Professional Negligence: If in serious doubt, apply to strike it out

Faced with a determined and serial litigant, claiming millions who repeatedly provides incomprehensible pleadings over hundreds of pages long, while making very serious allegations with no real prospect of success, often the best approach is to simply apply to strike out the claim. 

That was the successful approach taken by the defendant law firm and their insurers in the case of Clutterbuck v Brook Martin, and Stephen Brook (2019), in which Master Shuhman struck out the claim on 26 April 2019.

The Claimant had first made allegations against the Defendant firm of solicitors in 2014, at the same time as issuing protective proceedings. Since then, the Claimant has had many attempts at setting out her claim, in correspondence, and then in three different but hugely lengthy Particulars of Claim (POC). At times she was represented by solicitors or direct access barristers; at times (including in Court) she represented herself. However, the Court recently struck out the claim, on the basis that she was not entitled to another chance to get her pleading in order, with the Master confirming that “enough is enough”.

Professional indemnity specialists at Mills & Reeve acted for the successful defendant lawyers and their professional indemnity insurers together with David Halpern QC and Amanda Savage of 4 New Square.

Background

The claim arose out of the Claimant and her partner’s business as property developers, primarily dealing with high value properties in South West London. The Defendant solicitors had acted for them over a number of years in relation to their property matters.

The Claimant and her partner have brought a number of unsuccessful actions against other parties involved in their business transactions, seeking to recover millions of pounds of alleged loss of profits, and the return of various properties and monies. These claims were against business contacts/partners, and the provider of a loan.

What was the claim against Brook Martin about?

The Claimant made very serious allegations of negligence, misrepresentation, breach of trust and fraud against the Defendants in relation to a number of property transactions in which they had acted for her. The losses were never properly quantified but were alleged to be many millions of pounds

Alongside the claim, the Claimant made a complaint to the SRA about the firm, citing much of the same information, and including similar allegations.

What happened?

Instead of filing a defence, the Defendants simply applied to strike out the claim (rule 3.4) or for reverse summary judgment (part 24) on the basis that:

1. The POC were non-CPR compliant and impossible to understand or plead to.
2. The claim was an abuse of process as it sought to impugn previous judgments and made contentions, which were inconsistent with previous decisions.
3. The claim was statute barred.

At that stage, the most recent draft amended POC stretched to 58 pages with 2 appendices which were even longer. Combined they were even more incomprehensible than the original ones.           

The Claimant applied to amend her POC, and sought to introduce new documents and expert evidence to support her application and her claim.

The Claimant also sought disclosure of documents relating to the SRA’s investigations into her complaint, and to stay the determination of the strike out, pending disclosure. That application was dismissed.

Direct Access Counsel for the Claimant accepted that both the POC and the draft amended POC were non-CPR-compliant, and liable to be struck out. Despite this, and despite having been told what the deficiencies were and being given numerous opportunities to address them, no draft CPR-compliant amended POC were ever produced. No explanation was provided for this failing.

Decision

In a detailed and carefully thought through judgment, the Master struck out the claim for a number of reasons:

• The POC were wholly inadequate and non-CPR compliant. The Master expressed concern in the judgment as to the unfairness of the position the Defendant solicitors were in, as well as the disproportionate amount of time the Court had had to dedicate to the matter and the related matters. She expressed a lack of confidence, given the history, that the Claimant would engage with the process properly going forward.
• It was an abuse of process. It sought to attack previous court judgments (in relation to actions the Claimant had brought against other parties in relation to the same matters) and made contentions which were inconsistent with previous decisions.
• Time-barred. The majority of the allegations made were statute barred.

Of course, every case of this nature will turn on its own facts. However, for Professional Indemnity Insurers and their policyholders, this decision is a very helpful example of how to deal with claims of this nature and fight back. Sometimes, it really is worth investing the time and money in a detailed and articulate strike out application and following it through. At worst, it might simply provoke the Claimant to provide a fresh but coherent claim. At best, the claim is defeated before the proceedings have gathered pace. It is notable that in this case, no CPR-compliant pleading was ever offered; this led to the Master’s concern that nothing would change if she gave the Claimant another chance. Enough was enough.