasonable’.

The judge went on to say, at paragraph 24:

It is not reasonable after this length of time for the defendants to have to continue to investigate this case on the basis of an un-particularised allegation that they owed a duty of care without any proper assertion as to how that duty of care arose’.

HHJ Platts therefore found in favour of the defendant. Had claimant’s amendments been allowed, the particulars of claim would be struck out, as there were no reasonable grounds pleaded for bringing the claim.