FREE LEISURE LTD (T/A "CIRQUE LE SOIR") v [1] PEIDL & COMPANY LTD (NOW DISSOLVED) [2] QBE UK LTD [2023] EWHC 792

A blank claim form (insofar as it simply stated “a claim arising out of breach of contract and/or negligence” in contravention of CPR, r. 16.2(1)) that was issued on the cusp of limitation but served only after expiry of the limitation period was struck out. It was impermissible for a claimant to rely upon Particulars of Claim or a Letter of Claim as an aid to interpret the Claim Form, especially where each was only served after the limitation period had expired.

The applications before the court

[1]    This is an application by the Second Defendants to strike out the claim or alternatively for reverse summary judgment. At the end of the oral hearing I gave judgment in favour of the Defendants for reasons to be given later. These are my reasons.

Factual summary
[3]    Until it was dissolved on 12 October 2021 by compulsory strike off from the register, the First Defendant (company number 07154359) had been in the business of providing the services of “handymen”, carrying out maintenance, repairs and similar work…
[4]    The Second Defendant provided a policy of insurance to the First Defendant.
[13]    On 29 November 2021 the Claim Form in the present proceedings was issued;
[14]    On 28 March 2022 the Claimant’s solicitors served the Claim Form and sent a Letter of Claim to the First and Second Defendants. This set out the nature of the claim in negligence and breach of contract against the First Defendant and the claim against the Second Defendant under the Third Party (Rights against Insurers) Act 2010. It provided details of the different heads of loss claimed;
[16]    The Second Defendants have not served a Defence. On 29 July 2022 they applied to strike out the Claim Form and for summary judgment. The Claimants respond by applying if necessary to amend the Claim Form by Application Notice dated 15 March 2023.
[17]    The Claim Form provides no details of the claim. It simply provides “brief details of claim” as follows:
“A claim arising out of breach of contract and/or negligence”

The Limitation Position
[18]    Prima facie, limitation expired on 18 December 2021, six years after the fire. As concerns the claim against the Second Defendant under the 2010 Third Party (Rights Against Insurers) Act, as section 2(4) permits an insurer to rely on any defence which would be available to the insured against the third party, this should also include any limitation defence available to the insured. 
Indeed, this is the view taken by the editors of MacGillivray on Insurance Law (15th Ed.) at 28-030…

The Second Defendants’ case
[19]    The Second Defendants’ case can be summarised as follows:
a.       First, the claim form should be struck for disclosing no reasonable grounds for
bringing the claim against the Defendants.
b.       Second, alternatively, the claim form should be struck out for failure to comply with CPR 16.2(1).
c.       Third, the issuing of the bare claim form, purely in an attempt to stop the limitation period running and thus deprive the Defendants of any potential limitation defence, amounts to an abuse of process and so the claim should be struck out.
d.        Fourth, the latest date for the accrual of any cause of action against the Defendants, was 19 December 2015, the date of the fire. Any claim brought against the Defendants after 18 December 2021 is therefore time-barred.
e.       Fifth, for the above reasons, the issuing of the bare claim form is insufficient to stop time running for the purposes of limitation and any new or amended claim brought by the Claimant will also now be time-barred.
f.        Sixth, the Claimant’s application to amend the claim form out of time must fail as
there is no question of the proposed amendments arising out of the “same facts” as already stated in the claim form in circumstances where the claim form contains no statement of facts at all.
g.       Seventh, accordingly, the claim has no reasonable prospects of success and (if not struck out), summary judgment should in any event be entered in the Defendants’ favour.

Authorities
[22]    CPR 16.2(1) requires a claim form to:
“(a) contain a concise statement of the nature of the claim;
(b) specify the remedy which the claimant seeks”
[24]    In the pre-CPR case of Marshall v London Passenger Transport Board [1926] 3 All ER 83, at 90, Romer LJ considered it impermissible for a claimant to indorse a writ merely with a claim for damages for breach of contract or damages for negligence “without giving the defendants some indication of the contract which he … alleges has been broken, or some idea of the duty which he says the defendants have failed to perform.”
[25]    The relevant commentary in the RSC was based on Marshall:
“a concise statement of the nature of the claim” means that, where the claim arose out of a contract, the endorsement should give details of the relevant contract and where the claim arose out of a tort it should give the date and place of the occurrence and the nature of the tort alleged. It is necessary to at least give some idea or inclination of the duty which it is alleged the defendant has failed to perform.
[26]    … In Nomura International Plc v Granada Group Limited [2007] EWHC 642 (Comm), at [39]… the judge considered the passages [in Marshall and the RSC commentary] relevant when looking at CPR 16.2(1) owing to the similarity between the wording and underlying policy of CPR 16.2(1) and the equivalent rule in the RSC. 
More recently, and to similar effect, in Libyan Investment Authority v King [2020] EWCA Civ 1690 at [61], Nugee LJ considered that there will “always be facts stated in the claim form”.

Discussion
29.   In my view the position is as follows:
a.       There are no facts set out in the Claim Form.
b.       The Letter of Claim cannot be used to interpret or construe the Claim Form because it does not in any sense interpret or construe it…
c.       But in any event, the Letter of Claim was created after limitation had expired when the Claim Form was served.  
If in Muduroglu v Stephenson Harwood [2017] EWHC 3926 (TCC) the court had no jurisdiction to permit amendments made to the Claim Form without leave after issue prior to service but after limitation had expired, the Claimant can hardly be in a better position by drafting a Letter of Claim and sending it with the Claim Form at the time of service of the Claim Form but after limitation has expired.
d.       In any event there are problems in any circumstances in relying on a Letter of Claim as an aid to interpretation of a pleading, at least other than in an extreme case.
e.       The Particulars of Claim cannot be relied upon to explain the Claim Form; in Evans v Cig Mon Cymru Ltd [2008] EWCA Civ 390 the Particulars of Claim were served at the same time as the Claim Form. Here they were not even served at the same time the Claim Form is served; they were served after limitation had expired.
f.        The Particulars of Claim plead new causes of action; it cannot be said that they plead the same causes of action as the Claim Form because the Claim Form pleads no effective cause of action.
g.       Thus it would be necessary to obtain leave to amend the Claim Form because it could not otherwise be permissible to serve non-conforming Particulars of Claim.
h.       However there is no jurisdiction to amend the Claim Form because limitation has expired and the amendments raise new causes of action which are not on substantially the same facts as those already contained in the Claim Form.
[30]    In those circumstances the claim cannot continue. I do not think it matters which of the various strike out routes is adopted. The claim must be struck out.