A reply must be consistent with the pleadings: R5 Capital Ltd v Mitheridge Capital Management LLP [2021] EWHC 2316 (Ch) - Rochelle Powell, Temple Garden Chambers
26/08/21. The Defendant applied for security for costs and an order to strike out aspects of the Claimant’s statements of case. Both applications were successful. In relation to the pleadings, the Defendant argued that parts of the Reply were incompatible with the claimant’s pleaded case. Deputy Master Raeburn agreed, highlighting that the rules require a reply to be consistent with an earlier statement of case.
Strike Out Application
The Defendant sought an order compelling the Claimant to produce draft amended Particulars of Claim setting out any case based on its “subsequent subscription” argument, failing which paragraph 20(b) of the Reply is struck out, together with consequential orders.
The basis of the Defendant's application was in essence, that the Claimant's Reply was inconsistent with its Particulars of Claim, in breach of paragraph 9.2 of Practice Direction 16. It was said that the Claimant's Reply introduced a new case that “the investment in TFO was a subsequent subscription” which was contrary to the Claimant's Particulars of Claim and the Claimant's Response to the Defendant's RFI, which states that “The Claimant does not rely upon the Fund II Investment as being a “subsequent subscription”.
The applicable principles are set out at paragraph 9.2 of Practice Direction 16 which provides that: “A subsequent statement of case must not contradict or be inconsistent with an earlier one; for example, a reply to a defence must not bring in a new claim.” The Defendant also referred to the judgment of Mr Justice Pepperall in Martlet Homes Ltd v Mullaley & Co Ltd [2021] EWHC 296 (TCC), at paragraph...
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