THE CURRENT IMPORTANCE OF PLEADINGS 2: YOU CAN’T ADVANCE CAUSES OF ACTION NOT PLEADED IN THE CLAIM FORM
Having determined to look more closely at cases where the statements of case are at issue cases seem to come forward in abundance. The failure of a claimant to plead a cause of action in a claim form was considered by Mr Justice Bryan in Al Mashariq for Trading and Contracting Co v HSBC Bank PLC [2025] EWHC 496 (Comm). The claimant had pleaded certain issues in a Reply, but these were not in the claim form. The claimant was not entitled to summary judgment on the basis of a cause of action not mentioned in the clam form.
“… the Claimant’s claim for summary judgment on grounds of estoppel by representation is misconceived. No relevant cause of action is advanced in the Claim Form to which any plea of estoppel by representation could attach, or be of relevance. The plea in the Claim Form clearly is, and is limited to, a claim for negligent misstatement.”
THE CASE
The claimant brought an action against the defendant for negligent misstatement. Its case is that it constructed and handed over $5,750.000 worth of portacabins to a third party as a result of negligent misstatement. The third party had produced a banker’s draft and the claimant had made enquiries of the defendant as to whether this was a genuine document. The defendant had responded saying it was. Consequently the claimant produced the portacabins and delivered them to the third party. It transpired, however, that the banker’s draft was a forgery and the defendant did not honour it.
THE APPLICATION
The claimant issued proceedings relying on negligent misstatement. It sought summary judgment against the defendant.
“The Claimant claims damages for loss and damage arising out of the Defendant’s negligent misstatement and breach of the duty to the Claimant”.
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- I will need to return to this in the context of oral submissions made by Mr Higgins, on behalf of the Claimant, during the course of oral argument, but I note at the outset that on its face the Claimant does not advance any cause of action in its Claim Form other than Hedley Byrne type liability for negligent misstatement. In particular, the Claimant has not attempted to bring any cause of action in relation to the Banker’s Draft itself, for example on the basis that it was a promissory note, such as to give rise to any claim for specific performance thereof or for the amount said to be due thereunder (which, conceptually, might be accompanied by a plea that the Defendant was estopped by representation from asserting that it was a fraudulent nullity).
- Whilst the Claimant does plead in its Reply that “[f]or the purposes of defending these proceedings, the Defendant is estopped from asserting that the Banker’s Draft is not genuine and not valid” and that “the Claimant is entitled to be paid the sum stated on the face of the Banker’s Draft by the Defendant”, that plea is not tethered to any cause of action in the Claim Form. As I say, however, I will return to this point, given that Mr Higgins in his oral submissions suggested that there was a claim under the Banker’s Draft itself advanced in the Claim Form.
THE JUDGE’S DECISION
The judge made some declarations but refused to grant the claimant summary judgment on several grounds. One of those grounds was that one of the grounds on which the claimant sought judgment was not in the claim form.
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- In my judgment, the Claimant’s claim for summary judgment on grounds of estoppel by representation is misconceived. No relevant cause of action is advanced in the Claim Form to which any plea of estoppel by representation could attach, or be of relevance. The plea in the Claim Form clearly is, and is limited to, a claim for negligent misstatement.
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- In the course of his oral submissions, Mr Higgins suggested that there was a claim under the Banker’s Draft in the Claim Form. I referred him to what was pleaded, which is, “[t]he Claimant claims damages for loss and damage arising out of the Defendant’s negligent misstatement and breach of its duty to the Claimant”. That is clearly a claim for negligent misstatement in tort. Mr Higgins suggested that the words “and breach of its duty” amounts to a claim (in contract) under the Banker’s Draft. That suggestion is, with respect, untenable and indeed unarguable. It is clear that the reference to duty relates to a claim in tort, namely the fact that the Claimant owed a duty not to make a negligent misstatement and had breached that duty. That can also be seen from the claim for damages and the value of the claim, which is a damages claim, not a claim for a sum allegedly due under a promissory note.
“The claim form should identify the tort, breach of contract or other civil wrong complained of. In Nomura International Plc v Granada Group Ltd [2007] EWHC 642 (Comm) C obtained the issue of a claim form which was in general terms in order to cover any claim C may have against D if C was subsequently sued by X: C had not decided which claim to pursue against D but commenced proceedings merely to protect its position on limitation; the claim form was struck out as an abuse of process”.
(emphasis added)
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- Notwithstanding the pleas in the Reply (and quite apart from the fact that any cause of action should be advanced and claimed in the Claim Form) the pleas in the Reply are simply untethered to any relevant cause of action, and no cause of action based on the Banker’s Draft itself is advanced in the Claim Form. Accordingly, the numerous references to reliance by the Claimant on the Banker’s Draft to its detriment, and to estoppel by representation in the Reply, in the witness statements, and in the Claimant’s Skeleton Argument, does not further, or support, any pleaded cause of action.