This site uses cookies.

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...

Image ©

Read more (PIBULJ subscribers only)...

All information on this site was believed to be correct by the relevant authors at the time of writing. All content is for information purposes only and is not intended as legal advice. No liability is accepted by either the publisher or the author(s) for any errors or omissions (whether negligent or not) that it may contain. 

The opinions expressed in the articles are the authors' own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand. 

Professional advice should always be obtained before applying any information to particular circumstances.

Excerpts from judgments and statutes are Crown copyright. Any Crown Copyright material is reproduced with the permission of the Controller of OPSI and the Queen’s Printer for Scotland under the Open Government Licence.